Arbitration Clauses, What’s in Yours?

Neil BardackPosted by on Apr 25, 2018 in Appellate Practice

The recent decision of the California Court of Appeal, Second District in  Saheli v. White Memorial Medical Center (2018) 21 Cal.App.5th 308, proves again the point that what is stated in your contractual arbitration clause matters. While it may seem axiomatic that words matter, in reality business law scribes generally spend less time on crafting arbitration clauses than the business terms of an agreement.

Read More

Amicus Briefs: Friend to the Court?

Adam HofmannPosted by on Mar 30, 2018 in Appellate Practice

As the California Supreme Court has recognized, amici curiae can play a “valuable role” in litigation. (Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1177.) “[B]ecause they are nonparties who often have a different perspective from the principal litigants[,]” their arguments “enrich[ ] the judicial decision-making process.” (Ibid.) Amicus filings are on the rise, and not just in the U.S. Supreme Court. However, with this increased volume has come an increased number of unhelpful and poorly written briefs. Governing court rules reflect this concern. For example, the U.S. Supreme Court advises:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

(S. Ct. Rule 37.1.) Likewise, in California, amicus briefs must “assist the court in deciding the matter.” (Cal. Rules of Court, rules 8.200(c)(2) & 8.520(f)(3).) So, the question becomes how, in more practical terms, amici can help shape important decisions, aiding courts, rather than burdening them.

Read More

Must One Contest a Tentative Ruling?

Josephine MasonPosted by on Feb 16, 2018 in Appellate Practice

The California Rules of Court allow superior courts to use  a tentative ruling procedure in law and motion matters. (See CRC 3.1308.) Many attorneys assume that they must contest an adverse tentative ruling to preserve their objections for appeal. While there may be good reasons to contest, it is not necessarily mandatory.

It is not “invited error” to submit on a tentative ruling. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401 (“Mundy”); see Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs ¶ 8:248.12 (“Rutter”).) The doctrine of invited error is based on a principle of estoppel; it “prevents a party from misleading the trial court and then profiting therefrom in the appellate court.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) But so long as a litigant asserts an issue in the trial court and does not actively invite error, the issue is preserved for appeal. (Mundy, supra, 203 Cal.App.4th at pp. 1405-1406; Rutter, supra, ¶ 8:248.12.)

Read More

Anti-SLAPP Motions in Federal Court

Gary A. WattPosted by on Jan 31, 2018 in Appellate Practice

The ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.

As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.

Read More

California Supreme Court Clarifies Constitutional Limits on Groundwater Fees

Adam HofmannPosted by on Dec 29, 2017 in Appellate Practice

On Monday, December 4, 2017, the California Supreme Court issued its decision in City of San Buenaventura v. United Water Conservation District.  The case partially resolved a long-running dispute regarding the validity of fees the United Water Conservation District charges all groundwater pumpers in its jurisdiction.  While this case has been followed most closely in the community of water-rate nerds (myself included), there are broader impacts on government revenue and constitutional interpretation in general.

Read More

Peremptory Challenge Denied? Take a Writ

Josephine MasonPosted by on Nov 7, 2017 in Appellate Practice

In the Roman Republic, the right to appeal (provocatio, as in “provocation”) from a magistrate’s summary use of power was regarded as one of the most important safeguards of liberty. The democratic force of the right to appeal survives today. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12, 18; Cassandra Burke Robertson, The Right to Appeal (2013), 91 N.C. L. Rev. 1219.) Indeed, it is often said that everything may be reviewed on appeal, but as in almost every aspect of law, there is an exception: In California, a trial judge’s refusal to be recused by way of a peremptory challenge is reviewable only by writ. (Code Civ. Proc., § 170.6.) Here are some practical tips for optimizing the chances of obtaining review.

Read More

Expert Testimony, Hearsay, and Summary Judgment

Gary A. WattPosted by on Oct 18, 2017 in Appellate Practice

I’ve been watching the ripple effects of People v. Sanchez (2016) 63 Cal.4th 665, which has been labeled “a paradigm shift” regarding out-of-court statements and expert testimony under California hearsay law. (People v. Ochoa, 7 Cal. App. 5th 575, 588 (2017).) Sanchez boils down to the difference between an expert relying on hearsay case-specific facts (which has always been permissible) and an expert relating those facts to the jury (which Sanchez now prohibits unless the hearsay problem is solved). But what about summary judgment motions?

Read More