Contact
  • 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

Donna@DonnaBader.com

 

 

 

Meta
http://appellatelaw-nj.com/
Saturday
Sep012012

The Court of Appeal recognizes the value of pets (and especially, dogs).

 

 

In one of my recently decided appeals, Plotnik v. Meihaus, the Plotniks sued their neighbors, the Meihauses, after suffering years of emotional distress.  They alleged tort claims as well as a breaches of a mutual restraining order that included an attorney's fees clause.  As noted by the appellate court, "[t]hings came to a head" when the Plotnik family dog, Romeo, a 12-15 lb., 12" miniature pinscher, inadvertently ran into the Meihaus's backyard.  Plotnik tried to retrieve his dog, but then heard backing and a squeal.  "He hurried home, arriving in time to see Romeo rolling down the slope through the open gate and hit a tree. "  (Opn., pg. 5.)  Plotnik then encountered Meihaus, who was holding a bat.  Romeo's surgery cost $2,600.  The case was tried before a jury, who returned a verdict of $154,100 against Meihaus, $12,000 against one Meihaus son and $9,500 against a second son, for a total of $175,600.  The jury also awarded Mrs. Plotnik the sum of $255,209.53.  The trial court reduced the judgment by $80,000 and then case proceeded to an appeal.

 

One of the major issues was whether the Plotniks could recover under their trespass to personal property cause of action for the "emotional distress they suffered resulting from Meihaus's injuring Romeo by striking him with a bat."  (Opn., pg. 15.)  The Court of Appeal concluded, "We hold California law allows a pet owner to recover for mental suffering caused by another's intentional act that injures or kills his or her animal."  (Opn., pg. 2.)   The court acknowledged that damages for trespass to personal property allows a plaintiff to recover actual damages.  It also noted that no case law prohibited the recovery of damages for emotional distress.  (Opn., pg. 16.)

 

Then, in a sentence that made my dog Casper swell with pride, the court acknowledged that there are "no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt."  (Opn., pg. 17.)  The court also noted one can be liable for punitive damages for willfully or through gross negligence injuring an animal.  (Civ. Code sec. 3340.)  "Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime.  (Pen. Code, sec. 597, subd. (a).)"  (Ibid.)  Casper reminds me that although the Court of Appeal expresses its rule in general language, i.e., "pet owners" and "animals," it gave a special nod to dogs and ignored any mention of cats. 


The appellate court reduced the total damage award, affirming an award of $57,950 to David Plotnik, plus $1,000 each against each Meihaus son, and damages to Joyce Plotnik of $100,209.53.  It also affirmed the award of $93,780 in attorney fees.  You can find the opinion at: http://www.courts.ca.gov/opinions/documents/G045885.PDF.

Sunday
Aug262012

California Supreme Court dismissed Pack v. Superior Court

 

For those of us who are involved in medical marijuana, we have been watching how the Supreme Court handles several important appeals.  The most anxiously watched case is City of Riverside v. Inland Empire Patient's Health and Wellness Center, Case No. S198638, which deals with the issue of whether cities and counties can absolutely ban medical marijuana dispensaries and patients' associations.  An unpublished decision also from the Fourth Appellate District, Division Two, entitled  People v. G3 Holistic, Case No. S198395, raises the same issue.  Several amicus briefs have been filed in both cases.  These cases are fully briefed and are waiting for oral argument dates.

 

Another medical marijuana case, Pack v. Superior Court, Case No. S197169, involved the City of Long Beach's ordinance, which required high fees to participate in a lottery system, was also pending before the Supreme Court.  At least until August 22, 2012, when the Court dismissed the case, ruling:

 

"On January 18, 2012, we granted review of the Court of Appeal's decision in this matter. (See Cal. Rules of Court, rule 8.500(a)(1).) The sole issue presented by that decision was whether, as mandamus petitioners Pack and Gayle argued below, City of Long Beach Ordinance No. ORD-10-0007 (Ordinance No. 10-0007), imposing a regulatory permit scheme for the lawful operation of medical marijuana collectives in the city, was preempted by the federal Controlled Substances Act (CSA). However, in their brief to this court, and by a letter from their counsel, the mandamus petitioners have now abandoned their federal preemption argument in favor of unrelated issues not raised or decided at any prior stage of this proceeding." 

 

The Supreme Court also noted the subject ordinance had been repealed and replaced, and thus the appeal was moot.  In addition, the legal validity of the new ordinance had not been previously considered, and therefore, it was not ripe for the Supreme Court.  (See http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1994201&doc_no=S197169.)

 

This appeal was heavily briefed, including several amicus briefs and responses.  Then it was dismissed.  Some, including medical marijuana supporters, may celebrate that dismissal, but it still represents a lot of work for the litigants.  I am sure it is a major disappointment to the petitioners, but at least the Riverside cases are still pending.  Meanwhile, petitions for review have also been filed in  two medical marijuana cases in Los Angeles,  County of Los Angeles v. Alternative Medicinal Cannabis Collective, Case No.  S204663, and 420 Caregivers  v. City of Los Angeles,  Case No. S204684.

 

For most appellate attorneys, arguing before the Supreme Court is one of the highpoints of your career.  In fact, you can work as an appellate attorney for your entire life and never make it to the Supreme Court.  But to get that far and put so much time and effort in briefing, only to have the case dismissed, must be a tough way to resolve a case.  Keep in mind, however, that the dismissal does not revive the Court of Appeal's published decision. It remains depublished.  See CRC rule 8.15(e)(1) "Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing."  The Supreme Court has the power to publish the Court of Appeal Opinion and it did not.  See also CRC, rule 8.528(b)(3) "After an order dismissing review, the Court of Appeal opinion remains unpublished unless the Supreme Court orders otherwise." However, the case is still binding on the parties.

 

Monday
Aug132012

Painting a picture at trial for the Court of Appeal

  When you file an appeal, you have to keep in mind that your audience, the Court of Appeal, was not present at trial and has little information as to the appearance and demeanor of the parties and witnesses.  And while credibility or the lack thereof is not the province of the appellate court, like most of us, the Court wants to get a clear picture of the "story."  For more on this, you can read my article "Painting a Picture at Trial for the Court of Appeal," which was published in the most recent issue of Plaintiffmagazine.  You can find it at www.Plaintiffmagazine.com.

 

 

Wednesday
Aug012012

Caring is an important element of handling an appeal

 

Last week I appeared before the Fourth Appellate District, Division Three of the Court of Appeal in Santa Ana.  This is my favorite court and I appear here more than anywhere else.  I know each justice personally and attend business functions where we socialize and talk - about things other than my cases!  It would be great to think that appearing before these justices would be a comfortable experience.  Not so, at least for me.  No matter whether I am appearing on a BIG appeal or a little one, or even I feel like I have an excellent chance of winning, I still get nervous just before "show time."  I feel the pressure of wanting to do the best job possible for my clients.

 

As I was waiting for the courtroom to open, I met up with an attorney who had previously pposed me on an appeal years before.  He is primarily a trial lawyer and doesn't often appear before the Court of Appeal.  He told me that these appearances really make him nervous.  He thought I should be very comfortable going forward with my argument.  Wow!  I was thinking that he is in court all the time and faces a judge, and quite often, twelve jurors.  My perception was that he should be more relaxed in facing three justices.  Interesting thing about perceptions.  We are often wrong.

 

As we talked, I told him my theory that an attorney can never completely eliminate that nervousness.   I think we get nervous because we care.  We might know how important a successful appeal is to our clients and we believe we are on the right side of justice.  Maybe the nervousness keeps us alert.  Of course, I don't want to ever get so nervous that I can't think on my feet.   (No, I am not ignoring those situations when attorneys get nervous because they aren't prepared.)  

 

That brings me to the very point that has been on my mind.  In the last few weeks I have received inquiries from potential clients.  They try to fill me in on what happened at trial but a common complaint has surfaced.  Many of these clients believe their trial attorney didn't really care about them, was not prepared, and would not listen to their input.  These attorneys were inpatient when the clients made suggestions or asked questions about the trial.  The clients felt as though the attorney was handling the case to make money, and for no other reason.

 

Even though attorneys might occasionally handle cases on a pro bono basis, I cannot fault an attorney who has to consider making money to pay bills and put food on the table.  I don't even think clients believe we should act solely out of charity.  But . . . I think they are entitled to be represented by an attorney who genuinely cares about their case and demonstrates that concern.  Whenever I take on a case, I have to ask myself if I care about the client's situation.  If I don't, then I am not the right attorney for the job.   Every attorney has decide if they can represent the client with commitment and caring.  If they can't, turn down the case and let someone who cares handle it.

 

These days, people are so disillusioned by the world around them.  Times are tough for a lot of them.  They feel betrayed on so many levels.  Finding someone who is honest and cares about their case is very important to them.  On the flip side, winning a case that you honestly care about, knowing it will help your client, is more fulfilling than winning a case where you don't.   Hearing a client's problems and forming a relationship with him or her is all about making an important connection.  That should include caring.  And letting your client know you care.

 

Monday
Jul302012

My Spreecast

 

 I'm going live!  Watch the first ten minutes of my interview with trial attorney Mitch Jackson as we talk about my book, An Appeal to Reason.  It was a great opportunity for me to advise trial attorneys about protecting their appeals at the trial level and avoiding mistakes that might jeopardize their chances on appeal.  In the near future, I will talk about how to handle specific problem areas.  For now, follow this link, enjoy, and learn.

.

Page 1 ... 7 8 9 10 11 ... 47 Next 5 Entries »