Legal Developments

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney...Read More >>

Only a small fraction of cases and issues go up on appeal. That means trial attorneys see things that appellate judges don’t. So when high-profile family-law specialist Christopher Melcher sees an appellate court issue an unpublished opinion tackling a troublesome issue, he asks the court to publish it, for the benefit of the rest of us. You...Read More >>

Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court...Read More >>

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his...Read More >>

High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse. Chris then talks about a way to bring...Read More >>

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff)...Read More >>

Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that: Rely on...Read More >>

In defense of the prohibition on citing unpublished opinions, attorney Ryan McCarl notes to Jeff Lewis and me that, so long as California appellate judges continue “nonpublishing” opinions on the assumption practitioners not understand them to be real judicial decisions, we’d have to change their assumption before we change our understanding. Watch the clip here.  This...Read More >>

In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every...Read More >>

Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea. First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district...Read More >>

Did you know you are forbidden to cite unpublished cases — even when urging the Cal. Supreme Court in a petition for review that there is a split of authority? Appellate attorneys David Ettinger and Dean Bochner note that this use of unpublished cases are routinely employed, but it violates California Rules of Court rule...Read More >>

Attorneys are prohibited under CRC rule 8.1115 from citing unpublished cases for any reason. But not even the Supreme Court takes the rule seriously. Practitioners routinely cite unpublished cases in petitions for review to demonstrate the existence of splits of authority, even though rule 8.1115 clearly prohibits this practice. Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to...Read More >>

Appellate expert Myron Moskovitz explains why unpublished opinions are a sleight of hand. Courts do one thing in one case, and the opposite in another case, and then tell you only the first case is “precedent” because the second was not “published.” But ALL cases are published online. We can all read what the court...Read More >>

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again. At least as it concerns criminal jury trials, you can get a good sampling of judges’...Read More >>

Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe, Esq. discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand. Watch...Read More >>

Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe, Esq. sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.) Watch the clip here.  This is a clip from episode...Read More >>

In this timely episode of the California Appellate Law Podcast, health care litigator Rick Jaffe joins appellate attorneys Tim Kowal and Jeff Lewis to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation. Rick’s practice focuses on cutting-edge medical and legal issues across the...Read More >>

One of the criticisms against the uncitability of unpublished appellate opinions is that the fact they are not published feeds a suspicion they are not always thought quite all the way through. Certainly you are more likely to find typographical errors in an unpublished opinion, for instance, than you might in a published one. And...Read More >>

The frustrating rule against citing unpublished appellate opinions in California courts, Rule of Court 8.1115, has an important exception: if a federal case has cited the unpublished California opinion, then you can cite to it by way of the federal case. Appellate attorneys Frances Campbell, Jeff Lewis, and I discuss. Any federal judges looking for a way...Read More >>

What was it like to give the first virtual oral argument in the California Supreme Court? And how did the Orange County District Attorney's office create a new legal precedent in California that effectively allows local district attorneys to pursue statewide enforcement actions? Kelly Ernby of the Orange County District Attorney's office tells Jeff Lewis...Read More >>

Rarely does it give such satisfaction to report the dismissal of an appeal. A group of businesses who had benefited from local protectionism — which had prevented newer businesses from competing with the incumbents — were dismayed when the trial court struck down the protectionist scheme as unconstitutional. Though the incumbents were not parties to...Read More >>

You probably have heard of appeals being dismissed on procedural grounds, or as frivolous. But you could practice law rather a long time and never hear of an order being summarily reversed on appeal. But that is what happened in the improbably titled case IAHLDHFAPIMP_PAP, LLC v. Noll (D4d1 Aug. 11, 2021) no. D077727 (nonpub. opn.) But don't get...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 >>

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 >>

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 >>

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 >>

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 >>

After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October:  A recent (published) decision out of the First Appellate District [People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154] upheld the validity of...Read More >>

Bookmark Penal Code section 496 and Bell v. Feibush (D4d3 2013) 212 Cal.App.4th 1041, if you have not already, which together hold that failing to pay back a loan could subject the borrower to penalties for civil theft: treble damages, plus attorney fees. No need to establish the wrongdoing via a criminal conviction first. This is a...Read More >>