Greines, Martin, Stein & Richland

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Greines, Martin, Stein & Richland

A leading civil appellate law firm, visit https://www.gmsr.com/about/ for more info.

Greines, Martin, Stein & Richland LLP (GMSR) has been one of the leading civil appellate firms in the country for nearly 40 years. Founded in 1983 in Los Angeles by Irving Greines, the late Alan Martin, Martin Stein and Kent Richland as an appellate boutique, all of whom are intimately familiar with the appellate process and are outstanding writers and thinkers. GMSR has handled cases in the Unite

d States Supreme Court, the Ninth Circuit (and many other circuits), the California Supreme Court, every California Court of Appeal district, Federal Court, and the highest courts of six other states. GMSR has been counsel of record in over 500 published decisions and in hundreds more unpublished decisions, and has represented amici curiae in many additional matters. Although GMSR’s practice is concentrated in the appellate courts, it serves its clients in the trial arena as well. Planning for an appeal often begins as early as drafting the complaint or answer, and sometimes even before that. Clients frequently engage the firm to assist trial counsel in specific areas, including the initial formulation of a case, briefing and arguing dispositive motions, developing legal theories and trial strategy, preparing trial briefs and jury instructions, and briefing and arguing post-trial motions in anticipation of an appeal. The firm’s practice is not limited to any particular substantive areas of the law. It represents clients—both plaintiffs and defendants—in diverse fields including constitutional law, civil rights, governmental torts and immunities, personal injury torts, insurance coverage and bad faith, complex business disputes, business torts, copyright, unfair competition, antitrust, RICO, securities, entertainment, environmental law, employment discrimination and wrongful termination, family law, bankruptcy and probate.

10/10/2023

𝗣𝗿𝗲𝘃𝗲𝗻𝘁𝗶𝗻𝗴 𝗶𝗺𝗺𝗲𝗱𝗶𝗮𝘁𝗲 𝗷𝘂𝗱𝗴𝗺𝗲𝗻𝘁 𝗲𝗻𝗳𝗼𝗿𝗰𝗲𝗺𝗲𝗻𝘁

California judgments are enforceable upon entry. True, posting a bond can stay enforcement of money judgments during an appeal. But what about during the post-judgment motion phase, before an appeal is filed? And what about clients who need time to get a bond in place? Here are two options:

✅ Consider inquiring whether the other side will stipulate not to enforce the judgment during this relatively short period.

✅ Alternatively, California trial courts have discretion to stay judgment enforcement for up to 10 days after the last day to file a notice of appeal. A judgment debtor can ask the judge to issue such a stay, before or after entry of judgment—and such requests are often granted.

► The practical message. Getting hit with a large verdict can be destabilizing. To buy time for your client to explore bonding options and to let the post-judgment motion process play out, add a temporary stay of enforcement request to your short list of post-verdict tasks.

https://www.gmsr.com/preventing-immediate-judgment-enforcement/

10/06/2023

𝗖𝗼𝘂𝗿𝘁 𝗼𝗳 𝗔𝗽𝗽𝗲𝗮𝗹 𝗿𝗲𝘃𝗲𝗿𝘀𝗲𝘀 𝗼𝗿𝗱𝗲𝗿 𝗱𝗲𝗻𝘆𝗶𝗻𝗴 𝘀𝗲𝘁𝘁𝗹𝗲𝗺𝗲𝗻𝘁 𝗲𝗻𝗳𝗼𝗿𝗰𝗲𝗺𝗲𝗻𝘁 𝗮𝗻𝗱 𝗶𝗻𝘁𝗲𝗿𝗽𝗿𝗲𝘁𝘀 𝘀𝗲𝘁𝘁𝗹𝗲𝗺𝗲𝗻𝘁 𝘂𝗻𝗱𝗲𝗿 𝗖𝗖𝗣 𝟵𝟵𝟴 𝗶𝗻 𝗳𝗮𝘃𝗼𝗿 𝗼𝗳 𝗚𝗠𝗦𝗥’𝘀 𝗰𝗹𝗶𝗲𝗻𝘁𝘀

GMSR's clients leased a vehicle that proved to be a lemon and sued the manufacturer under California's lemon law, the Song-Beverly Act. The manufacturer sent the clients a Code of Civil Procedure section 998 settlement offer, and they accepted. Under the settlement agreement, the manufacturer agreed to pay the clients $69,500, some of which would be used to cover the "lease payoff owed by Plaintiffs."

Nevertheless, the manufacturer paid GMSR's clients just half of the $69,500, arguing that the "lease payoff"—which was to be covered by the settlement proceeds—included the manufacturer’s cost to purchase and transfer the vehicle’s title from the lessor. GMSR's clients moved to enforce the settlement under Code of Civil Procedure section 664.6, but the trial court denied the motion, relying on a declaration from the lessor indicating that the phrase "lease payoff" included any cost incurred to purchase the vehicle.

Agreeing with GMSR's arguments, the Court of Appeal reversed. The Court held that the lessor's declaration was irrelevant because the meaning of the phrase "lease payoff owed by Plaintiffs" was a legal question to be determined by the court, not to be resolved by testimony from a third party who did not draft the settlement agreement. The Court further held that, under the settlement’s terms, the phrase "lease payoff 𝘰𝘸𝘦𝘥 𝘣𝘺 𝘗𝘭𝘢𝘪𝘯𝘵𝘪𝘧𝘧𝘴" necessarily referred only to "the amounts [Plaintiffs] actually owe the [lessor] under the known circumstances," which did not include the manufacturer's costs incurred in purchasing the leased vehicle. The Court remanded and instructed the trial court to re-determine the amount the manufacturer owed the plaintiffs.

https://www.gmsr.com/court-of-appeal-reverses-order-denying-settlement-enforcement-and-interprets-settlement-under-ccp-998-in-favor-of-gmsrs-clients/

09/22/2023

𝗚𝗠𝗦𝗥 𝗱𝗲𝗳𝗲𝗮𝘁𝘀 𝗲𝗻𝘁𝗲𝗿𝘁𝗮𝗶𝗻𝗺𝗲𝗻𝘁 𝗰𝗼𝗺𝗽𝗮𝗻𝘆’𝘀 𝗻𝗼𝘃𝗲𝗹 𝗮𝗽𝗽𝗲𝗮𝗹 𝗳𝗼𝗿 𝗽𝗮𝗻𝗱𝗲𝗺𝗶𝗰 𝗰𝗼𝘃𝗲𝗿𝗮𝗴𝗲

Endeavor Operating Co., a media and entertainment producer, sued its commercial property insurer for coverage of losses it experienced during the COVID-19 pandemic. Endeavor argued that governmental restrictions on its ability to use venues, and property damage supposedly caused at unnamed venues by the virus that causes COVID-19, satisfied its insurance policy's coverage requirement of "direct physical loss or damage" to property. The trial court sustained the insurer's demurrer and dismissed the suit.

GMSR represented the insurer in Endeavor's appeal to the California Court of Appeal. In addition to those same arguments, Endeavor contended that the policy's unusual use of the word "event" entitled Endeavor to certain coverages with no showing of physical loss or damage at all.

In a published decision, the Court of Appeal rejected all of Endeavor's arguments, and affirmed judgment for the insurer. The decision joined the majority of Court of Appeal decisions denying coverage on comparable allegations. It was the first in that line, however, to openly criticize two contrary decisions from another division (now on review in the California Supreme Court) for their core errors in applying California's demurrer standards to the COVID-19 context.

https://www.gmsr.com/gmsr-defeats-entertainment-companys-novel-appeal-for-pandemic-coverage/

09/15/2023

𝗚𝗠𝗦𝗥 𝗔𝘀𝘀𝗼𝗰𝗶𝗮𝘁𝗲 𝗔𝗻𝗱 𝗙𝗼𝗿𝗺𝗲𝗿 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗙𝗲𝗹𝗹𝗼𝘄 𝗧𝗶𝗻𝗮 𝗞𝘂𝗮𝗻𝗴 𝗢𝗻 𝗛𝗲𝗿 𝗥𝗮𝗿𝗲 𝗢𝗽𝗽𝗼𝗿𝘁𝘂𝗻𝗶𝘁𝘆 𝗧𝗼 𝗦𝘁𝗮𝗿𝘁 𝗛𝗲𝗿 𝗖𝗮𝗿𝗲𝗲𝗿 𝗔𝘀 𝗔𝗻 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗟𝗮𝘄𝘆𝗲𝗿

GMSR associate Tina Kuang was the firm’s first Appellate Fellow. Now working as an associate, Tina reflects back on her time at the firm working as a fellow:

https://www.gmsr.com/news/gmsr-associate-and-former-appellate-fellow/

09/12/2023

𝗣𝗶𝗰𝘁𝘂𝗿𝗲𝘀 𝗜𝗻 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗕𝗿𝗶𝗲𝗳𝘀

There are some points that only a photograph or other image can effectively convey, and others that a photo or image conveys far more powerfully than words can. While appellate briefs should not routinely contain pictures (and almost never more than one or two), counsel can use this tool to great advantage when the record supplies compelling material. These tips will help you do it well:

✅ Make certain that the image will end up crisp and clear in the final electronic filing.

✅ Keep the size under half a page, typically, and consider whether black and white or color would be more effective. (One appellate district used to reject briefs with color components, but those days have passed.)

✅ Provide a record citation immediately after the image. An image from outside the appellate record is rarely appropriate, but if reference to it is justifiable, cite the source.

✅ If your image shows words that you want the Court to read: count them manually, add that number to the total in your word-count certificate, and say you’re doing so.

► 𝗧𝗵𝗲 𝗽𝗿𝗮𝗰𝘁𝗶𝗰𝗮𝗹 𝗺𝗲𝘀𝘀𝗮𝗴𝗲. Judicious use of a photograph or image in your appellate brief can make a core point leap off the page.

https://www.gmsr.com/pictures-in-appellate-briefs/

08/21/2023

𝗚𝗠𝗦𝗥 𝘄𝗶𝗻𝘀 𝗿𝗲𝘃𝗲𝗿𝘀𝗮𝗹 𝗮𝗻𝗱 𝗿𝗲𝗺𝗮𝗻𝗱 𝗼𝗳 $𝟭.𝟳𝟱 𝗺𝗶𝗹𝗹𝗶𝗼𝗻 𝗷𝘂𝗱𝗴𝗺𝗲𝗻𝘁 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝘀𝗰𝗵𝗼𝗼𝗹 𝗱𝗶𝘀𝘁𝗿𝗶𝗰𝘁, 𝘄𝗶𝘁𝗵 𝗶𝗻𝘀𝘁𝗿𝘂𝗰𝘁𝗶𝗼𝗻𝘀 𝘁𝗼 𝗵𝗼𝗹𝗱 𝘁𝗿𝗶𝗮𝗹 𝗼𝗻 𝗮𝗽𝗽𝗼𝗿𝘁𝗶𝗼𝗻𝗺𝗲𝗻𝘁 𝗼𝗳 𝗳𝗮𝘂𝗹𝘁

A student sued GMSR’s school district client for injuries sustained in a mandatory physical education class, caused by a push tackle in a touch football game by another student with a history of bullying. Plaintiff claimed that the class teacher negligently supervised the students and that the district had breached mandatory reporting duties regarding bullying. A jury awarded plaintiff $1.75 million in economic and non-economic damages, finding the P.E. teacher was negligent and the district breached reporting duties. The jury found that the tackler acted intentionally, so it skipped any comparative fault allocation. The trial court had ruled that a Proposition 51 fault allocation for noneconomic damages is inappropriate where a negligent tortfeasor breaches a duty to prevent intentional misconduct.

On appeal, the Second Appellate District, Division Five, reversed. In an unpublished portion of the decision, the Court of Appeal held that the evidence did not support the breach of mandatory duty claim and that the matter should be remanded with directions for the trial court to enter judgment for the school district. In a published portion of the decision, the Court of Appeal held that the trial court did not err in refusing to instruct the jury on the primary assumption of risk doctrine but did err in instructing the jury not to conduct a comparative fault allocation. Embracing the reasoning of 𝘞𝘦𝘪𝘥𝘦𝘯𝘧𝘦𝘭𝘭𝘦𝘳 𝘷. 𝘚𝘵𝘢𝘳 & 𝘎𝘢𝘳𝘵𝘦𝘳 (1991) 1 Cal.App.4th 1, the Court of Appeal held that a Proposition 51 comparative fault allocation is required even where the negligent tortfeasor failed to prevent a co-tortfeasor’s intentional misconduct.

https://www.gmsr.com/reverse-and-remand-to-hold-trial-on-apportionment-of-fault/

08/17/2023

"𝗕𝗲𝘀𝘁 𝗟𝗮𝘄𝘆𝗲𝗿𝘀®" 𝗥𝗲𝗰𝗼𝗴𝗻𝗶𝘇𝗲𝘀 𝗚𝗠𝗦𝗥 𝗟𝗮𝘄𝘆𝗲𝗿𝘀 𝗙𝗼𝗿 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗣𝗿𝗮𝗰𝘁𝗶𝗰𝗲

Greines, Martin, Stein & Richland LLP is proud to have 8 lawyers listed in the 2024 edition of the peer-reviewed 𝘛𝘩𝘦 𝘉𝘦𝘴𝘵 𝘓𝘢𝘸𝘺𝘦𝘳𝘴 𝘪𝘯 𝘈𝘮𝘦𝘳𝘪𝘤𝘢® for Appellate Practice, and 5 lawyers listed as 𝘉𝘦𝘴𝘵 𝘓𝘢𝘸𝘺𝘦𝘳𝘴: 𝘖𝘯𝘦𝘴 𝘵𝘰 𝘞𝘢𝘵𝘤𝘩®. Best Lawyers® also named GMSR’s Robin Meadow as 2024 "Lawyer of the Year" for Appellate Practice in Los Angeles.

Along with Robin, Tim Coates, Laurie Hepler, Robert Olson, Kent Richland, Alana Rotter, Cindy Tobisman, and Ted Xanders were all recognized this year. In addition, GMSR lawyers were recognized for their notable experience in Insurance Law (Robert Olson), Trusts and Estates (Robin Meadow and Alana Rotter), Civil Rights Law (Kent Richland), and Bet-the-Company Litigation (Robin Meadow and Kent Richland).

Best Lawyers also recognized Joseph Bui, Stefan Love, Rachel Beyda, Laura Lim, and Marco A. Pulido as “Ones to Watch” for Appellate Practice.

Best Lawyers’® peer-review methodology "is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical region and legal practice area."

https://www.gmsr.com/news/best-lawyers-recognizes-gmsr-lawyers-for-appellate-practice/

08/14/2023

𝗙𝗿𝗲𝗲 𝗪𝗲𝗯𝗶𝗻𝗮𝗿 – 𝗧𝗛𝗘 𝗔𝗣𝗣𝗘𝗔𝗟 𝗞𝗜𝗟𝗟𝗘𝗥𝗦: 𝗔𝘃𝗼𝗶𝗱𝗶𝗻𝗴 𝘁𝗵𝗲 𝗧𝗿𝗮𝗽𝘀 𝗧𝗵𝗮𝘁 𝗖𝗮𝗻 𝗗𝗼𝗼𝗺 𝗬𝗼𝘂𝗿 𝗔𝗽𝗽𝗲𝗮𝗹 𝗕𝗲𝗳𝗼𝗿𝗲 𝗜𝘁 𝗕𝗲𝗴𝗶𝗻𝘀

This live, free CLE webinar, presented by GMSR Appellate Lawyers Jeff Gurrola and Laura Lim, will provide trial lawyers with key tips on posturing a case for success on appeal, including best practices for preserving the record, navigating evidence admissibility issues, and drafting jury instructions and verdict forms with an eye toward any future appeal.

🚩To register for the FREE September 7 webinar, click here: https://us02web.zoom.us/webinar/register/WN_q4rQ5SmbTXO965fYspYv-A

https://www.gmsr.com/news/appeal-killers-webinar-2023/

08/09/2023

𝗛𝗼𝘄 𝗧𝗼 𝗨𝘀𝗲 𝗬𝗼𝘂𝗿 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗟𝗮𝘄𝘆𝗲𝗿 𝗗𝘂𝗿𝗶𝗻𝗴 𝗧𝗿𝗶𝗮𝗹

During a complex trial, there often aren’t enough hours in the day for litigators to accomplish every task. To help alleviate your burden, consider including a lawyer with appellate expertise (sometimes called "legal issues counsel") on your team. Whether you win or lose at trial, they can help you properly preserve all arguments and objections to help you create a complete record for any later appeal. Here are some specific tasks suitable for an appellate-focused team member to handle during trial:

📌Preparing or opposing motions in limine and nonsuit or directed verdict motions;

📌Drafting and opposing jury instructions and special verdict forms;

📌Drafting offers of proof, trial briefs or "pocket" briefs on specific issues – helping to guide trial judges and preserve the record more effectively than oral objections alone; and

📌Reviewing daily transcripts to ensure preservation of critical issues for appeal.

► 𝗧𝗵𝗲 𝗽𝗿𝗮𝗰𝘁𝗶𝗰𝗮𝗹 𝗺𝗲𝘀𝘀𝗮𝗴𝗲. When the stakes call for it, integrating a lawyer with appellate expertise into a trial team lets trial counsel focus on what they do best, while ensuring the client is fully protected for the next round.

https://www.gmsr.com/how-to-use-your-appellate-lawyer-during-trial/

07/27/2023

𝗠𝗔𝗫𝗜𝗠-𝗶𝘇𝗶𝗻𝗴 𝗥𝗲𝘀𝘂𝗹𝘁𝘀: 𝗛𝗼𝘄 𝘁𝗼 𝗨𝘀𝗲 𝗠𝗮𝘅𝗶𝗺𝘀 𝗼𝗳 𝗝𝘂𝗿𝗶𝘀𝗽𝗿𝘂𝗱𝗲𝗻𝗰𝗲 𝘁𝗼 𝗣𝗲𝗿𝘀𝘂𝗮𝗱𝗲

A new ABTL Report article by GMSR’s Gary Wax provides tips for advocates on how to use the “Maxims of Jurisprudence” to persuade courts.

Gary’s article explains how Maxims of Jurisprudence can be wielded effectively to bolster legal arguments about what the “fair” result should be for your client. He advises advocates not to shy away from invoking the maxims, as well as everyday proverbs, adages, and aphorisms—but suggests paraphrasing any Latin terms into English, to most effectively persuade the reader.

https://www.gmsr.com/publication/how-to-use-maxims-of-jurisprudence-to-persuade/

07/14/2023

Judging the Judge: Judicial Disqualification

In most appeals, the best practice is to deemphasize direct criticism of the trial court judge. That is more difficult—and perhaps the opposite of what you should do—when arguing that the judge should be disqualified for cause. How should you approach disqualification issues?

✔️Have an eye on appellate review at the brainstorming stage. Time is against you. Delay in seeking disqualification is itself a reason to deny disqualification. And an adverse decision can only be reviewed by writ petition filed within 10 days.

✔️Build a solid record from the start. Assume that your verified statement of disqualification will be your only opportunity to present evidence and argument. The trial court has discretion on whether to allow additional filings, evidence, and a hearing.

✔️Judges are naturally disinclined to say that another judge is “biased.” Aim for lower hanging fruit: A judge must be disqualified even if a person “might reasonably entertain a doubt” about the judge’s impartiality—which is far more palatable to a reviewing court than finding the judge is actually biased.

► The practical message: If you come at the king, you best not miss. Act quickly to preserve your disqualification argument, be meticulous and intentional in your papers, and cover your appellate bases from the start.

https://www.gmsr.com/judging-the-judge-judicial-disqualification/

07/10/2023

𝗚𝗠𝗦𝗥 𝘄𝗶𝗻𝘀 𝗮𝗳𝗳𝗶𝗿𝗺𝗮𝗻𝗰𝗲 𝗼𝗳 𝗮𝗻𝘁𝗶-𝗦𝗟𝗔𝗣𝗣 𝗼𝗿𝗱𝗲𝗿, 𝘀𝘁𝗿𝗶𝗸𝗶𝗻𝗴 𝗺𝗮𝗹𝗶𝗰𝗶𝗼𝘂𝘀 𝗽𝗿𝗼𝘀𝗲𝗰𝘂𝘁𝗶𝗼𝗻 𝗰𝗹𝗮𝗶𝗺 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝗶𝗻𝗱𝗶𝘃𝗶𝗱𝘂𝗮𝗹 𝘄𝗵𝗼 𝗮𝘀𝘀𝗶𝘀𝘁𝗲𝗱 𝗽𝗼𝗹𝗶𝗰𝗲 𝗼𝗳𝗳𝗶𝗰𝗲𝗿𝘀

Rental property managers in San Luis Obispo received anonymous letters threatening to shoot them and their tenants if they rented properties to minorities. The police identified a chief suspect, Richard Orcutt, and contacted one of Orcutt’s prior co-workers, city fire official John MacDonald. MacDonald stated that in his opinion, the handwriting in the letters matched Orcutt’s handwriting, but asked not to be involved in further investigation or prosecution. After Orcutt’s arrest, MacDonald testified at a preliminary hearing under subpoena. Eventually, the District Attorney’s office dismissed the charges against Orcutt because an FBI analysis could not confirm the writing was Orcutt’s. Orcutt then sued MacDonald for malicious prosecution. The trial court granted MacDonald’s anti-SLAPP motion and dismissed the case.

Representing MacDonald on appeal, GMSR argued that the anti-SLAPP order should be affirmed on multiple, independent grounds. Although any of those arguments would have been sufficient to affirm, the Court of Appeal agreed with GMSR on each alternative argument: There was no evidence that MacDonald sought out the police. There was no evidence that he had falsely reported facts (as opposed to giving his lay opinion). Orcutt had not presented sufficient evidence that MacDonald lacked probable cause. And there was no evidence of malice or improper purpose.

https://www.gmsr.com/gmsr-wins-affirmance-of-anti-slapp-order/

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