About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited...
When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to. But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. Humboldt County voters passed a tax measure on marijuana cultivators back in 2016. The measure...
In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeited all rights to object to the mediated settlement. In Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382, the settlor of a trust valued at upwards of $3 million provided for gifts to many charitable and nonprofit organizations. Those groups...
The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act,...
In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.) Before appealing, employers tried to undo the damage in the trial court. But they bungled that,...
There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance without waiving jurisdictional challenges. And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as...
Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals. We discuss: Pitfalls in failing to make crucial posttrial motions (FRCP 50). The vastly different approaches to oral arguments in federal court. The impact of amicus...
The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim. The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand. In AECOM Energy and Construction...
I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument. The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Plaintiff's complaint, alleging...
Covering the differences between California state and federal appeals on the California Appellate Law Podcast (available Tuesday, Mar. 30), co-hosts Jeff Lewis and I discussed with guest Cory Webster the importance of Federal Rules of Civil Procedure 50, governing motions for judgment as a matter of law made before submission to the jury and after judgment. If...
In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in...
Waiver or forfeiture of arguments is a big concern for appellants on an appeal. But rarely do courts find that a respondent had waived or forfeited an argument. In Travis v. Brand (D2d8 Mar. 19, 2021) 2021 WL 1049863 (published), various citizens, political action committees, and elected officials, and other political operatives litigated over whether to redevelop the Redondo Beach waterfront....
After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy." An employee's right...
Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue...
All attorneys know appeals are an uphill climb. But that is not really true of appeals of summary judgments. Not only are summary judgments reviewed de novo, but the court strictly construes the moving papers, liberally construes the opposing papers, and reviews the evidence in a light most favorable to the appellant. Sensing reversal of...
Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal, as the stipulation means the appellant is not "aggrieved," and thus lacks standing. That was not the case in Park Lane Assocs., LP...
Here is an unsettling thought: You are successfully litigating a disputed legal point. You obtain a preliminary injunction in your favor. You then proceed to trial. But before the court issues its judgment in your favor, another county superior court, faced with the same legal question, issues a preliminary injunction deciding the question against you....
In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated. The defendant's 998 offer did not include a signature line for the plaintiff to sign, though the plaintiff signed it anyway, and...
We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders in order to expedite an appeal in California state court. (The dismissal has to be with prejudice, however: don't get into a Kurwa v. Kislinger snafu.) But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec....
Esteemed appellate specialist M.C. Sungaila joins co-hosts Tim Kowal of TVA and Jeff Lewis and on episode 8 of the California Appellate Law Podcast for a wide-ranging discussion on: appellate apprenticeship preparing cases for appeal whether to consider waiving oral argument (M.C.'s answer: Never.) The discussion then turns to questions relating to appellate briefing, including...
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...
Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal. Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable....
In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act...
An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal. In the employment dispute involved in Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued...
Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then? An order denying leave to amend is not directly appealable. So that's out. You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it...
TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss appellate bonds and stays in the latest episode of the California Appellate Law Podcast. Appellate stays can play a significant role in changing the posture of litigation and the relative bargaining power of the parties. We discuss where to watch out for stays in anti-SLAPP...
This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get...
Here is a common question: A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered. To seek reversal of the fee and cost award, which order, or orders, must be appealed? Answer: All three. "'When a party...
Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply...
This appeal over attorney fees concerns thorny issues of appealability. In Doe v. Westmont Coll. (D2d6 Jan. 25, 2021) No. B303208, the Second District rejected the college's arguments that the fee order was not appealable. Even though the fee motion had been made and denied previously, the court noted the second fee motion raised new issues, including...
