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opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)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...
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...
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 But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal.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...
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...
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 v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued...
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...
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...
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...
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...
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,...
Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50." The appellant in Semmerling v. Bormann, No. 19-3211 (7th Cir. Jan. 5, 2021) was not in danger of reaching page 50. Instead, he kind of went a...
In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day notice to quit. The trial court granted the motion and entered judgment for the tenant. Plaintiff-landlord appealed the judgment. The prevailing defendant-tenant then obtained an...
...But that's nitpicking, innit? In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge to the judgment against it, filed a second appeal, this time to the award of about $80,000 in fees. (At under six figures, I'd say...
In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked for monthly permanent support of $10,000 from husband, who earned between $16,000 and $18,000 per month. Wife also asked that husband be ordered to pay...
Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251. After obtaining a default judgment of $123,000 on a lease agreement, plaintiff failed to file a motion for attorney fees. Defendant then moved to set...
Most attorneys will, at some point or another in their careers, find they have failed to make a court appearance. When that happens, an order to show cause (OSC) will issued requiring the attorney to explain to the court what happened. Hopefully, the attorney can give a good reason for the absence and avoid sanctions....
Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only evidence supporting reversal rather than supplying the evidence to support the judgment. In the real estate nondisclosure case in Newstart Real Estate Inv. v. Huang (D2d8 Dec....
Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out of the Fourth Appellate District, Division Three in Menges v. Dep't of Transp., G057643 (Cal. Ct. App. Dec. 24, 2020), that was not the case. After...
