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...
"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in federal court, where a "short and plain statement" is required. Often, the rule is relaxed in practice, due to the difficulty of enforcing it. Too...
During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative needed a two-thirds majority vote rather than a bare majority, another case on the same question was answered in a different case (that case is City...
Beware when filing new trial motions: if you are relying on it to extend your time to appeal, be mindful that it is heard within the statutory 75-day period. In Choochagi v. Barracuda Networks, Inc. (D6 Dec. 30, 2020) No. H045194, a jury returned a defense verdict for employer on employee's disability discrimination and wrongful termination claims....
I have written before about California state court cases holding that failing to exercise discretion is an abuse of discretion. The same rule applies in federal courts, as the recent case of Rembert v. A Plus Home Health Care Agency, LLC (6th Cir. Jan. 25, 2021) No. 20-3454 out of the Sixth Circuit illustrates in the context of attorney...
This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the order on appeal. The second was dismissed as premature because the appellant filed the appeal too early. Both of these kinds of errors are what...
If you find yourself back in the trial court after a remand by the Court of Appeal, things are supposed to be much the same as before. Yet sometimes, things are not the same. This case provides one example: after a perfectly routine order granting attorney fees, defendant appeals the fee order, which is, likewise, perfectly...
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...
I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. 12, 2020) No. G058323, that may technically still be true: but, I am not going to say it anymore. Employee Brown works in the very...
Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or relied on by a court or a party in any other action." There are only two exceptions in the statute, and they are narrow: one...
Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other objections that simply don't apply on summary judgment. In Sandoval, a man on probation swallowed a lethal amount of meth rather than let deputy sheriffs find...
The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. v. Hennings (D6 Dec. 2, 2020) No. H042715, a high-stakes (the complaint sought $255 million) and multi-party Silicon Valley litigation over "cyber-squatting," gave false deposition testimony,...
