Kowal Law Group Logo

Diverse Perspectives

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

Tag: Splits of Authority

January 31, 2024
Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion

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 […]

Read More
December 5, 2023
Is a dismissal a “judgment”? Yes, but there’s a split of authority

After plaintiff obtained a preliminary injunction preventing defendant pet stores from selling puppies, the legislature passed a law barring the retail sale of puppies. Having got what it came for, plaintiff dismissed the action without prejudice. The court awarded the successful plaintiffs over $46,000 in attorneys' fees. But to the plaintiffs’ chagrin, the award was […]

Read More
February 1, 2023
Do not wait for a cost award before appealing

Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later. But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023 […]

Read More
January 25, 2023
There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. […]

Read More
December 22, 2022
SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

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 […]

Read More
August 31, 2022
A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness

Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216. In that case, a neighborhood group […]

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
August 22, 2022
Fatal Error in Judicial Council Cost Memorandum Form, Says Dissenting Justice

Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all. In this, the Judicial Council form […]

Read More
July 18, 2022
Denial of Fees for Defeating Anti-SLAPP Held Not Appealable, in Split of Authority

Almost any order having to do with an anti-SLAPP motion is appealable. Almost. In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable. (Code Civ. Proc., § 904.1(a)(13).) Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees […]

Read More
July 6, 2022
Vexatious Litigants Have No Right to Appeal Denial of Request to File New Action, Say Appellate Court Splitting from Authority

The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California […]

Read More
1 2 3

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)

"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

"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

"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

"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

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

— H.L. Mencken

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

Leviticus

"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.)

"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

"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

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