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Appellate Law

Gibbs Giden has an appellate practice that focuses on cases before the Ninth Circuit federal court of appeals and the California state appellate courts, including the state supreme court. Our appellate practice spans our practice areas, including construction contracts and licensing, insurance, employment, labor, and tax matters.

Our talented and successful appellate attorneys are Gerald A. Griffin, Sara H. Kornblatt, Christopher E. Ng, Gary S. Scalabrini, Anya Stanley, and Richard J. Wittbrodt. The firm’s representative appellate matters are as follows:


Published Opinions:

Lydig Construction, Inc. v. Martinez Steel Corporation
 234 Cal.App.4th 937, 184 Cal. Rptr. 3d 329 (2015)  Attorneys: Richard Wittbrodt, Sara Kornblatt

In a case of first impression in California, the Court of Appeal held that, as a matter of law, a defendant opposing a writ of attachment is required to establish the probable validity of its cross-claim in order to obtain the offset permitted by Code of Civil Procedure section 483.015.

Oak Springs Villas Homeowners Association v. Advanced Truss Systems, Inc. (2012) 206 Cal.App. 4th 1304. Attorney: Jason Adams

In a construction defect action for framing deficiencies in roof trusses, the association settled with the developer and other defendants but not the truss supplier who was a cross-defendant. The settling defendants obtained an order from the trial court that the settlement was entered into in “good faith” barring any further claims against them. The truss supplier appealed the “good faith” order. The Court of Appeal dismissed the appeal as premature because no final judgment had yet been entered against the truss supplier. The only way the merits of a “good faith” settlement can be challenged prior to entry of final judgment is by a writ pursuant to Code of Civ. Proc. § 877.6. The truss supplier chose the wrong procedure for challenging the “good faith” order.

Oxbow Carbon & Minerals, LLC v. Department of Industrial Relations, 194 Cal.App.4th 538 (2011) Attorney: Barbara Gadbois, Gary Scalabrini

Oxbow Carbon & Minerals, LLC, appealed from a judgment denying its petition for writ of mandate. The petition for writ of mandate followed an adverse administrative ruling by respondents State of California, Department of Industrial Relations (Department or DIR), and its director, John C. Duncan (Director). The Director found that work performed under two separate contracts constituted “public works” pursuant to Labor Code section 1720 because the work was paid for in part out of public funds, and it was therefore subject to California’s prevailing wage law. The trial court agreed, and the appellate court affirmed.

MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Company Inc., et al., (2006) 36 Cal.4th 412, 30 Cal.Rptr.3d 755) Attorney: Richard Wittbrodt

California State Supreme Court held for our client MW Erectors that even though it was not licensed at the time it entered into one of two contracts for the installation of certain metal and steel on a private project, it was not prevented from seeking compensation under that contract since it was properly licensed at the time it began work and thus, Business & Professions Code section 7031(a) was not applicable.

State Drywall, Inc. v. Rhodes Design & Development, 127 P.3d 1082 (2006) Attorney: Ron Sofen

This breach of contract action determined that plaintiff is entitled to prejudgment interest on money paid under the contract during a pending collection suit, even though that payment is not included in the principal amount of the subsequent judgment. For purposes of determining cost-shifting under NRCP 68(g) and NRS 17.115(5), the court concluded that pre-offer prejudgment interest must be computed on payments made during the pendency of the suit and added to the actual judgment when it is compared to the offer of judgment despite the offer’s silence on the inclusion of interest.

In re Kaypro (Arrow Electronics, Inc. v. Justus) 218 F.3d 1070 (9thCir. 2000); Attorney: Gary Scalabrini
In re Kaypro (Arrow Electronics, Inc. v. Justus) 230 B.R. 400 (9thCir.BAP 1999) Attorney: Gary Scalabrini

Consolidated appeals from orders of the Ninth Circuit Bankruptcy Appellate Panel (“BAP”), the court was asked to decide whether the United States Bankruptcy Court for the Southern District of California erred in determining that certain payments made to two of the debtor’s suppliers were avoidable under 11 U.S.C. S 547(b) as preferential transfers. The bankruptcy court ruled that the ordinary course of business exception, under 11 U.S.C. S 547(c)(2), did not apply as a matter of law to debt restructuring agreements, and granted partial summary judgment on that basis. The BAP disagreed, holding that the issue of whether payments under a restructuring agreement are made in the ordinary course of business is a question of fact that depends on the parties’ dealings and industry practice. The BAP nevertheless affirmed the partial summary judgment rulings on the basis that the evidence of record failed to raise a triable issue. The appellate court held the evidence was sufficient to create genuine issues of material fact as to whether the challenged payments qualified under the ordinary course of business exception, and therefore reversed and remanded the matter for a trial on that issue. In all other respects -the use of a fact-dependent test, the sufficiency of the evidence to show the debtor’s insolvency, and the propriety of the bankruptcy court’s having granted a motion for reconsideration on the statute of limitations issue the appellate court affirmed the BAP’s rulings.

65 Butterfield v. Chicago Title Insurance, 70 Cal.App.4th 1047 (1999) Attorney: Anya Stanley

A California Limited partnership (Butterfield), brought an action on a title insurance policy issued by respondent Chicago Title Insurance Company (Chicago) after the County of Riverside (County) claimed an easement on property owned by Butterfield. The lower court ruled there was no coverage under the policy, and, in any event, the statute of limitations had expired. The court also awarded Chicago its expert costs and attorney fees pursuant to section 998 and former section 1021.1 of the Code of Civil Procedure. The appellate court affirmed the judgment based on the statute of limitations and upheld the award of fees and costs.

Dieker v. Peelle Financial, 60 Cal.App.4th 288 (1997) Attorney: Anya Stanley

This case arose from the actions of a title insurance company which issued a policy insuring title to a property without excepting an Internal Revenue Service lien despite its knowledge of the lien’s existence. The insurance company sought to recover the amount eventually paid to the IRS on behalf of its policyholder from the trustee who, lacking knowledge of the existence of the lien, conducted a foreclosure sale years earlier without notifying the IRS. The policyholder joined in the suit against the trustee. There is no requirement of the trustee is to notify the IRS under the terms of a federal statute.

Johnson Controls, Inc. v. California Fair Employment & Housing Comm., 218 Cal. App. 3d 517 (1990) Attorney: Jerry Griffin

Nothing in law or reason mandated the Commission to depart from settled principles of discrimination law in order to excuse the Company’s categorical discrimination. Exceptions to the statutory mandate are limited to those situations where the danger to the existence of the business justifies allowing the discriminatory practice.

Bravo v. Buelow, 168 Cal. App. 3d 208 (Cal. Ct. App. 1985) Attorney: Ron Sofen

In this case the court held that the purchaser of real property, as an incident to an underlying decree of specific performance, is entitled to compensation for increased costs of intended construction of a home occasioned by the seller’s delay in conveying title.

Carlson v. Wald, 151 Cal. App. 3d 598 (1984) Attorney: Jerry Griffin

This appeal arises from a fight between two coworkers, Harry Carlson and Arnold Wald. In this action, Carlson sued Wald for assault and battery and Wald cross-complained in kind. Mrs. Wald sued Carlson in a separate lawsuit, now consolidated with her husband’s action, for loss of consortium resulting from the same fight. The Walds appeal from the trial court’s summary judgments adjudicating that there was no merit in Wald’s cross-complaint or Mrs. Wald’s complaint. The summary judgments were grounded on Carlson’s arguments that the Walds were bound under res judicata by a prior workers’ compensation judgment and, as to Mrs. Wald only, that she suffered, at best, a noncompensable partial loss of consortium. The court disagreed and reversed the ruling.

Miller v. Merzinger, 91 Cal. App. 3d 31 (1979) Attorney: Ron Sofen

Plaintiffs Margaret Miller and her adult children appeal from a summary judgment in favor of defendants Lewis Metzinger and Sepulveda & Metzinger, a professional corporation, in plaintiffs’ suit for attorney malpractice. The court reversed the judgment and remanded the cause to the trial court for further proceedings.


Unpublished Appellate Cases:

Shered Holiday, LLC v. American Construction Corp., 2019 Appellant obtained a judgement against respondent which included damages. Eight years after that judgement appellant filed a motion to amend to add additional debtors under the theory of alter ego and successor corporations. The trial court denied the motion based on a finding of insufficient ties made, financial or otherwise, and the appellate court affirmed. [Attorneys: Richard Wittbrodt, Sara Kornblatt, and Molly Healy]

Roscoe Steel & Culvert Co., Inc. v. Morillo Construction Co., Inc., 2018 WL 316932. The Court of Appeal held that Morillo’s alleged tort claims against the City of Pasadena arose from the same primary right as the cause of action for breach of contract that was dismissed (and affirmed on appeal) years prior. Morillo’s action was therefore time-barred pursuant to the Government Claims Act. In addition, the Court held that Morillo’s fraud and negligence claims against individual City employees failed because Morillo failed to allege facts that showed the employees had any separate legal duty to Morillo outside those that arose in connection with their actions on behalf of the City. [Attorneys: Sara Kornblatt, Michael Geibel, and Barbara Gadbois]

Atom Express, Inc. v. Schuff Steel Company, 2015 WL 263616. The Court of Appeal affirmed the trial court’s judgment of dismissal based on the expiration of the applicable statute of limitations, finding no basis for equitable tolling of the statute. Finding that there was no reasonable possibility that the statute of limitations defect could be cured by amending the complaint, the trial court did not abuse its discretion in denying leave to amend. [Attorneys: Sara Kornblatt, Richard Wittbrodt, Christopher Ng, and Molly Healy]

Morillo Construction Co., Inc. v. City of Pasadena, 2014 WL 413513. The Court of Appeal held that Plaintiff’s use of Code of Civil Procedure section 474 to name the City as a fictitious defendant was improper because Morillo was not ignorant of the facts giving rise to alleged liability by the City when it filed its cross-complaint. Instead, it was simply too soon to sue the City because Morillo had not yet satisfied the requirements of the Government Claims Act. Because Morillo did not properly name the City as a fictitious defendant, the statute of limitations expired, and the trial court’s order sustaining the City’s demurrer without leave to amend was proper. [Attorneys: Sara Kornblatt, Michael Geibel, and Barbara Gadbois]

Nicholson v. Centex Homes, 2012 WL 5504910. The Court of Appeal held that the trial court did not abuse its discretion in imposing terminating sanctions and monetary sanctions, based on plaintiff’s history of discovery abuse. In addition, the Court of Appeal held that summary adjudication pursuant to the expiration of the 10-year limitations period imposed by Code of Civil Procedure section 337.15 was proper. [Attorneys: Sara Kornblatt and Ted Senet]

Samii v. La Villa Grande Homeowners Ass’n,  2009 WL 4855735. Defendant La Villa Grande Homeowners Association (the Association) appealed from an order directing the Association to conduct an election for the board of directors. The order was issued in a case filed by several members of the Association (plaintiffs) seeking declaratory and injunctive relief, as well as costs and expenses incurred in enforcing the documents governing the Association. The Association contends that (1) the trial court erred by granting a preliminary injunction that provides the ultimate relief sought in the complaint; (2) the order was improper because plaintiffs did not bring a claim under Corporations Code section 75102 (hereafter section 7510); (3) plaintiffs’ action was premature; and (4) the order was too vague. While it may have been preferable — and certainly more efficient — for plaintiffs to have sought an order mandating an election through the summary procedure authorized in section 7510, subdivision (c), the procedure used here gave the Association sufficient notice and an adequate opportunity to be heard, and therefore the order (which we find was not impermissibly vague) was proper. Accordingly, the court of appeal affirmed the order. [Attorney: Jason Adams]