After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October: A recent (published) decision […]
Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.
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After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October: A recent (published) decision […]
I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. […]
Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or […]
Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other […]
The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. […]
Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50." The […]
In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day […]
...But that's nitpicking, innit? In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge […]
Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251. […]
In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked […]
Most attorneys will, at some point or another in their careers, find they have failed to make a court appearance. When that happens, an order to show cause (OSC) will […]
Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only […]
When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to […]
Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out […]
In this commercial lease dispute, the trial court abused its discretion in not one, not two, but three different ways when it awarded contractual fees to the losing defendant. In Waterwood […]
Bookmark Penal Code section 496 and Bell v. Feibush (D4d3 2013) 212 Cal.App.4th 1041, if you have not already, which together hold that failing to pay back a loan could subject the […]
You may be surprised to learn that an attorney's 25% referral arrangement discussed orally with the client, and reduced to a writing signed by the client, is not enough to […]
Take care in drafting your notice of appeal, but if you notice you have made an error, all is not lost. The California Supreme Court's January 2020 opinion in K.J. v. […]
Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.) After a business dispute was decided against […]
Trial by reference will become very common, I suspect, as trial courts continue to limit their availability due to Covid. A key advantage over arbitration: preservation of the right of […]
In Doe v. Regents of the University of California (1st Dist., Div. 4 Nov. 30, 2020) No. A158704 (unpublished), a third-year med student at UCSD examined a 12-year-old girl brought in by her mother […]
If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may […]
One bit of conventional wisdom that’s frequently heard about appellate review in California is that if a Court of Appeal opinion isn’t published, seeking Supreme Court review is a hopeless […]
You have a deep bag of tricks as a respondent on appeal to win affirmance of your judgment. One of those tricks is forfeiture: if appellant did not raise an […]
A recent case out of the Fourth Appellate District in Orange County affirms a finding of contempt against an attorney for his conduct during a 15-minute settlement conference, including persistent […]
If you question witnesses at trial close to the line of privileged communications, be sure the judge gives the mandatory instruction, if your adversary asks for it, against drawing improper […]
It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer. In Regueiro v. FCA US, LLC (2d Dist., Div. […]
Defendant was hit with a $103k fee award under the UFTA (fraudulent transfer statutes). In fact, there is no published California authority holding there is such a right to fees […]
Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the […]
So holds Provost v. Yourmechanic, Inc., No. D076569 (D4d1 Oct. 15, 2020), where an employee alleging misclassification and wage-and-hour claims, both individually and as a PAGA representative, defeated employer's motion […]
Recently on the California Appellate Law Podcast, we covered AB 3070, which imposes new procedures when making a peremptory challenge of a juror, including providing a valid reason for the challenge […]
Remote Appellate Arguments Could Be Here to Stay According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments […]
A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal […]
So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant […]
Two recent cases caution litigants to take special care when preparing a notice of appeal. Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal. […]
A few good tips came across my desk this week. Use in good health. 1. Via Bryan Garner's LawProse (# 351): Before launching thoughtlessly into a grab-bag of arguments, tell […]
Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult […]
Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. […]
If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim […]
Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a […]
“Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder.” Unitherm Food v. Swifteckrich, 546 U.S. 394, 407 (2006) (Stevens, J., dissenting).
Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms: "The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local […]
The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as […]
In fairness, I have seen much worse arguments than this. On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, […]
Do not take the common-interest privilege for granted if you represent a client in multiple-party litigation. In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2020 U.S. Dist. LEXIS 128725, […]
I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team.
Sean Thomas Lobb has Tips Learned While Clerking in Orange County in the November OC Lawyer magazine. Some takeaways: DO: Cite well-reasoned decisions from the same federal district court – […]
The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid […]
TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we […]
You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland (D1d2 […]
An event operator may be liable when an event attendee dies after engaging in foreseeable illegal activity at the event -- overdosing on illegal drugs. So holds the Second Appellate […]
In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in […]
If you have ever held a redacted document up to the light to see the redacted text, you know other attorneys are doing the same. In a redacted PDF, you […]
Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" […]
Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate […]
-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think […]
A holdout juror in a murder case talked to an attorney about being badgered by the other jury members. The attorney appears in court to inform the judge about the […]
The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, […]
At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: […]
Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still […]
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The […]
Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up […]
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: more on the coming changes to juror peremptory challenges, appellate pitfalls on reconsideration motions, appeal bonds, 170.6 challenges after appeal, are Subway sandwiches "confectionary" products? and more.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 5 discusses California cases and procedures in impacting making and challenging peremptory challenges to jurors and motions for reconsideration.
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: big changes coming to juror peremptory challenges, appellate pitfalls on reconsideration motions, and the difficulty in establishing reversible error.
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition, Covid-based excuses may garner extended appellate deadlines.
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: extended CA jurisdiction over out-of-state retailers, ADA liability over online-only businesses, courtroom pandemic changes, and pitfalls on new-trial motions.
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 4 discusses cases and procedures in appealing preliminary injunctions.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 3 of the California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 2 of the California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted Code of Civil Procedure section 425.16 which provides a mechanism for quickly dismissing frivolous lawsuits and awarding attorney’s fees to the defendant. The law applies to lawsuits that arise from free speech or petitioning activity, such as filing a lawsuit.
In a recently affirmed decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...
An attorney pursuing an appeal may be tempted to raise any and all arguments - however flimsy - before...
In today's litigious society, parties are quick to sue others but, due to the demands of life, defendants will oftentimes overlook...
In a recent decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...
Distressed homeowners subject to lender "dual-tracking" do not need to wait until the end of a lawsuit to recover attorneys' fees...
The one-year period to bring an action for malpractice typically begins after the lawyer last represented you...
"We are all familiar with the phrase, "caveat emptor": Buyer beware. This case deals with its less renowned cousin...
In the high-profile case City of San Jose v. Superior Court, the California high court recently held: "when a city employee uses a personal account to communicate...
Leeman v. Adams Extract & Spice Co. (Cal. Ct. App. May 21, 2015) says no. As they routinely do, a Prop-65 toxic-chemicals-warning case settles for a trifling amount of penalties but a heaping portion of attorneys' fees...
If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick...
In our February newsletter, we noted the California Supreme Court was reviewing whether the ambiguous spendthrift protections...
The judicial admission is a simple concept: when you take a position in a pleading, discovery response, or open court, you're stuck with it...
Is an employee leaving? Pay up. Pay in full. There is no 'A' for effort...
Retaining key personnel is vital to the success of any enterprise. However, the law's prohibition of trade restraints often makes it difficult...
The right judgment is not always the just result...
A recent opinion of the California Court of Appeal held a New York choice-of-law clause was ineffective to enforce a party's waiver...
Irrevocable trusts are often used to protect assets from the reach of creditors, but courts have chipped away...
With the recent publicity of Hulk Hogan's lawsuit against Gawker Media, and specifically the funding of the lawsuit...
"It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation...
In a recent property-dispute opinion, the Second District in Shoen v. Zacarias came to the perfectly sensible decision that equity is not aroused by a trespasser's inconvenience...
Pokemon Go-maker Niantec moved to dismiss the class action that alleges the wildly popular app causes droves of users to trespass on private property...
The high court recently published Park v. Trustees of the Cal. State Univ., reversing a split appellate-panel decision.
Despite best efforts to reduce expectations to a written contract, one can rarely estimate with much accuracy...
Originally published in Verdict
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A man is handing out leaflets in the train station, an old Soviet joke has it, when he is stopped by an officer. Examining the leaflets, the officer discovers they are just blank pieces of paper...
Originally published in OC Lawyer
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There are two kinds of developers: the pessimist, who sees a glass as half-empty, and the optimist, who sees the glass as four-fifths empty...