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May 2020

California Appellate Lawyers Defeat COVID-Time Courtroom Foes

“April is the cruellest month,” but not for the Gordon & Rees appellate practice. Don Willenburg, chair of the firm’s Appellate Practice Group, won four California appellate decisions in less than three weeks in April. These recent wins show the breadth of the firm's appellate practice, and illustrate how the group can help create or preserve victories at the appellate level.

On April 10, the Sixth Appellate District exonerated the firm's general contractor client from asserted liability for defects in a luxury condo complex in downtown San Jose. The court agreed with our arguments that plaintiff lacked adequate evidence to establish duty, breach, or causation, and so affirmed a ruling of nonsuit.

On April 24, another panel of the Sixth Appellate District exonerated the firm's school district client from claims of racial discrimination, retaliation, and wrongful termination in violation of public policy. The plaintiff was a substitute custodian who had been passed over for promotion for a permanent position many times. Partner Alyson Cabrera originally won summary judgment for the district, which the Sixth District affirmed.

On April 28, the First Appellate District ruled in our favor in a case involving an industrial accident while building baggage carousels at San Francisco International Airport, a worker who says he will never work again, and a well-known plaintiffs’ firm. Four years ago the case was tried and our client was assessed at 10% liability. Plaintiffs successfully moved for new trial, which the trial court granted on the ground that the apportionment was too low. Our appeal was unsuccessful, so we went back and tried the case again. The second time, partner Asim Desai and senior counsel Chris Weber of the Los Angeles office, won a complete defense verdict, and with Willenburg's assistance defeated plaintiffs’ motion for new trial. In that motion and on appeal, plaintiffs made two particularly unpleasant arguments: defense attorney misconduct and juror misconduct. The Court of Appeal conducted telephonic argument, and five days later affirmed the judgment in favor of the firm's client.

On April 30, the Ninth Circuit ruled in favor of the firm's medical school client against a dismissed former student with ADHD, depression, and a reading disorder who claimed racial discrimination, retaliation, and violation of the Americans with Disabilities Act ("ADA"). Partner Jennifer Lynch was the primary author of the firm's winning brief. Willenburg contributed to the brief and was preparing for oral argument before the court cancelled the March argument in light of COVID-19. Among the issues presented was whether the student’s claimed disability had been actionable under the ADA or only under the ADA Amendments Act of 2008 ("ADAAA"), which in turn affected the statute of limitations. The court agreed with our analysis that the ADAAA was intended to “clarify” Congressional intent in the original ADA, not redefine the definition of disability, and that “equitable tolling” did not save the student’s untimely claims.

Contact Don Willenburg or any of the attorneys in the Appellate Practice Group if your case looks headed toward appeal. The sooner the better.

Alyson S. Cabrera
Asim K. Desai
Jennifer M. Lynch
Christopher J. Weber
Don Willenburg