If you’ve ever sought the advice of an appellate attorney, or have any experience with appellate law, you probably already know that timely filing of the notice of appeal is critical. In a civil appeal, allowances for a tardy notice are limited to public emergencies, such as earthquake, fire, or the destruction of the courthouse. (Cal. Rules of Court (“CRC”) 8.66.) Otherwise, the appellate court must dismiss a late filed appeal. (CRC 8.104; see also CRC 8.60 [appellate court may not relieve a...

A reflection on the changes to the rules governing the filing of amicus curiae briefs in the United States Supreme Court. Each new year typically comes with slight changes to the rules of appellate procedure, and 2023 was no exception. This year, the Supreme Court rolled out new rules for parties who file amicus curiae briefs. Thankfully, the changes made it much easier to be friends with the Golden Girls (and Boys) on the Court. The requirements for filing amicus briefs are found in Supreme...

Federal appellate practitioners are readily familiar with the principle that a district court’s order denying summary judgment is generally not immediately appealable. Instead, an appeal regarding the summary judgment denial must wait until a final judgment has been rendered. This most often occurs after trial. But if the parties proceed to trial, to what extent is the defendant who lost the summary judgment motion responsible for re-raising arguments they lost at summary judgment prior to the...

2022 was a banner year for appointments and elevations to California’s Courts of Appeal. The State’s new Chief Justice and newest Associate Justice of the California Supreme Court led the news, but Governor Newsom also filled a large number of vacancies on the intermediate appellate courts. With all this change, it seemed a good time to take a quick look at the newest justices who will be shaping California jurisprudence in the coming years. The California Supreme Court Less than a year after...

Justice William Bedsworth’s recent column, “Oral Argument: Better Than Oral Surgery,” packs a lot of meanings into the title’s last four words. ( See The Recorder, 12/19/2022. ) I suppose it might depend on viewpoint, you know, surgeon or patient, the condition in question, the complexity of the problem, and how direct the approach. I’m not speaking of dentistry here. Getting counsel to answer questions can be like pulling teeth. I was reminded of that yesterday while looking for an oral...

Appellate courts have broad power when it comes to judicial notice, and that power is comprised of two types of matters: mandatory and discretionary. In the first part of this two-part post, I discussed matters that an appellate court must judicially notice. (See Judicial Notice on Appeal: Mandatory Subject Matter, Appellate Insight , October 2021. ) This post will discuss those matters that an appellate court may judicially notice. Relevant Evidence Code Provisions Once again, the starting...

In CoreCivic, Inc. v. Candide Group, LLC , 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California’s “Anti-SLAPP statute” may be filed in federal diversity actions. As the court reflected, circuits have split over the federal implementation of the various states’ Anti-SLAPP motions. See id. at 1142–43. But the Ninth Circuit’s position on this question has been long settled. Id. at 1140. And the Ninth Circuit’s latest...

In the wake of the Coronavirus pandemic, countless policyholders made insurance claims with their carriers based on the closure or interruption of their businesses. The insurers with near-uniformity denied coverage, presenting a united front against their insureds. Thousands upon thousands of cases ensued testing the propriety of the insurers’ denial of coverage. Many business-interruption insurance policies are meant to cover losses tied to the “direct physical loss or direct physical damage”...

In an opinion that is the first of its kind in the California appellate courts, the Second District Court of Appeal, Division 7, has ruled that certain COVID-19-related business losses may be covered by business-interruption insurance (BII) policy provisions. Marina Pacific Hotels & Suites, LLC v. Fireman’s Fund Ins. , No. B316501, 2022 WL 2711886 (Cal. Ct. App. July 13, 2022) (slip op.), available at https://www.courts.ca.gov/opinions/documents/B316501.PDF . The groundbreaking opinion gives a...

When the 9th Circuit issued Monster Energy Company v. City Beverages, LLC , 940 F.3d 1130 (9th Cir. 2019), there was immediate concern over how far the decision would extend and how many cases it would spawn. The decision vacated an arbitral award in favor of Monster Energy. The court found there was evident partiality “given the Arbitrator’s failure to disclose his ownership interest in JAMS, coupled with the fact that JAMS has administered 97 arbitrations for Monster over the past five years.”...