Appellate Law

Appellate law requires strong research and verbal skills and—most importantly—the ability to frame an incisive legal argument. Seasoned by arguing numerous cases before the appellate courts, McManis Faulkner’s attorneys bring these skills fully to bear in matters that range from commercial disputes to family law to criminal convictions in state and federal courts. Our combined trial and appellate experience enables us to shape a litigation strategy that, from the outset, maximizes the likelihood of ultimate success. Our extensive background in appellate law often inspires clients to retain us for assistance with complex and often unsettled legal issues emanating from a variety of contexts.

We vigorously pursue appeals on behalf of clients we have represented at trial and those who newly engage us, and are particularly adept at litigating anti-SLAPP suits. Our portfolio of successful appeals speaks for itself.

Case Studies

Appellate Law Case Studies

McManis Faulkner Obtains Largest Ever Sanction Award

Original judgment of $ 552,153.28 in sanctions was affirmed. The Court of Appeal, Sixth Appellate District also sanctioned appellant $15,000 and each of her two attorneys $5,000.

In re the marriage of: Jane Doe, Appellant, and John Doe, Respondent


After initiating divorce proceedings, child custody for the parties’ two minor children was contentious from day one. The mother moved across the country with the children when they were still toddlers. In 2006, just months after a permanent custody order was entered, the mother petitioned the Court for sole legal and physical custody of the children, inexplicably requesting supervised visitation for the father. After three years of intense litigation and exhaustive settlement negotiations, the parties reached a comprehensive written settlement regarding custody, including provisions to resolve future custody matters through alternative dispute resolution. The day after the orders were entered by the Court, the mother repudiated them – and then fired her attorneys.

The mother never filed a motion to set aside the agreement, but eventually filed a document titled “Rescission of Signature and Agreement Affixed Thereto.” In it, she purported to rescind the original agreement. During the next year, the mother, according to the trial judge, “created a legal universe all her own. In this universe, [the mother] does what she wants when she wants. She does not follow the Permanent Order or the Court’s subsequent orders. She does not appear in Court. She does not accept the Court’s authority to make orders.”

The father filed a motion for sanctions against the mother, requesting attorney’s fees to cover the numerous motions necessitated to enforce the stipulated custody orders and to defend against the improper custody litigation commenced by the mother on the East Coast.  After an uncontested trial on the father’s request for monetary sanctions and attorney’s fees, the Court ordered that the mother pay the father $552,153.28 pursuant to Family Code section 271.  This sanctions award is the largest ever in California family law.

On appeal, the Court of Appeal of the State of California, Sixth Appellate District found that the mother put forth “completely and undeniably meritless arguments.”

In addition to affirming the original judgment, the court imposed sanctions against the mother and her attorneys of record, Kim M. Robinson and Richard Ducote.  The mother was ordered to pay $15,000 and the attorneys $5,000 each. 

McManis Faulkner Obtains Victory in Sixth District Court of Appeal

The Court of Appeal of the State of California, Sixth Appellate District, affirms Trial Court decision in tip pool case.

Sutter’s Place, Inc. dba Bay 101


McManis Faulkner successfully represented Bay 101, a casino in San Jose, in a class action brought by card dealers claiming they were illegally required to contribute a portion of gratuities received from players to a common account that was distributed to other casino employees. This arrangement is commonly called a tip pool.

At trial in May 2011, the plaintiffs claimed Bay 101 was liable to the dealers because this ‘tip pooling” arrangement was illegal.  The causes of action at issue at trial were for the common count of money had and received and unfair business practices under Business and Professions Code section 17200.  All of the other claims, failure to pay minimum wage, conversion,  reimbursement, breach of contract, collecting and receiving employee wages and violation of Labor Code section 351 were dismissed prior to the trial in pretrial motions. The money had and received claim was tried to a jury and the unfair competition claim was tried at the same time to Judge James Kleinberg.  After the plaintiffs presented their case, Bay 101 brought a motion for nonsuit on the money had and received claim and a motion for judgment on the unfair competition claim.  Judge Kleinberg granted both motions and entered judgment for Bay 101.  Plaintiffs appealed the trial court’s decisions on the following: money had and received, conversion, failure to pay minimum wage and the unfair competition.

In the Court of Appeal of the State of California Sixth Appellate District, plaintiffs’ lawyers argued that all of the dealers’ claims should not have been dismissed because the tips belonged to the dealers and Bay 101 was not legally permitted to require the dealers to contribute to the tip pool.  Plaintiffs claimed that although tip pooling had been found by the courts to be legal in the restaurant setting, the method of tipping in a casino demonstrated that players intended tips to be the sole property of the dealers.  Plaintiffs claimed that because tips are tossed in the direction of the dealer from a winning hand, contrasted with tips being left on a table for a group in a restaurant, the player intends the tips to be for the dealers only and Bay 101 could not legally require the dealers to contribute any of the tips for other employees.  The Court of Appeal agreed with the trial court that the intent of the tipper was not relevant to the outcome of the case.  The Court of Appeal held that tip pools mandated by employers can be legal in casinos if the purpose of Labor Code section 350 et seq. is not contravened by distributing the tip pool to any employer’s “agent,” as defined in section 350.  In addition to arguing that any tip pool in a casino is illegal, plaintiffs also claimed that some of the tips were distributed to “agents.”  The Court of Appeal found that plaintiffs failed to prove that any of the recipients of the tip pool were agents because none of them had “management level” authority.  The Court of Appeal agreed with the trial court that merely “directing another employee in the performance of some of his or her duties” did not amount to the degree of supervision and control that an employee would need in order to be an agent of the employer within the meaning of Section 350.

The Court of Appeal also confirmed the trial court’s ruling that the money had and received claim failed noting that the plaintiffs’ evidence was insufficient to establish that the money contributed by the dealers into the tip pool was their money, which, in equity and good conscience, should be returned to them.  Rather, the evidence presented by the plaintiffs established that the amount of money dropped into the tip pool did not exceed an amount that was a fair and equitable portion of the gratuities that rightfully belonged to other employees of Bay 101.  The Court of Appeal ruled that the money Bay 101 received and distributed to other employees belonged to these other employees and was intended by the dealers to be used for their benefit and not for the benefit of the dealers. 

As to the minimum wage claim the Court of Appeal held the evidence proved that the dealers were paid the minimum wage and there was no evidence that their contribution to the tip pool ever exceeded the amount of the dealers’ tips.  Accordingly, the plaintiffs could not prevail on their minimum wage claim.  

As to the conversion claim, the Court of Appeal upheld the trial court’s decision that because the dealers could not prove that the money in the tip pool belonged exclusively to them, they could not prove conversion.

On May 1, 2013, the California Supreme Court denied Avidor’s petition for review.


McManis Faulkner Successful in the Ninth Circuit

Favorable opinion from Ninth Circuit panel in appeal from pre-trial rulings by District Court

A privately-held entertainment company


McManis Faulkner represented an entertainment company in an action brought by two long-time activists.  The case proceeded to trial in 2013 in the United States District Court for the Northern District of California, with a unanimous jury verdict in favor of the company.  The activists appealed from the District Court’s pretrial rulings dismissing several of their claims before trial.  The issues presented to the Ninth Circuit included the following:

  1. Whether the collateral estoppel doctrine was properly applied to prevent the activists from litigating whether they had the constitutional right to videotape the company’s employees who were in a non-public forum (here, a backstage area guarded by security personnel and surrounded by a 10 foot high concrete wall);
  2. Whether there is a state-action requirement to file a claim for alleged violations of free speech rights under the California Constitution; and
  3. Whether a party may file a cause of action for vandalism under California law.

Oral arguments were held on May 15, 2015, and an unpublished opinion was released shortly thereafter, affirming the District Court’s rulings on all three issues.  The Ninth Circuit ruled that 1) the collateral estoppel doctrine applied; 2) there is a state action requirement; and 3) the activists did not follow the proper procedures for challenging the vandalism decision. The oral argument may be viewed here

McManis Faulkner Obtains Ninth Circuit Ruling

U.S. Ninth Circuit Court of Appeals overturned District Court decision.

Rahinah Ibrahim, a Stanford graduate student from Malaysia


McManis Faulkner successfully represented Rahinah Ibrahim, a Stanford graduate student, who found herself inexplicably on the No-Fly List. Ibrahim was arrested at San Francisco International Airport in 2005 before being allowed to fly to her native Malaysia for an academic conference. She was not allowed to return to the U.S. due to her ‘No-Fly’ List status.

Filing in the Ninth Circuit Court of Appeals, government lawyers argued that with the passage of 49 USC Section 46110 by Congress, federal judges had no jurisdiction over the Department of Homeland Security’s Transportation Security Administration (TSA). As such, only appellate courts have jurisdiction over such cases, making them impossible to litigate because appellate courts cannot take evidence and had no lower court decision – complete with evidence – to review and reconsider.

In a decided victory, the Ninth Circuit Court of Appeals agreed to allow federal trial judges to investigate the make-up of the ‘No-Fly’ List. The court held that the Terrorist Screening Center, the agency that compiles the list, is part of the Federal Bureau of Investigation, which is not listed in 49 USC Section 46110.

McManis Faulkner then filed a suit in U.S. District Court to have Ibrahim's name removed; however, Judge William Alsup dismissed the suit. He ruled that Ibrahim had no constitutional rights at stake because she was a foreigner who had left the U.S. voluntarily.

The Ninth Circuit Court of Appeals overturned the District Court decision, ruling that Ibrahim had significant U.S. connections - she had spent four years as a graduate student at Stanford, traveled abroad only to present her research at a Stanford-sponsored conference, and would have returned for academic and personal visits if the government hadn't barred her.

Malicious Prosecution

Successfully defended Ninth Circuit appeal of the dismissal of a lawsuit without leave to amend.

Former Santa Clara County Bar Association President


McManis Faulkner represented a prominent attorney who had been sued for malicious prosecution, defamation, and several other causes of action, all related to a lawsuit he had filed in state court. The defendant in that action became a plaintiff by suing the attorney and approximately 30 other parties in two state court actions. After the state court lawsuit settled in 2001, the plaintiff filed a new suit against many of the same parties in federal court. McManis Faulkner prevailed on two motions to dismiss the federal lawsuit, the second one granted without leave to amend. Undeterred, the plaintiff appealed the decision to the Ninth Circuit, which affirmed the lower court’s decision to dismiss all claims against all defendants without leave to amend. This decision ended a legal odyssey that took more than 10 years to resolve.

Redevelopment Law

The Court of Appeal ruled the City of San Jose could not use $50 million in redevelopment money to fund its new city hall.

Al Ruffo, former mayor of San Jose


Al Ruffo sued the City of San Jose when he learned that more than $50 million of redevelopment money would be used to fund its new city hall. A state law specifically forbids cities from using redevelopment money for the construction of city halls. The City of San Jose claimed that the $50 million would not be used for construction but rather for infrastructure. The trial court granted summary judgment for the City. The Court of Appeal reversed this decision and sent it back to the trial court, finding state law prohibits the use of redevelopment funds to pay for any portion of the construction of a city hall. Ballot language for the city hall project stated that redevelopment funds would be used only for site acquisition, relocation, demolition and other activities related to providing a site, not for construction itself. The parties eventually settled the case, with no redevelopment funds used for the project. McManis Faulkner sought and obtained an attorney’s fee award of $1 million due to the public benefit conferred.

Attorneys Fees

Reversed a trial court decision, ordering clients to pay more than $150,000 in attorney’s fees and costs to city government in connection with a permit dispute.

Retired Police Officer


Clients were sued by their city government for allegedly creating a public nuisance based on the height of their boundary fence. After the public nuisance case settled, the city sought and obtained an award for more than $150,000 in attorney’s fees and costs in connection with the lawsuit. McManis Faulkner argued that the city ordinance governing attorney’s fees for nuisance actions was invalid since it was one-sided: only the city could recover fees as it was written. State law prohibits such one-sided ordinances. Perhaps aware of the defect, the city passed a new ordinance allowing an award of fees to whichever side prevailed in a public nuisance action, but the new enactment did not become effective until six days after the action was dismissed. The Court of Appeal reversed the trial court’s decision. The clients did not have to pay the city any attorney’s fees or costs in connection with the lawsuit.