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The End of Hallucinated Cases: Ross Guberman's RealityCheck Arrives

Last updated on April 8, 2026 by Tim Kowal
Legal writing authority Ross Guberman has been busy absorbing AI tools into his popular BriefCatch and now-related suite of writing tools. Ross returns to discuss how BriefCatch cousin app RealityCheck uses a traditional authority base plus AI power to ruthlessly search and destroy hallucinations in your briefs. Who else is using RealityCheck? Courts. So let...Read More >>

Appeals Survival Guide: How Good Cases Die on Appeal

Last updated on March 30, 2026 by Tim Kowal
Last month I had the pleasure of presenting to the Orange County Bar Association on a topic I return to often: how good cases die on appeal, not because the appellant was wrong on the merits, but because avoidable procedural mistakes made reversal impossible before the briefing even began. The talk was titled the "Appeals...Read More >>

Below the Fold: Vaccine Penalties, Civility Decline, and Procedural Pitfalls

Last updated on January 26, 2026 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: Administering vaccines without disclosing contraindications can get your license pulled. If you're a veterinarian, that is. (There are far lighter penalties, I'm afraid, for lackadaisical administration of human vaccines.) Deol v. California Veterinary...Read More >>

An attorney’s duty to say “no”

Last updated on January 22, 2026 by Tim Kowal
Even if the client “earnestly believes” something to be true—and even if you, the attorney, “earnestly believe” it—without evidence, you can’t say it in court. Publishing its opinion in N.D. v. E.F. (D4d3 Jan. 20, 2026) case no. G066061 (nonpub. opn.) as a “cautionary tale,” attorney T. Matthew Phillips gets sanctioned $25,000 for violating this...Read More >>

Payment Under Protest Preserves Your Right to Appeal

Last updated on January 21, 2026 by Tim Kowal
Prevail at arbitration? Make sure your arbitrator rules on your fees and costs, or they may be waived. And no, voluntarily paying a judgment does not automatically forfeit your appeal. Usually. Those two potential pitfalls arose in Garrett & Tully, P.C., v. Aliso Properties, LLC, et al., (D2d3, Dec. 9, 2025, No. B332463) (non-pub. opn.)....Read More >>

An attorney is now a “vexatious litigant” for filing five unsuccessful writs and appeals

Last updated on October 22, 2025 by Tim Kowal
As an attorney, you might not be surprised to learn that—if you file serial meritless lawsuits in pro per—you, too, may be deemed a vexatious litigant. File five unsuccessful lawsuits within seven years, and that’s what happens. But you might not realize that appeals count toward your five-lawsuit limit. That was the outcome in the...Read More >>

Law360 Features Our Take on the Ninth Circuit’s Anti-SLAPP Ruling

Last updated on October 15, 2025 by Tim Kowal
The Law360 article on the Ninth Circuit’s en banc decision in Gopher Media LLC v. Melone features quotes California Appellate Law Podcast co-hosts Jeff Lewis and me on the significant shift in how anti-SLAPP motions are handled in federal courts, overturning more than two decades of Ninth Circuit precedent. The Ninth Circuit held that denials...Read More >>

Further mod on 9th Cir.’s “bespoke” anti-SLAPP law neuters its appealability

Last updated on October 10, 2025 by Tim Kowal
Anti-SLAPP denials are no longer immediately appealable in the Ninth Circuit. That was the en banc holding in Gopher Media LLC v. Melone (9th Cir., Oct. 9, 2025, No. 24-2626) 2025 WL 2858761, which overruled Batzel v. Smith. But still hotly debated in whether the Ninth Circuit will continue to entertain anti-SLAPP motions at all....Read More >>

Headnotes: AI Hallucinations Cost $10k, Forgetting to ask for fees proves fatal

Last updated on October 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: Seeking Family Code 2020/2032 need-based fees? Don't forget to establish the incurred fees as reasonable. Fees reversed because they were for discovery motions not even ruled on yet. (But on remand expect the...Read More >>

AI “deepfake” evidence results in terminating sanctions

Last updated on September 25, 2025 by Tim Kowal
The AI “deepfake” videos offered in support of plaintiff’s motion for summary judgment in this Superior Court case goes way beyond the innocent AI “hallucinations” more commonly reported. Plaintiff in Mendones v. Cushman & Wakefield, Inc., (Cal. Super. Ct. Alameda Cnty. Sept. 9, 2025 No. 23CV028772) submitted two videos that the trial judge easily concluded...Read More >>

Appeal Deadline Alert: Don’t count on Rule 58, 9th Circuit says

Last updated on September 16, 2025 by Tim Kowal
Appealing in the 9th Circuit? Your deadline is 30 days. But sometimes the court makes certain rulings that are appealable but without a formal order—and that’s where FRCP 58 comes in, which says that those rulings are not deemed “entered,” and so the 30-day appeal deadline doesn’t yet run, until 150 days later. But in...Read More >>

Don't Save Your Arguments for Later

Last updated on September 4, 2025 by Tim Kowal
The plaintiff's strategic decision to "not discuss" prong two of the anti-SLAPP analysis in hopes of supplemental briefing later proved fatal in *Ramirez v. McCormack* (D2d8, Aug. 8, 2025, No. B340986) reh'g denied (Aug. 19, 2025). Courts expect parties to present complete arguments in their initial briefs—don’t rely on getting a second chance. In a...Read More >>

Headnotes: Fee Traps & Statute Snafus — Four Cases Every California Litigator Should Know

Last updated on August 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: RFA Fees: Unreasonably deny an RFA, get hit with attorneys fees…even if you otherwise are protected under a one-way fee statute. So if you are asked to admit you signed the document that...Read More >>

Headnotes: Fee Fights & Procedural Pitfalls — Four Cases Every California Litigator Should Know

Last updated on August 12, 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: Self-represented attorney CAN get fees awarded when co-litigant is spouse, but it's fact specific: there has to be a true professional relationship between spouses. If the attorney spouse was making all the decisions,...Read More >>

Headnotes: From Judicial Immunity to Free Speech, This Week in Law That Made Me Look Twice

Last updated on August 6, 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: Not CA, but might restore your faith in the judiciary—via IJ: The Stored Communications Act allows the government to subpoena social-media companies for user data, and it even allows those subpoenas to be...Read More >>

Headnotes: ChatGPT Privacy, Forum Clauses, Lengthy Opinions & Judicial Farewells

Last updated on July 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: Can ChatGPT testify against you? Maybe, says Open AI CEO Sam Altman: “If you go talk to ChatGPT about your most sensitive stuff and then there's a lawsuit, we could be required to...Read More >>

Headnotes: Politicians Can't Whistleblow, Sloppy Filings Fail, Cities Self-Tax, and "Res Judicata" Gets Rebranded

Last updated on July 24, 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: Elected officials aren't whistleblowers, Cal. Supreme Court says. “Employee” means rank-and-file public workers, not elected officials who “report to the electorate.” But: they can still bring First Amendment claims. Brown v. City of...Read More >>

Unethical to paste from a legal article without attribution, appellate court warns

Last updated on July 22, 2025 by Tim Kowal
The California Court of Appeal recently warned that pasting unattributed legal content in an appellate brief is “a serious breach of ethics,” and “obviously unacceptable” and “sanctionable.” The pro per appellant in Kelly v. Tow (Jul. 17, 2025, No. G064417) 2025 WL 1982214 (nonpub. opn.) challenged an sanction against him for filing an improper discovery...Read More >>

Headnotes: Last Resort Writs, HOA Traps, and Sanctions

Last updated on 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 last resort to reverse a judgment when all other lights go out? Writ of coram nobis. A 9th Circuit panel, denying relief after Supreme Court confirmed that certain jury instructions on subjective...Read More >>

Headnotes: Cross-Appeal or Lose Your Fees: Important Reminders from Recent California Cases

Last updated on July 15, 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: Bad guy appealed your fee award? Remember to cross-appeal! Court not only affirmed respondent’s fees, but concluded trial court should have awarded more. BUT: No cross-appeal, so the reduced award stands. Papageorges v....Read More >>

PJ Gilbert’s right: SCOCA should issue depub statements

Last updated on July 10, 2025 by Tim Kowal
When an appellate decision is published, it is binding on all Superior Courts throughout the state, and citable in all the appellate courts. But sometimes, the Supreme Court of California decides that a published case should not be. And when it exercises its power under California Rules of Court, rule 8.1125(c), that appellate decision—previously part...Read More >>

Headnotes: Settlement offer tossed for overbroad release, doctor jailed over diary, & court cools on RJA reversals

Last updated on July 9, 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: Don't put a 1542 in your 998: Offer was invalid because it requested not only dismissal but a broader release of all claims, known and unknown. That made the 998 invalid. *T&R PAINTING...Read More >>

Winning on Appeal: Ten Essentials Every Trial Lawyer Must Know

Last updated on June 25, 2025 by Tim Kowal
Earlier this month, , I presented my talk Winning on Appeal: Ten Essentials Every Trial Lawyer Must Know with Jeff Lewis at the California Lawyers Association Solo and Small Firms event. We shared insights based on our work as appellate specialists and addressed some of the most common mistakes that trial lawyers make that end...Read More >>

Headnotes: Judge faces discipline for late decisions, & no Google Maps while driving

Last updated on June 24, 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: Using Google Maps while driving? That's illegal, says Court of Appeal, unless the phone is mounted to your dashboard. People v. Porter (Cal. Ct. App., June 3, 2025, No. H052404) Judges’ 90-day deadline...Read More >>

Headnotes: San Diego’s beach yoga ban struck down on free speech grounds, and some fees & sanctions cases

Last updated on June 20, 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: Teaching yoga is just like teaching Shakespeare, for First Amendment purposes. 9th Circuit strikes down San Diego’s beach yoga class ban. Hubbard v. City of San Diego (9th Cir., June 4, 2025, No....Read More >>

$25k sanctions reversed because correct grounds not stated in notice

Last updated on June 18, 2025 by Tim Kowal
The tip here is that even if your CCP 128.7 sanctions motion is righteous, the correct bases must be stated in the notice to give the other side fair warning. The grounds here weren’t stated until the reply, so the $25,000 sanction was reversed. And the motion was not only correct in Wright v. Wright...Read More >>

In re: LA Riots—Newsom v. Trump

Last updated on June 12, 2025 by Tim Kowal
Governor Newsom sued to enjoin President Trump’s deployment of the National Guard to quell the ongoing LA riots without Newsom’s consent. But first, we disclose our biases—about Trump, opportunistic political labeling of “rebellions” or “insurrections,” and how easily the thin veneer of civilization is pierced by masked cowards throwing rocks. Also: Appellate Specialist Jeff Lewis'...Read More >>

Is “evidence” different from “information”?

Last updated on June 11, 2025 by Tim Kowal
The SLAPP fee award in Berry, v. Pope Valley Union Elementary School District et al. (Jun. 2, 2025, No. A171352) (non-pub. opn.) was based on hearsay. The the Court of Appeal still affirmed because hearsay is a rule of “evidence,” and a fee order need only be based on “information.” This is surprising because the...Read More >>

Trump tariffs enjoined by…which court? And SCOCA takes up appealability of dismissals

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...Read More >>

May Headnotes: One-sentence summaries of this week’s below-the-fold cases

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...Read More >>
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"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

"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

"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

"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

"Do not worry about people stealing your ideas. If your ideas are any good, you'll have to ram them down people's throats."

— Howard H. Aiken

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

Leviticus

“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

"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

"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

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