Monday, February 8, 2016

2d DCA pro tem update

The following are currently sitting on assignment:
  • Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until February 29, 2016.
  • Judge Amy D. Hogue of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three beginning February 18 until March 30, 2016.
  • Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 29, 2016.
  • Judge Stan Blumenfeld from the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2016. 
Also, today's DJ features Justice Hoffstadt's article titled Electronic Evidence Laws Raise Questions.

Friday, February 5, 2016

Cal Supreme Court Statistical Review

Kirk Jenkins at Sedgwick presents The California Supreme Court In 2015: A Year In Transition at Law360.
2015 was a year of transition for the California Supreme Court as two new justices appointed by Gov. Jerry Brown, Justices Mariano-Florentino Cuellar and Leondra R. Kruger, took office in early January. Because the new justices replaced Republican appointees, there has been widespread speculation that the court’s decisions might move in a more liberal direction. One year into the new justices’ tenure, the statistical evidence for any marked shift at the court is decidedly mixed.
The SoCal connection:
Not surprisingly, Los Angeles dominates the court’s civil docket, producing 34.48 percent of the caseload. Orange County was next, with 15.63 percent of the civil docket, followed by Alameda and San Diego counties, which accounted for 9.38 percent each. San Francisco and the Workers’ Compensation Board accounted for 6.25 percent of the court’s civil docket apiece. 
Other interesting stats & figures:

  • The court’s civil docket was dominated by government and administrative law cases — 43.75 percent of the total caseload. Sixty-four percent of those cases were won by the plaintiffs below, and the court reversed in two-thirds. 
  • Overall, the court reversed in 71.88 percent of its civil cases. This is a significant increase over its recent trend; the three-year weighted average reversal rate in civil cases is 61.25 percent. Indeed, the court’s reversal rate in civil cases has been remarkably stable for quite some time. With the exception of the two-year blip in 2012 and 2013, the three-year weighted average reversal rate has been between 57 and 66 percent for the past 16 years.
  • Lag times between the Supreme Court granting review and a final decision have become a subject of increasing discussion in recent years in the California appellate bar. ... Non-unanimous civil decisions in 2015 were pending an average of 700.75 days, and cases decided unanimously were pending only slightly less — an average of 699.54 days.

Thursday, February 4, 2016

The Real Groundhog Day

Speaking of Groundhog Day, the Court's online dockets have been stuck on February 2 until this afternoon! So check your dockets now....

Tuesday, February 2, 2016

Koh-ing up?

How Appealing reports that the San Jose Mercury News reports that Judge Lucy Koh is expected to be nominated to the 9th Circuit in this article here.
Image result for going up elevator
"I think the likelihood of an Obama nominee to the 9th Circuit getting through the Senate in this election year is close to zero," said Arthur Hellman, a University of Pittsburgh law professor and 9th Circuit expert, who nevertheless called Koh a "shrewd choice" because of her strong reputation.
(If Judge Koh is elevated, she will be able to address Rule 8.548 requests to her husband's court!)

See also in the NLJ: Playing the Circuit Court Numbers Game: Dwindling chances the Obama administration's picks for federal appeals slots will win Senate approval.

Today's DJ reports in State Appellate Justice to Retire, that after 20 years on the bench, Justice Jeffrey King will join JAMS.

The MetNews reports that DAG Kim Nguyen--who previously worked as a staff attorney in the 2d DCA--has announced a run for an LASC seat. See Deputy D.A, Deputy A.G. File for Superior Court Seat.
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Happy Groundhog Day!
And of note in the NLJ Roy Englert Jr.'s opinion of SCOTUS: Give 'Em a Break. Our Justices are doing the Best They Can

Monday, February 1, 2016

Justice Gilbert's potty mouth, etc.

The DJ reports that "Both of California's senators have come out against a proposal by Arizona politicians to break apart the 9th U.S. Circuit Court of Appeals by moving Arizona, Nevada, Idaho, Montana and Alaska into a new circuit court." See New Plan to Split 9th Circuit Stirs Opposition.
See in the Recorder Arizona Revives Long-Failed Push to Split the Ninth Circuit

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And today's DJ also features Justice Gilbert's column, Do I Dare to Eat a Peach? in which numerous judges, justices, and practitioners respond to his question law month about printing profanity: The outcome? Overwhelmingly in favor of printing curse words accurately.

Finally, today's DJ reports Law Professor Wins in High Court, about Whittier Law School prof Radha Pathak, who won a 8 to 1 victory in a pro bono ERISA case.

Also of note re SCOTUS: Future Unclear for 'Oyez,' Source for Supreme Court Audio History

The NLJ presents Lessons from Lincoln in the Art of Persuasion by Connecticut appellate judge Douglas Lavine.

Law360 reports Disbarred IP Atty Sanctioned For 'Incomprehensible' Appeal about this unpub'd case here, which notes:
“Any reasonable person reading the invective-filled briefs filed by appellant, including the provocative and hyperbolic prose he uses, would conclude that the purpose of this appeal is simply to harass respondents, causing them as much discomfiture as possible by the unrelenting prosecution of plainly meritless litigation against them,”
(Sanctions were $6K payable to the court.)
See also, this case here, where sanctions of $9K were awarded.

The California Bar eJournal has Alliances Shift on Newly Reshaped CA Supreme Court (also titled Shifting alliances tally up to more unpredictable CA Supreme Court)

Another retirement announced in the 4th: Justice King retires

Justice King to Retire from Fourth District Court of Appeal

January 29, 2016
Justice King to Retire from Fourth District Court of Appeal
Retirement effective January after 20 years in the judiciary
Justice King
Justice Jeffrey King, Fourth Appellate District

Riverside—Associate Justice Jeffrey King, of the Court of Appeal, Fourth Appellate District, Division Two, today announced his retirement from the bench effective January 31, 2016, after 20 years on the bench.
Justice King was appointed by Governor Pete Wilson to the California Superior Court, County of San Bernardino in 1995, and was elevated to the Court of Appeal, Fourth Appellate District by Governor Gray Davis in 2003. Prior to his appointment to the bench he was a partner and associate in private law practice for 18 years, and served in various local government roles in Rancho Cucamonga.
“In his years on this court, Jeff demonstrated keen analytical ability, good judgment, a wry sense of humor, and a passion for justice,” commented Presiding Justice Manuel A. Ramirez, “Jeff was a knowledgeable, articulate, hardworking and dedicated colleague, who was always here from early to late in the day. The court will especially miss Jeff’s mediation skills—he was a mainstay of our appellate court settlement program.”
On the appellate bench, Justice King authored numerous opinions and dissents; his published opinions largely deal with the areas of tort, real property, and employment law. On the trial court bench his primary assignments were complex and fast tract civil calendars. As a trial lawyer he handled personal injury matters representing both plaintiffs and governmental entities.
His colleague on the Division Two panel, Associate Justice Douglas Miller, stated, “It has been my honor and privilege to work with Justice King; he is passionate about the law. It is a sad day for the court, because we are losing a brilliant and dedicated justice. It is a great day for the private mediation and arbitration community, because they are gaining a talented, intelligent and distinguished jurist.”
In 1994, he became a member of the American Board of Trial Advocates. Recently, Justice King was honored as the 2015 Kauffman-Campbell Jurist of the Year, and the 2014 Roger J. Traynor Memorial Award for Appellate Justice of the Year. He has also been honored as Western San Bernardino County Judge of the year, and the Inland Empire American Board of Trial Advocates Judge of the Year.
Justice King’s spouse, Judge Pamela King, currently serves as a San Bernardino County Superior Court Judge, and he has three sons, all of whom are lawyers. Justice King plans to rejoin the private sector, arbitrating and mediating disputes.

Wednesday, January 27, 2016

New 9th Cir. Standing Order

Notice of the Court’s Adoption of the Following Standing Order
Effective Date: February 1, 2016

(1) Change in Process for Submitting Sealed Materials in Excerpts of Record
Effective February 1, 2016, excerpts of record containing sealed materials shall be submitted in a separate volume restricted to only those sealed documents. Rather than moving to file the entire excerpts of record under seal, a party shall submit any document(s) it wishes to seal as a separate, final volume clearly titled “UNDER SEAL.” This separate volume shall be accompanied by either (1) a notice of filing under seal under Circuit Rule 27-13(b) that references the reason for the seal, e.g. a rule, statute or district court order or (2) a motion under Circuit Rule 27-13(c). Only the separate volume of sealed materials shall be submitted in paper pursuant to Circuit Rules 25-5(b)(1) and 27-13(a). All other volumes of the excerpts must be submitted electronically.
This separate volume is exempt from the reverse chronological order requirement and may include documents that would otherwise be included in the first volume of multi-volume excerpts. The pagination and volume number, however, must follow consecutively from the preceding non-sealed volume(s). Sealed excerpts that exceed 300 pages shall be filed in multiple volumes.

Image result for open door(2) Hearings are Presumed Open to the Public Absent an Order from this Court
Effective February 1, 2016, this Court clarifies its presumption that all hearings will be open to
the public absent an express order from this Court to the contrary. The Court will not close oral argument to the public in any type of case, even when the case itself or the briefs or excerpts of record have been filed under seal. A party seeking a closed hearing shall move for such extraordinary relief at least 14 days before the scheduled argument date and explain with specificity why such relief is required and whether any less extreme alternative is available.

Tuesday, January 26, 2016

Egregious frivolousness = $50K appellate sanctions

For today's installment of appellate sanctions, check out this published opinion from 4/1 in Bucur v. Ahmad, in which appellants and appellants' counsel are hit with $31,311 in sanctions payable to respondent and $25,000 payable to the court.
As exhaustively outlined above, four trial judges, one arbitrator and one appellate court have previously concluded that Appellants' repetitive claims in five versions of essentially the same case underlying this appeal are meritless. Appellants' persistent but vacuous pursuit of the same repetitive claims that give rise to this appeal constitutes an egregious example of frivolousness.
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One hundred of these, please!

Breaking 4/3 News! Rylaarsdam to retire

William F. Rylaarsdam, Associate Justice
We have authorization to release the news that Justice Rylaarsdam will retire around June of this year! More details here as they emerge.

Monday, January 25, 2016

Friday, January 22, 2016

No stipulating around the old final judgment rule!

Another reminder from 4/1 here: "parties cannot avoid the one final judgment rule and confer
appellate jurisdiction ... where none exists."
Image result for can't get there from hereIn most cases, a stipulated judgment is not appealable. (Harrington-Wisely v.
State of California (2007) 156 Cal.App.4th 1488, 1495.) The parties cannot create
appellate jurisdiction by stipulation. (Kurwa, supra, 57 Cal.4th at pp. 1103, 1107.) Were
we to allow this, "we would in effect be permitting the parties to confer jurisdiction upon
us where none exists." (Id. at p. 1103.) "To permit this kind of manipulation of appellate
jurisdiction—in effect, allowing the parties and trial court to designate a substantively
interlocutory judgment as final and appealable—would be inconsistent with the one final
judgment rule." (Id. at p. 1107.)
Also of note, to be filed under "90-day-rule violations," see Judge Scolded for Taking Pay While Behind on Cases.