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Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits. We discuss:  ...Read More >>

I will tell you two facts about this recent arbitration case, and let you guess how the Court of Appeal concluded. But be warned: your guess will be wrong. Fact one: The arbitrator found for the buyer (in a dispute over a business sale) based on the arbitrator’s conclusion that the seller’s lack of credibility...Read More >>

Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why...Read More >>

After the County of San Benito dragged its feet in responding to a natural resources group’s Public Records Act request about the controversial Strada Verde Project, the group sued for a writ of mandate to enforce their right to transparency. They did have that right, but the court in San Benito v. Superior Court (D6...Read More >>

If you’re planning to appeal, you need a court reporter at your hearing. But what if the hearing is over a pure question of law, like whether there’s an enforceable arbitration provision? That’s what happened in Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.), involving an appeal from a...Read More >>

A restraining order is available under Code of Civil Procedure section 527.6 if you have suffered harassment through a “knowing and willful course of conduct” resulting in harassment. And what type of people are more likely to cause a feeling of harassment more than lawyers? So attorney Jacquelynn Hansen got a restraining order against her...Read More >>

After a trust beneficiary petitioned for over $1 million in trust distributions in Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.), the trustees contested the petition and requested an evidentiary hearing. The probate court refused to hold an evidentiary hearing. Yes, I know “to some persons a million sounds like...Read More >>

After a former employee won a claim against the employer in Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), the court granted the motion for attorneys’ fees. The court agreed that the value of counsel’s efforts would have been over $1.1 million. Would have been. But then the court applied...Read More >>

At trial, you have a right to impeach an adverse witness’s testimony. The court denied that right in People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.). The court admitted the 911 call of Bingham’s girlfriend reporting that Bingham had beat her up with a lock, but excluded her subsequent statements recanting. That...Read More >>

If you set out to achieve the “impossible,” you are ambitious, but not alone. Impossible Foods, creator of the “Impossible Burger,” learned that another company, Impossible X, was also using the “Impossible” brand on some personal fitness and lifestyle websites, an Amazon platform, and a YouTube channel. But its sole owner-operator, Joel Runyon, lived in...Read More >>

Congress has not enacted an anti-SLAPP statute like the ones in many states, such as California, which prohibit “strategic lawsuits against public participation.” Anti-SLAPP motions protect defendants sued for defamation or the like. But again, there is no federal anti-SLAPP law providing for such a motion. Still, that has proved no problem for the 9th...Read More >>

A lot of savvy litigants search the web for ways to vacate an order after the time to appeal has expired. I know because many of these litigants have found my writings on this subject. Challenges made after the appeal deadline has expired is fruitless, you say? Well, sometimes it can work: section 473 of...Read More >>

So you have been sued and successfully compelled arbitration. Next step: do not fail to ensure your arbitration fees are received within 30 days. Not just paid, but received. The employer-defendant in Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 put the check in the mail on day 25, but it was...Read More >>

Sometimes in the weeks prior to an appellate oral argument, the court will order the parties to be prepared to discuss certain issues or cases. Sometimes this is called a focus letter or a pre-argument order. They are pretty common in the Ninth Circuit. But a dissent to a pre-argument order is less common. In...Read More >>

The Judicial Council provides a form Notice of Appeal. But be careful if you use this form because it asks for extra information that could be used to limit the scope of your appeal or cause you to appeal from the wrong order. That is what nearly happened in Lacour v. Marshalls of California (D1d4...Read More >>

When a judge enters an order, and then later modifies the order, you would probably guess that you should appeal from the modified order. And you would be right. But now try this: Voiding the modified order reinstates the original order, and the time to appeal from the original order has expired. What now? The...Read More >>

I have yet to meet an attorney who would not welcome the appellate court providing a tentative opinion prior to oral argument. All upside, no downside, right? There was a downside in Navellier v. Putnam (D1d5 Aug. 17, 2023) No. A166476 (reh’g denied with mods Aug. 30, 2023) (nonpub. opn.). The plaintiffs’ case was dismissed...Read More >>

The worst thing about arbitration is the risk of winding up with a decision contrary to law, facts, and common sense—and, because it’s arbitration, having no meaningful recourse. But that’s just the tradeoff. Right? Actually, that’s not the case. Back in 2008, the California Supreme Court held in Cable Connection, Inc. v. DIRECTV, Inc. (2008)...Read More >>

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait...Read More >>

Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918—but the stay only lasts until the deadline to...Read More >>

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here. The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when...Read More >>

A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here,...Read More >>

Before oral argument in the cannabis-cultivator eviction case of 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (D4d2 May 5, 2023 No. E076654) --- Cal.Rptr.3d --- (2023) 2023 WL 3268852, the court issued a tentative opinion—partially certified for publication—against the tenant Coastal Harvest. Rather than have to face this unfavorable precedent in...Read More >>

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back. The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter...Read More >>

Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question. (People v. Garcia (2002)...Read More >>

The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account...Read More >>

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.) On the side of relaxing the requirement of having an oral...Read More >>

When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late (like in this previous case). But that is not what happened in the mandamus case of County...Read More >>

The court in Robertson v. Larkspur Courts (D1d1 May 2, 2023) No. A166818 (nonpub. opn.) could have done worse to the recalcitrant plaintiff than just dismiss his appeal. In this landlord-tenant dispute over a mold issue, the parties stipulated to a judgment. The landlord did its part and paid Robertson $28,000 as agreed. But then...Read More >>

The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public...Read More >>