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Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over...Read More >>

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it. A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at...Read More >>

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the...Read More >>

Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative”...Read More >>

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no....Read More >>

Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate...Read More >>

Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from...Read More >>

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over...Read More >>

A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was...Read More >>

Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding...Read More >>

When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment. Technically, you can do both. But don’t. That is what...Read More >>

A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial...Read More >>

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline. The petitioners, who had won a writ of mandate in the trial court, actually had...Read More >>

Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice...Read More >>

CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” (The article was originally published on my blog here.) The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087. The parties settled a consumer...Read More >>

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again. At least as it concerns criminal jury trials, you can get a good sampling of judges’...Read More >>

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in Duff...Read More >>

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (In re A.R. (2021) 11 Cal.5th 234, discussed in Tim Kowal, “Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds,” Apr....Read More >>

This one seems wrong to me. This is a published case in Conservatorship of Joanne R. (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging...Read More >>

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in Marriage of Stone (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.). The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a...Read More >>

An order enforcing a settlement agreement is an appealable order, but what about an order denying enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”Denial of Motion to Enforce a Settlement Held Appealable....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement...Read More >>

From the “did they really have to publish this?” files: You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc. (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after...Read More >>

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal. The appellant argued improper “blanket” rulings were the...Read More >>

When you have a judgment against a shell entity, you can amend the judgment to name the sole shareholder or member. That is called piercing the corporate veil. Until a few years ago, it didn’t work in reverse: if you have a judgment against a judgment-proof business owner, you can’t add the entity as a...Read More >>

After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in Kuenzinger v. Doctors Med. Ctr. Modesto (D5, Dec. 22, 2021 no. F082272) 2021...Read More >>

In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in Singman v. IMDb.com, Inc. (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted...Read More >>

Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order. In Lemus v. Abdeljawad (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But...Read More >>

Hiring a court reporter is expensive. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered? Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in Weischadle v. Vo (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845)...Read More >>

One of the criticisms against the uncitability of unpublished appellate opinions is that the fact they are not published feeds a suspicion they are not always thought quite all the way through. Certainly you are more likely to find typographical errors in an unpublished opinion, for instance, than you might in a published one. And...Read More >>

CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you...Read More >>