Kowal Law Group Logo

Diverse Perspectives

| article | | Legal News | | podcast | | Videos |

Tag: Implied Findings

May 15, 2023
No reporter's transcript, no problem: denial of motion to compel arbitration still reversed on appeal

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.) On the side of relaxing the requirement of having an oral […]

Read More
August 24, 2022
Failure to Request a Statement of Decision Changed the Outcome of This Appeal

One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually […]

Read More
April 25, 2022
“Impossible” Burden Met on Appeal: But Dissent Disagrees

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) […]

Read More
November 3, 2021
Order Denying Arbitration Reversed, Trial Court Must Decide Existence of Arbitration Agreement First — But a Strong Dissent Disagrees

This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the […]

Read More
October 27, 2021
Implied Findings Doctrine Only Applies When the Trial Court's Reasons Are Correct — Here, They Were Wrong

One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment […]

Read More
July 28, 2021
Statement of Decision Missteps in Three Recent Appeals

Did you request a statement of decision? Did you object to the proposed statement of decision? These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, […]

Read More
March 23, 2021
Appellate Court Holds Respondent Forfeited Issues and Failed to Establish Implied Findings

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in […]

Read More
February 17, 2021
Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply […]

Read More
January 14, 2021
Court Abused Its Discretion by Denying $4M Sanctions Request for Abusive Discovery

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. v. Hennings (D6 Dec. 2, 2020) No. H042715, a high-stakes (the complaint sought $255 million) and multi-party Silicon Valley litigation over "cyber-squatting," gave false deposition testimony, […]

Read More
January 6, 2021
Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked for monthly permanent support of $10,000 from husband, who earned between $16,000 and $18,000 per month. Wife also asked that husband be ordered to pay […]

Read More

Tags

Abuse of Discretion (24)
ADA and Unruh Accessibility Actions (2)
Administrative Law (1)
Admission of Improper Evidence (10)
Alter Ego (2)
Amicus Briefs (3)
Anecdotes (1)
Anti-SLAPP (38)
Appealability (8)
Appealability and Appealable Orders (45)
Appealable Orders (4)
Appeals Dismissed (2)
Appeals Treated as Writs (4)
Appellate Bonds (8)
Appellate Briefing (11)
Appellate Practice (8)
Appellate Sanctions (15)
Arbitration (31)
Art of Persuasion (1)
Attorney Client Privilege (2)
Attorney Fees (22)
Attorney Fees - CCP 1021.5 (1)
Attorney Feese (1)
Attorney Misconduct (1)
Bankruptcy (1)
Benefits Obtained Trespass Damages (1)
Briefing (18)
California Supreme Court (23)
CCP 998 Offers (12)
Civil Code 3334 (1)
Civil Theft (2)
Civility (18)
Class Actions (4)
Clear and Convincing (2)
Clerks Service of File Stamped Judgment (1)
Closing Argument (1)
Collateral Orders (16)
Comments (2)
Common Interest Doctrine (1)
Consenting to Judgments (1)
Constitutional Law (4)
Constitutional Litigation (1)
Contempt (3)
Court Reporters (2)
Covid (1)
Cross-Appeals (1)
Defamation (1)
Default Judgments (7)
Demurrers (5)
Depublished Opinions (7)
Designating the Record (1)
Dicta (1)
Discovery (9)
Disentitlement Doctrine (7)
Dismissals (15)
DismissalsAppealability and Appealable Orders (1)
Dismissed Appeals (12)
Disqualification (8)
Dissents (16)
Employment Law (4)
En Banc (1)
En Banc Review (4)
Erie Problems (1)
Ethical Duty of Candor (7)
Evidentiary Objections (14)
Evidentiary Presumptions (1)
Excessive Damages (5)
Exclusion of Evidence (14)
Exhaustion of Remedies (1)
Expert Opinions (4)
Experts (12)
Family Court (1)
Family Law (11)
Federal Appeals (20)
Federal Courts (23)
Finality and Final Orders (2)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (9)
first amendment (3)
Forfeiture (2)
Forfeiture and Waiver (3)
Free Exercise (1)
Free Speech (1)
Frivolous Appeals (3)
Frivolous Motions (4)
Harmless Error (3)
Implied Findings (10)
Inconsistent Verdicts (1)
Incorrect Decisions (1)
Inherent Authority (1)
Invited Error (2)
Issue Selection on Appeal (1)
Judgment Enforcement (20)
Judicial Admissions (2)
Judicial Bias (4)
Judicial Estoppel (1)
Judicial Immunity (1)
Judicial Misconduct (2)
Judicial Notice (1)
Judicial Philosophy (1)
Jurisdiction (12)
Juror Misconduct (1)
Juror Peremptory Challenges (3)
Jury Instructions (4)
Jury Waivers (3)
Landlord Tenant (3)
Law and Motion (3)
Law of the Case (1)
Legal Ethics and Professional Responsibility (6)
Legal Practice (3)
Legal Tech (4)
Legal Writing (30)
Litigation Tips (6)
Local Rules (1)
Mediation (6)
Medical Rights (2)
Memorandum Opinions (1)
Mischief (28)
Mistrials (2)
Moot Appeals (1)
Mootness (13)
Motions for Judgment on the Pleadings (1)
Motions for Reconsideration (11)
Motions in Limine (5)
Motions to Dismiss (4)
Motions to Quash (1)
Motions to Vacate (4)
Motions to Vacate and Set Aside Judgments (7)
New Arguments (1)
New Trial (2)
New Trial Motions (12)
Ninth Circuit (8)
Ninth CircuitAbuse of Discretion (1)
Nonsuit (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Notice of Appeal (1)
Notices of Appeal (22)
Notices of Entry (5)
Oral Argument (28)
Out-of-State Litigant (1)
PAGA Actions (3)
PAGA Attorney Fees (1)
Per Se Errors (2)
Personal Jurisdiction (6)
Persuasion (2)
Petitions for Rehearing (2)
Petitions for Review (6)
Pleadings (2)
Post Reversal (1)
Post Reversal Issues (2)
Post-Appellate Issues (1)
PostJudgment Litigation (1)
Posttrial Motions (12)
Precedent (1)
Preclusion (1)
Prejudicial Error (5)
Preliminary Injunctions (14)
Premature Appeals (2)
Premises Liability (1)
Pretrial Issues (3)
Pretrial Procedure (7)
print (29)
Probate Appeals (8)
Product Liability (1)
Property Rights (1)
Public Records Act and FOIA Requests (1)
Punitive Damages (1)
Race and the law (1)
Record (1)
Record Designation (3)
Record on Appeal (25)
Recovery of Costs (4)
Referral Fees (1)
Remote Arguments (2)
Respondent Arguments (9)
Restraining Orders (4)
Review as Writ Petition (1)
Right to Jury Trial (5)
Sanctions (16)
Settled Statements (2)
Settlements (10)
Split Decisions (1)
Split of Authority (1)
Splits of Authority (25)
Standards of Evidence (3)
Standards of Review (10)
Standing (5)
Stare Decisis (3)
State Civil Procedure Comparison Project (2)
Statements of Decision (29)
Stays (3)
Stays on Appeal (23)
Stipulated Judgments (7)
Stipulated Reversals (5)
Substantial Evidence (7)
Summary Judgment (3)
Summary Judgments (5)
Summary Judgments and Summary Adjudications (14)
Summary Reversal (1)
Summary Reversals (1)
Support Awards (1)
Tentative Opinions and Focus Letters (7)
Tentative Rulings (4)
the court noted (0)
Third Parties and Nonparties (1)
Timeliness (12)
Timely and Untimely Appeals (22)
Trade Restraints (1)
trademark (1)
Treble Damages (1)
Trespass (1)
Trial by Reference and Pro Tem Judges (2)
Trial Irregularities and Structural Errors (8)
Trial Procedure (11)
Trial Strategy (17)
Trial Tips (1)
Trust and Probate (6)
Typeface (1)
Typography (1)
U.S. Supreme Court (3)
Unpublished Opinions (22)
Unsupported Arguments (1)
Untimeliness (2)
Void and Voidable Judgments (2)
Waived and Forfeiture (2)
Waiver (2)
Waiver and Forfeiture (25)
Writ Petitions (15)
Writs of Mandamus (1)
Writs of Mandamus (CCP 1085) (3)

"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

"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

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

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

Leviticus

"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

"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

"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

"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

"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

menuchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram