Unlike 9th Circuit panels who have no power to disregard other panel decisions, the California appellate courts are free to adopt or disregard other panel decisions. But like the 9th Circuit, state appellate courts have no power to overrule another appellate panel. That role, in California, is reserved to the Supreme Court. And now also,...
When the 9th Circuit panel asked counsel at oral argument whether LAUSD was going to reverse its Covid-19 vaccine mandate, counsel did not give a straightforward answer. Then walking out of the courthouse, LAUSD’s counsel turned to plaintiff’s counsel and said, “what are you going to do when we rescind the mandate?” And a few...
John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic...
The first thing you do after filing a case is check the assigned judge. Once the judge has been assigned “for all purposes,” you have 15 days to file your peremptory challenge to disqualify that judge. There are a few wrinkles to that “all purpose assignment” deadline, however. The court addressed them in *Taylor v....
John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don’t get an...
In a split opinion that “rather obviously invites a grant of review,” the Second District Court of Appeal in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] held that, unless parties expressly invoke the California Arbitration Act, the Federal Arbitration Act preempts the CAA rule that deems any late fees...
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include: Carl I. S. Mueller’s biography, LinkedIn profile. Appellate Specialist Jeff Lewis' biography,...
One reason trial prep is so stressful is you don’t know if you might get a different judge—or if you’ll have the right to make a CCP 170.6 peremptory challenge to the new judge. When you get an all-purpose assignment, you have 10 days to make a challenge. But if you’re in a “master calendar”...
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them: In the next episode, we will cover Carl’s top 10 tips for avoiding a fee dispute. Carl I. S....
“Don’t forget to get a court reporter.” This stock advice of the appellate attorney used to leave my probate and family law colleagues unfazed: “Court reporters are already provided for us,” they’d say. But now that the court-reporter crisis has reached an acute stage, they don’t say it anymore. California Litigation has my article, “A...
Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste: 😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites...
"Lawyers and judges of our generation,” says the Court of Appeal, “spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.” But that golden age, judging from the opinion in Masimo Corp. v. The Vanderpool Law Firm, Inc., (D4d3 May 2, 2024 No....
Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano. After covering the fact that the school district, to get out of helping a dyslexic...
CEB DailyNews has published my article, “Super snap removals’ not permitted in Ninth Circuit.” Where federal jurisdiction is based on diversity as in Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2). But that defect is deemed waived if the plaintiff does not seek...
California follows the “one shot rule” for appeals, meaning, you only get one shot to appeal, and if you miss that shot then you’re done. Courts follow the rule religiously. No sympathy allowed. But the Second District felt sympathy for the attorneys’ fees order in Norman v. Ross (D2d4 Apr. 23, 2024 No. B316971) [cert....
A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams. In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to...
Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants. But don’t commit...
Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if...
Here’s a first-year civ pro question with a twist: Plaintiff files a complaint in state court. But before court processes it for filing, defendant—who, not even served yet, gets wind of the complaint through an efile-watcher service—files a notice of removal in federal court. Question: Is this “super-snap removal” effective? The answer is important because,...
A divided panel in People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___, a residential burglary case, reversed a guilty verdict. Because of lack of evidence of guilt? No, the prosecution’s evidence was overwhelming. Instead, the majority reversed because, after the prosecution made a peremptory challenge to a Hispanic prospective juror, and...
CEB DailyNews has published my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals.” The briefing faux pas in two recent cases garnered a lot of attention, especially Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), where counsel should have known better—leading to a published decision. Appellant’s counsel...
Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include: 👉 Know your appealable issues—appeal now, or lose it forever! 👉 Request a statement of decision. Don’t need to, you say?...
The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and...
Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District in Schwartz v. Noya (D2d6 Mar. 20, 2024 No. B329331) [nonpub. opn.] was not happy...
CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the...
Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is...
You can’t change your name to something offensive, but the Court of Appeal publishes its opinion in Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.] to announce that, as a matter of law, “Bimbo” is not offensive. The full name the appellant sought was “Candi Bimbo Doll.” This...
Ashford University, an admissions mill, was found to have made a pattern of misstatements in the admissions process—1.2 million of them—ranging from misstating that a degree would qualify graduates for teaching and helping careers, and downplaying financial aid and debt obligations. The university appealed the amount of the award, clocking in at over $22 million....
Last month, I presented to the Santa Cruz Bar Association about the dwindling reserves of court reporters in California. The presentation includes a brief history why California law mostly prohibits electronic recording, why we have a critical shortage of court reporters, and what it means for your practice. You can download a PDF of the...
A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian...
