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The Recorder Publishes Josephine Petrick’s Analysis of Three Civil Appellate Splits to Watch in 2026
“California Appellate Splits of Authority to Watch in 2026,” the first in a series of articles for The Recorder/Law.com by Josephine K. Petrick, published on February 18. Josephine takes a close look at three civil splits of authority spanning entertainment, free speech, consumer protection, and fee recovery.
The article examines:
Anti-SLAPP Applicability to Idea Theft (Desny) Claims
When creatives submit an idea with the expectation of compensation if used, California law allows them to enforce that implied contract when their idea is stolen. Desny v. Wilder, 46 Cal. 2d 715 (1956). But do such claims “arise from” protected speech activity for purposes of the anti-SLAPP statute, Cal. Code Civ. Proc. Section 425.16, enacted decades after Desny?
California courts are divided and the split creates significant uncertainty for California’s creative industries and anyone who pitches ideas, from Hollywood to Silicon Valley.
Definition of “Unfair” Business Practices Post-Cel-Tech
California’s Unfair Competition Law (UCL) prohibits “unfair” business practices, Cal. Bus. & Prof. Code Section 17200, but courts are divided on what “unfair” means in consumer cases—a question with enormous practical implications for consumer class actions statewide. The lingering uncertainty forces both plaintiffs’ and defense counsel to argue in the alternative, complicates settlement negotiations, and leaves businesses guessing at compliance standards.
Prevailing-Party Fee Awards to Attorneys Who Represent a Spouse
In Trope v. Katz, 11 Cal. 4th 274 (1995), the Court held that self-represented attorneys cannot recover fees as a matter of public policy—including treating pro se attorneys on equal footing as other pro se litigants—and because they have not literally “incurred” any such fees. The lower courts have split on whether and when Trope should apply to attorneys who successfully represent spouses in litigation. The inconsistency in appellate decisions means that spousal fee recovery depends on geography rather than a uniform standard. Until the California Supreme Court resolves the split, litigants should argue each line of authority in the alternative to maximize their chances of prevailing.
Read Josephine’s article here.