Legal News and Appellate Tips

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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Harmless Error

The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early, Court Holds

should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor.

How long is the 21-day safe harbor? There is now a published decision to tell us. The answer, according to Transcon Financial, Inc. v. Reid & Hellyer, APC (D4d2 Jul. 22, 2022 no. E076728) 81 Cal.App.5th 547, is that the 21-day safe harbor is no less than 21 days. A sanctions motion filed on the 21st day is too early. So the order granting that sanctions motion was reversed on appeal.

But I have a question about this.

The opinion contained no real analysis how the shortened safe harbor prejudiced the plaintiff or its attorney here. The purpose of the safe harbor is to provide a reasonable time for the offending party to reconsider its pleading. True, the plaintiff was deprived one day of that period. But there was no mention in the opinion that the plaintiff withdrew its pleading after the sanctions motion was filed. And a review of the docket indicates the offending complaint was not withdrawn. To the contrary, the defendants filed a demurrer to the complaint, and the plaintiffs opposed the demurrer.

So where is the prejudice? The court did not say that the safe-harbor provision is jurisdictional. The court also did not say that the error defies review for harmlessness. And there was pretty clearly no prejudice. So what is going on here?

Read More
Judgment Infected with Dozens of Errors, Still Affirmed (Mostly) on Appeal

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

Read More

Tags

Podcast (129)
Videos (110)
Appealability and Appealable Orders (40)
Legal Writing (29)
Anti-SLAPP (29)
Oral Argument (26)
Mischief (25)
Statements of Decision (25)
Abuse of Discretion (24)
Splits of Authority (23)
Record on Appeal (23)
Waiver and Forfeiture (22)
Timely and Untimely Appeals (22)
Unpublished Opinions (22)
Stays on Appeal (22)
Notices of Appeal (21)
California Supreme Court (21)
Judgment Enforcement (20)
Arbitration (19)
Attorney Fees (18)
Briefing (18)
Sanctions (16)
Trial Strategy (16)
Dismissals (15)
Evidentiary Objections (14)
Writ Petitions (13)
Summary Judgments and Summary Adjudications (13)
Dissents (13)
Collateral Orders (13)
Appellate Sanctions (13)
Preliminary Injunctions (13)
Mootness (12)
Civility (12)
Timeliness (12)
Exclusion of Evidence (12)
Dismissed Appeals (12)
Jurisdiction (12)
New Trial Motions (12)
Posttrial Motions (11)
Experts (11)
Family Law (11)
Trial Procedure (11)
CCP 998 Offers (11)
Federal Courts (11)
Motions for Reconsideration (10)
Standards of Review (10)
Implied Findings (10)
Admission of Improper Evidence (9)
Appellate Briefing (9)
Respondent Arguments (8)
Disqualification (8)
Appealability (8)
Settlements (8)
Discovery (7)
Stipulated Judgments (7)
Ninth Circuit (7)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (7)
Pretrial Procedure (7)
Probate Appeals (7)
Appellate Bonds (7)
Default Judgments (7)
Appellate Practice (7)
Trial Irregularities and Structural Errors (7)
Federal Appeals (7)
Disentitlement Doctrine (6)
Substantial Evidence (6)
Litigation Tips (6)
Mediation (6)
Petitions for Review (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Trust and Probate (5)
Excessive Damages (5)
Summary Judgments (5)
Standing (5)
Right to Jury Trial (5)
Demurrers (5)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Legal Ethics and Professional Responsibility (5)
Appealable Orders (4)
Stipulated Reversals (4)
Jury Instructions (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Motions to Dismiss (4)
Expert Opinions (4)
Frivolous Motions (4)
Motions to Vacate (4)
Prejudicial Error (4)
Tentative Rulings (4)
Pretrial Issues (3)
Legal Tech (3)
Juror Peremptory Challenges (3)
Writs of Mandamus (CCP 1085) (3)
Class Actions (3)
Forfeiture and Waiver (3)
Personal Jurisdiction (3)
Standards of Evidence (3)
Summary Judgment (3)
Jury Waivers (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Amicus Briefs (3)
Law and Motion (3)
Stays (3)
Tentative Opinions and Focus Letters (3)
Constitutional Law (3)
Legal Practice (3)
Recovery of Costs (3)
Attorney Client Privilege (2)
Civil Theft (2)
Invited Error (2)
Remote Arguments (2)
Appeals Dismissed (2)
Contempt (2)
Post Reversal Issues (2)
ADA and Unruh Accessibility Actions (2)
Court Reporters (2)
Clear and Convincing (2)
Persuasion (2)
U.S. Supreme Court (2)
Judicial Admissions (2)
Judicial Bias (2)
Alter Ego (2)
Medical Rights (2)
Stare Decisis (2)
Trial by Reference and Pro Tem Judges (2)
Harmless Error (2)
Untimeliness (2)
Comments (2)
Pleadings (2)
Record Designation (2)
Mistrials (2)
New Trial (2)
Premature Appeals (2)
Podcasts (2)
Waiver (2)
Finality and Final Orders (2)
PAGA Actions (2)
Split Decisions (1)
Trial Tips (1)
Inherent Authority (1)
Post-Appellate Issues (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Referral Fees (1)
Third Parties and Nonparties (1)
Constitutional Litigation (1)
PAGA Attorney Fees (1)
Split of Authority (1)
Motions for Judgment on the Pleadings (1)
Post Reversal (1)
Ninth CircuitAbuse of Discretion (1)
Forfeiture (1)
Per Se Errors (1)
Typeface (1)
Attorney Fees - CCP 1021.5 (1)
Issue Selection on Appeal (1)
Typography (1)
Attorney Feese (1)
DismissalsAppealability and Appealable Orders (1)
PostJudgment Litigation (1)
Administrative Law (1)
Exhaustion of Remedies (1)
Nonsuit (1)
Product Liability (1)
Restraining Orders (1)
Trade Restraints (1)
Covid (1)
Free Exercise (1)
Local Rules (1)
Attorney Misconduct (1)
Clerks Service of File Stamped Judgment (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Treble Damages (1)
Cross-Appeals (1)
Bankruptcy (1)
Motions to Quash (1)
Precedent (1)
Closing Argument (1)
Notice of Appeal (1)
Property Rights (1)
Review as Writ Petition (1)
Trespass (1)
Petitions for Rehearing (1)
Unsupported Arguments (1)
Benefits Obtained Trespass Damages (1)
Judicial Estoppel (1)
Preclusion (1)
Summary Reversal (1)
Family Court (1)
Punitive Damages (1)
Memorandum Opinions (1)
State Civil Procedure Comparison Project (1)
Employment Law (1)
Judicial Misconduct (1)
Summary Reversals (1)
Anecdotes (1)
Law of the Case (1)
Record (1)
Erie Problems (1)
Judicial Notice (1)
New Arguments (1)
Support Awards (1)
Common Interest Doctrine (1)
Settled Statements (1)
Designating the Record (1)
Inconsistent Verdicts (1)
Waived and Forfeiture (1)
Judicial Philosophy (1)
Consenting to Judgments (1)
Legal News (1)
Out-of-State Litigant (1)
Art of Persuasion (1)
Dicta (1)
Incorrect Decisions (1)
Moot Appeals (1)
Civil Code 3334 (1)
Premises Liability (1)
No categories Legal Writing (0)
Appellate (0)
Professional Ethics (0)
Retainer Agreements (0)
Petitionf ro Review (0)
Landlore Tenant (0)
crossmenuchevron-down