Appellate litigation is a specialized area of legal practice. It is not merely a continuation of trial court proceedings. As a result, the skills and knowledge necessary to prepare briefing which will persuade an appellate court are quite specific. For example, appellate proceedings rely almost exclusively on written briefs, which will be read and analyzed by at least three appellate justices with more time and more research attorneys than a superior court judge generally has available, and according to standards and presumptions quite different than those applied in the trial court. In addition, given the nature of appellate review and the potential for reevaluation of prior precedent, appellate counsel must be cognizant as to how a legal result he or she advocates in a particular case would fit into - or possibly change - a given area of law. (See, e.g., In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-410.)
The attorneys at Esner Chang & Boyer possess the knowledge, savvy, and skills necessary to effectively litigate in the appellate arena. All four partners are certified as appellate specialists by the California State Bar's Board of Legal Specialization, and together they have more than 100 years experience practicing appellate law exclusively. The attorneys at Esner, Chang & Boyer truly love practicing appellate law and love working with their clients towards positive results, whether it be the reversal of an erroneous ruling below or the affirmance of a correct one.
In addition to handling all aspects of appellate litigation in California and federal appellate courts, the firm also assists trial lawyers with dispositive and post-judgment motions. The firm has a well-earned reputation among trial lawyers and the clients it represents as having successfully litigated a wide range of appeals, writs and motions in civil matters.
A Sampling of Esner Chang & Boyer's Successful Opinions
Patient and patient's wife brought action against manufacturers of prescription drug for strict liability failure to warn, negligent failure to warn, negligent misrepresentation, fraudulent concealment, and loss of consortium and following trial, the court struck patient's expert witness's testimony and granted manufacturers' motion for judgment notwithstanding the verdict; Court of Appeal reversed finding that the expert testimony as to causation was not so speculative as to be inadmissible.
Trial Counsel: The Miller Firm
After collegiate athletic association's motion to seal certain documents was denied and documents were conditionally sealed pending appellate review in former university assistant football coach's lawsuit against association for breach of contract damages, defamation, and other torts, stemming from association's investigation into whether former player on coach's team had received improper benefits while he was a student at university, association moved to seal portion of appellate record that had been conditionally sealed; the appellate court denied the motion association's motion.
Trial Counsel: Greene, Broillet & Wheeler
Confirming that the MICRA $250,000 cap applies only to judgments awarding noneconomic damages, and thus does not limit recovery of noneconomic losses through settlements, the Supreme Court reversed the court of appeal's decision and concluded: "Only noneconomic damages awarded in court are actually capped," and there is no bar to a plaintiff recovering more than $250,000 against all health care providers by way of settlement.
Trial Counsel: Balaban & Speilberger
In an action concerning students who were sexually molested by their second grade teacher, the court of appeal affirmed jury's verdict in favor of the students, finding sufficient evidence to support a finding that the school district was equitably estopped from claiming that the parents failed to timely file a government tort claim.
Trial Counsel: Taylor & Ring
Where deceased motorist's minor daughter brought a negligence action against county after motorist, who was standing near his car following accident on freeway, was struck and killed by county sheriff's patrol car, appellate court reversed jury's verdict noting that the introduction of evidence concerning the motorist's marijuana use was in error as there was no evidence that such use was a substantial factor in causing his injuries.
Trial Counsel: Greene, Broillet & Wheeler
In an action brought by a deceased smoker's son against cigarette manufacturer for wrongful death, the appellate court affirmed the jury's verdict awarding son $12.8 million in damages, finding that the smoker's prior personal injury recovery did not limit son's loss of consortium damages to the value of smoker's consortium in his "pre-death diminished condition."
Trial Counsel: Law Offices of Michael J. Piuze
Where a deceased patient's family members brought action against physician and others for medical negligence, appellate court affirmed award of expert fees and prejudgment interest under cost-shifting offer of judgment statute.
Trial counsel: Thon Beck Vanni Callahan & Powell
Supreme Court held that the common law release rule -- under which a plaintiff's settlement with and release from liability of one joint tortfeasor also releases from liability all other joint tortfeasors -- is no longer the law in California. When one tortfeasor's settlement has been determined by the trial court not to have been made in good faith, the nonsettling joint tortfeasors remain jointly and severally liable, the amount paid in settlement is credited against any damages awarded against the nonsettling tortfeasors, and the nonsettling tortfeasors are entitled to contribution from the settling tortfeasor for amounts paid in excess of their equitable shares of liability.
Trial Counsel: The Phan Law Group, LKP Global Law
Supreme Court reversed court of appeal and holds that a school district may be vicariously liable for its employees' negligence in the hiring, supervising and retention of a guidance counselor who sexually abused a student.
Trial Counsel: Manly & Stewart
After jury found defendants liable for injuries sustained by plaintiff after an elevator accident, the jury apportioned 52% of fault to plaintiff's non-party treating physician. The Court of Appeal reversed and ordered a new trial. The Court held that even though the doctor was a non-party, the defendants still had the burden to prove medical negligence which they had failed to do.
Trial Counsel: Girardi & Keese
Appellate court reversed summary judgment for gas station franchisee finding that prior Texas summary judgment did not bar the action as res judicata and the franchisee's prior recovery of compensatory damages subject to offset did not negate damages element of fraud.
In an action alleging that a dermatologist "negligently and carelessly examined, cared for, followed up on, and treated" plaintiff, the Court of Appeal held that a prior order granting summary adjudication of the plaintiff's medical malpractice claim did not preclude the plaintiff from proceeding with her claim of negligence based on the failure to maintain a laser machine that malfunctioned during the treatment.
Court of Appeal reversed trial court's finding that plaintiff's complaint for fraud, misrepresentation and deceptive trade practices (Bus & Prof. Code s. 17200) in connection with "vanishing premium" life insurance policy was time barred, concluding that the limitations period applicable to such claims begins to run only when the aggrieved party discovers the facts constituting the fraud.
Trial Counsel: Gianelli & Morris and Agnew & Brusavich
In products liability action against a vehicle manufacturer where first trial ended in a hung jury, Court of Appeal reversed trial court's order precluding plaintiff from pursuing a different theory of liability in the second trial. Court held that a new trial order after a mistrial places the parties in the same position as if they had never tried the case; the parties have the right to introduce additional or new evidence not introduced at the earlier trial.
Trial Counsel: Coben & Associates, Law Offices of Michael S. Fields, Inc. and Law Offices of Nate G. Kraut
Court of Appeal affirmed trial court's order refusing to compel arbitration; no equitable basis to estop investors from asserting rights in court against nonsignatory accountants and lawyers because investors did not use operating agreement with investment advisor, containing arbitration clause, to hold defendants liable.
Trial Counsel: Greene, Broillet & Wheeler and Eagan, O'Malley & Avenatti
Other Noteable Opinions
|Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811||Callahan v. Gibson, Dunn & Crutcher (2011) 194 Cal.App.4th 557|
|Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477||Brown v. Grimes (2011) 192 Cal.App.4th 265|
|RC Royal Dev. & Realty Corp. v. Std. Pac. Corp. (2009) 177 Cal.App.4th 1410||Bay Cities Paving & Grading, Inc. (1993) 5 Cal.5th 548|
|Goldman v. KPMG, LLP (2009) 173 Cal. App. 4th 209||Blanks v. Seyfarth Shaw LLP (2009) 171 Cal. App. 4th 336|
|Calemine v. Samuelson (2009) 171 Cal.App.4th 153||Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88|
|Rodriguez v. Blue Cross of California (2008) 162 Cal.App.4th 330 Ayala||Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal. App. 4th 1350|
|Mokler v. County of Orange (2007) 157 Cal. App. 4th 121||Evard v. Southern California Edison (2007) 153 Cal. App. 4th 137|
|Walker v. Farmers Ins. Exchange (2007) 153 Cal. App. 4th 965||Irvine v. Regents of University of California (2007) 149 Cal. App. 4th 994|
|Fields v. Yusuf (2006) 144 Cal. App. 4th 1381||Business to Business Markets, Inc. v. Zurich Specialties London Ltd (2005) 135 Cal. App. 4th 165|
|Mojica v. 4311 Wilshire, LLC, et al. (2005) 131 Cal. App. 4th 1069||Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 (Amicus)|
|Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191 (Amicus)||Parnell v. Adventist Health System/West (2005) 35 Cal. 4th 595 (Amicus)|
|Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553 (Amicus)||Rojas v. Superior Court (2004) 33 Cal. 4th 407|
|Goliger v. AMS Properties, Inc. (2004) 123 Cal. App. 4th 374||Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal. App. 4th 426|
|Mason v. Lake Dolores Group (2004) 117 Cal. App. 4th 822||Bragg v. Valdez (2003) 111 Cal. App. 4th 421|
|Gunther-Wahl Productions, Inc. v. Mattel, Inc. (2002) 104 Cal. App. 4th 27||Everett v. Superior Court (2002) 104 Cal. App. 4th 388|
|Kollander Construction v. Superior Court (2002) 98 Cal. App. 4th 304||Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal. App. 4th 182|
|LaPlante v. Wellcraft Marine Corp. (2001) 94 Cal.App.4th 282||Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236|
|Stapper v. GMI Holdings (1999) 73 Cal.App.4th 787||Livingston v. Marie Callenders, Inc. (1999) 72 Cal.App.4th 830|
|Warren v. Schecter, et al. (1997) 57 Cal.App.4th 1189||Ketchum v. Hyundai Motor Co. (1996) 49 Cal.App.4th 1672|
|Siegel v. Fidelity Nat'l Title Ins. Co. (1996) 46 Cal.App.4th 1181||Estate of Hilton (1996) 44 Cal.App.4th 890|
|Peterson v. Superior Court (1995) 10 Cal.4th 1185||Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818|
|Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613||Beverly Hospital v. Superior Court (1994) 19 Cal.App.4th 1289|
|Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Amicus)||Hadian v. Schwartz (1994) 8 Cal.4th 836|
|Michelson v. Hamada (1994) 29 Cal.App.4th 1566||Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547|