It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though...
One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right? Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial...
The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment...
One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law. And most attorneys also know that "abuse of discretion" issues are lousy...
Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from...
If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because the legal application consists entirely of just two sentences: "We offered minor an opportunity...
Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed all of them. To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the...
On our latest podcast, Jeff Lewis and I interview Alan Yockelson, discussing genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud. Also discussed: • The value of tentative opinions on appeal • How appellate oral argument can change an outcome • Asserting objections...
As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies? "Hans.. I have just noticed something. ... Have you looked at our caps recently?" "Our caps?" "Yeah, the badges on our caps, have you looked at them?" "What? No, a bit..?"...
There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings. Finally, there is also an excellent tip for expediting an appeal of an...
Here is an appellate procedure trick I wish I'd thought of. Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months (in this particular case, by over two years): by filing a motion to quash the complaint. A...
In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District...
What's the worst can happen by taking an appeal too early? I am asked this often (and I've discussed related topics here and here), and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to...
Client asks an attorney to file a lawsuit over a business dispute. "Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on my normal fee it would not make sense." "I understand, but this is about vindicating a principle." While considering this a bit irrational, attorney says...
Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review...
The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively. In Rubio, an employee claimed she...
Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal. A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021)...
Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial...
The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will....
... not when the clerk happens to get around to filing it. In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date...
In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind. In Wells Fargo Bank, N.A. v. Agak...
While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000. When landlord got notice of the default judgment nearly a year...
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...
