Most parties faced with an adverse discovery ruling have to grin and bear it. Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile. In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. Doe sought to quash a subpoena directed to an internet company. The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards. No lawsuit…
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Is it Just Me, or is this a Mouthful?
In Roddy v. Superior Court, case no. D049796 (decision filed May 16, 2007, ordered published on June 7, 2007) the jury commissioner sought writ review of a trial court order enforcing a subpoena duces tecum served on him. The suboena sought DMV information in the jury commissioner’s possession. It was served on behalf of criminal defendants who were challenging the constitutionality of the procedures employed by the jury commissioner. The Fourth District Court of Appeal summarizes its conclusion this way in the introduction: We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation…
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Trial Lawyers, Did You Know About This?
A site that tracked back to this post of mine looks like it might be of interest to my trial lawyer readers. The site juryexperiences.org subheads its page, “What Really Happens On Juries.” It opens to a “News & Opinion” section that is headed “Selected clippings from blogs and the press, with links to sources” (which is where they linked to me). The most intriguing area, at first glance, appears to be this link: Read, post and discuss jury experiences on our discussion forum! That might be worth exploring1
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Claiborne Case Sparks Debate
In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines. The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its…
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Other Judicial Council Proposals Awaiting Comment
In addition to the three proposals I posted about today, the Judicial Council is soliciting comments on several other proposals. They are consolidated here. There is also a downloadable fact sheet on “How a Proposal Becomes a Rule.”
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Judicial Council Soliciting Comments on Proposal for Electronic Submission of Appellate Briefs to Supreme Court
Parties to an appeal are currently required to serve the Supreme Court with four copies of the briefs they file in the Court of Appeal. A proposed change to rule 8.212, California Rules of Court, would allow the parties to submit a single electronic copy to the Supreme Court instead. Good idea, and the technical requirements in the proposed rule seem to make sense. The California Judicial Council is seeking comments on the proposed rule change. Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail. The deadline for submissions is July 13, 2007.
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Judicial Council Soliciting Comments on Proposed Changes to Rules for Appeals to Appellate Division of the Superior Court
The California Judicial Council is seeking comments on proposed changes to the rules governing appeals to the appellate division of the Superior Court, which hears appeals from limited civil cases and misdemeanors. I haven’t had a chance to look at the proposals yet, but here’s the description from the Judicial Council’s website: This proposal would completely revise all of the rules relating to the superior court appellate divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal. A complete…
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Judicial Council Soliciting Comments on Proposed Civil Jury Instruction Revisions
The Judicial Council of California is seeking comments on proposed changes to civil jury instructions regarding punitive damages. The proposed changes are intended to bring the instructions in line with the U. S. Supreme Court’s 5-4 decision last February in Philip Morris USA v. Williams, which held that the imposition of punitive damages to punish a defendant for harm to non-parties is unconstitutional because it is a taking of property without due process. Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail. The deadline for submissions is July 13, 2007.
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Appellate Jurisdiction: Order Denying Motion to Vacate
An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663. But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception. The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered. Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process. The…
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Liberalized Standards for Publication of Appellate Opinions
Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week. The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29. I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results? Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c). The changes are summarized by the advisory committee at p. 57 of its report. They: (a) Replace the presumption against publication with a presumption…
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Some Appellate Law Reminders Coming Up
Last week saw several published decisions with good discussions of appellate procedure and jurisdiction. The most in-depth is the Ninth Circuit case I blogged about here, but there are several California decisions to note. I finally got a chance to catch up on some of them over the weekend, and will post about them in the next few days. (They ought to remain good law for at least that long!) They are great reminders of some lesser-known rules applicable in unusual situations.
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Military Additions to the Blogroll
Let me join Appellate Law & Practice in welcoming the Military Justice Blog to the legal blogosphere. According to the blog’s subheading, the Military Jusice Blog will include miltary appellate issues. It appears to be an anonymous blog with the profile name “Sacramentum,” which, according to the profile, “was an oath taken by all Roman legionaries on entering the Roman army and was the foundation of military discipline.” AL & P’s post also referenced CAAFlog, a well-established blog by seven contibutors following developments in the United States Court of Appeals for the Armed Forces (CAAF). I remember reading while I was a Marine Corps officer (in fact, it might have…
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Changes Made and Changes Coming to The California Blog of Appeal
I’m in the process of setting up my own web host for The California Blog of Appeal. Right now, the blog is hosted on WordPress.com. at the URL http://calblogofappeal.wordpress.com. Those of you who have found the blog through a link from another site already know this. But those of you accessing the blog through the URL http://www.calblogofappeal.com may not. I have domain forwarding set up on the calblogofappeal.com domain name and, until tonight, also had domain masking enabled. That means that if you typed in the URl http://www.calblogofappeal.com, you were forwarded to the WordPress URL but it was hidden from you. The chief drawback to this domain forwarding and masking…
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The Principle behind Homonyms — and a Pet Peeve: Sole Solos
Have fun reading Professor Martin’s teasing about a grammatical error repeated in two recent Ninth Circuit opinions. I agree with the professor. A mitigating circumstance, however, is that the mistake relates to a homonym pair for which I’d venture one word or the other is present in almost every legal opinion, so the odds of a mistake once in a while are high, even though the overall error rate might be low. While on the grammar front, here’s a pet peeve. Every time I see a reference to a “sole practitioner,” I think of someone who’s the only lawyer in town. Or maybe a shoe repairman. Judging by most of…
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Ninth Circuit Panel Splits on Appellate Jurisdiction over Denial of FSIA Immunity Claimed via Res Judicata
The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007). The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule. Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) . The airline contended that an identical state court action brought by Gupta was res judicata on this issue…