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...
Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all. In this, the Judicial Council form...
Every attorney who loses a case feels the sting of defeat. But the losses you never forget are the ones you really deserved to win. I share two experiences where trial judges were not following the law. The first judge indicated he was going to rule based on “cultural considerations” favoring a family patriarch. But...
There is a high frustration quotient in defending against judgment enforcement. There is supposed to be an automatic stay of orders on appeal, but in practice this is wishful thinking. So you may have to do what the aggrieved party did in Merritt v. Specialized Loan Servicing, LLC (D6 Aug. 11, 2022 No. H048463) 2022...
So you won a huge court case? Big deal — can you collect? Judgment enforcement, and defense against judgment enforcement, are critically important to litigants. But enforcement sits in that twilight region in between the trial and the appeal, so most trial and appellate attorneys do not know a lot about it. But Joseph Chora...
[Blog note: After this firm, joined by Jeff Lewis Law, filed a request for publication, on September 7, 2022 the court granted publication. The opinion is now published. ] Put on your anti-SLAPP issue-spotting glasses and see if you spot the issue in this fact pattern: Plaintiff sues his business partner for taking money from the...
Senior Judge Clifford Wallace of the 9th Circuit has said, speaking of appellate court mediation programs, that “we ha[ve] a way to get people to talk.” Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about the effectiveness of appellate court mediation programs — and about one unusual way a judge might get parties to talk. Watch...
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. Siry held that the remedies under Penal Code section 496(c) — treble damages and attorney...
Business litigators need to know about the civil-theft remedies under Penal Code section 496. After some appellate courts expressed distaste for awarding treble damages and attorney fees to garden-variety business torts, Tim Kowal and Jeff Lewis discuss the California Supreme Court’s opinion deciding the question: Yes, it seems a little surprising—but yes, that is what...
Judges are rightly frustrated with counsel who do not respond to unfavorable facts and arguments. So when asked what I find frustrating about appellate practice, my answer is: judicial opinions that do not answer the strongest arguments. On most occasions when an appellate court has not agreed with my client’s position, our courts give excellent...
You can be sanctioned for lying to a court or from failing to disclose key authorities. That’s obvious. But two recent courts remind the bar that appellate sanctions may be imposed for making bad arguments. One of those cases imposed a whopping $107,000 in appellate sanctions. The other court did not issue sanctions, but signaled...
“The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent. Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal...
Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, there is nothing you can do about it. Christopher Melcher joins Tim Kowal and Jeff Lewis to discuss People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___....
I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind...
Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney...
Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC...
Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a jury to remember a few things, but one too many and they...
