Big brief, big record, no merit

There's little to be gained by highlighting the appellate failures of pro pers and vexatious litigants -- a sad and daily occurrence. But now and again, there's a "spectacular" failure worth a peek. This 4/3 unpub here today does a good job of pointing out the problems and nicely explaining why the pro per must lose.

Spectacular fail!

•  In an 82-page brief and a record of 2,768 pages, [Appellant], in propria persona, offers seven separate reasons why the order should be reversed, none of which have any legal merit whatsoever.
• "II. Discussion A. Fundamentals of Appellate Procedure" [A nice heading, followed by clear explanations.]
• It is also the appellant’s duty to comply with the California Rules of Court, a duty [Appellant] has failed in rather spectacularly. She grossly overdesignated the record, which is sanctionable conduct. [Etc., etc.]

[1/17/19 update: Along these same lines, here's a new one, using the pro per's empty TOA against her: "Here, [Appellant]’s table of authorities is blank—except for the word, “None”—as

she fails to cite to any legal authority in the appellant’s opening brief."]

1st DCA full line-up

The First District has updated its Justices page to reflect all its new justices, so here's the current line-up:

Division One

Jim Humes, Administrative Presiding Justice
Sandra L. Margulies, Associate Justice
Kathleen M. Banke, Associate Justice
Gabriel P. Sanchez, Associate Justice

Division Two

J. Anthony Kline, Presiding Justice   
James A. Richman, Associate Justice
Therese M. Stewart, Associate Justice
Marla J. Miller, Associate Justice

Division Three

Peter J. Siggins, Presiding Justice
Martin J. Jenkins, Associate Justice**
Carin T. Fujisaki, Associate Justice
Ioana Petrou, Associate Justice

Division Four

Stuart A. Pollack, Presiding Justice
Jon B. Streeter, Associate Justice
Alison M. Tucher, Associate Justice
Tracie L. Brown, Associate Justice

Division Five

Barbara J.R. Jones, Presiding Justice
Mark B. Simons, Associate Justice
Henry E. Needham, Jr., Associate Justice
Gordon B. Burns, Associate Justice

**Justice Jenkins will be leaving to become the Governor's Judicial Appointments Secretary.

New chambers = new job openings!

Satisfying law job now available

I need help deciding appeals and crafting appellate opinions. The goals are to achieve the ideal of equal justice under law and to inspire the public with the excellence of its state appellate justice system. The work is fulfilling, important, and fascinating: we encounter human conflicts from the mundane to the profound, in practically every legal setting. We will work together, directly, and with a small, supportive, friendly, and talented team in chambers.

There is one opening now, which I hope to fill straight away, and another in the fall of 2019. You must have excellent academic and professional credentials and must have passed the California bar exam. You have got to love writing and research and to enjoy puzzling through the law to figure it out. I am open to lawyers who would like to clerk for a set term as well as to those considering a judicial research attorney career. It is fine if you are entertaining both possibilities and have not decided. The more professional experience you have, the better.

The official application website is https://www.courts.ca.gov/careers.htm?rdeLocaleAttr=en

Please search on “wiley” and please also send a duplicate cover letter, resume, references, and writing sample to Div8.J4@gmail.com.

John Shepard Wiley Jr.

California Court of Appeal

Second District, Division Eight

https://www.courts.ca.gov/41621.htm

https://www.ali.org/members/member/191753/

Are opinions too long?

Earlier this month an attorney wrote an "open letter" to California's appellate justices charging them with writing opinions that are too long and too dull. The glove thrown, today's DJ features champion Justice Brian Hoffstadt's personal response in Judicial Opinions Must 'Show Their Math.' He agrees that appellate decisions are often too long. Further,

I also think published opinions, particularly on the Court of Appeal, should expressly or implicitly justify why they are being published. And they should do so by setting forth their question presented and its answer in the first paragraph, so the reader can know whether the opinion deals with the issue he or she is trying to address. Opinions aren't whodunits, and the reader should learn right up front that it was Colonel Mustard in the Library with the candlestick.

As for writing with flair, how's this:

But I am just one of the 100 or so appellate judges in this state, and we each have our own philosophies about what makes a good judicial opinion. What is more, the role of Court of Appeal decisions in filling in holes in the tapestry of the law is different than the role of Supreme Court decisions in sometimes weaving an altogether new pattern into that tapestry.

Moreover, he points out that there are "constraints that apply to all appellate courts, and those constraints seem to indicate that judicial opinions can be too short"--i.e., the California Constitution requires decisions "with reasons stated" and "it is important that judicial opinions "show their math" and justify their outcome, albeit concisely."

On the style front, he points out that the subject matter the justices have to work with can be inherently dry, and "Not all of us can be Justice Arthur Gilbert or Justice William Bedsworth, each of whom have an indelible way with words."

He concludes: "In the end, I think my open reply may have proven Mr. McBride's point. His open letter was just over 300 words, and this reply nearly 1,300. Maybe we appellate judges like our words just a little too much. Or maybe, like many issues in the law, the rejoinder is harder to state than the issue."
==================
Also in today's DJ: Jimmy Azadian and Kathryn Han present their 9th Circuit in review: The Top civil cases of 2018.

Today's Recorder features retired Justice William Stein and Myron Moskovitz in Protecting the Record for Appeal: Part I. They point out that even the best appellate lawyers can't win "an appeal with a lousy trial court record." Hence some basic tips to remember before heading to court: Order a court reporter; Object to your opponent's evidence; Resist objections to your evidence.

CAP Captain retires after 30 years!

GUARDIAN of the SIXTH AMENDMENT GALAXY!

Jon Steiner, the Executive Director of CAP/LA was feted yesterday at the 2d District Court of Appeal to honor his retirement after 30 years of amazing service. APJ Lui, retired justice Chuck Vogel, and Managing Attorney Tom Kallay presented moving remarks and cake and cider were enjoyed by all!
If you're not familiar with CAP, here's some important information:

The Los Angeles office of the California Appellate Project (CAP/LA) is one of six appellate projects in the state. It has, for 32 years, managed, supervised, and provided constitutionally-mandated quality control oversight for the court-appointed counsel system in the Second Appellate District. The appellate court-appointed counsel system affords representation to indigent clients in criminal, child welfare (“dependency”), juvenile justice (“delinquency”), and other cases (including mental health) in which the client qualifies for a court-appointed attorney. CAP/LA is not a state agency. It is an independent non-profit 501(c)(3) public interest law firm with a board of directors. The work is specified in a contract with the Judicial Branch, which is entirely responsible for CAP/LA’s funding.

CAPLA has been an indispensable member of the 2^nd District Court of Appeal family for over 32 years, partly because of the vision of Justice Arleigh Woods, and the perseverance and efforts of Tom Kallay, the creator and the original executive director of the CAPLA office. Then, 30 years ago, Jon Steiner, took the helm, and developed the office to its full potential.

With its 21 in-house staff attorneys providing peer review and quality control for about 3000 new cases every year, the office now oversees about 5000 open cases at any point in time—criminal, juvenile justice, child welfare, mental health, and any others where the client is indigent and has a right to appointed counsel.

CAPLA works with, trains, and assists about 450 private attorneys on about 90% of the cases and handles about 10% of the cases in house with its exceptionally experienced staff attorneys.  One part of CAP’s dual mission is making sure indigent clients receive competent representation.  This leads to the second part of the mission, that is, making sure the court receives useful briefing, a benefit the court has enjoyed and has appreciated for over three decades.

The court also appreciates CAPLA’s meticulous review of all claims for compensation of the private attorneys, using guidelines developed by the APJs and the Chief Justice, a time-consuming and difficult process the justices had previously had to perform themselves without the carefully crafted criteria developed by CAPLA.

Finally, CAPLA has always been available to answer questions and to jump in and help solve problems whenever the justices or clerks of the court ask. Jon’s relationships with court personnel and his exceptionally high standards have been instrumental in creating a strong professional and respectful association between CAPLA and the Court and making California’s Court Appointed Counsel system in the Second Appellate District work uniquely well.

(For more information, please contact Assistant Director Jay Kohorn at Jay@LACAP.com.)

What to do after the appellate bench?

The New York Law Journal reports how "Nine former New York Court of Appeals and appellate judges are offering their services as arbitrators in commercial cases as part of a joint venture that is officially being launched this week." See Retired NY Appellate, COA Judges Launch Arbitration Venture.

"People who send their clients to arbitration are really worried that they're going to run across arbitrators who are not enforcing the law," Saxe said. "That’s why it’s very important to have an arbitrator with a fealty to the law who hews to legal precedent."

The judges are calling their network ADAM or Appellate Division Arbitrators & Mediators.

How to pay appellate fees under LASC's new system

Ever since LASC went to e-filing, lawyers, secretaries, and clerks have be going crazy trying to figure out how to perfect an appeal under the new system! Appellate Specialist Mark Schaeffer shares the following:

HOW TO PAY APPELLATE FEES WITH LOS ANGELES SUPERIOR COURT’S RECENTLY-ENACTED MANDATORY ELECTRONIC FILING

Appellate practitioners have to pay an assortment of fees with appeal documents (e.g., notice of appeal, notice designating record on appeal) to Los Angeles Superior Court. For example, a notice of appeal must be accompanied by a $100 fee to LASC and a $775 fee to the Court of Appeal. Until mandatory electronic filing, both payments were given to LASC with the filing of the notice of appeal. LASC would then forward the $775 fee, with a copy of the notice of appeal, to the Court of Appeal. If a reporter’s transcript on appeal is designated, the designating party must deposit the estimated cost for the reporter’s transcript with the filing of the notice designating the record on appeal. 

Documents must now be electronically filed in Los Angeles Superior Court. Appellate practitioners, and LASC, are running into issues with the payment of appeal fees.

With the notice of appeal, some of LASC’s approved e-filing vendors do not have the capability to pay the appeal fees. With those vendors, the appellate fee of $100 to LASC must be brought in person to LASC’s room 111A (the LASC Appeals Unit).  For all vendors, LASC room 111A has advised that it will no longer forward the $775 fee due the Court of Appeal to the Court of Appeal.  That fee must be made directly to the Court of Appeal. But, that fee can only be made after the Court of Appeal has received the notice of appeal from LASC and docketed the appeal with a case number.

As for a party’s designation of the record on appeal, it appears that it is not possible to electronically pay the estimated amount for the reporter’s transcript on appeal through any of LASC’s vendors, according to some of the vendors contacted and LASC room 111A. That fee must be made in person to LASC room 111A.

Hopefully, the e-filing system will be reconfigured in the near future to allow for the payment of fees with the electronic filing of appeal documents.

Other notes about LASC e-filing:

Overall System Performance

• The Court is learning to use its new case management system and making progress daily.
• The court is working with their software vendor to isolate and repair problems.
• Data Quality – Courts are working with “dirty data” from their old system and continue to clean it as quickly as possible.
• Refunds – There was a bug in the court system that wasn’t handling refunds properly. This is being addressed.
• Configuration Consistency Across Products – The old court system consisted of four separate systems that had to be integrated into their new software. Needless to say, they had a few bumps. They continue to work on streamlining any inconsistencies and have internal teams working together from all four areas.

Law360 appellate articles

Law360 has some articles of note:

• DC Circ.'s First Female Judge Dies At 90: Patricia M. Wald, the first woman to serve on the D.C. Circuit Court of Appeals and the first female attorney at the firm known today as Arnold & Porter, died at age 90 over the weekend, according to news reports.
• A profile of Gibson Dunn's appellate group (here) notes that "the firm now has “full time” appellate specialists in all 10 U.S. offices"!

Today's DJ has Dean Chemerinsky in Postponing The Controversial, about how:

The conclusion is inescapable that the court has made a deliberate choice to stay away from the most divisive, controversial issues. Perhaps in light of the bruising confirmation fight over the nomination of Justice Kavanaugh, the court has decided to have a lower profile this term.

Also, Pepperdine has announced that Justice Clarence Thomas will be the star attraction at its 46th Annual School of Law Dinner, March 30, at the Beverly Hilton.

Justice Jenkins appointed as Judicial Appointments Secretary

Governor Newsom Appoints Judicial Appointments Secretary and LegalAffairs Staff

Gavin Newsom today announced the appointment of his Judicial Appointments Secretary and Legal Affairs Secretary, and other members of his legal affairs team in the Governor’s Office.

JusticeMartin Jenkins, 65, of, San Francisco, has been appointed Judicial Appointments Secretary in the Office of the Governor. Justice Jenkins currently serves as an Associate Justice on the California Court of Appeal, First Appellate District, and was appointed to this position in 2008. Prior to this court appointment, Justice Jenkins served as a judge on the U.S. District Court for the Northern District of California from 1997 to 2008. From 1992 to 1997, he served as a judge on the Alameda County Superior Court and previously served on the Oakland Municipal Court from 1989 to 1992. From 1986 to 1989, he was a trial attorney with the Pacific Bell Legal Department of San Francisco and from 1983 to 1986, he worked in the U.S. Department of Justice as a trial attorney. From 1980 to 1983, he worked as a prosecutor for the Alameda County District Attorney’s Office. He earned a Juris Doctor degree from the University of San Francisco School of Law. This position does not require Senate confirmation and the compensation is $185,004. Jenkins is a Democrat.

[1/15/19 Today's DJ has State appellate court justice named to governor's legal team; The Recorder has Newsom Picks Appellate Justice Martin Jenkins for Judicial Appointments Secretary: The post gives Jenkins the primary role in vetting candidates for vacancies in the state's 1,800-judge appellate and trial courts.]
[1/16/19 Today's DJ has Newsom chooses veteran justice to help him pick judges: In naming Justice Martin J. Jenkins as his judicial appointments secretary, Gov. Gavin Newsom has taken a different approach than most past governors, including his predecessor. This article makes clear that Justice Jenkins is leaving the Court of Appeal to work with the Governor (taking a pay cut). So perhaps his first job will be to replace himself on the court! Moreover, even being legally able to take the job was established by Justice Gilbert's case, Gilbert v. Chaing, 2014 DJDAR 8489] [The MetNews has Governor Newsom Names Justice Jenkins Judicial Appointments Secretary]

CJP charges against LA Justice

Today's Recorder has LA Appeals Judge Accused of Groping Colleague Faces Misconduct Charges, which includes a link to the Commission on Judicial Performance's Notice of Formal Proceedings.
LA Times article here. Law360 article is here: Calif. Judge Accused of 20-Year Pattern of Sex Harassment. [1/15/19 The DJ's story is 14 women accused Court of Appeal justice of misconduct]
[1/16/19 The DJ has Judicial Disciplinary Chair Discusses #MeToo's Influence]

Conquistadors & Catbert!

Check out this decision by Justice Beds here, which has these great lines:

• It would be like hunting for and discovering the lost city of El Dorado only to find there was no gold there.
• The contract is thus silent on the possibility that HR, in a bureaucratic maneuver worthy of the fictional Catbert,9 just sits on the employee’s request. [Footnote 9 -- Catbert has made his appearance a couple of times in employment cases. (See, e.g., Washington v. Illinois Dept. of Revenue (7th Cir. 2005) 420 F.3d 658, 662 [Catbert is a fictional cat and “the evil director of human resources” in the comic strip Dilbert].)]



Wait a sec! We came all this way for nothing?!?

4/1 starts oral argument web streaming on Monday!

Lights! Camera! Action!
Joining the 5th DCA, 4/1 will be going live with oral argument web streaming starting with the Monday, Jan. 14, 2019 calendar!
Details at Oral Argument Webcasts - 4DCA Division 1

Appellate article extravaganza!

Today's DJ and Recorder are chock-full of appellate goodness:

• 4/3's Justice Eileen Moore presents Sexual Trauma in the Military
• H&L's Kirk Jenkins offers How Have Brown's Appointees Changed the Supreme Court? (Part 2 of his series on the new justices. This piece considers Justice Leondra Kruger)
• Hanson Bridgett's Gary Watt offers Attorney fees are costs in trial court but not on appeal, about Stratton v. Beck (2d Dist. Div. 4).
• The Recorder's On Appeals column features CALG's Sharon Baumgold's Bring some 'Omaha' Oomph to Your Appellate Writ Petition.

As Justice Gilbert explained [in Omaha], writ relief is warranted when: (1) the issue is of widespread interest or presents a significant and novel constitutional issue; (2) the ruling deprived petitioner of the opportunity to present a substantial portion of petitioner’s cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) petitioner lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice that cannot be corrected on appeal.

• In more fun news, the State Bar is proposing a 30% fee hike to balance its budget. (And don't forget to get fingerprinted!)
• Also in the news: Justice Kavanaugh's first opinion (See Kavanaugh's First Opinion Is Unanimous Win for Arbitration; DJ story: High Court rules courts cannot decided arbitrability in presence of delegation clauses), and Justice Groban's first oral argument session, on which the DJ reports: New State High Court Justice Grills Lawyers in Telecom's Fight with City: Just four days after taking the oath, new Supreme Court Justice Joshua P. Groban sat in on oral arguments for the first time, hearing a case about whether San Francisco can regulate the appearance of cell phone towers.

DJ profiles 2/3's Anne Egerton

Today's DJ profiles 2/3's Justice Anne Egerton in The  Right Answer: As a lawyer, trial judge, and now on the 2nd District Court of Appeal, Justice Anne Egerton is known for doing the difficult work to tackle new and complex issues. (Jan. 8 is her profile Day! Her last DJ profile ran Jan. 8, 2010.)

• Egerton, who celebrated a year in the 2nd District’s Division Three last month, has had a variety of specialties over the years and attorneys who appeared before her consider her a quick study.
• Before Gov. Gray Davis appointed her to the superior court bench in 2001, she had never had a criminal case. But ... the deputy district attorney who ran the daily calendar in Egerton’s courtroom, said no one would know it.
• Before her judicial appointment, Egerton spent most of her time doing civil litigation as a partner at Munger, Tolles & Olson LLP. When Munger Tolles started doing work for ABC, Egerton, whose father was a journalist, jumped at the chance to engage in media topics.
• Egerton said Division Three, which was previously staffed with the same four justices for decades, continues its reputation of congeniality and closeness.
• It’s also a bonus that her husband, former Los Angeles County Superior Court Judge John S. Wiley Jr. was confirmed to the Court of Appeal in December and now sits down the hall in Division Eight.

DJ appellate column round-up

• Today's Moskovitz on Appeals column in the DJ has On Stipulated Reversals by Christopher Hu.
• Last week's DJ's Exceptionally Appealing column had Waking Dead Appeals, about  recalling mandates and remittiturs to revive appeals that ended.
• And the Xmas eve edition of the DJ's Appellate Zealots column had Charles Kagay's Decoding the Shot Clock on Appeal, a basketball-themed piece about conflicts in post-judgment appeals.
• And today's DJ has PJ Gilbert's Under Submission column, titled Bookends.

Case notes

This pic works for both cases!

This unpub'd case, with the unlikely caption Chinese Gospel Church v. City and County of San Francisco, from 1/4's Justice Tucher appears to be the first civil California appellate opinion about a "pissoir."

In other case news, this newly published case from 2/4 has gotten a lot of attention, and has an interesting appellate angle: What does the Court of Appeal mean when it says "parties to bear their own costs" at the end of a decision? Well, it doesn't mean that a prevailing party is precluded from seeking statutory attorneys' fees! See Attorney Fees Aren't Costs in Appellate Court in the MetNews and 'I Made the Mistake of Representing Myself': Attorney Give up Years-Long Fight Over $300 in The Recorder.

An open letter to our appellate court justices

Today's DJ runs An open letter to our appellate court justices from attorney James P. McBride, who complains that appellate opinions are too long and that the world "is drowning in excess verbiage." He charges:

• You have strayed from the traditions of legal literature. Where is the flair? You publish dense wordy decisions whereas your audience of practicing attorneys longs for flesh and blood narrative. Please leave it to professors, treatise writers, and law review students to put your decisions into perspective. Who has the time or the inclination to plod through exhaustive erudition that pours down week after week in the published decisions?
• Ten thousand-word decisions may have started with Malcolm Lucas. His work on the California Supreme Court exhausted one's attention span. Similar ponderous writings are common nowadays. There was a time when reading the advance sheets was a beguiling, effortless pastime. Frequently new decisions linked up with attorneys' ongoing cases and projects. Timely decisions were like finding a gold nugget at Sutter's Fort. Now one must dig deeper to discover nuggets.
• He concludes: "please spare your audience voluminous law review style decisions. We would be better served with straightforward, concise decisions in the official reports."

Robin' Groban

(SCAN photo, shot on an iPhone)

Today's DJ reports on yesterday's swearing in in State Supreme Court Justice Joshua Groban Sworn In:

• "I don't want this to be known as the Brown Court," said Brown, who has appointed four of the seven justices. He noted differences of opinion among his prior nominees to the current court: Mariano-Florentino Cuéllar, Leondra R. Kruger and Goodwin H. Liu.
• Brown quoted his favorite legal scholar, Grant Gilmore: "In hell there will be nothing but law, and due process will be meticulously observed."
• Groban quoted the Shakespeare line, "First we kill all the lawyers," spoken by Dick the Butcher, one of the villains of Henry VI. ... "What Shakespeare knew, and what many in this room know, is that the role of lawyers and judges is to provide civility and consistency in a civil society."

The Recorder has Groban Takes Justice's Oath, Ending 8 Years of Jerry Brown Appointments

• “We live in a highly chaotic, ever changing, ever confusing world,” Groban said. “But I’m happy to report that I’m joining an institution whose fundamental purpose at its core is to provide stability and consistency amidst this chaotic place we live. And I look forward to doing that with a sense of reflection, respect, fidelity to the law and compassion.”
• Noting Groban’s eight years of work on California judicial appointments, the governor’s office on Thursday released final demographic statistics for the judges named during Brown’s last two terms in office. Forty-four percent were women. Nearly 40 percent identified as non-white. Just under 6 percent of Brown’s judges identified as LGBT, 3.3 percent were veterans and just under 1 percent said they had a disability.

Gov. Brown to Swear in Justice Groban tomorrow morning

Governor Brown to Swear In Joshua Groban
to California Supreme Court Tomorrow 

Governor Edmund G. Brown Jr. will swear in Joshua Groban to the California Supreme Court tomorrow in Sacramento, at a ceremony joined by Chief Justice Tani Cantil-Sakauye and other judicial and state officials. Groban’s nomination to the court was unanimously confirmed by the Commission on Judicial Appointments on December 21, 2018.

When: Tomorrow, Thursday, January 3, 2019 at approx. 11:00 a.m.

Where: Stanley Mosk Library and Courts Building, Room 500, 914 Capitol Mall.
**NOTE: This event is open to invited guests and credentialed media only.

While you may not be able to attend the swearing in, you can certainly enjoy the latest newsletter from the California Supreme Court Historical Society, here.

Chief Justice Roberts Issues 2018 Year-End Report

Chief Justice John G. Roberts, Jr., has issued his 2018 Year-End Report on the Federal Judiciary (pdf). This is the 14th report Chief Justice Roberts has issued since he was appointed chief justice in 2005.