John Toby Schreiber

John Toby Schreiber

Certified Specialist in Appellate Law, State Bar of Calif. Bd. of Specialization
  • Appeals & Appellate
  • California
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Summary

I assist clients and/or their trial counsel in California's appellate courts, the 9th Circuit Court of Appeals, and the United States Supreme Court. I am a Certified Specialist in Appellate Law, State Bar of California Board of Legal Specialization. I am one of about 300 certified specialists in this practice area in the State of California.

Recent statistics published by California's Judicial Council show that civil appeals are reversed less than 20% of the time. When I represent an appellant, over the course of almost 30 years of handling civil appeals my reversal rate is 3 times that.

For almost 30 years, and from March 1993 to the present exclusively, I have handled civil appeals in a wide variety of issues, including administrative, business, real estate, family law, personal injury, probate, and procedural issues. I also help clients and trial counsel preserve or create a record on appeal by appropriate pre- or post-trial motions. In addition to California's state appellate courts, I am also admitted to the 9th Circuit Court of Appeals and the United States Supreme Court.

Practice Area
  • Appeals & Appellate
Fees
  • Credit Cards Accepted
    Visa and Mastercard
  • Contingent Fees
    I will only accept contingent fees if I represent the respondent on appeal and the appellant has posted a sufficient bond to stay the judgment (usually 1.5 times the amount of the judgment). In that instance I would be willing to accept my fee from payment from satisfaction of the judgment, either directly from the Appellant or from payment on the bond.
Jurisdictions Admitted to Practice
California
9th Circuit
U.S. Supreme Court
United States District Court, Central District of California
United States District Court, Eastern District of California
United States District Court, Northern District of California
Professional Experience
Attorney at Law
Law Offices of John T. Schreiber
- Current
Education
Santa Clara University School of Law
J.D. (1986)
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Honors: Associate Editor, Santa Clara Law Review Law Review Comment published, 26 Santa Clara Law Rev. 643 (1986)
Brandeis University
B.A | Politics
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Honors: Cum Laude, Politics
Awards
Northern California Super Lawyer
Thomson West
Northern California Super Lawyer
Thomson West
Northern California Super Lawyer
Thomson West
Northern California Super Lawyer
Thomson West
Northern California Super Lawyer
Thomson West
Peer-evaluated recognition given to top 5% of attorneys in named region.
Northern California Super Lawyer
Thomson West
Peer-evaluated recognition given to top 5% of attorneys in region.
Northern California Super Lawyer
Law & Politics Magazine
Peer-evaluated recognition given to top 5% of attorneys in named region.
Northern California Super Lawyer
Law & Politics Magazine
Peer-evaluated recognition given to top 5% of attorneys in region.
Northern California Super Lawyer
Law & Poliitics Magazine
Peer-evaluated recognition given to top 5% of attorneys in region.
Northern California Super Lawyer
Law & Politics Magazine
Peer-evaluated recognition given to top 5% of attorneys in region.
Professional Associations
ACCTLA Board of Governors
Member
- Current
California State Bar # 131947
Member
- Current
State Bar of California Committee on Appellate Courts
Member of Committee
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Contra Costa County Bar Association
Appellate Section Leader
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Activities: Program Director, Appellate Section 1993-1995, President, Appellate Section, 1995-1996, 2000-2003, Director, 2003 to 2010; member, Membership, Educational Committee, 1995-2003.
Publications
Articles & Publications
"Traps for the Unwary: The Process from Tentative Decision to Notice of Appeal in Court Trials"
THE VERDICT, a publication of the Alameda-Contra Costa Trial Lawyers' Association
"Standards of Review: The Lens through which to Evaluate and Argue any Appeal"
THE VERDICT, a publication of the Alameda-Contra Costa Trial Lawyers' Association, Summer 2012
"Preserving Appellate Review of Trial Court Exclusion of Evidence"
THE VERDICT, a publication of the Alameda-Contra Costa Trial Lawyers' Association
Speaking Engagements
“Tales from the Appellate Bench”, State Bar Convention, Monterey, CA
State Bar of California
Moderated a panel with Presiding Justice Scotland of the Third District Court of Appeal, Justice Zelon of the Second District Court of Appeal, and Richard McAdams of the Sixth District Court of Appeal on what appellate courts look for and dangers in the appellate process, from preserving the record through oral argument
“Timeline between Verdict or Intended Decision and Notice of Appeal”, Pleasanton, CA
Eastern Alameda County Bar Association
Discussed the procedural requirements and traps involved in the preservation of issues for appeal and deadlines for filing post-trial motions and deadlines for filing notice of appeal.
Certifications
Certified Specialist in Appellate Law
State Bar of California Board of Legal Specialization
Websites & Blogs
Website
www.schreiberappeals.com
Legal Answers
6 Questions Answered

Q. .” How did the appellate court decide on the trial court’s action? In the RKO v Weirum Case (1975)
A: The California Supreme Court affirmed the trial court award of damages in plaintiff's favor. The appellant parent company of an LA radio station held an on-air contest as to who could find one of the station's djs, in which 2 teenage listeners drove so quickly through traffic they caused an accident, injuring the plaintiff. On appeal RKO argued that it owed no duty to the plaintiff. The Supreme Court held that while duty is a question of law, one of the factors in determining duty is forseeability, and that forseeability is a question of fact, and that the record contained substantial evidence of forseeability. The Court held that it was forseeable that contest like this during the summer would draw young drivers who would drive too fast through LA streets in order to win the contest. As a result the Supreme Court affirmed the judgment in plaintiff's favor.
Q. 1 gets judgment against 2 and 3, who both appeal. 2’s appeal dismissed, 3's successful. Is 2 subject to judgment still?
A: There are too many variables missing in this question to give a definitive answer. In the abstract it would appear that yes, 2 is still subject to the judgment, but this question is more complicated than that. There are a bunch of unanswered questions here: on what basis was 3's appeal successful? Did the reason apply to both 2 and 3 or were the reasons for reversal for 3 unique to 3's appeal? Were 2 and 3 were found liable at trial for the same cause of action or different causes of action? Were any damages awarded against 2 and 3 for the same damages or different damages? Were the damages awarded were joint and several against 2 and 3, meaning that 1 can collect for all of his damages against both 2 or 3 up to the total amount of damages awarded. Was there an apportionment of damages and if so, how much was apportioned to 2? To 3?
Q. Should a petition for Writ filed in court appeals be different from one filed superior
A: Actually, trial court orders denying a petition for writ of mandamus are usually appealable and begin by filing a notice of appeal in the trial court within 60 days of notice of the entry of that order. There are exceptions to that rule, such as proceedings brought under the Public Records Act, and under Business & Professions Code section 2337, which limits appellate review of a trial court decision revoking, restricting, or suspending a license, to petitions for writ of mandate, prohibition, or other extraordinary relief. If your case falls within one of the exceptions to the rule of appealability and a writ petition is necessary to file in the appellate court, then yes, the petition filed in the appel late court must be different than that filed in the trial court. First, you must be aware and state the appropriate standard of review for the appellate court to use, and be cognizant of that standard in making your arguments. Second, the record or exhibits filed with the appellate court and the writ petition must be complete. That means that all important filings in the trial court that relate to the ruling must be included in the exhibits, including the moving and opposing papers, operative pleadings, the order from which review is sought, and a reporter's transcript of the trial court proceedings (which means arranging for a court reporter in the trial court). If the record is not complete the appellate court can dismiss the writ petition on that basis alone.
Q. What issues differentiate a De Novo review from a Independant review?
A: De novo review and independent review are actually generally the same thing. They both refer to the standard of review used by the appellate court concerning an issue of law. Issues of law include interpretation of a statute, constitutional provision, ordinance, or regulation, or interpretation of a contract clause when there is no conflicting testimony as to what the clause means. There is also an issue of law on appeal and therefore independent or de novo review when the facts are undisputed. Appellate courts review issues of law independently because they are in as good as, or better position than, trial courts in addressing such issues. Therefore appellate courts do not defer to a trial court ruling on an issue of law. By contrast, with factual issues like did something happen or not, or what color was the traffic light, or was a witness telling the truth, the trial court is in a better position than the appellate court, which can merely look at a transcript of testimony, to determine whether that witness is telling the truth, since the judge or jury can look at the witness' expression and determine whether they think the witness is being honest. This subject is actually very important in appeals.
Q. DESCRIBE ERRONEOUS FRAUD ?HOW DOES IT DIFFER FROM EXTRINSIC T FRAUD?
A: Extrinsic fraud or mistake is the type of fraud or mistake that prevents a party from participating in the proceedings in the trial court. An attorney (or party if unrepresented) is not provided notice of a motion hearing date or a trial date and therefore literally is unable to participate in the proceedings at that time. The other type is known as intrinsic fraud and that is based on the subject matter of the case. There, if a party makes a misleading or false statement, the other party can expose that misleading or false statement by cross-examination.
Q. Do you have to go through a trial before filing a case with the state supreme court?
A: Normally not only do you need to go through trial, but for all but death penalty cases you need to appeal and have a decision from the appellate court, then file a petition for review with the California Supreme Court asking them to review your case. Supreme Court review is very rare; less than 10% are granted review. Grounds for review are generally only when resolving an important issue of law or resolving conflicts between decisions of the different California appellate courts.
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Contact & Map
Law Offices of John T. Schreiber
1255 Treat Blvd., Suite 300
Walnut Creek, CA 94597
USA
Telephone: (925) 472-6620
Fax: (707) 361-5629