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: Splits of Authority

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.

Read More
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.

Read More
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.

Read More
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.

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

Read More
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.

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

Read More
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.

Read More
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.

Read More
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 […]

Read More
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 […]

Read More
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 […]

Read More
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 […]

Read More
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 […]

Read More

Tags

Podcast (66)
Videos (55)
Abuse of Discretion (19)
Appealability and Appealable Orders (17)
Waiver and Forfeiture (16)
Notices of Appeal (15)
Splits of Authority (13)
Legal Writing (13)
Statements of Decision (12)
Stays on Appeal (11)
Dismissals (11)
New Trial Motions (10)
Arbitration (9)
Judgment Enforcement (9)
Oral Argument (9)
Unpublished Opinions (9)
Briefing (9)
Attorney Fees (8)
Sanctions (8)
Anti-SLAPP (8)
Motions for Reconsideration (8)
Evidentiary Objections (8)
Record on Appeal (8)
Appealability (8)
Timeliness (8)
Dissents (7)
Preliminary Injunctions (7)
Summary Judgments and Summary Adjudications (7)
Implied Findings (7)
Respondent Arguments (7)
Ninth Circuit (7)
Federal Courts (7)
Trial Strategy (7)
Appellate Sanctions (6)
Family Law (6)
Civility (6)
CCP 998 Offers (6)
Standards of Review (6)
Discovery (6)
Collateral Orders (6)
Writ Petitions (6)
Stipulated Judgments (6)
Disqualification (5)
Appellate Bonds (5)
Exclusion of Evidence (5)
Admission of Improper Evidence (5)
Posttrial Motions (5)
Appellate Practice (5)
California Supreme Court (5)
Substantial Evidence (5)
Mootness (5)
Experts (5)
Trial Procedure (5)
Notices of Entry (4)
Timely and Untimely Appeals (4)
Jurisdiction (4)
Default Judgments (4)
Motions to Vacate and Set Aside Judgments (4)
Dismissed Appeals (4)
Ethical Duty of Candor (4)
Excessive Damages (4)
Standing (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Petitions for Review (3)
Depublished Opinions (3)
Summary Judgments (3)
Expert Opinions (3)
Summary Judgment (3)
Appealable Orders (3)
Trust and Probate (3)
Settlements (3)
Appeals Treated as Writs (3)
Stays (3)
Demurrers (3)
Probate Appeals (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Trial by Reference and Pro Tem Judges (2)
Law and Motion (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Jury Waivers (2)
Personal Jurisdiction (2)
Tentative Rulings (2)
Motions to Dismiss (2)
Landlord Tenant (2)
Judicial Bias (2)
Appeals Dismissed (2)
Invited Error (2)
Mediation (2)
Waiver (2)
Untimeliness (2)
Legal Practice (2)
Pretrial Procedure (2)
Post Reversal Issues (2)
Pretrial Issues (2)
Class Actions (2)
Motions to Vacate (2)
Mischief (2)
Amicus Briefs (2)
Comments (2)
Civil Theft (1)
Treble Damages (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
PAGA Attorney Fees (1)
Issue Selection on Appeal (1)
Remote Arguments (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Premises Liability (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
ADA and Unruh Accessibility Actions (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Attorney Fees - CCP 1021.5 (1)
Judicial Estoppel (1)
Harmless Error (1)
Prejudicial Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Restraining Orders (1)
Summary Reversal (1)
Judicial Misconduct (1)
Stipulated Reversals (1)
Trial Irregularities and Structural Errors (1)
Constitutional Litigation (1)
Medical Rights (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down