Practice areas: Appellate, Business Litigation; view more
Licensed in California since: 2007
Education: Chapman University School of Law
Selected to Super Lawyers: 2023 - 2025 Call today:
949-676-3444
Free Consultation Kowal Law Group, APC
2901 West Coast HwySuite 200
Newport Beach, CA 92663 Visit website
Details
Tim Kowal serves as an associate attorney at Kowal Law Group, operating out of the Costa Mesa, California, office. He extends his legal services to clients throughout Newport Beach, with a primary focus on:
- Handling appeals, dispositive motions, posttrial motions, writs and evidentiary hearings
- Providing trial support and conducting trials in a spectrum of legal areas, including business litigation, lender disputes, breach of fiduciary duty, unfair trade practices, real estate development disputes and financial disputes
Mr. Kowal's academic journey began with a B.A. in philosophy from the University of California in 1998. He subsequently ventured into the IT industry in Orange County before pursuing his legal education at Chapman University Dale E. Fowler School of Law. During his time at law school, he distinguished himself as an outstanding student, earning the CALI Excellence for the Future Award for academic achievement in various subjects. Additionally, he was a Hagman Scholar student and received the Environmental, Land Use & Real Estate Law (ENLURE) certificate.
His legal journey culminated in 2007, when he earned his law degree and was admitted to practice in California. Mr. Kowal's practice extends to the Supreme Court of California, the U.S. Bankruptcy Court for the Central District of California, the U.S. Court of Appeals for the 9th Circuit and the U.S. Court of Appeals for the Federal Circuit.
With a certification in appellate law from the California Board of Legal Specialization, Mr. Kowal possesses a distinct skill set for crafting legal strategies tailored to each client's unique situation. His legal acumen is underscored by a track record of success in both trial and appellate cases, yielding over $60 million in jury verdicts. Notably, he holds a "Superb" Avvo rating and has effectively represented a diverse client base, including business owners, developers, borrowers and lenders.
Mr. Kowal remains an active participant in his local community and the legal arena, holding memberships in the Orange County Bar Association, The State Bar of California and the Orange County Human Relations. In addition, he co-hosts The California Appellate Law Podcast, contributing to the legal discourse on various topics.
Furthermore, Mr. Kowal is engaged in pro bono work and community service activities, including volunteering for the Huntington Beach 4th of July Parade’s planning commission and serving as the president of the Orange County Federalist Society's Lawyers Section. His legal insights and analyses have been published in law reviews and legal journals, contributing to the legal knowledge base.
Practice areas
Appellate, Business LitigationFocus areas
Appeals
- 70% Appellate
- 30% Business Litigation
First Admitted: 2007, California
Professional Webpage: https://kowallawgroup.com/tim-kowal/
Bar/Professional Activity:
- Supreme Court of California
- Huntington Beach Tomorrow, Board Member, 2013 - Present
- Orange County Federalist Society, Board Member, 2007 - Present
- Orange County Human Relations Commission, Commissioner, 2012 - Present
- The California Appellate Law Podcast, Co-host, 2020 - Present
- U.S. Court of Appeals Federal Circuit
- U.S. Court of Appeals 9th Circuit
- U.S. Bankruptcy Court Central District of California
- Member, Los Angeles County Bar Association, Appellate Law Section, 2022
- Certified Appellate Specialist, Certified by the State Bar of California The California State Bar certifies attorneys as specialists who have gone beyond the standard licensing requirements. The general requirements to become a certified specialist include: passage of a written examination in appellate law; practiced law continuously for at least five years, spending at least 25 percent of the time given to occupational endeavors practicing in appellate law; completion of continuing education in appellate law greater than that required of general licensees of the State Bar; demonstration of a broad-based and comprehensive experience in appellate law based on completion of a variety of matters in appellate law; favorable evaluations by other attorneys and judges familiar with the attorney's work in the specialty area of law, 2022
- Member, Orange County Bar Association, Appellate Law Section, 2022
- Member, Orange County Bar Association, Appellate Law Section, 2021
- Member, Orange County Bar Association, Appellate Law Section, 2018
- Member, Orange County Bar Association, Appellate Law Section, 2019
- Member, Orange County Bar Association, Appellate Law Section, 2020
Verdicts/Settlements (Case Results):
- Reversed judgment of dismissal following a demurrer, establishing a lease option agreement was susceptible to more than one interpretation requiring a determination of disputed facts. , 2023
- Defended judgment on appeal via settlement for payment of full judgment amount and attorneys' fees. , 2022
- Obtained dismissal of appeal, 2021
- Successfully defended judgment of quiet title and order of sale of real property on appeal, 2021
- Successfully defended judgment of fraud concerning real property on appeal, 2021
- After appealing $800,000 judgment against client, obtained settlement of just over 50% of the judgment amount, 2021
- Defeated anti-SLAPP motion and defended the order on appeal, 2020
- Successfully defended judgment dismissing claims against client seeking over $20 million, 2019
- Reversed $280,000 judgment on appeal, 2019
- Obtained judgment of $40 million for trespass, the #1 verdict in its category in the state, 2019
- Obtained $10 million fraud and conversion judgment after a jury trial, the #1 verdict in its category in the state, 2018
- Client gave a $15 million promissory note to buy a real-estate development company from his partner and father-in-law's trust. Given their close ongoing business and personal relationship — and California's then-highly-lucrative real-estate market — the trust did not document payments on the note. But after trustee's health declined, his fourth ex-wife and then fifth wife usurped control of and stole millions from the trust, sued client on the note, and won a $5.1 judgment in the case Shapiro v. Dohr, et al. Outcome: Appeal was successful and judgment was reversed, 2017
- Clients bought a 138-acre parcel across the street from Meadows Field airport, a property hoped to be the "window to the city" of Bakersfield. When undisclosed Shell and Chevron pipelines were found and they refused to relocate them, however, development ground to a halt. After several months of stalemate, this "window" property showed nothing but the power pipeline operators wield in Kern County. A lawsuit was filed against the operators in federal court for the Eastern District of California in C & C Properties, Inc., et al., v. Shell Pipeline Co., et al. A motion for a preliminary injunction followed, seeking an order requiring the operators to remove their pipelines and allow clients to continue development. In response, Shell called upon Kern County officials and the California Public Utilities Commission, in an attempt to overcome the property owners' rights. Outcome: The motion was successful, resulting in the District Court issuing a rare mandatory injunction, 2015
- Peterson v. Rubio (Cal.Ct.App. 2015), reversing judgment and instructing the trial court to enter judgment in favor of client. Client received a loan secured by a promissory note. After paying the loan, the lender refused to return the note. The trial court incorrectly ruled the loan agreement referenced a “sale” of the note, and entered judgment for the lender. On appeal, the Court agreed that the loan agreement was ambiguous, and the circumstances clearly indicated the note was given as security only. The Court of Appeal instructed the trial court to enter judgment requiring the lender to return the note and all collected payments that should have gone to TVA’s client. Outcome: The judgment was successfully reversed with instructions to enter judgment for the client, 2015
- Casey v. Ferrante et al. (C.D.Bkr. 2015), obtaining summary judgment invalidating a QPRT and returning a multi-million-dollar waterfront home to the Chapter 7 estate; affirmed on appeal. Read more here, 2015
Videos:
- In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.” (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.) But doesn’t every case deserve the same quality of consideration? How would the reasoning be different if Congress were to say, “you know, this bicameralism and presentment business is an exacting and extremely time-consuming task, and really, what legislature has the resources to go through all that for every important policy matter that comes before it?” (Of course, a federal court would respond: “No one is saying you cannot cite to unpublished cases. We just don’t like it very much, is all.” But California Rules of Court rule 8.1115 absolutely prohibits any citation to unpublished opinions.), Published Opinions Are Well-Thought-Out: Shouldn't They All Be?, Law, Litigation, Trial, Legal, 2022
- You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell. , The Lesser Known Standard of Review "Finding Compelled As a Matter of Law", Law, Litigation, Trial, Legal, 2021
- When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before. One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.) Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it. , So You Reversed a Statement of Decision – Now What?, Law, Litigation, Trial, Legal, 2021
- To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss. , Where the Statement of Decision Procedure Can Fail You, Law, Litigation, Trial, Legal, 2021
Representative Clients:
- Pioneer Power Solutions, Inc. Trial and appellate litigation resulting in successful defense of trade-secret claims totaling over $30 million, culminating in settlement for less than 4% of the amount claimed, 2021
- David Chamberlain. Obtained reversal of accounting case based on a CPA expert’s manipulated accounting, 2020
- C&C Properties, et al. v. Shell Pipeline Co., et al. (E.D.Cal. 2019) (pipeline easement dispute resulting in $40 million judgment upon jury verdict in favor of client real estate developers)#1 Verdict in California for Trespass and Top 20 Verdict for All Categories, 2019
- Choi v. Orange County Great Park Corp. (2009) 175 Cal.App.4th 524 (awarding attorneys' fees to client citizen group in suit enforcing public disclosure concerning the Irvine Great Park), 2009
- Citizens for a Fair Trash Contract v. City of Los Alamitos (O.C.Sup.Ct. 2011) (invalidating city trash contract on behalf of client citizen group), 2011
- Peterson v. Rubio (Cal.Ct.App. 2015) (rescission ordered by Court of Appeal in favor of elderly client borrower), 2015
- Casey v. Ferrante et al. (C.D.Bkr. 2015) (invalidated QPRT trust in first-of-its-kind ruling in favor of client Chapter 7 trustee), 2015
- Shapiro v. Dohr (Cal.Ct.App. 2017) ($5.1 million judgment in promissory note dispute reversed in favor of client real estate developer), 2017
- Dohr v. Lintz (Cal.Ct.App. 2019) (complete defense of $25 million in claims against more than 20 defendants based on alleged breaches of fiduciary duty and fraud, including three appeals), 2019
- Yang v. Sui, et al. (San Bernardino Sup.Ct. 2018) ($10 million jury verdict in favor of client online retail business owner)#1 Verdict in California for Fraud, Breach of Fiduciary Duty, and Conversion, 2018
- Domingo Villas, Inc., et al. v. Tarnutzer (Cal.Ct.App. 2019) ($1.9 million judgment upon jury verdict reversed in favor of client real estate developer), 2019
Special Licenses/Certifications:
- Certified Appellate Specialist, Certified by the State Bar of California The California State Bar certifies attorneys as specialists who have gone beyond the standard licensing requirements. The general requirements to become a certified specialist include: passage of a written examination in appellate law; practiced law continuously for at least five years, spending at least 25 percent of the time given to occupational endeavors practicing in appellate law; completion of continuing education in appellate law greater than that required of general licensees of the State Bar; demonstration of a broad-based and comprehensive experience in appellate law based on completion of a variety of matters in appellate law; favorable evaluations by other attorneys and judges familiar with the attorney's work in the specialty area of law., 2022
Pro bono/Community Service:
- President, Orange County Federalist Society, Lawyers Section, 2023
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2023
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2022
- President, Orange County Federalist Society, Lawyers Section, 2022
- Board Member, Orange County Federalist Society, Lawyers Section, 2021
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2021
- Board Member, Orange County Federalist Society, Lawyers Section, 2020
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2020
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2019
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2019
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2018
- Board Member, Orange County Federalist Society, Lawyers Section, 2019
- Board Member, Orange County Federalist Society, Lawyers Section, 2018
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2018
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2017
- Board Member, Orange County Federalist Society, Lawyers Section, 2017
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2017
- Volunteer, Huntington Beach Fourth of July Parade Planning Commission, 2016
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2016
- Commissioner, Orange County Human Relations Commission, 2016
- Board Member, Orange County Federalist Society, Lawyers Section, 2016
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2015
- Commissioner, Orange County Human Relations Commission, 2015
- Board Member, Orange County Federalist Society, Lawyers Section, 2015
- Board Member, Orange County Federalist Society, Lawyers Section, 2014
- Commissioner, Orange County Human Relations Commission, 2014
- Board Member, Orange County Federalist Society, Lawyers Section, 2013
- Member, Board of Directors, Huntington Beach Tomorrow (www.hbtomorrow.org) HB Tomorrow's mission is to preserve and enhance the quality of life in Huntington Beach. HB Tomorrow works for these public goods: Encourage citizen participation; Promote a clean and healthy environment; Pursue an efficient and safe traffic flow throughout the city; Advocate for an open and responsive government; Support the preservation of open space; Encourage responsible planned growth; Promote a sound infrastructure; Advocate for responsible spending by the city government; Support recreational opportunities for all; Promote a sustainable tax base, 2013
- Board Member, Orange County Federalist Society, Lawyers Section, 2012
- Commissioner, Orange County Human Relations Commission, 2012
- Board Member, Orange County Federalist Society, Lawyers Section, 2011
- Board Member, Orange County Federalist Society, Lawyers Section, 2010
- Board Member, Orange County Federalist Society, Lawyers Section, 2009
- Board Member, Orange County Federalist Society, Lawyers Section, 2008
- Board Member, Orange County Federalist Society, Lawyers Section, 2007
Educational Background:
- B.A. in Philosophy, University of California, Irvine
Scholarly Lectures/Writings:
- My “Moneyball” lesson for trial success: get more of your evidence and arguments into the record than your opponent does. MyLawCLE has published my presentation, “Mastering Trial Strategy: Advanced Techniques, Ethical Insights, and Critical Mistakes Every Attorney Should Avoid.” The two-part presentation on federal trial strategy begins with trial attorney James Susag’s coverage of developing and executing a winning trial strategy. In my part of the presentation, I cover how to make the record on key issues through the pretrial statement, motions in limine, and posttrial motions. As former Indianapolis Colts head coach Tony Dungy often noted, it is hard to win when you beat yourself with penalties. , Author, Mastering Trial Strategy: Advanced Techniques, Ethical Insights, and Critical Mistakes Every Attorney Should Avoid, MyLawCLE, Law, Litigation, Trial, Legal, Paralegal, 2024
- My presentation Trial Mastery: Developing a Winning Strategy and Preserving Critical Issues, is now available at LawPracticeCLE available. In the presentation I cover my Top 10 Appellate Tips for before, during, and after trial. I also offer these insights: There is a big difference between the story you tell at trial, and the record. Consider how much of your story will come through by the time an appellate judge reads it. Appellate work is like archaeology: we can only dig up what you leave behind. Why hire an appellate attorney—who knows the case better than the trial attorney? True, no one else knows the case like the trial attorney. And no one ever will. On appeal, we don’t have the same dramatic tools you have at trial. It’s like reading a play compared to watching it. You only have one chance with these persuasive trial tools, so use it wisely! , Author, Trial Mastery: Developing a Winning Strategy and Preserving Critical Issues, Lawpracticecle, Law, Litigation, Trial, Legal, Paralegal, 2025
- CEB DailyNews has published my article, “Late Objections to RFAs Do Not Invalidate Otherwise Substantive Responses, Fourth District Holds”. When discovery objections have been waived, does serving responses that still contain objections (which have been waived) count as “substantial compliance”? Yes, says Katayama v. Cont'l Inv. Grp. (D4d3 Oct. 9, 2024 No. G063872) [published]. Deeming the matters admitted, the court concluded, was improper. The Court of Appeal held that the belatedly-served substantive answers “were far more ‘complete and straightforward’ than not,” and thus were in substantial compliance. The mere fact that they also included belated—and thus waived—objections did not change that. Instead, monetary sanctions for asserting waived objections was an appropriate remedy. , Author, Late Objections to RFAs Do Not Invalidate Otherwise Substantive Responses, Fourth District Holds, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB Dailynews has published my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees.” The article is about what happens when you prevail on a contract, but the contract is only raised as an affirmative defense—and not as a claim. The Supreme Court previously said no: an affirmative defense is not a Civil Code section 1717 “action.” But clarifying that rule, Am. Bldg. Innovation v. Balfour Beatty Constr. (D4d3 Sep. 3, 2024) No. G062471 [pub. opn.] holds that prevailing on a contract-based affirmative defense can give rise to contractual attorneys’ fees, resulting in an award of $1.55 million. The difference is that the affirmative defense was based on the same contract as in the plaintiff’s complaint. So the “claim on a contract” element was met here. But an affirmative defense on a contract is still not the same thing as a “claim on a contract.” So if you are asserting an affirmative defense based on a contract and want to establish a right to fees, consider also filing a cross-claim for declaratory relief on the contract. That way if you win, the winning theory is part of a “claim on a contract,” triggering a right to fees. , Author, Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m. Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late., Author, Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB has published my article, “Are Anti-SLAPP Orders Judgments?” The article is about the anti-SLAPP judgment in Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.]. After the court entered the anti-SLAPP judgment, the plaintiff where appealed from the anti-SLAPP order—not the judgment. The defendant moved to dismiss the appeal because, while the anti-SLAPP grant was appealable, it could not be a judgment of dismissal because it did not satisfy the statutory requirements of a dismissal. (Code Civ. Proc., § 581d.) But the court held that it had jurisdiction because “An order granting an anti-SLAPP motion as to the entire complaint is itself a judgment.” This is a dubious proposition. And unfortunately, as the court published the opinion to highlight a note about attorney incivility, the dubious proposition is now citable authority. (Respondent has filed a petition for review, case no. S286515.) , Author, Are Anti-SLAPP Orders Judgments?, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds.” The article is about the published opinion in Lorch v. Superior Court, about peremptory challenges to a trial judge. In a “master calendar” court, rather than the usual 10 days, you have to make your challenge before the case is assigned to trial. So to wreak havoc with the right to make 170.6 challenges, the San Diego Superior Court got the bright idea to deem every judge a “master calendar” judge. This sets your 170.6 deadline as “the time the cause is assigned for trial”—and if you’re reassigned for trial, that means pretty much instantaneously. The plaintiff in Lorch got a voicemail from the clerk just before 3:00 p.m. the Friday before trial, and efiled her 170.6 peremptory challenge on Saturday. But the judge rejected it as untimely. (The judge even jeered at her, "I need to hear from plaintiff's counsel about why they dislike me so much.”) After a two-day trial completed, the Court of Appeal granted a writ, holding that the San Diego Superior Court’s local rule 2.1.3 is inconsistent with CCP 170.6. “A local court rule may not alter the true meaning of the statute.” , Author, Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB has published my article, “Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents.” The article is about the split opinion in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.], that Justice Baker says in dissent “rather obviously invites a grant of review.” The majority held that, unless parties expressly invoke the California Arbitration Act, the Federal Arbitration Act preempts the CAA rule that deems any late fees to be a waiver of arbitration. The majority explains that the FAA was enacted to guarantee an “equal-treatment” principle so that agreements to arbitrate enjoy no “special status” but rather are “as enforceable as other contracts.” But the CAA, and specifically Code of Civil Procedure section 1281.97, creates a special waiver doctrine that applies only to arbitration agreements. Under section 1281.97, when an employer fails to pay arbitration fees within 30 days, the statute deems the employer to have materially breached and thus waived its contractual right to arbitration. Here, the employer’s six-day delay in paying its JAMS fees could not be deemed a waiver of its right to arbitrate. Dissenting, Justice Baker says that the Legislature can impose a “time is of the essence” policy upon obligations to timely pay arbitration fees, which means that any delay is a material breach. And Justice Baker says, correctly, that “The majority also appears to hint that the Legislature has somehow impermissibly invaded a judicial function to determine what constitutes "minor" or "inadvertent" delay.” Justice Baker says he is not aware of any authority suggesting such a limitation. And the absence of authority on this point does indeed make this case ripe for review. (The Supreme Court subsequently did grant review on the same issue in Hohenshelt v. Superior Court (review granted 6/12/24).) In the article, I offer further comments on how that novel question might be analyzed. , Author, Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB has published my article, “Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling.” The article is a cautionary tale about being completely forthcoming at oral argument. And it suggests that theories attempting to distinguish a century-old SCOTUS opinion affirming a state vaccine mandate could be in play. When the 9th Circuit panel asked counsel at oral argument whether LAUSD was going to reverse its Covid-19 vaccine mandate, counsel did not answer directly. 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. That peeved the majority. When LAUSD moved to dismiss the appeal as moot, the panel in Health Freedom Def. Fund v. Carvalho, No. 22-55908 (9th Cir. June 7, 2024) denied the motion, and criticized counsel in the process. Mootness is often in the eye of the beholder, after all, and when it looks like you’re trying to manufacture mootness, count on it not working. , Author, Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned.” The article is about *Taylor v. Superior Court* (D4d2 May 9, 2024 No. E082661) [nonpub. opn.], involving two wrinkles to the peremptory-challenge deadline. Wrinkle #1: When the trial judge denied a peremptory challenge as untimely, the Court of Appeal issued a writ. An assignment merely for trial is not the same as an assignment “for all purposes.” Specifically, at the time of the trial assignment, there was still a “substantial matter” pending before the commissioner, and this defeated the 15-day “all purpose assignment” deadline. Wrinkle #2: The judge happened to be the only judge on the family panel, and there is a “one-judge court” exception under section 170.6(2). But the one-judge court exception didn’t apply, said the Court of Appeal, because there are 53 judges in the Riverside Superior Court. Just because they may be split up into various “branches” does not change the fact that this is far from a “one-judge court.”Takeaway: Know when an all-purpose assignment happens. And know that you need to challenge an erroneous denial of a peremptory challenge by writ within 10 days. , Author, The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- “Don’t forget to get a court reporter.” This stock advice of the appellate attorney used to leave my probate and family law colleagues unfazed: “Court reporters are already provided for us,” they’d say. But now that the court-reporter crisis has reached an acute stage, they don’t say it anymore. California Litigation has my article, “A Day Without a Court Reporter.” In it, I explain the extent of the crisis—at present: bad; near-future: getting worse; long-term: no relief in sight. Then I explain why—despite vigorous and successful lobbying, the court reporter profession is dying. Then I provide a parade of horribles that a future without reliable access to an appellate record holds for us, including a two-tiered justice system, weakened Sixth Amendment rights, a weakened right to a public trial, and a curtailed right to appeal. Then I pitch two ways that may provide some relief: Arbitrators should encourage litigants to use electronic recordings—and to leave the limited supply of court reporters available for the Superior Courts. Second, even though courts may not make or use electronic recordings, litigants can—if only the Superior Courts would relax their local rules prohibiting them. In the meantime, I dispense the same advice as always — “Don’t forget to get a court reporter” — but now with the further admonition: “and well in advance.” , Author, A Day Without a Court Reporter, Cal. Litigation, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “Super snap removals’ not permitted in Ninth Circuit.” Where federal jurisdiction is based on diversity as in Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2). But that defect is deemed waived if the plaintiff does not seek remand within 30 days of the removal. The rule only apples to a “served” defendant, though, so if you remove before service, that “snap removal” might be effective. But what if you remove before the complaint is even filed? The Ninth Circuit holds that this “super-snap removal”—filed while the clerk is still processing the filing—is not effective. Notably, however, the panel did not decide what happens to regular “snap removals”—that is, where the complaint has been accepted as filed, but the defendant files a notice of removal before service. So if you’re minded to remove and your a home-state defendant, keep an eye on the docket. , Author, Super snap removals’ not permitted in Ninth Circuit, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals.” The briefing faux pas in two recent cases garnered a lot of attention, especially Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), where counsel should have known better—leading to a published decision. Appellant’s counsel in Grant misrepresented several cases, including two nonexistent cases. When the 9th Circuit panel issued a focus letter asking her to explain, and then asked again at oral argument, counsel gave this bewildering response: the nonexistent cases “did not apply.” The panel struck appellants' brief and dismissed the appeal. Some observers have suggested this result is correct because otherwise, winnable civil rights cases could be lost to shoddy lawyering. But on the other hand, most civil rights cases do not pay well, and the few attorneys willing to take a shot may be scared off by harsh treatment. So it bears remembering that it was not just the two nonexistent cases that got counsel into trouble. It was the fact that none of the cases really supported the appeal., Author, Defective Appellate Briefing in Two Cases Results in Dismissed Appeals, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the plaintiff’s textual interpretation, “judgment or award” does not mean settlement. Instead, “a plain reading” yields the conclusion that the “more favorable judgment or award” language merely refers to a more favorable “terminat[ion].” So if you settle for less than the 998 offer you rejected, prepare to get hit with the 998 penalties. But note that the Supreme Court has granted review in Madrigal on this question. Which is why Justice Viramontes dissented., Author, Does 998 cost-shifting apply to settlements? A three-way split?, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- Last month, I presented to the Santa Cruz Bar Association about the dwindling reserves of court reporters in California. The presentation includes a brief history why California law mostly prohibits electronic recording, why we have a critical shortage of court reporters, and what it means for your practice. Look for the next edition of California Litigation magazine, which will include my article on the topic., Author, Tackling Court Reporter Scarcity in California, Santa Cruz Bar Association, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty.” It is about how the Court of Appeal has recently issued two writs on discovery issues—which appellate courts typically loathe. There are two things in common between the discovery writ in Regents of the Univ. of Cal. v. Superior Court (D3 Dec. 29, 2023 No. C099588) [nonpub. opn.] and in another recent case. Both occurred in a Public Records Act case. And the state won both disputes and did not have to produce information. In this case, an Elon Musk company working on embedding chips into brains partnered with UC Davis for some of its research. So several sources submitted Public Records Act requests about possible harm to primates. The trial court compelled production, but the Court of Appeal granted the Regents’ writ. Discovery in PRA cases is more limited than the broad standard for relevance. Instead, the discovery must be directed to “whether [the] public agency has an obligation to disclose the records . . . requested.” What was the irreparable harm that persuaded the court to intervene here on a writ basis? To avoid the court getting “bogged down by additional protracted discovery disputes.” Pretty generic stuff. If you attempt this justification in your next writ petition, expect it to get you precisely nowhere., Author, State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB DailyNews has published my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct.” This is about Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.), where an attorney got a restraining order against her opposing counsel in a family law case. But the Court of Appeal reversed because the only unprotected conduct was a single act—and a single act is insufficient to establish the required pattern of conduct., Author, Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- CEB’s DailyNews has published my article, “How to Preserve Appellate Rights in Your Arbitration Agreement.” The article illustrates how to craft an arbitration agreement that still preserves the right to appellate review. The recent case on point is Hous. Auth. of City of Calexico v. Multi-Housing Tax Credit Partners XXIX, L.P. (D4d1 Aug. 28, 2023) No. D079967. The court quotes the language you should use in your arbitration agreements to preserve appellate review. The takeaway is: Don’t overlook the option in your arbitration agreements to make them subject to judicial review. This is an option not available under the Federal Arbitration Act, but it is available under the California Arbitration Act. But be sure your preservation of appellate review is explicit and unambiguous., Author, How to Preserve Appellate Rights in Your Arbitration Agreement, CEB, Law, Litigation, Trial, Legal, Paralegal, 2021
- CEB’s DailyNews has published my article, “Pay in 30 Days or Arbitration Is Forfeit -- and 'Check Is in the Mail' Does Not Cut It.” The article is a reminder to ensure you pay arbitration fees within 30 days. And make sure not only that fees have been paid, but received. The employer-defendant in Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 put the check in the mail on day 25, but it was not delivered until a week later—two days after the deadline. That was not close enough., Author, Pay in 30 Days or Arbitration Is Forfeit—And ‘Check Is in the Mail’ Does Not Cut It, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB DailyNews has published my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal.” The article is about In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.), which distinguished void from voidable judgments. What makes a judgment or order “voidable” or “void” can be an important question, given the six-month period to challenge a “voidable” judgment, and a limitless period to challenge a “void” judgment. In the article, I note that the courts’ efforts to articulate the distinction have been, at best, subtle., Author, Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB DailyNews has published my article, “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.” The article is about Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023), where the district court had ruled that, in a lawsuit involving trademark enforcement, Impossible X’s contacts with California had to relate to trademark enforcement. But a divided 9th Circuit panel reversed, holding that the court may look to the defendants’ general business-development historical contacts with the forum—even if those activities did not relate to enforcing the trademark, the subject of the lawsuit. This was too much for Judge VanDyke, who dissented, saying that the majority “reconceptualizes specific jurisdiction as a kind of backward-looking "general jurisdiction lite," [and] pushes our precedent in a new and troubling direction.” He also says the majority’s rule “is also potentially the most radical reimagining and expansion of specific jurisdiction in decades.”, Author, Specific Jurisdiction May Be Based on Past Contacts with Forum, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB DailyNews has published my article, “Lack of statement of decision leads to reversal.” The article is about the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.], where the appellant correctly followed the two-step process for a statement of decision. When the trial court still refused to make findings, the Court of Appeal upheld the right to a statement of decision and reversed. The court made a number of observations about the importance of a statement of decision, including: The "broad purpose of the amendment [to the statutory statement of decision process] seems to have been to alleviate the frustration of losing litigants and their attorneys confronted with non-communicative trial judges.” And even if the judgment might have been affirmed without a statement of decision but imagining findings the trial court could have made, the court noted that “What the court could have done is not the test.” The takeaway from the case is that a statement of decision gives litigants a tool when “confronted with non-communicative trial judges.” Used well, this tool requires a “non-communicative” judge either to communicate, or face reversal., Author, Lack of statement of decision leads to reversal, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB DailyNews has published my article, “Arbitrator reversed for basing credibility on use of interpreter.” The article is about FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801. The arbitrator had ruled against the appellant based on a credibility determination, noting that “Mrs. Pham's use of an interpreter appeared to the Arbitrator to be a ploy to appear less sophisticated than she really is. She has been in the country for decades, has engaged in sophisticated business transactions and has herself functioned as an interpreter.” That was held to be bias and reversible per se, and not forfeited even though the seller did not argue it in the trial court, and even though there was no reporter's transcript of the arbitration., Author, Arbitrator reversed for basing credibility on use of interpreter, CEB, Law, Litigation, Trial, Legal, Paralegal, 2024
- Rethinking Eminent Domain: The Restitutionary Approach to Just Compensation, 9 CHAP. L. REV. 463 (2006) (Winner, First Prize, Pacific Legal Foundation, Seventh Annual Judicial Awareness Writing Competition, 2006)
- Who Will Redevelop Redevelopment?: Power and Pragmatism in California Redevelopment Law, 12 ALB. L. ENVTL. OUTLOOK J. 93 (2007)
- Don't Be an Activist, Be a Neighbor: How to Persuade Your City Council, presented at the 12th Annual Golden West College Peace Conference: Peace and the Global Economy: Emerging Issues & Practical Solutions (Apr. 2018)
- Tim Kowal, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds,” CEB (Dec. 6, 2022), Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds, 2022
- CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Jul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). Briefing in the fee appeal was still underway when the judgment was reversed. Do the parties still have to go through with the briefing and argument? Nope. Instead, they filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it., Author, What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal, CEB, 2023
- CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when challenging an agency action via a writ of administrative mandamus, normally you have to assume the trial court’s ruling is the appealable order. But the Santa Cruz court permitted an appeal much later than that, when the appellant appealed from a statement of decision (which itself is usually not appealable). The decision contradicts last year’s holding in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43 (but the Supreme Court granted review in Meinhardt). My comment: It should make you nervous when courts are wishy-washy on appealability. Once the cases suggest an order might be appealable, you need to assume they are definitely appealable, because they’re treated as jurisdictional., Author, When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription): https://lnkd.in/gWj5xqSHI discuss why there is a shortage of court reporters, why an oral record is indispensable to preserving appellate rights, and then demystify the settled-statement and agreed-statement procedure and offer practical applications.The entire presentation may be summed up as: Get a court reporter….but if you can’t, here’s what to try instead., Author, Can You Read It Back? Tackling Court Reporter Scarcity in California, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___, where the plaintiff’s attorney “calculated to keep [the defendant] in the dark” about a lawsuit in order to obtain a default judgment.Attorneys have an ethical and a statutory duty to warn opposing counsel before requesting default. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further., Author, CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”, CEB, Law, Litigation, Trial, Legal, 2022
- Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a proffer. #3 Keep objecting to evidence if the judge “defers” ruling on your MIL. #4 Object to Jury Instructions #5 Review the Verdict for Inconsistences #6 Request and Object to the Statement of Decision #7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs! #8 Calculate Appellate Deadlines Correctly #9 Avoid Common Appellate Briefing Mistakes #10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest) Evergreen Tip: Get a Court Reporter! You may download a PDF of my slideshow here. Thank you to my colleagues who sent me their top tips!, Author, Ten Trial Tips from an Appellate Specialist, CLE presentation, San Francisco Lawyers Network, Law, Litigation, Trial, Legal, Paralegal, 2023
- CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” declaration about matters outside the declarant’s personal knowledge. The court held that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence., Author, There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness, CEB, Law, Litigation, Trial, Legal, Paralegal, 2023
- 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 on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion. The important takeways: Don’t count on anti-SLAPP fee awards being independently appealable. But don’t count out the possibility they might be appealable as collateral orders., Author, SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed, CEB, Law, Litigation, Trial, Legal, Paralegal, 2022
- CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here. The article covers Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.I note several odd things about the decision and the reasoning, including why the court drew the line at oral rulings on summary judgment, but would allow a plaintiff to accept a 998 offer after a tentative ruling.And as covered on episode 61 of the California Appellate Law Podcast, cases interpreting FRCP 68, the federal analog to section 998, have come out the opposite way., Author, Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment, CEB, Law, Litigation, Trial, Legal, Paralegal, 2022
- 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., Author, MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority, CEB, Law, Litigation, Trial, Legal, Paralegal, 2022
- 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 Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit., Author, Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases, CEB, Law, Litigation, Trial, Legal, 2022
- 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 Kline v. Zimmer, Inc. (May 26, 2022, B302544) __Cal.App.5th__, 2022 Cal.App.Lexis 460. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal., Author, Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict, CEB, Law, Litigation, Trial, Legal, 2022
- Are anti-SLAPP fee awards automatically stayed pending appeal? This article covers a split of authority between Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 (Dowling), which answers the question "no," and Quiles v. Parent (2017) 10 Cal.App.5th 130 (Quiles), which answers "yes.", Author, Are Anti-SLAPP Fee Awards Stayed on Appeal? The Better Side of a Split of Authority Says Yes (Spring 2022), California Litigation, Law, Litigation, Trial, Legal, 2022
- This article provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals., Author, Preparing the Appendix in Federal Appeals (summer 2022), NALA, Law, Litigation, Trial, Legal, Paralegal, 2022
- 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 McQueen v. Zhen Guang Huang (Mar. 4,2022, B304645) 2022 Cal.App.Unpub. Lexis [nonpub. opn.]. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s“gamesmanship” in the trial court., Author, 'Gamesmanship' ThroughoutLitigation May Raise Risk ofSanctions on Appeal, CEB, Law, Litigation, Trial, Legal, 2022
- This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead., Presenter, Preparing the Excerpts of Record for Federal Appeals, NALA, Law, Litigation, Trial, Legal, Paralegal, 2022
- An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs. But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees. ***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable. And there are many trap doors when your appeal is mixed up with a dismissal., Author, A Trap for the Unwary: Order ona Post-Settlement Fee MotionMay Be Unappealable, CEB, Law, Litigation, Trial, Legal, 2022
- Discussing an award of $239,000 in cost-of-proof fees in Spahn v. Richards (2021) 72 Cal.App.5th 208, and suggested strategy for trial lawyers., Author, Draft Your RFAs With Costs ofProof and Settlement in Mind, CEB, Law, Litigation, Trial, Legal, 2022
- Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer. , Author, Something You Didn't Know About 998 Offers, CEB, Law, Litigation, Trial, Legal, 2021
- Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it.This week, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it.Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage., Author, Making Sense of the California Supreme Court's Publication Rules, CEB, Law, Litigation, Trial, Legal, 2021
- There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility. Bonus Appellate Tip: Carefully consider your requests for sanctions. If you win a discovery dispute and are awarded sanctions over $5,000, your order is now immediately appealable. Which, in this case, reversed the discovery victory., Author, The Risks of Serving Too Many Interrogatories, CEB, Law, Litigation, Trial, Legal, 2021
- 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. That is what happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). The court issued a "Ruling on Trial," and the unsuccessful plaintiff used that for his appellate challenge. But it got him nowhere. It was treated as merely a tentative decision, which cannot be used to impeach a judgment., Author, Don't Fall Into the "No Statement of Decision" Trap, CEB, Law, Litigation, Trial, Legal, 2021
- How the doctrine of judicial admissions is applied, its limits, a split of authority, and the correct way for practitioners and judges to approach admissions made in pleadings and at hearings., Author, Timothy M. Kowal and Brendan M. Loper, A Defense Lawyer’s Complaint: Some Judges Don’t Get It About Judicial Admissions, Verdict Magazine (2018 vol. 2), 2018
- A little-known amendment to Civil Code section 3334 gives landowners a right to disgorgement damages against trespassers. Landowners armed with this information put oil and gas companies, who often have a poor grasp on their easement rights for their pipeline systems, at risk of enormous verdicts., Author, Timothy M. Kowal, Dirty Work: Disgorging the Profits of Trespassing Pipelines, Orange County Lawyer (Oct. 2017), 2017
Other Outstanding Achievements:
- Co-host, California Appellate Law Podcast, featuring interviews with judges and trial and appellate specialists, and discussions of appellate news and tips. www.CALPodcast.com, 2023
- Co-host, California Appellate Law Podcast, featuring interviews with judges and trial and appellate specialists, and discussions of appellate news and tips. www.CALPodcast.com, 2022
- Co-host, California Appellate Law Podcast, featuring interviews with judges and trial and appellate specialists, and discussions of appellate news and tips. www.CALPodcast.com, 2021
- Co-host, California Appellate Law Podcast, featuring interviews with judges and trial and appellate specialists, and discussions of appellate news and tips. www.CALPodcast.com, 2020
- Adjunct Professor, Civil Procedure Clinic, Fowler School of Law at Chapman University, 2017
- Adjunct Professor, Civil Procedure Clinic, Fowler School of Law at Chapman University, 2016
- Adjunct Professor, Civil Procedure Clinic, Fowler School of Law at Chapman University, 2015
Office location for Tim Kowal
2901 West Coast Hwy
Suite 200
Newport Beach, CA 92663
Phone: 949-676-3444
Selections
3 Years Super Lawyers
- Super Lawyers: 2023 - 2025
Certificates and credentials
California Board of Legal Specialization
Appellate Law
Appellate Law
