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 In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge to the judgment against it, filed a second appeal, this time to the award of about $80,000 in fees.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Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in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...
When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to the tentative. I have always taken this as a slip of tongue of no real consequence. Do not be misled: there is a consequence. "Stipulating"...
In this commercial lease dispute, the trial court abused its discretion in not one, not two, but three different ways when it awarded contractual fees to the losing defendant. In Waterwood Enterprises, LLC v. City of Long Beach (D2d1 Dec. 18, 2020) No. B296830, landlord claimed the city was liable for substantial repairs to a property that...
You may be surprised to learn that an attorney's 25% referral arrangement discussed orally with the client, and reduced to a writing signed by the client, is not enough to satisfy rule 1.5.1 of the State Bar Rules of Professional Conduct requiring the client's "consent" to any fee division. So held the Third District in Reeve...
Bookmark Penal Code section 496 and Bell v. Feibush (D4d3 2013) 212 Cal.App.4th 1041, if you have not already, which together hold that failing to pay back a loan could subject the borrower to penalties for civil theft: treble damages, plus attorney fees. No need to establish the wrongdoing via a criminal conviction first. This is a...
Take care in drafting your notice of appeal, but if you notice you have made an error, all is not lost. The California Supreme Court's January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 will guide you through your effort to save a malformed notice of appeal. In that...
Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.) After a business dispute was decided against him, appellant decided to trawl the internet for dirt on the arbitrator, who, he discovered, was a founding member of GLAAD and maintained a Twitter...
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...
If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may not be submitted by an anti-SLAPP movant on reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) So the trial court struck three reply declarations...
In Doe v. Regents of the University of California (1st Dist., Div. 4 Nov. 30, 2020) No. A158704 (unpublished), a third-year med student at UCSD examined a 12-year-old girl brought in by her mother for a potential eating disorder, but conducted the examination of the girl's breasts and genitals without a chaperone, in violation of University policy. After a...
Trial by reference will become very common, I suspect, as trial courts continue to limit their availability due to Covid. A key advantage over arbitration: preservation of the right of review via postjudgment motions and appeal. You may also give your referee authority to hear postjudgment motions and, if appropriate, to conduct a new trial. But...
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...
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...
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,...
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...
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...
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...
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...
