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: Waiver

Even the Devil Gets Ensnared in Appellate Procedure: Satanic Temple's Arguments Held Waived on Appeal

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. The plaintiffs tried the case on an as-applied discrimination theory, and when they lost, moved for new findings under a facial discrimination theory.

Held: The new theory was waived because it was not raised in the pretrial statement. And it was not raised in the opening brief, either. The reviewing court will not be the Devil's advocate, either figuratively or literally.
The Satanic Temple's excerpts of record were also stricken because they failed to comply with the rules.

Read More
Can You Waive or Stipulate to Standing Defects? Court of Appeal Says Yes

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to.
But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. The First District concluded the county waived any standing defects by stipulating to petitioner's standing.

But I am not so sure about this. Standing is a jurisdictional requirement. And when dealing with a jurisdictional objection the party cannot waive it, or stipulate to it, or otherwise be bilked out of it by those nice appellate doctrines routinely trotted out to affirm a judgment.

Nonetheless, the result is otherwise correct, so: Affirmed.

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Unpublished Opinions (22)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)
Ninth Circuit (7)
Stipulated Judgments (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)
Personal Jurisdiction (3)
Forfeiture and Waiver (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)
Recovery of Costs (3)
Constitutional Law (3)
Legal Practice (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)
Premature Appeals (2)
New Trial (2)
Podcasts (2)
Waiver (2)
PAGA Actions (2)
Finality and Final Orders (2)
Post-Appellate Issues (1)
Split Decisions (1)
Trial Tips (1)
Inherent Authority (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
PAGA Attorney Fees (1)
Referral Fees (1)
Third Parties and Nonparties (1)
Constitutional Litigation (1)
Post Reversal (1)
Split of Authority (1)
Motions for Judgment on the Pleadings (1)
Ninth CircuitAbuse of Discretion (1)
Per Se Errors (1)
Forfeiture (1)
Typeface (1)
Attorney Fees - CCP 1021.5 (1)
Issue Selection on Appeal (1)
PostJudgment Litigation (1)
Typography (1)
Attorney Feese (1)
DismissalsAppealability and Appealable Orders (1)
Nonsuit (1)
Product Liability (1)
Administrative Law (1)
Exhaustion of Remedies (1)
Restraining Orders (1)
Trade Restraints (1)
Covid (1)
Free Exercise (1)
Local Rules (1)
Attorney Misconduct (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Clerks Service of File Stamped Judgment (1)
Treble Damages (1)
Cross-Appeals (1)
Precedent (1)
Bankruptcy (1)
Motions to Quash (1)
Notice of Appeal (1)
Property Rights (1)
Closing Argument (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Trespass (1)
Preclusion (1)
Unsupported Arguments (1)
Benefits Obtained Trespass Damages (1)
Judicial Estoppel (1)
Punitive Damages (1)
Summary Reversal (1)
Family Court (1)
Memorandum Opinions (1)
State Civil Procedure Comparison Project (1)
Employment Law (1)
Judicial Misconduct (1)
Record (1)
Summary Reversals (1)
Anecdotes (1)
Law of the Case (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)
Out-of-State Litigant (1)
Consenting to Judgments (1)
Legal News (1)
Art of Persuasion (1)
Dicta (1)
Incorrect Decisions (1)
Moot Appeals (1)
Premises Liability (1)
Civil Code 3334 (1)
No categories Legal Writing (0)
Appellate (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
Landlore Tenant (0)
crossmenuchevron-downThe owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.