Thursday, June 22, 2017

4/1 calls out word-count-gamesmanship

In this unpub'd decision here today, 4/1 includes a footnote (fn. 2) to "disapprove" of respondent's counsel's "blatant violation" of the word-count rule. What did counsel do? Well, because this was a cross-appeal situation, respondent/cross-appellant had 28K words, and filed a brief with a word-count-certificate of 27,952 words. On its face, seems ok, right? But the court notices that "counsel intentionally omitted spaces and inserted slashes (/) in case and record citations" to get a lower word count. For example:
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Dodging bullets!
  • by citing "1Supp.CT/57,2Supp.CT/492-496," counsel has misrepresented that this record reference is one word rather than eight; and
  • by citing "Martinez,supra,56Cal.4th/1014," and "(1998)198Cal.App.3d/1225,1240," counsel has misrepresented that these case citations are each one word rather than five.
The court says that this sort of citation is "noncompliant" but declines to strike or otherwise punish counsel "only because we do not want to further delay disposition of this appeal." (The court also notes that respondent's brief "cites to evidence as to which the trial court sustained [] objections"--and the court therefore "disregarded all such references.")

Gamesmanship in case citations has been noted in other cases too. In Pi-Net Int'l Inc. v. JPMorgan Chase & Co. (Fed.Cir. 2015) 600 Fed. Appx. 744, the court issued an OSC re striking the opening brief and dismissing the appeal (which it ultimately did) because a brief claiming to be 14K words had "squeez[ed] various words together and delet[ed] spaces that should appear between the words." For example, the brief cited Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) [14 words in proper Bluebook format] as just one word: "Thorner.v.SonyComputerEntm'tAm.LLC,669F3d1362,1365(Fed.Cir.2012)."

California's rule allows the use of BlueBook or Yellowbook citation format. Although Yellowbook form uses "Cal.App.4th" [no spaces] as opposed to the BlueBook's longer "Cal. App. 4th" [3 words because of the spaces], neither format (of course) allows entirely removing all spaces from case citations.

Meanwhile, up in 2/3, take a gander at this unpub here, where the majority dismisses an appeal because the order at issue not appealable and superseded by a judgment, but the pro tem on the panel dissents, saying the dismissal is for a "procedural defect" and while a writ would have been "better practice" the case (involving pro bono counsel) "warrants a review on the merits."

17 issues? Way too many...

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A 3d DCA unpub'd decision here today begins:
"This is a shotgun-approach appeal in which trustee [] and his attorney [] present 17 separate arguments against an order requiring them to jointly pay $16,060 in sanctions under Code of Civil Procedure section 128.7." Uh oh, not off to a good start for the appellants... The court then lists out the 17 arguments, and notes that 11 of them "have not been preserved for appeal." Then the court shoots down the remaining claims on the merits, finding that one was forfeited. And the court finds that Appellants' post-trial motions were defective because those expressly apply to judgments after a trial; such motions are not procedural vehicles for challenging the sanctions order at issue. In short, an appellate train wreck, and the opinion is ordered forwarded to the State Bar...

This calls to mind the "Litmus Test: Number of Issues in the Brief" in Judge Aldisert's classic Winning on Appeal, in which he explains that raising 3 issues means "presumably arguable points," four issues: "probably arguable," five issues: "perhaps arguable," six issues: "probably no arguable points. The lawyer has not made a favorable impression," seven points: "presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way," eight or more points, "strong presumption that no point is worthwhile. To the lawyer: Go home. Do not pass 'Go.'"
A new (3d) edition of this essential book will be coming out soon...

Latest CSCHS newsletter

NOW AVAILABLE: Spring/Summer 2017 Newsletter

The latest issue of the California Supreme Court Historical Society’s Newsletter is now available on the Society’s website:

The lead article is an extraordinary in-depth account of the infamous case People v. Hall (1854), which one legal scholar argued contains “some of the most offensive racial rhetoric to be found in the annals of California appellate jurisprudence.” In a case that preceded the Dred Scott decision by three years, the California Supreme Court reversed the murder conviction of George W. Hall, “a free citizen of this state,” because three prosecution witnesses were Chinese. The Court held their testimony inadmissible under an 1850 statute providing that “no black or mulatto person, or Indian, shall be permitted to give evidence in favor or, or against, a white person.” Berkeley attorney and legal scholar Michael Traynor sets this shameful decision in the context of rising hostility to immigrants within California and the growing debate over slavery nationally. His fascinating account is followed with a “playbill,” adding newly uncovered information about the characters in this “California Tale.”

The issue also contains moving profiles of two prominent California attorneys of color — Y.C. Hong of Los Angeles, who became one of the foremost authorities on immigration reform and Chinese immigrant rights, and Northern Californian Cecil Poole, who in 1961 became the first African-American U.S. attorney in the continental United States.
We also take note of Justice Kathryn Werdegar’s announcement that she will retire from the Court in August with excerpts from her forthcoming oral history covering the years before she began her judicial career. Other articles explore The Wasp, an illustrated San Francisco political/satirical periodical that frequently targeted the justice system, and UCLA Law School’s controversial Riseborough Mural — its presence in the law library, removal and its rebirth as a coffee mug. We also debut a new occasional feature, “The Bookshelf,” highlighting recent books of particular interest to practitioners, judges and legal academics. 

We hope you enjoy this issue and welcome your comments at

Wednesday, June 21, 2017

DJ profiles Judge Milan Smith

MDS official photo.jpg
"I'm a judge's judge.
I have no political agenda whatsoever."
Today's DJ profiles 9th Circuit Judge Milan Smith in 9th Circuit Court of Appeals Judge Milan Smith known for adhering to law over ideology. The article begins by noting that liberals feared that his ties to Mormonism and a politically conservative family would influence his rulings. But these "concerns proved unfounded." The article characterizes him as "a common-sense pragmatist who is open to changes that will improve court efficiency." Judge Tallman says that Judge Smith "brings to the role of judging the practical wisdom and experience of a practicing attorney [for nearly 40 years]." Judge Nelson says that "He engages in ... the independent search for truth."

Monday's DJ had Moskovitz on Appeals column, Statement of Facts: Part V, which emphasizes the need for a good story: "People love to hear stories--if they are well told." So present the facts in as interesting and readable a way as possible. "People like to read about a fight," and litigation is always a fight of some sort. Tell the story chronologically, and tell it "your way" from your client's perspective.

Monday, June 19, 2017

Are you jazzed about the new DTLA federal courthouse?

Well, you should be:

Chief Judge Virginia Phillips is pleased to announce that the United States District Court is sponsoring an exhibition of postwar photographs of jazz life by Herman Leonard. Shot in New York between 1948 and 1956, Leonard's work documented the birth of bebop. K. Heather Pinson, the author of The Jazz Image (University Press of Mississippi, 2010), a study of Leonard's work, has said, He was a master of jazz, except his instrument was a camera. His photographs are probably the single best visual representation of what jazz sounds like. The exhibition, which begins in September, is from the collection of the National Portrait Gallery and features Leonard's iconic images of jazz legends such as Duke Ellington, Ella Fitzgerald, Dizzy Gillespie, Billie Holiday, Quincy Jones, Thelonious Monk, Frank Sinatra, Sarah Vaughn, and Dinah Washington.

As part of the exhibition, the Court is hosting a reception to honor Leonard's life, his work, and iconic American jazz artists he captured with his camera. The UCLA Thelonious Monk Institute of Jazz Performance is scheduled to perform. The event will be free to the public and the Court is making a special effort to reach our community's secondary school students to raise their awareness of jazz and its titans. The reception is scheduled for September 21, 2017, starting at 4:00 p.m.
This exhibition is also presented in celebration of the 2016 Grand Opening of the new state-of-the-art 1st Street Federal Courthouse in downtown Los Angeles.

Video: Herman Leonard and His World of Jazz
Save the Date: Herman Leonard: Pillars of Jazz

Friday, June 16, 2017

Cal Supreme Court Round-Up program

Los Angeles Lawyers Chapter

2016-17 California Supreme Court Round-Up

At this luncheon event, three seasoned appellate practitioners will review the California Supreme Court's most significant decisions in 2016-17.


Partner, Kendall Brill & Kelly LLP

Partner, Gibson, Dunn & Crutcher LLP, and
former Associate Justice, California Court of Appeal, Third Appellate District

Partner, Horvitz & Levy LLP

Date & Time:
 Thursday, June 29, 2017, Noon

The California Club
538 South Flower Street
Los Angeles, CA 90071

Gentlemen:  Coat & Tie Requested

MCLE Credit:  One Hour

 Please reply to this note or send an email to if you wish to attend.

The cost of the luncheon is $45.  Dues-paying members of The Federalist Society may pay a discounted rate of $35.  (To pay or renew your dues, please click here.)  Parking is available at the California Club for an additional $7.50.
 Payment may be submitted in advance by mailing a check made payable to the Federalist Society to:  Andrew Pappas, Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, California  90071.  Payment (cash or check only) will also be accepted at the door.

This event is being co-sponsored by the Libertarian Law Council.

Cal Supremes to Launch e-filing in July

Supreme Court to launch eFiling July 10, 2017

SAN FRANCISCO—Jorge Navarrete, Court Administrator and Clerk of the Supreme Court of California today announced that the Supreme Court will launch voluntary eFiling under California Rule of Court 8.70 beginning July 10, 2017.

“The eFiling system will benefit the public, attorneys, and the court by providing a more technologically advanced and efficient process for filing and managing cases at the high court,” said Mr. Navarrete. “The court appreciates the cooperation and assistance of appellate attorneys in preparing for this major enhancement in service to litigants and legal professionals statewide.”
The court will adopt detailed eFiling Rules in June and remain open to opportunities to enhance the program in the coming year. The court will employ a phased approach to the launch of its eFiling program. Beginning on July 10 participation will be voluntary, and the program will become mandatory effective September 1, 2017.

Documents Supported by eFiling
The following documents have been approved for eFiling with the court:
  • Petitions for review;
  • Answers to petitions for review;
  • Replies to answers to petitions for review;
  • Motions, applications, and documents related to petitions for review; and
  • Automatic appeals from a judgment of death and related habeas corpus matters

Live Training and Webinars for Appellate Attorneys/Law Firms
The e-Filing service provider ImageSoft will host live training on its TrueFiling eFiling system in Los Angeles on Tuesday, June 20, 2017 (two sessions), and San Francisco on Wednesday, June 21, 2017 (three sessions). The training events will be recorded and made available online as training webinars after the sessions for those who cannot attend in person.
Registration is required to attend the training sessions (links below):
ALSO -- the Second District is planning on going to TrueFiling on October 30.

Today's tidbits

Today's DJ features Ruling Limits Ability to Appeal Class Cert Denial by Jeffrey LeVee and Jason Wright of Jones Day about Monday's SCOTUS opinion in Microsoft v. Baker.

Regarding that opinion, all 8 justices agreed that the order can't be appealed; but SCAN would like to run a poll: Which analysis seems stronger, the 17-page majority opinion (premised on 28 U.S.C. sec. 1291) or the 4-page concurring opinion (premised on Article III, sec. 2's 'cases and controversies')?

Re the "Use and Abuse of FRAP 28(j) Letters," the 5th Circuit recently posted this interesting announcement here.

Law360 offers BigLaw Appellate Associates Cut Teeth On Pro Bono Cases, which begins:
The high-supply, low-demand nature of corporate appellate work means that BigLaw associates rarely, if ever, get the chance to develop their skills arguing civil appeals in live court. But a growing number of young lawyers has found a creative and indeed altruistic solution to the problem: pro bono work.
And the State Bar Litigation Section's June 2017 Litigation Update is now available here.

Last week the DJ did a spread on law school graduation speakers, including Justice Cuellar (Chapman Univ.) and Judges Kozinski and Watford (UCI and UCLA, respectively).

Thursday, June 15, 2017

Order denying motion to vacate remains appealable

Ryan v. Rosenfeld is out:
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Break out the martinis,
"shaken, not stirred!" 
Section 663 of the Code of Civil Procedure allows an aggrieved party in a civil case to move the trial court to vacate its final judgment. The question in this case is whether an order denying one of those motions is appealable even if it raises issues that could have been litigated via an appeal of the judgment. We answered yes to this question over a century ago. (See Bond v. United Railroads (1911) 159 Cal. 270, 273 (Bond).) Bond held that the statute authorizing appeals of postjudgment orders covered denials of section 663 motions. The current version of that statute allows for the appeal of ―an order made after a[n appealable] judgment.‖ (Code Civ. Proc., § 904.1, subd. (a)(2).) Orders denying motions to vacate under section 663 fit that description, and this court has always interpreted the language currently found in section 904.1, subdivision (a)(2), to make appealable all section 663 denials. The Legislature has done nothing to undermine or overturn that interpretation despite enacting over a dozen other changes to this very statutory scheme. So the rule announced in Bond remains valid.

Also, here's one from 1/4 with some valuable lessons about post-trial motions and error preservation.

Incredible Shrinking Appellate Courts

The Federal Courts reports that Courts of Appeals Help Lead Space Reduction Push, by reducing library space and converting traditional judges' chambers for visiting judges into open-format drop-in suites:
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Building a better mouse trap
The 12 regional Courts of Appeals are playing an outsized role in helping the federal Judiciary to achieve its five-year goal for reducing courthouse and office space.

The appellate courts account for just 11 percent of Judiciary property, but make up nearly 25 percent of all space reduction that has been completed or is underway. Leading the way have been projects shrinking space for circuit libraries, staff attorney offices, and chambers for out-of-town judges who travel to their circuit headquarters when they hear cases.

“The courts have benefited from the constant march of technology,” said Jesse Cannon, Assistant Circuit Executive for space and facilities for the Fifth Circuit, which includes Louisiana, Texas and Mississippi. “More and more tasks are done by technology … and more employees are able to work from remote locations.”
(The 9th Circuit is not mentioned in the article.)

Wednesday, June 14, 2017

Chief appoints judges to Power of Democracy Committee

Chief Justice Tani Cantil-Sakauye appointed seven judicial officers to the Power of Democracy Steering Committee, the governing body of her Civic Learning Initiative, including 9th Circuit Judges Connie Callahan and Ray Fisher, and the 3d DCA's Justice Andrea Hoch. The 4th DCA's APJ Judith McConnell chairs the committee. See more here.

Happy Flag Day!

Yes, it's Flag Day! (A "patriotic observance," but not technically a federal holiday. See 36 U.S.C. sec. 110.)
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Flag Day is not a state holiday in California (see Gov. Code section 6700).
But check out Gov. Code section 420 to learn about "The Bear Flag [that] is the State Flag of California," because today is also the anniversary of the 1846 "Bear Flag Revolt" -- in which 33 Americans arrested the Mexican general in Sonoma, and declared the "Bear Flag Republic" as an independent nation and raised a flag emblazoned with a bear and a star to symbolize independence from Mexico. The Bear Flag was adopted as California's state flag upon joining the union in 1850.

Appellate lawyers are often interested in typography and design--issues that also relate to flag design. A link to an outstanding TED Talk about vexillology is here, which presents valuable lessons about visual presentations of all sorts.

And speaking of holidays, see Gov. Code section 6719, and prepare something fun for Juneteenth this Saturday: "The Governor shall proclaim the third Saturday in June of each year to be known as “Juneteenth National Freedom Day: A day of observance,” to urge all Californians in celebrating this day to honor and reflect on the significant roles that African-Americans have played in the history of the United States and how African-Americans have enriched society through their steadfast commitment to promoting freedom, brotherhood, and equality."

Back to appellate law: Tomorrow morning the Cal Supremes will issue their opinion in Ryan v. Rosenfeld. What amazingly significant issue of statewide import will be resolved? How about: Is the denial of a motion to vacate the judgment under Code of Civil Procedure section 663 separately appealable? Yes, we care!

Tuesday, June 13, 2017

Kind words for amici

Sometimes amici get a nice shout-out, as has happened twice now in two days:
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  • First, in yesterday's big 9th Circuit HI v. Trump opinion, footnote 1 said, "We thank the parties and their counsel, as well as the amici, for their excellent briefs and arguments in this case."
  • Second, now in today's opinion here from 4/1, footnote 3 says, "We received and considered in association with this appeal the amicus curiae briefs, and responses thereto, of the Howard Jarvis Taxpayers Association filed in support of plaintiffs; and of the California Association of Sanitation Agencies, California State Association of Counties & League of California Cities, joined by the California Special Districts Association, filed in support of District. We found the amicus brief of Howard Jarvis Taxpayers Association—the author and principal sponsor of Proposition 218—particularly useful in resolving this case."
A kind word is always appreciated!

(The 5th DCA has updated its online photo here to include Justice Meehan.)

Monday, June 12, 2017

2d DCA pro tems

The following are currently sitting on assignment:

  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until July 31, 2017
  • Judge Michael Johnson of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2017
  • Judge Monica Bachner of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2017
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until July 31, 2017
  • Judge Dennis Landin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until August 31, 2017
  • Judge Frank Menetrez of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2017
  • Judge Douglas W. Sortino of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until July 31, 2017
Yesterday's 9th Circuit appealability case (holding that the collateral-order doctrine does not allow an immediate appeal of an order denying a dismissal motion based on state-action immunity) is here.

And don't miss the latest appealability opinion from SCOTUS here (see In Xbox Case, SCOTUS Blocks Class Action Maneuver Favoring Plaintiffs).

9th Circuit Hawaii v. Trump Opinion

Per Curiam 86-page Opinion is here: Affirmed in part, Vacated in part; Remanded with Instructions.
(Webpage here.) Quote from intro:
But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.
Quote from page 62:
In sum, we conclude that Plaintiffs have shown a likelihood of success on the merits at least as to their arguments that EO2 contravenes the INA by exceeding the President’s authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees. 

Thursday, June 8, 2017

Become a Certified Appellate Specialist!

Image result for test taking
Image result for california legal certified specialist logoThe State Bar is offering its one-day Legal Specialization exam in Appellate Law on October 24, 2017.  The exam will be offered in Pasadena and Oakland.  The State Bar’s website provides registration details.
It also lists experience, education, and reference requirements for certification, and it identifies resources for exam preparation.