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January 11, 2024
Justice Baker is not a big fan of Costco

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...

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January 9, 2024
How appellate attorneys beat summary judgments, with Yisrael Gelb

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...

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January 8, 2024
Order granting motion to enforce settlement held not appealable, furthering a split of authority

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...

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January 3, 2024
2023’s Best Guests, Cases & Tech

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...

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January 2, 2024
State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty

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...

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December 27, 2023
Yes, you can use a motion in limine as a motion for summary judgment

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...

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December 22, 2023
CEB has my article, “Lack of statement of decision leads to reversal”

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...

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December 20, 2023
In fight over short-term rentals, City could not challenge contempt fees either as an appeal or writ

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...

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December 19, 2023
Eugene Volokh on Restraining Orders and the First Amendment

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...

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December 15, 2023
CEB has my article “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent”

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,...

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December 8, 2023
CEB has my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal”

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...

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December 6, 2023
High-Profile Employment Appeals with Glenn Danas

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:...

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December 5, 2023
Is a dismissal a “judgment”? Yes, but there’s a split of authority

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...

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December 4, 2023
CEB has my article, “Pay in 30 Days or Arbitration Is Forfeit—And ‘Check Is in the Mail’ Does Not Cut It”

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....

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November 30, 2023
Costs-of-proof fees reversed because they went beyond proving the request for admission

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...

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November 29, 2023
Liar in a Crowded Theater, with Jeff Kosseff

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...

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November 28, 2023
Defense verdict reversed because admitting complaints against employee were prejudicial

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...

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November 22, 2023
Race, gender, and Jewish conspiracies get attorney sanctioned $10,000

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...

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November 21, 2023
Thankful for Unpublished Opinions

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...

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November 15, 2023
Where a moot appeal means summary REVERSAL

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...

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November 14, 2023
Appellate Bonds: What You Client Needs to Know, with Dan Huckabay

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...

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November 13, 2023
CEB DailyNews: How to Preserve Appellate Rights in Your Arbitration Agreement

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...

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November 8, 2023
Dissent would invalidate loan where lender is unlicensed

North American made more than 300 home loans without a license, Justice Dato noted in his dissent in Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758). Plaintiffs were among the borrowers, and sued to recover all “illegal interest” and finance charges the lender had charged on their loan. The trial court disagreed with...

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November 7, 2023
Elegant Legal Writing, with author Ryan McCarl

Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips: 🖋️ “Defer editing” and “second-guessing” until a later...

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November 6, 2023
“Bulldozer” advocacy moves dirt but not minds

“A bulldozer can move piles of dirt from one place to another,” begins the opinion in Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]. “But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is [appellant’s] counsel.” The aggressive tactics...

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November 2, 2023
Failing to log the length of trial leads to appellate loss

The employee-appellant in Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.] challenged the trial court’s refusal to issue a statement of decision. The losing party has a right to a statement of decision, but only if timely requested. What is the deadline? There are two: 10 days, normally, but for...

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November 1, 2023
Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes

A bedrock rule of appellate practice is that an appellant who fails to brief an issue forfeits that issue. That rule applies to appellants. You know, the person challenging the judgment. It does not apply to the respondent—the person defending the judgment. Why? Because a bedrock principle of appellate review is that all intendments and...

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October 31, 2023
Reversals on Technicalities: 4 Recent Examples

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples: 😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible. 😎 If the court refuses to provide a statement of decision on key...

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October 26, 2023
After Adolph v. Uber, parties “accept the inevitable” and stipulate to reverse

The employer-defendants made good use of the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana (2022). They compelled arbitration of plaintiff-employee’s individual claims, and then got the PAGA claims dismissed. Plaintiff appealed from the dismissal. But then as court watchers anticipated, the California Supreme Court handed down Adolph v. Uber Technologies, Inc., holding that...

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October 25, 2023
Lack of statement of decision leads to reversal

One advantage to a bench trial is that you are entitled to a statement of decision. This can be better than a jury verdict because a statement of decision includes findings on all material issues. The cross-defendant in the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550)...

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