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September 9, 2021
Does the Court of Appeal Take Note of How Many Extensions Your Opponent Has Sought?

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...

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September 8, 2021
Cultural Differences in the Courts of Appeal

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...

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September 8, 2021
"Frivolous"​ to Argue Appeal Prevents the Trial Court from Ruling on a Motion for Attorneys'​ Fees

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding...

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September 2, 2021
Supreme Court Directs Appellate Court to Show Cause After Summarily Denying Writ Petition

You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted. Promptly after the assignment of a judge...

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September 2, 2021
Why Not to Wait to File an Appellate Writ

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, talks to appellate attorneys Jeff Lewis and me about the inner workings of the writ panel at the court. While technically you may have 60 days to file your writ, Jeff explains why your writ is more likely to be denied if it is filed...

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September 1, 2021
The Court of Appeal Is "A Think A Tank with Consequences"

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, tells Jeff Lewis and me what it is like working at an appellate court ("like a monastery," in a good way). In this clip from the show, Jeff describes the court as "a think tank with consequences." Watch the clip here.  This clip is from...

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September 1, 2021
Trial Court May Not Reconsider Final Judgments, and the New Evidence, Even Though Compelling, Must Be Truly "New"

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look. But in the case of a final judgment having been entered, the trial...

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August 31, 2021
Trial Court Has No Discretion to Consider an Untimely (by Three Years!) Anti-SLAPP Motion, Appellate Court Holds

Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.). But the statute says anti-SLAPP motions must be filed within 60 days...

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August 30, 2021
Exclusion of Expert Data Affirmed on Appeal; But Exlusion of Expert Opinion Based on That Data Reversed

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion is an...

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August 27, 2021
What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why...

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August 26, 2021
Although Contempt Orders May Not Be Appealed, Fee Awards on a Contempt Order Are Appealable

An order of contempt is not directly appealable. (Code Civ. Proc., § 1222.) It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order....

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August 25, 2021
Attorney Committed Misconduct by Arguing Facts Outside the Record, Appellate Court Holds

Closing arguments at a jury trial are critical for trial counsel because it provides the opportunity to tie together all the disparate threads presented to them during the course of the trial. But often, opposing counsel will see things very differently. And they will draw very different inferences from the evidence — and lack of...

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August 24, 2021
Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says

There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better...

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August 19, 2021
Appellate Briefing Fail: Large Sections Disregarded, and Entire Reply Brief Forfeited, for Failure to Provide Citations and Headings

They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support...

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August 18, 2021
Are Injunctions Stayed on Appeal? Cal. Supreme Court Says Issue Is "Ripe for Reexamination"

The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal? When the Board of...

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August 17, 2021
What's the Difference Between a Trial Attorney and an Appellate Attorney?

Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys. Watch the clip here.  This clip is from the California Appellate Law Podcast episode 14, available here. Related Posts: Why Don't Appellate Judges Ask More Questions? Have you Noticed a Decline in Civility? Choosing the Right Verdict Forms for Your...

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August 17, 2021
So You Filed a Motion for New Trial to Reduce the Amount of the Judgment — But What If You Win?

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what...

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August 12, 2021
Do Appellate Judges Prefer Amicus Briefs for Policy Arguments?

After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read....

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August 12, 2021
Failure to Exercise Discretion in Issuing a Stay of Enforcement of Judgment Is an Abuse of Discretion

In a recent case involving more than one case number, the defendant got an early victory in one case, and got an award of attorney fees. The trial court, however, did not like the idea of rewarding one party partway through a complex litigation, so it imposed a sua sponte stay of enforcement of that...

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August 11, 2021
Amicus Briefs Are Being Filed in More Types of Cases Than Ever Before

Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases. Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions...

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August 11, 2021
Stipulations to Nonappealability Are Enforceable

Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable? This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2...

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August 10, 2021
Following Demurrer Ruling, Plaintiff Voluntary Dismisses Claims to Expedite Appeal, but Dismisses Without Prejudice: Appeal Dismissed

Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case,...

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August 9, 2021
There Are Few Things That Annoy Appellate Judges More Than Repetitive Amicus Briefs

Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have...

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August 5, 2021
Judge Bacharach on Remote Proceedings as Access to Justice

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system.   Watch the clip here.  This clip is from a June 2021 interview in episode 12...

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August 5, 2021
Are Denials of New Trial Motions Appealable or Not?

Answer: Denials of new trial motions are not appealable. But these things are never quite that simple, are they? Here are a few buts: 1. Denials of new trial motions are reviewable on appeal. This is expressed in the recent opinion in Leinen v. Carlton (D6 Jul. 30, 2021) no. H047030 (nonpub. opn.). The Walker v. Los Angeles County Metro. Transp. Auth. (2005) 35...

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August 4, 2021
A Writ Petition Summarily Denied May Be Raised Again Later

Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the...

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August 3, 2021
When Oral Argument Changes Minds (part 2)

What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears. For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer. Or your brief raised too many...

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August 3, 2021
Cal.App.Law Podcast Ep. 14: Circuit Splits, Amicus Briefs and Interview with John Reeves

Appellate attorney John Reeves  joined TVA appellate attorney Tim Kowal and co-host Jeff Lewis to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici. At issue is whether a...

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August 3, 2021
Motion to Dismiss Appeal Denied? Give It Another Shot in the Merits Briefing

I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief? The answer is: You...

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August 2, 2021
When Oral Argument Changes Minds (part 1)

Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned...

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