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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 >>

Panel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t

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...Read More >>

Cert on Homeless Encampments and En Banc on SLAPPs

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...Read More >>

Is raising a right generally at trial enough to preserve more specific arguments for appeal?

Last updated on by Tim Kowal
The FBI, growing frustrated in an investigation into a company that furnishes private lockboxes, got a warrant to search entire “nests” of lockboxes. Including lockboxes held by perfectly law-abiding plaintiffs, which are the subject of Snitko v. United States, No. 22-56050 (9th Cir. Jan. 23, 2024). When the FBI got the warrant, they told the...Read More >>

Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look

Last updated on January 22, 2024 by Tim Kowal
There has been a steady drumbeat to revisit the 9th Circuit’s precedent making anti-SLAPP orders appealable. Anti-SLAPP orders are similar to orders on motions to dismiss or for summary judgment, but they invoke specific state-law procedures—procedures that do not quite track with federal rule 12(b) or rule 56. And federal courts do not apply state...Read More >>

Doing a double-take after Supreme Court’s Jack Daniel’s holding, 9th Cir. reverses itself in Punchbowl News trademark case

Last updated on January 18, 2024 by Tim Kowal
The 9th Circuit was bound by its trademark precedent holding an exception to the Lanham Act for expressive works, which was why in Punchbowl, Inc. v. AJ Press, LLC, No. 21-55881 (9th Cir. Jan. 12, 2024) it affirmed a summary judgment against plaintiff greeting-card maker in favor of a news website—both going by the name...Read More >>

Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases

Last updated on January 16, 2024 by Tim Kowal
California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases:   Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page....Read More >>

In San Fran homelessness case in 9th Cir., two stark opinions about waiver

Last updated on January 15, 2024 by Tim Kowal
San Francisco—responding to a surge in homelessness—enacted time-and-place anti-vagrancy ordinances restricting sleeping in public places. But the district court enjoined the laws, and in Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024), the 9th Circuit affirmed. Following two recent 9th Circuit cases, the court held that the city violated the...Read More >>

CEB has my article, “Arbitrator reversed for basing credibility on use of interpreter”

Last updated on January 12, 2024 by Tim Kowal
CEB DailyNews has published my article, “Arbitrator reversed for basing credibility on use of interpreter.” The article is about FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801. The arbitrator had ruled against the appellant based on a credibility determination, noting that “Mrs. Pham's use of an interpreter appeared to the Arbitrator...Read More >>

Justice Baker is not a big fan of Costco

Last updated on January 11, 2024 by Tim Kowal
Costco charged a shopper with theft for putting a $117 package of Gillette razors underneath a big bag of dog food. The shopper sued for malicious prosecution, but the trial court granted Cosco’s anti-SLAPP, and the panel majority in Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.] affirmed. Making a...Read More >>

How appellate attorneys beat summary judgments, with Yisrael Gelb

Last updated on January 9, 2024 by Tim Kowal
Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”   Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed. Appellate Specialist...Read More >>

Order granting motion to enforce settlement held not appealable, furthering a split of authority

Last updated on January 8, 2024 by Tim Kowal
Are orders on motions to enforce settlement agreements appealable? They are not expressly listed in the appealability statute. But appellate courts often treat them as functionally the same as a judgment. That did not happen, however, in House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.], which dismissed...Read More >>

2023’s Best Guests, Cases & Tech

Last updated on January 3, 2024 by Tim Kowal
Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars...Read More >>

State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty

Last updated on January 2, 2024 by Tim Kowal
Just a couple months ago, when the Court of Appeal issued a rare writ on a discovery issue, I noted that this was unusual because appellate courts generally loathe discovery disputes. But here comes the court with another discovery writ. There are two things in common between that earlier case and the more recent case...Read More >>

Yes, you can use a motion in limine as a motion for summary judgment

Last updated on December 27, 2023 by Tim Kowal
Right before trial, you expect to see some motions in limine trying to exclude some of your objectionable evidence. But if you see an MIL trying to decide entire issues, you are probably ready to pounce with an argument that an MIL is not supposed to be a cheap substitute for a motion for summary...Read More >>

CEB has my article, “Lack of statement of decision leads to reversal”

Last updated on December 22, 2023 by Tim Kowal
CEB DailyNews has published my article, “Lack of statement of decision leads to reversal.” The article is about the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.], where the appellant correctly followed the two-step process for a statement of decision. When the trial court still...Read More >>

In fight over short-term rentals, City could not challenge contempt fees either as an appeal or writ

Last updated on December 20, 2023 by Tim Kowal
Like many cities with neighborhoods unhappy with short-term rentals, Rancho Mirage issued a ban on the practice. In this suit by a group of short-term rental owners, Vacation Rental Owners & Neighbors of Rancho Mirage v. City of Rancho Mirage (D4d2 Dec. 15, 2023 No. E078784) [nonpub. opn.], the trial court issued a preliminary injunction...Read More >>

Eugene Volokh on Restraining Orders and the First Amendment

Last updated on December 19, 2023 by Tim Kowal
Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same...Read More >>

CEB has my article “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent”

Last updated on December 15, 2023 by Tim Kowal
CEB DailyNews has published my article, “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.” The article is about Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023), where the district court had ruled that, in a lawsuit involving trademark enforcement,...Read More >>

CEB has my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal”

Last updated on December 8, 2023 by Tim Kowal
CEB DailyNews has published my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal.” The article is about In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.), which distinguished void from voidable judgments. What makes a judgment or order “voidable” or “void” can be...Read More >>

High-Profile Employment Appeals with Glenn Danas

Last updated on December 6, 2023 by Tim Kowal
Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client. Glenn also shares:...Read More >>

Is a dismissal a “judgment”? Yes, but there’s a split of authority

Last updated on December 5, 2023 by Tim Kowal
After plaintiff obtained a preliminary injunction preventing defendant pet stores from selling puppies, the legislature passed a law barring the retail sale of puppies. Having got what it came for, plaintiff dismissed the action without prejudice. The court awarded the successful plaintiffs over $46,000 in attorneys' fees. But to the plaintiffs’ chagrin, the award was...Read More >>
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