Purely administrative stuff here, folks. In 1979’s The Jerk, Steve Martin’s character, Navin Johnson, sees his name in the phone book for the first time and exclaims, “This is the kind of publicity that gets people noticed!” Well, that’s what they say today about Technorati and blogs. So here’s my post for the Technorati spiders to claim my blog and send me on the way to internet fame . . . Technorati Profile Here we go! Hold on!
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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judge from a neighboring county told me that approximately half of the memoranda that cross his desk still use the outdated numbering scheme.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 Or are they doing their cite-checking, but using outdated code books…
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Is it Futile to Cite Federal District Court Opinions? (Updated)
At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…
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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 Court Upholds Deadly Weapon Sentencing Enhancement for Animal Cruelty Conviction
Division Four of the Second District Court of Appeal has just upheld a deadly weapon sentencing enhancement under Penal Code section 12022(b)(1) for a conviction of animal cruelty under Penal Code section 597(a). The court rejected the defendant’s contention that a deadly weapon enhancement could only apply to crimes against humans. Animal cruelty under section 597(a) is a felony, and section 12022(b)(1) only requires that the deadly or dangerous weapon have been used “in the commission of a felony or attempted felony.” In this matter of statutory construction, the court stated that “If we were to follow appellant’s interpretation, we would be required to insert the words ‘against a person’…
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California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional
In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining…
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The Ninth Circuit’s Split Personality on Deadline for Removal
Professor A. Robert Benjamin of the University of Richmond School of Law runs a blog every federal practitioner should love. The Split Circuits blog is a fine resource on — you guessed it — splits among the federal circuits. In a post earlier this month, Professor Benjamin pointed out a split of authority within the Ninth Circuit on the deadline for removing a state court lawsuit to federal court. Under 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such…
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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…
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Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry
Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007). UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here. CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.
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When is a Bankruptcy Court Order an Appealable Final Judgment?
The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.
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The California Blog of Appeal Will Now Come to Order!
Greg May, presiding. Welcome to my blog. I suggest you start by reading this post, then reading the “about” boxes in the left column, then clicking on the “About Greg May and G. T. May Law Offices” link at the top right of this page. (UPDATE: All the references in this post to other links on the blog are based on the blog’s original layout and no longer apply.) The areas I intend to cover in this blog are: 1. Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals. 2. Procedural law relating to the prosecution of appeals, writ petitions,…