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In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its...Read More >>

CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here. The article may be cited as Tim Kowal, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” CEB (Nov. 15, 2022), available at http://bit.ly/3ATYO9Q A PDF of the article is here: Kowal_Section998.pdf...Read More >>

There are some interesting new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. And then the domesticated judgment may be re-domesticated...Read More >>

Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner,...Read More >>

When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based...Read More >>

“NALA has published” Tim Kowal (Presenter), “Preparing the Excerpts of Record for Federal Appeals,” NALA (Mar. 24, 2022), This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who...Read More >>

CEB has published my article, “MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority,” about the recent published opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 holding that evidentiary rulings in connection with summary judgment are reviewed on appeal for abuse of discretion....Read More >>

“CEB has published” Tim Kowal, “Making Sense of the California Supreme Court's Publication Rules,” CEB (May 21, 2021), available at http://bit.ly/3Emu0AC. Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of...Read More >>

“CEB has published” Tim Kowal, “Something You Didn't Know About 998 Offers,” CEB (Apr. 30, 2021), available at  http://bit.ly/3AbqAhI Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer, according to Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished). My original blog...Read More >>

In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145, covered here. On November 8, the court ordered the opinion be published. Doe v. Software One holds that evidentiary rulings in deciding a motion for summary judgment are reviewed...Read More >>

Unless there is a specific section of the Discovery Act authorizing it, an award of sanctions may not be imposed. So the $2.5 million in sanctions awarded for the City of Los Angeles’s “egregious” abuses in City of Los Angeles v. PricewaterhouseCoopers, LLC (D2d5 Oct. 20, 2022 No. B310118) ---- Cal.Rptr.3d ---- (2022 WL 12010415)...Read More >>

There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30...Read More >>

CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at  https://bit.ly/3WjAZ4m The PDF article is here: Tim Kowal_CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”.pdf The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d...Read More >>

Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An ophthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit. That...Read More >>

A trial court hit Calvary Chapel with over $30,000 in sanctions for violating court injunctions that required the church to comply with local Covid restrictions. The church steadfastly refused to enforce the state and local rules that imposed capacity limitations on indoor gatherings, and that required face masks and the submission of a social-distancing protocol....Read More >>

If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor. How long is the 21-day safe harbor? There is now a published decision to tell us. The...Read More >>

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default. (LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137 (LaSalle).) But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s...Read More >>

Jeff and Tim discuss some recent cases to add to your attorney toolkit: For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off. (People v. Nonaka, (Sep. 30, 2022, 2d Crim....Read More >>

UPDATE: The Court granted a publication request (filed by this commentator) on November 8, 2022. See here. A big part of winning at trial is getting your evidence in—and keeping your opponent’s evidence out. So on appeal, parties often argue that the judge made the wrong ruling when it kept your favorable evidence out—or let...Read More >>

There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal. And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a...Read More >>

CEB has republished my article, “Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases,” about the recent decision in Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312. The PDF article is here: Tim Kowal_Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal...Read More >>

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY. The PDF article is here: Tim Kowal_Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict.pdf The case involved a trial error in which the...Read More >>

…unless the appeal is dismissed because it was premature. If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice. That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the...Read More >>

Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (We covered Clarity in episode 31 of the California Appellate Law Podcast.) But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing...Read More >>

In a bizarre ruling earlier this year, the Court of Appeal held that bumble bees are fish, at least for purposes of the California Endangered Species Act. (Jeff Lewis and I covered this in episode 38 of the California Appellate Law Podcast, and Prof. Shaun Martin’s writeup is here.) The California Supreme Court was asked...Read More >>

Lawyers and judges have, by now in late 2022, gotten quite comfortable using remote trial to conduct legal proceedings. Depositions, mediations, arbitrations, even whole trials may be conducted via Zoom. But Zoom trials are not the new normal. Not until the Legislature says otherwise, anyway. That’s what the Court of Appeal held in Rycz v....Read More >>

So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal. Sharma lost her auto-defect case after a jury trial....Read More >>

You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL...Read More >>

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no....Read More >>

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented...Read More >>