One bit of conventional wisdom that’s frequently heard about appellate review in California is that if a Court of Appeal opinion isn’t published, seeking Supreme Court review is a hopeless task. This week, we’re looking at the data to see if that’s true – civil cases in this post, criminal in the next. The short...
You have a deep bag of tricks as a respondent on appeal to win affirmance of your judgment. One of those tricks is forfeiture: if appellant did not raise an argument below, it is forfeit on appeal. Done. Dead. Your judgment is affirmed. But in United States v. Ngumezi, No. 19-10243 (9th Cir. Nov. 20, 2020),...
A recent case out of the Fourth Appellate District in Orange County affirms a finding of contempt against an attorney for his conduct during a 15-minute settlement conference, including persistent interruptions and calling opposing counsel a liar, without explanation. In the opinion, the Court draws a line between zealous advocacy and bullying tactics: "[i]nterrupting an opponent's...
If you question witnesses at trial close to the line of privileged communications, be sure the judge gives the mandatory instruction, if your adversary asks for it, against drawing improper inferences under Evidence Code § 913. Also, asking about a client's intent in communicating with counsel is no different than asking about the communications themselves. Those are the...
It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer. In Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished) (https://www.courts.ca.gov/opinions/nonpub/B301772.PDF), Plaintiffs sued on the Song-Beverly Act (lemon law). Defendant made a CCP 998 offer. Three of them,...
Defendant was hit with a $103k fee award under the UFTA (fraudulent transfer statutes). In fact, there is no published California authority holding there is such a right to fees under the UFTA. And out-of-state authorities say no. (https://www.calattorneysfees.com/2020/11/substantiation-of-reasonableness-of-fees-detailed-time-entries-supported-103950-fee-recovery-under-f.html.) But, trial counsel did not raise that issue in the trial court. Defendant did raise it...
Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the clerk's notice of entry. The case is Simgel Co. v. Jaguar Land Rover N. Am. (D2d8 Oct. 1, 2020) No. B292458 (opens in new tab). It...
So holds Provost v. Yourmechanic, Inc., No. D076569 (D4d1 Oct. 15, 2020), where an employee alleging misclassification and wage-and-hour claims, both individually and as a PAGA representative, defeated employer's motion to compel arbitration. The Fourth Appellate District, Division One, explained that the state is the real party in interest in all PAGA claims, and the...
Recently on the California Appellate Law Podcast, we covered AB 3070, which imposes new procedures when making a peremptory challenge of a juror, including providing a valid reason for the challenge (which means, the challenge is no longer peremptory). Although AB 3070 does not go into effect until 2022, judicial temperaments are already strained if People v. Williams (D2d6...
Remote Appellate Arguments Could Be Here to Stay According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments remotely thought the level of engagement with the judges was the same or better than in-person proceedings. A lower percentage, though still a majority, rated...
A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal unless sought in a separate motion; and (3) whether a defendant may recover costs against a plaintiff who voluntarily dismisses claims may depend on which...
So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line. The agreement was reduced to judgment that also awarded...
Two recent cases caution litigants to take special care when preparing a notice of appeal. Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal. When the trial court sustained two demurrers to his complaint, the plaintiff in Renfro v. Kai-Lieh Chen, F076083 (D5 Apr. 6, 2020), used the Judicial Council...
A few good tips came across my desk this week. Use in good health. 1. Via Bryan Garner's LawProse (# 351): Before launching thoughtlessly into a grab-bag of arguments, tell your reader how many arguments to expect. If it is a long list, give signposts where your arguments are going before sending your reader on...
Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult procedural hurdles of CCP 128.5, which requires a separate motion served 21 days before filing it? The Fourth Appellate District, Division Two, says yes, finding...
Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. In my appellate practice, however, I have seen a number of discretionary orders -- a small number, but a significant number -- that may be...
If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim could be made to pay employer's costs under CCP 1032. That rule is adopted in the Fourth District, Div. 2. But the Second District, Div....
Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a writ. Now the Supreme Court has granted review on the question: "During the current pandemic, may a trial court compel participation in a large in-person...
“Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder.” Unitherm Food v. Swifteckrich, 546 U.S. 394, 407 (2006) (Stevens, J., dissenting). Related Posts: YOU MAY BE ABLE TO LIMIT “CONSEQUENTIAL DAMAGES" IN YOUR CONTRACTS SLAPP NEWS: CALIFORNIA SUPREME COURT REITERATES, AGAIN, THAT WRONGDOING IS NOT “SPEECH” JUST BECAUSE...
Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms: "The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local Exchange Carriers, and “CLEC” for Competitive Local Exchange Carriers, but we prefer the use of the English language and deplore the practice of using acronyms...
The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as argued." An appeal frivolous as-filed is one where the decision is "plainly correct" so there is no genuine appealable issue. But an appeal may be...
In fairness, I have seen much worse arguments than this. On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, but the case is stayed and sent to arbitration at AAA. Through a clerical error, AAA doesn't acknowledge receipt of defendants' arbitration fees, and administratively...
Do not take the common-interest privilege for granted if you represent a client in multiple-party litigation. In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2020 U.S. Dist. LEXIS 128725, at *3-4 (N.D. Cal. July 7, 2020), Finjan held board meetings attended by a representative of Cisco, an investor who had a contractual right to...
I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team. Related Posts: Lawyer Lighting Rod Question: Do you use the "(cleaned up)" citation parenthetical in briefs? Legal writing tip for the week Confusing Sentences Have No Readers: Judge Bacharach on...
Sean Thomas Lobb has Tips Learned While Clerking in Orange County in the November OC Lawyer magazine. Some takeaways: DO: Cite well-reasoned decisions from the same federal district court – even UN-published decisions! DON'T: Use legalese. It's like biting into the frozen center of a microwave burrito. DO: Make focused, targeted arguments to tentative rulings....
The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that...
TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we discuss: Hiding Bitcoin from your spouse is a righteously bad idea, and claiming you don't have to deliver her half of the Bitcoin because it...
You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland (D1d2 Sept 17, 2020) A157330. The Court does not merely affirm the order denying, without prejudice, the City of Oakland's SLAPP motion. No, the Court reverses...
An event operator may be liable when an event attendee dies after engaging in foreseeable illegal activity at the event -- overdosing on illegal drugs. So holds the Second Appellate District in Dix v. Live Nation Entertainment, Inc. (D2d7 Oct. 26, 2020) B289596. Live Nation hosted a large "electronic music" festival at the Pomona Fairplex with 65,000 attendees. It...
In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court...
