998 Offers & Arbitration

Gary A. WattPosted by on Jun 16, 2017 in Appellate Practice

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accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (Emphasis added.)

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Frivolous Appeals?

Gary A. WattPosted by on Apr 3, 2017 in Appellate Practice

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 that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)  While the Flaherty standard has been around for a long time and is stated in the disjunctive, more recent decisions demonstrate that on the rare occasion when appeals are determined to be frivolous, evidence of improper motive and complete lack of merit are usually both present.

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