Legal News and Appellate Tips

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.

So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:

👉 Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.

👉 Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.

👉 Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.

👉 Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.

👉 Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.

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.

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."

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

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.

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.

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.

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.

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 […]