Monday, March 30, 2015

Of Dog worship & typos...

Bed's latest column is out. He's gone from last month's "people don't read" to "people don't proofread." Bedsworth: In Floridian Police Dog Rugs We Trust
Image result for in dog we trust rug

"[T]he cool kids are not the ones who can quote the California Style Manual. Proofreading is not a choice, it's an affliction."

  • Also of interest over at Law360: BigLaw on Notice after Judge Scolds Firms for Bad Writing.
  • And for the official announcement of Justice Woods' retirement, click here.
  • Today's DJ has How to Preserve Instructional Errors, by Scott Chesin and Alex Kardon of Mayer Brown.
  • And don't forget that California courts are closed tomorrow for Cesar Chavez Day.
  • Image result for cesar chavez day
  • BNA reports: Supreme Court Electronic Filing System on Track for 2016 Rollout, Justices Say.
  • "The U.S. Supreme Court is on track to have an electronic filing system in place by 2016 that will facilitate access to documents related to key cases, Associate Justice Anthony M. Kennedy told a House Appropriations subcommittee.
    Once developed, the comprehensive system will allow access to a full range of documents from all levels of the federal judiciary on individual cases, Kennedy told the Financial Services Subcommittee March 23." .... “We handle about 100 cases a year,” Kennedy said. “When I came in, there were 160 to 180 a year.”

Friday, March 27, 2015

Appellate specialization helps lead to the bench?

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of George F. Bird, Frank J. Menetrez, Michael C. Small and Kevin P. Stennis to judgeships in the Los Angeles County Superior Court. 

Menetrez, 49, of Claremont, has served as an appellate judicial attorney at the California Court of Appeal, Second District since 2005. He was an associate at Horvitz and Levy from 2004 to 2005 and at Sidley Austin from 2001 to 2004. Menetrez served as a law clerk for the Honorable A. Wallace Tashima at the U.S. Court of Appeals, Ninth Circuit from 2000 to 2001. He earned Doctor of Philosophy and Master of Arts degrees in philosophy from the University of California, Los Angeles, a Juris Doctor degree from the University of California, Los Angeles School of Law and a Bachelor of Arts degree from Johns Hopkins University. Menetrez fills the vacancy created by the retirement of Judge John V. Meigs. Menetrez is a Democrat.

Governor Brown Appoints Three to San Francisco County Superior Court

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Ross C. Moody, Joseph M. Quinn and Sharon M. Reardon to judgeships in the San Francisco County Superior Court.

Moody, 50, of San Francisco, has served as a deputy attorney general in the Civil Division, Government Law Section at the California Department of Justice, Office of the Attorney General since 2007, where he served as a deputy attorney general in the Criminal Division, Appeals, Writs and Trials Section from 1994 to 2007. He was a litigation associate at Pillsbury, Madison and Sutro from 1989 to 1994. Moody earned a Juris Doctor degree from the University of California, Davis School of Law and a Bachelor of Science degree from the University of California, Los Angeles. He is a certified appellate law specialist. He fills the vacancy created by the retirement of Judge Julie Tang. Moody is a Democrat

Quinn, 46, of San Francisco, has been a partner at Hanson Bridgett LLP since 2010. He has been an adjunct professor at Golden Gate University School of Law since 2010 and was an adjunct professor at St. Mary’s College of California from 2004 to 2008. Quinn was principal and chair of the appellate practice group [AND ALSO A CERTIFIED APPELLATE SPECIALIST] at Meyers Nave LLC from 2003 to 2010 and an associate at Howard, Rice, Nemerovski, Canady, Falk and Rabkin PC from 2001 to 2003. He served as a principal trial attorney at the San Francisco City Attorney’s Office from 1997 to 2001 and as a law clerk for the Honorable Eugene F. Lynch at the U.S. District Court, Northern District of California from 1996 to 1997. He was an associate at Jackson, Tufts, Cole and Black LLP in 1996, served as a law clerk at the U.S. District Court, Northern District of California from 1995 to 1996 and was a trial attorney at the Federal Defenders of San Diego from 1994 to 1995. Quinn earned a Juris Doctor degree from the University of California, Berkeley School of Law and a Bachelor of Arts degree from the University of California, Los Angeles. He fills the vacancy created by the retirement of Judge John E. Munter. Quinn is a Democrat.

Reardon, 44, of San Francisco, has served as an assistant district attorney at the San Francisco District Attorney’s Office since 1998. She was an associate at the Law Office of James P. Collins from 1997 to 1998. Reardon earned a Juris Doctor degree from San Francisco Law School and a Bachelor of Arts degree from Santa Clara University. She fills the vacancy created by the elevation of Judge Marla J. Miller to the Court of Appeal. Reardon is a Democrat.

The compensation for each of these positions is $184, 610.

See page 6 of today's DJ for Veterans Legal Institute Honors Appellate Justice Eileen Moore. Justice Moore, a Vietnam War veteran, was honored March 12 by the Veterans Legal Institute.

And see: A Tip From The Justices on Writing: Keep it Simple

Thursday, March 26, 2015

9th Circuit sits in San Diego on Monday

The United States Court of Appeals for the Ninth Circuit will hold a special sitting March 30, 2015, at the Edward J. Schwartz U.S. Courthouse in San Diego, California. Oral arguments will begin at 10 a.m. in the Ceremonial Courtroom (Room 4D), located at 221 West Broadway. A photo ID will be required to enter the courthouse. The appellate panel will consist of Senior Circuit Judges J. Clifford Wallace of San Diego and Mary M. Schroeder of Phoenix, and District Judge Roger T. Benitez, also of San Diego, who will sit by designation. The panel will hear an appeal of a decision by the U.S. District Court for the District of Arizona.

Image result for san diego

For today's example of a frivolous SLAPP appeal drawing sanctions from 4/3, click here.

And if you're into appellate stays and bonds (i.e., you're reading this blog), be sure to check out this writ here in a dispute over an interpleaded $8M and CCP 917.2:
Petitioner contends that a judgment adjudicating a party’s right to interpleaded funds, such as the judgment at issue here, is not stayed by the perfecting of an appeal unless an undertaking in a sum fixed by the trial court is given. We agree and, accordingly, grant the petition for writ of mandate. 

Wednesday, March 25, 2015

A dirty dozen words & phrases to eschew

To tighten your prose, "Legal Writing Pro" Ross Guberman provides the follow phrases to avoid here and here, or just see his chart below:

Just Say NoTry
with respect to, with regard to, regarding, concerning, in regard toon, about, for, as for, as to
moreover, additionally, furthermore, furtheralso, and
even assuming arguendo, assuming arguendo, arguendo, even assumingeven if
is not required toneed not
demonstrates, exemplifiesshows, proves
pursuant tounder

subsequent to, followingafter
in the present case, in the instant case, in the case at bar, in this casehere
therefore, consequently, accordinglyso, thus, then
in order toto
prior tobefore
despite the fact that, notwithstanding the fact thatalthough, even though

Image result for nancy reagan just say no

Appellate tidbits

Today's DJ features GMSR's Alana Rotter in Lessons From Appeals of Nonappealable 'Judgments' about Baker v. Castaldi. The case involved a bifurcated trial (liability & damages in phase one, amount of punitives in phase two). After the first phase, however, the trial court filed a document titled "judgment" and noted that the amount of punitive damages would "be assessed at a separate trial and set forth in an Amended Judgment." Hmm...
Image result for better safe than sorryBaker illustrates that it is critical for a losing party to identify when the court has entered a truly final judgment, and to file a timely notice of appeal from it. When in doubt as to whether a judgment is final, there is no harm in filing a cautionary notice of appeal. But stay alert: If the court subsequently resolves additional issues and enters a new judgment disposing of the entire case, file a new notice of appeal from that judgment as well. It will probably be the one that counts. 

Over at Law360, in Practitioner's Playbook: The Summary Judgment Motion, H&L's Jeremy Rosen is quoted:
“Even if summary judgment is granted, if it hasn’t been strategically argued in the narrowest possible way, that opens it up to a lot of attacks on appeal,” he said. “Oftentimes, not enough thought has gone into the original motion. If the motion is based on the narrowest legal principle and the fewest number of facts, there is less ability for the losing party to show reversal on appeal.”
And the MetNews finally reports: Justice Fred Woods to Retire From C.A. at End of Month.  [Update 3/26: The DJ today offers Justice to Retire After More than 30 Years on the Bench"He is one the nicest people I've ever worked with," said Justice Dennis M. Perluss, Woods' colleague of 13 years. "I have never heard him utter an angry word. Given that we are engaged in a fairly high stress profession, I think that's noteworthy."]

Tuesday, March 24, 2015

The fat lady keeps singing + enlarging 4/2

Another entry in the 2015 first-line contest today, this time from PJ Gilbert, in McReady v. Whorf.
Sometimes it's not over when it's over. A bankruptcy extinguished defendant debtor's liability on a judgment in favor of plaintiff. But here it did not extinguish plaintiff's lien on the bankrupt's business from which plaintiff was entitled to the assets and profits of the business.
And an irresistible chance to geek-out and use this graphic:

(Don't get it? Non-linguistic majors click here; non-Trekkers click here.)

Too dorky? Want actual appellate news? Ok, then click here to read a bill proposing another Justice seat for 4/2.
(Hat tip to SCANNer Kent Qian.)

Also, the Appellate Section of BASF's Barristers Club presents live and webcast "Grab Another Bite: Obtaining En Banc and Supreme Court Review" on April 21 (6-7 p.m.), featuring Judge Bea. Info here. (Great idea to webcast it!)

Also of note, this decision here, where both parties "improperly appeal," but the court (2/3) treats both appeals as writs. In contrast, see here.

And -- Can you get to SCOTUS from the Court of Appeal? Yes, it's possible! Click here for an article about a case from the 2d District that's going up.

Monday, March 23, 2015

A strong opening and closing

Here's published case today with a great opening and closing:
"There are no free houses." These are the words of the bankruptcy judge who allowed the instant home foreclosure to go forward. It rejected appellant's theory of "wrongful foreclosure." Thereafter, the same theory was rejected in an unlawful detainer proceeding. Undeterred, appellant F. Wood Boyce sued his lender for "wrongful foreclosure" because the $1.155 million deed of trust was placed in a mortgage investment pool before the foreclosure. Appellant also sued the transferees/assignees to the promissory note and deed of trust, the foreclosure trustee and company that processed the foreclosure documents, and the person who purchased the property.
The trial court ruled that the action was subject to a res judicata/collateral estoppel bar and sustained, without leave to amend, demurrers to the First Amended Complaint. We affirm. The doctrine of res judicata, of which collateral estoppel is a part, encompasses both claim preclusion and issue preclusion. (Mycogen Corp. v Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. 7.) "The best way of remembering these doctrines clearly is to view collateral estoppel as a miniature of res judicata; the former applies to issues, the later to entire claims or lawsuits." (Garner, A Dictionary of Modern Legal Usage (1995 2d ed.) p. 169.) 
[8 pages of opinion follow, and then,]
Appellant lost in the bankruptcy court. He lost in United States District Court. He lost in the unlawful detainer court. He lost in the Appellate Department of the Superior Court. He lost in Superior Court. He now loses here. As the late eminent federal appellate jurist Rugierro Aldisert would say, "Basta," which translates from Italian to English as, Enough! (United States v Desmond (1982) 670 Fed. 2nd 414, 420)
Image result for bastaHow great to start off w/a nice hook, then cite Bryan Garner, and then finish strong with Judge Aldisert. (The format for the final citation seems off, however; it's neither Bluebook nor Yellowbook, is missing italics and at least a few periods, and is actually to a dissenting opinion. But what a great cite!)

Also, perhaps in the Basta, category, note that the State Bar's Committee of Bar Examiners voted Friday to shorten the bar exam to just two days. This will save the Bar approximately $895,000. And it will give us all even more to gripe about to younger lawyers: "In MY day, I had to take the bar exam over three days! ... In the snow... Uphill..."

Also, this case here (from Friday) has an outstanding opening and closing:
“Nature, not judges, should be in charge of making mountains out of mole hills.” (Crum v. City of Stockton (1979) 96 Cal.App.3d 519, 524 (conc. & dis. opn. of Reynoso, J.).)
This writ petition came to this court on a request by petitioner Hyundai Motor America (Hyundai) to stay a scheduled judgment debtor examination of its president and chief executive officer over a dispute regarding an attempt by real party Adam Rosen (Rosen) to collect supposed postjudgment interest of $462.50 on an attorney fee award of $42,203.
[Insert opinion here... and then:]
Assuredly, such a tactic was designed to get Hyundai’s attention. But it had the unintended effect of attracting our attention as well, giving rise to the extraordinary remedy of a peremptory writ in the first instance. We doubt this is a wise use of anyone’s resources.

2d DCA pro tem update & More

The following are currently sitting on assignment:
  • Judge Helen Bendix of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until April 30, 2015
  • Judge Anne Harwood Egerton of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until April 30, 2015
  • Judge Allan J. Goodman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2015
  • Judge Gail Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until April 10, 2015
  • Judge Bruce G. Iwasaki of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until April 30, 2015
  • Judge Mary H. Strobel of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning April 1, 2015, until May 31, 2015
And for those keeping score at home, there are vacancies in Divisions 1, 3, 5, 6, and 7 (two vacancies in 7, actually, given Justice Woods' departure about a week from now).

Every appellate lawyer in America has probably already seen this, but if not, click here [and here for the actual opinion] to read about a blown notice of appeal deadline on a $40 million patent judgment.... Understatement of the year: "[F]ailing to closely monitor court dockets can lead to devastating mistakes, attorneys say."

Also of great interest:
We invite you to explore the California Supreme Court Historical Society's newly renovated website at  In addition to the website's new look, we have added new features including slide shows of historic courthouses, Supreme Court Justice photos and selected biographies, and links to the Society's current and past publications.  We feature excerpts from the 2014 edition of California Legal History, which includes the winning entries of the Selma Moidel Smith Law Student Writing Competition.  Please take an opportunity to look at our new site, and at the same time renew your membership or invite others to join.  Also make sure to join our email list so you can be one of the first to preview our upcoming book, the History of the California Supreme Court.
Join History of the California Supreme Court Book Email ListSincerely,Jennifer L. King CSCHS President

Wednesday, March 18, 2015

Fresno gets fancy with e-filing (& new filing window hours)

Some pdfs are better than others! The 5th District will soon be requiring a special form of numbering for briefs and it's requiring e-bookmarks embedded in pdfs. Check out local rule 8 here.
Image result for fancy pantsBeginning March 23, 2015, attorneys and self-represented litigants may voluntarily submit documents for electronic filing with the Court of Appeal, Fifth Appellate District in criminal and juvenile matters so long as those documents comply with the court's amended Local Rule 8, effective May 11, 2015. 
Of particular importance, documents must comply with part (b) of the amended Local Rule: Specifically, document pages must be consecutively numbered beginning from the cover page of the document and using only the Arabic numbering system, as in 1, 2, 3; and the table of contents for each brief shall include electronic bookmarks to each heading in the text. Please refer to the amended rule in its entirety for specific formatting required for original proceedings.

And, perhaps in conjunction w/e-filing, note:
Notice of Change to Hours at the Court of Appeal, Fifth Appellate District FRESNO — The Court of Appeal, Fifth Appellate District, is announcing a change to its public filing window hours. Currently, the public filing window is open from 8:30 a.m. to 5:00 p.m., Monday through Friday. Effective Monday, May 1, 2015, the public filing window hours will be 8:00 a.m. to 4:30 p.m., Monday through Friday.