• Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





Winning is almost everything.

Last week I received word that I won one of my appeals. Funny that I use the word "won" as if the judgment was affirmed solely through my own efforts. To win, a lot of variables need to fall into place. For instance, the facts should be in your client's favor. That helps. And, oh yes, it helps if the law is in your favor. Should I forget the trial court? Sometimes, a lot of times in fact, the Court below does the right thing. So, when all of that is combined, I can claim a personal victory.  

Am I forgetting something? Oh, yes, the client. Right! Sometimes they do the right thing and that helps.
But I am not writing to talk about my win. I want to talk about how it feels to help someone. Many clients come to me after a loss below, and they feel an injustice has been committed. Or their voice has not been heard. It's very hard for them to have some sort of closure and get on with their lives when that happens. They simply want to be heard and then perhaps they can accept what fate has in store for them. At least I can give them a voice before the appellate court.

At times, my job is to preserve a win below, and justice has merely been postponed for a year or two. A reversal quite often means a retrial. For many clients, the first trial may have exhausted their finances and a second trial might be impossible, no matter how much the facts and the law favors them. If they are forced to go for a retrial but don't have the money, they will settle and justice will not be served. The expense of litigation often forces people to settle for far less than they deserve.  

In my recent appeal, we preserved our win and the client will not have to go through a retrial. No, I was not making her rich or putting money in her pocket. But I experienced real satisfaction knowing my client was saved additional expense and could get on with her life. That made it worthwhile for me. I hope I never lose that enthusiasm. Money isn't enough to do it, but helping others is.



Tentative Opinions in Appellate Cases  


I recently appeared for oral argument before District Two, Division 7. Apparently, it is the only division in District Two that distributes a tentative ruling just before the scheduled hearing. For example, if you have a 1:00 p.m. appearance, you will be handed a one-paragraph sheet with the tentative ruling. Only one copy is made, so you must read it quickly and then hand it over to your opponent.

As Justice Ramirez, Presiding Justice of the Fourth Appellate District, Division Two, once said, “The Court wants you to give your best argument. If you are nervous or uncomfortable, you might not be able to do that.” As I prepare for oral argument, I try to take steps to minimize my nervousness by intensive preparation and practice. Receiving a tentative opinion minutes before oral argument is hardly conducive to allowing an appellate attorney to do his or her best. Last minute tentative rulings leave us scrambling and may not allow for adequate research and preparation.

Early focus letters, such as those utilized in other Districts, allow the attorneys to concentrate and tailor their presentations to issues that are important to the Court. The attorneys still need to be fully prepared, but we could save our clients’ money in attorney fees if we can focus our arguments

Another aspect, although not quite as significant, is that in appearing for oral argument, we should believe we have some chance to win, although we all know the odds. To be given a sheet of paper minutes before that, advising us that we have lost, has an immediate impact on our confidence level. A focus letter in advance allows us to absorb the loss - if that's what it is - lick our wounds, and get ready to fight for our position.  




Appellants must provide a meaningful record or forfeit their claims

 An appellate attorney’s mantra to trial attorneys is to always protect the record.  Our job on appeal is to provide that record to the Court of Appeal.  If we don’t provide a record that shows the trial court committed prejudicial error, we may have forfeited our claims.

In an unpublished opinion in Bonito v. Huntington Condominium Association, #G049338, by the Fourth Appellate District, Division Three, a homeowners’ association appealed from a judgment entered against it for breach of fiduciary duty and negligence claims.  The basis for the claim was that the Association failed to remediate elevated groundwater levels despite obtaining funds in a construction defect lawsuit against the developer.

The appellate court found the Association forfeited all of its challenges except one because the appellant offered little more than bare assertions of trial court error, and failed to address the express basis given by the lower court in its statement of decision.

The Court of Appeal listed several appellate principles that bear repeating here:

  • The appellant’s opening brief must include a summary of the significant facts, not just those favorable to the appellant, and a relevant procedural history, citing California Rules of Court, rule 8.204(1)(2). (Opn., pg. 3.)

  • Although exhibits are “deemed” part of the record on appeal, they are not typically included in the clerk’s transcript nor are they transmitted unless (1) designated as part of the record, or (2) a party makes a timely request to transmit them pursuant to Rules of Court, rules 8.122(a)(3) and 8.224. (Opn., pg. 3, fn. 1.)

  • As a cardinal rule of appellate review, judgments are presumed correct, and therefore, the burden falls on the appellant to prejudicial error.

  • Unless the record shows otherwise, all presumptions favor the trial court and it is presumed matters that could have been presented actually were and the trial court followed the law. (Opn., pg. 7.)

  • The appellant has an affirmative duty to provide relevant portions of the record and, failure to do so, will result in a forfeiture of the point.  (Opn., pg. 7.)

  • Appellate briefs must provide argument and legal authority for each ground.  Failure to do so waives the point. “‘We are not bound to develop appellants’ argument for them . . . The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’”  (Opn., pg. 7.)

  • Appellant’s must address the trial court’s express findings and controlling authority.  If not, the point will be deemed waived.  (Opn., pg. 9.)  “‘One cannot simply say the court erred, and leave it up to the appellate court to figure out why.’”  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Although the Association’s brief included a “Factual Background,” it was incomplete, forcing the Court of Appeal to rely on trial court’s statement of decision for a factual summary.  The appellant failed to even acknowledge the lower court issued a statement of decision and ignored that court’s findings.  The appellant prevailed on one issue – good news for the client – but the court’s decision was to simply remand it to the trial court to prepare a new statement of decision.  Not much of a victory.


New Laws to Help Celebrate 2015!

Effective January 1, 2015, the provisions dealing with a motion for summary adjudication that do not completely dispose of an action, are repealed. A motion that "completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty," is still governed by Code of Civil Procedure section 437c(f)(1) and (2). A big sigh of relief.  I've found these motions to be cumbersome and rarely granted.
The briefing deadlines for motions for new trial (C.C.P., sec. 659a), judgment notwithstanding the verdict (C.C.P., sec. 629), and motions to set aside and vacate the judgment (C.C.P., sec. 663a) are the same. (2014 Cal. Legis. Serv. Ch. 93 (A.B. 1659).)  Whew, what a relief!  



Happy Holidays to One and All!

No matter how I try, I just can't get in the mood to talk about the law.  My mind is elsewhere.  And it's my birthday today.  I'll bet you feel the same.  So, I won't be talking about protecting the record, but instead, want to mention protecting lyour loved ones.  Life is so fragile, but love is so strong.  Odd, isn't it?  Take time off from your busy schedules, put down your briefs and work, and celebrate!  Happy Holidays to everyone.  I will be back in January 2015!