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The Racial Justice Act Is Unconstitutional

Last updated on April 11, 2024 by Tim Kowal
A divided panel in People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___, a residential burglary case, reversed a guilty verdict. Because of lack of evidence of guilt? No, the prosecution’s evidence was overwhelming. Instead, the majority reversed because, after the prosecution made a peremptory challenge to a Hispanic prospective juror, and...Read More >>

Does 998 cost-shifting apply to settlements? A three-way split?

Last updated on February 29, 2024 by Tim Kowal
The parties settled the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884). But the settlement amount was less than defendant Fiat-Chrysler’s Code of Civil Procedure section 998 offer. So Fiat-Chrysler said that means all plaintiff’s post-offer fees and costs are unrecoverable, and the trial court agreed. The trial court...Read More >>

In dispute over which employer is liable for negligence, what employee thinks is irrelevant

Last updated on February 22, 2024 by Tim Kowal
It’s not everyday you see a judgment reversed for lack of substantial evidence. A food-truck worker, hit by a car while packing up after a stop, recovered over $8.2 million against the food-truck commissary where the food truck was stored. But the court reversed in Guzman v. Younan (D2d4 Feb. 16, 2024 No. B317573) [nonpub....Read More >>

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 >>

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 >>

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 >>

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 >>

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 >>

Thankful for Unpublished Opinions

Last updated on November 21, 2023 by Tim Kowal
In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent. Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited...Read More >>

Dissent would invalidate loan where lender is unlicensed

Last updated on November 8, 2023 by Tim Kowal
North American made more than 300 home loans without a license, Justice Dato noted in his dissent in Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758). Plaintiffs were among the borrowers, and sued to recover all “illegal interest” and finance charges the lender had charged on their loan. The trial court disagreed with...Read More >>

The Shadow Docket, with Stephen Vladeck

Last updated on July 18, 2023 by Tim Kowal
Most cases that reach the Supreme Court live and die on the “shadow docket.” That is the name given to the docket where everything other than full merits decisions happens. Most prominently, that is where the Supreme Court decides whether to grant stays of orders pending appeal, such as abortion-rights cases, voter redistricting cases, immigration...Read More >>

Manson follower wins, Fr. Serra loses in Cal. courts: Legal News This Week Ending June 2, 2023

Last updated on June 2, 2023 by Tim Kowal
Here are some legal trends and trivia from this week: Justice Jackson, still in first year on SCOTUS, pens solo dissent in labor case Glacier Northwest v. International Brotherhood of Teamsters. First time a first-termer has penned a solo dissent since Justice Thomas in 1991. (Via Adam Feldman) Manson follower Leslie Van Houten, who took...Read More >>

Supreme Court Rules Affirmance of Injunction of Vaccine Mandate Will Remain Published

Last updated on March 1, 2023 by Tim Kowal
In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations...Read More >>

Civil theft under Penal Code 496(c) is not established merely by nonpayment of a loan

Last updated on February 2, 2023 by Tim Kowal
The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659)...Read More >>

A denial of a clemency request in CA amounts to a finding of abuse of power

Last updated on November 21, 2022 by Tim Kowal
Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.” In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court,...Read More >>

Advocacy Justice: Justice Lambden used to send opinions as “FYIs” to the Legislature

Last updated on November 16, 2022 by Tim Kowal
If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases? Justice Lambden wondered the same thing. So that’s...Read More >>

Making Sense of the California Supreme Court's Publication Rules

Last updated on November 11, 2022 by Tim Kowal
“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 >>

$2.5M Discovery Sanction Reversed Because Not Authorized by a Specific Statute, But Justice Grimes Pens a Strong Dissent

Last updated on November 9, 2022 by Tim Kowal
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 >>

Gov Newsom appointed a new Supreme Court justice, but he should have nominated her

Last updated on November 3, 2022 by Tim Kowal
When Governor Gavin Newsom selected Justice Patricia Guerrero as the new Chief Justice, he also “appointed” Judge Kelli Evans to fill the empty seat. But there was some debate about whether the governor may “appoint” Evans, or whether instead he needed to “nominate” her, to be confirmed by the voters. Supreme Court-commentator David Ettinger has...Read More >>

Covid-restrictions on churches likely unconstitutional where secular establishes are exempted, says Cal. Court of Appeal

Last updated on October 24, 2022 by Tim Kowal
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 >>

Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases

Last updated on October 11, 2022 by Tim Kowal
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 >>

The Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David Ettinger

Last updated on October 4, 2022 by Tim Kowal
The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins co-hosts Tim Kowal and Jeff Lewis to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a...Read More >>

Bees Are Fish, But Review Denials Are Not Precedent

Last updated on September 29, 2022 by Tim Kowal
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 >>

“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back

Last updated on September 20, 2022 by Tim Kowal
As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should...Read More >>

Arbitration Not Waived by 13 Months of Litigation? Supreme Court to Weigh In

Last updated on September 7, 2022 by Tim Kowal
The California Supreme Court will review a surprising appellate court holding from earlier this year (writeup here; podcast here) that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months...Read More >>

PAGA Claims After Viking River Cruises, with Eric Kingsley

Last updated on September 6, 2022 by Tim Kowal
What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California...Read More >>

“Ve Haf Vays”: Appellate Court Mediation Programs

Last updated on August 12, 2022 by Tim Kowal
Senior Judge Clifford Wallace of the 9th Circuit has said, speaking of appellate court mediation programs, that “we ha[ve] a way to get people to talk.” Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about the effectiveness of appellate court mediation programs — and about one unusual way a judge might get parties to talk. Watch...Read More >>

CEB Repost of My Article on Siry Investment Affirming Civil-Theft Remedies in Business Tort Cases

Last updated on August 10, 2022 by Tim Kowal
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. Siry held that the remedies under Penal Code section 496(c) — treble damages and attorney...Read More >>

When Courts Give the Silent Treatment

Last updated on August 5, 2022 by Tim Kowal
Judges are rightly frustrated with counsel who do not respond to unfavorable facts and arguments. So when asked what I find frustrating about appellate practice, my answer is: judicial opinions that do not answer the strongest arguments. On most occasions when an appellate court has not agreed with my client’s position, our courts give excellent...Read More >>

The Eviction Problem, with Tenant’s Rights Attorney Eric Post

Last updated on August 2, 2022 by Tim Kowal
“The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent. Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal...Read More >>
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"A judge is a law student who grades his own papers."

— H.L. Mencken

"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

"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

"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.)

"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

"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

"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

“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

"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

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"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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