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....
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...
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...
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...
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....
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...
“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...
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...
So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 confirms, the exceptions are few...
The California Supreme Court will review a surprising appellate court holding from earlier this year (writeup here; podcast here) that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months...
What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California...
Legal writing and editing nerds, you may have opinions on this. Benjamin Shatz sounds off on whether the Blue Book or the Yellow Book is the superior form of legal citation. Ben’s answer: It’s a ridiculous question. There is no such thing as a “superior” citation format. Just an appropriate format: If you are in federal court,...
If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA. The link to the article is here: https://bit.ly/3wO1i7A Related...
Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216. In that case, a neighborhood group...
Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about: her commitment to serving the community, and why we can’t throw up our hands because...
Should appellate courts mediate disputes? Appellate specialist and mediator John Derrick says that the court’s mission is to “weave the tapestry of the common law,” and you do that by deciding cases, not by settling them. After all, you don’t see the Supreme Court trying to get cases to settle, now do you? Watch the...
After being sued, you have to answer the complaint. That part is obvious. But what about a cross-complaint? If you have cross-claims against the plaintiff, and you don’t assert them right away, can they become time-barred? Until now, this was a concern. But the recent published opinion in Paredes v. Credit Consulting Servs. (D6 Aug....
One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually...
Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions: Spending money on litigation is not protected activity if the case is really about the misappropriation of the money. That’s Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.) (Tim’s writeup is here). Appealing an anti-SLAPP...
