Representative Cases

Click here for a .pdf version

REPRESENTATIVE APPELLATE CASES

The following is a list of representative cases only; it does not include every case in which I have filed briefs. I have omitted a number of cases where the issue was straightforward or the opinion simply followed established law. I have also not included a number of criminal appeals, as I no longer do such appeals. Please note that, in some of the cases listed, I “ghost-wrote” the briefs and thus do not appear as counsel of record. If you would like to see any of the briefs in any of the listed cases, please contact me.

PUBLISHED OPINIONS

Smock v. State of California, 138 Cal.App.4th 883 (2006): I represented a former colleague in an appeal brought by the State of California after my colleague had won a jury verdict against the State for its failure to maintain a highway, resulting in an accident in which my client was injured. The appeal concerned application of the “collateral source rule,” which generally prevents a wrongdoer from deducting from damages payments made by the injured party’s employer or personal insurance. The novel issue in this case was whether the rule applied to payments made by the employer solely as a gesture of good will, rather than pursuant to an employment contract. The Court of Appeal determined that such payments fall within the collateral source rule, meaning that my client was entitled to receive the full amount of damages awarded by the jury.

Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9th Cir. 2004): I was coauthor of all briefs in this trademark dispute (I also argued part of the case at oral argument). The appeal involved numerous novel questions concerning the scope of the Federal Trademark Dilution Act as applied to Internet domain names. The Ninth Circuit reversed a summary judgment that my client had diluted Nissan Motor’s trademark through operation of a website at www.nissan.com. After the case returned to the district court, I helped to represent the client at a trial, which resulted in a judgment in the client’s favor on the claim for trademark dilution.

Navellier v. Sletten, 29 Cal.4th 82 (2002): I was co-author of all briefs in this matter, which involved the scope of California’s anti-SLAPP statute. The anti-SLAPP statute (the acronym stands for “Strategic Lawsuits Against Public Participation”) gives parties who have been sued as the result of activities that were protected by the First Amendment the opportunity to have the lawsuit dismissed at an early stage of the proceeding. The California Supreme Court in this case reversed a finding by the trial court and the California Court of Appeal that my client’s filing of a lawsuit was not protected by the First Amendment. The Supreme Court found that the earlier lawsuit was protected expression under the First Amendment and that my client had a right to have the current lawsuit considered under the anti-SLAPP statute. I also co-authored the briefs when the case returned to the California Court of Appeal, which eventually ruled that the lawsuit against my client was an attempt to silence his exercise of his free speech rights. Navellier v. Sletten, 106 Cal.App.4th 763 (2003). The court eventually awarded my client all attorneys’ fees incurred in his successful defense.

San Francisco Baykeeper v. Cargill Salt Div., 263 F.3d 963 (9th Cir. 2001): I coauthored all the briefs in this Clean Water Act appeal, involving pollution of a pond in the Don Edwards National Wildlife Refuge in South San Francisco Bay. I represented several environmental groups. The Ninth Circuit reversed a summary judgment on behalf of my clients on the basis of a new decision from the Supreme Court that was issued shortly before oral argument. The case returned to the District Court, where my clients once again received judgment in their favor. On a second appeal, the Ninth Circuit applied the new Supreme Court decision to find that my clients could not recover.

Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., 78 Cal.App.4th 847 (2000): I wrote all briefs and argued this complex appeal (involving four separate sets of appealing parties and two separate appeals) regarding interpretation of CGL (commercial general liability) insurance policies. I was also co-counsel for one of the insureds in the trial. The Court of Appeal affirmed the judgment that my client was entitled to insurance coverage for its losses and that the insurance companies had acted in bad faith, resulting in an award of over $3 million to my client.

Hall v. Butte Home Health, Inc. 60 Cal.App.4th 308 (1997): I wrote all briefs and argued this appeal, which involved a judgment that my client, a group home for disabled elderly persons, was in violation of restrictive covenants for the suburban development in which it was located. The Court of Appeal reversed the judgment against my client, holding that California’s civil rights statutes bar enforcement of restrictive covenants that have the effect of discriminating against group homes for the disabled. I also handled the proceedings on remand, leading to a substantial settlement payment to my clients for attorneys’ fees incurred in the original trial and on appeal.

Society of California Pioneers v. Baker, 43 Cal.App.4th 774 (1996): I wrote all the briefs and argued this appeal, which involved a judgment against the Society of California Pioneers in an action for recovery of an antique gold cane head stolen from its museum. The trial court had held, after a trial, that the Society's conversion action against a person who had acquired the cane head without knowledge that it had been stolen was barred by the statute of limitations, meaning that my client could not recover the cane head from its new owner. On appeal, the Court of Appeal reversed the judgment and directed entry of judgment in my client's favor; the cane head has now been returned to my client, its rightful owner.

Wolfe v. State Farm Fire Casualty Co. 46 Cal.App.4th 554 (1996): I was the primary author of one of three principal briefs for the respondents, the 17 largest homeowners’ insurers in California, in this appeal concerning those insurers’ practices in refusing to write new homeowners’ policies following the losses incurred in the Northridge earthquake. The Court of Appeal affirmed the judgment in favor of my client (California State Automobile Assn. Inter-Insurance Bureau) and the other insurer defendants, finding that their underwriting criteria did not constitute “unfair business practices” pursuant to California Business and Professions Code section 17200. (I also handled the summary judgment proceedings in this matter in the trial court).

Stansbury v. California, 511 U.S. 318 (1994): I was co-author of the petition for certiorari and the briefs in this appeal of a death penalty. The United States Supreme Court reversed the California Supreme Court's determination that the defendant was not "in custody" under Miranda v. Arizona during a police interrogation. According to newspaper accounts, this was the first reversal of a judgment of the California Supreme Court affirming the guilt phase of a death penalty case in more than 25 years. I also co-authored the briefs in the same case when it was first before the California Supreme Court (People v. Stansbury, 4 Cal.4th 1017 (1992)) and after remand from the United States Supreme Court (People v. Stansbury, 9 Cal.4th 824, 38 Cal.Rptr.2d 394 (1994)).

Tagliente v. Himmer, 949 F.2d 1 (1st Cir. 1993): I had primary responsibility for briefing this appeal of a summary judgment in favor of the client. The First Circuit affirmed the judgment in favor of my client, which disposed of claims for fraud and unfair business practices in the sale of real property.

Flood v. Southland Corporation, 33 Mass.App.Ct. 287, 601 N.E.2d 23 (1992): I wrote the briefs in this premises liability case, in which the Massachusetts Appeals Court granted a new trial to my client after a judgment of more than $1,000,000 had been entered against it arising out of injuries inflicted during a fight at a convenience store between juveniles who were “hanging out” in the parking lot. This result was subsequently reaffirmed by the Massachusetts Supreme Judicial Court (Flood v. Southland Corporation, 416 Mass. 62, 601 N.E.2d 23 (1993)).

Clark v. Greenhalge, 411 Mass. 410, 582 N.E.2d 949 (1991): I wrote the briefs in this appeal concerning the interpretation of the doctrine of "incorporation by reference" of documents extrinsic to a will. The question was whether a handwritten list of gifts had been properly incorporated in a will. After the Massachusetts Supreme Judicial Court decided that the handwritten list was part of the will, my client received possession of a painting that the deceased had intended she should receive. I also handled further proceedings in the trial court, where I obtained an award of nearly $100,000 in attorneys' fees for my client from the executor of the estate.

United States v. Armstrong, 909 F.2d 1238 (9th Cir. 1990): I wrote the briefs in this criminal appeal involving a defendant convicted of making false entries on federal firearms transaction records. The issues on appeal included questions regarding the scope of "aiding and abetting" another's crime, distinctions between "aiding and abetting" and "causing" a crime, and juror misconduct. The Ninth Circuit affirmed the conviction.

Fletcher v. San Jose Mercury News, 216 Cal.App.3d 172, 264 Cal.Rptr. 699 (1989): I had primary responsibility for briefing this civil appeal involving the trial court's grant of a judgment notwithstanding the verdict (“JNOV”) to the client on a claim for libel. The California Court of Appeal affirmed the JNOV in favor of my client in all respects.

State Compensation Insurance Fund v. Selma Trailer, 210 Cal.App.3d 740, 258 Cal.Rptr. 545 (1989): I had primary responsibility for briefing this appeal, in which the Court of Appeal affirmed the trial court's dismissal of a product liability claim against the client on the ground of dilatory prosecution, thus ending the litigation with a judgment in my client’s favor.

The Northern Trust Company v. Community Bank, 873 F.2d 227 (9th Cir. 1989): I wrote the briefs in this civil appeal, which presented a question of first impression regarding the liability of a "confirming bank" in a letter of credit transaction. The Ninth Circuit's resolution of this question resulted in the client's recovery of the entire amount of a dishonored letter of credit.

UNPUBLISHED OPINIONS

Robinson v. Cannondale Corp., 81 Fed.Appx. 725 (Fed. Cir. 2003): I co-authored the briefs in this patent appeal, which concerned construction of a patent for a front suspension system for bicycles. The Federal Circuit reversed a summary judgment of non-infringement against my client, the patent holder, meaning that the client could go to trial on his claim that Cannondale Corp. had infringed his patent.

Scholle Corp. v. Packaging Systems, Inc.: 71 Fed. Appx. 847 (Fed. Cir. 2003): I coauthored the briefs in this patent appeal, which concerned construction of a patent for a device that sealed “bag in box” packages, such as those used for soft drink syrup. The Federal Circuit affirmed a judgment of non-infringement on behalf of my client, meaning that my client could continue to use the technology it had devised.

Bruntjen v. Liberty Mutual Ins. Co., 86 Fed.Appx. 242 (9th Cir. 2003): I co-authored all the briefs in this appeal, in which investors in a failed energy project in China sued a law firm for securities fraud, RICO violations and common-law fraud. The Ninth Circuit affirmed the summary judgment in my client’s favor. I also represented the law firm in the trial court and helped secure the summary judgment from which the appeal arose.

Pajaro Dunes Rental Agency, Inc. v. Pajaro Dunes Ass’n. 73 Fed.Appx. 953 (9th Cir. 2003): I co-wrote the briefs in this dispute over the terms of a use/rental agreement for a homeowners' beach association. The Ninth Circuit affirmed a jury verdict against my client.

Porteous v. Porteous, 2006 WL 3308430 (2006): I wrote all briefs and argued this case, in which my client challenged an arbitration award concerning dental partnerships he had once operated with his brother. The Court of Appeal reversed the judgment against my client and directed the trial court to revise its judgment, resulting in a gain of over $150,000 to my client.

Kammerer v. Millennium/WDG Retail Partners, 2002 WL 1453601 (Cal.App. 2002): I wrote all briefs and argued this appeal, which involved an exceedingly complicated business dispute over ownership and control of a large development in downtown San Francisco. The Court of Appeal reversed a series of summary judgments against my clients and remanded for a trial on their claims against the joint venturers in the development.

In re Estate of Singer, 2002 WL 1752826 (Cal.App. 2002): I co-authored the briefs in this appeal from a decree invalidating a purported will. My client, the daughter of the deceased, had been disinherited in the purported will; when that will was invalidated, she became eligible to inherit part of her father’s estate. The appeal involved complex questions concerning application of the rules for when a lost original will is presumed to have been destroyed by the testator. The Court of Appeal affirmed the judgment, leaving my client eligible for a portion of the estate.

Epicurean Esthetics, Inc. v. Harford (3d App. Dist. No. C030514) (1999): I wrote all briefs and argued this appeal of a jury verdict against my client, a specialty fruit broker accused of violating trade secrets of her former employer. The Court of Appeal reversed the judgment against my client in its entirety, and directed entry of judgment in her favor on the claim for misappropriation of trade secrets.

Rasmussen v. RingCentral, Inc., 2005 WL 1460660 (Cal.App. 2005): I wrote the briefs and argued this appeal under California’s anti-SLAPP statute. The trial court had determined that my client’s actions in filing a judicial foreclosure on assets pledged to secure a loan was not an exercise of free speech rights protected by the anti-SLAPP statute. The Court of Appeal agreed and affirmed the judgment.

Boucher v. Wisniewski, 2008 WL 77585 (Cal.App. 2008): This appeal concerned interpretation of a settlement agreement in a property dispute. The trial court had found that my client had agreed to an implied easement across her property in the agreement. On appeal, the Court of Appeal affirmed the judgment, finding that the settlement agreement created an implied equitable servitude.

River Rock Development v. Paik, 2007 WL 1057054 (Cal.App. 2007): I acted as appellate advisor in this appeal (meaning that I edited the briefs and offered advice, but did was not the primary author of the briefs) concerning interpretation of a series of contracts relating to sale of property. My client contended that it was the assignee of a contract to purchase property; the defendants claimed that no assignment had taken place. The trial court entered summary judgment against my client and the Court of Appeal affirmed.

Medeiros v. Johnson, 2006 WL 2513036 (Cal.App. 2007): I acted as appellate advisor in this appeal (meaning that I edited the briefs and offered advice, but was not the primary author of the briefs) concerning a judgment that a prominent law firm had not committed malpractice in a real estate transaction. The Court of Appeal affirmed the judgment against my clients, the buyers in the transaction, but determined that the law firm (which had filed a cross-appeal) was not entitled to attorneys fees.

Franklin v. Faulkner, Sheehan & Wunsch, et al. (1st App. Dist. No. A079524) (1998): I wrote all briefs and argued this appeal of a judgment in favor of my client, a law firm. The plaintiffs had claimed a 1/3 share of a large contingency fee recovered by the law firm pursuant to an alleged oral agreement. The Court of Appeal found no admissible evidence of the existence of the alleged agreement. The Court of Appeal’s opinion brought a final end to more than 13 years of litigation over this claim. (I also handled the summary judgment proceedings for my client in the trial court that resulted in the judgment affirmed on appeal).

Salvio Pacheco Square, LLC v. Secure Computing Corp., 2006 WL 895722 (2006) I was co-author of the briefs in this appeal, concerning interpretation of a lease. The Court of Appeal affirmed a judgment against my clients, holding that the lease agreement did not permit my client to vacate a commercial property before the lease had expired.

Northern Trust of California v. Bear Stearns & Co., Inc. (9th Cir. No. 93-16870) (1995): I wrote the briefs in this civil appeal of a judgment dismissing a client's RICO and securities fraud claims for failure to state a claim arising out of complex transactions involving wire transactions through the Federal Reserve Bank. Although the court affirmed the judgment, it reversed Rule 11 sanctions imposed upon trial counsel in connection with the filing of the underlying complaint.

Northern Trust of California v. Bear Stearns & Co., Inc. (Cal. Ct. App., 1st App. Dist. No. A060283) (1994): I wrote the briefs and argued this appeal of an order dismissing the client's cross-complaints against two co-defendants after those co-defendants settled with the plaintiff. The Court of Appeal affirmed the trial court's order.

Dunn v. California State Automobile Assn. (Cal. Ct. App., 1st App. Dist No. A062792) (1994): I wrote the briefs in this appeal of a summary judgment in favor of my client, an insurer, on a claim for breach of contract and bad faith insurance practices. The Court of Appeal affirmed the summary judgment in favor of my client. (I also wrote the summary judgment papers n the trial court that resulted in the summary judgment affirmed on appeal).

Bock v. Bock, 34 Mass.App.Ct. 1117, 613 N.E.2d 141 (1993): I wrote the briefs in this appeal of a judgment of contempt of court in favor of the client against her former husband in a divorce dispute. The Massachusetts Appeals Court affirmed the judgment in my client’s favor and awarded double costs of appeal as a sanction against the other party.

Fleming v. Fleming, 34 Mass.App.Ct. 913, 608 N.E.2d 1064 (1993): I wrote the briefs in this appeal of a judgment decreeing specific performance of a marital separation agreement. The Massachusetts Appeals Court affirmed the trial court's judgment in favor of the client.

Hamaty v. Supermarkets General, Inc., 32 Mass.App.Ct.115, 593 N.E.2d 1325 (1993): I wrote the briefs in this appeal involving a defense verdict in a premises liability action. The Massachusetts Appeals Court affirmed the verdict in favor of the client.

Lee v. Floyd, 30 Mass.App.Ct. 1104, 566 N.E.2d 155 (1991): I had primary responsibility for briefing this appeal, in which the Massachusetts Appeals Court affirmed a summary judgment in favor of the client in a malicious prosecution action.

Johnson v. Chas. Kurz & Co., Inc. (Cal. Ct. App., 1st App. Dist. No. A045449) (1989): I wrote the briefs in this appeal of a summary judgment in favor of the client on a personal injury claim in admiralty. The Court of Appeal affirmed the summary judgment in the client’s favor.

OTHER APPELLATE CASES

Vandenberg v. Superior Court 21 Cal.4th 815 (1999): I wrote an amicus curiae brief for this case, involving the question whether comprehensive general liability insurance policies cover claims for breach of contract. The California Supreme Court adopted the analysis of the issue stated in my amicus brief and, in fact, paraphrased portions of that brief in its opinion.

Moore v. Conliffe, 7 Cal.4th 634, 29 Cal.Rptr.2d 152 (1994): I wrote a brief and argued before the California Supreme Court as amicus curiae in this case concerning the scope of immunity for misconduct occurring during arbitration proceedings.

Local 144 Nursing Home Pension Fund v. Demisay, ___ U.S. ___, 113 S.Ct. 2252 (1993): I wrote an amicus curiae brief in support of a pension fund in this case involving the interpretation of the fiduciary responsibilities of ERISA trustees. After remand to the Second Circuit, I wrote another amicus brief in support of the pension fund. The appeal was dismissed prior to any further hearing.

Lee v. Interinsurance Exchange 50 Cal.App.4th 694 (1996): I co-wrote an amicus curiae brief in this action, which involved a challenge to the corporate governance of inter-insurance exchanges on behalf of the Northern California branch of AAA, which operates an inter-insurance exchange.

TRIALS

Shade Foods, Inc. v. IPS, et al. (San Francisco Sup. Ct. No. 970035): I was cocounsel in this trial, in which my client, a food processor, sought insurance coverage for liability incurred as a result of its accidental contamination of another company’s food product. After a 2-month trial in 1996 and 1997, the jury found that the two insurer defendants had acted in bad faith in denying coverage and awarded my client approximately $3.2 million in compensatory damages and $11 million in punitive damages.

Southern Pacific v. State of California (Santa Barbara Sup. Ct. No. 215020): I represented the Southern Pacific railroad in this action, in which the railroad sought compensation for damages incurred as a result of two washouts of its track in Santa Barbara County following heavy rains in 1995. In May, 1998, the jury found that the washouts were the result of inadequate maintenance of drainage structures appurtenant to Highway 101, and awarded my client more than $848,000, representing all damages my client had sought. The State of California paid the entire the judgment (which included an additional $100,000 in pre-judgment interest) in October, 1998.