Appellate advocacy demands thorough research, in-depth legal analysis and strategic, highly developed written and oral advocacy skills. At Michelman & Robinson, LLP (M&R), we have argued hundreds of appeals before virtually every appellate court in California and New York, as well as several other jurisdictions. Our Appellate Department handles direct appeals of trial court; intermediate appellate judgments and appellate review of administrative action; as law and motion and pleadings; and writs both before and during trial. We advise clients during the trial court phase so that actions taken in the lower court may be optimized on appeal. Our appellate attorneys provide counsel to clients in a broad range of statutory, regulatory and constitutional issues. We have garnered published opinions on matters throughout various industries and obtained successful results in unpublished cases.

Whether seeking to overturn or uphold the original ruling, we persevere on behalf of our appellate clients.

Areas Of Expertise

Appellate Decisions

• Windsor Pacific LLC v. Samwood Company, Inc. (2013,  213 Cal.App,.4th 263): Successfully defended developer against adjacent landowner’s lawsuit by claiming developer controlled a prescriptive easement over the property. Trial court had ruled that the contract provided for recovery of attorney fees for an “action to enforce or interpret the contract,” the adjacent landowner did not allege any contract-based theory, and the developer’s contract-based defense did not make the lawsuit an “action to enforce or interpret” the contract. Court of Appeal held that the adjacent landowner was equitably stopped to deny that permission had been granted to travel over the property, and it also reversed the trial court’s denial of the developer’s motion for attorney fees. The Court of Appeal, departing from established precedent, also held that an “action to enforce or interpret” a contract includes an action in which the contract supports a defense.
• Zabasky v. American International Group, Inc. (2013 9^th Cir, appeal no. 11-57111): We successfully defended two major insurance entities in an anti-SLAPP case, convincing the appellate court to affirm the district court’s dismissal of a malicious prosecution lawsuit against them. The appellant contended that our clients had maliciously reported irregular workers’ compensation claims to the California Department of Insurance. However, the appellate court held that the appellant failed to show that our clients lacked probable cause or acted with malice when they made the report.
• Claus v. Paychex (2012, California Court of Appeal no. G045296): Defended a payroll services provider against damages claims brought by shareholders of a corporate client who alleged they lost money when selling their company because the provider’s employees had been embezzling from them. The corporation’s contract with the payroll service provider included an arbitration clause, but the shareholders argued that this did not apply because they were not signatories to the contract in their individual capacities. The Court of Appeal held that the former shareholders’ claims were derivative claims,  the former shareholders’ rights were the same as those of the corporation, and the former shareholders were thus bound by the arbitration clause.
• Zentner v. Farmers Insurance Exchange (2012, California Court of Appeal no. B235767): Represented an affiliated group of insurance entities against a district manager’s allegations of misclassification as an independent contractor when he claimed instead to be a franchisee. The trial court entered summary judgment against the appellant. The Court of Appeals affirmed on the grounds that the appellant had failed to raise a triable issue of fact in the trial court, his efforts to introduce new facts on appeal to create a triable issue were improper, and he was neither an employee nor a franchisee.
• Harbor Regional Center v. Office of Administrative Hearings (2012, 210 Cal.App.4th 293): Represented a regional center responsible for delivering services to people with developmental disabilities. Case raised novel question of whether (and under what circumstances): the California Office of Administrative Hearings has jurisdiction to settle a caregiver pay rate dispute between a regional center and the parent of a developmentally disabled child.
• Anstey v. Beebe (2012, California Court of Appeal no. B228741): Obtained summary judgment in favor of property owners attempting to reclaim land occupied by neighbors. Trial court refused to grant relief for appellants’ purported excusable neglect. The court of appeals affirmed the merits of the boundary dispute and rejected arguments that trial court failed to join an indispensable party and misapplied Code of Civil Procedure section 473.
• Hodson v. Sterling Casualty Insurance Company (2011, California Court of Appeal no. G043783): Resolved a claim for an automobile liability insurer who paid nothing after applying the deductible and depreciating the value of a catalytic converter stolen from a 9-year-old vehicle. The appellant contended that the depreciation contradicted the terms of the insurance policy and violated a claims settlement practices regulation. The appellate court held that the insurer correctly interpreted its policy and found it was an unresolved factual issue as to whether the insurer violated the regulation.
• Samantha C. v. Office of Administrative Hearings (2010, 185 Cal.App.4th 1462): Represented a regional center to determine whether a claimant had a “developmental disability” as defined by Welfare and Institutions Code section 4512(a).
• ACS Systems, Inc. v. St. Paul Fire & Marine Insurance Company (2007, 147 Cal.App.4th.): Successfully defended insurer that was sued for faxing unsolicited advertisements. Determined the action did not trigger insurer’s duty to defend under the advertising injury offense “making known to any person or organization written or spoken material that violates an individual’s right of privacy.”  Insurer not liable for injury caused by the disclosure of private content to a third party (invasion of secrecy privacy), nor to injury caused by receipt of the unsolicited fax (invasion of solitude privacy). 
• Guseinov v. Burns (2006, 145 Cal.App.4th 944): Refused to vacate an arbitration award in instance where the arbitrator did not disclose his previous service as a volunteer mediator for plaintiff’s counsel. Convinced court that the arbitrator’s acting as an unrepresented negotiator in a single unrelated transaction did not constitute a “professional relationship” requiring disclosure, and there were no facts that would cause a reasonable person to entertain a doubt whether the arbitrator was impartial.
• Haynes v. Farmers Insurance Exchange (2004, 32 Cal.4th 1198): Represented major automobile liability insurer to determine whether provision in policy that set liability limits for permissive users at the statutory minimum—regardless of limits available to named insured—was sufficiently conspicuous, plain and clear to be enforceable.
• St. Paul Mercury Insurance Company v. Frontier Pacific Insurance Company (2003, 111 Cal.App.4th 1234): Held that an additional insured has no reasonable expectation of coverage for its own negligence or strict products liability when its contract with the named insured requires indemnity and insurance coverage only for liability caused by the named insured. Further, a standard 2010 additional insured endorsement providing coverage for liability arising out of the named insured's ongoing operations for the additional insured does not cover liability arising out of defects in equipment leased from the additional insured but used in operations for a third party. Where the indemnity and insurance provisions of the contract depend upon the named insured's liability for the claimed injuries, allocation of a settlement among insurers may require apportionment of fault in addition to equitable principles.
• Hooker v. Department of Transportation (2002, 27 Cal.4th 198): Defended an employer of an independent contractor in a premises liability case. Held that an employer of an independent contractor is not liable to the contractor’s employees for safety conditions at a work site. Liability may only be imposed when the employer's negligent exercise of retained control over safety conditions affirmatively contributes to the employee's injuries. Mere evidence that a hirer is aware of an unsafe practice and fails to correct it is insufficient to raise a triable issue of fact that the employer's exercise of retained control over safety issues affirmatively contributed to the employee's injuries, or even to the adoption of that unsafe practice by the employee.
• Hamilton v. Maryland Casualty (2002, 27 Cal.4th 718): (amicus brief): Held that a defending insurer cannot be bound to a settlement agreement without the insurer's agreement or participation, even when the settlement has been found to be in good faith under Code of Civil Procedure Section 877.6.
• Vargas v. Athena Assurance Company (2002, 95 Cal.App.4th 461): Upheld an award of summary judgment to Athena and held that an uninsured motorist driving his own car during his normal commute could not evade Civil Code Section 3333.4 by claiming insured status under his employer's business auto policy.

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