In many appeals, the key issue involves whether the trial court followed the correct procedures, as opposed to whether the trial court applied the correct substantive law. Mr. Adelstein has handled several appeals involving these issues.
This is a federal copyright case involving music rights and publishing. The defendant and cross-complainant simply disappeared and stopped cooperating with his attorney. His attorney eventually withdrew, and after numerous notices, the District Court stuck his answer, entered a default against him, and struck his counterclaims. The defendant then reappeared, unsuccessfully moved to set aside the default and reinstate his counterclaims, and then appealed. Mr. Adelstein represented the successful plaintiff on appeal. The Ninth Circuit gave Mr. Adelstein and his client a partial victory. It held that the District Court acted properly in striking the counterclaims, but abused its discertion in entering a default judgment. That is, it concluded that despite the defendant's conduct, he still had the right to at least defend himself against the underlying claims.
Case Data
Court of Appeal's Opinion
Court: United States Court of Appeals for the Ninth Circuit
Case No. 13-56697
Opinion Date: August 4, 2015
Trial Counsel: Stuart A. Shanus and Dominique H. Pietz at Reed Smith
In a post-judgment proceeding, the trial court had ordered a judgment debtor to produce his tax returns. In the leading case on this issue, Schnabel v. Superior Court (1993) 5 Cal.4th 573, the California Supreme Court concluded that tax returns are generally privileged, subject to three exceptions including a broad public policy exception. Mr. Adelstein filed a writ petition challenging this order and arguing that none of the three exceptions applied. Mr. Adelstein filed a writ petition challenging this order and arguing that none of the three exceptions applied. The Court of Appeal issued an alternative writ ordering the trial court (and the plaintiff as real party in interest) to vacate its order or show cause why a peremptory writ should not issue. After this partial victory, the parties were able to settle the case.
Case Data
Court: California Court of Appeal, Second Appellate
District, Division Eight
Case No. B231979
Alternative Writ Date: May 26, 2011
Trial Counsel: Gary K. Salomons at Gabrel Salamons.
This case is similar to Johnston v. Superior Court, discussed above. In a post-judgment proceeding, the trial court had ordered the wife of a judgment debtor to produce their joint tax returns. In the leading case on this issue, Schnabel v. Superior Court (1993) 5 Cal.4th 573, the California Supreme Court concluded that tax returns are generally privileged, subject to three exceptions including a broad public policy exception. Mr. Adelstein filed a writ petition challenging this order and arguing that none of the three exceptions applied. The Court of Appeal issued an alternative writ, and in response the trial court vacated its order.
Case Data
Court: California Court of Appeal, Second Appellate
District, Division Eight
Case No. B227178
Alternative Writ Date: October 29, 2010
Trial Counsel: Henry G. Haddad at Law Offices of Henry G.
Haddad.
A defendant noticed the deposition of the plaintiff. The plaintiff was unable to attend, and his attorney requested alternative dates. The defendant's trial lawyer refused and went forward with the deposition. After the plaintiff did not show up, the defendant then moved ex parte for terminating sanctions. The defendant then moved to vacate the order under CCP section 473, and that was denied. Mr. Adelstein filed an appeal, and the Court of Appeal reversed.
This was one of those cases where the trial court clearly misapplied well-established law.
Court of Appeal's Opinion.
Court: Court of Appeal, Second Appellate District, Division Three
Case No. B159841
Author: Justice Patty Kitching
Opinion Date: October 1, 2003
Trial Counsel: Dennis Carey at Dennis Carey, Attorney at Law
Steve Neimand at Steve Neimand, Attorney at Law.