Litigation

BB&K's appellate attorneys provide the highest level of appellate experience, in both state and federal courts, to the public and private clients they serve.

Appellate practice requires unique and important advocacy skills. Successful counsel organizes complex facts and law into compelling arguments that frame a case’s central issues. BB&K’s appellate attorneys have applied these advocacy skills with a distinguished record. Our team provides the experience and knowledge that can help clients make hard decisions about whether and when to appeal.

Because appellate law is highly specialized, the community of lawyers and judges is relatively small. The unique experience and insight our team provides can increase a client’s chances of success on appeal and, in many cases, reduce the time and expense associated with appeals. With nearly 100 years of combined experience, BB&K attorneys take pride in positioning clients to achieve their goals. One team member has tried numerous appellate cases on behalf of the State of California as special counsel of the California Attorney General’s office. Another is among a select group of Appellate Law Specialists certified by the State Bar of California. Yet another worked behind the scenes at the California Court of Appeal.

Our attorneys have worked on cutting-edge cases in areas of law including water, telecommunications, administrative, constitutional, eminent domain, medical marijuana, anti-SLAPP, redevelopment, and a variety of other important areas. Clients have sought out BB&K to advocate for them and their interests in the California Courts of Appeal, California Supreme Court, the federal Courts of Appeals, and the United States Supreme Court.

Appellate practice extends beyond briefing and argument. BB&K’s appellate counsel partner with trial counsel to enhance the trial team and advise on key issues in preparation for an appeal. Our appellate attorneys excel at providing strategy support throughout the litigation process to increase the likelihood of a favorable outcome at trial and on appeal; we focus on the details so trial counsel can focus on developing evidence and persuading the court and jury. As part of our litigation support role, we often review summary judgment motions, anti-SLAPP motions, final orders or judgments, motions for new trial, motions for judgment notwithstanding the verdict, jury instructions, motions in limine, and a variety of other potentially dispositive motions. We also advise trial counsel after an appeal or writ is completed, and help work through complex fee motions and issues remanded to the trial court for further proceedings.

BB&K appellate counsel also play an important role in partnering with trial counsel who choose to handle their own appeals. Additional areas of counsel include:

• Summary Judgments
• Expert Witness Challenges 
• Jury Instructions
• Preserving the Record at Trial
• Arbitration-Related Litigation
• Writs of Mandamus
• Attorneys’ Fees

Please view the full biographies of our appellate practice attorneys listed to the right.

BB&K Presentation

Overseeing Appellate Litigation - General Counsels Guide
View BB&K presentation below:

Representative Appellate Matters - Amici Briefs

• City of Arlington v. Federal Communications Commission, No. 11-1545 (U.S. Supreme Court). An amicus brief on behalf of the National Water Resources Association, the Association of California Water Agencies and Westlands Water District arguing that the Chevron doctrine does not apply to an agency’s interpretation of its jurisdiction.
• Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710 (2013). An amicus brief on behalf of the National Governors Association, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, and the U.S. Conference of Mayors arguing that the permit requirements of the Clean Water Act do not apply when a public agency transfers pollutant-laden water from one location to another, as part of its management of storm waters. The Supreme Court agreed.
• Decker v. Northwest Environmental Defense Center, 2013 U.S. Lexis 2373 (March 20, 2013). Whether permit requirements of the Clean Water Act apply when a logging company discharges pollutants through conveyance systems, such as ditches and culverts, in conducting its logging operations. Submitted an amicus brief on behalf of the National Governors Association, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, and the Council of State Governments arguing that the Clean Water Act permit requirements do not apply to such discharges, because of the Environmental Protection Agency’s Silvicultural Rule. The Supreme Court agreed.
• Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc). Reversed court’s longstanding reading of 47 U.S.C. § 253, and ruled that the county’s ordinance does not violate the Communications Act.
• National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). Whether the EPA is required to consult under the Endangered Species Act in approving a state’s application to administer its own permitting system under the Clean Water Act, where the Endangered Species Act and the Clean Water Act contained conflicting provisions. Submitted an amicus brief on behalf of the Association of California Water Agencies and numerous water agencies and districts in California arguing that the Clean Water Act provisions trump the ESA provisions, and thus that the EPA was not required to consult. The Supreme Court agreed.
• Rapanos v. United States, 547 U.S. 715 (2006). Whether the Clean Water Act applies to wetlands that are adjacent to navigable waters, and thus whether a developer is required to obtain a permit under the Clean Water Act before discharging any waste into the wetlands. Submitted an amicus brief on behalf of the states of Alaska and Utah, the Western Urban Water Coalition, the National Water Resources Association, the Association of California Water Agencies, and numerous water agencies and districts in California arguing that whether the Clean Water Act applies to such wetlands depends on whether the wetlands have a significant nexus to the navigable waters. Although eight of the Supreme Court justices evenly split on the issue, Justice Kennedy issued a concurring opinion (which is considered the Court’s controlling opinion) agreeing with BB&K’s brief.

Representative Appellate Matters - Federal Appeals

• S.L. v. Upland Unified School District (2014) 747 F.3d 1155. Represented a school district and special education local plan area to secure dismissal of all attorneys' fee claims and obtain clarification on law governing private special education placements.
• City of Arlington v. FCC, 569 U.S. __ (2013). Represented local government petitioners before the U.S. Supreme Court and Fifth Circuit in challenge to the FCC’s determination that it had jurisdiction to regulate local governments’ zoning authority under 47 U.S.C. § 332(c)(7).
• Level 3 Communications, LLC v. City of St. Louis, 477 F.3d 528 (8th Cir. 2007). Upheld the city's telecommunications ordinance against Level 3’s challenge under 47 U.S.C. § 253. Assisted the city with brief drafting and oral argument.
• Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011). Argued for the Public Lands Council, that (1) plaintiffs lack Article III standing to challenge federal regulations on grazing on the public range, (2) the federal agency’s environmental documentation satisfied statutory requirements, and (3) the agency was not required to consult under the Endangered Species Act before adopting the regulations. Plaintiffs argued that the Public Lands Council lacked standing to appeal, because the federal agency itself did not appeal. The Ninth Circuit upheld our standing but rejected the Public Lands Council’s position on the merits, and held the federal regulations invalid.
• Potts v. Hamilton, 334 F. Supp. 2d 1206 (E.D. Cal. 2004), rev'd mem. sub nom. Potts v. Zettel, 220 Fed.Appx. 559 (9th Cir. 2007). Victory on remand in trial court (E.D. Cal.2010). Plaintiffs' commercial free speech action arising from prohibitions on advertisement of training in implant dentistry; Cal. Bus. & Prof. Code § 651(h)(5)(A) declared unconstitutional.

Representative Appellate Matters - State Appeals

• City of Coachella v. Insurance Company of the West (E057644). Won reversal on behalf of City of Coachella in 4th Appellate District in litigation over filing deadlines related to a contractor's promise to complete public imporvement projects.
• Suarez v. City of Corona (D065949). Represented City of Corona in 4th District Court of Appeal and successfully secured approximately $105,000 award for attorneys' fees and costs under Code of Civil Procedure 1038 in a frivolous lawsuit against the City. 
• People v. Goldsmith (2014) 59 Cal. 4th 258. Represented City of Inglewood in the California Supreme Court and obtained unanimous opinion that red light camera (ATES) evidence is not an out-of-court statement constituting hearsay, and may be authenticated like other photographic evidence. 
• In re the Marriage of Kahn (2013) 215 Cal.App.4th 1113. Respondent spouse in family law is entitled to notice of the specific nature and amount of relief sought before default is entered, and sanctions may not be awarded in default where not sought in the petition for dissolution.
• City of Colton v. Singletary (2012) 206 Cal.App.4th 751. Represented appellant City of Colton and obtained partial reversal in case holding that part of a cause of action may be stricken under the anti-SLAPP statute (CCP 425.16) and that attorneys' fee awards under the anti-SLAPP statute are immediately appealable collateral orders.
• City of Corona v. Liston Brick Co. (2012) 208 Cal.App.4th 536. Represented City of Corona in successfully defending judgment in case holding that in eminent domain matters, courts may exclude opinions of value of take under Evidence Code 822 when they relate to an interest other than the exact interest being taken.
• Tracy Press, Inc. v. Superior Court (3d Dist.2008) 164 Cal.App.4th 1290. City's defense of Public Records Act decision denying councilmember's emails.
• Red Mountain, LLC v. Fallbrook Public Utility District (2006) 143 Cal.App.4th 333. Appellant’s brief on behalf of Fallbrook Public Utility District contending the trial court erred in failing to interpret an agreement in favor of the district as a public entity, as required by Civil Code section 1069 and ordering a re-trial.
• Redevelopment Agency of the City of San Diego v. Mesdaq (2007) 154 Cal.App.4th 1111. Appellant’s brief on behalf of redevelopment agency in an eminent domain action concerning the trial court’s error in allowing speculative expert testimony relief upon in a goodwill valuation methodology.
• Community Youth Athletic Center v. City of National City (2009) 170 Cal.App.4th 416. Respondent’s brief on behalf of the City of National City, where superior court granted judgment in favor of National City based upon the property owner’s failure to comply with service procedures for challenging a validation action.
• First American Commercial Real Estate Services, Inc. v. County of San Diego (2011) 196 Cal.App.4th 218. Respondent’s brief on behalf of First American concerning a challenge by the County of San Diego to cancel a court order requiring the county to cancel and refund penalties paid by a tax service company for late payment of the clients’ real property taxes.
• O.W.L. Foundation v. City of Rohnert Park, 168 Cal.App.4th 568 (2008). Represented the City of Rohnert Park, successfully arguing that California’s Water Supply Assessment Act does not require water suppliers to analyze all groundwater uses in a groundwater basin in assessing whether sufficient water supplies are available for development projects, and therefore that the city’s water supply assessment was valid.