Friday, January 20, 2017

2d DCA pro tem assignments

The following are currently sitting on assignment:

  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2017.
  • Judge Rupa Goswami of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2017.
  • Judge Curtis Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2017.
  • Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 28, 2017.
  • Judge Virginia Keeny of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until February 3, 2017.
  • Judge Michael Small of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning February 1, 2017 until March 31, 2017.

Goodwin Liu: In Praise of Judicial Federalism

That's the title of an article in yesterday's Recorder here, by Justice Liu, in which he concludes:
Image result for justice liuWhen it comes to some of the most basic constitutional guarantees, state and federal courts are engaged in a common enterprise of American constitutionalism. What is essential to this enterprise is that state and federal courts, whether relying on state or federal sources, exercise independence in interpreting their respective constitutions. This judicial federalism is vital to how our system of dual sovereignty secures our freedom.

Thursday, January 19, 2017

Justice Kennedy comes to ABTL program Feb. 9

Anthony Kennedy official SCOTUS portrait.jpgThe Association of Business Trial Lawyers - Los Angeles Chapter presents An Evening with U.S. Supreme Court Justice Anthony M. Kennedy on February 9 at the Millennium Biltmore Hotel. Reception at 6, dinner & program 7 to 9 p.m. (Complimentary to active judiciary members.)
1.25 Hours of MCLE.
Details here.

Cal Surpremes issue opinion on New Trial procedure

See Kabran v. Sharp Memorial Hospital for the unanimous opinion, which states:
We conclude that Code of Civil Procedure section 659a does not deprive a court of fundamental jurisdiction to consider affidavits submitted after the 30-day deadline set forth in the statute. Because the Hospital did not object to the timeliness of the affidavits in the trial court, it may not raise this issue for the first time on appeal. Accordingly, we affirm the judgment of the Court of Appeal. 
And concludes:
We hold that the trial court had fundamental jurisdiction to consider Kabran‘s allegedly untimely filed affidavits in support of her motion for a new trial. The Hospital, having failed to object to the affidavits‘ timeliness in the trial court, may not challenge the trial court‘s reliance on those affidavits for the first time on appeal. We affirm the judgment of the Court of Appeal.
[Here's a nice soundbite from the opinion: "jurisdictional rules are mandatory, but mandatory rules are not necessarily jurisdictional."]

Image result for safari club

Looking for a punny anti-SLAPP opinion (filled with hunting puns)? Search no further than Judge Seeborg's Safari Club and Whipple opinion here.

Image result for mr. whipple

MetNews on the two Division 5's

Yesterday's Perspectives
column in the MetNews was titled Div. Five Presiding Justices in L.A. anad San Francisco: Worlds Apart: Paul A. Turner Has an Aversion to Parties Litigating in the Court of Appeal Anonymously; Barbara J.R. Jones Doesn't Give a Hoot.

RIP Judge/Justice Timlin

The DJ reports the death at age 84 of Judge/Justice Robert Timlin in Central District Judge Known for Being Fair, Kind. President Clinton nominated him to the Central District in 1994 (and he took senior status in 2005). But before that he was Justice Timlin on the Court of Appeal (4th Dist. Div. 2, from 1990 to 1994).

Also of appellate note, yesterday's DJ profiled Judge Pregerson -- Dean Pregerson CD Cal, that is.

Wednesday, January 18, 2017

Goodwin Liu Makes Case for Liberal Dissent

That's the title of an article in today's Recorder here, which begins:
Image result for goodwin liuGoodwin Liu thinks it's OK to disagree with the U.S. Supreme Court—and he's not exactly shy about it.
At a conference at University of California, Hastings Law School, the liberal-leaning, Yale-educated California Supreme Court justice told an auditorium full of attendees why state courts sometimes have the prerogative to take a "dissenting view" on issues of constitutional law, and how they can do so.

He also spoke briefly on dissentals:

"It seems to me that the practice of dissenting from denials of review is just a little tiny glimpse, a little tiny bit of transparency, into this otherwise very important but nonetheless incredibly opaque process," Liu said. "We did in the past have a practice of noting our desire to grant a case if the majority determined that it was denied. … Sometimes that's sufficient, but other times I feel a little mystified as to why we should leave people guessing."

An arresting morning at SCOTUS yesterday

NLJ reports (w/a slide show): Supreme Court Protest Ends in 18 Arrests

Eighteen protesters were arrested on the steps of the U.S. Supreme Court on Tuesday morning after displaying a large "STOP EXECUTIONS!" banner calling for an end to capital punishment in America.
The demonstration was timed to mark the 40th anniversary of the 1977 execution by firing squad of Garry Gilmore, the first since capital punishment was reinstated in 1976. Similar protests have taken place every five years and have almost become a ritual that ends with the arrests. Federal law prohibits displaying banners and "moving in procession" on Supreme Court grounds.

Tuesday, January 17, 2017

Justice Liu studies Asian-Americans in the law

The AP reports: Few Asian-Americans hold top legal jobs, new study says, referencing a study by Justice Liu. (Once a professor, always a professor?)

When Goodwin Liu joined the seven-member California Supreme Court in 2011, he became its fourth sitting member of Asian descent. The number is remarkable.
The other state supreme courts in the U.S. combined have a handful of Asian-American justices. And Asian-American representation on other state courts, the federal bench and among the country's top prosecutors is similarly scant.
Liu said the Asian-American representation on the California high court does not carry through to lower courts in the state. As of 2015, only two of 97 appellate court judges were Asian-American. The California Supreme Court now has three Asian-American justices after one of those of Asian descent retired in 2014.
— Three of the 94 U.S. attorneys and four of the country's nearly 2,500 elected state prosecutors were Asian-American. 
— There were 26 active Asian-American judges among more than 850 federal judicial positions. Two percent of almost 10,300 state trial and appellate court judges who were surveyed were Asian-American. 
— Asian-Americans were the largest minority group at major law firms but had the highest attrition rates and lowest ratio of partners to associates among all racial groups.

Monday, January 16, 2017

Constitutional Issues and the New President: What Will The Supreme Court Do?

The Beverly Hills Bar Assn Societas Reverenda Committee Dinner Program
Presents Constitutional Issues and the New President: What Will The Supreme Court Do? with panelists Susan Estrich, John Eastman and Rex Heinke, on Wednesday, Jan. 18, 6- 8:00 p.m. at the BHBA building. This should definitely count as appellate specialization MCLE. And for more of that, check out this State Bar Litigation Section webinar, Your First Appeal: Tips From Inside the Courts of Appeal on Friday, Jan. 20, 11-noon.

For 9th Cir. appellate tidbits, see this opinion here, holding that a court denial of an arbitration motion under state law is nonappealable. And see this request here for the Cal Supremes to answer some questions...
And here (holding that the 9th Cir. now has jurisdiction to review denials of Oregon anti-SLAPP motions)!

Moskovitz on Appeals in today's DJ asks On Appeal, Should We Do As the Brits Do? in which he compares and contrasts appellate procedure across the pond with ours here.

Friday, January 13, 2017

Posner criticizes verbosity in briefs

Posner criticizes 'verbosity' in appeals briefs in decision upholding closed voir dire

“We do wish to comment briefly on the length of the parties’ briefs,” Posner wrote. “They total 250 pages, of which 31 pages consist of the district judge’s opinion (one opinion for the two cases). The other 219 pages are the parties’ arguments. There is no justification for such verbosity. These two consolidated cases are simple and straightforward. Our opinion is only seven pages long; and while such compression is not to be expected of the parties, they should have needed, and used, no more than 100 pages at the most to present their claims fully.”
Link to the case here.

Thursday, January 12, 2017

More Movie Madness

The SoCal Business Litigation Inn of Court presents Another Edition of Movie Madness: Real Ethical Issues Hollywood's Fictional (and No So Fictional) Lawyers Confront, with panelist Justice John Segal, on Tuesday, January 24 @ 6:30 at the Westside Tavern's Westwood Room.
Hollywood loves to befuddle lawyers. Selected clips from famous films often depict ethical quagmires that not only make for great entertainment but create challenging pitfalls and genuine dilemmas actually faced by attorneys. Our 5 star panel will analyze (with help from the audience, of course!) a number of scenes from The Lincoln Lawyer, Reversal of Fortune, The Sweet Hereafter, and other films, using Hollywood's imagination for legal education. One hour of ethics will be earned from attending this fun and informative program.

More on typos

A couple days ago SCAN posted about a "2016" typo error (should've been 2017, of course) of the sort that is common around this time of year. But SCAN readers insist on edifying and entertaining posts, not mere gotchas and bland bromide reminders. So we turn once again to the great Charles Rembar's The Law of the Land, chapter 12 (on Equity) which includes a footnote about legal typos:

"The practice of law is especially rich in charming typos; the seriousness of the occasion makes the pratfall all the more engaging."

In Rembar's era, legal drafting was done via dictation, so many of his examples arise in that context:

    Image result for charles rembar the law of the land
  • When "soul discretion"appeared in a draft contract, he quipped, "that spiritual decision, though estimable, is a bit too unpredictable for a matter of this kind."
  • In a memo regarding the outcome of a criminal trial, he gets back from the steno pool "a neatly typed page in which it is said that assuming a sympathetic attitude on the part of the jury, the case is likely to end in 'a quibble' (that is, a verdict of not guilty)."
  • He references a letter "which refers to a party who has not stirred himself to respond to an attack as 'lying doormat.'"
  • He is given a contract to review, and instead of seeing the typical language along the lines of "This agreement shall commence on X date and terminate on Y date," he finds "Disagreement shall continue in full force and effect for ..."
  • And he cites a memo dealing with a tax on business income, which said "the tax was measured by 'grocery seats.' (You must pronounce it.)"

Wednesday, January 11, 2017

Confirmation hearings set for Feb. 9 in San Diego

Commission on Judicial Appointments to Consider Three Appointments to Courts of Appeal

A lesson in tone...

Justice Moore provides a lesson in tone in this unpub'd decision here today, which begins ordinarily enough like this: "This appeal[fn.1] asks the following question: If a leased vehicle is damaged in
an accident, repaired to its original condition, and returned to the lessor with no charges assessed to the lessee as a result of the accident, is the lessee able to seek damages for the 'diminished value' of the vehicle? We conclude the answer is a resounding 'no.' "
But did you catch that odd fn.1? Here's what it says:
Image result for oh behave
Behave or be halved!
We note the unnecessarily disrespectful nature of statements in the plaintiff’s briefs, including: “There is ‘reality’ which should be considered but there appears to be a decision from ‘Fantasyland’ coming from the Trial Court in Orange County. The decision makes no real sense or logical reason” (original bolding omitted), and “If one is going to cause damage to another citizen’s vehicle . . . make sure the vehicle which is being damaged is a ‘leased vehicle’ and/or is located in Orange County.” We expect more professionalism from counsel.

[1/13/17 update: See, in the Metnews, C.A. Derides Appellant’s Contention, Tone of Brief]