Published Articles

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m.

Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late.

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023).

Here are the tips:

Rule Zero: Make the Record

#1 Make sure your theories of the case are captured in your pleadings

#2 Was key evidence excluded? Preserve the issue by making a proffer.

#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

#4 Object to Jury Instructions

#5 Review the Verdict for Inconsistences

#6 Request and Object to the Statement of Decision

#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

#8 Calculate Appellate Deadlines Correctly

#9 Avoid Common Appellate Briefing Mistakes

#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

Evergreen Tip: Get a Court Reporter!

You may download a PDF of my slideshow by clicking through to the full article.

Thank you to my colleagues who sent me their top tips!

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” declaration about matters outside the declarant’s personal knowledge. The court held that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence.

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.”

The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion.

The important takeways:

1. Don’t count on anti-SLAPP fee awards being independently appealable.

2. But don’t count out the possibility they might be appealable as collateral orders.

CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.”

The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the debtor had no contacts with California. And even more surprising, after the Nevada judgment expired, the court allowed the creditor to re-domesticate the judgment back to Nevada.

There are two reasons you should take strong notice of this case, particularly if other states follow this approach:

(1) Judgments accrue interest at different rates depending on state law, so consider domesticating all your judgments in a high-yield jurisdiction—the highest yields are in Massachusetts, Rhode Island, Vermont, and Washington, at 12%.

(2) Judgments lapse after a certain time depending on state law, so consider domesticating all your judgments in a “stay-fresh” jurisdiction—judgments in Delaware, for instance, never expire.

CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here: http://bit.ly/3gCdu6B

The article covers *Trujillo v. City of Los Angeles* (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

I note several odd things about the decision and the reasoning, including why the court drew the line at oral rulings on summary judgment, but would allow a plaintiff to accept a 998 offer after a tentative ruling.

And as covered on episode 61 of the California Appellate Law Podcast, cases interpreting FRCP 68, the federal analog to section 998, have come out the opposite way.

This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead.

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. The Supreme Court recently 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.

CEB has published my article, “MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority,” about the recent published opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 holding that evidentiary rulings in connection with summary judgment are reviewed on appeal for abuse of discretion. The article is here: http://bit.ly/3g090pV

The opinion is interesting because ever since the Supreme Court’s holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, which applied de novo review, practitioners have watched carefully to see if a trend of more rigorous review of evidentiary rulings might emerge in the context of motions for summary judgment.

But most cases have not followed Reid’s opening. Doe v. Software one provides a nice summary of the cases since Reid.

I also offer a comment that the preferable approach would be to treat boilerplate objections as waived, rather than indulging the fiction the trial court actually considered them all.

CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at https://bit.ly/3WjAZ4m .

The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___, where the plaintiff’s attorney “calculated to keep [the defendant] in the dark” about a lawsuit in order to obtain a default judgment.

Attorneys have an ethical and a statutory duty to warn opposing counsel before requesting default. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

In one of the many lawsuits by hip-replacement patients against Zimmer, Inc., the maker of the Durom Cup, a court of appeal recently held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. See Kline v. Zimmer, Inc. (May 26, 2022, B302544) __Cal.App.5th__, 2022 Cal.App.Lexis 460. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

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

If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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