California Appellate Report notes an order from the Fourth District Court of Appeal yesterday in which it modified its original opinion by eliminating a snide comment about lawyering skills. As Professor Martin points out, this is an unusual amendment. Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t…
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Court of Appeal Takes On Dispositive Motions in Limine
I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it. Just prior to trial, the defendant moved in limine to exclude all evidence on one of plaintiff’s claims (the “section 11 claim”) on the ground that the claim was barred by the statute of limitations. The trial court granted the motion. After a jury trial and judgment for defendant on the remaining claims, plaintiff argued on appeal that “the trial court’s use of an in limine…
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Ninth Circuit Oral History Project
This post at the Legal History Blog links to an article in National Law Journal about work on oral histories of the Ninth Circuit, specifically the work of Stanford law professor Michele Dauber with Judge Stephen Reinhardt. As one might expect, the always-present “controversy” over the Ninth Circuit is discussed in the article. Professor Dauber notes one result of that controversy, in what I think is an interesting way to think about it: “People in Maine know about the 9th Circuit. That’s weird,” Dauber said. “No one in California knows anything about the 1st Circuit.”
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More on Appealable Denials of Summary Judgment
Wow, who’d have thought two cases in two days involving interlocutory appeals from denial of summary judgment premised on qualified immunity grounds? Bingue v. Prunchak, case no. 05-16388 (9th Cir. Jan. 15, 2008) actually came out a day earlier than the case in my immediately prior post, but I’m catching up in reverse chronological order, so I saw it second. Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed. In Bingue, the plaintiff complained that the court could not review the denial of…
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Appeal from a Denial of Summary Judgment?
Can’t do it, right? Petition for a writ of mandate, instead. Right? Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and…
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Slogging through Blogging
OK, that’s a litte bit of an overstatement. But Mark Hermann, a partner in my erstwhile employer, Jones Day, has this article in the National Law Journal about lessons learned during his first year of co-blogging at Drug & Device Law blog, and the first of those is that blogging is hard work: First, blogging — or, at a minimum, blogging about substantive legal issues — is hard. Perhaps it’s easy to host a blog that simply pokes fun at current events by commenting on, and linking to, the news of the day. I wouldn’t know; I’ve never done that. Amen and amen! He follows the article up with this…
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Mootness with a Local Angle
Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites). As luck…
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Half a Primer on Moral Turpitude Analysis
In Cerezo v. Mukasey, case no. 05-74688 (9th Cir. Jan. 14, 2008), the issue before the court is whether a violation of California Vehicle Code § 20001(a) (leaving the scene of an accident resulting in bodily injury or death) is categorically a crime involving moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). In concluding it is not, the court walks the reader through the standards for a “categorical approach” to analysis of the issue. When a court fails to find moral turpitude through the categorical approach, its next step is to examine the issue under the “modified categorical” approach. Unfortunately, the court has to cut its modified categorical analysis…
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Legal Acronyms for the Communication Age
Legal Writing Prof Blog has an amusing synopsis of an article titled “Legalese in the Age of IM (Instant Messaging).” If you are internet savvy and familiar with such acronyms as “rotfl” (rolling on the floor laughing) or “omg” (oh my God), then you’ll get a kick out of law-specific acronyms like OFG, 2SL, WADR, and others. Can you guess what they are before looking?
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Ninth Circuit Judicial Complaint Disposition Orders Published Online
Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month. Three orders are already up. The main page includes links to the governing rules, a page listing the orders, and a downloadable complaint form.
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The Liberty of the Court of Appeal
Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis: The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now. The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion…
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SCOTUS on Stare Decisis
The Blog of Legal Times has a good summary of the discussion of stare decisis in Tuesday’s U. S. Supreme Court opinions in John R. Sand & Gravel Co. v. United States, case no. 06-1164 (Jan. 8, 2008), including what it sees as an unusual alignment of the justices. The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision. The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases. I remember my legal writing professor emphasizing…
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Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause
After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten. The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports. The other psychiatrist opined he was incompetent. Oglesby fought his court-appointed attorney every step of the way. He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join. In fact, his lawyer insisted that Oglesby was not competent. He…
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More on California’s Private Attorney General Statute
This post at The UCL Practitioner notes an article about a case being argued today in the California Supreme Court (Olson v. Automobile Club of Southern California, no. S143999) addressing whether expert witness fees are recoverable under the state’s private attorney general statute, Code of Civil Procedure section 1021.5. If the private AG statute interests you generally, make sure you didn’t miss this post from yesterday, which appears immediately below this one on the home page.
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Recovery of Fees for Pre-Litigation Activities
In this post at The Opening Brief, Tom Caso discusses an attorney fee case that I missed last month (geez, it hurts to admit that). The case, Hogar v. Community Development Commission, case no. D049452 (4th Dist. Dec. 14, 2007), involves the issue of whether fees for pre-litigation activities may be recovered under California’s private attorney general fee provision, Code of Civil Procedure §1021.5. Tom’s post also discusses a key difference between attorney fee recovery under Section 1021.5 and recovery under its federal counterpart. Tom knows about attorney fees in public interest cases, having been chief counsel for Pacific Legal Foundation.
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A Philosophical Link between Golf and Sentencing Reform
Who’d have thought? But the Sentencing Law and Policy blog spots the link in the 2008 revisions to the Rules of Golf. Hint (especially for you non-golfers): the Rules of Golf can be hard to understand and are chock full of penalties for various infractions.
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Post-Arbitration Petition Attorney Fee Order is Appealable
In Otay River Constructors v. San Diego Expressway, case no. D049612 (4th Dist. Jan. 7, 2008), the Court of Appeal holds that an order denying an award of contractual attorney fees to a party who succeeded in defeating a petition for arbitration in an action brought solely for that purpose is appealable. The court reasoned that where an action is brought solely to enforce a contractual arbitration provision, then a defendant’s defeat of that petition is effectively a final judgment because it disposes of the only issue before the court, even if further litigation is contemplated. Thus, an order denying an award of attorney fees to the party who successfully…
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My Attorney Fee Article in CITATIONS
I have an article in this month’s issue of CITATIONS, the monthly magazine of the Ventura County Bar Association, and for which I serve on the editorial board. The article is an expanded version of this post on Cruz v. Ayromloo, 155 Cal.App.4th 1270 (2d Dist. Oct. 3, 2007). The article, titled“Pro Bono Attorney Fees” Is Not an Oxymoron, highlights the Cruz court’s dictum on the recovery of attorney fees in pro bono cases and examines the implications of that reasoning for future cases. You can download a PDF copy of the article here.
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Compare and Contrast: Virginia and California
Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth. If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief. The court dismisses the appeal because the “petition…
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Skilling’s Reply Brief
If you’re a fan of legal writing and/or legal blogs, you’ve probably read this elsewhere already. But I’m still playing catchup from the holidays and thought some of you might be, too, so here goes. Jeff Skilling filed his reply brief in his Fifth Circuit appeal of his convictions. You might remember earlier posts about the extraordinary length of his opening brief here and here, the former of which also has a round-up of commentary on its substance. According to White Collar Crime Prof Blog, the 161-page reply is the shortest brief filed in the case yet. The blog follows up with some commentary on the substance of the…
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Appellate-Related New Year’s Resolutions
I discovered a few on-line resolutions by some appellate bloggers: At The Opening Brief, taking his own advice that improvement of one’s writing is a career-long endeavor, Sacramento appellate attorney Tom Caso resolves to work actively on his writing during the year. At the (new) legal writer, New Orleans appellate attorney Raymond Ward resolves to keep in perspective such legal writing trivialities as whether to put one or two spaces after a period, where to place citations, and whether to fully justify text. Attention to detail is important, he says, but there’s room to disagree on things like this. I’d like to say that I didn’t come up with any…
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Apple v. Bloggers Settlement includes Shutdown of Apple Rumor Blog
This isn’t really appellate-related, but I figure that at least some of you must be, as I am, a Mac-using lawyer, and will find this of interest. In this post at The UCL Practitioner, Kimberly Kralowec updates some of her earlier reporting on the Apple lawsuit against some bloggers that had leaked internal Apple information. She provides links to a few articles about the settlement, reminds us that “in 2006, the Court of Appeal ruled that the bloggers were ‘journalists’ and that California’s shield law therefore protected their sources,” and links to some of her earlier coverage about the case.
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Easing Back into Things with Some Reminders from the Judicial Council
OK, I’m going to ease back into posting here with some easy ones. The California Courts website now has up-to-date versions (i.e., the versions effective as of January 1, 2008) of the following posted: Judicial Council Forms. This is a nice list, as it is only of the forms that have changes or been added, and the page includes a link to download all of the changed and new forms in a single zip file with one click. This list includes two forms for appeals, APP-003 — Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) and APP-008 — Certificate of Interested Entities or Persons. The latter is a brand…
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Happy New Year, Everyone!
I hope everyone is off to a good start. After 10 days or so off from blogging, I’m ready to get started again. Did I miss it? Surprisingly, no. I mean, I’m glad to get started again, but I was so busy while getting ready for “vacation” (that word is in quotes because I worked on two days), that I was just happy to rest. I just checked my stats, and traffic was predictably light from just before Christmas through today. At least nine people out there must not have had a very good Christmas, since they hit my blog that day. Watch for posting to resume soon.
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Merry Christmas and a Christmas Posting Hiatus . . . Maybe
Not “maybe a merry Christmas.” The “Merry Christmas” part is unqualified. The “maybe” refers to my anticipated posting hiatus while I am visiting family the entire week of Christmas. Not sure if I’ll blog or not. As much as a week’s break from blogging sounds to me like welcome relief right now — I put an awful lot of work into this — I feel like blogging is now “in my blood.” I’m not sure I can stop for a whole week! (Does this mean I fit into Judge Kozinski’s perception of bloggers?) I will have access to a computer and the internet, so the temptation will be there. I’ll…
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Amendments to California Rules of Court Taking Effect January 1, 2008
Go to this page at the Judicial Council website to download amendments to the California Rules of Court, including this announcement of changes to more than 40 rules in Title 8 (Appellate Rules) that take effect on January 1, 2008.
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Review Granted Regarding “Suggestive” Palma Notice
A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped. Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing…
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What goes around . . .
. . . comes around, as they say. Start by suing your brother for defamation, intentional infliction of emotional distress, and intentional interference with contract. End up with a cross claim against you for defamation and intentional infliction of emotional distress. But at least you’ve got insurance, right? Not if you’re Richard Stellar, plaintiff in Stellar v. State Farm General Ins. Co., case no. B195728 (2d Dist. Nov. 27, 2007, ordered published Dec. 18, 2007). If you’re Stellar, you just think your homeowner’s policy should cover the claim. Here, the Court of Appeal holds that State Farm has no duty to defend because the alleged torts do not constitute an “occurrence”…
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California’s 90-Day Rule
The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.
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Roommates.com Developments
How Appealing has a detailed post regarding the recent order in the Roommates.com case, in which the Ninth Circuit refused leave for Amazon.com to file an amicus brief in the en banc rehearing proceedings. I’ve posted about the case here, here, and here. Professor Eric Goldman has really been staying on top of it, with lots of links to court documents at his Technology & Marketing Law Blog. Oral argument was held on Wednesday. Here’s a link to audio of the oral argument posted at the Ninth Circuit website.