Tuesday, October 21, 2014

Forfeiture v. Sound Analysis

Here's footnote 5 of an opinion published here, issued after a rehearing petition in an anti-SLAPP appeal:
This issue of first impression was first raised in defendants’ petition for rehearing. Ordinarily we might treat it as forfeited, but having certified our opinion for publication we could hardly refuse to address a point that, if sound, would undermine our entire analysis.

Pi Be Rational
Waiver: Not gonna go there.
Logic: We gotta go there.

Monday, October 20, 2014

Appellate Panel Must Have 3 Judges

Today's MetNews reports on Johnson v. Appellate Division in Court of Appeal Rejects Use of Two-Judge Appellate Panel in Superior Court. Code of Civil Procedure 77(b) provides that in each superior court appellate division, "no more than three judges shall participate in a hearing or decision [and] [t]he presiding judge of the division shall designate the three judges who shall participate." The Santa Cruz Superior Court had had a policy of allowing cases to be decided with the concurrence of two judges. The 6th District (with "articulate and cogent" amicus support from CAAL) held that there must be three.



The Court of Appeal confirms that when the CCP says that you have to have "three judges" on the panels that hears appeals, it really means "three." Not two. Three. Even if two judges are enough to issue a judgment.

Tuesday, October 14, 2014

2d DCA pro tem update

Assigned Judges


The following are currently sitting on assignment:
  • Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until November 30, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2014
  • Judge Luis A. Lavin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three beginning October 20, 2014 until December 31, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until October 31, 2014
  • Judge Allan J. Goodman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until November 30, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six until November 30, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2014
  • Judge Lavin interviewed here.
    ============
    Today's MetNews reports that LASC Judge Russell Kussman is under consideration for the court of appeal. "The MetNews has previously reported that Ventura Superior Court Judge Tari Cody; Los Angeles Superior Court Judges Richard Rico, John Segal, Luis Lavin, Helen Bendix, and Sanjay Kumar; and Southwestern Law School professor Christopher Cameron are also under consideration for appointment. The court currently has vacancies in Divs. Three, Five, Six, and Seven."
    ====
    Yesterday's DJ (pg. 4) had a photo and headline: Los Angeles High School Posthumously Honors Former Appellate Judge, noting that Loyola High School awarded alum Paul Boland its Cahalan Award for his distinguished serve in the community. Very nice.

Monday, October 13, 2014

LACBA ACS + ABA CAL happy hour this Thursday @ 6 p.m.

The LA County Bar Appellate Courts Section and the ABA's Council of Appellate Lawyers will join forces to conquer the happy hour on the outside patio at Via Alloro Restaurant in Beverly Hills this Thursday at 6:00ish. All appellate lawyers -- and those who choose to publicly socialize with appellate lawyers -- are welcome! RSVP to Ann Qushair at QushairESQ@gmail.com.

Technically, The Glass Is Always Full Never Drink and Derive

FYI for docket watchers: Today, Columbus Day, is a court holiday (state & federal).

Wednesday, October 8, 2014

Lolly, Lolly, Lolly, get your Adverbs here!

Today's Wall Street Journal has a legal writing article, which quotes many notables, including our own Chief of the 9th:

Lawyers, Judges Modify the View That Adverbs Are Mostly Bad:The Maligned Part of Speech Has Friends in High Court; Don’t Tell Stephen King.

“When you’re drafting an opinion, it’s just so tempting to use an adverb, so satisfying. It says exactly what you mean,” Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. “I don’t think any of us can follow the rule as religiously as Hemingway did. I wish I could.”

FREE "Oral Advocacy in the Ninth Circuit" FBASD program 10/15

"The differences Between Oral Advocacy in the District Court and the Ninth Circuit: A Brown Bag Luncheon" with The Honorable M. Margaret McKeown and The Honorable John B. Owens, United States Court of Appeals for the Ninth Circuit, presented by the San Diego Chapter of the FBA, the ABTL, and the State Bar Litigation Section on October 15, noon to 1:15, in Courtroom 15B (333 W. Broadway, San Diego). Cost = Free!
Allow Myself To Introduce...Myself
How not to begin oral argument anywhere...
But space is limited, so rsvp now at www.fbasd.org

Monday, October 6, 2014

The Future is Here: 2d DCA e-receipt = filing!

The 2d District reports the following:
Effective 10/6/2014, a brief received by the Second District electronically is deemed the original and “filed” the date the electronic brief  is received. Three paper copies are still required to follow.

Our e-filing/e-submission page has already changed for this: http://www.courts.ca.gov/8872.htm


Questions & Answers:

a)     Does the new rule apply to writ petitions? 
No.  Original proceedings remain subject to the prior e-submission rules.

b)     Does this mean a brief is deemed timely filed if efiled any time before midnight (as opposed to before closing hour in the clerk’s office)?
Yes.  

c)      Does the fed ex rule still apply if one does NOT efile?
Yes.

d)     Should the three “copies” include the original brief, with the original signature?

Briefs don’t require signatures at all, so there’s no need to send an “original” brief in paper form.  If you do include a signature, it’s ok to send the original as one of the three copies, but not essential.

OCBA SCOTUS seminar & Sills Award on 10/20

On October 20 the OCBA Appellate Law Section presents its U.S. Supreme Court preview (aka the Chemerinsky & Eastman show) and honors Marj Fuller with the David G. Sills Award.

Flyer here.

Today's DJ features APJ Gilbert's column, Pardon the Interruption, in which he observes that "bar events" are "all the same" -- "Lawyers and judges schmooz[ing]"... Rest assured, the OCBA ALS event, noted above, like the children of Lake Wobegon, will be much, much better than average.

Friday, October 3, 2014

Retention Elections are Nov. 4

Judgepedia explains:
"Justices of the California Supreme Court and California Courts of Appeal must run for retention in the first gubernatorial election after they are appointed and then every 12 years, when their terms expire, in November. In these elections, justices do not compete against another candidate. Instead, voters are given a "yes" or "no" choice as to whether to keep the justice in office for another term. The justice must receive a majority of "yes" votes to remain in office. If a justice is not retained, the governor appoints a replacement who must run for retention in the next gubernatorial election following their appointment.Justices are typically retained. Since the state started its system of retention elections in 1934, the only year that any supreme court justice was not retained was 1986. That year, three justices were ousted from the bench due to ruling against the death penalty. In 2010, all of the justices who faced retention were retained. Supreme court justices were retained by an average of 66.8% of votes, while justices of the intermediate appellate courts were retained by an average of 71.0% of the votes."
Judgepedia also lists who's up for election here.
Now is the time to plan to vote and to encourage everyone you know to vote too.

Thursday, October 2, 2014

Looking for a free hour of appellate MCLE in LA?

Counsel Press

This CLE seminar will be held on Thursday, October 9, 2014 (12:00pm - 1:00pm) at LeClairRyan, 725 S. Figueroa Street, Suite 350, Los Angeles, CA 90017.
About the Program:
“The Essential Basics of Filing an Appeal in California” focuses on the procedural aspects of the appellate process in the California appellate courts. Attendees will learn the methods for initiating and filing appeals in California including an overview of the rules, an explanation of the many required forms, timing considerations, requirements for briefs and appendices, motions, oral arguments and costs. The latest developments regarding e-briefs, e-filings and e-submissions will also be covered. The program concludes with a question and answer session.

"Turnover Opens Door for Liu's Influence"

Raising the DJ's journalism to New Yorker quality, Emily Green in today's DJ offers an in-depth study of Supreme Court Justice Goodwin Hon Liu. Every day the DJ has a judicial profile. But if you read only one of them this year, make it this one.

Tipping the balance:
Is Justice Liu "positioned to shape state law in a away that liberals seek and conservatives fear"?

Wednesday, October 1, 2014

2d District pro tem updates AND 2015 Calendar!

The following are currently sitting on assignment:
  • Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until November 30, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until October 31, 2014
  • Judge Allan J. Goodman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until November 30, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six until November 30, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2014
The 2d District has also now posted its 2015 calendar, here.

Case notes:

"Vince Lombardi once famously said that practice doesn’t make perfect, only perfect practice makes perfect." Another perfect quote in a well written opinion here.
Vince Lombardi.png

And Justice Raye gets cinematic here: "Discrimination does not always present as in a scene from To Kill a Mockingbird or The Birth of a Nation."

Mr. Lawrence W. Striley named 25th Reporter of Decisions

Today's the first day on the job for a new name you should know: "Following a national search, the Supreme Court of California today announced the appointment of Mr. Lawrence W. Striley as the 25th Reporter of Decisions of the Supreme Court and the Courts of Appeal. Mr. Striley has over 18 years of experience in the legal profession, including 12 years in legal publishing, and will begin his new role with the court on October 1, 2014." Details here.

I Am Disappointment

"The Reporter of Decisions is responsible for supervising the preparation of more than 12,000 California Supreme Court and Court of Appeal opinions each year, including opinions published in both the Official California Reports and the Official California Appellate Reports as well as unpublished opinions posted on the judicial branch’s California Courts Web site. Appointed by the court, the Reporter ensures the editorial integrity of all opinions from filing through publication and posting, and reviews the accuracy of the editorial information included in both the advance sheets and bound volumes for published opinions."

Also, 4/1 is about to destroy old records of proceedings from 1995 to 2004. Click here or forever hold your peace.

And, The Recorder offers: How to Decide Which Verdict Form to Use, by Ben Feuer.

Over on the Federal side, today is the start of new terms for Judicial Conference Committees. Ninth Circuit Judge Sandra Ikuta is now chair of the Advisory Committee on Bankruptcy Rules, and Judge O'Scannlain continues as chair of the Committee on International Judicial Relations. More here.

Tuesday, September 30, 2014

CRF Honors Clerk Joseph Lane + LACBA ACS events

This afternoon at the Bonaventure Brewing Co. in Downtown LA, the Constitutional Rights Foundation presents is annual Cobey Honors Awards, which include and award for Joseph Lane, Clerk of the Second District Court of Appeal for the Appellate Court Experience program, which the court has hosted for nearly a decade now. This award is well deserved! If you've not seen him explain how the court works to visiting high school classes, you're missing quite a show.
Joseph Lane (2).jpg
Quite a different Joseph Lane

[Update: The 2d District Justices made quite a showing to support Clerk Lane: All three new justices (Edmon, Collins, and Hoffstadt) attended, as did Justices Perluss, Rubin, and Ashmann-Gerst. Also attending was 4/2's Presiding Justice Manny Ramirez, showing support for 4/2 Research Attorney Donna Hecht, honored as Mock Trial Coach of the Year. CRF is always looking for volunteers for its many programs, so give it a show. Presumably you're appellately inclined, so why not volunteer for ACE? Click here and here for more on ACE.]
Manny Ramírez in CPBL (Taiwan)2.JPG
A different Manny Ramirez also outside his home jurisdiction.

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Upcoming LACBA Appellate Courts Section programs:
  • The Uses of Amicus Briefing In Reviewing Courts
    Wednesday, October 29, 4:30 to 6 p.m., Court of Appeal Employee Lounge
    Speakers: Dick Rothschild of the Western Center on Law on Poverty and LACBA's Amicus Briefs Committee; Barbara Jones of the AARP Foundation; Bob Olson of Greines, Martin Stein & Richland; and Justice Laurence Rubin of the Second District, Division Eight.
  • Introducing The Newest 9th Circuit Judges
    November 13, 12:00 noon to 1:30, Mezzanine Conference Room, Ninth Circuit Courthouse, Pasadena. Speakers: Judges Jacqueline Nguyen and Paul Watford.