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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 >>

This is a District Court, not a Denny’s

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...Read More >>

Late-fee arb-killer statute upheld again as not preempted by FAA

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...Read More >>

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

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...Read More >>

Oral arguments on nationwide injunctions

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...Read More >>

The BigLaw EOs & Right to a Hearing

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...Read More >>

You have a right to a hearing only if you have something worthwhile to say

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...Read More >>

Kidnapping, Pronouns & Dragons

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...Read More >>

Sanctions for kidnapping and attempted murder of defendant reversed

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,...Read More >>

Wait, challenging a vaccine mandate is a SLAPP??

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...Read More >>

$10M sexual harassment verdict reversed for improper “me-too” evidence

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....Read More >>

Apple’s mandatory vaccine is “creative” expression—employee’s lawsuit held a SLAPP

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...Read More >>

Does “Of Counsel” have Rule 11 duties?

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...Read More >>

Headnotes: Attorney (Dershowitz!) signs off on complaint as to only certain paragraph

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...Read More >>

You can appeal discovery sanctions, but not a mere cost allocation

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...Read More >>

CALP-March Cases & Tidbits: Judge Van Dyke’s video dissent

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...Read More >>

Did Trump Violate the Deportation Order?

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...Read More >>

Audio clips at trial & oral argument tips

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...Read More >>

A stipulated dismissal is appealable, but not a voluntary dismissal?

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,...Read More >>

Beware using the Judicial Council form dismissal

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....Read More >>

Are employees immune from paying discovery fees?

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...Read More >>

Is the electronic-recording ban unconstitutional?

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...Read More >>

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

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...Read More >>

ChatGPT Fails, Sanctions & Disbarments, Feb. 2025

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...Read More >>

Headnotes Feb. 13, 2025: Attorneys behaving badly

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...Read More >>

Is California’s 30-day pay-or-waive arbitration rule preempted by the FAA? The split widens

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...Read More >>

Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survives

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...Read More >>

Another late arbitration payment case, again holding the FAA preempts the CAA

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,...Read More >>

LawPracticeCLE has my presentation: Trial Mastery: Developing a winning strategy and preserving your best issues

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....Read More >>
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"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

"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

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

"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

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

— H.L. Mencken

"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

"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

"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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