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

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.

Covid EXTENSIONS Have Expired, But Covid EXCUSES May Still Work

The First Appellate District (Rowan v. Kirkpatrick, A160568) observes that while the Covid-related extended deadlines have passed, "Courts have long recognized the policy, based on the remedial character of the right of appeal, to accord that right in doubtful cases when it can be accomplished without doing violence to applicable rules." The court concludes: "Here, however, Kirkpatrick does not contend she was prevented in any way from timely filing notices of appeal...."

Which suggests -- does it not? -- that the Court was prepared to consider other circumstances amounting to good cause to extend the time to appeal.

(Is it sinking in that appellate deadlines are not truly "jurisdictional" as it is often said?)

Supreme Court: Affirmed, But Don't Count On It Happening Again

Clients with sympathetic cases often ask about their remedies in the state Supreme Court. But the Supreme Court does not look at cases the way the Court of Appeal looks at cases, and certainly not the way the trial court looks at cases.

Case in point: A 10-year-old boy died from a bacteria carried by a pet rat his grandmother bought from Petco. Defense judgment for Petco.
The Fourth Appellate District in Pankey v. Petco Animal Supplies, Inc., holds: “a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.”
Justice Dato dissents: a rat fits the legal definition of "product."

The Supreme Court denies review. So the decision of the Fourth District stands. But the Supreme Court also depublishes the Fourth District's opinion.

So what is the lesson of this case? Does the boy's family come away with justice? Do pet retailers come away with a dependable defense?

Your thoughts?

Amazon Held Strictly Liable for Product Defect

Expect to hear more about this.

Plaintiff bought a "Lenoge Technologies HK Ltd." laptop battery from Amazon. The battery exploded while plaintiff was using it, causing serious burns and hospitalization. Plaintiff sued Amazon, and Amazon moved for summary judgment, which was granted.

Fourth Appellate District: Reversed. Amazon inserted itself into the chain of distribution. Amazon charged for the purchase, and stored, packaged, and delivered the product.

The U.S. Chamber of Commerce appeared as amicus for Amazon here.

Bolger v., LLC (8/13/20) D4d1 case no. D075738, available at

Clear and Convincing Standard Applies on Appeal

More ink on the recent holding that the clear-and-convincing standard must be considered on appeal. ( Paywall. Here is a short, free post:
Previous cases held it fell away on appeal, and fact findings were all reviewed under the deferential "substantial evidence" standard. But even that rule was not without exception. For example:

“the erroneous application of the preponderance of the evidence standard rather than the clear and convincing evidence standard . . . . have analyzed the error under the Watson standard [People v. Watson (1956) 46 Cal.2d 818] and required a showing it was reasonably probable the appellant would have achieved a more favorable result under the proper standard of proof.” (Conservatorship of Person, supra, 218 Cal.App.4th at p. 535.)

So if the trial court did not apply the clear and convincing standard, now more than ever it is a good issue to consider raising on appeal.

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