Thursday, September 18, 2014

2d DCA pro tem updates / LACBA ACS Kick-Off meeting

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 John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until September 30, 2014
  • Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until September 30, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2014
  • Judge Allan J. Goodman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five beginning October 1 until November 30, 2014
  • Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until September 30, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six until September 30, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until October 31, 2014
LACBA's Appellate Courts Section holds it Kick-Off & State of the Court Meeting next Tuesday, 9/23/14 @ 4:30 in the Employees' Lounge at the 2d District Court of Appeal. No cost, no mcle. Come hear APJ Boren and Clerk Joseph Lane on the latest news and also hear about upcoming Section activities.

Also, see Recovering Post-Judgment Attorney Fees After 'McQueen', in today's Recorder by Audra Ibarra.

Wednesday, September 17, 2014

Busted for formatting tricks

"Objection! Leading!"

Yes, there are still courts that have page limits, not word counts. And yes, there are still lawyers that play formatting tricks to squeeze in extra text. And yes, they get in trouble, as in this order. (See Slate article here.)
     Finally, the Court must address the format of BP’s opposition memorandum. The briefing order allowed BP’s counsel to file a response of up to 35 pages, double-spaced. [cite]. This is 10 pages over the usual limit for response briefs. BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages.[fn.4]
     The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.
     Any future briefs using similar tactics will be struck.
 Be A Warning

And, Happy Constitution Day... click below and here.
Judiciary, New Citizens, Students Celebrate Constitution Day

A writ tale

Here's an interesting writ tale: Trial court makes an evidentiary ruling that is challenged by a writ petition, which points out how the ruling contradicts established law. An alternative writ issues. A hearing is held per Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250, fn. 10. At the hearing, the court recognizes it erred, but elects not to comply with the alternative writ, accepting real party's argument that real party should be allowed to pursue its arguments in the Court of Appeal. 2/5 says "no, no, no." Quotes below:
At the hearing on the alternative writ, respondent court admitted it had “erred in excluding [the] declaration” under decisions of the Court of Appeal and California Supreme Court, and summary judgment should have been granted. Respondent court elected not to comply with the alternative writ because it concluded there is no harm in allowing the plaintiff “to at least make the argument in the court of appeal . . . .” We issue a peremptory writ of mandate, holding that respondent court breached its obligation to follow binding appellate authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
* * *
Respondent court had an obligation to follow binding authority of the California Supreme Court and the California Court of Appeal. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Instead, respondent court deferred to Goranson’s suggestion that the court should not comply with the alternative writ because Goranson is the real party in interest, and he should be allowed to make his argument in a writ proceeding rather than appeal. Our alternative writ required respondent court to determine the legal issue presented in accordance with California law. The purported convenience of writ review to a party is not a component of the legal issue respondent court was directed to address. In any event, the asserted convenience of a party does not trump a trial court’s obligation to follow binding authority of California’s appellate courts.
Stay safe and follow instructions.

[For another lesson in following directions on remand, see here.]

Monday, September 15, 2014

New Calif. Appeal Bond Rules Correct Outdated Process

That's the title of a Law360 article last Thursday here by H&L's Tom Watson and Lisa Perrochet about AB 1856, which Gov. Brown signed recently governing deposits in lieu of appeal bonds. Now state and federal bonds and cashier's checks are expressly authorized for deposits.
These amendments enhance access to justice by expanding and improving mechanisms that allow litigants to stay execution proceedings while they seek appellate review of adverse money judgments, while also protecting the interest of judgment creditors by requiring adequate security for the payment of money judgments in the event they are affirmed on appeal.

AB 1856 was carried by Assembly Member Scott Wilk. It was sponsored by the Conference of California Bar Associations and supported by both the Appellate Courts Section of the Los Angeles County Bar Association and the California Appellate Law Group. The unopposed bill passed by consent in all legislative committees and it passed unanimously in both the Assembly and the Senate.

AB 1856 leaves intact the existing rules for posting an appeal bond — basically, a type of insurance policy that allows the judgment creditor to seek payment from the surety company that issued the bond, if the defendant doesn’t pay on the judgment. What AB 1856 changes are the statues governing the use of a deposit in lieu of an appeal bond. (See Code Civ. Proc., §§ 995.710 et seq.)
Who can say "bearer bond" yet NOT think of
the original Die Hard movie?!
Friday's Recorder featured Justice Beds' latest: Mourning the Loss of Germany's Longest Legal Term: Rindfleischetikettierungsüberwachungsaufgabenübertragungsgesetz.

Court of Appeal Analysis of Supreme Court reversals

The original symposium
Manchester Grand Hyatt San Diego

Many thanks to Mitch Abbott and his firm Richards Watson Gershon for hosting the Wine & Cheese (and desserts) Reception for Appellate Lawyers and Judges at the Annual Meeting! This is a great tradition -- and the wines are always amazing (this year: Caymus, Duckhorn, Ridge, Silver Oak to name a few).

Putting aside the State Bar Annual Meeting...
The DJ's been feeding appellate needs w/many good articles the past few days!

  • On Thursday, GSMR's Alana Rotter shared Maximize the Impact of Amicus Support.
  • On Friday, Emily Green got to work with Appellate Justices Get Mixed Results at State Supreme Court, which includes a chart showing reversals and affirmances by district and division. She concludes that this past year was a good one for 2/3's Justice Kitching, who affirmed four of her opinions. She contrasts this with Justices in the 6th District who had four reversals, to which Justice Rushing yawns "big deal." 
Permission granted to reproduce this chart
graciously provided by the Daily Journal.
  • Friday's DJ also featured "Law of the case -- a case in point," by the Reed Smith team of Jim Martin, Paula Mitchell and Anne Grignon, focusing on the recent Lummi Nation opinion. Anne recently also published Why You Need a Court Reporter to Set the Record Straight in Law360, which links to this useful chart showing which counties have reporters.
  • Today's DJ has JUSTICE Hoffstadt's latest article, Fourth Amendment Geometry.
  • Can't Touch This Equation

Supremes Theatrical performance a hit!

Who's got acting chops? Our Justices do!
On Friday morning at the State Bar Annual Meeting the Chief and Justices Baxter, Chin, Corrigan and Liu (joined by State Bar CEO Joe Dunn, ND Cal Judge Larry Burns, and "author" Richard Rahm) presented Chief Justice David S. Terry and Federalism. The Justices appeared in costume:

Not in costume, but also at the State Bar meeting were Justice Kennard (who received an award from the California Women Lawyers Association on Thursday night) and Justice Scalia, who presented with Bryan Garner on their book Reading Law: The Interpretation of Legal Texts.

Tino keynotes Bar Foundation event in LA on Thursday

In what is probably his first speaking appearance following his nomination, newly appointed Supreme Court Justice Mariano-Florentino Cuellar will be the keynote speaker at the California Bar Foundation's Scholarship & Diversity Award Ceremony on Thursday evening in LA.
To get your ticket, click here.

Scholarship & Award Ceremony Cocktail Reception

Wednesday, September 10, 2014

Big change or no change?

Next up: the Cantil-Sakauye high court -- that's the title of today's DJ article by GMSR's Kent Richland, which begins:
The California Supreme Court - identified in a 2008 study as the most influential state supreme court in the nation - is in the process of a major transformation. Assuming Gov. Jerry Brown makes an appointment to Justice Joyce Kennard's presently vacant seat in the next few months and the confirmation process takes its normal course, by the beginning of next year a majority of the justices will have come to the court after the 2011 retirement of former Chief Justice Ron George, three justices having been appointed by Brown. When that happens, the state Supreme Court indisputably will have become the Cantil-Sakauye court, not just in name but in composition as well.
What should we expect from this virtually brand new court? Does the change in personnel augur a major change in the court's direction? Should we anticipate a legal revolution, spurred by the presence of (at a minimum) two progressive former law professors on the court? 
The answer - at least on the civil side of the court's docket, and judged by the most recent cases - is probably not. 

The DJ's Top 100 insert also lists a few SoCal lawyers who publicly admit to doing appeals: Ted Boutrous, Elwood Lui, and Jeremy Rosen.

Wednesday, September 3, 2014

Sede Vacante at the California Supreme Court

Professors Gerry Uelman and Kyle Graham's annual supreme Court column in California Lawyer is here, Sede Vacante at the California Supreme Court: Two departures promise change at the state's highest court. Apart from the Latin lesson ("Latin for 'vacant seat,' sede vacante is most often used to describe the period when no pope is presiding in Rome."), the article discusses "Kennard's Legacy" (calling her "somewhat quirky and unpredictable") and "Baxter's Influence" (calling him the anchor of the "conservative wing" and "a courtly gentleman" wearing velvet gloves to conceal his "iron fist.")

The dynamic duo (Uelman and Graham, not Kennard and Baxter) also awarded Justice Corrigan their award for the best majority opinion of the year (Duran v. U.S. National Bank Assn.) and for the worst majority opinion (People v. Elmore). Best dissenting opinion goes to Justice Chin (Long Beach Police Officers Assoc. v. City of Long Beach), and worst dissenting opinion to Justice Liu (Loeffler v. Target Corp.). See pages 28-29 for their explanations.

Quirk of Appellate Law

Here's one for the next appellate specialization exam: When is it ok for an appellant to raise a new theory on appeal? Today's opinion in Ward Connerly v. State of California, explains:

This case involves two policy issues that are often viewed as controversial; (1) racial, ethnic, and gender preferences, and (2) the decennial redistricting process. But because this appeal turns on a counterintuitive quirk of California appellate law, we need not reach the merits.

By statute, “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.” (Code Civ. Proc., § 472c, subd. (a));1 see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746 [“The issue of leave to amend is always open”]; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 719-720 [overruling prior rule, even though § 472c as enacted in 1939 was prospective].)
Contrary to longstanding rules generally precluding a party from changing the theory of the case on appeal (see, e.g., Panopulos v. Maderis (1956) 47 Cal.2d 337, 340-341; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 879 (Richmond)), a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court “abused its discretion”(§ 472c, subd. (a)) in not granting leave to amend. The plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (Cooper); see People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 (Brown).)