Firm wins published decision on testamentary capacity


On March 18, 2021, our firm prevailed as lead counsel in a unanimous published decision by the First District Court of Appeal, Division Three, addressing the important and knotty subject of testamentary capacity when challenged for alleged delusions generated by mental disorder. As the opinion explains, a will or trust must be upheld even if beliefs held by the maker are deemed false but there was no operative mental disorder at the time it was executed, or if there was even slight evidence supporting those beliefs.  A copy of the slip opinion in Eyford v. Nord (case no. A157962) is attached.


0169opinion in eyford v. nord.pdf

Elliot to chair new task force on appellate delay


On February 24, 2021, the California Academy of Appellate Lawyers, a longstanding and highly respected organization, asked Elliot, a former president, to chair a new task force exploring ways to improve the efficiency of California's appellate process without sacrificing quality.  As explained in my column in the Daily Journal published on March 22, we'll be looking at the entire range of the process, beginning with the superior court clerks' current responsibilities to prepare and submit the documentary record and reporters' transcripts to the reviewing court. And we welcome suggestions from judicial and bar organizations and any other concerned parties.

Elliot proposes an important rule change


What do you do if your client's judgment or order gets amended? Appeal the original version or the amended version? California law has been dangerously uncertain, with wrong guesses threatening the right to appeal either version. The principal line of cases, for example, says if there's a "substantial modification" by amendment the original version is no longer appealable at all, so you must appeal the amended version within the prescribed time limits. But what's a "substantial" modification? The cases provide no reliable test on this fateful issue. In June 2020, accordingly, Elliot submitted the attached rule proposal to the California Judicial Council. To eliminate doubt, the new rule would always require timely appeals from the original version of an appealable judgment or order affecting a party, and amendments of any kind -- whether "substantial" or not -- would be reviewable on the same appeal as long as they're entered by a date certain.


1369proposed rule on amended judgments or orders.pdf

Supreme Court Seals Firm's Major Victory for City of Modesto


On Wednesday, April 25, 2018 the California Supreme Court sealed a major appellate victory for the City of Modesto in its 20-year battle against chemical manufacturers and other parties responsible for widespread contamination with a carcinogenic dry-cleaning solvent. The Supreme Court rejected claims by the two largest chemical suppliers – bolstered by friend-of-court letters from eight major industry groups – that Modesto’s favorable outcome in the First District Court of Appeal in San Francisco should be reviewed by the higher court. Instead, with no recorded dissent, the Supreme Court denied a review and allowed all the Court of Appeal’s rulings to stand. As a result, Modesto can now pursue over $100 million worth of injunction and damages claims that the chemical suppliers had successfully attacked at the trial court level.


In accordance with several decades of product literature from the manufacturers, wastes of their solvent known as perchloroethylene or “PCE” had been disposed of casually into the environment: dumped outside or poured down the drain. This led to heavy accumulations in soil and groundwater at dozens of sites across Modesto. While the city obtained more than $30 million in settlements in the early stages of the lawsuit it commenced in 1998, those funds covered only a fraction of the cost to remedy this extensive contamination. The two largest suppliers of PCE in the city, The Dow Chemical Company and PPG, Inc., had failed to settle and walked away with only minimal liability.

Modesto thus pursued an appeal on January 4, 2012, principally targeting Dow and PPG. Its lead counsel was Elliot L. Bien, principal of the San Rafael appellate specialty firm of Bien & Summers. Also on Modesto’s appellate team were the city’s trial counsel at Miller & Axline in Sacramento and Davidovitz & Bennett in San Francisco, and Modesto’s city attorneys at Meyers Nave in Sacramento succeeding former city attorney Roland Stevens.

The appeal took an extraordinary six years from start to finish. Given the long trial court battle that went before, the appellate record consisted of 94 volumes of written material plus 232 volumes of reporters' transcripts. Similarly, the appellate briefing required hundreds of pages on Modesto’s appeal and the lead defendants’ cross appeal. The issues included public nuisance law, judicial estoppel, the scope of appellate courts’ discretion, a variety of statutory clean up remedies, fundamental disputes over causation requirements and the definition of property injury for tort damage purposes, the proper allocation of settlement credits, and several punitive damages issues. 

Following an extraordinary oral argument last November, lasting nearly 2 1/2 hours, the Court of Appeal issued a 91 page decision on January 8, 2018. Although Modesto did not prevail on every issue, its favorable appellate rulings have radically improved its ability to cope with a contamination threatening the water supply and health of over 200,000 people. In addition, other governmental and private parties facing similar challenges can draw strong support from Modesto’s favorable rulings – especially now that they have passed muster in the California Supreme Court.

The full Court of Appeal opinion can be accessed here:

The official citation for the published version is City of Modesto v. Dow Chemical Company (Jan. 8, 2018, as modified on denial of rehearing (Feb 6, 2018) 19 Cal.App.5th 130 (review denied Apr. 25, 2018)