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Tag: Abuse of Discretion

September 14, 2022
Order Excluding Party’s Sole Witness Held an Abuse of Discretion

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented […]

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May 12, 2022
Why Family Law Writ Petitions Are So Hard

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right? Victoria explains that it is just just very hard, even when there is genuine irreparable […]

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March 30, 2022
Trial Court’s Refusal to Consider Declaration Supporting Domestic Violence Restraining Order Held Grounds for Reversal

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings. But not in […]

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March 22, 2022
Victoria Fuller on Family Law Appeals: Episode 27 of the California Appellate Law Podcast

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment. Walking practitioners through various procedural issues in […]

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February 1, 2022
Judge Applied Wrong Legal Standard, Leading to Reversal of $680,000 Fee Award

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in Duff […]

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December 15, 2021
Trial Court's Exclusion of Evidence Was Error Requiring Reversal of Order Denying Restraining Order

Judges have a lot of leeway to exclude evidence at trial. But in Brubaker v. Andy Strum (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought […]

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December 1, 2021
You Have No Right to a Ruling on a New Trial Motion

The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely […]

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November 16, 2021
Limited Jurisdiction Appeals, Eviction Tsunamis and HateWriting, our Interview with Frances Campbell

Frances Campbell  of Campbell & Farahani, LLP  joins Tim Kowal and Jeff Lewis for a discussion about housing law, eviction defense, appeals and practicing in limited jurisdiction courts. Fran shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite," and the font Cochin for brief writing. Appellate […]

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September 24, 2021
$1 Billion LA Homelessness Injunction Reversed by 9th Circuit: Judge's Independent Factual Investigation Was Improper

Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial […]

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September 10, 2021
Renewed Restraining Order Affirmed on Appeal; Appellant Forfeited Challenge by Failing to Describe All Evidence Supporting the Order

In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review of factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a […]

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print (29)
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"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers."

— H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

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