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: Stays on Appeal

Appellate Tidbits: Senate to face off against court reporters, and new Notice of Appeal form coming

Here are some recent news items of interest to attorneys and court-watchers:

💰California courts spent nearly half-billion dollars on court reporters, but that’s not enough.

📽So if a court reporter isn’t available, SB 662 would allow electronic recordings to create the appellate record.

đź“°The Judicial Council has invited comment on 6 proposed changes affecting appellate rules, including changing the notice of appeal form to allow the attorney to join the appeal (such as in appeal from sanctions against the attorney), and highlighting the requirement to specify the date of the order being appealed (so that it is not overlooked).

🛑Frustrated when a corporate defendant stays a case by appealing from a denial of a motion to compel arbitration? SB 365 would end the automatic stay for such appeals.

🏛Supreme Librarians: David Carrillo and Stephen Duvernay say that our state high court exists to maintain consistency and clarity in the law – not to correct errors.

Read More
What You Need to Know about Fee-and-Costs Awards on Appeal

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

• Do you have to separately appeal from the fees and costs award? (Yes…usually.)

• How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)

• If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

Read More
Attachment Not Available for Punitive Damages in Elder Abuse Claims

When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based on statutory penalties and attorney fees. And despite the requirement that attachments be based on retrospective rather than prospective debts, the trial court issued a $3.4 million attachment order.

The First District Court of Appeal reversed. Royals’s pleadings and affidavit were “unclear what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief.” And even after the appellate court’s request for supplemental briefing on that point, the court found “Royals’s elusiveness” to be “troubling.”

The court held that seeking damages based on penalties and punitive damages, or in “an open-ended way” to justify an inflated damages award, cannot satisfy the attachment statutes.

There was also an interesting procedural quirk when the trial court ordered the attachment vacated, purportedly rendering the appeal moot. That didn’t work: a trial court cannot vacate an order once it’s on appeal.

Read More
Striking Back Against Anti-SLAPPs: Three Tips for Opposing Anti-SLAPPs

Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions:

1. Spending money on litigation is not protected activity if the case is really about the misappropriation of the money. That’s Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.).

2. Appealing an anti-SLAPP dismissal and attorney-fees award against your client? Cite Quiles v. Parent for its holding that SLAPP fee awards are automatically stayed on appeal. Is the trial court refusing to honor the stay? You can seek a writ of supersedeas in the Court of Appeal, but if you want a reasoned opinion, you need direct review. For that, you’ll need to label your motion to enforce the stay as one for injunctive relief.

3. Opposing an anti-SLAPP motion filed outside the 60-day window? Reyes v. Escobar (D2d7 Aug. 12, 2022 No. B313575) 2022 WL 3334384 held that extending the time to file without considering the length of the delay, the reasons offered for the delay, and potential prejudice to the plaintiff, is an abuse of discretion.

Also: What questions do you want to hear appellate justices answer? The podcast will be hosting some retired appellate justices in future episodes, and we want to put to them the questions you’ve been itching to have answered. Email Tim at tkowal@tvalaw.com.

Read More
Labels Matter: To Enforce an Appellate Stay, Seek an “Injunction”

There is a high frustration quotient in defending against judgment enforcement. There is supposed to be an automatic stay of orders on appeal, but in practice this is wishful thinking. So you may have to do what the aggrieved party did in Merritt v. Specialized Loan Servicing, LLC (D6 Aug. 11, 2022 No. H048463) 2022 WL 3274131: file a motion to enforce the stay.

Only, don’t call it a “motion to enforce a stay.” As the Merritt court noted, an order denying enforcement of an automatic stay is not listed as among the appealable orders in Code of Civil Procedure section 904.1. Instead, file it as an application for a temporary restraining order or a preliminary injunction. It’s the same thing, and denials are appealable under section 904.1.

Read More
Amendments to Judgment During Appeal Reversed for Violating Appellate Stay

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

Read More
The Probate “Stay-Killer”

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

Read More
David Greco on the Unique Challenges in Probate Appeals

David Greco, who heads up the appellate practice at the probate litigation firm RMO, LLP, shares with co-hosts Jeff Lewis and Tim Kowal some of the unique features and challenges in probate appeals:

👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.

👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?

👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.

👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.

Read More
Appellate Court Ducks Question Whether Probate Court Loses Jurisdiction to Award Fees Pending Appeal of Judgment

Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate cases, we do not have an answer one way or another.

And we still don’t, because the Court of Appeal ducked the question In Conservatorship of Bower (D4d3 Feb. 25, 2022 no. G059112) 2022 WL 571011 (nonpub. opn.).

In that conservatorship case, the probate court found the conservator had incurred expenses in bad faith. The court ruled the conservatee’s widow was entitled to attorney fees, the amount to be determined by subsequent motion. The conservator filed an appeal of the order on the accounting, including the finding of bad faith giving rise to attorney fees. The conservator then argued that, based on the appeal and the resulting appellate stay, the trial court lacked jurisdiction to award fees.

But by this time, the appeal of the underlying accounting award and finding of bad faith had been affirmed. So the court ducked the section 1310 stay question. The court explained that “The most we could do with respect to this order, even if Andrea is correct, is to return the order to the probate court to be reissued – a pointless exercise.”

Comment: I disagree that it would be a “pointless exercise.” At a minimum, postjudgment interest has been accruing on the fee award since before the appeal of the underlying order was affirmed. If the appellant is correct that there was no jurisdiction to enter the award before affirmance, then that postjudgment interest also is void.

Read More
Attorney Sanctions for Violating Appellate Stay (But the Stay Was Probably Void)

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.

So the appellate stay was vindicated. That is the good news.

What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. The maximum stay the court could have ordered here could extend only until 10 days after the deadline to file a notice of appeal.

By operation of law, then, the stay order here had expired by the time Adut sought the writ of execution. But Adut did not raise that argument in her appellate brief. And the court did not address it, either.

The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.

Read More
Outside Reverse Veil Piercing May Be Permissible Even Against an LLC with an Innocent Third-Party Member, Published Appellate Decision Holds

When you have a judgment against a shell entity, you can amend the judgment to name the sole shareholder or member. That is called piercing the corporate veil. Until a few years ago, it didn’t work in reverse: if you have a judgment against a judgment-proof business owner, you can’t add the entity as a judgment-debtor. (Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513, 77 Cal.Rptr.3d 96 (Postal Instant Press).) Except in 2017 in Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221 (Curci), the same appellate court said you could do that — that is, at least if you were dealing with an LLC. (Curci did not apply to corporations.)

But what if the LLC has innocent members? It wouldn’t be fair to innocent LLC members to add the LLC to a judgment because of whatever some other member did. That is the issue that came up in Blizzard Energy, Inc. v. Schaefers (D2d6 Nov. 18, 2021 no. B305774) 71 Cal.App.5th 823. And the court answered the question by holding: Yes, the LLC may be liable for the judgment, but no, we can’t offer any suggestions how it could be done consistent with an innocent member’s rights. The court remanded for the trial court to think about that.

Read More
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!

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

Read More

Tags

Podcast (127)
Videos (109)
Appealability and Appealable Orders (40)
Legal Writing (29)
Anti-SLAPP (29)
Oral Argument (25)
Abuse of Discretion (24)
Mischief (24)
Splits of Authority (23)
Statements of Decision (23)
Record on Appeal (23)
Timely and Untimely Appeals (22)
Unpublished Opinions (22)
Waiver and Forfeiture (22)
Notices of Appeal (21)
California Supreme Court (21)
Stays on Appeal (21)
Judgment Enforcement (20)
Arbitration (19)
Attorney Fees (18)
Briefing (18)
Trial Strategy (16)
Dismissals (15)
Sanctions (15)
Evidentiary Objections (14)
Writ Petitions (13)
Summary Judgments and Summary Adjudications (13)
Dissents (13)
Collateral Orders (13)
Appellate Sanctions (13)
Timeliness (12)
Civility (12)
Exclusion of Evidence (12)
Dismissed Appeals (12)
Preliminary Injunctions (12)
New Trial Motions (12)
Jurisdiction (12)
Posttrial Motions (11)
Experts (11)
Family Law (11)
Trial Procedure (11)
CCP 998 Offers (11)
Federal Courts (11)
Mootness (11)
Motions for Reconsideration (10)
Standards of Review (10)
Implied Findings (10)
Admission of Improper Evidence (9)
Appellate Briefing (9)
Respondent Arguments (8)
Disqualification (8)
Settlements (8)
Appealability (8)
Discovery (7)
Pretrial Procedure (7)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (7)
Probate Appeals (7)
Appellate Bonds (7)
Default Judgments (7)
Appellate Practice (7)
Trial Irregularities and Structural Errors (7)
Federal Appeals (7)
Ninth Circuit (7)
Stipulated Judgments (7)
Disentitlement Doctrine (6)
Substantial Evidence (6)
Litigation Tips (6)
Mediation (6)
Petitions for Review (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Trust and Probate (5)
Excessive Damages (5)
Summary Judgments (5)
Standing (5)
Right to Jury Trial (5)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Demurrers (5)
Legal Ethics and Professional Responsibility (5)
Stipulated Reversals (4)
Appealable Orders (4)
Motions in Limine (4)
Jury Instructions (4)
Appeals Treated as Writs (4)
Motions to Dismiss (4)
Expert Opinions (4)
Motions to Vacate (4)
Frivolous Motions (4)
Prejudicial Error (4)
Tentative Rulings (4)
Juror Peremptory Challenges (3)
Writs of Mandamus (CCP 1085) (3)
Personal Jurisdiction (3)
Standards of Evidence (3)
Class Actions (3)
Summary Judgment (3)
Forfeiture and Waiver (3)
Jury Waivers (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Amicus Briefs (3)
Law and Motion (3)
Stays (3)
Legal Practice (3)
Recovery of Costs (3)
Pretrial Issues (3)
Constitutional Law (3)
Legal Tech (3)
Attorney Client Privilege (2)
Civil Theft (2)
Remote Arguments (2)
Invited Error (2)
Post Reversal Issues (2)
Appeals Dismissed (2)
Contempt (2)
ADA and Unruh Accessibility Actions (2)
Court Reporters (2)
Persuasion (2)
Clear and Convincing (2)
Judicial Admissions (2)
Medical Rights (2)
Judicial Bias (2)
Stare Decisis (2)
Alter Ego (2)
Trial by Reference and Pro Tem Judges (2)
Untimeliness (2)
Harmless Error (2)
Pleadings (2)
Comments (2)
Record Designation (2)
Mistrials (2)
New Trial (2)
Premature Appeals (2)
Tentative Opinions and Focus Letters (2)
Podcasts (2)
Waiver (2)
PAGA Actions (2)
Finality and Final Orders (2)
Inherent Authority (1)
Motions for Judgment on the Pleadings (1)
Post Reversal (1)
Split of Authority (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Ninth CircuitAbuse of Discretion (1)
Constitutional Litigation (1)
Per Se Errors (1)
Typeface (1)
Forfeiture (1)
Attorney Fees - CCP 1021.5 (1)
Issue Selection on Appeal (1)
PostJudgment Litigation (1)
Typography (1)
Nonsuit (1)
Product Liability (1)
Local Rules (1)
Restraining Orders (1)
Trade Restraints (1)
Attorney Feese (1)
DismissalsAppealability and Appealable Orders (1)
U.S. Supreme Court (1)
Administrative Law (1)
Exhaustion of Remedies (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Covid (1)
Free Exercise (1)
Treble Damages (1)
Attorney Misconduct (1)
Motions to Quash (1)
Precedent (1)
Clerks Service of File Stamped Judgment (1)
Notice of Appeal (1)
Property Rights (1)
Cross-Appeals (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Trespass (1)
Bankruptcy (1)
Preclusion (1)
Unsupported Arguments (1)
Closing Argument (1)
Punitive Damages (1)
Summary Reversal (1)
Memorandum Opinions (1)
Benefits Obtained Trespass Damages (1)
Judicial Estoppel (1)
State Civil Procedure Comparison Project (1)
Family Court (1)
Record (1)
Summary Reversals (1)
Employment Law (1)
Judicial Misconduct (1)
New Arguments (1)
Anecdotes (1)
Law of the Case (1)
Support Awards (1)
Settled Statements (1)
Erie Problems (1)
Judicial Notice (1)
Waived and Forfeiture (1)
Common Interest Doctrine (1)
Out-of-State Litigant (1)
Designating the Record (1)
Inconsistent Verdicts (1)
Moot Appeals (1)
Judicial Philosophy (1)
Premises Liability (1)
Consenting to Judgments (1)
Art of Persuasion (1)
Dicta (1)
Incorrect Decisions (1)
Post-Appellate Issues (1)
Split Decisions (1)
Trial Tips (1)
Civil Code 3334 (1)
PAGA Attorney Fees (1)
Referral Fees (1)
Third Parties and Nonparties (1)
No categories Legal Writing (0)
Professional Ethics (0)
Appellate (0)
Petitionf ro Review (0)
Retainer Agreements (0)
Landlore Tenant (0)
crossmenuchevron-down