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: Implied Findings

Statement of Decision Missteps in Three Recent Appeals

Did you request a statement of decision?

Did you object to the proposed statement of decision?

These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, or even when a statement of decision has been issued, by failing to object to omissions or defects to give the trial court the opportunity to correct them.

By failing any of the procedural steps in perfecting the record on the statement of decision, the deadline "implied findings" doctrine will be invoked, by which the Court of Appeal will simply infer that the trial court quietly implied any and all findings needed to affirm the judgment. That doctrine almost guarantees affirmance.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
Appellate Court Holds Respondent Forfeited Issues and Failed to Establish Implied Findings

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in their judgments before exposing them to the crucible of appeal.

Upshot: Do not overlook the statement of decision process at the end of a critical hearing or bench trial. The statement of decision is often the single most important document the Court of Appeal will review. Either party may drastically alter the meaning and effect of that document by making a strategic request for findings under Code of Civil Procedure section 632 and Rules of Court rule 3.1590.

Read More
Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, and the trial court granted his motion despite its untimeliness.

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements to establish them on appeal. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

Affirmed.

Read More
Court Abused Its Discretion by Denying $4M Sanctions Request for Abusive Discovery

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. […]

Read More
Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

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 […]

Read More

Tags

Podcast (30)
Videos (18)
Waiver and Forfeiture (15)
Notices of Appeal (13)
Abuse of Discretion (12)
Legal Writing (12)
Appealability and Appealable Orders (9)
Sanctions (8)
Splits of Authority (8)
Appealability (8)
Attorney Fees (7)
Motions for Reconsideration (7)
Oral Argument (7)
Dismissals (7)
Federal Courts (7)
Arbitration (6)
Civility (6)
Statements of Decision (6)
Record on Appeal (6)
Ninth Circuit (6)
Stays on Appeal (6)
Timeliness (6)
Anti-SLAPP (5)
CCP 998 Offers (5)
Posttrial Motions (5)
Dissents (5)
Unpublished Opinions (5)
Evidentiary Objections (5)
Substantial Evidence (5)
Implied Findings (5)
Respondent Arguments (5)
Briefing (5)
Trial Procedure (5)
Appellate Sanctions (4)
Disqualification (4)
Family Law (4)
Appellate Bonds (4)
Admission of Improper Evidence (4)
Judgment Enforcement (4)
Standards of Review (4)
Preliminary Injunctions (4)
Default Judgments (4)
Motions in Limine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Notices of Entry (3)
Timely and Untimely Appeals (3)
Appellate Practice (3)
Discovery (3)
Jurisdiction (3)
Depublished Opinions (3)
California Supreme Court (3)
Mootness (3)
Summary Judgment (3)
Dismissed Appeals (3)
New Trial Motions (3)
Ethical Duty of Candor (3)
Appealable Orders (3)
Experts (3)
Stipulated Judgments (3)
Standing (3)
Trust and Probate (3)
Probate Appeals (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Exclusion of Evidence (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Jury Waivers (2)
Personal Jurisdiction (2)
Summary Judgments and Summary Adjudications (2)
Motions to Vacate and Set Aside Judgments (2)
Summary Judgments (2)
Tentative Rulings (2)
Landlord Tenant (2)
Collateral Orders (2)
Excessive Damages (2)
Appeals Dismissed (2)
Invited Error (2)
Writ Petitions (2)
Waiver (2)
Untimeliness (2)
Stays (2)
Pretrial Procedure (2)
Pretrial Issues (2)
Disentitlement Doctrine (2)
Class Actions (2)
Civil Theft (1)
Treble Damages (1)
Premises Liability (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
Trial by Reference and Pro Tem Judges (1)
PAGA Attorney Fees (1)
Law and Motion (1)
Petitions for Review (1)
Issue Selection on Appeal (1)
Contempt (1)
Remote Arguments (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
ADA and Unruh Accessibility Actions (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Expert Opinions (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Motions to Dismiss (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Attorney Fees - CCP 1021.5 (1)
Moot Appeals (1)
Judicial Bias (1)
Appellate Briefing (1)
Pleadings (1)
Judicial Estoppel (1)
Harmless Error (1)
Prejudicial Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Trial Strategy (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Mediation (1)
Settlements (1)
Split Decisions (1)
Appeals Treated as Writs (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Legal Practice (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Post Reversal Issues (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Demurrers (1)
Motions to Vacate (1)
Mischief (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down