Evidence-based articles for working litigators. We review court orders and identify the patterns that determine outcomes.
Moving to strike punitive damages in California? In 762 rulings, courts struck them at least in part in 422. Here are the six issues that decided it, with counts and real examples.
Read arrow_forwardWe read all 14 granted sanctions rulings under CCP 128.7 and 128.5, out of 127 requests across seven California counties, in full text, not sampled. Here's what the winning motions had in common.
Read arrow_forwardWe reviewed 44 federal court rulings from the Central District to map exactly what level of factual detail separates dismissed complaints from surviving ones — by claim type. For each of five claim types, we show what failed, what survived, and name the variable that made the difference.
Read arrow_forwardFraud cross-complaints get sustained on demurrer more reliably than almost any other pleading in California. The Lazar specificity rule doesn't relax with each amendment — it tightens.
Read arrow_forwardCommon counts survive alongside an express contract at the pleading stage. Quantum meruit does not — unless the contract's enforceability or scope is genuinely in dispute. Here's how courts draw the line.
Read arrow_forwardThe economic loss rule kills fraud claims at MSJ that survived demurrer -- because discovery reveals the 'inducement' was really about contract performance. Complete guide to what the moving party builds in discovery and what the opposing party must lock in at deposition before the motion arrives.
Read arrow_forwardCost-of-proof sanctions under CCP section 2033.420 are triggered by 'thereafter proves' -- not just trial. The sanctions motion is built at two earlier stages: RFA service (what to request) and deposition (seeding the cost record). Complete workflow for the practitioner who wants section 2033.420 to be a real threat, not a post-trial afterthought.
Read arrow_forwardA liquidated damages clause anchored to total contract value (not breach-specific value) gets voided as a penalty. When it's also the exclusive remedy, voiding it leaves the non-breaching party scrambling for actual damages they didn't build a record for. Complete guide to the three-step failure pattern and how to draft -- or litigate -- out of it.
Read arrow_forwardRattagan (2024) rewired when a party owes a concealment duty -- it now requires a pre-existing transactional relationship. Walks through what that means for deal lawyers who assumed a non-binding LOI meant no duty, and what facts now make or break the concealment claim at demurrer.
Read arrow_forwardThe distinction between a representation of existing fact (fraud) and a forward-looking promise (not fraud unless intent not to perform) is the threshold question in every Deal Gone Wrong case. Presents the Tenzer rule in plain terms and shows why most commercial fraud complaints mischaracterize broken promises as actionable misrepresentation.
Read arrow_forwardMany commercial MSJs are lost not because the law is against you but because the expert declaration doesn't meet the CCP § 437c(d) threshold -- personal knowledge, admissible, setting forth specific facts. Shows what an inadequate expert declaration looks like at the MSJ stage and what the court does with it.
Read arrow_forwardCourts are reluctant to infer scienter from one broken promise, but proof that the defendant made similar representations to other counterparties that also proved false changes the inference. Shows how to structure MTC requests to surface the prior-representation pattern and how to argue its significance at MSJ.
Read arrow_forwardDefense discovery in commercial fraud starts with RFAs on the plaintiff's reliance, damages, and corroboration. Most defense counsel bury these in the interrogatory set. Shows which five RFA targets create the factually-devoid record on key elements -- and why getting responses before deposition locks in the best version of the evidence.
Read arrow_forwardCommon counts (open book account, account stated, money had and received) are fast to plead but routinely demurred in cases where an express contract governs the relationship. Shows when common counts add genuine tactical value alongside a breach of contract claim -- and when they create redundancy the opposing party will use against you.
Read arrow_forwardDefense attorneys don't build the SOL record in plaintiff depositions because they're focused on fraud elements. But the discovery-date question -- what did the plaintiff know and when -- needs to be locked in before the plaintiff has drafted their SOL declaration. Shows the specific deposition agenda for locking in the discovery-date facts.
Read arrow_forwardCalifornia requires that interference with prospective economic advantage be accomplished by independently wrongful means -- not just competitive conduct. At deposition, defense counsel need to lock in that the defendant's competitive acts were lawful. Shows how to structure the deposition to establish the "no independently wrongful act" defense.
Read arrow_forward"This LOI is non-binding" does not end the legal analysis. Confidentiality, exclusivity, and good-faith-negotiation provisions carved out as binding remain enforceable even after a blanket non-binding clause. Maps the carve-out analysis and shows why defense counsel who lead with the subject-to clause often leave a Copeland exposure unclosed.
Read arrow_forwardCCP § 1671(b) asks whether the clause was reasonable at the time of contracting, not whether it matches actual post-breach damages. Retrospective analysis (comparing clause amount to what actually happened) is impermissible. Many litigants don't know this and waste their briefs on irrelevant post-breach comparisons. The Gormley six-factor framework gives structure for the correct analysis.
Read arrow_forwardA Norwalk corpus case shows what happens when a party argues an LD clause is unreasonable without presenting any evidence on commercial custom, anticipated harm, or bargaining power -- the presumption holds and the clause is enforced. Shows the seven-factor evidentiary burden and what kind of evidence moves a court off the presumption.
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