California Appellate Law Blog

California Appellate Law Blog

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Category Archives: Recent Decisions

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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

‘Tis the Season for Social Host Liability

Posted in Recent Decisions
With Christmas just around the corner, the holiday season is well underway.  For many, this means that the next few weeks will be filled with buying and wrapping gifts, baking and decorating cookies, listening to festive holiday tunes, and of course, hosting and attending parties.  It’s fitting, then, that earlier this month the California Supreme Court heard … 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

Abracadabra

Posted in Appellate Practice, On Being a Lawyer, Recent Decisions
Misdirection is a form of deception employed by magicians to focus the attention of an audience on one thing in order to distract its attention from another. For example, a magician announces that he is going to make a donkey appear behind a curtain in the middle of the stage. While his beautiful assistant distracts the audience … 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

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

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

The $36K Pellet

Posted in Recent Decisions
Every now and again an appellate decision comes down the pike with the banner, "they didn’t, did they!?"  A recent decision, Kimes v. Grosser, 2011 Cal.App. LEXIS 671, is a notorious example.  Cat lovers, stop reading now.  But those annoyed by a neighbor’s cat, dog, or even the neighbors themselves, here’s your chance to take a deep breath… Continue Reading

Mincing Words

Posted in On Being a Lawyer, Recent Decisions
The United States Supreme Court heard oral argument last week in a case further exploring the contours of the Miranda warning, J.D.B. v. North Carolina.  The issue is whether an interrogator should, or must, consider the suspect’s age in determining whether to give the warning.  The facts involved a 13 year old student corralled in a … Continue Reading

Wanted: Statutory Interpretation

Posted in Appellate Practice, Recent Decisions
An ongoing and unresolved question in California is whether Labor Code section 2750.5 applies to homeowners and makes them the "employer" of an unlicensed contractor and the unlicensed contractor’s employees.  Think about that one.  You hire a contractor to spruce up the bathroom or remodel the kitchen.  One of the workers is injured.  And the contractor turns … 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

Word Wars

Posted in On Being a Lawyer, Recent Decisions
I’ve been preparing for my 12th consecutive year teaching moot court class at Hastings.  This time, I’m using United States v. Pineda-Moreno.  That’s the Ninth Circuit case holding that the Fourth Amendment is not violated when police officers sneak on to your driveway in the wee hours of the morning and attach a GPS tracking device to … Continue Reading

Speak Freely

Posted in Civil Procedure, On Being a Lawyer, Recent Decisions
The California Supreme Court heard oral argument today in a case that could result in a chilling effect on attorney-client communications.  The questions presented are 1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128; and, 2) Is an attorney a "participant" in … Continue Reading

Charting the (Stormy) Public Works Water

Posted in Appellate Practice, Appellate Procedure, Recent Decisions
California’s economic downturn means that public works projects are fewer in number and smaller in scale as local and state agencies grapple with reduced funding. As a result, public works bidding is more fiercely contested than ever. A recent decision provides a good example. (Schram Construction Inc. v. The Regents of the University of California … Continue Reading

Words Matter

Posted in Civil Procedure, Recent Decisions
“It doesn’t take Hamlet to figure out that something rotten happened in this case.” So begins Great West Contractors, Inc. v. Irvine Unified School District 2010 Cal.App. LEXIS 1521. And when the author is the Fourth District’s Justice David Sills, a little entertainment is bound to be included with the enlightenment. But if you are involved in public works … Continue Reading

Duty to Defend Applies to Calderon Proceedings

Posted in Recent Decisions
Whether prelitigation proceedings under the Calderon Act, Civil Code section 1375 et seq., come within a carrier’s duty to defend any "suit" is apparently an issue of first impression.  Or at least, it was.  Such proceedings are covered.  In Clarendon America Insurance Co. v. StarNet Insurance Co. (2010) 186 Cal.App.4th 1397, the Fourth District holds that prelitigation proceedings are … Continue Reading