Article

Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot...Read More >>

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the...Read More >>

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule. But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may...Read More >>

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations...Read More >>

After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher...Read More >>

This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and...Read More >>

So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.). On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the...Read More >>

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a...Read More >>

You may be able to convince a judge that an arbitrator’s award was wrong on the law. The judge thought so in E-Commerce Lighting, Inc. v. E-Commerce Trade LLC (D4d2 Dec. 9, 2022 No. E074525) --- Cal.Rptr.3d --- and so reversed the setoff awarded by the arbitrator in this lender-borrower dispute. Basically, the lender and...Read More >>

When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can...Read More >>

Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd. In the District Court ruling...Read More >>

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative”...Read More >>

The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659)...Read More >>

Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later. But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023...Read More >>

What happens when an unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine? We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gives way. And so the plaintiff, who lost on summary judgment and forgot to appeal the...Read More >>

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no....Read More >>

Sometimes, lawsuits involve allegations of embarrassing or even illegal conduct. And a prelitigation letter that references that conduct might be considered extortion. The trial court thought an attorney letter was extortion in *********************Flickinger v. Finwall (D2d8 Nov. 30, 2022) 85 Cal.App.5th 822. But the Court of Appeal disagreed, and published its opinion saying so. The...Read More >>

Question: What’s the difference between an arbitration ruling based on an interpretation of contract that is merely wrong, and one that is irrational? The answer in Hayday Farms, Inc. v. FeedX Holdings, Inc., No. 21-55650 (9th Cir. Dec. 19, 2022), an appeal from an arbitration award, is about $7 million. This is yet another cautionary...Read More >>

Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions. The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson,...Read More >>

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial...Read More >>

Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in  Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs....Read More >>

The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused...Read More >>

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.” The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases...Read More >>

Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty...Read More >>

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension. In Aaronoff v. Olson,...Read More >>

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline. After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz...Read More >>

CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.” The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the...Read More >>

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of...Read More >>

We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them...Read More >>

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its...Read More >>