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Appellate Insight

Facade of James R. Browning US Court House

Lighter Side

Heavy Shelling

“Trial courts are often faced with ‘innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 856.)

Operating Room

“If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions.” (Park v. Nazari (2023) 2023 WL 4729968, *5.)

Frivolous Frivolity

The [appellants] further contend that sanctions may not be imposed because they did not receive ‘proper notification or due process as to what portions of the current appeal are viewed by the Court as being a basis for a frivolous appeal.’ According to the [appellants], our order to show cause should have included a declaration or affidavit by the court. This contention, itself, is frivolous.” (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.)

Vision Thing

“Beauty may be in the eye of the beholder but legal ambiguity is not. As we shall explain, there is no objective legal ambiguity in the easement here at issue.” (Zissler v. Saville (2018) 29 Cal.App.5th 630, 634.)

Snake Oil Sales

“The law worries about junk science … a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1111 (Wiley, J., concurring) (emphasis added).)

Lost in the Woods

“Concluding that this court lacks jurisdiction to review the denial of a request for an ex parte seizure order, the majority opinion accurately describes distinctions between familiar trees but fails to perceive the forest.” (In re Lorillard Tobacco Co., 370 F.3d 982, 991 (9th Cir. 2004) (Callahan, C. J., dissenting).)


“Without law of the case, cases would end only when die-hard litigants might tire of reasserting the same arguments over and over again.” (U.S. v. Agofsky, 516 F.3d 280, 283 (5th Cir. 2008).)

Art Form?

“Top–drawer legal representation, such as both parties have engaged here, can obscure the core frivolousness of an appeal beneath layers of artful obfuscation which only the most painstaking examination can peel away.” (Hewlett–Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1186, fn. 8.)


“Today, however, formal rulemaking is the Yeti of administrative law. There are isolated sightings of it in the ratemaking context, but elsewhere it proves elusive.” (Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 128, fn. 5 (2015) (Thomas, J. concurring).)

Divine Intervention

"The Supreme Court ordered a bridge across the Ohio River raised or removed because it was an obstruction to navigation. Congress responded by enacting legislation declaring that the bridge company was authorized to maintain the bridge at its existing height and to use it for the mail. Nature intervened and the bridge was destroyed by a storm." (Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852).)


“To pinpoint the value of the various potential unfiled claims [the plaintiff] might have had … against three different parties, only one of whom was even a party to the instant action, would require the court to engage in wild speculation bordering on psychic prediction.” (Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 699.)

Leaving the Sandbox

“It is contrary to the policies of the Arbitration Act to hold … that waiver can only occur once an arbitrator hears the merits … It is also significant that Nagrampa didn’t attempt to get out of the arbitration until she lost on venue and hired a new lawyer—at which point, she picked up her marbles and left.” (Nagrampa v. MailCoups, Inc. (2006) 469 F.3d 1257, 1309 (9th Cir., en banc) (Kozinski, J. dissenting).)

Top Heavy

“This logic is less a disclosure than a riddle. It relies on leaps of intuition rather than a commonsense understanding of the language used. As a means to communicate a simple thought … it collapses under its own weight.” (Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 843.)


“[The] Northwestern [insurance] policy [ ] is by no means unambiguous as Northwestern contends. More a vehicle for Jesuitical or Talmudic debate than a definition of the rights and obligations of the parties to the contract, the policy crosses one’s eyes and boggles one’s mind.” (Columbia Casualty Co. v. Northwestern National Ins. Co. (1991) 231 Cal.App.3d 457, 470.)


“In creating the excerpts of record for appeal, it behooves parties to treat appellate panels not as if we were pigs sniffing for truffles … but instead to fill our troughs to the brim with the relevant, let alone necessary, information.” (Downs v. Los Angeles Unified School Dist., 228 F3d 1003, 1007, fn. 1 (9th Cir. 2000) (internal citation omitted).)

Doctrinal Dissonance

“Other courts and commentators have maligned current finality jurisprudence as: ‘hopelessly complicated,’ ‘legal gymnastics,’ ‘dazzling in its complexity,’ ‘unconscionable intricacy’ with ‘overlapping exceptions, each less lucid than the next,’ ‘an unacceptable morass,’ ‘dizzying,’ ‘tortured,’ ‘a jurisprudence of unbelievable impenetrability,’ ‘helter-skelter,’ ‘a crazy quilt,’ ‘a near-chaotic state of affairs,’ a ‘Serbonian Bog,’ and ‘sorely in need of limiting principles.’” (Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 172 (5th Cir. 2009) (describing the federal collateral order “doctrine”).)


“Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene … on the front steps of the Sam M. Gibbons U.S. Courthouse … Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of ‘rock, paper, scissors.’ The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.” (Avista Mgmt., Inc. v. Wausau Underwriters Ins. Co., No. 6:05-CV1430ORL31JGG, 2006 WL 1562246, (M.D. Fla. June 6, 2006).)


“Plaintiff states that ‘elements of the Contract are evinced in the documents which contain, among other things, the terms of the agreement … .’ This attempt to change arguments between the complaint and the brief is like trying to change clubs after hitting the golf ball.” (Giuliani v. Duke University (M.D.NC. 2009) 2009 WL 1408869 * 3.)

Mopping Up

“We know at the Court of Appeal what you think – what trial judges think of us. That we survey the battlefield months and years after the battle has been waged, and we shoot the survivors. There’s some truth there.” (Trial transcript excerpt relating to counsel what an appellate jurist said during an evidence seminar for trial judges.)

The Living Dead

“Even so, while the plaintiffs’ second, third, and fourth causes might have been moribund when the case returned from the [high court’s] denial of certiorari, they were not declared dead and properly buried in a formal final judgment. The not quite yet dead corpse was still walking … .” (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 695.)

Judicial Smoothie

“However—to throw a couple metaphors into a blender here, just because a vexatious litigant can change his spots does not mean he or she has turned a new leaf.”  (Luckett v. Panos (2008) 161 Cal.App.4th 77, 86.)

Big Bite

The Civil Code definition of nuisance “is so broad that it could be applied indiscriminately to everything” and allowing it to substitute for traditional torts “would allow nuisance to become a monster that would devour in one gulp the entire law of tort.” (El Escorial Owners’ Ass’n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348 (internal quotations and citations omitted).)

Subterranean Engineering

“We also observe that trial attorneys who prosecute their own appeals, such as appellant, may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)

Fantasy Land

“We can hardly believe that any trial lawyer would seriously anticipate an opportunity to examine the jurors after they were sworn. Although that opportunity may be enticing, its contemplation is wholly fanciful.” (Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 324.)

Sugar Coating

“What the heck?!? At one point, the trial court commented, ‘This is one of the most screwed up cases I’ve ever seen.’ We heartily agree.” (Essex Insurance Co. v. Heck (2010) 186 Cal.App.4th 1513, 1515.)

Legal Scholarship

“This is an argument only a lawyer could love; it rests on semantics rather than on reason.” (Gallo v. Sup. Ct. (1988) 200 Cal.App.3d 1375, 1380.)

Us and Them

“This case comes to us on stipulated facts. The parties agree that summary judgment in favor of someone is appropriate.” (Century Surety Co. v. United Pacific Insurance Co. (2003) 109 Cal.App.4th 1246, 1254.)

Stimulating Reading

“After this mind-numbing journey through RCRA, we return to the provision that is, after all, the one before us for examination.” (American Mining Congress v. United States EPA, et al. (D.C. Cir. 1987) 824 F.2d 1177, 1189.)