Appellate Law

This Year's Most Memorable Opinion Openers

Author: Colin McGrath

Appellate courts tend to avoid broadly sweeping language in their opinions. And rightly so, as appellate opinions are meant to bring clarity to a muddled issue or area of law, not to gloss over the finer points with well-worn platitudes. But, when used sparingly and under the right circumstances, broad strokes can be quite effective. By the time a case gets to the Court of Appeal, the parties have spent so much time arguing over minutiae that they may no longer see the forest through the trees. An effective opening can not only be entertaining, but also bring some much-needed perspective.

In appreciation of the justices' efforts, we've collected a top-ten list of the more notable opinion openings from the past year that were particularly effective and entertaining:

  • This case goes to show that sometimes life can be like an essay question on a law school exam. Here, a California resident owned an apartment building in Arkansas that was insured by a Michigan insurance company under a policy the owner obtained through an insurance agent in Arkansas. That policy included commercial property coverage for the Arkansas apartment building and commercial general liability coverage for the owner's property ownership business, which he operated from California. Other than writing this policy, the insurer did no business in California.
    • Greenwell v. Auto-Owners Ins. Co., 233 Cal.App.4th 783 (Jan. 27, 2015, 3d Dist., J. Robie)
  • Mixing concrete, like baking a cake, is fraught with problems when the recipe is not followed. Here, concrete supplier, State Ready Mix, Inc. (State), wrote the concrete mix design (the recipe) and prepared a bad batch of concrete that was used to construct a harbor pier.
    • State Ready Mix, Inc. v. Moffat & Nichol, 232 Cal.App.4th 1227 (Jan. 8, 2015, 2d Dist., Div. 6, J. Yegan)
  • You cross continents and spend years trying to collect a judgment for your client. Late one Friday afternoon, the debtor's lawyer walks into your office and hands you a cashier's check for almost $13 million, covering the entire judgment and all accumulated interest. Do you accept the check or say, "No thank you, I need to make a motion for attorney fees first?" Put another way, is a bird in the hand worth two in the bush?
    • Gray1 CPB, LLC v. SCC Acquisitions, Inc., 169 Cal.Rptr.3d 906 (Jan. 27, 2015 on remand, 4th Dist. Div. 3, J. Moore)
  • The language of the law is replete with synonyms for fairness: due process, equal protection, good faith, harmless error are all ways of expressing our commitment to fairness. The City Council of Newport Beach violated at least two basic principles of fairness in overturning a permit application approved by the city's planning commission. It should come as no surprise, then, that their action also violated California law.
    • Woody's Group, Inc. v. City of Newport Beach, 233 Cal.App.4th 1012 (Jan. 29, 2015, 4th Dist. Div. 3, J. Bedsworth)
  • This appeal underscores the maxim that gamesmanship is not to be rewarded. The opening brief presents the story of a simple, straightforward claim of error. According to Rick F. Hall, he filed a complaint in the north county division of San Diego Superior Court seeking specific performance of an arbitration agreement with Warren Properties, Inc. Warren Properties demurred and moved to strike the complaint for failure to include indispensable parties, La Jolla Bancorp Inc. and La Jolla Bank, FSB. In his opposition to the demurrer and motion, Hall requested leave to file an amended complaint that would include both Bancorp and the Bank as additional parties. Hall, without explanation, insists, "[t]he trial court rejected [his] request. Hall's appeal, therefore, respectfully requests leave to file an amended complaint that will name La Jolla Bancorp and La Jolla Bank as additional parties." Could the instant matter really be this simple? No.
    • Hall v. Warren Properties, Inc., No. D065546, 2015 WL 865350 (Feb. 27, 2015, 4th Dist. Div. 1, J. Huffman)
  • This appeal demonstrates—if demonstration is needed—the perils of do-it yourself legal work. While aversion to lawyers may be widespread, and to some extent understandable, they do have their uses. In this case, they could perhaps have saved the parties a great deal of time and money and the court from having to conduct a 16-day bench trial.
    • Kokas v. Wheeler, No. G049891, 2015 WL 877421 (Feb. 27, 2015, 4th Dist. Div. 3, J. Bedsworth)
  • It is not unusual for one legal action to generate additional litigation. This case illustrates the point in the extreme. Plaintiff and appellant Steven J. Horn, an attorney, represented former clients in an action. Horn's representation of his former clients spawned seven additional legal proceedings in the form of civil actions, appeals, and arbitration. None ended well for Horn. His losing streak continues, as we affirm the judgment after a jury verdict in favor of defendant and respondent Michael J. Rand in Horn's latest attorney malpractice action.
    • Horn v. Rand, No. B252044, 2015 WL 1044167 (Ma. 9, 2015, 2d Dist., Div. 5, J. Kriegler)
  • The practice of law can be abundantly rewarding, but also stressful. The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.
    • Crawford v. JP Morgan Chase Bank, N.A., No. B257412, (Dec. 9, 2015, 2d Dist. Div. 6, J. Gilbert)
  • When an attorney sued his client for fees while still representing him, the Supreme Court of Nevada called the conduct "egregious." (Clark v. State (1992) 108 Nev. 324, 325.) And that was a case where the fees might have been incurred in an unrelated matter. How much more egregious is it when the suit is for accumulated fees in the very case in which the attorney is still representing the client? That is this case. But here's the twist: The client has expressly, and in writing, consented to the continued representation by an attorney in the law firm that sued him. The client is also willing to testify he got independent counsel before making the waiver. Does that mean the trial judge's order disqualifying the attorney was an abuse of discretion?
    • Abedi v. Sheikhpour, No. G050361 (Dec. 16, 2015, 4th Dist. Div. 3, J. Bedsworth)

Finally, a fourth entry from the inimitable Justice Bedsworth:

  • This case has the makings of a classic film noir story, though thankfully, despite animosity so thick between two of the parties the trial judge made a specific finding on it, no one has been murdered.
    • Marks v. Lasalle, No. G050004, 2015 WL 5066883 (Aug. 27, 2015, 4th Dist. Div. 3, J. Bedsworth)


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