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The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned

Last updated on June 6, 2024 by Tim Kowal
The first thing you do after filing a case is check the assigned judge. Once the judge has been assigned “for all purposes,” you have 15 days to file your peremptory challenge to disqualify that judge. There are a few wrinkles to that “all purpose assignment” deadline, however. The court addressed them in *Taylor v....Read More >>

How to Avoid Fee Disputes, with Carl Mueller

Last updated on May 21, 2024 by Tim Kowal
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them: In the next episode, we will cover Carl’s top 10 tips for avoiding a fee dispute. Carl I. S....Read More >>

A Day Without a Court Reporter, published in California Litigation, May 2024

Last updated on May 16, 2024 by Tim Kowal
“Don’t forget to get a court reporter.” This stock advice of the appellate attorney used to leave my probate and family law colleagues unfazed: “Court reporters are already provided for us,” they’d say. But now that the court-reporter crisis has reached an acute stage, they don’t say it anymore. California Litigation has my article, “A...Read More >>

Defective appellate briefing in two cases results in dismissed appeals

Last updated on March 28, 2024 by Tim Kowal
Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District in Schwartz v. Noya (D2d6 Mar. 20, 2024 No. B329331) [nonpub. opn.] was not happy...Read More >>

CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

Last updated on March 27, 2024 by Tim Kowal
CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the...Read More >>

Five Hard Truths About an Appellate Practice, with Raffi Melkonian

Last updated on March 26, 2024 by Tim Kowal
Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is...Read More >>

“Motion granted, Bimbo!”

Last updated on March 19, 2024 by Tim Kowal
You can’t change your name to something offensive, but the Court of Appeal publishes its opinion in Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.] to announce that, as a matter of law, “Bimbo” is not offensive. The full name the appellant sought was “Candi Bimbo Doll.” This...Read More >>

Found liable for deceiving students in 1.2 million(!) misstatements, university could not use appeal to call itself a “place of opportunity” for students

Last updated on March 18, 2024 by Tim Kowal
Ashford University, an admissions mill, was found to have made a pattern of misstatements in the admissions process—1.2 million of them—ranging from misstating that a degree would qualify graduates for teaching and helping careers, and downplaying financial aid and debt obligations. The university appealed the amount of the award, clocking in at over $22 million....Read More >>

“Tackling Court Reporter Scarcity in California,” Presented to Santa Cruz Bar Association (Feb. 22, 2024)

Last updated on March 16, 2024 by Tim Kowal
Last month, I presented to the Santa Cruz Bar Association about the dwindling reserves of court reporters in California. The presentation includes a brief history why California law mostly prohibits electronic recording, why we have a critical shortage of court reporters, and what it means for your practice. You can download a PDF of the...Read More >>

Even when fact-finding is purely document-based, appellate court still defers to the trial judge

Last updated on March 14, 2024 by Tim Kowal
A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian...Read More >>

Once jury trial is waived, recent Supreme Court decision makes the trial court’s refusal to set aside the waiver effectively unreviewable

Last updated on March 11, 2024 by Tim Kowal
The upshot of the recent Supreme Court decision in TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368) is simple: If you waive your right to a jury, and then the trial court denies your request to set aside the waiver, that is that. While you have a nominal right to seek writ relief, you...Read More >>

Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

Last updated on March 5, 2024 by Tim Kowal
We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn...Read More >>

New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence

Last updated on March 4, 2024 by Tim Kowal
When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in Gomez v. City of Rialto Police Dep't (D4d1 Feb. 29, 2024 No. D083074) [nonpub. opn.], had the right idea, but did not comply with the requirement to file a declaration with a...Read More >>

Does 998 cost-shifting apply to settlements? A three-way split?

Last updated on February 29, 2024 by Tim Kowal
The parties settled the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884). But the settlement amount was less than defendant Fiat-Chrysler’s Code of Civil Procedure section 998 offer. So Fiat-Chrysler said that means all plaintiff’s post-offer fees and costs are unrecoverable, and the trial court agreed. The trial court...Read More >>

Judge Nazarian to Judges: Take the Accountability Pledge

Last updated on February 27, 2024 by Tim Kowal
There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial...Read More >>

Could a California judge enjoin Donald Trump from seeking a loan to get an appellate bond?

Last updated on February 26, 2024 by Tim Kowal
By now, you know about the $350 million-plus in damages that New York judge Arthur F Engoron awarded against Donald Trump and his companies. Trial-court news normally has a short expiration date, as it awaits the bigger news about what happens on appeal. But an appeal could be off the table because of a striking...Read More >>

In dispute over which employer is liable for negligence, what employee thinks is irrelevant

Last updated on February 22, 2024 by Tim Kowal
It’s not everyday you see a judgment reversed for lack of substantial evidence. A food-truck worker, hit by a car while packing up after a stop, recovered over $8.2 million against the food-truck commissary where the food truck was stored. But the court reversed in Guzman v. Younan (D2d4 Feb. 16, 2024 No. B317573) [nonpub....Read More >>

Sleep Well, Crush Your Enemies, with Leslie Porter

Last updated on February 20, 2024 by Tim Kowal
You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road,...Read More >>

Denying an untimely but meritorious motion for reconsideration was reversible error

Last updated on February 19, 2024 by Tim Kowal
After the trial court compelled arbitration in a car-defect dispute, the plaintiff moved for reconsideration. But the trial court’s ruling was correct, and the plaintiff’s motion was untimely. So it was no surprise when the court denied the motion. That made it all the more surprising when the Court of Appeal in Contreras v. Superior...Read More >>

You can appeal from a postjudgment order, but not to challenge the judgment

Last updated on February 14, 2024 by Tim Kowal
After entering a visitation order for great-grandparents, the court entered another order modifying it. The mother appealed from the modification. The court in Rodriguez v. Rodriguez (D5 Feb. 9, 2024 No. F086277) [nonpub. opn.] held that, yes, the modification was appealable, but the issues the mother was challenging were in the first order. And the...Read More >>

So You Think You Understand the Snitch Rule?

Last updated on February 13, 2024 by Tim Kowal
Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.)...Read More >>

Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism

Last updated on February 12, 2024 by Tim Kowal
A D.C. jury found climate scientist Michael Mann was not harmed by criticism that Penn State had whitewashed its investigation of his provocative “hockey stick” graph, which used proxy data such as tree rings to depict global temperatures holding steady for hundreds of years before spiking sharply in the 1800s. The jury awarded only $1...Read More >>

CEB has my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty”

Last updated on February 9, 2024 by Tim Kowal
CEB DailyNews has published my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty.” It is about how the Court of Appeal has recently issued two writs on discovery issues—which appellate courts typically loathe. There are two things in common between the discovery writ in Regents...Read More >>

Attorney who ignored appellate rules hit with $50k in sanctions

Last updated on February 8, 2024 by Tim Kowal
Failing to request a statement of decision. Misunderstanding what “substantial evidence” means. Preparing an incomplete appellate record. Yes, these mistakes will lose you your appeal. But they can also get you sanctioned. The appellant’s counsel in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.) got sanctioned nearly $50,000 for pursuing a...Read More >>

Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case

Last updated on February 6, 2024 by Tim Kowal
Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to...Read More >>

Climate Change on Trial

Last updated on February 5, 2024 by Tim Kowal
Wealth, class, and high office don’t buy a lot of respect these days, but people listen if you’ve got some extra letters hung on the end of your name as scientists do. So climate scientist Michael E. Mann, Ph.D, sued for defamation when Rand Simberg and Mark Steyn called his “hockey stick” graph the product...Read More >>

Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion

Last updated on January 31, 2024 by Tim Kowal
An anti-SLAPP motion is a species of motion to strike. So some authorities have held that this means California Rules of Court, rule 3.1322 applies, requiring that the challenged allegations be quoted chapter and verse. (Chop Won Park v. Nazari (D2d5 Jul. 25, 2023 No. B320483).) But District Three disagreed in the published portion of...Read More >>

No More Anti-SLAPPs in Fed Court? With Cory Webster

Last updated on January 30, 2024 by Tim Kowal
The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an...Read More >>

Racial Justice Act motion requires case-specific facts, not mere statistical analysis

Last updated on January 29, 2024 by Tim Kowal
Russell Lynwood Austin murdered his pregnant ex-girlfriend in her apartment with her two-year-old present. Austin slit her throat so violently that he nearly decapitated her. Austin then fled, leaving her bloody body, and her dying fetus, with the naked two-year-old child. The D.A. charged Austin with double-homicide and sought the death penalty. But Austin is...Read More >>

CEB has my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct”

Last updated on January 26, 2024 by Tim Kowal
CEB DailyNews has published my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct.” This is about Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.), where an attorney got a restraining order against her opposing counsel in a family law case. But the Court of...Read More >>
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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"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

"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

"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.)

"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

"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

"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

"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

"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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