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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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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