• 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





Sharing appellate tips and knowledge


 A few weeks ago, I drove up to San Jose and spoke before about 90 attorneys attending the 2012 Belli Seminar, which was presented by the Santa Clara County Trial Lawyers Association.  I selected about 10 tips from my book and gave a short presentation to these attorneys on what they must do at the trial level to protect my appeals.  I was very flattered to be asked to speak along with a panel of some great trial lawyers, such as John Burris, Rick Simons, Lawrance Bohn, and Alejandro Blanco, among others.  Yes, I know it's a long drive from Laguna Beach, but I thought it was well worth it.

 One thing that struck me was how these trial attorneys focus on a theme in a case.  One attorney said that every case he tries is really about corporate greed.  Another said that he focuses on what happened to the plaintiffs, while another focused on making the jury feel that if it didn't stop the defendant, such misconduct could happen to them or others they might love.  Within those general themes, one could easily discover more specific themes.

Appeal are not much different.  We also have themes, but we also have grounds for appeal that we want to present to the trial court.  How does one find a theme in a case?  Well, what resonates about the case with you?  It might be a sense of unfairness, intolerance, or bureaucratic nightmares that deprive people of justice.   One question to ask might be why can't the plaintiff find justice?  An interesting way to develop a theme is to tell the story of your client's case to laypeople, not attorneys, and listen to their reactions.  What strikes them the most about the case?  What outrage do they experience and on what points?  My feeling is that justices might react the same way.  

Call me an optimist, but I believe that most judges want to do the right thing and want to be just.  We just have to present our appeals in such a way that there is only one way to do it.





Have you Googled your clients lately?


The Internet is a great source for information.  As attorneys, we need to get our names out there so prospective clients can find us.  On the flip side, how often do you, as part of your intake, conduct searches on your clients? 

In Cajamarca v. Regal Entertainment Group, Case No. 11 Civ. 2780, District Judge Cogan of the United States District Court, Eastern District of New York awarded sanctions to defendants in the amount of $3,000, plus costs of $3,683.  Okay, it's not such a huge amount, but the Order makes for fun reading.  

Apparently, the District Judge previously granted defendants' motion for summary judgment in a sexual harassment case filed by Veronica Cajamarca, who alleged that she had been subjected to sexual harassment when a co-worker exposed himself and masturbated in front of her (the "break room incident").  The defendants then filed a motion for sanctions and attorney's fees seeking $552,627.50 in fees and costs of $113,177.36. 

It seems in opposing the summary judgment motion, plaintiff had been portrayed as "essentially an ingénue who was diagnosed by a psychiatrist as having post-traumatic stress disorder as a result of the incident perpetrated by her sexually abusive co-worker."  That sounds pretty serious, except for a few minordetails: 

  • Plaintiff had prior convictions for prostitution, worked as a call girl, and "had a rather fulsome sexual history, including an interest in sado-masochism.
  • During her deposition, and even when questioned by her own psychiatrist, she omitted her sexual history.  Rather than being "bedridden" and in a "vegetative state" as a result of the incident, her Facebook page describes "an extraordinarily active travel and social life," which included "engaging in sexual banter with friends."
  • Plaintiff's testimony that the break room incident occurred after several months of socializing with the co-worker was false.  Documentary evidence showed that the break room incident happened first, and then plaintiff had an active relationship with the co-worker that included lending him money.  She was still friendly with him after the break room incident, but there was strong support for the co-worker's claim that Cajamarca turned on him "when he advised her that he was reconciling with his wife." 

How did Cajamarca respond to these claims?  Her counsel responded with procedural defenses, i.e., the motion was filed too late, the defendants improperly combined the two motions, and did not give adequate notice.  

The District Court concluded that "plaintiff's lawyer should be roundly embarrassed.  At the very least, he did an extraordinarily poor job of client intake in not learning highly material information about his client, . . . "  The Court sanctioned plaintiff's attorney, in part because he never advised his client to preserve data on her laptop's hard drive.  It found "Defendants were clearly prejudiced by the obstruction of discovery because if they had had the data when they took plaintiff's deposition, the tenuousness of her damages claim would likely have become even more apparent and might well have resulted in the withdrawal or nominal settlement of the claim." 

Tip for the Day:  Research potential clients by Google and Facebook.



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:


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


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.



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



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