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...
Retaining key personnel is vital to the success of any enterprise. However, the law's prohibition of trade restraints often makes it difficult for employers to protect their workforce and trade secrets. California law broadly states that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind...
Is an employee leaving? Pay up. Pay in full. There is no 'A' for effort. Pay it all. In last month's Court of Appeal opinion in Beck v. Stratton, employee leaves and employer asks his reputable payroll company, ADP, to cash him out. For reasons that "no one at trial court explain," ADP issued a check...
The judicial admission is a simple concept: when you take a position in a pleading, discovery response, or open court, you're stuck with it. But whenever you see such a plain and sensible rule, expect to find enough exceptions to fill a volume. For a while, things seemed to go all right. As recently as...
In our February newsletter, we noted the California Supreme Court was reviewing whether the ambiguous spendthrift protections of Probate Code sections 15300-15309 meant to impose an absolute cap of 25% against creditors. The Court has answered: "no." In its recent decision, styled Carmack v. Reynolds, the Court "hold[s] that the Probate Code does not impose such...
If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick to entice parties to make reasonable offers, and to threaten penalties for rejecting reasonable offers. A 998 offer may be made any time up to 10 days before trial or arbitration. The objective...
Leeman v. Adams Extract & Spice Co. (Cal. Ct. App. May 21, 2015) says no. As they routinely do, a Prop-65 toxic-chemicals-warning case settles for a trifling amount of penalties but a heaping portion of attorneys' fees - over $72,000, based on rates up to $895 per hour. Doesn't sit right with the trial judge, who...
In the high-profile case City of San Jose v. Superior Court, the California high court recently held: "when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act." The Court explains: "The whole purpose of CPRA is to...
Last month's decision in Westside Estate Agency, Inc. v. Randall (Cal. Ct. App. - Dec. 1, 2016) began its opinion saying: "We are all familiar with the phrase, "caveat emptor": Buyer beware. This case deals with its less renowned cousin, "caveat sectorem": Broker beware." Section 1624 of the Civil Code says that a real estate broker can...
The one-year period to bring an action for malpractice typically begins after the lawyer last represented you, often easily identified as the date of formal withdrawal. But can it really be that easy? A recent California Court of Appeal decided it's not, holding instead the relationship ended when the attorney served the client with a...
Distressed homeowners subject to lender "dual-tracking" do not need to wait until the end of a lawsuit to recover attorneys' fees if they are successful in obtaining a preliminary injunction, ruled the Third District Court of Appeal today in Monterossa v. Superior Court (Cal. Ct. App. - June 12, 2014). Under a 2012 law, banks are prohibited...
In a recent decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable and commonly used in estate planning to hold personal residences - may nonetheless be revoked when the debtor retains an right to reacquire ownership of the residence. A former savings-and-loan banker, Robert...
In today's litigious society, parties are quick to sue others but, due to the demands of life, defendants will oftentimes overlook the lawsuit. Doing so typically results in the entry of a judgment by default - meaning the defendant did not appear in the lawsuit to defend against the complaint. The plaintiff - now the...
An attorney pursuing an appeal may be tempted to raise any and all arguments - however flimsy - before the appellate court, in an attempt to see what sticks. The Third Appellate District, however, urges attorneys to resist that temptation. In Leino v. Balkcom, Appellate Case No. C080950, a client and his attorney raised seventeen (!)...
In a recently affirmed decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable and commonly used in estate planning to hold personal residences - may nonetheless be revoked when the debtor retains a right to reacquire ownership of the residence. The View from Inside:QPRTs...
Despite best efforts to reduce expectations to a written contract, one can rarely estimate with much accuracy the creative ways a complaining party will claim he has been damaged by an alleged breach. The textbook case from the 19th century in Hadley v. Baxendale arose when a smith delivered a crankshaft too late, and the miller sued...
The high court recently published Park v. Trustees of the Cal. State Univ., reversing a split appellate-panel decision. The Court held plaintiff's retaliation claim could go forward and did not implicate protected conduct just because the trustees' decision involved protected communications. Skimming the decision, I was eager to find a discussion of the Court of Appeal's...
Aman is handing out leaflets in the train station, an old Soviet joke has it, when he is stopped by an officer. Examining the leaflets, the officer discovers they are just blank pieces of paper. "What is the meaning of this?" the officer asks. "What is there to write?" the man replies. "It's so obvious!"...
