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Post-Appeal

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 >>

Fatal Error in Judicial Council Cost Memorandum Form, Says Dissenting Justice

Last updated on August 22, 2022 by Tim Kowal
Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all. In this, the Judicial Council form...Read More >>

After Reversal on Appeal, Appellant Claimed It Was Entitled to $5.7MM in Restitution

Last updated on May 24, 2021 by Tim Kowal
And it would have been entitled to it, too, and the appellant not stipulated to the remedy. Here is an under-appreciated consideration in appellate procedure: If you are the party that prevailed at trial, and you collect on your judgment pending appeal, what's the worst that could happen? Would it surprise you to learn that...Read More >>

How to Cite Unpublished Opinions

Last updated on January 20, 2021 by Tim Kowal
Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or relied on by a court or a party in any other action." There are only two exceptions in the statute, and they are narrow: one...Read More >>

Is Filing a Petition for Review of an Unpublished Opinion Hopeless (Part 1 – Civil)?

Last updated on December 16, 2020 by Tim Kowal
One bit of conventional wisdom that’s frequently heard about appellate review in California is that if a Court of Appeal opinion isn’t published, seeking Supreme Court review is a hopeless task.  This week, we’re looking at the data to see if that’s true – civil cases in this post, criminal in the next. The short...Read More >>

Recovering Costs for Unused Trial Exhibits

Last updated on October 12, 2020 by Tim Kowal
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the...Read More >>

Cal Appellate News for Lawyers (Oct. 5, 2020): Juror Peremptory Challenges, Appealability of SLAPP Orders, Appeal Bonds, 170.6 Challenges After Appeal, and More

Last updated on October 3, 2020 by Tim Kowal
On Episode 5 of the Cal. Appellate Law Podcast, We Discuss Juror Peremptory Challenges and More SLAPP Orders My colleague Jeff Lewis and I started the California Appellate Law Podcast because many of our best clients are attorneys, and we wanted to create a resource to help these attorneys avoid falling into appellate traps before they...Read More >>

"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

"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

"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

"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.)

“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

"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

"A judge is a law student who grades his own papers."

— H.L. Mencken

"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

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

Leviticus

"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

"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

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