Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Judges are rightly frustrated with counsel who do not respond to unfavorable facts and arguments. So when asked what I find frustrating about appellate practice, my answer is: judicial opinions that do not answer the strongest arguments.

On most occasions when an appellate court has not agreed with my client’s position, our courts give excellent analysis. This allows my client (and me) to swallow the bitter pill.

But on several occasions, I have searched in vain for a substantive analysis of my strongest arguments. Going into an appeal, appellants understand their chances are slim. What they should be able to count on is the dignity of an explanation to their positions. It is, after all,

guaranteed by the California Constitution:

Under article VI, §14 of the California Constitution, the appellate courts of this state are required to provide reasons for their rulings: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” An opinion need not be exhaustive, but “a decision directing the issuance of a peremptory writ in the first instance is a ‘judgment’ ” within the meaning of provisions of Art. VI, “and the court must set forth the grounds for such a decision.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232.) “[A]n opinion sufficiently states ‘reasons’ if it sets forth the ‘grounds’ or ‘principles’ upon which the justices concur in the judgment.”

To paraphrase Orwell, one does not need to be accepted, but merely to be understood. And Epictetus: “To the rational creature that which is against reason is alone past bearing; the rational he can always bear. Blows are not by nature intolerable.”

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Should Bad Arguments Be Sanctionable? Some Recent Takes

You can be sanctioned for lying to a court or from failing to disclose key authorities. That’s obvious. But two recent courts remind the bar that appellate sanctions may be imposed for making bad arguments.

One of those cases, Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174, imposed a whopping $107,000 in appellate sanctions. But there is an interesting dissent noting that sanctions may have a chilling effect on the right to appellate review.

The other court did not issue sanctions, but published its stern admonition to the appellant in Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, as a warning to other attorneys against “clog[ging] our appellate docket” with meritless appeals. Though the court did not issue sanctions, the court noted this was because the respondent did not file a motion for sanctions.

Comment: Juxtapose the policy observations in Shiheiber with Judge Newman’s due-process observations in Pop Top. After reading Judge Newman’s dissent, the parting observations in Shiheiber no longer sit right with me. The court’s frustration with meritless arguments and substandard advocacy is justified. But the courts should direct their frustration at counsel’s lack of diligence, without suggesting comparisons to other types of cases in the court’s docket.

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The Eviction Problem, with Tenant’s Rights Attorney Eric Post

The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.

Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.

Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.

Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.

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Is the Right to In-Person Trials Enforceable?

Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, […]

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A Mind Is Another Country

I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind is a most difficult thing. Done poorly, the traveler is left marooned and alone. Done well, the traveler is met by new friendly company.

William Hazlitt’s observation is what I have in mind when it comes to translating complex ideas to another soul. He said that “the more you really enter into a subject, the farther you will be from the comprehension of your hearers—and that the more proofs you give of any position, the more odd and out-of-the-way they will think your notions.”

In a way, we are all a bit like Whitman: we are untamed, and untranslatable. Usually the most we do is to sound our barbaric yawps over the roofs of the world. Good writing requires we stop our yawping over rooftops and to consider the fact of the other. Good writing is an act of peace, and of friendship.

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Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

One problem: courts really don’t like section 496. They worry that lawyers will overuse it and turn every garden-variety loan or business-tort case into a civil-theft case. So there arose a split of authority, with some cases enforcing section 496, and others refusing to enforce it.

Breaking the split, the California Supreme Court kept this powerful tool intact. In Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312, the Court held the civil-theft remedies under section 496 applied to a case involving diversion of partnership cash.

But the Court did not throw open the floodgates. The Court noted that the concerns expressed by section 496 naysayers do “give pause.” And Justice Groban, joined by Justice Kruger, concurred to note they do not read the majority as endorsing civil-theft penalties in “most consumer or commercial transactions.”

If you have a civil case involving fraud that amounts to something akin to theft by false pretenses, consider seeking remedies under Penal Code section 496(c). Do not get too creative. But under Siry Investments, policy concerns are no longer a valid basis to refuse to enforce section 496. **

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What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?

That is what happened in *[Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC](https://casetext.com/case/mid-wilshire-prop-v-leevil-llc?ssr=false&resultsNav=false&tab=keyword&jxs=)* (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). The appellants reversed the judgment, but briefing had not even begun in the separate appeal of the fee award of almost $500,000.

Here is what the parties did: They filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.

But the court made a few comments about the parties’ request, noting the burden for a stipulated reversal under section 128(a) ordinarily is very difficult to meet.

Here, that was not really important, because the parties are correct that reversal of the fee order was inevitable after the judgment was reversed.

Tip: If you have appealed a cost award and it is not consolidated with your main appeal, you might draw the court’s attention to it in your briefing. If the court reverses, hopefully the court will also dispose of the cost appeal at the same time.

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Lessons on Persuasion, From Science & Beyond, with Stefan Love

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a person to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.

Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s *Persuasion Science for Trial Lawyers*, and whether it is scientific, or just common sense. Advice like:

• Excessive information can lead to worse, not better, decisions.
• Juries learn better with pictures. But avoid competition for resources: do not use written word, spoken word, and images all at the same time. It creates overload.
• You should not present all your evidence at trial, because it overloads the jury’s cognitive capacity.
• Judges who strive to run ruthlessly efficient trials should reconsider: eliminating downtime actually undermines jurors’ ability to process the information.
• For the same reason, trial lawyers should slow down, use repetition, and even stop talking every now and then.

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Promoting Clarity by Requesting Publication of Appellate Opinions

Only a small fraction of cases and issues go up on appeal. That means trial attorneys see things that appellate judges don’t. So when high-profile family-law specialist Christopher Melcher sees an appellate court issue an unpublished opinion tackling a troublesome issue, he asks the court to publish it, for the benefit of the rest of us.

You should, too. Anyone can request publication of an unpublished appellate opinion. Even if you’re not a party to the case. Clear rules help everyone.

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Courts Cannot Reconsider Final Orders—But What Is a “Final” Order?

On the topic of judgment enforcement, the new rule announced in Coastline JX Holdings LLC v. Bennett (D4d3 Jul. 7, 2022, No. G059552) --- Cal.Rptr.3d ----, 2022 WL 2527118 is that a judgment-debtor’s profit-sharing plan is exempt from levy under both ERISA and California law, because profit-sharing plans are non-assignable.

And on the topic of civil procedure, while a trial court lacks jurisdiction to reconsider a “final” order, that does not apply to interim rulings whose deadline to appeal has not yet expired. So the trial court’s reconsideration here was valid.

This clarifies a number of recent cases holding trial courts lacked jurisdiction to entertain motions for reconsideration.

But the curious thing about this part of the opinion is that the court seems to allow the trial court to extend its jurisdictional window to reconsider an order indefinitely. Jurisdictional rules ordinarily cannot be extended except by statute. But here, the court held that the time in which the trial court could reconsider the order was extended when the trial court indicated it would “potentially” reconsider it. After that point, the Court of Appeal does not suggest how long this “potential reconsideration” period might last.

This seems to leave nothing of the jurisdictional time limit for the trial court’s period to reconsider the order.

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Can I Appeal This? Three Cases with Surprising Answers

When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)

Summary judgment orders are not appealable. It says so right in the statute. But it was held appealable in Reed v. Aviva USA Corp.

Minute orders have to be signed to be appealable. (Ok, not really: only minute orders dismissing a case must be signed, per CCP 581d.) Liang v. Shi held minute orders are appealable, with or without a signature.

A vexatious litigant denied permission to file a new lawsuit may appeal the denial order as an injunction order. There is precedent for that point. But Marriage of Deal was not having it: appeal dismissed.

Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement.

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Denial of Fees for Defeating Anti-SLAPP Held Not Appealable, in Split of Authority

Almost any order having to do with an anti-SLAPP motion is appealable.

Almost.

In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable.

Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees are appealable.

But Kaplan’s motion for fees for defeating the anti-SLAPP was denied. And on appeal, Kaplan learned that this is the one order after an anti-SLAPP motion that is not appealable.

The court followed the holding of Doe v. Luster (2006) 145 Cal.App.4th 139, 142 (Doe). As that appeal involved both a denial of a SLAPP and a denial of SLAPP fees, the appellant thought it made sense to review both. The court took a hard pass: there is “no creditable argument that combining the two motions—one that results in an immediately appealable order; one that does not—somehow transforms the nonappealable order into one that is appealable.” (Id. at p. 150.)

No creditable argument? Had Doe gone too far? The Fourth District, Division Three thought so. In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the court thought it “absurd” that the SLAPP denial should be appealable but the SLAPP fee denial not appealable.

The unpublished Kaplan opinion sided with Doe. But whether the Second District thinks there is a “creditable argument” that SLAPP fee denials are appealable, there is an argument supported by published authority. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

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“It’s Judges’ Fault” If Legal Writers Mimic Their Jocularity

“You have an informal writing style.” How do you take that? Compliment, or criticism?

This is hard to answer, says legal writing pro Ross Guberman. There is a strong trend in favor of more direct and approachable legal writing—and in this sense, “informal” is a compliment. But there is also a trend among judges—and lawyers following suit—toward the pithy (Twitter-ready), the precious (pop-culture-referencing), and even the biting (Judge VanDyke’s McDougall concurrence).

While there is something to be said (good or bad) about the attention-grabbing lines, Ross explains what really takes skill—and achieves persuasion—is to write as though you were having a conversation.

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When Judges Rely on Unpublished Opinions

Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court did.

Meza filed a class action against his employer, Pac Bell, over meal and rest violations. The trial court denied class certification as to certain of the claims and Meza appealed from this order (among others).

The Court of Appeal reversed, finding that the claims were common among the class members. As part of its analysis, the court relied on a Ninth Circuit decision.

But as the Meza court acknowledged, the Ninth Circuit relied on two unpublished California appellate decisions in its analysis of the issue. Meza further acknowledged that “we are not permitted to rely on such cases.” But, the resourceful court went on, “a federal court may do so.”

This is one of the many ways courts commonly disregard the no-citation rule under California Rules of Court rule 8.1115.

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Litigating the “Fun Cases”: Civil Rights Appeals with Matthew Strugar

Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.

Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.

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Grade Your Legal Writing How BriefCatch Scores Your Briefs

If you write your brief in a straight line, legal writing pro Ross Guberman might give your brief high marks as being Flowing & Cohesive. But if you write like Tocqueville did—as “an act of discovery”—you may need these tips from Ross on how to make your brief more Flowing & Cohesive.

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When Appellate Rules Lie: Order Granting Summary Judgment, Which Is Not Appealable, Held Appealable Anyway

Appellate rules are treated as jurisdictional. So it is important for appellate rules to be very clear. One such nice and clear rule is: Orders granting summary judgment are not appealable.

Except, the rule is a lie, as it proved in Reed v. Aviva USA Corp. (D1d1 Jun. 16, 2022 no. A158535) 2022 WL 2165479 (nonpub. opn.). The trial court granted defendants’ motion for summary judgment. But for some reason, the court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment.

The Court of Appeal acknowledged that an order granting summary judgment is not appealable. But the court reviewed the order anyway because the order “showed a clear intent to finally dispose of Reed's complaint against respondents.”

Here is the problem with making exceptions to jurisdiction rules like this. If an appellant were to take the rule at face value that orders granting summary judgment are not appealable, then the appellant would file a motion under Code of Civil Procedure section 664 to have the clerk enter a judgment. But this would put the appellant to the risk of blowing the deadline to appeal from the order.

So now the plaintiff is in a darkly ironic conundrum: On the one hand, the plaintiff has blown the deadline to appeal from the order, which, on its face, showed a clear intent to finally dispose of the complaint, and thus was appealable under the logic of Saben and many other cases like it. And as we know, the deadline to take an appeal from an appealable order is jurisdictional.

But on the other hand, the plaintiff now has a judgment, which is explicitly an appealable order under Code of Civil Procedure section 904.1(a)(1).

What does this mean? That there two appealable judgments? And the latter judgment restarts the time to appeal? But that would violate the rule — again, jurisdictional — that the time to appeal cannot be restarted by a subsequent order or amendment.

What the Court of Appeal should have done here was to catch the problem when the plaintiff filed the Civil Case Information Statement. The court should have instructed the plaintiff to go back to the trial court and get a judgment. Yes, it may seem fussy. But jurisdictional rules are fussy. They impose heavy burdens on litigants. So something seems off when courts treat them lightly.

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Vexatious Litigants Have No Right to Appeal Denial of Request to File New Action, Say Appellate Court Splitting from Authority

The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California judiciary and the State Bar.” Thomas, the court observes, now “stands alone on the silent battleground rattling his saber.”

No surprise, then that the trial court declared him a vexatious litigant. And once a court declares a litigant to be vexatious, Code of Civil Procedure sections 391 and 391.7 prevent the litigant from filing new litigation without obtaining permission from the presiding judge.

So Thomas requested permission. And it was denied. And so Thomas, going for a baker’s dozen, filed his 13th appeal from the denial.

But surprisingly, the court held that the prefiling denial under section 391 is not an appealable order. This is directly opposite published authority that a prefiling order under section 391.7 against a vexatious litigant “meets the definition of an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)

Prof. Shaun Martin, though agreeing Thomas’s appeal was frivolous, worries about denying appellate review: “We don't generally let a single judge decide things once and for all without any right to review whatsoever.”

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An Advanced Class in Making the Record, with Jimmy Azadian

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

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Defense verdict reversed due to improper exclusion of evidence

After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow Silvester to offer evidence of his impaired and vulnerable state when Dr. Niparko pushed his charity on him.

Seldom do judgments get reversed based on evidentiary rulings. But the judge here steadfastly kept out all Silvester’s evidence on an element of his claims, even rebuttal evidence.

There was one more curious detail in the opinion. The opinion notes that, during the trial, “Respondent agreed to a general verdict form in exchange for Silvester's written agreement that he would not seek to execute on any estate assets other than insurance and indemnity protection.”

Typically, defendants prefer to have special verdict forms, because it is easier to challenge them in posttrial motions and appeal. Silvester, to get his way on a general verdict form, agreed to limit his rights to enforce the judgment against the estate beyond the insurance and indemnity coverage.

This is an interesting strategy that may be worth exploring in your next trial.

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Managing Power Dynamics in Settling Appeals

When trying to settle or mediate a case on appeal, how important is it to stay enforcement of judgment? Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about whether posting a bond make a judgment-creditor more or less likely to come to the table. And what about the strange and rare personal-surety bonds?

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No, Minute Orders Do Not Have to Be Signed to Be Appealable

I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable.

Liang involved an action to enforce a marital settlement agreement. The trial court awarded the mother $100,000 in fees. But the court made the award in an unsigned minute order, and then later signed a formal order.

The father contended the minute order was not appealable because it was unsigned. And in fact it is easy to find lots of cases that say an unsigned minute order is not appealable.

But nearly all of those cases (maybe all of the published ones) deal with unsigned orders of dismissal. And under Code of Civil Procedure section 581d, an order of dismissal must be signed. (E.g., Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.)

Outside of dismissal orders, however, there is no requirement that a minute order be signed to be final and appealable.

Note that the appellant here was represented by a very experienced certified appellate specialist. The rules of appellate procedure can trip up even the best attorneys. Best not go it alone.

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Harassment in the Judicial Workplace: Aliza Shatzman’s Discusses the Legal Accountability Project

Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.

Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.

We also cover with Aliza:

- Why the Judicial Conduct & Disability Act (28 USC § 358) is not working;
- Why judges tend to be unwilling to police the misconduct of their colleagues;
- Courts seem different from normal workplaces, and clerkships seem different from normal jobs. Should they be treated differently?
- In the U.S. Supreme Court’s investigation of a recent draft opinion leak, clerks are being asked to turn over the cell phones and call data. Is this over the line?

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Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY

The case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial court excluded the expert because the expert’s confidence in the opinion did not exceed 50% likelihood.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s. And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

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Amendments to Judgment During Appeal Reversed for Violating Appellate Stay

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

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High Court to Consider Relaxing Appealability Ruling

Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger.

Meinhardt held that the trial court’s order denying a police officer’s petition for a writ of mandamus was the appealable order, and by awaiting a formal judgment, he missed the deadline to appeal.

Meinhardt focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” And where further orders are contemplated, normally this undermines finality.

Look for the Supreme Court to take up these questions.

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Getting It Good and Hard: Courts Enforce 3 Strikes & Prop 57

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.

• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

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The “Cleaned Up” Movement in Legal Citations

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

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“Kill Your Darlings”: Ross Guberman on Rising Above the Fray in Legal Writing

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

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Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.

At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial.

No problem, the Court of Appeal held. Under Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson), if the circumstances suggest the exhibit was intended to be offered and admitted—that is, it was authenticated, discussed at trial, and there was no dispute about its admissibility—the exhibit may be deemed admitted on appeal.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

(But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.)

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How Legal Tech is Leveling the Legal Playing Field, with Casetext Co-Founder Pablo Arredondo

The Co-Founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about:

• Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for.

• The searches you are used to making is just “casual Friday in the keyword prison.” But now, you can put real English sentences into Casetext’s Parallel Search and it works.

• Casetext’s A.I. isn’t limited to legal authority: you’ll be able to put your entire case file into a database and search for the evidence that supports the key facts in your case.

• This gives small firms an alternative to deploying armies of staff to find evidence in a voluminous file.

• Using Casetext’s Compose to create a first draft of a brief in a few minutes.

• A.I. might be able to replicate “murder boards” in the future for attorneys preparing for oral argument.

• In fact, the way “neural net” A.I. works is so impressive, Pablo describes it as a “black box,” and sometimes it is hard to describe what it does without using words like “thinking.”

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1999 Judgment Not “Final,” 40-Year-Old Murder Convict Must Receive Juvenile Hearing Under Proper 57

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his mother by stabbing her 45 times, was convicted way back in 1999. That seems pretty final, right?

Turns out, “finality” is not quite literal, but more a term of legal art. The majority was more comfortable with blurring the lines than was the dissent, which is why the 4-3 split.

What is surprising about this case is that the high court justices were so evenly split on the question of what makes a judgment “final” — a foundational point of appellate procedure.

The upshot of the majority opinion is that, once a judgment has been successfully reopened to review via a collateral attack, all bets are off, and the judgment is no longer final. So the Prop 57 challenge was available, even to attack the underlying charges — despite the fact that these had been beyond the scope of the collateral challenge.

The upshot of the dissenting opinion is that, although a judgment may be challenged via collateral attack, the review and remedies available should be limited to those available by the collateral challenge. So here, the collateral challenge did not reach the underlying charges, so these should remain “final” and beyond appellate review.

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SLAPP Fee Awards Are Automatically Stayed on Appeal: My Article in Cal. Litigation

California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version when it becomes available here: https://bit.ly/3aFty3P

My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But for the past 20 years at least, the answer has been “no.” That is because that is how Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 answered the question, calling SLAPP fees a “nonroutine cost” and thus excepted from the automatic stay.

But the Legislature had abrogated the “routine vs. nonroutine” distinction way back in 1993. Dowling, it seems, did not catch the drift.

Fortunately, Quiles v. Parent (2017) 10 Cal.App.5th 130 noticed something was amiss, and reasoned that “nearly all postjudgment awards of costs in California courts should be subject to the automatic stay….”

The upshot: If you want an anti-SLAPP fee award to be automatically stayed on appeal, cite Quiles. It is the better reasoned case and more consistent with the statutes. But until the Supreme Court resolves this split, litigants who want to enforce anti-SLAPP fee awards pending appeal may still rely on Dowling.

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Ben Shatz on the California Academy of Appellate Lawyers 50 Years On

When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well.

In this episode of the California Appellate Law Podcast, Ben Shatz talks about the founding of CAAL, which finally provided a place for appellate jurists and practitioners to speak frankly about the problems in the courts, and how to solve them.

And following CAAL’s founding, says Ben, the related flourishing of state and local bar sections and publications devoted to appellate practice ushered in a golden age of appellate practice in California.

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Anti-SLAPP Denials May Not Be Appealable Much Longer in the 9th Circuit

When the plaintiff defeats a meritless SLAPP motion, the plaintiff still may have to face a meritless appeal.

That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.

Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.

(I tend to agree with Judge Bress.)

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Does the Probate System “Care A Lot”?

The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

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Exclusion of Expert Opinion Held Structural Error on Appeal Requiring Automatic Reversal

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Basically, the plaintiff offered an expert to opine that the Durom Cup was the cause of the pain and suffering. Zimmer’s expert was going to opine about other possible causes, even if they were less than 51% likely to be the cause. The trial court excluded it because medical expert opinion has to be 51% likely.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s.

And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

The Upshot: This is the second reversal after a trial, which means the parties will have to try this case a third time. The trial judge, the Hon. Daniel J. Buckley, is a former personal-injury defense attorney. This suggests that, despite the care and experience devoted to this trial, trial procedure governing experts is both extraordinarily important and extraordinarily variable. To the extent expert issues can be crystallized in motions in limine, trial counsel should consider taking up a writ petition.

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Strange Appellate Things: Untimely Appeals OK’d, No Right to Settled Statement, and… “SMACC” Suits?

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

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Greedy fee motions may be denied in their entirety

Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial judge a “succubus.”

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Wife Deemed to Appeal Because Husband Did

A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own.

The plaintiff noted this, and moved to dismiss the appeal as to wife. Filing a notice of appeal, the plaintiff argued, is the price of admission to the Court of Appeal.

The Court of Appeal disagreed, citing the doctrine of liberality in interpreting a notice of appeal and the Supreme Court’s opinion in K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875.

The doctrine of liberality is an exception to the ordinary rule that “appellate jurisdiction cannot be a matter of appellate discretion.” (Quest Internat., Inc. v. Icode Corp. (2005) 122 Cal.App.4th 745, review granted Jan. 19, 2005.) Even if you didn’t file a timely notice of appeal, as long as someone else did, you might be able to slip past the doorman.

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Celebrity Attorney Christopher Melcher on What Gets the Courts’ Attention

High-profile and celebrity family law attorney Christopher Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff Lewis and Tim Kowal about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

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The Probate “Stay-Killer”

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

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What Family Law Attorneys Can Miss on Appeals

Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process.

Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your evidence.

This means that, to have a shot on appeal, you have to look at your case a whole new way.

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There’s Actually a Big Difference Between Motions for Nonsuit and Judgment: A Rebuttal to Prof. Martin

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders.

That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d ----, 2022 WL 1438723.

But I disagree with Prof. Martin about whether this structural error should result in automatic reversal. Prof. Martin thinks it should not, because the trial court granted a judgment under Code of Civil Procedure section 63.8 after the plaintiff rested his case in chief. Prof. Martin takes this to mean that sending the matter back for a jury trial would just waste everyone’s time.

I suggest that Prof. Martin has overlooked that a trial judge making a judgment under section 631.8 is sitting as a trier of fact. It is not a judgment as a matter of law like a nonsuit or JNOV.

So Prof. Martin and I agree that the Court of Appeal here got it right. But the fact that the plaintiff could not persuade the judge does not mean it would be futile to afford him his constitutional right to try to persuade a jury.

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Ross Guberman on Conversational—Rather Than Tweet-Worthy—Legal Writing

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff Lewis and Tim Kowal on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.
Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.
✍️ Rising above the fray without resorting to quips.
✍️ Getting the judge’s attention by tapping into three universal fears all judges have.
✍️ Discussing “bad facts” confidently, not defensively.
✍️ Using BriefCatch to improve your briefs.
✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

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Draft Your RFAs With Costs of Proof and Settlement in Mind

CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here: https://research.ceb.com/posts/draft-your-rfas-with-costs-of-proof-and-settlement-in-mind.

Spahn held the RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence.

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Are the Courts Split on Untimely Appeals?

You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok?

But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.

In one case, an appellate court held a belated appeal from a judgment may be resurrected by appealing from a subsequent cost award in an amended judgment.

And in another case, the court held an appeal filed after the 60-day deadline after a notice of entry is timely if the notice of entry does not attach the judgment.

The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. Arguments supporting untimely appeals may be “on the wall.” Watch this space.

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Why Family Law Writ Petitions Are So Hard

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right?

Victoria explains that it is just just very hard, even when there is genuine irreparable harm like in move-away orders.

In another moment during our discussion, Victoria told us that even family law justices, upon being elevated to an appellate justiceship, have commented they had no idea just how vast is a family law judge’s discretion.

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Read This Before Using a Settled Statement for Your Appeal

The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management confirmed that giving him custody of a young child was not in the child’s best interests. But the trial court refused to consider the ex-husband’s outbursts. This admitted refusal to consider these angry outbursts, mother argued, was an abuse of discretion.

But the Court of Appeal held: Outbursts? What outbursts? We see no record of any outbursts. Order affirmed.

You see, when you appeal, you have to show the Court of Appeal what happened during the trial court proceedings. The best way to do that is to have a court reporter transcribe every word of the proceedings. But that is expensive. Acknowledging this expense, the rules give financially-constrained litigants another way to provide an appellate record. This alternative is called a settled statement.

But in this case, the settled statement became a heavily-litigated affair, resulting in a version expurgated of the matters relevant to the mother’s appeal. In short, the worst of both worlds.

The Upshot: Do not count on a settled statement. Yes, it is in the rules. But this is not the first time I have heard that a trial judge refused to provide a settled statement, and that a Court of Appeal refused to do anything about it. Do not be misled into thinking there is a way to furnish an appellate record other than a reporter's transcript. Yes, this sets up an access-to-justice problem. The Legislature needs to fund court reporters, or re-institute its audio-recording program (which was nixed, by the way, at the behest of the reporters’ lobby, as a presiding justice recently confirmed for me.)

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How to Mediate and Settle Your Appeal, with John Derrick (Cal.App.Law Podcast ep. 32)

Certified appellate specialist and mediator John Derrick talks to Jeff Lewis and me about mediating cases on appeal. John explains that some appellate courts have mediation programs because of a mission to promote settlement. But the courts’ job is to decide cases. John discusses the conflict between these two roles, including a story about an appellate justice who regretted volunteering he wished the case would settle, but then unsubmitting the case for a post-oral-argument mediation. (This case still didn’t settle.)

Some other items discussed:

• There are no mandatory settlement conferences on appeal: should there be? (No.)
• Why parties don’t want to settle on appeal, and what counsel can do about it.
• The importance of stays and posttrial motions.
• Should judges be in the business of mediating?
• When to notify the court about a possible settlement.
• The pros and cons of Zoom mediations.
• As a former publisher, John urges attorneys to use decimal-outline format for headings, i.e., 1., 1.1., 1.2., 2., etc.

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No Right to In-Person Appearances

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.

My Comment: I don’t know about this. I mean, how do you prove that the denial of your right to an in-person hearing hurt you? Here are some possible ideas:

• If you have poor audio or connection quality, say so, early and often.

• If you struggle with or are distracted by the virtual software interface, say so — again, early and often.

• If someone is speaking off camera, like a clerk, alert the court that you cannot see who is speaking.

• If you have an opportunity to speak and you would prefer to stand, tell the court you would like to do so, but that you will need to adjust your camera and microphone. Insist that the court indulge you for as long as that process takes.

• Maybe you like to gesticulate while speaking? You should indicate you are making hand movements but that you are not sure if they are all within the frame.

• Maybe you move your head from side to side or modulate your voice when speaking? You should note that you are not sure whether the microphone is picking up everything.

• In short, demonstrate that conducting the hearing virtually rather than traditionally was distracting, limited your presentation, and ultimately prevented you from the most effective advocacy possible.

What do you think, #AppellateLinkedIn? Will these ideas work?

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“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases and news involving:

• An appeal that became moot due to pending litigation
• One federal judge issues a nationwide injunction against the CDC mask mandate, and another federal judge sounds off against nationwide injunctions
• Law firm sued for alleged Unruh Act abuse
• SLAPP suits and... SMACC suits?

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Untimely Appeal from Judgment Should Have Been Taken From Denial of Petition for Mandamus, Published Opinion Holds

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.

The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. Thus, the appeal was untimely and must be dismissed.

The court focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

The office made a lot of good arguments why the appeal was properly taken from the judgment, including the fact the statute says a judgment “shall” be entered. But the court was unpersuaded.

The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be, like orders after demurrers and MSJs. This may be a good time to inquire with an appellate specialist.

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Litigating for 13 Months Does Not Waive Arbitration, But Dissent Disagrees

An employer-defendant answered a wrongful-termination complaint, served multiple sets of discovery, and took the employee-plaintiff’s deposition during 13 months’ of litigation, before finally moving to compel arbitration. The trial court refused to compel arbitration, ruling the employer waived arbitration by its unreasonable delay. That seemed unsurprising.

So it seemed surprising that the majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 2022 WL 1113998 (nonpub. opn.) found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in *Saint Agnes Medical Center v. PacifiCare of California* (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

True, undue delay and waiting until the eve of trial can be grounds for waiver. But the court here found—again, as a matter of law—that “almost seven months before the trial date” is “not on the ‘eve of trial.’”

Good to know.

Writing in dissent, Judge Crandall was persuaded by the employee’s argument in his brief: “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”” Judge Crandall thought the court should not “overextend ourselves” to accommodate arbitration under these facts.

Briefing Faux Pas?: The court suggests it is unethical to copy arguments from court opinions without attributions. I don’t know why you wouldn’t give a cite. But I don’t see how this is unethical.

The Upshot: Although arbitration waivers are not supposed to be driven by any single factor, expect that the court will insist on a showing of prejudice or unfair advantage. While delay is relevant, a delay of even 13 months might not suffice. But do not rely on mere participation in litigation or driving up litigation costs.

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Counsel Admonished for Failing to Note Order on Appeal Was Not Appealable

The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable.

The court warned that any future violation “may warrant disciplinary review by the State Bar or other corrective action.”

The Upshot: If you are an appellant, this is a good reminder that the Court of Appeal pays close attention to your Statement of Appealability in your opening brief. Do not gloss over it. If there is doubt about appealability, be prepared to raise the collateral-order doctrine, or to seek review on a writ basis. If you are unsure whether your order is appealable, consider consulting an appellate specialist.

In the post I also note one thing that bothers me. Remember that California has no horizontal stare decisis: no Court of Appeal opinion is binding on any other Court of Appeal. So why do we require attorneys to tell appellate courts about other appellate decisions that they have no obligation to follow?

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Jeff Lewis Interviews Tim Kowal, on episode 30 of the Cal. Appellate Law Podcast

In this special episode, Jeff interviews me about the best and worst things about appellate law. I talk about a couple of my favorite war stories, my approach to legal writing, and my favorite comedian.

Then to business, we discuss some recent cases, including appellate sanctions for trial court conduct, the nonappealability of arbitrator injunctions, and the publication of a recent family law opinion reversing a judgment for failing to provide a statement of decision.

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“Impossible” Burden Met on Appeal: But Dissent Disagrees

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) loses at trial, and argues on appeal that its case was so truly overwhelming that only an unreasonable fact-finder would have been left unpersuaded.

With that in mind, there are two interesting things about Missinato v. Missinato (D2d7 Apr. 15, 2022 no. B305989) 2022 WL 1124871 (nonpub. opn.). First, it is surprising because the court found the defendant’s statute-of-limitations defense so overwhelming that only an unreasonable person would be unpersuaded. Second, one of the panel was unpersuaded.

That seems awkward, no?

There are several things about this opinion I find really shocking. #AppellateLinkedIn, take a look and let me know your thoughts.

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What Happens If You File Your Appeal Too Early?

You know it is deadly to file an appeal too late. But there is also such a thing as filing an appeal too early. In the recent case Moreles v. Herrera (D4d1 Apr. 12, 2022 no. D077032) 2022 WL 1090255 (nonpub. opn.), the court decided to save the appeal. But the decision is at the court’s whim. At the end of the post, I will tell you about a similar case where the court decided it would rather not save the premature appeal, and dismissed the appeal filed too early—same as if it had been filed too late.

The Upshot: If you are presented with an order that ordinarily would be appealable but may not be final, use extreme caution. Your safest bet may be to file a notice of appeal, even if it is premature. But you are not done yet. Watch carefully for further orders or actions that will render the order final. And as soon as that happens, take a second, precautionary appeal. Do not rely on the court’s good graces to save a premature appeal.

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David Greco on the Unique Challenges in Probate Appeals

David Greco, who heads up the appellate practice at the probate litigation firm RMO, LLP, shares with co-hosts Jeff Lewis and Tim Kowal some of the unique features and challenges in probate appeals:

👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.

👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?

👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.

👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.

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Dismissing an Appeal Means the Judgment Is Affirmed—But Not in This Unusual Case

When I first read Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), something seemed odd about it. I had to read it again to be sure: it is definitely odd.

In this commercial lease dispute, there is an appeal of an anti-SLAPP order against the tenant. The tenant claims on appeal that there was at least minimal merit for its interpretation of the estoppel certificates. But there was a subsequent judgment in a UD action that ultimately rejected tenant’s interpretation.

So you can guess what the landlord did next: The landlord moved to dismiss the appeal as barred by res judicata based on the UD judgment. And the Court of Appeal agreed. “Because these issues were fully litigated in the unlawful detainer actions, appellants are barred from relitigating these issues.”

Now here is the odd part. The Court of Appeal has granted the landlord’s motion to dismiss the appeal. So that means what happens next is the appeal is dismissed and the anti-SLAPP order is affirmed, right?

But that’s not what happened. The court did not want to affirm the judgment. So it did not dismiss the appeal. The court reversed the SLAPP order and the fee order. In other words: The respondent landlord loses.

How did this happen? In the post, I explain why I think the landlord’s mootness argument was technically wrong: the tenant’s appeal was not moot, but its case was. Also, the court apparently did not want landlord getting its fees against tenant in two cases. One was enough.

Still, this was a really weird way for the court to go about it.

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Identifying Wrong Order in Notice of Appeal Results in Dismissal (in Contrast to Another Recent Case)

The court sympathizes with the appellant in Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.), whose two motions to vacate were denied. But the court holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial.

The court had misgivings about the result: “We take no pleasure in dismissing Ramirez's appeal. She was denied a hearing on her claims in the trial court; now we are denying a hearing on her claims in this court.... [But w]e have no leeway to let Ramirez appeal from an order not specified in her notice of appeal, no matter how much it may appear to be in the interest of justice to do so.”

While I agree with the court’s outcome here (and its misgivings), this approach seems to be on the decline in recent years. In the article, I note two recent cases where courts have found creative ways to save similarly moribund appeals. Including time-travel — that is, ordering the trial court in the future to enter an appealable order dated in the past. (If this ploy was good enough to get Bill & Ted got out of jail, then apparently it is good enough for some appellate courts.)

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'Gamesmanship' Throughout Litigation May Raise Risk of Sanctions on Appeal

CEB published my short article on McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, a decision that imposed appellate sanctions on a litigant based on “gamesmanship” in the trial court. Not in the appellate court — the appellate sanctions were for trial court conduct.

The article is available at CEB’s website here: https://lnkd.in/g8pchRjG

My original post on McQueen is here: https://lnkd.in/gphRKVgC

As I mentioned before, the appellate arguments here were not sanctionable by themselves. What earned the appellant and counsel sanctions was their conduct in the trial court. Beware engaging in litigation practice that the court might perceive as “gamesmanship.” If you ever need relief in the Court of Appeal, you could find yourself sanctioned.

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Creators of the CalAttorneysFees.com Blog, Michael Hensley and Marc Alexander, Discuss Tips for Requesting and Opposing Attorney Fees

The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, visit the California Appellate Law Podcast for episode 28 to discuss tips, traps, and best practices on attorney fee motions. We discuss why California’s attorney fees statutes can be so complicated, why reasonable fees sometimes get cut, and why unreasonable fees sometimes don’t.

Some key takeaways:

💡 Give the judge a roadmap. Explain: (1) Why you get fees; (2) Why your motion is timely; (3) What is the appropriate lodestar rate; (4) Why is the amount reasonable?

💡 Don’t be greedy! Inflated fee requests can ruin your credibility with the judge, and are likely to be severely chopped, or even denied entirely!

💡 Establish the necessity of litigation by discussing efforts to settle, and incivility by the other side.

💡 Make your objections as specific as possible.

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Case May Not Be Dismissed During Appeal

Can you dismiss your lawsuit while it’s on appeal? No. That is the surprising holding of Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760. The plaintiff had successfully opposed the defendant’s anti-SLAPP motion, and the defendant appealed the order denying its motion. The plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal.

This holding is wrong on the law, as I explain in the post. And Prof. Shaun Martin agrees the holding “seems fairly revolutionary,” and links to “tons of cases that, in fact, got dismissed while the matter was on appeal.”

But now we have at least one published case that holds a plaintiff may not dismiss pending appeal. And when there’s a conflict — no matter how lopsided — trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

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The Doomsday Provision and the Natural Right to Self Defense

Who needs the Second Amendment? Judge Kozinski once called the constitutional right to bear arms as the “doomsday provision”: that right to which a free citizens resorts when all other rights have failed. But what role does that right have left to play in a hyper power like the U.S.?

Second Amendment attorney Sean Brady, Jeff Lewis, and I discuss some modern examples when other rights have failed, at least temporarily: such as in the wake of Katrina, the L.A. riots, and the George Floyd riots.

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Failure to Make Required Findings Held Reversible Per Se

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered No in F.P. v. Monier. Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant.

But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, the court’s analysis in Abdelqader is unsatisfying. The court furnished no basis to distinguish the Supreme Court’s Monier holding. In fact, the court did not even mention Monier.

The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.

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The 9th Circuit’s Skewed 2nd Amendment Scorecard

Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that:
🤔 Rely on the Heller dissent rather than the SCOTUS majority’s holding.
🤔 Hold there is no right to concealed carry even when there is no right to open carry, either.
🤔 Effectively hold there is no right to bear arms, only to keep them.

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About That Cheeky Concurrence by Judge VanDyke

Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and I—while disagreeing on the merits of the gun rights question—also agree that satire and a bit of cheek can be valid tools to bring attention to an important issue that might otherwise be ignored.

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Trial Court’s Refusal to Consider Declaration Supporting Domestic Violence Restraining Order Held Grounds for Reversal

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings.

But not in M.H. v. C.H. (D5 Mar. 18, 2022 no. F082268) 2022 WL 817842 (nonpub. opn.). In a proceeding for a domestic violence restraining order, the trial court “shall consider the totality of the circumstances” in making its ruling. (Fam. Code, § 6301, subd. (c).) This includes considering “the affidavit or testimony.” (§ 6300, subd. (a).)

The Fifth District Court of Appeal held that the trial court’s refusal to consider declarations or evidence other than offered at the evidentiary hearing “is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.”

#AppellateLinkedIn: Note the ambivalent framing of the nature of the trial court’s error: the court frames it as both “legal error,” and as “abuse of discretion.” Why do courts insist on doing this?

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A Second Restraining Order Made Appeal of Earlier Restraining Order Moot

The appellant in Singh v. Bains (D5 Mar. 10, 2022 no. F082506) 2022 WL 714679 (nonpub. opn.) was in pro per, so don’t read too much into this, but something does not sit right about this memorandum opinion (an abbreviated form of opinion when a cause raises “no substantial issues.”)

The trial court entered a civil harassment restraining order against Bains. Bains appealed. But sometime later, the trial court entered a second, identical restraining order. It even expires on the exact same date. (You might be wondering: what, exactly, was the point of the second order, then?)

Noting that Bains did not appeal the second restraining order, the court denied the appeal from the first restraining order as moot: “If we reversed the challenged CHRO, defendant would still be subject to the second CHRO. Therefore, this appeal is moot and should be dismissed.”

Here is why the court’s opinion does not sit right with me: Why is the trial court entering duplicate identical restraining orders? What was the point of a second, identical restraining order, other than to spring a procedural trap on the appellant on appeal? And doesn’t the appellate stay under Code of Civil Procedure section 916 render the second identical order void?

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The most frequently committed legal writing mistakes

Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs:
(1) Legalese (are you really still using legalese?)
(2) Long sentences with no clear structure or emphasis
(3) Failing to mind the “cognitive load” of your reader.

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Three Mistakes to Avoid in Your Notice of Appeal

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:

1. He was appealing two orders, but only listed the date for one of them.

2. He checked the wrong box for the legal authority supporting the appeal.

3. He failed to attach the order to his Civil Case Information Statement.

Courts liberally construe the notice of appeal so that appellants don’t lose their appeals for these kinds of technical reason. But there are limits, and the appellant exceeded the limit here.

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Victoria Fuller on Family Law Appeals: Episode 27 of the California Appellate Law Podcast

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.

Victoria discusses with Jeff Lewis and me:
• The unique post-judgment relief available under Fam. Code, § 2122 for fraud, duress, mistake, and financial-disclosure violations;
• Expanded relief on motions for reconsideration; and
• The critical statement of decision process.

Despite these remedies, why do family-law appeals feel like such an uphill climb?
(Answer: because family-court judges have so much discretion even they don’t realize the full extent of it.)

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Why unpublished opinions probably should remain non citable

In defense of the prohibition on citing unpublished opinions, attorney Ryan McCarl notes to Jeff Lewis and me that, so long as California appellate judges continue “nonpublishing” opinions on the assumption practitioners not understand them to be real judicial decisions, we’d have to change their assumption before we change our understanding.

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Beware Challenging Arbitration Award: $38K Frivolous Appeal Sanctions Because Mere Arbitrator Error Is Not Reversible

Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s “gamesmanship” in the trial court.

The Upshot: Appellate sanctions usually are a high hurdle, and on the quality of the appellate arguments alone, I would not have rated sanctions remotely likely. The lesson of this opinion, then, is that the appellant’s conduct in the trial court can play an outsized role in the imposition of appellate sanctions. If the appellant’s conduct in the trial court creates an impression that the unsuccessful appeal is part of a pattern of driving up the expense of the litigation, then this can be a grounds for sanctions almost by itself.

Question for #AppellateLinkedIn: Does this opinion suggest that conduct that might not warrant sanctions in the trial court could warrant sanctions in the appellate court? And if so, is this a problem?

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Use of Audio & Video at Trial Affirmed on Appeal

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it.

A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at trial, the shrewd defendant in Quintero v. Weinkauf (D1d4 Mar. 3, 2022 no. A159812) 2022 WL 620722 (nonpub. opn.) was keenly aware of three important things about using audio and video footage at trial: (1) it must have proper foundation; (2) audio recorded without consent generally is illegal; and (3) it may implicate the right against self-incrimination.

But none of the defendant’s strategies worked for one simple reason: he was transparently attempting to lie to the court. The plaintiff recovered a judgment totaling $2.2 million against the defendant (who was found to be worth $1.5 million).

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“Prophet Without Honor”: Sean Brady on Judge VanDyke’s Controversial 2nd Amendment Prediction

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining Jeff Lewis and me, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But all of us agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

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Order Granting Withdrawal of Attorney Is Not Appealable

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

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A Request for a Statement of Decision That Failed to Identify the Issues Held Inadequate

Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative” means a final decision is on the way: If you do not request a final “statement of decision,” you do not get one. And on appeal, the “tentative” has all the force and effect of a postcard.

Both parties in Unified Real Estate Investments, LLC v. Thong (D2d1 Mar. 1, 2022 no. B301162) 2022 WL 602251 (nonpub. opn.) requested a statement of decision. Or at least, they thought they did. But the Court of Appeal held the request was too equivocal (counsel said the statement of decision should “perhaps” cover the issues in the trial brief). The court also held that the requirement to identify the issues to be covered in the statement of decision is not satisfied by general reference to the issues in the trial briefs.

In the post, I outline the steps required to adequately request the statement of decision. I also referenced some of the nasty tricks courts can play on litigants in this procedure.

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Published Opinions Are Well-Thought-Out: Shouldn't They All Be?

In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.” (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.)

But doesn’t every case deserve the same quality of consideration?

How would the reasoning be different if Congress were to say, “you know, this bicameralism and presentment business is an exacting and extremely time-consuming task, and really, what legislature has the resources to go through all that for every important policy matter that comes before it?”

(Of course, a federal court would respond: “No one is saying you cannot cite to unpublished cases. We just don’t like it very much, is all.” But California Rules of Court rule 8.1115 absolutely prohibits any citation to unpublished opinions.)

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A Clever Rhetorical Device Closing Argument Avoided a “Golden Rule” Violation and Earned an $18M Verdict

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.

In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.

The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel. In effect, the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?

No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.

A very effective argument. For which the jury returned a verdict of $18 million.

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Proper and improper ways to get around the no-citation rule

Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea.

First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district that issued the on-point unpublished case. (Bad idea, don’t try it it. I realized it was probably too mischievous when I couldn’t even say it with a straight face.)

Second, simply crib the persuasive reasoning of the unpublished case. (This gets a thumbs-up from both David and Dean and co-host Jeff Lewis.)

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Appellate Court Ducks Question Whether Probate Court Loses Jurisdiction to Award Fees Pending Appeal of Judgment

Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate cases, we do not have an answer one way or another.

And we still don’t, because the Court of Appeal ducked the question In Conservatorship of Bower (D4d3 Feb. 25, 2022 no. G059112) 2022 WL 571011 (nonpub. opn.).

In that conservatorship case, the probate court found the conservator had incurred expenses in bad faith. The court ruled the conservatee’s widow was entitled to attorney fees, the amount to be determined by subsequent motion. The conservator filed an appeal of the order on the accounting, including the finding of bad faith giving rise to attorney fees. The conservator then argued that, based on the appeal and the resulting appellate stay, the trial court lacked jurisdiction to award fees.

But by this time, the appeal of the underlying accounting award and finding of bad faith had been affirmed. So the court ducked the section 1310 stay question. The court explained that “The most we could do with respect to this order, even if Andrea is correct, is to return the order to the probate court to be reissued – a pointless exercise.”

Comment: I disagree that it would be a “pointless exercise.” At a minimum, postjudgment interest has been accruing on the fee award since before the appeal of the underlying order was affirmed. If the appellant is correct that there was no jurisdiction to enter the award before affirmance, then that postjudgment interest also is void.

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The “Speedy” in Speedy Trial Becomes Relative, and the Limits of Scientology Arbitration: A Review of Jan. 2022 Cases on Ep. 25 of the Cal.App.Law.Pod.

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in *United States v. Olsen*.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

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How the No Citation Rule Is Routinely Violated

Did you know you are forbidden to cite unpublished cases — even when urging the Cal. Supreme Court in a petition for review that there is a split of authority? Appellate attorneys David Ettinger and Dean Bochner note that this use of unpublished cases are routinely employed, but it violates California Rules of Court rule 8.1115.

They explain to Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that the rule should be amended so attorneys need not risk becoming “scofflaws” just to continue engaging in this customary and needful practice.

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Why you should include more white space in your briefs

Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded.

(Disclosure: I haven’t mustered the courage yet to remove the vertical lines from my pleading template.)

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Premature Appeal May Be Saved, But Get the Judgment Entered

Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).

That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.

While the court was rather fussy about the requirement here, in the post I mention some of the creative ways that other courts — if sufficiently motivated to reach the merits — will save an appeal. My favorite: the appellate court can order the trial judge to enter a nunc pro tunc judgment, and then the appeal can proceed as though taken from that future judgment. (Someone, at last, found a way to apply the deep time-travel lessons of Bill and Ted’s Excellent Adventure!)

Question for #AppellateLinkedIn: Do appellate courts in other states get this creative?

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Attorney Sanctions for Violating Appellate Stay (But the Stay Was Probably Void)

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.

So the appellate stay was vindicated. That is the good news.

What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. The maximum stay the court could have ordered here could extend only until 10 days after the deadline to file a notice of appeal.

By operation of law, then, the stay order here had expired by the time Adut sought the writ of execution. But Adut did not raise that argument in her appellate brief. And the court did not address it, either.

The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.

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Family Law Judgment Reversed for Failure to Provide a Statement of Decision

A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was reversible error.

The appellant in Hale was a mother disputing a visitation order. The court had found the father committed domestic abuse, so under Family Code section 3044, that created a rebuttable presumption that custody was detrimental to the child. The father did not rebut that presumption, yet the court ordered nearly equal-time visitation — in effect, joint custody.

The mother timely requested a statement of decision, but the court said, “I'm not going to issue a statement of decision on this case.”

The Court of Appeal reversed. The trial court’s failure to issue a statement of decision was error. And because the trial court gave no explanation that could support its order, the Court of Appeal found the error was prejudicial.

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Two Proposals to Amend the No-Citation Rule

Attorneys are prohibited under CRC rule 8.1115 from citing unpublished cases for any reason. But not even the Supreme Court takes the rule seriously. Practitioners routinely cite unpublished cases in petitions for review to demonstrate the existence of splits of authority, even though rule 8.1115 clearly prohibits this practice.

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their two proposals to amend rule 8.1115, and allow citations to nonpubs in appropriate circumstances.

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Denial of Motion to Vacate Default Was Res Judicata, Not Subject to a Second Challenge

When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.

Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.

The Upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.

Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.

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Preliminary Injunction Is Not Appealable If Issued by an Arbitrator

Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding of *Kirk v. Ratner* (D2d7 Feb. 10, 2022) --- Cal.Rptr.3d --- (2022 WL 405422).

The parties settled their show business dispute, agreeing to confidentiality. Worried that Kirk would breach confidentiality, the movie executives initiated arbitration. The arbitrator issued a temporary restraining order followed by a preliminary injunction. The movie executive plaintiffs were not required to post a bond for the injunction.

Kirk petitioned the superior court to vacate the injunction. The court dismissed the petition on grounds it lacked jurisdiction because the preliminary injunction was not an “award” under Code of Civil Procedure section 1283.4.

The Court of Appeal dismissed Kirk’s appeal, holding both that the preliminary injunction was not an “award” subject to a petition to vacate, and the order dismissing the petition was not appealable for the same reason.

This holding makes preliminary injunctions in arbitration all the more devastating. Not only are the beyond review, but the losing party loses the only statutory safeguard — a bond.

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Elegant Legal Writing, with Ryan McCarl

Attorney and author Ryan McCarl joins Jeff and me to discuss his forthcoming book, *Elegant Legal Writing*, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.

Ryan also offers a thoughtful caveat to my proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

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Nonsuit of Punitive Damages Reversed on Appeal

A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial — before even an opportunity to present evidence.

This was reversible error, the Court of Appeal held. In short, if reasonable minds can disagree, nonsuit should not be granted. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61.)

So it is ironic that there was a dissent. Presiding Justice Rothschild stated she did not believe any reasonable jury could have found punitive damages on the plaintiff’s proposed evidence.

But if reasonable appellate justices can disagree, as they clearly did here, then how can the dissent argue no reasonable jury can disagree?

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Law Is What Courts Do, Not What They Say

Appellant expert Myron Moskovitz explains why unpublished opinions are a sleight of hand. Courts do one thing in one case, and the opposite in another case, and then tell you only the first case is “precedent” because the second was not “published.” But ALL cases are published online. We can all we what the court is doing. “Unpublishing” cases is a bad magic trick.

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Waiting for a Formal Judgment Before Filing an Attorney Fee Motion Rendered the Motion Untimely

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline.

The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late. For example, the petitioners argued the order granting the writ did not fully dispose of the case because they still had another case for declaratory relief.

Good argument! Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” Whoops.

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Appeal by Client of Sanctions Against Attorney Dismissed: Attorney Should Have Appealed

Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice of appeal.

Rubbing the attorney’s nose in it, the Third District Court of Appeal held the sanctions award was improper on legal grounds, and must be reversed. But the sanctions against the attorney remained.

But Lafferty is probably wrongly decided. The California Supreme Court recently directed courts to be more lenient than this, and to excuse the omission of the attorney in a notice of appeal of a sanctions order. In the January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875, the Court held that the omission of an attorney from the notice of appeal of a sanctions order was not fatal.

The Upshot: Do not forget to name all appellants in the notice of appeal. But also be prepared to discuss the doctrine of liberality in construing the notice of appeal, and cite K.J. if any defects in the notice of appeal arise.

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A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable

CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” The link is below. The article was originally published on my blog ( https://bit.ly/3gklJjJ ). The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087.

The upshot is when you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

Here is the link to the CEB article: https://bit.ly/35AvdFp

Here is the link to the original blog post: https://bit.ly/3gklJjJ

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Right to Speedy Trial Under 6th Amendment May Be Suspended Indefinitely During Covid, Holds 9th Circuit in Denying En Banc Review

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again.

At least as it concerns criminal jury trials, you can get a good sampling of judges’ disparate feelings in *United States v. Olsen*, 21 F.4th 1036 (9th Cir. Jan. 6, 2022), where the Ninth Circuit recently denied en banc review of a panel decision reversing a dismissal for failing to comply with the Speedy Trial Act.

Tensions run high in each of the four opinions: the majority per curiam decision reversing the district court and reinstating the case, two concurrences by Judges Murguia and Bumatay, and a dissent by Judge Collins. There is too much going on to fairly summarize all of it. So in the article I only cover a few things that jumped off the page at me, including:

- No 6th Amendment analysis at all in the majority opinion;
- The 9th was displeased with the unseemly collateral dispute among judges of the Central District;
- “Impossibility” of jury trials was denied by a “General Order” in which the defendant had no input — is this constitutionally problematic? (Judge Collins thinks so);
- Should a Speedy Trial be denied because the defendant obtained prior continuance? What if it was to review the voluminous evidence the government amassed in six years of pre-indictment investigation?

Ultimately, while I agree with Judge Bumatay that this is a close call, I am persuaded by Judge Collins’ dissent. At a minimum, the Ninth Circuit should have granted *en banc* review here.

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Judge Applied Wrong Legal Standard, Leading to Reversal of $680,000 Fee Award

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in *[Duff v. Jaguar Land Rover North America, LLC](https://bit.ly/3Gspq1B)* (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said *no*.

But the Court of Appeal held that the CCP 1032 “net monetary recovery” standard does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

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Rejected Arguments for Lack of Citation, and Other Recent Cases, on Ep. 23 of the California Appellate Law Podcast

Jeff Lewis and Tim Kowal round up some recent California appellate cases of note:

➢ Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.

➢ Center Street v. Superior Court involving a rare summary affirmance.

➢ Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.

➢ Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.

➢ In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.

➢ State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

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How the Medical “Standard of Care” Has Killed Two Presidents

Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard of care”: George Washington from bloodletting, and James Garfield from sepsis.

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Another Untimely Appeal Excused in Dependency Case Based on Ineffective Assistance of Counsel

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (*[In re A.R.](2021) 11 Cal.5th 234.)

The reason this was surprising is because, until then, a uniformity of California cases had held that an untimely appeal *was* an “absolute bar” to appellate jurisdiction.

But *A.R.* had noted there was a statutory right to “competent counsel” and a habeas right in dependency proceedings, so the Court would let slide the four-day untimeliness.

The recent case of *In re B.P.* (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.), took *A.R.* quite a bit further. That case involved a four *month* untimeliness. Also: no habeas petition. The court still allowed the untimely appeal.

As I said before discussing *A.R.*, courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

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Waiver of Jury Trial Held Voluntary, Despite Judge’s Statement Litigant Would Have to Wait 9 Mos. for a Jury

This one seems wrong to me.

This is a published case in *[Conservatorship of Joanne R.] (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging the establishment or extension of the conservatorship. (Welf. & Inst. Code, § 5350.) So she invoked that right.

But here is what the trial judge says about the appellant’s right to commence a jury trial in 10 days: “if you would like to have a court trial with the judge making the decision we can do that today. If you would like to have a jury trial then we can do that as well, but we won't be able to do it today. We can reschedule and do that in November.”

This is in early February. That’s nine months into a 12-month conservatorship.

The appellant responds “I would prefer a jury trial, but I don’t want to wait until November.” Then after a short colloquy, says, “I think I want to go ahead today and do it.”

Is that a voluntary waiver of the appellant’s right to a jury trial? The Second District Court of Appeal says yes (but with reservations).

I think that is wrong, as I explain in the article. If the Legislature affords a right, it ought to honor it. The fact that the pandemic has made it difficult is not an excuse. Unless and until the Legislature decides to abrogate the right, the courts’ duty is to enforce it.

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The Tension Between Medicine and Public Health

Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand.

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The Best Time to Prepare for Oral Argument

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts.

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Judge’s Death After Deciding Case But Before Issuing a Statement of Decision Results in Mistrial

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in *Marriage of Stone* (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.).

The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a tentative decision, held a hearing on the parties’ respective proposed statements of decision, and indicated he would consider modifying certain language. But the judge passed away before entering a final statement of decision or entering a judgment. So the presiding judge declared a mistrial.

On appeal, the appellant-wife argued the mistrial was error and the presiding judge should have entered a judgment on the trial judge’s findings in the intended decision. She had a great case on point, holding that under Code of Civil Procedure section 635, the presiding judge may enter a judgment on an unavailable trial judge’s intended decision. But ultimately the court held it was not close enough, and affirmed.

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Overview of the Two Major Types of Vaccine Mandate Challenges

Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.)

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In a Confusing Appellate Opinion, Denial of Post-Settlement Fees Held Not Appealable

An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

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A Proposal to Amend the No-Citation Rule, with David Ettinger and Dean Bochner

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

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SLAPP Fees Might Be Avoided by Dismissing Complaint, Published Appellate Decision Holds

From the “*did they really have to publish this?*” files:

You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in *[Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc.] (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after the defendant filed an anti-SLAPP motion. The court held, in a published opinion, that the trial court did not err in refusing to rule on the anti-SLAPP motion, thus never establishing the predicate to the defendant’s right to anti-SLAPP fees.

After you learn the facts, you will understand why both the trial court and the appellate court were not excited about rewarding this defendant with anti-SLAPP fees. But as Justice Brown notes in dissent, the majority should be more mindful of the problems this holding will create for worthy anti-SLAPP movants in the future.

Ultimately, what seems to me incongruous about the *Catlin v. Danko* rule — which requires anti-SLAPP movants to file a separate fee motion in the event the plaintiff voluntarily dismisses — is based on facts that *disfavor* the anti-SLAPP movant (because the anti-SLAPP motion was probably frivolous). This seems to me an odd way to develop case law interpreting a statute that is supposed to *favor* anti-SLAPP motions.

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Trial Court’s “Blanket” Rulings on Evidence May Be Treated with Suspicion

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in *[Foley v. McElroy](https://casetext.com/case/foley-v-mcelroy?resultsNav=false&jxs=ca&tab=keyword)* (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

Also: remember that anti-SLAPP orders are directly appealable. Do not wait around for a judgment.

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The Best Time to Prepare for Oral Argument

If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief.

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Outside Reverse Veil Piercing May Be Permissible Even Against an LLC with an Innocent Third-Party Member, Published Appellate Decision Holds

When you have a judgment against a shell entity, you can amend the judgment to name the sole shareholder or member. That is called piercing the corporate veil. Until a few years ago, it didn’t work in reverse: if you have a judgment against a judgment-proof business owner, you can’t add the entity as a judgment-debtor. (Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513, 77 Cal.Rptr.3d 96 (Postal Instant Press).) Except in 2017 in Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221 (Curci), the same appellate court said you could do that — that is, at least if you were dealing with an LLC. (Curci did not apply to corporations.)

But what if the LLC has innocent members? It wouldn’t be fair to innocent LLC members to add the LLC to a judgment because of whatever some other member did. That is the issue that came up in Blizzard Energy, Inc. v. Schaefers (D2d6 Nov. 18, 2021 no. B305774) 71 Cal.App.5th 823. And the court answered the question by holding: Yes, the LLC may be liable for the judgment, but no, we can’t offer any suggestions how it could be done consistent with an innocent member’s rights. The court remanded for the trial court to think about that.

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Don’t Overlook the Civil Case Information Statement: Attorney Sanctioned for Incomplete CCIS

After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in *[Kuenzinger v. Doctors Med. Ctr. Modesto](https://casetext.com/case/kuenzinger-v-doctors-med-ctr-modesto#pa74)* (D5, Dec. 22, 2021 no. F082272) 2021 WL 6064094 (nonpub. opn.) It was incomplete because the attorney failed to check one of the boxes.

This is an unusual case because the same attorney had acknowledged another very similar appeal just last year was entitled to calendar preference. So the Court of Appeal concluded the attorney knew this appeal was entitled to preference, too, and so the failure to designate it as such was sanctionable.

The court imposed a $500 sanction, payable “personally” by the attorneys.

Still, take the Civil Case Information Statement seriously. Because the court will.

In the article, I include a list of the types of appeals subject to mandatory calendar preference.

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Two Recent Appeals Rejected for Insufficient Legal or Factual Citations

In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in *[Singman v. IMDb.com, Inc.](https://casetext.com/case/singman-v-imdbcom?resultsNav=false&jxs=ca&tab=keyword)* (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted the only entry in the table of contents was Code of Civil Procedure section 904.1, an appealability statute that obviously does not impeach the judgment.

That’s not surprising. I wasn’t even going to mention the similar case in *[Freitas v. Clear Recon Corp](https://casetext.com/case/freitas-v-clear-recon-corp-2?resultsNav=false&jxs=ca&tab=keyword)* (D1d1, Dec. 8, 2021, No. A160762) 2021 WL 5822382, where an appeal of a dismissal following a demurrer failed because of lack of citations to the record.

But the First District did not publish *Freitas*, probably because that proposition is already settled, and this was a pro per litigant.

So why did the *Singman* court decide to publish? The faux pas there in failing to cite legal authority also was committed by a pro per litigant. The opinion is only two pages long. There is no analysis of the merits. There is no discussion what the case is about. The court notes the appellant’s legal arguments are not supported by legal citations, but does not say what those arguments are. The court concludes its published opinion with this line: “An absence of legal authority forfeits an appellant's cause.”

As I explain in the post, because there is so little context surrounding the holding in *Singman*, I suspect it will be abused. Going forward, even self-evident propositions in a legal brief may be met with a small-minded refutation citing *Singman* if the proposition does not include a citation.

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Explaining the Vaccine Mandate Lawsuits, with Medical Rights Attorney Rick Jaffe

In this timely episode of the California Appellate Law Podcast, health care litigator Rick Jaffe joins Jeff Lewis and me to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation.

Rick’s practice focuses on cutting-edge medical and legal issues across the country, and he is the author of *Galileo’s Lawyer*, a book telling the stories of medical mavericks and giving an insider’s view on high-profile and controversial medical cases.

We discuss why medical-rights litigation is different from other types of litigation. Rick then explains the three basic types of vaccine lawsuits that the courts are facing in late 2021 and early 2022: (1) challenges to the federal agency and police power; (2) religious conscience challenges; and (3) challenges to the state police power.

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Lack of Reporter’s Transcript Fatal to Appeal of a Discretionary Ruling

Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order.

In *[Lemus v. Abdeljawad] (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But the plaintiff got the default judgment under suspicious circumstances. The defendant never received the summons or complaint. When the defendant learned of the default, counsel sent emails to the plaintiff’s counsel asking for the complaint. Counsel left voicemails for plaintiff’s counsel. But plaintiff never responded, and instead pushed ahead to get a default judgment. When the defendant moved to set aside, the plaintiff admitted having received the defendant’s requests for the complaint, but did not explain why he never responded. The trial court set aside the default judgment.

When the plaintiff appealed, he failed to include the reporter's transcript from the hearing. Presumably, the trial court would have asked, at that hearing, “counsel, what possible excuse could you have for not responding to the defendant’s repeated requests for the complaint?” The Fourth District Court of Appeal apparently was curious to know the answer to that as well. The court held the lack of the reporter's transcript alone amounted to a forfeiture of the appeal.

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Do You Really Need a Court Reporter? Read This Debate Between Two Appellate Justices

I found this a really interesting case. It is about whether litigants need to have a court reporter at a law-and-motion hearing. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered?

Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in *[Weischadle v. Vo](https://casetext.com/case/weischadle-v-vo?resultsNav=false&jxs=ca&tab=keyword)* (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845) (nonpub. opn.). The majority held the lack of a reporter's transcript at a hearing on a motion to compel arbitration was not fatal. But Justice Chaney penned a forceful dissent. The majority opinion is logical and seems to reach the right result. But Justice Chaney raises important questions whether the majority evaded important procedural safeguards to reach its result.

Given the outcome was a close call, as a practical matter it would be wise to assume a reporter's transcript is necessary for any important law-and-motion hearing, even if testimony will not be offered.

I discuss what happened in *Weischadle* in the rest of the post, along with some comments about judicial admissions, and whether California rules make record preparation needlessly difficult.

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Where the Statement of Decision Procedure Can Fail You

To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss.

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Appellate Attorneys As Warrior Scholars

One of California’s foremost appellate experts, Myron Moskovitz, talks with Tim Kowal and Jeff Lewis about the personality type of the appellate attorney as part scholar, but with some fight left. Many judges tend toward the scholastic, Myron says, but some still enjoy the electricity of litigation.

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So You Reversed a Statement of Decision – Now What?

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before.

One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.)

Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it.

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Keep These Three Tips in Mind for Your Next Appellate Brief

Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record).

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The Trend Toward Reviewability of Arbitration Awards

Appellate attorney Anne Grignon suggests the California appellate courts seem to be more willing to review arbitration awards lately. Anne discusses with Tim Kowal and Jeff Lewis how questions concerning whether the case should be arbitrated, and questions involving important policy interests, may be more likely to receive appellate review. If you are in arbitration, these are important things to consider, whether you are looking to get appellate review or avoid it.

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You’ve Heard of Unpublished Court Decisions, But How About Unwritten Decisions?

One of the criticisms against the uncitability of unpublished appellate opinions is that the fact they are not published feeds a suspicion they are not always thought quite all the way through. Certainly you are more likely to find typographical errors in an unpublished opinion, for instance, than you might in a published one. And I often find myself a bit unsatisfied at the level of legal analysis in an unpublished opinion.

But an unpublished analysis is better than no analysis at all. That is what the litigants got in *[Center Street Dev. Co. v. Superior Court](https://casetext.com/case/ctr-st-dev-co-v-the-superior-court?resultsNav=false&tab=keyword)* (D1d2 Nov. 24, 2021) no. A160894. The First District Court of Appeal just concluded that reversing the summary adjudication order seemed to it “obvious.”

What should have been at least as obvious to the court is that this sort of shortcut violates the state constitution and precedent of the Supreme Court. If the court missed this obvious point, is it possible its summary reversal missed other points as well?

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Denial of Motion to Enforce a Settlement Held Appealable Because it “Functionally Terminated” the Litigation

Can you appeal an order on a motion to enforce a settlement agreement? And if so, why aren’t these orders listed in the appealable orders statute of [Code of Civil Procedure section 904.1](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=904.1&lawCode=CCP)?

The functional answer to the question is yes: orders on motions to enforce a settlement probably are appealable. But the court in *[Rezzadeh v. Chiu*](https://casetext.com/case/rezzadeh-v-chiu?tab=keyword&jxs=&sort=relevance&type=case&resultsNav=false) (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.) suggests the reason this is not obvious in the statute is that litigants are not supposed to have to take appeals from the orders. Instead, trial courts are supposed to be entering *judgments* on those orders. And then the appeal, naturally, would be taken from the judgment.

Settling a case is not the end. You may need to be prepared to invoke your appellate rights until a settlement is fully executed.

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Don't Fall Into the "No Statement of Decision" Trap

CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you to get a statement of decision? (The answer is no, and as the article explains, courts may even actively steer you into waiving the statement of decision.)

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Dear Federal Judges Please Discuss More Unpublished CA Cases

The frustrating rule against citing unpublished appellate opinions in California courts, Rule of Court 8.1115, has an important exception: if a federal case has cited the unpublished California opinion, then you can cite to it by way of the federal case. Appellate attorneys Frances Campbell, Jeff Lewis, and I discuss.

Any federal judges looking for a way to perform a public service – and earn a lot of gratitude from California attorneys – should cite liberally to unpublished California appellate opinions.

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Trial Court's Exclusion of Evidence Was Error Requiring Reversal of Order Denying Restraining Order

Judges have a lot of leeway to exclude evidence at trial. But in *Brubaker v. Andy Strum* (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought the evidence of harassment was barred by the doctrine of issue preclusion. But the judge misunderstood the doctrine of issue preclusion. That was a legal error. As a legal error was the basis of the exclusion, the exclusion order had to be reversed.

**The upshot**: Evidentiary rulings normally are difficult to challenge on appeal, being subject to the deferential abuse of discretion standard. But when an evidentiary ruling is based on an error of law, you may be entitled to something more like de novo review. That is what happened in this case.

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Evolving Law on Arbitrability in CA

Who decides whether a dispute must be arbitrated? The court, or the arbitrator?

By a vote of 3 appellate attorneys, the court should decide.

Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine the question of arbitrability. Anne explains to appellate specialists Tim Kowal and Jeff Lewis the arguments that led the Court of Appeal to hold arbitrability must be decided by the trial court, not the arbitrator.

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Winning an Appeal: Our Interview with Author and Attorney Myron Moskovitz

Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

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Increase Your Chances of Success on a Writ

Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.

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No Fee Agreement, But $239,000 Fees Awarded as "Costs of Proof" for Failing to Admit RFAs

Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?

That's what the defendants got in *Spahn v. Richards* (D1d3 Nov. 30, 2021) __ Cal.Rptr.3d (2021 WL 5576615, no. A159495) as costs-of-proof fees.

The RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence. I had never envisioned costs-of-proof fees to encompass substantially all of the case. But that seems to be the upshot here. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution. This is something to consider implementing into your case strategy.

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If No One Requested a Statement of Decision, Then There Is No Statement of Decision

I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment.

That is what happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). The court issued a "Ruling on Trial," and the unsuccessful plaintiff used that for his appellate challenge. But it got him nowhere. It was treated as merely a tentative decision, which cannot be used to impeach a judgment.

(In the post, I relate a strategy I've heard from a trial judge to lure litigants into this trap.)

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Should You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next Appeal: Cal.App.Law Podcast ep. 19

Appellate attorney Anne Grignon joins Jeff Lewis and me to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne then shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

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Employee Challenging Defense Verdict on Appeal Could Not Overcome the Difficult "Finding Compelled as a Matter of Law" Standard of Review

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

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The Lesser Known Standard of Review "Finding Compelled As a Matter of Law"

You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell.

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A Stipulated Judgment to Facilitate an Appeal Held Appealable

If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened *Tos v. State of California* (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments in other cases in both state courts and federal courts. So here is the right way to do it.

First, recall that in *Kurwa v. Kislinger* (expressing the general rule against the appealability of stipulated judgments), there were other claims the plaintiff wanted to preserve, and so the parties entered into a tolling agreement for those claims, and the plaintiff dismissed them *without prejudice*. Also, the defendant had a pending cross-complaint. In *Kurwa*, it was clear the parties were simply "manufacturing appellate jurisdiction," rather than waiting for a final judgment as the law requires.

In contrast, in *Tos* the stipulated judgment disposed of the only claim in the case. There was no cross-complaint. The judgment was with prejudice to the plaintiff's claims. This satisfied the court that the parties were not attempting to "manufacture appellate jurisdiction" as happened in *Kurwa*.

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No, There Is No Eviction Tsunami Coming

There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing.

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You Have No Right to a Ruling on a New Trial Motion

The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely have the right to move for new trial. No question. But Nickelson says you don't have a right to a ruling on the motion.

In this domestic violence case, the appellant-brother's claim was dismissed after trial. He moved for new trial arguing his evidence should have been let in, including video and photographic evidence and medical reports.

Here is what the trial court did about the appellant's new trial motion: the judge told the appellant to just file an appeal instead. And then the judge took the new trial motion off calendar.

And the Court of Appeal held this was fine.

(In the rest of the post, I explain why I disagree.)

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Who Has Standing to Bring an Unlawful Detainer Claim?

Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Fran Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question cannot be cited because they are technically "unpublished." California Rules of Court 8.1105 and 8.1115 create a "speakeasy" body of law: specialists know what the rule is, but they can't talk about.

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California Supreme Court HUD Decision Was Wrong, U.S. Solicitor General Says

US Solicitor General agrees Cal. Supremes misread HUD rules & cut aid to Section 8 recipients. Still, SG says SCOTUS should deny review because HUD about to issue new rules.

Cold comfort to the Section 8 folks whose funding the California high court would have reduced (and might reduce again).

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If Your Case Is Dismissed for Failure to Prosecute, Simply Refile the Case

This topic comes up periodically, but it is still a little puzzling.
A complaint is filed. For one reason or another, the court dismisses the complaint without prejudice. But: the court does not sign the dismissal order. A dismissal order must be signed under Code of Civil Procedure section 581d. So the appeal from the unsigned dismissal is dismissed in Alaoui v. Vaynerman (D2d5 Nov. 8, 2021) 2021 WL 5175659 (no. B308421) (nonpub. opn.).

Here is why I say this is a little puzzling. True, section 581d requires that a mandatory dismissal be signed. But in other cases where the case is effectively over but the trial court forgets the ministerial act of entering a judgment, appellate courts may simply deem the nonappealable order to be appealable.

So, why didn't the court simply deem the unsigned dismissal to be a signed dismissal here?

The answer (I think) is because the Court of Appeal recognizes that the plaintiff, facing a dismissal without prejudice, may simply elect to refile the case. And if that can happen, then clearly the dismissal was not "final."

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Beware Limited Civil Appeals

The rules of appellate procedure are curious already, but what about appeals in limited civil cases? Curiouser and curiouser. Tenants' rights attorney and appellate specialist Frances Campbell discusses the important differences in appeals in the Appellate Division of the California Superior Court with appellate attorneys Jeff Lewis and Tim Kowal.

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Formatting Matters: MSJ Evidence Objections Overruled That Did Not Conform to Rules of Court Format

If you work in court, you have seen the basic template for submitting written objections to evidence supporting a motion. It is the chart where is listed the objectionable matter, the objection, and a space for the judge to indicate whether the objection is "sustained/overruled." When you need one of these, you probably search your computer for the last one you did and get to work, without much thought to whether the format of the chart is quite correct.

Time for a systems check. In Scofield v. Hanson Bridgett LLP (D3 Nov. 8, 2021) 2021 WL 5176140 (no. C081115) (nonpub. opn.), a plaintiff's written evidentiary objections, filed in response to the defendant's motion for summary judgment, were overruled because they "fail[ed] to number the objections consecutively," and did not provide a "space for the court to date or sign its rulings." And on appeal, the court held that this ruling on pure formatting grounds was within the trial court's discretion: A court does not abuse its discretion in holding a party to the mandatory formatting requirements or in declining to give a party a second chance to file properly formatted objections. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8-9.)

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How to HateWrite Your Legal Briefs

Tenants' rights attorney and appellate specialist Frances Campbell gives appellate attorneys Jeff Lewis and Tim Kowal a lesson in "HateWriting": harnessing that exquisite state of agitated frisson to produce a legal brief that will leave a mark without, after a final edit for overheated adverbs, drawing admonitions.

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Judgment Not Satisfied Unless Payment "Conditioned"​ on Satisfaction, Published Appellate Decision Holds

Enforcing a judgment is hard enough before appeals and appeal bonds enter the picture. Unfortunately, the published opinion in Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) now takes that picture even further out of focus. The upshot is that the defendant fully satisfied a judgment, but that was not enough: the plaintiff intended to seek more costs, and the defendant did not "condition" its payment on its constituting full satisfaction of the judgment.

Held: contrary tot Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891, the plaintiff could continue filing motions for more enforcement costs even after the defendant had paid the entire amount of the judgment, interest, and costs then due.

Takeaways: (1) Don't wait to enforce an appeal bond — you have a year after the appeal, that ought to be plenty. (2) When seeking judgment-enforcement fees, the touchstone is "necessarily incurred," not the more familiar and relaxed standard under Civil Code section 1717. (3) If you are a defendant trying to satisfy a judgment, make it clear that is your intent, because Wertheim throws existing law on this point into doubt.

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Limited Jurisdiction Appeals, Eviction Tsunamis and HateWriting, our Interview with Frances Campbell

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

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Positioning Your Client for Resolution

Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel @Lee Goldberg tells @Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains.

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The Trouble with Voluntary Dismissals

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

But I offer a few words of caution about strategic voluntary dismissals. When the "writing is on the wall" as it was in this case, authorities suggest the time to dismiss without prejudice is over.

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How Corporate Counsel Chooses Trial Counsel

Does corporate counsel always tap the "white shoe" law firms for trial work? No, says outside general counsel Lee Goldberg. Lee tells Jeff Lewis and me that while white shoe firms have their place, what businesses really need is excellent trial counsel who understand the particular needs of their clients, and why relationships matter.

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60-Day Deadline to Appeal Not Triggered by Minute Order

You know that the 60-day deadline to appeal starts the moment the clerk or a party serves either a notice of entry or a "filed-endorsed copy of the judgment, showing the date either was served." (Rules of Court, rule 8.104(a)(1)(A).) So what happens when the clerk serves a 23-page minute order granting an anti-SLAPP motion, along with a certificate of mailing? The judge clearly has decided the anti-SLAPP motion, which is an appealable order. The certificate shows the date of service. So the 60-day period starts running, right?

Wrong, says the Second District in Nejad v. Abernathy (D2d4 Nov. 1, 2021) 2021 WL 5049091 (nos. B304481, B307759) (nonpub. opn.). Rule 8.104 is read literally. There was no document titled "Notice of Entry," and no file stamp on the minute order. Thus, service with the minute order was insufficient to trigger the 60-day deadline. Motion to dismiss appeal denied.

Still, I would not chance it. File the notice of appeal within 60 days unless you have a very good reason why not.

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The Pros & Cons of Arbitration

To arbitrate or not to arbitrate? Outside general counsel Lee Goldberg shares his experiences and perspective on arbitration with Jeff Lewis and me, and how to balance arbitration's pros and cons.

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Judge Who Did Not Preside at Trial Properly May Decide New Trial Motion

When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the "thirteenth juror." So it stands to reason that, if the judge becomes unavailable before a new trial motion can be decided, the result should be the same: mistrial.

But that is not the way the cases have come out where the trial judge becomes unavailable before deciding a new trial motion. As illustration is the recent case of Hakenjos Hall Prof. Svcs, Inc. v. Korte/Schwartz, Inc. (D4d1 Jun. 17, 2021) 2021 WL 2461132 (nonpub. opn.). After a jury trial by experts over business damages, the trial judge retired, and the defendant moved for new trial. A new judge denied the motion, and the Court of Appeal held that substantial evidence supported the verdict.

I offer some reasons why this may give short shrift to the standard on a motion for new trial.

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Challenge to Extraordinarily Large $25M Mesothelioma Verdict Rejected on Appeal Because Challenge Not Based on "Minutes of the Court"

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And one way to demonstrate that might be to compare verdicts in similar cases.

That is what the defendant-appellant tried after it was hit with a $25 million noneconomic verdict in the mesothelioma case of Phipps v. Copeland Corp. (D2d7 May 18, 2021) 278 Cal.Rptr 3d 688 (2021 WL 1973560). The appellant compiled 15 comparable cases into a report, and submitted that with a declaration in support of its motion for a new trial. But the trial court excluded the report as irrelevant and denied the motion. On appeal, the appellant argued the trial court erred in this ruling because verdicts in other cases were relevant.

Held: The compilation of other cases was not based on "the minutes of the court" under Code of Civil Procedure section 658, and thus could not be considered as a basis to reduce damages on a motion for new trial. Affirmed.

This analysis seems harsh, but it is based on the statutes. Do not rely on declarations in a new trial motion. Support your motion based on the court minutes.

I find it noteworthy the court decided this case the way it did. The court apparently did as well, as it published the opinion. This signals a bigger uphill climb for defendants challenging large jury verdicts. This is an important reason to have appellate counsel present at trial.

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Judgment Vacated by Stipulation Still Has Preclusive Effect

When settling a case after a judgment, parties sometimes explore the possibility of a stipulated reversal of the judgment. In the Court of Appeal, the burden required is very high. But what about getting a stipulated vacatur of the judgment at the trial court?

The parties in Meridian Financial Services, Inc. v. Phan (D4d3 Aug. 10, 2021) 67 Cal.App.5th 657 [282 Cal.Rptr.3d 457, 67 Cal.App.5th 657], review filed (Sept. 17, 2021) stipulated for vacatur of large portions of the statement of decision and judgment as a condition of their settlement. The trial court went along with it.

But the judgment that was left over still had preclusive effect. So the exercise was largely pointless.

The Upshot: Do not put a lot of stock in a stipulated reversal or vacatur of a judgment. It is very difficult to achieve in the Court of Appeal. And even if you can achieve it in the trial court, the effect may be less than you think.

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Order Denying Arbitration Reversed, Trial Court Must Decide Existence of Arbitration Agreement First — But a Strong Dissent Disagrees

This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the trial court failed to determine the threshold factual issue whether there existed an agreement to arbitrate. In a forceful dissent, Justice Slough noted: this was a denial of a motion. A denial of a motion must be affirmed on any available grounds.

Justice Slough went on to provide some useful appellate standards that practitioners will want to clip-and-save. Justice Slough seems to me correct, and clearly so, on all points. The majority's opinion is baffling.

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Should Litigants Seek "Justice"?

Offering a sobering view of the litigation process, outside general counsel Lee Goldberg shares his litigation experience with Jeff Lewis and me, and how business owners should view it as a tool to achieve practical outcomes, not to vindicate a principle. Leave "truth, justice, and the American way" for Superman.

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Judgment Reversed Because Statement of Decision Omitted Material Issues

One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens when the judge fails to make findings on material issues in the case?

A helpful illustration of how to set up a strong technical argument on appeal is found in Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.). By raising an omission in the statement of decision in the trial court, the appellant was able to obtain a reversal on appeal.

But caution: While this proved effective on appeal, the result was a remand with directions to the trial judge to supply the missing findings. What are the chances the judge will make findings favorable to the appellant?

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Implied Findings Doctrine Only Applies When the Trial Court's Reasons Are Correct — Here, They Were Wrong

One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment against the appellant, the appellant still loses: the Court of Appeal will pretend the missing findings are there anyway.

So the respondents in Nielsen v. MacPherson (D4d3 Oct. 8, 2021) 2021 WL 4704890 (no. G059758) (nonpub. opn.) must have been feeling pretty buoyant about their chances on appeal. The plaintiff-respondents had defeated an anti-SLAPP motion, and then obtained a rare award of attorneys' fees. Awards of fees against anti-SLAPP movants are only available where the anti-SLAPP motion is frivolous or filed to cause unnecessary delay. (Code Civ. Proc., § 425.16(c)(1).) No such finding was made here, but the respondents argued it should be inferred under the implied findings doctrine.

The Court of Appeal disagreed. The doctrine probably will only apply to the extent it is consistent with the trial court's reasoning. The Court of Appeal will be less inclined to deploy the doctrine to rewrite the trial court's decision.

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In a Rare Illustration of the Finding-Compelled-as-a-Matter-of-Law Standard of Review, Appellate Court Reverses a Defense Judgment

Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like a summary-judgment standard, in which the appellate court must be satisfied the plaintiff's evidence is so compelling that the plaintiff is entitled to a finding as a matter of law. This is a very difficult burden to overcome, and so it is rarely attempted, and even more rarely met.

But the plaintiff met the high finding-compelled-as-a-matter-of-law standard in King v. May-Wesely (D5 Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).
This almost never happens.

If you are the successful defendant responding to the plaintiff's appeal, keep the finding-compelled-as-a-matter-of-law standard in mind. Unsuccessful plaintiffs sometimes think the substantial-evidence standard of review applies. But as the authorities indicate, this is not only incorrect, it is misleading. It is not enough for the plaintiff to point to the defendant's evidence as insubstantial: the plaintiff must show it met its burden by uncontradicted and unimpeached evidence.

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"Success Is Perception": Lee Goldberg on Effective Representation

Clients want success. But: What is success?

Outside general counsel Lee Goldberg tells Jeff Lewis and me what this means for the businesses he represents. Success is perception, and effective counsel manages the client's perceptions. Lee concludes by observing that the successful attorney is successful through communication, not by being the hero who swoops in and solves everything.

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Courts Allow You to Appear on Zoom Without Jacket and Tie: But Should You?

The Los Angeles Superior Court has relaxed its dress code for attorneys making virtual court appearances, and need not wear jacket or tie. Orange County Deputy District Attorney Kelly Ernby discusses the new rule with Jeff Lewis and me, and we all agree: Just because the rule has changed does not mean the judges' expectations have changed.

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Order Denying Motion to Vacate Held Appealable "Under the Circumstances"

Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on.

That is how the court answered the question whether an order denying a motion to vacate a conservator's final account in Hudson v. Foster (D2d5 Sep. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4059808.

The large number of exceptions to the nonappealability of orders denying motions to vacate undermines the notion that appealability is jurisdictional. Perhaps the Supreme Court or the legislature should consider offering clarification.

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The First Virtual Argument in the California Supreme Court

What was it like to give the first virtual oral argument in the California Supreme Court? Orange County Deputy District Attorney Kelly Ernby tells appellate attorneys Jeff Lewis and Tim Kowal what that experience was like.

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Move-Out Order Held Automatically Stayed on Appeal, But Sale Order Required a Bond, And Stipulation Mooted Appeal

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

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List the Wrong Order in Your Notice of Appeal? No Problem, Appellate Court Says

Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline.

But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time, the Second District held in Bennett v. Rivers (D2d3 Oct. 6, 2021) 2021 WL 4583844 (no. B301211) (nonpub. opn.), the rule of liberality is very forgiving.

The respondent missed a trick here by not serving a notice of entry of the appealable order. That would have set up the 60-day deadline to appeal. Here, the appellant waited to appeal from a subsequent (and non-appealable) order. He was forgiven for appealing from the wrong order, but he would not have been forgiven for blowing the 60-day deadline — if only the respondent had set it up.

That is why it is important to spot the appealable orders early on. If you are unsure, consider consulting an appellate attorney.

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How Does a Client Measure Success? Our Conversation with Outside General Counsel Lee Goldberg

Lee Goldberg joins Jeff Lewis and me for a discussion about his perspective on litigation as outside general counsel for his business clients. Lee shares his three decades of experience using litigators to solve business problems, and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn (available at his website CalLawyers.com), and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:
•On litigation objectives: " My client is never principle over business. Ever."
•On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
•On hiring the right litigation team: "Local, smaller, dedicated, smart counsel is what I look for."
•On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever."
•On success: "The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Would love to hear your perspectives.

Listen to the episode here: https://lnkd.in/gsteHnG8

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

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Checking the Wrong Box on Notice of Appeal Is Not Fatal (But Why Risk It?)

I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your notice of appeal. (This is something attorneys do not like having to explain to their clients.)

Both of these points are confirmed in *Fang v. Shao* (D4d2 Oct. 8, 2021) 2021 WL 4704892 (no. E073065) (nonpub. opn.). The appellant appealed from a judgment, but checked the box saying she was appealing from an order after a judgment. The respondent pounced on the technical defect. The court found the notice of appeal was sufficient under the liberality doctrine.

But is there any reason to continue using the Judicial Council form notice of appeal? While you have the doctrine of liberality going for you, the form only gives the court reasons to construe your notice more narrowly. It is an optional form, but I am not aware of any upside of the option. To any attorneys interested, I am happy to email you my basic notice of appeal template on request: tkowal@tvalaw.com.

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Would a Defendant Rather Be Sued by One DA, or 58 of Them?

Would a defendant rather be sued by one District Attorney, or 58 of them? Orange County Deputy District Attorney Kelly Ernby sued pharmaceutical company Abbott Laboratories for improperly delaying the release of the generic version of a drug. Surprisingly, the defendant argued the claim could not be brought by a single DA. (The Supreme Court disagreed.) Kelly tells Jeff Lewis and me that, had the defendant gotten its way, it might have led to a more complex and costly multi-district litigation. This downside to the strategy perhaps was not fully considered by the defense in this case.

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False Declaration Signed Under Pressure Does Not Create a Triable Issue

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549). After the defendant filed a motion for summary judgment, the plaintiff's attorney pressured a witness to sign a declaration. Based on that declaration, the court denied the motion. But a later deposition revealed nothing about the declaration was true, and that the witness signed it just to get the attorney to leave her place of employment to avoid trouble.

I was surprised to find the court offered no admonition against the conduct of plaintiff's counsel. What counsel did here seems to me very close to suborning perjury. True, the case is not over, and the trial court will have the opportunity to make whatever admonitions are appropriate. But then again, the indulgent trial court would have credited the false declaration — even after the evidence showed it was false — had the Court of Appeal not stepped in. I think a word about ethics was called for here.

Does this surprise you, Donald Patrick Eckler, DAN COTTER, Kansas Gooden, Lindsey Lawton?

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Court Suggests, Surprisingly, That Summary Adjudication Order Could Be Appealable As Collateral Order (But Just Not in This Case)

Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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Should You Use ("Cleaned Up") to Clean Up Messy Quotations in Your Legal Brief? No, Answers an Appellate Court Research Attorney

Attorneys, you might have heard about "cleaning up" case quotations in your briefs. When you have a quote with a lot of internal quotations marks and ellipses and unsightly square brackets, several appellate courts — including the US Supreme Court — have used the parenthetical ("cleaned up") following a citation to signal the removal of these unnecessary symbols. But, is it licit for us attorneys to use ("cleaned up") for ourselves?

Absolutely not, says Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana). Jeff tells Jeff Lewis and me on the California Appellate Law Podcast that if the court sees attorney turning in any quotations with any material removed from them, the court is going to check it out. So using ("cleaned up") is only going to arouse suspicion, and is not doing the court any favors.

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Sale of Property Rendered Appeal Moot; Bond and Stay Were Required to Preserve the Appeal

It is not enough to appeal your case. You have to keep your case alive until the Court of Appeal has a chance to get to it.

That is the lesson of Badea-Mic v. Detres (D3 Nov. 23, 2020) **no. C085459 (nonpub. opn.). The appellant appealed an order authorizing the sale of the property, but the property was sold to a third party before the appeal concluded. Thus, the appeal was moot.

In fairness, the appellant did seek a stay in the trial court, which was the right move. But when the trial court denied that stay, the appellant waited too long to seek a writ of supersedeas (the appellate court's fancy word for stay) in the Court of Appeal. In this case, she had only four days to seek supersedeas before escrow closed. A good reason to have appellate counsel at the ready!

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How a Motion to Strike Changed California Law

Orange County Deputy District Attorney Kelly Ernby won a landmark California Supreme Court decision in Abbott Laboratories v. Superior Court. She tells Jeff Lewis and me that it came about when, surprisingly, the pharmaceutical […]

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Flout Court Orders, Get Your Appeal Dismissed — But Appellate Court Offers a Second Chance

There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as a judgment for purposes of Code of Civil Procedure section 904.1(a)(1). That is, not only is the collateral order appealable, but orders following it are appealable too under section 904.1(a)(2). (This is a sensible rule, it is just not very well-supported in the statute.)

The second reason I am surprised the court published this opinion on the disentitlement doctrine — i.e., dismissal of an appeal — is because the appellant's disregard and contempt for the lower court's orders was so brazen, and the grounds for disentitlement so clear, that I fear this opinion might mislead readers. In fact, much less egregious violations than the ones in this case — much, much less — may warrant disentitlement.

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"Notice of Ruling"​ ≠ "Notice of Entry"​ When Calculating the Extension of Time to File Attorney Fee Motion or Appeal After Denial of New Trial Motion

Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion?
a. 30 days
b. 60 days after notice of entry of judgment
c. 180 days after entry of judgment
d. It depends on how order denying the new trial motion was served.

If you answered "it depends" then you are correct, as helpfully explained in Gallop v. Duval (D2d2 Sep. 2, 2021) 2021 WL 4077847 no. B308531 (nonpub. opn.).

Closely following rule 8.108, the court noted that the new trial denial order was not served. A notice of entry was not served. The denial was not by operation of law. By process of elimination, the time to appeal was extended to 180 days after entry of the November judgment. The February motion was timely, so the trial court's denial of attorney fee motion as untimely had to be reversed.

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The Risks of Serving Too Many Interrogatories

CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories".

The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). And a bonus appellate tip.

The CEB article is available here: https://lnkd.in/gCx62BwX.

My original article is here: https://lnkd.in/g4xJfid7.

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Why are CA Appellate Opinions Unpublished Anyway?

"I found the perfect case! The facts are on point, the law is on point...but goddammit it's UNPUBLISHED!" If you are a litigation attorney this undoubtedly has happened to you. But why this confounded Rule of Court 8.1115 against citing unpublished opinions?

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), explains the reasons to appellate attorneys Jeff Lewis and Tim Kowal on the California Appellate Law Podcast. To the point that making everything citable would be administratively cumbersome, Tim thinks this is a "you problem," and that litigants are entitled to true judicial opinions rather than the equivalent of decisions by private judges.

The three attorneys also discuss how adjustments to stare decisis models (horizontal vs. vertical) might help.

What do you think?

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Need More Discovery to Oppose Summary Judgment? Use These Magic Words...

When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it might exist is critically important. And all that is required is an affidavit under Code of Civil Procedure section 437c(h), so why not file one?

But some courts may scrutinize this affidavit, as we are reminded in Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.). The plaintiff in that employment-discrimination case opposed summary judgment by filing an affidavit explaining she needed to take the deposition of the person most qualified about the employer's reorganization policy that led to the plaintiff's termination. Seems like a sound approach. But while section 437c(h) does not require much more specificity, some cases interpreting it do, and require the opposing party to state the "particular essential facts that may exist."

The plaintiff didn't include those magic words in her affidavit. So discovery denied, summary judgment granted, and affirmed on appeal.

(I offer a critical comment in the article, and would be interested to know your thoughts about it.)

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Oral Argument in the California Supreme Court During Covid: Our Interview With Kelly Ernby

What was it like to give the first virtual oral argument in the California Supreme Court? And how did the Orange County District Attorney's office create a new legal precedent in California that effectively allows local district attorneys to pursue statewide enforcement actions?

Kelly Ernby of the Orange County District Attorney's office tells Jeff Lewis and me about her experience litigating Abbott Laboratories v. Superior Court in the California Supreme Court. The pharmaceutical company, accused of delaying the generic release of a drug to prop up prices, make a strategic miscalculation by raising statewide enforcement via demurrer. While it was not clear statewide remedies were available when the case was filed, it is now. It is an important lesson in being careful what you wish for.

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$1 Billion LA Homelessness Injunction Reversed by 9th Circuit: Judge's Independent Factual Investigation Was Improper

Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial courts are given wide discretion in issuing preliminary injunctions, the Ninth Circuit in LA Alliance for Human Rights v. County of Los Angeles, ___ F.4th ___ (2021) 2021 WL 431791, thought this was coloring rather far outside the lines.

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Ruling Excluding Expert Testimony on MSJ Reversed on Appeal

There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might have avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo standard of review, rather than the deferential abuse of discretion standard.

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Economic Protectionism Is Not a Legally Cognizable Interest

Rarely does it give such satisfaction to report the dismissal of an appeal. A group of businesses who had benefited from local protectionism — which had prevented newer businesses from competing with the incumbents — were dismayed when the trial court struck down the protectionist scheme as unconstitutional. Though the incumbents were not parties to the lawsuit, they appealed the ruling anyway.

Held: The non-party incumbent businesses had no legal right to challenge the dismantling of the protectionist laws that had benefited them. Robert Taft Jr. v. Vargas (D4d2 Sept. 17, 2021) 2021 WL 4237140 no. E076173 (nonpub. opn.).

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Collateral Orders Denying Fees Are Not Now, Not Ever, Never Appealable (But Some Courts Disagree)

One exception to the normal rules of appealability is the collateral order. One example of a collateral order is in the relatively rare published order (in contrast to an opinion) dismissing the appeal in Dr. V Products v. Rey (D2d5 Sep. 8, 2021) 2021 WL 4129463 no. B312605. The collateral order there is an order denying a motion for attorney fees following dismissal of a misappropriation claim, which claim allegedly was filed in bad faith, thus entitling the prevailing defendant to fees under Civil Code 3426.4.

The order denying fees was collateral to the merits. And it was final. But still, the Second District Court of Appeal held — and rather unequivocally — that the order was not appealable as a collateral order.

Why? Because the order, though final and collateral, did not order the payment of money or performance of an act. And that is a necessary element in making a collateral order appealable.

Except, that is, in courts subscribing to the minority view.

(I happen to agree with the minority view. And unless you are in an appellate district that clearly has staked out its support for the majority view, you probably should assume your final collateral orders are appealable.)

Thanks to Alana Rotter for sharing this case.

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Do Appellate Justices Ever Unpublish Opinions Strategically?

Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that it never happened that he saw during his three decades at the Court of Appeal at the Fourth District, Division Three (Santa Ana).

What do you think?

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MSJ Affirmed on New Ground on Appeal; Request for Continuance Denied Because Not Supported by Declaration

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

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Award of Fees Summarily Reversed on Appeal

You probably have heard of appeals being dismissed on procedural grounds, or as frivolous. But you could practice law rather a long time and never hear of an order being summarily REVERSED **on appeal. But that is what happened in the improbably titled case IAHLDHFAPIMP_PAP, LLC v. Noll (D4d1 Aug. 11, 2021) no. D077727 (nonpub. opn.)

But don't get too excited. The appeal was from an award of attorneys' fees following a judgment. The underlying judgment recently got reversed in a separate appeal. No judgment, no right to fees. There was no point in going forward with the appeal.

Still, the concept of a summary reversal is a curious one, for reasons I discuss more in the article.

Thanks to Ben Shatz for mentioning this case. (https://lnkd.in/g4GcQ_Qc.)

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Why Do California Appellate Judges Go Easier on Trial Courts?

Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to be more deferential than is the 9th Circuit.

What do you think?

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A Discussion on Why Trial Attorneys Should Know a Good Appellate Attorney, and Legal Marketing: Tim Kowal on the Lawyer Business Advantage Podcast

Attorney business coach Alay Yajnik was kind enough to invite me onto his podcast, the Lawyer Business Advantage, to discuss how an appellate attorney can help trial attorneys win and add value to the services they provide clients, telling clients appreciate hearing why the attorney cares about the case rather than just how much the attorney will cost, and then moving on to a discussion about publishing legal content.

Listen online at Alay Yajnik's podcast website, Lawyer Business Advantage, which also has a nice summary of the conversation.

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Renewed Restraining Order Affirmed on Appeal; Appellant Forfeited Challenge by Failing to Describe All Evidence Supporting the Order

In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review on the factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a forfeiture of the issues on the appeal in Ashby v. Ashby (D4d3 Aug. 5, 2021) 2021 WL 3413092 no. G058474 (nonpub. opn.).

Reviewing a renewal of a DVRO, the court analyzed the Ritchie factors and found that findings supporting the original DVRO, a key point of the analysis, were not properly captured in the appellant's brief. So the issue was forfeited. Order affirmed.

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Does the Court of Appeal Take Note of How Many Extensions Your Opponent Has Sought?

Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the number and length of extensions the parties request?

Answer: an emphatic No. Nope. Never. Not even a little.

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Cultural Differences in the Courts of Appeal

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy but on the architecture of the courthouse: are all the justices and staff attorneys on the same floor, or scattered about?

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"Frivolous"​ to Argue Appeal Prevents the Trial Court from Ruling on a Motion for Attorneys'​ Fees

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (i.e., matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding the prevailing party's attorneys' fees?

Answer: No. In fact, the First District Court of Appeal recently called this a frivolous argument in Korchemny v. Piterman (D1d2 Aug. 27, 2021) 2021 WL 3828228, no. A155483 (nonpub. opn.).

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Supreme Court Directs Appellate Court to Show Cause After Summarily Denying Writ Petition

You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted.

Promptly after the assignment of a judge who was potentially biased against him, the petitioner in Ionescu v. Superior Court (Contra Costa) (D1d3 Aug. 26, 2021) 2021 WL 3782724 (nonpub. opn.) made a challenge for cause under Code of Civil Procedure section 170.1. The judge rejected the petitioner's challenge out of hand as untimely, but on grounds that were pretty clearly faulty.

A writ petition in the Court of Appeal was summarily denied. But the Supreme Court granted a petition for review, and transferred the matter back to the Court of Appeal with directions to vacate its summary denial and to issue an order to show cause why relief should not be granted. The Court of Appeal ultimately issued the writ in favor of the petitioner.

Writ petitions are processed very quickly, which can increase the chances the Court of Appeal could get it wrong. If you have a righteous writ petition, be prepared to seek review in the Supreme Court immediately. As this case illustrates, these things can get turned around.

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Why Not to Wait to File an Appellate Writ

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, talks to appellate attorneys Jeff Lewis and me about the inner workings of the writ panel at the court. While technically you may have 60 days to file your writ, Jeff explains why your writ is more likely to be denied if it is filed close to the deadline.

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The Court of Appeal Is "A Think A Tank with Consequences"

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, tells Jeff Lewis and me what it is like working at an appellate court ("like a monastery," in a good way). In this clip from the show, Jeff describes the court as "a think tank with consequences."

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Trial Court May Not Reconsider Final Judgments, and the New Evidence, Even Though Compelling, Must Be Truly "New"

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look.

But in the case of a final judgment having been entered, the trial court might not even have jurisdiction to entertain a motion for reconsideration. That is what the Fourth District Court of Appeal concluded in Espinoza v. Ponce (D4d1 Aug. 18, 2021) 2021 WL 3645535 no. D078096 (nonpub. opn.).

The Fourth District Court of Appeal appears to join a number of districts holding trial courts lacks jurisdiction to consider final orders and judgments — reconsideration only applies to interim orders.

And even compelling "new" evidence will not be considered if it is not presented timely. There are worse things than the occasional loss of possibly meritorious cases due to procedural or attorney errors: "'Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ....’ [Citations.]” (People v. DeLouize (2004) 32 Cal.4th 1223, 1232.)

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Trial Court Has No Discretion to Consider an Untimely (by Three Years!) Anti-SLAPP Motion, Appellate Court Holds

Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.).

But the statute says anti-SLAPP motions must be filed within 60 days of service of the complaint, and the defendant did not seek leave of court to file a later motion. The Fourth District Court of Appeal held leave must be granted before a late SLAPP motion is filed. The trial court apparently excused the untimeliness and instead denied the SLAPP motion on the merits. This was improper.

But even had leave been sought here, three years was well beyond the court's discretion to excuse: "None of the salutary purposes of the anti-SLAPP statute has been advanced by the motion, while the statute's potential abuse has been realized. Under these circumstances, the trial court could have exercised its discretion only by denying MCWE's anti-SLAPP motion as untimely."

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Exclusion of Expert Data Affirmed on Appeal; But Exlusion of Expert Opinion Based on That Data Reversed

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion may be an abuse of discretion.

That is the holding of the published opinion in Zuniga v. Alexandria Care Center, LLC (D2d7 Aug. 13, 2021) 2021 WL 3579021 no. B297023. In an employee's PAGA claim, the employee-plaintiff retained two experts. One expert was retained to convert the employer's time records into an Excel spreadsheet. The second expert was retained to opine on the spreadsheet. It was an abuse of discretion to exclude the second expert's opinion merely because it was based on the first expert's excluded report.

And trial counsel may have acted shrewdly in resting her case after the devastating ruling without offering other evidence, as it made it very easy to establish the ruling prejudiced her case.

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What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and me about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts.

Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with my proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

Listen to the episode here: https://lnkd.in/gC2hWQJX

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Although Contempt Orders May Not Be Appealed, Fee Awards on a Contempt Order Are Appealable

An order of contempt is not directly appealable. It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order. The right to appeal is statutory, and the statutory limits, as we have seen, are an absolute jurisdictional bar to appellate review.

But the Sixth District Court of Appeal recently held (in an unpublished opinion) that contempt cost orders are appealable anyway in C.H. Reynolds Electric, Inc. v. Powers (D6 Aug. 24, 2021) no. H046554 (nonpub. opn.).

So count this as one more exception to the absolute, iron-clad, fuggedaboutit rule of appellate jurisdiction.

And the court went on to afirm anyway, making the deviation seem even more wanton.

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Attorney Committed Misconduct by Arguing Facts Outside the Record, Appellate Court Holds

Closing argument at a jury trial are a minefield for potential misconduct. A couple of varieties of misconduct are on display in the published opinion of Jackson v. Park (D2d7 Jul. 27, 2021) 281 Cal.Rptr.3d 634, involving an injury during an auto accident. Defense counsel, capitalizing on an in limine order excluding evidence of blood alcohol content, boldly announced there was "no evidence" of drunk driving. Defense counsel also told the jury the plaintiff had failed to disclose plaintiff's doctor and other witnesses during discovery and the defendant had to "track her down." When the judge admonished counsel to stop because this was not in the record, counsel argued with the judge, in front of the jury, stating it was stated during deposition.

When the jury returned a verdict largely in favor of defendant (defense counsel urged that an award of $15,000 was about right, and the jury awarded $17,000), plaintiff moved for new trial. The judge, noting the evidence made the case a "close call," ruled the misconduct tipped the scales in favor of the defendant, and so granted the new trial.

Calling counsel's misconduct a form of "litigation subterfuge," the Second District Court of Appeal affirmed.

Important tips for closing argument:
• Do not argue exclusion of evidence proves the evidence does not exist
• Do not mischaracterize court rulings
• Do not argue facts not in the record (even if they are true!)
• Do not argue with the judge in front of the jury

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Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says

There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility.

Bonus Appellate Tip: Carefully consider your requests for sanctions. If you win a discovery dispute and are awarded sanctions over $5,000, your order is now immediately appealable. Which, in this case, reversed the discovery victory.

Tip: This dispute would not have been immediately reviewable on appeal had the successful movant not sought monetary sanctions. Consider carefully whether to seek discovery sanctions.

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Appellate Briefing Fail: Large Sections Disregarded, and Entire Reply Brief Forfeited, for Failure to Provide Citations and Headings

They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support each point by argument and, if possible, by citation of authority."

Sure, it is poor form not to include all that. But really, what's the worst that can happen if you slip up a bit on these particulars?

You will find out in The Villas v. Westpark Corte Bella Comm. Assoc. (D4d3 Aug. 12, 2021) no. G059577 (nonpub. opn.).

In sum, for failing to comply with Rules of Court rule 8.204(a) and other briefing defects:
•The court disregarded the parts of the brief that lacked record citations in violation of rule 8.204(a)(1)(C).
•The new arguments in the reply brief not raised in the opening brief were forfeited and not considered.
•All the rest of the arguments made in the appellant's reply brief were forfeited, and not considered.

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Are Injunctions Stayed on Appeal? Cal. Supreme Court Says Issue Is "Ripe for Reexamination"

The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal?

When the Board of Supervisors of San Bernardino violated open-meeting requirements in removing and replacing one of its members, the challenger and a citizen group filed suit and obtained an injunction requiring the Board to rescind the appointment and seat a replacement pursuant to the county charter.

But the Board was not done yet. Hoping to keep the incumbent in office long enough for the upcoming election (see this interesting coverage), the Board appealed, and under Code of Civil Procedure section 916, an appeal automatically stays the order on appeal. But the Court of Appeal denied the Board's petition for supersedeas to effect the stay.

The Supreme Court reversed. And its opinion is a letter to the state legislature to reconsider the appellate stay law.

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What's the Difference Between a Trial Attorney and an Appellate Attorney?

Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys.

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So You Filed a Motion for New Trial to Reduce the Amount of the Judgment — But What If You Win?

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what happens when the judge, in ruling on a new trial motions, decides the jury's award was way too high and a remittitur (reduction of the award) is appropriate? How may the judge reduce the jury's award consistent with the plaintiff's right to a jury trial?

That is the situation that arose in Duncan v. Kihagi (D1d1 Aug. 9, 2021) no. A153521 (nonpub. opn.). Following trial in a slumlord lawsuit, the tenant received a verdict of $3.5 million (after a statutory trebling of damages). On the landlord's new trial motion, the judge agreed the verdict should be reduced to $2.7 million. The Court of Appeal explained the procedure for reducing jury verdicts, and even though the judge failed to follow that procedure completely, the court affirmed anyway.

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Do Appellate Judges Prefer Amicus Briefs for Policy Arguments?

After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read. Legal arguments? Or policy arguments?

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Failure to Exercise Discretion in Issuing a Stay of Enforcement of Judgment Is an Abuse of Discretion

In a recent case involving more than one case number, the defendant got an early victory in one case, and got an award of attorney fees. The trial court, however, did not like the idea of rewarding one party partway through a complex litigation, so it imposed a sua sponte stay of enforcement of that fee award.

That stay was reversed on appeal in Specialty Baking, Inc. v. Kohanbash (LASC App. Div. May 24, 2021) no. BV033347 (nonpub. opn.). While such a stay may be permissible, the court in making the discretionary ruling failed to consider the factors required under the operative statute. Failure to exercise discretion is an abuse of discretion.

Whenever the topic of stays and bonds come up, that is a good time to consult an appellate attorney.

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Amicus Briefs Are Being Filed in More Types of Cases Than Ever Before

Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases.

Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions are informed by a wide array of perspectives. Traditionally only constitutionally significant cases drew interest from policy groups, but now almost every type of case garners interest from these nonparties.

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Stipulations to Nonappealability Are Enforceable

Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable?

This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2 Aug. 4, 2021) no. B310067 (nonpub. opn.), and is answered in the negative. After discussing the case, I explain why I think the result is both unsupported and incorrect.

If there is any lesson to be offered here, perhaps it is to avoid stipulating to non-appealability. A stipulated judgment is not appealable anyway. There is such a thing as overdoing it.

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Following Demurrer Ruling, Plaintiff Voluntary Dismisses Claims to Expedite Appeal, but Dismisses Without Prejudice: Appeal Dismissed

Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case, yet evade direct appellate review.

There are strategies available to get direct appellate review of certain interlocutory orders. But they should be used with caution.

In the racial discrimination case of Brown v. Arizona Diamondbacks (D3 Aug. 9, 2021) no. C091629 (nonpub. opn.), the trial court sustained the Diamondbacks' demurrer to the plaintiff's claim for racial harassment. Rather than amend, the plaintiff voluntarily dismissed his claims to expedite the appeal. This strategy was sound – or would have been, had he dismissed with prejudice. But he dismissed without prejudice. That was his undoing. His appeal of the demurrer ruling was dismissed.

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There Are Few Things That Annoy Appellate Judges More Than Repetitive Amicus Briefs

Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have already said.

Offer a new perspective, or a policy argument, or even a "Brandeis brief" stocked with citations to social science papers. But whatever you do, do not be repetitive.

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Judge Bacharach on Remote Proceedings as Access to Justice

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system.

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Are Denials of New Trial Motions Appealable or Not?

Answer: Denials of new trial motions are not appealable.

But these things are never quite that simple, are they?
Here are a few buts:
1.Denials of new trial motions are reviewable on appeal.
2.Orders that only partially deny a new trial motion are appealable.
3.Orders denying statutory motions to vacate and set aside a judgment (e.g., Code Civ. Proc., §§ 473, 663) are appealable. In the article, I offer a strategic consideration in choosing between filing a motion for new trial or a motion to vacate and set aside the judgment.

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A Writ Petition Summarily Denied May Be Raised Again Later

Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the court summarily denied the writ petition. Later, the court realized writ review was appropriate, and so treated the appeal as a writ.

The procedural curiosity probably came to nothing – the appeal-turned-writ was unsuccessful anyway – but it underscores how difficult it can be to get a writ petition off on the right foot.

The case prompts one to ask: How many other writ petitions that are legitimately worthy of writ review are getting waste-binned during the court's rushed initial review?

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When Oral Argument Changes Minds (part 2)

What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears.

For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer.

Or your brief raised too many arguments and confused the reader, and oral argument may allow you to focus on your best argument.

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Cal.App.Law Podcast Ep. 14: Circuit Splits, Amicus Briefs and Interview with John Reeves

Appellate attorney John Reeves joins Jeff Lewis and me on the California Appellate Law Podcast to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici.

John M. Reeves, Tim and Jeff also discuss amicus briefs, when you should consider soliciting amicus briefs in your appeals, what kinds of arguments are best suited to amicus briefs, and other aspects about practicing appellate law.

Listen to the episode here: https://lnkd.in/g6gbS_a

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Motion to Dismiss Appeal Denied? Give It Another Shot in the Merits Briefing

I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief?

The answer is: You may re-argue your motion to dismiss in your respondent's brief. And, as was the case in Casey v. Sacramento Public Law Library (D3 Jul. 12, 2021) no. C089936 (nonpub. opn.), the court may re-deny your motion.

But even though you may raise your motion to dismiss again in your merits briefing, should you? Or will you just annoy the court? You might consider having an appellate attorney review your motion first.

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When Oral Argument Changes Minds (part 1)

Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned authorship.

Despite this, however, Judge Bacharach has changed his mind many times based on oral argument, and once even wrote two separate opinions, one to affirm, and the other to reverse!

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The Under-Utilized Table of Contents: Judge Bacharach on Legal Writing

You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.

The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.

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Defective Appeal Results in Loss of Entire Case to Five-Year Rule

One of the first questions an appellate attorney tries to answer is whether there is an appealable order. It is pretty obvious why this is important: if the order is not appealable, your appeal will lose.

But have you also considered: if you appeal from a nonappealable order, your entire case might lose?

That is what happened in Villegas v. Six Flags Entertainment Corporation (D2d4 Jun. 29, 2021) no. B295352 (nonpub. opn.). The appellants appealed from the denial of their class certification motion. These normally are appealable under the "death knell" doctrine, because it effectively kills the class action.

But it was not appealable here, and the appeal was dismissed. By the time it was dismissed, the five-year statute had run and the plaintiff-appellants had not brought their case to trial. Case dismissed.

Takeaway: It can be difficult to predict the problems that can arise from appealing a nonappealable order. In this case, at least, it certainly would have been worth consulting an appellate attorney before filing the notice of appeal.

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"Throat-Clearing" and Soft Sentence Openers: Judge Bacharach on Legal Writing

Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.

I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”

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Statement of Decision Missteps in Three Recent Appeals

Did you request a statement of decision?

Did you object to the proposed statement of decision?

These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, or even when a statement of decision has been issued, by failing to object to omissions or defects to give the trial court the opportunity to correct them.

By failing any of the procedural steps in perfecting the record on the statement of decision, the deadline "implied findings" doctrine will be invoked, by which the Court of Appeal will simply infer that the trial court quietly implied any and all findings needed to affirm the judgment. That doctrine almost guarantees affirmance.

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Angelina Jolie's Writ Petition Granted to Disqualify Judge for Appearance of Bias

Angelina Jolie and Brad Pitt went the route of hiring a pro tem judge for their family law case. After years of litigating child custody issues (one child is now 18), Jolie discovered their pro tem judge was working on more cases with Pitt's attorneys than previously disclosed. Getting the feeling she was the third wheel in the courtroom, Jolie filed a statement of disqualification.

Although the Superior Court rejected Jolie's objection, in a published opinion in Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958, the Court of Appeal granted Jolie's writ petition. The pro tem judge had failed to disclose all of his appointments on Pitt's lawyers' cases, and the judge's work on those cases, in context with his failure to timely disclose it, created the appearance of impropriety requiring disqualification.

Justice Segal wrote a concurring opinion forcefully calling the Judicial Council to end the practice of allowing pro tem judges to accept private payment, noting that, until 30 years ago, it was not only disallowed, it was criminal: "But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea."

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Christopher Melcher has a nice video explainer on the case here: https://lnkd.in/gbFQz2j.

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Differences of Typographical Opinion

Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.

Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?

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Lawsuit Against Judge in Disney Estate Case, Dismissed by District Court, Held Moot by 9th Circuit Because Judge Reassigned Himself

In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his inheritance and won a court declaration of his mental competence. He entered into a settlement agreement to pay his trustees $14.5 million to step down.

But Judge Cowan refused to approve the settlement. Judge Cowan stated: "Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”

The court did state it found Judge Cowan's comment "troubling." "But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge's official duties." This includes even actions made with “malice or corruption of motive.” Forrester, 484 U.S. at 227.

In the article, I offer some of my thoughts on the strange American impulse to expand the privileges of the sovereign, and the sad state of our probate court system.

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Choose Your Appellate Issues Wisely: Appeal Rejected Because Most Issues Were Forfeited or Improperly Briefed

Specifically, most of the appellants' arguments here were rejected as forfeited. The court also disregarded challenges because the appellants' briefing improperly cited to postjudgment matter in the appellate record in their challenge of the judgment.

The upshot is that great care must be given to the selection of issues on appeal, and whether they are property supported and preserved. Consulting an appellate attorney prior to trial and on appeal may prevent against findings of waiver and forfeiture on appeal.

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Rare Reversal of Probate Judgment for Lack of Substantial Evidence

A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.

But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).

The attorney-appellant, serving as trustee, took money from the estate to pay fees owed individually by his beneficiary client. When the court (correctly) surcharged him for that, the appellant went back to his client demanding she pay up. She refused, so the appellant sued. But the court denied his fees, reasoning his prior invoices showed the fees had been paid in full.

Reversing, the Court of Appeal reasoned the fee obligation was obviously unpaid. The invoices showing payment barely merited a "come on, man."

The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)

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Choosing the Right Verdict Forms for Your Case

Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.

A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.

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Have you Noticed a Decline in Civility?

Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.

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Appellant Disobeyed Injunction, Incorrectly Believing Her Appeal Stayed It; Appeal Dismissed

Did you know that, when you appeal a mandatory preliminary injunction, the injunction is automatically stayed? An appeal in that instance can be very powerful.

But when is an injunction truly mandatory? Whether an appeal is mandatory or prohibitory can be very tricky to determine. Getting it wrong can be devastating, as the appellant learned in Chanin v. Community Rebuild Partners (D2d5 Apr. 23, 2021) no. B299188 (nonpub. opn.).

The Second District Court of Appeal disagreed that the injunction was mandatory in nature, and concluded the appellant was trying to take advantage of a status quo favorable to her. And because the appellant did not bother to test the proposition in a motion to stay in the trial court, or a petition for writ of supersedeas in the Court of Appeal, the court concluded her failure to comply with the injunction amounted to a willful disobedience giving rise to disentitlement of her right to appeal.

This case is a surprising application of the disentitlement doctrine, because the appellant's conduct was supported by fairly strong legal propositions: (1) on its face, the injunction did appear to be mandatory and thus stayed; (2) the automatic stay does not require the appellant to seek court orders to effect the stay; and (3) the injunction failed a key statutory requirement that it require the moving party to post a bond, and was thus invalid as a matter of law. But the Court of Appeal dismissed the appeal anyway.

The lesson: If an automatic appellate stay seems too good to be true, it might be.

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Pop Culture References and "Too Artful" Advocacy

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

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Appellate Court Acknowledges "The Rules Governing the Timeliness of an Appeal Are Complex"​; Appeal Dismissed

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. There are endless confounders in deciding when and what to appeal. A few of them arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

1. No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.

2. Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The Upshot: Originally, the plaintiff had a very sound appellate challenge. But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

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$1 Million Cost Denial Reversed on Appeal for Failure to Exercise Discretion

A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure.

After four years of litigation in City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), the city eventually dismissed the case, and the contractor sought nearly $1.1 million in costs for electronic discovery. The trial court denied them all, and the contractor appealed.

After an interesting discussion on the appealability of the cost order, the Court of Appeal noted the trial court's statements on the record were ambiguous whether it misunderstood the scope of its authority, or whether it was exercising discretion. But the court ultimately held the trial court misunderstood its authority and thus committed reversible error. What convinced the Court of Appeal the trial court had erred on the law? "Although it is a close question in this case," the court noted, "given the City's [incorrect] primary argument that the costs ... are never recoverable ... we cannot presume the trial court understood the extent of its discretion...."

Takeaway: If you manage to persuade the trial court of your legal proposition, why not ask the trial court to exercise its discretion in your favor as well, just to be safe? Had the trial court also based its ruling on its discretion, the outcome likely would have been much different.

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Why Don't Appellate Judges Ask More Questions?

Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?

Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.

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Family Judge's Refusal to Consider a Pre-Dissolution Mental Evaluation Is an Abuse of Discretion

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination."

Despite repeated objections by the wife that the husband's recent life-threatening injuries had caused a behavioral change and mental disturbance affecting his capacity, the family judge in In re Marriage of Hermes (D4d3 Jun. 16, 2021) no. G058623 (nonpub. opn.) had credited the husband's attorney's improvident view that the family court does not need to determine capacity issues.

In fact, yes, the family court does need to adjudicate claims of mental capacity.

In the trial court, there is much to be said for the Al Davis rule: "Just win, baby." But leading the trial court to misunderstand its legal obligations should be regarded an exception to that rule.

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Do Curative Instructions Cure Anything?

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

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Appeal of Excessive Damages Rejected Because Not First Raised in New Trial Motion

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The court held the appellant forfeited any challenge to defects in the statement of decision by failing to object in the trial court, and forfeited the arguments that the award was excessive because it was not raised in a motion for new trial.

The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

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What Science Says About Crafting Persuasive Sentences: Judge Bacharach on Legal Writing

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

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$3.5MM Emotional Distress Verdict Reduced on Appeal as Influenced by Improper Closing Argument

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in Briley v. City of West Covina (D2d4 Jul. 1, 2021) no. B295666, 2021 WL 2708945, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors."[C]ounsel's attack on the integrity of opposing counsel during his rebuttal argument further suggests that the jury's noneconomic damages award rested on improper factors."

The result was a $1.5 million award was reduced to $100,000. (It probably would have been reduced even without counsel's improper argument.)

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Stupid Motions in Limine

Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?

Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."

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"Related"​ Appealable Orders May Be Reviewed Even If Appellant Fails to Appeal Them

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, and these can give a glimpse into how the justices and their research attorneys are struggling through the issues in the case.

I got this impression reading San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126. It involves an appeal that seems clearly moot, and from an order that seems clearly nonappealable. But the court for some reason did not want to dismiss the appeal on either of those grounds – and in so doing suggests a possible loophole in the appealability doctrine that may be larger than typically advertised.

The court also noted the appellant had put its toes right on the line of its duty of candor.

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Losing Your Reader with Acronyms: Judge Bacharach on Legal Writing

How do you use acronyms in your briefs?

Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is, you ruin the momentum of your argument.

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To Start the 60-Day Clock for Your Opponent to Appeal, You Must Include a Proof of Service with Your Notice of Entry

Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.

Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?

That is what happened in Smith v. Monk (D2d4 Jul. 6, 2021) no. B300975 (nonpub. opn.). Mother settled her unlawful detainer action against daughter, but later decided she still wanted her out. She accomplished this through an elder abuse restraining order.

Daughter's appeal, though unsuccessful, survived mother's challenges to timeliness. Mother failed to trigger the 60-day deadline to appeal because even though the order was personally served on daughter in court, and attached as an exhibit to a later filing, neither of these satisfies California Rules of Court, rule 8.104. The Notice of Entry or file-stamped copy of the order must be separately served and accompanied by a proof of service.

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When Does a Motion in Limine Preserve Trial Objections?

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

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Trial Judge's Incorrect Ruling on Evidence Leads to Reversal on Appeal

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling."

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Injured electricians sued Edison for negligence. The trial court granted summary judgment for Edison by excluding the plaintiffs' testimony.

This was an abuse of discretion. The evidence was based on personal knowledge, and it was relevant to a material fact. Reversed.

The upshot: Do not try to win a summary judgment motion by excluding the opposing party's evidence. Any victory by such means will likely be short-lived.

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"But" vs "However" Judge Bacharach on Legal Writing

Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021.

“Shareholders who are anxious,” not, “Anxiety among shareholders.”

That brought to mind Bryan Garner’s advice to avoid beginning sentences with “However,” which Garner thinks "too ponderous a word." Judge Bacharach agrees, preferring “But” over “However” to begin sentences.

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Appeal of Anti-SLAPP Ruling Does Not Stay the Rest of the Case from Going Forward

One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. But the automatic stay has many exceptions and limitations, many of which are illustrated in Wong v. Lee (D2d1 Jun. 29, 2021) no. B293892 (nonpub. opn.).

For one thing, if the appeal is invalid: no stay.

And if the appeal only affects one small part of the case: no stay.

(I wish the holding that the SLAPP appeal did not stay the proceedings were published: other cases are less clear on this.)

But these examples are only the tip of the iceberg of stays pending appeal. Trial attorneys can bring a lot of value to their clients by consulting an appellate attorney on these issues.

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Legal Writing Tip for the Day: Effective Sentences Are Short Sentences

Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong!

When Judge Bacharach visited Jeff Lewis and me on the California Appellate Law Podcast this month, I asked him about this setup: “The jury instructions are inconsistent. Literally.”

Question: Does this short sentence couplet fall on the side of persuasive, or glib?

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Should You Still Use "Passim" in Your Briefs?

MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/ datastore/uploads/guides/Shell_Brief.pdf.

Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now:

passim (lit., “throughout”) is used in citing an authority in a general way and indicates that the point at hand is treated throughout the work. It’s a fairly erudite citation signal—e.g.: “There is a curious reluctance on the author’s part to let go of linear frameworks—from ‘differentiation to integration’ (p. 13), ‘dependence to interdependence’ (p. 19), ‘childhood to maturity’ (p. 25), and on to ever-higher ‘states of consciousness’ (passim).” Michael Edwards, “Popular Development: Rethinking the Theory and Practice of Development,” J. Dev. Studies, Apr. 1997, at 581.

If you still use it, is there a reason? "MS Word put it there" might not be good enough anymore.

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Court Imposes $32,000 in Sanctions For Frivolous Appeal in Acrimonious Probate Dispute

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.

The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. (Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)

The Fourth District Court of Appeal concluded the appellants had forfeited all their arguments by failing to raise them in the trial court and by failing to include a proper statement of facts, supported by record citations, in their appellate brief. What sealed the deal for sanctions: in their opposition to the motion for sanctions, the appellants made their own (untimely) request for $4 million sanctions (based on a precluded issue). That did not sit well with the court.

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Preserving Trial Objections, and Alternative Takes on a Recent Appellate Contempt Citation: An Interview with Frank Lowrey on the Cal. Appellate Podcast ep. 13

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast.

Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections raised in the motion, while a deferred ruling (neither granting nor denying the motion) preserves nothing – meaning the trial attorney still needs to object to every instance of the offending matter.

Frank also notes that, in some jurisdictions, a curative instruction is presumes to cure any prejudice. This is the case in California, absent exceptional circumstances. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834 ["Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction."].) (One is reminded of the reaction of Dickens’s Mr. Bumble upon being informed the law presumed his wife acted under his direction: “If the law supposes that, the law is an ass — an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”)

Frank, Tim and Jeff also discussed the recent California Court of Appeal opinion previously discussed on this blog finding an attorney in contempt for accusations made in an appellate brief, and discuss whether the court’s admonition against challenging the courts might be somewhat overstated.

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Confusing Sentences Have No Readers: Judge Bacharach on Legal Writing

Judges are paid to read your briefs, but not paid to understand them! Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that poorly-crafted sentences are "poisonous to persuasion" because they "destroy the momentum of your argument."

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Legal writing tip for the week

You cannot persuade your reader if you tire out your reader. This was the overarching lesson I took from 10th Circuit Judge Robert Bacharach's new book, Legal Writing: A Judge's Perspective. Page 1: "Legal writing is typically read out of obligation."

Judge Bacharach joined Jeff Lewis and me on the California Appellate Law Podcast to talk about the importance of minding your audience in legal writing, crafting clear sentences, and showing civility. In this first clip, Judge Bacharach begins by urging counsel against personal attacks – the single most effective way to alienate your reader.

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Lawyer Lighting Rod Question: Do you use the "(cleaned up)" citation parenthetical in briefs?

Judge Robert Bacharach of the 10th Circuit tells TVA appellate attorney Tim Kowal he likes the new citation parenthetical "(cleaned up)", seen in some appellate opinions and briefs (recently in a SCOTUS decision), because excessive ellipses and internal quotation marks can be distracting to the reader.

But take care not to abuse it by omitting or altering material that could be consequential: do not improve readability at the cost of your credibility!

(Me, I still don't like it. Still won't use it.)

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Anti-Foreclosure Advocate Loses Appeal Due to Mootness After Bank Terminates Foreclosure Proceedings

As time passes in litigation, counsel should give a care to changes that may render their client's cases moot. This is particularly common when equitable relief is sought, such as injunctions. And it tends to be more common on appeal.

That is what happened in Brown v. U.S. Bank, N.A. (D5 May 4, 2021) no. F079568 (nonpub. opn.). Plaintiff sued to enjoin a foreclosure, lost, and appealed, but meanwhile the bank terminated foreclosure. Held: appeal of the injunction denial was moot, because the whole point was to stop the foreclosure, which was no longer in play.

In my experience, your mileage will vary greatly in establishing mootness, or an exception to mootness, depending on the circumstances of your case. So do not be misled by this case into thinking mootness is always a straightforward analysis.

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Is This Probate Order Appealable? Yes, But "It's Messy,"​ Says Appellate Court

When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)

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Do Not Confuse a "Notice of Ruling" with a "Notice of Entry"

If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure.

Harter v. Rancho Rios Homowners Assn. (D4d1 Jun. 17, 2021) no. D077119 (unpub.) rejected the respondent's arguments the appeal was untimely because a "notice of ruling" does not trigger the 60-day deadline to appeal under CRC 8.104, and serving a tentative ruling that became the final ruling does not trigger CRC 8.104, either.

Harter also confirmed that, although litigants are required to meet and confer before filing a demurrer, failing to do so is not a grounds for challenging the demurrer.

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Attorney Held in Contempt for a "Perfect Exemplar"​ of Impugning Integrity of the Court

I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them.

The recent published case from the Fourth District, Division Three, offers "a perfect exemplar ... to illustrate the phrase 'impugn[] the integrity of the court.'" (Salsbury Eng'g, Inc. v. Consol. Contracting Servs. (In re Mahoney) (D4d3 Jun. 10, 2021) no. G057832.)

Frustrated at his loss on appeal, attorney Mahoney decided to let 'er rip in a petition for rehearing. He accused the court of "judicial slight [sic] of hand," being influenced by the "political clout" of the Irvine Company, something to do with Tom Girardi – either resembling Girardi or condoning Girardi-like conduct; no time to clarify, Mahoney was rolling – and "indiscriminately screw[ing]" his client. Mahoney offered no legal argument. And then "doubled down" upon the court's OSC.

The court hit Mahoney with two contempt citations of $1,000 each: one for seemingly impugning the court's integrity, and the second for removing all doubt. (The decision was ordered forwarded to the State Bar as well.)

This commentator thinks the stoics had it right: "By nothing," Epictetus had it, "is the rational creature so distressed as by the irrational." In Mahoney's case, what seemed particularly distressing was the marked pointlessness and witlessness of Mahoney's insults.

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Hearsay Evidence Through Expert Witness Held Improper; Judgment Reversed

One important case that counsel preparing for a trial need to keep ready to hand is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise hearsay evidence through their experts.

That is what the plaintiff tried to do in the catastrophic injury case of Townsend v. Olivo (D4d2 Jun. 15, 2021) no. E073183 (non-pub.). The plaintiff suffered injuries that would lead to amputation of his leg. His expert witness testified to the $1.1 million in future medical costs. But the expert admitted he had no knowledge relating to these future procedures and prosthetic devices. He had spoken with others about the costs, however, and so testified about that.

The Fourth District Court of Appeal held this was error. The expert’s testimony about future medical expenses was inadmissible hearsay. The foundational facts were outside of the expert’s personal knowledge, and no other witness supplied them, so no hearsay exception applies.

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Understand the Difference Between a Presumption Affecting the Burden of Production and a Presumption Affecting the Burden of Proof

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof?

If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference, either.

A defendant moved to set aside a default judgment, submitting a declaration stating he never received the summons and complaint. The trial court held this did not overcome the legal presumption of receipt.

Reversed: That presumption, affecting only the burden of production, disappeared when the defendant submitted his declaration.

Presumptions affecting "the burden of producing evidence" are different from those affecting the "burden of proof." The former just tells you who has to get the ball rolling in terms of putting on evidence, but does not otherwise express any public policy about how the fact question should come out.

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The Science and Rhetoric of the Written Word: An Interview with Judge Robert Bacharach

Ever wondered what a federal appellate judge thinks of your legal writing? Judge Robert Bacharach of the Tenth Circuit Court of Appeals told Jeff Lewis and me on the California Appellate Law Podcast. Judge Bacharach just published a book titled, Legal Writing: A Judge's Perspective. Judge Bacharach would like you to know:

✎ Writing clearly keeps your readers fresh and alert.

✎ A reader you've burdened with complex sentences and lots of acronyms may be too worn out to be persuaded by your arguments. The judge is willing to go on the journey with you. If you want the judge to arrive at the same place as you, take the straight paths: don't wear out your judge.

✎ The table of contents helps your readers orient themselves to your arguments so they can understand them and then – and only then – be persuaded by them. Yet only half of litigants make use of this highly effective tool!

✎ Next time you consider starting a sentence with "However," try "But" instead.

✎ Why do so many attorneys still think impugning their colleagues and the court is anything other than self-defeating?

✎ Beware of inserting humor and pop culture references into your briefs. Some federal judges employ them in their writing. But many federal judges do not. And at any rate: You are not a federal judge.

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Oral Argument Lost Because Counsel Failed to Call Clerk Within an Hour of Posting the Tentative Ruling

You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that you still plan to argue. And that window of time can be as little as an hour.

That was the case in Tearse v. Tearse (Jun. 9, 2021) no. A157576 (non-pub.). The appellant's attorney showed up at the hearing without giving notice of intent to appear by 4:00 p.m. the day before.

But counsel had looked at the court's website at 3:00, she argued, and there was no tentative. Counsel counsel checked with the department at 4:20 and still did not learn of any tentative having been posted.

Well, the court explained, it is true the court posted the tentative a little bit late at 3:10 p.m. So I would have given you until 4:10 p.m. You didn't get here till 4:20. Sorry.

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Appellate Tips Involving Waiver, Arbitration, and Satan: California Appellate Law Podcast Episode 11

In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.
Some of the cases discussed involving "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.

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Bankruptcy Stay Does Not Prevent Creditors from Renewing Judgments, Published CA Court Holds

So you have a judgment that is about to expire, but the judgment-debtor has filed for bankruptcy. Can you renew the judgment? Or does the bankruptcy stay apply until the stay expires?

Yes, says the recent published opinion in Rubin v. Ross (D4d2 Jun. 4, 2021) no. E074210. Yes to both.

Justice Menetrez concurs, asking: both? That doesn't exactly make sense, now, does it?

The Upshot: If you have a judgment, do not be deterred by debtor's bankruptcy from timely renewing that judgment. But even if you are deterred, you still get a 30-day extension of time after the bankruptcy concludes.

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No Record, No Problem! Appellant Reverses Alter Ego Judgment Using Settled Statement

I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v. Li (D2d4 May 27, 2021) no. B301004 (non-pub.) personally promised to repay the obligation. And not only is the finding reviewed on the very deferential substantial-evidence standard, but there was not even a court reporter at the trial! Game, set, and match, I would have concluded.

Yet, the defendant got the judgment reversed on appeal. And the defendant showed there are limits to the alter ego doctrine.

The Upshot: In the appropriate case, the Court of Appeal may reverse for lack of substantial evidence supporting all the necessary elements of a claim. And a settled statement can be a viable substitute for a reporter's transcript on appeal. But, still, and although, I would not bet on it.

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Wesson Oil Class Settlement Reversed: 9th Cir. Holds Trial Court Abused Discretion in Assuming Post-Cert. Settlement Was Not Collusive

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up at their doorstep delivering a settlement check (in this case, a check for about $0.15). Things are much different for their attorneys, however, as was the case in Briseño v. Henderson, --- F.3d ---- (9th Cir. June 1, 2021), who proposed to pocket millions from what the Ninth Circuit held to be a collusive settlement agreement in a false advertising case over cooking oil.

The new clarification Briseño provides is that the rule requiring close scrutiny of class settlements applies both pre-class certification and post-class certification.

An ancillary lesson from Briseño is, experts will say anything.

And the much less important but more entertaining lesson from Briseño is: Judge Lee really loves puns (such as: the attorneys suing Wesson here were "hoping to strike oil"); and pop-culture references to Star Wars and the Hamilton musical.

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A Four-Letter Word You Must Not Say at Oral Argument

A caution against using acronyms or jargon. If there is anything in your oral argument that you would write in all caps, cut it out.

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Two Appeals Dismissed Where Entity Appellants Owed Taxes or Not in Good Legal Standing

Two recent appeals were dismissed because the entity defendants were not in good legal standing. One was crosswise with the taxing authorities. (H.T.L. Properties, LLC v. Speck (D2d2 May 4, 2021) no. B299160 (non-pub.).) Another never formally organized. (Dennis Mitchell Oil v. Buehler Family Bakersfield, LLC (D5 Jun. 1, 2021) no. F074897 (non-pub.).) As a result, both their appeals were dismissed.

But the nonexistent entity gets the judgment against it vacated as part of the dismissal. How's that for failing upward?

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Denial of Domestic Violence Restraining Order Reversed; Improper to Refuse Evidence of Recent Abuse, Appeals Court Holds

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal and evidentiary rules entirely, its rulings are entitled to no discretion at all.

That is what happened in Marriage of F.M. and M.M. (D1d1 May 28, 2021) no. A160669 (non-pub.). The trial court ruled that although the parties "definitely need to stay away from each other," the court concluded "[t]hat doesn't mean that there needs to be domestic violence restraining orders." Instead, the court ordered mother to move out of the house (even though no one asked for that).

The court also categorically refused to consider mother's testimony that father had threatened violence after the TRO was issued.

But that is not how any of this works, the First District Court of Appeal held.

Reversed and remanded.

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Accusations Are Not Misconduct: The Duty of Candor is Not Limited to “Chesterfieldian Politeness”

The defendants also argued that the plaintiff's attorney called them "cheaters" both during opening statements and closing arguments, and that this inflamed the jury against the defendants.

Not so. An attorney “ ‘may vigorously argue his case and is not limited to “Chesterfieldian politeness.” ’ ” (People v. Fields (1983) 35 Cal.3d 329, 363.)
(SoCal Diesel, Inc. v. Extrasensory Software, Inc. (D2d1 May 3, 2021) no. B290062 (non-pub.).)

And a Reversal Based on Curious Reasoning: Unpublished opinions usually are unpublished because they are uneventful. But sometimes, unpublished opinions are unpublished maybe, just maybe, because they contain reasoning that might not hold up to scrutiny. If at oral argument your panel asks you how it can rely on a particular argument that was not raised below or in the briefs, the answer is: "In an unpublished opinion, your honor." That is the true answer, anyway. It is not the correct answer, obviously. But it is the true answer.

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Even the Devil Gets Ensnared in Appellate Procedure: Satanic Temple's Arguments Held Waived on Appeal

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. The plaintiffs tried the case on an as-applied discrimination theory, and when they lost, moved for new findings under a facial discrimination theory.

Held: The new theory was waived because it was not raised in the pretrial statement. And it was not raised in the opening brief, either. The reviewing court will not be the Devil's advocate, either figuratively or literally.
The Satanic Temple's excerpts of record were also stricken because they failed to comply with the rules.

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Defective Notice of Appeal Held Grounds for Dismissal of Appeal in Arbitration Denial Case Involving an Elder

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never.

In appeals from orders denying petitions to compel arbitration where preference has been ordered, the notice of appeal must state it is governed by Code of Civil Procedure section 1294, and must attach the preference order and the order being appealed.

The appellant failed to do that in Avery v. All Saintsidence OPCO, LLC (D1d3 May 24, 2021) A162589. As a result, its appeal was dismissed.

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Iran Is Not a Suitable Judicial Forum as a Matter of Law, CA Appellate Court Holds

The plaintiffs in Aghaian v. Minassian (D2d8 May 24, 2021) no. B296287 are children of Iranians who fled during the Iranian Revolution. Their parents had amassed a large amount of property, and had asked the defendant, a family friend, to recover it for them. Turns out the defendant used the opportunity to enrich himself by some $34 million. The children sued, and the defendant argued Iran was a more suitable forum. Iran? the Court of Appeal asked. That Iran? Iran is not a suitable forum.

But by the time the first appeal was done, the plaintiff had initiated proceedings in Iran. Now can we litigate in Iran, the defendant asked again? Look, the plaintiffs have waived their objections to Iran!

No, the Court of Appeal responded in this second appeal. We have already decided the question. It is law of the case. Our holding is our holding. It cannot be waived.

But: An order denying a motion for inconvenient forum may be reviewed as an interlocutory order following a final judgment. The defendant did not waive his right to appellate review by failing to file a writ petition.

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After Reversal on Appeal, Appellant Claimed It Was Entitled to $5.7MM in Restitution

Here is an under-appreciated consideration in appellate procedure: If you are the party that prevailed at trial, and you collect on your judgment pending appeal, what's the worst that could happen? Would it surprise you to learn that the prevailing plaintiff could be ordered to make restitution "of all property and rights lost by the erroneous judgment or order," and could even have a money judgment imposed against it under Code of Civil Procedure section 908? This includes legal interest. And if enforcing the judgment caused the appellant to lose business profits, the judgment creditor can be liable for those losses, too.

That is very nearly what happened to the respondent in Dr. Leevil, LLC v. Westlake Health Care Ctr. (D2d6 Mar. 17, 2021) no. B304339 (non-pub.). A judgment-creditor absolutely can be liable in restitution to the judgment-debtor. And it would have here, too, had the appellant not stipulated to the remedy – a $5.7 million mistake. Ouch.

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No, You Do Not Have to List All Prior Intermediate Orders in Your Notice of Appeal

In case you think me a Cassandra with my frequent warnings about losing your appeals to technicalities, I have three Court of Appeal opinions from just this week to buck you up. All three opinions promise that, no, the Court of Appeal is not looking for picayune errors in your notice of appeal for an excuse to dismiss your appeal.

Also below: A call to colleagues to consider discontinue using the Judicial Council form Notice of Appeal.

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Notice of Appeal Filed by Corporation But Omitting Alter Ego Appellant Held Not Fatal Under the Liberality Rule – But Alter-Ego Finding Still Affirmed

It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though specifying the type of order is not even required), or because the notice of appeal specified the wrong authority (which is not required, either).

So what about a notice of appeal that omits the name of the appellant? That is what happened in Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). Miraculously, that appeal, from the alter-ego judgment, survived. (But the judgment was affirmed.)

Also covered: A tactical choice for plaintiffs: whether "it may be prudent for a plaintiff to sue only the corporation," leaving the alter egos for postjudgment litigation.

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Evidence on Appeal: Just Because It Is in the Appellate Record Does Not Mean It Is in the Evidentiary Record

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed.

Also, arguments raised at oral argument don't count.

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Private Jet Lessor's Novel Judgment Enforcement Strategy Affirmed on Appeal, Holding Debtor Waived His Challenge by Failing to Raise It Below

The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment stipulations may be deemed as an assent to the judgment – thus waiving the right to appeal.

It also suggests how new legal theories – which sometimes may be raised for the first time on appeal – will be deemed forfeited if they involve a factual question that was not raised in the trial court.

Finally, it reminds attorneys for prevailing parties to be judicious in their use of redacted billings, and to avoid block-billing.

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Selecting Issues for Appeal? Look for Misapplication of the Legal Standard, Like in This Attorney Fee Case

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The trial judge thought she did not have authority to apply a "negative multiplier" to reduce block-billed fees. That was incorrect. So back down the case goes.

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The 180-Day Deadline to Appeal Is Not Subject to Extension, Waiver, or "Fundamental Fairness"​

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from entry of the judgment. If you can remember only that, it will save you from the fate in Brownstone Lofts, LLC v. Otto Miller (D1d1 May 11, 2021) no. A160616 (non-pub.).

One other thing to try and remember: Once a final order is entered, the trial court loses jurisdiction to hear a motion for reconsideration. That means a postjudgment motion for reconsideration is improper and will not extend the time to appeal.

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"The opinion is eight pages without a reason to exist."​

If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because there is none.

Justice Raphael thinks this effort a waste, and dissents to say the appeal should have been dismissed as abandoned. Justice Raphael provides this pithy synopsis:

"Minor's counsel raises no issues. Today's opinion discusses no issues. The opinion is eight pages without a reason to exist. One can say nothing much more succinctly."

The Upshot: Justices do not appreciate impositions on their time. Fully develop the issues in your appeal with factual analysis, record citation, legal analysis, and legal citation. Do not expect the Court of Appeal to find reversible error on its own.

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There Are Few Requirements for a Notice of Appeal, But This 9th Cir. Appeal Is Dismissed for Failing Nearly All of Them

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed nearly all of them.
To prepare a valid notice of appeal, the notice simply needs to identify the appellants, the judgment being appealed, and the appellate court. Fed. R. App. P. 3(c)(1)(A)–(C). The appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment: also wrong.
Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.
Appeal dismissed.

Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).

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Genetic Testing, Charles Manson, Appellate Oral Argument, and Tentative Opinions on Appeal: An Interview with Alan Yockelson

On our latest podcast, appellate attorneys Tim Kowal and Jeff Lewis interview Alan Yockelson about genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.

Also discussed:
• The value of tentative opinions
• How oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often

Listen to the podcast here or subscribe to the California Appellate Law Podcast on your favorite podcast player.

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"Are We the Baddies?" 

As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies? "Hans.. I have just noticed something. […]

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Update Your Trial Bookmarks: Dispositive Motions in Limine and Nonstatutory Motions for Judgment on the Pleadings "a Recipe for Reversal"​

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings: Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."

Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal: dismissing remaining trivial claims (with prejudice), and stipulating to the prevailing party's fees and costs providing enforcement is to be stayed pending appeal. This was a shrewd move by appellant's counsel here, who served their client well.

Read on.

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Backdoor Stays of Unlawful Detainer Actions Via Quash Motions No Longer Available

Here is an appellate procedure trick I wish I'd thought of.
Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months: by filing a motion to quash the complaint. A motion to quash extends the time to respond to the complaint. And when it's denied, the defendant has a statutory right to file a writ petition. The writ petition effectively stays the UD action.
And this de facto stay is free (except for attorney fees).

But the California Supreme Court now holds that that deal, sweet for the tenant but rather sour for the landlord, is not the law.
In the future, tenants should not plan on obtaining a de facto stay by filing an improper motion to quash. That clarity, ironically, comes by way of the Court's having given the tenant in this case a two-year de facto stay while awaiting its decision. The law works funny that way.

Stancil v. Superior Court (San Mateo) (May 3, 2021) S253783

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Another Court Hits Amazon with Strict Liability for Another Incendiary Electronic Device

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District eagerly followed suit in Loomis v. Amazon.com LLC (D2d8 Apr. 26, 2021) B297995 (published).

Justice Wiley's concurring opinion suggests he would have voted twice for reversal given the chance. “[W]e have an easy case that beautifully illustrates the deep structure of modern tort law: a judicial quest to minimize the social costs of accidents—that is, the sum of the cost of accidents and the cost of avoiding accidents.”

That is rather more sugar in my tea than suits me. But we know where Justice Wiley stands.

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A Cautionary Tale Against Taking an Appeal Too Early: Kurwa v. Kislinger (Cal. 2007)

What's the worst can happen by taking an appeal too early? I am asked this often, and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to the Supreme Court, and easily six figures in fees, just to get back to where you were when you first asked that question.

The nub of the problem in Kurwa was that plaintiff had two obstacles to appealability. Plaintiff used a too-clever-by-half ploy to get around one (stipulating to waiver of his remaining claim without prejudice, and a tolling agreement to boot). After realizing on appeal this could not create jurisdiction, plaintiff dismissed the rest of his claims with prejudice.
But there was a second obstacle: defendant's cross-claim was still pending. And because the trial court refused to dismiss the judgment based on the ill-conceived stipulation, plaintiff was stuck "in a legal cul de sac."

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The Parable of the Principled Client

Client asks an attorney to file a lawsuit over a business dispute. "Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on […]

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Changes to the California Supreme Court Publication Rules

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it.
This week, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it.
Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

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Punitive Damages Are Reviewed De Novo; and Effective Use of Dicta

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively.
Rubio involved an employee wrongfully terminated because she had cancer. During the trial, employer lied about having knowledge of employee's cancer. (The judge asked: why else did he think employee needed medical leave "for three months? A cold?" Yikes.)

Held: A trial court may properly consider the noneconomic damages in the baseline for a punitive damages award. Combining economic and noneconomic damages here to make the range of harm $115,000 to $165,000, the $500,000 award of punitive damages reflected a multipler of 3.5, which the court held to be permissible.

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New Trial Motions Are a Procedural Minefield

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal.
A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021) no. D075577, an employment/disability case that resulted in a $1 million compensatory damages and $5 million punitive damages verdict.

This case prompts a reminder that new trial motions can give a result that appeals cannot: Review of the "weight of the evidence," which is fundamentally different from "substantial evidence" review on appeal.
But this case also raises questions about how trial courts are to treat inconsistent verdicts after a partial new trial. The authorities may be split on this issue. Or if not split exactly, then rather unclear.
It takes a gambling sort to go it alone on a new trial motion.

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Order Denying New Trial Motion Not Appealable, Unless It Only Partially Denies It

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial motion – and partially grants it – that order is appealable.
Put otherwise, an order granting a motion for new trial is appealable. If you are unhappy that the court only partially granted your motion, you must appeal that partial grant.

Posttrial motions are critically important in an appeal and an excellent time to consult appellate counsel.

Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published).

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Charles Manson's Grandson Not Required to Submit to DNA Testing, Court of Appeal Holds

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. After Manson died in 2017, the probate court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Manson penpal and "murderabilia" collector Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. But the court exercised its discretion to treat the appeal as a writ petition because the improper genetic test "will involve an invasion of Freeman's privacy that cannot be undone," leaving Freeman with "no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.

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The Notice of Appeal Is Deemed Filed When the Clerk Receives It...

The Notice of Appeal Is Deemed Filed When the Clerk Receives It...
... not when the clerk happens to get around to filing it.
In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date of filing is a matter of life or death to an appeal.
So what happens if you submit the notice of appeal timely, but the clerk does not actually "file" it until it is untimely?
J.M v. Los Angeles County Dept. of Children and Family Services (D2d2 Apr. 12, 2021) no. B305486 (not published) held: The appeal is timely. Fortunately, neither appelants' right to appeal nor the Court of Appeal's jurisdiction are at the mercy of a clerk's filing idiosyncrasies.

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Split Appellate Court Finds Arbitration Waived (But Dissent Has the Better Argument)

In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind.

The Upshot: If you decide to litigate despite having a right to arbitrate, consider raising a reservation of the right to arbitrate should new arbitrable claims or defenses be raised. Answers and CMC statements may be a good place to leave these breadcrumbs.

Be prepared for litigation to change shape. Retaining appellate counsel early is a good way be prepared for unexpected turns.

Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished).

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Default Judgment Set Aside on Showing of Merit, Excuse, and Diligence; and a Comment on Civility

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000.
Landlord got the default judgment set aside, which was affirmed on appeal.
But landlord's attorney did his client no favors by his heated rhetoric, referring to appellants' “sloth and stealth” and their purported “extreme lack of hygiene” among other things.

But, an apology goes a long way, so in addition to still prevailing on appeal, the respondent with the forked-tongued attorney still got their costs on appeal.

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Court Holds Every One of Appellant's Arguments Waived

About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited by appellant's arguments.)
Ultimately, a loss is a loss. But one wants to avoid losing by way of all arguments being deemed waived.

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Can You Waive or Stipulate to Standing Defects? Court of Appeal Says Yes

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to.
But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. The First District concluded the county waived any standing defects by stipulating to petitioner's standing.

But I am not so sure about this. Standing is a jurisdictional requirement. And when dealing with a jurisdictional objection the party cannot waive it, or stipulate to it, or otherwise be bilked out of it by those nice appellate doctrines routinely trotted out to affirm a judgment.

Nonetheless, the result is otherwise correct, so: Affirmed.

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Probate Court May Order Mediation, Deem Non-Participating Beneficiary Rights Forfeit, Split Appellate Court Holds

In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeit all rights to object to the mediated settlement. Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382.
The opinion was first issued on January 26, 2021. Following rehearing, however, Justice Tangeman withdrew from the unanimous opinion and lodged a dissent.

For my part, I agree with Justice Tangeman. And I have two additional concerns about the majority's opinion, concerns not addressed either by the majority or by the dissent.
One is that civil authorities rather emphatically reject the Breslin majority's approach to involuntary mediation here. And another is that there is reason to suspect the majority opinion could be deployed in civil actions.

Watch this space.

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Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act, regardless of merits, good cause, or equity.
Does the Court's holding undermine this jurisdictional rule? To escape the harsh effect of the jurisdictional requirement of filing a timely appeal, the Court relies heavily on another statutory right: the right to competent counsel in dependency proceedings. (Welf. & Inst. Code, § 317.5.) But as the Court acknowledges, the Legislature does not furnish any remedy for this right. Namely, the Legislature does not suggest any exception to the jurisdictional limits on the courts' powers.

The upshot: I do not expect In re A.R. will lead to any different results in civil appeals in the short term. Courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

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Appeal Held Improper Following Motion to Vacate Prejudgment Orders

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. Before appealing, employers tried to undo the damage in the trial court. But they bungled that, too. They filed a motion to vacate the order granting summary judgment. By the time the trial court ruled on employers' motion, it was more than 60 days later. Too late to appeal the judgment.

Some cautionary lessons from this opinion:
* Beware Using the Judicial Council Form Notice of Appeal
* Beware When Appealing Orders Other Than the Judgment Itself
* Beware Late Settlements of Appeals

Also: The court inartfully states the law re what is required in a notice of appeal.

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Out-of-State Litigant Did Not Waive Personal Jurisdiction, Family Court Order Reversed

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance on behalf of an out-of-state litigant without waiving jurisdictional challenges.

And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as "jurisdictional," it furnishes some confirmation of that, too.

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Important Differences in Federal and State Appeals, with Cory Webster

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.

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9th Cir. Reverses $1.8B Summary Judgment Against Discovery Abuser, Suggests District Court Impose Terminating Sanctions Instead

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.
The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

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Appellate Court Rejects Covid Excuses for Appeal Filed One Day Late

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument.
The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Appellant there filed his appeal just one day late. He noted the trial court was closed due to Covid. So was his attorney's office. But the Court was unsympathetic.
Appeal dismissed.

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9th Cir. Holds Appellate Issues Waived for Failure to Raise Them Both Before and After Submission to Jury

On the latest episode of the California Appellate Law Podcast (available Tuesday, Mar. 30 at www.CALPodcast.com), co-hosts Jeff Lewis and I discuss with guest Cory Webster the importance of Federal Rule of Civil Procedure 50, governing motions for judgment as a matter of law, which must be made both before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.

The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown appealed after her civil rights claim failed on grounds of qualified immunity. On appeal, she ran into several waiver and forfeiture issues.

While Brown was pro se, trial attorneys' job of persuading juries often leaves good appellate arguments underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.

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Appellate Court Holds Respondent Forfeited Issues and Failed to Establish Implied Findings

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in their judgments before exposing them to the crucible of appeal.

Upshot: Do not overlook the statement of decision process at the end of a critical hearing or bench trial. The statement of decision is often the single most important document the Court of Appeal will review. Either party may drastically alter the meaning and effect of that document by making a strategic request for findings under Code of Civil Procedure section 632 and Rules of Court rule 3.1590.

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Judgment Against Nonparties Reversed; Respondent Held to Have Waived Arguments

Waiver or forfeiture of arguments is a big concern for appellants on an appeal. But rarely do courts find that a respondent had waived or forfeited an argument.
In Travis v. Brand (D2d8 Mar. 19, 2021) 2021 WL 1049863 (published), involving a local redevelopment project, awarded almost $1 million in fees and costs against the losing plaintiffs.

The twist? The court also entered judgment against several nonparties, who had funded plaintiffs' litigation efforts. The trial court called plaintiffs the "shills" of the nonparties, The nonparties were the proverbial man behind the curtain.

Nope. Violation of due process. And respondents forfeited an "agency" argument to try to justify the nonparty ruling by failing to raise it below.

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Appellate Challenges to Arbitration Award: Close, but Affirmed

After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy."

But the recent published opinion in Bacall v. Shumway (D2d8 Feb. 18, 2021) No. B302787 illustrates the limits of review of arbitration awards. Appellant raised some decent legal challenges, apparently hoping to get the same result as in Brown. But fell short.

So while it is possible to get meaningful relief on appeal after arbitration, it is still tough going.

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Tip When Defending a Judgment on Appeal: Do Not Argue Issues the Appellant Waived

Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue whether an employer's ERISA plan failed to give notice of a lapse in benefits, an issue appellant had failed to raise in her brief, the court was able to reach the issue. Held: summary judgment reversed.

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Reversing Summary Judgment, Court Faults Respondent for "Specious"​ Assertions That "Wholly Mischaracterize"​ Ruling and Appellant's Arguments

Sensing reversal of its summary judgment, the respondent in Lubke v. Automobile Club of S. Cal. (D2d7 Jan 6, 2021) No. B302782, engaged in desperate arguments that earned it some unfavorable comments in the Second District's opinion.
We are used to seeing appellate courts take a critical view toward an appellant's arguments. Here, however, the Second District took the respondent to task for its less-than-candid arguments attempting to rehabilitate a moribund judgment. The court faulted respondent for "wholly mischaracteriz[ing] the court's ruling," and making an "equally specious assertion" about appellant's argument.

After remand, there may be another opportunity in this case for an appeal, and before the same panel. Persuasion is a tough business as it is. Conducting that business before jurists who remember you as having made "specious" arguments that "wholly mischaracterize" the court is tougher still.

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Stipulated Judgment and Waiver of Right to Appeal Did Not Result in Dismissal of Appeal

Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal. But that was not the case in Park Lane Assocs., LP v. Alioto (D1d4 Mar. 5, 2021) No. A155781 (unpublished). There, the parties agreed to a stipulated judgment and an express waiver of tenants' right to appeal. Yet when the unhappy tenants did appeal, the First Appellate District did not dismiss the appeal and instead reviewed appellants' arguments on the merits (but still affirmed the judgment).

But: tenant-appellants would have been better off had the Court of Appeal simply dismissed, as the court also found tenants were liable for landlord's attorneys' fees on appeal.

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Is a Summary Denial of a Writ Petition Binding Precedent? Spitting from Authority, Second District Says Yes in Reversing Judgment

Warning: Slight Obscure Appellate Procedural Questions Ahead
Litigants sometimes file writ petitions in the Court of Appeal to seek review of grievous but nonappealable orders that come down prior to a judgment. If the writ petition is summarily denied (as they usually are), you may need to be prepared to argue that the denial has precedential effect in your case. Or, you may need to be prepared to argue that, no, in fact, it doesn't.

The recent decision in Ventura Cnty. Deputy Sheriffs' Ass'n v. Cnty. of Ventura (D2d6 Mar. 3, 2021) No. B300006, on the one hand, and prior cases on the other hand, should give you a start on either side of that split.

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Judgment on Section 998 Agreement Vacated Because Offer Did Not Contain Signature Line for Acceptance

In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated because the defendant's 998 offer did not include a signature line for the plaintiff to sign, even though the plaintiff signed it anyway. In a case of first impression, the Second District affirmed, holding a judgment may not be entered on a section 998 agreement in which the offer does not provide an acceptance provision.

I find this a very bizarre case. I would not be surprised if other District Courts of Appeal declined to follow it.

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Strategic Dismissals to Expedite Appeal Are No Longer Appealable, Ninth Circuit Holds

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders to expedite an appeal in California state court.

But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services , No. 19-55747 (9th Cir. Dec. 29, 2020) warns that federal Courts of Appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction.

If you are developing a strategy after a devastating order before a final judgment has been entered, that is an excellent time to consult appellate counsel.

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Interview with MC Sungaila on the California Appellate Law Podcast Ep. 8

Esteemed appellate specialist M.C. Sungaila joins TVA appellate attorney Tim Kowal and co-host Jeff Lewis on episode 8 of the California Appellate Law Podcast for a wide-ranging discussion on appellate apprenticeship, preparing cases for appeal, and whether to consider waiving oral argument (M.C.'s answer: Never.).

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Appellate Court Cites Unpublished Opinion to Support Reasonableness of Pain-and-Suffering Award

Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)

In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 (unpublished), the Second District also provides a good illustration for personal-injury plaintiffs how to get key evidence into the record, and how to make a judgment more appeal-proof through the use of jury instructions.

This is another installment in a series of posts about ways appellate courts have cited unpublished cases, despite Rule of Court 8.1115. These cases might inspire ideas of how, with a little ingenuity, you too might bring up unpublished cases. But there is one thing you can bank on: if ever we find an example of someone being sanctioned for violating 8.1115, the perpetrator will not be an appellate justice. So follow these judges' examples, if at all, with extreme caution.

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Appeal Dismissed Because Trial Court Forgot to Sign the Dismissal Order on Appeal

Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal.

Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable.

While this is technically the correct outcome, I cannot fault the plaintiff-appellant here. Technically nonappealable orders are often deemed appealable, and in such cases, failing to appeal would prove fatal. It just so happens that for this particular type of nonappealable order, the courts have decided never to treat them as appealable.

(But, being a cynic, and averse to malpractice exposure, I would not bank on it.)

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Justice Wiley Urges Bar to Consider Independent Experts

In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act (FEHA) and California's liberal pleading standard made the difference here.

In a concurring opinion, Justice Wiley says he sees how we practitioners are using expert witnesses, and he doesn't like it. He urges the bar instead to consider using court-appointed experts.

If I may be permitted to disagree, I think this is not the right case for that. In a cause of action for accounting, by all means. But in a case involving still-emerging science, fact-finders need to be presented with what the parties think are the most compelling hypotheses.

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Orders Granting Terminating Sanctions, and Denying Motions to Vacate and Reconsider, Are Not Appealable: Appeal Dismissed

An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal.

Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished)

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Can You Appeal an Order Denying Leave to Amend a Complaint?

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?

An order denying leave to amend is not directly appealable. So that's out.

You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.

There's always a writ petition. Good luck with that.

The solution: Strategic voluntary dismissal to expedite an appeal.

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Appellate Bonds and Stays: The Cal. Appellate Law Podcast Ep. 7

Appellate stays can play a significant role in changing the posture of litigation and the relative bargaining power of the parties. TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss appellate bonds and stays in the latest episode of the California Appellate Law Podcast.

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Judgment Infected with Dozens of Errors, Still Affirmed (Mostly) on Appeal

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

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Amended Judgment Does Not Revive Time to Appeal Prior Judgment or Fee Award; Appeal Dismissed

Here is a common question:

A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.

To seek reversal of the fee and cost award, which order, or orders, must be appealed?

Answer: All three.

The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.

(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)

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Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, and the trial court granted his motion despite its untimeliness.

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements to establish them on appeal. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

Affirmed.

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Attorney Fee Orders After Appeal Raise Thorny Appealability Issues

This appeal over attorney fees concerns thorny issues of appealability. In Doe v. Westmont Coll. (D2d6 Jan. 25, 2021) No. B303208, the Second District rejected the college's arguments that the fee order […]

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Dismissal of Voluminous "Shotgun Complaint"​ Affirmed by 11th Circuit, Even Though Containing Some Valid Claims

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in […]

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Court Rejects Appeal Based Entirely on New Case Counsel Chose Not to Mention

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative […]

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New Trial Motion Not Heard Within Statutory Period Deemed Denied

Beware when filing new trial motions: if you are relying on it to extend your time to appeal, be mindful that it is heard within the statutory 75-day period. In Choochagi […]

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Failure to Exercise Discretion Is an Abuse of Discretion, Federal Edition

I have written before about California state court cases holding that failing to exercise discretion is an abuse of discretion. The same rule applies in federal courts, as the recent case […]

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Court Dismisses Two Appeals in One Case: One as Moot, One as Premature

This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the […]

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Split of Authority on Appealability of Post-Reversal Fee Orders

If you find yourself back in the trial court after a remand by the Court of Appeal, things are supposed to be much the same as before. Yet sometimes, things are […]

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Still More Ways to Mention Unpublished Appellate Opinions

After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October:  A recent (published) decision […]

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Rare Reversal of a $3.4MM Arbitration Award: Overbroad Employee Confidentiality Ruled a De Facto Noncompete and Thus Void

I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. […]

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How to Cite Unpublished Opinions

Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or […]

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Objections to Evidence Improper, Summary Judgment Reversed

Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other […]

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Court Abused Its Discretion by Denying $4M Sanctions Request for Abusive Discovery

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. […]

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"Woefully Deficient"​ Appellate Argument Failed to Comply with Appellate Rules, Leading to Affirmance

Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50." The […]

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Strategic Opportunity Missed: Appeal of Judgment Would Have Been Dismissed as Moot But For Respondent's Fee Award

In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day […]

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Judgment Affirmed Due to Waived Arguments, Incomplete Record, Conclusory Arguments, and Improper Attack on Judgment Affirmed in Prior Appeal

...But that's nitpicking, innit? In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge […]

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Missed the Deadline to Seek Attorney Fees? Post-Judgment Fees Are Still Available

Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251. […]

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Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked […]

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Attorney Sanctions Must Be Supported by Statement of Reasons

Most attorneys will, at some point or another in their careers, find they have failed to make a court appearance. When that happens, an order to show cause (OSC) will […]

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Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only […]

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"Submit"​ on a Tentative, But Do Not "Stipulate"​ to a Tentative

When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to […]

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In Summary Judgment Appeal, Split Decision on Unruled-Upon Objections, Conclusory Expert Opinions, and Design-Immunity Defense

Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out […]

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Trial Court Abused Discretion by Awarding Contractual Fees to Defendant Who Lost on the Only Contract Claim

In this commercial lease dispute, the trial court abused its discretion in not one, not two, but three different ways when it awarded contractual fees to the losing defendant. In Waterwood […]

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Fee Awards Under Civil Theft Statute Under Review

Bookmark Penal Code section 496 and Bell v. Feibush (D4d3 2013) 212 Cal.App.4th 1041, if you have not already, which together hold that failing to pay back a loan could subject the […]

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Do You Pay Referral Fees? Get Your Client's Signed "Consent,"​ Not Just "Acknowledgement"​

You may be surprised to learn that an attorney's 25% referral arrangement discussed orally with the client, and reduced to a writing signed by the client, is not enough to […]

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Notice of Appeal Defective? All Is Not Lost (Maybe)

Take care in drafting your notice of appeal, but if you notice you have made an error, all is not lost. The California Supreme Court's January 2020 opinion in K.J. v. […]

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No Safe Spaces: Arbitrator Not Disqualified Due to Claimed Political Bias; Appellant Sanctioned $56,000 for Frivolous Appeal

Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.) After a business dispute was decided against […]

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Considering a Trial by Reference? Define Your Referee's Powers Carefully

Trial by reference will become very common, I suspect, as trial courts continue to limit their availability due to Covid. A key advantage over arbitration: preservation of the right of […]

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No PAGA Fees for Proving University Acted with No Substantial Evidence

In Doe v. Regents of the University of California (1st Dist., Div. 4 Nov. 30, 2020) No. A158704 (unpublished), a third-year med student at UCSD examined a 12-year-old girl brought in by her mother […]

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Trial court abused its discretion in striking evidence offered in anti-SLAPP reply brief

If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may […]

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Is Filing a Petition for Review of an Unpublished Opinion Hopeless (Part 1 – Civil)?

One bit of conventional wisdom that’s frequently heard about appellate review in California is that if a Court of Appeal opinion isn’t published, seeking Supreme Court review is a hopeless […]

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Forfeiting Your Best Arguments on Appeal

You have a deep bag of tricks as a respondent on appeal to win affirmance of your judgment. One of those tricks is forfeiture: if appellant did not raise an […]

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Attorney Held in Contempt for Calling Opposing Counsel a "Liar"​ at Settlement Conference

A recent case out of the Fourth Appellate District in Orange County affirms a finding of contempt against an attorney for his conduct during a 15-minute settlement conference, including persistent […]

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$3MM Judgment Reversed for Improper Questioning into Privileged Matter, and Failing to Give Mandatory Jury Instruction Under Evid. Code, § 913

If you question witnesses at trial close to the line of privileged communications, be sure the judge gives the mandatory instruction, if your adversary asks for it, against drawing improper […]

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Something You Didn't Know About CCP § 998 Offers

It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer.  In Regueiro v. FCA US, LLC (2d Dist., Div. […]

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Avoid This Common Appellate Error: If You Forgot to Raise an Issue in the Trial Court, Owning Up to It May Save Your Bacon on Appeal

Defendant was hit with a $103k fee award under the UFTA (fraudulent transfer statutes). In fact, there is no published California authority holding there is such a right to fees […]

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Clerk's Notice Did Not Trigger Shorter Deadline to File Posttrial Motion, Second District Holds

Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the […]

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Employee Cannot Be Compelled to Arbitrate Individual Claims If Also Asserting PAGA Claims

So holds Provost v. Yourmechanic, Inc., No. D076569 (D4d1 Oct. 15, 2020), where an employee alleging misclassification and wage-and-hour claims, both individually and as a PAGA representative, defeated employer's motion […]

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Appellate Sniping Over Allegedly Discriminatory Peremptory Challenge of Prospective Juror

Recently on the California Appellate Law Podcast, we covered AB 3070, which imposes new procedures when making a peremptory challenge of a juror, including providing a valid reason for the challenge […]

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Remote Argument Survey Highlights Positives and Negatives of Streaming During Pandemic

Remote Appellate Arguments Could Be Here to Stay According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments […]

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Frivolous SLAPP Motions, and a Split of Authority on Costs Following Voluntary Dismissals

A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal […]

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Attorney Fees Recoverable Even for Unsuccessful Judgment Enforcement Efforts

So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant […]

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Checking the Wrong Box on Your Notice of Appeal May Result in Dismissal

Two recent cases caution litigants to take special care when preparing a notice of appeal. Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal. […]

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Legal Writing Tips of the Day

A few good tips came across my desk this week. Use in good health. 1. Via Bryan Garner's LawProse (# 351): Before launching thoughtlessly into a grab-bag of arguments, tell […]

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No Safe Harbor Required to Sanction Frivolous Anti-SLAPP Motion, Fourth District Holds

Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult […]

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Failing to Exercise Discretion Is an Abuse of Discretion

Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. […]

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Cal. Courts Split on Whether 998 Offers Apply in Employment Cases

If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim […]

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CA Supreme Court to Review Whether In Person Civil Trial May Commence

Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a […]

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Keep this handy, attorneys -- you may need it someday.

“Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder.” Unitherm Food v. Swifteckrich, 546 U.S. 394, 407 (2006) (Stevens, J., dissenting).

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FYI: Acronyms Are DOA

Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms: "The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local […]

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Appeal Held Not Frivolous, But Lawyer Argued It Frivolously

The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as […]

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Attorney Sanctioned $22,000 for Frivolous Motion, Narrowly Avoids More Sanctions for Frivolous Appeal

In fairness, I have seen much worse arguments than this. On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, […]

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The Moment When You Learn Your Client's Confidential Communications Are Not Covered by the Common-Interest Doctrine

Do not take the common-interest privilege for granted if you represent a client in multiple-party litigation. In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2020 U.S. Dist. LEXIS 128725, […]

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Can't the Trial Attorney Just Handle the Appeal?

I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team.

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Courtroom Do's and Don't's – from a Clerk's Perspective

Sean Thomas Lobb has Tips Learned While Clerking in Orange County in the November OC Lawyer magazine. Some takeaways: DO: Cite well-reasoned decisions from the same federal district court – […]

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Character Evidence, Even of Really, Really Bad Character, Is Not Admissible

The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid […]

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Family Law Appeals: The Cal. Appellate Law Podcast Episode 6

TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we […]

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The SLAPP That Breaks the Camel's Back

You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland (D1d2 […]

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Music Festival Liable for Foreseeable Harm at Festival -- Are Dodgers Liable for Foreseeable Violence Following Series Win?

An event operator may be liable when an event attendee dies after engaging in foreseeable illegal activity at the event -- overdosing on illegal drugs. So holds the Second Appellate […]

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An Order Resuming Civil Litigation of a Matter Previously Compelled to Arbitration Is Likely an Appealable Order

In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in […]

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Measure Twice, Redact Once

If you have ever held a redacted document up to the light to see the redacted text, you know other attorneys are doing the same. In a redacted PDF, you […]

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New Discovery Cutoff Extensions, and Other Civil Procedure Updates

Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" […]

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What Oral Argument on Appeals Tells You About Your Chances of Prevailing

Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate […]

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Appellate Reversal Rate Up, Time to Process Appeals Up, Per Cal. Court Stats Report Some interesting information about California appellate courts from the 2020 Court Statistics Report:

-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think […]

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Holdout Juror Ousted for Seeking Counsel About Alleged Mistreatment by Other Jurors

A holdout juror in a murder case talked to an attorney about being badgered by the other jury members. The attorney appears in court to inform the judge about the […]

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Is Reconsideration Even Jurisdictional?

The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, […]

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Updates from the Fourth Appellate District

At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: […]

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The Trouble with Unpublished Opinions

 Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still […]

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Recovering Costs for Unused Trial Exhibits

Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The […]

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Brush Up on Your 998 Offers

Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up […]

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Cal Appellate News for Lawyers (Oct. 5, 2020): Juror Peremptory Challenges, Appealability of SLAPP Orders, Appeal Bonds, 170.6 Challenges After Appeal, and More

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: more on the coming changes to juror peremptory challenges, appellate pitfalls on reconsideration motions, appeal bonds, 170.6 challenges after appeal, are Subway sandwiches "confectionary" products? and more.

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Peremptory Challenges and Motions for Reconsideration: California Appellate Law Podcast Episode 5 (Sept. 26, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 5 discusses California cases and procedures in impacting making and challenging peremptory challenges to jurors and motions for reconsideration.

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Cal Appellate News for Lawyers (Sept. 25, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: big changes coming to juror peremptory challenges, appellate pitfalls on reconsideration motions, and the difficulty in establishing reversible error.

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Cal Appellate News for Lawyers (Sept. 18, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition, Covid-based excuses may garner extended appellate deadlines.

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Cal Appellate News for Lawyers (Sept. 10, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: extended CA jurisdiction over out-of-state retailers, ADA liability over online-only businesses, courtroom pandemic changes, and pitfalls on new-trial motions.

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Cal Appellate News for Lawyers (Aug. 31, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!

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Appeals of Preliminary Injunctions: California Appellate Law Podcast Episode 4 (Aug. 11, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 4 discusses cases and procedures in appealing preliminary injunctions. 

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Appeals and Summary Judgments: California Appellate Podcast Episode 3 (Jul. 20, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 3 of the California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.

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When Are Nonappealable Orders Actually Appealable? Orders on Demurrers and Summary Judgment: California Appellate Podcast Episode 2 (Jul. 3, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 2 of the California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision.

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Appeals and Anti-SLAPP Law: California Appellate Law Podcast Episode 1 (Jul. 1, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted Code of Civil Procedure section 425.16 which provides a mechanism for quickly dismissing frivolous lawsuits and awarding attorney’s fees to the defendant. The law applies to lawsuits that arise from free speech or petitioning activity, such as filing a lawsuit.

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ASSET-PROTECTION UPDATE: QPRTS MAY BE DEEMED REVOCABLE!

In a recently affirmed decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...

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WHEN BRIEFING APPELLATE ISSUES, LESS IS MORE

An attorney pursuing an appeal may be tempted to raise any and all arguments - however flimsy - before...

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A DEFAULT JUDGMENT WAS ENTERED AGAINST YOU WITHOUT YOUR KNOWLEDGE. WHAT CAN YOU DO?

In today's litigious society, parties are quick to sue others but, due to the demands of life, defendants will oftentimes overlook...

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ATTENTION ESTATE PLANNERS: QPRTS MAY BE DEEMED REVOCABLE!

In a recent decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...

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BANK ORDERED TO PAY HOMEOWNERS’ ATTORNEY FEES FOR IMPROPER “DUAL-TRACKING”

Distressed homeowners subject to lender "dual-tracking" do not need to wait until the end of a lawsuit to recover attorneys' fees...

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BLACK-AND-WHITE STATUTE OF LIMITATION FOR ATTORNEY-MALPRACTICE ACTIONS GETS A FRESH COAT OF GRAY

The one-year period to bring an action for malpractice typically begins after the lawyer last represented you...

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BROKERS: GET YOUR COMMISSION AGREEMENTS IN WRITING!

"We are all familiar with the phrase, "caveat emptor": Buyer beware. This case deals with its less renowned cousin...

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CALIFORNIA SUPREME COURT: PUBLIC RECORDS ACT COVERS PUBLIC OFFICIALS’ & EMPLOYEES’ PRIVATE DEVICES

In the high-profile case City of San Jose v. Superior Court, the California high court recently held: "when a city employee uses a personal account to communicate...

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CAN A TRIAL COURT REDUCE ATTORNEYS’ FEES IN A SETTLEMENT?

Leeman v. Adams Extract & Spice Co. (Cal. Ct. App. May 21, 2015) says no. As they routinely do, a Prop-65 toxic-chemicals-warning case settles for a trifling amount of penalties but a heaping portion of attorneys' fees...

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CHECKMATING A CHECKERS OPPONENT WITH CCP § 998 OFFERS

If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick...

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COLLECTING AGAINST SPENDTHRIFTS IN BANKRUPTCY, JUDGMENT COLLECTION

In our February newsletter, we noted the California Supreme Court was reviewing whether the ambiguous spendthrift protections...

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DOES THE JUDICIARY UNDERSTAND JUDICIAL ADMISSIONS?

The judicial admission is a simple concept: when you take a position in a pleading, discovery response, or open court, you're stuck with it...

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EMPLOYER UNDERPAYS DEPARTING EMPLOYEE $300, GETS STUCK WITH $30,000 FOR EMPLOYEE’S LEGAL FEES

Is an employee leaving? Pay up. Pay in full. There is no 'A' for effort...

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EMPLOYERS CAN PROTECT THEIR WORKFORCE WITHOUT ENGAGING IN UNLAWFUL RESTRAINT OF TRADE

Retaining key personnel is vital to the success of any enterprise. However, the law's prohibition of trade restraints often makes it difficult...

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FINDING JUSTICE IN THE GRINDING GEARS OF LITIGATION

The right judgment is not always the just result...

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IF A CHOICE-OF-LAW CLAUSE MATTERS, SO DOES THE FORUM

A recent opinion of the California Court of Appeal held a New York choice-of-law clause was ineffective to enforce a party's waiver...

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IRREVOCABLE TRUSTS: NOT FOOLPROOF ASSET PROTECTION DEVICES

Irrevocable trusts are often used to protect assets from the reach of creditors, but courts have chipped away...

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LITIGATION-FUNDING INDUSTRY CONTINUES TO GROW

With the recent publicity of Hulk Hogan's lawsuit against Gawker Media, and specifically the funding of the lawsuit...

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OF GOOD FENCES, BAD NEIGHBORS, AND RECOVERING LEGAL COSTS

"It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation...

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PATIO FURNITURE DOES NOT ESTABLISH AN EQUITABLE EASEMENT

In a recent property-dispute opinion, the Second District in Shoen v. Zacarias came to the perfectly sensible decision that equity is not aroused by a trespasser's inconvenience...

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POKEMON MAKER SEEKS DISMISSAL OF NUISANCE & DISGORGEMENT SUIT

Pokemon Go-maker Niantec moved to dismiss the class action that alleges the wildly popular app causes droves of users to trespass on private property...

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SLAPP NEWS: CALIFORNIA SUPREME COURT REITERATES, AGAIN, THAT WRONGDOING IS NOT “SPEECH” JUST BECAUSE SOMEONE TALKED ABOUT IT

The high court recently published Park v. Trustees of the Cal. State Univ., reversing a split appellate-panel decision.

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YOU MAY BE ABLE TO LIMIT “CONSEQUENTIAL DAMAGES" IN YOUR CONTRACTS

Despite best efforts to reduce expectations to a written contract, one can rarely estimate with much accuracy...

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A DEFENSE LAWYER'S COMPLAINT: SOME JUDGES DON'T GET IT ABOUT JUDICIAL ADMISSIONS

Originally published in Verdict
---------
A man is handing out leaflets in the train station, an old Soviet joke has it, when he is stopped by an officer. Examining the leaflets, the officer discovers they are just blank pieces of paper...

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DIRTY WORK: DISGORGING THE PROFITS OF TRESPASSING PIPELINES

Originally published in OC Lawyer
-------------
There are two kinds of developers: the pessimist, who sees a glass as half-empty, and the optimist, who sees the glass as four-fifths empty...

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