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November 2, 2022
Settlement Offer Under § 998 Automatically Expires If Judge Grants Summary Judgment

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...

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November 1, 2022
The Lawyer Who Reversed the “Victory Bell” Case, with Brooke Bove

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...

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October 31, 2022
Litigation Is Not a Battle, It's an Expedition, Says Justice Lambden

“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?...

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October 28, 2022
Justice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions

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...

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October 27, 2022
CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”

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...

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October 26, 2022
Medical expert’s opinion based on process of elimination was improperly excluded from trial, appellate court holds

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...

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October 25, 2022
“Gateway Drugs” to Legal Tech, with Ernie Svenson

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....

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October 24, 2022
Covid-restrictions on churches likely unconstitutional where secular establishes are exempted, says Cal. Court of Appeal

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....

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October 20, 2022
The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early, Court Holds

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...

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October 19, 2022
Don’t Seek Default Without Notifying Opposing Counsel. Just Don’t.

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...

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October 18, 2022
Zoom Trials Are Not (Yet) the New Normal

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....

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October 13, 2022
MSJ Evidence Rulings Are Discretionary, Court Holds in Split of Authority

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...

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October 12, 2022
Creditor may intervene to prevent debtor from colluding to pay a different creditor

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...

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October 11, 2022
“You Know It When You See It”: Justice Thompson (Ret.) on Writ Relief and Judicial Philosophy

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...

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October 11, 2022
Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

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...

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October 11, 2022
Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases

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...

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October 6, 2022
Caution: A Dismissed Appeal Is with Prejudice

…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...

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October 5, 2022
Attorney Sanctioned Over $24K for Frivolous SLAPP & Appeal

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...

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October 4, 2022
The Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David Ettinger

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...

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September 29, 2022
Bees Are Fish, But Review Denials Are Not Precedent

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...

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September 28, 2022
No, Zoom Trials Are Not a Substitute for Real Trials

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....

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September 27, 2022
New Lawyer’s Toolkit Cases on Missing Findings & E-Filing Mishaps

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...

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September 22, 2022
How does the extension of time to appeal under rule 8.108 work?

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....

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September 21, 2022
An Untimely Motion to Vacate Is Still “Valid” to Extend the Deadline to Appeal

You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL...

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September 20, 2022
“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should...

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September 16, 2022
Tim Tells a Norm MacDonald Joke

Just for fun, here is one of my favorite Norm McDonald jokes (RIP). Watch the clip here.  This is a clip from episode 30 of the California Appellate Law Podcast. The full episode is available here. Related Posts: Why Don't Appellate Judges Ask More Questions? Have you Noticed a Decline in Civility? Choosing the Right...

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September 15, 2022
Courts Really Mean It That Written Findings Are Required to Rebut the Fam. Code § 3044 Domestic-Violence Presumption

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no....

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September 14, 2022
Order Excluding Party’s Sole Witness Held an Abuse of Discretion

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented...

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September 13, 2022
Why Are Courts Sour on CEQA? Peter Prows Explains

“Something is very wrong with this picture.” This is how the Court of Appeal recently concluded a CEQA case—with finger pointed in CEQA’s direction. Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA. Peter talks with co-hosts Tim Kowal and Jeff...

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September 9, 2022
“You Had to Be There” Doesn't Work on Appeal

One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.” That may be so. But there is someone else who wasn’t there, Three...

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