By Patrick Burns
November 1, 2020
Sometimes in an appeal, the appellant takes a “kitchen sink” approach to briefing by advancing a number of baseless claims. Appellant has the burden of showing the lower court erred and may believe if it hurls enough contentions, maybe one will stick. Even though some of appellant’s arguments may have merit, that type of shotgun approach to appellate litigation can be frustrating and costly for a respondent tasked with investigating and responding to all of the arguments. But, in California, a...
By David C. Casarrubias-González
August 25, 2020
There are a handful of legal doctrines that can be difficult to comprehend, but the law of the case doctrine shouldn’t be one of them. Yet, time and again, the doctrine seems to perplex litigants, especially when deciding whether it is binding or discretionary, and whether it has any application to a trial court’s own prior rulings. The answers to both of these questions are important to understand before asking a court to revisit a prior ruling. The basic rule is this: a ruling or holding...
By Neil R. Bardack
July 20, 2020
The recent Court of Appeal decision in Roche v. Hyde, Nos. A150459, A1500462 (filed 6/30/20), though unpublished, presents a cautionary tale for lawyers and clients. The case arises out of sale of a winery in Sonoma County by Roche (“Seller”) to Ram’s Gate, LLC (“Buyer”). The focus of the fraud and misrepresentation claims by the Buyer was Seller’s failure to disclose a seismic report that showed an active fault line under a building pad. Seller maintained the report had been delivered to the...
By Patrick Burns
June 10, 2020
Amici curiae often walk a tightrope between offering argument that is supplemental, but also sufficiently within the issues framed by the parties. That tightrope may be even narrower after the Supreme Court issued its decision in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020), which vacated an order by the Ninth Circuit for violating the party presentation rule. Under the “party presentation rule,” federal courts are discouraged from considering legal arguments and issues not raised by...
By Gary A. Watt and Rosanna Gan
May 8, 2020
In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, the California Supreme Court examined evidence burdens in the context of the anti-SLAPP statute. Despite resolving anti-SLAPP issues, the opinion has serious implications for summary judgment motions that may not be obvious. In resolving anti-SLAPP issues, Sweetwater analogized to summary judgment motions. In the anti-SLAPP context, once protected activity has been demonstrated, courts are to accept the opposing...
By Josephine K. Petrick and Breana L. Burgos
March 31, 2020
2019 was another active year for federal appellate anti-SLAPP opinions. Most notably, the circuit split deepened over whether state anti-SLAPP laws even apply in federal court. Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, recent decisions may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit. Given the current robust circuit split and many intracircuit tensions...
By David C. Casarrubias-González
December 30, 2019
The line between zealous advocacy and ethical conduct can sometimes become blurry to the advocate seeking to vindicate the client’s cause. And this includes appellate advocacy, not just trial work. Fortunately, the Rules of Professional Conduct inform counsel that ethical duties actually demarcate the boundaries that might otherwise be overlooked. And one of those duties is to disclose adverse authority to the courts, not simply to ignore it. It’s been a little over a year since attorneys...
By Neil R. Bardack
November 20, 2019
There is a common belief among some lawyers that a settlement is not complete until there is a formal written agreement signed by the parties that has all the “bells and whistles” typical of a settlement agreement. Not always so. In J.B.B. Investment Partners LTD v. Fair (2019) 37 Cal.App.5th 1, Division 2 of the First Appellate District enforced a settlement based upon emails: one from Plaintiffs’ counsel stating a “last and final offer” setting out the terms; and one from Defendants, albeit...
By Adam W. Hofmann
October 30, 2019
It is a truism in appellate practice that the respondent/appellee is in the best position; the standards of review and presumptions largely weigh in favor of affirmance, and so winning in the trial court is statistically the best way to win on appeal. In the spirit of making lemonade from lemons, however, one of the benefits and joys of being an appellant is getting to file a reply brief. In California and federal appellate courts of appeal, reply briefs are nominally optional. In practice, all...
By Josephine K. Petrick
September 10, 2019
Amicus briefs are often thought of as limited to appellate courts. However, they can be useful in federal district court, too. District courts have inherent authority to allow amici curiae to participate in briefing. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005). Benefits to Amici in District Court Potential amici are likely to be interested in the broader impact on the law, especially when the case involves novel legal questions or...