In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court...
If you have ever held a redacted document up to the light to see the redacted text, you know other attorneys are doing the same. In a redacted PDF, you might be able to copy and paste the obscured text. I've also seen redactions made with black boxes that could simply be moved aside. Here's...
Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" upon continuance or postponement of trial. That includes discovery, expert discovery, and summary judgment motions. It also provides at Code Civ. Proc., § 2035.310 that...
Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate judges, there is little to report back to the client. This new analysis gives you something to say. Appellate attorney Kirk Jenkins has an analysis...
-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think about appealability and timeliness issues!) -- Last year saw the most depublished opinions in a decade. Not by a lot. But I find it noteworthy...
A holdout juror in a murder case talked to an attorney about being badgered by the other jury members. The attorney appears in court to inform the judge about the conflict. The judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes. A Sixth Amendment violation?...
The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, the First District reversed an order granting reconsideration of a prior judge's ruling, even though the motion was procedurally invalid. The court traced a split...
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the...
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Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still more frustrating is that you cannot prevent judges from reading unpublished decisions that are unfavorable to your case, or from relying on those opinions. A...
At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: Justice Judith McConnell from Division One (San Diego), Justice Manuel Ramirez from Division Two (Riverside), and Justice Kathleen O'Leary from Division Three (Santa Ana). Some...
Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a...
On Episode 5 of the Cal. Appellate Law Podcast, We Discuss Juror Peremptory Challenges and More SLAPP Orders My colleague Jeff Lewis and I started the California Appellate Law Podcast because many of our best clients are attorneys, and we wanted to create a resource to help these attorneys avoid falling into appellate traps before they...
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. In episode 5 we discuss California cases and procedures in impacting making and challenging peremptory challenges to jurors and motions for reconsideration. Appellate Specialist Jeff Lewis' biographyAppellate Specialist Tim Kowal's biographySign up for Tim Kowal’s Weekly Legal Update Cases and Laws mentioned in...
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here. If You Plan Ever to Make a Peremptory Challenge to a Juror Again, Read This Under AB 3070 now awaiting Gov. Newsom's signature, any peremptory challenge to a juror would be subject to objection...
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here. Covid EXTENSIONS Have Expired, But Covid EXCUSES May Still Work The First Appellate District (Rowan v. Kirkpatrick, A160568) observes that while the Covid-related extended deadlines have passed, "Courts have long recognized the policy, based...
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here. Beware Appealing Questions of Law on a Preliminary Injunction: Does New Jersey's ban on large capacity magazines violate the Second Amendment?Third Circuit: We already decided that it does not when we denied the plaintiffs'...
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here. NOT the Schoolhouse Rock Version of Cal. Supreme Court Review.First, a chilling Third District decision says if a sheriff's deputy asks you to check on a neighbor, omits the fact the neighbor had whispered...
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. This episode discusses cases and procedures in appealing preliminary injunctions. Listen here. Appellate Specialist Jeff Lewis' biography.Appellate Specialist Tim Kowal's biography . Cases mentioned in this episode ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1 Abbott Laboratories v. The Superior Court (2018)...
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here. This episode of California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments. Listen here. Appellate Specialist Jeff Lewis' biography and background.Appellate Specialist Tim Kowal's biography and background. Cases mentioned in this...
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here. This episode of California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision. Listen here. Appellate Specialist Jeff Lewis' biography...
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here. The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted...
Pokemon Go-maker Niantec moved to dismiss the class action that alleges the wildly popular app causes droves of users to trespass on private property in order to find, buy, and play with in-game prizes. Niantec points the finger at its users, insisting the game maker is not responsible for what users do since it displays disclaimers telling...
In a recent property-dispute opinion, the Second District in Shoen v. Zacarias came to the perfectly sensible decision that equity is not aroused by a trespasser's inconvenience in relocating $275 in lawn furniture. As is so often interesting (and frustrating) about the law is that reasonable minds can disagree. In fact, the trial court had ruled otherwise,...
"It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation between good fences and good neighbors and, if so, whether causality runs in the opposite direction (i.e., maybe good neighbors build good fences). But it cannot be denied that a good fence accurately demarcating the...
With the recent publicity of Hulk Hogan's lawsuit against Gawker Media, and specifically the funding of the lawsuit by third-party Silicon Valley billionaire Peter Thiel, much attention has been drawn to the practice of "litigation funding." The term refers to the practice in which an outside party funds all or part of a plaintiff's litigation...
Irrevocable trusts are often used to protect assets from the reach of creditors, but courts have chipped away at their foundation. In U.S. v. Harris, No. 16-10152 (9th Cir. Apr. 20, 2017), the Ninth Circuit recently held that a beneficiary's right to receive discretionary distributions from an irrevocable trust constitutes "property" to which a government lien...
A recent opinion of the California Court of Appeal held a New York choice-of-law clause was ineffective to enforce a party's waiver of jury trial. In Rincon EV Realty LLC v. CP III Rincon Towers, Inc., New York-based parties negotiated a loan agreement with a New York choice-of-law clause, signed the agreement in New York, and...
The right judgment is not always the just result - a judgment often fails to account for the time and expense invested to obtain it. But sometimes, the grinding gears of litigation can be used to achieve some justice. In Leeman v. Adams Extract & Spice Co. (Cal. Ct. App. - May 21, 2015), plaintiff settled a Prop. 65 (toxic chemicals...
