Appellate rules are treated as jurisdictional.* So it is important for appellate rules to be very clear. One such nice and clear rule is: Orders granting summary judgment are not appealable. (Code Civ. Proc., § 437c, subd. (m)(1); Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.) Except, the rule is a lie,...
The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California...
Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel. What is “embedded...
After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow...
When trying to settle or mediate a case on appeal, how important is it to stay enforcement of judgment? Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about whether posting a bond make a judgment-creditor more or less likely to come to the table. And what about the strange and rare personal-surety bonds? Watch the clip...
I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable. Liang involved an action...
Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career. Aliza also...
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 case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial...
The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it. Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But...
Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger. Meinhardt...
H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.” In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is...
If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it. Ross also addressed my view: that I trust judges to “clean up” quotations,...
Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise. Watch the clip here. This is a clip from episode 33 of the California Appellate Law Podcast. The full episode is available...
“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again. At the trial between the two partners in a restaurant business in...
The Co-Founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about: Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for....
In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his...
California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version here: https://bit.ly/3aFty3P A PDF of the article is here: Litigation-Volume-35-Number-1-2022, T. Kowal, Are Anti-SLAPP Fee Awards Stayed.pdf My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But...
When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well. Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems...
The anti-SLAPP statute allows defendants to challenge complaints that chill the rights to speak and petition. But the rights to speak and petition have blurry and elastic boundaries. So often plaintiffs with legitimate claims get stuck defending SLAPP motions. Worse, when the plaintiff defeats a meritless SLAPP motion, the defendant gets to appeal. That’s what...
The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen? Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over...
In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court...
Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal. And Jeff previews an anti-SLAPP motion brought by...
Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial...
A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own. The plaintiff noted...
High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse. Chris then talks about a way to bring...
Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot. David explains why this is an important tool in many probate cases. Watch...
Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process. Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your...
The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders. That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d...
Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff and Tim on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com. Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac),...
CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here. The PDF article is here: Tim Kowal_Draft Your RFAs With Costs of Proof and Settlement in Mind.pdf Spahn held...
