California Code of Civil Procedure 904.1 is probably not a stranger to appellate lawyers who practice in California, as the statute provides a list of certain types of pre-trial orders from which an appeal may be taken. One of the categories of orders listed is “order[s] granting or dissolving an injunction, or refusing to grant or dissolve an injunction.” The statutory phrase “injunction” is interpreted broadly (subject to some exceptions) and applies to a number of different types of...

Under the California Arbitration Act (“CAA”), an adverse award is subject to judicial review. Any party may petition the superior court to either vacate or correct the award. (Code Civ. Proc. § 1285.) But in most instances, such review is limited by statute, and such petitions face a number of substantive and procedural obstacles. Before seeking review of an arbitrator’s award, consider the following principles: Generally, a party challenging an award may only petition to correct or vacate a...

When it comes to appealing in California’s state courts, the One Final Judgment Rule governs. Challenges to interim orders must await the final judgment. ( Griset v. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 697 (appeal is taken from a final judgment disposing of all controverted matters); Knodel v. Knodel (1975) 14 Cal.3d 752, 760 (“The reason for the one judgment rule is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and … a...

Judicial notice is a powerful tool for litigants to get factual matter in front of a court without a sponsoring witness or all the other burdensome requirements under the rules of evidence. If used properly, facts that are beyond dispute and other universally known facts can be firmly established in the case so that the parties can focus on triable issues that must be resolved by a judge or a jury. For example, in a burglary case, a trial court may take judicial notice of when the sun set on a...

Sometimes, due to inadvertence, eagerness to move the case along, or strategic considerations, litigants will jump the gun and file a notice of appeal while post-trial motions are pending. What are the consequences of this strategy in California? It depends. For certain post-trial motions, a superior court retains jurisdiction to rule on them even though a notice of appeal is filed—but that is not true for all such motions. And in some cases, the law is not yet settled. As always, careful...

It’s safe to say that I’ve been fortunate in my legal career. Among other blessings, I have also benefitted from representing clients who were consistently right on the law and facts and who were even justified from a moral and public-policy perspective. Yet, exasperatingly, I have not prevailed in all of the cases I have litigated. This strange disconnect between objective righteousness and subjective results can only be explained by one thing: judges sometimes make mistakes. And while our...

In a prior post, we discussed avoiding the death knell of an untimely notice of appeal in California’s state courts ( see Jan. 29, 2021). But what else can go wrong with a notice of appeal? A lot. Even though the notice of appeal is a decidedly simple filing, it should come as no surprise that there are plenty of mistakes that have been, and can be made. Fortunately, only a small subset of mistakes have been deemed un-correctable if the deadline to appeal has passed. See CRC 8.100(a)(2) (“The...

While attorneys advocate, judges search for the right result. Here are three techniques for persuading judges by aiding them in their truth-seeking mission. First, channel your audience’s inner “scientist.” Organizational psychologists refer to four archetypes: The preacher invokes fundamental values. The prosecutor tries to win an argument. The politician seeks to gain approval. And the skeptical scientist searches for the truth. Though advocating logically involves the prosecutor archetype...

Can an order ruling on a motion or petition to compel arbitration in federal court be appealed? While federal appellate jurisdiction is generally limited to “final decisions” of the district courts (28 U.S.C. § 1291), the Federal Arbitration Act (“FAA”) authorizes interlocutory appeals from orders denying arbitration. But the ability to appeal an order that compels arbitration depends on whether the district court dismisses the civil action. Before appealing an order on a motion or petition to...

Protecting the record for appeal is always a popular topic for legal education programs. After all, securing the hard-fought trial victory or turning around the case that went off the rails can depend on making sure a proper record is made for appellate review. But the most perfectly protected record is meaningless if the notice of appeal is untimely. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (absent timely filed notice of appeal...