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Appellate Success in California: Appealing Anti-Slapp Rulings in the Ninth Circuit
Alana H. Rotter

In the California state courts, every order granting or denying an anti-SLAPP motion is immediately appealable. But anti-SLAPP appealability is more of a minefield in the Ninth Circuit. There, an anti-SLAPP ruling is appealable only if it satisfies the requirements of the “collateral order doctrine” – that is, if it (1) conclusively determines the disputed question (which is whether the anti-SLAPP statute bars the challenged claims), (2) resolves an issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.

Under this test, different types of anti-SLAPP rulings fare differently:

    • An order denying an anti-SLAPP motion is appealable.

    • An order granting an anti-SLAPP motion with leave to amend is not appealable.

    • An order striking all claims against one defendant, but not against another defendant, is not appealable.

The practical message: Examine any federal district court anti-SLAPP ruling carefully to determine whether it satisfies the collateral order doctrine – and if the answer is not obvious, consult an appellate specialist.


Appellate Success in California: An End to Automatic Depublication
Laurie J. Hepler

Under current rules, the California Supreme Court’s decision to review a published appellate opinion automatically “depublishes” that opinion while review is pending -- making it non-citable. This approach causes problems. It eliminates useful discussions of un-reviewed issues. And when the reviewable conflict among districts arises from the issuance of a strong and likely-correct opinion -- rejecting an earlier, weaker one -- the rule eliminates the stronger opinion for the 2-3 years that the Supreme Court takes to review and affirm it.

But change is at hand. The Supreme Court has revised its rules to halt automatic depublication, beginning with grants of review in July. The opinion granted review will have no “binding or precedential effect” while the case is on review (unless the Supreme Court orders otherwise), but it “may be cited for potentially persuasive value . . .” This means that starting next month:

    • Trial courts can – but need not – follow the law stated in an opinion granted review.

    • Parties can still argue the minimal persuasive value of the opinion granted review. This helps cushion a downside of the rule-change: survival of weak opinions destined for reversal.

    • Once the Supreme Court decides the case, the Court of Appeal opinion will regain its binding, precedential effect, to the extent it’s not inconsistent with the Supreme Court decision.

The practical message: California’s complex appellate system is about to gain another layer of nuance. And the only way to secure depublication of an adverse opinion will be a successful request for that specific relief from the high court.


Appellate Success in California: Handling Bad Law
Alana H. Rotter

When drafting an opening brief on appeal, it can be tempting to avoid adverse authority — and on a first read, the brief might appear stronger that way. That’s wishful thinking. As Seventh Circuit Judge Richard Posner has observed, “The ostrich is a noble animal, but not a proper model for an appellate advocate.” Either your opponent or the court is likely to cite the problematic law, undermining your position and forcing you to deal with it on reply or at oral argument.

A better approach:

    • Make your affirmative argument;

    • Describe the adverse case’s holding (or troublesome statute) honestly and non-defensively;

    • Distinguish that authority or otherwise explain why the Court shouldn’t follow it; and

    • Resume your affirmative argument.

The practical message: Suppress the instinct to shy away from law that hurts your position. Confronting it head-on gives you a chance to defuse it, and will avoid the signal of weakness that hiding from it sends.


Appellate Success in California: Is This Appealable?
Laurie J. Hepler

Each April and October, ASIC brings you a selection of the orders that litigants may win or lose – requiring both sides to know each other’s options for review. These answers apply 95% of the time in California state courts, but every major interlocutory order deserves careful assessment to determine its appealability (or reviewability by writ).

    5. Is an order appointing a receiver appealable? YES. It’s on the list of orders made appealable by Code of Civil Procedure §904.1.

    4. Is an order granting or denying a motion to disqualify counsel appealable? YES as to both. But depending on the circumstances, a writ petition combined with a stay may be the only meaningful avenue of relief.

    3. Is a judgment for one defendant appealable, while other defendants remain in the case? YES, as long as the judgment disposes of all claims against that one defendant.

    2. How about a judgment of contempt? NO. By statute it is “conclusive” and not appealable. A strong (and fast) writ petition is the only potential remedy.

    1. Is an order granting a nonsuit appealable? YES, if it’s a written order, signed by the judge and filed.

The practical message: Whenever you suffer an important loss (or the other side does!), study the statutes controlling appealability, as well as the particular statute controlling the motion or application, and relevant cases. If you can’t reach certainty on whether it's appealable, call someone who can, because the stakes are “do-or-die” – an expired right to appeal or to file a statutory writ petition cannot be revived.


Appellate Success in California: Resolve to Say Less
Laurie J. Hepler

Commit to succinctness. Swear off at least the top 10% of any court’s word-limit for a brief – and more would be better. Remember, that limit is the maximum the court will accept; not the length the court wants to see. Here’s a chorus to help convince you:

  • “I never fully understood before going on the bench how crucial brevity is. I have so little time to read and grasp each brief." My former co-counsel in several matters, now an appellate judge.

  • “Every fact, every case, every word and every punctuation mark has to fight its way into my brief. I ask each one, ‘What can you contribute to my chance for victory on appeal?’ If it doesn't give me a good answer, out it goes.” Myron Moskovitz, Golden Gate Univ. Law Professor Emeritus, in a recent column.

  • “Writing improves in direct ratio to the number of things we can keep out of it." William Zinsser, in On Writing Well, considered by many to be “the Bible” of great writing.

The practical message: Relentlessly cut repetition, asides, flabby phrases, and weak arguments. Courts will love you for it.


Appellate Success in California: A Grand Transition
Laurie J. Hepler

Can anyone remember a time when an appellate judgeship has so dominated the news? It’s easy to see why: the stakes are nothing less than the ideological balance of the highest American court for at least the next generation. In an election year, no less.

Appellate Success in California(ASIC) steers clear of politics – but in light of a moment unparalleled in my lifetime, ASIC will also forego the usual strategic and inside advice. Instead, let’s take a minute to appreciate how this public debate confirms that we are – warts and all – a nation committed to the rule of law. Think of the reasons we attach such vast importance to “who will fill Justice Scalia’s seat”:

  • We expect that all lower courts will adhere to decisions issued by the U.S. Supreme Court, except to the extent those decisions can be distinguished -- and even then, the lower courts will be subject to SCOTUS review. While of course imperfect, this orderly system has, in large measure, held our country together

  • We expect the new Justice to serve for decades because of Article III’s life-tenure provision, which insulates federal judges from political attack for their decisions, and hobbles improper influence.

  • Neither the Executive nor the Legislative branch alone can make this momentous decision about who will serve in the Judicial branch. They must find some workable compromise – an ingenious feature of our Constitution.

The not-so-practical, but important message: The death of a profoundly influential Justice is a watershed moment that we are prepared for. However messy things get in the next few months (and that could be: “very”), we are fortunate to live in a country that will handle this challenge openly and peacefully.


Timing is Everything in Court
Alana H. Rotter
Los Angeles Daily Journal (January 13, 2016)
California courts have the power to extend some deadlines for filing documents or deciding motions, but others are firm – courts cannot extend them, and the failure to comply with them deprives the court of jurisdiction to rule. Deciding a matter of first impression, Garibotti v. Hinkle, 2015 DJDAR 13859 (Dec. 29, 2015) held that the trial court cannot extend its time to rule on a motion to vacate the judgment under Code of Civil Procedure section 663a, and reversed an order vacating the judgment on that basis. Alana Rotter discusses Garibotti and another recent decision on what triggers the clock for filing a notice of appeal (another non-extendable deadline) in a January 13, 2016 column featured on the front page of the Daily Journal.

One Bite of the Apple
Alana H. Rotter
Los Angeles Daily Journal (July 27, 2015)
Code of Civil Procedure section 473(b) offers lawyers an important lifeline – in certain circumstances, it requires the court to vacate a default judgment resulting from attorney mistake or neglect. But what happens when the court rejects as lawyer’s first request for relief as inadequate and the lawyer wants to try again? Do the usual limits on motions for reconsideration apply? Resolving a split in the case law, the California Supreme Court recently held that they do: In Even Zohar Construction & Remodeling, Inc. v. Bellair Townhouses, LLC it ruled that renewed motions for relief, like motions for reconsideration of other rulings, must be based on “new or different facts, circumstances, or law” not available at the time of the initial motion.

Lessons from Appeals of Nonappealable Judgments
Alana H. Rotter
Los Angeles Daily Journal (March 25, 2015)
California Code of Civil Procedure section 904.1 permits appeals from final judgments, but not from most interlocutory judgments. In the Daily Journal, Alana Rotter explains how to determine whether a judgment is final for appellate purposes and discusses a recent California Court of Appeal decision dismissing a fully-briefed appeal on the ground that the underlying “judgment” was not final---an issue not raised by either party, and identified by the appellate court for the first time just weeks before oral argument.

Which Orders regarding Arbitration are Appealable?
Alana H. Rotter
Los Angeles Daily Journal (January 5, 2015)
Although arbitration is supposed to be an alternative to the judicial system, it can involve numerous trips to court—judges may be asked to decide issues ranging from whether a dispute is arbitrable to whether a final award is valid. Some of the resulting orders are immediately appealable and some are not. In the Daily Journal, Alana Rotter explains how to tell the difference, and discusses two recent California Court of Appeal decisions dismissing fully-briefed appeals on the ground that the underlying arbitration order was not appealable.

Maximize the Impact of Amicus Support
Alana H. Rotter
Los Angeles Daily Journal (September 11, 2014)
Amicus support can be a powerful tool when it is deployed effectively. In the Daily Journal, Alana Rotter describes at what stages amici should consider weighing in, the types of arguments that do and don’t belong in an amicus brief, and the governing procedural rules.

Next-up: the Cantil-Sakauye High Court
Kent L. Richland
Los Angeles Daily Journal (September 10, 2014)
In a guest column on the front page of the September 10, 2014 Daily Journal, Kent Richland observes that, contrary to received wisdom, Governor Brown’s new appointments to the California Supreme Court may not have a much of an impact on the outcome of the Court’s civil cases. His analysis comprehensively discusses the high court’s 2014 civil opinions, noting that 75% of them were unanimous and that dissent for doctrinal reasons was remarkably rare.

Ruling Provides Guidance on Notices of Appeal
Alana H. Rotter
Los Angeles Daily Journal (April 18, 2014)
Filing a timely notice of appeal is critical: If you miss the deadline, the Court of Appeal will dismiss your appeal without ever considering the merits. In the Daily Journal, Alana Rotter describes how to calculate when a notice of appeal is due, including the rules that service of an order or notice of entry of judgment by mail does not extend the time to appeal from it, and that if the deadline falls on a weekend, it is automatically extended to the next day the court is open.

Creating An Appealable Judgment
Alana H. Rotter
Los Angeles Daily Journal (December 12, 2013)
When a trial court dismisses one cause of action but leaves others intact, the parties have very limited options for immediate appellate review. The Supreme Court has held that the parties cannot create an appealable judgment by dismissing the remaining claims without prejudice while agreeing to toll the statute of limitations so that the claims can be revived after the appeal. In the Daily Journal, Alana Rotter discusses an alternative approach that one Court of Appeal finds acceptable: Dismiss all remaining claims without prejudice and without an agreement to toll the statute of limitations.

Appeals, Writs and Summary Judgment
Alana H. Rotter
Los Angeles Daily Journal (October 22, 2013)
Summary adjudication motions have the potential to dramatically narrow a case before trial, but rulings on the motions are not appealable until the end of the case. In an October 22, 2013 Daily Journal article entitled “Appeals, writs and summary judgment,” Alana Rotter discusses the option of seeking immediate appellate review via a petition for a writ of mandate and the peril of missing the writ petition deadline.

In Practice: 'Kurwa' Shuts a Door to an Early Appeal
Gary J. Wax
The Recorder (October 17, 2013)
When a trial court decides a core issue in a pretrial proceeding but leaves peripheral claims pending, appellate relief is generally unavailable because there is no final judgment. Litigants have tried to create the necessary finality by voluntarily dismissing the peripheral claims without prejudice, while agreeing to preserve the voluntarily-dismissed claims for potential litigation following the appeal (typically by a defense waiver of the statute of limitations). In The Recorder, Gary Wax discusses the recent California Supreme Court case Kurwa v. Kislinger, which made that practice impermissible.

Cutting in Line at the Ninth Circuit
Marc J. Poster
Los Angeles Daily Journal (August 19, 2013)
While state appellate courts do not encourage the filing of writ petitions to obtain immediate review of non-appealable trial court orders, the Ninth Circuit Court of Appeals – the busiest appellate court in the country -- actively discourages such petitions. In an August 19, 2013 Daily Journal article entitled “Cutting in Line at the Ninth Circuit,” Marc Poster discusses the Ninth Circuit’s stringent guidelines for writ petitions and how it implements those guidelines. Litigants and attorneys who repeatedly file petitions ignoring the Court’s guidelines risk the imposition of sanctions.

How Appellate Courts Review Attorney Disqualifications
Alana H. Rotter
Los Angeles Daily Journal (July 9, 2013)
An order disqualifying an attorney is immediately appealable, and the Court of Appeal reviews such orders rigorously. In a July 9, 2013 Daily Journal article, Alana Rotter discusses two recently-published appellate decisions that reverse disqualification orders based on claimed conflicts of interest, highlighting the value of considering an appeal from an adverse ruling in this area.

Case Highlights Importance of Timely Post-trial Motions
Alana H. Rotter
Los Angeles Daily Journal (June 11, 2013)
It's important to correctly calculate the deadline for filing a federal appeal: File late, and the court will dismiss your appeal without ever reaching the merits. In this article, Alana Rotter discusses how post-trial motions impact the deadline calculations, and describes the cautionary tale of Classic Concepts, Ltd. v. Linen Source, Inc., in which the 9th Circuit sua sponte dismissed a fully-briefed appeal as untimely.

Your Skills: Between Trial and Appeal, There's a Record
Kent L. RichlandGary J. Wax
The Recorder, Vol. 137, No. 21 (Week of May 27, 2013)
9th Circuit Judges Call for an End to Anti-SLAPP in Federal Court
Alana H. Rotter
Los Angeles Daily Journal (May 9, 2013)
In a Daily Journal article, Alana Rotter discusses anti-SLAPP practice in the Ninth Circuit and why it may come to an end.

Circuit Clarifies Anti-SLAPP Appeal Rules
Alana H. Rotter
Los Angeles Daily Journal (February 6, 2013)
In a Daily Journal article, Alana Rotter reviews the Ninth Circuit’s rules for appealing the denial of an anti-SLAPP motion.

Protecting the Record for Appeal
Robin Meadow
Los Angeles Lawyer’s Survival Guide for New Attorneys (2011)
Power to disagree: The authority of lower courts in new trial motions
Alana H. Rotter
Los Angeles Daily Journal (September 13, 2011)
In a Daily Journal article, Alana Rotter explains the importance of ensuring that trial courts understand their power to grant a new trial.

Appealability of Anti-SLAPP Orders in California and the 9th Circuit
Alana H. Rotter
Los Angeles Daily Journal (February 15, 2011)
In a Daily Journal article, Alana Rotter discusses the appealability of anti-SLAPP rulings in California and federal courts.

Oral Argument: Is Anyone Listening?
Cynthia E. Tobisman
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. III, No. 2 (February 2011)
This is one of a series of e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Have You Filed Your Appeal on Time?
Alana H. Rotter
Los Angeles Daily Journal (January 9, 2011)
In a Daily Journal article, Alana Rotter discusses recent decisions critical to ensuring a timely appeal.

Circuit Split on Free Speech and Drug Prescription Data
Alana H. Rotter
Los Angeles Daily Journal (December 17, 2010)
In a Daily Journal article, Alana Rotter discusses a judicial split on whether new laws regulating health care data violate the First Amendment.

Cable Company Monopoly: Comcast and Time Warner Control the Board
Gary J. Wax
Loyola of Los Angeles Entertainment Law Review
28 Loy. L.A. Ent. L. Rev. 159 (2008)

Tipping the Scales
Alana H. Rotter
Los Angeles Daily Journal (July 28, 2009)
Daily Journal article by GMSR lawyer Alana Rotter surveys recent appellate decisions on tip pooling.

Post-Trial: Fatal Lateness - Some Post-Trial Deadlines You Can’t Afford To Flub
Feris M. Greenberger
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 15 (May 2009)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Post-Trial: Protecting Superior Court Judgments from Enforcement. Part 2—Stays Pending Appeal
Feris M. Greenberger
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 14-B (April 2009)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Post-Trial: Protecting Superior Court Judgments from Enforcement. Part 1—Money Judgments between Entry and Appeal
Feris M. Greenberger
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 14-A (March 2009)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Part 2: Getting It Right—Challenging A Statement Of Decision
Robert A. Olson
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 14 (February 2009)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

A Melting Pot of Rulings
Alana H. Rotter
Los Angeles Daily Journal (January 29, 2009)
Daily Journal article by GMSR lawyer Alana Rotter addresses ineffective assistance of counsel in immigration proceedings.

Part 1: Getting it Right—Obtaining a Statement of Decision
Robert A. Olson
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 13 (January 2009)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Down to the Details: Crafting a Special Verdict
Carolyn Oill
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 11 (November 2008)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Proceed with Caution: Pitfalls in Preparing Jury Instructions
Alana H. Rotter
"Appellate Tips for Trial Lawyers" (a newsletter of the Los Angeles County Bar Association)
Vol. 1, No. 9 (September 2008)
This is one of a series of monthly e-newsletters authored by the firm for the Los Angeles County Bar Association. You can access all of the articles here.

Appendixes, Exhibits, and E-Briefs in the Court of Appeal
Robin Meadow
(Co-Author)
Los Angeles Lawyer (September 2008)

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