Articles

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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Trial attorneys also might also be interested in the California Appellate Law Podcast, co-hosted by Tim Kowal. To listen, visit www.CALPodcast.com, or subscribe in your favorite podcast player.
 
November 23, 2020
Checking the Wrong Box on Your Notice of Appeal May Result in Dismissal

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 Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal.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 […]

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November 18, 2020
Legal Writing Tips of the Day

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 […]

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November 17, 2020
No Safe Harbor Required to Sanction Frivolous Anti-SLAPP Motion, Fourth District Holds

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 […]

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November 13, 2020
Failing to Exercise Discretion Is an Abuse of Discretion

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 […]

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November 12, 2020
Cal. Courts Split on Whether 998 Offers Apply in Employment Cases

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. […]

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November 11, 2020
CA Supreme Court to Review Whether In Person Civil Trial May Commence

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 […]

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November 11, 2020
Keep this handy, attorneys -- you may need it someday.

“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).

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November 10, 2020
FYI: Acronyms Are DOA

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 […]

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November 10, 2020
Appeal Held Not Frivolous, But Lawyer Argued It Frivolously

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 […]

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November 5, 2020
Attorney Sanctioned $22,000 for Frivolous Motion, Narrowly Avoids More Sanctions for Frivolous Appeal

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 […]

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November 4, 2020
The Moment When You Learn Your Client's Confidential Communications Are Not Covered by the Common-Interest Doctrine

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 […]

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November 4, 2020
Can't the Trial Attorney Just Handle the Appeal?

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.

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November 4, 2020
Courtroom Do's and Don't's – from a Clerk's Perspective

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. […]

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November 3, 2020
Character Evidence, Even of Really, Really Bad Character, Is Not Admissible

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 […]

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October 30, 2020
Family Law Appeals: The Cal. Appellate Law Podcast Episode 6

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 […]

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October 30, 2020
The SLAPP That Breaks the Camel's Back

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 […]

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October 29, 2020
Music Festival Liable for Foreseeable Harm at Festival -- Are Dodgers Liable for Foreseeable Violence Following Series Win?

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 […]

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October 28, 2020
An Order Resuming Civil Litigation of a Matter Previously Compelled to Arbitration Is Likely an Appealable Order

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 […]

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October 23, 2020
Measure Twice, Redact Once

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 […]

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October 21, 2020
New Discovery Cutoff Extensions, and Other Civil Procedure Updates

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 […]

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October 20, 2020
What Oral Argument on Appeals Tells You About Your Chances of Prevailing

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 […]

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October 16, 2020
Appellate Reversal Rate Up, Time to Process Appeals Up, Per Cal. Court Stats Report Some interesting information about California appellate courts from the 2020 Court Statistics Report:

-- 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 […]

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October 14, 2020
Holdout Juror Ousted for Seeking Counsel About Alleged Mistreatment by Other Jurors

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? […]

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October 13, 2020
Is Reconsideration Even Jurisdictional?

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 […]

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October 12, 2020
Updates from the Fourth Appellate District

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 […]

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October 12, 2020
The Trouble with Unpublished Opinions

 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 […]

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October 12, 2020
Recovering Costs for Unused Trial Exhibits

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 […]

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October 5, 2020
Brush Up on Your 998 Offers

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 […]

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October 3, 2020
Cal Appellate News for Lawyers (Oct. 5, 2020): Juror Peremptory Challenges, Appealability of SLAPP Orders, Appeal Bonds, 170.6 Challenges After Appeal, and More

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.

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September 26, 2020
Peremptory Challenges and Motions for Reconsideration: California Appellate Law Podcast Episode 5 (Sept. 26, 2020)

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.

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September 25, 2020
Cal Appellate News for Lawyers (Sept. 25, 2020)

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.

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September 18, 2020
Cal Appellate News for Lawyers (Sept. 18, 2020)

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.

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September 10, 2020
Cal Appellate News for Lawyers (Sept. 10, 2020)

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.

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August 30, 2020
Cal Appellate News for Lawyers (Aug. 31, 2020)

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?!

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August 11, 2020
Appeals of Preliminary Injunctions: California Appellate Law Podcast Episode 4 (Aug. 11, 2020)

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. Episode 4 discusses cases and procedures in appealing preliminary injunctions. 

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July 20, 2020
Appeals and Summary Judgments: California Appellate Podcast Episode 3 (Jul. 20, 2020)

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.

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July 3, 2020
When Are Nonappealable Orders Actually Appealable? Orders on Demurrers and Summary Judgment: California Appellate Podcast Episode 2 (Jul. 3, 2020)

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.

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July 1, 2020
Appeals and Anti-SLAPP Law: California Appellate Law Podcast Episode 1 (Jul. 1, 2020)

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.

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April 24, 2020
ASSET-PROTECTION UPDATE: QPRTS MAY BE DEEMED REVOCABLE!

In a recently affirmed decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...

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April 24, 2020
WHEN BRIEFING APPELLATE ISSUES, LESS IS MORE

An attorney pursuing an appeal may be tempted to raise any and all arguments - however flimsy - before...

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April 24, 2020
A DEFAULT JUDGMENT WAS ENTERED AGAINST YOU WITHOUT YOUR KNOWLEDGE. WHAT CAN YOU DO?

In today's litigious society, parties are quick to sue others but, due to the demands of life, defendants will oftentimes overlook...

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April 24, 2020
ATTENTION ESTATE PLANNERS: QPRTS MAY BE DEEMED REVOCABLE!

In a recent decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable...

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April 24, 2020
BANK ORDERED TO PAY HOMEOWNERS’ ATTORNEY FEES FOR IMPROPER “DUAL-TRACKING”

Distressed homeowners subject to lender "dual-tracking" do not need to wait until the end of a lawsuit to recover attorneys' fees...

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April 24, 2020
BLACK-AND-WHITE STATUTE OF LIMITATION FOR ATTORNEY-MALPRACTICE ACTIONS GETS A FRESH COAT OF GRAY

The one-year period to bring an action for malpractice typically begins after the lawyer last represented you...

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April 24, 2020
BROKERS: GET YOUR COMMISSION AGREEMENTS IN WRITING!

"We are all familiar with the phrase, "caveat emptor": Buyer beware. This case deals with its less renowned cousin...

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April 24, 2020
CALIFORNIA SUPREME COURT: PUBLIC RECORDS ACT COVERS PUBLIC OFFICIALS’ & EMPLOYEES’ PRIVATE DEVICES

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...

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April 24, 2020
CAN A TRIAL COURT REDUCE ATTORNEYS’ FEES IN A SETTLEMENT?

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...

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April 24, 2020
CHECKMATING A CHECKERS OPPONENT WITH CCP § 998 OFFERS

If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick...

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April 24, 2020
COLLECTING AGAINST SPENDTHRIFTS IN BANKRUPTCY, JUDGMENT COLLECTION

In our February newsletter, we noted the California Supreme Court was reviewing whether the ambiguous spendthrift protections...

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April 24, 2020
DOES THE JUDICIARY UNDERSTAND JUDICIAL ADMISSIONS?

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...

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April 24, 2020
EMPLOYER UNDERPAYS DEPARTING EMPLOYEE $300, GETS STUCK WITH $30,000 FOR EMPLOYEE’S LEGAL FEES

Is an employee leaving? Pay up. Pay in full. There is no 'A' for effort...

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April 24, 2020
EMPLOYERS CAN PROTECT THEIR WORKFORCE WITHOUT ENGAGING IN UNLAWFUL RESTRAINT OF TRADE

Retaining key personnel is vital to the success of any enterprise. However, the law's prohibition of trade restraints often makes it difficult...

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April 24, 2020
FINDING JUSTICE IN THE GRINDING GEARS OF LITIGATION

The right judgment is not always the just result...

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April 24, 2020
IF A CHOICE-OF-LAW CLAUSE MATTERS, SO DOES THE FORUM

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...

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April 24, 2020
IRREVOCABLE TRUSTS: NOT FOOLPROOF ASSET PROTECTION DEVICES

Irrevocable trusts are often used to protect assets from the reach of creditors, but courts have chipped away...

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April 24, 2020
LITIGATION-FUNDING INDUSTRY CONTINUES TO GROW

With the recent publicity of Hulk Hogan's lawsuit against Gawker Media, and specifically the funding of the lawsuit...

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April 24, 2020
OF GOOD FENCES, BAD NEIGHBORS, AND RECOVERING LEGAL COSTS

"It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation...

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April 24, 2020
PATIO FURNITURE DOES NOT ESTABLISH AN EQUITABLE EASEMENT

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...

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April 24, 2020
POKEMON MAKER SEEKS DISMISSAL OF NUISANCE & DISGORGEMENT SUIT

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...

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April 17, 2020
SLAPP NEWS: CALIFORNIA SUPREME COURT REITERATES, AGAIN, THAT WRONGDOING IS NOT “SPEECH” JUST BECAUSE SOMEONE TALKED ABOUT IT

The high court recently published Park v. Trustees of the Cal. State Univ., reversing a split appellate-panel decision.

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April 17, 2020
YOU MAY BE ABLE TO LIMIT “CONSEQUENTIAL DAMAGES" IN YOUR CONTRACTS

Despite best efforts to reduce expectations to a written contract, one can rarely estimate with much accuracy...

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November 28, 2018
A DEFENSE LAWYER'S COMPLAINT: SOME JUDGES DON'T GET IT ABOUT JUDICIAL ADMISSIONS

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...

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October 15, 2017
DIRTY WORK: DISGORGING THE PROFITS OF TRESPASSING PIPELINES

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...

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