To help trial attorneys, I am always looking for new legal trends, war stories, tips, and trap doors to share with you, my colleagues. If you have reactions to these tips, or tips of your own, drop me a line at [email protected].

And I am always happy to talk about these kinds of issues in your cases.

–Tim

Don't Save Your Arguments for Later

The plaintiff's strategic decision to "not discuss" prong two of the anti-SLAPP analysis in hopes of supplemental briefing later proved fatal in *Ramirez v. McCormack* (D2d8, Aug. 8, 2025, No. B340986) reh'g denied (Aug. 19, 2025). Courts expect parties to present complete arguments in their initial briefs—don’t rely on getting a second chance.

In a scenario familiar to attorneys, after Ramirez agreed in a prior lawsuit to accept a settlement, the attorney sent the payment to Ramirez’s attorney. As a result of a mailing-address mixup, Ramirez claimed she suffered $400,000 in damages. Ramirez, even with a capacious 100-page complaint, did not explain how. But she blamed attorney McCormack for that and for delaying other aspects of the settlement.

Reversing on prong one, the Court of Appeal held the attorney’s activity was protected. While other cases hold that a breach of a settlement is not necessarily protected, here the attorneys’ actions were part of the right of petition—directing process servers, communicating with counsel, negotiating settlement, drafting requests to dismiss, and advising clients on the timing of executing the settlement terms.

The key waiver lesson, however, is in prong two. In a bold move, Ramirez told the court “she ‘will not discuss’ [prong two]” and instead “requests leave to file supplemental briefing if [the court is] ‘inclined to move to the second prong.’”

While the appellate court certainly can ask for supplemental briefing, don’t count on it. Ramirez staked her entire prong two argument on the off chance the court would issue, in effect, an engraved invitation to do so. it didn’t work.

Takeaway: Plaintiffs opposing anti-SLAPP motions must show their claims have minimal merit. That includes on appeal. Even if the trial court didn't reach prong two, If you skip it on appeal it may be deemed forfeited.

This is a summary. Read the full article here

Appeal Deadline Alert: Don’t count on Rule 58, 9th Circuit says

Appealing in the 9th Circuit? Your deadline is 30 days. But sometimes the court makes certain rulings that are appealable but without a formal order—and that’s where FRCP 58 comes in, which says that those rulings are not deemed “entered,” and so the 30-day appeal deadline doesn’t yet run, until 150 days later.

But in McNeil v. Gittere (9th Cir., Sept. 2, 2025, No. 23-3080), the 9th Circuit now holds that the additional 150 days under Rule 58 conflicts with the statutory 30-day deadline. So the state official’s appeal from an order denying its summary judgment on qualified immunity grounds—which is appealable as a collateral order—was untimely. The defendant said that FRAP 4(a)(7)(A)(ii) says if Rule 58(a) requires a separate document and none is issued, “entry” occurs 150 days after the judgment or order is put on the civil docket. And the appeal was filed within that time.

But the panel disagreed that Rule 58 can operate as to appealable collateral orders. So the appeal was filed longer than 30 days after the collateral order, so it was untimely.

Takeaways

Bookmark these key rules:

1. For collateral orders (like a denial of qualified immunity), the 30-day clock starts when the order is filed on the civil docket.
2. Where Rule 58 still applies (separate document + 150-day deeming can matter)? Final judgments where no separate judgment issues; judgment-like, case-ending dispositions (e.g., grants that end the action, like grants of summary judgment).
3. Where Rule 58 does not apply (calendar 30 days from docketing): Collateral orders, and likely other immediately appealable “orders.”

If you need more time you’re unsure whether Rule 58 applies, file a FRAP 4(a)(5) motion to extend your time to appeal, up to 30 days.

This is a summary. Read the full article here

New Cal.Law.Pod episode “When Copy & Paste Gets Costly, & other recent cases “

From plagiarism in legal briefs to AI testimony—this week’s got range. Jeff and Tim return with a classic cases & tidbits episode, covering everything from whether you can plagiarize in court filings (hint: you shouldn't), to the curious ethics of lifting unpublished dissents, to what happens when the Supreme Court de-publishes your hard-earned published opinion—without saying why.

Also in this episode:

• Can copying from a CLE article really get you sanctioned? Kelly v. Tao suggests… maybe.
• Presiding Justice Gilbert rails (again) against the Court's silent de-publishing practices.
• Deny a request for admission in a one-way fee-shifting case? You might still owe fees—Gammo v. Morrell.
• $105k in sanctions after failing to abandon claims disproven in discovery—Atlantic v. Baroness.
• The perils of citing the wrong fee statute—Martin v. Hogue.
• Gibson Dunn bills $1.8M for May alone in public interest litigation over LA homelessness.
• Can ChatGPT testify against you? OpenAI’s CEO says maybe.
• How AI tools are reshaping billing, ethics, and expectations for appellate lawyers.

Tune in for AI ethics, briefing blunders, and why even your RFA denials could cost you.

This is a summary. Read the full article here

New Cal.Law.Pod episode “9th Circuit overrules the appeal-extension rule: 30 Days Means 30 Days”

Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court.

• Appeal Deadline Alert: The 9th Circuit in McNeil v. Gittere held that Rule 58's 150-day extension for appeal deadlines applies only to final judgments, not collateral orders like qualified immunity denials.
• Anti-SLAPP Motion Timing: Mora v. Menjivar confirms that filing just a notice of anti-SLAPP motion within the 60-day deadline is insufficient—supporting documents must be filed concurrently.
• Out: Res Judicata. In: Claim Preclusion.
• Sanctions Strategy: 28 U.S.C. § 1927 can be used for sanctions without Rule 11's cumbersome 21-day safe harbor.
• AI Ethics: California courts confirmed in Nolan v. Land of the Free that attorneys must personally read all cited authorities, regardless of whether AI tools were used in brief preparation.

And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools into your appellate practice.

This is a summary. Read the full article here