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A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but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 Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line.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...
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 Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal.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....
“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...
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...
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...
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...
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...
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....
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...
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...
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...
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...
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...
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...
If you have ever held a redacted document up to the light to see the redacted text, you know other attorneys are doing the same. In a redacted PDF, you might be able to copy and paste the obscured text. I've also seen redactions made with black boxes that could simply be moved aside. Here's...
Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" upon continuance or postponement of trial. That includes discovery, expert discovery, and summary judgment motions. It also provides at Code Civ. Proc., § 2035.310 that...
Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate judges, there is little to report back to the client. This new analysis gives you something to say. Appellate attorney Kirk Jenkins has an analysis...
-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think about appealability and timeliness issues!) -- Last year saw the most depublished opinions in a decade. Not by a lot. But I find it noteworthy...
A holdout juror in a murder case talked to an attorney about being badgered by the other jury members. The attorney appears in court to inform the judge about the conflict. The judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes. A Sixth Amendment violation?...
The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, the First District reversed an order granting reconsideration of a prior judge's ruling, even though the motion was procedurally invalid. The court traced a split...
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the...
