Kowal Law Group Logo

Diverse Perspectives

| article | | podcast | | Videos |
May 13, 2021
Selecting Issues for Appeal? Look for Misapplication of the Legal Standard, Like in This Attorney Fee Case

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law. And most attorneys also know that "abuse of discretion" issues are lousy...

Read More
May 12, 2021
The 180-Day Deadline to Appeal Is Not Subject to Extension, Waiver, or "Fundamental Fairness"​

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from...

Read More
May 12, 2021
"The opinion is eight pages without a reason to exist."​

If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because the legal application consists entirely of just two sentences: "We offered minor an opportunity...

Read More
May 12, 2021
There Are Few Requirements for a Notice of Appeal, But This 9th Cir. Appeal Is Dismissed for Failing Nearly All of Them

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed all of them. To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the...

Read More
May 12, 2021
Genetic Testing, Charles Manson, Appellate Oral Argument, and Tentative Opinions on Appeal: An Interview with Alan Yockelson

On our latest podcast, Jeff Lewis and I interview Alan Yockelson, discussing genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud. Also discussed: • The value of tentative opinions on appeal • How appellate oral argument can change an outcome • Asserting objections...

Read More
May 12, 2021
"Are We the Baddies?" 

As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies? "Hans.. I have just noticed something. ... Have you looked at our caps recently?" "Our caps?" "Yeah, the badges on our caps, have you looked at them?" "What? No, a bit..?"...

Read More
May 12, 2021
Update Your Trial Bookmarks: Dispositive Motions in Limine and Nonstatutory Motions for Judgment on the Pleadings "a Recipe for Reversal"​

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings. Finally, there is also an excellent tip for expediting an appeal of an...

Read More
May 5, 2021
Backdoor Stays of Unlawful Detainer Actions Via Quash Motions No Longer Available

Here is an appellate procedure trick I wish I'd thought of. Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months (in this particular case, by over two years): by filing a motion to quash the complaint. A...

Read More
May 4, 2021
Another Court Hits Amazon with Strict Liability for Another Incendiary Electronic Device

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District...

Read More
May 3, 2021
A Cautionary Tale Against Taking an Appeal Too Early: Kurwa v. Kislinger (Cal. 2007)

What's the worst can happen by taking an appeal too early? I am asked this often (and I've discussed related topics here and here), and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to...

Read More
April 30, 2021
The Parable of the Principled Client

Client asks an attorney to file a lawsuit over a business dispute. "Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on my normal fee it would not make sense." "I understand, but this is about vindicating a principle." While considering this a bit irrational, attorney says...

Read More
April 28, 2021
Changes to the California Supreme Court Publication Rules

Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review...

Read More
April 26, 2021
Punitive Damages Are Reviewed De Novo; and Effective Use of Dicta

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively. In Rubio, an employee claimed she...

Read More
April 23, 2021
New Trial Motions Are a Procedural Minefield

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal. A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021)...

Read More
April 21, 2021
Order Denying New Trial Motion Not Appealable, Unless It Only Partially Denies It

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial...

Read More
April 16, 2021
Charles Manson's Grandson Not Required to Submit to DNA Testing, Court of Appeal Holds

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will....

Read More
April 15, 2021
The Notice of Appeal Is Deemed Filed When the Clerk Receives It...

... not when the clerk happens to get around to filing it. In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date...

Read More
April 14, 2021
Split Appellate Court Finds Arbitration Waived (But Dissent Has the Better Argument)

In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind. In Wells Fargo Bank, N.A. v. Agak...

Read More
April 14, 2021
Default Judgment Set Aside on Showing of Merit, Excuse, and Diligence; and a Comment on Civility

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000. When landlord got notice of the default judgment nearly a year...

Read More
April 9, 2021
Court Holds Every One of Appellant's Arguments Waived

About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited...

Read More
April 8, 2021
Can You Waive or Stipulate to Standing Defects? Court of Appeal Says Yes

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to. But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. Humboldt County voters passed a tax measure on marijuana cultivators back in 2016. The measure...

Read More
April 7, 2021
Probate Court May Order Mediation, Deem Non-Participating Beneficiary Rights Forfeit, Split Appellate Court Holds

In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeited all rights to object to the mediated settlement. In Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382, the settlor of a trust valued at upwards of $3 million provided for gifts to many charitable and nonprofit organizations. Those groups...

Read More
April 6, 2021
Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act,...

Read More
April 5, 2021
Appeal Held Improper Following Motion to Vacate Prejudgment Orders

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.) Before appealing, employers tried to undo the damage in the trial court. But they bungled that,...

Read More
April 1, 2021
Out-of-State Litigant Did Not Waive Personal Jurisdiction, Family Court Order Reversed

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance without waiving jurisdictional challenges. And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as...

Read More
April 1, 2021
Important Differences in Federal and State Appeals, with Cory Webster

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals.  We discuss: Pitfalls in failing to make crucial posttrial motions (FRCP 50). The vastly different approaches to oral arguments in federal court. The impact of amicus...

Read More
March 31, 2021
9th Cir. Reverses $1.8B Summary Judgment Against Discovery Abuser, Suggests District Court Impose Terminating Sanctions Instead

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim. The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand. In AECOM Energy and Construction...

Read More
March 30, 2021
Appellate Court Rejects Covid Excuses for Appeal Filed One Day Late

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument. The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Plaintiff's complaint, alleging...

Read More
March 25, 2021
9th Cir. Holds Appellate Issues Waived for Failure to Raise Them Both Before and After Submission to Jury

Covering the differences between California state and federal appeals on the California Appellate Law Podcast (available Tuesday, Mar. 30), co-hosts Jeff Lewis and I discussed with guest Cory Webster the importance of Federal Rules of Civil Procedure 50, governing motions for judgment as a matter of law made before submission to the jury and after judgment. If...

Read More
March 23, 2021
Appellate Court Holds Respondent Forfeited Issues and Failed to Establish Implied Findings

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in...

Read More
1 20 21 22 23 24 27
Copyright © 2024 Kowal Law Group
menuchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram