Friday, May 29, 2015

Wilshire Bar/KCLA 2d District Lunch next week


Come and meet your Appellate Court Justices! On Wednesday, June 3, 2015 commencing at noon, the Wilshire Bar Association will join with the Korean Community Lawyers Association (KCLA) in having our Annual Appellate Justices Luncheon at the DoubleTree Hotel (formerly the New Otani), located at 120 South Los Angeles Street, Los Angeles 90012.  Our special guest speaker will be Sarah Sikich of Heal the Bay. The cost for this event is $50.00 per person. You’ll have a choice of a salmon or chicken entree.Reservations are required.  Please call 213-384-4088 and contact Estela at ext. 4109 to reserve your space, or email

Today's DJ features When Justices Own a Friend of the Court by Gabe Roth (executive director of Fix the Court), noting that nearly 96% of SCOTUS cases have amicus briefs and that 80% of recent 5-4 decisions have cited amicus briefs. But "there are currently no laws on the books requiring a justice to recuse himself or herself from a case in which" the justice owns stock in an entity that submits an amicus brief (as opposed to a "party" directly involved in a case). Mr. Roth sees an ethical problem and proposes that the definition of "party" expand to cover amici too.

The DJ's DAR "inside insight" chart shows that in April the Courts of Appeal published 75 opinions (cf. there were 66 in March and 74 in February). The top publishers (i.e., justices who published 3 times in April) were all in SoCal: Ashmann-Gerst, Johnson, Mosk, Rothschild, Rylaarsdam, and Turner.

Thursday, May 28, 2015

DJ profiles Judge Owens + appellate sanctions

Image result for vintage speed bagToday's DJ profiles John Owens "a longtime prosecutor" "known for his politeness and intelligence." The article begins with a story of girl scout cookies involving his former boss Justice Ginsburg and Judge McKeown. Also find out why he's probably happy with the outcome of last night's NBA playoffs game.

"I'm never off the job"-- "That means when he's helping coach a daughter's basketball team or working out at his boxing gym, he has to exhibit judicial restraint. 'If I misbehave at a game, as coaches sometimes do, I'm reflecting poorly on the federal judiciary'" 
And for today's unpub'd appellate sanctions case from 4/3, click here -- "there was no valid basis for
filing the complaint to begin with, much less the appeal."

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Further, plaintiff failed to make any reasoned legal argument in support of his claims, in violation of the California Rules of Court, another ground for awarding sanctions. (Cal. Rules of Court, rule 8.276(a)(2), (4).) Plaintiff did not “[p]rovide a summary of the significant facts limited to matters in the record” (rule 8.204(a)(2)(C)) nor did he include record references (rule 8.204(a)(1)(C)). In addition, he failed to support any of his claims with reasoned legal argument. (Rule 8.204(a)(1)(B).) ... 
In addition to the wholly improper form of the brief, the contents are equally deficient. The brief is confusing and unclear. ...
Sanctions are awarded against plaintiff or against his lawyer or against  both. We remand to the trial court to determine against whom the sanctions are to be awarded and the amount of sanctions.
(4/3 also addresses other trips in court here today.)
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And now for some splits...
In the "appeal-or-writ" category of question, where does this fall?
"This case presents a threshold issue: By what procedure is a physician to obtain appellate review of a trial court’s affirmance of a decision by the Medical Board of California (the Board) denying the physician’s request to modify the terms of a prior Board decision imposing probationary conditions on the physician’s right to practice medicine?"
A majority of 2/5 answers "writ" in a split decision today here.

For a 9th Cir. split on the timeliness of an appeal, click here.

Wednesday, May 27, 2015

How long should SCOTUS Justices serve?

Legal Times has this article on a move to have future nominees pledge to limit their tenure to 18 years: Initiative Urges Voluntary Term Limits for Future Justices.
“We can and must expect better from the Supreme Court,” said Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, a supporter of the new campaign. “Lifetime appointments lead to too much power exercised by a single person for too long a period of time. Clarence Thomas was 43 years old when he was confirmed for the Supreme Court in 1991. If he remains on the Court until he is 90, the age at which Justice [John Paul] Stevens retired, he will sit on the Supreme Court for 47 years.”
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Image result for funhouse mirror reflection"In 1992, the California Legislature enacted the anti-SLAPP statute, Code of Civil Procedure section 425.16,1 to counteract a 'disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' Eleven years later, the Legislature responded to 'a disturbing abuse of Section 425.16, the California Anti-SLAPP Law,' by enacting section 425.17. Two years after that, section 425.18, the anti-SLAPPback statute, was enacted, to counteract the hall-of-mirrors effect of parties taking turns suing and SLAPPing each other.
This case is a venture into that hall of mirrors."

So begins yesterday's unpub'd decision in a comeback SLAPP case from Justice Beds, here.
The decision also includes a reminder about the "proper tone of appellate briefs," i.e.:
“[H]yperbole, exaggeration, belligerence, disrespect, and arguments belittling your opponent, the trial judge or the appellate court do nothing to advance your client’s position; quite the contrary, a shrill and abusive tone is more likely to diminish the persuasive force of your brief and ultimately injure your client’s case.” [Rutter citation] This is especially true of attacks on the trial court. “Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 422.) Arguing, as appellants do, that the trial court ruled on the basis of “subjective, almost personal feelings about this case which were substituted by the trial court in this action for proper objective analysis and logic” places them right square in the middle of this dangerous territory."
And also, from fn. 11: "Vituperation is no substitute for facts backed up by citations to the record." Perhaps this should be added (as section 3549) to the Maxims of (Appellate) Jurisprudence near the end of (appropriately enough) the Civil Code. (Civ. Code secs. 3509 to 3548.)
Counsel Press is presenting an MCLE webcast on June 18 from noon to 1 p.m. Details here:
E-Filing and eBriefs in the California Court of Appeals & U.S. Court of Appeals

Tuesday, May 26, 2015

Diverse Trio to 2d DCA

Today's DJ has a number of appellate-related articles.

  • Governor Chooses Diverse Trio to 2nd District Court of Appeal: Governor Brown's appellate selections would come to bench from diverse political stripes. The article calls Elwood Lui, age 74 appointed to Div. 1, "a Republican litigator who is returning for a second term as an appellate justice" [after Gov. Brown appointed him back in 1981, where he served until 1987] ; Lamar Baker, age 37 to Div. 5, "a White House lawyer" from Gov. Brown's alma mater ; and John Segal, age 54 to Div. 7, "a judge on the [LASC] bench" since 2001. The article concludes: "During Brown's third term, from 2011 to 2015, he made 237 judicial appointments. The demographic breakdown: 38.4 percent women, 9.3 percent Asian, 11.4 percent black, 16 percent Hispanic and 59.5 percent white, according to figures released by his office."
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    Congrats & Cheers to the diverse trio!
  • FYI, here's the MetNews' report: Brown Names 74-Year Old, 37-Year Old to Court of Appeal
    Former Justice Elwood Lui Is Twice the Age of Obama Administration Lawyer Lamar W. Baker; Superior Court Judge John Segal, 54, Also Gets Gubernatorial Nod
  • State Appellate Justice Sets Retirement Date: Justice Patti Kitching will hang up her robes after 22 years on the 2nd District Bench. "She has not yet picked a retirement day but said it might be Oct. 5, the anniversary of her appointment by Gov. Pete Wilson."
  • MCLE: When a court learns of jury misconduct post-trial, by retired LASC judge Kathryne Ann Stoltz.

Friday, May 22, 2015

2d DCA Appointments!!!

Governor Brown Appoints Three Justices to the Second District Court of Appeal

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Elwood G. Lui to Division One, Lamar W. Baker to Division Five and John L. Segal to Division Seven of the Second District Court of Appeal.

Lui, 74, of Los Angeles, has been of counsel at Jones Day since 2014, where he was a partner from 1987 to 2013. Lui served as an associate justice at the Second District Court of Appeal from 1981 to 1987 and as a judge at the Los Angeles County Superior Court from 1980 to 1981 and at the Los Angeles Municipal Court from 1975 to 1980. He was a sole practitioner in 1975, an attorney at Mori and Katayama from 1971 to 1975 and served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 1969 to 1971. Lui earned a Master of Business Administration degree from the University of California, Los Angeles Graduate School of Business Administration, a Juris Doctor degree from the University of California, Los Angeles School of Law and a Bachelor of Science degree from the University of California, Los Angeles.

Lui fills the vacancy created by the elevation of Justice Frances Rothschild to presiding justice, Division One of the Second District Court of Appeal. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Kamala D. Harris and Senior Presiding Justice Paul Turner. Lui is a Republican.


Baker, 37, of Washington, D.C., served as special assistant to the President and associate counsel to the President at the White House from 2014 to 2015, where he served as associate counsel from 2013 to 2014. He served as a deputy assistant attorney general at the U.S. Department of Justice, Office of Legal Policy in Washington, D.C. from 2012 to 2013, where he was chief of staff from 2011 to 2012 and senior counsel from 2010 to 2011. Baker served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 2005 to 2010 and was an associate at Strumwasser and Woocher LLP from 2002 to 2005. He served as a law clerk for the Honorable Dorothy W. Nelson at the U.S. Court of Appeals for the Ninth Circuit from 2001 to 2002. He earned a Juris Doctor degree from Yale Law School and a Bachelor of Arts degree from Stanford University. Baker was born and raised in the San Francisco area. He is a member of the State Bar of California.

Baker fills the vacancy created by the retirement of Justice Orville A. Armstrong. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Kamala D. Harris and Senior Presiding Justice Paul Turner. Baker is a Democrat.

Segal, 54, of Los Angeles, has served as a judge at the Los Angeles County Superior Court since 2001. He was a partner at Mitchell, Silberberg and Knupp from 1995 to 2000, where he was an associate from 1988 to 1995. Segal served as a law clerk for the Honorable Robert S. Vance at the U.S. Court of Appeals for the Eleventh Circuit from 1987 to 1988. He earned a Juris Doctor degree from the University of Southern California Law School and a Bachelor of Arts degree from Williams College.

Segal fills the vacancy created by the retirement of Justice Frank Y. Jackson. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Kamala D. Harris and Senior Presiding Justice Paul Turner. Segal is a Democrat.

The compensation for each of these positions is $211,260.