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divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal.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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Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment
In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it is not made until after resolution of the appeal of the order denying the anti-SLAPP motion. Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box. Jack in the Box…
- Appellate Procedure, California Court of Appeal, California Procedure, Judges, Legal Writing, Record on Appeal
Settled Statements, New Trials, and the Languishing Criminal Defendant
When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(h). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007). On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained. At the…
- Appellate Jurisdiction, Appellate Procedure, California Court of Appeal, California Procedure, Elections, Writ Practice, Writ Review
Election Contest Not Appropriate for Writ Review
In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges. In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been…
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Court Upholds $143,809 in Costs Awarded for Preparation of a Single Exhibit
It sounds crazy in the abstract, not so much in the context of the case decided in the Fifth District of the California Court of Appeal, El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., ___ Cal.Rptr.3d ___, case no. F049334 (May 4, 2007). The court characterized the action as a “complex suit” in which plaintiff alleged a variety of business torts including antitrust, RICO and unfair competition claims. The single exhibit was actually “a 37-page document containing charts and graphs that were projected on a screen during trial” and was prepared from 160,000 pages of business and financial records produced by the parties in discovery. The costs…
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California Notice of Appeal May be Filed on Behalf of Trust by Non-Attorney Trustee
The Second District of the California Court of Appeal holds that a trustee may sign and file a notice of appeal on behalf of the trust even though the trustee may not represent the trust in court. Indyway Investment v. Cooper, case no. B192944 (April 24, 2007). The opinion first explains the rationale for why a trust may not appear in propria persona by a non-attorney trustee, then provides a range of decisions in which notices of appeal were filed by non-attorney representatives and found valid based on a recognized “distinction between the capacity of a person acting in propria persona to sign and file a notice of appeal and…
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Rules Changes? What Rules Changes?
The California Rules of Court were reorganized and renumbered effective January 1, 2007. Yet last night, a superior court judge from a neighboring county told me that approximately half of the memoranda that cross his desk still use the outdated numbering scheme. He blames it partly on a “cut and paste” approach to brief writing. Whether it’s from cutting and pasting or not, the continued reference to old rule numbering – more than four months after the new numbering took effect – is very revealing about the lack of cite-checking being done by lawyers and their paralegals. Alarmingly so. Or are they doing their cite-checking, but using outdated code books…
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California: Pay for Missed Breaks is a Wage Rather than a Penalty for Statute of Limitations Purposes (Updated)
A second important holding out of Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), is that the “one additional hour of pay” provided for in Labor Code section 226.7 constitutes a wage or premium pay, a claim for which is subject to a three-year statute of limitations (Code Civ. Proc., § 338) rather than a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340). The court finds the language of section 226.7 ambiguous and thus sets out on a lengthy and comprehensive analysis of: extrinsic sources, such as the ostensible objectives to be achieved by the…
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De Novo Appeal from California Labor Commissioner “Berman Hearing” Can Include New Claims
An employee may bring a wage claim in superior court or before the Labor Commissioner. Where he does the latter, a “Berman hearing” is held and “the parties may seek review [of the labor commission order] by filing an appeal to the superior court, where the appeal shall be heard de novo.” Labor Code § 98.2(a). In Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), the California Supreme Court unanimously holds that in a section 98.2 de novo appeal from a Berman order, the superior court may also hear claims not raised by the employee in the Berman proceedings. Taking…
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California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion
When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right…