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: Statements of Decision

Appeal of Excessive Damages Rejected Because Not First Raised in New Trial Motion

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The court held the appellant forfeited any challenge to defects in the statement of decision by failing to object in the trial court, and forfeited the arguments that the award was excessive because it was not raised in a motion for new trial.

The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

Read More
Selecting Issues for Appeal? Look for Misapplication of the Legal Standard, Like in This Attorney Fee Case

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The trial judge thought she did not have authority to apply a "negative multiplier" to reduce block-billed fees. That was incorrect. So back down the case goes.

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
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
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?!

Read More

Tags

Podcast (85)
Videos (73)
Appealability and Appealable Orders (27)
Abuse of Discretion (23)
Legal Writing (21)
Notices of Appeal (18)
Statements of Decision (17)
Waiver and Forfeiture (16)
Unpublished Opinions (16)
Stays on Appeal (16)
Splits of Authority (15)
Mischief (15)
Attorney Fees (14)
Arbitration (14)
Dismissals (14)
Anti-SLAPP (13)
Dissents (12)
Briefing (12)
Family Law (11)
Record on Appeal (11)
New Trial Motions (11)
Mootness (10)
Timeliness (10)
Sanctions (9)
Appellate Sanctions (9)
Civility (9)
Judgment Enforcement (9)
Oral Argument (9)
California Supreme Court (9)
Preliminary Injunctions (9)
Evidentiary Objections (9)
Collateral Orders (9)
Federal Courts (9)
Motions for Reconsideration (8)
Exclusion of Evidence (8)
Timely and Untimely Appeals (8)
Jurisdiction (8)
Implied Findings (8)
Appealability (8)
Dismissed Appeals (8)
Experts (8)
Trial Strategy (8)
CCP 998 Offers (7)
Summary Judgments and Summary Adjudications (7)
Respondent Arguments (7)
Ninth Circuit (7)
Writ Petitions (7)
Trial Procedure (7)
Probate Appeals (7)
Disqualification (6)
Appellate Bonds (6)
Admission of Improper Evidence (6)
Standards of Review (6)
Appellate Practice (6)
Discovery (6)
Substantial Evidence (6)
Stipulated Judgments (6)
Settlements (6)
Posttrial Motions (5)
Default Judgments (5)
Ethical Duty of Candor (5)
Standing (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Notices of Entry (4)
Depublished Opinions (4)
Motions to Vacate and Set Aside Judgments (4)
Excessive Damages (4)
Trust and Probate (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Petitions for Review (3)
Jury Waivers (3)
Summary Judgments (3)
Expert Opinions (3)
Motions to Dismiss (3)
Summary Judgment (3)
Appealable Orders (3)
Mediation (3)
Stays (3)
Demurrers (3)
Motions to Vacate (3)
Amicus Briefs (3)
Trial Irregularities and Structural Errors (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Trial by Reference and Pro Tem Judges (2)
Law and Motion (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Remote Arguments (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Personal Jurisdiction (2)
ADA and Unruh Accessibility Actions (2)
Tentative Rulings (2)
Landlord Tenant (2)
Judicial Bias (2)
Prejudicial Error (2)
Appeals Dismissed (2)
Invited Error (2)
Waiver (2)
Untimeliness (2)
Legal Practice (2)
Finality and Final Orders (2)
Pretrial Procedure (2)
Federal Appeals (2)
Alter Ego (2)
Post Reversal Issues (2)
Pretrial Issues (2)
Class Actions (2)
Comments (2)
Medical Rights (2)
Premature Appeals (2)
Legal Tech (2)
Civil Theft (1)
Treble Damages (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
PAGA Attorney Fees (1)
Issue Selection on Appeal (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Premises Liability (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (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)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Attorney Fees - CCP 1021.5 (1)
Judicial Estoppel (1)
Harmless Error (1)
Record Designation (1)
Typeface (1)
Typography (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)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Consenting to Judgments (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Restraining Orders (1)
Summary Reversal (1)
Judicial Misconduct (1)
Stipulated Reversals (1)
Constitutional Litigation (1)
Constitutional Law (1)
Mistrials (1)
Administrative Law (1)
Podcasts (1)
Writs of Mandamus (CCP 1085) (1)
Nonsuit (1)
Closing Argument (1)
Stare Decisis (1)
Settled Statements (1)
Nonsuits JNOVs and 631.8 Judgments (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