Appeals from Summary Judgment Denial

Posted by on Aug 15, 2023 in Appellate Practice

Federal appellate practitioners are readily familiar with the principle that a district court’s order denying summary judgment is generally not immediately appealable. Instead, an appeal regarding the summary judgment denial must wait until a final judgment has been rendered.  This most often occurs after trial.

But if the parties proceed to trial, to what extent is the defendant who lost the summary judgment motion responsible for re-raising arguments they lost at summary judgment prior to the appeal?

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New Faces of Justice: 2022 California Appellate Appointments

Posted by on Jan 31, 2023 in Appellate Practice, California Supreme Court

2022 was a banner year for appointments and elevations to California’s Courts of Appeal. The State’s new Chief Justice and newest Associate Justice of the California Supreme Court led the news, but Governor Newsom also filled a large number of vacancies on the intermediate appellate courts. With all this change, it seemed a good time to take a quick look at the newest justices who will be shaping California jurisprudence in the coming years.

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Appellate Oral Argument: The Ultimate Misnomer?

Posted by on Dec 23, 2022 in Appellate Practice

Justice William Bedsworth’s recent column, “Oral Argument: Better Than Oral Surgery,” packs a lot of meanings into the title’s last four words. (See The Recorder, 12/19/2022.) I suppose it might depend on viewpoint, you know, surgeon or patient, the condition in question, the complexity of the problem, and how direct the approach. I’m not speaking of dentistry here.

Getting counsel to answer questions can be like pulling teeth. I was reminded of that yesterday while looking for an oral argument. I landed on the prior case somewhere in the middle of the video. It took three tries to get counsel to directly answer the question. A few years ago, while waiting for my case to be called at the California Supreme Court, an attorney responded with “I’ll come to that one later, Your Honor, I’ve got to tell you this first,” causing an array of facial expressions along the dais. And onward, he sailed.

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Judicial Notice on Appeal (Part Two): Discretionary Subject Matter

Posted by on Oct 28, 2022 in Appellate Practice

Appellate courts have broad power when it comes to judicial notice, and that power is comprised of two types of matters: mandatory and discretionary. In the first part of this two-part post, I discussed matters that an appellate court must judicially notice. (See Judicial Notice on Appeal: Mandatory Subject Matter, Appellate Insight, October 2021.) This post will discuss those matters that an appellate court may judicially notice.

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How and When to Ask a Court to Overturn Intermediate Appellate Precedents

Posted by on Sep 30, 2022 in Appellate Practice

In CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California’s “Anti-SLAPP statute” may be filed in federal diversity actions.  As the court reflected, circuits have split over the federal implementation of the various states’ Anti-SLAPP motions.  See id. at 1142–43.  But the Ninth Circuit’s position on this question has been long settled.  Id. at 1140.  And the Ninth Circuit’s latest published opinion on the issue does not reconsider the merits of the issue or even attempt to defend its rule against the criticism it has faced from other circuits and even Ninth Circuit judges.  See, e.g., Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (Kozinski, J. concurring).  Rather, the decision merely explains the court’s refusal to reverse itself.  The relative merits of its precedent and the strength of a party’s arguments against it are largely irrelevant; a Ninth Circuit panel is bound to follow the court’s past decisions except in exceptional circumstances.  See id. at 1140–43.

So, what is a litigant to do when it has a need and good faith basis to challenge otherwise binding case law from intermediate appellate courts?  Some discussion of the governing principles will help inform an approach.

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How Requests for Publication of Appellate Opinions Can Help Shape Your Industry

Posted by on Aug 24, 2022 in Appellate Practice

In the wake of the Coronavirus pandemic, countless policyholders made insurance claims with their carriers based on the closure or interruption of their businesses. The insurers with near-uniformity denied coverage, presenting a united front against their insureds.  Thousands upon thousands of cases ensued testing the propriety of the insurers’ denial of coverage.

Many business-interruption insurance policies are meant to cover losses tied to the “direct physical loss or direct physical damage” of (or to) the insured’s premises. Nationwide, courts are facing a complicated question—whether the COVID-19 virus can be said to cause “direct physical loss or direct physical damage.”

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Appellate Court Issues Groundbreaking COVID Insurance Coverage Opinion in Favor of Policyholders

Posted by on Jul 18, 2022 in 9th Circuit, Appellate Practice, California Supreme Court

In an opinion that is the first of its kind in the California appellate courts, the Second District Court of Appeal, Division 7, has ruled that certain COVID-19-related business losses may be covered by business-interruption insurance (BII) policy provisions.  Marina Pacific Hotels & Suites, LLC v. Fireman’s Fund Ins., No. B316501, 2022 WL 2711886 (Cal. Ct. App. July 13, 2022) (slip op.), available at

The groundbreaking opinion gives a leg up to policyholders struggling with pandemic-era debt and business losses.  The decision may also inspire the California Supreme Court, other California Courts of Appeal, and the U.S. Court of Appeals for the Ninth Circuit (among other reviewing courts nationwide) to give policyholders the opportunity to prove BII coverage in the context of the pandemic.

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