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...
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...
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...
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...
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...
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...
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....
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,...
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...
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...
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.)...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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....
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...
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...
Costco charged a shopper with theft for putting a $117 package of Gillette razors underneath a big bag of dog food. The shopper sued for malicious prosecution, but the trial court granted Cosco’s anti-SLAPP, and the panel majority in Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.] affirmed. Making a...
Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.” Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed. Appellate Specialist...
