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March 16, 2024
“Tackling Court Reporter Scarcity in California,” Presented to Santa Cruz Bar Association (Feb. 22, 2024)

Last month, I presented to the Santa Cruz Bar Association about the dwindling reserves of court reporters in California. The presentation includes a brief history why California law mostly prohibits electronic recording, why we have a critical shortage of court reporters, and what it means for your practice. You can download a PDF of the...

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March 14, 2024
Even when fact-finding is purely document-based, appellate court still defers to the trial judge

A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian...

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March 11, 2024
Once jury trial is waived, recent Supreme Court decision makes the trial court’s refusal to set aside the waiver effectively unreviewable

The upshot of the recent Supreme Court decision in TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368) is simple: If you waive your right to a jury, and then the trial court denies your request to set aside the waiver, that is that. While you have a nominal right to seek writ relief, you...

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March 5, 2024
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn...

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March 4, 2024
New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence

When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in Gomez v. City of Rialto Police Dep't (D4d1 Feb. 29, 2024 No. D083074) [nonpub. opn.], had the right idea, but did not comply with the requirement to file a declaration with a...

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February 29, 2024
Does 998 cost-shifting apply to settlements? A three-way split?

The parties settled the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884). But the settlement amount was less than defendant Fiat-Chrysler’s Code of Civil Procedure section 998 offer. So Fiat-Chrysler said that means all plaintiff’s post-offer fees and costs are unrecoverable, and the trial court agreed. The trial court...

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February 27, 2024
Judge Nazarian to Judges: Take the Accountability Pledge

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial...

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February 26, 2024
Could a California judge enjoin Donald Trump from seeking a loan to get an appellate bond?

By now, you know about the $350 million-plus in damages that New York judge Arthur F Engoron awarded against Donald Trump and his companies. Trial-court news normally has a short expiration date, as it awaits the bigger news about what happens on appeal. But an appeal could be off the table because of a striking...

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February 22, 2024
In dispute over which employer is liable for negligence, what employee thinks is irrelevant

It’s not everyday you see a judgment reversed for lack of substantial evidence. A food-truck worker, hit by a car while packing up after a stop, recovered over $8.2 million against the food-truck commissary where the food truck was stored. But the court reversed in Guzman v. Younan (D2d4 Feb. 16, 2024 No. B317573) [nonpub....

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February 20, 2024
Sleep Well, Crush Your Enemies, with Leslie Porter

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road,...

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February 19, 2024
Denying an untimely but meritorious motion for reconsideration was reversible error

After the trial court compelled arbitration in a car-defect dispute, the plaintiff moved for reconsideration. But the trial court’s ruling was correct, and the plaintiff’s motion was untimely. So it was no surprise when the court denied the motion. That made it all the more surprising when the Court of Appeal in Contreras v. Superior...

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February 14, 2024
You can appeal from a postjudgment order, but not to challenge the judgment

After entering a visitation order for great-grandparents, the court entered another order modifying it. The mother appealed from the modification. The court in Rodriguez v. Rodriguez (D5 Feb. 9, 2024 No. F086277) [nonpub. opn.] held that, yes, the modification was appealable, but the issues the mother was challenging were in the first order. And the...

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February 13, 2024
So You Think You Understand the Snitch Rule?

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.)...

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February 12, 2024
Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism

A D.C. jury found climate scientist Michael Mann was not harmed by criticism that Penn State had whitewashed its investigation of his provocative “hockey stick” graph, which used proxy data such as tree rings to depict global temperatures holding steady for hundreds of years before spiking sharply in the 1800s. The jury awarded only $1...

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February 9, 2024
CEB has my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty”

CEB DailyNews has published my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty.” It is about how the Court of Appeal has recently issued two writs on discovery issues—which appellate courts typically loathe. There are two things in common between the discovery writ in Regents...

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February 8, 2024
Attorney who ignored appellate rules hit with $50k in sanctions

Failing to request a statement of decision. Misunderstanding what “substantial evidence” means. Preparing an incomplete appellate record. Yes, these mistakes will lose you your appeal. But they can also get you sanctioned. The appellant’s counsel in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.) got sanctioned nearly $50,000 for pursuing a...

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February 6, 2024
Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case

Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to...

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February 5, 2024
Climate Change on Trial

Wealth, class, and high office don’t buy a lot of respect these days, but people listen if you’ve got some extra letters hung on the end of your name as scientists do. So climate scientist Michael E. Mann, Ph.D, sued for defamation when Rand Simberg and Mark Steyn called his “hockey stick” graph the product...

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January 31, 2024
Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion

An anti-SLAPP motion is a species of motion to strike. So some authorities have held that this means California Rules of Court, rule 3.1322 applies, requiring that the challenged allegations be quoted chapter and verse. (Chop Won Park v. Nazari (D2d5 Jul. 25, 2023 No. B320483).) But District Three disagreed in the published portion of...

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January 30, 2024
No More Anti-SLAPPs in Fed Court? With Cory Webster

The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an...

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January 29, 2024
Racial Justice Act motion requires case-specific facts, not mere statistical analysis

Russell Lynwood Austin murdered his pregnant ex-girlfriend in her apartment with her two-year-old present. Austin slit her throat so violently that he nearly decapitated her. Austin then fled, leaving her bloody body, and her dying fetus, with the naked two-year-old child. The D.A. charged Austin with double-homicide and sought the death penalty. But Austin is...

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January 26, 2024
CEB has my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct”

CEB DailyNews has published my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct.” This is about Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.), where an attorney got a restraining order against her opposing counsel in a family law case. But the Court of...

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January 25, 2024
Panel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t

One big limitation in the 9th Circuit is that a three-judge panel is absolutely bound by a prior panel decision. Just see, for example, the recent panel decision in Martinez v. ZoomInfo Techs.: even though a majority of the panel disagreed with the precedent that anti-SLAPP denials are appealable, they had to go along with the precedent...

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January 24, 2024
Cert on Homeless Encampments and En Banc on SLAPPs

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published...

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January 24, 2024
Is raising a right generally at trial enough to preserve more specific arguments for appeal?

The FBI, growing frustrated in an investigation into a company that furnishes private lockboxes, got a warrant to search entire “nests” of lockboxes. Including lockboxes held by perfectly law-abiding plaintiffs, which are the subject of Snitko v. United States, No. 22-56050 (9th Cir. Jan. 23, 2024). When the FBI got the warrant, they told the...

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January 22, 2024
Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look

There has been a steady drumbeat to revisit the 9th Circuit’s precedent making anti-SLAPP orders appealable. Anti-SLAPP orders are similar to orders on motions to dismiss or for summary judgment, but they invoke specific state-law procedures—procedures that do not quite track with federal rule 12(b) or rule 56. And federal courts do not apply state...

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January 18, 2024
Doing a double-take after Supreme Court’s Jack Daniel’s holding, 9th Cir. reverses itself in Punchbowl News trademark case

The 9th Circuit was bound by its trademark precedent holding an exception to the Lanham Act for expressive works, which was why in Punchbowl, Inc. v. AJ Press, LLC, No. 21-55881 (9th Cir. Jan. 12, 2024) it affirmed a summary judgment against plaintiff greeting-card maker in favor of a news website—both going by the name...

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January 16, 2024
Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases

California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases:   Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page....

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January 15, 2024
In San Fran homelessness case in 9th Cir., two stark opinions about waiver

San Francisco—responding to a surge in homelessness—enacted time-and-place anti-vagrancy ordinances restricting sleeping in public places. But the district court enjoined the laws, and in Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024), the 9th Circuit affirmed. Following two recent 9th Circuit cases, the court held that the city violated the...

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January 12, 2024
CEB has my article, “Arbitrator reversed for basing credibility on use of interpreter”

CEB DailyNews has published my article, “Arbitrator reversed for basing credibility on use of interpreter.” The article is about FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801. The arbitrator had ruled against the appellant based on a credibility determination, noting that “Mrs. Pham's use of an interpreter appeared to the Arbitrator...

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