Kruger to SCOTUS?

The LA Times has this article here about how Biden's promise to put an African-American female on the U.S. Supreme Court means that California's Justice Kruger is a leading contender.

First paragragh says it all

Here's a short nonpub involving a pro. per. appellant with a "killer" first paragraph:

An appellate opinion often begins with a recitation of the pertinent background facts. The sparse record provided by defendant and appellant [] makes that difficult to do. And that difficulty ultimately drives our resolution of the appeal.

Oh Slappy Day!

Today's another one of those days where every decision seems to be a SLAPP case. Cases in point are this published one here, and then nonpubs here and here and here.

There's also an appealability case here, which concludes:

Given the lack of clear authority authorizing this appeal, it must be dismissed. The court was not directly resolving the appropriate disposition of trust property (by, e.g., considering the language of the trust and facts pertaining to the properties in dispute). Rather, the court was focused on the question of whether the parties had reached an enforceable settlement agreement. Neither the Probate Code nor the Code of Civil Procedure explicitly authorizes an appeal from an order denying enforcement of a settlement agreement. Expanding the reach of Probate Code section 1300 into the “grey area” represented by this case would not be consistent with this court’s duty to entertain only appeals of interlocutory orders for which we clearly have jurisdiction. This holding accords with the need for clear, bright-line rules in the realm of appealability jurisprudence. 

9th Cir. Conference Canceled

All Ninth Circuit Judicial Officers, Lawyer Representatives & Court Unit Executives 

In light of the national public health emergency due to the Coronavirus Disease 2019 (COVID-19) outbreak, and in consultation with Conference Chair Circuit Judge John Owens and Program Chair District Judge Michael Simon, I have decided to cancel the 2020 Ninth Circuit Judicial Conference scheduled for July in Portland. I do so with considerable regret, but the health and safety of all of us must remain our highest priority, and we do not know with any certainty how long this outbreak will last. We may present some Conference programs via video on our website.

Judge Owens and Judge Simon have done an exceptional job leading the Conference Executive Committee to develop an outstanding program. As we did once before when a circuit conference was cancelled in 2013, the 2019-2020 Conference Executive Committee will continue their terms for another year, as will all lawyer representatives, so that you can attend the 2021 Ninth Circuit Judicial Conference, July 11-15, in Big Sky, Montana. Many of the programs and speakers will be reconfirmed for next year. 

The Fifth Annual Ninth Circuit Civics Contest will continue and first place essay and video production winners will be selected in late spring. The theme of the contest, “The Right to Vote: Milestone Anniversaries,” poses the following challenge to participants: In the wake of the 15th and 19th Amendments, barriers remained to prevent United States citizens from voting. Do formal or informal barriers remain today? What additional changes would you make, if any, to Americans’ voting rights? We will keep you posted on the contest and some additional conference-related ideas later this summer.

In closing, I want to acknowledge the challenges we all face and thank the Circuit’s judicial officers, all the lawyer representatives and court executives for everything you continue to do for the courts, for the administration of justice. 

With sincere wishes that you and your families will be safe and remain in good health.

2d DCA pro tem update

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

·  Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until April 30, 2020

·  Judge Elizabeth A. White of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 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 April 30, 2020. 

elsewhere, virus affects appellate courts around the country

• The First Circuit extended the deadline for non-emergency filings, like briefs, in cases that haven’t been scheduled for oral argument, argued before a panel or expedited.
• The Sixth Circuit postponed its judicial conference that was scheduled for June as a result of the virus. The conference will instead be held in June of 2021.
• The Federal Circuit canceled seven more in-person arguments for cases scheduled in April. Some of those cases had previously been scheduled for argument by phone.

Bedsworth: Another Bad Haircut

The Recorder has Beds' latest column, Another Bad Haircut, and it's awesome and hilarious. A bit of topical humor is much needed, and this provides it in spades.

We’re doing telephonic oral arguments now. I’ve learned to limit my questions; there’s a short time delay in the telephonic connection and a question often interrupts an attorney who’s already started another thought. It can throw off their timing and make it hard for them to stay on topic.
And no unnecessary comments. It’s been my practice to make occasional efforts to say things that will relax the attorneys before me. Relaxed people perform better than nervous ones. But that doesn’t work with telephonic oral arguments. Turns out statements from someone whose smile cannot be seen are ineffective as tension dampers.
I’m also trying to prove that the appellate bar is wrong about me: I AM educable. I’m trying to learn everything I’m supposed to do to keep me and those around me safe.

JC Approves Emergency Measures

Judicial Council Approves Temporary Emergency Measures to Aid Courts During COVID-19 Pandemic

At emergency meeting, council action follows Governor’s executive order giving the judicial branch needed flexibility to maintain service to the public during state of emergency

March 28, 2020

The Judicial Council today approved temporary emergency measures to continue essential court services such as protecting the rights and needs of the accused in a safe way while guarding the health and safety of the public, court employees, attorneys, litigants, judicial officers, law enforcement, and staff and inmates in detention facilities. The measures can be found in recommendations A and B of the council report.

“Together we must play our part in “flattening the curve” for our state and nation as this pandemic evolves,” said Chief Justice Tani G. Cantil-Sakauye. “But we also must preserve the rule of law, to protect the rights and liberties of all Californians, as all state government strives to protect their health and wellbeing.”

During the hourlong special meeting held by phone, the council unanimously approved the following measures, extended 90 days after the COVID-19 state of emergency is lifted to help alleviate backlogs:

• Extend the 10 court day period for holding a preliminary hearing and the defendant’s right of release to 30 court days;
   
• Extend the time period in which a defendant charged with a felony offense shall be taken before a judicial officer from 48 hours to not more than 7 days;
   
• Extend the time period for holding a criminal trial by more than 30 days; and
   
• Extend the time period to bring an action to trial by more than 30 days.

In addition to temporarily extending statutory deadlines, the council also directed the superior courts to:

• Make use of technology, when possible, to conduct judicial proceedings and court operations remotely. This includes the use of video, audio, and telephone for remote appearances, reporting, and interpreting in judicial proceedings, the electronic exchange and authentication of documents in evidence, and the use of e-filing and e-service; and
   
• In criminal and juvenile proceedings, including arraignments and preliminary hearings, prioritize use of technology to ensure defendants are not held in custody, and children are not held in custody or removed from the custody of their parents or guardians, without timely due process of law or in violation of constitutional rights.

The Council received almost 60 public comments in response to Saturday’s emergency meeting. Judicial Council Administrative Director Martin Hoshino said the emergency meeting likely won’t be the last as the pandemic continues. “Everything is number one on our list, but we have to deal with them in some order.”

“No need, no right overlooked,” Chief Justice Cantil-Sakauye said.

The council’s actions follow the Governor’s emergency order empowering the council and Chief Justice to take necessary temporary action to enable the courts to conduct business and continue to operate while responding to the COVID-19 pandemic. In her statement on the Governor’s order, the Chief Justice expressed her appreciation and assurance that “we will assume this responsibility with utmost care and judiciousness."

For the latest California Courts news related to COVID-19, visit newsroom.courts.ca.gov/coronavirus-updates.

Gov Issues Order on Judicial Council Emergency Authority

Governor Newsom Issues Executive Order
on Judicial Council Emergency Authority 

Published: Mar 27, 2020

---

Order would enable California Chief Justice to take emergency actions for the state’s courts to be able to conduct business during the COVID-19 pandemic

SACRAMENTO – Today, Governor Gavin Newsom signed an executive order to enhance the authority of California’s Judicial Branch to take emergency action in the face of the COVID-19 crisis.

Specifically, the executive order empowers the Judicial Council and the Chief Justice of the California Supreme Court to take necessary action to be able to conduct business and continue to operate while responding to the COVID-19 pandemic. The order does not affect any existing court order or rule.

The order allows the Judicial Branch to allow for remote depositions in every case (the law had previously required that parties be deposed in person) and electronic service of process. Additionally, the order leaves the Judicial Branch discretion to make any modifications to legal practice and procedure it deems necessary in order to continue conducting business.

“Our courts need to continue to do their business for the sake of the law and public safety, and to the extent they are able to, and it is my responsibility to do everything I can to give the Judicial Council and the Chief Justice the flexibility they need to take actions to meet this moment,” said Governor Newsom.

The California Constitution establishes the Judicial Council as the supreme administrative and rulemaking body for California’s courts.

The Judicial Council, through the Chief Justice, has recently taken actions amid the COVID-19 outbreak, including suspending jury trials for the next 60 days and issuing other emergency court orders.

A copy of the Governor’s executive order can be found here, and the text of the order can be found here.

Learn more about the state’s ongoing COVID-19 response efforts here. Visit covid19.ca.gov for critical steps Californians can take to stay healthy, and resources available to those impacted by the outbreak.

NY postpones July Bar exam...

New York Postpones July Bar Exam Amid COVID-19 Pandemic

Listen in on the Judicial Council tomorrow

The Judicial Council will hold a special meeting Saturday, March 28, 2020, at 12:00 p.m., via teleconference, for action by the council to assist the judicial branch in responding to the COVID-19 health crisis.

The council is calling this emergency meeting of court and branch leaders from around the state to consider measures to ensure California courts—which remain open as "essential services" under Gov. Newsom's stay-home executive order—can meet stringent health directives while also providing due process and access to justice.

The meeting notice and agenda, with instructions on how to listen to the meeting and provide written comments, will be posted on the council meeting page.

CSC Oral argument in pandemic times

Today the Cal Supreme Court issued a second order regarding oral argument, explaining how it intends to hold argument in these troubled times.
Obviously counsel will appear telephonically or by video.
But note also:

• only 15 persons from the media may enter the courtroom
• No more than 5 justices will be seated on the bench, with the other 2 participating remotely.
• Each side will be given up to 5 minutes of uninterrupted time for an opening argument.

Oral argument tells all...

So in this unpub from 2/1 today, a repeat pro-per, who at "last count" had filed nine appeals or writs, claims an inability to speak English at his latest oral argument. But... well, let's let the court tell it:

During oral argument, Patel claimed he was unable to speak English; however the court has reviewed the recording of the oral argument in Mayflower v. Patel (Patel I, B288872) from June 26, 2019, during which Patel did not request an interpreter and spoke in perfectly understandable English.

Doh! That argument was recorded?!
(Footnote 6 is nice too.)

Next time ask for a lot more!

Here's an upub'd case today awarding appellate sanctions...

Mother incurred $2,980 in attorney fees and costs in defending this appeal. This request is supported by an itemized billing statement showing the filing fee and attorney fees incurred. Given the high degree of objective and subjective frivolousness of this appeal and the uncomplicated nature of the issues raised, we conclude $2,980 is a reasonable amount for sanctions. 

Congrats to the Traynor & the winners!

Can there be moot court competitions during a pandemic? Well, yes, indeed! At least in part...

The Traynor Appellate Moot Court Competition is a nationally recognized appellate competition for California law schools. The hallmarks of the competition are the use of an actual case from the California Court of Appeal, equal emphasis on brief writing and oral argument, and judging by appellate practitioners, trial judges, and justices of the appellate courts.

The oral arguments of the 51st Annual Traynor were scheduled to take place this weekend in Los Angeles. Due to circumstances of which we are all painfully aware, the arguments were cancelled and the competition pivoted to become based entirely on the written appellate briefs.

This year’s problem involved the legality of money bail, a long-established practice in California that is now being challenged in many courts. The issue posed was argued in the California Supreme Court on March 3, 2020.

​

Ten teams from law schools throughout California participated in this year’s competition. The winner of the Gisnet Mandell Award for Best Brief was U.C. Berkeley School of Law. Second place was awarded to the University of West Los Angeles School of Law. Third place went to Empire College School of Law, and fourth place went to Loyola Law School.

This year’s Traynor was made possible by a generous grant by the Gisnet Mandell Moot Court Trust. The costs of running the event are kept low but they do exceed the registration fees. This year, the entrance fee was $200, less than half of the typical registration cost for a comparable moot court competition, with the goal of keeping the Traynor accessible to all. If you, your firm, or company would like to underwrite any aspect of Traynor 2021, please contact info@traynormootcourt.org.

Teams are encouraged to indicate interest in competing in next year’s Traynor by July 1. Enrollment is limited so contact Miriam Billington at info@traynormootcourt.org as soon as possible to reserve a spot.

Emergency motions v. not-really-so-urgent

“The world is facing a real emergency. Plaintiff is not.”

— Steven Seeger, U.S. District in the Northern District of Illinois, in rejecting a motion for an emergency TRO filed to halt the sales of knockoff unicorn and dragon art.

Judge Rebukes Unicorn Artist's Motion as 'Insensitive to Others in the Current Environment'

A plaintiffs lawyer bringing an emergency motion for a temporary restraining order to halt sales of knockoff unicorn and dragon art got a sharp rebuke from U.S. District Judge Steven Seeger, in light of the COVID-19 outbreak. “If there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time," he wrote.

Also: Tired of Netflix? Listen to Live Arguments From the 11th Circuit

Next week's arguments will mark the first time the public can listen to the action without being in the courthouse.

Roundup of Emergency Extension Orders

Ok, so all of California's appellate courts now have 30-day extension orders in place.
But the details matter, so here are the relevant dates (i.e., the timeframes within which each court has extended time by 30 days for deadlines falling within the period noted in each order):

Cal Supreme Court Order: March 20 to April 20
1st District Order: March 18 to April 17
2d District Order: March 20 to April 19
3d District Order: March 20 to April 19
4th District Order: March 19 to April 18
5th District Order: March 23 to April 22
6th District Order: March 18 to April 17

The details matter!
So the 2d and 3d District have the same timeframe, as do the 1st and 6th.

Link to California Court Emergency Orders from the Chief Justice here.

The Recorder's How COVID-19 Is Impacting California Courts: Roundup of Services

Link to Federal Court Orders and Updates During COVID-19 Pandemic here.

Law360's compilation is Coronavirus: The Latest Court Closures and Restrictions

CLA's compilation is here.

Normal stuff...

Yesterday's DJ's Moskovitz on Appeals was Legal Research Part 1, presented as a conversation between an older and younger attorney about legal research. The older lawyer stresses:

California is blessed with sunshine, mountains, beaches - and terrific treatises. We're the world's 5th largest economy, with over 170,000 active lawyers. That means big bucks for law publishers. So unlike attorneys in Wyoming and South Dakota, California lawyers have excellent treatises available on California law - on a wide array of topics. We have general practice books -- like Witkin's Summaries and his Procedure tomes, as well as Rutter Group and CEB books on evidence, motion practice, and the like. Those publishers also have some specialty books, on landlord-tenant law, worker's comp, and other topics. These books are very well researched and written, and can give you a quick up-to-date overview of any subject they cover.

Today's DJ has Justice Hoffstadt's Goldilocks and the 3 Batson Fixes and Hastings Dean Frank Wu's Explaining Civ Pro, which is his paean to Civil Procedure. He concludes:

The secret, hidden in the open, is that Civ Pro is not the story. Civ Pro is the tool to tell the story, operated by opposing counsel, presided over by the judge. It is a series of questions that produces the answer. That is why it is fascinating.

Jury trials suspended statewide

Press release here.
California Chief Justice Tani G. Cantil-Sakauye on Monday issued a statewide order suspending all jury trials in California's superior courts for 60 days and allowing courts to immediately adopt new rules to address the impact of the COVID-19 pandemic.

The Chief Justice said her order is aimed at ensuring California courts—which remain open as "essential services" under Gov. Newsom's stay-home executive order—can meet stringent health directives, such as maintaining a six-foot distance from others, to curb the spread of COVID-19.
Said the Chief Justice: "Courts cannot comply with these health restrictions and continue to operate as they have in the past. Court proceedings require gatherings of court staff, litigants, attorneys, witnesses, and juries, well in excess of the numbers allowed for gathering under current executive and health orders. Many court facilities in California are ill-equipped to effectively allow the social distancing and other public health requirements required to protect people involved in court proceedings and prevent the further spread of COVID-19."

She added, "Even if court facilities could allow for sufficient social-distancing, the closure of schools means that many court employees, litigants, witnesses, and potential jurors cannot leave their homes to attend court proceedings because they must stay home to supervise their children. These restrictions have also made it nearly impossible for courts to assemble juries."
Her order includes the following directives:

• All jury trials are suspended and continued for 60 days. Courts may conduct a trial at an earlier date upon finding of good cause shown or through use of remote technology when appropriate.
   
• Time periods to begin criminal and civil trials is extended for 60 days, though courts may conduct trials earlier upon finding of good cause or through remote technology when appropriate.
   
• Superior courts are authorized to adopt any proposed rules or rule amendment intended to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for public comment. A court adopting any such rule change must immediately distribute it, and no litigant’s substantive rights shall be prejudiced for failing to comply with the requirements of a new or amended rule until at least 20 days after its distribution.

See Chief Justice Tani G. Cantil-Sakauye's full order here.

Bingo! All districts seek & get extension orders

The 5th District has now obtained an extension order (here) and issued its order. So all Districts have now done so.