Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on. That is how...
What was it like to give the first virtual oral argument in the California Supreme Court? Orange County Deputy District Attorney Kelly Ernby tells appellate attorneys Jeff Lewis and Tim Kowal what that experience was like. Watch the clip here. This clip is from the California Appellate Law Podcast episode 16, available here. Related Posts: Why Don't Appellate Judges Ask More Questions?...
When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different...
Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline. But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time,...
Lee Goldberg joins us for a discussion about his perspective as in house counsel. Lee shares decades of experience using litigators to solve business problems and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn and his website CalLawyers.com, and what a general counsel looks for when...
I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your...
Would a defendant rather be sued by one District Attorney, or 58 of them? Orange County Deputy District Attorney Kelly Ernby sued pharmaceutical company Abbott Laboratories for improperly delaying the release of the generic version of a drug. Surprisingly, the defendant argued the claim could not be brought by a single DA. (The Supreme Court disagreed.) Kelly...
It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549)(https://lnkd.in/gmx5GNmi). After the defendant filed a motion for summary...
Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.) But actually, the opposite may be true: When more orders are made independently appealable, it means there is more...
Attorneys, you might have heard about "cleaning up" case quotations in your briefs. When you have a quote with a lot of internal quotations marks and ellipses and unsightly square brackets, several appellate courts — including the US Supreme Court — have used the parenthetical ("cleaned up") following a citation to signal the removal of...
It is not enough to appeal your case. You have to keep your case alive until the Court of Appeal has a chance to get to it. That is the lesson of Badea-Mic v. Detres (D3 Nov. 23, 2020) **no. C085459 (nonpub. opn.). The appellant appealed an order authorizing the sale of the property, but the property...
Orange County Deputy District Attorney Kelly Ernby won a landmark California Supreme Court decision in Abbott Laboratories v. Superior Court. She tells Jeff Lewis and me that it came about when, surprisingly, the pharmaceutical company defendant — not the DA — suggested the possibility of statewide enforcement by individual county district attorneys. After a loss in the Court of...
There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as...
Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion? a. 30 days b. 60 days after notice of entry of judgment c. 180 days after entry of judgment d. It depends on how order denying the...
CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories". The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit...
"I found the perfect case! The facts are on point, the law is on point...but goddammit it's UNPUBLISHED!" If you are a litigation attorney this undoubtedly has happened to you. But why this confounded Rule of Court 8.1115 against citing unpublished opinions? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal...
When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it...
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...
Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial...
There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo...
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...
Orders entered prior to a judgment typically are not appealable unless they are separately listed in Code of Civil Procedure section 904.1, the statute defining what orders are appealable. One exception is for collateral orders. A collateral order an order that has nothing to do with the merits of the lawsuit. So when a collateral...
Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and...
There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that,...
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...
Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to...
Attorney business coach Alay Yajnik was kind enough to invite me onto his podcast, the Lawyer Business Advantage, to discuss how an appellate attorney can help trial attorneys win and add value to the services they provide clients, telling clients appreciate hearing why the attorney cares about the case rather than just how much the...
In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review of factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a...
Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the...
Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy...
