Tuesday, September 26, 2017

Start with a compelling hook

Here's an unpub'd decision from the 3d DCA that starts off like a movie pitch:

Image result for start story with a hookThe distant origin of this bizarre case lies in the efforts of Richard Powers to escape prosecution by the Sacramento District Attorney’s Office for four counts of felony drunk driving. Fearing convictions would ruin him professionally, Powers sought to make a deal with the district attorney by which he would escape prosecution in exchange for acting as a confidential informant about another, bigger crime. Powers’s problem? He did not have a bigger crime to report. Undeterred, Powers made up a story that his friend, Marco Ambroselli, was illegally selling performance-enhancing drugs.

Or how about this start here from 4/1 in a pub'd decision:

The issue whether a criminal defendant has a constitutional right to obtain social media records from an electronic communication or remote computing service is currently under review by the California Supreme Court in Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051 (Facebook I). In this case, we address the same issue knowing that our high court will likely grant review and hold this matter pending a decision in Facebook I. Nonetheless, we publish our thoughts agreeing with the conclusion in Facebook I for their potential persuasive value. (Cal. Rules of Court, rules 8.1105(e), 8.1115(e)(1) [published opinions for which the Supreme Court has granted review have no binding or precedential value but may be cited for potential persuasive value only].) Accordingly, the petition for writ of mandate is granted.

Monday, September 25, 2017

Catching up...

Catching up on appellate articles from last week:

  • The DJ's Moskovitz on Appeals column was Can you DIG it, California Supreme Court? about why the Cal Supremes should, like SCOTUS, sometimes dismiss grants of review as improvidently granted.
  • Other very important news: Santa Monica Lawmaker's Dinosaur Bill Signed into Law

Image result for augustynolophus
Hooray! We have an official State dinosaur!

Dodging appellate sanctions

Here's a final footnote in this unpub'd decision here that sticks it to an appellant:

     Any remaining points in [Appellant's] opening brief “are simply overtaken or outflanked
by resolution of the matters which we do discuss or do not warrant discussion because
they are too fragmentary or obscure.” (Claypool v. Wilson (1992) 4 Cal.App.4th 646,
659; see Tilbury, supra, 137 Cal.App.4th at p. 482.)
     [Respondent] has not sought sanctions for a frivolous appeal, nor have we issued an
order to show cause on our own motion, despite the fact that the manner of [Appellant's]
counsel’s briefing is sorely deficient. It is hard to believe that any reasonably competent
attorney would think any of the claims raised on appeal--in the manner they were raised--
had any reasonable chance of success. Our forbearance should not be construed as an
invitation to [Appellant's] counsel to repeat his disregard of appellate norms in the future.

5th DCA Pro Tem update

Judge Donald S. Black of the Superior Court of Fresno County will be sitting Pro-Tem beginning August 1, 2017 until November 30, 2017

Friday, September 15, 2017

Memorial for Judge Noonan

Image result for judge noonanOn Monday, 9/18 at 4:00, the 9th Circuit will hold--and livestream at this link--a Memorial Ceremony for Judge John T. Noonan.

Registration now open for "Federalism Now"

UC Berkeley School of Law, Friday, Nov. 3 9:00 to 5:30
Free admission, registration required
This full-day conference will bring together a diverse set of scholars, practitioners, and policymakers to explore what federalism means now. In this era of shifting state and federal policy positions, what constraints and opportunities does federalism present? Can people of different views agree on rules and principles to guide us going forward?
The day is divided between a framing panel and two topical panels, one focusing on federalism and environmental law (climate change, specifically) and the other focusing on federalism and immigration law. The Chief Justice of California will deliver the keynote address, and the program concludes with remarks by Erwin Chemerinsky, Dean of Berkeley Law.
Berkeley Law presents this event in partnership with the Institute of Governmental Studies, the Federalist Society, the American Constitution Society, the Bar Association of San Francisco, and the Alameda County Bar Association. This event is eligible for 5 hours of MCLE credit, pending State Bar approval.

14-day 23(f) deadline not jurisdictional

Today the 9th Circuit finds the Rule 23(f) 14-day deadline to seek appellate review is not jurisdictional and may be subject to tolling. Opinion is here.
The panel held that the fourteen-day Rule 23(f) deadline was not jurisdictional. Specifically, the panel that under Bowles v. Russell, 551 U.S. 205 (2007), and Eberhart v. United States, 546 U.S. 12 (2005), the Rule 23(f) deadline was not jurisdictional because it was procedural, did not remove a court’s authority over subject matters or persons, and was in the Federal Rules of Civil Procedure, rather than in a statute. The panel held that because the Rule 23(f) deadline was not jurisdictional, equitable exceptions, such as tolling, might apply. The panel also held that a motion for reconsideration filed within the Rule 23(f) deadline would toll the deadline.
Image result for ducklings

Interested in preemption? Then you'll enjoy these opinions here and here.

Thursday, September 14, 2017

In re California Bar Exam

So, maybe you have opinion about what the Supreme Court should do regarding the Bar Exam: Lower the passing score? Keep it the same? Abolish it? Well, the Supreme Court has issued an order in In re California Bar Exam inviting you to comment, which reads as follows:

          On September 13, 2017, the court received the Final Report on the 2017 California Bar Exam Standard Setting Study of the State Bar of California. Any person or entity wishing to comment on the State Bar's Final Report may submit an amicus curiae letter (referencing docket number S244281 In re California Bar Exam) to the Office of the Clerk, Supreme Court of California, 350 McAllister Street, San Francisco, CA 94102. The commenter must also send a copy of the amicus curiae letter to Vanessa Holton, General Counsel, The State Bar of California, 180 Howard Street, San Francisco, CA 94105. The letters to the court and the copies to the State Bar must be postmarked on or before October 2, 2017, or be hand-delivered to the designated addresses by October 2, 2017.
See in the ABA Journal California bar brief pokes holes in some arguments for a lower bar exam cut score.

And see in the DJ One Bar Exam is Enough, arguing that that "The California Supreme Court should join the vast majority of other state supreme courts that have adopted reciprocal admission on motion for experienced attorneys from other states."
And also in the DJ Pass score should be a valid minimum standard, about how "The California Accredited Law Schools have filed a letter brief with the California Supreme Court supporting lowering the minimum passing score for the California bar exam from 1440 to 1390."

Wednesday, September 13, 2017

Justice Trotter returns to 4th DCA--as Respondent

Justice Trotter, who served in 4/2 in 1982 and 4/3 from 1982-1987, returns to the 4th DCA (4/1) today as a successful defendant/respondent in an anti-SLAPP unpub'd decision here.

And see How 'Friends' of the Court Can Tip the Scales of Justice about amicus briefs (including some good links in a Reference Shelf section at the end).

Law360 offers Posner's Opinions Tell A Tale of Feline Love:

"Former Judge Richard Posner is not only a lion of American law. He is also the cat whisperer of the nation’s jurisprudence." The article provides ten examples of Posner cat-quips in his opinions.

Jazz program at downtown LA federal courthouse on Sept. 28! Details here.

National Appellate Program in Long Beach this November

From At The Lectern:

Image result for long beachCalifornia appellate lawyers are extremely fortunate that the nation’s premier appellate CLE seminar is coming to the Westin Hotel in Long Beach in less than two months. The annual Appellate Judges Education Institute (AJEI) Summit will last four days, from November 2 through 5, and will include superb CLE programs on all aspects of appellate practice. It will be attended by hundreds of appellate judges, lawyers, and staff attorneys from around the country. In addition to the top-flight CLE programs, the Summit will include an evening cocktail reception at the Aquarium of the Pacific, a gala dinner, off-site activities, dine-arounds, cocktail receptions and other opportunities to network and make new friends. Time is running out for early bird registration. So register now!

Looking for a webinar about What Every Litigator Should Know About Attorney Fee Appeals? For less than a dollar a minute, sign up for this 9/28, noon, State Bar Litigation Section webinar presented by Audra Ibarra and Richard Pearl.

LACBA Opposes 9th Cir. Split

LACBA Opposes Senate Bill 276 which
Seeks to Split the Ninth Circuit Court
The Los Angeles County Bar has sent a letter to
U.S. Senator Dianne Feinstein from California in
opposition of Senate Bill 276 to split the U.S. Court
of Appeals for the Ninth Circuit. The letter, which
was drafted by LACBA’s Appellate Courts Section,
can be read in its entirety HERE.

Tuesday, September 12, 2017

4/2 Pro tem update

Pro tems in 4/2

  • Stephen Cunnison, retired judge of the Riverside Superior Court is sitting in Division Two
  • Dallas Holmes, retired judge of the Riverside Superior Court is sitting in Division Two

Register NOW for the State Bar Litigation Section's Appellate Summit

The Appellate Summit

Saturday, October 14, 2017
Total 5.75 Hours of MCLE
Includes 5.75 Hours of Legal Specialization Credit in Appellate Law and 1 Hour Legal Ethics

This inaugural Appellate Summit will update you on the latest developments in appellate practice and will provide invaluable insights from appellate justices, trial judges and appellate experts from across the state. The breakfast keynote will feature a lively presentation from Presiding Justice Arthur Gilbert of the Second District Court of Appeal on brief writing, and the luncheon keynote will feature a not-to-be-missed discussion with California Solicitor General Ed Dumont.

Earn up to 13.5 Hours MCLE Credit, including Legal Ethics and Legal Specialization
You can now REGISTER ONLINE for this program.
October 6 Program Registration Deadline
For best rates, register by September 25

DJ profiles 3rd baseman Justice Segal

“Sometimes passion can get in the way
of the point you’re trying to make.” 
Today's DJ profiles 2/7's Justice John Segal in Wordsmith: Known for his witty, writerly opinions, John Segal is learning to deal with the complexity of being an appellate justice. The article emphasizes his "understated humor," "verve and levity," "rapier wit," "clarity," and opinion-writing skills. He is described as an "active questioner" at oral argument.

His advice to lawyers? "Cool the language."

“Some of the rhetoric in the appellate briefs is just too strong, too over the top. You read and it you go, ‘Really? Calm down!’”

Monday, September 11, 2017

Appellate tidbits

Winning on Appeal 3d edition is now available for purchase!

The MetNews covers this unpub'd 2/1 decision in Appeal of $3.15 Million Judgment Fails Based on Inadequate Record, Brief.

And don't miss the NYT's An Exit Interview With Richard Posner, Judicial Provocateur

This month's LA Lawyer pratice tip's column is Guidance on When to File a New Trial Motion (at pp. 12-14) by Valerie McGinty.

Finally, Gov. Brown reminds us that today, 9/11, is Patriot Day, a day to "rededicate ourselves to the American values of life, liberty and equality, that were, as much as our land and our loves ones, the target of the attacks."

Speaking of books, SCAN OC correspondent Yen-Shyang Tseng provides this summary of today's OCBA program:
Image result for Race Results: Hollywood vs. the Supreme Court: Ten Decades of Racial Decisions and FilmJustice Eileen Moore presented “Race, Hollywood and the Law” at the OCBA Appellate Law Section Meeting. The presentation was based on her book, “Race Results: Hollywood vs. the Supreme Court: Ten Decades of Racial Decisions and Film.” In the presentation (and her book), Justice Moore discussed the differences between the U.S. Supreme Court and Hollywood’s treatment of African-Americans through select films and Supreme Court opinions over the past hundred years.
The next Section meeting will be October 4, 2017 with the presentation of the David G. Sills award to Dean Chemerinsky, who also will be speaking, of course, previewing SCOTUS's upcoming term with form Dean John Eastman.

Friday, September 8, 2017

Admission Day!

Image result for happy birthday california
Many eager aspiring-attorneys are awaiting bar results (yeah, the mere 2-day bar exam) and looking forward to celebrating their admission... But that won't happen until just before Thanksgiving, so the whole family can be together for the momentous occasion. But today, our Governor calls upon all Californians to pause and celebrate Admission Day by reflecting on how it was that California became the 31st state. His history lesson appears in his Proclamation Declaring Admission Day.

Thursday, September 7, 2017

2d DCA formatting guidelines

The Electronic Formatting Requirements and Guidelines of the Second District (effective Oct. 30) are worth a careful look. The formatting guidelines (which are not yet mandatory, but why wouldn't you follow them?) include the following:

Font Style -- Stop using Times New Roman and switch to a Century Schoolbook-type font for text. For headings, use a sans serif font (e.g., Helvetica or Arial).

Image result for no times new romanFont size -- Use 13-point size for text (including footnotes!) and 14-point for headings.

Spacing -- Stop using your word processors default "double spacing" which inserts too much space, and use 1.2 spacing.

Margins -- Use 1.5" margins on all sides

Alignment -- Use Left aligned text. Stop using fully justified text.

"A born appellate lawyer"

Image result for j.c.The DJ reports that Jean-Claude André -- a self-described "born appellate lawyer" -- has joined Sidley's "super-elite" Supreme Court and appellate practice (Sidley Austin hires former federal prosecutor). The firm's press release notes J.C. "spent over nine years in the appellate section at the U.S. Department of Justice — served as the Criminal Appeals Chief for California’s Central District, supervising more than 350 appeals each year" before the 9th Circuit."
Law360's article (Sidley Austin Picks Up Ex-DOJ Appeals Hotshot in LA) notes that J.C. argued over 75 appeals during his time at the DOJ and back in 2007 at age 31 he became one of the youngest lawyers to argue before SCOTUS. (The Recorder's story is In City of Stars, Sidley Snags Appellate 'Van Damme')

Also on the move... Ryan Bounds, a federal prosecutor in Oregon, has been nominated to the Ninth Circuit today. [9/11 update: Law360 reports Oregon Sens. Won't Support 9th Circ. Nominee]

And the NLJ offers 'PACER Should Be Free,' Tech Scholar Argues in New Paper: "The federal judiciary's fee-based access to its public online database, known as PACER, is not just anachronistic and counter to history but harms the structural integrity of the modern judiciary, a new research article claims. The article—"The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records"—contends the judiciary's fee structure makes public records "practically inaccessible" for many people and inhibits constitutionally protected activities. "PACER should be free," the article, posted on Aug. 29, concludes."

Wednesday, September 6, 2017

Parade of 2d DCA pro tems!

The following are currently sitting on assignment in the 2d DCA:

  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until November 30, 2017
  • Judge Monica Bachner of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until September 30, 2017
  • Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until November 30, 2017
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three beginning September 18, 2017 until November 30, 2017
  • Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four beginning November 1, 2017 until December 31, 2017
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until November 30, 2017
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five beginning September 1, 2017 until October 31, 2017
  • Judge Frank Menetrez of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until October 20, 2017
  • Judge Kerry  R. Bensinger of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning October 1, 2017 until November 30, 2017

Justice Cuellar to speak at USC's ICC on Dec. 6

The 2017 Institute for Corporate Counsel will be held on Wednesday, December 6, 2017, at The California Club in downtown Los Angeles. This day-long conference event focuses on the intersection of law, politics and business and is specially crafted for in house and outside counsel. Among other great panels,
  • Get insight on the challenges facing the California Supreme Court with Justice Mariano-Florentino Cuéllar.