Not “maybe a merry Christmas.” The “Merry Christmas” part is unqualified. The “maybe” refers to my anticipated posting hiatus while I am visiting family the entire week of Christmas. Not sure if I’ll blog or not. As much as a week’s break from blogging sounds to me like welcome relief right now — I put an awful lot of work into this — I feel like blogging is now “in my blood.” I’m not sure I can stop for a whole week! (Does this mean I fit into Judge Kozinski’s perception of bloggers?) I will have access to a computer and the internet, so the temptation will be there. I’ll…
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Amendments to California Rules of Court Taking Effect January 1, 2008
Go to this page at the Judicial Council website to download amendments to the California Rules of Court, including this announcement of changes to more than 40 rules in Title 8 (Appellate Rules) that take effect on January 1, 2008.
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Review Granted Regarding “Suggestive” Palma Notice
A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped. Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing…
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What goes around . . .
. . . comes around, as they say. Start by suing your brother for defamation, intentional infliction of emotional distress, and intentional interference with contract. End up with a cross claim against you for defamation and intentional infliction of emotional distress. But at least you’ve got insurance, right? Not if you’re Richard Stellar, plaintiff in Stellar v. State Farm General Ins. Co., case no. B195728 (2d Dist. Nov. 27, 2007, ordered published Dec. 18, 2007). If you’re Stellar, you just think your homeowner’s policy should cover the claim. Here, the Court of Appeal holds that State Farm has no duty to defend because the alleged torts do not constitute an “occurrence”…
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California’s 90-Day Rule
The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.
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Roommates.com Developments
How Appealing has a detailed post regarding the recent order in the Roommates.com case, in which the Ninth Circuit refused leave for Amazon.com to file an amicus brief in the en banc rehearing proceedings. I’ve posted about the case here, here, and here. Professor Eric Goldman has really been staying on top of it, with lots of links to court documents at his Technology & Marketing Law Blog. Oral argument was held on Wednesday. Here’s a link to audio of the oral argument posted at the Ninth Circuit website.
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Listen to the Court the First Time
More chutzpah on appeal, this time in United States v. Collins, case no. 05-4708 (7th Cir., Dec. 14, 2007). A little out of my usual jurisdiction, but so outrageous I had to tell you about it (and once again sponge off the great work at Decision of the Day). I’ll tell you only that this time the attorney gets spanked for making the exact same argument the court had described as “unbelievably frivolous” in a prior case involving the same attorney. The argument? Go to this post at Decision of the Day, where you’ll also find a link to a page that shows the lawyer in Collins is not alone…
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Chutzpah on Appeal
“Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland, case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense. Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…
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Supremes Deny Republication of Lockheed Litigation Cases
You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases. Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants. The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished. Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication. Those justices that had recused themselves from review likewise recused themselves from the republication decision. I remain baffled by Chief Justice George’s rationale…
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Justice Kennedy on Reading Briefs
If you’re curious about how Justice Anthony Kennedy feels about reading briefs, check out this post at Legal Writing Prof Blog.
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Using the Court of Appeals as a Crystal Ball
“Don’t do it” is the friendly advice from the Ninth in Global Horizons, Inc. v. U. S. Dept. of Labor, case no. 07-15116 (9th Cir. Dec. 13, 2007). At the end of its opinion affirming the denial of a preliminary injunction, the court notes that the appellant, Global Horizons, would have been better off pressing on with its permanent injunction claim while the appeal was pending rather than dragging its feet in the district court while hoping to get the Ninth Circuit’s views on the merits of the case: Finally, we recognize that in the eleven months since Global Horizons filed the present appeal, the company has taken very few…
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Process Serving Gamesmanship
It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are. Even when the defendant is overseas. Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction. The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make…
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We’re #1!
Today’s decision in Dukes v. Walmart, Inc., case no. 04-16688 (9th Cir. Dec 11, 2007), in which a panel of the Ninth, on rehearing, again affirms the class certification in this gender discrimination case, prompts this from Howard Bashman at How Appealing: In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision. Bashman watches courts all over the…
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Thank You to LACBA Appellate Courts Committee
I had the honor of sharing the stage on Monday with Denise Howell of Bag & Baggage fame (not to mention Lawgarithms and other projects) for a presentation on blogging and other internet media to the Los Angeles County Bar Association Appellate Courts Committee. Denise has more than six years of blogging under her belt. I spoke specifically from the “young blogger perspective.” The committee members were quite receptive and interactive, with great questions that were fun to answer. Thanks to all involved, including Denise, and to Ben Shatz for setting it up. By the way, because I expect a few visits from committee members as a result of my…
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The California Appellate Court Legacy Project
From the California Courts website: In 2006, the California Appellate Court Legacy Project was undertaken to interview all retired justices in the state, as well as active justices who may be nearing retirement. Overseen by the Appellate Court Legacy Project Committee (chaired by Associate Justice Judith L. Haller of the Fourth Appellate District, Division One), interviews are videotaped or audiotaped and conducted by interviewers selected from within the appellate branch. Ultimately the tapes will be made available to judicial colleagues, historians, scholars, law students, and members of the public. The resulting archive will be an historical record of both the personal experiences of individual justices and the evolution of the…
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Rare Frivolous Appeal Sanction Levied
A few months ago, I told you how a study by Ben Shatz and Joanne Sweeny in Whittier Law Review disclosed just how rarely sanctions are levied in the Court of Appeal. But “rarely” doesn’t mean “never,” and last Thursday was one of those rare occasions. Legal Pad covers the merits. California Appellate Report tries to get inside the heads of the sanctioned lawyers. The embarrassment must sting as much as the fine.
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The Record is Everything
Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record. Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position. Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the…
- Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Standard of Review, Waiver of Issues
Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences
In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court. Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun. Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and…
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Death Penalty Odyssey Likely to Fuel Debate
NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post. In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty. I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring…
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Cyber Law Update
Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v. Amazon.com, which I blogged about last May. Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context. As Professor Goldman sums up: In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the…
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Things You Don’t Want to Read about Your Work
I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007). But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion. Or at least one of them. Its a case brought by a plaintiff who alleges various constitutional violations against city cops. The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports. Both sides appealed. Issue 1: Sufficent evidence of excessive…
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Contract Claims against Public Entities are Governed by Claims Statutes
In City of Stockton v. Superior Court (Civic Partners Stockton, LLC), case no. S139237 (Dec. 3, 2007), the Supreme Court holds that a claim for breach of contract against a public entity is subject to the claims presentation requirements of the Government Code. (Govt. Code, §§ 905, 945.4.) And to help keep people from losing sight of that holding, the court endorses “Government Claims Act” as the shorthand name for the claims statutes in place of the commonly used, and traditional, “Tort Claims Act.”
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It’s Not the 40 Years that Hurts, its the $20 Fee
I had to read the first few paragraphs of People v. Alford, case no. S142508 (Dec. 3, 2007) several times before it sunk in. The defendant was convicted of second degree robbery. The court imposed a $20 court security fee under Penal Code section 1465.8. Oh yeah . . . defendant also got sentenced to 40 years in prison (he had eight prior felonies). Facing 40 years imprisonment, he promptly appealed . . . the $20 fee. At least, that’s how it might appear from reading only the Supreme Court opinion. If you look up the Court of Appeal decision, you’ll see that defendant also appealed on grounds of prosecutorial…
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Explicit Judicial Requests for Supreme Court Review
Legal Pad highlights a couple of very recent cases, in which the published opinions explicitly urge the Supreme Court to reexamine an issue, in a post titled How Do You Make the Supremes Notice You? Do such explicit requests help the parties obtain review of the Court of Appeal judgment? The post turns to Santa Clara University School of Law Professor Gerald F. Uelmen for comment on that issue.
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Split of Authority re Mandatory Relief under CCP § 473(b)
The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder. But I never read about that actually happening until…
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ABA Journal Blawg 100 Voting
The ABA Journal’s December 2007 issue announces the “ABA Journal Blawg 100,” which it describes as “the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal.” The list includes three of the blogs that made my top 10 list in this meme about two months ago: WSJ.com Law Blog, Legal Pad, and Wayne Schiess’s legal-writing blog. California lawyer blogs on the list include Pamela Fasick’s California Civil Litigation Quote of the Week and Denise Howell’s Bag and Baggage. I don’t mind telling you I’m jealous as . . . heck. There may be other California lawyer blogs on the list, but I…
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“Restyled” Federal Rules of Civil Procedure Take Effect Today
The new Federal Rules of Civil Procedure go into effect today. Previous posts (here, here and here) have linked to articles about whether the changes, intended merely to “restyle” the rules without substantively changing them, will accomplish that purpose. I guess we’ll find out soon enough if they don’t. In the meantime, AbsTracked has a post with some useful links regarding the changes, including an advisory committee report and a change comparison chart. Thanks to Legal Writing Prof Blog for the link.