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,...
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....
In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no.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...
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)...
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...
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...
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...
There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30...
If you were a lawyer drawing breath in summer 2022, you heard about the “victory bell” case. A prominent defense attorney, returning to base camp with a stunning victory after defensing a medical malpractice case, rang his firm’s victory bell and announced, the victim “was probably negligently killed, but we kind of made it look...
“Are you one of them liberal judges?” someone once asked Justice Lambden. Calling himself a “process judge,” Justice Lambden responded, “Well, if Congress passed a liberal law, I’d enforce it. If it passed a conservative law, then I’d enforce that.” Still, most judges want to get the “right result.” What does this mean for litigators?...
Justice David Thompson sets up the oral argument Catch-22: If the argument wasn’t in your brief, why wasn’t it in your brief?! If the argument was in your brief, then why are you repeating yourself?! This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument. In...
CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at https://bit.ly/3WjAZ4m The PDF article is here: Tim Kowal_CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”.pdf The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d...
Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An ophthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit. That...
We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun....
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....
If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor. How long is the 21-day safe harbor? There is now a published decision to tell us. The...
If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default. (LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137 (LaSalle).) But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s...
Jeff and Tim discuss some recent cases to add to your attorney toolkit: For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off. (People v. Nonaka, (Sep. 30, 2022, 2d Crim....
UPDATE: The Court granted a publication request (filed by this commentator) on November 8, 2022. See here. A big part of winning at trial is getting your evidence in—and keeping your opponent’s evidence out. So on appeal, parties often argue that the judge made the wrong ruling when it kept your favorable evidence out—or let...
There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal. And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a...
Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument. Justice Thompson discusses his more stringent judicial...
CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY. The PDF article is here: Tim Kowal_Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict.pdf The case involved a trial error in which the...
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...
…unless the appeal is dismissed because it was premature. If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice. That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the...
Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (We covered Clarity in episode 31 of the California Appellate Law Podcast.) But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing...
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...
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...
Lawyers and judges have, by now in late 2022, gotten quite comfortable using remote trial to conduct legal proceedings. Depositions, mediations, arbitrations, even whole trials may be conducted via Zoom. But Zoom trials are not the new normal. Not until the Legislature says otherwise, anyway. That’s what the Court of Appeal held in Rycz v....
What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light...
So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal. Sharma lost her auto-defect case after a jury trial....
