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.

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Tag: Trial Irregularities and Structural Errors

There’s Actually a Big Difference Between Motions for Nonsuit and Judgment: A Rebuttal to Prof. Martin

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders.

That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d ----, 2022 WL 1438723.

But I disagree with Prof. Martin about whether this structural error should result in automatic reversal. Prof. Martin thinks it should not, because the trial court granted a judgment under Code of Civil Procedure section 63.8 after the plaintiff rested his case in chief. Prof. Martin takes this to mean that sending the matter back for a jury trial would just waste everyone’s time.

I suggest that Prof. Martin has overlooked that a trial judge making a judgment under section 631.8 is sitting as a trier of fact. It is not a judgment as a matter of law like a nonsuit or JNOV.

So Prof. Martin and I agree that the Court of Appeal here got it right. But the fact that the plaintiff could not persuade the judge does not mean it would be futile to afford him his constitutional right to try to persuade a jury.

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Employee Challenging Defense Verdict on Appeal Could Not Overcome the Difficult "Finding Compelled as a Matter of Law" Standard of Review

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

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