2d DCA pro tem update

The following are currently sitting on assignment:

·  Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until December 31, 2019

·  Judge Mark K. Hanasono of the Los Angeles Superior Court, will be sitting Pro‑Tem in Division Three until November 30, 2019

·  Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2019

·  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 Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2019

9th Circuit nominee hearings

The Recorder/Law.com have articles about today's 9th Circuit nominee hearings here and here.

Republicans on the committee criticized the American Bar Association’s “not qualified” rating of former Nevada Solicitor General Lawrence VanDyke issued the night before the hearing, with some calling on the White House to cut off the organization’s access to candidates claiming bias against conservative candidates. Democrats, meanwhile, noted that home state senators had not returned blue slips indicating their approval of VanDyke’s nomination nor that of Southern California federal prosecutor Patrick Bumatay, the other nominee under consideration Wednesday morning.

Of note in today's DJ, Justice Raphael has The Whole Truth, and interesting exploration of the oath we all know and love (Code Civ. Proc., section 2094(a)(2)). Also of appellate note The Debate of Dynamex's Retroactivity Head to the California Supreme Court and Ethics at the California Coastal Commission.

Regarding that last article, don't miss the published case here, which notes in the intro: "And we publish, to also affirm—and remind the profession of—the importance of candor toward the court."

Failure!

Some odds and ends of note, all thematically linked by "failure":

• LA's Turbulent Law School Market Could Take Another Hit
• 30 Years of Law Firm Collapses: An Annotated Timeline
• Today's DJ has California's Constitution Needs Some Changes, by Stephen Duvernay and Brandon Stracener, about provisions in the state constitution that have been mooted and "serve little purpose other than as a reminder of past errors." They urge the Legislature to "place a measure on the ballot to remove these provisions."
• And this unpub from 2/8, which closes its intro like this:

"We affirm the judgment, principally because plaintiff’s briefs give a one-sided, incomplete and inaccurate presentation of the evidence presented at the hearing. An appellant forfeits the right to appellate review by misleading the Court of Appeal in this way."

Seeking appellate counsel doesn't toll statute

Here's a unpub'd case from 1/5, in which the first paragraph spells it all out:

In this legal malpractice action, [Plaintiff/Appellant] contends that the trial court erred by granting summary judgment in favor of his former attorney, [Defendant]. The court held that [Plaintiff]’s suit is barred by the statute of limitations. The sole issue here is whether, after unequivocally telling [][Plaintiff] that he would not represent him further, [Defendant]’s efforts to help him find an appellate attorney tolled the limitations period. We hold they did not, and we therefore affirm.

Also of interest, Cory Webster points out this published opinion from 1/1 on Friday which has the following footnote 2:

• Before oral argument, we issued a tentative opinion that is substantively identical to the final version. (See Ct. App., First Dist., Local Rules of Ct., rule 15(b).) In response, [Respondent]  stated that it was “willing[] to accept the Court’s disposition for this matter.”

And see this unpub from 2/1 today, which begins nicely with:

Legal jurisprudence is riddled with distinctions between substance and procedure. Sometimes, however, procedure is substance, as is the case here. Plaintiff and appellant []’s failure to follow the most basic appellate procedures compels our disposition affirming the judgment below.

Newsom appoints judges

GovernorNewsom Appoints 11 Superior Court Judges

SACRAMENTO – Governor Gavin Newsom today announced the appointment of 11 California superior court judges, which include: One in Contra Costa County; three in Los Angeles County; one in Mendocino County; one in Napa County; one in Riverside County; three in San Diego County; and one in Santa Clara County.

Of appellate note:

• Julia Campins, Contra Costa County Superior Court, served as a law clerk to 9th Circuit Judge Berzon (2005-06)
• Steven Ellis, LASC, clerked for D.C. Circuit Judge Ginsburg (1991-92)

The Recorder has Gov. Newsom First Batch of Superior Court Appointments Stacked With New Women Judges

Hunsaker advances

Law360 reports: Picks For 9th, 2nd Circs. Advance With Bipartisan Panel Vote

Four judicial nominees sailed through the Senate Judiciary Committee on a bipartisan basis Thursday, teeing up confirmations to the Ninth Circuit, the Second Circuit and district courts in Florida and Pennsylvania.
The committee sent to the Senate floor Oregon Judge Danielle J. Hunsaker for the Ninth Circuit with a 16-6 vote, ....

The DJ has President Trump’s proposed eighth 9th Circuit judge set for confirmation vote: Oregon state Judge Danielle Hunsaker moved a step closer Thursday to becoming President Donald J. Trump's eighth successful appointment to the 9th U.S. Circuit Court of Appeals after a bipartisan Senate Judiciary Committee vote advanced her nomination to the full chamber for final approval.

• Four Democratic senators -- Dianne Feinstein, Patrick Leahy, Sheldon Whitehouse and Chris Coons -- joined the committee's 12 Republicans to recommend Hunsaker's nomination by a comfortable 16-6 tally. All but two of Trump's prior circuit nominees advanced on party-line votes.
• Two additional Trump nominees -- federal prosecutor Patrick J. Bumatay in San Diego and former Nevada solicitor general Lawrence VanDyke -- await committee hearings. Both would replace George W. Bush appointees, Carlos T. Bea and Jay S. Bybee, who are soon to take senior status.
• The timing of Hunsaker's final Senate confirmation vote has yet to be announced.

Div. 5 at CSUN

CSUN Today reports May it Please the Court: CSUN Makes History with Appellate Court Session on Campus about Division 5's visit last week. The court heard argument as nearly 500 CSUN students and faculty watched.

"CSUN made judicial history Oct. 16, as the first California State University campus to host a session of the California Court of Appeal, Second Appellate District, Division Five. It’s exceedingly rare for any court to hold a session outside the confines of the traditional courtroom, let alone traveling to a campus. Invited from their usual courtrooms in downtown Los Angeles by CSUN professor and former appellate justice Sandy Kriegler, the justices and the attorneys presenting the day’s cases enthusiastically agreed to the court “road show” of sorts."

“As you could tell from the arguments, we’re not used to fielding questions,” one of the justices quipped. “We’re used to giving questions.”

DJ catchup

There's much of appellate note in the DJ over the past couple days;

• The DJ's obit for Judge Hug is Procter R. Hug Jr. 1931-2019: Procter R. Hug Jr. served as chief judge of the U.S. 9th Circuit Court of Appeals, pushing back efforts to break up the multi-state court during his term from 1996 to 2000.

• "Chief Judge Hug's warmth, optimism, vision, intelligence, eloquence, quiet perseverance, and sense of humor made him one of the most effective chief judges in the history of the circuit," [Chief Judge] Thomas said. "He was a man of unquestioned integrity and high character. He promoted collegiality among judges and always calmed any turbulent waters with gentle humor and grace. He was a great friend, and it was an honor to serve with him."

[10/24 update: See Judge Hug Press Release]

• Justice Hoffstadt penned Shocks: After or Fore? about the "kill zone" theory in the recent case of People v. Canizales, 7 Cal.5th 591 (2019).
• In The Common Law Rules, Howard Miller writes about the Supreme Court of the UK
• And Gregory Dickinson presents Oral arguments: A computational analysis drawing on his recent article in the Cornell Journal of Law & Public Policy here.

"Surely befuddling to advocates, some virtually identical questions can carry very different implications. For example, receiving the question "would you clarify one thing?" from Justice Ruth Bader Ginsburg is a powerful indicator that she is unlikely to side with your argument. However, she employs the almost identical question, "may I ask you to clarify?" when asking for additional information from parties she ultimately sides with. The slight difference in phrasing is almost certainly subconscious, varying based on whether she expects to be persuaded by the advocate's response. Such minute differences would have been undetectable without the help of computational analysis."

RBG wins a million!

USA Today reports: Supreme Court Justice Ruth Bader Ginsburg awarded $1 million prize for 'thinkers' in philosophy and culture

• "Add a prestigious $1 million "thinkers" award to Supreme Court Associate Justice Ruth Bader Ginsburg's fame and fortune. The 2019 Berggruen Prize for Philosophy & Culture is given annually to "thinkers whose ideas have profoundly shaped human self-understanding and advancement in a rapidly changing world." "

Speaking of big money, Law.com reports: Pepperdine Law Lands $50 Million Donation And A New Name:

• Los Angeles developer and Pepperdine Law alum Richard Caruso on Wednesday announced a $50 million gift to his alma mater, with the funds going toward student scholarships and loan repayment assistance for low-income and underserved students. Additionally, Caruso and his wife, Tina, have pledged to help raise another $50 million over the next decade to endow that financial assistance and ensure it’s available for the long term. The school is being renamed the Pepperdine University Rick J. Caruso School of Law in recognition of the gift.

RBG in CA yesterday

A very '70s California design!

The Recorder: Berkeley Law, Justice Ginsburg Celebrates a Friend and Legal Pioneer

Law360: Ginsburg Says There's Work To Do To Fight Gender Biases


Also of note: Calif. Eastern District's Chief Says Court Nearing 'Catastrophe'

9th Cir. Press Progam

The Ninth Judicial Circuit Historical SocietyCordially invites you to
The Courts: Press Coverage/Pressing Concerns

Martin Jenkins: Judicial Appointments Secretary to Governor Newsom

Maura Dolan: California-based legal affairs writer for the LA Times

Pam Karlan: Law Professor and co-director of the Supreme Court Litigation Clinic, Stanford Law School

Hon. Jeremy Fogel (ret.): Executive Director, Berkeley Judicial Institute, Berkeley Law School (Moderator)

DATE: Monday, November 4, 2019

TIME: Program 5:00-6:30 p.m.; reception to follow

Circuit Courthouse, 95 Seventh Street, San Francisco
COST: $40

HOW TO REGISTER: eventbrite.com/e/courts-and-the-press-tickets

RIP Judge Procter Hug (1931-2019)

How Appealing reports: “Lessons on Leading With Grace: Chief Judge Procter Hug held the 9th Circuit together through a remarkable demonstration of earnest leadership.” Dahlia Lithwick has this jurisprudence essay online at Slate in memory of the judge for whom she clerked. And this obituary of Procter R. Hug, Jr. was published in The Reno Gazette-Journal.

Ideas whose time has come!

The Volokh Conspiracy has All Courts Should Abolish the Need for Amici to Seek Leave of the Parties -- And pro hac vice fees should be waived for counsel representing amici pro bono

"Please let us in!"

Good luck to the Test Takers!

Best of luck to those taking the Appellate Law Certification Exam tomorrow!

Today's DJ has Moskovitz on Appeals in Laying Traps about thinking ahead and holding back points rather than putting everything in an opening brief.
And today's DJ's Appellate Zealots is Sharon Baumgold's Appellate writs may be best route to clarifying AB 5 ambiguities early on.

In other appellate news, see: Court of Appeal Invites Fresno Students to Oral Argument Session

Students will watch the Oct. 22 arguments at Fresno's Bullard High School.

Back to the DJ, see Judges not believin' in anti-SLAPP challenge of Journey, to see how Judge Hurwitz feels about anti-SLAPP appeals: "I hate the appeals of anti-SLAPP motions; they're a complete distraction. You would have been able to try the issues in front of a judge, the judge would have made findings," Hurwitz told [counsel at oral argument]. "It's not your fault, because our court has foolishly allowed these to become appealable."

Opinion: The Supreme Court shrouds itself in secrecy. That needs to end.

That's the title of today's LA Times op-ed by Erwin Chemerinsky:

• when the Supreme Court agrees to take a case or denies review, there generally is no indication of which justices voted to take the case and which voted against hearing it. Occasionally, a justice might write a dissent from the denial of review, but other than that there never is a public revelation of how the justices voted. The court has virtually complete discretion about whether to hear a case. I do not understand why the justices keep secret their votes on which ones to take.
• Another area where there is unjustified secrecy is not announcing a day or two in advance which decisions will be handed down. Many state courts do this and it has posed no problem. But in the Supreme Court, except for the last day of the term when it is obvious which cases are left, no one knows which decisions will be anounced. Again, I cannot understand what is gained by this secrecy.
• The most urgent need for openness in the court is having all of its proceedings broadcast. The court hears cases that affect all of us, often in crucial aspects of our lives. But few can attend oral arguments or the announcement of decisions. Broadcasting court proceedings would permit the entire nation to see a crucial branch of government at work.

Guidelines for SCOTUS Amicus briefs

Bloomberg reports:
Friend of the Court—The Supreme Court issued guidance for filing amicus briefs, clearing up a number of contested issues that had previously been resolved through informal rules and word-of-mouth lore. The new rules address topics like “blanket-consent” letters, the listing of numerous amici, and explicit permission for an attorney to file more than one amicus brief in a given case.

The new, 6-page, SCOTUS Memo is here.
Law360's article is Friendly Filer: Supreme Court Clarifies Amicus Rules.

RIP Donald Dunner, "Dean of the D.C. patent appellate bar"

Law.com reports: Donald Dunner, Giant of Patent Appeals, Dies at 88 -- "The Finnegan Henderson partner argued in the neighborhood of 175 appeals to the Federal Circuit, a court he played a role in launching."

"Tort law incorporates common sense."

Justice Wiley continues his clever writing campaign today here in a 4-page published opinion that begins and ends like this:

• The rule deciding this case is look where you are going. In broad daylight, Cynthia Dobbs walked into a round concrete pillar. It was 17.5 inches wide and 17.5 inches tall. A field of these unpainted pillars, also called bollards, protects the Los Angeles Convention Center from car bombs. They are the height of your average coffee table. Dobbs walked into one of them and sued the City of Los Angeles because it allegedly created a dangerous condition that caused her to trip and fall. The trial court granted summary judgment against her. We affirm.
• Tort law incorporates common sense. When one walks into a concrete pillar that is big and obvious, the fault is one’s own.

CLA Lit Sec Oct Update

Litigation Update is a monthly online publication with case summaries of the latest important appellate opinions of interest to litigators.

CLA's Litigation Section's October 2019 Litigation Update is available here, digesting the most important cases of the past month. Check it out! And support CLA's Litigation Section by joining or renewing your membership!

2019 Cal Stats posted!

The 2019 Court Statistics Report has been posted!

• The Supreme Court issued 85 written opinions during the year.
• The Supreme Court ordered 20 Court of Appeal opinions depublished in this fiscal year.
• Odds of positive action on a petition for review (i.e., anything other than a summary denial) is 7% overall, and 3% for civil appeals.
• Statewide, 8% of Court of Appeal majority opinions were published. The First Dist. has a 12% publication rate, the 5th has a 3%.
• Looking just at civil appeals, the statewide publication rate is 15%, with the 3d in the lead at 28% and the 5th at only 8%
• The Third District had the highest level of pending appeals per justice as of June 30, 2018—44 percent higher than the statewide average. The Third District reported the highest number of pending fully briefed appeals per authorized justice, 87.
• The Second District had the highest levels of filings per justice in 2017-2018. Filings per justice in the Second District were 17 percent higher than the statewide average. The Second District reported the lowest number of pending fully briefed appeals per authorized justice, 35.
• The First District had the lowest levels of filings and dispositions per justice.
• In terms of speed for civil appeals, the top 3 fastest Courts of Appeal are 2/6 (a speedy 410 median days from notice of appeal to opinion), 4/1 and 1/1; the bottom three are 1/2, 6, and 1/4 (at a whopping 967 median days from notice of appeal to opinion)

PJ Gilbert's column

Today's DJ has PJ Gilbert's Under Submission, titled Who Knows?, about the SCOTUS Term that just started, and a program he attended previewing the term:

• Since the time of the bull session with Professors Winkler and Yoo, we now know the many issues the Supreme Court will hear this term. They include rights of gay and transgender employees in the workplace, DACA regulations, and abortion rights. Anyone certain about how these cases will be decided? I am chastened by game 5. "Go Dodgers" has a hollow ring. So does certainty.

Today's DJ also profiles LASC Judge Emily Garcia Uhrig, who worked as a 9th Circuit staff attorney (2001-2006), in Do No Harm: "Throughout an eclectic career in academia, as a public defender, and now as a judge, Emily Garcia Uhrig says she has always had a mind for restorative justice."

Law.com also reports: Liberal Group, Shunning Big Law, Pitches 32 SCOTUS Shortlisters.

• The Demand Justice list includes three California Supreme Court justices: Leondra Kruger; Goodwin Liu and Mariano-Florentino Cuéllar.

The SCOTUS Summer 2019 Map shows that only Justice Gorsuch visited SoCal this summer:

• a September 10 conversation and book signing at the Ronald Reagan Presidential Foundation & Institute in Simi Valley, followed by two speaking engagements the next day at Pepperdine Law School in Malibu and the Richard Nixon Library & Museum in Yorba Linda.