Who decides whether a dispute must be arbitrated? The court, or the arbitrator? By a vote of 3 appellate attorneys, the court should decide. Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine...
Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I...
Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there...
I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment. That is what...
Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a...
Appellate attorney Anne Grignon joins Tim Kowal and Jeff Lewis to discuss her recent win in Banc of California v. Superior Court from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorney then turn to private judging generally, discussing Justice Segal's recent caution about the industry's...
You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell. Watch the clip here. This clip is from the California...
There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing. Watch the clip here. This clip is from the California Appellate...
If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened Tos v. State of California (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments...
Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Frances Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question...
The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely...
This topic comes up periodically, but it is still a little puzzling. A complaint is filed. For one reason or another, the court dismisses the complaint without prejudice. But: the court does not sign the dismissal order. A dismissal order must be signed under Code of Civil Procedure section 581d. So the appeal from the...
We discussed Marin Housing Authority v. Reilly on episode 14 of the California Appellate Law Podcast. Appellate attorney John Reeves joined us to discuss his amicus brief in the U.S. Supreme Court explaining why the California Supreme Court's 4-3 decision was incorrectly decided. The U.S. Solicitor General apparently agrees. Reilly involves the question whether a public housing authority, in calculating a...
The rules of appellate procedure are curious already, but what about appeals in limited civil cases? Curiouser and curiouser. Tenants' rights attorney and appellate specialist Frances Campbell discusses the important differences in appeals in the Appellate Division of the California Superior Court with appellate attorneys Jeff Lewis and Tim Kowal. Watch the clip here. This clip is from the California...
If you work in court, you have seen the basic template for submitting written objections to evidence supporting a motion. It is the chart where is listed the objectionable matter, the objection, and a space for the judge to indicate whether the objection is "sustained/overruled." When you need one of these, you probably search your...
Tenants' rights attorney and appellate specialist Frances Campbell gives appellate attorneys Jeff Lewis and Tim Kowal a lesson in "HateWriting": harnessing that exquisite state of agitated frisson to produce a legal brief that will leave a mark without, after a final edit for overheated adverbs, drawing admonitions. Watch the clip here. This clip is from the California Appellate Law Podcast...
Enforcing a judgment is hard enough before appeals and appeal bonds enter the picture. Unfortunately, the published opinion in Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) now takes that picture even further out of focus. The upshot is that the defendant fully satisfied a judgment, but that was not...
Frances Campbell of Campbell & Farahani, LLP joins Tim Kowal and Jeff Lewis for a discussion about housing law, eviction defense, appeals and practicing in limited jurisdiction courts. Fran shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite," and the font Cochin for brief writing. Appellate...
Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel Lee Goldberg tells Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains. Watch the clip here. This clip is from the California Appellate Law Podcast...
Does corporate counsel always tap the "white shoe" law firms for trial work? No, says outside general counsel Lee Goldberg. Lee tells Jeff Lewis and me that while white shoe firms have their place, what businesses really need is excellent trial counsel who understand the particular needs of their clients, and why relationships matter. Watch the clip here....
There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable? There is a split of authority on these questions, as noted in Thomas v. St....
You know that the 60-day deadline to appeal starts the moment the clerk or a party serves either a notice of entry or a "filed-endorsed copy of the judgment, showing the date either was served." (Rules of Court, rule 8.104(a)(1)(A).) So what happens when the clerk serves a 23-page minute order granting an anti-SLAPP motion,...
When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the...
To arbitrate or not to arbitrate? Outside general counsel Lee Goldberg shares his experiences and perspective on arbitration with Jeff Lewis and me, and how to balance arbitration's pros and cons. Watch the clip here. This clip is from the California Appellate Law Podcast episode 17, available here. Related Posts: Why Don't Appellate Judges Ask More Questions? Have you...
When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And...
When settling a case after a judgment, parties sometimes explore the possibility of a stipulated reversal of the judgment. This may be an attractive option to the losing party because it essentially takes a negative judgment off the books. Unfortunately, the burden to obtain a stipulated reversal is very difficult to meet, because Code of...
This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the...
Offering a sobering view of the litigation process, outside general counsel Lee Goldberg shares his litigation experience with Jeff Lewis and me, and how business owners should view it as a tool to achieve practical outcomes, not to vindicate a principle. Leave "truth, justice, and the American way" for Superman. Watch the clip here. This clip is from...
One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens...
One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment...
