It’s quite common for plaintiffs to sue under similar state and federal provisions. The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA. The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous. The CDPA, on the other hand,…
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It’s not just Bill Clinton . . .
. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.” And it turns out the answer isn’t that easy: Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.] As if to prove the answer isn’t simple, there’s…
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Appeal That Fee Award
I don’t usually review unpublished decisions for material for this blog. But unpublished decisions, even if they don’t create new law, can have some interesting points. (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment. The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award. Result: untimely appeal, no jurisdiction, appeal dismissed.
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You’re Probably Wrong about How Judges Think
Me, too, for that matter. That’s what Judge Posner‘s blurb on the jacket of his book, How Judges Think, seems to say. It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges want. Do we? Says Judge Posner: [M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit. You…
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Hyphenating Your Phrasal Adjectives?
Probably not enough, says Professor Schiess.
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Offended by Having Your Work Edited?
If so, check out We Are the Products of Editing, by University of Missouri law professor Doug Abrams, in the Missouri Bar’s quarterly magazine, Precedent. Hat tip: Legal Writing Prof Blog.
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Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable
As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky. 28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel. In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”: Although the bankruptcy proceedings may continue, and here, in fact they…
- Appellate Procedure, Criminal Procedure, Standing to Appeal, Statutory Construction, Waiver of Issues
Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment
In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972. He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even though he did not raise this alternative in the trial court. The Court of Appeal determines that Rish waived the issue by failing to raise it. As a matter of statutory construction, Section 2972, subdivision (d) does not impose a duty on the court to evaluate suitability for outpatient treatment sua sponte. The court reached the…
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UC Davis Law Students Procure Ninth Circuit Reversal
Congratulations are in order for UC Davis law students Anjuli Fiedler and Rachel Golick who, under the supervision of UC Davis School of Law professor Carter C. White, represented and obtained a reversal for the appellant in Simpson v. Thomas, case no. 07-16228 (9th Cir. June 11, 2008), Maybe this happens more frequently than I suspect, but it strikes me as a pretty big deal. Especially since the appeal raised two issues of first impression.
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A Glitch In Kozinski’s Presiding over Obscenity Trial?
Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he…
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Blogroll Addition: California Attorney’s Fees
Regular readers know I am fond of covering attorney’s fee cases. Now there’s a blog about nothing but California attorney’s fees, and it’s called, oddly enough, California Attorney’s Fees. Started less than a month ago, California Attorney’s Fees is a comprehensive blog that reports on both published and unpublished cases and includes several categories related to the appeal of fee awards, including appealability, appeal sanctions, and deadlines. And, they invite you to help add more. California Attorney’s Fees demonstrates that it is not only newer lawyers who are blogging. The junior of the two contributors, Marc Alexander, has 25 years of law practice under his belt, and his co-blogger, Mike…
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Justice Gilbert Profiled
Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week. This comes not long after he was honored with The Beacon of Justice Award. Thanks to Curt Cutting of California Punitive Damages blog for the tip.
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What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?
Image via Wikipedia In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote: After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant’s death will abate his appeal (see e.g., In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Anzalone (1999) 19 Cal.4th 1074, 1076; People v. Dail (1943) 22 Cal.2d 642, 659), we exercise our inherent authority to retain this case for an opinion in order to resolve the recurring conflict in the Courts of Appeal regarding whether prohibited firearm enhancements should be stayed or stricken under…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues
Waiver of Appeal Rights in Plea Agreements
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…
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Survey Results — Such as They Are!
Two weeks ago, in response to a post I’d seen elsewhere about judges reading blogs, I put up a survey in the right sidebar that asked readers to choose the description that best described them. During that time, I posted rather lightly, and the blog had a slow few weeks: barely 1300 page views. With 1300 page views, how many survey participants do you think I had? 100? 200? 500? Try 34. I’m no statistics expert, but I figure that puts the margin of error in the results somewhere around 12,000 percent. The only category with zero responses? Judge. The responses broke down as follows: Next time, I’ll do…