Notes from the practice.
Short essays on California procedure and appellate work. Some are written for other lawyers; some are written for the clients who walk into our office trying to figure out what just happened in their case.
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Criminal appeals
After 120 days, a trial court cannot resentence on its own motion without a change in applicable sentencing law
After 120 days, own-motion section 1172.1 resentencing requires a change in the applicable sentencing law. People v. Bray reversed a reduced sentence on that ground.
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Motion practice
Blanket denial of a partly true request for admission supports cost-of-proof fees, but unsegregated fees cost the winner
Cost-of-proof fees: a blanket denial of a partly true request for admission supports an award, but the moving party must segregate the fees it seeks.
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Appellate procedure
Appeal deadline: a signed dismissal order likely started the clock, and a later judgment did not seem to reset it
Notice of appeal deadline: a signed dismissal order came before the judgment, the appeal looked late, and only discretionary writ review let the court reach it.
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Appellate procedure
Nonsuit reversed: once a claim is timely, the statute of limitations cannot cut off earlier conduct
A statute of limitations sets when suit must be filed, not what conduct counts. DeVone v. Morgan Stanley largely reverses a nonsuit built in part on that error.
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Consumer bankruptcy
Bankruptcy court refuses to reopen a chapter 7 case to revoke a discharge when the creditor waited until after discharge
Revoking a chapter 7 discharge requires diligence before discharge. In re Griffin denied a creditor's motion to reopen filed nine months after discharge.
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Appellate procedure
A FEHA alter ego theory raised first on appeal fails, and unchallenged findings left no fallback
A FEHA plaintiff raised a new alter ego theory on appeal and left the findings unchallenged. The Second District reached the legal issue and rejected it.
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Appellate procedure
An appeal from the judgment did not reach a later section 998 cost award, so the Court of Appeal could not review it
A notice of appeal from the judgment did not reach a later section 998 cost order, so the First District held it had no jurisdiction to review the award.
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Arbitration
A PAGA suit pleading only nonindividual claims cannot be sent to arbitration, the Fifth District holds
Can an employee bring a PAGA action with only nonindividual claims? Castillo v. Belkorp says yes, and those claims cannot be compelled to arbitration.
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Motion practice
How the moving papers shaped the ruling on a motion to compel arbitration in Castillo v. Belkorp
In Castillo v. Belkorp, the trial court faulted a motion to compel that cited a case under review and skipped the contrary authority. Three drafting lessons.
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Appellate procedure
A prevailing FEHA defendant’s unopposed $15,397.96 costs award is reversed for want of a frivolousness finding
Can a winning FEHA defendant recover costs by filing a cost memo? San Diego-Tomas says no: the court must find the suit frivolous. Here is why.
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Arbitration
Without the FAA, an arbitration agreement required as a condition of employment is unenforceable under section 432.6
Is a mandatory employment arbitration agreement enforceable in California without the FAA? Molina says no under Labor Code 432.6, affirming denial of arbitration.
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Criminal appeals
Inventory search of an impounded car cannot be a ruse for investigation: Court of Appeal orders gun suppressed
Can police impound a legally parked car and search it as an inventory? People v. Thomas says not as a ruse for investigation, and orders the gun suppressed.
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Appellate procedure
On these facts, a mid-case contempt dismissal was not a “judgment” starting the rule 3.1702 fee-motion clock
When does the rule 3.1702 fee-motion deadline start? Arora holds, on its facts, a mid-case contempt dismissal was not a judgment. Two arguments were forfeited.
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Appellate procedure
A lien order entered after a voluntary dismissal was void, and the jurisdiction point could be raised first on appeal
Is a lien order entered after a voluntary dismissal with prejudice void? Slamer said yes, reversed a workers' comp reimbursement order, and rejected forfeiture.
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Torts and personal injury
Primary assumption of risk can apply to a voluntary school basketball class, the Fifth District holds
Does primary assumption of risk apply to a school PE class? It can, held Yzaguirre v. Clovis Unified, when the sports class is voluntary and tied to a team.
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Bankruptcy appeals
Bare legal title is not enough: bankruptcy court refuses to stay its stay-relief order pending appeal
A bankruptcy court denied a stay pending appeal of its stay-relief order, holding bare legal title without an equitable interest does not invoke the automatic stay.
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Appellate procedure
Tenth Circuit dismisses bankruptcy appeal because the notice of appeal left out the order the debtor wanted vacated
A notice of appeal reaches only what it names. The Tenth Circuit held the merger rule could not pull a separate stay-relief judgment into a bankruptcy appeal.
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Appellate procedure
Losing your only fee witness in limine can work as a nonsuit, reviewed de novo: Missakian v. Amusement Industry
A motion in limine excluding the plaintiff's only fee witness worked as a nonsuit, so the Court of Appeal reviewed it de novo and reversed.
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Criminal appeals
Counsel, not the defendant, decides whether he testifies at a competency hearing: People v. Lackey-Garcia
Does a defendant have a right to testify at a competency hearing over counsel's objection? The Third District says no, following People v. Bell.
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Appellate procedure
A reservation of jurisdiction made this temporary support order unappealable: Sterndahl v. Sterndahl
Is a temporary spousal support order appealable? Not when the court reserves jurisdiction to modify it. Sterndahl v. Sterndahl dismissed the appeal.
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Employment
Not meeting an all-employee vaccination job qualification is not POBRA punitive action: Cruz v. City of Hermosa Beach
Cruz v. City of Hermosa Beach: firing an officer for failing a vaccination requirement imposed on all employees as a job qualification is not POBRA punitive action.
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Appellate procedure
Arguments left out of a summary judgment opposition are forfeited on appeal: Belletto v. Board of Trustees of the CSU
New theories raised on appeal after summary judgment were held forfeited. Belletto v. Board of Trustees of the CSU shows how the opposition limits the appeal.
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Civil litigation
Scottsdale v. California Military Dept.: an insurer can rescind a policy despite an additional insured’s reliance
Under Insurance Code section 650, insurance rescission for an applicant’s misrepresentation binds additional insureds, even a public owner that relied on the policy.
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Appellate procedure
Appealing a new trial order without the trial transcript: the Fifth District affirms in Martinez v. Contreras
Appealing a new trial order for juror misconduct? Martinez v. Contreras shows how forfeited objections and a partial record left the appellant unable to win.
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Attorney fees and sanctions
Lender attorney fees in bankruptcy: BAP reads loan fee clauses narrowly and sends Civil Code 1717 award back
Lender attorney fees in bankruptcy turn on the loan's exact words. The Ninth Circuit BAP denied most of a $419,266.94 claim and vacated the borrower's 1717 award.
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Practice notes
Heads you appeal, tails you writ: California's asymmetric appealability rules
Grant a motion and the loser has an appeal of right; deny the same motion and the only remedy is a short-fuse writ. A catalog of California's asymmetric appealability rules — new trial, quash, arbitration, class certification, MSJ — the finality principle that explains them, and the calendaring traps they set.
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For clients
"He was a man of God." That's exactly how he got away with it.
The most devastating frauds are not committed by strangers — they are committed by people we trust, and no trust runs deeper than religious authority. What the law can do for victims of clergy and religious-figure misconduct, and why speaking up is not a betrayal of your faith.
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Practice notes
How do you serve a lawsuit on someone in prison? California's answer
Penal Code § 4013 makes the warden, sheriff, or jailer the doorway: service on the custodial official — personally or by mail with acknowledgment — is service on the inmate. The case law, the two recognized methods, and the practical steps that make the proof of service hold up.
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Practice notes
Roe v. Smith: California courts tighten the rules for suing anonymously
The Second District reversed a trial court that let two defamation plaintiffs proceed as Roe and Doe: the overriding-interest test applies, express findings are required, and argument on the pleadings is not evidence. What the decision changed, what it left intact, and how to bring the motion right.
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For clients
Can you sue for sexual abuse without your name becoming public? California says yes.
Court filings are public records, and the fear of being identified stops more survivors from coming forward than almost anything else. California law lets a survivor pursue a civil case as Jane Doe — here is how pseudonymous filing works, and what the courts now require to grant it.
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For clients
Secret settlements in sex abuse cases: what California law no longer allows
For decades, the standard ending to a sexual abuse case was a settlement that paid the survivor — and silenced them. California has largely closed that door. What a defendant can and cannot demand, and the carve-outs that run in the survivor's favor.
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For clients
60 days, 30 days, and the deadlines you can't fix later
The most common reason a meritorious California appeal dies is not a weak legal issue. It's a clock that ran out before anyone realized it was running. Here is what those clocks actually are, and why some of them cannot be fixed.
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Practice notes
What § 128.7 actually requires: notes from the trial-court side
Most § 128.7 motions are filed badly and lost. The statute is not a Rule 11 import; it has its own safe-harbor mechanics, its own evidentiary burden, and its own quirks on appellate review. Notes from drafting and arguing one that worked.
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For clients
What "MSJ denied" and "MSJ granted" actually mean for your case
Clients reasonably assume "we won the MSJ" means the case is over. Sometimes it does. Sometimes it means the opposite. Here is the plain-English version of what each ruling tells you about what happens next.
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Browse by topic: Appellate procedure · Arbitration · Attorney fees and sanctions · Bankruptcy appeals · Civil litigation · Consumer bankruptcy · Criminal appeals · Employment · Motion practice · Torts and personal injury
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