$8K in appellate sanctions imposed, and more

For today's appellate sanctions update, look no further than 2/2's decision here.
[There's a very odd line on page 5 of the decision that reads: "Pursuant to California Rules of Court, rule 8.104(a)(1)(B), appellants were required to file a notice of appeal of the order within 60 days of that date, with an additional five days because the notice was served by mail. (Code Civ. Proc., sec. 1013.)" (emphasis added). This sentiment is repeated later on page 5: "Appellants were required to file their notice of appeal of the order within 60 days of that date, with an additional five days because notice of entry of the order was served by mail."
But section 1013, subdivision (a), expressly does not apply to notices of appeal: "the extension shall not apply to extend the time for filing [various things, including a] notice of appeal. See InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134 ["Service by mail of a triggering document does not extend the time to file a notice of appeal."].]

As for interesting 9th Circuit developments, see here, where the good professor Shaun Martin points out an unusual procedural history in which a memdispo gets published, but without the opportunity for an en banc petition. Curiouser and curiouser.

Also, Friday's DJ (2/28/14) had a piece by 2/5's Justice Mosk, Dealing with Iran not as Foreign as Many Seem to Think. Justice Mosk served on the Iran-U.S. Claims Tribunal from 1981-1984 and continued work on it through 2001.

Hey, the judge is marrying the opposing party!

"Marrying" as in officiating at the wedding of your litigational adversary. Is that grounds for disqualification? What if it's a divorce case and the judge is going to perform the marriage of your ex? Apparently, that's not enough in today's published opinion here:

After considering the particular facts before us and applicable law, we determine

Commissioner Ratekin's conduct was not a disqualifying event. Under circumstances

similar to those here, the California Supreme Court found no appearance of partiality

where a trial judge officiated at the wedding of the prosecutor's daughter several months

before the judge presided over the defendant's death penalty trial. (People v. Carter

(2005) 36 Cal.4th 1215, 1240-1244.) Following Carter, we conclude that when a judge has no personal or social relationship with the attorney and the judge's only role at the wedding is that of an officiant, disclosure is required (Cal. Code Jud. Ethics, canon 3(E)(2)(a)), but disqualification is not mandated absent additional facts.

 

 

 

"E-filing Comes to the First District"

That's the article you need to read in today's Recorder, here.
Registration begins March 10, e-filing becomes mandatory for most civil cases on March 17, and in criminal cases on April 14.

DJ profiles Justice Blease, and more

Today's DJ profiles Justice Coleman Blease of the 3d District. Now in his 35th year, he is the 2d longest serving Court of Appeal Justice (after 2/3's PJ Klein). A juicy quote: Legislative intent is "what the courts hide behind when they want to apply policy." Needless to say, he is a strict statutory constructionist.

"Smart, smart, smart," says 3d DCA former PJ Scotland.

Also in today's DJ, If a Tree Falls on You in the Forest -- PJ Gilbert's monthly column.

And, a letter to the editor -- Former Justices Unfairly Portrayed in Vacancy Column -- defends the honor of former Supreme Court Chief Justice Bird and Justices Reynoso and Grodin.
Over at The Recorder, see Appellate Elites Learn to Love Patents and Ben Feuer's How to Obtain a Stay Pending Appeal.
Finally, the AOC has issued this press release and report, showing more diversity on the California Bench.

 

2d DCA pro tem assignments for Miller, Edmon and O'Donnell extended

• Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until March 31, 2014
• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2014
• Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until May 31, 2014
• Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until March 31, 2014
• Judge Joanne B. O’Donnell of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Six until March 31, 2014
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2014
• Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2014

Appellate articles of note

Today's DJ features Common Pitfalls of Appellate Practice, from Sheppard Mullin's Certified Appellate Specialist Team. Here's their top ten:
(1) Miscalculating the date on which a court of appeal opinion becomes "final."
(2) Appealing from an "order granting summary judgment."
(3) Not knowing a trial court's power to grant a new trial expires 60 days after notice of entry of judgment.
(4) Not knowing you can pursue a new trial motion even if you've already filed a notice of appeal.
(5) Not filing a "protective cost-appeal."
(6) Not paying attention to the "technicalities" in filing a writ petition.
(7) Not requesting a statement of decision.
(8) Not being mindful of the deadlines for filing "statutory writs."
(9) Not moving for a new trial on grounds of excessive or inadequate damages.
(10) Not being creative in staying enforcement pending appeal.

And today's MetNews offers Court Strikes Down Waiver of Right to Appeal reporting on 4/1's Purcell v. Schweitzer: "A settlement agreement providing that default would result in the entire original amount being due, and waiving any right to contest a default judgment, was an unenforceable penalty because the claim amount bore no reasonable relationship to the actual damages that would be suffered, the Fourth District Court of Appeal has ruled."
 

DJ appellate roundup

Today's DJ has three pieces of note:

• First Big Anti-SLAPP Case of Year Examines Public Interest Exception, by SLAPPologist James Moneer, discussing 4/1's Tourgeman v. Nelson & Kennard (Jan. 16, 2014).
• And speaking of "Kennards," Texan Mark Pulliam, in Restoring the Rule of Law in California, makes "a few observations about the state of the legal system in California," and suggests that the Governor fill Justice Kennard's seat with "a proven jurist with a sterling reputation," LA Superior Court Judge Carolyn Kuhl.
• Finally, for those seeking "pure" appellate materials only, appellate specialist Joan Wolff offers How Trial Lawyers Can File Effective Appellate Briefs. A problem when trial lawyers write appellate briefs is that they "unwittingly neglect to include each piece of information necessary for ... a first-time reader" who is unfamiliar with the case. Living with a case from its inception "can lead to unrecognized assumptions"; "What is obvious to you [the trial lawyer] may not be obvious to a stranger to the case." Joan's advice? If an appellate specialist can't be hired to handle the appeal, at least hire an appellate specialist to edit the brief.

Herrmann's "Crappy Writer" Test!

Mark Herrmann's latest, Are You A Crappy Litigator? A Self-Assessment Test! is here!
The gist of it is, if you start a brief looking like the below, you're making a huge mistake:

“COMES NOW Defendant [Somebody], Inc., f/k/a [some other name] (hereinafter “Somebody”), by and through its counsel, Bigg & Mediocre, and pursuant to [some rule of procedure] hereby submits its motion for [whatever the heck the rule you just cited authorizes], and states the following in support thereof:”

Why is this so bad? Lots of reasons. "Comes now" is just silly. And the whole bit about naming the party, its counsel and what the motion or brief is, is totally redundant, because there's already a caption or cover that takes care of that. His sage advice? "[C]ut the boilerplate throat-clearing and use your opening paragraph to show the judge why your client should win ...."
To this, I'd add, if your conclusion begins "For the foregoing reasons ...." then you're making essentially the same mistake outlined above. The "Conclusion" heading already conveys "for the foregoing reasons," so don't bother with that cliché and get down to business.
(Don't recognize Mark Herrmann? He's the curmudgeon who should be your hero!)

And here's Bryan Garner's latest, Weighing the Arguments For and Against Obfuscation in Court.

"Appellate Divisions Asked for Details"

That's the title of an article (here) in today's Recorder, that begins and ends thusly:

The Conference of California Bar Associations is sponsoring legislation that would require jurists serving on trial court appellate panels to provide "a brief statement of the reasons" behind their judgment. Just typing "affirmed" or "reversed" wouldn't cut it anymore under the bill.
...
The Judicial Council has yet to take a public position on the bill, AB 1932.

Double-O Dummy

Some preceding zeros are very cool.
James Bond isn't agent 7, he's Double-O 7.
But in nearly all other circumstances, including appellate practice, preceding zeros are simply silly. Record citations that look like "1-AA-00007," to refer to page 7 of volume 1 of an appendix, serve no useful purpose. (If you haven't experienced a brief with citations like this, count yourself lucky!)
Yes, it may be true that that's the way the page number got Bates-labeled or electronically numbered. But 000007 in any normal context is merely 7, and should be cited as merely 7.


Dear Lawyer, please don't let your intensely literal mind override common sense.


Mr. Bates himself implores: Please don't use me as an excuse! 

How do you solve a problem like ... citations?

The LACBA Appellate Courts Section listserve recently lit up about how to cite to multivolume records with tabs. The goal, of course, is to provide user-friendly citations that also comply with the rules (which require citation to volume and page, but not necessarily to tabs or lines).
Let's say you want to cite to page 625 in volume 3 of an appellant's appendix.
Here are some options:
3 AA 625
3AA 625
3AA625
3:AA:625
3-AA-625
(Note that the first option will count as three words against your total word count, and the second will count as two words.) Some people still use roman numerals for volumes, e.g., AA III:625 or IIIAA625, etc.

Now, let's say you want to cite page 625 in volume 3 of an appellant's appendix, which has been tabbed, and that page is behind tab 14. Some options:
3 AA tab 14, 625
3 AA 14:625
3AA14:625
3AA14/625
3:AA14-625
3AA[14]625
3AA 625[tab 14]

Now, what if you have a span of pages, say 625 to 627, and what if those pages are RT pages that have line numbers too? You can end up with a real mess!

Too much can be a real problem.

There isn't a right answer to this question, and reasonable minds can differ. Some prefer all possible level of detail, some stick simply to the language of the rule -- supplying volume and page only. The only true answer is to comply with the rules and also apply some common sense. If there's a reasonable way to supply extra helpful information, and there's a reason to do so, then feel free to be creative.

Rare Grant of Publication Request by the 9th Circuit

When the Ninth Circuit issues a memorandum disposition (a "memdispo") it signals that the court does not believe the decision worthy of publication. Parties may disagree and request publication, but that rarely happens. Reader Kent Qian directs our attention to this order & opinion issued today in which the mandate is recalled and the memdispo (issued in April 2013) is replaced by a published opinion. This shows that a successful publication request to the 9th Circuit is possible.

Also, in today's DJ is Appealing Orders Compelling Arbitration Just Got Tougher, by Reed Smith's Paul Fogel and Adam Forest, about MediVas v. Marubeni Corp., in which the 9th Circuit "adopted a rebuttable presumption that an order compelling arbitration stays, but does not dismiss, an action -- in other words, a presumption that makes orders compelling arbitration presumptively nonappealable ...."
(We noted the case here.)

More on Kennard and possible successors

The press on Justice Kennard's retirement is extensive. Here's a radio story. And the latest installment from The Recorder is Kennard Leaves Imprint on the Law—and a Seat to Fill. Names in The Reorder article are: Law school deans Kevin Johnson of UC–Davis and Rachel Moran of UCLA; Prof. Christopher David Ruiz Cameron; Santa Clara County Superior Court Judge Katherine Lucero; José Padilla, executive director of California Rural Legal Assistance; Solicitor General Edward DuMont; and Justices Maria Rivera, Marvin Jenkins, James Humes, Elena Duarte, and Miguel Marquez (and his sister, Riverside County Superior Court Judge Raquel Marquez).

[2/19/14 update: See Today's DJ for Hernán Vera's article, Diversity of Experience Key in Next Justice, which concludes:

What's needed now is another form of diversity. Let's call it "experiential diversity." The current court is composed of absolutely stellar justices, but they are former prosecutors, commercial litigators, academics, and appellate judges. I submit that the state Supreme Court of the 21st century needs a practicing attorney who has built a career representing working families so often excluded from the protection of our laws. The court should have a progressive who has seen, in her day-to-day representation of clients, the countless ways in which the formalism of the law fails to capture adequately the reality of people at the margins: the homeless struggling to survive, seniors and the disabled living on the edge of foreclosure and eviction, workers fighting to get paid, immigrants trying to create a better life for their kids. Oliver Wendell Holmes Jr. perhaps put it best, "The life of the law has not been logic; it has been experience."

[2/21/14 update: See Today's DJ for an article by John Feder, president of Consumer Attorneys of California, New Justice Should Confront Barriers to Simple Fairness.]

Speculation Swirls (about choice for Kennard's seat)

Yes, the name game begins! Today's DJ has Emily Green following up her scoop about Justice Kennard's retirement with Speculation Swirls About Governor's Choice for State Supreme Court Vacancy (note, article titles between the online DJ and print version often differ: the hardcopy title is Brown Faces Pressure to Nominate A Latino or Black Justice). With so many appellate vacancies statewide, plenty of names that are being vetted might be slotted into this new spot. So let the wild speculation take off...
Justice Martin Jenkins?
Justice Maria Rivera?
Justice James Humes?
Justice Miguel Marquez?
Justice Dennis Perluss?
Justice Jeff Johnson?
District Court Judge Yvonne Gonzalez Rogers?
UCLA Dean Rachel Moran?
Southwestern Prof. Christopher David Ruiz Cameron?
Stanford Prof. Mariano-Florentino Cuellar?
Davis Dean Kevin Johnson?
MALDEF's Thomas Saenz?

As noted in the article, candidates must brush up on their Johns (1 and 2) be prepared to interview with Sutter Brown....

Justice Kennard to retire April 5

The DJ reports that Justice Kennard faxed a retirement letter to Gov. Brown today.
(See also here and here (for a different "DJ".) [FYI, Serious kudos to Emily Green for scooping everyone with her story and getting it posted long before the rest of the press caught wind.]
The letter ends on a poetic note, quoting Langston Hughes' "Dreams":
Hold fast to dreams
For if dreams die
Life is a broken-winged bird
That cannot fly.


[Update: See After 25 Years, Kennard to Step Down From High Court]

Justice Beds Gets Serious. Really.

"I've been writing this column for 32 years. In all that time, nearly four hundred columns, I can count on one hand the number of times I've gotten serious with you. Brace yourself: This will be one of those times." So it begins.
Remember his famous "refrigerator column"?  This one's like that. Even more so, if that's possible. Read it -- Time to Cross Your Bridge -- here. Now.

Ooops! Notice of Appeal Error

Appeals 101: The notice of Appeal must indicate who is appealing.
Appeals 102: Sanctions orders against attorneys are appealable by the attorneys.
Consequences for missing these lessons: here (key highlights below).

Appellants Kamran Azizi and Hediyeh Shoar Azizi (Defendants) appealed from an order that imposed monetary sanctions on their attorney. Because Defendants were not aggrieved by the order and the aggrieved attorneys did not appeal the order, we dismiss

the appeal.

 

Otto and Lindstrom argue that we should liberally construe the notice of appeal to include them as appellants. They note that they identified themselves as “appellants” in applications to extend time to file their opening brief and in their opening brief; they cite Otto’s poor health as an explanation for his error in omitting the attorneys’ names from the notice of appeal; and they argue MTO has not been prejudiced by the error. They cite cases that hold generally that public policy favors deciding appeals on their merits and that notices of appeal should be liberally construed. (See also Cal. Rules of Court, rule 8.100(a)(2).) However, none of the cases holds that a notice of appeal can be “liberally construed” to include an unnamed appellant, much less than an unnamed appellant who is a trained attorney and who filed the notice of appeal himself (or whose associate in law filed the notice).

 

 

 

 

 

 

Appellate Super-ness grows by leaps and bounds

Ten years ago, a new phenomenon hit Southern California: The Super Lawyers list, which listed "super" lawyers by practice area. The 2004 edition listed 48 appellate practitioners. Now, a decade later, the list includes 140!

Also of note: Back to law school for 9th Cir. Judge Fletcher ... as dean? See Circuit's Fletcher on Short List for Berkeley Law Dean.

Finally, in today's DJ is Anti-SLAPP Splits Expanded in 2013, by K&E's Michael Shipley, who also blogs here.

2d DCA pro tem update

following are currently sitting on assignment:

• Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until February 28, 2014
• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2014
• Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until February 28, 2014
• Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until March 31, 2014
• Judge Joanne B. O’Donnell of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Six until February 28, 2014
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2014
• Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2014

Also, an updated 2d DCA calendar is here.

Who's the tallest Justice?

Today's DJ profiles Supreme Court Justice Carol Corrigan, starting off with her imposing stature: At 6 feet tall, she's about half a foot taller than her fellow justices.
She's also "exceptionally witty and funny"; she once asked a lawyer at oral argument "Do you want a pony for the holidays, too?"
The article discusses her "blue-collar roots," her maroon 2004 Buick sedan, and her right-leaning, conservative bent. She is "consistently one of the most engaged justices" at oral argument.
 

Erasmus, "one of Corrigan's heroes."


Some of Hogan's Heroes...