Friday, December 8, 2023

DJ profiles PJ Hill


Today's DJ profile is Justice Brad R. Hill of Fresno helps set tone for California's Court of Appeal System -- 5th District presiding justice is regularly tapped for leadership roles.

Justice Brad R. Hill has handled significant responsibilities since he was a young man. He was a law firm partner at 33, a judge at 36, and a superior court presiding judge before he turned 50. In 2010, Gov. Arnold Schwarzenegger named him presiding justice of the 5th District Court of Appeal.

In August, California Chief Justice Patricia Guerrero selected Hill to chair the Executive and Planning Committee of the Judicial Council. The chair helps the chief lead Judicial Council meetings and shape the long-term plan for the judicial branch.

Thursday, December 7, 2023

New Justices!

Governor Gavin Newsom today announced his nomination of two Court of Appeal Justices: Judge Monique Langhorne Wilson as an Associate Justice of the First District Court of Appeal, Division One and Aimee Feinberg as an Associate Justice of the Third District Court of Appeal.

First District Court of Appeal

Judge Monique Langhorne Wilson, of Solano County, has been nominated to serve as an Associate Justice of the First District Court of Appeal, Division One. She has served as a Judge at the Napa County Superior Court since 2018. Judge Langhorne Wilson served as a Commissioner at the Napa County Superior Court from 2006 to 2018. She served as a Deputy District Attorney at the Napa County District Attorney’s Office from 2000 to 2006 and was a Family Support Officer at the Napa County Department of Child Support Services from 1999 to 2000. Judge Langhorne Wilson earned a Juris Doctor degree from the University of California, Berkeley School of Law. She fills the vacancy created by the appointment of Justice Gabriel P. Sanchez to the federal bench. 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. Judge Langhorne Wilson is a Democrat.

Third District Court of Appeal

Aimee Feinberg, of Yolo County, has been nominated to serve as an Associate Justice of the Third District Court of Appeal. Feinberg has been Of Counsel at Munger, Tolles & Olson LLP since 2023. She served as a Deputy Solicitor General at the California Department of Justice from 2014 to 2023. She was a Lecturer and Director of the California Supreme Court Clinic at the University of California, Davis School of Law from 2012 to 2014 and an Associate at Munger, Tolles & Olson LLP from 2005 to 2011. She served as a Law Clerk for the Honorable Stephen G. Breyer at the U.S. Supreme Court from 2004 to 2005 and for the Honorable David S. Tatel at the U.S. Court of Appeals for the D.C. Circuit from 2003 to 2004. Feinberg was an Associate at Covington & Burling from 2002 to 2003. She earned a Juris Doctor degree from Stanford Law School. Feinberg fills the vacancy created by the retirement of Justice Andrea Hoch. 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 Laurie M. Earl. Feinberg is a Democrat.

The compensation for each of these positions is $265,944.

And congrats to certified appellate specialist Stephen K. Dunkle appointed to Santa Barbara County Superior Court.

Wednesday, December 6, 2023

6th DCA seeks summer externs & more

The Court of Appeal, Sixth Appellate District welcomes law student applications for the 2024 Summer Judicial Externship Program. Click here for more info.

Jackson Urges High Court To Dispose Of Automatic Vacaturs -- Supreme Court Justice Ketanji Brown Jackson on Tuesday again criticized a procedural mechanism that obligates the justices to vacate lower court opinions and offered up an alternative analysis they could use to decide whether to vacate rulings by the lower courts.
Justice Jackson made her suggestion in a concurring opinion accompanying the court's first decision of the term, in which the justices unanimously dismissed as moot an appeal by Acheson Hotels LLC challenging a First Circuit panel ruling that so-called Americans with Disabilities Act "testers" like plaintiff Deborah Laufer have standing to bring discrimination claims against a business for failing to provide accessibility information, even if they never plan to visit the business. The justices also vacated the First Circuit's opinion.
Jones Day Picks Up 8 More US Supreme Court Clerks -- The firm recruited another group of former clerks who worked with Republican-nominated judges on the U.S. Supreme Court.

SCOC returns to LA

California Supreme Court Hosts Oral Argument in Los Angeles -- The California Supreme Court marked its return to hearing oral argument in Los Angeles, a tradition put on hold for nearly four years during the COVID-19 pandemic.

The California Supreme Court on Tuesday marked its return to hearing oral argument in Los Angeles, a tradition put on hold for nearly four years during the COVID-19 pandemic. The court’s tradition of hearing oral argument in Los Angeles—as one of three locations along with Sacramento and San Francisco—dates to 1878.

Chief Justice Patricia Guerrero welcomed attendees, noting the court has not held an oral argument session in Los Angeles since “before the pandemic” in December 2019—but were returning in 2023 to a newly renovated courtroom. The court heard five cases during the session, held in its courtroom in the Ronald Reagan State Office Building in downtown Los Angeles.

During the COVID-19 pandemic, the court made technological upgrades to its courtrooms in San Francisco, Sacramento, and Los Angeles to better facilitate livestreaming and remote oral arguments. Though the court resumed hearing oral argument in person, counsel still have the option to appear either in person or remotely via video. One attorney appeared remotely during Tuesday’s session.

In 2024, the court will hold oral argument sessions in Los Angeles, Sacramento, and San Francisco, including a special outreach session for students.

Tuesday, December 5, 2023

SO'C remembrance

Today's DJ has Justice Hoffstadt's What I Learned From SO'C about what he learned from clerking for Sandra Day O'Connor:

As a justice, she gave weight to the human impact of the positions she took. The U.S. Supreme Court may be the highest of all the ivory towers, but Justice O’Connor was always concerned about how the Court’s rulings were likely to play out in the real world and how they were likely to affect the everyday lives of Americans. Some of her critics decried her for taking a case-by-case approach that turned on balancing multitudes of factors rather than taking a more bright-line and ideologically driven approach, but her preferred philosophy injected flexibility into the Court’s holdings that empowered the lower courts to account for how their decisions in individual cases would affect the lives of the litigants before them.
Bloomberg Law has O’Connor Taught Clerks to Think Broadly About the Law, Themselves

Today's DJ also has the monthly column Exceptionally Appealing: Ninth Circuit 2023 Appellate Roundup, discussing half a dozen 9th Circuit rulings from the past year on appellate practice topics.

See Pew's Most of Biden’s appointed judges to date are women, racial or ethnic minorities – a first for any president

BHBA presents CALG's Sharon Baumgold presenting Writs of Mandate: What Every Litigator Should Know, on Dec. 14, 5:30-6:30 p.m. 

Monday, December 4, 2023

Appellate obits & more...

Friday's DJ had two obits of note: Sandra Day O'Connor, 1930-2023 ["In California, where O’Connor began her legal career, the profession and the judiciary is even more diverse than it is nationally. The chief justice is a woman and three of the associate justices are women, making up the majority of the seven-member state Supreme Court. Women are the administrative presiding justice in three of California’s six court of appeal districts and the presiding judges of 20 of California’s 58 counties."] and Gideon Kanner 1930-2023 [quoting this blog's obit post]. And see here.

Today's DJ has PJ Gilbert's A Flicker of Hope? offering thoughtful musings on A.I.

Today's DJ also has Myron Moskovitz's column On Criticizing Judges, pointing to Poe v. Pioneer Medical Group (2023) 2023 WL 7204940, as an example of what not to do. As for what to do, focus on "what trial judges do, not who they are." "[T]he appellate Justices usually already know the reputation of each trial court judge in their district" and he writes:
"there’s rarely any call to use any[ adjective] stronger than “mistaken”. That’s just as likely to get me my reversal as “outrageous” or “ridiculous” – so long as I show the trial court’s error with the record and the law."
U.S Courts has Director’s Awards Recognize 19 Employees for Leadership, Service, noting winners in the 5th and 6th Circuits.

Saturday, December 2, 2023

SCOTUS & Baseball -- and more!

Duke Law School's 107:2 Judicature (2023) has some articles of appellate note.

First, there's a baseball-SCOTUS article here by Jennifer Lowe: Not Just Umpires--Justices are Fans, Too.

Second, Judge Rawlinson has a book review (of Lisa Kloppenberg's "The Best Beloved Thing is Justice: The Life of Dorothy Wright Nelson"): Judge Dorothy Wright Nelson's Prescient, Bold Vision of Justice.

Third, En Banc or In Bank? Take a Seat...

Finally, SFSC Judge Curtis Karnow has Neutrality Can be Maddening to the Public. And to Judges, Too.

Friday, December 1, 2023

New FRAP & Circuit rules

December 1 is the day new federal rules take effect. FRAP 2, 4, 26, and 45 have been amended. FRAP 2 now has more flexibility and detail about how to handle emergencies (e.g., pandemics), allowing broader authority to suspend rules. FRAP 4 is likewise amended to address timing when emergency situations are declared. FRAP 26 and 45 are amended to add Juneteenth as a legal holiday.  

The Ninth Circuit has posted a new fee schedule here. New 9th Circuit Local Rules are here, including Circuit Rule 32-1(f) about whether and how to count (for word-count purposes) visual images used for demonstrative purposes in briefs.

See also Bloomberg Law's Updated Evidence Rule Warns Judges Against Junk Science re changes to FRE 702.

And do not miss the ABA Journal's Ruling in double-spacing kerfuffle, federal judge observes lawyers don't need 'more words on a page' and ATL's Heated Litigation Fight Over 'Double-Spacing' Ends In Judge Telling Everyone To Shut Up has Objectors in $725M Facebook Settlement Combat 'Absurd' $8,500 Appeal Bonds -- Objector lawyers who have challenged numerous Big Tech privacy settlements are fighting back against paying $8,500 bonds before appealing approval of a $725 million class action deal with Facebook’s Meta Platforms Inc. "Plaintiffs lawyers in the Facebook settlement have asked for $8,500, citing Davila’s order, but the objector lawyers allege the bond, if required, shouldn’t exceed a few hundred dollars."

RIP Sandra Day O'Connor (1930-2023)

Justice Sandra Day O'Connor, the first female SCOTUS justice, died today at age 93. The Court's press release is here. NLJ obit here:
Appointed to the Supreme Court by President Ronald Reagan in 1981, O’Connor held a key position of influence as one of the more moderate conservative justices during more than 24 years on the nation’s top bench, and often wielded a swing vote that narrowed the majority’s positions in areas of criminal and constitutional law. O’Connor wrote 645 opinions during her time on the court.

Thursday, November 30, 2023

GGU Law to close

The Recorder has GGU Law Sunsetting Its JD Program at End of '23-'24 Academic Year

“We know—and regret—the pain and disruption that will come from ending the ABA-accredited JD program,” Barbara Mendelson, chair of the Board of Trustees and David J. Fike, president, wrote in a letter to the GGU community Thursday. “Given the realities of the marketplace, our Law School’s place in it and a host of related trends and data, we determined it is no longer viable to offer this degree program.”

2d DCA pro tem update


The following are currently sitting on assignment in the 2d District:
  • Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until January 31, 2024
  • Judge Rebekah B. Evenson of the Alameda Superior Court will be sitting Pro Tem in Division Seven until January 15, 2024

SCOC to Zoom

California Supreme Court to Implement New Video Conferencing System
The California Supreme Court will use the Zoom for Government service for counsel who choose to appear remotely beginning Dec. 5 for its oral argument session in Los Angeles.
  • The court previously used the BlueJeans meeting service, which allowed the court to quickly pivot to virtual oral arguments at the start of the pandemic nearly four years ago. However, Verizon announced they would discontinue the service by early 2024.
  • Although the court has returned to in-person oral arguments, counsel continues to have the option to appear in person, or remotely via video pursuant to Administrative Order No. 2022-10-05.
  • The court’s practice of webcasting its oral arguments will remain unchanged, and members of the public will be able to continue to view both live and archived sessions on the California Supreme Court website.

Wednesday, November 29, 2023

More appellate poetry!

2/1 starts off this unpub (in a spite-fence nuisance case) like this:

The poet Robert Frost observed that although good fences may make good neighbors, before building one might “ask to know What I was walling in or walling out, And to whom I was like to give offence.” (Frost (1914) “The Mending Wall.”)

Also, here's an appellate job opening: The Fourth District, Division One, in San Diego, will now be accepting applications for a Chambers Appellate Court Attorney (Level A- Senior). The job can be found on the courts career website under job ID 6109. The application deadline is December 29, 2023.

Tuesday, November 28, 2023

SF Chron re Watford & more

Bob Egelko at the SF Chronicle has Supreme Court’s abortion, gun rulings prompted 9th Circuit judge to retire
  • It was clear that “in most of the high-profile areas in which the court was going to issue major decisions, my own views as a judge would be out of sync with what the Supreme Court was deciding in area after area,” former Judge Paul Watford told the Chronicle last week. “It led me to start rethinking whether I would want to stay on the bench for the rest of my career.”
  • So 11 years after a divided U.S. Senate confirmed his nomination by President Barack Obama to the nation’s largest federal appeals court — and seven years after Obama considered him for the Supreme Court — Watford resigned in May and joined a private law firm in Los Angeles, where he handles complex civil litigation. His unusual reasons for departing were first reported by the National Law Journal.

A Colorado attorney has been temporarily suspended after he used "sham" case law citations produced by the artificial intelligence platform ChatGPT in a motion and lied to a judge that an intern produced the errors, according to a state disciplinary ruling.
The Third Appellate District is pleased to announce the re-opening of its historic courtroom for oral argument. The Third Appellate District’s preferred format for oral argument is in-person. Requests for remote oral argument must be in writing and will be granted only upon a showing of good cause. You will find information about the calendar and Procedures for Oral Argument on the court’s Calendar page.

The 6th District alerts us that: The Clerk’s Office window will be closed on Wednesday, December 13, 2023, from 11:00 AM PST to 3:00 PM PST. The drop box on the 10th floor, next to the Clerk’s Office at 333 West Santa Clara Street, San Jose, CA, will be available to the public for dropping off documents.

BASF's Appellate Section's holiday party will be Nov. 30 (5-7 p.m.) at Toy Soldier.
LACBA's Appellate Section's holiday party will be Dec. 1 (6-9 p.m.) at the FourFortyFour South Flower Event Center.

Judicial Council Honors 2023 Distinguished Service and Aranda Access to Justice Award Recipients -- See photos and videos from the awards presentation held earlier this month to honor this year’s honorees, e.g., PJ Edmon, Justice Slough, etc.

Monday, November 27, 2023

Name that poet!

Justice Wiley quotes Percy Bysshe Shelley in a published opinion today:

This is a problem with litigating about events from decades ago: memories fade, people die, corporations dissolve, businesses fail, files are sent to storage and then to landfill, and evidence disappears. Grain by grain, time buries the past. As the poet said, the lone and level sands stretch far away.

The opinion also has some other memorable language:

The simple explanation is neglect: someone dropped the ball. Someone forgot to follow through on the settlement by filing a parallel negation of the lien on the Los Angeles house. Trial judges of experience routinely see these kinds of omissions by lawyers, because everyone makes mistakes. (Judges of course are no exception.) A mistake is the best explanation for the persistence of the long-outstanding but long-ago satisfied Panrox lien on the Los Angeles house.

A SCOTUS tale & an impending AI rule?

The NLJ has When Supreme Court Pros Came Calling, Client Stuck With Local Lawyer -- "I think there’s something romantic about the idea that a small-town lawyer could argue their way all the way up to the Supreme Court," James Freed said of his attorney, Victoria Ferres.

  • A 34-year-old graduate of Michigan State University College of Law, Victoria Ferres never imagined when she returned home to practice law and help with her mother’s health issues that she would one day be arguing before the nine most powerful justices in the country.
  • The level of competition is in large part a product of the court’s shrinking docket. As opportunities to appear in the nation’s most powerful courtroom have declined, a select few repeat players now dominate the lectern, racking up dozens of arguments while leaving fewer opportunities for younger attorneys, female lawyers or litigators of color to make their voices heard at the Supreme Court.
  • Those who break in to this crowded field tend to hail from a handful of the country’s top law schools and go on to clerk for a Supreme Court justice or work at the U.S. solicitor general’s office—in other words, not a relatively young partner at a small firm in a small Michigan city at the base of Lake Huron. Ferres was the 22nd attorney to argue before the Supreme Court this term, yet the first woman from a private firm.
On the Appellate AI front, Law360 has 5th Circ. Eyes Barring AI Use, Mandating Accuracy Check
Attorneys before the Fifth Circuit may soon have to inform the federal appeals court that their documents were not written using generative artificial intelligence programs and, if they were, that they were reviewed by humans for accuracy.

The court is accepting comments on the proposed change to its certificate of compliance rules for attorneys and pro se litigants through Jan. 4. Under the proposed rule, "material misrepresentation" of whether generative AI was used in a court document may result in sanctions and the court tossing the document.

Sunday, November 26, 2023

RIP Gideon Kanner (1930-2023)


The appellate world has lost a legend. Gideon Kanner passed away on Wednesday, 11/22/2023. A founder and the first president of the California Academy of Appellate Lawyers, he led an amazing life: Holocaust survivor, actual rocket scientist, law professor, eminent domain guru, persistent advocatefierce advocate, appellate maven, colorful writer (and here), blogger, inspiration, raconteur, gadfly, curmudgeon. Those are just a few ways to describe this remarkable mensch.  He was already a figure of mythical stature over 30 years ago, when Loyola Law Review published its Tribute to Gideon Kanner, 24 Loy. L.A.L.Rev. 515 (1991). He was the sort of lawyer who didn't just earn awards and honors, but had awards named after him. Frequent invoker of "bubbale" and "TANSTAAFL," his devoted fans ensconced him in the FLFL ("free lunch for life") Club, just to try to prove him wrong about something -- and enjoy his utterly unique company.

He will be sorely missed, but his stories and legacy will live on.

Big sanctions day!

On Nov. 17, 2023, 2/2 issued this unpub'd decision sanctioning counsel for appellant, who had "filed an utterly offensive opposition" to a motion to dismiss an appeal and sanctions request. The court denied the respondents motion, but forwarded the opposition to the State Bar given "counsel's unfounded, outrageous, offensive, and insulting remarks about the judiciary" and deferred the issue of sanctions. Appellant's counsel then filed a reply brief on the merits that repeated "the unfounded inflammatory comments about the judiciary" that prompted the prior referral to the State Bar. Appellant's counsel also "unreasonably delayed sharing the appellate record in violation of rule 8.153." Obviously the court was also upset that appellant's counsel "leveled outrageous comments against the judiciary" and "persisted in raising unfounded and offensive accusations against this court" even after the court had issued an order notifying the parties that counsel's opposition was being forwarded to the State Bar. Counsel also was a no-show at oral argument, had "filed a wholly meritless motion to augment the record" that was denied--yet continued to cite the excluded purported evidence in the reply brief. The court awarded sanctions of $1440 to respondent and $5000 to the court for "relentless offensive filings and communications (as well as attempted communications that have now been blocked").

The decision quoted last month's Snoeck published opinion: "An attorney must . . . maintain a respectful attitude toward the court.  [Citations.]”  (People v. Chong (1999) 76 Cal.App.4th 232, 243; see also Cal. Bus. & Prof. Code, § 6068; Snoeck v. ExakTime Innovations, Inc. (Oct. 2, 2023, B321566) ___ Cal.App.5th ___, [2023 Cal.App.LEXIS 5855] [as an officer of the court, an attorney owes the court and opposing counsel professional courtesy].)"

That case alone would've been big appellate sanctions news. But there's more! The same day, 2/2 also dismissed an appeal and imposed sanctions in this unpub'd decision too -- for $5K to respondent and another $5K to the court -- against the same attorney in a different appeal representing a different appellant. This time there was an "unintelligible opening brief"; an opposition in the trial court that accused the trial judge of engaging in dilatory tactics, and accused the judge of bias. When given a chance to file a 1500-word letter brief re sanctions, she filed a 9477word brief. The court concluded that the appeal was "patently frivolous" and that counsel engaged in "outrageous conduct throughout this case" and "doubled down, using her appellate briefs as a platform to groundlessly disparage the trial court, this appellate court, and the legal system as a whole." The court again cited the new Snoeck opinion.

See Tim Kowal's post here: Race, gender, and Jewish conspiracies get attorney sanctioned $10,000

Wednesday, November 22, 2023

CCP 170.6(a)(2)

The Recorder has CALG's Robert Roth's Your Appellate Get Out of Jail Free Card -- Attorneys might not realize the second paragraph section 170.6(a)(2) provides that either party can exercise an additional peremptory challenge against the trial judge. (On this same topic see I Want a New Judge (DJ April2021).)

The Recorder also has Bedsworth: Antarctic Assault and Evolution
 -- "Judging humankind’s evolution by men is like judging humankind’s music by listening to Nickelback," says Justice William Bedsworth.

Monday, November 20, 2023

Standards of Review article; Watford talks

Judge Kira Klatchko and Quinn Keefer have an article in the University of the Pacific Law Review here: Judicial Backgrounds Influence the Standard of Review Judicial Backgrounds Influence the Standard of Review

Our research, however, supports those scholars who posit that standards of review are often influenced by extraneous factors not anchored in a coherent legal conception of deference. We observe that across a broad spectrum of cases, different panels of jurists apply standards of review in a disparate manner, influenced by their personal backgrounds. Our research explores numerous aspects of personal background, including prior professional legal experience, length of time on the trial court, gender, and political affiliation. Among these categories, we discovered that only one exhibited a statistically significant impact on the selection and application of the standard of review: the type of prior professional legal experience of panelists. Specifically, we find that the criminal or civil practice background of jurists on a reviewing panel influences ultimate outcomes but also shapes the selection of the standard of review. has Ex-Judge Watford Talks Supreme Court Shortlist, Judge Shopping, Why He Resigned