9th Cir. Writ Opinion

Getting writ relief in the 9th Circuit is extremely rare -- "Mandamus is an “extraordinary remedy” appropriate only in “exceptional circumstances amounting to a judicial usurpation of power” or a “clear abuse of discretion.”" But last week the court published this opinion granting a petition for writ of mandamus. The Court explained:

Mindful of the “extraordinary nature” of mandamus relief, In re Williams-Sonoma, Inc., 947 F.3d 535, 538 (9th Cir. 2020), we conclude that it is warranted here as the [petitioners] present a novel issue involving the interplay of two Federal Rules of Civil Procedure that has divided district courts across the country and that is likely to have significant continued relevance in the wake of technological advancements and professional norms changing how judicial proceedings are conducted.

Free writs mcle today

ADR Services presents a one-hour webinar starting at noon titled California Appellate Writ Guide for Trial Attorneys, featuring Retired Justice Willhite, retired Judge Allan Goodman (former pro tem justice), and Andrea Figler Ventura (2d DCA writ attorney). Register here.

DJ articles re writs & oral argument

Today's DJ has Moskovitz on Appeal's Appellate Adventures, Chapter 18: How Can I Win at Oral Argument? Myron proposes a "pretty good rule of thumb is this: unless you can think of a good reason to orally argue, you might as well waive it," because (1) there are benefits to waiving oral argument (e.g., expense savings and a faster decision) and (2) in "California state courts, oral argument rarely changes the result." Repeating the points made in the briefs is "usually a waste of time"; rather, "come up with something new -- some way that might turn them around if that draft opinion is against you." "[P]resent a powerful, short theme showing that justice requires a ruling for your client."

Also in today's DJ is a piece on appellate writs by the leader of Haight Brown's Appellate Practice Group, Arezoo Jamshidi. The title is Writs in the Pandemic Era of Litigation, but the content of the article is merely a good review of writ basics in any era.

The latest installment in the world of appellate sanctions is reported by Law360 in 7th Circ. Sanctions Outed Atty for 'Frivolous' Appeal. In short, an attorney sued a former colleague for outing his sexuality to a client; the district court dismissed the case, and the 7th Circuit affirmed, noting that the opening brief (filed after four extensions and after a chance to file a corrected brief) did "not remotely" comply with the federal rules on appellate briefs and offered "no legal basis for disagreeing with the judge's dismissal order."

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.

Rutter Writ Programs in September

Info here and below:

Writ Deadlines Writ petitions are "extraordinary" proceedings and courts rarely grant relief. But in many situations litigators face, a writ sometimes is the best or only available remedy. Do-or-die deadlines can arrive quickly. This expert panel will teach you what situations to watch for and when you must file or lose any opportunity for appellate court review. Highlights  • Statutory and common law deadlines to challenge specific adverse orders    • Which statutory writ petitions are your sole remedy with no right to complain on a later appeal? Best Practices for Writ Petitions All the essentials you should know about writ petitions but were afraid to ask! Our panel of experts offer strategies and tips to optimize your client's chance of success on a writ petition - including best practices, controlling rules, and possible outcomes. You will get practical and invaluable advice from both sides of the bench. Highlights  • What a writ petition is, exactly  • How to draft a compliant, effective, and attention-grabbing petition    • What to do when you need a stay    • How to compile the record (exhibits)    • What rulings the court can make: alternative writs, peremptory writs, writs of supersedeas, Palma notice and Brown Winfield procedures    • Advising your client about options and costs

Presenters LAURIE J. HEPLER Greines, Martin, Stein & Richland LLP MODERATOR JUSTICE ALISON M. TUCHER Calif. Court of Appeal, 1st Dist., Div. 4 JUSTICE STEVEN Z. PERREN Calif. Court of Appeal, 2nd Dist., Div. 6 ARI KLEIMAN Writs Attorney Calif. Court of Appeal, 2nd Dist., Div. 3

Date / Time

LIVE-STREAM WEBINARS View the live-stream programs via RutterOnline.com Instructions will be provided to enrollees about how to access the live-stream programs. Writ Deadlines September 22, 2020 (Tues.) Program time: 12:00 - 1:00PM Best Practices for Writ Petitions September 24, 2020 (Thurs.) Program time: 12:00 - 1:30PM

MCLE/Specialization Credit Writ Deadlines: 1 HOUR MCLE/SPECIALIZATION CREDIT The Rutter Group certifies that this activity has been approved for MCLE credit by The State Bar of California in the amount of 1 hour. Application has also been submitted for 1 hour of Appellate Law specialization credit by the Board of Legal Specialization. Best Practices for Writ Petitions: 1.5 HOUR MCLE/SPECIALIZATION CREDIT The Rutter Group certifies that this activity has been approved for MCLE credit by The State Bar of California in the amount of 1.5 hour. Application has also been submitted for 1.5 hour of Appellate Law specialization credit by the Board of Legal Specialization.

Oh, now you tell me!

Courts do not like being ambushed at oral argument with new information. Today's lesson appears in footnote 1, here, relating how appellant's counsel made a "surprise assertion" at oral argument about something that happened six months before argument, yet "counsel admittedly chose not to inform the court thereof until his eventual appearance at oral argument." Thus, ...

An appellant who believes a new development has potentially affected the merits or status of his or her appeal, and who intends to rely on the same in some fashion, should promptly notify this court. This preserves an orderly and fair review process and allows time to potentially consider new issues if appropriate. Here, it appears plaintiff’s counsel waited until the last moment, i.e., oral argument, to divulge the supposedly important new information. Accordingly, we disregard the new matter asserted by plaintiff’s counsel at oral argument as untimely and inadequately raised. 

Monday's DJ featured writ-guru Pablo Drobny in A Compelling Writ Petition, presenting some fundamental truths about getting writ relief.

What's a Writ?

On August 14 at 6:30, BHBA's Litigation Section offers (live or via webcast): What is a Writ Petition and How to Get One Granted:

• Writs are mysterious, esoteric and extremely difficult to get. Sharon Baumgold spent nearly four decades as a lead writ attorney in the Second District of the California Court of Appeal in Los Angeles. She has the insider’s scoop on writs. She will start with the basics, to ensure that you will follow the intricate twists and turns of writ rules. Then she will clue you in on what it takes to get the attention of the Justices. Finally, she will explain the types of orders that the appellate court may issue and how you need to respond to each.
• About the lecturer: Sharon Baumgold , who spent nearly four decades as a lead writ attorney in the Second District of the California Court of Appeal in Los Angeles, is an expert in the arcane science of writ practice. In her decades as a Second District writ attorney, Ms. Baumgold reviewed, analyzed, and advised appellate justices on more than 10,000 appellate writ petitions in all areas of state law.

Writ Guru shares tips!

Pablo Drobny, writ guru extraordinaire (having done writs in the 2d District for over 36 years!), is now with the California Appellate Law Group. His On Appeals column in The Recorder is Diligent Trial Attorneys Know How to Prepare for Possible Appellate Writ Petitions. His top tips?

• Ask for a CCP 166.1 indication
• Ensure an adequate record is preserved (i.e., the order, the operative complaint and answer, the relevant papers leading to the ruling; the transcript of proceedings)
• Don't wait for a transcript; file the writ with a summary of the proceedings and explanation for why you don't have a transcript (yet)
• Know the relevant deadline, statutory or common law; the general rule for laches is 60 days
• Get help from an appellate specialist.

"the diligent trial attorney will consider involving an appellate lawyer before the critical motion is even heard. Appellate writ practice has developed over time by custom and lore, and as a result success seems to owe as much to art as to science. Experts tend to know about these things and can play a critical role in appellate writ victory."

Also of interest: from 2/6 see this "rogue juror" opinion here.

And today's DJ, USC law student Eric Woff writes: Increased access to justice at the trial level should be matched at the appellate level.

With its newly-passed budget, California is taking steps to give low income residents greater access to the trial courts. But those who want to appeal a trial court decision may be disappointed.

Article Round-up

Today's DJ has Writ Review by Donald Horvath, former head writ attorney at the 5th DCA. he points out that appellate courts might deny writ relief thinking that the petitioner might win the case anyway, or might lose and then appeal on a better record, or the case might settle. Thus, "If you can show that these possibilities are unlikely to occur, discuss this in your petition." "If you can persuade the appellate court that denial of the writ will simply postpone the inevitable--hearing the same issue on appeal after judgment--do it."

Today's DJ also has Judge Karnow in Project Admissibility, about the Supreme Court's Sweetwater case, which holds that mere inadmissibility is not fatal for a prong 2 anti-SLAPP analysis. And Reed Smith's Kasey Curtis and Charles Hyun also address Sweetwater in Proper Submission of Pre-Trial Evidence: The Twin Hurdles.

Today's Recorder has Bedsworth: Me and Franklin G. West in which Beds expounds on how trust -- "earned through fairness and civility" -- is everything. (Of course, if you want to run for sheriff, you need some experience, as 2/6 explains here.)

We are officers of the court, officers of the Third Branch of a great and powerful system of government.  We have been this nation’s warriors of democracy and justice for two centuries. We are the last line of defense for the Rule of Law, which is the sine qua non of American freedom.If you can’t respect that – and respect the fact your adversary is another human being wearing the same warrior’s garb and deserving of the treatment you would expect for yourself – well, you’ve got bigger problems than how any particular case turns out.

SLAPP stats & Writ advice

Today's DJ has appellate specialist Gary Watt dig into some SLAPP stats (with the help of summer associate Kristine Craig) in California Civil Litigators are SLAPP-Happy: A survey examining the May 2017 to July 2018 timeframe revealed 220 appellate opinions (published and unpublished), with 152 full affirmances and 38 full reversals. That's almost four SLAPP motion opinions per week statewide.

• Trial court rulings were upheld 69 percent of the time, while full reversals occurred at a rate of 17 percent. That's a full reversal every 11 or 12 days.
• Regarding published opinions, there were 31, with 17 full affirmances, seven full reversals, and seven other decisions featuring partial reversals. Thus, full reversals made up 22.5 percent of the published decisions -- and the rate of error doubles when partial reversals are considered.
• An examination of the seven published full reversals in the survey period reveals that five featured reversal of denied anti-SLAPP motions, while two featured reversal of granted motions. 
• As for the unpublished decisions, full reversals occurred 16 percent of the time.
• Even if partial reversals are ignored, the rate of full reversals demonstrates that anti-SLAPP motions are tough to resolve correctly and ripe with potential for reversal (and publication).

And Sharon Baumgold presents Avoid Common Mistakes to Give Your Writ Petition a Better Chance: e.g., meet your appellate writ deadline and properly prepare the record.