Appellate Tips for

Real Property

Trial Lawyers

Pleadings and Discovery

David J. de Jesus

Reed Smith LLP

www.reedsmith.com

Appealable?

• CCP 904.1 and the “One Final Judgment” Rule

• If it’s not appealable by right, review is discretionary

by writ

• Rulings on the pleadings: Issue of public importance

Appealable?

• Overruling a Demurrer: NO

• Sustaining Without Leave to Amend: YES

• Appeal lies from the judgment, not the order

• Sustaining With Leave to Amend: NO

• But if you amend, can’t get review of the causes of action

you didn’t amend

Appealable?

• TRAP: demurrer ruling may be appealable as a

“final” dismissal order or judgment

• CCP § 581d

• Written order

• Signed by judge

• Directing dismissal

• Why you care: notice of appeal deadline starts to run

Appeals From Pleadings Challenges

• Standard of review

• De novo for the merits of the complaint

• Abuse of discretion for leave to amend

• How do appellate courts look at pleadings challenges?

• Court will be receptive to saving the complaint

• Standing on the complaint

• Consider the consequences: Bad law?

TRO / PI

• An order issuing, denying, or dissolving an injunction

is appealable by right. CCP §904.1(a)(6)

• But is the order automatically stayed pending appeal?

• Mandatory v. Prohibitory

• Practice pointer: Always ask for a stay in the trial

court, even if it is automatic.

• Required before seeking a writ of supersedeas

Discovery

• Discovery rulings typically not appealable

• EXCEPT: sanctions order above $5,000

• Writ review

• Disclosure of privileged information

• Oppressive discovery deadlines preventing fair trial

Discovery

• How does the appellate court look at discovery

issues?

• Abuse of discretion standard generally

• Trial courts have a lot of leeway

• In California, courts will strive to protect attorney-client

privilege

Discovery

• Tone

• Write meet and confer letters for the Court

• Firm, but respectful

• You can’t always get what you want, but if you try

sometimes …

• Focus on what you need and why

Anti-SLAPP and Summary

Judgment

Charles Kagay Spiegel Liao & Kagay, Professional Corporation

www.slksf.com

Anti-Slapp and Summary

Judgment

• Anti-SLAPP motion to strike

• SLAPP is Strategic Lawsuit Against Public Participation

• Public Participation = rights of free speech or petition

• For some causes of action, it’s clear (e.g. defamation for public statements, malicious prosecution)

• Anti-SLAPP can arise in unexpected places, even in real property law

• Slander of title – Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656

• Quiet title – Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119

If There is a Lawsuit Against

Public Participation

• Defendant gets to bring what amounts to a

summary judgment/adjudication motion at the

very outset of the case

• Discovery stayed, unless leave granted by motion

• For appellate purposes, motion for leave to

take discovery must build strong record

• Prevailing defendant gets a fee award

Anti-SLAPP Similar To MSJ

• Anti-SLAPP motion decided on much the same

grounds as summary judgment/adjudication

• Anti-SLAPP granted unless “the plaintiff has established

that there is a probability that the plaintiff will prevail on

the claim” – CCP § 425.16(b)(1)

• Summary judgment granted if “there is no triable issue as

to any material fact and that the moving party is entitled to

a judgment as a matter of law” – CCP § 437c(c)

Anti-SLAPP Similar To MSJ

• Short version of both – motion

granted if:

• Fatal legal flaw in the claim

• or

• No factual dispute arising from

admissible evidence

Anti-SLAPP

• Grant or denial of anti-SLAPP motion is

immediately appealable (with limited exceptions)

• Even if whole action is not stricken – unlike summary

adjudication

• Must appeal from order, even if fee motion pending, or

right to appeal lost for all time

• Mixed authority on whether fee order also appealable – so

you’d better appeal

Appeal of Summary Judgment

• Appeal from judgment, not

summary judgment order

• Denial of summary judgment, grant

or denial of summary adjudication

reviewable only by writ

• Time limit for petition – 20 days

from service or order

De novo review of anti-SLAPP or

summary judgment/adjudication

order

• Absent legal flaw in claim, result most often turns on

adequacy of opposition evidence

• Use declarations and primary documents whenever

possible

• Important to exercise care in drafting declarations

• Constrained by deposition admissions

• Pay attention to admissibility of evidence, provide

complete foundation (including establishing hearsay

exceptions)

Evidentiary objections critical

• Submit in writing in advance

• Respond in writing in advance

• Since they’re in writing, do not

need to be as selective as at trial

Trial-Stage Litigation Mistakes

That Can Ruin Your Chances

On Appeal

Ben Feuer

California Appellate Law Group

www.calapplaw.com

Mistake No. 1

Skipping Motions in Limine

They’re better than speaking objections, but make sure you

get a clear ruling.

Remember, if you lose you motion in limine, you should still

object again to evidence orally – you might win, and more

completely preserve the issue.

Mistake No. 2

Forgetting The Rule 50 Dance

In Federal Court Jury Trials

You must make at least two JMOL motions, one before trial

and one after trial, to preserve a substantial evidence

objection for appeal.

Mistake No. 3

After objecting to testimony, forgetting to move to strike

and request an admonishment or mistrial

Otherwise, the appellate court may consider your objection waived.

Mistake No. 4

Forgetting to offer admitted exhibits into evidence, or to make offers of

proof if an exhibit or testimony was rejected.

If it’s not in evidence, the appellate court won’t consider it.

Offers of proof are necessary to showing prejudice from the error.

Mistake No. 5

Not Thinking About The Verdict Form

Whether you use a general verdict form (hardest to challenge), special verdict form (easiest to challenge), or general verdict with special interrogatories (in the

middle), it can make a big difference on appeal.

Mistake No. 6

Inviting Instructional Error, or Acquiescing or Failing to Object to Instructions

• You must file written instructional objections in federal court.

• In California, instructions proposed by your opponent that you don’t acquiesce are deemed objected to — but consider filing written objections anyway to ensure your

arguments and objections are clear.

• In California, consider proposing only your “ideal” instructions, or ideal instructions with your preferred instructions given adverse pretrial rulings

• There is no obligation to agree to any instructions in furtherance of your opponent’s case, and doing so may waive appellate arguments

Mistake No. 7

Failing to Take an Interlocutory Appeal from

an Appealable Order

In both federal and California courts, certain orders are immediately appealable or writtable, and if you fail to take

an appeal/writ at that time you waive your right to challenge the issue at any later stage.

Mistake No. 8

In California Courts, Forgetting to Request a Statement of

Decision After A Bench Trial

You also have to object to missing facts or unaddressed arguments.

Post-Trial Motions: Appellate

Considerations

Law Office of Valerie T. McGinty |

www.plaintiffsappeals.com

Appellate factors in posttrial

motions.

• Posttrial motions are generally

underutilized.

• Posttrial motions are critical for the

appeal.

• Preserve the issue for appeal

(remittitur)

Appellate factors in posttrial

motions.

• Complete the record.

New trial motion only after

trial?

•No! A motion for new trial is a

versatile tool…

New Trial Motions:

Use them to attack…

• Summary Judgment

• Judgment on demurrer

• Judgment on the Pleadings

• Default judgment

• Judgment on Nonsuit

• Judgment on Directed Verdict

Strategies for Obtaining a

New Trial

The Notice

• Always include all grounds in the

notice

• Specify in the notice the date on

which court’s jurisdiction expires

Strategies for Obtaining a New

Trial

The MPA • Always include a TOC

• Rule of thumb limit to 3 arguments.

• For instructional error, show prejudice using Soule analysis.

• For erroneous evidentiary ruling, show prejudice.

• For juror bias, show your voir dire was specific enough to elicit the bias and that you did not know of bias previously.

Strategies for Obtaining a New

Trial

The Evidence

• Get juror declarations to support any claims

of juror bias or misconduct

• Get new testimony from expert or lay

witnesses to address court’s criticisms

Strategies for Obtaining a New

Trial

The Record

• Exclusionary rulings: submit the excluded documents or testimony

• Instructional error: get juror declarations to establish the bias.

• Submit attorney declaration to document rulings that were not on the record and attach evidence that was offered and erroneously excluded.

Deadlines

Motion for a New Trial

• Notice—filed within 15 days from service of judgment or notice of entry of judgment.

• MPA—filed within 10 days of notice.

• Reply—not provided for; always file one.

• Order—must be issued within 60 days or denied by operation of law.

• Appeal—within 30 days from service of order denying a validly filed motion for new trial.

• Note: orders on 998 costs are separately appealable.