Tuesday, May 22, 2018

Should facts color legal analysis?

Image result for grand theft avocadoToday's DJ features Divorcing the Message from the Messenger, in which 2/2's Justice Hoffstadt asks: "Is it possible to ignore the messenger, which in this context means the facts about the litigant pressing a claim? And if so, is it desirable to do so? In other words, does consideration of the facts add a depth and humanness to the resolution of legal questions, or does it instead lend credence to the aphorism that "bad facts make bad law"?" (There's also a great cite to 'grand theft avocado' -- P.C. sec. 487(b)(1)(A), cf. PC 487(d)(1).)

And yesterday's DJ article titled Appellate Passion profiles SoCal Appellate Specialist Jeff Ehrlich, who "has helped set precedent, but he's proudest of getting one man out of prison."

Also today, 4/3 issues a public service announcement of sorts, in this unpub'd decision here:
We do not condone the failure of [Appellant's] counsel to ensure the briefs’ compliance with the California Rules of Court. An experienced appellate attorney knows that, especially when the issues on appeal are fact-intensive, it is in the appealing party’s best interest to set forth the facts, with citations to the record, clearly and specifically. And we express our displeasure with the repeated, unfounded attacks on the integrity of the trial court and [Respondent's]counsel that permeate [Appellant's] briefs, and especially [Appellant's] opposition to the sanctions motion. However, we do not believe that sanctions under California Rules of Court, rule 8.276 are appropriate in addition to any attorney fees that may be awarded by the trial court. The motion for sanctions is denied.
(If you like this kind of thing, then you'll enjoy footnote 2 here.)
(Along these same lines, is it ok not to provide record citations to undisputed facts? Uh, no, as set forth in footnote 1, here: "The parties’ briefs represent that this fact and others are uncontested, but they ignore, wholesale, the requirement in our rules that a brief “[s]upport any reference to a matter in the record by a citation to the volume and page number . . . where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) This rule admits to no exception for facts that are uncontested.")

Monday, May 21, 2018

Program w/the Chief & Justice Corrigan

On Monday, June 4 a consortium of distaff bar groups (CWL, WLALA, BWLLA, LLBA, etc.) is presenting A Conversation with Chief Justice Tani Cantil-Sakauye and Associate Justice Carol Corrigan at the venerable Taix restaurant on Sunset at 6 p.m. "We have all been there: Dealing with discrimination and mistreatment in the legal profession."

Want to watch the Chief give the commencement address at UC David School of law last Saturday? You can do so here (remarks begin at about 1:20).
Or how about watching Justice Liu give the commencement address at Yale? Ok, that's here (remarks begin at about 1:52) or you could just read it here.

And from the Litigation Section of the CLA:

Learn how Associate Justice Kathryn Werdegar went from a one-room school house to the California Supreme Court.

Read the complete California Litigation Review interview by Jessica Barclay-Strobel where the Justice shares her thoughts on arbitration, preemption, and the importance of being a good study buddy. Read it HERE.

2d DCA pro tem update

The following are currently sitting on assignment:
  • Judge Laura A. Matz of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until June 30, 2018
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2018
  • Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2018
  • Judge Gary I. Micon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four beginning June 1 until July 31, 2018
  • Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until July 31, 2018
  • Judge Curtis A. Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until July 31, 2018
  • Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2018
  • Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning June 1 until July 31, 2018
  • Judge James Edward Rogan of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2018
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until July 31, 2018

4/1 lowers the sanctions boom!

Appellate catastrophe in this unpub from 4/1 today here!
Choice quotes:

    Image result for pay up
  • This appeal is so utterly devoid of merit as to be frivolous.
  • Here, because of the lack of an adequate record for demonstrating prejudicial error, a reasonable attorney could not possibly have expected this appeal to succeed.
  • Moreover, not only are factual assertions in [Appellant's] brief unsupported by the record, but he also misrepresents key facts.
  • In addition to distorting the factual basis for the judgment, [Appellant's] brief also cites no legal authorities. None. Not a single case, statute, or secondary source. No reasonable attorney could believe that an opening brief citing no facts from the record and no law could possibly succeed.
  • Sanctions are also warranted based on [Appellant's] attorney's conduct with respect to oral argument in this court.
Outcome: Sanctions jointly and severally imposed against counsel and client for $14,334 payable to respondent and $1,700 payable to the Court, plus an extra $600 against counsel alone. And, of course, counsel is to send a copy of the opinion to the State Bar.

Friday, May 18, 2018

Legal Short Fiction contest

Image result for writing under deadlineYou've got two weeks to submit your 5,000 word short story (which illuminates the role of law or lawyers in society) in the 2018 ABA Journal/Ross Writing Contest for Legal Short Fiction. Details here.

ADR's final frontier: Appellate Mediation

Image result for let's make a dealToday's DJ offers The last frontier of ADR: appellate mediation, by 1/2's retired Justice Nace Ruvolo, who's now with JAMS. He makes the following points:


  • The latest Court Statistics Report (2017) published by the California Judicial Council reveals what many laboring through the intermediate state appellate process already experience: The median time for appeals from notice of appeal to a filed opinion is 842 days with a range from 622 to more than 1,200 days. Ironically, like the trial delays of the 1980s and 1990s that drove litigants and lawyers to erect alternative dispute resolution processes for lower court cases, so too appellate delay is contributing to the momentum behind appellate mediation's growth.
  • Compounding the impact of appellate delay is the unique reality that an appellant who appeals from an adverse monetary judgment will have to pay 10 percent annualized post-judgment interest if the judgment is affirmed. Thus, the time value of the judgment itself becomes relevant in comparing the post-judgment interest rate to the rate of investment return available during the pendency of the appeal, particularly when the process will not be completed for two to four years.
  • As significant to the success of appellate mediation as any of the above factors is the relatively high reversal rates for civil appeals generally. For example, the most recent Judicial Council annual report reveals reversal rates for civil appeals in 2013, 2014, and 2015 at 30 percent with another 10 percent of judgments modified. These reversal rates are consistent with my own experience at the 1st District Court of Appeal over more than two decades.
  • Similar to the statistical conclusions reached in the 1st District, the 3rd discovered that, in descending order, the settlement rates were highest for appeals from court trial verdicts, followed by jury trial judgments, and then motions for summary judgment. The lowest rate was in appeals from judgments entered after demurrer.
  • Examining settlement rates by area of substantive law involved, both courts have found that probate and family law appeals, which almost always involve the practicality of "wasting assets," and which often arrive at the appellate level with the parties emotionally exhausted, enjoy the highest settlement rates.
  • Speaking of retired appellate judges, what's Judge Posner up to? Well, see: Posner brief accuses judge of laziness for copy-and-paste order

Paid your CBA dues?

Have you paid your "California Bar Association" dues?
Image result for phishing scams
Certainly hope not, because there's no such entity!
Yesterday, both the State Bar of California and the California Lawyers Association sent out alerts warning attorneys about a phishing scam to trick them into paying an invoice from the "State Bar Association of California." (See Law360 story: Calif. Bar Warns Attys Of Fee Phishing Scam.)
Even when we had a unified Bar, lawyers were often confused about whether there was such an entity, and if you check various web-bios, you'll probably find lawyers who mistakenly claim that they are members of the "California Bar Association."

So, to be clear: If you're a licensed lawyer in California, you're licensed/regulated/disciplined by the State Bar of California. You need to pay annual dues to the State Bar to keep your license current, just like you need to pay the DMV periodically to keep your drivers license. You're not really a "member" of the State Bar, because being a member implies it's a voluntary "membership" and that it's in "association." Rather, you're a "licensee" of the State Bar. Until 2018, when we had a unified State Bar, it also used to do things 'for' lawyers, such as present MCLE programs at an annual meeting. But now the State Bar no longer does that sort of stuff. After all, the State Bar's primary role is to protect the public from lawyers, not to protect of the interests of lawyers. For that you need to join the California Lawyers Association, which is the statewide organization that exists to serve and benefit lawyers.

Got it? Spread the word. It's frankly embarrassing that most lawyers have no clue about these things.


And speaking of the CLA, the Litigation Section's May 2018 Litigation Update is now available here. Just another fine example of lawyers and judges (Thanks, Justice Moore!) continuing to serve the bar.

Thursday, May 17, 2018

History made in the 6th DCA

First all-female panel hears oral argument in San Jose
The Sixth District Court of Appeal’s first all-female panel of appointed justices heard oral arguments yesterday [May 15, 2018] in four cases.

From left to right: Justice Patricia Bamattre-Manoukian, Presiding Justice Mary J. Greenwood, and Justice Adrienne M. Grover were on the bench for the historic day.

Beds Bemoans our Official State Whatevers



Today's Recorder offers Bedsworth: Augustynolophus Morrisi: "Government Code Section 425.7 (a) designates Augustynolophus morrisi as the official California state dinosaur. Yep. That’s what it says. Official California state dinosaur." Beds takes a delightful romp through the Government Code to point out a number of our State's stuff: "This whole Official California State Whatchamacallit thing is older than Augie—or at least Augie’s discovery. The Government Code is chockablock with goofy officialdom, legislated over decades." But his more serious point is that "the Legislature doesn’t seem to appreciate the fact that adding meaningless laws not only adds clutter to our already cluttered statutory edifice, but reduces the time available to add the meaningful laws."
Image result for california dogface butterfly
Can you see the dogface on each wing?
You wanna know why you have 53 linear feet of annotated codes in your office? You wanna know why it takes a forklift and two union members to pick up the Government Code? Because it’s full of stuff like, “The California Dogface Butterfly (Zerene eurydice) is the official state insect,” (Gov. Code Section 424.5) that’s why.

Anti-SLAPP law continues to cause headaches for 9th Circuit

That's the top story in today's DJ about this opinion here, affirming a district court's denial of an anti-SLAPP motion against a case by Planned Parenthood. It's an interesting case. But where it really gets interesting is the special concurring opinion by Judge Gould (joined by Judge Murguia) urging the 9th Circuit to review en banc whether anti-SLAPP rulings should be reviewable by interlocutory appeal. The DJ points out that "Gould himself sat on a 2003 panel that first adopted the interlocutory appeal rule for anti-SLAPP motions, joining a majority opinion written by Judge Marsha S. Berzon that permitted the procedure. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)." In the past, several 9th Circuit judges have expressed the view that immediate appeals should not be allowed (e.g., Kozinski, Paez, Watford, Bea).

Image result for judge gould
"I have since receded from that opinion because I now believe the interlocutory appeal of this issue incorrect, potentially conflicts with federal procedural rules, and burdens the federal courts with unneeded interlocutory appeals," Gould wrote, adding district court certification of an appeal should be required for anti-SLAPP denials.

He added further that 9th Circuit precedent allowing review of anti-SLAPP denials, but not grants, was "absurd." Gould also said that anti-SLAPP rulings were not collateral orders, rulings that "resolve claims separable from the action."

Law360's article on the case is 9th Circ. Clarifies Anti-SLAPP Law In Planned Parenthood Row.

Also of note, this published opinion from 2/7 that starts out with a wonderfully Frosty intro: "Good fences make good neighbors. Unless they obstruct an easement." (Full poem here.) (See also Ruebe v. Parsa, 2015 WL 67039 [pointing out Frost's California roots].)

Tuesday, May 15, 2018

Names for the 9th

Today's DJ offers California Senators Want Koh, Guilford and Feldman for 9th Circuit Openings: The White House’s efforts to fill a raft of vacancies on the 9th U.S. Circuit Court of Appeals have hit a roadblock in California, where the state’s two Democratic senators appear ready to put up a fight over potential nominees. The article explains that Senators "Dianne Feinstein and Kamala Harris sent the names of U.S. District Judges Lucy H. Koh of San Jose and Andrew J. Guilford of Santa Ana, and securities and appellate lawyer Boris Feldman, a partner at Wilson Sonsini Goodrich & Rosati, to the White House for consideration as nominees to the 9th Circuit, according to a source familiar with the nomination process." But that the White House had a different slate: "Daniel Aaron Bress, a partner at Kirkland & Ellis LLP in Washington, D.C., Daniel P. Collins, a partner at Munger, Tolles & Olson LLP in Los Angeles, Kenneth K. Lee, a partner at Jenner & Block in Los Angeles, Judge James E. Rogan, the former congressman who sits on the Orange County Superior Court, and Jeremy Rosen, a partner at Horvitz & Levy LLP in Burbank."

Monday, May 14, 2018

4/1 hears arguments at Brawley High School

PJ McConnell at Brawley HS.
Earlier this month 4/1 heard arguments at Brawly Union High School in Imperial County. Details here. Over in the 2d, 2/5 hosted students on May 7 from Woodrow Wilson High School (which has a Law Magnet Program) and Santa Ana High School's Judge Eliazbeth G. Macias Legal Studies Academy as part of the ACE program.

2d DCA pro tem update

The following are currently sitting on assignment:
  • Judge Laura A. Matz of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until June 30, 2018
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2018
  • Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2018
  • Judge Gary I. Micon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four beginning June 1 until July 31, 2018
  • Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until June 30, 2018
  • Judge Curtis A. Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until July 31, 2018
  • Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2018
  • Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning June 1 until July 31, 2018
  • Judge James Edward Rogan of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2018
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until July 31, 2018

Tuesday, May 8, 2018

9th Cir. News & Views

Today's DJ reports Grassley moves forward with 9th Circuit nominee, despite lack of support from home state senators -- Trump's first nominee to the 9th U.S. Circuit Court of Appeals, who lacks the support of his home state senators, will get a hearing before the Senate Judiciary Committee this week, indicating a possible change in the committee chairman’s “blue slip” policy. "The Senate Judiciary Committee will hold a hearing Wednesday on the nomination of Assistant U.S. Attorney Ryan Bounds of Oregon to the 9th U.S. Circuit Court of Appeals." "What this means for circuit nominations for the three open California seats on the court is unclear."

Law360's Expert Analysis Series, Judging A Book (i.e., judges writing book reviews), Judge Marsha Berzon Reviews 'We The Corporations'


Winkler’s tome — the book is nearly 400 pages long, but is eminently readable, indeed charming in places — has two major themes. The first is that there a useful analogy — although “no moral equivalency” — between the movements for civil rights and liberties by racial minorities, women and gays, and “the corporate rights movement,” a targeted, strategic effort by corporations to attain the same — indeed, at times greater — constitutional rights to those afforded individuals by our Constitution.
I found Winkler’s second theme considerably more thought-provoking and persuasive than his analogy to other civil rights movements, although, once again, a bit too neatly packaged. That thesis is that “corporate personhood has played only a small role in the expansion of constitutional rights to corporations,” with that version of the corporate form’s legal significance most favored by justices seeking to curb corporate rights rather than expand them.
She concludes: "We the Corporations is both a good read and an important contribution to legal history. I hope my future law clerks read and relish it."

Monday, May 7, 2018

Today's DJ articles

PJ Gilbert's column this month is Still Not My Vote: We in the judiciary and the legal profession must inform the public how an independent judiciary is vital to our democracy. He concludes: "All judicial decisions are and should be open to both criticism... and I hope praise once in a while. But however one might argue about the merits of a lawful judicial decision, it should not make the judge who made that decision subject to recall. As you can tell from the foregoing, the consequences are inimical to an independent judiciary."

The Moskovitz on Appeals column is Should lawyers 'make up' stories? and discusses some philosophical aspects of storytelling in the context of an established record of facts.

Cal Bar News

Today's Recorder has No Bar Dues Hike Expected, but Here are Some Changes You'd See: Calling yourself a California bar "member" would be a thing of the past.
  • Bar dues are unlikely to increase for California lawyers in 2019 despite a push by state bar leaders to raise them.
  • Recently drafted annual bar dues legislation, scheduled for its first policy committee review on Tuesday, would keep the tab for active members at $390. Bar leaders had sought more revenue for disciplinary work and employee costs.
  • Assemblyman Mark Stone, D-Scotts Valley, whose judiciary committee is carrying the dues legislation this year, told The Recorder in March that he was hoping to pass a largely status quo bill that would allow the substantial changes enacted by the Legislature last year to take effect.

The bill does propose some changes to bar operations:
·         It asks the bar to develop a rule that would allow lawyers to receive continuing legal education credit for certain pro bono work. The program would supplant pending legislation that would require attorneys to provide 25 hours of free legal services each year or pay a $500 in-lieu fee to the state’s legal aid program. The 2019 bar bill would also track the amount of pro bono work generated by the rule.
·         California lawyers would be called “licensees” instead of bar “members.” Dues would become fees. The changes are keeping in line with legislative efforts to recast the bar as a public oversight agency instead of a professional advocacy organization. [Note: For professional advocacy and Section activities serving lawyers, you now need to join as a "member" of the new California Lawyers Association!]
·         It requires the bar to develop a plan to increase diversity in the legal profession. The review may include analyzing the impact of California’s high bar exam pass score, the bill says.
·         It would make it easier for the bar to place a lawyer on inactive status for wrongdoing.

9th Cir. e-filing down May 26-27

CM/ECF in the 9th Circuit Court of Appeals will be unavailable from Saturday May 26, 2018 at
08:00 AM PDT until Sunday May 27, 2018 at 8:00 PM PDT for a major system upgrade.
Image result for major system upgradeYou will not be able to file any documents electronically or view the Ninth Circuit's docket during this time.  If you have an after hours emergency during this time, call the after hours emergency line at (415) 355-8000 and the duty attorney will assist you.

Also of note: the Bar Assn of SF presents Lunch with the Justices of the First District, May 31.

Friday, May 4, 2018

The 9th's Bad Rap

In Heavy Caseload to Blame for Ninth Circuit's Bad Rap, Bloomberg Law debunks the court's critics:
Image result for bad rap
  • a Bloomberg Law analysis of court data shows that the appeals court has a better record than several of its sister circuits.
  • When one considers the total number of cases the Ninth Circuit hears, and focuses on the percentage of those cases that are reversed by the Supreme Court-seven circuits actually have the same or worse records.
  • Over the last seven terms, the Ninth Circuit has been reversed 108 times, which is more than any other circuit, according to SCOTUSblog statistics. The second most reversed circuit is the Fifth, with 41 reversals. But that’s not the whole story.
  • The Ninth Circuit is by far the largest of the 13 federal circuits, hearing about one in every five federal appeals.
  • Given its size and the Supreme Court’s propensity for overturning cases, it’s no surprise that the Ninth Circuit regularly has the highest number of reversals for any given term
  • Although the Ninth Circuit has the most raw number of reversals, the Sixth Circuit actually has the highest rate of reversal-percent of cases reversed versus affirmed-for cases actually considered by the Supreme Court. The Ninth Circuit is still among the worst, with a reversal rate of 82 percent. But the Sixth Circuit’s rate is 87 percent.
  • The better way to analyze the circuit’s records is to compare the total number of cases heard by circuit to the number of times the Supreme Court reversed that circuit -- Under that model, the circuits with the worst records are the D.C. and Federal Circuits.
  • But:The unique dockets of the D.C. and Federal circuits suggest that they should be left out of the equation. If you do that, the circuits with the “worst” records are the First and the Tenth --even though those circuits have some of the lowest raw numbers of cases overturned.
Also of note, Bryan Garner's Booking the Dumpster: The tragedy of 'deaccessioning' books from university libraries

And the ABA offers Lawyer Population 15% higher than 10 years ago:

  • The number of active attorneys in the United States has increased by 15.2 percent over the last decade, according to the ABA’s National Lawyer Population Survey.
  • The total number of lawyers in the United States as of Dec. 31 was 1,338,678. Ten years before that, the total number was 1,162,124.
  • With 170,044 resident active lawyers, California ranks #2 (after New York at 177,035). Texas is a distant third with a mere 90,485.
Finally, Happy Space Day. I guess even the Gov recognizes the importance of May the 4th!
Select to zoom artwork

Thursday, May 3, 2018

Justice Rivera joins ADR Services

In Retired State Appeal Court Justice Joins ADR Services, the DJ reports on Justice Maria Rivera's current gig serving as a mediator, arbitrator, referee, and consultant for appellate matters, after 45 years of legal working, including as a state appellate justice and superior court judge.

Wednesday, May 2, 2018

What's the lowest form of dicta?

Image result for the lowest formThis 2/6 pub'd opinion here has a potentially useful line for appellate lawyers at page 7, noting that the "lowest form of dicta" is "footnote dicta." (See also U.S. v. Bahadar (2d Cir. 1992) 954 F.2d 821.) The opening paragraph is good too: "A cause of action survives one year after the death of a debtor. But not a judgment lien. Judgment liens have longevity."
(The MetNews's coverage is here.)