Appellate

The Appellate Practice Group at Gordon & Rees provides representation and advice on a wide variety of appellate matters, whether your goal is to reverse an adverse judgment or to protect a favorable judgment from reversal. The members of the Appellate Practice Group have decades of experience in the United States Supreme Court, the United States Courts of Appeals, the California Supreme Court, the California Court of Appeal and other appellate courts in the Pacific Basin. Our attorneys in the Appellate Practice Group have obtained two unanimous decisions for their clients in the United States Supreme Court.

Scope of Our Appellate Practice

We represent a broad range of clients in diverse areas of law. Our recent appellate cases have included products liability, business-related contractual disputes, construction defects, insurance coverage, employment discrimination and harassment claims, eminent domain and inverse condemnation, government contracts, admiralty, premises liability and securities regulation. We possess the skill and experience to master any substantive body of law, however complex or subtle.

Our expertise extends beyond appeals from final judgments. Through our equally active writ practice, we help our clients protect or attack significant rulings in advance of trial and judgment. We also maintain an amicus curiae practice, filing briefs and presenting oral argument in cases in which our clients are not direct parties, but which present important industry-wide issues directly affecting their interests.

The Need To Hire Experienced Appellate Counsel

The hiring of experienced appellate counsel is essential. A prudent client should not retain a general trial practitioner for an appeal, any more than a prudent medical patient should hire a general practitioner to perform major surgery. As noted by the California Court of Appeal, "trial attorneys who prosecute their own appeals may have 'tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-50.)

Cost-Effective Representation Is Our Hallmark

The Appellate Practice Group provides these advantages in a cost-effective way. Appellate courts expect a focused presentation, which is exactly what we deliver. We understand that part of our responsibility is to exercise sound judgment and to raise only issues that are likely to persuade the court to rule in our clients' favor.

As a client of the Appellate Practice Group, you will be as actively involved as you want to be at every stage of the appellate process. After analyzing legal theories and strategy, we consult with our clients as we prepare the written brief. Based upon our experience with the appellate decisional process, we understand the importance of well-written, concise and persuasive briefs. While oral argument sometimes can be pivotal in an appeal, there is no substitute for a well crafted brief. The brief represents the first opportunity, and thus the most important opportunity, to advance our clients' position.

Representative Decisions Obtained By The Appellate Practice Group

Representative decisions in which Appellate Practice Group members have achieved significant results include:

United States Supreme Court

Torres v. Sablan (2000) 528 U.S. 1110
Gordon & Rees won a unanimous ruling by the U.S. Supreme Court upholding the constitutionality of an international agreement defining the relationship between United States and the Commonwealth of the Northern Mariana Islands.

Deep Sea Research, Inc. v. State of California (1998) 523 U.S. 491
Gordon & Rees won a unanimous ruling by U.S. Supreme Court limiting Eleventh Amendment immunity of States in federal admiralty actions.

Other Appellate Courts

Kids Against Pollution v. California Dental Association (Pending Cal. Supreme Court Case No. S117156)
Gordon & Rees is co-counsel for the defendant, California Dental Association in a closely watched case involving the rights of businesses and professional organizations to engage in free speech and freedom of association, the reach of the state's Unfair Competition Law (Business and Professions Code § 17200), and the defendant's burden under the Anti-SLAPP statute. Gordon & Rees convinced the trial and intermediate appellate courts to dismiss the case at the pleading stage and to award the Association its costs and fees.

Perini Corporation v. Alagia-Crosby Engineers (2007), WL 2898275 (unpublished)
Gordon & Rees won this case representing an engineering firm. The court of appeal affirmed the trial court's decision to grant our client's motion for judgment on the pleadings, thus reaffirming that if a prime or general contractor can no longer be reached in a direct action by the homeowner or homeowners association, then the general contractor cannot reach its subcontractors with a cross-complaint for indemnity.

Dept of Parks and Recreation v. Harper
Gordon & Rees succeeded in getting a 9th Circuit appeal dismissed. Following a two-week trial resulting in a complete victory for our client, the Department of Parks and Recreation, the defendant appealed. Following numerous discussions with adverse appellate counsel, we were successful in convincing the defendant to voluntary dismiss his appeal.

Lanard Toys Ltd. v. Novelty, Inc. (2006) 208 Fed.Appx. 549
Gordon & Rees was successful in obtaining a preliminary injunction against various defendants in an intellectual property infringement case. The defendants filed an immediate appeal suggesting that plaintiffs had not met their burden. Less than three weeks after the appellate court heard oral argument, it dismissed the appeal.

McGarry v. University of San Diego (2007) 154 Cal.App.4th 97
A Gordon & Rees attorney affirmed dismissal of defamation claims based on the holding that statements concerning the reasons for terminating the employment of a university's football coach are a matter of public interest to which California's anti-SLAPP statute applies.

Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481
Gordon & Rees won this case requiring asbestos plaintiffs to reveal in discovery documents and information that plaintiffs or their counsel submitted to asbestos bankruptcy trusts. The case was described as the most significant decision in asbestos litigation since Manville went into bankruptcy.

Frye v. Tenderloin Housing Clinic, Inc. (2006) 38 Cal.4th 23
A Gordon & Rees attorney filed an amicus brief on the winning side of this case involving protection of pro bono attorneys from unconstitutional and unnecessary regulations.

Banacky v. Prudential Ins. Co. of N. Am. (9th Cir. 2005) 126 Fed.Appx. 386
A Gordon & Rees attorney won affirmance of denial of ERISA benefits because the claimant was not totally disabled from performing "any job" full time.

Qidwai v. Prudential Ins. Co. of Am. (2005) 143 Fed.Appx. 910
Following an earlier appeal in which the Ninth Circuit held that summary judgment was not appropriate for an ERISA case where the records contain disputed evidence, the district court conducted a trial on the record and the Ninth Circuit approved that a proper weighing was done when the court found for the insurer.

In re Firearm Cases (2005) 126 Cal.App.4th 959
A Gordon & Rees attorney affirmed summary judgment dismissing claims of several California cities and counties seeking to hold gun manufacturers liable for injuries caused by criminals using stolen guns.

In re Vaccine Cases (2005) 134 Cal.App.4th 438
Gordon & Rees served as lead counsel for over 30 different pharmaceutical and chemical company defendants represented by a number of different law firms. In a precedent-setting decision, the court held that federal law preempts Prop. 65 and 17200 claims with respect to the labeling of prescription drugs.

Izumi v. Continental Casualty Co. (9th Cir. 2005) 122 Fed.Appx. 390
A Gordon & Rees attorney was successful in upholding denial of coverage in dispute arising out of complex real estate litigation.

Ofescu v. Prudential Ins. Co. of Am. (9th Cir. 2004) 87 Fed.Appx. 625
A Gordon & Rees attorney won this case holding that the trial court did not err in finding the claimant not disabled for a period of time, then disabled, then again not disabled.

Takhar v. Prudential Ins., Co. of Am. (2004 9th Cir.) 85 Fed.Appx. 603
A Gordon & Rees attorney won this case in which the court approved the use of the plan language in effect as of the date of disability, which precluded coverage, even though a later amendment, post disability, may have favored the insured.

Koerner v. Aetna U.S. Healthcare, Inc. (9th Cir. 2003) 92 Fed.Appx. 394
A Gordon & Rees appellate attorney won affirmance of the denial of an insurance broker's motion to voluntarily dismiss his action against the insurance company, where the purpose of the motion was to negate an order denying his untimely demand for jury trial by refiling his claim in state court.

Rosenblatt v. Ernst & Young Int'l. (9th Cir. 2002) 28 Fed.Appx. 731
A Gordon & Rees attorney won this Ninth Circuit decision affirming that Ernst & Young, Int'l, Ltd. was a Cayman Islands corporation, leading to a subsequent district court finding that the Court lacked personal jurisdiction over the defendant.

Liggett Group, Inc. v. Ace Property and Cas. Ins. Co. (Del. 2002) 798 A.2d 1024
A Gordon & Rees attorney helped obtain a judgment that smoking claims against tobacco companies were not covered by insurance which involved coordinating brief drafting with more than a dozen firms across the country.

Nicholudis v. Prudential Ins. Co. of Am. (9th Cir. 2001) 1 Fed.Appx. 682
A Gordon & Rees attorney won this case holding that the reduction in disability benefits to the policyholder was supported because the policy was not a Medicare supplement policy; and that this major medical policy had a reduction provision when the policyholder turned Medicare age.

Saelzler v. Advanced Group (2001) 25 Cal.4th 763
The California Supreme Court adopted the reasoning of an amicus curiae brief submitted by Gordon & Rees for a property owner regarding summary judgment standards and limitations on premises liability.

Acceptance Insurance Company v. Sfufy Enterprises (1999) 69 Cal.App.4th 321
The appellate court affirmed summary judgment in favor of Gordon & Rees' client, the insurer, based upon an endorsement to a commercial general liability policy.

Duncan v. Prudential Health Care Plan (9th Cir. 1998) 1998 U.S. App. LEXIS 337
A Gordon & Rees attorney won this case holding that an insured could not argue that he was prejudiced by never having received a copy of a plan because he never requested a copy.

In re Brown (1998) 17 Cal.4th 873
Gordon & Rees was successful in obtaining reversal of a death sentence by California Supreme Court due to prosecutorial misconduct.

Bay Area Rapid Transit District v. Superior Court (1996) 46 Cal.App.4th 476
The appellate court affirmed summary judgment in favor of Gordon & Rees' public entity client, based upon the design immunity doctrine.

Special Administrator/Plaintiffs, et al. v. AlliedSignal, Inc. (1995) 24 Cal.App.4th 48
The appellate court ruled in favor of Gordon & Rees' client, concluding that non-suit on a punitive damages claim is proper when no reasonable jury could find clear and convincing proof of malice, fraud, or oppression.

Locklin v. City of Lafayette (1994) 7 Cal.4th 327
Gordon & Rees won a unanimous ruling by the California Supreme Court limiting governmental immunity for constitutional inverse condemnation liability arising from flood control projects.