Last updated on June 5, 2025 by Tim Kowal
The Court of International Trade—whatever that is—enjoined Trump’s tariffs. But the Court of Appeal for the Federal Circuit imposed an administrative stay pending further briefing. We also cover: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page. Sign up for Not To...
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Last updated on May 29, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: The first case in the US, it appears, in which a defendant was sentenced to death for starting a wildland fire. People v. Oyler (Cal., May 5, 2025, No. S173784) You have probably...
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Last updated on May 28, 2025 by Tim Kowal
The Supreme Court faulted the district judge in A.A.R.P. v. Trump for refusing to grant the Venezuelan alleged Tren de Aragua members’ injunction. But on remand, Judge Ho comes to the judge’s defense: after all, the judge only had 42 minutes’ notice. And to conclude that the judge had had some 14 hours, Judge Ho...
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Last updated on May 27, 2025 by Tim Kowal
The latest entry to the split in the Court of Appeal over whether the Federal Arbitration Act preempts the California Arbitration Act’s harsh 30-day pay-or-waive deadline under Code of Civil Procedure section 1281.98 is Sanders v. Superior Ct. of Los Angeles Cnty., (D2d7 May 6, 2025, No. B340707), as modified (May 14, 2025). See prior...
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Last updated on May 23, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Supreme Court “rescue mission”? The high court is not a “court of error,” meaning the lower courts can really screw the pooch and yet review still will be denied unless the Court sees...
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Last updated on May 20, 2025 by Tim Kowal
SCOTUS spent two and a half hours hearing oral argument on Friday in the birthright-citizenship cases consolidated in Trump v. CASA—not about birthright citizenship, but about whether district courts should be issuing nationwide injunctions. Many justices, and commentators on both sides, have criticized nationwide injunctions as a judicial incursion into executive policymaking in both Republican...
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Last updated on May 7, 2025 by Tim Kowal
Trump’s executive order targeting Perkins Coie gets bench-slapped. Jeff recites the decision’s paean to the plight of lawyers. Tim wonders if Big Law was really hanging by such a slender thread. But on the law, neither is surprised by the result in Perkins Coie v. DOJ. Also this week: Appellate Specialist Jeff Lewis' biography, LinkedIn...
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Last updated on May 6, 2025 by Tim Kowal
The trial court decided an anti-SLAPP motion without a hearing, but the Court of Appeal concluded in *Chang v. Brooks* (2D3d, Mar. 14, 2025, No. B320278) (nonpub. opn.) that, while it is error not to give litigants the due process of a hearing, that error was not reversible without a showing of prejudice. In this...
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Last updated on April 29, 2025 by Tim Kowal
A civil litigant, hit with $200,000 sanctions for plotting the kidnapping and murder of the defendant, gets the sanctions reversed. Next week the California Supreme Court will hear oral argument on whether the state can mandate long-term care facility employees to use residents’ preferred pronouns. If this is consistent with the First Amendment, could conservative...
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Last updated on April 28, 2025 by Tim Kowal
After the plaintiff kidnapped and conspired to murder the defendant in their business lawsuit *Razuki v. Malan* (D4d1 Mar. 20, 2025, No. D082560) (non-pub. opn.), the trial court imposed civil sanctions against the plaintiff of $200,000. But the Court of Appeal reversed. Kidnapping certainly is “bad faith” conduct under Code of Civil Procedure section 128.5,...
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Last updated on April 16, 2025 by Tim Kowal
Apple said no jab, no job. The actor sued. The Court of Appeal holds the jab policy is expressive conduct, and thus the suit was a SLAPP. Apple Studios dropped an actor from its Manhunt miniseries over a COVID vaccine mandate. The actor sued. Apple filed an anti-SLAPP motion—and won. Jeff and Tim break down...
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Last updated on by Tim Kowal
A $10M sexual harassment verdict was reversed in Odom v. Los Angeles Community College District (D2d8., Apr. 7, 2025, No. B327997) because the judge allowed the plaintiff to prove her case using improper “me-too” evidence. But don’t get the impression that a verdict is likely to get reversed just because of a bad evidentiary ruling....
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Last updated on April 8, 2025 by Tim Kowal
In 2020 and 2021, public health professionals declared that large gatherings of unvaccinated and untested protesters were “vital to the national public health” to express the important issue of awareness of George Floyd’s death. A few months later, Apple, casting the role of Andrew Johnson for its series Manhunt, concluded that “masking, periodic testing, and...
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Last updated on April 3, 2025 by Tim Kowal
Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he’s only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees...
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Last updated on April 2, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Can an attorney sign as to only part of a pleading? Alan Dershowitz signed a complaint. The complaint contained frivolous allegations. But wait! Dershowitz says he was only “of counsel” and was only...
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Last updated on April 1, 2025 by Tim Kowal
If you want to challenge a sanctions award over $5,000, you have to appeal now—if you wait, you lose. So when a discovery referee in Glickman v. Krolikowski (4D3d, Mar. 7, 2025, No. G064853) 2025 WL 732088 [pub. opn.] allocated most of the discovery costs to Krolikowski, he did the smart thing and appealed. After...
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Last updated on March 26, 2025 by Tim Kowal
Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his...
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Last updated on March 19, 2025 by Tim Kowal
A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted...
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Last updated on March 12, 2025 by Tim Kowal
Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience. And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips: The goal is to reduce "friction." If...
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Last updated on March 6, 2025 by Tim Kowal
On demurrer, the plaintiff saw his main claim—though not the entire case—get gutted. So the plaintiff decided to dismiss the rest of his claims and appeal. After all, you can do that in this situation. But how you do it matters. A lot. The holding of Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30,...
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Last updated on March 5, 2025 by Tim Kowal
Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972....
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Last updated on March 4, 2025 by Tim Kowal
If you are forced to prove a key fact at trial after the other party refuses to to simply admit them in response to a request for admission, a California discovery statute entitles you to recover your attorneys’ fees. It doesn’t even matter if you aren’t the prevailing party: when a party should simply admit...
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Last updated on February 25, 2025 by Tim Kowal
The challenge to the electronic-recording ban, in a rare original writ petition in the California Supreme Court, will progress to the merits. The Court has invited the respondent Superior Courts of Contra Costa, Los Angeles, Santa Clara, and San Diego to file a return in April 2025 showing cause why Court should not order them...
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Last updated on February 19, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: 🗯️Watch what you say in your appellate briefing extension. Attorneys commonly explain that they need an extension because the case is “very complex.” But if your appeal is arguing that the fee award...
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Last updated on February 18, 2025 by Tim Kowal
Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news...
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Last updated on February 14, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: ChatGPT Fail: Remember last year when ChatGPT “hallucinated” leading a solo attorney to cite a couple nonexistent cases? Well, a couple of Big Law attorneys from Morgan and Morgan, “America’s largest injury law...
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Last updated on February 12, 2025 by Tim Kowal
Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this. Tim goes solo while Jeff is...
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Last updated on February 11, 2025 by Tim Kowal
Add another entry to the split in the Court of Appeal over whether the Federal Arbitration Act preempts the California Arbitration Act’s harsh 30-day pay-or-waive deadline. Following the no-preemption side in Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here), and closely parsing the arbitration agreement’s less-than-complete invocation of the FAA, the First District...
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Last updated on February 6, 2025 by Tim Kowal
If you pay your arbitration fees late, there is a penalty. That penalty, under the California Arbitration Act, is that you are deemed to have waived arbitration. In a split decision last year in *Hernandez v. Sohnen Enters.* (discussed here), the Court of Appeal held that, when the parties’ agreement specifies the Federal Arbitration Act,...
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Last updated on February 5, 2025 by Tim Kowal
My presentation Trial Mastery: Developing a Winning Strategy and Preserving Critical Issues, is now available at LawPracticeCLE available here. In the presentation I cover my Top 10 Appellate Tips for before, during, and after trial. I also offer these insights: There is a big difference between the story you tell at trial, and the record....
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