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CEB has my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees”

Last updated on October 30, 2024 by Tim Kowal
CEB Dailynews has published my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees.” The article is about what happens when you prevail on a contract, but the contract is only raised as an affirmative defense—and not as a claim. The Supreme Court previously said no: an affirmative defense...Read More >>

“Are Anti-SLAPP Orders Judgments? ”

Last updated on September 12, 2024 by Tim Kowal
CEB has published my article, “Are Anti-SLAPP Orders Judgments?” The article is about the anti-SLAPP judgment in Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.]. After the court entered the anti-SLAPP judgment, the plaintiff where appealed from the anti-SLAPP order—not the judgment. The defendant moved to dismiss the appeal because,...Read More >>

CEB has my article, “Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds”

Last updated on August 30, 2024 by Tim Kowal
CEB DailyNews has published my article, “Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds.” The article is about the published opinion in *Lorch v. Superior Court* (D4d1 May 16, 2024 No. D083609), about peremptory challenges to a trial judge. In a “master calendar” court, rather than the...Read More >>

CEB has my article, “Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents”

Last updated on August 22, 2024 by Tim Kowal
CEB has published my article, “Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents.” The article is about the split opinion in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.], that Justice Baker says in dissent “rather obviously invites a grant of...Read More >>

CEB has my article about the 9th Cir. criticism of LAUSD’s belated reversal of its Covid-19 vaccine mandate, and distinguishing SCOTUS vaccine-mandate holding

Last updated on August 14, 2024 by Tim Kowal
CEB has published my article, “Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling.” The article is a cautionary tale about being completely forthcoming at oral argument. And it suggests that theories attempting to distinguish a century-old SCOTUS opinion affirming a state vaccine...Read More >>

CEB has my article, “The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned”

Last updated on August 7, 2024 by Tim Kowal
CEB DailyNews has published my article, “The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned.” The article is about Taylor v. Superior Court (D4d2 May 9, 2024 No. E082661) [nonpub. opn.], involving two wrinkles to the peremptory-challenge deadline. Wrinkle #1: When the trial judge denied a...Read More >>

A Day Without a Court Reporter, published in California Litigation, May 2024

Last updated on May 16, 2024 by Tim Kowal
“Don’t forget to get a court reporter.” This stock advice of the appellate attorney used to leave my probate and family law colleagues unfazed: “Court reporters are already provided for us,” they’d say. But now that the court-reporter crisis has reached an acute stage, they don’t say it anymore. California Litigation has my article, “A...Read More >>

CEB has my article, “Super snap removals’ not permitted in Ninth Circuit”

Last updated on May 2, 2024 by Tim Kowal
CEB DailyNews has published my article, “Super snap removals’ not permitted in Ninth Circuit.” Where federal jurisdiction is based on diversity as in Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2). But that defect is deemed waived if the plaintiff does not seek...Read More >>

CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”

Last updated on April 10, 2024 by Tim Kowal
CEB DailyNews has published my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals.” The briefing faux pas in two recent cases garnered a lot of attention, especially Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), where counsel should have known better—leading to a published decision. Appellant’s counsel...Read More >>

CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

Last updated on March 27, 2024 by Tim Kowal
CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the...Read More >>

“Tackling Court Reporter Scarcity in California,” Presented to Santa Cruz Bar Association (Feb. 22, 2024)

Last updated on March 16, 2024 by Tim Kowal
Last month, I presented to the Santa Cruz Bar Association about the dwindling reserves of court reporters in California. The presentation includes a brief history why California law mostly prohibits electronic recording, why we have a critical shortage of court reporters, and what it means for your practice. You can download a PDF of the...Read More >>

CEB has my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty”

Last updated on February 9, 2024 by Tim Kowal
CEB DailyNews has published my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty.” It is about how the Court of Appeal has recently issued two writs on discovery issues—which appellate courts typically loathe. There are two things in common between the discovery writ in Regents...Read More >>

CEB has my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct”

Last updated on January 26, 2024 by Tim Kowal
CEB DailyNews has published my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct.” This is about Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.), where an attorney got a restraining order against her opposing counsel in a family law case. But the Court of...Read More >>

CEB has my article, “Arbitrator reversed for basing credibility on use of interpreter”

Last updated on January 12, 2024 by Tim Kowal
CEB DailyNews has published my article, “Arbitrator reversed for basing credibility on use of interpreter.” The article is about FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801. The arbitrator had ruled against the appellant based on a credibility determination, noting that “Mrs. Pham's use of an interpreter appeared to the Arbitrator...Read More >>

CEB has my article, “Lack of statement of decision leads to reversal”

Last updated on December 22, 2023 by Tim Kowal
CEB DailyNews has published my article, “Lack of statement of decision leads to reversal.” The article is about the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.], where the appellant correctly followed the two-step process for a statement of decision. When the trial court still...Read More >>

CEB has my article “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent”

Last updated on December 15, 2023 by Tim Kowal
CEB DailyNews has published my article, “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.” The article is about Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023), where the district court had ruled that, in a lawsuit involving trademark enforcement,...Read More >>

CEB has my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal”

Last updated on December 8, 2023 by Tim Kowal
CEB DailyNews has published my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal.” The article is about In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.), which distinguished void from voidable judgments. What makes a judgment or order “voidable” or “void” can be...Read More >>

CEB has my article, “Pay in 30 Days or Arbitration Is Forfeit—And ‘Check Is in the Mail’ Does Not Cut It”

Last updated on December 4, 2023 by Tim Kowal
CEB’s DailyNews has published my article, “Pay in 30 Days or Arbitration Is Forfeit -- and 'Check Is in the Mail' Does Not Cut It.” The article is a reminder to ensure you pay arbitration fees within 30 days. And make sure not only that fees have been paid, but received. The employer-defendant in Doe v....Read More >>

CEB DailyNews: How to Preserve Appellate Rights in Your Arbitration Agreement

Last updated on November 13, 2023 by Tim Kowal
CEB’s DailyNews has published my article, “How to Preserve Appellate Rights in Your Arbitration Agreement.” The article illustrates how to use the California Supreme Court’s suggestion in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 that parties agreeing to arbitration may also agree that the award be subject to judicial review on the merits. The case is...Read More >>

When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused (published at CEB)

Last updated on June 15, 2023 by Tim Kowal
CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here. The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when...Read More >>

CEB has my article, What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

Last updated on April 27, 2023 by Tim Kowal
CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil,...Read More >>

Can You Read It Back? Tackling Court Reporter Scarcity in California

Last updated on March 27, 2023 by Tim Kowal
CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription). Here is a summary: My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed...Read More >>

Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

Last updated on March 9, 2023 by Tim Kowal
CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the...Read More >>

Ten Trial Tips from an Appellate Specialist

Last updated on February 20, 2023 by Tim Kowal
Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a...Read More >>

There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness (CEB)

Last updated on February 6, 2023 by Tim Kowal
CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative”...Read More >>

SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

Last updated on December 22, 2022 by Tim Kowal
CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.” The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases...Read More >>

Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds

Last updated on December 7, 2022 by Tim Kowal
CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.” The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the...Read More >>

SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

Last updated on December 1, 2022 by Tim Kowal
We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them...Read More >>

Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment

Last updated on November 28, 2022 by Tim Kowal
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 >>

Preparing the Excerpts of Record for Federal Appeals

Last updated on November 13, 2022 by Tim Kowal
“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 >>

"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

"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

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

Leviticus

"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.)

"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

"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

"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

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

— H.L. Mencken

“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

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