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: Trial Strategy

Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

Read More
Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

One problem: courts really don’t like section 496. They worry that lawyers will overuse it and turn every garden-variety loan or business-tort case into a civil-theft case. So there arose a split of authority, with some cases enforcing section 496, and others refusing to enforce it.

Breaking the split, the California Supreme Court kept this powerful tool intact. In Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312, the Court held the civil-theft remedies under section 496 applied to a case involving diversion of partnership cash.

But the Court did not throw open the floodgates. The Court noted that the concerns expressed by section 496 naysayers do “give pause.” And Justice Groban, joined by Justice Kruger, concurred to note they do not read the majority as endorsing civil-theft penalties in “most consumer or commercial transactions.”

If you have a civil case involving fraud that amounts to something akin to theft by false pretenses, consider seeking remedies under Penal Code section 496(c). Do not get too creative. But under Siry Investments, policy concerns are no longer a valid basis to refuse to enforce section 496. **

Read More
Lessons on Persuasion, From Science & Beyond, with Stefan Love

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a person to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.

Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s *Persuasion Science for Trial Lawyers*, and whether it is scientific, or just common sense. Advice like:

• Excessive information can lead to worse, not better, decisions.
• Juries learn better with pictures. But avoid competition for resources: do not use written word, spoken word, and images all at the same time. It creates overload.
• You should not present all your evidence at trial, because it overloads the jury’s cognitive capacity.
• Judges who strive to run ruthlessly efficient trials should reconsider: eliminating downtime actually undermines jurors’ ability to process the information.
• For the same reason, trial lawyers should slow down, use repetition, and even stop talking every now and then.

Read More
An Advanced Class in Making the Record, with Jimmy Azadian

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

Read More
A Clever Rhetorical Device Closing Argument Avoided a “Golden Rule” Violation and Earned an $18M Verdict

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.

In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.

The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel. In effect, the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?

No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.

A very effective argument. For which the jury returned a verdict of $18 million.

Read More
No Fee Agreement, But $239,000 Fees Awarded as "Costs of Proof" for Failing to Admit RFAs

Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?

That's what the defendants got in *Spahn v. Richards* (D1d3 Nov. 30, 2021) __ Cal.Rptr.3d (2021 WL 5576615, no. A159495) as costs-of-proof fees.

The RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence. I had never envisioned costs-of-proof fees to encompass substantially all of the case. But that seems to be the upshot here. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution. This is something to consider implementing into your case strategy.

Read More
The Trouble with Voluntary Dismissals

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

But I offer a few words of caution about strategic voluntary dismissals. When the "writing is on the wall" as it was in this case, authorities suggest the time to dismiss without prejudice is over.

Read More
Challenge to Extraordinarily Large $25M Mesothelioma Verdict Rejected on Appeal Because Challenge Not Based on "Minutes of the Court"

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And one way to demonstrate that might be to compare verdicts in similar cases.

That is what the defendant-appellant tried after it was hit with a $25 million noneconomic verdict in the mesothelioma case of Phipps v. Copeland Corp. (D2d7 May 18, 2021) 278 Cal.Rptr 3d 688 (2021 WL 1973560). The appellant compiled 15 comparable cases into a report, and submitted that with a declaration in support of its motion for a new trial. But the trial court excluded the report as irrelevant and denied the motion. On appeal, the appellant argued the trial court erred in this ruling because verdicts in other cases were relevant.

Held: The compilation of other cases was not based on "the minutes of the court" under Code of Civil Procedure section 658, and thus could not be considered as a basis to reduce damages on a motion for new trial. Affirmed.

This analysis seems harsh, but it is based on the statutes. Do not rely on declarations in a new trial motion. Support your motion based on the court minutes.

I find it noteworthy the court decided this case the way it did. The court apparently did as well, as it published the opinion. This signals a bigger uphill climb for defendants challenging large jury verdicts. This is an important reason to have appellate counsel present at trial.

Read More
The Risks of Serving Too Many Interrogatories

CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories".

The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). And a bonus appellate tip.

The CEB article is available here: https://lnkd.in/gCx62BwX.

My original article is here: https://lnkd.in/g4xJfid7.

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

Read More
Exclusion of Expert Data Affirmed on Appeal; But Exlusion of Expert Opinion Based on That Data Reversed

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion may be an abuse of discretion.

That is the holding of the published opinion in Zuniga v. Alexandria Care Center, LLC (D2d7 Aug. 13, 2021) 2021 WL 3579021 no. B297023. In an employee's PAGA claim, the employee-plaintiff retained two experts. One expert was retained to convert the employer's time records into an Excel spreadsheet. The second expert was retained to opine on the spreadsheet. It was an abuse of discretion to exclude the second expert's opinion merely because it was based on the first expert's excluded report.

And trial counsel may have acted shrewdly in resting her case after the devastating ruling without offering other evidence, as it made it very easy to establish the ruling prejudiced her case.

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

Read More
Following Demurrer Ruling, Plaintiff Voluntary Dismisses Claims to Expedite Appeal, but Dismisses Without Prejudice: Appeal Dismissed

Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case, yet evade direct appellate review.

There are strategies available to get direct appellate review of certain interlocutory orders. But they should be used with caution.

In the racial discrimination case of Brown v. Arizona Diamondbacks (D3 Aug. 9, 2021) no. C091629 (nonpub. opn.), the trial court sustained the Diamondbacks' demurrer to the plaintiff's claim for racial harassment. Rather than amend, the plaintiff voluntarily dismissed his claims to expedite the appeal. This strategy was sound – or would have been, had he dismissed with prejudice. But he dismissed without prejudice. That was his undoing. His appeal of the demurrer ruling was dismissed.

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

Read More
Appellate Court Cites Unpublished Opinion to Support Reasonableness of Pain-and-Suffering Award

Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)

In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 (unpublished), the Second District also provides a good illustration for personal-injury plaintiffs how to get key evidence into the record, and how to make a judgment more appeal-proof through the use of jury instructions.

This is another installment in a series of posts about ways appellate courts have cited unpublished cases, despite Rule of Court 8.1115. These cases might inspire ideas of how, with a little ingenuity, you too might bring up unpublished cases. But there is one thing you can bank on: if ever we find an example of someone being sanctioned for violating 8.1115, the perpetrator will not be an appellate justice. So follow these judges' examples, if at all, with extreme caution.

Read More

Tags

Podcast (101)
Videos (90)
Appealability and Appealable Orders (34)
Legal Writing (26)
Abuse of Discretion (24)
Mischief (22)
Unpublished Opinions (21)
Anti-SLAPP (21)
Splits of Authority (20)
Notices of Appeal (19)
Stays on Appeal (19)
California Supreme Court (19)
Statements of Decision (18)
Waiver and Forfeiture (18)
Record on Appeal (17)
Attorney Fees (16)
Arbitration (16)
Judgment Enforcement (15)
Oral Argument (14)
Dismissals (14)
Sanctions (13)
Dissents (13)
Briefing (12)
Evidentiary Objections (12)
Exclusion of Evidence (12)
Trial Strategy (12)
Preliminary Injunctions (11)
Timeliness (11)
Family Law (11)
Timely and Untimely Appeals (11)
New Trial Motions (11)
Mootness (11)
Collateral Orders (11)
Jurisdiction (11)
Appellate Sanctions (11)
CCP 998 Offers (11)
Civility (10)
Experts (10)
Federal Courts (10)
Motions for Reconsideration (10)
Dismissed Appeals (9)
Writ Petitions (9)
Implied Findings (9)
Posttrial Motions (9)
Summary Judgments and Summary Adjudications (9)
Settlements (8)
Appealability (8)
Trial Procedure (8)
Disqualification (7)
Default Judgments (7)
Ninth Circuit (7)
Probate Appeals (7)
Respondent Arguments (7)
Stipulated Judgments (6)
Admission of Improper Evidence (6)
Appellate Bonds (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Standards of Review (6)
Mediation (6)
Motions to Vacate and Set Aside Judgments (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Depublished Opinions (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Trial Irregularities and Structural Errors (5)
Standing (5)
Petitions for Review (5)
Motions to Vacate (4)
Expert Opinions (4)
Trust and Probate (4)
Notices of Entry (4)
Frivolous Motions (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Excessive Damages (4)
Litigation Tips (4)
Disentitlement Doctrine (4)
Prejudicial Error (3)
Landlord Tenant (3)
Tentative Rulings (3)
Appealable Orders (3)
Frivolous Appeals (3)
Stays (3)
Recovery of Costs (3)
Demurrers (3)
Pretrial Procedure (3)
Appellate Briefing (3)
Summary Judgment (3)
Amicus Briefs (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Motions to Dismiss (3)
Jury Instructions (3)
Jury Waivers (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Contempt (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
Class Actions (2)
Record Designation (2)
Appeals Dismissed (2)
Premature Appeals (2)
ADA and Unruh Accessibility Actions (2)
Law and Motion (2)
Harmless Error (2)
Podcasts (2)
Pretrial Issues (2)
Stipulated Reversals (2)
PAGA Actions (2)
Alter Ego (2)
Legal Practice (2)
Remote Arguments (2)
Post Reversal Issues (2)
Comments (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Untimeliness (2)
Trial by Reference and Pro Tem Judges (2)
Invited Error (2)
Constitutional Law (2)
Forfeiture and Waiver (2)
Attorney Client Privilege (2)
Waiver (2)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Attorney Fees - CCP 1021.5 (1)
Third Parties and Nonparties (1)
Covid (1)
Settled Statements (1)
Typeface (1)
Attorney Feese (1)
Judicial Estoppel (1)
New Arguments (1)
Writs of Mandamus (CCP 1085) (1)
Clear and Convincing (1)
Family Court (1)
Mistrials (1)
Typography (1)
Attorney Misconduct (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
U.S. Supreme Court (1)
Bankruptcy (1)
Employment Law (1)
Judicial Notice (1)
Closing Argument (1)
Referral Fees (1)
Trade Restraints (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Benefits Obtained Trespass Damages (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Treble Damages (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Unsupported Arguments (1)
Ninth CircuitAbuse of Discretion (1)
Per Se Errors (1)
Trespass (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Anecdotes (1)
Common Interest Doctrine (1)
Restraining Orders (1)
Nonsuit (1)
Consenting to Judgments (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Waived and Forfeiture (1)
Civil Code 3334 (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Motions to Quash (1)
Preclusion (1)
Stare Decisis (1)
Civil Theft (1)
Exhaustion of Remedies (1)
Punitive Damages (1)
Support Awards (1)
Constitutional Litigation (1)
Free Exercise (1)
Landlore Tenant (0)
Appellate (0)
Split of Authority (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
Notice of Appeal (0)
crossmenuchevron-down