Games People (appellate lawyers!) Play

Law360 has PBS Atty Rolls The Dice With New Supreme Court Board Game about First Monday in October, a strategy game focused on the history of the U.S. Supreme Court. Set to be released in late summer of 2025, the game lets players experience more than 200 years of high court history in two hours.

First Monday in October is described in the Kickstarter campaign as a "tug-of-war" over how the court has interpreted key constitutional provisions throughout history. It centers on four tracks: the scope of congressional authority, the scope of executive authority, applications of the First Amendment, and the scope of individual equality and liberty.

The players vie to "gain renown by shaping the composition of the high court, taking sides in landmark cases throughout the history of the United States, and determining the governing laws of the land," the game rules say.

Sanctions watch

The MetNews has C.A. Refers Beverly Hills Firm to State Bar for ‘Consideration of Discipline’ for Fraud-- Opinion Says Lawyers Misrepresented That Proposed Order Was ‘Unopposed’ When in Fact Moving Papers Were Never Served on Opposing Party about this unpub:

Another circumstance troubles us. An appellant’s appendix must contain items from the superior court file that are necessary for proper consideration of issues, including items appellant should reasonably assume the respondent will rely on. (Cal. Rules of Court, rule 8.124(b)(1)(B).) Here, the appellant’s appendix prepared by K&L omits multiple material documents, including all of the OSCs that led to the initial dismissal of plaintiff’s case, the order reinstating the case pursuant to an allegedly unopposed motion, and the subsequent OSC that was pending when the case was dismissed for the second time. These deficiencies necessitated the filing of a respondent’s appendix to set the record straight.

The City has not requested sanctions for what amounts to a frivolous appeal. (See Estate of Kempton (2023) 91 Cal.App.5th 189, 206 [appeal objectively frivolous when “appellant’s arguments rest on negligible legal foundation”].) Nor do we wish to further delay things by issuing yet another order to show cause. However, we cannot ignore K&L’s misleading conduct in the trial court, particularly in light of their decision to double-down by pursuing this appeal based on an inadequate record. Because we do not impose sanctions, referral to the State Bar is not mandatory. (See Bus. & Prof. Code, § 6086.7.) But we also have inherent judicial power to discipline attorneys. (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216, fn. 10.) Accordingly, the clerk of this court is ordered to send a copy of this opinion to the California State Bar for consideration of discipline, and we hereby inform K&L of this referral. (Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1353, 1357.) We express no opinion on what discipline, if any, is to be imposed. (Ibid.; In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1100.)

And see Law360's  Mass. Judge Apologizes For Slamming Alito Over Flags

A Massachusetts federal judge has apologized for violating ethics rules when he publicly criticized U.S. Supreme Court Justice Samuel Alito in the wake of reports that two flags used by Donald Trump supporters to protest the 2020 election were flown outside Alito's houses.

Senior U.S. District Judge Michael A. Ponsor acknowledged that his May 24 opinion piece titled "A Federal Judge Wonders: How Could Alito Have Been So Foolish?" in The New York Times violated several canons of the federal judicial Code of Conduct. He issued the apology Nov. 20 in response to findings that the column diminished public confidence in the judiciary and improperly opined on pending cases, according to a judicial complaint order made public Tuesday by conservative legal group The Article III Project.

3d DCA pro tem update & more

Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore in the 3d District beginning July 15, 2023, through March 10, 2025

And see 2024Year in Review: Judicial Council of California -- The judicial branch of California continued to prioritize and expand access to justice for court users and the public

• Note also that 2/8 granted publication of Merrick v. Lau which received attention for the concurring opinion calling out the trial judge for ethics violations (being discourteous and not promoting public confidence in the integrity of the judiciary) by demeaning a litigant via a "patronizing description" trading on "racist and sexists tropes." (Publication was requested by the California Civility Task Force and the Orange County Asian American Bar Association.)

Sr. Status plans rescinded

Bloomberg Law has Judge Wynn Reverses Retirement Plans, Denies Trump Vacancy

• Fourth Circuit Judge James Wynn Jr. has rescinded his plans to step down from active status, denying President-elect Donald Trump the opportunity to appoint his successor on the powerful appellate bench.
• Wynn is the third judge to rescind their retirement plans since Trump’s Nov. 5 election win. Judges Max Cogburn of the Western District of North Carolina and Algenon Marbley of the Southern District of Ohio had previously announced plans to step back from active status upon confirmation of a successor.

Law.com has 4th Circuit Judge Wynn Walks Back Senior Status Plans -- Walking back senior status plans is not unheard of and has been done by both Republican and Democratic appointees.

And see Historic Muslim Appellate Pick Laments Attacks on Nomination and 3rd Circuit Nominee Mangi Sees 'No Pathway to Confirmation,' Derides 'Organized Smear Campaign' -- Adeel Mangi said in a letter to the White House that the system for approving federal court judges is "fundamentally broken" and has turned into "a channel for the raising of money based on performative McCarthyism before video cameras."

Law360 has Ex-Judges, DC Bar Back Newman In Suspension Lawsuit

And Law360 has After 36 Years, Texas Chief Justice Reflects On 'End Of An Era'

At 75, [Chief Justice Nathan Hecht] is retiring as the longest-serving member of the Texas Supreme Court in the Lone Star State's history and the longest-tenured state judge in active service. In his nearly four decades on the court, he has participated in 2,779 oral arguments, written nearly 400 majority opinions, mentored 72 law clerks, managed three staff attorneys and been aided by four executive assistants.

Appellate Mediation mcle program

 

On Thursday, January 16, LACBA's Appellate Courts Section will present Appellate Mediation: An Overlooked Opportunity, from noon to 1. Mediator/Arbitrator John Derrick and Appellate Specialist Herb Fox will discuss how appellate mediation can make sense even if a case proved resistant to settlement before.

KBJ on Broadway

ABA Journal has Supreme Court justice's teen dream comes true with Broadway walk-on role about how Justice Jackson appeared in a performance of the musical comedy & Juliet in a one-night walk-on role on Saturday. "Jackson once performed an acting scene with actor Matt Damon in a Harvard drama class."

Back on the West Coast, on Friday, Governor Newsom announced judicial appointments, including Christopher Hayes to the San Bernardino County Superior Court. Hayes has served a Senior Appellate Court Attorney in 4/2 since 2015. He also was a law clerk in the 8th Circuit (2003-2004). 

New crim appellate opinion

The MetNews has Order Reducing Felony to Misdemeanor Is Not Appealable -- Opinion Says Prosecution May Not Appeal Wobbler Reduction Even if Unauthorized by Law, Writ Review May Be Available if Need Outweighs Risk of Harassment to Accused. The case is People v. Superior Court (Mitchell) S281950.

Law360 has AI Terms, 'Coffee Badging' Among Top New Words In Law

Burton's Legal Thesaurus recently announced this year's top new words in law, with entries like "coffee badging" and "hot-tubbing" joining the echelons of 2022's "meme stock" and 2023's "hallucination" as the thesaurus brings to light some of the most novel terms and talking points for lawyers in 2024.

2025 CA Courts Calendar

 

2025 California Courts Calendar -- Keep track of court holidays, council meetings, and Supreme Court oral argument dates by downloading the 2025 calendar

See also the 2024 Summary of Court-Related Legislation

2024 noteworthy opinions article, et al.

Today's DJ has appellate specialist David Ozeran's article Award for best and worst from this year's appellate opinions -- A lighthearted review of California appellate opinions from 2024 celebrates the quirkiest moments in legal reasoning, from pithy judgments and inapt literary references to pun-filled rulings

The DJ also has Judge agrees with 'implicit bias' 'microaggression' accusations by appeal justices -- The concurrence said Superior Court Judge Randolph M. Hammock "committed a microaggression," that his "unwitting remarks ... indicate implicit bias" and that he had "mocked," "diminished" and patronized the plaintiff.

Law360 has 4th Circ. Joins Anti-Garamond Train As Typeface Loses Steam

"The court has determined that certain typefaces are more legible than others. Accordingly, to encourage the use of typefaces that are easier to read, today the court announces that its preferred typefaces are Times New Roman, Century Schoolbook and Georgia," the Fourth Circuit wrote in Monday's announcement.

Law.com has Jones Day Adds 10 US Supreme Court Clerks to Associate Ranks -- The five men and five women who are being brought on as associates at Jones Day all clerked for the conservative wing of the high court.

1/3 publishes an opinion here today that re-emphasizes that an amended judgment to add costs and fees does not retrigger the time to appeal from the actual judgment.

Contrary to Zarate’s assertion, the September 2022 judgment was the final judgment as to the issues related to his trial (including the interlocutory rulings he seeks to challenge), and the February 2023 amended judgment (that merely added the costs and fees award) did not restart the time to file a notice of appeal. (See Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres) [“It is well settled . . . that ‘[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.’ ”]; accord, Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1163–1164.)  

9th Cir. mandate opinion

Here's a 9th Circuit opinion clarifying that the district court has discretion to stay a case while a cert petition is pending.

Although district courts must faithfully carry out “both the letter and the spirit” of our mandates, [cite], “they are free as to anything not foreclosed by the mandate,” [cite]. Our mandate remanded the case to the district court “for a new trial on all of plaintiffs’ claims against the individual officers.” [cite] We did not specify a time frame or otherwise suggest that the district court lacked authority to stay the case. Thus, we leave to the district court to determine whether a stay pending a petition for writ of certiorari is appropriate in this case.

Law.com has 'Stake Out My Space': Attorneys, Law Professors Flock from X to Bluesky

Valentine's Day CJA hearings

Commission to Consider Appointments to Courts of Appeal
The Commission on Judicial Appointments will hold public hearings on Feb. 14 to consider two appointments to appellate courts in San Francisco and Santa Ana.

The hearings start at 10 a.m. to consider the following appointments by Gov. Gavin Newsom:

• Judge Charles Smiley, as associate justice of the First Appellate District, Division One (San Francisco)
• Judge Nathan Scott, as associate justice of the Fourth Appellate District, Division Three (Santa Ana)

The hearing will be webcast live on the California Courts Newsroom.

Requests to testify or written comments on the appointment must be received by the commission no later than 5 p.m. on Feb. 6 (five court days prior to hearing). 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. Submissions via email to coja@jud.ca.gov are strongly encouraged. Hard copies are not required. If you would like to mail your request, you may also reach the commission at:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street, San Francisco, CA 94102
Attention: Secretary to the Commission
Guidelines for the Commission on Judicial Appointments are published in the appendix to the California Rules of Court and are posted on the California Courts website.

Orren gets Dunn Award!

 Last night at the LACBA Appellate Courts Section holiday mixer, appellate lawyer Tyna Orren was presented with the Pamela E. Dunn Appellate Justice Award for her years of work running the Second District's pro bono clinic.

Congrats to Tyna!

Tyna gave a powerful speech calling on the attendees to take action in an imperfect world.

And see Law360's Covington Helps Take Calif. Court Reporter Shortage To Court (Supreme Court #S288176)

Today's DJ profiles LASC Judge Brock Hammond in Appellate work honed his thinking, writing skills, Judge Brock Hammond says

Appellate work gave Hammond a unique perspective on legal reasoning and decision-making. "I feel like the experience made me a much better attorney and really honed my thinking and writing," he said. It also deepened his appreciation for the judiciary.

Going bats over "Batzel"

See Young v. Neocortext, Inc., where Judge Desai reiterates the call for the 9th Circuit to reverse its existing rule (from Batzel v. Smith) that anti-SLAPP denials are appealable as collateral orders in her concurrence yesterday. Over the years, at least eight 9th Circuit judges have expressed this view.

More inside SCOTUS info from the NYT

The NYT has Inside the Supreme Court Ethics Debate: Who Judges the Justices? -- In private meetings and memos, the justices made new rules for themselves — then split on whether they could, or should, be enforced.

To piece together the previously undisclosed debate, The Times interviewed people from inside and outside the court, including liberals and conservatives, who spoke on the condition of anonymity to discuss the proceedings and the justices’ thinking. This article also draws upon public statements by the justices, who declined to comment.

ABA Journal has One justice was 'especially vocal' in opposition to enforcement mechanism for SCOTUS ethics code, report says

Justice Neil Gorsuch feared that an enforcement mechanism could undermine the Supreme Court and “was especially vocal” in his opposition to it, the article reports. He wrote a memo “raising questions and cautions” that was more than 10 pages in length, the article says. Two other justices—Justice Clarence Thomas and Justice Samuel Alito—“wrote off the court’s critics as politically motivated and unappeasable” in private exchanges, the article says.

And see this Slate article here. 

5th Dist. pro tem update

Judge Gregory T. Fain of the Fresno County Superior Court will be sitting pro tempore in the Fifth District until February 1, 2025.

Judicial economy saves appeals...

 

In a couple unpubs today, the Court of Appeal saves defective appeals from orders sustaining demurrers:

• "in the interest of judicial economy, we will construe the order sustaining the demurrer without leave to amend as a final appealable judgment. (Cardenas v. Horizon Senior Living, Inc. (2022) 78 Cal.App.5th 1065, 1069.)" [here]
• "The record is unclear whether any judgment was entered in this case. “[A]n order sustaining a demurrer without leave to amend is ordinarily not appealable since the order is not a final judgment.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485, fn. 9.) No party raises the issue. “[I]n the interest of judicial economy, we shall deem the order to incorporate a judgment of dismissal.” (Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 3, fn. 1.)" [here]

Another interesting appealability fight is here:

• "even if a portion of the judgment may be construed as an “order” denying injunctive relief, such order is not appealable under section 904.1(a)(6)"

But then see this unpub here.

1st District pro tem update

Judicial officers assigned pro tem in the First District:

• Judge Elizabeth M. Hill, of San Mateo County Superior Court, will be sitting pro tempore in Division One until December 31, 2024.
• Judge Dana B. Simonds, of Sonoma County Superior Court, will be sitting pro tempore in Division Four until January 31, 2025.

Virtual Brown Bag with J. Weingart

LACBA's Barristers/Young Attorneys Section presents a Virtual Brown Bag Lunch with Justice Weingart, Tuesday, Dec. 3, noon to 1. Register here (free).

NLJ has 2 Federal Judges Rescind Senior Status After Trump Win. Might More Follow? -- Currently, seven district and appellate judges have conditioned their retirements on the confirmation of a successor. Those judges have the authority to reverse their decision.

The two judges are in WDNC and SD Ohio.

Judge chastised for "racist and sexist tropes"

In this unpub'd decision from 2/8, the trial judge is affirmed, but a concurring opinion lets the judge have it: 

• although the trial judge’s decision does not appear to have been based on or influenced by the attitudes he expressed, his comments cannot pass without censure.  In her brief, appellant characterizes these comments as a “withering diminishment of [her] dignity as a person.”  She could not be more correct. 
• Demeaning any litigant, as the court did here, is categorically unacceptable. 
• The trial judge’s patronizing description of [Appellant] violated both of these canons.  He was neither dignified nor respectful of this litigant, and his comment degraded the integrity of the judicial branch and diminished confidence in the court.
• But beyond being generally demeaning, the trial judge’s fatuous comment traded on racist and sexist tropes. Nothing about [Appellant's] gender or race was remotely relevant to the matters before the court, but the trial court inexplicably interjected them into the hearing.

Ret. Justice Haller reappointed to CJEO

Supreme Court Makes Appointments to Committee on Judicial Ethics Opinions

Presiding Judge Samantha P. Jessner of the Superior Court of Los Angeles County; Judge Michael T. Garcia (ret.) of the Superior Court of Sacramento County; and Justice Judith L. Haller (ret.) of the Fourth District Court of Appeal were reappointed to serve additional four-year terms as CJEO members. Judge Brett D. Bianco of the Superior Court of Los Angeles County was appointed to the remainder of the term vacated by Judge Michelle Williams Court, from Jan. 1, 2025 through Dec. 31, 2025.