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April 11, 2023
Unlocking Your Case Theme at Oral Argument: Jeff Markowitz with a Minnesota Perspective on Appeals

You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of...

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April 10, 2023
“We are not bound by Viking River,” Cal. appellate court holds

Commentators have predicted that California appellate courts would thumb their nose at the U.S. Supreme Court’s 2022 holding in Viking River. Viking River was the case that abrogated the California rule of Iskanian, and held instead that employers could enforce waivers of representative PAGA claims. And thumb its nose is just what the Second District...

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April 6, 2023
When Texas & California Appellate Podcasts Meet

A few days ago we mentioned Tim is opening a satellite office in Texas, which means expanding the podcast’s jurisdiction. So in this episode we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders. Todd and Jody had the same idea during the pandemic to...

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April 5, 2023
Judgment debtor fraudulently transferring assetes? Don’t file a new action, just levy the asset

File away these two “gold nuggets” for next time you enforce a judgment, courtesy of judgment-enforcement specialist Joseph Chora:   If the debtor is transferring assets to third parties, sure, you could file a fraudulent-transfer complaint. But why? You can simply levy on the transferred asset. Not only is this faster and cheaper, but it...

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April 4, 2023
Use a settled statement to fill gaps in your record (but don’t try to rewrite the record)

Nice try, but this is not what a settled statement is for. The defendant in **********Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771 was served with a complaint but failed to answer. In October, Brannon went into default, and five months later got a default judgment against him. On...

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April 3, 2023
Oral record on appeal was required to review the validity of a trustee notice to beneficiaries

We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help (as I suggested in a recent presentation) would be for the appellate courts not to insist on an oral record...

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March 30, 2023
Excessive information leads to worse, not better, arguments

You have an avalanche of evidence for your upcoming trial. Document after document, email after email, photo after photo, and witness after witness promise to bury your opponent. But are you overdoing it? Appellate attorney Stefan Love, drawing on the lessons from John Blumberg’s Persuasion Science for Trial Lawyers, notes that “we can’t hold on...

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March 29, 2023
$37k in discovery sanctions appealable, but not the related issue sanctions

Discovery orders can sometimes be devastating. But are they appealable? Rarely. But under the appealability statute, CCP 904.1, sanctions orders greater than $5,000 are appealable. That gave the defendants in *********************************Deck v. Developers Investment Co., Inc. (D4d3 Mar. 24, 2023 No. G061287) ___ Cal.Rptr.3d ___ an idea. The defendants got hit with issue sanctions for...

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March 28, 2023
Top Tips for Respondents on Appeal to Get Your Judgment Affirmed

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette. So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of...

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March 27, 2023
Can You Read It Back? Tackling Court Reporter Scarcity in California

CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription). Here is a summary: My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed...

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March 23, 2023
“The Law That Swallowed California”

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want. “CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent...

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March 22, 2023
The 60-day appellate deadline runs from mailing—receipt is irrelevant

Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right? Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v....

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March 21, 2023
“You have permission to use the word ‘that’”: Lindsey Lawton on legal writing & Florida procedure comparisons

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language...

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March 20, 2023
In light of split on appealability of orders on motions for good faith settlement, this appeal is dismissed as untimely

While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the...

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March 17, 2023
A mere procedural error is not a miscarriage of justice,

Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot...

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March 14, 2023
Legal-Writing Mentor John Nielsen Compares CA and UT Courts

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing. Then we turn...

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March 13, 2023
3 Judgment-Collection Tips Focusing on the Debtors’ Paramours, IP, and Their Little Dog, Too

When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy. But judgment-enforcement...

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March 10, 2023
Random Violence to Appellate Procedure

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this? Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random...

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March 9, 2023
Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the...

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March 8, 2023
HOA May Go Forward with Representative Action for Construction Defects

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule. But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may...

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March 7, 2023
Laboratory of Judiciaries: Comparing CA and IL Courts

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat...

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March 3, 2023
A tentative opinion makes unlikely those “unexpected” arguments that turn a case

I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on...

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March 2, 2023
Congratulations to M.C. Sungaila’s on the 100th Episode of the Portia Project Podcast

The 100th episode of the Portia Project®️ airs today, March 2, 2023, kicking off Women’s History Month. The Portia Project Podcast features women judges, attorneys, and other legal professionals, chronicling their unique paths in the law. Subscribe in your podcast player, or listen and learn more here. In anticipation of this achievement, we interviewed M.C....

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March 1, 2023
Supreme Court Rules Affirmance of Injunction of Vaccine Mandate Will Remain Published

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations...

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February 28, 2023
Ten Trial Tips That Appellate Specialists Want You to Know

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case. And, you had better make a...

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February 27, 2023
Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher...

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February 24, 2023
"Is it going to matter?” Justice Zelon’s big criteria on writ petitions

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely. If the issue is going to be dispositive of the case so that the case would have to be retried, however, that...

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February 23, 2023
How to Resurrect a Dismissed Appeal Even After It’s Too Late

This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and...

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February 22, 2023
A piecemeal notice of judgment is not sufficient to trigger the 60-day deadline to appeal

So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.). On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the...

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February 21, 2023
Negligent Referrals and Other Ethical Traps When Referring Clients

For attorneys, the best referral is a referral from another attorney. But before you refer to another attorney, beware of the ethical traps. Kristi Thomas, a labor and employment attorney who also focuses on ethical issue, warns in a recent article that incautious referrals can lead to a conflict of interest, or an improper referral...

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