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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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 Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal. When the trial court sustained two demurrers to his complaint, the plaintiff in Renfro v. Kai-Lieh Chen, F076083 (D5 Apr. 6, 2020), used the Judicial Council […]
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 your reader how many arguments to expect. If it is a long list, give signposts where your arguments are going before sending your reader on […]
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 procedural hurdles of CCP 128.5, which requires a separate motion served 21 days before filing it? The Fourth Appellate District, Division Two, says yes, finding […]
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. In my appellate practice, however, I have seen a number of discretionary orders -- a small number, but a significant number -- that may be […]
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 could be made to pay employer's costs under CCP 1032. That rule is adopted in the Fourth District, Div. 2. But the Second District, Div. […]
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 writ. Now the Supreme Court has granted review on the question: "During the current pandemic, may a trial court compel participation in a large in-person […]
“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 Exchange Carriers, and “CLEC” for Competitive Local Exchange Carriers, but we prefer the use of the English language and deplore the practice of using acronyms […]
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 argued." An appeal frivolous as-filed is one where the decision is "plainly correct" so there is no genuine appealable issue. But an appeal may be […]
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, but the case is stayed and sent to arbitration at AAA. Through a clerical error, AAA doesn't acknowledge receipt of defendants' arbitration fees, and administratively […]
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, at *3-4 (N.D. Cal. July 7, 2020), Finjan held board meetings attended by a representative of Cisco, an investor who had a contractual right to […]
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 – even UN-published decisions! DON'T: Use legalese. It's like biting into the frozen center of a microwave burrito. DO: Make focused, targeted arguments to tentative rulings. […]
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 detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that […]
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 discuss: Hiding Bitcoin from your spouse is a righteously bad idea, and claiming you don't have to deliver her half of the Bitcoin because it […]
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 Sept 17, 2020) A157330. The Court does not merely affirm the order denying, without prejudice, the City of Oakland's SLAPP motion. No, the Court reverses […]
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 District in Dix v. Live Nation Entertainment, Inc. (D2d7 Oct. 26, 2020) B289596. Live Nation hosted a large "electronic music" festival at the Pomona Fairplex with 65,000 attendees. It […]
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 arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court […]
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 might be able to copy and paste the obscured text. I've also seen redactions made with black boxes that could simply be moved aside. Here's […]
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" upon continuance or postponement of trial. That includes discovery, expert discovery, and summary judgment motions. It also provides at Code Civ. Proc., § 2035.310 that […]
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 judges, there is little to report back to the client. This new analysis gives you something to say. Appellate attorney Kirk Jenkins has an analysis […]
-- 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 about appealability and timeliness issues!) -- Last year saw the most depublished opinions in a decade. Not by a lot. But I find it noteworthy […]
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 conflict. The judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes. A Sixth Amendment violation? […]
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, the First District reversed an order granting reconsideration of a prior judge's ruling, even though the motion was procedurally invalid. The court traced a split […]
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: Justice Judith McConnell from Division One (San Diego), Justice Manuel Ramirez from Division Two (Riverside), and Justice Kathleen O'Leary from Division Three (Santa Ana). Some […]
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 more frustrating is that you cannot prevent judges from reading unpublished decisions that are unfavorable to your case, or from relying on those opinions. A […]
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 California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether 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 for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a […]
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...