Monday, July 6, 2020

Justices to study and prevent jury selection discrimination

California Supreme Court Names Jury Selection Work Group

The Supreme Court of California on Monday named members to its Jury Selection Work Group to study changes or new measures to guard against impermissible discrimination in jury selection.

Over 12 to 15 months, work group members will study a broad range of topics related to jury selection, including diversity in California jury pools, changes to jury instructions and the impact of unconscious bias.

“The right to trial by a jury of our peers is central to our justice system, and we must continue to safeguard that right,” said Justice Kathleen O'Leary, who will chair the work group. “We join a broad statewide and national dialogue that is focused on ensuring juries fairly represent the communities they serve.”

The work group includes 11 judges and justices that represent the California Supreme Court, appellate courts and trial courts throughout the state, including: Justice Werdegar (ret.) and Justices O'Leary, Jackson, Kim, Murray, and Pena. More here.


Sunday, July 5, 2020

2d DCA pro tem update

Second District pro tem update:
·  Judge Zaven Sinanian of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until August 31, 2020

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

Thursday, July 2, 2020

Beds on gender equality

Vtg 1987 Gecko Gym Hawaii World Gymnasium TeeBedsworth: The Geckos Are Coming, The Geckos Are Coming -- As soon as women perfect in vitro fertilization, we guys are gonna be as useless as the proverbial mammary glands on a porcine male.

Wednesday, July 1, 2020

Appellate tidbits

Appellate sanctions imposed here on a pro per lawyer appellant:
He also proffered and relied upon as evidence, in the trial court and on appeal, documents fraudulently purporting to be instruments transferring interest in and encumbering the Sea Island property in an effort to avoid Mesa West’s lawful efforts to enforce the 2007 judgment. We report [him] to the State Bar of California for this misconduct and all the other misconduct detailed in this opinion. 
And see this published opinion here for a case on the right to appellate counsel for misdemeanors.

Today's DJ profiles former Justice Bruiniers in Patience and Gravitas -- Terence Bruiniers of JAMS is skilled at getting parties to control their emotions, lawyers say.

"When you're on the trial court, you're interacting with the attorneys and law firms on a daily basis," Bruiniers said. "When you get on the court of appeal, you're dealing with a fairly specialized segment of the bar. You lose some of the contacts. I try to go to bar events just to maintain the relationships."

2d District Pro Tems

The following are currently sitting on assignment in the 2d DCA:
·  Judge Zaven Sinanian of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until August 31, 2020
·  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 Timothy P. Dillon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until August 31, 2020.

Tuesday, June 30, 2020

More Federal Judges, Please!

Judiciary Makes the Case for New Judgeships

The creation of new judgeships has not kept pace with the growth in case  filings over three decades, producing “profound” negative effects for many courts across the country, U.S. District Judge Brian S. Miller told Congress today. Miller testified before the Senate Judiciary Committee at a hearing on the Judiciary’s request for additional judgeships. He appeared on behalf of the Judicial Conference of the United States, the national policy-making body of the federal Judiciary. Miller chairs a subcommittee on judicial statistics for the conference’s Committee on Judicial Resources.

The Judicial Conference has recommended that Congress establish five new judgeships in the Ninth Circuit Court of Appeals and 65 new judgeships in 24 district courts across the country. The conference also recommended that eight existing temporary district court judgeships be converted to permanent status.

Since 1990, when the last comprehensive judgeship bill was passed by Congress, case filings in the courts of appeals had grown by 15 percent by the end of 2018, while district court case filings had risen by 39 percent in the same period.

More Please GIFs | Tenor

Monday, June 29, 2020

POW! $25K sanctions award!

Fireworks from 4/3 today. Check out the sanctions award of $25K+ here (pp. 21-25) in the unusually captioned matter of Roe 1 et al. v. Doe 2, Supervisory Organization et al. (Nonparty Does 1-7, Appellants).

[On the topic of sanctions, albeit not appellate sanctions, see Stan Lee’s Daughter Sanctioned $1 Million for Frivolous IP Case about an order from CD Cal Judge Wright. Yes, that's $1M in sanctions, with counsel on the hook for $250K. An appeal has been vowed in the press. See here.]

Also enjoy the nice use of "Aha!" on page 11 of the 4/3 decision here!

Waiver by failing to contest tentative?

See footnote 7 in this pub'd opinion here, where Respondents argue that Appellant waived an issue by failing to object to the trial court's tentative decision on the point. But the Court of Appeal says 'nah':
  • We will give appellants the benefit of the doubt. If appellants had not challenged the tentative ruling at all, they could have appealed all the issues decided by the trial court. “Submission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis.” (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406.)
[Hat tip to appellate star and loyal reader Michael Colantuano for flagging this one!]

If you really need an appellate waiver case to make your day today, then 1/3 comes through for you in this published opinion here:
  • In the published portion of our opinion, we hold that [Appellant] forfeited several legal arguments that she failed to present to the trial court below. In doing so, we reject her contention that an appellate court is required to consider all arguments challenging an order sustaining a demurrer based on the compulsory cross-complaint statute when such arguments purport to raise purely legal issues that are belatedly raised for the first time on appeal. 

9th Cir. to end Covid-Notice extensions on July 1

Effective July 1, 2020, the Court will no longer provide automatic extensions of time based solely on a Notice. Requested extensions will require a motion and a showing of cause pursuant to Circuit Rule 31-2.2. You are encouraged to use Form 14 in lieu of a written motion, or you may request a Streamlined Extension if eligible.

Other 9th Circuit operational Covid- updates here, including:
  • Arguments continue to be conducted as scheduled, with all judges and counsel appearing remotely by video or telephone. We expect fully remote hearings to continue at least through August 2020.
Controversial Pick Could Join Ninth Circuit Court Of Appeals ...

CD Cal has a new CJ (again)

Central District of California | United States District CourtThe Central District has a new Chief Judge. And it's not Judge Carney (who ascended June 1).
He has stepped down, as reported in the LA Times today here, and the new CJ is Judge Gutierrez (see here).

Saturday, June 27, 2020

Don't stop the streaming

Law360 has Lawmakers Urge Courts To Keep Streaming After COVID-19:
  • Lawmakers and witnesses at a House hearing Thursday urged courts to stream their proceedings permanently, drawing a slightly positive reaction from a key judge who focused on getting new jurists to handle a case backlog.
  • Another call for streaming came from a hearing witness, Chief Justice Bridget M. McCormack of the Michigan Supreme Court. "People who live far away [have] the right to see what their court is doing and how they're doing it," she said of her own state. "It feels to me like it builds trust and confidence in our branch, which, as I said, is the only currency we have."
  • Congress in March gave the court system an extra $7.5 million to adapt to the pandemic. Last month, the judiciary requested another $36.6 million to cover new judgeships, assist with courtroom safety and boost teleworking capacity.
JOURNEY - Don't Stop Believin': The Best of Journey - Music

The U.S. Supreme Court is way behind schedule. With only a few days to hand down its 13 remaining decisions, it seems increasingly likely that the justices are going to have to release July decisions for the first time in 24 years.

Appellate Number Crunching

H&L's Scott Dixler and Sarah Hamill do a deep analytical dive and report in Law360 that: Calif. Employment Cases Actually Favor Summary Judgment:
We have reviewed approximately 130 appellate decisions evaluating employment discrimination and retaliation claims under California's Fair Employment and Housing Act, that were decided after Perry, and 99 of those cases affirmed summary judgment for the employer.
Only 31 reversed summary judgment for the employer. But only two of the 99 cases affirming summary judgment are published, while nine of the 31 cases reversing summary judgment are published.
This imbalance between published and unpublished opinions could create the misimpression that summary judgment remains disfavored in employment cases, as the courts in Nazir and Abed held.

For an interesting (yet rejected) argument about the inability to get an RT for an appeal, see here.

Another 4/2 dissent

Another fascinating and passionate 4/2 dissent here, wondering what happened to the 'prejudicial error' requirement among other concerns. Some snippets from the dissent to whet your appetite to read all 88 pages of both opinions:

  • The opening line of the dissent: "I’m not sure how we got to this point in the present appeal."
  • Our state’s Constitution, our Evidence Code, and our Code of Civil Procedure require us to determine whether evidentiary errors are prejudicial. (Cal. Const., art. VI, § 13; Evid. Code, § 353; Code Civ. Proc., § 475.)
  • The majority’s approach is not only wrong on the law, it’s wasteful and unnecessary in the present litigation.
  • The implications of the majority opinion are staggering. By treating error on a discretionary evidentiary ruling as reversible per se, the majority read the prejudice requirement out of our Supreme Court precedent (and our Evidence Code and our Code of Civil Procedure and our Constitution).
  • To make matters worse, the majority reach their result only by misinterpreting the trial court’s clear ruling. I cannot overstate how deeply I disagree with their treatment of this case. I therefore respectfully dissent.

Friday, June 26, 2020

Don't say "SLAPP"!

This 3d District decision today here is what most of us would instinctively call a SLAPP case (i.e., an appeal from an anti-SLAPP motion ruling). But footnote 2 explains why using "SLAPP" is 'wrong' and we should instead say 'special motion to strike':
  • We eschew use of an acronym often used to label this motion. (E.g., Yeager v. Holt (2018) 23 Cal.App.5th 450, 452.) The acronym grew out of the statute’s initial focus. However, with the blessing of the Legislature and the courts, this statute has been applied in contexts across the litigation spectrum, and the acronym is no longer accurate. The proceeding should simply be called what it is--a special motion to strike.
Then footnote 8 expresses displeasure at the failure to cite cases without "pinpoint" (or "jump cite") citations to particular pages:
  • Defendant also cites two decisions of the high court—without point cites, a nettlesome practice that foists upon this court the task of finding the part of the opinion that supports its argument—that due process somehow imposes an obligation under section 425.16 to review pleadings for vagueness.

New PACER website coming

Judiciary Launches Redesigned PACER Website

The Administrative Office of the U.S Courts on June 28 will launch a redesigned informational website for the Judiciary’s electronic court records system, known as PACER (Public Access to Court Electronic Records).

The new PACER website includes features that will make it easier for users to learn how to navigate the system, find what they are looking for more quickly, and understand the fee structure for downloading records. The update is also designed to improve accessibility for people with disabilities.

Read more.

BASF program 7/16 on the appellate courts

Charles Johnson
Clerk/Executive Officer, 1st District Court of Appeal

Susan Gelmis
Chief Deputy Clerk, Ninth Circuit

Jorge Navarrete
Clerk/Executive Officer, California Supreme Court

 Moderator: Ben Feuer
Now well into the age of coronavirus, with months of experience in distance case processing and virtual oral arguments, we’ll hear how it’s all going for jurists, staff, and practitioners in the appellate courts of San Francisco

 Thursday, July 16, 2020

2:00 - 3:15 p.m.
MCLE: 1 Hour in Appellate Legal Specialization Credit
A link to access the Zoom meeting will be sent in your confirmation e-mail
2 hours prior to the start of the event.

Thursday, June 25, 2020

Increasing Appellate Diversity

The Appellate Project
From, more on how the 'Appellate Project' Aims to Boost Diversity in Specialized Bar
  • During his time as a federal trial and appellate judge in Pennsylvania from 1991 to 1999, Timothy Lewis says, “I could count on half of one hand how many Black lawyers argued before me.”
  • When Lewis went to private practice, he often served as a moot court judge for appellate practitioners and did not need a hand to count. “I never mooted a Black lawyer,” he said in an interview Tuesday.
  • And that is why Lewis, who is African American, jumped at the opportunity to join the advisory board of The Appellate Project, a new effort to increase diversity in the prestigious but largely male and white-dominated niche practice of appellate law.

Wednesday, June 24, 2020

Still shockable

The Recorder has ‘Not a Close Call’: Calif. Appeals Court Reverses Reduced Sentence Against Man Convicted of Hate Crime

“We’ve seen enough to make it difficult to shock us. But not, as it turns out, impossible,” the panel said in overturning a trial judge’s sentence.