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Appellate News for Lawyers

Cal Appellate News for Lawyers (Sept. 18, 2020)

Tim Kowal     September 19, 2020

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

Covid EXTENSIONS Have Expired, But Covid EXCUSES May Still Work

The First Appellate District (Rowan v. Kirkpatrick, A160568) observes that while the Covid-related extended deadlines have passed, "Courts have long recognized the policy, based on the remedial character of the right of appeal, to accord that right in doubtful cases when it can be accomplished without doing violence to applicable rules." The court concludes: "Here, however, Kirkpatrick does not contend she was prevented in any way from timely filing notices of appeal...."

Which suggests -- does it not? -- that the Court was prepared to consider other circumstances amounting to good cause to extend the time to appeal.

(Is it sinking in that appellate deadlines are not truly "jurisdictional" as it is often said?)


Supreme Court: Affirmed, But Don't Count On It Happening Again

Clients with sympathetic cases often ask about their remedies in the state Supreme Court. But the Supreme Court does not look at cases the way the Court of Appeal looks at cases, and certainly not the way the trial court looks at cases.

Case in point: A 10-year-old boy died from a bacteria carried by a pet rat his grandmother bought from Petco. Defense judgment for Petco.
The Fourth Appellate District in Pankey v. Petco Animal Supplies, Inc., holds: “a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.”
Justice Dato dissents: a rat fits the legal definition of "product."

The Supreme Court denies review. So the decision of the Fourth District stands. But the Supreme Court also depublishes the Fourth District's opinion.

So what is the lesson of this case? Does the boy's family come away with justice? Do pet retailers come away with a dependable defense?

Your thoughts?


Amazon Held Strictly Liable for Product Defect

Expect to hear more about this.

Plaintiff bought a "Lenoge Technologies HK Ltd." laptop battery from Amazon. The battery exploded while plaintiff was using it, causing serious burns and hospitalization. Plaintiff sued Amazon, and Amazon moved for summary judgment, which was granted.

Fourth Appellate District: Reversed. Amazon inserted itself into the chain of distribution. Amazon charged for the purchase, and stored, packaged, and delivered the product.

The U.S. Chamber of Commerce appeared as amicus for Amazon here.

Bolger v. Amazon.com, LLC (8/13/20) D4d1 case no. D075738, available at https://lnkd.in/gk-_dFa.

Clear and Convincing Standard Applies on Appeal

More ink on the recent holding that the clear-and-convincing standard must be considered on appeal. (https://lnkd.in/g4dhaDc. Paywall. Here is a short, free post: https://lnkd.in/ghVeSpD.)
Previous cases held it fell away on appeal, and fact findings were all reviewed under the deferential "substantial evidence" standard. But even that rule was not without exception. For example:

“the erroneous application of the preponderance of the evidence standard rather than the clear and convincing evidence standard . . . . have analyzed the error under the Watson standard [People v. Watson (1956) 46 Cal.2d 818] and required a showing it was reasonably probable the appellant would have achieved a more favorable result under the proper standard of proof.” (Conservatorship of Person, supra, 218 Cal.App.4th at p. 535.)

So if the trial court did not apply the clear and convincing standard, now more than ever it is a good issue to consider raising on appeal.

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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"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

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"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

"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.)

"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

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

— H.L. Mencken

“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

"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

"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

"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

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