Practice/Industry Group Overview
We Bring Fresh Perspective and Rigorous Analysis
Carroll, Burdick & McDonough's Appellate Practice uses its specialized experience, skills, and strategic thinking to help clients achieve success at both the trial and appellate levels. Every matter begins with a realistic assessment of our client’s position, immediate and long-term interests and the path most likely to achieve those goals. We consult on trial and appellate strategies, significant dispositive motions, record preservation issues, and a host of other tasks essential to litigation success. We partner with our clients to help them:
- Derive maximum value from efforts predating our involvement
- Create leverage for resolution
- Produce the most powerful work product possible
- Try cases successfully, with a view toward preserving the win
As the California Court of Appeal has observed, "appellate practice entails rigorous original work in its own right." When retained for an appeal or writ proceeding, our attorneys bring a fresh perspective to the trial record. Because the appellate forum differs fundamentally from the trial court, we build strategy on a deep appreciation of the review process.
This approach has given us years of successful experience in appellate courts throughout the nation.
Our Strategic and Procedural Expertise Spans a Wide Variety of Practice Areas
CBM's Appellate Practice has achieved outstanding results on appeal and has secured many take-nothing judgments at the trial level, often on dispositive motion. Our appellate lawyers represent a diverse array of domestic and international clients in matters involving many different areas, including the following:
- Class Actions & Complex Litigation
- Commercial Litigation
- Constitutional Law
- Consumer Litigation Defense
- Insurance Law
- International Law and Cross-Border Proceedings
- Intellectual Property
- Jurisdictional Issues
- Labor and Employment
- National Litigation Coordination and Strategy
- Products Liability
- Real Property
Appellate Group Successes
Most Recent Wins
- In City of Los Angeles v. Superior Court (Engineers & Architects Association) (2013) 56 Cal.4th 1086, persuaded the California Supreme Court to affirm the right to contractual arbitration for local public employees throughout the state, rejecting the argument that arbitration was an unlawful delegation of government authority.
- In O'Neil v. Crane Co. and Warren Pumps, (2012) 53 Cal.4th 335, 266 P.3d 987, won a ruling foreclosing strict liability and negligence liability (in most circumstances) for a manufacturer that did not make or sell an injury-causing product foreseeably used with its own.
- Persuaded the Sixth Circuit to affirm, on grounds different from those relied on by the district court, a judgment rejecting claims for over $24 million in operations coverage from an insurer client. (2011)
- As an intervener-plaintiff, helped persuade the U.S. Supreme Court to affirm "prisoner population cap" orders in decades-long prison-overcrowding case, highlighting impact on correctional officers.
- In California Correctional Peace Officers Association v. Virga (2010) 181 Cal.App.4th 30, established that a federal Civil Rights Act claim against state employees is not a “civil proceeding under the California Tort Claims Act,” and therefore not subject to fee-shifting under Code of Civil Procedure section 1038.
- Overturned fraud judgment from an eight-day jury trial that had clouded title and prevented development of prime San Francisco real property.
- Persuaded U.S. Ninth Circuit Court of Appeals to reverse terminating sanctions and $1 million judgment against individual foreign client in breach of contract case.
- Protected a major German client from ever needing to answer a complaint in a case that sought hundreds of millions of dollars, by winning affirmance of our trial-court victory on personal jurisdiction grounds.
- Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, created important new law (1) holding that "factually devoid" discovery responses do not constitute sufficient evidence to defeat summary judgment, and (2) reaffirming that trial courts should reject expert testimony that lacks a "sufficiently explained and reasoned analysis."
- On behalf of four automobile companies, established the precedent that California's "borrowing" statute requires application of the limitations period of the state in which an action arises, thus limiting forum shopping by tort plaintiffs. Cossman (2003) 108 Cal.App.4th 320.
- Obtained trial-court dismissals on the pleadings in multiple coordinated class actions and other proceedings by arguing that fraud-based claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq.
- In response to an order granting summary adjudication against an insurer client -- and purporting to require immediate payment of $9.5 million -- secured an extraordinary writ entirely vacating the order. (2009)
- Won a published decision rejecting a contention by London-based insurers that arbitration clauses in their policy contracts with the insured require other insurers asserting contribution rights to arbitrate in the U.K. Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061.
- On behalf of a major insurer, persuaded the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia to adopt two declaratory rulings very favorable to the insurance industry in the context of coverage for asbestos-related injuries. In re Wallace & Gale, 385 F.3d 820 (4th Cir. 2004).
- Persuaded California's Second District to reject its precedent on point and hold that an excess insurer cannot sue a primary insurer in subrogation for bad-faith refusal to settle an underlying tort claim, where that claim was not tried and the insured suffered no excess judgment. RLI Ins. Co. v. CNA Casualty of Calif. (2006) 141 Cal.App.4th 75.
- Successfully defended countless trial-level victories in the California Courts of Appeal and the U.S. Court of Appeals for the Ninth Circuit, including a product-liability jury verdict in favor of a forklift manufacturer; summary judgment in premises liability, business tort, and insurance coverage actions; and dismissals on demurrers or 12(b)(6) motions in numerous matters, on grounds ranging from absence of duty to the good-faith settlement bar.
- Obtained reversal in the U.S. Ninth Circuit Court of Appeals of a $21 million judgment against an Israeli cable television company in a case involving alleged breach of a license agreement with a major U.S. distributor of television programming. Warner Bros. Int'l Television Dist. v. Golden Channels & Co., 522 F.3d 1060 (9th Cir. 2008).
- Won affirmance of a demurrer dismissal for a financial-services client, securing precedential rulings that (1) no duty of disclosure arises in a purely commercial transaction because there is no fiduciary or "trust" relationship; and (2) it is not "unfair competition" to fail to disclose profit margins or similar business information. McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382.
- In cases of first impression before the California Supreme Court, won rulings that corporations prevailing in contract litigation using in-house counsel can recover attorneys' fees at reasonable market rates, and that state safety employees who work overtime must be paid their full wages regardless of a budget impasse. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, and White v. Davis (2003) 30 Cal.4th 528.
- Persuaded the U.S. Eleventh Circuit Court of Appeals in Atlanta, Georgia to reverse Rule 11 sanctions against Florida counsel in a products liability case. Kaplan, 331 F.3d 1251 (11th Cir. 2003).
- On a petition for extraordinary writ before the California Second District Court of Appeal, secured a rare order rejecting the trial court's finding that disputed questions of material fact existed, reversing summary judgment and directing entry of judgment in favor of our client.
- Developed arguments to limit equitable monetary relief under California's Unfair Competition Law that were ultimately adopted by the California Supreme Court in Korea Supply Co. v. Lockheed-Martin Corp. (2003) 29 Cal.4th 1134.
- Won a reversal before the California First District Court of Appeal of a summary judgment and demurrer dismissal against our client, reviving claims under the Uniform Commercial Code and for breach of a letter agreement.
- In another reversal won before the First District Court of Appeal, secured a ruling that a former contract partner could not assign its rights against our client.
- Won affirmance by the Georgia Court of Appeals of a criminal and civil contempt order entered against an opposing expert, who had disclosed our client's documents in violation of a protective order. In re Friedman, 257 Ga. 688 (Ct. App. 2002).
- Obtained stays of competing class actions and other cases under the All Writs Act, Colorado River abstention, and related doctrines.
- Persuaded trial court that plaintiffs' attempt to have the court hear equitable claims before trying other claims to a jury, as some California authorities arguably permit, would undermine client's constitutional right to jury trial; and secured denial of plaintiffs' writ petition after briefing on the merits.
- With hundreds of millions of dollars at stake, secured a take-nothing decision at binding arbitration in favor of a major commercial client.
- Established precedent that an employee cannot waive his employer's statute of limitations defense to a third-party tort claim, even where the sole theory against the employer is respondeat superior. Boyer v. Jensen (2005) 129 Cal.App.4th 62.
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Latest on Appealable Judgments
Laurie Hepler, October 07, 2013
ASIC is early this month, to bring you the latest word from the California Supreme Court on what counts as an appealable judgment: Kurwa v. Kislinger.