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May 16, 2024
A Day Without a Court Reporter, published in California Litigation, May 2024

“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...

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May 14, 2024
Top 10 Tips from Court of Appeal Research Attorneys

Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste: 😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites...

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May 9, 2024
Lawyer “immortalized in the California Appellate Reports” for incivility

"Lawyers and judges of our generation,” says the Court of Appeal, “spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.” But that golden age, judging from the opinion in Masimo Corp. v. The Vanderpool Law Firm, Inc., (D4d3 May 2, 2024 No....

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May 7, 2024
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2)

Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano. After covering the fact that the school district, to get out of helping a dyslexic...

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May 2, 2024
CEB has my article, “Super snap removals’ not permitted in Ninth Circuit”

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...

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May 1, 2024
Untimely appeal saved “as a matter of fairness”

California follows the “one shot rule” for appeals, meaning, you only get one shot to appeal, and if you miss that shot then you’re done. Courts follow the rule religiously. No sympathy allowed. But the Second District felt sympathy for the attorneys’ fees order in Norman v. Ross (D2d4 Apr. 23, 2024 No. B316971) [cert....

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April 30, 2024
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1)

A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams. In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to...

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April 23, 2024
What to know about “snap” and “super snap” removals

Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants. But don’t commit...

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April 17, 2024
Is the Racial Justice Act Unconstitutional?

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if...

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April 16, 2024
“Super snap removals” not permitted in Ninth Circuit

Here’s a first-year civ pro question with a twist: Plaintiff files a complaint in state court. But before court processes it for filing, defendant—who, not even served yet, gets wind of the complaint through an efile-watcher service—files a notice of removal in federal court. Question: Is this “super-snap removal” effective? The answer is important because,...

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April 11, 2024
The Racial Justice Act Is Unconstitutional

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...

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April 10, 2024
CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”

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...

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April 9, 2024
Top 10 Tips for Family Law Appeals

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include: 👉 Know your appealable issues—appeal now, or lose it forever! 👉 Request a statement of decision. Don’t need to, you say?...

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April 2, 2024
Social Media and Jury Waiver High Court Cases, and Other Appellate News

The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and...

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March 28, 2024
Defective appellate briefing in two cases results in dismissed appeals

Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District in Schwartz v. Noya (D2d6 Mar. 20, 2024 No. B329331) [nonpub. opn.] was not happy...

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March 27, 2024
CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

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...

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March 26, 2024
Five Hard Truths About an Appellate Practice, with Raffi Melkonian

Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is...

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March 19, 2024
“Motion granted, Bimbo!”

You can’t change your name to something offensive, but the Court of Appeal publishes its opinion in Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.] to announce that, as a matter of law, “Bimbo” is not offensive. The full name the appellant sought was “Candi Bimbo Doll.” This...

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March 18, 2024
Found liable for deceiving students in 1.2 million(!) misstatements, university could not use appeal to call itself a “place of opportunity” for students

Ashford University, an admissions mill, was found to have made a pattern of misstatements in the admissions process—1.2 million of them—ranging from misstating that a degree would qualify graduates for teaching and helping careers, and downplaying financial aid and debt obligations. The university appealed the amount of the award, clocking in at over $22 million....

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March 16, 2024
“Tackling Court Reporter Scarcity in California,” Presented to Santa Cruz Bar Association (Feb. 22, 2024)

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...

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March 14, 2024
Even when fact-finding is purely document-based, appellate court still defers to the trial judge

A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian...

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March 11, 2024
Once jury trial is waived, recent Supreme Court decision makes the trial court’s refusal to set aside the waiver effectively unreviewable

The upshot of the recent Supreme Court decision in TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368) is simple: If you waive your right to a jury, and then the trial court denies your request to set aside the waiver, that is that. While you have a nominal right to seek writ relief, you...

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March 5, 2024
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn...

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March 4, 2024
New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence

When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in Gomez v. City of Rialto Police Dep't (D4d1 Feb. 29, 2024 No. D083074) [nonpub. opn.], had the right idea, but did not comply with the requirement to file a declaration with a...

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February 29, 2024
Does 998 cost-shifting apply to settlements? A three-way split?

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...

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February 27, 2024
Judge Nazarian to Judges: Take the Accountability Pledge

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial...

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February 26, 2024
Could a California judge enjoin Donald Trump from seeking a loan to get an appellate bond?

By now, you know about the $350 million-plus in damages that New York judge Arthur F Engoron awarded against Donald Trump and his companies. Trial-court news normally has a short expiration date, as it awaits the bigger news about what happens on appeal. But an appeal could be off the table because of a striking...

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February 22, 2024
In dispute over which employer is liable for negligence, what employee thinks is irrelevant

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....

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February 20, 2024
Sleep Well, Crush Your Enemies, with Leslie Porter

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road,...

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February 19, 2024
Denying an untimely but meritorious motion for reconsideration was reversible error

After the trial court compelled arbitration in a car-defect dispute, the plaintiff moved for reconsideration. But the trial court’s ruling was correct, and the plaintiff’s motion was untimely. So it was no surprise when the court denied the motion. That made it all the more surprising when the Court of Appeal in Contreras v. Superior...

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"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

"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.)

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


"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

“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

"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

"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

"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

"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

"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

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

— H.L. Mencken

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