The Appellate Practitioner brings to our attention the Sixth District Court of Appeal’s decision in Sisemore v. Master Financial, Inc., case no. H029138 (June 12, 2007), in which the court “saves” a premature appeal. Sisemore appealed from an order sustaining a demurrer to her complaint without leave to amend. The court saves the premature appeal by construing the order to incorporate a judgment of dismissal. This is an accepted practice. Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.
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Ninth Circuit Allows 35-Year-Old Conduct to Enhance Child Porn Conviction
The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.” That seems to be putting it mildly. In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography. The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines. Nothing from Ninth Circuit Blog yet (which is almost certain to…
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Return of “Underneath Their Robes” Blog?
Yesterday, the irreverent blog about the federal judiciary, “Underneath their Robes,” had its first new post in nearly nine months. The sole commenter takes the blogger, David Lat, to task, complaining that the self-congratulatory post referencing Lat’s article in the New York Times was an inappropriate way to end the blog’s 9-month silence. I’m surprised there are not more comments regarding the absence. Perhaps people aren’t bothering to check UTR any more. Could this new post mean it is coming back, or does it mean instead that we’ll get a new post only when Lat wants to plug one of his articles?
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Prop. 64 Knocks Out Unfair Competition Plaintiff Initially on Standing; Insufficient Substantive Allegations Finish Him Off
In Schulz v. Neovi Data Corp., case no. G033879 (June 15, 2007), a decision following remand from the California Supreme Court, the Fourth District Court of Appeal tackles the issue of whether plaintiff can amend his complaint to state a cause of action against online payment services Neovi, PayPal, Inc., PaySystems, Inc., and Ginix, Inc. for abetting an alleged unlawful “matrix scheme” run by EZExpo.com by allowing their payment services to be used by participants to make payments into the scheme. (This Wikipedia entry gives more background on matrix schemes and claims that EZExpo.com is widely believed to be the first such known scheme. The decision itself also describes the…
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Empirical Study of the Fair Use Doctrine
The Fair Use Blog should be a regular destination for any attorney interested in copyright law. This post tips us off to an amazing article by Professor Barton Beebe of the Benjamin N. Cardozo School of Law, Yeshiva University: An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005. Professor Beebe provides detailed statistical analysis. From the summary on his website: This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is wrong. Working from a data set consisting of all reported federal opinions that made substantial use of the Section 107…
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Legal Blog Nominations
OK, this is just a little outside my normal subject matter. But since I figure most of my visitors are regular readers of legal blogs, I thought I should tip you all off to the fact that Legal Antics is soliciting nominations for its upcoming list of “Top 10 funniest law blogs.” Look for me to add a “Legal Humor” category to the blogroll in the next few days.
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Time Travel Exists . . . if You’re a Judge
Code of Civil Procedure section 377.34 limits damages in the case of actions by a decedent’s personal representative to “the loss or damage that the decedent incurred before death.” So what to do if you’re widowed days after a jury verdict awards your husband millions in damages for prospective loss but before judgment is entered? You ask the court to invoke the judicial equivalent of time travel: the entry of an order nunc pro tunc to a date before your husband died. In Cadlo v. Metalclad Insulation Corp., case no. A111353 (June 11, 2007), the First District Court of Appeal holds that a valid exercise of the court’s power to…
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Citations to Large, Multi-Volume Appellate Records
New Orleans appellate attorney Raymond Ward has a very logical post at the (new) legal writer explaining why an attorney should, even if not required by the rules, include volume numbers in citations to multi-volume appellate records. I know I would prefer to receive a brief that did this than one that does not.
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Elaborate Hoax Upheld as Constitutional Seizure
I was tied up with some things Friday and missed an early review of a Ninth Circuit opinion filed that day in which the court finds an elaborate hoax staged to seize a vehicle is constitutional. If you missed it, too, this teaser from the concurring opinion should interest you in U.S. v. Alverez-Tejeda, case no. 06-30289 (June 8, 2007); The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within…
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The Move is Complete — Welcome to the Self-Hosted California Blog of Appeal!
I got everything done, and from now on I’ll be posting exclusively here at the self-hosted site. No more posts will be made to the WordPress site, except in order to direct traffic here. Some things you may need to do: Bookmarks: If you had the WordPress URL bookmarked, you need to update your bookmark for The California Blog of Appeal to http://www.calblogofappeal.com. Posts Feed: If you were a subscriber to the feed from the WordPress site and wish to continue receiving a feed, you need to update the feed URL to http://feeds.feedburner.com/TheCaliforniaBlogOfAppeal. You can subscribe to the posts feed automatically using either the newsreader button or web aggregator button…
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An Appealable Discovery Order
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…
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The Proper Action When an Appeal is Mooted
Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law. The district court dismissed the…
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Processing Irony in a Ninth Circuit Equal Protection Case
Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007): The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904. This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection. Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed…
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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…
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Disrespect . . . With All Due Respect
“I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.” This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm. Answer: (d). The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked. See Above the Law for the full story. Some commenters there actually take the judge…
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Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)
Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal. Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially…