CEB Contributor
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Late Objections to RFAs Do Not Invalidate Otherwise Substantive Responses, Fourth District Holds
November 20, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
When discovery objections have been waived, does serving responses that still contain objections (which have been waived) count as “substantial compliance”? Yes, says California's Fourth District Court of Appeal in
Remember: Briefs Are Not Evidence
October 28, 2024
Tim Kowal
Appellate Law, Evidence, Litigation Practice & Procedure
In motions for summary judgment, the separate statement is a very important document because the trial judge uses it as a roadmap to the evidence. But on appeal, the court uses a different roadmap to the evidence: your brief. And if your brief just cites to the separate statement—or worse, merely to the trial court brief citing to it—then all you’ve given the court is a roadmap that leads to another roadmap. And the court does not want that.
Prevailing on a Contract Affirmative Defense Gives Rise to Civil Code Section 1717 Fees, Fourth District Holds
October 22, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
It’s very clear that you are entitled to contractual attorneys’ fees for prevailing on a contract claim. But what about prevailing on a contract affirmative defense? There was some unfortunate confusion on that point in the California Supreme Court’s decision in
Are Anti-SLAPP Orders 'Judgments'? California's Second District Weighs In
August 21, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
You already know that an order granting an anti-SLAPP motion is immediately appealable—that is, you should not wait around for a formal judgment before appealing. That’s why the plaintiff in
Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds
August 19, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
One reason trial prep is so stressful is you don’t know if you might get a different judge—or if you’ll have the right to make a
Lawyer 'Immortalized in the California Appellate Reports' for Incivility in Recent Fourth District Opinion
August 16, 2024
Tim Kowal
Appellate Law, Legal Ethics, Litigation Practice & Procedure
"Lawyers and judges of our generation,” says the Court of Appeal, “spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.” But that golden age, judging from the opinion in
Late Payment Does Not Defeat Arbitration Because CAA Rule Is Preempted By FAA, Second District Holds
August 8, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
In a split opinion that “rather obviously invites a grant of review,” the Second District Court of Appeal in
Criticizing Belated Policy Reversal, Ninth Circuit Holds Fight Over LA Unified School District's COVID Vaccine Mandate Isn't Moot
August 5, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
When a Ninth Circuit panel asked counsel at oral argument whether the Los Angeles Unified School District was going to reverse its COVID-19 vaccine mandate, counsel did not give a straightforward answer. Then walking out of the courthouse, LAUSD’s counsel turned to plaintiff’s counsel and said, “what are you going to do when we rescind the mandate?” And a few days later, it did just that.
Clock to File Peremptory Challenge to Judge Doesn't Start Running If 'Significant Issue' Was Left Unassigned, Fourth District Holds
July 31, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
The first thing you do after filing a case is check the assigned judge. Once the judge has been assigned “for all purposes,” you have 15 days to file your peremptory challenge to disqualify that judge. There are a few wrinkles to that “all purpose assignment” deadline, however. The court addressed them in
Late Appeal Deemed Constructively Filed on Time in Recent Fifth District Opinion
June 26, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
Because the deadline to appeal is jurisdictional, the court cannot excuse a late appeal, even for very, very good reason. Sorry, no exceptions. Well, there are
'Super Snap Removals' Not Permitted in Ninth Circuit
April 24, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
Here’s a first-year civ pro question with a twist: Plaintiff files a complaint in state court. But before court processes it for filing, defendant—who, not even served yet, gets wind of the complaint through an e-file-watcher service—files a notice of removal in federal court. Question: Is this “super-snap removal” effective?
Defective Appellate Briefing in Two Cases Results in Dismissed Appeals
April 8, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District Court of Appeal in
New Evidence Would Have Defeated Summary Judgment, But Need for Discovery Wasn't Supported By Declaration of Diligence
March 27, 2024
Tim Kowal
Appellate Law, Evidence, Litigation Practice & Procedure
When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in
Does 998 Cost-Shifting Apply to Settlements? A Three-Way Split?
March 22, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
The parties settled the Lemon Law case in
State Wins a Writ Excusing It From Disclosing Whether Its Private Research Firm Engaged in Animal Cruelty
February 7, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
A few months ago, when the Court of Appeal issued
Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct
January 22, 2024
Tim Kowal
Appellate Law, Law Practice Management, Legal Ethics, Litigation Practice & Procedure
A restraining order is available under Code of Civil Procedure section 527.6 if you have suffered harassment through a “knowing and willful course of conduct” resulting in harassment. And what type of people are more likely to cause a feeling of harassment more than lawyers? So attorney Jacquelynn Hansen got a restraining order against her opposing counsel in a family law case, Oleg Volkov. But the Court of Appeal in
Arbitrator Reversed for Basing Credibility on Use of Interpreter
January 5, 2024
Tim Kowal
Appellate Law, Litigation Practice & Procedure
I will tell you two facts about this recent arbitration case, and let you guess how the Court of Appeal concluded. But be warned: your guess will be wrong.
Lack of Statement of Decision Leads to Reversal
December 14, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
One advantage to a bench trial is that you are entitled to a statement of decision. This can be better than a jury verdict because a statement of decision includes findings on all material issues. The cross-defendant in the development dispute in
Specific Jurisdiction May Be Based on Past Contacts with Forum
December 6, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
If you set out to achieve the “impossible,” you are ambitious, but not alone. Impossible Foods, creator of the “Impossible Burger,” learned that another company, Impossible X, was also using the “Impossible” brand on some personal fitness and lifestyle websites, an Amazon platform, and a YouTube channel. But its sole owner-operator, Joel Runyon, lived in Texas. So was Impossible Foods’ trademark complaint—seeking a declaration that it was not violating any of Impossible X’s trademark rights—properly filed in federal court in California?
Sanctions Order of $8.7M Was Voidable, But Not Void, and So Was Reinstated on Appeal
November 30, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
A lot of savvy litigants search the web for ways to vacate an order after the time to appeal has expired. I know because many of these litigants have found my writings on this subject. Challenges made after the appeal deadline has expired is fruitless, you say? Well, sometimes it can work: section 473 of the Code of Civil Procedure authorizes a trial court to set aside a “voidable” judgment or order up to six months after entry—by which time a 60-day appeal deadline would be long gone. And section 437 goes even further than that: a judgment or order may be set aside
Pay in 30 Days or Arbitration Is Forfeit -- and 'Check Is in the Mail' Does Not Cut It
November 15, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
So you have been sued and successfully compelled arbitration. Next step: do not fail to ensure your arbitration fees are
How to Preserve Appellate Rights in Your Arbitration Agreement
November 9, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
The worst thing about arbitration is the risk of winding up with a decision contrary to law, facts, and common sense—and, because it’s arbitration, having no meaningful recourse. But that’s just the tradeoff. Right?
When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused
June 1, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late (like in
What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal
April 26, 2023
Tim Kowal
Appellate Law
Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?
California Appeal Filed One Minute Late -- Literally One Minute -- Dismissed As Untimely
March 6, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
After getting hit with an anti-SLAPP fee award, the plaintiff in
There Is No Such Thing As a 'Corporate Representative' or 'Person Most Qualified' Witness
February 3, 2023
Tim Kowal
Appellate Law, Litigation Practice & Procedure
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
SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed
December 21, 2022
Tim Kowal
Litigation Practice & Procedure, Drafting & Responding to Complaints, Anti-SLAPP Motions
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 appealable in some situations but not in others.
Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds
December 6, 2022
Tim Kowal
Litigation Practice & Procedure, Jurisdiction, Personal Jurisdiction
There are some interesting new postjudgment opportunities suggested in the published case of
Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment
November 15, 2022
Tim Kowal
Litigation Practice & Procedure, Negotiations & Settlement
There are several odd things about
MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority
November 10, 2022
Tim Kowal
Appellate Law, Litigation Practice & Procedure, Evidentiary Issues, Objecting to Evidence
A big part of winning at trial is getting your evidence in—and keeping your opponent’s evidence out. So on appeal, parties often argue that the judge made the wrong ruling when it kept your favorable evidence out—or let your opponent’s evidence in. And like with many things on appeal, the trial judge usually gets a lot of leeway on evidentiary rulings, because they are reviewed for abuse of discretion.
Don’t Seek Default Without Notifying Opposing Counsel
October 26, 2022
Tim Kowal
Appellate Law, Legal Ethics, Litigation Practice & Procedure, Default & Default Judgments
If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default. (
Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing
September 15, 2022
Tim Kowal
Appellate Law, Litigation Practice & Procedure
So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in
CA Supreme Court Affirms the Use of Powerful Civil Theft Remedies Under Penal Code Section 496 in Business Tort Cases
August 3, 2022
Tim Kowal
Business Litigation, Litigation Practice & Procedure
Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under
Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict
June 3, 2022
Tim Kowal
Appellate Law, Evidence, Litigation Practice & Procedure, Relevancy & Admissibility of Evidence, Witnesses, Personal Injury
In one of the many lawsuits by hip-replacement patients against Zimmer, Inc., the maker of the Durom Cup, a court of appeal recently held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. See
Draft Your RFAs With Costs of Proof and Settlement in Mind
May 13, 2022
Tim Kowal
Litigation Practice & Procedure, Discovery, Requests for Admissions, Attorney Fees & Costs, Grounds for Recovery of Attorney Fees & Costs
Most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?
'Gamesmanship' Throughout Litigation May Raise Risk of Sanctions on Appeal
April 1, 2022
Tim Kowal
Appellate Law, Legal Ethics, Litigation Practice & Procedure, Appeals of Arbitration Awards
Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in
A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable
January 28, 2022
Tim Kowal
Appellate Law, Negotiations & Settlement , Attorney Fees & Costs, Appeals
An order enforcing a settlement agreement is an appealable order, but what about an order
Don't Fall Into the "No Statement of Decision" Trap
December 17, 2021
Tim Kowal
Appellate Law, Litigation Practice & Procedure, Motion Practice , Bench Trials, Appeals
I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment.
The Risks of Serving Too Many Interrogatories
September 24, 2021
Tim Kowal
Appellate Law, Litigation Practice & Procedure, Discovery, Special Interrogatories, Motions to Compel (Further) Discovery, Discovery Sanctions
There are two important but subtle rules of civil discovery that come to the surface in a recent California case,
Making Sense of the California Supreme Court's Publication Rules
May 21, 2021
Tim Kowal
Appellate Law, Litigation Practice & Procedure
Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review of a published appellate decision it became non-citable instantly. So if you had found the perfect decision on all fours with your case, you would pray the Supreme Court would leave your smoking-gun case well alone.
Something You Didn't Know About 998 Offers
April 30, 2021
Tim Kowal
Litigation Practice & Procedure, Arbitration Agreements, Drafting & Responding to 998 Offers, Attorney Fees & Costs
It's something I didn't know, anyway: the plaintiff can still recover post-offer fees even if the plaintiff does not beat the
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Can You Read It Back? Tackling Court Reporter Scarcity in California
Tim Kowal
March 17, 2023
In the 30 years since the court reporter lobby killed California’s audio-recording statute, and the Supreme Court killed the Judicial Council’s audio-recording rule, the effects have been limited mostly to litigants’ pocketbooks. But that has changed.
Litigation Practice & Procedure
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