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...
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...
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...
“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...
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...
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...
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...
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...
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)...
Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits. We discuss: ...
I will tell you two facts about this recent arbitration case, and let you guess how the Court of Appeal concluded. But be warned: your guess will be wrong. Fact one: The arbitrator found for the buyer (in a dispute over a business sale) based on the arbitrator’s conclusion that the seller’s lack of credibility...
Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why...
After the County of San Benito dragged its feet in responding to a natural resources group’s Public Records Act request about the controversial Strada Verde Project, the group sued for a writ of mandate to enforce their right to transparency. They did have that right, but the court in San Benito v. Superior Court (D6...
If you’re planning to appeal, you need a court reporter at your hearing. But what if the hearing is over a pure question of law, like whether there’s an enforceable arbitration provision? That’s what happened in Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.), involving an appeal from a...
A restraining order is available under Code of Civil Procedure section 527.6 if you have suffered harassment through a “knowing and willful course of conduct” resulting in harassment. And what type of people are more likely to cause a feeling of harassment more than lawyers? So attorney Jacquelynn Hansen got a restraining order against her...
After a trust beneficiary petitioned for over $1 million in trust distributions in Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.), the trustees contested the petition and requested an evidentiary hearing. The probate court refused to hold an evidentiary hearing. Yes, I know “to some persons a million sounds like...
The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.” But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant...
