It is imortant to keep up with the law while your appeal is pending

Goed Zoekveld

Keep an eye on developments in the law while your appeal is pending.
Image courtesy of Bart van de Biezen via Compfight

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. I worked for an attorney who contended it is malpractice for an attorney not to review the advance sheets daily.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Labor Code Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.