Legal News and Appellate Tips

Lee Goldberg joins Jeff Lewis and me for a discussion about his perspective on litigation as outside general counsel for his business clients. Lee shares his three decades of experience using litigators to solve business problems, and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn (available at his website CalLawyers.com), and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:
•On litigation objectives: " My client is never principle over business. Ever."
•On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
•On hiring the right litigation team: "Local, smaller, dedicated, smart counsel is what I look for."
•On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever."
•On success: "The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Would love to hear your perspectives.

Listen to the episode here: https://lnkd.in/gsteHnG8

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It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549). After the defendant filed a motion for summary judgment, the plaintiff's attorney pressured a witness to sign a declaration. Based on that declaration, the court denied the motion. But a later deposition revealed nothing about the declaration was true, and that the witness signed it just to get the attorney to leave her place of employment to avoid trouble.

I was surprised to find the court offered no admonition against the conduct of plaintiff's counsel. What counsel did here seems to me very close to suborning perjury. True, the case is not over, and the trial court will have the opportunity to make whatever admonitions are appropriate. But then again, the indulgent trial court would have credited the false declaration — even after the evidence showed it was false — had the Court of Appeal not stepped in. I think a word about ethics was called for here.

Does this surprise you, Donald Patrick Eckler, DAN COTTER, Kansas Gooden, Lindsey Lawton?

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Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it might exist is critically important. And all that is required is an affidavit under Code of Civil Procedure section 437c(h), so why not file one?

But some courts may scrutinize this affidavit, as we are reminded in Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.). The plaintiff in that employment-discrimination case opposed summary judgment by filing an affidavit explaining she needed to take the deposition of the person most qualified about the employer's reorganization policy that led to the plaintiff's termination. Seems like a sound approach. But while section 437c(h) does not require much more specificity, some cases interpreting it do, and require the opposing party to state the "particular essential facts that may exist."

The plaintiff didn't include those magic words in her affidavit. So discovery denied, summary judgment granted, and affirmed on appeal.

(I offer a critical comment in the article, and would be interested to know your thoughts about it.)

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There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

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TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 3 of the California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.