Justice Stevens RIP

Retired Supreme Court Justice John Paul Stevens dead at age 99

DJ articles

Today's DJ also has Moskovitz on Appeal in Appellate Adventures, Chapter 11: “Any More Tips on Drafting a Statement of Facts?” which presents some sound, basic advice:

• "Construct your brief as an integrated whole, with each part supporting each other part. So your Statement of Facts should be carefully created to support your Argument. Facts that don't advance this goal should usually be omitted.

• "Use the names of the people and organizations involved in your Statement of Facts. Calling them 'appellant,' 'respondent,' 'intervenors,' and 'real parties in interest' makes for difficult (and boring) reading. The judge may forget who is who and have to go back to the title page to check it out. And real names tend to 'humanize' the case and make the Statement of Facts more interesting.

• "Keep your Statement of Facts concise. Don't clutter it up with facts that serve no purpose. For example, resist the temptation to include specific dates of events unless they matter.

• "But don't frustrate the judge by leaving questions unanswered, even if the answers are irrelevant to the appeal.

• "If your Statement of Facts will be long -- more than five pages or so -- dividing it into sections will make it more readable.

Friday's DJ also had Appeals judge fighting sexual misconduct charges sues his own court, about Johnson v. Lui, LASC No. 19STCV22913 (filed July 1, 2019).

Also of note from Law360: The Role Of Dictionaries In Last Term's High Court Decisions "Since 32 of the 67 decisions issued by the U.S. Supreme Court during its October term cite dictionaries, it’s worth reviewing the opinions to learn which dictionaries the justices consulted and how they used them, say Bruce Wessel and Brian Weissenberg of Irell & Manella."

Bar changes coming...

Law360 offers Calif. Bar's Nonlawyer Reforms To Get Public Airing

• As California considers making big changes to attorney regulation that would allow nonlawyers to offer legal advice in the state and hold financial interest in law firms, the state bar's board of trustees voted Thursday to put the proposed changes up for public comment.

The Recorder has California Plan for Lawyer Fee-Sharing Picks Up Speed -- A vote by the state bar's board of trustees marks another baby step toward reshaping law firm ownership rules and transforming legal entrepreneurship

• Some law firm observers have expressed concern that the change could open the doors for the Big Four accounting firms to enter the market for legal services in the state. But the task force, in its recommendations, said the existing justice gap was severe enough to justify the daring move.
• An additional recommendation would allow lawyers to engage in ancillary law-related activities that are not regulated by the state bar. A majority of jurisdictions currently allow such work, but California does not.

Judge Owens & Pop Culture

Law.com offers Judge Who Dissed ‘Game of Thrones’ Writers Has a Penchant for Pop Culture, which reviews Judge Owens' references to Game of Thrones, Aliens, Commando, Animal House, etc.! See also here and here.

For your reading pleasure

Today's DJ has H&L's Eric Boorstin in Prompt Payment Doesn't Waive Your Right to Appeal, about new CCP section 695.215.

• Section 695.215 will become effective Jan. 1, 2020. The Conference of California Bar Associations sponsored the original version of the bill -- a proposed amendment to Section 695.220. Although the final version states that the new statute, Section 695.215, is meant to be declaratory of existing law, the section is important because it resolves two ambiguities that may have stood in the way of defendants promptly paying the severable portions of money judgments that they did not wish to contest on appeal.

• Section 695.215 sailed through the Legislature without opposition because it is an uncontroversial, common-sense provision that will benefit plaintiffs and defendants alike by encouraging defendants to promptly pay the severable portions of judgments they do not wish to contest. Indeed, the comments circulating among members of the Los Angeles appellate community who represent plaintiffs, defendants, and public entities have been uniformly positive.

And CLA Litigation Section's Litigation Update for July 2019 is now available! (4/3's Justice Moore is the Senior Editor.)
And speaking of Justice Moore, here's one to file under "dodging appellate sanctions" -- but not really!

The Chief goes to Washington

Ninth Circuit's Judicial Conference to Convene in Spokane, Washington

• The 2019 Ninth Circuit Judicial Conference will be held July 22-25 at the Spokane Convention Center in Spokane, Washington.
• This year’s conference theme is “The Third Branch: 1919, 2019, and Beyond.” General session programs will include topics such as leadership issues in the law; how media coverage of the federal courts is shifting; legislation requiring federal district chief judges to promote pro bono services as a way to empower survivors of domestic violence; student loan debt; and the upcoming 100th anniversary of the passage of the 19th Amendment, granting women the right to vote.
• Chief Justice Tani Cantil-Sakauye of the Supreme Court of California is among the speakers scheduled to participate in one of the general session programs. The list of conference speakers also includes James C. Duff, director of the Administrative Office of the U.S. Courts; Adam Liptak of The New York Times; Zoe Tillman of BuzzFeed News; Martin Wurm, Ph.D., of Moody’s Analytics; and Elaine Weiss, journalist and author of “The Woman’s Hour.”

Bar Fees increase

Annual Lawyer Fees Will Go Up, but Not as Much as State Bar Wanted

• State lawmakers have settled on a new annual licensing fee of $544 for active California lawyers in 2020.
• The Assembly Judiciary Committee on Tuesday approved amended legislation that includes the fee hike, which is significantly less than the $860 that bar leaders had sought at the beginning of the year. The $544 figure was crafted instead based on recent critical analyses of the bar’s proposals from the state auditor and the legislative analyst’s office.
• Lawyers, as they can now, can choose to deduct $47 from that bill—the portion that pays for legal aid programs, the bar’s lobbying in the Legislature and elimination of bias programs. Inactive attorneys will be charged $183 in 2020, under the legislation.
• The bill, now headed to a Senate fiscal committee and ultimately to the governor’s office, offers a 25% fee discount to licensees with gross annual incomes of less than $60,478.

Interesting cases

Here's an interesting opinion from 2/8: 

We hold that the Victims’ Bill of Rights in the California Constitution (art. I, § 28), as amended in 2008 by Proposition 9 (Marsy’s Law or section 28) does not authorize a victim to appeal from a judgment or order in a criminal case. 

We know, of course, that criminal restitution is an entirely independent constitutional right, but it is available only for losses resulting from crimes of which the defendant has been convicted. Victims may seek writ review, as petitioners did here, when they believe a trial court has failed to follow that constitutionally mandated principle.

Also from 2/8, an interesting case here, with a lesson for counsel: Don't assume the court knows what you know.

The first problem is that the record contains Montchak’s Twitter tweets, retweets, and pinned tweets. But what are tweets, retweets, and pinned tweets, exactly? The record does not say. (Compare People v. Stamps (2016) 3 Cal.App.5th 988, 996–997 & fn. 6 & 7 [internet data presumptively is unreliable and inadmissible] with People v. Espinoza (2018) 23 Cal.App.5th 317, 320–322 [proper foundations can make some internet evidence admissible under some circumstances].) A court cannot judicially notice how Twitter works. Facts of generalized knowledge cannot be judicially noticed unless they are so universally known they cannot reasonably be disputed. (See Evid. Code § 451, subd. (f).) 

New 9th Cir. Judge confirmed!

Kirkland & Ellis Partner Confirmed to 9th Circuit Bench, Despite Calif. Senators’ Residency Concerns

Daniel Bress was confirmed in a 53-45 vote despite objections from California’s Democratic senators that he lived, worked and voted in the Washington, D.C., area.

With one more seat currently open on the court’s 29-judge active bench and Ninth Circuit Judges Carlos Bea of California and Jay Bybee of Nevada recently announcing their plans to take senior status, the president has the opportunity to further shape a court that he has frequently criticized for ruling against his administration. If Trump were to fill the current vacancy in Oregon as well as the seats currently occupied by Bybee and Bea, the court would have 16 active judges appointed by Democratic presidents and 13 by Republican presidents.

The 9th Circuit's Press Release is here.

Prior to his appointment to the bench, Judge Bress had been a partner at the law firm of Kirkland & Ellis LLP in Washington, D.C., since 2011. Before joining Kirkland as an associate in 2008, Judge Bress was an associate at Munger, Tolles & Olson LLP in San Francisco from 2007 to 2008.
Born in Hollister, California, Judge Bress received his J.D., Order of the Coif, in 2005 from the University of Virginia School of Law, where he was editor-in-chief of the Virginia Law Review from 2004 to 2005. He received his A.B. from Harvard College, magna cum laude, in 2001. Following law school, he clerked for Judge J. Harvie Wilkinson, III, of the U.S. Court of Appeals for the Fourth Circuit, from 2005 to 2006, and for Justice Antonin Scalia of the U.S. Supreme Court from 2006 to 2007.

Federal Courts news

The DJ reports Orange County federal judge takes senior status: Judge Andrew J. Guilford will continue working a large caseload.

And the DJ reports: Trump 9th Circuit nominee clears key hurdle in the U.S. Senate: "Senators voted 50-42 along party lines to invoke cloture on the nomination of Daniel Aaron Bress, a Washington, D.C.-based partner at Kirkland & Ellis LLP who has been tapped to fill the seat left vacant by former Judge Alex Kozinski" "If confirmed, Bress will be Trump's seventh successful pick for the 9th Circuit, meaning 12 of the court's 29 active judgeships will be filled by Republican appointees."

NextGen coming to CD Cal

The United States District Court for the Central District of California is upgrading its CM/ECF software to NextGen CM/ECF on February 18, 2020. Please view the Notice From the Clerk for important information.

Today's MetNews has Granting of New Trial on Punitive Damages Precludes Any Enforcement of Judgment about this 2/8 opinion.

Today's DJ has 4/3's Justice Eileen Moore in A Vietnam Veteran: Let's all hope that Lee Robbins continues to do well. He wants to move out of state and has been paying rent on a town home that sits empty waiting for him to get the green light to leave California.

New IOPs at the 3d DCA

Effective July 12, 2019, the Court of Appeal, Third Appellate District, has approved changes to its Internal Operative Practices and Procedures.

Openings at the Courts of Appeal!

• Division Seven of the California Court of Appeal, Second Appellate District, is accepting applications for an appellate court attorney to work with Justice Gail Ruderman Feuer.  The attorney’s duties will include reviewing appellate briefs and trial records, researching and analyzing legal issues, drafting memoranda and proposed opinions, making recommendations regarding the resolution of issues before the court, and other tasks as assigned by Justice Feuer.  Excellent analytical, writing, and research skills are mandatory.  Familiarity with appellate practice and/or prior judicial clerkship experience is preferred. Apply online at http://www.courts.ca.gov/careers.

• The Fourth Appellate District, Division One in San Diego is now accepting applications for a Senior Appellate Court Attorney for its Central Staff.  The job is posted on the court’s career website under JOB ID# 5002.

• The Court of Appeal, Fifth Appellate District has an opening for an Appellate Court Attorney in chambers.  This position is ideal for the attorney with exceptional research, analytical, and writing skills.  Working at the court is rewarding, inspiring, and intellectually challenging.  Be a part of the quality, integrity, and collaborative spirit among our justices and employees.   See the complete job posting and apply now online.

UCI SCOTUS Review July 8

On July 8 at 10:30 a.m. UCI Law will host its 9th annual “Supreme Court Term in Review.” Panelists include Jonathan Adler, Erwin Chemerinsky, Chris Geidner, Michele Goodwin and Sarah Harrington; Rick Hasen will serve as moderator. A livestream of this event, which will take place in Irvine will be available at this link.

"A total smackdown by the Court of Appeal"

That's how Professor Martin describes today's $40K appellate sanctions opinion here from 1/2 (putting the 1-2-punch into it!).

New CA law of appellate note

A new statute (CCP § 695.215) of appellate note (declaratory of existing law) has been enacted, and becomes law January 1, 2020. H&L's Tom Watson wrote the original proposed bill as an amendment to CCP § 695.220 and H&L's Lisa Perrochet and Eric Boorstin helped with editing and responding to Legislative staff’s inquiries. As often happens, the bill got changed during the Legislative process, but the new law is still helpful.  Here’s the text of the new statute:

Section 695.215 is added to the Code of Civil Procedure, to read:

Payment in satisfaction of a money judgment, including payment of a severable portion of the money judgment, interest thereon, and associated costs, does not constitute a waiver of the right to appeal, except to the extent that the payment is the product of compromise or is coupled with an agreement not to appeal. Payment in satisfaction of a severable portion of a money judgment, interest thereon, and associated costs, does not constitute a waiver of the right to appeal other portions of the money judgment.

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until August 31, 2019
• Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until completion of all assigned matters.
• Judge Mark K. Hanasono of the Los Angeles Superior Court, will be sitting Pro‑Tem in Division Three until July 31, 2019
• Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until August 31, 2019
• Judge Kim Garlin Dunning (Retired) of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until completion of all assigned matters.
• Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2019

"Talking Hair and Speaking Cakes"

Is a pink afro "speech"?

That's the title of Justice Bedsworth's column this month: "In America, the first fix we made when we decided our Constitution required emendation was to enshrine the right to free speech. Ever since we've pretzelized our logic and herniated our analogies trying to fit some Size 10 concepts into a Size 8 right to freedom of speech."

Justice Nares to Retire

Justice Nares Retiring from the Court of Appeal, Fourth Appellate District

SAN DIEGO—Associate Justice Gilbert Nares of the Court of Appeal, Fourth Appellate District, Division One, will retire on August 30, 2019, after 31 years on the appellate court.
Justice Nares was appointed by Governor George Deukmejian to the Court of Appeal in 1988. Prior to his appointment to the Court of Appeal, he was appointed by Governor Edmund G. Brown, Jr., to the San Diego County Superior and Municipal Courts where he served as a trial judge for 12 years. Justice Nares was both a supervising judge for the Superior Court's North County Branch and a presiding judge of the Municipal Court’s North County Judicial District.
Administrative Presiding Justice Judith McConnell commented, “Justice Nares enjoyed digging into the complexities of every case he handled and never failed to apply his sound common sense to the problems he encountered. We will miss his collegiality and practical wisdom."
A native Californian, Justice Nares was in private practice with the law firm of Daubney, Banche, Patterson & Nares before his appointment to the bench.  During his time in private practice he was elected president of the Bar Association of Northern San Diego County.  He is a recipient of the Bar's Lifetime Achievement Award. Justice Nares served on the Board of Trustees of both the Oceanside Public Library and the San Diego County Law Library. The Oceanside City Council also proclaimed Justice Gilbert Nares Day, on January 17, 2018.
Justice Nares received his Bachelor of Arts degree from the University of San Diego (economics and philosophy) and his Juris Doctorate degree from the University of San Diego School of Law. He was later named a Distinguished Alumnus.
Since his appointment to the Court of Appeal, Justice Nares has served as Vice Chair of the California Judicial Council's Advisory Committee on Court Interpreters, Trustee of the San Diego County Law Library and Vice Chair of the San Diego Indigency Policy Board.

[Recorder article: Justice Gilbert Nares Set to Retire from Fourth District Appeals Court; DJ article 7/2/19 4th District Court of Appeal Justice Gilbert Nares to retire in August.]

DJ's Obit of Judge Real

Today's DJ offers Irascible Legend: Senior federal Judge Manuel L. Real was known for reversals, toughness on the bench, and kindness off it.

• Over the years, Real became known for frequent reversals by the 9th U.S. Circuit Court of Appeals. At a 2016 event honoring Real's five decades on the district court, Judge Stephen R. Reinhardt said, drawing laughter, "We've had a few problems with Manny on the circuit. Judges these days, they go along to get along. Not Manny. He continued to do whatever he felt was right." 
• Circuit Judge Milan D. Smith said Friday, "He was an enigma. In private or in social settings he was the most gracious and genuinely nice person you could meet. Yet in the courtroom many lawyers were in enormous fear of him. He had no qualms about ignoring what we told him to do."
•  "Even if there were obvious structural errors in a case, he'd make it. And he was often unwilling to explain why he granted or denied summary judgment or class certification," Smith added. "He regularly thumbed his nose at the 9th Circuit and smiled while doing it. A real Dr. Jekyll and Mr. Hyde and still, a likable guy."

Law360's obit is Much-Reversed Calif. Fed. Judge Manuel Real Dead at 95, which notes: "Judge Real was perhaps best known for regularly having his decisions overturned by the Ninth Circuit."

Today's DJ also has PJ Gilbert's Under Submission column, titled Certainty and Solace--Elusive a book review of Tough Cases (which also appears in the current CSHHS newsletter, here.)

And today's DJ also offers Moskovitz on Appeals, Appellate Adventures, Chapter 10: "If it Ain't Clear, It Ain't There!" about how an appellate court knows nothing about any given appeal, which means that the appellant must present the story coherently and completely. This is best done by taking a vantage point of standing outside the case, viewing it as an outsider looking in.

FYI, Amended SCOTUS rules take effect today!

Daniel Karon presents Top 10 Techniques for Crafting A Dazzling Brief on Law360.