5th District to destroy cases F00001 to F019300

The Fifth District has announced that it will destroy all files numbered F1 to F19300. If you know of any reason why the records in any such cases should be retained -- for historical or other reasons -- you should send a letter to Clerk/Administrator Charlene Ynson (2424 Ventura St., Fresno 93721) explaining why destruction would be a bad idea.

Overcoming legal writer's block!

GMSR's Meehan Rasch has co-authored an article of interest (already featured on the Wall St. Journal's Law Blog):
Overcoming Writer's Block and Procrastination for Attorneys,
Law Students and Law Professors,
43 N.M. L.Rev. 193 (Spring 2013) (with David A. Rasch, Ph.D.)

The Recorder on Appellate Brief Writing

Not to be outdone by the DJ -- which recently ran four articles on federal appellate practice in a single issue -- The Recorder today features has a six-article "Your Skills" bonanza on "Appellate Brief Writing":

* Appellate Writing Tips from the Bench, collecting wisdom from Chief Justice Cantil-Sakauye, Justice Pollak, and Judge Bea.

* Basics of a Sound Appeal (by Michael Reedy): Tell a compelling story; undestand the framework of the story; trim the fat and build the trust; think like an appellate lawyer.

* Appellate Brief Writing: Before, During and After (by Gary Watt): Before Writing: Chase all the rabbits; While writing: Always build trust; After writing: Edit, edit, then edit again.

* The Key to Persuasion is Credibility (by Charlie Bird).

* Writing a Brief -- Lessons from Literature (by Tami Fisher): Tell all the truth, but tell it slant; The elements of style.

* Four Keys to Gaining and Holding Credibility (by Stephen Larson, Jonathan Phillips, Karen Van Essen): Effective and credible briefs are essential.

2d District Pro Tem updates

• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until July 31, 2013.
• Judge Brian M. Hoffstadt of the Los Angeles County Superior Court, will be sitting Pro-Tem in Division Six until August 31, 2013.
• Judge Brian M. Hoffstadt of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One for case B233542 .
• Judge Vincent J. O’Neill of the Ventura Superior Court, will be sitting Pro-Tem in Division Five until June 14, 2013.
• Judge Rex Heeseman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2013.
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2013.
• Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five beginning July 1, 2013 until August 31, 2013.

Kane is able

With Fresno raisin farmers the hot topic this week in appellate circles (blow your Horne here)...

...it's only fitting that today's DJ profiles Justice Kane of the 5th District: a "Bay Area native who traded the 'rat race' of city living for the small town comforts of Fresno" and who "exudes an air of Southern genteelness ... with a hint of lurking humor." (The article also quotes blogger/Prof. Shaun Martin.)

Court Reporter: "Sorry, I'm outta here."

A decision of note today sets the stage like this:

The hearing was only reported in part, and the reporter’s transcript submitted on appeal indicated that the reporter left before the conclusion of the proceedings.

Quittin' time! I'm outta here!

Uh, ok, now what? Well, you've entered the Settled Statement Zone.

And once there, you better follow the rules, unlike the appellant in today's case.

Are you Certifiable?

Have you been wanting to become a certified appellate specialist?  If so, plan to attend "Becoming A Certified Appellate Specialist: Everything You Need To Know" -- a special breakfast program to be held this Saturday, June 15, 2013, in downtown Los Angeles.  The Appellate Law Legal Specialist Examination is being offered this October and will not be offered again until 2015.  So this is the perfect time to start planning your road to certification!   

The program is being organized by the Los Angeles County Bar Association's Appellate Courts Section and is co-sponsored by the

Orange County Bar Association's Appellate Law Section, the San Diego County Bar Association, and the Ventura County Bar Association.in downtown Los Angeles.  

 

For more information or to register please click here. 

 

Special Bonus:  All attendees will get a $100 off the Pincus Professional Education exam prep course!

DJ - Federal Appellate Practice Edition!

Today's DJ includes four articles of appellate note, all related to federal practice:

1- Judges Justifiably Oppose Federal Anti-SLAPP, about Chief Judge Kozinski's concurring opinion in Makaeff v. Trump University, LLC (9th Cir. April 17, 2013), calling for en banc review to establish the point that "federal courts should no longer apply the California anti-SLAPP statute in diversity cases because" anti-SLAPP law "is procedural, not substantive." (Article by Anthony Glassman and Rebecca Kaufman of Glassman, Browning, Saltsman & Jacobs.)

2- Case Highlights Importance of Timely Post-Trial Motions, discussing Classic Concepts, Ltd. v. Linen Source (9th Cir. May 30, 2013), by appellate specialist Alana Rotter of GMSR.

3- Seeking Certiorari? Don't Forget to Consider Getting the Circuit Court Mandate Stayed, by Kent Bullard of GMSR.

"The high court is as finicky as Morris the Cat - it grants only about 1 percent of the cert petitions filed."

4- Practitcal Considerations: Supersedeas Bonds, discussing "you shall desist" bonds in federal court, by IP lawyers Matthew Jorgenson and Erik Carlson of Sidley Austin.

Supersedeas Man?

NLJ Appellate Hot List

Last week the National Law Journal published its Appellate Hot List insert, featuring 20 firms "doing killer appellate work."
The usual East Coast suspects were profiled: e.g., Sidley Austin (Carter Phillilps); Wilmer Cutler (Seth Waxman); Bancroft (Paul Clement); Hogan Lovells (Neal Katyal); Kellog Huber (David Frederick); Latham & Watkins (Maureen Mahoney, Greg Garre); Mayer Brown; Jenner & Block; Covington & Burling; Fish & Richardson.

California: Land of Natural Wonders... and great appellate practices!

But California and firms with strong Golden State offices were noted too: Gibson Dunn (the Teds); Quinn Emanuel (Kathleen Sullivan); Jones Day; Akin Gump; Arnold & Porter; DLA Piper; O'Melveny & Myers; Kirkland & Ellis (Chris Landau), which cited to a win for actor Don Johnson in the Second District; and Paul Hastings (Paul Cane) also citing a California appellate win.
Also receiving a nice spread was SoCal appellate boutique Greines Martin (quoting Robin Meadow and Kent Richland).

California Appellate Courts heading Left?

Today's top story in the DJ is "State Appellate Courts Poised for Leftward Shift," explaining why "the state appellate courts may ... be on the cusp of a transformative shift leftward." The article notes that all five Justices Governor Brown has appointed have been Democrats and asserts that if he wins another term, he may have the opportunity to appoint 30 more justices. Are there really that many potential upcoming vacancies?

The article quotes Justice Kline as saying that ideology factors into few court of appeal decisions and H&L's Jon Eisenberg as saying "If I was a 30 year old lawyer and had designs on the bench, I would want to be a Democrat."

Trouble brewing?

Probably not the disposition the appellants were hoping for in this appeal...

DISPOSITION
The orders are affirmed. JMJ Financial Group shall recover its costs on appeal. The clerk of this court is directed to provide copies of this opinion to the district attorney, the United States Attorney and the California Secretary of State.

L.A. Lawyer magazine article: Preparing for Oral Argument

This month's Los Angeles Lawyer magazine has a Barristers Tips column by H&L's Andrea Ambrose Lobato titled Steps for Preparing for Appellate Oral Argument. In brief, the article suggests the following:

Step 1: Reread the briefs. Step 2: Gather key parts of the record. Step 3: Create an outline of your argument. Step 4: Condense the outline to one or two pages. Step 5: Practice your argument, including answers to likely questions.

Chief Justice David Terry program on June 25!

You don't know about Chief Justice David Terry (1823-1889)?!
Well then be sure to attend this free program (or $30 if you want MCLE credit) at the 2d District Court of Appeal building in LA, starting at 5:30 p.m., described below:

California Supreme Court Justices Marvin R. Baxter and Kathryn M. Werdegar, Court of Appeal Justice Laurie D. Zelon, and U. S. District Court Judges Andrew J. Guilford, Terry J. Hatter, Jr., and Ronald S.W. Lew, will all participate in a June 25, 2013, historical program about federalism in California, as illustrated by the life and death of one of the California Supreme Court’s first and most colorful members, Chief Justice David S. Terry.

The program, “Chief Justice David S. Terry: A Life and a Doctrine in Three Acts,” is sponsored by four historical societies – the U.S. District Court for the Northern District of California Historical Society, the California Supreme Court Historical Society, the Ninth Judicial Circuit Historical Society, and the California Historical Society – together with the generous support of Littler Mendelson, P.C.  It will be held at the Ronald Reagan State Office Building’s auditorium in downtown Los Angeles, located at 300 South Spring Street, Los Angeles 90013, beginning at 5:30 p.m., followed by a reception at 7:00 p.m.

Terry was elected Associate Justice, and then later became Chief Justice, of the California Supreme Court in the mid-1850s.  During his first year on the Court, he stabbed a San Francisco Vigilance Committee member in the neck with his bowie knife, for which the Committee imprisoned, tried, and almost hanged Terry, before releasing him when the Committee member recovered.  In 1859, Terry shot and killed a sitting U. S. Senator, David Broderick, in a duel held at Lake Merced, then on the outskirts of San Francisco.  Terry returned to Texas and became an officer in the Confederate army during the Civil War.  He eventually returned to California after the War and, in the 1880s, represented (and later wed) Sarah Althea Hill in her various lawsuits over her alleged secret marriage to U. S. Senator William Sharon, then considered to be one of the wealthiest individuals in the country.  When the federal court’s decision went against Hill, he punched a tooth out of a Deputy U.S. Marshal in the courtroom, for which he was sentenced to six months in jail.  Finally, in 1889, another Deputy U.S. Marshal shot Terry dead after he began punching U.S. Supreme Court Justice Stephen Field in the face while he was having breakfast at a train stop near Stockton, California.  The case, In re Neagle, led to one of the broadest statements of federal jurisdiction over state jurisdiction ever made by the U.S. Supreme Court.

The June 25 program will feature the Justices and District Judges reading from historical documents written by Terry, Hill, Field, and others.  It will also include images of persons and places in Terry’s life and death.  The program will be narrated by the program script’s author, Richard Rahm (who is a member of the Northern District of California Historical Society’s board of directors and a shareholder of the Littler Mendelson law firm) and Dan Grunfeld (who is president of the California Supreme Court Historical Society and a partner in the Kaye Scholer law firm).

For anti-SLAPP geeks only...

If you know what Mann rule is (regarding the second prong analysis for mixed causes of action), and are familiar with how cases like Oasis West Realty v. Goldman and Wallace v. McCubbin have referenced it (pro and con), and also know about last year's anti-SLAPP blockbuster case City of Colton v. Singletary (206 Cal.App.4th 751), then you'll appreciate pages 22-26 from the 3d District today here.
If not, then please go about your business. These aren't the droids you're looking for.

APJ Gilbert's 25th anniversary!

Today 2/6's APJ has his usual column in the DJ. But, in honor of his 25th anniversary of publishing his column, he has reprinted a "document of historical significance" -- his very first DJ column. Titled "It Never Happened," the essay covers (what else!) depublication of Court of Appeal opinions by the Supreme Court. Back in 1993, the Supreme Court depublished 109 cases. In 2011, only 11 cases were depublished. Don't miss this column for Justice Gilbert's insights and humor.

Speaking of the Supreme Court, SoCal appellate lawyers may be wondering "where are they?" Yes, it's the first week in June, and historically that meant oral arguments in Los Angeles (and an opportunity to take summer associates to watch). But this year, they are in San Francisco instead, coming to LA only three times this year as a budget savings measure. The Court is scheduled to be down here the week of October 7.

Sua sponte reassignment to new judge on reversal

"On our own motion and in the interests of justice, all further proceedings shall be heard before a judicial officer other than the judicial officer who issued the order we have just reversed." This sounds like something you'd expect maybe to see in a Ninth Circuit opinion, right? Not this time. it's from this decision today from 1/4.

Hey, can I get that back?

Appellate Specialist Mark Schaeffer (of Nemecek-Cole) provides the following note on a case of interest published yesterday:

If a debtor files an appeal and posts an appeal bond after a judgment creditor has levied on the debtor’s bank account via an executed writ of execution, does the trial court have authority to order the creditor to return the money to the debtor?

The Second Appellate District, Division Three, answered the question in the negative.  (ADIR International, LLC v. Superior Court (2013) __ Cal.App.4th __.) 

So, debtors beware - file appeal bonds before a levy.  If a levy is in process, but has not been completed, the appellate court stated that the debtor should have sought an order recalling and/or quashing the writ of execution and releasing the lien.

(If YOU would like to contribute to this blog, please feel free to email your proposed posts to me at BShatz@manatt.com. Thanks!

Articles of Appellate Note in the Recorder

The Recorder is now running another part of its "Your Skills" series, with a trio of articles about what happens next after a trial ends. One article addresses "Preparing the Costs Memorandum," another (by GMSR appellate lawyers Kent Richland and Gary Wax) touches on how to carefully canvas a trial record to spot potential issues ("Between Trial and Appeal, There's a Record"). The third, "Misbehaving Juries May Alter Verdicts," concerns how social media misconduct may result in a new trial. This last topic seems quite timely... Juror's online research forces new trial.

Justice Beds' latest is also available here.

The Recorder also ran an interesting article on Friday about 1/2's Justice Lambden leaving the bench: Appeal Court Consensus Builder Leaves Bench.

Bizarro: Egregious juror misconduct

Check out People v. Pizarro for an especially egregious (the court says "criminal") instance of juror misconduct:, in which naughty Juror No. 9 looked up a prior appellate opinion in the murder case that was being retried.

What would Client #9 have to say?

Certified Chutzph?

Imagine a defendant removing a case from state to federal court, and then asking the federal court of appeals to certify a question to the state supreme court. Further, imagine that the defendant's request for certification came only after an apparently lopsided oral argument where the panel appeared ready to rule against the defendant. Sound like gamesmanship? Think a court might be upset? Take a look at this reaction in a Ninth Circuit opinion published yesterday:

Hinojos v Kohl's Corp. No. 11-55793 (9th Cir. May 21, 2013):

We have long looked with disfavor upon motions to certify that are filed after the moving party has failed to avail itself of a prior opportunity to seek certification. [Citation] For example, in states that accept certification from federal district courts (unlike California), we have a held that there is a "presumption against certifying a question to a state supreme court after the federal district court has issued a decision" when the party that lost below did not mention the possibility of certification until after the district court entered summary judgment against it. Such requests for certification are generally inappropriate, we have held, because "[a] party should not be allowed 'a second chance at victory' through certification." [Ctitation] Here, Kohl's had an opportunity to suggest certification in its pre-argument brief or even at oral argument. It could have urged that, in the event that this court was not persuaded that California law clearly favored its position, the appropriate course of action would be certification to the California Supreme Court. Yet it chose at that point not to urge certification as an alternate course of action, presumably for tactical reasons—possibly because having prevailed below it greatly preferred to have the case decided by a federal court. Only after (correctly) perceiving at oral argument that we were not inclined to rule in its favor on the merits did Kohl's file its motion for certification. For reasons similar to those expressed in Thompson, we strongly disfavor a party that prevailed below requesting certification for the first time after it becomes apparent at oral argument that it is not likely to prevail in federal court.
Our court has also developed rules to ensure that a party may not manipulate the appellate system by seeking to avoid a panel it views as unlikely to accept its legal position. It is for that reason that we do not make panels public until the first working day of the week preceding oral argument and permit motions for continuances after the panel has been announced only "under exceptional circumstances." See General Order 3.5. Here, Kohl's urged certification for the first time only after it had the opportunity both to learn which members of this court would hear its appeal and to assess those judges' actual views of its case, based upon the concerns the judges expressed at oral argument. Having gained that knowledge, Kohl's sought to send this case back to state court whence it came, in light of its perception that the federal court was unlikely to rule in its favor. Kohl's conduct regarding certification violated both our rule against belated certification requests and our long-standing prohibition against a party's use of procedural motions to avoid having its appeal decided by a panel it perceives as unfavorable. Moreover, here Kohl's request would not only affect the operation of the federal court, but would unnecessarily embroil the Supreme Court of the State of California in Kohl's attempt to find a more favorable forum.
OR

As today's DJ reports it: "[Judge] Reinhardt blasted Kohl's for attempted forum-shopping by seeing to return the case to state court after it learned that it had drawn a liberal-leaning panel at oral argument by its claims."

 

A black eye for Kohl's? (pun intended)