Friday, September 23, 2022

Cal Courts closed today


California Courts to Honor California Native American Day
State judicial branch, local court employees will be first public workers to celebrate “California Native American Day” as an official holiday.

Said California Chief Justice Tani G. Cantil-Sakauye: “This coming Friday, Sept. 23, will be a first—a newly celebrated judicial branch holiday, our California Native American Day. The Judicial Council was proud to sponsor this landmark legislation authored by Assemblymember James Ramos last year. By honoring California Native American Day, we properly recognize the contributions and history of our state’s First People. The important day marks another step in our mission in the judiciary to provide equal access and fairness throughout our justice system—one in which all Californians feel welcome and are represented.”

How to address the imbalance of women and men in appellate law

Thursday, September 22, 2022

CSC Year in Review

The Cal Supreme Court has posted its Year in Review, highlighting key events and statistics from the 2021-2022 court year.

  • The California Supreme Court issued 49 majority written opinions during the September 2021–August 2022 court year. (23 civil, 11 criminal, 15 death penalty)
  • The court received 5,577 filings, including 3,294 petitions for review from California’s six appellate court districts, and resolved 5,819 filings, including 3,545 petitions for review.
  • The court also debuted a new website, developed based on months of user input from attorneys, court staff, the media, and members of the public across the state. It features improved accessibility, including archives of oral argument webcasts and their related opinions organized by year.

And see here for 1/2 imposing frivolous appeal sanctions on client and counsel (in the amount of  $56,389.70 for respondent's attorney fees and costs).
This appeal’s “total lack of merit” is apparent. The only issue raised is whether the trial court abused its discretion by sanctioning [Appellant] on September 9.

(But no sanctions were imposed in a related appeal here.) 

Wednesday, September 21, 2022

CSC Statement on "Are bees fish?"

See the 3-Supreme Court Justice Statement (starting at p. 37) here, noting:

Yet if experience is any guide, our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” [] warranting this court’s intervention, because the Legislature could not possibly have intended such a result?


How would YOU amend the U.S. Constitution? That's the question that was posed to 3 teams (Team Libertarian, Team Progressive, and Team Conservative) and here's their surprising report (only a dozen pages and worth the read).

On Nov. 2, BASF presents a 1-hour webinar DIY Appeal - Overcoming Problems Procuring the Record with panelists Kelly Woodruff, Ted Pelletier, and Gerald Clausen.


The latest issue of ASCDC's Verdict Magazine has an article by Conway Marshall titled From the Other Side - Surety Insight for Appeal Bonds (p. 35-36) with all you'd ever want to know and more about appeal bonds.

The Recorder's On Appeals column is Susan Yorke's When the Court Phones a Friend: Certification of Questions of State Law

In 2020, the U.S. Supreme Court issued two decisions (McKesson v. Doe, 141 S. Ct. 48, 49 (2020) (per curiam), and Carney v. Adams, 141 S. Ct. 493, 504 (2020) (Sotomayor, J. concurring)) discussing the importance of certification. And just two months ago, Justice Elena Kagan pondered during argument in U.S. v. Washington—a case involving a state law aimed at federal workers who got sick while cleaning up the Hanford nuclear site—whether certification to the Washington Supreme Court might be appropriate. Meanwhile, the U.S. Court of Appeals for the Ninth Circuit certified nearly four times as many questions between 2015 and 2019 (84) as it did between 1990 and 1994 (23).

On the caselaw front, this pub'd opinion today from Justice Richman contains many zingers and nuggets, and this nice appealability reminder:

Generally, discovery orders are not appealable. [Cite] “However, appellate courts have recognized an exception to this general rule for discovery orders issued in California requiring production of information to be used in an action pending in another jurisdiction, which orders the courts have found are final and appealable.” (Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 464 ....)

Evans CJA hearing Nov. 10

More Appellate Must-See TV: Commission to Consider Selection of Judge Kelli Evans to California Supreme Court
  • The Commission on Judicial Appointments will hold a public hearing on Nov. 10 at 10 a.m. in the Supreme Court Courtroom—located on the fourth floor of 350 McAllister Street in San Francisco—to consider the selection of Judge Kelli Evans to the California Supreme Court.
  • The hearing will be webcast live on the California Courts Newsroom.

DJ Top 100 list includes appellate lawyers

The DJ's Top 100 Lawyers insert is out today, and it includes a number of SoCal appellate lawyers: Ted Boutrous, Theane Evangelis, Barry Landsberg, Mira Hashmall, Norm Pine, Peter Stris; and a NorCal inclusion ... Jon Eisenberg:

Eisenberg's campaign against the 3rd DCA caused three appellate justices to leave office, including Coleman A. Blease, William J. Murray, Jr. and the presiding justice, Vance W. Raye, who retired as part of his CJP punishment. A fourth justice, Harry E. Hull, Jr., remains on the bench and may still face CJP discipline, Eisenberg said.

Today's DJ also has 36 cases transferred between appellate courts last month, but not the 3rd -- The transfer came two months after Chief Justice Tani G. Cantil-Sakauye announced in June she had created an Appellate Court Workgroup to look at “policies, procedures and case management” in the appellate courts.

  • The California Supreme Court transferred 136 cases between appellate courts last month. None involved the beleaguered 3rd District Court of Appeal — apparently because that court has not asked. In fact, according to the Judicial Council, the short-handed 3rd District has made strides in addressing its backlog.
  • Of the 136 cases, 18 came from the 4th District, Division 2, 58 from the 5th District, and 60 from the 6th District. Eight of the cases went to the 4th District, Division 2, 40 went to District 1 and 88 were transferred to District 2.

Tuesday, September 20, 2022

Beds' latest

Beds invokes Sherlock and Klingons in The Adventure of the Purloined Lamps.

Christopher Plummer as Holmes in Murder by Decree
and as General Chang in Star Trek VI: The Undiscovered Country.

Monday, September 19, 2022

Happy Constitution Day!

Judge Ryan Nelson has a Constitution Day piece in today's Idaho Statesman:  On Constitution Day, remember the fundamentals of our republic. Too many no longer do, which begins "For 234 years, the U.S. Constitution has served as the bedrock of our government. Today, more than ever, Americans must understand our political heritage. Not understanding our Constitution hampers civic discourse and threatens our freedom. On Constitution Day, reviewing some fundamental principles will improve our nation for all."

Today's DJ has CALG's Charles Kagay in Attorney beware, frivolous appeal can lead to sanctions -- Every potential appeal should be evaluated before filing, for both substance and motive, by an attorney knowledgeable about the appellate process. The article cites Clarity Co. Consulting, LLC v. Gabriel, 77 Cal. App. 5th 454 (2022) as a recent example of sanctions for a frivolous appeal.

The DJ also has Judge Dorothy Wright Nelson will receive Lifetime Achievement Award on Thursday:
“Well, frankly, when I was first offered this, I turned it down because it’s really as a result of my founding of the Western Justice Center, and I consider the founding to be due to collaboration among a whole lot of wonderful people,” Nelson said.

And the DJ reports California Academy of Appellate Lawyers admits five new members:

The California Academy of Appellate Lawyers has admitted five new members. They are: Jeffrey I. Ehrlich of the Ehrlich Law Firm, Rebecca P. Jones of the Law Offices of Rebecca P. Jones, Jens B. Koepke of Shaw Koepke and Satter LLP, Judith E. Posner of Benedon & Serlin LLP and Leah Spero of the Spero Law Office.

The September 2022 issue of Litigation Update is now online, keeping you up to date on current case law.

Saturday, September 17, 2022

Federal appeals mostly broadcast live

Bloomberg Law has Justices Yet to Decide on Live Audio Kept in Appeals Courts

  • The US Supreme Court has yet to reveal whether livestreaming will continue even as Chief Justice John Roberts signaled that its courtroom will reopen to the public next month.
  • Eleven of the 12 regional federal appeals courts as well as the Federal Circuit continue to let the public listen to real-time audio of proceedings. (The 11th Cir. is the exception.)
  • Just the D.C. Circuit and the Ninth Circuit regularly provided a live feed of arguments before the pandemic. The San Francisco-based Ninth Circuit goes a step further, offering live video for arguments. Other circuits—as well as the Supreme Court—followed suit with live audio when Covid forced many courts to go remote or limit public access in 2020.

Thursday, September 15, 2022

CA & FL match districts

This map is now outdated!

Law360 has an article here about how: "On June 2, Florida Gov. Ron DeSantis signed H.B. 7027, creating Chapter 2022-163, Laws of Florida, which established the Sixth District Court of Appeal — Florida's first new appellate court since the creation of the Fifth District Court of Appeal in 1979."

Interesting how the geographical region (i.e., counties) encompassed by the districts are called "judicial circuits":

The creation of the Sixth District will affect the boundaries of the First, Second and Fifth District Courts of Appeal, while the boundaries of the Third and Fourth Districts will remain unchanged. The Sixth District is acquiring the Tenth Judicial Circuit (Hardee, Highlands and Polk Counties) and the Twentieth Judicial Circuit (Charlotte, Collier, Glades, Hendry and Lee Counties) from the Second District Court of Appeal. The Ninth Judicial Circuit — Orange and Osceola Counties — currently part of the Fifth District Court of Appeal, will join the Sixth District. The Fourth Judicial Circuit — Clay, Duval and Nassau Counties — will join the Fifth District Court of Appeal.

Wednesday, September 14, 2022

Oops: forgot the cites...

 The California Rules of Court require citation with volume and page references to the record. Simply using "CT __" (without any volume or page references) won't cut it. And yes, that's what happened in this published opinion today. See also here.

  • Sixth Circuit Judge Jeffrey Sutton said he is concerned about unhelpful 'overwrought opinions' that can harm the judiciary.
  • Heated rhetoric makes consensus harder in future cases, Judge Diane Wood said.
  • The judges also looked at polling showing a drop in the public's confidence in the justices.

Tuesday, September 13, 2022

RIP Ken Starr (1946-2022) has: Former US Solicitor General, 'Legal Giant' Ken Starr Dies at 76

Former Solicitor General and federal Judge Ken Starr, who made headlines during the impeachment trials of two former presidents, has died at the age of 76.

SoCal appellate lawyers also remember him as Dean Starr of Pepperdine. 

Monday, September 12, 2022

Mendoza confirmed to 9th Circuit! reports: Senate Confirms Salvador Mendoza to 9th Circuit -- Mendoza is the first Hispanic judge from Washington to sit on the country’s largest federal appeals court.

  • Mendoza, a trial judge in the Eastern District of Washington since 2014, was confirmed in a 46-40 vote.
  • Before joining the federal bench, Mendoza worked as a solo practitioner and later was a judge pro tempore in several district, municipal and juvenile courts in Washington. Gov. Jay Inslee tapped him to serve as a state court judge in 2013.
  • Mendoza will take the seat previously filled by Judge M. Margaret McKeown, who announced her intention to take senior status upon appointment of a successor in January.
  • The U.S. Senate voted 46-40 Monday to confirm U.S. District Judge Salvador Mendoza Jr. to the Ninth Circuit, making him the 80th federal judge to be approved since President Joe Biden took office.
  • Judge Mendoza is the sixth Biden nominee to be confirmed to the Ninth Circuit, and the 21st circuit court confirmation since last year.

The DJ has US trial judge in Washington state confirmed to 9th Circuit

Eight Biden district court nominees in California are awaiting Senate Judiciary Committee hearings or floor votes. He has not nominated anyone for two Central District vacancies as well as a Southern District position.

Appellate round-up

The Recorder has: Judge [Bea] Chides Colleagues for Using 'Noncitizen' Instead of 'Alien' in Immigration Ruling -- The majority [Murguia & Berzon] said readers might find the word "alien" to be offensive and opted for the term "noncitizen" instead.

Bloomberg Law has John Roberts Decries Attacks on Supreme Court’s ‘Legitimacy’

Law360 has Roberts Seeks Return To Normalcy: 'More Normal, The Better'

And Law360 also has High Court 'Shadow Docket' Still A Long Shot For Companies

The US Courts News reports Supreme Court Fellowship Program Resumes with 4 New Fellows

Four new U.S. Supreme Court Fellows are set to begin their 2022-2023 fellowships in September. They are the first to experience the program in-person in nearly two years; the COVID-19 pandemic forced the 2020-2021 class to work virtually and led to a decision to pause the program the following year.

The DJ has PJ Gilbert's Mistakes v. Errors.

On Sept. 29 (noon to 1:30 at the Biltmore) FBA-LA will have Dean Chemersinky's SCOTUS review program, as well as the Judge Barry Russell Federal Practice Award. Details here.

As for cases, here's one where the appeal gets dismissed as untimely, but here's one where an untimely appeal is saved by the doctrine of constructive filing (which applies for incarcerated appellants).

Thursday, September 8, 2022

LASC Clerk Carter to retire

LASC has issued the following press release:


A Leader with Executive Court Leadership on the State, National & International Levels, Carter will be Recognized on December 1 with a Judicial Council of California Distinguished Service Award

After leading the operations of the nation’s largest trial court for nearly a decade – including oversight of an annual budget totaling almost $1 billion and a 4,800-member workforce – Executive Officer/Clerk of Court Sherri R. Carter will be retiring from court service at the end of December, Presiding Judge Eric C. Taylor announced today.

“Ms. Carter’s leadership has fundamentally transformed the largest court in the nation: from new case management systems to business process improvements, to flexibility in the face of disaster – her commitment to modern management and administration is unparalleled,” Presiding Judge Taylor said. “It has been an honor to work so closely with her during this historic time of crisis. On behalf of the bench, I offer my most sincere congratulations and gratitude for her unshakeable dedication and team leadership as we navigated the Court through a once-in-a-century pandemic to provide safe access to justice for the residents of Los Angeles County.”

Presiding Judge Taylor nominated Carter for the Judicial Council of California’s Distinguished Service Award for her many accomplishments in the furtherance of access to justice and outstanding court administration. Carter will receive the award during a ceremony in December.

Sanctions imposed for bad appendix


In an unpub'd decision today, 2/6 issues appellate sanctions here:

  • Krablin has filed two motions seeking monetary sanctions against IQ and/or its attorneys for (1) submitting an inadequate appellant’s appendix and (2) pursuing a frivolous appeal. We grant the first motion and order IQ’s attorneys to pay Krablin $15,050 to compensate him for the attorney fees incurred to obtain the corrected appendix. With some reluctance, we deny the second motion.
  • Although the 10volume appendix was 2,600 pages in length, it did not include the judgment, operative complaint, register of actions and 14 other necessary documents.
  • Much as we are troubled by IQ’s unsupportable arguments, we assume that counsel’s motive was their misguided view that they were providing vigorous advocacy.

Wednesday, September 7, 2022

Dismissal in the e-filing era

It seems safe to say that every day an appeal somewhere is dismissed as untimely filed. Today 4/3 publishes an interesting and important dismissal case here:

Respondents move to dismiss this appeal as untimely. The notice of appeal was filed in the superior court more than 60 days after notice of entry of judgment was served upon appellants.

Appellants oppose dismissal on the grounds that they made a timely attempt to electronically file the notice of appeal. With the advent of electronic filing, two rules of court were enacted that arguably shelter (some) tardy notices of appeal from the jurisdictional deadline. (Rules 2.259(c) [“If a technical problem with a court’s electronic filing system prevents the court from accepting an electronic filing . . . the court must deem the document as filed on that day”], 8.77(d) [if “good cause” is shown based on “a failure at any point in the electronic transmission and receipt of a document, . . . the court may enter an order permitting the document to be filed nunc pro tunc”].)
A series of questions not yet answered in the case law present themselves: (1) does either (or both) rule apply to notices of appeal; (2) if so, which court (i.e., the trial court or the court of appeal) determines whether relief is provided to the appellant; (3) what burden of proof applies to factual determinations under the applicable rule or rules; and (4) does the evidence in this case justify providing relief under the applicable rule or rules?

We conclude: (1) both rules potentially apply to a notice of appeal, but only rule 8.77(d) is invoked by appellants; (2) a motion under rule 8.77(d) must be filed in the appellate court; (3) a party seeking relief under rule 8.77(d) must demonstrate “good cause,” which includes a preponderance of the evidence that an attempt to electronically file the document was made prior to the expiration of the deadline and that diligence was shown in promptly filing the notice of appeal after the failed attempt; and (4) appellants have not met that standard in this case.

[Update: The MetNews has C.A. Sets Rules for Relief Where Appeal Notice Filed Late]

For an unrelated unpub'd dismissal, see here.

Minear leaves SCOTUS


Bloomberg law has Chief Justice Roberts’ Top Aide to Retire Amid Tumultuous Year -- John Roberts’ chief of staff Jeffrey Minear is retiring effective Sept. 30, the high court announced Tuesday. Roberts appointed Minear to the position, which includes working on court-wide policies and initiatives and as liaison to the other branches of government, in 2006. He previously served in the US Solicitor General’s office, where he argued 56 cases before the Supreme Court. Law360's article is Jeffrey Minear, Justice Roberts' Top Counselor, To Retire

Tuesday, September 6, 2022

9th Cir. nomination & "holdings" & the great outdoors

Today's DJ has Montana professor named to 9th Circuit, Altshuler Berzon partner to Northern District, noting:

  • By nominating Johnstone, Thomas’ former clerk, to replace him, Biden has chosen someone to fill every vacancy on the 9th Circuit. Five of his nominees have been confirmed.
  • Johnstone, if confirmed, would not change the partisan split on the 9th Circuit, which has 16 judges appointed by Democratic presidents and 13 picked by Republicans.
  • Biden still has not nominated anyone to fill three California district court vacancies, two in the Central District and another in the Southern District.
  • Biden is moving, though more slowly than his progressive allies hoped, to fill circuit and district court vacancies. The U.S. Senate has approved 75 of those nominations, and Democrats hope to get to 100 by the end of the year, but that would still leave about 60 vacancies unfilled nationwide.
  • The Senate is evenly divided, with 48 Democrats and two independents who vote with them against 50 Republicans. As vice president, Kamala Harris gives Democrats a thin majority and was needed to allow 9th Circuit Judge Jennifer Sung’s nomination to pass last year.

Think you understand what a "holding" is? Today's monthly Exceptionally Appealing column in the DJ, Dicta ain't necessarily so, explains the Ninth Circuit's minority-view rule, as explained in Charles W. Tyler, The Adjudicative Model of Precedent, 87 U. Chi. L. Rev. 1551 (2020).

In other 9th Cir. news, The Marble Palace Blog has Justice William O. Douglas, an Early Activist of the Environmental Movement -- A compelling new book by a Ninth Circuit judge [McKeown] focuses on the conservation advocacy of Douglas and his high public profile, unlike any other.
The book is “CITIZEN JUSTICE: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion” and is available on Amazon.

On the State side of things: Division One in San Diego is now accepting applications for an Appellate Court Attorney (Level D to Senior) for the chambers of Associate Justice Truc T. Do. The job is posted on the Court’s career website under JOB ID 5687.

Friday, September 2, 2022

MT Prof nominated for 9th Cir.

Bloomberg Law reports Montana Law Professor Is Biden’s Pick for Ninth Circuit Seat

President Joe Biden intends to nominate a University of Montana law professor to the US Court of Appeals for the Ninth Circuit ... the White House announced.

Anthony Johnstone, a former solicitor for the state of Montana who began his legal career as a Ninth Circuit clerk in Montana [for Thomas] and Cravath associate in New York, is the only federal appellate nominee announced Friday along with eight federal trial court nominees.
Biden has made diversifying the federal bench a priority and 68% of his 143 judicial nominees have been women, 31% are Black, and 36% have been public defenders.