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RESULTS

Notable Wins

The case studies below illustrate some of my most important appellate victories. Read more to learn about the case, my strategy for winning, and the appellate court’s ruling.

More than a theory, my principled approach works
in practice.

Shoker v. Superior Court (Phangureh) Bedrock Legal Principle

When statutory text is clear, its plain meaning controls.

Background

The Shokers’ complaint alleges the following:

The Shokers owned various rental properties. After years of grooming the Shokers, Ghuman presented the Shokers with a chance to invest in a technology company. He persuaded them to give him an initial payment of $1.5 million in cash to invest, and then to invest even more by selling ten of their rental properties. Ghuman arranged for the sales of the real estate to a cash buyer that Ghuman had identified—Phangureh.

But the technology-investment was a ruse. Unbeknownst to the Shokers, Ghuman and Phangureh used the Shokers’ own money for Phangureh to acquire ownership of all ten of the Shokers’ properties while the Shokers were left with nothing of value.

The Shokers sued the conspirators based on various tort theories. They sought damages as well as the return of their real properties via a constructive trust. Eventually the Shokers recorded notices of lis pendens on the ten properties. A notice of lis pendens provides a prospective buyer or lender with constructive notice that the property is subject to pending litigation. Phangureh moved to expunge the notices, and the trial court granted the motion based on the conclusion that the Shokers had not alleged a “real property claim” as defined by Code of Civil Procedure section 405.4. The Shokers contested that ruling via a petition for writ of mandate under Code of Civil Procedure section 405.39.

Appeal Strategy

Courts of Appeal have disagreed about when a request for constructive trust constitutes a “real property claim” for lis pendens purposes. Although the statutory definition covers any cause of action that could “affect title” to real property, a line of cases had interpreted “real property claim” more narrowly for fear that plaintiffs can abuse lis pendens to gain settlement leverage. By relying on a Supreme Court opinion (Kirkeby) that had applied the statutory definition in a different context, I argued that the plain meaning of the definition controls.

My winning brief explained the bedrock principle underlying the appeal this way:

As Phangureh concedes, Kirkeby applies the definition of “real property claim” according to its plain meaning. Thus, a cause of action that could “affect … title … to specific real property” under that definition (§ 405.4) refers to a cause of action that could “’cause a change in'” that property’s title (Merriam-Webster’s Dict.). Phangureh also concedes that constructive trust, when directed at specific real property, does cause a change in that property’s title by compelling its transfer.

Result

In a published decision, the court agreed that the plain meaning of “real property claim” covers the Shokers’ constructive-trust request and thus the trial court erred in granting the motion to expunge. The opinion ensures that the properties will be available for the Shokers should they win at trial.

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Berger v. Varum Bedrock Legal Principle

A tort victim should be made whole.

Background

Berger, a property owner, hired Varum, an engineer, to design a two-unit residence. Varum’s design was substandard, resulting in damage to a neighboring residence and the city’s stopping construction work.

Berger sued Varum and obtained a $2.7 million judgment. To avoid paying the judgment, Varum transferred his assets to others. This deprived Berger of the money he needed to run his real-estate business and led to mounting losses.

Berger filed a fraudulent-transfer action against Varum and his associates, seeking the judgment amount from the first lawsuit, consequential damages, and punitive damages. Ultimately, Varum paid the judgment amount and demurred. The trial court sustained the demurrer, reasoning that consequential and punitive damages are not available in a fraudulent-transfer action. Berger appealed.

Appeal Strategy

The appeal presented a problem: no published case had held that a judgment creditor can recover damages beyond the prior judgment amount. In most fraudulent-transfer cases, the judgment creditor merely seeks a statutory remedy of voiding the transfer so the creditor can satisfy the judgment.

In this case, Varum’s fraudulent transfer damaged Berger beyond the judgment amount because it left Berger unable to pay critical business expenses, which delayed key business events and increased his costs. The typical remedy for fraudulent transfer was insufficient to address these harms.

Justices, however, are hesitant to create new remedies. I overcame that hesitance by leveraging a bedrock legal principle: A tort victim should be made whole.

Here is how I articulated the bedrock principle in the winning brief:

The statutory remedies for fraudulent transfer are cumulative to common law remedies. And at common law, a fraudulent transfer is a tort. That means the basic principles of tort damages should apply: the tort victim should be made whole, and an egregious tortfeasor should be exposed to punitive-damage liability. After all, why should a fraudulent-transfer tortfeasor be treated any better than all other tortfeasors?

Result

In a published decision, the Court of Appeal agreed with my brief, reversed the judgment dismissing Berger’s complaint, and allowed him to seek consequential and punitive damages in the trial court.

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Taylor v. Almanza Bedrock Legal Principle

The right to testify is critical to prove credibility.

Background

Almanza and Taylor were neighbors in the same apartment building. When their relationship soured, they had a series of altercations. Then each of them filed a petition for a civil-harassment-restraining order against the other.

During the evidentiary phase of the hearing about both orders, Almanza’s trial attorney stated she had no further evidence to present. But then during the summation phase, she asked if Almanza could testify. The judge, though, ruled that it was too late because the judge had a lot of hearings to get through.

The judge then ruled that Taylor was more credible than Almanza. Thus, the judge granted Taylor’s requested order against Almanza but denied Almanza’s requested order against Taylor.

Appeal Strategy

A frequent concern on appeal is waiver. In this case, by stating she had no further evidence to present, Almanza’s trial attorney might have waived her client’s right to testify.

To counter this possible waiver, my opening brief asked the court to construe Almanza’s belated request to testify as an oral motion to reopen for further evidence. I then focused on the fundamental right to testify at a civil-harassment-restraining-order hearing. Allowing testimony is an essential part of due process so that each party can try to persuade the judge that they’re telling the truth.

My winning brief explained the credibility-enhancing aspect of testimony this way:

Generally, a party can prove credibility better with oral testimony than with written evidence. … And a judge’s credibility assessment is particularly critical in civil-harassment-restraining-order hearings, which often turn on differing accounts of heated incidents. The cases here are no exception, as the trial court repeatedly stated that they came down to credibility because “it’s a he said/she said.”

Result

The Court of Appeal ruled that the trial court had abused its discretion in refusing to let Almanza testify, and that her testimony might well have changed the result. The Court of Appeal then reversed, erasing the restraining order against my client Almanza and reviving her restraining-order request against Taylor.

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Additional Wins

Published victories

Zolly v. City of Oakland (Cal. Supreme Court)

Achieved reversal for apartment-building owners about whether they state a claim that the city is disguising an illegal tax as a franchise fee collected from waste-collection companies.

J.H. v. G.H. (1st Dist., Div. 3)

Secured affirmance regarding duration and scope of domestic-violence-restraining order.

Hiona v. 2154 Taylor LLC (1st Dist., Div. 5)

Secured affirmance for a landlord client about whether the trial court correctly denied a motion to reclassify unlawful-detainer cases as limited jurisdiction when the landlord had conditionally waived damages for purposes of summary judgment.

People v. Hamernik (4th Dist., Div. 2)

Achieved reversal of criminal defendant’s conviction for attempted possession of a controlled substance and barred retrial.

Unpublished Victories(partial list)

Boykin v. He (1st Dist., Div. 2)

Achieved a modified judgment for my real-estate-agent client, reducing her liability from $930,000 to $17,500.

Hill v. Superior Court of San Francisco City and County (1st Dist., Div. 2)

Secured a peremptory writ of mandate for a landlord client, reversing the appellate division’s ruling that the Ellis Act eviction was invalid.

Golden State Ventures, LLC v. Oakland Rent Board (1st Dist, Div. 1)

Obtained writ of administrative mandamus for landlord client, which reversed the rent board’s interpretation of the Costa-Hawkins Act, and then achieved an affirmance in the Court of Appeal

Pyramid Design (Series A) LLC v. Lowe (1st Dist., Div. 2)

Secured a full affirmance in two appeals and obtained appellate attorney fees for—what the Court of Appeal called—”lengthy (and able) briefs on the appeals.”

People v. Quirino (4th Dist., Div. 3)

Succeeded in eliminating criminal defendant’s two gang enhancements, prison-prior enhancement, and fee.

In re S.B. (4th Dist., Div. 2)

Obtained a limited remand for a juvenile client because the court had not considered him for deferred entry of judgment.