Tuesday, January 23, 2018

Article catch up...

Yesterday's Recorder presents Justice Bedsworth's latest: Fight On -- Most of the time when a state Legislature hears a judge, it's because we've interpreted a statute in a way they don’t like or we’ve thrown it out entirely.

Bryan Garner's ABA column is Writing vs. Good Writing: Make the languorous doldrums of reading disappear.

The DJ's Appellate Zealots column is Pursuing frivolous anti-SLAPP appeals is a dangerous game and Moskovitz on Appeals has started a new series called Appellate Adventures, and in Chapter One: The Odds of Winning, our hero learns that the average reversal rate for an appeal is just under 20 percent.

The January 2018 Litigation Update is available.

Image result for open for businessThe Ninth Circuit made clear that the Court Will Remain Open During a Government Shutdown and see here and here.

Monday, January 22, 2018

2d District pro tem updates

The following are currently sitting pro tem in the 2d DCA:

  • Judge Helen Bendix of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until February 28, 2019
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until January 31, 2018
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2018
  • Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until February 28, 2018
  • Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until January 31, 2018
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2018
  • Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 28, 2018
  • Judge Kerry  R. Bensinger of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until February 16, 2018
  • Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning February 1, 2018 until March 31, 2018
  • Judge Henry J. Hall of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until February 28, 2018

Thursday, January 18, 2018

RIP Justice Feinerman (1926-2018)

Image result for justice robert feinermanYesterday's DJ contains an obituary for Justice Robert Feinerman: A kid who got an early start and never retired. He graduated law school at 22, and spent six years as PJ of 2/5. The article quotes PJs Epstein and Gilbert.

Justice Feinerman's oral history for the California Appellate Court Legacy Project is here.

Wednesday, January 17, 2018

A-P-J L-U-I !

As reported in Chief Justice Appoints [later edited to read "Designates" to match CRC 10.1004(a)(1)] Elwood G. Lui as Administrative Presiding Justice of Second Appellate District, the Chief has just appointed 2/2's PJ Lui as the 2d DCA's APJ--the first Asian-American APJ in California.

“Justice Lui has an extraordinary record of public service, and today he makes history as the first Asian-American administrative presiding justice in California. His dedication to the profession and wealth of experience, from his years on the bench to his achievements in private practice, make him ideal to head the operations of the Second District,” said Chief Justice Tani G. Cantil-Sakauye.

Lui previously served as an associate justice at the Second District Court of Appeal from 1981 to 1987, and judge at the Los Angeles County Superior Court (1980-1981) and the Los Angeles County Municipal Court (1975-1980). He was a sole practitioner in 1975, an attorney at Mori and Katayama (1971-1975) and a deputy attorney general at the California Department of Justice, Office of the Attorney General (1969-1971).

In other news, the DJ's On The Move column reports that California Appellate Law Group LLP has hired 2d DCA lead writ attorney (for nearly 40 years) Sharon Baumgold as counsel. Sharon is a past chair (1988-1990) of LACBA's Appellate Courts Committee.

DJ profiles Justice Smith

Today's DJ offers Amiable but Effective: 5th District Court of Appeal Justice M. Bruce Smith scores points with a wry sense of humor. (In the print version, the subheading is Justice M. Bruce Smith gets 'stuff' done without ticking people off.)
Now in his third year as an appellate justice, Smith earned his reputation over a four-phase career that included criminal prosecution and civil litigation as a well as 14 years as a superior court judge.
Smith enjoys reading, including novels by Ken Follett. He enjoys movies. His favorite is “MASH,” with “Pulp Fiction” a close second. 

Tuesday, January 16, 2018

RIP John Tunney

The Candidate PosterThe LA Times presents a very interesting obituary about a well-known SoCal attorney: John Tunney, California senator who worked for environmental protection and civil rights, dies at 83. "Tunney was widely presumed to be the model for the Robert Redford character in the 1972 film The Candidate." See also In re Kay (1970) 1 Cal.3d 930 (h/t Kent Bullard).

Also, welcome U.S. 3d Circuit Court of Appeals to NextGen cm/ecf today! The next Circuit to implement NextGen will be the Federal Circuit, on March 19.

The DJ reports Federal Courts Announce Harassment Review Panel, Sans Current or Former Clerks: "Among the eight people who will serve on the working group are the director of the Administrative Office of the U.S. Courts, James C. Duff, who will chair the group, four federal judges and three other court administrators. Judge M. Margaret McKeown, who chairs the 9th U.S. Circuit Court of Appeals’ workplace environment committee, is among the judges on the panel."


Nino and Me by Bryan Garner
The Recorder has New Book on Scalia Bares Turbulent—and Good—Times With the Justice

Friday, January 12, 2018

WSJ Op-Ed: Split the 9th Cir.

Today's Wall Street Journal has an opinion piece by the Arizona Attorney General and the Cato Institute's Ilya Shapiro: Split Up the Ninth Circuit—but Not Because It’s Liberal:The court has too many judges, leading to backlogs and inconsistency in applying the law. Here are a few quotes:
  • The court covers territory running from Arizona to Alaska and Montana to Hawaii. That’s 40% of the nation’s land mass and 20% of its population. As a result, it decides an extraordinary number of appeals—more than 11,000 a year, half again as many as the second-busiest circuit and nearly triple the average.
  • The Ninth Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national median. 
  • A common idea for splitting the court is to hive off California, Hawaii and the Pacific islands (and possibly Oregon) into a new circuit. Skeptics complain the resulting court would be unbalanced given California’s size. But in many circuits one state dwarfs the others: New York generates nearly 90% of cases in the Second Circuit, Texas 60% in the Fifth, Illinois 64% in the Seventh, and Florida 62% in the 11th (which was split from Fifth in 1981). 
In other 9th Cir. news see: Ninth Circuit Committee to Review Workplace Environment Policies.

Also of note, this great line in this unpub here: "Occasionally we encounter an appeal presenting procedural challenges that threaten to swallow the merits whole. This is one of those."

Thursday, January 11, 2018

"[Appellate] Lawyers are dorks."

Image result for ferris bueller carSo says the Chicago Tribune, in Chief Justice of U.S. Supreme Court cites 'Ferris Bueller's Day Off' during oral argument.

In The Recorder, in this month's On Appeals Column, Sarah Hofdstadter makes The Case for Interim Appeal by Certification in All California Civil Cases. The article discusses Kurwa v. Kislinger, points out that since 1988 the Family Code has allowed trial courts to certify issues for immediate appeal, and concludes "there is a strong argument to be made that California ... should broaden the availability of interim appeal by certification to encompass all civil cases." Also in The Recorder and garnering a lot of appellate attention is this here.

Tuesday, January 9, 2018

Nautical Word of the Day!

Image result for allisionThis unpub'd decision here begins like this: "This appeal of a civil discovery sanctions award arises from litigation following an allision between two charter vessels on October 5, 2013."

"Allision"? Was that typo meant to be "collision"? No! A collision is something entirely different, you landlubber! According to Nautical Word of the Day (for Nov. 8, 2007) an allision is "the running of one ship upon another ship that is stationary -- distinguished from collision." Great. New word learned!


Further, there's a sanctions issue in the case and a reminder about what may and may not be attached as exhibits to a brief. Hint: an exhibit that "does not appear as filed in the superior court's docket" is not authorized under Rule 8.204(d), and the court "may simply ignore portions of the brief that reference materials outside of the record."

Not interested in lame attempts to attach material dehors the record to a brief? If you think allisions are a lot more fun, then see 6 Cal.App.4th 1659, 102 Cal.App.2d 789, and 218 Cal.App.4th 577 for more allisionary mayhem on the waves!

1st DCA pro tem update & More

First District, Division Two

Judge Alison Tucher, of the Superior Court of California, County of  Alameda, will be sitting Pro Tem in Division Two through March 30, 2018.


Also, fyi, the Supremes are seeking a Court of Appeal Justice to serve on the CJP:
The Supreme Court is requesting nominations for appointment of a Court of Appeal justice to the Commission on Judicial Performance for a four-year term commencing April 1, 2018. Pursuant to California Constitution, article VI, section 8, the Supreme Court of California appoints the three judicial members of the Commission on Judicial Performance for four-year terms. Members can be reappointed but cannot serve more than ten years.
The 2d District has changed the hours for its Clinic:
  • Wednesday, January 24, 1:00 – 4:30 p.m.
  • Wednesday, January 31, Closed.
  • Thursday, February 1, 9:00 a.m. – 12:00 noon and 1:30 – 4:30 p.m.
  • Wednesday, February 7, Regular hours.

Monday, January 8, 2018

2d DCA pro tem update

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 February 28, 2019
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until January 31, 2018
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2018
  • Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until February 28, 2018
  • Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until January 31, 2018
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2018
  • Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 28, 2018
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until January 19, 2018
  • Judge Kerry  R. Bensinger of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until February 16, 2018
  • Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning February 1, 2018 until March 31, 2018
  • Judge Douglas W. Sortino of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until January 12, 2018
  • Judge Henry J. Hall of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight beginning January 1, 2018 until February 28, 2018

CJA Confirmation Hearings

Two thirty-minute public hearings have been scheduled by the Commission on Judicial Appointments for Thursday, January 25, 2018, beginning at 2 p.m. in the Supreme Court Courtroom, 350 McAllister Street, San Francisco, California, to consider the following appointments by Governor Edmund G. Brown, Jr.:

2-2:30           

Judge Mary J. Greenwood, as Associate Justice of the Court of Appeal, Sixth Appellate District (San Jose)

Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Xavier Becerra, and Presiding Justice Franklin D. Elia
Mary J. Greenwood

2:45-3:15   

Judge Thomas M. Goethals, as Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three (Santa Ana)

Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Xavier Becerra, and Presiding Justice Manuel A. Ramirez
Thomas M. Goethals
The hearings will be webcast live here.

The 9th Cir., the 1978 Judgeship Act, & the Carter Judges

If you haven't signed-up already, please do so asap, for: A Court Transformed: The Ninth Circuit, the 1978 Judgeship Act, and the Carter JudgesPasadena, Saturday, Feb. 17:

  • The Omnibus Judgeship Act of 1978 was a transformative event for the Ninth Circuit Court of Appeals. The Act created ten new judgeships for the court, all of which were filled by President Carter, who also appointed five judges to fill other vacancies. Additionally, the Act authorized the Ninth Circuit to create its unique “limited en banc court” of fewer than all active judges. The California Academy of Appellate Lawyers, the Appellate Courts Section of the Los Angeles County Bar Association, the Department of Political Science of Loyola Marymount University, and the Ninth Judicial Circuit Historical Society are pleased to announce a conference to mark the 40th anniversary of the Act and the resulting transformation of the Ninth Circuit.
  • The conference will explore the institutional and procedural changes that followed the Act, particularly the infusion of so many judges into a court of appeals in a short period. It will be an opportunity for those involved – and those affected – to share recollections of the era and to provide contemporary perspectives on what the changes were, how they came about, and what they have meant for the Ninth Circuit, both in the immediate aftermath and in the longer term.
  • The central figures in the conference will be a number of the Carter judges, joined by judges who were there before the expansion of the court or who joined the court later. Confirmed speakers include eight Ninth Circuit judges: Hon. J. Clifford Wallace, Hon. Mary M. Schroeder, Hon. Dorothy W. Nelson, Hon. William C. Canby, Jr., Hon. Stephen Reinhardt, Hon. A. Wallace Tashima, Hon. Kim McLane Wardlaw, and Hon. Milan D. Smith, Jr. The principal moderator will be Professor Arthur D. Hellman of the University of Pittsburgh School of Law.

A Court Transformed
The one-day conference will consist of two morning sessions, a luncheon at which those attending can meet the participating judges, and two afternoon sessions.
DATE: Saturday, February 17, 2018
TIME: 9:00 AM - 4:30 PM
VENUE: Richard Chambers Courthouse, 125 So. Grand Ave., Pasadena
No-fee parking is available across the street.
CLE CREDIT: 6 hours of California MCLE Credit and 6 hours of credit for California Legal Specialization in Appellate Law.
There is no fee for the conference, but we request that those planning to attend RSVP by February 9 to Hellman@Frontier.net. Please indicate whether you will be attending for CLE credit.

DJ articles & More

Today's DJ features several articles of appellate note:
  • In Judicial Laterals, Emory Prof. Jonathan Nash explores when judges will move from one judicial to another. He concludes that most judicial laterals move from state courts to the federal system. But he also notes that those who move from the federal judiciary to state courts do so as a function of "judicial professionalism and relative salaries." In particular, he notes that of seven such lateral moves since 1980, five were moves to the California state judiciary, noting that California is "near the very top of the professionalism score measure." Names that come immediate to mind about this are Justices Moreno, Manella and Collins... Prof. Nash's article is Judicial Laterals (2017) 70 Vanderbilt Law Rev. 1911.
  • PJ Gilbert's first column of the year is Scary New Year: The presents I receive these days scare the hell out of me: "Alexa: How is the court to rule?"
  • Moskovitz on appeals presents Strategic Reading, discussing approaches to appellate reading. For example, when reading a record, he puts himself into the shoes of an appellate judge and looks for "anything that would make we want to reverse." He's looking for facts and argument to help present a theme of injustice. He then carefully reads the relevant law: statutes, cases, and treatises, looking for support for his theme of injustice. Next, in reading the record, he looks for items to support his theme as well as for those that might undercut his message. And in reading the other side's brief, he again looks at it from the perspective of an appellate judge.
  • Also, last week's DJ started a new column, Exceptionally Appealing, that will run the first Tuesday of each month covering exceptions to general rules of appellate practice and procedure. The first installment was When 60 days is too late! discussing instances when the time to appeal is not the "usual 60 days."
Also of interest today from the Volokh Conspiracy, Exciting Developments in Supreme Court Appellate Jurisdiction.

Washington Post posts this op-ed Pressuring Harassers to Quit Can End Up Protecting Them.

Today's Wall Street Journal has Why Do Federal Judges Need Clerks, Anyway? in which Prof. Blann Harlan Reynolds (University of Tennessee) proposes "eliminating law clerks for the lower federal courts." He writes:
Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court's members "are almost the only people in Washington who do their own work."
That's not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones.
And Law360 offers How Firms Are Grooming The Next Appellate Stars: "Client demands and market forces have created a shortage of oral arguments opportunities for developing new appellate lawyers. In a series of interviews with Law360, firms explain how they are dealing with the problem."

Supreme
Did you forget to get an Appellate Dork a present over the holidays? SCAN suggests this Supreme Court Mug from The Unemployed Philosophers Guild! (And see the Guild's instructional video on mug utilization here.)

The Sacramento County Bar Associations' Appellate Law Section hosts its Annual wine & cheese reception on Thursday, Feb. 1 (at the 3d Dist. Courthouse) 5 to 7 p.m. Rsvp here.

Friday, January 5, 2018

Under Submission II


Today's DJ has an article about the latest compilation of PJ Gilbert's DJ column: Book reflects Justice Gilbert's expanded horizons, and ours: Thirty years ago, Justice Arthur Gilbert began writing a regular column in the Daily Journal. Last month, he published a second volume collecting those writings.

The first book was Under Submission: The First Twenty Years, and the newest book is Under Submission Volume II: The Columns of Arthur Gilbert 2008-2017.
All proceeds from the books are donated to Public Counsel.

Thursday, January 4, 2018

The Year that Was

Last Friday's DJ featured a multi-page spread titled Judicial Transitions in California throughout 2017 / 2017 ends with governor's holiday judicial appointments.
Culling out items of appellate interest in chronological order, gives something like the list below (nearly all of which were featured contemporaneously on this blog). Note that there were a lot more deaths and retirements than appointments. But appointments should make a roaring comeback in 2018.

2017 Judicial Transitions
Roger Boren retires
Bill Norris dies
Robert Timlin dies
Dan Currey dies
Betty Deal dies
Jerome Smith dies
Richard Schauer dies
Paul Turner dies
Richard Aldrich retires
Stephen Kane retires
John Holmdahl dies
Thomas Hollenhorst retires
Kathryn Werdeger retires
Kenneth Andreen dies
John Racanelli dies
Charles Froehlich dies
Anne Egerton appointed
Patricia Guerrero appointed
Harry Pregerson dies
Thomas Goethals appointed
Mary Greenwood appointed
Conrad Rushing retires
Alex Kozinski retires

Wednesday, January 3, 2018

Verdict magazine articles

The latest issue of Verdict, the magazine for the Association of Southern California Defense Counsel, has several articles of appellate note, including A Defense Attorney's Guide to Appeal Bonds (by Dan Huckabay) and a profile of Judge Thomas Goethals, recently appointed to 4/3.

Memorial service for Judge O'Connell

Image result for beverly reid o'connell coma











The DJ reports that the "legal community is invited to pay respects to U.S. District Judge Beverly Reid O'Connell, who died in October." Her family is holding a memorial service on Saturday at First United Methodist Church in Pasadena at 10:30 a.m. RSVPs are requested: email MemorialServiceRSVP@gmail.com.
(Speakers included Justice Fybel, Edmon, and Bigelow.)

Tuesday, January 2, 2018

Notice of Ruling v. Notice of Entry

Image result for didn't get the memoIt's been over ten years since Alan v. American Honda (2007) 40 Cal.4th 894, but many lawyers still haven't gotten the message that a "notice of ruling" does not equate with a "notice of entry" under rule 8.104 (to trigger the time to appeal). Examples abound, with two in a row last week, here (pp. 5-6) and here (p. 3, fn.1).

Also of note from last week, this 9th Cir. opinion here about anti-SLAPP appealability.

And see The Great Reshaping: How Trump is Changing the Game on Judicial Nominations: With 148 judicial vacancies as of Jan. 2 and an increasingly aging federal bench, President Donald Trump could remake the federal judiciary on a scale that hasn’t been possible in decades.