SLAPPing Mr. Monkey?

Is Ahmed Khan really "Mr. Monkey"?
Perhaps if you live in Tyne and Wear (a small county in NE England), you would care.
Instead, what you really want to know is whether a non-party (like Mr. Khan) can file an anti-SLAPP motion and not get tagged for doing something frivolous. Turns out, naturally enough, the answer is no:

A nonparty to the action who disclaims responsibility for the publications alleged in the complaint and is not even alleged to be responsible in the complaint lacks standing to bring a motion under section 425.16.

Ahmed Khan

More like, Goodbye, Mr. Monkey...

(Appellate specialist John Derrick, who's also a UK specialist, points out that Tyne and Wear "isn't that small a county. It ranks 13 out of 90" of counties in England in terms of population. Good point! It just looks small on the map...)

March is Women's History Month

This blog recently reported on judicial demographics in California. Not to be outdone on the diversity front, the Feds have issued this report: Decades After O'Connor, Role of Women Judges Still Growing.

In 1981, there were 43 full-time women appellate and district court judges, 7.3 percent of the total. According to the Federal Judicial Center, whose web site provides biographical and demographic data on all federal judges, women now make up 235 of the 772 full-time judges in the U.S. District Court and Courts of Appeal—30.4% of the total.

Florence E. Allen, the first woman to serve on a state Supreme Court and the nation’s first female Article III Judge. She was later appointed as Chief Judge of the Sixth Circuit in 1959 and was publicly supported as a possible candidate for the U.S. Supreme Court.

An appellate decision that could potentially impact every marriage?

No, not Hollingsworth v. Perry.

Instead, take a look at today's decision here, which begins its "Background" section like this:

Judging by appellants’ dramatic opening brief one might mistake this case for one of surpassing importance on the limits of state power to intrude into the affairs of its citizens, and specifically its married citizens. The brief opens this way: ....

The decision then goes on to quote the first six paragraphs from the AOB.
Generally, it's a good thing if a court decision quotes a lot from your brief. The exception, of course, is if the purpose of the quotation is to shoot down what's been quoted. That's what happens, as the court concludes its Background section like this:

We think the case is much less sweeping in its implications, and we fail to see a holding adverse to appellants as a threat to the institution of marriage, as appellants would have it.

Lesson? Well, a dramatic thematic policy opener might be appropriate in some cases. But make sure your case is worthy. Otherwise, you're just another Chicken Little.

The sky is falling!

 

Does "May it please the Court" please the court?

Check out Bryan Garner's What Judges Really Think About the Phrase "May it please the Court" for a history of this phrase, how to properly use it, and how a variety of appellate judges feel about this oral argument opener.

• Chief Judge Kozinski is quoting as saying "it's totally pointeless, but largely harmless, so it's a good way to get started."
• Judge Graber says "Its absence is always more notable than its presence, so I prefer lawyers saying May it please the Court."

Please Judge Graber with a "May it please the Court."

(Checking my last transcript of argument before Judge Graber, I see that I began with a double-opener: "Good morning, Your Honors. May it please the Court..." Phew.)

Kanner on Mosk: "Stanley Mosk, Cool Guy"

Today's DJ features Gideon Kanner's book review of "Justice Stanley Mosk: A life at the Center of California Politics and Justice," by Jacqueline R. Braitman and Gerald F. Uelman. Gideon had a dozen cases before Justice Mosk, and his review focuses on Justice Mosk's eminent domain jurisprudence.

"Why wasn't any of Justice Mosk's towering dominance of California eminent domain law so much as mentioned in the Braitman-Uelmen Mosk biography? Wasn't it "politically correct" to do so?"

Home, Sweet Home: 3d District Returns to Mosk

While not exactly SoCal Appellate News, it's still big news that the 3d is finally returning to the Stanley Mosk Library & Courts Building in Sacramento on April 8, after having left the building for renovations in 2009.

versus

"short, strange, and totally inadequate"

That may describe someone you know. But it's also the description used in a decision today to describe an opening brief that was about four pages long, cited only one case (and miscited it), cited no other legal authority, failed to cite the record, offered a cursory argument that "totally fails," and ... you get the idea.
The Court of Appeal (1/2) orders its clerk to forward the opinion to the State Bar for investigation and possible discipline for the totally inadequate briefing. Another object lesson in why lawyers must take their obligation to represent an appellant seriously and do a decent job, or else...

Warning! Falling anvil!

Also, 4/1 today awards $14,500 in appellate sanctions here against an appellant for bringing a frivolous appeal and making continued misrepresentations to the court. (Note that the respondent failed to properly request appellate sanctions by a separate motion, but the court steps in to award them sua sponte anyway.)

9th Circuit Appellate Mentoring Program

The Ninth Circuit is starting an Appellate Mentoring Program.

"The Appellate Mentoring Program is intended to provide mentoring on a voluntary basis to attorneys who are new to federal appellate practice or would benefit from guidance at the appellate level. In addition to general assistance regarding federal appellate practice, the project will provide special focus on two substantive areas of practice – immigration law and habeas corpus petitions. Mentors will be volunteers who have experience in immigration, habeas corpus, and/or appellate practice in general. The project is limited to counseled cases."

More details here.

DJ Profiles 9th Circuit Judge Nguyen

Can you name the three active 9th Circuit judges born abroad?
If not, today's DJ profile of Judge Nguyen has the answer.

To read her story in her own words, click here.

Also, don't forget that Judge Nguyen will be a panelist on April 18 at the FBA-LA program "Thinking Like a New Federal Judge."

Ooops! Your appendix cite is showing...

How does 4/1 cite to an appellant's appendix internally? A decision today pulls back the curtain:

In May 2009 Neefe-Nolan filed a complaint for breach of contract against Schindelar-Szynter alleging they refused to cooperate regarding the exchange of easement deeds. !(1 AA 121-128)! Schindelar-Szynter answered and filed a cross-complaint alleging Neefe-Nolan failed to comply with the settlement agreement.

Justice Beds & Pink Bollworms

Don't miss Justice Bedsworth's column in today's Recorder -- which actually addresses appellate practice (more or less) -- titled "Appellate Bench's Tougher Moments." And you'll learn about pink bollworms. (See People v. Anderson (1987) 191 Cal.App.3d 207.)

"We!  Are!  Fam-ily!"
Family Gelechiidae, that is.

Handling Large Record Appeals

Last night's LACBA ACS program on Handling Large Record Appeals had a great panel and large crowd of interested appellate practitioners.

(No photo of Dennis Fischer available)

Naturally there was much discussion about "doghouses" -- a doghouse being a file folder that holds about four volumes of materials (so roughly 6" or 1200 pages).

In most divisions, an appeal with 4 or more doghouses is called a "jumbo" (in some divisions 3 doghouses qualifies as a "mini-jumbo").

By the way, the sample "doghouse from a jumbo" that was used at the program was "7 of 9" a phrase that was used repeatedly without anyone mentioning Annika Hansen (Jeri Ryan)...

"Can't that Jumbo be assigned to a red-shirted Research Attorney?"

And in today's DJ, the 2d District's APJ Roger Boren noted that although overall appellate filings are down since the 1990s, the court has been getting more jumbo cases than in the past.

New boilerplate for all civil litigation?

In an interesting decision today (Sinai v. Saltz) from 2/7, this paragraph jumped out at me as something that could apply in many, many cases...

"In reversing the trial court’s order, we do not intend to signal our approval of the manner in which this litigation has been conducted. It has gone on far too long. It has consumed far too much of the judicial system’s limited resources. Gamesmanship appears too often to take precedence over reasonable efforts to resolve procedural disputes and to address the merits of the remaining controversy. Civility and courtesy are absent. Strong oversight by the trial court is obviously necessary."

Old law discarded today re tort of diclosing private facts

For a nice example of how old rules are discarded and new law is made, look no further than today's opinion Ignat v. Yum! Brands. Here are three key paragaphs:
     To sum up, the "rule" requiring a written publication as an element of a public disclosure of private facts privacy claim in California originated in dictum – which lacked support in the case law on which it was based – in an opinion that rejected the tort and all its principles, instead basing its holding on another principle entirely. It was followed by two cases from the 1960's, both of which cited Melvin's "principle" as if it had been a holding instead of a detour. (Gautier v. General Telephone Co., supra, 234 Cal.App.2d at p. 303; Grimes v. Carter, supra, 241 Cal.App.2d at pp. 698-699.) With these two exceptions, restricting privacy violations to written publications has been either roundly criticized or ignored by the courts dealing with disclosure of private facts in oral statements since the principle was first enunciated, in dictum, in Melvin. This is not a firm foundation for a ruling dismissing a cause of action.
     We conclude that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort's purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890's – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones. To allow a plaintiff redress for one kind of disclosure but not the other, when both can be equally damaging to privacy, is a rule better suited to an era when the town crier was the principal purveyor of news. It is long past time to discard this outmoded rule.
     The requirement that a public disclosure be in writing was the only basis for the trial court's ruling on respondents' motion for summary judgment. Accordingly we do not address any other issues raised in the motion or any other potential problems with the cause of action. Our ruling is limited to the necessity for private facts to be disclosed in a writing. We hold that disclosure in a writing is not required to maintain a cause of action for public disclosure of private facts.

What's more delicious than new law?

3d District Launches E-Filing Project

The Court of Appeal for the Third Appellate District is now accepting electronically filed and electronically submitted documents. Electronic filing is the filing of an electronic text-searchable PDF document in lieu of a paper original and any required paper copies with the reviewing court. Electronic submission is the submission of an electronic text-searchable PDF copy of a document to the reviewing court.

The list of documents that may be e-filed or e-submitted can be found here.

Over time, the Court of Appeal anticipates expanding the project to include more types of documents.

Also, in case you missed it, last month the 3d District reduced the hours of its filing window: The public filing window hours are now 8:30 a.m. to 4:30 p.m. (no longer 5:00 p.m.!), Monday through Friday

Appeals really do answer the big questions...

Today is the 50th anniversay of Gideon v. Wainwright.
The Third Branch has this article about how FPDs and high school students are marking the anniversary.
And the NY Law Journal has this piece by Paul Shechtman about the most famous case of criminal procedure.

Justices Corrigan & Liu in Conversation w/Prof. Martin

Professor Shaun Martin of USD's School of Law and author of the California Appellate Report blog will moderate a conversation with Supreme Court Justices Corrigan and Liu at the ABTL-LA's dinner program on April 2 at the downtown LA Biltmore. Details here.

Appeals answer all the big questions....

If you're reading this blog, you're probably also reading (or should be reading) USD Law School Professor Shaun Martin's blog at California Appellate Report.
Professor Martin discusses a newly issued California or Ninth Circuit opinion every day, invariably with an enjoyable spin. For instance, yesterday he posted about a case that answers this burning SoCal question: "I live in Los Angeles. I wonder where my poop goes after I flush the toilet?"


Have a question? Don't ask...

unless you can handle the answer...

No more judicial rescue missions?

Appellate specialist Mark Schaeffer draws attention to the published opinion today from the 3d District, Good v. Miller, in which an appeal was taken from an order imposing terminating sanctions, which is not an appealable order.
The court gives three reasons for declining to exercise its discretion to save this appeal: First, appellant didn't ask for that help; second, appellant ignored the issue; and third, appellant misstated relevant facts about appealability. Sorry, Mr. Good, that's not good.


Mayday! Choplifter hit! Rescuse mission scrubbed...

And again, later today in this case....

Video of the 2013 State of the Judiciary Address

Have twenty minutes for the Chief Justice of California?
Click here to hear her State of the Judiciary Address.

"I worry that California is on the wrong side of history in funding justice."

Felony Sentencing; Realignment Act; Prop. 36

If those terms mean anything to you, then you may be interested in an upcoming Rutter Group seminar (live in LA on April 29, repeated by video in San Diego, Costa Mesa, and Sherman Oaks in May) featuring 2/8's PJ Bigelow. Details here.

Federal appellate geeks rejoice!

Yes, that's the headline from How Appealing, about today's release of detailed statistics on the federal courts, including appellate courts.

Here's what jumps out regarding the 9th Circuit:

• 18.7% of cases are invited for oral argument (a lower percentage than in six other circuits; the 7th Circuit has the highest rate [38.3%] and the 4th Circuit has the lowest [10.5%])
• The reversal rate in private civil cases is 11.5% (The D.C. Cir. has the highest [16.3%] with the 7th Circuit close behind [15.5%])

Thus, there appears to be a correlation between oral argument and reversals...

Justice Ikola & other SCANworthy items in today's DJ

Today's Daily Journal features a profile of 4/3's Justice Ikola.

No, not that kind of engineer.

 The article quotes this line from his Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1453 opinion: "The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks." 


"I'll have a half double decaffeinated half-caf, with a twist of lemon."

Two other noteworthy items in today's DJ:

• A book review of Justice Sotomayor's My Beloved World, which reviewer Elaine Elinson calls a page-turner; and
• An article titled Will the Composition of the State High Court Affect California Arbitration Law? -- pointing out that Justice Moreno (who penned Gentry, Discovery Bank and Sonic-Calabasas) and Chief Justice George (who voted with the majority in those cases) are no longer on the court.

Not Sonic-Calabasas, but Sonic nonetheless.

Are you the *Star of your appeal?

In the category of "Don't blow your Cover," note that Rule 8.40(c) was amended effective January 1 to require that covers in the Court of Appeal include e-mail addresses. Also, if more than one lawyer from a firm is on the brief (and that's typically the case, right?) then one of those lawyers has to be designated with an asterisk as counsel for the court to contact. This requirement parallels SCOTUS practice of designating an official "counsel of record."

Here's the rule:
(c) Cover information

(1) Except as provided in (2), the cover-or first page if there is no cover-of every document filed in a reviewing court must include the name, mailing address, telephone number, fax number (if available), e-mail address (if available), and California State Bar number of each attorney filing or joining in the document, or of the party if he or she is unrepresented. The inclusion of a fax number or e-mail address on any document does not constitute consent to service by fax or e-mail unless otherwise provided by law.

(2) If more than one attorney from a law firm, corporation, or public law office is representing one party and is joining in the document, the name and State Bar number of each attorney joining in the document must be provided on the cover. The law firm, corporation, or public law office representing each party must designate one attorney to receive notices and other communication in the case from the court by placing an asterisk before that attorney's name on the cover and must provide the contact information specified under (1) for that attorney. Contact information for the other attorneys from the same law firm, corporation, or public law office is not required but may be provided.

*

Bonus points for readers who know who this guy is...

PJ JDK adds Philanthropy to her accomplishments

Who was the first UCLA School of Law grad appointed to the bench? Who was the first female presiding justice in California? Who is the most senior appellate justice in the State?
These are easy questions to answer: 2/3's Joan Dempsey Klein, who has an amazingly long list of awards and accomplishments to her name. And she has now bolstered her philanthropic endeavors with a major gift to her alma matter...

Today UCLA announced that PJ Klein and her husband have given the school $1.025 million to establish the Justice Joan Dempsey Klein Scholarships in Law to provide support to students with financial need who have also demonstrated excellence in academics, leadership and commitment to advocating for gender equality or promoting the advancement of women in law and society.

SoCal Appellate Whippersnappers per the DJ

The latest supplement to the Daily Journal is the annual "Top 20 under Forty" designed to showcase up and comers who have not yet reached their fourth decade. Two of the fortunate 20 lawyers profiled list "appellate" as (or among) their specialities. So, congrats to:

• Glenn Danas (see Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 197 and Iskanian v. CLS Transp. (2012)) and
• GDC's Theane Kapur (see Wilson v. HP (9th Cir. 2012) 668 F.3d 1136).

Honorable mention to Theona Zhordania, who listed anti-SLAPP litigation as a specialty, and thereby is automatically an appellate lawyer too (see CCP 425.16(i)).

Gilbert on Mosk

No, not a 2/6 v. 2/5 smackdown, but rather PJ Gilbert's book review in yesterday's DJ of Justice Stanley Mosk, A Life at the Center of California Politics and Justice, by Jacqueline R. Braitman and Gerald F. Uelmen (McFarland & Company, Inc., 2012). This is plainly a book any California appellate practitioner will want to read.

And... don't miss Professor Kanner's provocative article in today's DJ titled Methinks Justice Stevens Protests Too Much -- also a book review of sorts -- of Justice Stevens' latest law review article on Kelo v. New London: Kelo, Popularity and Substantive Due Process, 63 Ala. L. Rev. 941 (2012) -- with interesting commentary about the role of stare decisis at SCOTUS.

Include the complaint in the record...

... or expect a footnote like this from today's 4/3 decision here:

Curiously, [Appellant] did not designate the complaint in the Fraudulent Transfer Lawsuit as a part of the record on appeal. This omission was not lost on [Appellant], inasmuch as it found itself unable to provide a record reference for the complaint in its opening brief. Although it offered a parenthetical reference to a motion to augment, this court has no record of a motion to augment ever having been filed. Having noticed the deficiency in the record, this court notified the parties that it intended to augment the record on its own motion to include a copy of the complaint in the Fraudulent Transfer Lawsuit, and gave the parties an opportunity to object. No objection having been received, this court, by order of January 23, 2013, augmented the record to include a copy of the complaint. We are dismayed, to say the least, at this material omission from the record.

A pressing footnote...

Along these same lines, also from a 4/3 decision today:
As a preliminary matter, we reject [Respondent's] claim we should not reach the merits of [Appellant's] appeal because the order appealed from is not contained in the joint appendix. [Appellant] filed the order along with its reply brief and we deem it part of the record on appeal.

Justice Liu to present this year's LACBA Witkin Lecture

LACBA's Litigation section will be graced with Justice Goodwin Liu on April 25, when he presents this year's Bernard Witkin Lecture at the downtown LA Omni Hotel.  Details here.

Another sad loss: Sheila Kato Novak

As reported in the LA Times (March 3) the Southern California Appellate community has lost another beloved stalwart: Sheila Kato Novak. For nearly 40 years Sheila was a regular in the appellate world, working for Justices Marcus Kaufman and Madeleine Flier. She was one of the first certified appellate specialists and was a regular at LACBA ACC events. Sheila will be dearly missed.

Bedsworth sightings....

4/3's Justice Beds' latest piece -- The Curse of the Carbonic Reserves -- is posted on The Recorder's website. And he was in LA today at the Association of Southern California Defense Counsel's Annual Seminar, on the panel for the "Civility Matters" program. Justice Bedsworth takes civility seriously and will turn his sharp pen on lawyers who misbehave, e.g., Kim v. Westmoore Partners (2011) 201 Cal.App.4th 267.


Speaking of today's ASCDC program, H&L Appellate Specialist Lisa Perrochet was honored for her famous "Green Sheets" (in Verdict magazine), which was a bit more upbeat than Karl Rove's keynote speech on the state of America's economy...

Employment Law Symposium (with Circuit Judges)

Just as it's seemingly impossible to be an appellate lawyer and not be an anti-SLAPP lawyer these days, it's also nearly impossible to escape the grasp of employment law. Labor and employment has been a red hot practice area for about a decade now, with no end in sight.
Thus, we call to your attention the LACBA Labor & Employment Law Section's 33rd Annual Labor and Employment Law Symposium, March 27 at the downtown LA Biltmore (8:15 to 5:30, for 8.25 CLE credits).
If the draw of employment law still isn't enough for you, note that the keynote speaker will be Dean Erwin Chemersinky and that other speakers will include Chief Judge Alex Kozinski and Judge Marsha Berzon.