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Thomas Vogele & Associates, Costa Mesa, CA (2026)

06/27/2023

WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised.

Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it.

The credit (or blame) for introducing this new device goes to Jack Metzler. Jack shares how he came up with the innovation over several long moments of deliberation on Twitter (specifically: about 90 seconds). But unlike most tweets, Jack’s idea flourished into a law review article that now stands as the 2nd most-often cited article in judicial opinions of all time (and only 40 citations behind Justice Louis Brandeis’s 1st place paper).

Jack subjects himself to the following questioning:

❔What does (cleaned up) even mean? Answer: It means you can start a quote with a capital letter without using those stupid ugly square brackets, without having to explain it. And other stuff like that.

❔Ok, so judges are using it. But will judges trust lawyers to use it faithfully? Answer: Judges already don’t trust lawyers, so I don’t even understand your question.

❔I think the judges want to see the quote exactly as it appeared. Answer: That’s not even a question. And no one is forcing you to use (cleaned up).

listen to the episode here: https://lnkd.in/dBKE_e9F

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/dPwUGnG2

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Ycal

WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised.Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used...

06/22/2023

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning to challenge those findings and theories on appeal.

But you don’t have an automatic right to a statement of decision. And very commonly, parties—even their attorneys—are tricked into thinking they have a statement of decision, when really all they have is a tentative decision.

In this clip from episode 74, we discuss why a statement of decision is important, when to request one, how some judges might actually try to trick parties into not requesting a statement of decision, and when you might not want to request one.

Watch the clip here: https://lnkd.in/g_68jwuf

This is a clip from episode 74 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gmydPp_h

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury...

06/20/2023

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the court issues its tentative opinion, it’s probably going to be too late. My plea was: not many courts do litigants the favor of issuing tentatives, so please don’t abuse it. Requesting dismissal after an unfavorable tentative risks ruining it for the rest of us.

But the court in Northgate Gonzalez, LLC v. Realm Real Estate, LLC (D4d2 Jun. 16, 2023 No. E078106) 2023 WL 4042678 (nonpub. opn.) didn’t seem to mind. The trial court entered a preliminary injunction of a development project. After two-and-a-half years on appeal, the Court of Appeal issued a tentative opinion. But before oral argument, the trial court made its injunction permanent, thus mooting the appeal. So Realm requested dismissal, and the Court of Appeal granted it.

Realm already filed a new notice of appeal from the permanent injunction. (No indication which way the Court of Appeal’s tentative went, though.)
Takeaway: If you are appealing from a preliminary injunction, consider also file a petition for a writ of mandate. Otherwise, you might go through two years of briefing only to find your appeal is moot.

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/geuYuB6h

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the...

06/20/2023

As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench.

Then we discuss the March 2023 SCOTUS opinion Sackett v. EPA, which sided with a landowner against the EPA. The EPA’s jurisdiction in keeping our waters clean extends to the “waters of the United States,” or WOTUS. Can wetlands and unconnected waters be WOTUS? Under the EPA’s “significant nexus test,” the answer was yes. But the Court reversed and replaced the test with a “continuous surface connection” test.

Jennifer explains how the new test may still open the floodgates to more water litigation.

(Neither Jennifer nor Jeff laughed at that pun.)

listen to the episode here: https://lnkd.in/g3Rzkcsa

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/gF39M-N3

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Ycal

As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey c...

06/19/2023

Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918 (but the stay only lasts until the deadline to file an appeal, plus 10 days).

So the indefinite stay of an immediately-enforceable sanctions order in Marriage of Bush (D4d3 Jun. 15, 2023 No. G061202) 2023 WL 4013349 (nonpub. opn.) was a little surprising. The court granted sanctions of $3,635 in favor of the husband against the wife. But until the court decided the property issues, it was still possible the ultimate judgment would wind up with the husband owing the wife. So the judge stayed enforcement of the money order.

Can the trial court do this? Just take an immediately enforceable order for the payment of money, and stay enforcement?

Yes, the Court of Appeal held. But the court did not explain why.

Comment: There is a key detail that, if changed, would require a different outcome. That detail is the amount of the discovery sanction of $3,635. If instead the amount was greater than $5,000, the sanction would have been immediately appealable. And in that case, the order could not have been stayed consistent with section 918 longer than 10 days after the deadline to appeal.

This is a summary. Read the full article at the tvalaw.com
blog here: https://lnkd.in/g3zUdmhG

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y

Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918 (but the stay only lasts until the de...

06/16/2023

Here are some legal trends and trivia from this week:

🏛U.S. Supreme Court: Liberal justices' 'dissent rate' lowest since Roberts joined in 2005.

👩But women are underrepresented at oral argument at the Supreme Court: just 20 women—19% of the 103 total advocates— argued before the justices.

⏳Cal. Supreme Court is taking longer to decide its cases.

👍But the Cal. Supreme Court ranks high in diversity, says the Brennan Center for Justice.

🤔Cal. Supreme Court bars treble damages against a public entity for child s*x abuse coverup because government can’t be liable for punitive damages. The holding overrules three of the Court’s prior cases.

💲But trial court was justified in imposing evidentiary sanctions on a school district for negligently erasing a videotape of a s*xual assault on a student.

🎵Check your break room jukebox: The Ninth Circuit, reversing a trial court's dismissal, holds that it might well constitute s*xual harassment for a business to play "s*xually derogatory" or "misogynistic" music in the workplace.

📕Who likes legalese? No one—not even lawyers. So researchers drilled down to the cause: the “copy-and-paste hypothesis”: lawyers imitate what previous lawyers have done because the legalese can be incorporated routinely into contracts drafted for clients.

😶Look out, UC Berkeley: The “Berkeley Library” naming has been canceled by Ireland’s premier university, Trinity College. A NY Times piece on the change noted that the library’s namesake “owned slaves in colonial Rhode Island and wrote pamphlets supportive of slavery.” Unless you are prepared to yield everything, yield nothing.

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/gH8kU-q5

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Here are some legal trends and trivia from this week: 🏛U.S. Supreme Court: Liberal justices' 'dissent rate' lowest since Roberts joined in 2005. 👩But women are underrepresented at oral argument at the Supreme Court: just 20 women—19% of the 103 total advocates— argued before the justices. ...

06/15/2023

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here: https://lnkd.in/ge8d8mYS

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.

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/gr_vdGRB

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here: https://lnkd.in/ge8d8mYS The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H0498...

06/14/2023

The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the term limit and pay cap were constitutional. (As to new supervisors, though, the pay cap will not apply.)

The procedural wrinkle was whether the appeal was mooted when, a new term- and pay-limit measure, Measure D, passed in 2022, totally superseding Measure K. Justice Menetrez thought Measure K was moot, and filed a dissent saying so. “[N]o matter what we do,” Justice Menetrez pointed out, “Measure K cannot go back into effect unless and until Measure D is invalidated.”

Justice Menetrez noted the court could simply stay this Measure K appeal pending resolution of the Measure D appeal, just in case Measure D were to be invalidated.

The majority rejected this, reasoning there “is not even any pending request for a stay.” But this statement is not entirely forthcoming because, as Justice Menetrez notes, the county had requested a stay, which was denied (over his objection).

But to give the majority the last word: “We see no reason why the [Measure D] appeal filed later should have precedence over the one filed earlier.”

The Takeaway: It can be almost impossible to predict how a Court of Appeal will come out on a question of mootness. And despite being a jurisdictional doctrine, mootness is almost completely discretionary.

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/gJFn4nBM

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --...

06/08/2023

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover:

😱Judges’ three key fears when deciding cases (via Ross Guberman)

🗡️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman)

🏔️Litigation is an expedition—you have to bring the judge along the journey with you. You can’t magically teleport your reader to the destination by way of adverbs. (Via Justice Lambden)

📜It’s the best argument that wins—not the best citation. (Via Justice Lambden)

Watch the clip here: https://lnkd.in/gBGpWwwU

This is a clip from episode 67 of the California Appellate Law Podcast. Listen to the full episode here: https://bit.ly/3K35vKe

California Appellate Law Podcast with Tim Kowal and Jeff Lewis interviewing dozens of guests on the California Appellate Law Podcast, Jeff...

06/07/2023

A challenge to a trial judge for cause is subject to waiver if not filed at the earliest practicable opportunity. North American Title waited a year in North Am. Title Co. v. Sup. Ct. (Fresno) (D5 May, 19, 2023 No. F084913) --- Cal.Rptr.3d --- (2023 WL 3560761), before accusing the judge of bias for his statements that North American was playing a “shell game” to evade an eventual judgment. So the judge struck the statement of disqualifications as untimely.

But the Court of Appeal issued a writ reinstating the challenge. Tracing the legislative history, the Fifth District held that challenges based on personal bias were not subject to waiver.

Here, the trial judge in this wage-and-hour class action had grown frustrated after the title company defendant engaged in several acquisitions and name changes. The judge repeatedly accused the defendant of playing a “shell game,” engaging in “trickery” and “scheming” and “a corporate game of three-card monte,” and trying “every device to make sure that they evade the payment of their obligation.” And more like that.

For whatever reason, the defendant waited around a year before filing a statement of disqualification. But no matter. While a statement normally must be filed at the earliest practicable opportunity, the Court of Appeal noted that Code of Civil Procedure section 170.3, subdivision (b) specifically states “[t]here shall be no waiver of disqualification where the basis therefor is … [¶ ] (A) The judge has a personal bias or prejudice concerning a party.

But won’t this invite abuse? The court noted that normally there is no reason for a party to delay before challenging the judge for bias. And if a party does delay to within 10 days before the start of a trial, under section 170.4(c), the challenge would not prevent the trial from going forward.

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/ga_sTXNA

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

A challenge to a trial judge for cause is subject to waiver if not filed at the earliest practicable opportunity. North American Title waited a year in North Am. Title Co. v. Sup. Ct. (Fresno) (D5 May, 19, 2023 No. F084913) --- Cal.Rptr.3d --- (2023 WL 3560761), before accusing the judge of bias for...

06/06/2023

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

listen to the episode here: https://lnkd.in/gwknTQKT

This is a summary. Read the full article at the tvalaw.com blog here: https://lnkd.in/g_vMfKiA

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Ycal

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did n...

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