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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Class Actions

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.

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

Read More
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.

Read More

Tags

Podcast (117)
Videos (100)
Appealability and Appealable Orders (37)
Legal Writing (29)
Anti-SLAPP (27)
Abuse of Discretion (24)
Mischief (24)
Splits of Authority (23)
Unpublished Opinions (22)
Statements of Decision (21)
Notices of Appeal (20)
Waiver and Forfeiture (20)
Stays on Appeal (20)
California Supreme Court (20)
Judgment Enforcement (18)
Oral Argument (18)
Timely and Untimely Appeals (18)
Arbitration (18)
Attorney Fees (17)
Record on Appeal (17)
Trial Strategy (15)
Dismissals (14)
Sanctions (14)
Briefing (14)
Evidentiary Objections (14)
Writ Petitions (13)
Dissents (13)
Appellate Sanctions (13)
Summary Judgments and Summary Adjudications (13)
Civility (12)
Dismissed Appeals (12)
Preliminary Injunctions (12)
Timeliness (12)
Collateral Orders (12)
Jurisdiction (12)
Exclusion of Evidence (12)
Experts (11)
Family Law (11)
New Trial Motions (11)
Mootness (11)
CCP 998 Offers (11)
Trial Procedure (10)
Federal Courts (10)
Motions for Reconsideration (10)
Posttrial Motions (10)
Admission of Improper Evidence (9)
Implied Findings (9)
Settlements (8)
Standards of Review (8)
Appealability (8)
Disqualification (7)
Default Judgments (7)
Stipulated Judgments (7)
Appellate Bonds (7)
Ninth Circuit (7)
Pretrial Procedure (7)
Probate Appeals (7)
Respondent Arguments (7)
Mediation (6)
Petitions for Review (6)
Appellate Briefing (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Litigation Tips (6)
Trial Irregularities and Structural Errors (6)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Excessive Damages (5)
Standing (5)
Appealable Orders (4)
Right to Jury Trial (4)
Motions to Vacate (4)
Expert Opinions (4)
Tentative Rulings (4)
Appeals Treated as Writs (4)
Frivolous Motions (4)
Trust and Probate (4)
Demurrers (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Jury Waivers (3)
Prejudicial Error (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Stays (3)
Law and Motion (3)
Recovery of Costs (3)
Pretrial Issues (3)
Amicus Briefs (3)
Summary Judgment (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Motions to Dismiss (3)
Jury Instructions (3)
Stare Decisis (2)
Contempt (2)
Judicial Admissions (2)
Waiver (2)
Class Actions (2)
Appeals Dismissed (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
ADA and Unruh Accessibility Actions (2)
Record Designation (2)
Premature Appeals (2)
Harmless Error (2)
Podcasts (2)
Stipulated Reversals (2)
Alter Ego (2)
PAGA Actions (2)
Comments (2)
Legal Practice (2)
Remote Arguments (2)
Post Reversal Issues (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Invited Error (2)
Untimeliness (2)
Constitutional Law (2)
Trial by Reference and Pro Tem Judges (2)
Attorney Client Privilege (2)
Civil Theft (2)
Forfeiture and Waiver (2)
Motions to Quash (1)
Preclusion (1)
Waived and Forfeiture (1)
Exhaustion of Remedies (1)
Notice of Appeal (1)
Punitive Damages (1)
Support Awards (1)
Free Exercise (1)
Attorney Fees - CCP 1021.5 (1)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Tentative Opinions and Focus Letters (1)
Court Reporters (1)
Attorney Feese (1)
Clear and Convincing (1)
Covid (1)
Settled Statements (1)
Attorney Misconduct (1)
Judicial Estoppel (1)
New Arguments (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Family Court (1)
Third Parties and Nonparties (1)
Mistrials (1)
Typeface (1)
Bankruptcy (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Writs of Mandamus (CCP 1085) (1)
Closing Argument (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
Typography (1)
Benefits Obtained Trespass Damages (1)
Employment Law (1)
Judicial Notice (1)
Referral Fees (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Split of Authority (1)
U.S. Supreme Court (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Trade Restraints (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Ninth CircuitAbuse of Discretion (1)
Anecdotes (1)
Common Interest Doctrine (1)
Per Se Errors (1)
Treble Damages (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Consenting to Judgments (1)
Restraining Orders (1)
Trespass (1)
Civil Code 3334 (1)
Nonsuit (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Constitutional Litigation (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Landlore Tenant (0)
Appellate (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
crossmenuchevron-down