Prof. Mitch Rubinstein at Adjunct Law Prof Blog links to an article at ABA Journal discussing an ABA Opinion regarding ghostwriting for pro se litigants that “concludes that it is not a violation of the Model Code for lawyers to give undisclosed assistance to pro se litigants.” Prof Rubinstein’s brief comments are worth a look.
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Posting May be Difficult Today – Here’s Some Reading
I’m probably going to be tied up with a client for most of the day and will be unable to post. But here’s a few things I found that might interest you. The Appellate Practitioner poses a hypothetical regarding writ review, then provides the answer. The UCL Practitioner links to an article on the state of legal blawgs. Still healthy. Getting stronger, in fact. Pamela Fasick is back at California Civil Litigation. Welcome back from hiatus, Pam. Party of the First Part wonders if he’s found the worst on-line agreement ever. It’s got to be close, at least. WSJ.com Law Blog makes it sound like things have changed since I…
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Judicial Performance Commission Records Not Discoverable
In Commission on Judicial Performance v. Superior Court, case no. B201251 (2d Dist. Oct. 29, 2007), the court of appeal holds that records of the Commission on Judicial Performance are not discoverable. Its holding appears absolute, regardless of circumstances. Felony defendant Davidson had his suppression motion denied by Judge Schwartz. Davidson filed a complaint against Judge Schwartz with the Commission, then was convicted after his case was transferred to another judge. In connection with his motion for a new trial, he filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) for records from the Commission concerning Judge Schwartz. The trial court ordered the records produced for in…
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Double-Check — No, Triple-Check — the SSN on Your Bankruptcy Docs
There’s only so far a creditor has to go to determine if a debtor in a bankruptcy notice to creditors is actually a debtor of that creditor. In Ellet v. Goldberg, case no. 05-16677 (9th Cir. Oct. 29, 2007), the court holds that the Franchise Tax Board was not required to track down the actual identity of the debtor when the notice it received bore an incorrect Social Security number that, according to the FTB’s records, did not match up to anyone owing taxes. Rather, the incorrect SSN made the notice ineffective and thus the FTB’s failure to file a proof of claim cannot justify discharge of the debtor’s tax…
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John Doe Arrest Warrant Based on DNA Satisfies Statute of Limitations
In People v. Robinson, case no. C044703 (3d Dist. Oct. 26, 2007), the court of appeal holds that a “John Doe” arrest warrant that describes the person to be seized by DNA profile suffices to “commence” a prosecution for purposes of the statute of limitations for a sexual offense. Penal Code Section 804, subdivision (d) provides that a felony prosecution is “commenced” when “[a]n arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (Emphasis added.) The DNA profile in this case satisfies the state and federal constitutional requirements that the warrant…
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The Evidence Prof Blog Arrives
The Evidence Prof Blog is a new blog in the Law Professor Blogs Network. I only discovered them last Friday, though the blog has been up since October 2. They recently posted regarding Rhoades v. Avon Products, Inc., case no. 05-56047 (9th Cir. Oct. 15, 2007), which applied Federal Rule of Evidence 408 in a trademark declaratory relief action. Issue: Whether a letter from counsel proposing settlement of a trademark dispute (and containing threats of litigation absent settlement) can be admitted to establish that a plaintiff seeking a declaratory judgment of non-infringement of the sender’s trademark has the requisite “real and reasonable apprehension that it would be subject to liability”…
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Judge Posner and Orangutans
Ok, he’s a Seventh Circuit judge, but he’s famous and you all know him. But you may not know about his connection to Orangutans. What connection? Check out Decision of the Day.
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Beware the Statute of Frauds
As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake. As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence. If your looking for a company you can trust then I highly recommend Mission real estate. The four defendant Tseng brothers own some real property as tenants…
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Domestic Violence Case Provides Grounds for Review Despite Mootness
It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review.” Both are family law cases. (I wrote about the first in the post immediately preceding this one.) In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case: As this Las Vegas family law attorney observed just last year, “It is rare for a Court of…
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Siblings are Siblings Regardless of Parental Rights Termination
Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law. Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity…
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An Interesting Law Blog from an Interesting Source
I’ve run across an interesting blog: Winning Trial Advocacy Techniques. With a title like that, I don’t need to tell you what its about. But I got really interested in it after I’d read some interesting posts and clicked on the “about” link to see who runs it. Turns out its an organization called “Trial Theater,” yet another name that gives you an idea of the organization’s perspective. Worth checking out.
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Failure to Brief and the Bounds of Discretion
Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action. First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right? Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error.…
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Are SCOTUS Pros Hogging the Court?
WSJ.com Law Blog summarizes a Legal Times article highlighting a paper by Georgetown law professor Richard Lazarus, in which he posits that the U.S. Supreme Court tends to grant certiorari in cases involving “superstar” members of its bar. Since those superstars tend to represent business interests, Lazarus contends — according to the Legal Times — that they are “boxing out the civil rights, civil liberties and labor groups that once helped set the Court’s agenda.” Some of the commenters think Professor Lazarus is off base. UPDATE (10/24/07): Legal Profession Blog has the abstract of Professor Lazarus’s paper and a link to it on SSRN. UPDATE (10/26/07): If you want more…
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Relation Back Doctrine Applies in Trial Deadline Context
In Brumley v. FDCC California, Inc., case no. A114840 (1st Dist. Oct. 22, 2007), the Court of Appeal holds that the relation back doctrine applies to claims in an action when dismissal is sought on the ground that plaintiff(s) failed to bring the action to trial within 5 years of filing the original complaint. (Code of Civil Procedure sections 583.310, 583.360.) Thus, where the wife and children of the original plaintiff substituted in as plaintiffs for purposes of personal injury asbestos claims that survived his death and amended the complaint to include a TomKiley Law Group wrongful death claim, the 5-year deadline for bringing the wrongful death claim to trial ran…
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Should the Government be Liable for Criminal Acts of its Employees?
The Government Liability Update blog has a good post on DeVillers v. County of San Diego, case no. D048974 (4th Dist. Oct. 19, 2007), which it describes as “deal[ing] with a real-life crime that would make a decent plot for a ‘CSI’ episode.” A county medical examiner and former meth addict having an affair with a co-worker steals drugs from work at the County Medical Examiner’s office and poisons her husband with them. Is the County liable for the husband’s death? The jury said yes. The Court of Appeal reverses.
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CALCRIM No. 3450 Survives Appellate Challenge
CALCRIM No. 3450 is a long instruction that that sets forth the defendant’s burden of proof on insanity. Its very length and comprehensiveness appear to be what saves it in People v. Thomas, case no. C052849 (3d Dist. Oct. 22, 2007). The instruction includes this paragraph: If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime. Because virtually every mentally ill person has lucid moments, contended the defendant, this language in the instruction essentially directs a finding of sanity. According to defendant, the instruction “require[d] [the] jury to find…
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More on Kozinski Taking the Helm of the Ninth Circuit
Lawjobs.com profiles Judge Alex Kozinski as he prepares to take over as chief judge of the United States Court of Appeals for the Ninth Circuit. The reporter is from the National Law Journal, so this may be the article I linked in Monday’s post that was behind the NLJ’s subscription wall. Thanks to Appealing in Nevada for the link.
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Consumer Attorneys Sue Supreme Court over Case Publication Rules
Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a…
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When Good Law Goes Bad
Not generically bad, but bad for you. The plaintiff in Acosta v. Hill, case no. 05-56575 (9th Cir. Oct. 17, 2007), claimed in her Section 1983 case that the force used by city security guards and police while ejecting from a San Diego stadium violated her civil rights. Indeed, she claimed she had been subjected to deadly force, and that the trial court erred by giving an instruction on excessive force under a reasonableness standard without giving a separate instruction on deadly force. She had a shot. Ninth Circuit precedent at the time of her appeal drew a distinction between instructions for excessive force and instructions for deadly force. Her…
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Unconscious Commentary on the Law re Anti-Gang Injunction
A few days ago, our local court of appeal upheld the validity of an anti-gang injunction, with the exception of the curfew provision. In People ex. rel. Totten v. Colonia Chiques, case no. B184772 (2d Dist. Oct 15, 2007), the court found the curfew provision of the injunction is constitutionally vague because it forbids enjoined persons from “being outside” without defining “outside.” The next day on my way to the law library, I caught the local news on the radio and the newscaster on a local station was reading a story about the decision. I’d swear that when he read that the court’s decision on the curfew provision concentrated on…
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Kozinski Doesn’t Want Hard Work Wasted — Dissents from Order Dismissing Petition for Rehearing
In Suntharalinkam v. Keisler, case no. 04-70258 (9th Cir. Oct. 18, 2007), the Ninth dismisses a petition for rehearing en banc in an immigration case on the motion of the petitioner, whose counsel requested dismissal after being questioned at oral argument regarding the petitioner’s relocation to Canada and seeking of asylum there. Judge Kozinski will have none of it. In a dissent joined by three other judges, he argues against the ability of the petitioner to waste all the hard work of the court: My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing…
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Be Very Careful Pronouncing this Word
Attorneys are probably better off just staying away from this week’s Word of the Week from Party of the First Part. At least in speech. An accidental mispronunciation to the court could land you in hot water, at least until the gaffe is explained.
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California Supreme Court to the Ninth: Can’t You Read?
Back in August, I covered the case of Fantasyland Video v. County of San Diego, case no. 05-56026 (9th Cir. Aug. 7, 2007), in which the Ninth asked the California Supreme Court to answer a certified question asking for the standard of review to apply to the constitutionality (under the California Constitution) of hours-of-operation restrictions on “adult entertainment establishments.” The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote: Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says…
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Rare Original Jurisdiction in SCOTUS Case
WSJ.com Law Blog reports on a current case rare for its forum: the U.S. Supreme Court. Not so odd, you say? This is a case where SCOTUS has original jurisdiction.
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Jurisdiction Not Interesting?
Professor Martin at California Appellate Report lauds Judge Bybee for his opinion in SEC v. Ross, case no. 05-35541 (9th Cir. Oct. 15, 2007): It’s an erudite, comprehensive, and incredibly good opinion. On a subject (here, jurisdiction and service of process) that’s nowhere near inherently exciting. Nowhere near inherently exciting? Huh? Then again, my favorite first-year law school class was Civil Procedure, so I’ve been a bit odd from the beginning. That said, I’m too busy at the moment to read this lengthy decision. But I skimmed it, and here’s the first thing that jumped out at me: Bustos, a pro se appellant, beats Allen Matkins and the SEC and…
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Macabre Employment Case
“When it comes to bizarre fact patterns, nothing beats a good employment discrimination case. Today we have two prime examples from the Seventh Circuit.” That’s how Robert Loblaw begins his post at Decision of the Day. He’s putting it mildly with respect to the second case, which involves sexual harassment at a crime lab. I’m rather glad its outside this blog’s usual jurisdiction.
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“Roundtable Weighs In on Legal Blogs”
Kimberly Kralowek at The UCL Practitioner posts “Roundtable Weighs In on Legal Blogs,” with excerpts from, and a link to, a piece in the National Law Journal last week reporting on a roundtable discussion called “Blogging, Scholarship and the Bench and Bar.” She excerpts some comments from the Ninth Circuit’s Judge Hawkins regarding law bloggers.
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State Law in a Federal Court
In Ryman v. Sears, Roebuck and Co., case no. 06-35630 (9th Cir. Oct. 12, 2007), the Ninth Circuit reiterates some very basic rules for a federal court to interpret state law. The district court refused to apply state law precedent to a matter of state law because (1) the precedent was from the state’s intermediate appellate court rather than the state’s highest court, and (2) the intermediate court’s opinion had been criticized by other federal courts. The Ninth reminds us that neither reason justifies ignoring relevant precedent from a state’s intermediate appellate court. In the absence of a relevant decision from the state’s highest court on a matter of state…
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Know Who Your Client Is
When you’re suing a client for your attorney fees, it might be helpful to know who your client is. A law firm’s failure to establish that prevents its recovery of fees in Shimko v. Guenther, case no. 05-16847 (9th Cir. Oct. 12, 2007). The Guenthers were limited partners in two limited partnerships (“the CORF entities”). When the CORF entities were sued, the Guenthers and other owners sought counsel regarding their potential personal liability for the liabilities of the CORF entities. On that much, the parties agreed. But the Guenthers claimed that the CORF entities were the clients, and that, as limited partners, they were not liable for fees. The attorneys…
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Judge Kozinski set to Take the Helm
National Law Journal’s L.A. Legal Pad links to the NLJ profile (behind subscription wall) of Judge Alex Kozinski, who takes over as Chief Judge of the United States Court of Appeals for the Ninth Circuit on December 1, the “first conservative in a decade to lead what is widely viewed as the nation’s most liberal federal appellate court.”