California Appellate Law Blog

California Appellate Law Blog

News and Insights about Appellate Law

Category Archives: Civil Procedure

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Contractual Attorney Fees in California: Which Statute Applies?

Posted in Appellate Practice, Civil Procedure, Recent Decisions
A recurring theme in my recent Daily Journal publications has been the rough doctrinal fit between operation of Civil Code section 1717 and Code of Civil Procedure section 1021 and section 1032. Section 1717 has been interpreted to apply to actions “on a contract” where such contracts contain an attorney fee provision. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) … Continue Reading

Contractual Attorney Fee Provisions: Words Matter

Posted in Appellate Practice, Civil Procedure, Recent Decisions
This blog entry provides an analytical metric for double-checking assumptions about application of Civil Code section 1717 and contractual attorney fee awards.  As the case law demonstrates, it is easy to misapprehend how and when the statute actually operates.  Section 1717(a) states that “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are … Continue Reading

Mandatory Relief from Summary Judgment? Courts Are Still Split.

Posted in Civil Procedure, Recent Decisions
Code of Civil Procedure section 473, subdivision (b) requires a court, under certain circumstances, to grant relief from default or dismissal that results from counsel’s mistake, inadvertence, surprise, or neglect.  In a recently-published opinion, Las Vegas Land & Development Co. v. Wilkie Way (2013) 219 Cal.App.4th 1086, 1090, Division Three of the Second Appellate District … Continue Reading

Thriller?

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, Recent Decisions
The verdict is in.  AEG Live is not liable in the Michael Jackson wrongful death suit.  An appeal is a foregone conclusion.  But will an appeal be a "Thriller?"  The standards of review tend to reduce the possibility of drama, and also deflate the charged emotions attendant during trial.  For example, the pivotal factual dispute–was AEG Live negligent in its retention … Continue Reading

Reconsideration: A Possible Side Effect of Depublication

Posted in Civil Procedure, Recent Decisions
Under the California Rules of Court, rule 8.1125(c), the Supreme Court has the discretionary power to depublish an opinion at any time. Recently, the California Court of Appeal held that, when this happens, depublication can constitute “a change in the law” sufficient to warrant reconsideration under Code of Civil Procedure section 1008. Farmers Insurance Exchange v. Superior … Continue Reading

Sign Here

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer, Recent Decisions
In 2006 the Legislature amended Code of Civil Procedure section 998 to state that "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted."  In 2013, we are still seeing cases in which failure to include the acceptance provision … Continue Reading

Flag on the Play

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
Archer Norris welcomes Tiffany J. Gates to the appellate practice team and is pleased to present her first blog entry: Flag on the Play Football coach Vince Lombardi famously opined that, “Winning isn’t everything; it’s the only thing.”  This mantra captured the public’s imagination during Lombardi’s reign as coach of the Green Bay Packers in … Continue Reading

Prevailing Party Attorney Fee Awards

Posted in Appellate Procedure, Civil Procedure
This Friday, November 16th, I will be joined by the Honorable Justice Mark Simons (First Appellate District, Division 5) and Don Willenburg of Gordon & Rees, for a discussion on contractual attorney fee awards.  The panel presentation will take place during the Contra Costa County Bar Association’s annual "MCLE Spectacular" in Walnut Creek.  Topics include fee awards as … Continue Reading

998 Update: Avoiding the Wreckage

Posted in Appellate Practice, Civil Procedure, Recent Decisions
Evaluating Code of Civil Procedure section 998 offers brings to mind the partner that every associate meets – the one that ends the assignment with, “It shouldn’t take long – it’s a no-brainer.” Of course, that assignment is always anything but a “no-brainer.” The same can be said about analyzing 998 offers. While the statute’s … Continue Reading

The Carrot and Stick

Posted in Civil Procedure
Code of Civil Procedure section 998 jurisprudence is a hot topic these days. Last month, the Fourth Appellate District directly addressed the issue of whether a defendant can recover the fees expended on a plaintiff’s expert when the plaintiff fails to obtain a more favorable award under section 998(c). In Chaaban v. Wet Seal, Inc., 2012 Cal.App. … Continue Reading

Undoing Default Judgments

Posted in Appellate Practice, Civil Procedure, Recent Decisions
By Limor Lehavi Default judgments can be appealed for failure to state a cause of action and excessive damages.  That is the holding of a recent opinion written by Justice Bedsworth for the California Court of Appeal, Fourth Appellate District, in which the court overturned a default judgment, and entered judgment for the defendants instead. … Continue Reading

Up In Smoke

Posted in Appellate Practice, Civil Procedure, Recent Decisions
A recent decision by the Third Appellate District is a reminder of the opportunity and the limits of a motion for judgment on the pleadings.  The case is Collins v. eMachines, Inc.  In Collins, the plaintiffs brought a putative class-action against eMachines for defects in its computers.  eMachines moved for judgment on the pleadings.  As … Continue Reading

Goin Round in Circles

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
A recurring theme is that collectively speaking, lawyers often make and evaluate Code of Civil Procedure section 998 offers without a complete understanding of how the statute operates.  That knowledge gap is a little scary.  But before you conclude I am talking down to trial lawyers (and many have heard me admire how trial lawyers react in … Continue Reading

Legal Eagles

Posted in Appellate Practice, Civil Procedure
As appellate veterans know, oral arguments in the Ninth Circuit frequently tend to be hotter than in the state appellate courts.  And one of the great things about being director of the Hastings Appellate Project, the clinical program in which Hastings students handle pro bono cases in the Ninth Circuit, is watching the students argue their … Continue Reading

Wrinkles

Posted in Appellate Procedure, Civil Procedure, Recent Decisions
Code of Civil Procedure section 998 offers rest upon a simple concept.  As one Court of Appeal put it, 998 offers "encourage settlement by providing a strong financial disincentive to a party–whether it be a plaintiff or a defendant–who fails to achieve a better result than that party could have achieved by accepting [a 998] settlement offer. (This is … Continue Reading

Stimulus Package?

Posted in Civil Procedure, On Being a Lawyer
The Great Recession has been a trying time, calling for innovative leadership and creative thinking by the California Legislature.  And the Legislature appears to have spent 2010 concerned with your spirits.  The fluid, drinkable kind, that is.  A review of the legislation enacted effective January 1, 2011 includes the following intoxicating mix of beverage measures. The new laws: … Continue Reading