Mandatory e-filing in the California Supreme Court is imminent – learn the rules!

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The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly.

The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive. Some highlights: [Added 9/6/17: do not rely on this summary to ensure your compliance with the rules. Reference the rules on the court’s website, which may change form time to time without such changes being noted in this blog post.]

♦E-filing becomes mandatory on September 1, 2017, even for cases initiated prior to that date. (Rule 3(b).)

♦As in many other courts, self-represented litigants are exempted from mandatory e-filing. (Rule 4(a)(1).) But attorneys may also seek an exemption. (Rules 3(a), 6.) I am hard-pressed, though, to imagine how an attorney would meet one of the stated grounds for exemption: undue hardship, significant prejudice, or infeasibility. (Rule 6(b).) Perhaps the unavailability of a broadband internet connection would render e-filing infeasible?

♦[Added 9/6/17: the rules for paper copies have already been modified. See the 9/6/17 update below.] Two bound paper copies of documents must still be provided in civil and non-death penalty cases, and quite promptly (sent by means reasonably calculated to reach the court by the close of business the second court day after the electronic filing, and only one day after filing in cases requesting an immediate stay). (Rule 5(a).) That is a disappointment, but there is still far less paper to handle than there is with paper filings. In a death penalty case, the filer only has to send in one paper copy, has more time to send it, and does not have to bind it. (Rule 5(b).)

♦PDF documents must have bookmarks to separate sections, argumentative headings, etc. (Rule 10(a)(3).) Though the rules do not appear to require it, it is probably a good idea to format each heading in your table of contents with a hyperlink to the corresponding page in the document, as the Fifth District Court of Appeal requires.

I find the rules ambiguous in one respect. Rule 3(a)(1) lists one category of documents that must be filed electronically:

Documents in proceedings under rules 8.500-8.552 [of the California Rules of Court]
All documents filed before the court issues its decision to grant or deny review, including:

[enumerated documents]

(Italics in original, bold added.) Even though rules 8.500-8.552 of the California Rules of Court cover proceedings subsequent to a grant of review and all the way through issuance of the remittitur, Rule 3(a)(1) appears to require electronic filing only for the documents filed prior to the grant of review. Under this strict reading of the rules, briefs on the merits do not appear subject to mandatory e-filing, which seems like an odd omission. Why reference all of those rules if e-filing is mandatory for documents filed pursuant to only some of them? It is important to resolve the ambiguity, because a filer may electronically file only those documents specifically identified in the rules (Rule 2), unless otherwise ordered by the court (Rule 3(a)(3)). In other words, e-filing is either mandatory or prohibited for a given document. Perhaps there is a standing order that covers this under Rule 3(a)(3), but it seems odd not to make it explicit in the e-filing rules themselves. [Added 8/21/17: briefs on the merits and other post-grant filings appear to be deliberately omitted from e-filing. See the update below.]

Regular readers know I am not a fan of reading legal documents on a screen. But e-filing sure makes filing easier, and also makes it easier to keep my office organized.

Still, electronic filing could be improved by some uniformity. Some is on the way, such as the anticipation that all districts of the Court of Appeal will have e-filing through TrueFiling implemented by November of this year. It could also be improved be eliminating the need for any paper copies, including copies served on subordinate courts. E-filing in the Court of Appeal has long satisfied the requirement of service on the Supreme Court, and the uniform use of TrueFiling this November should make it possible to e-serve any Court of Appeal with documents e-filed in the Supreme Court. Electronic service on superior courts statewide would be nice. Electronic service on subordinate courts would be even nicer if it happened automatically upon e-filing in the filing court.

Update (8/21/17): The ambiguity regarding post-grant documents kept gnawing at me, so I asked a few colleagues what they thought, which led me to last June’s news release about the Supreme Court’s adoption of e-filing. It says in part:

The court will adopt detailed eFiling Rules in June and remain open to opportunities to enhance the program in the coming year. The court will employ a phased approach to the launch of its eFiling program.

That suggests this is a “grow as we go” implementation, and that my reading is correct: for now, briefs on the merits and other post-grant documents, as well as documents in writ proceedings, cannot be e-filed.  They may be submitted electronically, but the electronic submission is in addition to required paper filing copies, not a substitute for them.

Update (9/6/17): Some of the rules have already been modified. Notably, the requirements for submitting paper copies (Rule 5) have been relaxed.  Whether a death penalty case or not, only a single, unbound paper copy is required, and it need no longer reach the court within two court days; depositing the copy in the mail or with a common carrier within two court days of filing now suffices, unless the filing party is seeking a stay, in which case the paper copy must reach the court “by the close of business the next court day after the document is filed electronically.”

There may have been other changes, but I do not have the original version of the rules against which to check the current version. As always,. rely on the official rules, not the commentary in this blog post.

Will a death penalty initiative make it easier to obtain Supreme Court review of your civil case?


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Will this year’s elections have an impact on Supreme Court review?

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds.

Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases?

It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition of California Litigation Review.* The 18% statistic belies the time actually spent on death penalty cases, say the authors, “given the generally lengthy records and briefing, along with couldn’t-be-higher stakes.”

What are the chances those death penalty cases will go away? Higher than they have been in a long time, it seems. This year’s ballots may see competing death penalty initiatives, note the authors. One would streamline the appeals process in death penalty cases, while the other would eliminate the death penalty. The latter initiative seems to have a real chance. According to the authors, a recent poll found support for the death penalty in California at its lowest point in 50 years.

*Published by the Litigation Section of the State Bar of California, and the source for the case statistics cited in this post.


Insight into the Supreme Court’s decisions on whether to hear cases

The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review. Justice Liu’s recent dissents, according to the article, shed some insight on the decision-making in those cases, but I’m afraid the article doesn’t do very well at explaining how. The passages it cites from the dissents demonstrate why Justice Liu was in favor of granting review by showing what he was thinking, but not why the justices who voted against review did so. The article has links to the dissents, so it is easy enough to follow up if you are curious.

California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review

I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.)

That may change. Yesterday, the Supreme Court posted for comment some proposed changes to this scheme.The upshot is that there would be a 180-degree change in the rule, so that published cases accepted for review by the Supreme Court would remain published, with a notation that the case has been accepted for review.

Where things get interesting is in the related issue of the precedential effect of such cases. If cases on review remain published, should they have the same precedential value they had prior to being accepted for review? That’s one proposal (but it also has a provision that the Supreme Court could explicitly limit the precedential value of the decision. The second proposal is that such decisions would not be binding and could be cited only for persuasive value.

The proposal generated quite a bit of buzz on the Los Angeles County Bar Association Appellate Courts Section listerv yesterday. The “if it ain’t broke, don’t fix it” caucus seemed to win the day.

Of course, not everyone agrees that the current system “ain’t broke.” There is an organization dedicated to advocacy for publication of all Court of Appeal opinions. Several years ago, a law firm even sued the Supreme Court over its publication rules.

The issue of the precedential value of cases accepted for review is of concern beyond the appellate community, of course. Published decisions of the Court of Appeal, regardless of the district in which the decision was rendered, are binding on trial courts statewide. Where there are conflicting appellate court decisions, a trial court is free to choose which it will apply.

Since conflicts among the Court of Appeal often generate review by the Supreme Court, trial courts are forced under the current rules not to rely on the more recent decision and treat the earlier one as binding. Someone on the listserv pointed out yesterday that this is unfair, and I tend to agree. After all, where review is granted because of a conflict between two cases, the Supreme Court is likely to disapprove one or the other of them rather than reconcile them. In other words, since the fate of both cases lies in the balance, why should one have greater precedential value than the other?

If you wish to offer the Supreme Court your comments on the proposal, you must do so by September 25, 2015.

Update: Horrendously embarrassing typo in headline fixed!

New blog to cover California Supreme Court

I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of California,” and billed as a joint project of the California Constitution Center at Berkeley Law and the Hastings Law Journal: SCOCAblog.

I don’t know if I was randomly chosen for an invitation or I was invited because I am a blogger on appellate issues. It’s nice to think it is the latter, and to think that maybe if I throw a link or two to SCOCAblog from time to time, the bloggers there might return the favor.

Oddly, yesterday I wasn’t able to find any trace of news about the impending launch other than what is contained in my invitation. I found nothing about it at the website for either of the endeavor’s partners, and going to in a web browser brought up the same generic page brought up for any other inactive URL; there was no “coming soon,” “under construction,” or other message hinting that SOCAblog was on its is way. You would have thought it was a big secret.

This morning is a different story. Though yesterday’s invitation announced a launch date of November 24, 2014, the blog appears to have launched ahead of schedule.

Justice Kennard retiring April 5

Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence:

Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor.

She came to the United States in 1961, found work as a secretary, and put herself through college and law school. After a stint in the state attorney general’s office, she was named to a Municipal Court in Los Angeles by Gov. George Deukmejian in 1986. Three years later, he named her to the state’s high court.

Her official bio is here.

Given that Justice Kennard cited her desire to get back to “long-neglected friends” after years of seven-day workweeks, and that her retirement letter ended on a poetic note, the fond farewell I learned at the Naval Academy seems appropriate, regardless of whether she is  sailor: May you have fair winds and following seas, Justice Kennard.

A Chief’s-eye view of the California Supreme Court

Today marks the release of an interview-style memoir from former California Supreme Court Chief Justice Ronald George, Chief: The Quest for Justice in California. A front-page article in today’s Los Angeles Times gives you a glimpse into a few themes in the 822-page book. One: a court funding crisis — though not of the same magnitude as the one faced today — was never far off at any given time:

When Ronald M. George served as chief justice of California, he pleaded annually with legislators for money to run the courts, warning the loss of funds would compromise justice.

But he said he learned that some lawmakers took positions on the budget for purely personal reasons, obsessively discussing their divorces or traffic tickets and punishing the judiciary for rulings they did not like.

“I remember dealing with one state senator who found it impossible … not to bring up his own divorce proceedings and how he thought he’d gotten a raw deal at the hands of his wife and her attorneys and didn’t feel the court system dealt with him fairly,” George said, not naming the elected official.

This book should have been released on Halloween, because that is really, really scary.

UPDATE (11/7/13): Southern California Appellate News has information on a book signing scheduled at UC Berkeley next week , and The Recorder provides another summary of the book.

Supreme Court reverses Kurwa v. Kislinger – there are limits to the manufacture of appellate jurisdiction

Even most non-appellate lawyers are familiar with the “one final judgment rule,” under which a judgment is not appealable unless it disposes of all of the claims between the parties to the appeal. Plaintiffs who have had some (but not all) claims dismissed after a demurrer or summary adjudication either have to defer appellate review of the ruling until the remaining claims have been resolved, or dismiss the remaining claims with prejudice so as to create a judgment that disposes of all claims and is thus appealable. (Of course, the plaintiff also has the option of petitioning for writ relief from the summary adjudication order.)

In Kurwa v. Kislinger (2013) 57 Cal.4th 1097, the parties tried to preserve their defamation crossclaims against each other by stipulating to dismiss them without prejudice and waiving the statute of limitations, so that they could be revived after the appeal of the ruling knocking out the plaintiff’s claim for breach of fiduciary duty and related claims. Prior to the Court of Appeal decision in Kurwa, a consistent line of cases starting with Don Jose’s Restaurant, Inc. v. Truck insurance Exchange (1997) 53 Cal.App.4th 115 had held that such an arrangement did not create an appealable judgment because there was no finality in the disposition of the dismissed claims. The Court of Appeal in Kurwa, however, departed from this reasoning and concluded that dismissals without prejudice and with waivers of the statute of limitations create an appealable judgment because there are no longer any claims “pending” in the trial court.

The Supreme Court reverses in a unanimous decision:

We disagree with the appellate court below, and agree with Don Jose’s and the decisions following it, including Abatti [v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650] . When, as here, the trial court has resolved some causes of action and the others are voluntarily dismissed, but the parties have agreed to preserve the voluntarily dismissed counts for potential litigation upon conclusion of the appeal from the judgment rendered, the judgment is one that “fails to complete the disposition of all the causes of action between the parties” (Morehart [v. County of Santa Barbara], supra, [1994] 7 Cal.4th [725] at p. 743) and is therefore not appealable.

The Court of Appeal below was correct that causes of action the parties have dismissed without prejudice are no longer pending in the trial court, in the sense that no immediate action remains for the trial court to take on such counts. But where the parties, by waiver or agreed tolling of the statute of limitations or a similar agreement, have arranged for those causes of action to be resurrected upon completion of the appeal, they remain “legally alive” in substance and effect. (Hill v. City of Clovis, supra, [1998] 63 Cal.App.4th [434] at p. 445.) The rule of the lower court, under which a voluntary dismissal is considered to dispose of a cause of action regardless of any agreement facilitating its future litigation, elevates form over substance and permits parties to evade the one final judgment rule of section 904.1, subdivision (a), through what the Don Jose’s court aptly called an “artifice.” (Don Jose’s, supra, 53 Cal.App.4th at p. 116.)

The Abatti case mentioned by the Supreme Court was decided after the Court of Appeal had decided Kurwa and represents a middle ground. In Abatti, judgment was entered after the plaintiff dismissed claims without prejudice and without any waiver or tolling of the statute of limitations. This absence of an agreement assuring that the dismissed claims could be litigated following the appeal was a distinguishing feature in the eyes of the Abatti court:

[C]laims that are dismissed without prejudice are no less final for purposes of the one final judgment rule than are adjudicated claims, unless, as in Don Jose’s Restaurant and its progeny, there is a stipulation between the parties that facilitates potential future litigation of the dismissed claims.

Interestingly, the Supreme Court specifically states that it agrees with Abatti even though its Kurwa opinion explicitly limits the issue before the court to those cases that, unlike the dismissals without prejudice in Abatti, include stipulations to keep the dismissed claims alive:

This case poses the question whether an appeal may be taken when the judgment disposes of fewer than all the pled causes of action by dismissal with prejudice, and the parties agree to dismiss the remaining counts without prejudice and waive operation of the statute of limitations on those remaining causes of action.

In an amicus brief, the California Academy of Appellate Lawyers raises a point that has always bugged me. The one final judgment rule is frequently cited as a means to avoid piecemeal litigation, but that is only true of litigation in the Court of Appeal. It necessarily means that cases may have to be tried piecemeal. The Academy argued that a rule on finality should promote efficiency at the trial level as well as the appellate level by allowing the parties “as much autonomy and choice as possible.” The Supreme Court isn’t buying it:

We are not free, however, to adopt whatever rule we find best balances the interests of party autonomy or trial and appellate efficiency. Unlike jurisdictions that provide for trial courts’ selective entry of final judgments on fewer than all claims for relief (see, e.g., Fed. Rules Civ.Proc., rule 54(b), 28 U.S.C.) or for interlocutory appeals in the discretion of the reviewing court (see, e.g., 28 U.S.C. § 1292(b)), California law provides no case-by-case efficiency exception to the one final judgment rule for appealability. Where unusual circumstances justify it, review of interlocutory judgments may be obtained by petition for writ of mandate, but not by appeal. ([Code Civ. Proc.,] § 904.1, subd. (a); Morehart, supra, 7 Cal.4th at pp. 743-744.) The question is thus not what rule will best serve litigants and trial courts, but what rule is most consistent with the policy against piecemeal appeals codified in section 904.1 and vindicated in Morehart.

I think the court paints a somewhat rosy picture of writ review here by referring merely to “unusual circumstances” without mentioning that those circumstances are found present in less than 10% of writ proceedings. Nonetheless, a prospective appellant who values the claims disposed of by the trial court more than his remaining claims, but wants to keep all options open as long as possible, should consider first seeking writ review and, if unsuccessful, then dismiss his remaining claims with prejudice and appeal from the ensuing judgment

Some Highlights from the 2013 Court Statistics Report

Would you like to know how busy Court of Appeal justices are? Maybe you’re curious instead about the odds of getting that writ petition you’re considering heard on the merits. Those curious about court statistics have a friend in the Judicial Council of California, which publishes annual statistical reports and has release its 2013 Court Statistics Report: Statewide Caseload Trends 2002–2003 through 2011–2012 (available as a PDF and in an MP3 audio format). The report covers data through the close of fiscal year 2012. (All references to years are to fiscal years.)

I finally got a chance to look at it over the weekend, and here are a few of the things I found interesting from my first pass through the report:

Number of contested appeals per authorized justice (statewide): 209. That is the lowest number of contested appeals since 2005, but there has not been a lot of variation over the years, with that number peaking at 225 in 2008. Keep in mind that is a statewide number. Your local justices may be much busier or have much less on their plates. The “per justice” calculations are based on 21,894 contested matter, of which well over one third are original (writ) proceedings. It will be interesting to see how that number changes for 2013, with the bottleneck created in the trail courts because so many departments have closed up shop due to budget cuts.

Juvenile and criminal cases continue to make up the vast bulk of all appeals. Of the 13,498 appeal filings in 2012, almost two-thirds of appeals came from criminal cases (more than 40% of all appeals) and juvenile dependency cases (just over 20% of all appeals).

Civil appeal reversal rates continue to hover below 20%. In 2012, 18% of civil appeals obtained a reversal of the trial court judgment. Potential appellants need to keep in mind that the standard of review applicable to a case, and the strength of any particular case, can change those odds significantly. Another 9% of civil appeals that were affirmed with some modification, but some of those modifications might be pretty meaningless to appellants.

Your civil appeal might not take as long as you think. Weary litigants can be reluctant to appeal because, in addition to the abstract 1-in-5 odds of prevailing, they see the appeal as more time spent in court and they just “want the damn thing to be over.” They find living with the judgment preferable to prolonging the case, and sometime will file an appeal only in the hope that it will generate some leverage for settling on terms more favorable than those imposed by the judgment. There are a few things wrong with that mindset, which deserve their own post, but when thinking of the appeal as “additional litigation,” you (the appellant)  should keep in mind that 90% of appeals statewide result in a written opinion within 15 months of the date the notice of appeal is filed. The Third District (in Sacramento) seems to be the slowpoke, resolving 90% of their appeals in around 18 months, while congratulations seem to be in order for the First District (if you value prompt resolution), which was the only multi-division district to have every one of its divisions beat the statewide average, and Division 5 of which had the lowest time to opinion in the state: about twelve and one-half months (382 days).

Riverside Appeals Court goes 3-for-3 with the Supremes

That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period.

While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from that division.

The main thrust of the story, covered by Ben Shatz at Southern California Appellate News, is how Justice Rushing of District 6 is the most-reversed Justice in the state for the last twelve months. Five of the decisions he wrote were reversed, as was the decision in a sixth case in which he sat on the panel.

I loved what Justice Rushing had to say about one of the reversed cases: “I would have decided [it] the same way even if someone had told me the Supreme Court was going to come down and beat me up about it.”

Another good quote from the article came from an appellate lawyer, Dennis Maio, who served for 20 years as a staff attorney at the Supreme Court: “If you are someone who writes very provocatively and stakes out a position, you are going to be noticed more, and because you are noticed more you are more likely than not going to draw criticism.”

For a more amusing take on how getting noticed is not always a good thing, here’s Steve Martin, in a scene from 1979’s The Jerk:

California Supremes keep Ninth Circuit Prop 8 appeal alive

The California Supreme Court’s much-anticipated opinion in Perry v. Brown was filed this morning. The court unanimously found that the Prop 8 proponents, who have a pending Ninth Circuit appeal from the federal district court decision finding the law unconstitutional, have standing to defend the law in court when the state attorney general refuses to do so. Answering certification of that question from the Ninth Circuit, the California Supreme Court concludes its long (61-page) decision with an unequivocal “yes”:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

As a result of the decision, Prop 8 proponents will be able to proceed with their appeal in the Ninth Circuit, where the proponents’ appeal has been hanging by a thread since the Ninth Circuit certified its question to the California Supreme Court last January, acknowledging that the appeal would have to be dismissed if the Prop 8 proponents lacked standing to defend the law.

Related post at Ninth Circuit Blog of Appeals.

Reminder: Supreme Court’s Los Angeles office closes for good today

Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.

Holiday Closure of Supreme Court’s Los Angeles Office

Be very, very careful with California Supreme Court filings over the holidays.  The Los Angeles office of the Supreme Court be closed some of that time, requiring you to file in San Francisco.  To get the closure dates,  download the PDF of the announcement.

By the way, the announcement also includes the news that the court’s L.A. office will also start closing for lunch between noon and 1 p.m. starting Monday, December 15, 2008.

Why Did the Supreme Court Punt on a Jurisdictional Issue?

Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question.

I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post.

In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable. Borrowing from court of appeal precedent finding that an order enforcing a legislative subpoena is appealable, the court applied the same reasoning to the administrative subpoena in this case. Because the order is the final resolution of the rights between the parties in an original proceeding instituted specifically to enforce compliance — whether that proceeding is deemed a “special proceeding” or an “action” — it is a judgment within the meaning of Code of Civil Procedure section 577 (“A judgment is the final determination of the rights of the parties in an action or proceeding”). It is thus appealable under Code of Civil Procedure section 904.1, subdivision (a)(1).

Interesting enough, but not fascinating. What I did find fascinating was the court’s description regarding the history of the appealability issue.

The court first notes the split of authority at the court of appeal level. While several court of appeal decisions decided such appeals without any explicit consideration of the appealability issue — presumably assuming the appealability of such orders — the remaining courts were split. Some found such orders appealable, others found such orders reviewable by writ only but construed the appeal as a writ petition in the interests of justice.

The amazing thing is that in spite of this split, the Supreme Court had twice entertained such cases and neither time decided the appealability issue. Obviously, the question af appealability was not one of the issues on which the Supreme Court accepted review, but appealability is a jurisdictional requirement that cannot be waived by the parties. The first time around, in Craib v. Bulmash (1989) 49 Cal.3d 475, I can see how the Supremes might not address it if neither party did (Pet Food describes the Supreme Court decision as silent on the issue) because it, like some courts of appeal, could have presumed jurisdiction. But the second time around, in Arnett v. Dal Cielo (1996) 14 Cal4th 4, the Supremes explicitly noted the split in the courts of appeal, decided that the “better view” was that such orders are appealable, but declined to decide the issue because neither party raised it!

Come again? Declined to decide a jurisdictional issue that was squarely presented and on which there was a split of authority in the courts of appeal? And here’s a fact that makes it even stranger: the authority the Supremes relied on as the “better view” had based its decision that the order was appealable in part on the Supreme Court’s previous failure to resolve the issue, i.e., the Supreme Court’s apparent assumption of appealability. In light of all this, the Pet Food court calls the Supremes’ avoidance of the issue “perplexing.” Oh, yes, I’d say so.

Perhaps Pet Food will be the case in which the Supreme Court finally decides the issue. It sure seems to have teed up the issue.

A Supreme Editor is Needed

Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects eight grammatical errors in the recent SCOTUS gun rights case, D.C. v. Heller, and links to an ad soliciting an attorney editor for the California Supreme Court, placed in what I would have thought was a rather unconventional place, considering the job.

E-Filing Briefs in the Supreme Court

blog-announce.jpgRule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief.

I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then.

Hat Tip: Jeffrey Lewis at Nota Bene.

Correction re: Live Coverage of Marriage Cases Oral Argument

Thank you to alert commenter Stephen Ehat for pointing out an error in my post announcing television coverage of the marriage cases oral arguments before the California Supreme Court on March 4. I originally posted that the arguments would be taped for later broadcast, but they will actually be broadcast live. For details, see the announcement at the California Courts website.

Televised Coverage and More Regarding Supreme Court Marriage Cases

According to this link at the California Courts website, oral argument in six cases concerning the constitutionality of California’s marriage statutes will be televised on the California Channel shortly after they are heard on on March 4.  The court has also made many of the briefs available online, which you can access from the same link.

UPDATE (2/27/08):  An alert commenter points out that the television broadcast will be live instead of delayed.

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.

Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage.

Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers.

Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose the change.

And all the way from Texas, the StandDown Texas Project links to some California newspaper articles and coverage by the Associated Press.

Supreme Court Gets Rid of Conflicts by Dismissing Case

Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete.

The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants.

The Supreme Court’s actual order is not posted as a final disposition on the court’s website, nor does it appear to be available on Westlaw. But here’s how the docket web page for the case describes it, which may or may not be verbatim from the order:

Review in the above-captioned matter is dismissed in light of circumstances, arising since review was granted, that require a majority of the permanent members of the court to recuse themselves. (See Cal. Code of Judicial Ethics, Canon 3.E(4)(c), (5)(d); Cal. Rules of Court, rule 8.528(b).) Kennard, Baxter, Chin, and Corrigan, JJ., were recused and did not participate. Hon. William R. McGuiness, Administrative Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Votes: George, C.J., Werdegar, Moreno, and McGuiness, JJ.

The article is devoted in large part to the unusual reasons for the dismissal. It quotes Santa Clara University law professor Gerald Uelman’s astonishment at the reasons for the dismissal, as well as Chief Justice George’s defense of it on the ground that a decision on the merits by appointed justices would not carry the same weight as a decision of the regular court members. The latter strikes me as an odd position to take in light of the fact that, as the article points out, the court has appointed 7-member panels in the past. The article claims that has happened in cases in which the entire court was “conflicted,” but writes that Chief Justice George distinguishes those prior occasions because “the new panels [on those prior occasions] were created out of necessity and not conflicts of interest.” (That is Ms. Ernde’s characterization of Chief Justice George’s position, not a quote attributed to him.)

The article quotes several of the attorneys involved in the case, none of whom saw the dismissal coming. My favorite quote is from Horvitz & Levy attorney David M. Axelrad, representing Exxon, who is quoted as saying, “Some people say that appellate litigation is not exciting. Well, that’s not actually true.”

The article also discusses the nature of the issue on the merits. The online case summary page for the case describes the issue this way:

Does Evidence Code section 801, subdivision (b), permit a trial court to review the evidence an expert relied upon in reaching his or her conclusions in order to determine whether that evidence provides a reasonable basis for the expert’s opinion?

A pretty good summary of the implications of the question appears here, at the website of environmental law firm Barg Coffin Lewis & Trapp LLP.

Ms. Ernde’s article is behind the subscription wall at the Daily Journal, so if you are not a subscriber, you’ll need to get your hands on a physical copy of the November 5 edition. Thanks to Laura Ernde for alerting me to this.

UPDATE (11/8/07): Cal Bz Lit has a post on the merits of the evidentiary issue in the case. The post includes a link to his original post on the case (which includes a nice history on the development of expert witness “gatekeeping” authority of California judges).

UPDATE ( 12/14/07): The Supreme Court — part of it, anyway — has denied a request to republish the Court of Appeal opinion.

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 matter of law that the Edison employee who injured the plaintiff was not acting within the scope of her employment at the time (currently responsible – Orlando attorney Harvey Cohen).

Writes John Bisnar in the post:

When an appellate court issues a decision like that, it used to be a traditional expectation to express that in a written opinion, elaborating the reasoning behind that decision. Unfortunately, most recent rules imposed by the State Supreme Court have changed that expectation. Now, only opinions that “make law” are published.

Actually, the standards for publication have recently been liberalized. Changes to California Rule of Court 8.1105(c) that took effect last April were, according to this December 2006 press release from the Judicial Council, intended to:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

The Bisnar | Chase blog post does not specify the actual causes of action pleaded in the complaint or the relief sought. If I can get my hands on a copy of the complaint, I’ll fill you in.

UPDATE (10/19/07): Welcome to everyone following the link from Appellate Law & Practice, and thanks to “S. COTUS” for the link.

I didn’t realize when I put up this post that Howard Bashman pointed out this lawsuit more than a week ago at How Appealing. When he saw my post, he was kind enough to e-mail a link to news coverage by McClatchy that explains at least part of the relief sought by the plaintiff. Before I was able to update this post with information from the article, I saw that the suit is the subject of Bashman’s column this week. He bases his analysis, however, on the McClatchy piece and the attorneys’ blog post, not the actual complaint.

Now I’m really interested in seeing this complaint. I’ll check its availability on PACER over the weekend. Look for another update before Monday.

UPDATE (10/20/07): This is frustrating. I found the case on PACER for the U.S. District Court for the Northern District of Califronia: Hild v. California Supreme Court, case no. 3:07-cv-05107-TEH, assigned to District Judge Thelton E. Henderson. Magistrate Judge Joseph C. Spero recused himself. The docket sheet describes the case as one for declaratory judgment.

That’s the best I can do from the information on PACER, because the complaint is not downloadable. (This is a pet gripe of mine. The documents in any given PACER docket that are downloadable seem completely random. Documents critical to understanding the case, like a complaint, are sometimes not downloadable, while documents relevant to nothing but scheduling are. Does anybody know if this is deliberate, or what PACER’s policy is?)

In any event, the McClatchy piece and Bashman’s column (definitely worth a read) together suggest that the plaintiff is seeking publication of his appellate court decision in order to increase the odds of Supreme Court review and perhaps even a right to have the appeal reheard on new briefs that include citations to unpublished cases and treating those cases as precedential. But I have to say that requires some reading between the lines and may not be accurate at all.

I’ve requested a copy of the complaint from Bisnar | Chase. If anyone knows somebody who may have a copy of the complaint — perhaps a reporter at the Daily Journal? — I’d appreciate it if you would e-mail me contact information for that person. Surely, there must have been an article in the Daily Journal about this case. I don’t have an account with them, so I would appreciate it if someone could e-mail me a link to news coverage in the Daily Journal — or any other source for that matter.

UPDATE (10/22/07): A colleague was kind enough to send me the October 5 Daily Journal article about this lawsuit.  About the only new thing I learned from it is that the suit apparently claims that under the liberalized guidelines I mentioned in the original post, the Court of Appeal should have published the Hild decision because it “‘dramatically broke new ground’ holding the facts of the unintentional accident were ‘indistinguishable as a matter of law’ from rape/sexual battery and intentional tort cases.”  (That quote is from the article, apparently quoting from the complaint.)

This will be one to watch, but absent new developments, I don’t think I’ll be adding anything.

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 the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!

Chief Justice George’s State of the Judiciary Address

Chief Justice George’s 12th annual address on the state of the judiciary, given at last week’s state bar conference, is available through the California Courts website. The transcript of his address is here. If you’d like to read a synopsis before (or instead of) reading the transcript, a PDF download of the post-address press release is available here.

2007 Annual Report on Judicial Branch

This press release (PDF dowload) from the Judicial Council of California announces the release of its 2007 Annual Report (PDF Download).

[The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians. 


The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.

Adult Bookstore Case Results in Certified Question to State Supreme Court

Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.”  Most lawyers are already familiar with this procedure, at least in principle.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

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 the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

Will the Supreme Court Revisit Clemmer v. Hartford Insurance Company?

Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.  In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal.  Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 154, p. 220.

Nearly thirty years of disrespect for Clemmer so far hasn’t been reason enough for the Supreme Court to revisit the issue, but the Second District Court of Appeal, Division Seven, may have just forced the Supreme Court’s hand by going out of its way to actually follow Clemmer in City of Los Angeles v. Glair, case no. B190031 (July 25, 2007), dismissing an appeal because the order denying a statutory motion to vacate is not appealable.

There’s more to this case.  Though the Court of Appeal dismissed, it didn’t do so before first trying every which way to find jurisdiction, including a generous characterization of the appellant’s post-trial motion as a motion to vacate.

First, the procedural facts . . .
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2007 California Court Statistics Report Now Available

The 2007 Court Statistics Report: Statewide Caseload Trends, 1996-1997 through 2005-2006 from the Judicial Council of California is now available for download here.  This 156-page report has all sorts of interesting statistics on activity in the courts.  What percentage of petitions for review are granted by the Supreme Court?  What percentage of writ petitions are summarily denied?  What percentage of appeals result in reversal?  How many traffic misdemeanor cases were filed in 2005-2006?  For answers to these and other questions over the most recent 10-year period for which statistics are available, download the report.


This article at discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892.  Forty organizations have filed amicus briefs, either individually or jointly.  As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian?

Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case?  This case has a lot, but I suspect the record number is a lot higher.  The article doesn’t say.  Anyone out there know?

California Supremes on the Right to Rehearing on Unbriefed Issues

When is a party entitled to a rehearing from the Court of Appeal?  One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081:

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.  If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any

Seems rather straightforward, right?  Perhaps that’s why the Supreme Court confesses in today’s unanimous opinion in People v. Alice, case no. S144501 (July 5, 2007), that “we never have examined [Government Code section 68081’s] meaning in depth.”  It then proceeds to do just that, providing some valuable lessons . . .

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