What constitutes a reasonable offer to compromise under California CCP section 998?

Posted by Steven Vartabedian on

Even in cases not involving an award of attorney fees, this question concerns significant financial consequences, in addition to awarded damages, to a non-prevailing party–not uncommonly to the tune of half a million dollars. Such was the case in Whatley-Miller v. Cooper (published opinion filed January 15, 2013, No. B237335). Plaintiffs, the survivors of Thomas […]

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“Lost profits” expert evidence concerning projected upstart dental implant manufacturer too speculative.

Posted by Steven Vartabedian on

The California Supreme Court in Sargon Enterprises, Inc. v. University of Southern California (filed November 26, 2012, S191550) starts its reasoning concerning a trial court’s discretion in excluding expert testimony with the following advice of Federal Judge Friendly written 50 years ago: “[A court] must be exceeding careful not to set the threshold too high. […]

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Dismissal of CCP 998-settled case where agreement silent on plaintiff’s statutory claim of attorney fees does not preclude award

Posted by Steven Vartabedian on

Does a dismissal with prejudice after a case settles under California Code of Civil Procedure section 998 preclude an award of attorney fees because the case did not proceed to “judgment?” This is the principal question raised in the Court of Appeal, Fifth Appellate District, case of Wohlgemuth v. Caterpillar, Inc. (filed July 23, 2012, […]

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Plaintiffs alleging separate acts of sexual battery by physician are not properly joined in single action

Posted by Steven Vartabedian on

In Moe v. Anderson (filed July 11, 2012) 2012 DJDAR 9523, the Court of Appeal, Third Appellate District, distinguishes between joinder of plaintiffs against an offending physician defendant sued for separate sexual batteries, and joinder in the same lawsuit of those plaintiffs against the physician’s employer for the negligent hiring and supervision of that physician. […]

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If value of community assets is shown, managing spouse must prove proper disposition or lesser value

Posted by Steven Vartabedian on

“It’s the bad economy” has become the all-too-frequent, yet mostly accurate, cry heard when a party is called upon to explain the decrease, or even total loss, in value of a disputed asset. In litigation over community assets in a marital dissolution, this explanation may not suffice, as is emphasized in the recent California Court […]

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Saving Appeals and Assessing the Case

Posted by Steven Vartabedian on

An appellate court can assist counsel on a discretionary basis by construing appeals from non-appealable orders. It may treat the matter as a writ petition. (Munger v. Gates (1987) 193 Cal.App.3d 1248, 1254.) It may view them as appeals from existing orders. (Vibert v. E. I. DuPont de Nemours & Co. (1995) 32 Cal.App.4th 1525, […]

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More on the question of whether an order is appealable: discovery sanctions and defaults

Posted by Steven Vartabedian on

In my June 2 blog article I discussed some general rules concerning whether a judgment is appealable. Today, the focus is on these two specific types of orders that have some tricky applications. The majority view is that discovery sanctions, regardless of amount, are not directly appealable, but are reviewable only on appeal after final […]

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How Does One Determine Whether a Court Order or Judgment Is Appealable?

Posted by Steven Vartabedian on

California Code of Civil Procedure section 904.1 provides the basic rules of what constitutes an appealable order. In this blog article, I wish to discuss some of the subtleties in making that determination. Often attorneys attempt to appeal a case that gets dismissed as taken from a nonappealable judgment because of violation of the “One […]

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Appellate Advice to the Trial Attorney: Make a Record

Posted by Steven Vartabedian on

In the heat of battle during trial, it is far too easy for counsel to lose track of which chambers and side-bar discussions with the trial judge are being recorded by the court reporter. Remember, any argument made to the trial court that does not become a part of the record — that recorded by […]

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