Wednesday, February 8, 2023

Expected closure of 2d Dist. courtroom later this year

The courtroom in the Ronald Reagan State Building will be closed from April 10 to June 2, 2023 to complete technical upgrade work. All divisions will return to remote appearances during this time. Once the courtroom is re-opened, it should be open to all counsel and clients.


Law.com has 'Stop Ignoring the Call': The ABA Wants a Code of Ethics for Supreme Court Justices -- "The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court," the ABA measure said.

RIP Bill Vickery (1948-2023)

Today's DJ has William C. Vickery, 1948 - 2023 -- During his 20-year tenure as administrative director of the Judicial Council, Vickrey collaborated with chief justices, the Judicial Council, and the courts on historic reforms for California’s judicial branch. "Vickrey served three California Chief Justices — Malcolm Lucas, Ronald M. George and Chief Justice Tani G. Cantil-Sakauye."

The Recorder has William Vickrey, Former Administrator of California's Courts, Dead at 75 -- Vickrey served under three chief justices during a 19-year career where he oversaw a restructuring of California court administration. "For two decades, Vickrey led what was then known as the Administrative Office of the Courts, serving under three chief justices as California’s judicial branch moved from a system of 58 county-based trial courts to a more centralized operation under the Judicial Council."


In Memoriam: Longtime Judicial Council Administrative Director William C. Vickrey
Vickrey received numerous awards for his public service contributions, including the National Center for State Courts’ (NCSC) Warren E. Burger Award in 1995, induction into the NCSC’s Warren E. Burger Society in 2009, and the Judicial Council of California’s Distinguished Service Award in 1999.

Monday, February 6, 2023

RIP UCLAw's Herb Morris


PJ Gilbert's monthly column in the DJ is Did I write this column or ...? about--what else?--ChatGPT, and also the late Professor Herb Morris.

Today's DJ also has Myron Moskovitz in Fighting for "Turnaround" about zealous advocacy and arguing forcefully even in the face of a negative tentative or panel that is obviously against your position.

Ninth Circuit Court of Appeals to HoldFirst Law School Special Sitting Since 2020 – The United States Court of Appeals for the Ninth Circuit will hear oral arguments during a special sitting on February 15 at the University of San Diego School of Law in San Diego, California. This will be the first special sitting at a law school since the onset of the pandemic in 2020.

On February 16 from noon to 1 p.m., FBA-LA presents a webinar titled Supreme Court Ethics: Time for a change?  -- "In this virtual presentation we will hear from a distinguished panel discussing a historical perspective of Supreme Court ethics and issues such as whether Congress has jurisdiction to impose a code of ethics, issues of public trust, and the term limits debate."

The Recorder has ‘A Double-Edged Sword’: Why Young Judges Might Not Stick Around, discussing reasons why federal judges leave the bench, and noting Ninth Circuit Judge Paul Watford.

Judges who resign appear to skew younger. According to a National Law Journal review of the judges who left the bench early over the past three decades, 37 out of 42 of them were under the age of 50 when confirmed.

Friday, February 3, 2023

Judicial Application program

On Monday, March 22 (noon to 1:30) the California Judicial Mentor Program presents a free virtual webinar: What's Really Stopping You From Applying? A Discussion About the Imposter Phenomenon and the Judicial Application Process, featuring CSC Justice Jenkins, 1/5 PJ Justice Jackson, Judicial Appointments Secretary Luis Cespedes, retired Judge Jeremy Fogel, and hosted by LASC Judges Jessner and Tapia. Register at bit.ly/JMP2023

Also of interest, on The [F]Law blog is David vs Goliath: How Corporate Interests Dominate Civil Appellate Litigation & What We Can Do About It -- A gap in access to expert appellate legal representation has enabled wealthy corporations to shape the legal landscape to their benefit. Plaintiff-side appellate litigators are trying to change that.

Thursday, February 2, 2023

Judicial Council seeks your involvement!

The Executive and Planning Committee of the Judicial Council of California is soliciting nominations to fill vacancies on:

  1. Judicial Council Advisory Bodies,
  2. Judicial Council Education Curriculum Committees, and
  3. 2023–2024 Solicitation for B. E. Witkin Judicial College Steering Committee.

Please complete the online nomination forms for the advisory body, the Education Curriculum Committee, or the Steering Committee by March 31, 2023. Alternatively, fillable nomination forms can be downloaded from the California Courts Website at http://www.courts.ca.gov/4650.htm. Forms completed offline, with the nominee’s biography or curriculum vitae, can be emailed by March 31, 2023, to: jcsupport@jud.ca.gov


Senior Status article / Meet the New Justices

Prof. Xiao Wang's latest law review article is The Old Hand Problem, about federal judges taking senior status: " judges eligible to take senior status are today—more than ever before— deciding to do so in a politically strategic manner."

See also from Bloomberg Law Biden Judge Picks Delayed as Judiciary Panel Members in Flux, noting "Lawmakers on Thursday voted 10-10 on Anthony Johnstone’s nomination to the US Court of Appeals for the Ninth Circuit"

Free Webinar! Meet New Justices on the Court of Appeal

March 23, 2023, 12:15 p.m. | REGISTER HERE

Please join us for the First Annual CLA Committee on Appellate Courts “Meet New Justices” Program. This program will be introductions to some of the newest justices on the Court of Appeal from across California.

  • Justice Stacy Boulware Eurie, Third Dist.
  • Justice Martin Buchanan, Fourth Dist. Div. 1
  • Justice Jeremy Goldman, First Dist., Div. 4
  • Justice Victor Viramontes, Second Dist., Div. 8

Wednesday, February 1, 2023

Nominations, promotions, retirement

 Today's DJ has:

  • 4 nominated to seats on courts of appeal; 10 named to superior courts -- Justice Tracie L. Brown was nominated for presiding justice of the 1st District Court of Appeal, Division 4. Judge Tari Cody of Ventura County has been nominated to the 2nd District Court of Appeal, Division 6. Los Angeles County Judge Audra Mori was nominated to serve on the 2nd District Court of Appeal, Division 4. Judge Julia Kelety, on the San Diego County Superior Court since 2003, was nominated for the 4th District Court of Appeal, Division 1.
  • Retired Court of Appeal justice joins ADR Services Inc. -- Justice Thomas L. Willhite Jr. spent 30 years as a jurist and authored more than 2,000 opinions.
  • Fluent in Italian, Willhite has been a guest lecturer in comparative law at two Italian universities. “In March I’m going to the University of Bologna. I’m truly honored because it’s the oldest law school in the world,” Willhite said. “My hope is to do that about twice a year, taking two weeks and doing some lecturing over there.”

    The Record has Governor Turns to Big Law Alums, Legislature for Latest Round of Judicial Nominations

    The Wall St. Journal has Only Bad Writers Should Fear ChatGPT -- A lot of what we read is terrible. How could the robots do worse? -- which concludes:

Whether you want them or not, the robot-writers are coming. Soon we will be able to generate solid writing as easily as we use internet search engines. We’ll get practical results that work for practical purposes. But when something new or weighty needs to be shared, we will turn to human writers who have the gift of conveying the unexpressed thought in words that are original and artful. That’s the kind of writing humans should do—and if that’s our destiny, we should embrace it, even if fewer of us do the work.

Read the latest message from the Los Angeles Superior Court: Nation’s Largest Trial Court Offers Substantial Incentives to Retain and Recruit Official Court Reporters Amid Staffing Shortage; The Recorder has LA Superior Rolls Out Five-Figure Incentives to Attract Court Reporters -- Los Angeles official court reporters can qualify for retention pay, employee referral bonuses and help with student loans under a new program.

And see Report: Drop Statute of Limitations in State Judicial Misconduct Cases

Eliminating the disciplinary time frame was one of a number of provocative suggestions made by the committee, which was created by the Legislature in 2021 to recommend potential changes to how the Commission on Judicial Performance operates.

And retired LASC Judge Benny Osorio has (in The Recorder) Supreme Court To Decide If Stay Is Required Pending Arbitration Appeal

Tuesday, January 31, 2023

New Justices!

 Governor Gavin Newsom today announced his nomination of four Court of Appeal Justices: Justice Tracie L. Brown as Presiding Justice of the First District Court of Appeal, Division Four; Judge Tari Cody as an Associate Justice of the Second District Court of Appeal, Division Six; Judge Audra Mori as an Associate Justice of the Second District Court of Appeal, Division Four; and Judge Julia Kelety as an Associate Justice of the Fourth District Court of Appeal, Division One.


First District Court of Appeal
 


Justice Tracie L. Brown, 51, of San Francisco County, has been nominated to serve as Presiding Justice of the First District Court of Appeal, Division Four, where she has served as an Associate Justice since 2018. Justice Brown served as a Judge at the San Francisco County Superior Court from 2013 to 2018. She served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Northern District of California from 2002 to 2013 and was an Associate at Cooley Godward Kronish LLP from 1997 to 2002. Justice Brown served as a Law Clerk for the Honorable M. Margaret McKeown at the U.S. Court of Appeals, Ninth Circuit from 1998 to 1999 and was an Associate at Morrison and Foerster LLP from 1996 to 1997. She earned a Juris Doctor degree from the University of California, Berkeley School of Law. Justice Brown fills the vacancy created by the retirement of Presiding Justice Stuart R. Pollak. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Jim Humes. She is a Democrat.

Second District Court of Appeal
 


Judge Tari Cody, 63, of Ventura County, has been nominated to serve as an Associate Justice of the Second District Court of Appeal, Division Six. She has served as a Judge at the Ventura County Superior Court since 2000. Judge Cody was an Associate at Lemieux & O’Neill from 1994 to 2000. She was an Associate and Partner at Nordman, Cormany, Hair & Compton from 1985 to 1994. Judge Cody earned a Juris Doctor degree from Loyola Law School. She fills the vacancy created by the retirement of Justice Steven Z. Perren. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Arthur Gilbert. She is a Democrat.
 


Judge Audra Mori, 55, of Los Angeles County, has been nominated to serve as an Associate Justice of the Second District Court of Appeal, Division Four. She has served as a Judge at the Los Angeles County Superior Court since 2018. Judge Mori was Managing Partner of the Los Angeles Office of Perkins Coie LLP from 2017 to 2018, where she was a Partner from 2005 to 2018. She was a Partner at Piper Rudnick LLP from 2002 to 2004 and at Preston, Gates and Ellis LLP in 2002, where she was an Associate from 1998 to 2001. Judge Mori was an Associate at Andrews Kurth LLP from 1996 to 1998 and served as a Law Clerk to the Honorable Richard W. Goldberg at the U.S. Court of International Trade from 1994 to 1996. She was an Associate at Brobeck, Phleger and Harrison from 1992 to 1994. Mori earned a Juris Doctor degree from Cornell Law School. Judge Mori fills the vacancy created by the retirement of Justice Thomas Willhite. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Arthur Gilbert. She is registered without party preference.

Fourth District Court of Appeal
 


 

Judge Julia Kelety, 62, of San Diego County, has been nominated to serve as an Associate Justice of the Fourth District Court of Appeal, Division One. She has served as a Judge at the San Diego County Superior Court since 2003. Judge Kelety was a Partner and Associate at Wiggins & Kelety LLP from 1997 to 2003. She served as an Assistant U.S. Attorney at the U.S. Attorney's Office, Southern District of California from 1990 to 1997 and was an Associate at Gibson, Dunn & Crutcher from 1986 to 1990. Judge Kelety served as a Law Clerk for the Honorable Mary M. Schroeder at the U.S. Court of Appeals, Ninth Circuit from 1985 to 1986. She earned a Juris Doctor degree from Cornell Law School. Judge Kelety fills the vacancy created by the elevation of Justice Patricia Guerrero to the California Supreme Court. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Manuel A. Ramirez. She is a Democrat.
The compensation for each of these positions is $264,542.


2d DCA pro tem update

 

The following are currently sitting on assignment in the 2d District:

  • Associate Justice Patricia D. Benke (ret.) of the Fourth District Court of Appeal will be sitting Pro Tem in Division Three until February 28, 2023  
  • Judge Kim Nguyen of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until April 1, 2023  
  • Judge Natalie P. Stone of the Los Angeles Superior Court will be sitting Pro Tem in Division Four until February 28, 2023  
  • Judge Nicholas F. Daum of the Los Angeles Superior Court will be sitting Pro Tem in Division Four until February 28, 2023 
  • Judge Geoffrey M. Howard of the Marin County Superior Court will be sitting Pro Tem in Division Seven until February 28, 2023 

LA Times 9th Cir. article

Yesterday's LA Times had Biden has bolstered 9th Circuit’s liberal flank, but has yet to match Trump’s impact, which begins:

  • President Biden is leaving a distinct mark on the U.S. 9th Circuit Court of Appeals, adding relatively young jurists of color who have bolstered the influential court’s liberal flank.
  • So far, the president has appointed three Asian women, a Black woman and two Latino judges, all of whom have extensive experience in legal fields important to progressives, including civil, labor and voting rights law. And he is poised to fill two additional seats on the circuit. The eight appointments during Biden’s first term would be one more than President Obama made to the court during his two terms in office.

Monday, January 30, 2023

Appellate workhorses and show ponies

 

Law360 has Appellate Practices Need Workhorses And Show Ponies

  • If the litigator's cliche movie triumph is a fiery closing argument at trial, the appellate specialist's big-screen pinnacle might be clashing with a Supreme Court justice in a high-stakes constitutional fight. But most practicing appellate attorneys will never bring home a ceremonial quill from One First Street.
  • Much of the appellate bar thrives in state high courts and circuit court arguments, drafting meticulously researched and persuasively composed briefs. They're in trial courtrooms hashing out hotly contested verdict forms and carefully negotiated supersedeas bonds — none of which will be the centerpiece of John Grisham's latest legal showdown or an episode of "The Good Fight."
  • Most appellate practices blend moments of high drama with the behind-the-scenes litigation mechanics that keep cases moving. Appellate lawyers strive to build personal practices with their own ideal mix of the many different elements of appellate lawyering, and to find colleagues who complement their strengths in a way that brings home the best results for clients.

Friday, January 27, 2023

Strong admonishment (but no sanctions)

 

Today's appellate ethics lesson comes from J.Banke in the last two pages o the decision here:

We close with an admonition we do not lightly make but are compelled to do so here given the vituperative tenor of appellant’s brief and the nature of the accusations he has leveled against the probate court and opposing counsel.  “[A]n opening brief is not an appropriate vehicle for an attorney to ‘vent his spleen’ . . . .  This is because, once the brief is filed, both the opponent and the state must expend resources in defending against and processing the appeal.  Thus, an unsupported appellate tirade is more than just words on paper; it represents a real cost to the opposing party and to the state.”  (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 p. 33 [awarding sanctions for frivolous arguments 33, fn. omitted; id . at unsupported by the record made in an opening appellate brief].)  Further, “[d]isparaging the trial judge is a tactic that is not taken lightly by a reviewing court.  Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ 138 Cal.App.4th 396, 422.)  ”  ( In re S.C. Appellant’s unwarranted attacks on the court and (2006) opposing counsel also reflect poorly on the profession.  Impugning the character of opposing counsel is almost never appropriate, and in this case as we have noted, the charges were wholly unfounded.  (See, e.g., at p. 41 In re S.C. , supra , 138 Cal.App.4th 2 [“unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct”]; 238 Martinez v. Department of Transportation Cal.App.4th 559, 566 [“Attorneys are not to mou (2015) nt a personal attack on the opposing party even by insinuation.”] .) 

It would be deeply disturbing if the lack of professionalism and respect reflected in counsel’s conduct toward the probate court and opposing counsel were common among members of the bar.  Based on our experience, it is not.  For counsel’s benefit, however, we repeat the admonition of the Board of Governors of the State Bar that “attorneys have an obligation to be professional with . . . other parties and counsel, [and] the courts. . . .  This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”  (Cal. Attorney Guidelines of Civility and Professionalism (July 20, 2007) p. 3; id., p. 5, § 4(c), (f) [“An attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue. [¶] . . . [¶] . . . An attorney should avoid hostile, demeaning or humiliating words.”].)5  The kind of conduct displayed in appellant’s brief “not only disserves the individual involved, it demeans the profession as a whole and our system of justice.”  (Id., p. 3.)  Rather, counsel must “strive for the highest standards of attorney behavior to elevate and enhance our service to justice.”  (Ibid.)    We strongly admonish appellant’s counsel to conduct himself in a more professional manner when appearing before this or any other court and note that such conduct in a future case may subject him to sanctions much harsher than this warning.

New CSC Chief Supervising Atty

Chief Justice Names New Chief Supervising Attorney, Assistant Chief Supervising Attorney
  • California Chief Justice Patricia Guerrero has named Kyle Graham as the Supreme Court’s new chief supervising attorney. Graham, who will also head the Chief Justice’s chambers staff, replaces Jake Dear, who retired after serving in that role since 2007 and 40 years of service to the court. The Chief Justice has also named Jonathan Lange to replace Graham as assistant chief supervising attorney at the court.
  • Chief Justice Guerrero: “Kyle has served the California Supreme Court admirably for years and brings to this court vast experience as both an attorney and legal scholar. I have worked closely and productively with Jon as my chambers attorney for years at the Court of Appeal and the Supreme Court. Together with my other staff, Kyle and Jon’s leadership will provide forward-looking continuity as I commence my tenure as 29th Chief Justice of California.”
  • Graham has been the court’s assistant chief supervising attorney under Dear since 2017. After earning his juris doctor degree from Yale Law School in 2001, Graham served as a law clerk for U.S. District Judge William Alsup, staff attorney for Associate Justice Carlos Moreno, associate with the law firm of Gibson, Dunn & Crutcher LLP, deputy district attorney of Mono County, and a professor at Santa Clara University School of Law.

CAAL Tweets

CAAL's Twitter feed is on its webpage and it has the following recent announcements:

The California Academy of Appellate Lawyers is very pleased to announce that Hassan Gorguinpour, with the Office of State Public Defender in Sacramento, was admitted as a new Academy member at the January 2023 meeting.

Congrats to Academy member Daniel Bromburg who has been confirmed as a Justice on the Sixth District Court of Appeal.

Wednesday, January 25, 2023

Support the CSCHS

Today's DJ has Dan Kolkey's article Why is there a California Supreme Court Historical Society? which concludes:

Needless to say, these oral history projects, programs, the biannual Review, and our annual journal, California Legal History, all depend on financial support, which is tax deductible except for the cost of the hard copies of the publications that you receive. You can find our membership form and the various levels of membership on our website at https://www.cschs.org/about-california-supreme-court-historical-society/membership. A dues checkoff for the Society is also available to attorneys when they pay their State Bar dues. Help us preserve California's legal legacy.

And on the topic of CSC history, John Caragozian's latest DJ piece is California's Violent Chief Justice -- David Terry, newly elected to the Supreme Court and also a Committee opponent, was present. Terry drew his Bowie knife – which he habitually carried – and gravely wounded Sterling Hopkins in the neck.

And see Daniel Webster’s unique Supreme Court legacy

The 2023 SoCal Super Lawyers magazine is out, and about 95 lawyers are listed on page 56 in the Appellate category.

The NLJ has Covering History in the Making -- U.S. Supreme Court reporter Marcia Coyle looks back at her 35 years of coverage here at The National Law Journal.

William Howard Taft, a president and a chief justice, once said: “Presidents come and go, but the Supreme Court goes on forever.”

Tuesday, January 24, 2023

$69k appellate sanctions imposed

The 6th District imposes hefty appellate sanctions ($60,391.11 to respondent  plus $8,500 to the clerk of court) against an appellant and his counsel in an unpub'd decision here today:

  • We decide that this appeal is frivolous under the Flaherty standard in light of the clear application of the law of the case doctrine.  In attempting to avoid application of this well-established doctrine, Le’s briefing misrepresents the record
  • Sanctions are appropriate because Le’s arguments “are not supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.” 
  •  given the clear application of the law of the case doctrine in this instance, we conclude that any reasonable attorney would agree that the appeal is totally and completely without merit 
  • Le’s briefing as to the substantial evidence claim does not comply with basic principles of appellate procedure.
  • Significantly, Le’s substantial evidence argument misrepresents the record and misapplies the standards of appellate review. 
  • Third, it appears Le and Le’s attorneys filed the present appeal to delay the contempt proceedings against Le.  
  • the arguments made by Le’s attorney [] at oral argument in this appeal reinforce our decision to impose monetary sanctions in this instance.  

J. Elia to ADR Services

 

Retired California Court of Appeal Justice Franklin D. Elia (Ret.) has joined ADR Services, Inc. 


Available for Mediations, Arbitrations, References, & Appellate Consultations


[The DJ's story is Retired appellate justice joins ADR Services Inc. in San Jose -- Franklin D. Elia, the longest-serving justice on the 6th District Court of Appeal, authored nearly 3,400 opinions and participated in nearly 12,000 cases.]

Colo. High Court Adopts New Recusal Rule For Justices

Monday, January 23, 2023

USNS Earl Warren

 

The San Diego Union Tribune has Navy christens massive ship bearing name of legendary Supreme Court Chief Justice Earl Warren, noting: At the pierside ceremony in San Diego (on Saturday), current Supreme Court Justice Elena Kagan spoke of Warren’s courage in advancing civil and individual rights.

Acting on behalf of the Navy, Supreme Court Justice Elena Kagan slammed the bottle against the gunmetal gray hull of the USNS Earl Warren, causing a frothy explosion that left her covered in bubbly.
Bloomberg has Americans Like the Supreme Court More — But Still Not That Much -- Support reaches 47%, still well below September 2020 level. Poll sees support for ruling barring race-conscious admissions.

Law.com has Is ChatGPT Ready for Its Day in Court? Experts Say No Way -- While ChatGPT has legitimate potential uses in the legal industry, recent proposals that amount to having the technology practice law on behalf of clients are a step too far in the mind of legal experts.

Friday, January 20, 2023

Aaron joins Judicate West

 Today's DJ has:

  • Retired Court of Appeal justice joins Judicate West in San Diego -- Cynthia G. Aaron sat on the 4th District Court of Appeal for 20 years. She has also been a U.S. magistrate judge and public defender.
  • Dobbs draft opinion leak becomes Supreme Court cold case -- The report by Marshal Gail Curley stated that investigators interviewed 97 court employees, some more than once, and that all of them signed affidavits, under penalty of perjury, affirming that they did not disclose the draft opinion.
  • Dean Chemerinsky's Abusing the shadow docket -- It again is five conservative justices advancing the conservative agenda, here with regard to immigration, in violation of clear legal rules and using the shadow docket to achieve their goals.
And today at 2:30 MST (not PST) the 9th Circuit livestreams the Investiture of The Honorable Roopali H. Desai.

Thursday, January 19, 2023

SCOTUS Statement re Dobbs Leak

SCOTUS has issued a STATEMENT OF THE COURT CONCERNING THE LEAK INVESTIGATION including Marshal’s Report of Findings & Recommendations.

The Marshal reports that “[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending.” Marshal’s Report 2. “To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”


Law360 has Supreme Court Says It Hasn't Identified Dobbs Leaker -- The U.S. Supreme Court said Thursday that its internal investigation into last year's unprecedented leak of the draft abortion ruling in Dobbs v. Jackson Women's Health has been "unable to identify a person responsible by a preponderance of the evidence."