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The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California...Read More >>

After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow...Read More >>

I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable. Liang involved an action...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 case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial...Read More >>

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it. Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But...Read More >>

Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger. Meinhardt...Read More >>

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again. At the trial between the two partners in a restaurant business in...Read More >>

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his...Read More >>

California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version here: https://bit.ly/3aFty3P A PDF of the article is here: Litigation-Volume-35-Number-1-2022, T. Kowal, Are Anti-SLAPP Fee Awards Stayed.pdf My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But...Read More >>

The anti-SLAPP statute allows defendants to challenge complaints that chill the rights to speak and petition. But the rights to speak and petition have blurry and elastic boundaries. So often plaintiffs with legitimate claims get stuck defending SLAPP motions. Worse, when the plaintiff defeats a meritless SLAPP motion, the defendant gets to appeal. That’s what...Read More >>

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court...Read More >>

A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own. The plaintiff noted...Read More >>

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders. That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d...Read More >>

CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here. The PDF article is here: Tim Kowal_Draft Your RFAs With Costs of Proof and Settlement in Mind.pdf Spahn held...Read More >>

You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok? (E.g., Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 113 [“[T]he filing of a timely notice of appeal is...Read More >>

The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management...Read More >>

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed...Read More >>

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did...Read More >>

[Update: After I filed an amicus curiae request for publication of this opinion, the Court granted rehearing on its own motion, and re-issued a modified and partially published opinion. The Court published its holding that the defendant seeking arbitration here had not waived arbitration by litigating for 13 months. The result is the same, but...Read More >>

The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable. The appeal was from an order denying resentencing under Penal Code 1170. The defendant had petitioned for...Read More >>

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff)...Read More >>

You know it is deadly to file an appeal too late. But there is also such a thing as filing an appeal too early. In the recent case Moreles v. Herrera (D4d1 Apr. 12, 2022 no. D077032) 2022 WL 1090255 (nonpub. opn.), the court decided to save the appeal. But the decision is at the...Read More >>

When I first read Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), something seemed odd about it. I had to read it again to be sure: it is definitely odd. The factual setup is not that odd. It is a commercial lease dispute. The...Read More >>

The court sympathizes with the appellant here whose two motions to vacate were denied, but holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial. In Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub....Read More >>

CEB published my short article on McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, a decision that imposed appellate sanctions on a litigant based on “gamesmanship” in the trial court. Not in the appellate court — the appellate sanctions were for trial court conduct. The article is available at CEB’s website...Read More >>

Can you dismiss your lawsuit while it’s on appeal? No. That is the surprising holding of Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760. The plaintiff had successfully opposed the defendant’s anti-SLAPP motion, and the defendant appealed the order denying its motion. The plaintiff...Read More >>

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered: No. (F.P. v. Monier (2017) 3 Cal.5th 1099 [failure to issue statement of decision not reversible per se].) Instead, to be reversible, the trial court’s failure...Read More >>

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings. But not in...Read More >>

The appellant in Singh v. Bains (D5 Mar. 10, 2022 no. F082506) 2022 WL 714679 (nonpub. opn.) was in pro per, so don’t read too much into this, but something does not sit right about this memorandum opinion. (A memorandum opinion is a more abbreviated form of opinion when a cause raises “no substantial issues...Read More >>

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong: First, the appellant was appealing two things: a...Read More >>