2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until January 31, 2019
• Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2018
• Judge Serena R. Murillo of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until January 31, 2019
• Judge Gary I. Micon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until November 30, 2018
• Judge Kim Garlin Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until December 31, 2018
• Judge Laura A. Seigle of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until December 14, 2018
• Judge Lisa R. Jaskol of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until December 14, 2018
• Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until January 31, 2019

Don't Cut Our Word Count!

The NLJ has Supreme Court Advocates Push Back on 'Harmful' Proposed Word Limits: "Brief writers would often have to sacrifice readability and clarity to meet the word limit,” according to a letter 18 firms sent to the U.S. Supreme Court on Friday.

The firms’ letter to SCOTUS stated that “a high percentage of the Court’s merits cases are of great national importance and therefore warrant comprehensive briefing.”

The firms that joined in the effort, organized by Michael Kimberly of Mayer Brown, were: Akin Gump Strauss Hauer & Feld; MoloLamken; Arnold & Porter Kaye Scholer; Morrison & Foerster; Bursch Law; O’Melveny & Myers; Gibson, Dunn & Crutcher; Quinn, Emanuel, Urquhart & Sullivan; Gupta Wessler; Ropes & Gray; Jenner & Block; Sidley Austin; Kellogg, Hansen, Todd, Figel & Frederick; Vinson & Elkins; Wilmer Cutler Pickering Hale and Dorr; King & Spalding; Winston & Strawn; and Mayer Brown.

New Rules re Appointed Counsel for Death Penalty Cases

Council Adopts New Rules onAppointed Counsel in Death Penalty Review Cases

Rule changes will help implement Prop. 66, passed by voters to change the procedures for the review of death penalty cases.haring Buttons

The Judicial Council at its November 29–30 meeting approved changes to rules of court that govern appointed counsel in death penalty appeals and habeas corpus proceedings. One revision modifies qualification requirements for appointed attorneys in habeas corpus proceedings, including the number of years practicing law, legal and case experience, and training. The second revision creates new rules related to the vetting and appointment of attorneys for death penalty–related habeas corpus proceedings heard in the superior courts. “One of our goals is to achieve competent representation without unduly reducing the number of attorneys willing and able to handle these complex cases,” said Justice Dennis M. Perluss, chair of the working group appointed earlier this year to implement aspects of Prop. 66 that impact court functions. “Another goal is to support trial courts now tasked with appointing death penalty counsel in habeas corpus proceedings. These are new procedures, and we anticipate making improvements and refinements as we move forward.”

New judges (with some appellate backgrounds)

Governor Brown today announced the appointment of 12 California superior court judges, which include: One in Kern County; Seven in Los Angeles County; One in Napa County; One in Orange County; One in Sacramento County; and one in Sutter County.

• Therese M. Foley, 67, of Bakersfield, has been appointed to a judgeship in the Kern County Superior Court. 
• Daniel M. Crowley, 58, of Los Angeles, has been appointed to a judgeship in the Los Angeles County Superior Court.
• Alexander C.D. Giza, 51, of Culver City, has been appointed to a judgeship in the Los Angeles County Superior Court. Giza has been a partner at Hueston Hennigan LLP since 2015. He was a partner at Russ, August and Kabat from 2009 to 2014. Giza was counsel at Irell and Manella LLP in 2009, where he was an associate from 2001 to 2008. He was a law clerk for the Honorable Walter L. Carpeneti at the Alaska Supreme Court from 2000 to 2001.
• Mary E. Kelly, 65, of Los Angeles, has been appointed to a judgeship in the Los Angeles County Superior Court. Kelly has served as an administrative law judge at the California Unemployment Insurance Appeals Board since 2004. She served as an Assistant Federal Public Defender and supervising trial attorney at the Federal Public Defender’s Office from 1995 to 2004 and was a law clerk for the Honorable Arthur L. Alarcon at the U.S. Court of Appeals, Ninth Circuit from 1993 to 1994 and from 1981 to 1983. Kelly was a sole practitioner from 1984 to 1993 and an instructor at the California State University, Long Beach Department of Health Care Administration from 1984 to 1989. She was an associate at Abzug and Kelly from 1983 to 1984, an adjunct professor at Southwestern University School of Law from 1983 to 1991 and served as a law clerk for the Honorable David Linn at the Illinois First District Court of Appeal from 1979 to 1981.
• Jeffrey S. Cohen-Laurie, 43, of West Hollywood, has been appointed to a judgeship in the Los Angeles County Superior Court.
• David K. Reinert, 43, of Culver City, has been appointed to a judgeship in the Los Angeles County Superior Court. 
• Holly A. Thomas, 38, of Los Angeles, has been appointed to a judgeship in the Los Angeles County Superior Court. Thomas has served as deputy director of executive programs at the California Department of Fair Employment and Housing since 2016. She served as special counsel to the solicitor general at the New York State Office of the Attorney General, Office of the Solicitor General from 2015 to 2016 and as senior appellate attorney at the U.S. Department of Justice, in the Appellate Section of the Civil Rights Division from 2010 to 2015. Thomas was assistant counsel at the NAACP Legal Defense and Educational Fund Inc. from 2005 to 2010, where she was a Liman fellow from 2005 to 2006. Thomas served as a law clerk for the Honorable Kim McLane Wardlaw at the U.S. Court of Appeals, Ninth Circuit from 2004 to 2005. 
• Jessica A. Uzcategui, 43, of South Pasadena, has been appointed to a judgeship in the Los Angeles County Superior Court.
• Monique S. Langhorne, 43, of Vallejo, has been appointed to a judgeship in the Napa County Superior Court. 
• H. Shaina Colover, 45, of Newport Beach, has been appointed to a judgeship in the Orange County Superior Court.
• Daniel J. Calabretta, 40, of Sacramento, has been appointed to a judgeship in the Sacramento County Superior Court. Calabretta has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2013. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2008 to 2013 and was an associate at Munger, Tolles and Olson LLP from 2005 to 2008. Calabretta served as a law clerk for the Honorable John Paul Stevens at the Supreme Court of the United States from 2004 to 2005 and for the Honorable William A. Fletcher at the U.S. Court of Appeals, Ninth Circuit from 2003 to 2004.
• Laura J. Davis, 44, of Chico, has been appointed to a judgeship in the Sutter County Superior Court. Davis has served as a research attorney at the Sutter County Superior Court since 2005. 

First line contender

"Beauty may be in the eye of the beholder but legal ambiguity is not. As we shall explain, there is no objective legal ambiguity in the easement here at issue."
So begins this published case from 2/6, which also includes a color photo Google map of the property at issue.

What some Cal Supreme Court work?
Representation of Death Penalty Inmates
The California Supreme Court is seeking qualified lawyers to represent indigent persons who have been sentenced to death in their direct appeal to the Supreme Court.  For information regarding applying for an appointment, appointed counsel’s duties, and payment of counsel’s fees and expenses, please use the following link: Representing Death Penalty Inmates.

New PA for the Chief

Neil Gupta Appointed Principal Attorney to the Chief Justice

Chief Justice Tani G. Cantil-Sakauye on Wednesday announced the appointment of Sunil “Neil” Gupta as principal attorney to the Chief Justice. Gupta, who has served the Supreme Court of California since 2007, assumes the position formerly held by Carin Fujisaki.

“Neil has excelled in his work for the Supreme Court over nearly a decade of public service,” said Chief Justice Cantil-Sakauye. “His intellect and insight will be immensely valuable as we address important issues facing our court, the legal profession, and the entire judicial branch.”
“I also want to thank Carin Fujisaki for her dedicated service and wish her well as she begins her new role as an associate justice of the First District Court of Appeal,” the Chief Justice said.
Since 2010, Gupta has served as chambers attorney to the Chief Justice, assisting in drafting opinions in criminal and civil cases that come before the court. Gupta began his career with the Supreme Court in 2007 as an attorney on its central staff focused on complex capital cases, drafting orders and opinions for capital-related appeals and habeas corpus petitions.
“While I’ve enjoyed focusing on Supreme Court case issues over the past seven years, I look forward to making this shift to the policy side and serving the Chief Justice and the judicial branch on a wide variety of important issues,” Gupta said.
Prior to joining the Supreme Court, Gupta was a staff attorney with the Santa Clara County Superior Court, researching legal questions and preparing bench memos for judges in criminal matters.
In 1999, he worked with the original Innocence Project in New York on the organization’s first comprehensive study of wrongful convictions, building a database of DNA exonerations and factors leading to wrongful convictions. That same year, he was a law clerk with the Law Offices of Johnnie Cochran, Peter Neufeld & Barry Scheck.
Gupta earned a Juris Doctor degree from the University of California, Berkeley, a master’s degree from Columbia University, and a bachelor’s degree from the University of California, Berkeley.

New 9th Circuit Rules & Forms

On December 1, 2018, in conjunction with newly revised FRAP and Circuit Rules, the Ninth Circuit will be rolling out new and revised forms that are designed to simplify filing with the Court. In addition to creating new forms and revising existing forms, we have standardized, numbered, and categorized them and added linked instructions for the vast majority of them. We have also created some new filing types that will not require an attachment of any kind. Finally, we are also providing Microsoft Word versions of certain forms that are required to be attached to other documents so the form can be incorporated into your document more easily.

Some of the highlights are:

* New form motion for extension of time to file anything (other than streamlined extension) - Form 14
* New form Representation Statement - Form 6
* New form Statement of Related Cases - Form 17
* New form response to motion or court order - Form 28
* New form CR 27-3 certificate for emergency and urgent motions - Form 16
* New form response to notice of consideration for calendar sittings (and new filing type) - Form 32
* Revised form Certificate of Service for electronically filed documents (conforming to revised Circuit Rule 25-5(f)) - Form 15
* Revised Mediation Questionnaire (to facilitate subsequent, separate confidential submissions) - Form 7
* Revised form Notice of Sealing and new form Notice of Intent to Unseal (separated into two separate forms for clarity) - Forms 19 and 20
* New filing type for notice of appearance/substitution of counsel - no form or other attachment required
* New filing type for notice of withdrawal of counsel (in civil cases) - no form or other attachment required
* New filing type for Acknowledgement of Hearing Notice - no form or other attachment required
* New filing type for non-opposition to motion - no form or other attachment required

The forms that are intended for electronic filing include instructions regarding which filing type to use and how to complete and attach a fillable PDF. The filing types listed above that will no longer require an attachment or form (like the existing streamlined extension of time filing type) are listed in the CM/ECF User Guide at the Court's website (http://cdn.ca9.uscourts.gov/datastore/uploads/cmecf/ecf-user-guide.pdf). Please visit the forms page on our website (https://www.ca9.uscourts.gov/forms/) on or after December 1, 2018 to see all the new and revised forms and instructions. 

COJA hearings set for Dec. 21

Commission on Judicial Appointments to Consider Six Appointments to Courts of Appeal

Public hearings have been scheduled by the Commission on Judicial Appointments for Dec. 21, beginning at 9 a.m. in the Supreme Court Courtroom—350 McAllister Street in San Francisco—to consider the following appointments by Governor Edmund G. Brown, Jr.:

• Gordon B. Burns, as Associate Justice of the Court of Appeal, First Appellate District, Division Five
• Judge Tracie L. Brown, as Associate Justice of the Court of Appeal, First Appellate District, Division Four 
• Judge Ioana Petrou, as Associate Justice of the Court of Appeal, First Appellate District, Division Three
•  Joshua P. Groban, as Associate Justice of the Supreme Court of California
• Justice Laurence D. Rubin, as Presiding Justice of the Court of Appeal, Second Appellate District, Division Five
•  Judge Brian S. Currey, as Associate Justice of the Court of Appeal, Second Appellate District, Division Four
• Judge John Shepard Wiley Jr., as Associate Justice of the Court of Appeal, Second Appellate District, Division Eight 

Governor Brown Appoints Four Court of Appeal Justices

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Gordon B. Burns as associate justice, Division Five of the First District Court of Appeal and Brian S. Currey as associate justice, Division Four, Laurence D. Rubin as presiding justice, Division Five and John Shepard Wiley Jr. as associate justice, Division Eight of the Second District Court of Appeal.

First District Court of Appeal

Gordon B. Burns, 52, of Davis, has been appointed associate justice, Division Five of the First District Court of Appeal. Burns has served as undersecretary at the California Environmental Protection Agency since 2011. He was an attorney at the Resources Law Group LLC from 2010 to 2011 and served as deputy solicitor general at the California Department of Justice, Office of the Attorney General from 2006 to 2010, where he was also a deputy attorney general from 1997 to 2006. Burns was an associate at Downey, Brand, Seymour and Rohwer from 1994 to 1997. He earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Bachelor of Arts degree from the University of California, Los Angeles. Effective November 30, 2018, Burns will fill the vacancy created by the retirement of Justice Terence L. Bruiniers. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Burns is a Democrat.

Second District Court of Appeal

Brian S. Currey, 62, of Manhattan Beach, has been appointed associate justice, Division Four of the Second District Court of Appeal. Currey has served as a judge at the Los Angeles County Superior Court since 2014. He was of counsel at O’Melveny and Myers LLP from 2013 to 2014. Currey was deputy mayor for economic and business policy in the Office of Los Angeles Mayor Antonio Villaraigosa in 2013 and counsel to the mayor from 2010 to 2013. He was a partner at O’Melveny and Myers LLP from 1989 to 2010, where he was an associate from 1981 to 1989. Currey earned a Juris Doctor degree from the University of Virginia School of Law and a Bachelor of Arts degree from the University of California, Davis. He fills the vacancy created by the elevation of Justice Nora M. Manella to presiding justice, Division Four of the Second District Court of Appeal. This position requires the completion of a review by the State Bar's Commission on Judicial Nominees Evaluation and confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice Arthur Gilbert. Currey is a Democrat.

Laurence D. Rubin, 72, of Los Angeles, has been appointed presiding justice, Division Five of the Second District Court of Appeal. Rubin has served as an associate justice at the Second District Court of Appeal since 2001. He served as a judge at the Los Angeles County Superior Court in 2001 and at the Santa Monica Municipal Court from 1982 to 2001. Rubin was of counsel at Mitchell, Silberberg and Knupp in 1982 and a partner at Kaplan, Livingston, Goodwin, Berkowitz and Selvin from 1978 to 1982, where he was an associate from 1973 to 1978. He served as a law clerk for the Honorable Stanley Mosk at the California Supreme Court from 1971 to 1972. Rubin earned a Juris Doctor degree from the University of California, Los Angeles School of Law and a Bachelor of Arts degree from the University of California, Los Angeles. He fills the vacancy created by the death of Presiding Justice Paul A. Turner. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice Arthur Gilbert. Rubin is a Democrat.

John Shepard Wiley Jr., 65, of Los Angeles, has been appointed associate justice, Division Eight of the Second District Court of Appeal. Wiley has served as a judge at the Los Angeles County Superior Court since 2002. He was a policy consultant at the Federal Trade Commission in 2001 and special master at the U.S. District Court, Central District of California from 2000 to 2001. Wiley was a teacher at the Federal Judicial Center from 1995 to 2008, an examiner for the Commission on Judicial Performance and of counsel at Mayer Brown from 1995 to 1999 and a visiting professor at Harvard Law School in 1998. He served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 1990 to 1994 and was counsel for the U.S. Senate Committee on the Judiciary in 1993. He was a professor at the University of California, Los Angeles School of Law from 1983 to 2005 and served as a law clerk for the Honorable Lewis F. Powell, Jr. at the Supreme Court of the United States from 1981 to 1982 and for the Honorable Frank M. Coffin at the U.S. Court of Appeals, First Circuit from 1980 to 1981. Wiley earned a Juris Doctor degree from the University of California, Berkeley School of Law, a Master of Arts degree in economics from the University of California, Berkeley and a Bachelor of Arts degree from the University of California, Davis. He is a member of the American Law Institute. Wiley will fill the vacancy created by the elevation, subject to confirmation, of Justice Laurence D. Rubin to presiding justice, Division Five of the Second District Court of Appeal. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice Arthur Gilbert. Wiley is a Democrat.

The compensation for each of these positions is $237,365.

DJ profiles 2/4's ABC

Today's DJ presents Systemic Change: 2d DCA Court of Appeal Justice Audrey Collins' past is helping shape the state's legal future.

Justice Collins "is a stickler for briefs and insisting attorneys don't blindside each other by bringing up case law for the first time at oral arguments," but "she is also a strong believe in showing up before the appellate panel and arguing one's case." She says, "That's your opportunity to sway the justices. You might think you have a very solid case, and you may be absolutely right. But if there's some little thread of it that seems to be coming unraveled to the justices and they want to ask you about that thread of your carefully woven blanket, you're not going to know that if you don't come in."

COJA hearings webcast today

Commission on Judicial Appointments Public Hearings Webcast
Tune in!

Click here to download photos of the hearings.
SAN FRANCISCO—Chief Justice Tani G. Cantil-Sakauye, chair of the Commission on Judicial Appointments, announced that the commission today confirmed the following appointments by Governor Edmund G. Brown, Jr.:

• Justice Stuart Pollak, as Presiding Justice of the Court of Appeal, First Appellate District, Division Four (San Francisco)

• Gabriel Sanchez, as Associate Justice of the Court of Appeal, First Appellate District, Division One (San Francisco)

• Carin Fujisaki, as Associate Justice of the Court of Appeal, First Appellate District, Division Three (San Francisco)

• Peter Krause, as Associate Justice of the Court of Appeal, Third Appellate District (Sacramento)

• Frank Menetrez, as Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two (Riverside)
The appointment was approved by a unanimous vote in the Supreme Court Courtroom, 350 McAllister Street in San Francisco.

4/1 goes to high school

Fourth Appellate District Holds Special Session for San Diego High School Students

San Diego students have been invited to attend oral argument and ask questions of the justices and attorneys during a special session Dec. 3. Open to the public, the session will begin at 10 a.m. in the Auditorium of E3 Civics High School, located at 395 11th  Avenue, San Diego, CA 92101.

This outreach program is one of many in the Fourth Appellate District to expand students’ understanding of the appellate court process. The students will watch experienced attorneys argue their cases and respond to inquiries before the court. After oral argument concludes, the justices and counsel will discuss the appellate process with students and will answer questions.
This program is the result of a collaborative effort between E3 Civics High School, Lincoln High School, Crawford High School and the Court of Appeal, Fourth Appellate District, Division One.

Beds on Symbols of Authority

The Recorder has Bedsworth: Symbols of Authority, about what "noted legal philosopher, sharp dresser, and Grammy award-winning rapper Wayne Michael Carter Jr." recognized as the "two symbols of authority: a robe and a gavel." Beds explains that judges have to buy their own robes and gavels. (See Gov. Code § 68110). And gavels, which he says are as useful as inflatable dartboards, are never really used. The single time he used a gavel in court, was "counterproductive, bordering on catastrophic." Read the column to get the scoop.

Today's DJ has articles of appellate note. Appellate Zealots features Sarah Hofstadter in Issue and Claim Preclusion in the wake of Samara. And Reed Smith's Jim Martin and David De Jesus offer Stay What? about the recent case of Marteney v. Elementis Chemicals.

Groban CJA hearing to be webcast on Dec. 21

Commission on Judicial Appointments to Consider Appointment of Mr. Joshua Groban to the Supreme Court of California

The confirmation hearing set for December 21 in San Francisco will be webcast live.

A public hearing has been scheduled by the Commission on Judicial Appointments for Dec. 21, beginning at 11 a.m. in the Supreme Court Courtroom—350 McAllister Street in San Francisco—to consider the appointment by Governor Edmund G. Brown, Jr. of Joshua P. Groban to the Supreme Court of California.
The state Constitution specifies that a gubernatorial appointment to the Supreme Court is effective when confirmed by the Commission on Judicial Appointments.
The commission members who will consider the appointment are Chief Justice of California Tani G. Cantil-Sakauye (Chair), California Attorney General Xavier Becerra, and senior Presiding Justice of the state Court of Appeal J. Anthony Kline.
Appointee Summary Biography
Groban would fill the vacancy created by the retirement of Associate Justice Kathryn M. Werdegar on Aug. 31, 2017.
Groban has served as senior advisor to Governor Brown since 2011. As senior advisor, Groban has overseen the appointment of approximately 600 judges throughout the state. Groban has also advised the Governor in high-profile litigation and policy issues involving education, the judiciary, criminal justice, national security and constitutional interpretation.
Groban was legal counsel for the Jerry Brown for Governor Campaign in 2010. He was an attorney at Munger, Tolles and Olson LLP from 2005 to 2010 and at Paul, Weiss, Rifkind, Wharton and Garrison LLP from 1999 to 2005. Groban served as a law clerk for Judge William C. Conner at the U.S. District Court, Southern District of New York from 1998 to 1999.
Groban has been a lecturer in state appellate practice at the University of California, Los Angeles School of Law since 2015. He earned a Juris Doctor degree from Harvard Law School, where he graduated cum laude and a Bachelor of Arts degree from Stanford University, where he graduated with honors and distinction.
Testimony and Comment
Persons who wish to testify or comment on the appointment must submit their information for receipt by the commission no later than 5 p.m. on Dec. 14.
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission

2 New Justices!

Governor Brown Appoints Two Court of Appeal Justices

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Judge Ioana Petrou as associate justice, Division Three and Judge Tracie L. Brown as associate justice, Division Four of the First District Court of Appeal.

First District Court of Appeal

Ioana Petrou, 50, of Oakland, has been appointed associate justice, Division Three of the First District Court of Appeal. Petrou has served as a judge at the Alameda County Superior Court since 2010. She served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Northern District of California from 2004 to 2010 and was counsel at O’Melveny and Myers LLP from 2002 to 2004. Petrou served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Eastern District of New York from 2000 to 2002. She was an associate at Foley and Lardner LLP from 1996 to 1999, at Weissburg and Aronson from 1995 to 1996 and at Proskauer Rose LLP from 1994 to 1995. Petrou served as a judicial extern for the Honorable Sheila Prell Sonenshine at the Fourth District Court of Appeal in 1992. She earned a Juris Doctor degree from the University of California, Berkeley School of Law and two Bachelor of Arts degrees from the University of California, Berkeley. She will fill the vacancy created by the elevation, subject to confirmation, of Justice Stuart R. Pollak to presiding justice, Division 4 of the First District Court of Appeal. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Petrou is a Democrat.

Tracie L. Brown, 47, of San Francisco, has been appointed associate justice, Division Four of the First District Court of Appeal. Brown has served as a judge at the San Francisco County Superior Court since 2013. She served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Northern District of California from 2002 to 2013 and was an associate at Cooley Godward Kronish LLP from 1997 to 2002. Brown served as a law clerk for the Honorable M. Margaret McKeown at the U.S. Court of Appeals, Ninth Circuit from 1998 to 1999 and was an associate at Morrison and Foerster LLP from 1996 to 1997. She earned a Juris Doctor degree from the University of California, Berkeley School of Law and a Bachelor of Arts degree from Harvard College. She fills the vacancy created by the retirement of Justice Timothy A. Reardon. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Brown is a Democrat.

The compensation for each of these positions is $237,365.

President Jabs 9th Circuit

At today's Presidential Turkey Pardoning ceremony,

"The president said he would issue two turkeys, Peas and Carrots, a presidential pardon in celebration of the Thanksgiving holiday Thursday. While the origins of the annual ceremony are unclear, the White House has made the turkey pardoning an official tradition since the George H. W. Bush administration. “Unfortunately, I can’t guarantee that your pardons won’t be enjoined by the Ninth Circuit,” Trump said. “Always happens. They’re guaranteed.” "

See President Trumps Jabs Ninth Circuit During White House Turkey Pardon: Trump joked that he expects Ninth Circuit to block the pardons.

Also:

According to Wednesday reports from the Associated Press, Trump called Tigar an “Obama judge,” and critiqued the ruling, saying , Every case that gets filed in the 9th Circuit, we get beaten. And then we end up having to go to the Supreme Court, like the travel ban, and we won.”
Chief Justice John Roberts issued a rare statement Wednesday rebuking Trump’s comments. Roberts said the U.S. doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges.”

See Chief Justice Roberts Rebuffs Trump After He Criticizes Judges Again

DJ Podcast re Josh Groban

It's Groban

An expert panel reviews Gov. Brown's final high court selection, Joshua Groban. Justices Arthur Gilbert (2DCA/6) and Therese Stewart (1DCA/2), and former State Bar president Howard Miller (JAMS) chat Groban, Brown, and the California Supreme Court to come.

New Cal Supreme Opinion Style

Looking good, Supremes! Sleek! Clean! Modern! Nice spacing!
Check out the new style the Cal Supremes are using for opinions here!

New 9th Circuit Rules effective 12/1/18

Revised FRAP and Circuit Rule Changes Effective December 1, 2018

Circuit Rules 22-1 through 22-6

Circuit Rule 25-5

FRAP changes

List of New and Revised Forms and Filing Types

Proposed Rules and Amendments

Public Comment Invited on Proposed Changes to Circuit Rules 27-13 and 27-14 and other miscellaneous rule changes.

In other news....

Nearly Six in 10 Failed California's July 2018 Bar Exam

The scores, released Friday, mark an almost nine percentage point drop from the July 2017 test. The exam pass rate plunged to a 67-year low.

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until November 30, 2018
• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2018
• Judge Gary I. Micon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until November 30, 2018
• Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until December 31, 2018
• Judge Laura A. Seigle of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until December 14, 2018
• Judge Lisa R. Jaskol of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until December 14, 2018
• Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2018

DJ articles of note

Today's DJ has some appellate articles.

• Governor's state high court pick has no judicial or appellate experience, which notes that "Groban is widely viewed as an outgoing consensus builder."
• Justice recalls the good and bad of her past as a nurse in Vietnam: Court of Appeal Justice Eileen Moore delivered a heart-wrenching speech at the Vietnam Women's Memorial on Sunday.

And speaking of Justice Moore, the November 2018 issue of Litigation Update is now online, keeping you up-to-date on current case law. 

Law360 offers McConnell, McGahn Tout Their Success Reshaping Judiciary, which begins:

Senate Majority Leader Mitch McConnell and former White House Counsel Don McGahn received a hero’s welcome at the Federalist Society’s annual dinner Thursday night as they discussed how the two turned the Trump presidency into the most effective conservative judge-making machine in history.

And the memes begin....

Josh Groban joins the Supremes....

Pasta with the Supremes!

The Italian American Lawyers Association will host its Annual California Supreme Court night (with Gary Green and his Big Band of Barristers) on December 5 at the Casa. Details here.

6:00pm -6:45pm: Social Hour with our Combo Performing Background Music
7:00pm-7:15pm: First Set by Gary Greene, Esq. & His Big Band of Barristers
8:15pm-On: Dancing to the Classic Big Band Tunes
Entrée Selection: Chicken, Sausage & Peppers, or Vegetarian Eggplant Parmesan
All dinners come with Antipasto, Mostaccioli, Spumoni, Wine and 1 CLE credit
RSVP by November 30th at our Event Page: http://iala38.wildapricot.org/page-1836071 

Josh Groban selected for Supreme Court!

Governor Edmund G. Brown Jr. today announced Joshua Groban as his choice for associate justice of the California Supreme Court.
Joshua Groban, 45, of Los Angeles, has served as a senior advisor to Governor Edmund G. Brown Jr. since 2011.

“Josh Groban has vast knowledge of the law and sound and practical judgement,” said Governor Brown. “He’ll be a strong addition to California’s highest court.”

“Serving the people of California over the past 8 years has been the privilege of a lifetime,” said Groban. “I am truly humbled by this nomination and, if confirmed, I look forward to working alongside the highest court’s truly exemplary jurists.”

As senior advisor, Groban has overseen the appointment of approximately 600 judges throughout the state since 2011. These appointments have been lauded as the most diverse in the state’s history.

“Governor Jerry Brown has done it again, made a supreme appointment to the California Supreme Court. Josh Groban, a lawyer of extraordinary ability and insight, will bring scholarship, practicality, and respect for the rule of law to his decisions,” said Presiding Justice Arthur Gilbert of the Second District Court of Appeal, Division Six. “His appointment ensures that the California Supreme Court will continue to be the most respected state court in the nation. His appointment also reflects the diversity that makes our Supreme Court reflective of the society it serves. He will be the next Jewish justice after the late Justices Tobriner and Mosk.”

“I am delighted to learn of Governor Brown’s nomination of Joshua Groban as an associate justice of the California Supreme Court. Josh has served the Governor and the State of California well for 8 years seeking the best-qualified candidates for appointment to the bench,” said retired justice of the California Supreme Court, Justice Carlos R. Moreno. “He is a thoughtful and deliberative selection who will serve with distinction on our nation’s leading state supreme court. I’m also very pleased that the Governor has nominated someone with roots in Southern California who will add to the geographical balance on the Court.”

Groban has also advised the Governor in high-profile litigation and policy issues involving education, the judiciary, criminal justice, national security and constitutional interpretation.

Groban was legal counsel for the Jerry Brown for Governor Campaign in 2010. He was an attorney at Munger, Tolles and Olson LLP from 2005 to 2010 and at Paul, Weiss, Rifkind, Wharton and Garrison LLP from 1999 to 2005. Groban served as a law clerk for the Honorable William C. Conner at the U.S. District Court, Southern District of New York from 1998 to 1999.

“Josh’s sharp legal mind, even temperament and extensive track record of public service will make him a wonderful addition to the California Supreme Court,” said Munger, Tolles and Olson LLP name partner Ronald L. Olson. “We are proud of what he has accomplished. I am confident he will further distinguish himself and the Court as a jurist.”

“I have known Josh Groban for almost 20 years. In that time, I have watched Josh become an outstanding lawyer and public servant. He will now be an outstanding member of the California Supreme Court. I congratulate Governor Brown on this fine appointment,” said Paul, Weiss, Rifkind, Wharton and Garrison LLP partner and former U.S. Secretary of Homeland Security Jeh C. Johnson.

Groban has been a lecturer in state appellate practice at the University of California, Los Angeles School of Law since 2015. He earned a Juris Doctor degree from Harvard Law School, where he graduated cum laude and a Bachelor of Arts degree from Stanford University, where he graduated with honors and distinction.

“Joshua Groban is a superb choice for the California Supreme Court. For the past five years, alongside his myriad other responsibilities, he has taught our State Appellate Practice course at UCLA School of Law,” said Dean, UCLA School of Law Jennifer L. Mnookin. “He has been an extremely effective and well-regarded instructor, providing our students with powerful insights into appellate writing, argument and advocacy. Those same talents will be put to superb use in his new role, and I am confident that he will be an exceptional addition to the Court.”

He will fill the vacancy created by the retirement of Associate Justice Kathryn Mickle Werdegar. The Governor's nomination must be submitted to the State Bar's Commission on Judicial Nominees Evaluation and confirmed by the Commission on Judicial Appointments. The Commission on Judicial Appointments consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and senior Presiding Justice of the state Court of Appeal J. Anthony Kline.


The compensation for this position is $253,189. Groban is a Democrat.

Cal Supreme Court stories

Today's DJ has Brown comes down to the wire in much-delayed state high court choice, The longest-running vacancy in state Supreme Court history has now passed 14 months. But now Gov. Jerry Brown really does face a deadline: on Jan. 7, Lt. Gov. Gavin Newsom will be sworn in to replace him.

“My guess, based on nothing other than the calendar, is that we’ll see an appointment before Thanksgiving,” said David S. Ettinger, of counsel at Horvitz & Levy LLP.

And today's MetNews has Retired Justice Werdegar Tells How It Was, How It Is 

Have you ever seen Cal.App.5th?

Avid readers will no doubt recall the excitement when Cal.App.5th and Cal.5th were announced. SCAN even pondered what color the series band would be on the hardbound volumes (here). (And yes, we posted on this back in March here. But with a new pic in hand, it seemed worth repeating.) These days few practitioners actually use real books, so many have never actually seen what a 5th Series volume looks like. Well, now you have! Note that the series band is gold, a color chosen to reflect California's moniker.

1 year, 7 months, 4 weeks, 2 days and counting...

That's how long it's been since Justice Werdegar announced her retirement.
As reported in Governor Brown's Still Mum on 14-Month Supreme Court  Vacancy, the Gov is still playing his cards close to the vest:

• "I find I never regret an appointment I didn't make," Brown said Wednesday.
• Asked if he was waiting for a potential appointment to finish a job or a term in office, Brown said, “I can’t give you anything, not even a scintilla, because it’s not your business.”

Can you file an anti-SLAPP motion in a limited jurisdiction case?

No, says this published opinion here:

No dice...

We conclude the restrictive language of section 92(d), which limits the type of motions to strike that may be brought in a limited civil case, precludes the filing of a special motion to strike in such a case.

[See the MetNews article Anti-SLAPP Motions May Not Be Filed in Limited Civil Cases]

Cal Supremes Year in Review

SCOCAblog has posted its SCOCA Year in Review 2018: Still Not the Brown Court, which crunches the data and draws the following conclusions:

• There is a voting record distinction between the senior justices and the justices appointed by Governor Brown;
• The pro tem justices do not vote in lockstep with the Chief Justice or the majority;
• Which governor appointed a pro tem justice does not correlate with pro tem voting;
• Justice Liu produces by far the most opinions;
• There is a disparity between how often the Brown appointees vote with the majority and how many majority opinions they write; and
• Productivity may not have dropped without seven permanent justices.

Justice Hoffstadt on burdens of proof

Today's DJ has Justice Hoffstadt's Go ahead then... prove it! about burdens of proof, how they are "not purely procedural" and "not as well settled as one might believe":

But what about intermediate
burdens of proof?

Burdens of proof are, at bottom, jurisprudential tie-breakers. They tell a trier of fact harboring some uncertainty how to decide the case. Burdens of proof necessarily have two components: (1) who bears the burden, and (2) what the burden is (a preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt). If we view a burden of proof as telling us, "The tie goes to 'X'", then "X" is the party not bearing the burden of proof, and a "tie" exists when the trier of fact is unsure if the applicable burden has been met.