• 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





Congratulations on a big win!

One of my clients, Marlon Alo, recently won a reversal on appeal after a jury trial in a published decision, Diaz v. Los Angeles County Metropolitan Transportation Authority, 2009 WL 2138976.  Alo represented the plaintiff, a 79-year-old female, who was injured when an MTA bus in which she was a passenger collided with the car in front of it.  The court of appeal held that because MTA is a common carrier and substantial evidence supported the argument that plaintiff was injured due to the bus driver's negligence, the trial court erred in refusing to give a res ipsa loquitur instruction.  Had the instruction been given, the burden of proof would have shifted to MTA and its driver to demonstrate they were not negligent.

The appellant argued lack of substantial evidence, instructional error, and error re the admission of evidence.  If you read my earlier posts, you know that substantial evidence is not a great standard of review for an appellant, but an error based on instructional error puts the appellant in a better position.  As noted by the appellate court, it is required to "review the record in the light most favorable to the party proposing the instruction to determine whether there was substantial evidence warranting the instruction."  (Opn., pg. 3, fn. 3.)

The reviewing court also noted that res ipsa loquitur has frequently been applied in common carrier cases where a passenger is injured, even when a third party driver is involved.  I've also worked on cases when the doctrine has been applied successfully in medical malpractice and fire cases.

Because of the court's finding on the instructional error, it declined to reach the other issues raised on appeal, and remanded the case to the trial court for further proceedings.  Great job, Marlon!

What does the term "valid" mean?

In Branner v. Regents of the University of California, 2009 WL 2026326, the Yolo County Superior Court granted in part and denied in part an anti-SLAPP motion.  The order was immediately appealable but the plaintiff chose to file a motion for reconsideration.  Not only did the plaintiff file an appeal from an order on the anti-SLAPP motion, but he filed one as well from the denial of the motion for reconsideration.  Defendant Regents filed a cross-appeal from that part of the order denying the anti-SLAPP motion.

Defendant Regents brought a motion to dismiss the appeal from the anti-SLAPP motion, claiming the motion for reconsideration was invalid because it was not supported by an affidavit or declaration of counsel.   Plaintiff's attorney failed to include a declaration with the motion, but added it to his reply, simply stating he did not believe the Regents would be prejudiced by the late filing of the declaration.

As to the extension of time to appeal as the result of filing a motion to reconsider, California Rules of Court, rule 8.108(e) requires that the motion be "valid."  While rule 8.108 does not define the term "valid," the court interpreted it to mean "only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious."  (Opn., pg. 5.)  A motion for reconsideration brought pursuant to Code Civ. Proc. section 1008(a) must include a declaration or affidavit that states certain facts.  The  declaration eventually submitted with the reply failed to satisfy this requirement.    Thus, the motion was invalid because it failed to comply with statutory procedural requirements.

It didn't help plaintiff that a declaration was submitted after the motion was filed, the appellate court rejecting the "piecemeal filing of a motion."  (Opn., pg. 7.)  The language was especially colorful:
"A straightforward reading of this language [in CRC rule 8.108(e)] suggests that a single, complete, valid motion must be filed -- not one that is later assembled from constituent parts like some Frankenstein monster."

(Ibid.) To allow a piecemeal filing the court noted would "undermine the jurisdictional nature of the appellate time period by permitting the extension of that period based on the mistake or inadvertence of counsel." (Opn., pg. 8.)  Thus, the motion must be valid when it is initially filed.

But the fun never stops.  Because plaintiff's first notice of appeal was untimely, that meant that the Regents cross-appeal was also untimely under CRC, rule 8.104(a) [the time period for filing a cross-appeal is extended by a timely notice of appeal].

That left the court with plaintiff's second appeal from the denial of a motion for reconsideration.  First, and it bears repeating here, the court noted that a motion to reconsider is not valid if it is filed after the final judgment is signed.  (Opn., pg. 6.)  Too many attorneys have ignored this rule.  But the court noted inconsistent authority as to whether the denial of a motion for reconsideration is appealable.  The prevailing view, one to which the court subscribed, was that a motion for reconsideration is not appealable.  (Opn., 10.)

Since the original order was to deny the anti-SLAPP motion in part, then perhaps the plaintiff had a few causes of action left to litigate.

Is legal blogging over?

In a recent post on Legal Blog Watch, blogger Elefant asks about "The Demise of the Legal Blogsophere."  She refers to another blogger, Mike Cernovich, who believes the blogosphere is overrun by "shallow marketing and exclusive cliques."  While I am always on the lookout for a great appeal, you won't find any "shallow" marketing here; my marketing plan is much more elaborate.

These bloggers have noticed changes in blogging over the years.  I agree.  Several years ago I attended a State Bar Convention and one of the speakers asked how many people had blogs or even searched blogs.  Only a few people out of hundreds raised their hands.  I was not one of them.

I think lawyers generally are behind the times when it comes to marketing, but one thing we seem to instinctively understand, and that's competition.  If one attorney comes up with an inventive marketing plan, then we are all for it.  We don't like being left out.

I started my blog for primarily two reasons:  (1) as an appellate attorney I had observed trial attorneys making the same mistakes over and over again, and those mistakes jeopardized the clients' chances on appeal, and (2) I was (and am) working on a book that tries to summarize my advice to trial lawyers.   I tried to balance my blog entries between giving solid advice and writing about the lighter side of appellate cases.  When I finish my book, perhaps I will just write about humor and the law.

I have been blogging for a short period of time but I have noticed that the field is becoming inundated with experts and expert wannabees.  Frankly, I can't read every blog, no matter how much I want to.  I like to see the sun outside.   There are blogs that are simply marketing tools and I shy away from those.  On the other hand, I am not one to read about an attorney's most recent ski trip or daughter's birthday party.  Sorry but that's just me.

As much as I try to stay on top of new ideas, including social networks, my profiles remain unfinished (at least I started) and I have yet to follow anyone on Twitter.  I am not particularly excited about the posts I read on Facebook and other networks.  Perhaps I am following the wrong people.

In any case, I am going to keep blogging away, at least until I finish my book.  If I seem like I am living in a shell, you may be right.  Occasionally, however, I do find some blogs very interesting - I am rather fond of Legal Blog Watch - and have to admit that the Internet is an amazing tool.

Standard of Review: Abuse of Discretion

In an appeal based on abuse of discretion, the appellate court examines the trial court’s discretionary rulings “and asks whether it exceeds the bounds of reason or is arbitrary, whimsical or capricious. . . This standard involves abundant deference to the trial court’s rulings.”  (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) 

If you believe the trial court is acting beyond the bounds of reason or is arbitrary, whimsical or capricious, you must try to get that language on the record.  Sometimes trial courts are forthcoming about their reasons for ruling in a certain way, other times they prefer to keep it a mystery. 

     An appellant challenging a discretionary ruling on this ground will have the best chance of success if he or she can demonstrate that the trial court failed to adhere to legal criteria, the ruling is a clear case of abuse, and a miscarriage of justice.  If you are hoping to find that the trial court acted “beyond the bounds of reason,” think again.  While you may not like the court’s ruling, finding a judge who is irrational and acts beyond reason is not that common, although such a judge can be found in Hollywood movies. 


Standards of Review: Question of fact or law?

The application of law to undisputed facts is subject to the appellate court’s de novo review.  For instance, if the parties stipulate to facts, which then become undisputed, the correct application of law to those facts is subject to independent review.  As a result, questions of fact can be transformed into questions of law when the facts are uncontroverted and only one deduction or deduction can reasonably be drawn from those facts.  (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal. App.3d 709, 719.)  In Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, the court explained the difference:

“Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.”

(Id. at p. 888.)

       Seems simple enough, huh?  You might think so but attorneys squabble quite bit over this distinction.   They even argue over whether certain facts are undisputed and to what extent.  Oh, if I had a nickel for every time an opposing attorney insisted the facts were “undisputed,” I might be rich (except for the 40% loss in value of my invested nickels due to the current economy).