TrueFiling's caselaw debut!

Yesterday 1/2 issued this unpub'd decision here dismissing an appeal because the opening brief is fatally non-compliant with the rules. Ho hum, happens every day. But in addition to some bizarre pro-per accusations against various 1 DCA justices, the court also expressly references TrueFiling--in what appears to be the very first mention of TrueFiling in a Court of Appeal decision:

After we received appellant’s opening brief in this appeal, which was not in compliance with the California Rules of Court, specifically rules 8.204(1)(C), 8.208(d)(1), and 8.212(c )(1), we issued an order directing the clerk of the court to reject appellant’s opening brief submitted in TrueFiling for correction in compliance with the California Rules of Court, and granting appellant leave to file his corrected brief within 20 days from the date of our order.

New Managing Attorney for the 4th DCA

Administrative Presiding Justice Judith McConnell Appoints Marsha Amin as Managing Attorney of the Court of Appeal, Fourth Appellate District

SAN DIEGO—Administrative Presiding Justice Judith McConnell today announced the appointment of Marsha Amin as the new Managing Attorney of the Court of Appeal, Fourth Appellate District, Division One. She succeeds Managing Attorney Kimberly Stewart, who will be retiring in May.  Ms. Amin's appointment takes effect May 1.

“The Court of Appeal is fortunate to have a wealth of bright hard-working attorneys and Marsha’s skill as a writer, her ability to work well with other professionals at the court and her engagement in the legal community made her especially well qualified for this position,” said Administrative Presiding Justice Judith McConnell.
Among her duties will be the planning and carrying out of professional programs and policies, overseeing court wide case management, supervising a group of central staff attorneys and judicial assistants, and performing specialized legal work.  She will work closely with the Justices of the court to assist them in meeting the needs of the court.

"I am grateful for the opportunity to serve the court as managing attorney," said Ms. Amin.  "I will work hard to live up to the high standards set by Kimberly Stewart.  Fortunately, I will be surrounded by intelligent, creative, and talented people and look forward to working with them to accomplish the court's important mission and continue its proud legacy."
Ms. Amin received her Juris Doctor from the University of San Diego School of Law where she was editor in chief of the law review.  She received a Master's Degree from the University of Southern California in Social Work as well as a BA in Psychology from the University of California, San Diego.

Ms. Amin has been an attorney with the Court of Appeal since 2011.  She also works extensively with San Diego's Civil Appellate Self-Help Workshop and the Court Innovations Grant program, developing an interactive self-help and learning center website for the Courts of Appeal.  She is actively involved in Bar activities including the California Lawyers Association's Committee on Appellate Courts, the San Diego Appellate Inn of Court, the Appellate Practice Section of the San Diego County Bar Association, the South Asian Bar Association, and the Lawyers Club of San Diego.

Revised 2d DCA format guidelines

The 2d DCA is modifying its formatting guidelines to change the spacing recommendation from at least 1.2 spacing to at least 1.5 spacing. So this means if you're using the recommended 13-point font size, line spacing should be set to a minimum of 13 x 1.5 = 19.5 -- so Exactly 19.5 complies -- but heck, just round up to Exactly 20.


When this was mentioned at last night's LACBA Appellate Courts Section meeting, Justice Grimes emphasized that this actually really is important, and PJ Rothschild chimed in (delightfully sarcastically) to say that the formatting guidelines really don't matter at all--unless you want your brief to actually be read!

There were many fun zingers last night, including Judge Ikuta characterizing the short and often opaque Ninth Circuit memorandum dispositions as haiku-decisions.

Superior Court appointments

The Recorder has Brown Taps Big Law Pipeline for Latest Trial Court Picks: Gov. Brown's appointments include partners from Jones Day; Orrick, Herrington & Sutcliffe; Irell & Manella; Gordon Rees; and Perkins Coie.
The DJ reports that Brown continues to pick more judges as his term winds down: Gov. Jerry Brown appointed two appeal court justices, promoted another and named 25 superior court judges across the state on Tuesday.

At least two of the new judges have SoCal appellate backgrounds:

• New LASC Judge Joseph Lipner headed the Appellate Practice Group at Irell.
• New OCSC Judge Kimberly Knill has served as a senior appellate attorney in 4/3 since 2016. She also served as the Chair of the State Bar's Judicial Nominees Evaluation Commission.

Appellate Appointments!

Governor Brown Appoints Three District Court of Appeal Justices
SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Judge Helen I. Bendix as associate justice, Division One and Judge Carl H. Moor as associate justice, Division Five of the Second District Court of Appeal, and the appointment of Associate Justice Mary J. Greenwood as presiding justice of the Sixth District Court of Appeal.

Second District Court of Appeal

Helen I. Bendix, 65, of Los Angeles, has been appointed associate justice, Division One of the Second District Court of Appeal. Bendix has served as a judge at the Los Angeles County Superior Court since 2000. She served as a judge at the Los Angeles Municipal Court from 1997 to 1999 and was general counsel at KCET from 1996 to 1997. Bendix was a partner at Heller, Ehrman, White and McAuliffe from 1989 to 1996, of counsel at Gibson, Dunn and Crutcher from 1986 to 1989 and a visiting professor at the University of California, Los Angeles Law School from 1985 to 1986. She was a partner at Leva, Hawes, Symington, Martin and Oppenheimer from 1983 to 1985, where she was an associate from 1980 to 1983. Bendix was an associate at Wilmer, Cutler and Pickering from 1978 to 1979 and law clerk to the Honorable Shirley M. Hufstedler at the U.S. Court of Appeals, Ninth Circuit. She earned a Juris Doctor degree from Yale Law School and a Bachelor of Arts degree from Cornell University. Bendix fills the vacancy created by the elevation of Justice Elwood G. Lui to presiding justice, Division Two 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 Xavier Becerra and Senior Presiding Justice Arthur Gilbert. Bendix is registered without party preference. 


Carl H. Moor, 56, of Los Angeles, has been appointed associate justice, Division Five of the
Second District Court of Appeal. Moor has served as a judge at the Los Angeles County Superior Court since 2014. He was a partner at Munger Tolles and Olson LLP from 2003 to 2014, where he was an associate from 2001 to 2003. Moor served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 2000 to 2001 and from 1994 to 1999. He was litigation counsel at the National Broadcasting Company Inc. in 2000 and an associate and public interest fellow at Hall and Phillips from 1989 to 1994. He was a law clerk for the Honorable Mariana R. Pfaelzer at the U.S. District Court, Central District of California from 1988 to 1989. Moor earned a Juris Doctor degree from Yale Law School and a Bachelor of Arts degree from Swarthmore College. He fills the vacancy created by the retirement of Justice Richard M. Mosk. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice Arthur Gilbert. Moor is a Democrat.

Sixth District Court of Appeal
Mary J. Greenwood, 61, of Menlo Park, has been appointed presiding justice of the Sixth District Court of Appeal, where she has served as an associate justice since 2017. Greenwood served as a judge at the Santa Clara County Superior Court from 2012 to 2017. She served as public defender of Santa Clara County from 2005 to 2012 and was an assistant public defender and supervising attorney in the Santa Clara County Alternate Defender’s Office from 2002 to 2005. Greenwood was an attorney at Coblentz, Patch, Duffy and Bass LLP in 2001 and an associate at the Boccardo Law Firm in 1997. She served as an assistant public defender at the Santa Clara County Public Defender’s Office from 1994 to 2001, where she was a deputy public defender from 1982 to 1994. Greenwood earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Bachelor of Arts degree from Grinnell College. She fills the vacancy created by the retirement of Presiding Justice Conrad L. Rushing. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice Franklin D. Elia. Greenwood is a Democrat.

The compensation for each of these positions is $228,918.

Article round-up

The NLJ reports What Makes Chief Justice Roberts Lose His Cool (spoiler alert: when other Justices ask questions requiring answers outside the record).

The Recorder has Bedsworth: Ginsburg's Praying Mantis (In which the author ponders sometimes indelicate modern phenomenon of "naming rights").

In today's DJ, the Appellate Zealot Ben Feuer presents One Little Writ, Big Class Action Changes about Apple Inc. v. Superior Court (Shamrell).

Justice Dato appointed to CJP

Supreme Court Makes Appointment to Commission on Judicial Performance

SAN FRANCISCO—The California Supreme Court today appointed Justice William S. Dato, of the Court of Appeal, Fourth Appellate District, Division One (San Diego), as a member of the Commission on Judicial Performance.
Justice Dato’s nearly three-year term begins April 1. Justice Dato succeeds Presiding Justice Ignazio R. Ruvolo, of the Court of Appeal, First Appellate District, Division 4 (San Francisco), who is retiring from the bench.
Justice Dato was confirmed as an appellate justice in February 2017. He previously was a San Diego Superior Court judge for 13 years, serving as supervising judge of the North County branch, presiding judge of the court’s appellate division, and in a variety of substantive assignments.
Before his appointment to the bench, Justice Dato was a certified appellate law specialist in private practice and worked as an appellate court staff attorney with Justice Howard B. Wiener of the California Court of Appeal, Justice Mathew O. Tobriner of the California Supreme Court, and Chief Justice Rose E. Bird of the California Supreme Court. He has also been an adjunct professor at both the University of San Diego School of Law and California Western School of Law, teaching appellate practice and products liability.

If you saw something, say something

Judiciary Workplace Conduct Group Seeks Law Clerk, Employee Input

A new mailbox on uscourts.gov is available for current and former federal Judiciary law clerks and all other employees to submit comments relating to the federal Judiciary’s policies and procedures for protecting all employees from inappropriate workplace conduct.

2d DCA pro tem updates

The following are currently sitting on assignment:

• Judge Helen Bendix of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until April 30, 2018
• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until February 28, 2018
• Judge Laura A. Matz of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two beginning March 1 until April 30, 2018
• Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2018
• Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2018
• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three beginning March 1 until April 20, 2018
• Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until March 31, 2018
• Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2018
• Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until April 30, 2018
• Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2018
• Judge Henry J. Hall of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2018
• Judge James Edward Rogan of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight beginning March 1 until April 30, 2018

Appellate Magic

A pair of appellate articles appears in today's DJ.
First, Ben Feuer of CALG presents Appellate Magic Relies on Trial Lawyer Preparation, laying out ten common trial mistakes at trial, after the following intro:

Appellate lawyers can seem to perform a kind of magic. They use mystical-sounding terms like "supersedeas," and peer at cases through crystalline prisms called "standards of review." They bury themselves in old books, saw precedents in half, and sometimes pull victory from behind the ear of defeat.

What looks so easy for a magician, though, usually comes from a lot of practice and advance planning. Tricky devices set up just-so, planted audience-members volunteering at the right time, and years of practice.

1. Get transcripts for everything.
2. Get enough facts on the record to tell a story.
3. Follow the summary judgment rules carefully. [Heck, follow all the rules carefully!]
4. Do the Rule 50 dance in federal court.
5. Motions in limine are an appellate lawyer's friend.
6. Use offers of proof to get excluded evidence into the appellate record, and make sure to move to enter admitted evidence into the trial record.
7. Think long and hard about your verdict form.
8. Don't agree to any jury instructions your opponents propose, unless you're absolutely certain you want them.
9. Request a timely statement of decision in California.
10. File a new trial motion is you want to contest the amount of damages.

Second, Wendy Coats presents Proper Planning Prevents Poor Performance:

Preparing for appellate litigation is as much about preparing to defend a win as much as it is about preparing to come back from a loss. Prudent litigators simultaneously prepare their trial and appellate strategy in tandem avoiding the consequences of the maxim, "He who fails to plan, plans to fail."

A. Anticipate If and How an Order is Appealable.
B. Set the Record Straight.
C. Don't Waive Goodbye to an Argument.
D. Three Steps Ahead: Anticipating Objections and Offers of Proof

PJ Gilbert earns his stripes with this one!

PJ Gilbert publishes an opinion here today that starts off:

     This case calls to mind the poem “The Tyger” from Songs of Experience by William Blake, the last stanza of which reads: “Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!”
     Irena Hauser applied for a conditional use permit (CUP) to keep up to five tigers on her property.

Today's Moskovitz on Appeals DJ column is On Moot Court. He suggests doing a moot court after drafting the reply brief but before filing it, to get the best feedback before filing the brief.

Appellate horror story

Something very scary happened at oral argument on Halloween in the Seventh Circuit last year. Those who like to listen to train wrecks can hear the oral argument here. How did the case come out? Well, the day after Valentine's Day, the decision issued, and it was no love-note to appellant. The decision did two things: First, for flagrant violation of court rules, the court summarily affirmed the judgment "as a sanction." Second, because the appeal was "patently frivolous," the court awarded fees and costs to appellees. The gory details can be read in Jaworski v. Master Hand Contractors, Inc. (7th Cir. Feb. 15, 2018).

DJ profiles GMSR

Last week the DJ profiled GMSR in LA-based appellate firm scores big wins handling major cases: "Greines, Martin, Stein & Richland LLP has built a strong reputation for a small firm by taking on tough appellate cases in state and federal court."

"With 18 full-time attorneys, the Los Angeles-based firm is small compared to many others, but huge by the standards of appellate specialists. The firm's partners say they only know of one appellate firm in the state that is larger: Horvitz & Levy LLP in Burbank. That's the firm that Irving H. Greines, Alan G. Martin, and Kent L. Richland left in 1983 to join Martin Stein and form Greines Martin. Greines has since retired, and Martin died." In 2016 the firm opened a San Francisco office.

"Appellate law is part ivory tower and part futuristic dystopia, according to the partners" at GMSR.

"[A]ppellate people tend to be more academic," "We pretty much have to take the facts as they are given to us by the trial court. We're mainly arguing about the law. It's not just different skill sets, it's different mindsets."

Bill to raise RT fees

David Ettinger points out AB 2757, introduced last week, which is "An act to amend Section 69951 of, to amend, repeal, and add Section 69950 of, and to add and repeal Section 69950.5 of, the Government Code, relating to court reporters." The Legislative Counsel's Digest explains:

Existing law provides that, except as specified, the fee for original transcripts prepared by an official court reporter or by a court reporter pro tempore is $0.85 for each 100 words, and for each copy purchased at the same time, $0.15 for each 100 words. Existing law provides that, except as specified, the fee for a first copy of a transcript by a person who does not simultaneously purchase the original transcript is $0.20 for each 100 words, and for each additional copy purchased at the same time, $0.15 for each 100 words. Existing law authorizes a court reporter, in civil cases, to charge an additional 50% for special daily copy service.

This bill would increase the fee charged for original transcripts and copies purchased at the same time, and copies purchased thereafter without the original transcript, incrementally commencing January 1, 2019, except as specified. The bill would also provide that the fee for transcription is an additional 50% for special daily copy service. The bill would require the Judicial Council to report to the Legislature by January 1, 2023, with regard to transcript fees, as specified. 

Specifically, this bill would raise the cost from 85 to 93 cents for each 100 words for originals and from 15 to 16 cents for simultaneously purchased copies; and for non-simultaneous originals, the cost goes up from 20 to 21 cents and from 15 to 16 cents. This would apply for 2019 and 2020.

Justices here and there...

The California Lawyers Association's Litigation Section's February 2018 Litigation Update (Edited by Justice Moore) is now posted here.

Yesterday's DJ featured Justice Hoffstadt's article, A Penny for your Thoughts, about "which [criminal] defendants get to take advantage of ... new, more defendant-friendly laws?"

Today's DJ article, Beverly Hills Bar honors longtime pro bono advocate, about the BHBA's awarding Dan Grunfeld with its Excellence in Advocacy Award at its 8th annual Litigation Awards dinner on Tuesday, also mentions offhandedly that PJ Edmon will be honored too (with the Ron George Award for Judicial Excellence).

Also, save the date: The Friends of the Los Angeles County Law Library are presenting Justice Zelon with the 2018 Beacon of Justice Award at their gala on Thursday, April 12 at 5:30 p.m. to 8:00 p.m. at the LA Law Library.

4th Circuit en banc IRAP opinion issues

On December 8, 2017, the 4th Circuit heard en banc arguments in on the latest iteration of the Travel Ban. This morning, 285 pages of opinion were published, with the majority coming out against the ban (9 to 4). The NLJ reports: 'The Words of the President' Doom Trump Travel Ban, Fourth Circuit Says: "Here the government’s proffered rationale for the Proclamation lies at odds with the statements of the president himself," Fourth Circuit Chief Judge Roger Gregory wrote.

“When we compromise our values as to some, we shake the foundation as to all,” Chief Judge Roger Gregory said in the majority ruling. 

“Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam,” Gregory wrote [p.28]. He added later: “Here the government’s proffered rationale for the Proclamation lies at odds with the statements of the president himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President.”

Five of the nine judges in the majority also found that the challengers would succeed on their claims that the ban violates provisions in federal immigration law. Dissenting opinions were written by judges Paul Niemeyer, William Traxler Jr. and G. Steven Agee. 

The NLJ article contains nice snippets from each of the opinions (e.g., from Judges Gregory, Niemeyer, Wynn, Kennan, and Harris).

Azadian joins Dykema

Appellate lawyer Jimmy Azadian has joined the LA Office of Dykema where he will be a member of the firm's nationwide appellate practice. Jimmy chairs both OCBA's Appellate Law Section and the Ninth Circuit's Appellate Lawyer Representatives.

Dick Rothschild to receive Dunn Award

Almost every landmark California case in the last four decades, defending or expanding the rights of low-income families and individuals, has the mark of Richard Rothschild, our Director of Litigation.

Dick Rothschild, Director of Litigation at the Western Center on Law & Poverty, will be the recipient of the Pamela E. Dunn Appellate Justice Award, to be presented at the LACBA Appellate Courts Section Supreme Court lunch on April 3. The Pam Dunn Award honors an individual or organization who has made an extraordinary contribution to achieving appellate justice for individuals, groups or causes, including for those with limited access to the legal system. Pam chaired the LACBA Appellate Courts Committee (1993-1995) and was a member of LACBA's Board of Trustees.

Join Justice Hoffstadt in making evidentiary rulings

The ABTL-LA's March 6 lunch program, Admissible or Not, You Be The Judge, will feature 2/2's Justice Brian Hoffstadt and LASC PJ Dan Buckley. "Audience members will participate with state of the art audience measurement technology to try their hands at ruling on the evidence presented during this audience-interactive program."

Also of note in today's MetNews: Untimely Notice of Appeal Must Be Accepted Because Lawyer Who Said He Would File It was Busy, about this 4/3 unpub here.