Probate and trust disputes are fertile grounds for appeal. That is because under Probate Code section 1300, most categories of probate orders, including orders instructing a fiduciary to act, are immediately appealable. That, coupled with automatic stay rules, allows litigants to delay the administration of trusts and estates indefinitely, simply by filing a notice of appeal. (Probate Code §§ 1300, 1310(a).) But not always. The Legislature has carved out a safe harbor exception that validates...

The United States Supreme Court recently ruled in Kindred Nursing Centers v. Clark that a Kentucky Supreme Court holding barring attorneys-in-fact from signing arbitration agreements on behalf of their principals because it infringed on their principal’s constitutional right to a trial by jury, was pre-empted by the Federal Arbitration Act (FAA). What is remarkable about the opinion authored by Justice Elena Kagan, is that it puts virtually the entire court (save for Justice Clarence Thomas who...

A decision from the Sixth District Court of Appeal is worth a look. ( Heimlich v. Shivji (May 31, 2017) 2017 WL 2351269). The opinion rests on the premise, recognized in at least one prominent practice guide as well, that Code of Civil Procedure section 998(b)(2) prevents a party from breathing a word about a 998 offer until after the arbitrator renders an award. Those perusing the statute have probably noticed the language, and perhaps wondered about its scope: If the offer is not accepted...

Eventually, it happens to us all. Somehow or other, we end up in court facing a vexatious litigant—a person who, acting in pro per, repeatedly pursues meritless law suits or frivolous pleadings, motions, and discovery. Ordinarily, this happens when a vexatious litigant sues, and we attorneys spend incredible (if unavoidable) amounts of time and money trying to extricate our clients from the fray. California’s statutes, however, exist to reduce this risk to the unwary public, creating procedural...

In federal court, partial dismissals present plaintiffs with a difficult choice. They can seek an immediate appeal or continue litigating their live claims. But they cannot do both, though they are often motivated to do so. And defendants should be prepared to hold plaintiffs to that choice—as the Ninth Circuit indicated it was willing to do in comments during a recent oral argument. Briefly stated, plaintiffs facing partial dismissal must meaningfully relinquish their live claims in order to...

If you handle appeals, then you’ve probably heard yourself mutter at least once, “What a frivolous appeal!” It’s bound to happen now and then, given the zealous advocacy that comprises an essential ingredient in any litigator’s DNA. But while some appeals are losers, not every loser appeal is frivolous. Where’s the dividing line? The California Supreme Court finds frivolity when: (1) an appeal is prosecuted for an improper motive (to harass or delay); or (2) any reasonable attorney would agree...