The California Appellate Law Podcast Tim Kowal & Jeff Lewis

Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants.
But don’t commit a “super snap” removal. That’s when you remove before the complaint is officially filed. The 9th Circuit just rejected those.
We discuss Casola v. Dexcom, Inc., and how to learn about lawsuits before they are even filed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024)Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.
But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”
Consider how these opinions might be reconciled:
People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___ held violations of the Racial Justice Act are per se reversible.In People v. Simmons (2023) 96 Cal.App.5th 323, Justice Yegan argued in dissent that a attempting to bind the courts to a legislative definition of the constitutional term “miscarriage of justice” violates the doctrine of separation of powers.The Supreme Court in F.P. v. Monier (2017) 3 Cal.5th 1099 held that, although the Legislature mandates that trial courts make express findings on principal controverted issues, a court’s failure to do so is not per se reversible because the Constitution first requires a finding that the failure worked a miscarriage of justice.In Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ----, failure to make the statutorily-required findings under F.C. 3044 to support awarding custody to a person previously found to have committed domestic violence was per se reversible.In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519 held that, although the Legislature purported to make inadequate disclosures in property-division cases per se reversible, the Legislature cannot provide “a ‘get-a-new-trial-free’ card” in light of the constitutional requirement to show a miscarriage of justice.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Tim’s writeup on Oriostegui, The Racial Justice Act Is Unconstitutional

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include:
👉 Know your appealable issues—appeal now, or lose it forever!
👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.
👉 Get the standard of review right, and use this tip when challenging discretionary rulings.
👉 Brief like an appellate attorney: Put cites on everything. Put headers on everything.
👉 Make a record!
And five more!
One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Other items discussed in the episode:
Good example of the importance of the statement of decision: Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ---- [F.C. 3044 presumption of unfitness triggered by prior DV finding may be rebutted only by written findings—lack of SOD required reversal]. Tim’s writeup on Abdelqader here. One of CALP’s top cases here.But Abdelqader was not followed in Marriage of Burger.Abdelqader was followed in Hutchins.Tim’s article on sanctions for appellate briefing defects: “Attorney who ignored appellate rules hit with $50k in sanctions”. Case is Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.).Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss:
📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.⚖️Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.🤷Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.👎The facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.⛪A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Lindke v. Freed (Mar. 15, 2024, No. 22-611)TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368)Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.].Remini v. Church of Scientology“Motion granted, Bimbo!” — the Candi Bimbo Doll case; Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.]Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very hard to do.
We discuss his five observations about why a full-time appellate practice is hard:
Breaking in to the practice is very hard.Don’t expect to get full-time work writing appellate briefs—you’re going to have to mix it up some in the trial court.Once you’ve done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.Which is why you are going to have to make some trade-offs.The business of law was not designed with an appellate practice in mind, so doing high-end sophisticated appeals all the time is no one’s idea of a sound business model.Raffi Melkonian’s biography, LinkedIn profile, and Twitter/X feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Raffi’s X thread, “5 ideas for law students and associates about appellate practice.”Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:
$50k sanctions against appellant for blowing appellate procedure.Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Attorney who ignored appellate rules hit with $50k in sanctions in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.)Denying an untimely but meritorious motion for reconsideration was reversible error  Contreras v. Superior Court (Champion Dodge, LLC) (D2d5 Feb. 16, 2024 No. B331737) [nonpub. opn.]Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion Miszkewycz v. County of Placer (D3 Jan. 25, 2024 No. C095426).Racial Justice Act motion requires case-specific facts, not mere statistical analysis Austin v. Superior Court (D2d2 Jan. 25, 2024 No. E080939)Read the full article at the KowalLawGroup.com blog here