Appellate Court Update – January 19, 2022

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  2. Appellate Court Update – January 19, 2022
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Appellate Court Updates – January 19, 2022

Easements and laches/ substantial evidence

In an action for trespass, an encroacher’s failure to adduce direct evidence of the cost of removing the encroachments in question is not fatal where the trial court viewed the disputed property. The court’s observations are evidence which may be used alone or with other evidence to support its findings.

Under the relative hardship doctrine, once the court determines that a trespass has occurred, the court conducts an equitable balancing to determine whether to grant an injunction prohibiting the trespass or whether to award damages instead. The court further has broad equitable powers to fashion a remedy to fit the requirements of specific cases. The trial court may create new remedies to deal with novel factual situations.

Johnson v. Little Rock Ranch, LLC (1/3/22) 2022 WL 30448


Fraud in the execution of a document/ pleading

The purpose of the rule requiring fraud to be alleged with specificity is to furnish the defendant with certain definite charges which can be intelligently met. Less specificity is required where the nature of the allegations are such that the defendant must necessarily possess full information. In this case, Plaintiff alleged that Defendant planned to “surreptitiously switch the lease,” and through trickery, substituted an altered version of the lease that Plaintiff signed. The Appellate Court held that given the nature of the fraud and the alleged alter ego relationship between the defendants, Defendants would already know the extent of their involvement, if any. No additional specificity was required, and Defendants’ demurrer was improperly sustained. The Complaint properly alleges fraud in the execution. Any contentions that Defendants committed other alleged fraud can be fleshed out in discovery.

Munoz v. PL Hotel Grp., LLC (1/3/22)  2022 WL 18706


Preference in civil trial setting in coordinated actions

 The mandatory provisions of Code of Civil Procedure §36 requiring preference in trial setting under certain circumstances do not supersede CCP §§404 et seq. and Calif. Rules of Court, Rule 3.504 governing coordination proceedings.  CCP §404.7 directs the Judicial Council to provide by rule the practice and procedure for coordinated proceedings, notwithstanding any other provision of law. This phrase declares legislative intent to override all contrary law.

Izaak v. Superior Court (1/11/22) 2022 WL 101841


Standard of review for appellate court, resolution of disputed fact

 Court of AppeaAmerican Contractors Indemnity obtained a Judgment against Ruben Hernandez and 10 years later sought to renew the Judgment. Hernandez moved to vacate the renewal, which the trial court denied. Hernandez initially testified he had not received service of the notice of renewal of the Judgment and later repudiated his admission and testified he had not received service of the Judgment. The appellate court held that the change in Hernandez’s version of the facts merely created a disputed fact for the trial court to resolve, not a “corrected” fact that eliminated the admission by Hernandez. Taking the evidence in the light most favorable to the trial court’s ruling, the appellate court found no abuse of discretion.

Am. Contractors Indem. Co. v. Hernandez (1/11/22) 2022 WL 99553


Anti-SLAPP; commercial speech

 The context in which statements are made holds significant sway in terms of whether they are considered to be in furtherance of free speech in connection with a public issue under Code of Civil Procedure §425.16(e)(4). Huang’s alleged slander of a competitor in a private setting to solicit business is neither speech in furtherance of the exercise of the constitutional right of petition nor the constitutional right of free speech in connection with a public issue. Trial court’s order granting anti-SLAPP motion reversed.

Xu v. Huang (12/16/21) 2021 WL 6423941

Hire an Attorney Experienced in Appellate Court

The key to winning an appeal is to hire the right representation. Make sure you hire an experienced appellate attorney. These cases can be extremely complicated. It’s essential to have someone on your side who understands the complexities and what it takes to win an appeal.

Attorneys Noreen Evans and Deirdre Kingsbury understand the complexities of appellate law and how to write and present a persuasive appellate brief. At Evans Kingsbury LLP we are appellate lawyers with decades of experience who can take your case to the next level. Call us today at (707) 596-6090 or fill out our easy contact form to discuss your case.


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