Monday, October 26, 2020

Appealability case

Assume a party is ordered to arbitrate, but then refuses to participate in the arbitration and then moves the superior court to restore the case to the civil active list and set trial dates. If the court grants that motion, is it appealable? This 4/3 unpub here says yes. The order is "functionally equivalent" to an order denying a petition to compel arbitration, and so is appealable under CCP 1294(a).

Gov Newsom files amicus brief

Governor Newsom Files Historic Amicus Brief in Death Penalty Case, Arguing for Greater Protections Against Racial Bias in Jury Proceedings
Builds on Governor’s actions to end the death penalty in California and address systemic racism in the criminal justice system

Governor Gavin Newsom today filed an amicus brief in People v. McDaniel, a case before the California Supreme Court that involves issues of racial bias in jury deliberation and sentencing decisions. This filing marks the first time in California history that a sitting governor has filed an amicus brief calling attention to the unfair and uneven application of the death penalty, noting the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race. The brief argues that capital cases should require unanimity in the jury’s penalty verdict and proof beyond a reasonable doubt of disputed aggravating evidence.

A copy of the amicus brief can be found here.

[10/27 DJ story is Newsom is 1st Governor to file amicus brief in capital appeal -- "For the first time in state history a sitting governor has argued in court filings that the death penalty is unfair and unevenly applied to people of color. ... Newsom's brief was filed by Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley, and Berkeley School of Law Dean Erwin Chemerinsky."]

Saturday, October 24, 2020

New ABA practice guide

This Summer the ABA's Tort Trial and Insurance Practice Section published a new book on appellate practice, titled Preserving Appellate Complaints in Federal Court, which appears to be about record preservation. This title strikes the appellate-ear as odd: Do appellate lawyers call issues to be raised on appeal "complaints"? No, that doesn't sound right at all. Here's a description from the book's webpage:

For civil trial and civil appellate lawyers who practice in federal court, this book sets out the rules for preserving complaints on appeal. Authors focus on opinions from United States courts of appeals with citations from all circuits. Appendices include an invaluable checklist of preservation items with tools to help make additional and jurisdiction-specific research fast and convenient.
Trial lawyers often must make split-second decisions and judgment calls that do not follow all the procedural steps required to ensure presentation of an issue on appeal. Focusing on the preservation of appellate complaints in federal trial courts, this book helps civil trial and civil appellate lawyers take the right steps to ensure preservation of appellate complaints.

This guide sets out the rules for preserving complaints on appeal, beginning with a general approach to preservation rules. Chapters address pre-trial, trial, and post-trial preservation issues, as well as handling objections to a magistrate's ruling or recommendation. The book's focus on opinions from United States courts of appeals with citations from all circuits. Invaluable appendices make this an essential volume for lawyers who need to preserve complaints on appeal.

"Got Amici?"

 That's the title of a Zoom webinar to be presented on October 26 at noon by the San Diego County Bar Assn's Appellate Practice Section. Details here:

Presented by:
The Appellate Practice Section of the San Diego County Bar Association 

This program is worth 1.0 MCLE Credit & 1.0 Specialization Credit in Appellate Practice 

Carmela Simoncini, Esq., Adjunct Professor, Thomas Jefferson School of Law, Lead Appellate Court Attorney, Fourth District Court of Appeal, Division Two
Eugene Volokh, Esq., Distinguished Professor at Law, UCLA

Moderated by:
Johanna Schiavoni, Esq., Appellate Attorney, Certified Appellate Specialist, CA Board of Legal Specialization,  & President, San Diego County Bar Association 

 Join us for an insightful discussion on amicus participation in appellate practice. This program will address the court’s receptiveness to amicus briefs and in what kinds of cases amicus participation is helpful. The program will also cover some of the fundamentals of amicus briefing, what the briefs should contribute, and strategic considerations of how it can be most impactful.

Friday, October 23, 2020

CLA program "From Justice Eileen C. Moore: Race Results"

On October 29 at noon, CLA's Racial Justice Committee presents "From Justice Eileen C. Moore: Race Results"" 

Justice Eileen Moore will compare and contrast U.S. Supreme Court cases with Hollywood movies, discussing how each institution has treated African Americans throughout the decades. Which body has been more progressive, the conservative court or the liberal movie industry, may surprise you. During the presentation, Justice Moore will show numerous film clips, placing them in context with supreme court cases of the time.
This webinar will take place from 12:00 pm - 1:30 pm. Register here.

For an interesting dissent in 2/6, see here, which is also covered in the MetNews as Reversal of Conviction Draws Dissent From Incensed Jurist.

9th Cir. article

Today's Recorder has The 9th Circuit's En Banc Review Process Foretells a Conservative Power Shift -- In the last four years, President Donald Trump has managed to stack the Ninth Circuit with 10 appointees, but Trump’s judicial legacy also can be found in which jurists are dissenting to en banc rehearing denials.

Federal court scholar Arthur Hellman of the University of Pittsburgh School of Law says these dissents largely hail from the conservative faction of the court. From January 2018 through October 2020, judges have dissented 31 times—two of which were identical dissents in companion cases. Only three of the 31 dissents were entirely or primarily from judges appointed by Democratic presidents.

“It tells us if President Trump is reelected and appoints a few more judges to the Ninth Circuit, then we will see a shift in the ideological direction of the court,” he said. “I don’t think that has happened up to this point.”

The Democrats still have their 16-13 majority on the court, and most of the time, that means the conservatives will lose the en banc votes, he said. But if Trump appoints more conservative judges, that could change.

Thursday, October 22, 2020

Provisional licensing

The Recorder reports: California Supreme Court Approves Provisional License Program for Law Grads
The Justices approved Rule of Court 9.49, which allows anyone who became, or will become, eligible to sit for the bar exam between Dec. 1, 2019 and Dec. 31, 2020 to temporarily practice under the supervision of a licensed attorney until June 21, 2022.

Clerk settles lawsuit against Justice

 The Daily News reports Clerk settles sexual harassment lawsuit against former L.A.-based appeals court judge. The article begins like this:

A clerk with the 2nd District Court of Appeal in Los Angeles settled her lawsuit alleging a former justice sexually harassed her for five years before he was removed from the bench in June for a history of such misconduct with multiple women. Lawyers for Trisha Velez filed court papers Sept. 29 with Los Angeles Superior Court Judge Michelle Williams Court stating that her lawsuit against the state of California and ex-Justice Jeffrey Johnson was resolved. No terms were divulged.

[10/23 update: Today's DJ has Defrocked Justice and State Settle Court Worker's Suit, which notes that notices of settlement were filed Sept. 29 and Oct. 13. The article concludes: "In August, Johnson filed an appeal to the California Supreme Court challenging his removal. The petition signed by Costa Mesa-based attorney Paul S. Meyer stated "key factual findings were unsupported by clear and convincing evidence." The commission submitted its answer on Oct. 13 in Johnson v. Commission on Judicial Performance, S264179 (State S. Ct., filed Aug. 28, 2020)."]

Wednesday, October 21, 2020

The Chief presents "The Robe: One Size Does Not Fit All"

Next Thursday, October 29, from 10:10 to 11 a.m., The National Judicial College presents the Justice Robert H. Jackson Lecture: "The Robe: One Size Does Not Fit All" with California Chief Justice Tani Gorre Cantil-Sakauye. The presentation will be delivered online via Webex. Join by clicking here.

The Justice Jackson Lecture Series is named for Supreme Court Justice Robert Houghwout Jackson, who also served as America’s chief prosecutor in the Nuremberg War Trials. The series is held in conjunction with the College’s General Jurisdiction and Special Courts: Advanced courses. Previous Justice Jackson Lecturers include Byron White, Anthony Kennedy, Sandra Day O’Connor, George H.W. Bush, William French Smith, Edwin Meese, Erwin Chemerinsky and Judy Perry Martinez.

OSC v. Alternative Writ discussion

Yesterday 1/5 published this opinion here, granting a peremptory writ of mandate, noting in the intro:

We also take the opportunity to clarify for trial courts that an order to show cause, unlike an alternative writ, does not invite the trial court to change the order challenged by the writ petition. In addition, we reiterate that a judge of the superior court generally may not overturn the order of another judge unless the record shows the other judge is unavailable.

And on the federal side of things, today's DJ has H&L's John Querio and Lacey Estudillo discussion of BP PLC v. Mayor & City of Council of Baltimore in Court to weigh appellate jurisdiction under removal statutes:

This term, the U.S. Supreme Court will address whether 28 U.S.C. Section 1447(d) permits a federal court of appeals to review any issue encompassed in a district court's remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes.

Tapped out? Check out this interesting 4/2 published opinion here which begins:

In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation.
Also of interest is this 4/3 unpub here, which the MetNews covers in Court of Appeal Take Unusual Course of Issuing Apology: Bedsworth says Counsel Should Not Have Been Asked for Further Briefing.

Friday, October 16, 2020

Award for Justice Moore!

Congratulations to 4/3's Justice Eileen Moore for being honored with a 2020 CalVet Trailblazer Award from CalVet Women Veterans Affairs. The award will be presented virtually at the annual 2020 Women Veterans Reception on October 21 at 6 p.m.

[The DJ's article on Tuesday was Justice Eileen Moore honored as trailblazer for work with fellow veterans.]

Thursday, October 15, 2020

Reminder re coming 9th Cir. ER rule

The Ninth Circuit has adopted new rules effective December 1, 2020, including significant revisions to rules governing excerpts of record and oversized briefs. Click here to see new Excerpts of Record Rule 30-1 and redlined versions of all other rule revisions. 

  • Parties shall cite to the initial Excerpts of Record in the following format: [volume number]-ER-[page number(s)]. If only one volume exists, the volume number shall be omitted. Multi-volume examples: 1-ER-12, 4-ER-874–76. Single-volume example: ER-26–32. The same format applies to Supplemental Excerpts of Record except that "SER" applies rather than "ER." The same format applies to Further Excerpts of Record except that "FER" applies rather than "ER." 

Cal Supreme Court during the pandemic

Today's DJ has Kirk Jenkins' The California Supreme Court during a pandemic: by the numbers, analyzing the court's operations during these unusual times. His findings?

  • "seven months into the pandemic, the court appears to have adapted to the emergency quite well"
  • In 2018, the average time from filing to grant for decided civil cases was 58.15 days. In 2019, it was 54.38 days. Reviewing the results of all the Supreme Court's conferences since the shutdown began, ... the court has granted review in 11 civil cases. Nine civil cases have received grant-and-hold orders, and eight received grant-and-transfers. Although grants on both the civil and criminal sides are comparatively small data sets, there is some indication that grant orders have slowed down a bit. The 11 civil grants have averaged 62.27 days from filing of the petition to the order -- a week longer than the pre-pandemic 2020 average.
  • There is evidence that the processing of the Supreme Court's merits cases has sped up since the lockdown began. For 2020 civil cases argued before the emergency declaration, the average time from the close of briefing to oral argument was 357.73 days. For civil cases argued post-declaration, the average time was more than three weeks shorter -- 333.94 days.
  • there is no clear trend in the data for the opinion-writing period -- the average days from oral argument to decision. On the civil side, the wait for a decision has increased just a bit since the lockdown -- 79.45 days pre-lockdown, 80.88 days post-lockdown.
  • In 2019, 85.71% of civil decisions and 93.94% of criminal decisions were unanimous. In 2018, 75.61% of civil cases ... were. All of the Court's 2020 civil cases which were argued before March 13 were unanimous decisions. Only 76.47% of the civil cases argued after March 13 have been unanimous decisions.
  • For civil cases argued before March 13, the average majority opinion was 27.82 pages. Since March 13, the average has been 36.06 pages.
  • on the civil side, there has been a significant increase in the filing of additional opinions. For civil cases argued before March 13, only 18.18% drew additional opinions (either concurrences or dissents). Since the lockdown began, 47.06% of cases have drawn additional opinions.
Because attorney Cyrus Sanai is contending the retaliation occurred under the guise of an administrative agency, Kozinski, the council and several current and former council members should not be able to get the case dismissed under either judicial or quasi-judicial immunity or because federal courts purportedly have no jurisdiction to review decisions by the Judicial Council, the lawyer told the Northern District of California on Tuesday.

Tuesday, October 13, 2020

Jenkins hearing set for Nov. 10

Notice here:
The Commission on Judicial Appointments scheduled a public hearing for Nov. 10 beginning at 1 p.m. in the Supreme Court Courtroom—350 McAllister Street in San Francisco—to consider the nomination by Governor Gavin Newsom of Justice Martin J. Jenkins (Ret.) to the Supreme Court of California.

Seating in the courtroom will be limited—with some overflow seating also available in the auditorium—and mask requirements enforced to comply with state and local health directives. The hearing will be webcast live on the California Courts Newsroom.

The state Constitution specifies that a gubernatorial appointment to the Supreme Court is effective when confirmed by the Commission on Judicial Appointments.

The commission members who will consider the appointment are Chief Justice of California Tani G. Cantil-Sakauye (Chair), California Attorney General Xavier Becerra, and senior Presiding Justice of the state Court of Appeal J. Anthony Kline.

Persons who wish to testify or comment on the appointment must submit their information for receipt by the commission no later than 5 p.m. on Nov. 3. Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based.

Due to current health conditions, submissions via email to are strongly encouraged. Hard copies are not required.

If you would like to mail your request, you may also reach the commission at:

Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission

Yo ho ho

 4/3 publishes this case here today, which begins: 

A case from 1836 described seamen as “‘a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily surprised.’ [Citation.]” (Brown v. Lull (CC Mass. 1836) 4 F. Cas. 407, 409, cited in Dutra Grp. v. Batterton __ U.S. __ [139 S.Ct. 2275, 2279], fn. 1.) Herman Melville first went to sea in 1838 so these were the shipmates he sailed with and later wrote about in Moby Dick; courts of his day took a solicitous approach toward the problems of the hardy souls engaged in seafaring commerce.

But admiralty law has evolved since the days when it was entirely judgemade and mariners were practically wards of the court. Since the early 20th century, when Congress began legislating in this area, the role of the courts has changed from leader to follower, from promulgation to interpretation. As the United States Supreme Court has explained in its most recent opinion on the matter, the courts must now leave the development of novel claims and remedies to the legislatures. For that reason, we must affirm the judgment in this case.

So obviously, this case is about damages from an accident while filming a webisode. Or maybe not so obvious. But it is obvious that this is J. Beds!

SCOTUS telephonicus thru December

SCOTUS Press Release here:

The Court will hear all oral arguments scheduled for the November and December sessions by telephone conference, following the same format used for the October teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the January argument session.

The Court will provide a live audio feed of the November and December oral arguments to a media pool as it did for the October arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.

DJ profiles retired PJ Jones

 Today's DJ has Trailblazing appellate justice recalls when Ginsburg supported her dissenting opinion: 1st District Court of Appeal Justice Barbara J.R. Jones retired Sept. 30 after 28 years on the bench

  • More than a decade ago, Ginsburg wrote a majority opinion siding with Jones, who had written a dissent declaring her opinion that portions of California's determinate sentencing law were unconstitutional. Cunningham v. California, 549 U.S. 270 (2007).
  • A New Jersey native, she graduated from Duke University with a degree in history in 1965 and graduated from the University of San Francisco School of Law in 1974. She remained in the Bay Area and worked for several firms until she was appointed to the San Francisco County Superior Court by Gov. Pete Wilson in 1992. Four years later, Wilson appointed her to the Court of Appeal. Jones was named presiding justice in 1998.
  • Jones said she still has a few pending matters to address and plans to continue serving on the advisory committee for the Code of Judicial Ethics, a position she was given by the California Supreme Court in 1995.
  • "She was the first woman to be appointed a presiding justice in the First District and she led her division with a passion for justice and with a commitment to the fair and prompt resolution of cases," [APJ] Humes wrote in an email. "She was an inspiration not only to women and lawyers, but also to her colleagues and friends on the court."

Monday, October 12, 2020

Moot Court Judges Needed!

On Friday, November 6, and Saturday, November 7, Loyola Law School will be hosting the Regional rounds of the 71st annual National Moot Court Competition using zoom and “virtual courtrooms.”  The competition features law school student advocates from California law schools. As the regional sponsor, Loyola Law School must provide three-judge panels for regional rounds of virtual oral arguments. Each argument will last approximately 1 hour (30 minutes per side) and will include an opportunity to provide the student competitors with feedback. The judges will be provided with a copy of the problem and a bench memorandum. (The problem presents two issues: standing for civil RICO matter and qualified immunity for a state government official’s conduct conducting a warrantless search. No particular expertise in these areas of law is required of the judges; all required of the judges is a willingness to observe and critique excellent student advocates.) Also, because the event is entirely virtual, you can participate without coming to campus. If you are available to serve as a judge either Friday 11/6 (argument sessions are at 6 pm and 8:30 pm) or on Saturday 11/7 (argument sessions at 9:30 am and 1 pm), please contact Professor Rebecca Delfino:

Friday, October 9, 2020

PJ Barbara Jones retires

The Justices webpage for the First District shows a vacancy for the Division Five PJ spot formerly held by Justice Barbara Jones who retired last month. Her profile page now reads:

Justice Jones was confirmed as Presiding Justice of Division 5 of the First District, Court of Appeal in September 1998, the first woman to serve as a presiding justice in the First District. In December 1996, she was confirmed as Associate Justice of Division 5. Justice Jones retired from the Court of Appeal in September 2020.


Wednesday, October 7, 2020

Supreme SoCal connection?

 At the Lectern reports here on this LA Times interview here of Justice Jenkins, and notes:

"he will soon be the second Southern Californian on the court; he and his partner have bought a house in Los Angeles County and will move there once Jenkins’s East Bay home sells. Justice Joshua Groban also lives in Los Angeles."

Justice Kruger, of course, also has SoCal roots.