Sanctions avoided

Appellate sanctions were denied in these two cases, here and here, both showcasing some appellatey points of interest. The first case says this:

Our power to punish litigants for prosecuting frivolous appeals “should be used most sparingly to deter only the most egregious conduct.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.) This appeal pushes the boundary of that territory, but the due process implications of sanctioning litigants for pursuing frivolous appeals (see id. at pp. 652-651) persuade us against exercising that power at this juncture.

In today's DJ, Kevin O'Brien has Prevailing parties in trust and estate litigation can defeat an appeal before it is filed which highlights a key way in which probate appeals differ from regular civil appeals:   

Section 1310(b) provides litigants a powerful tool that can be used to enforce orders and obtain immediate relief despite a pending appeal and, in some instances, effectively defeat an appeal as soon as or even before it is filed.

Johnson petitions for review

 The Recorder posts Justice Johnson's PFR with this article: Judge Jeffrey Johnson Removal Could Plant Public Doubt About Impartiality of Judiciary, Petition Argues

A petition seeking to reverse Johnson's removal from California's Second District Court of Appeal asserts that the most egregious charges against the judge, who was accused of sexual misconduct by a number of women, do not meet the clear and convincing evidence standard.

2d Dist. pro tem update

 The following judges are currently sitting on assignment in the Second District:

·  Judge Zaven V. Sinanian of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until October 31, 2020.

·  Judge Timothy P. Dillon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until October 31, 2020.

·  Judge Tony L. Richardson of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until October 31, 2020.

·  Judge Glenn R. Salter of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight until October 30, 2020.

15 new superior court judges!

 Governor Newsom Appoints 15 Superior Court Judges

SACRAMENTO – Governor Gavin Newsom today announced the appointment of 15 California superior court judges, which include 7 in Los Angeles County, one in Riverside County, two in Sacramento County, one in San Bernardino County, one in San Francisco County, one in Santa Clara County, one in Shasta County and one in Ventura County.

One of the appointees today, Lee Bogdanoff (LASC) clerked for 9th Cir. Judge David Thompson (1985-86).

[Recorder story here.]

How one OCSC Judge is operating

 Law.com featured 'Holding Court' With Orange County California Judge Kimberly Knill: 'We've had to create backups to backups to backups.' The article explains that Knill "appointed to the trial bench in 2018, served a stint as an associate at McDermott, Will & Emery prior to practicing as a sole practitioner focusing on appellate law for two decades. Before taking the bench, she also served as a research attorney at the Orange County Superior Court from 2014 to 2016 and as a senior research attorney at California Court of Appeal, Fourth District, Division Three, an intermediate appellate court."

At present, the Orange County Superior Court courthouses are still closed to the public for civil matters. However, I am handling a full calendar and am on the bench at the Central Justice Center in Santa Ana five days a week, with my clerk and court reporter in the courtroom with me. My calendar is called remotely. Parties, witnesses, and attorneys appear through a Microsoft Teams meeting link located on our court’s website. Most are able to appear by video.  To ensure the public has access to court proceedings, my courtroom proceedings are live-streamed on YouTube. This process will continue indefinitely until we are able to safely re-open the courthouse to the general public.

Tales from the jury box

 This month's Recorder column from Justice Bedsworth is The 13th Juror, which has nothing to do with new trial motions, and everything to do with evaluating the jury system and sharing a great story. Beds notes that jurors "aren't perfect--any more than the doctors and bridge-builders and airline pilots to whom we daily entrust our lives are perfect." But in his assessment, jurors get it "right about 98% of the time."

Even in the 21st Century, Daniel Webster still wins in court! (SCAN-fan Richard Antognini comments that the published portion of this opinion, dealing with appellate jurisdiction, is "a fascinating and frightening discussion of when a notice of appeal must be filed in an anti-SLAPP case," and would be a great model case for the appellate specialization exam!) [Webster gets some play here too -- at least his dictionary.]

New CCIS LR coming to 6th DCA

The Sixth District Court of Appeal has adopted Local Rule 4, which sets forth additional requirements for filing a civil case information statement in this District. Pursuant to rule 10.1030, the rule will be printed in Advance Pamphlet No. 23, dated September 10, 2020 and would become effective as of October 26, 2020.  Anyone wishing to comment on the rule may do so in writing prior to October 19, 2020 addressed to Baltazar Vazquez, Assistant Clerk/Executive Officer at: Baltazar Vazquez, Assistant Clerk/Executive Officer (baltazar.vazquerz@jud.ca.gov)

Typography for Judges & More

Here's a nice one-page article titled Typography for Judges!

And you'll recognize some familiar faces in this wonderful (and very short) video here (e.g., Justice Liu, Judge Owens).

Tolling trouble?

Everyone knows that an attorneys' fees motion is NOT a tolling motion, right? Well, apparently not everyone know this. So now we have this 9th Circuit opinion here that spells this out in 25-page detail... Check out Professor Martin's post here. [Bloomberg Law's article is Attorneys' Fees Appeal in False Ad Case Too Late, 9th Cir. Says]

"But I didn't know!"
[FYI, this is a Nova Scotia Duck Tolling Retriever]

Opinions off to a great start

 Today's DJ has LaFollette, Johnson appellate specialist David Ozeran's Enhancing Appellate Court Opinions, about opinions that break the mold of being "dry reads." He cites:

• Harris v. Superior Court, 3 Cal.App.4th 661 (1992), in which PJ Gilbert cites Shakespeare, Swift, Carroll, and Voltaire.
• San Jose Neurospine v. Aetna, 45 Cal.App.4th 953 (2020), which PJ Gilbert starts off with a great opening.
• Dobbs v. City of LA, 41 Cal.App.5th 159 (2019), which has a great first line.

Other notable openings cited in the article are:

• Montoya v. Ford Motor Co., 46 Cal.App.5th 493 (2020), noting "we feel publication will facilitate appellate discussion in case we have it wrong."
• Hester v. Public Storage, 2020 DJDAR 5107 (May 28, 2020), starts off with another quip.
• Ward v. United Airlines, Inc., 2020 DJDAR 6547 (June 29, 2020)

• Farina v. SAVWCL III, LLC, 2020 DJDAR 5590 (June 10, 2020)

Another recent, strong opening not mentioned in the article is noted here.

On the SCOTUS front, Law.com has Inside Virus-Era Supreme Court: How Clerks Adjusted to New Reality

 

 

S.D.Cal. CJA Panel Application info

NOTICE TO APPELLATE ATTORNEYS

Application and Procedures for the 2021-2022 CJA Appellate Panel:
- Applications for the CJA Appellate Panel for the term commencing on January 1, 2021 and expiring on December 31, 2022 must be submitted electronically at www.casd.uscourts.gov/Attorneys/CriminalJusticeAct.
- Applications will be accepted only from September 1 through October 5, 2020.
- No paper copies of applications may be submitted.
- The Application and Procedures Governing the Operation of the Appellate Panel are available on the website for the U.S. District Court for the Southern District of California, www.casd.uscourts.gov, under "Attorneys," "Criminal Justice Act," "CJA Appellate Panel Procedures."

Sincerely,
John Morrill, Clerk of Court
U.S. District Court Southern District of CA

Hot or Not?

 Today's DJ Appellate Zealots column has Sharon Baumgold's How Hot is that Writ? Considerations for Requesting a Stay, which explains:

Two kinds of writ petitions may be deemed "hot."

The first is a petition for writ of mandate or prohibition (an interlocutory appellate challenge to a trial court order any time before judgment) that requests a temporary stay during the period of time while the appellate court reviews the petition, and the temporary stay must issue within a week or so or it will be too late because something irreversible will have occurred.

The second is a writ of supersedeas to stay judgment while an appeal is pending, when the prevailing party threatens to execute on the judgment contrary to law or take an action that would make reversal on appeal meaningless.

In both situations, a "hot" writ is one where a stay is needed very quickly, and it is designed to preserve the status quo so the appellate court can review the petition or appeal before something irreversible occurs.

Prologue: What is an "opinion"?

 2/6's PJ Gilbert publishes this very short (6-paragraph!) opinion here, with a very interesting first paragraph:

Prologue: A Court of Appeal opinion is an explanation for a decision. In most cases the opinion should contain only the necessary facts and law to support the issue or issues to be decided. To aid the litigants, their attorneys, and the public, the opinion should be concise, readable, and filed with reasonable dispatch. Generally the opinion should not mimic law review articles. We hope to follow this model in what follows. 

Citing memdispos is ok, but....

This published 9th Cir. opinion here has an interesting bit about the use of unpublished memorandum dispositions:

although memorandum dispositions can be cited, and may prove useful, as examples of the applications of settled legal principles when a district court or litigant is interested in demonstrating how a given principle operates in practice, a nonprecedential disposition is not appropriately used—as it was here—as the pivotal basis for a legal ruling by a district court. Among other problems with such usage, heavy reliance by a district court on a nonprecedential disposition leaves this Court on appeal without a legal analysis to review, as the disposition relied upon by the district court has at most marginal relevance to our analysis on appeal.

 

Obey 8.130(a)(2) or else...

 You don't see this every day: Appellant designated a partial RT, but failed to state the points to be raised on appeal as required by CRC 8.130(a)(2). Respondent points out the deficiency "at least three times, the earliest being three days after [Appellant] filed the designation of record. Appellant ignores all this, however, and only addresses the issue "for the first time in a motion filed concurrently with his reply brief," in which he urges the Court to exercise discretion to overlook the problem. Outcome: "Because [Appellant's] violation was egregious and inexcusable," the Court of Appeal (2/8) "refuses" to overlook the problem.

[The MetNews' story on this is: Attorney Precluded From Raising Any Issues on Appeal Based on Violation of Rule]

For more lighthearted fun, look at the counsel listing in this decision: For Appellant, we have "LA Law, Inc." and for Respondent "The Appellate Law Firm." [And here's another interesting counsel listing for MyBedBugLawyer.]

The scoop on 23(f) petitions!

 Today's Recorder has Rule 23(f) Petitions in the Ninth Circuit: A Data-Driven Analysis by Sidley Austin's J.C. Andre, David Carpenter, and Paula Salazar. This crew analyzed 143 Rule 23(f) petitions in the 9th Circuit over the past 3 years and found:

• 22% of Petitions Were Granted, but the Grant Rate Was Much Higher for Plaintiffs: Out of the 145 petitions, 32 were granted, for an overall grant rate of 22%. ... Just 14.3% of defense petitions were granted (12 of 84). Yet 32.8% of plaintiff petitions were granted (20 of 61).
• Petitions Typically Take Around Three Months to Resolve.
• Prevailing on the Petition Does Not Foreshadow Prevailing on the Merits. Of the 32 petitions granted within our sample, 15 of the ensuing interlocutory merits appeals had been decided as of the time of this article. Of those, five (33%) resulted in vacatur or reversal, while 10 (66%) resulted in the district court’s order being affirmed.

No SoCal visit for the Supremes this winter

The Mamas & The Papas sang: On a winter's day; I'd be safe and warm; If I was in L.A

But, alas, At the Lectern reports: Oral arguments will be remote for at least the rest of the year, and none outside San Francisco until at least November 2021.

The Court's Third Standing Order re Oral Argument is here.

Note this change: "On March 27, 2020, this Court issued a second standing order concerning remote oral argument that provided, among other adopted procedures, "[a]t argument, each side will be allowed up to five minutes to give an uninterrupted opening argument." For future oral argument, and until further order of this Court, this time allotment is reduced to two minutes. Each side will be allowed up to two minutes to give an uninterrupted opening argument."

Easier Bar Exam = More Takers

 The Recorder has Record Registrations for California's Online October Bar Exam

The enormous interest in taking the upcoming exam suggests that the new lower passing score of 139 may have attracted more test-takers than the online format has scared away, at least for now.

• A record 12,000 would-be lawyers have registered to take California’s October bar exam, even as uncertainty continues to swirl around the novel online test.

Law360 has 1st Online Bar Exam In Calif. Attracting Record Numbers

"The Appellate Project" event Sept. 10

 The Appellate Project Virtual Launch Event on September 10!

The Appellate Project was born out of the fundamental
belief that our highest courts are strongest when they
reflect our communities. That’s why our mission is to
empower law students of color to thrive in the appellate
field, a space in which minorities have historically been
underrepresented. Our programming gives law students
the access, opportunities, and encouragement they need
to become the next generation of lawyers and judges in
our highest courts.
We invite you to learn more and become part of our mission as we
celebrate our launch! Join us for our virtual kick-off event on
September 10 (6:30-8:00pm EST), as our Advisory Board
member, Judge Timothy Lewis, leads a discussion with
Chief Judge Sri Srinivasan and Justice Leondra Kruger
about their experiences as lawyers and judges in our
highest courts.
To learn more in the meantime, join our listserv
and follow us on Twitter: @AppellateProj

(Hat tip to Carlos Dominguez for this link!)