• New Trials,  Post-Trial Practice

    “Close” counts in horseshoes and hand grenades, but not when it comes to identifying “new” evidence in a new trial motion

    For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward? That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away! Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on…

  • Appellate Procedure,  Attorney Fees,  Standard of Review

    Overcoming the abuse of discretion standard on appeal of an attorney fee award: what did the trial court actually do?

    Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on this standard of review, and the Court of Appeal will reverse in appropriate circumstances. One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000…

  • Jurisdiction,  New Trials

    The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

    Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects. One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in…

  • Attorneys,  Ethics,  New Trials

    Egregious attorney misconduct at trial leads to reversal on appeal

    When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict,…

  • Appellate Jurisdiction,  Judges,  Motions to Vacate,  Post-Trial Practice

    Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion

    The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service. So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).) The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014)…

  • Attorney Fees,  Standard of Review,  Statutory Construction

    Attorney fee review standard isn’t always abuse of discretion

    Appealing from an attorney fee award is usually a tough slog. Unless you are arguing a pure issue of law, such as whether any attorney fee-shifting statute applies to the case at all, the Court of Appeal usually reviews only for abuse of discretion. However, an important exception is noted in the recent case of Samantha C. v. State Department of Developmental Services, case no. B232649 (2d Dist., Div. 1, June 21, 2012). In Samantha C., attorney fees were sought under the “private attorney general statute,” Code of Civil Procedure section 1021.5, in which plaintiffs who enforce an “an important right affecting the public interest” can recover attorney fees under certain…

  • Attorney Fees,  Post-Trial Practice

    The “Poof” Principle

    I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009).  What better phrase to apply to a case where the defendant sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?

  • Judgment,  Waiver of Issues

    The Judgment, the Whole Judgment, and Nothing But the Judgment

    Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party. Mixed bags create competing incentives. Here, one incentive got the best of Satchmed. UWMC complied with the judgment by offering the…

  • Appellate Jurisdiction,  Appellate Procedure,  Attorney Fees,  California Procedure

    A Judgment that Nobody Noticed Sinks an Appeal

    How can the parties and the court all miss the fact that the court entered a judgment?  Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely. In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by…

  • Appellate Procedure,  Attorney Fees,  Federal Procedure,  Standard of Review

    Lawyers Must Eat — Getting Your Attorney Fees on Appeal

    You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 U.S.C.§ 1988, and thus looks at the issue from the perspective of the policies underlying attorney fee awards in civil rights cases. Of particular interest is the section on fees for the appeal. Here’s a two-question quiz. Do you know the proper forum for making your application for fees on appeal? If you said the court…

  • Appellate Procedure,  Attorney Fees,  Federal Procedure,  Preemption,  Waiver of Issues

    California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

    It’s quite common for plaintiffs to sue under similar state and federal provisions.  The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA. The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand,…

  • Appellate Jurisdiction,  Appellate Procedure,  Attorney Fees,  California Procedure

    Appeal That Fee Award

    I don’t usually review unpublished decisions for material for this blog.  But unpublished decisions, even if they don’t create new law, can have some interesting points.  (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment.  The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award.  Result: untimely appeal, no jurisdiction, appeal dismissed.

  • Attorney Fees,  Blogroll

    Blogroll Addition: California Attorney’s Fees

    Regular readers know I am fond of covering attorney’s fee cases.  Now there’s a blog about nothing but California attorney’s fees, and it’s called, oddly enough, California Attorney’s Fees.  Started less than a month ago, California Attorney’s Fees is a comprehensive blog that reports on both published and unpublished cases and includes several categories related to the appeal of fee awards, including appealability, appeal sanctions, and deadlines.  And, they invite you to help add more. California Attorney’s Fees demonstrates that it is not only newer lawyers who are blogging.  The junior of the two contributors, Marc Alexander, has 25 years of law practice under his belt, and his co-blogger, Mike…

  • Attorney Fees

    Remember, Don’t Be Shy

    I told you last October not to be shy when you move to recover attorney fees. Steele v. Youthful Offender Parole Board, case no. C053553 (3d Dist. May 15, 2008) is the most recent case in point. Defendant appealed from a judgment for plaintiff on a retaliation claim under the Fair Employment and Housing Act (Govt. Code, § 12900 et seq.). Damages were barely $9,000, but plaintiff’s attorney was awarded more than $146,000 in fees, which is almost certainly what drove the appeal. Defendant’s only contention regarding fees on appeal, however, was that the fee award must be reversed because the underlying judgment must be reversed. No claim that the…

  • Attorney Fees,  California Procedure

    Who Knows Why Some Parties Appeal?

    Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008). Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party. Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending…

  • Attorney Fees,  Events

    Attorney Fee Program Coming Up in Los Angeles

    One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had). So, here’s the skinny: Date: June 19, 2008 Time: noon- 5 pm Place: Southwestern Law School (Los Angeles) This description of coverage comes straight…

  • Attorney Fees,  Ethics,  Law Practice & Marketing

    What Happens to the Trial Lawyer’s Contingency Fee when an Appeal is Taken?

    The Texas Appellate Law Blog has done all appellate lawyers and contingency fee trial lawyers a favor with a post urging trial lawyers to include in their contingent fee agreements a provision explaining how the fee is affected if an appeal is taken:  “There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.”  He also covers a number of different ways to do it.  Please check it out.

  • Appellate Procedure,  New Trials,  Summary Judgment,  Waiver of Issues

    Appellate Surprises

    Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point. My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly…

  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  New Trials,  Notice of Appeal

    Order or Judgment? It can make a big difference!

    More wrangling over what triggers a deadline to appeal. Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal.  In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post. Though the original opinion refers to an August 7,…

  • California Procedure,  New Trials,  Summary Judgment,  Summary Judgment

    New Trial Motions after Summary Judgment

    Can you move for a new trial when your case was disposed of by summary judgment?  This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial? But the answer is “yes.” A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment. Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its…

  • Juries,  Post-Trial Practice

    Special Verdicts vs. Special Verdict Forms

    Where a special verdict is hopelessly ambiguous as to whether it awards duplicative damages, the rule is that the trial court should ask the jury to clarify the verdict. But what if the jury is discharged before anyone objects to the ambiguity? The court of appeal reminds us in Zagami, Inc. v. James A. Crone, Inc., case no. D049563 (4th Dist. Mar. 10, 2008), that it depends on whether the ambiguity arises from the form of the verdict or the jury’s answers. Error in the form of the verdict is subject to waiver if no objection is made. But ambiguity created by the jury’s responses is not waived, even if…

  • Attorney Fees,  Labor & Employment,  Post-Trial Practice

    Attorney Fees in a $44 Case?

    What do you suppose the high end of “reasonable” is for attorney fees in a successful lawsuit based on about $44 in damages? Supposing that $44 claim settled for $10,500? If you said attorney fees of $500 are about right, give yourself a gold star. In Harrington v. Payroll Services, Inc., case no. B198883 (2d Dist. Feb. 28, 2008), the trial court found that once class certification was denied, the case was so simple that plaintiff was not entitled to fees at all, let alone the $46k sought. The court of appeal reverses on entitlement to fees, finding they are statutorily mandated, but that $500 is reasonable. It fixes fees…

  • Attorney Fees,  California Procedure,  Post-Trial Practice

    Another Private AG Fees Case Headed for the Supremes?

    Well, we just had one Supreme Court opinion on the private attorney general statute (about which I posted here), and at first, I suspected that the Third District Court of Appeal was trying to tee up another one for potential Supreme Court review in Marine Forests Society v. California Coastal Commission, case no. C052872 (3d Dist. Mar. 4, 2008). To my mind, its public policy implications are significant. At issue is the scope of the “catalyst” theory for recovering attorney fees under California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The catalyst rule provides that a party can recover fees under the statute even if it is…

  • Attorney Fees,  California Procedure,  Costs,  Post-Trial Practice

    Expert Witness Fees May Not Be Awarded Under Private Attorney General Statute

    In a decision being closely watched by many, the California Supreme Court holds today in Olson v. Automobile Club of Southern California, case no. S143999 (Feb. 28, 2008), that Code of Civil Procedure section 1021.5, the state’s “private attorney general” statute, does not authorize a court to award expert witness fees in addition to the attorney fees explicitly authorized by the statute. As the court notes, the statute explicitly authorizes an award of “attorney fees” and is silent about expert witness fees. Which should have made for an easy decision. Yet the court is compelled to delve behind the plain language of the statute. The decision is a good primer…

  • Anti-SLAPP,  Attorney Fees,  California Procedure

    Self-Represented Attorney May Not Recover Fees on Anti-SLAPP Motion

    In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion. This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered. The identical issue of anti-SLAPP attorney fees was treated in much greater…

  • Appellate Procedure,  Attorney Fees,  California Procedure,  Post-Trial Practice,  Standard of Review,  Statutory Construction

    Review of “Private Attorney General” Fee Awards

    Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory…

  • Appellate Procedure,  Damages,  Decision on Appeal,  Federal Procedure,  Judgment,  Remittitur/Mandate

    A “Cautionary Tale” on Post-Judgment Interest when Court of Appeals Directs Entry of Money Judgment

    It’s always frustrating when you have to litigate over issues stemming from a court’s failure to do something that it should have done or even was required to do. Just ask the Oakland Raiders, who saw their new trial order reversed because the trial judge’s order did not satisfy the Code of Civil Procedure. The issue also arises in California courts where the trial court fails to rule on objections to evidence in the context of a summary judgment motion. The consequences of such failure have been discussed on a number of blogs recently, and The Appellate Practitioner has an excellent post regarding the Supreme Court’s recent grant of review…

  • Attorney Fees,  Blogging,  Ethics

    Pro Bono Attorney Fees in the News Again

    National Law Journal has a new article called Pro Bono Case Triggers a Fee Fight on the controversy surrounding the attempt of a Seattle BigLaw firm (Davis Wright Tremaine) seeking to recover its attorney fees under a fee-shifting statute even though it took the case pro bono. The case was the closely watched “Seattle Schools” case decided by SCOTUS last year. (If you want some background from the view of the losing party, the school district’s press release from the day of the decision is available as a PDF download.) In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the…

  • Blogging,  Juries,  New Trials

    Jury Foreman’s Blog a Likely Issue on Appeal

    A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star: After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial. The blog,…

  • Costs,  Expert Witnesses

    More on California’s Private Attorney General Statute

    This post at The UCL Practitioner notes an article about a case being argued today in the California Supreme Court (Olson v. Automobile Club of Southern California, no. S143999) addressing whether expert witness fees are recoverable under the state’s private attorney general statute, Code of Civil Procedure section 1021.5. If the private AG statute interests you generally, make sure you didn’t miss this post from yesterday, which appears immediately below this one on the home page.