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

Posted by Josephine Mason Petrick and Ashley Nakai 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 Josephine Mason Petrick and Ashley Nakai 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 https://www.courts.ca.gov/opinions/documents/B316501.PDF.

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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Jumping the Gun: What Happens If a Notice of Appeal Is Filed While Post-Trial Motions Are Pending?

Posted by Josephine Mason Petrick on Sep 13, 2021 in Appellate Practice

Sometimes, due to inadvertence, eagerness to move the case along, or strategic considerations, litigants will jump the gun and file a notice of appeal while post-trial motions are pending.  What are the consequences of this strategy in California?

It depends.  For certain post-trial motions, a superior court retains jurisdiction to rule on them even though a notice of appeal is filed—but that is not true for all such motions.  And in some cases, the law is not yet settled.

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What Can Oral Argument Preparation Teach Us About Effective Briefing?

Posted by Josephine Mason Petrick on Apr 21, 2021 in Appellate Practice

While attorneys advocate, judges search for the right result.  Here are three techniques for persuading judges by aiding them in their truth-seeking mission.

First, channel your audience’s inner “scientist.”  Organizational psychologists refer to four archetypes:  The preacher invokes fundamental values.  The prosecutor tries to win an argument.  The politician seeks to gain approval.  And the skeptical scientist searches for the truth.

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Federal Anti-SLAPP Law Year in Review – 2019 Roundup

Posted by Josephine Mason Petrick on Mar 31, 2020 in 9th Circuit, Anti-SLAPP

By Josephine Petrick & Breana Burgos

2019 was another active year for federal appellate anti-SLAPP opinions. Most notably, the circuit split deepened over whether state anti-SLAPP laws even apply in federal court.

Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, recent decisions may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit.  Given the current robust circuit split and many intracircuit tensions discussed below, this is an issue that the U.S. Supreme Court or en banc circuit courts may be called on to resolve in the months and years to come.  These developments are a further testament as to why Congress should consider enacting a federal anti-SLAPP law.  Here’s an overview of the current circuit split and recent developments in 2019.

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