Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them. At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought. Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four…
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Ever Felt Like Using an Expletive at Oral Argument?
I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief). But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS. Apparently, “Justice Roberts is undecided on whether or not he should even allow the lawyers to use the words — and if so, whether to allow the argument’s audio to be played on C-SPAN.”
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Got a stay? Challenge the judge anyway!
Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case. No dice. And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court. Tri Counties asserted that the the judge…
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There’s No “E” Before “Mails” When it Comes to Triggering the Deadline to Appeal
Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment. The trial court designated the case complex litigation and ordered compliance with the…
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The Judgment, the Whole Judgment, and Nothing But the Judgment
Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party. Mixed bags create competing incentives. Here, one incentive got the best of Satchmed. UWMC complied with the judgment by offering the…
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New Law Blog: The California Constitution
Well, a young blog, at least, if not brand spanking new. The California Constitution was launched in August by Howard Rice partner Steve Mayer. Good luck! Hat tip: California Punitive Damages.
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”
(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He — and in this case, I’m referring to a trial lawyer that specializes in some substantive area of the law — thinks to himself: “This case needs a specialist.” The trial lawyer who says that rarely means an appellate specialist. Instead, the ace employment lawyer (to use just one example) thinks, “This employment case needs an employment lawyer like me on appeal, I can’t pass it off to an…
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What does “abuse of discretion” mean in your case?
Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible). There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case. The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008). Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against…
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Procedural Exits off the Appellate Freeway
A year or so ago, I heard a California appellate court justice advise that the court of appeal examines every case for issues that will allow the court to dispose of the case without reaching the merits. He explained the process with a metaphor, which I’ll try to convey in this post (paraphrasing throughout). “Envision an appeal as the freeway between Fresno and Los Angeles, with Fresno being the filing of the notice of appeal and Los Angeles being a decision on the merits,” he said. “Now, think of each exit on that stretch of freeway as an opportunity for the court not to reach the merits. The court would…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: “No one knows the case better than I do.”
(NOTE: This post is the third in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He thinks to himself: “No one knows the case better than I do.” Who could argue with that? The trial lawyer may have spent hundreds or thousands of hours on the case over several years. Met every witness personally and attended every deposition. Pored through every discovery response, every document, every exhibit and every transcript. Several times. And yet . . . I still think it unwise, in most circumstances,…
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Judicial Opinion Shortcuts: Skipping the Substance of the Argument
Sometimes, a judicial opinion leaves you wondering what a party contended on appeal. That’s always a little frustrating. OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case. But they don’t explain the substance of the appellant’s argument. They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts. Pretty cut-and-dried. Why…
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A Double Standard . . . of Review
An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect. In the district court, Vega challenged two conditions on the supervised release portion of his sentence. On appeal, however, he argued that a third condition of his supervised release was also error. You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal But he’s not. Though Vega did not challenge the third condition…
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Don’t Forget, Appellants: The Record is Your Burden, Too
Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court: Critical to our review of…