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December 16, 2022
How Can There Be “Yeoman’s Work” Without Any Yeomen?

Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty...

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December 14, 2022
Stipulated Briefing Extension Requests MUST Be Granted, Supreme Court Says

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension. In Aaronoff v. Olson,...

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December 13, 2022
New Cases on MSJ Evidence Rulings and Elder Abuse Attachment Orders

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new...

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December 9, 2022
The “Published” Vs. “Unpublished” Distinction Matters Less Than You Think, Says Justice Lambden

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases. Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning...

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December 8, 2022
What Starts the 60-Day Deadline to Move for Attorney Fees (or Appeal)? It Took Two Documents to Trigger in This Case

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline. After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz...

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December 7, 2022
Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds

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...

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December 6, 2022
New Case Tips for Judgment Creditors & Litigation Privilege

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising....

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December 5, 2022
Yes, You Need a Court Reporter at the Hearing on a Motion for Anti-SLAPP Fees

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of...

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December 1, 2022
SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

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...

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November 30, 2022
Skip Arguments in Your Brief, Lose Your Appeal

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its...

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November 29, 2022
“Being Inauthentic Is a Betrayal of People’s Expectations”: Kyle Schneberg on Nursing Home Injury Law

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss: The different approaches taken by personal injury attorneys,...

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November 28, 2022
Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment

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...

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November 23, 2022
Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published Case Holds

There are some interesting new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. And then the domesticated judgment may be re-domesticated...

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November 22, 2022
M.C. Sungaila Reports Back After Over 100 Interviews of Women Judges & Attorneys at the Portia Project

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation. M.C. sits down with Tim...

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November 21, 2022
A denial of a clemency request in CA amounts to a finding of abuse of power

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,...

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November 18, 2022
Why Justice Bedsworth Called Justice Thompson “Hard Headed”

Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.” “Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins...

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November 17, 2022
Disqualification motion tolls posttrial and appellate deadlines

Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner,...

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November 16, 2022
Advocacy Justice: Justice Lambden used to send opinions as “FYIs” to the Legislature

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...

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November 15, 2022
“You Can’t Lose a Case by Making It Too Clear”: An Interview with Justice John Zebrowski

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes. This is but one...

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November 14, 2022
Attachment Not Available for Punitive Damages in Elder Abuse Claims

When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based...

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November 13, 2022
Preparing the Excerpts of Record for Federal Appeals

“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...

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November 11, 2022
Something You Didn't Know About 998 Offers

“CEB has published” Tim Kowal, “Something You Didn't Know About 998 Offers,” CEB (Apr. 30, 2021), available at  http://bit.ly/3AbqAhI Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer, according to Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished). My original blog...

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November 11, 2022
Making Sense of the California Supreme Court's Publication Rules

“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...

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November 11, 2022
Writ Petitions Are Won or Lost in the First Paragraph

When you have a legal emergency and you need the Court of Appeal to act right away, you need writ relief. But less than 10% of writ petitions are granted. So how do you get the court’s attention? Justice David Thompson spent more time on his court’s writ panel over the last decade than anyone,...

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November 11, 2022
MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority

CEB has published my article, “MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority,” about the recent published opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 holding that evidentiary rulings in connection with summary judgment are reviewed on appeal for abuse of discretion....

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November 10, 2022
Update: Opinion Published in Doe v. Software One, Inc.

In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145, covered here. On November 8, the court ordered the opinion be published. Doe v. Software One holds that evidentiary rulings in deciding a motion for summary judgment are reviewed...

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November 9, 2022
$2.5M Discovery Sanction Reversed Because Not Authorized by a Specific Statute, But Justice Grimes Pens a Strong Dissent

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)...

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November 8, 2022
Where’s the Harm?! & Other October 2022 Cases

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Transcon Financial, Inc. v. Reid & Hellyer reversed a sanctions order for the reason that the offending party was not given the full 21-day...

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November 8, 2022
Concede Weak Arguments, Gain Credibility, Says Justice Lambden

Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments. But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more...

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November 3, 2022
Gov Newsom appointed a new Supreme Court justice, but he should have nominated her

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...

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