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California Appellate News for Lawyers

Cal Appellate News for Lawyers (Sept. 10, 2020)

Tim Kowal     September 10, 2020

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.

Beware Appealing Questions of Law on a Preliminary Injunction: Does New Jersey's ban on large capacity magazines violate the Second Amendment?
Third Circuit: We already decided that it does not when we denied the plaintiffs' motion for a preliminary injunction, so we're bound by the law of the case and cannot reconsider.

There is a vigorous dissent. But the affirmance of the preliminary injunction in the prior case ends this one.


h/t Institute for Justice

More CA Jurisdiction Means More Jobs for CA Plaintiff Lawyers California plaintiffs may sue an out-of-state online seller for operating a website that fails to comply with CA accessibility laws, a recent Fourth District decision holds. Though the GA seller does not direct sales to CA, the Court found specific jurisdiction because 8% of its sales were to CA.

But CA represents 12% of the national population, so the seller actually UNDERSOLD to CA.

I am having Wickard v. Filburn flashbacks -- perhaps all commerce may soon be regulable under CA law via private action?

Justice Menetrez dissents: "The Fairfield website is no more directed at California residents than at anyone else on Earth who speaks English and has access to the Internet."

And an appellate zinger: The appeal is from an unsigned minute order. There are very fine lawyers who will tell you, rotely -- perhaps even involuntarily, as though by muscle memory -- that minute orders are not appealable. As this case illustrates, this advice should come with a very big asterisk!
Calif. App. Court (4th Dist) Rejects Jurisdictional Challenge in Website Accessibility Case | Lexology

Pre-Trial Waivers of Jury Trial Not Enforceable in CA -- even in the guise of a forum-selection clause.
So ruled a CA Superior Court recently. (https://lnkd.in/dQwpq35)

But it is not really news, as the First District Court of Appeal held the same a few years ago. (https://lnkd.in/diNW5bV)

And contractual jury waivers have been held invalid for some time. (https://lnkd.in/dWC5bME)

So your right to a civil jury trial is still safe.
We still do not know when we will ever hold civil jury trials again.
But you still have a right to one.
In theory.


This Is Your Second Warning: A Second California State Court Judge Says the ADA Covers Online-Only Businesses
If you are not sure whether your website is ADA compliant, contact a professional website developer immediately... before a professional ADA plaintiff contacts you!
A Second California State Court Judge Says the ADA Covers Online-Only Businesses

Will Trial Courtrooms Pandemic Changes Become Permanent? Michigan Chief Justice Bridget McCormack testified recently to a Congressional subcommittee that the pandemic "may be the disruption we needed to transform our judiciary into a more accessibly, transparent, efficient and customer-friendly branch of government."

“There’s something about the equalizing nature of all the Zoom boxes being the same size that makes people feel more heard and more respected,” she said. “Maybe it’s just less intimidating.”

"We must rebuild what we do from the ground up and create a 21st century justice system.”


Meanwhile, appellate practice also surges toward progress at a dizzying pace. This recent article on "Typography for Judges" signals what's ahead: "Real em dashes — not two hyphens autocorrected as en dashes."

I guess what counts as major technological advances may be relative.

No File-Stamp, No CRC 8.104 60-day Appellate Deadline
Appellant waited to file a notice of appeal more than 90 days after the appealable order. Respondent moved to dismiss the appeal, which was denied. In the full opinion, the First District explains, yes, the order was appealable, but because it was not "file stamped" by the clerk, the 60-day deadline did not apply.

That was a bold move by Appellant, with no upside. I would not advise hanging the fate of your appeal on the existence of a file stamp.

And had Respondent served a Notice of Entry, the appeal would have been dismissed as untimely.


Valuable Lesson on Appealing New-Trial Motions: Do Not Get Greedy
Verdict against US Bank for wrongful term plaintiff: $24.4 million.
Judgment after bank's successful New Trial motion: $5.6 million.

Bank then appeals, unsuccessfully.
This was a very bad move for bank. Here is why:

Plaintiff, having consented to the remittur in the judgment, waived his right to appeal. But when bank appealed, plaintiff had the right to cross-appeal, which he did. The Court agreed with plaintiff's cross-appeal, and reversed parts of the new trial order reducing the award.

Result: Modified judgment of $17.1 million. Triple what he had before bank appealed.

Insult to injury: US Bank's challenge to irregularity at trial was waived because US Bank failed to include its memorandum of points and authorities in support of its new trial motion in its appellant's appendix on appeal.

King v. U.S. Bank N.A., No. C085276 (D3 Jul.28, 2020), C085276.PDF

Traffic Medians Are Free Speech Zones
Free speech rights on Facebook? Twitter? YouTube? Y'know, the places where everyone is?
Private platforms, so -- likely not.

But a right to speak from traffic medians? Tenth Circuit says: Yes! (Though concurrence worries about really narrow medians.)

Aren't Constitutional rights amazing? They're like the weeds that grow between the cracks in the pavement. Or in the traffic medians.

(For curious cases like this you really ought to follow the delightful Institute for Justice weekly newsletter.)


Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

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