Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why? Supreme Court watcher David Ettinger explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court...
Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions. The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson,...
In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022. Some of the tips and trends we cover: There is a trend toward informality in legal writing—but do pop-culture references go...
Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial...
Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument. Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then...
The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone? Ben shares some...
Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs....
The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused...
What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you...
CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.” The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases...
Trial judges issue tentative decisions, why don’t appellate justices? Justice Thompson draws from his positive experience as a trial judge enjoying improved oral arguments after issuing tentative decisions, and suggests that the Court of Appeal might enjoy the same improvement. But we might have to wait for a “changing of the guard” as younger justices...
Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Here’s the list: Most Important Case for Money Litigators: Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081), holding treble damages and attorney fees under section 496 may be supported in your next fraud, conversion, breach...
Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty...
Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension. In Aaronoff v. Olson,...
Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new...
Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases. Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning...
Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline. After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz...
CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.” The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the...
If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising....
Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of...
We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them...
In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its...
After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss: The different approaches taken by personal injury attorneys,...
CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here. The article may be cited as Tim Kowal, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” CEB (Nov. 15, 2022), available at http://bit.ly/3ATYO9Q A PDF of the article is here: Kowal_Section998.pdf...
There are some interesting new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. And then the domesticated judgment may be re-domesticated...
M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation. M.C. sits down with Tim...
Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.” In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court,...
Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.” “Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins...
Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner,...
If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases? Justice Lambden wondered the same thing. So that’s...
