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...
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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...
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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...
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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...
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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...
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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....
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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...
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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...
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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...
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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...
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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...
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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...
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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...
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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...
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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....
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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,...
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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...
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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...
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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.)...
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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...
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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...
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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...
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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...
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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...
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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...
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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...
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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...
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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...
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Last updated on January 25, 2024 by Tim Kowal
One big limitation in the 9th Circuit is that a three-judge panel is absolutely bound by a prior panel decision. Just see, for example, the recent panel decision in Martinez v. ZoomInfo Techs.: even though a majority of the panel disagreed with the precedent that anti-SLAPP denials are appealable, they had to go along with the precedent...
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Last updated on January 24, 2024 by Tim Kowal
The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published...
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