One big limitation in the 9th Circuit is that a three-judge panel is absolutely bound by a prior panel decision. Just see, for example, the recent panel decision in Martinez v. ZoomInfo Techs.: even though a majority of the panel disagreed with the precedent that anti-SLAPP denials are appealable, they had to go along with the precedent...
The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published...
The FBI, growing frustrated in an investigation into a company that furnishes private lockboxes, got a warrant to search entire “nests” of lockboxes. Including lockboxes held by perfectly law-abiding plaintiffs, which are the subject of Snitko v. United States, No. 22-56050 (9th Cir. Jan. 23, 2024). When the FBI got the warrant, they told the...
There has been a steady drumbeat to revisit the 9th Circuit’s precedent making anti-SLAPP orders appealable. Anti-SLAPP orders are similar to orders on motions to dismiss or for summary judgment, but they invoke specific state-law procedures—procedures that do not quite track with federal rule 12(b) or rule 56. And federal courts do not apply state...
The 9th Circuit was bound by its trademark precedent holding an exception to the Lanham Act for expressive works, which was why in Punchbowl, Inc. v. AJ Press, LLC, No. 21-55881 (9th Cir. Jan. 12, 2024) it affirmed a summary judgment against plaintiff greeting-card maker in favor of a news website—both going by the name...
California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page....
San Francisco—responding to a surge in homelessness—enacted time-and-place anti-vagrancy ordinances restricting sleeping in public places. But the district court enjoined the laws, and in Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024), the 9th Circuit affirmed. Following two recent 9th Circuit cases, the court held that the city violated the...
CEB DailyNews has published my article, “Arbitrator reversed for basing credibility on use of interpreter.” The article is about FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801. The arbitrator had ruled against the appellant based on a credibility determination, noting that “Mrs. Pham's use of an interpreter appeared to the Arbitrator...
Costco charged a shopper with theft for putting a $117 package of Gillette razors underneath a big bag of dog food. The shopper sued for malicious prosecution, but the trial court granted Cosco’s anti-SLAPP, and the panel majority in Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.] affirmed. Making a...
Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.” Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed. Appellate Specialist...
Are orders on motions to enforce settlement agreements appealable? They are not expressly listed in the appealability statute. But appellate courts often treat them as functionally the same as a judgment. That did not happen, however, in House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.], which dismissed...
Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars...
Just a couple months ago, when the Court of Appeal issued a rare writ on a discovery issue, I noted that this was unusual because appellate courts generally loathe discovery disputes. But here comes the court with another discovery writ. There are two things in common between that earlier case and the more recent case...
Right before trial, you expect to see some motions in limine trying to exclude some of your objectionable evidence. But if you see an MIL trying to decide entire issues, you are probably ready to pounce with an argument that an MIL is not supposed to be a cheap substitute for a motion for summary...
CEB DailyNews has published my article, “Lack of statement of decision leads to reversal.” The article is about the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.], where the appellant correctly followed the two-step process for a statement of decision. When the trial court still...
Like many cities with neighborhoods unhappy with short-term rentals, Rancho Mirage issued a ban on the practice. In this suit by a group of short-term rental owners, Vacation Rental Owners & Neighbors of Rancho Mirage v. City of Rancho Mirage (D4d2 Dec. 15, 2023 No. E078784) [nonpub. opn.], the trial court issued a preliminary injunction...
Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same...
CEB DailyNews has published my article, “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.” The article is about Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023), where the district court had ruled that, in a lawsuit involving trademark enforcement,...
CEB DailyNews has published my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal.” The article is about In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.), which distinguished void from voidable judgments. What makes a judgment or order “voidable” or “void” can be...
Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client. Glenn also shares:...
After plaintiff obtained a preliminary injunction preventing defendant pet stores from selling puppies, the legislature passed a law barring the retail sale of puppies. Having got what it came for, plaintiff dismissed the action without prejudice. The court awarded the successful plaintiffs over $46,000 in attorneys' fees. But to the plaintiffs’ chagrin, the award was...
CEB’s DailyNews has published my article, “Pay in 30 Days or Arbitration Is Forfeit -- and 'Check Is in the Mail' Does Not Cut It.” The article is a reminder to ensure you pay arbitration fees within 30 days. And make sure not only that fees have been paid, but received. The employer-defendant in Doe v....
I tell anyone who will listen: if you have a case in California court, make sure you are aware that attorneys' fees are available for proving the matters in requests for admission. So if you deny a request for admission and you lose on that issue at trial, you are liable for fees under Code...
Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and...
One thing that someone complains about after every trial is that the other side offered prejudicial evidence that the judge should have excluded. It’s almost always a loser argument. But it carried the day in Argueta v. Worldwide Flight Servs. (D2d8 Nov. 8, 2023 No. B306910) [nonpub. opn.]. Dissenting, Justice Grimes still thought it was...
Getting sanctioned only $10,000 was a very lenient outcome for the appellant’s abhorrent—and inexplicable—behavior in Schwartzman v. S. Coast Tax Resolution, Inc. (D2d2 Nov. 17, 2023 No. B314770) [nonpub. opn.]. While ending in a tirade against the trial judge, the appellate justices, and the whole judicial system, the case started off pretty boring. Schwartzman filed...
In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent. Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited...
An appeal becomes moot when something happens so that nothing the Court of Appeal might do about the judgment will help. Like when a challenged law is repealed, or when a disputed real property is sold. When the appeal is moot, the appeal is dismissed. Except every so often, when mootness means the appeal results...
Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it? Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a...
CEB’s DailyNews has published my article, “How to Preserve Appellate Rights in Your Arbitration Agreement.” The article illustrates how to use the California Supreme Court’s suggestion in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 that parties agreeing to arbitration may also agree that the award be subject to judicial review on the merits. The case is...
