The California Blog of Appeal

The considerations for an award of punitive damages can strike one as inherently subjective, especially those that govern whether a particular award is allowed by the United States Constitution, ...

https://www.calblogofappeal.com/2021/04/17/the-standard-of-review-for-punitive-damages-awards/

I think you’d have a hard time finding any attorney who enjoys the process of written discovery. The process is unpleasant, especially when dealing with a stubborn party or counsel. The costs c...

https://www.calblogofappeal.com/2020/02/11/blogroll-addition-resolving-discovery-disputes/

A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a juri...

https://www.calblogofappeal.com/2020/01/31/supreme-court-finds-attorneys-notice-of-appeal-from-attorney-sanctions-award-sufficient-if-it-names-only-the-client-as-the-appellant/

If you have ever had the itch to write something like the title of this post into a brief, you might enjoy “What Lawyers Can Learn from Edgar Allan Poe,” one of the latest legal papers availa...

https://www.calblogofappeal.com/2019/10/02/quoth-the-judge-nevermore/

I just got a client inquiry based on a 2008 post, so I looked at the post, and . . . YIKES! I found someone had hacked my blog and inserted advertisements into the post! The advertising links are...

https://www.calblogofappeal.com/2019/06/06/ok-who-the-heck-hacked-ny-blog/

Or, should I say, the blog is back. I’m not sure how much blogging I will do in the near future, but at least the old posts are up again after an extended outage. The fix was really simple, but...

https://www.calblogofappeal.com/2018/02/06/im-back/

Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin p...

https://www.calblogofappeal.com/2017/09/25/truefiling-comes-to-the-second-district-court-of-appeal/

The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be ...

https://www.calblogofappeal.com/2017/08/21/mandatory-e-filing-in-the-california-supreme-court-is-imminent-learn-the-rules/

When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise w...

https://www.calblogofappeal.com/2017/08/21/how-flexible-is-that-midnight-electronic-filing-deadline-in-federal-court/

A brief must “tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Cour...

https://www.calblogofappeal.com/2017/08/15/should-a-respondent-always-move-to-strike-a-defective-appellants-opening-brief/

When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond t...

https://www.calblogofappeal.com/2017/08/14/the-15-minute-filing-extension-brought-to-you-by-the-era-of-midnight-electronic-filing-deadlines/

In 2007, I wrote about the questionable rule of Clemmer v. Hartford Insurance Co. (1978) 28 Cal.3d 865, which concluded that an order denying a motion to vacate made under Code of Civil Procedure...

https://www.calblogofappeal.com/2017/06/15/long-derided-clemmer-v-hartford-insurance-co-disapproved-by-supreme-court-an-order-denying-a-motion-to-vacate-under-code-of-civil-procedure-section-663-is-appealable/

I wrote last year about In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a cautionary tale about a trial court’s “clarification” of its order (read: “void modificati...

https://www.calblogofappeal.com/2016/10/28/a-light-hearted-friday-post-what-is-the-standard-of-music-on-appeal/

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federa...

https://www.calblogofappeal.com/2016/09/20/appellate-judge-alex-kozinski-addresses-the-dangers-of-unsettled-science-in-the-courtroom/

Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals – including lawyers – to fear they are next? At  The American Int...

https://www.calblogofappeal.com/2016/09/16/will-appeals-lawyers-be-replaced-by-computers/

According to a notice I received today from the California Appellate Project: The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in ...

https://www.calblogofappeal.com/2016/09/07/second-district-court-of-appeal-to-implement-truefiling-e-filing-system-in-late-2016/

The 2015 edition of the California Litigation Review hit my mailbox yesterday. It is published by the Litigation Section of the California State Bar and it has some terrific coverage of appeals ...

https://www.calblogofappeal.com/2016/04/14/the-2015-edition-of-the-california-litigation-review-is-out/

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are ter...

https://www.calblogofappeal.com/2016/04/13/will-a-death-penalty-initiative-make-it-easier-to-obtain-supreme-court-review-of-your-civil-case/

The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s...

https://www.calblogofappeal.com/2016/03/31/insight-into-the-supreme-courts-decisions-on-whether-to-hear-cases/

The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at...

https://www.calblogofappeal.com/2016/03/09/does-internet-technology-influence-the-way-lawyers-and-judges-think-should-it/

I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground sup...

https://www.calblogofappeal.com/2016/02/19/the-generosity-of-the-court-of-appeal-in-granting-relief-from-default-has-its-limits/

Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below,...

https://www.calblogofappeal.com/2016/02/17/affirming-on-appeal-on-an-alternate-ground-the-rule-as-applied-to-section-473b-motions-for-relief/

Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. ...

https://www.calblogofappeal.com/2016/02/03/the-twists-and-turns-of-precedent/

Enthusiasts of the “Grand Theft Auto” video game might think that “petty theft auto” sounds rather wimpy, but to a felon car thief seeking a sentence reduction under Proposition 47, “...

https://www.calblogofappeal.com/2016/01/13/petty-theft-auto-just-doesnt-have-the-same-ring-to-it/

Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskani...

https://www.calblogofappeal.com/2015/10/26/to-the-court-of-appeal-there-is-no-such-thing-as-a-wrongly-decided-supreme-court-case/

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court report...

https://www.calblogofappeal.com/2015/10/21/the-lack-of-a-reporters-transcript-can-kill-your-appeal/

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisi...

https://www.calblogofappeal.com/2015/10/20/it-is-imortant-to-keep-up-with-the-law-while-your-appeal-is-pending/

You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it hold...

https://www.calblogofappeal.com/2015/09/30/third-district-court-of-appeal-creates-a-quagmire-regarding-prop-47-sentence-reductions/

It drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to ex...

https://www.calblogofappeal.com/2015/09/29/the-implications-on-appeal-of-clarified-trial-court-orders/

We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent b...

https://www.calblogofappeal.com/2015/09/28/the-kitchen-sink-has-no-place-on-appeal/

In his latest book, The Sense of Style — described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated fo...

https://www.calblogofappeal.com/2015/09/18/language-help-for-everyone-not-just-lawyers/

If not, then why write emails and texts the way you do? In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the qualit...

https://www.calblogofappeal.com/2015/09/16/omg-can-you-imagine-writing-an-argument-in-the-style-of-an-email-or-a-text/

California trial courts classify civil cases as either “limited jurisdiction” or “unlimited jurisdiction,” depending on the amount in dispute. If the amount in dispute is $25,000 or less,...

https://www.calblogofappeal.com/2015/09/16/you-cant-change-the-rules-on-appeal-just-because-you-dont-like-the-outcome-at-trial-how-judicial-estoppel-can-foil-your-appeal/

Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately: Many people, including many lawyers and judges, disparage law rev...

https://www.calblogofappeal.com/2015/09/11/jargon-filled-academic-writing-has-no-place-in-your-briefing-on-appeal-but-does-it-have-its-place/

For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced at tri...

https://www.calblogofappeal.com/2015/09/10/close-counts-in-horseshoes-and-hand-grenades-but-not-when-it-comes-to-identifying-new-evidence-in-a-new-trial-motion/

One of the frustrations for parties forced to arbitrate their claims rather than pursue them in court is the unavailability of a direct route of appeal from the arbitration award. Generally, the ...

https://www.calblogofappeal.com/2015/09/09/no-appeal-from-order-vacating-partial-arbitration-award/

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That �...

https://www.calblogofappeal.com/2015/08/28/construction-defect-case-demonstrates-a-two-fer-on-grounds-for-obtaining-review-by-petition-for-writ-of-mandamus/

If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pr...

https://www.calblogofappeal.com/2015/08/27/sixth-district-court-of-appeal-offers-the-legislature-some-advice-on-amending-the-anti-slapp-statute/

Here’s the graphic from a good New Yorker cartoon about appeals: To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you kno...

https://www.calblogofappeal.com/2015/08/21/friday-appellate-humor/

This week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendi...

https://www.calblogofappeal.com/2015/08/20/some-technical-help-for-e-filing-in-the-court-of-appeal/

If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduce...

https://www.calblogofappeal.com/2015/08/19/the-court-of-appeals-time-machine-interest-calculations-on-modified-judgments/

As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The p...

https://www.calblogofappeal.com/2015/08/18/the-standard-of-review-on-appeal-regarding-enforceability-of-arbitration-clauses/

Details here. The court has adopted a new Local Rule 5 covering e-filing procedures, which become effective September 14. It looks like documents need to be filed through the proprietary TrueFili...

https://www.calblogofappeal.com/2015/08/12/mandatory-e-filing-comes-to-the-third-district-court-of-appeal/

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring t...

https://www.calblogofappeal.com/2015/08/12/how-hanging-out-with-the-wrong-crowd-might-doom-your-appeal-of-your-criminal-conviction/

The headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters...

https://www.calblogofappeal.com/2015/08/11/are-records-on-appeal-from-the-los-angeles-superior-court-about-to-get-better/

On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and...

https://www.calblogofappeal.com/2015/08/11/sb-470-codifies-reid-v-google-inc-provides-that-objections-to-summary-judgment-evidence-are-preserved-for-appeal/

Regular readers will note a different look to the blog, which I implemented over the weekend. I actually liked the old look better, but my WordPress upgrade “broke” the Headway theme I used t...

https://www.calblogofappeal.com/2015/08/10/changes-to-the-blog/

The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the...

https://www.calblogofappeal.com/2015/08/07/apparently-the-law-library-of-the-future-is-going-to-be-one-big-kindle/

Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal. Good ...

https://www.calblogofappeal.com/2015/08/04/is-your-notice-of-appeal-likely-to-generate-settlement-leverage/

I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited...

https://www.calblogofappeal.com/2015/07/30/california-supreme-court-invites-your-comment-on-change-afoot-for-depublication-of-cases-accepted-for-review-by-the-california-supreme-court/

Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to...

https://www.calblogofappeal.com/2015/07/28/dont-treat-one-superior-court-judge-as-the-reviewing-court-for-another/

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up t...

https://www.calblogofappeal.com/2015/07/23/the-appellate-angle-in-marriage-of-davis/

The TEN Networks, Inc. launched its blog last week, and the editors graciously designated The California Blog of Appeal as one of its Member Blogs of the Month, along with with Elderupdates.com, ...

https://www.calblogofappeal.com/2015/07/21/congrats-and-thank-you-to-the-new-ten-networks-blog-and-welcome-ten-members/

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United ...

https://www.calblogofappeal.com/2015/07/21/federal-judge-appellate-judges-know-nothing-about-tech/

Expert witness service The Expert Institute is taking nominations for entries in its 2015 Best Legal Blog Contest. Do I need to say anything more? OK, here comes the shameless part. Whether you ...

https://www.calblogofappeal.com/2015/07/17/shameless-request-for-nominations/

Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on...

https://www.calblogofappeal.com/2015/07/16/overcoming-the-abuse-of-discretion-standard-on-appeal-of-an-attorney-fee-award-what-did-the-trial-court-actually-do/

Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects. One recent attempt — but ultimately a...

https://www.calblogofappeal.com/2015/07/10/the-deadline-for-filing-the-memorandum-and-affidavits-in-support-of-a-motion-for-new-trial-is-not-jurisdictional/

When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as...

https://www.calblogofappeal.com/2015/07/09/egregious-attorney-misconduct-at-trial-leads-to-reversal-on-appeal/

The term “summary denial” sounds pretty bad when you are the party seeking relief. It has an air of finality. Sheesh, not even a hearing on the merits! But a summary denial is not final in e...

https://www.calblogofappeal.com/2015/07/02/dont-give-up-when-your-motion-to-dismiss-an-appeal-is-summarily-denied/

The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pe...

https://www.calblogofappeal.com/2015/06/30/how-the-nature-of-your-appellate-challenge-can-affect-whether-your-appeal-is-dismissed-for-failure-to-obey-trial-court-orders/

I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regr...

https://www.calblogofappeal.com/2015/06/24/no-judicial-notice-for-a-law-of-physics-but-for-a-different-reason-than-you-might-expect/

A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges” are Not Su...

https://www.calblogofappeal.com/2015/06/04/my-blog-post-on-reading-briefs-from-a-screen-is-now-an-article-and-welcome-citations-readers/

I’ll be taking the blog offline some time this afternoon or this evening to update some of the software on the back end. I don’t know if it will be down for a few hours or a few days — it a...

https://www.calblogofappeal.com/2015/05/29/the-blog-will-be-down-for-maintenance-starting-later-today/

A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention readi...

https://www.calblogofappeal.com/2015/05/26/does-classroom-laptop-use-inhibit-law-school-learning/

Imagine if you could go to a website, type in a term, and find every mention of that term in hearings in the California legislature . . . and not only that, but have the site take you directly to...

https://www.calblogofappeal.com/2015/05/13/digitaldemocracy-org-an-experiment-in-legislative-transparency/

I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are...

https://www.calblogofappeal.com/2015/05/07/maybe-ipad-judges-arent-such-a-good-idea/

As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S...

https://www.calblogofappeal.com/2015/03/17/a-break-for-some-shipmates-and-a-lesson-on-drilling-down-on-the-standard-of-review/

I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Ma...

https://www.calblogofappeal.com/2015/03/10/do-longer-briefs-correlate-to-success-for-appellants/

In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Ser...

https://www.calblogofappeal.com/2015/01/23/can-your-trial-judge-give-you-a-boost-toward-getting-appellate-review-of-a-non-appealable-order/

The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing brie...

https://www.calblogofappeal.com/2014/11/25/dont-lightly-assume-that-youve-extended-your-time-to-appeal-with-a-post-trial-motion/

I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of Cal...

https://www.calblogofappeal.com/2014/11/18/new-blog-to-cover-california-supreme-court/

In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who ...

https://www.calblogofappeal.com/2014/11/03/what-can-ernest-hemingway-teach-you-about-legal-writing/

There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediato...

https://www.calblogofappeal.com/2014/08/27/how-to-make-your-mediation-brief-effective/

I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case?...

https://www.calblogofappeal.com/2014/07/28/opposing-the-pro-se-appellant/

When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink: Brooks’s opening brief on ap...

https://www.calblogofappeal.com/2014/07/02/doesnt-anybody-read-the-rules/