The UCL Practitioner

Two new opinions on no-class-action arbitration clauses: Fisher v. DCH Temecula Imports LLC and Walnut Producers of California v. Diamond Foods, Inc.

The Court of Appeal has recently handed down two new decisions addressing arbitration clauses with class action bans. 

In the first, Fisher v. DCH Temecula Imports LLC, ___ Cal.App.4th ___ (Aug. 13, 2010), the Court of Appeal (Fourth Appellate District, Division Two) held that the CLRA's no-waiver provision (Civ. Code section 1751) and its class action provision (Civ. Code section 1781) trumped a class action ban in an arbitration clause:

[T]he clear language of the CLRA does not allow a consumer to waive the provisions of the CLRA in advance, including the right to bring a class action. Since the plain language of the statute provides that a consumer “may” bring a class action if there is damage to other consumers similarly situated, he or she cannot be asked to waive this class action right in advance.

Slip op. at 24.  This is an interesting argument that no appellate court had expressly adopted before.  The Court held the entire arbitration clause unenforceable.  Id. at 24-25.

In the second case, Walnut Producers of California v. Diamond Foods, Inc., ___ Cal.App.4th ___ (Aug. 16, 2010), the Court of Appeal (Third Appellate District) held that an arbitration clause with a class action ban in a commercial contract was not unconscionable.  Slip op. at 12-25.  The Court also held that an order striking class allegations from a complaint is appealable and reviewed de novo.  Id. at 5-8.

The Complex Litigator also has a short post on these two decisions.

Southern California Appellate News speculates on possible Supreme Court nominees

Nate Scott, a Senior Attorney for the Fourth Appellate District, Division Three, is the author of Southern California Appellate News, providing "news and resources for the Southern California appellate lawyer, featuring the Second and Fourth District Courts of Appeal." 

He has two recent posts ("Replacing the Chief: The Elite Eight" and "Supreme Speculation") with thoughtful discussion of possible nominees to the California Supreme Court in place of Chief Justice George, who is retiring. 

UPDATE:  Yesterday's Recorder also has an article, "They Might Be Chief" (subscription), by Mike McKee and Cheryl Miller.  Justices Corrigan, Chin and Baxter are all mentioned in the Recorder article as possible candidates for Chief Justice. 

Appellate practice MCLE program tonight in San Francisco

Tonight, the Appellate Section of the Barristers Club of the Bar Association of San Francisco will present "Views from the Bench: Best Practices in Appellate Advocacy," featuring Ninth Circuit Court of Appeals Judges Carlos T. Bea and William A. Fletcher and California Court of Appeal Justice Laurence Kay (Ret.). 

From the brochure: 

This moderated panel discussion will focus on best practices in written and oral appellate advocacy. The topics will include drafting persuasive appellate briefs, presenting an effective oral argument, and the 'dos and don'ts' of brief writing and oral advocacy. The panel discussion will be followed by a reception with light refreshments.

The program runs from 6:00-7:00 p.m. (registration begins at 5:30) at the BASF Conference Center, 301 Battery Street, 3rd Floor, San Francisco. 

Supreme Court takes up class certification appellate issue: Baycol Cases I and II

Last Thursday, February 18, 2010, the Supreme Court granted review in Baycol Cases I and II, no. S178320.  This is the summary of the issue on review:

Did the "death knell doctrine" require plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or did the one final judgment rule apply and require a single appeal from the subsequent entry of final judgment on all claims?

In an unpublished opinion filed on October 20, 2009, the Court of Appeal (Second Appellate District, Division Seven) held that the notice of appeal was untimely:

An order denying class certification is appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) However, an order sustaining a demurrer without leave to amend “is ordinarily not appealable, since the order is not a final judgment.” (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 359.)

An exception to the latter rule arises “in a class action if the legal effect of the order is ‘tantamount to a dismissal of the action as to all members of the class other than plaintiff,’ and if the order ‘has virtually demolished the action as a class action.’ [Citation.] California allows direct appeal of such a ‘death-knell’ order as a matter of state law policy.” (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 359-360.) “Since, in theory, the individual plaintiff’s action can go forward, the death knell doctrine fits comfortably into the exception to the ‘one final judgment’ rule that arises when parties have separate and distinct interests; when this is true, there can be a final and appealable judgment for each such party. [Citation.]” (Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163 Cal.App.4th 1545, 1547.)

An exception to the rule regarding the appealability of an order sustaining a demurrer without leave to amend has been applied where, as here, the trial court sustains a demurrer without leave to amend as to both the class action allegations and the individual causes of action. (See, e.g., Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202.) We are reluctant to carve out exceptions to the rule and thus introduce an element of uncertainty into what has otherwise been the established rule. Would the exception apply only where, as here, a single order sustains the demurrer without leave to amend as to both the class and individual claims? Would it apply where separate orders address the class and individual claims? A bright-line rule would eliminate any uncertainty. Accordingly, we adhere to the rule that “in a class action if the legal effect of the order is ‘tantamount to a dismissal of the action as to all members of the class other than plaintiff,’ and if the order ‘has virtually demolished the action as a class action,’” the order is immediately appealable. (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 359-360.)

Since the April 27, 2007 order sustaining Bayer’s demurrer to Shaw’s class claims was immediately appealable, Shaw’s December 20, 2007 notice of appeal was untimely as to these claims. We therefore affirm the judgment dismissing the class claims.

Slip op. at 8-9.  I haven't seen the briefs, but it appears that review was granted to address the split in authority with the Los Altos case. 

Baycol has been added to my list of pending Supreme Court cases of interest to attorneys practicing in this area.   

Orange County Bar Association Appellate Law Section Meeting on Wednesday, Feb. 3

Today's meeting of the Appellate Law Section of the Orange County Bar Association will take place at noon in Santa Ana and will feature three speakers on appellate ADR.  Appellate specialization MCLE credit is offered.  Click here for more information. 

Significant appellate practice decision: Brown, Winfield & Cazonieri, Inc. v. Superior Court

In Brown, Winfield & Cazonieri, Inc. v. Superior Court (Great Am. Ins. Co.), ___ Cal.4th ___ (Feb. 1, 2010), the Supreme Court elaborated on what appellate practitioners refer to as Palma notices.  This is the introduction to the majority opinion by Chief Justice George:

In Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma), we outlined the rare circumstances in which an appellate court may grant accelerated writ relief in the form of a peremptory writ in the first instance, in lieu of following the usual procedures associated with the issuance of an alternative writ or an order to show cause. We held that, at a minimum, a peremptory writ of mandate or prohibition may not issue in the first instance without notice that the issuance of such a writ in the first instance is being sought or considered. (Palma, supra, 36 Cal.3d at p. 180.) In addition, we emphasized that “an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected.” (Ibid.) Pursuant to Palma, our Courts of Appeal — prior to ordering issuance of a peremptory writ in the first instance — provide notice that such a writ may issue, and invite informal opposition, in orders routinely called “Palma notices.”

At issue in the present case is the propriety of so-called “suggestive” Palma notices. A suggestive Palma notice — sometimes denominated a “coercive” or “speaking” Palma notice — typically contains the following: notice that the Court of Appeal intends to issue a peremptory writ in the first instance granting the relief requested by the petitioner; a discussion of the merits of the writ petition, with a suggestion that the trial court erred in the manner claimed by the petitioner; a specific grant to the trial court of “power and jurisdiction” to change the disputed interim order and enter in its place a new order consistent with the views of the appellate court, in which event the writ petition will be vacated as moot; and a solicitation of opposition to the issuance of a peremptory writ in the first instance, should the trial court elect not to follow the appellate court’s recommendation.

As discussed below, we conclude that it is not improper for an appellate court to issue a suggestive Palma notice, and that it may do so without first having received or solicited opposition from the real party in interest. A suggestive Palma notice is not the equivalent of a peremptory writ, which requires both notice and an opportunity for opposition before the writ may issue in the first instance. Although a suggestive Palma notice may be styled as an order, such a notice in no way commands or otherwise obligates the lower court to follow the course of action suggested by the appellate court. Rather, a suggestive Palma notice is analogous to a tentative ruling, in that it sets forth the appellate court’s preliminary conclusions with respect to the merits of the writ petition — conclusions that, similar to those reflected in a tentative ruling, are not binding upon either the trial court or the appellate court.

It appears, however, that upon receiving a suggestive Palma notice from an appellate court, a trial court often will quickly vacate, modify, or otherwise reconsider the challenged ruling in order to conform its action to the views expressed in the notice — all before the party adversely affected has filed (or has had an opportunity to file) any opposing papers in response to the Palma notice. When the trial court takes such action, the Court of Appeal will dismiss the writ petition.

We conclude that if a trial court decides on its own motion to revisit its interim ruling in response to a suggestive Palma notice — an action within its inherent authority (see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109 (Le Francois)) — that court must inform the parties of its intent to do so, and provide them with an opportunity to be heard. (See id. at pp. 1108-1109.) Requiring adherence to this procedure is consistent with our relevant case law, and reasonably balances the interests of conservation of scarce judicial resources with the parties’ right to notice and an opportunity to be heard.

Slip op. at 1-3.  Justice Werdegar drafted a concurring and dissenting opinion, in which justices Moreno and Corrigan joined.

"The Top 30 Blogs on Writing"

For those of us who want to improve our writing (and, among lawyers, who doesn't?), Molly DiBianca of The Delaware Employment Law Blog has compiled a list of "The Top 30 Blogs on Writing."  One of the top writing blogs is Set in Style by my friend Mister Thorne. 

Molly also has "10 of the Funniest Writing Blogs" and "20 Online Dictionaries." 

Recently received: Professional Judgment on Appeal: Bringing and Opposing Appeals

Many thanks to the folks at Carolina Academic Press for sending along a copy of the new edition of Professional Judgment on Appeal: Bringing and Opposing Appeals (2d ed. 2009) by Professor Steven Wisotsky. It looks like an interesting read. You can check out the table of contents and introduction at this link. 

Supreme Court will no longer accept filings at remote courthouses as of Jan. 1, 2010

The following notice recently appeared on the Supreme Court's website:

EFFECTIVE JANUARY 1, 2010, the Los Angeles Clerk's Office of the Supreme Court of California will be closed. The Supreme Court will no longer accept filings at Court of Appeal locations. All petitions for review, writs, and legal briefs must be filed at:

Supreme Court of California
Office of the Clerk, First Floor
350 McAllister Street
San Francisco, CA 94102

The Supreme Court will continue its practice of conducting oral argument in Los Angeles, typically in the months of April, June, October, and December.

People will probably rely a lot more frequently on Rule of Court 8.25(b)(3), which states:

(b) Filing

(1)  A document is deemed filed on the date the clerk receives it.

(2)  Unless otherwise provided by these rules or other law, a filing is not timely unless the clerk receives the document before the time to file it expires.

(3)  A brief, a petition for rehearing, an answer to a petition for rehearing, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not expired on the date of:

(A) Its mailing by priority or express mail as shown on the postmark or the postal receipt; or

(B) Its delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.

(4) The provisions of (3) do not apply to original proceedings.

Petition for review and depublication request filed in Cohen v. DirecTV

On November 6, 2009, a petition for review was filed in Cohen v. DirecTV, no. S177734, followed by a depublication request on November 23, 2009.   (My original blog post on Cohen is available at this link.)

Here's an appellate practice question for you:  When are depublication requests due in this case?

The Court of Appeal opinion was originally filed on September 28, 2009.  However, it was not published until thirty days later, on October 28 (the last possible day). Under Rule of Court 8.264(b)(3): “If a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication.” Under that Rule, the decision would be final 30 days after October 28, which would be last Friday, November 27 (a Court holiday).  (I leave it to you to determine whether the date of finality is extended to the following Monday, November 30.) 

Under Rule of Court 8.1125(a)(4), depublication requests “must be delivered to the Supreme Court within 30 days after the decision is final in the Court of Appeal.”   In this case, thirty days after finality (calculated as November 27) is December 27, 2009 (a Sunday).  (Again, I leave it to you to determine whether the final deadline might be a couple of days earlier or later, given the way the dates fall.)   

Now, consider the Supreme Court's deadline to rule on the petition for review.  Rule of Court 8.512(b) reads:

(b) Determination of petition

(1) The court may order review within 60 days after the last petition for review is filed. Before the 60-day period or any extension expires, the court may order one or more extensions to a date not later than 90 days after the last petition is filed.

(2) If the court does not rule on the petition within the time allowed by (1), the petition is deemed denied.

Unless it gives itself an extension of time, the Supreme Court's deadline to grant or deny review will be Tuesday, January 5, 2010. 

But now look at the Supreme Court's conference calendar for December and January (calendar for 2009 and calendar for 2010).  The Court's last conference before January 5 will take place on December 23--which is several days before the probable deadline to file depublication requests in this case.  If the Supreme Court has any interest in this case, I expect it will grant itself an extension of time on or before the conference on December 23.  It would be prudent for anyone planning to file a depublication request (or, for that matter, a letter in support of review) to do so before that December 23 conference date. 

UPDATE:  Today, after I posted the above, a new line was added to the docket deeming December 1, 2009 as the filing date of the petition for review.  That would mean that the Supreme Court's deadline to grant or deny review would not be until January 30, 2010 (a Saturday).  The last conference before January 30 will take place on the preceding Wednesday, January 27, 2010.   

Supreme Court dismisses final Tobacco II "grant and hold" case: O'Brien v. Camisasca Automotive Mfg.

On Thursday, November 19, 2009, the Supreme Court finally acted on the last of the Tobacco II "grant and hold" cases, O'Brien v. Camisasca Automotive Mfg., no. S163207.  Instead of transferring the case back to the intermediate appellate panel for further proceedings, as in McAdams and Pfizer (Galfano), the Court simply dismissed review.  The dismissal order reads:

In light of the decision in In re Tobacco II Cases (2009) 46 Cal.4th 298 and Meyer v. Sprint Spectrum LP (2009) 24 Cal.4th 634, review in the above-entitled matter is dismissed. (Cal. Rules of Court, rule 8.528(b)(1).)

(Hyperlink added.)  This means that the earlier Court of Appeal opinion stands and binds the parties, but it remains unpublished.  Here is my original blog post on the Court of Appeal opinion, and the opinion itself (Second Appellate District, Division Three).  

I'm sure the similarity of issues between O'Brien and Kwikset was not lost on the Supreme Court.  Both are "Made in the U.S.A." cases that lower courts dismissed for lack of Prop. 64 standing (although the similarities end there). Perhaps the Court felt that leaving the O'Brien opinion unpublished was the best way to manage the development of the case law in this area.  O'Brien, of course, was decided long before review was granted in Kwikset, and I'm not sure there is any procedural way to convert O'Brien into a Kwikset "grant and hold" case, which it could easily have become if it had been handed down later. 

Interestingly, both O'Brien and Pfizer/Galfano are Second Appellate District, Division Three cases, and two of the panel Justices (Klein and Kitching) are the same.  Justice Croskey will join in re-deciding Pfizer/Galfano in a few weeks, whereas Justice Aldrich was the third panelist in O'Brien.

Oral argument scheduled in Pfizer, Inc. v. Superior Court (Galfano)

The Court of Appeal for the Second Appellate District, Division Three, has scheduled oral argument in Pfizer v. Superior Court (Galfano), no. B188106, one of the Tobacco II "grant and hold" cases.  The argument will take place on Monday, December 7, 2009 at 9:30 a.m. in Los Angeles.  If anyone would like to attend and prepare a report of the oral argument for posting here, I would be glad to hear from you.

I have copies of the parties' supplemental briefs filed pursuant to Rule of Court 8.200(b)(1) as well as the two amicus briefs:

• Supplemental Brief of Real Party in Interest Steve Galfano (filed 09/03/09)
• Supplemental Brief of Petitioner Pfizer, Inc. (filed 09/18/09)
• Amicus Curiae Brief of Chamber of Commerce of the U.S. (filed 09/22/09)
• Amicus Curiae Brief of Consumer Attorneys of California (filed 10/27/09)

On November 6, 2009, the parties filed replies to the two amicus briefs, but I have not yet received copies of those.  CAOC's amicus brief was written by yours truly, with critical assistance from fellow CAOC Board member David Arbogast.  Thanks again, David!

Meanwhile, supplemental briefs have also been filed in the other Tobacco II "grant and hold" case, McAdams v. Monier, no. C051841 (Third Appellate District).  In that case, however, there is no indication that the Court intends to conduct further oral argument. 

Also, the McAdams panel rejected my application to file an amicus brief on behalf of CAOC.  The order did not say why, and I honestly cannot fathom the reason.  I'd file the same brief all over again because I can't see what was wrong with it.  I wish the order had given a reason so that next time I could correct whatever it was that led them to reject the brief.  In any event, McAdams is another case to follow closely. 

Petition for review and depublication requests filed in Yabsley v. Cingular Wireless

A petition for review, along with more than one depublication request, has been filed in Yabsley v. Cingular Wireless, no. S716146.  Here is the depublication request I filed on behalf of CAOC on September 14, 2009.  It basically makes the same points as in my original blog post on the decision. 

Yabsley was handed down on August 19, 2009 and became final on or about September 18, 2009.  The petition for review was due ten days thereafter and was filed on September 29, 2009 (and deemed timely per Rule of Court 8.25(b)(3)). 

I thought about writing directly to the Court of Appeal and suggesting some (non-outcome-determinative) modifications to the opinion, but the last time I tried that, which was in the Crab Addison case, the panel refused to accept my letter for filing, evidently believing they had no authority to consider it. Therefore, the only other option was a depublication request (which I had no interest in filing in Crab Addison). 

I have, however, seen that approach work in the past.  For example, the Supreme Court accepted a post-opinion letter from a non-party in the Vasquez attorneys' fees case, which resulted in an important (but non-outcome-determinative) amendment to the opinion on the Court's own motion.   I've also seen the same thing in the Court of Appeal in the past.  I think the Crab Addison court could have accepted the letter based on Vasquez as a precedent.

Supreme Court announcement re court closure days

The following notice was recently posted on the Supreme Court's website.  In a nutshell, we will have to wait an extra day for conference results during the week of the third Wednesday.

Due to California's current fiscal crisis the Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009 (see below for a complete lists of court closure dates).

Petition conference results for the conferences scheduled on court closures dates will be posted online the Thursday following the closure.

Court Closure Dates for Fiscal Year 2009-2010
Wednesday, September 16, 2009	Wednesday, February 17, 2010
Wednesday, October 21, 2009	Wednesday, March 17, 2010
Wednesday, November 18, 2009	Wednesday, April 21, 2010
Wednesday, December 16, 2009	Wednesday, May 19, 2010
Wednesday, January 20, 2010	Wednesday, June 16, 2010

Transfer orders issued in Tobacco "grant and hold" cases: Pfizer and McAdams

Today, the Supreme Court issued transfer orders in the two Tobacco "grant and hold" cases, Pfizer, Inc. v. Superior Court (Galfano), no. S145775, and McAdams v. Monier, no. S154088.  McAdams has been transferred back to the Third Appellate District, and Pfizer is now returned to the Second District, Division Three.  Both appellate courts have been directed to vacate their opinions and reconsider in light of Tobacco.   

The parties now have a very short period of time to file supplemental briefs under Rule of Court 8.200(b)(1). 

UPDATE:  There is a third Tobacco "grant and hold" case, O'Brien v. Camisasca Automotive Mfg., no. S163207, in which no transfer order has yet been posted.

Another "no-class-action" arbitration clause bites the dust: Franco v. Athens Disposal Co.

In Franco v. Athens Disposal Co., ___ Cal.App.4th ___ (Mar. 10, 2009), the Court of Appeal (Second Appellate District, Division One) applied Gentry in a case for meal period and rest break violations:

[T]he primary issue on appeal is whether Gentry applies to claims for meal and rest periods under the Labor Code (§§ 512, 226.7) and the Wage Order (§§ 11, 12). We conclude it does. Discover Bank, a consumer case, laid the foundation for Gentry, an overtime case. And it is but a small step from the overtime claims in Gentry to the meal and rest period claims here. Although overtime compensation is undoubtedly important (see Gentry, supra, 42 Cal.4th at p. 456), the state has a significant interest in making sure that the drivers of commercial vehicles receive sufficient food and rest while on the job.

Slip op. at 11. After a detailed analysis, the court concluded that the entire arbitration clause (not just the class action ban) was unenforceable and that the claims would proceed "in a court of law." Id. at 27.

Other holdings of note: 

• An order enforcing a "no-class-action" arbitration clause, and ordering the claims to proceed on an individual basis, was "the 'death knell' of class litigation" and was therefore appealable under the general rule that orders denying certification of an entire class are final.  Slip op. at 8.  This is an important rule for litigants to remember because it means that to preserve your appellate rights, you have to file your notice of appeal mid-case whether you want to or not.
  
  
• The trial court contravened Linder by ruling on the merits of plaintiffs' overtime claim (and then disregarding that claim) in the course of deciding whether the arbitration clause was enforceable: "Here, the trial court granted a de facto summary adjudication motion on the overtime claim in determining the enforceability of a class arbitration waiver. That was error. Absent a demurrer or dispositive motion — [the defendant] brought none — Franco’s overtime claim had to be considered as part of the case in deciding the validity of the class arbitration provision."  Slip op. at 11; see id. at 20 (citing Linder and Gentry). 
  
  
• Contrary to the defendant's position, the laws governing meal periods and rest breaks are not waivable.  Slip op. at 14-16.  Therefore, "to the extent [if any] Gentry may be limited to unwaivable statutory rights [such as the right to overtime implicated in Gentry], under [Labor Code] section 219, the meal and rest period laws cannot be waived."  Id. at 16.  The court said in no uncertain terms that Labor Code section 226.7(a) "requires employers to comply with the meal and rest period provisions of the Wage Order[s]."  Slip op. at 15 (emphasis added). 
  
  
• The trial court incorrectly determined that the meal period and rest break claims would be "so individualized as to render class arbitration treatment significantly less effective than individual arbitrations."  Slip op. at 21.  To the contrary:

  At this early stage in the litigation, we know that [the defendant] uses a computer and an electronic timecard system to keep track of its employees’ work hours. By law, an employer must maintain time records showing an employee’s (1) “total daily hours worked” and (2) meal periods, unless “operations cease” during meals. (Wage Order, § 7(A)(3).) Further, [the defendant] allegedly engaged in a systematic course of illegal payroll practices and policies in violation of the Labor Code and subjected all of its hourly employees to the same unlawful conduct. As a result, common questions of law and fact predominate over individualized issues.

  Id.   (Incidentally, all of the Wage Orders, not just the one construed here, contain that same recordkeeping requirement.)
  
  
• The Wage Orders provide civil penalties for violation of section 226.7(b)'s requirement that employers pay premium wages for missed meal periods and rest breaks.  Slip op. at 25-27.  Those civil penalties are recoverable under the Private Attorney General Act ("PAGA").  Id. at 26.   The defendant's arbitration agreement "sought to nullify the PAGA" and purported to preclude all employees "from seeking civil penalties on behalf of other current and former employees, that is, from performing the court function of a private attorney general."  Id. at 27.  Hence, the entire agreement was "tainted with illegality" and "unenforceable."  Id.

"Five Oral Argument Tips — For Judges"

Howard Bashman has reprinted an interesting article from the October 2008 issue of The Federal Lawyer called "Five Oral Argument Tips — For Judges." The article provides the perspective of United States District Judge Michael W. Mosman of the District of Oregon, who sat by designation for a while on the Ninth Circuit. Judge Mosman's first tip reminds appellate judges that "respect is a two-way street" and that no one is immune to typos:

It is also fair to add that much of the disrespect that flows from judges to lawyers comes from a poor understanding of what the practice of law is like. In a real life practice, perfection can be an elusive goal and the pressure to get the job completed can be tremendous. While this is no excuse for mediocrity, it does put minor errors in context. It is probably no accident that the former practitioners on the bench tend to be those who seldom show the lawyers disrespect.

The article concludes:

As between the judge and the lawyer, oral argument is not adversarial. It can be tense; there can be a lot at stake; there are pitfalls for the lawyer that can do harm to the case. But fundamentally it is a form of partnership. This partnership works better if judges show respect to the lawyers and have enough humility to be critical of their own performance.

That's it for this week. Have a great Thanksgiving, everyone! [Cross-posted to The Appellate Practitioner.]

More breaking news (off-topic): Supreme Court issues order to show cause in Prop. 8 cases

This is off the topic, but this afternoon the Supreme Court issued an order to show cause in the cases challenging the validity of Proposition 8, which purports to strip away the Constitutional right of equal protection from a minority group of California citizens.  Regardless of how one feels about the merits of same-sex marriage, the case is fascinating to me from the standpoint of appellate procedure.  This is the relevant text from the court's order, copied from the docket in Strauss v. Horton, no. 168047: 

The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health are ORDERED TO SHOW CAUSE before this court, when the above entitled matters are called on calendar, why the relief sought by petitioners should not be granted.

The issues to be briefed and argued in these matters are as follows: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The return is to be filed by respondents, and a brief may be filed by intervenors, in the San Francisco Office of the Supreme Court on or before Friday, December 19, 2008. A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Monday, January 5, 2009. Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, January 15, 2009. Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Wednesday, January 21, 2009.

Moreno, J. joins this order except that he would grant the requests to stay the operation of Proposition 8 pending this court's resolution of these matters. Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption. Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

The Supreme Court has a special web page with copies of pertinent filings from the case, including the order to show cause.  On a personal note, my own marriage to an Asian-American man would have been "illegal and void" in California 60 years ago (and in two thirds of the rest of the country 40 years ago), so I feel particularly interested in how this turns out. 

"Principal" vs. "principle"

In a curious coincidence, three courts confused the words "principal" and "principle" in opinions issued within the past ten days:

• "[N]ot all class members will want to [rescind] because it requires returning the loan priniciple in exchange for the release of the lien ...." Andrews v. Chevy Chase Bank, ___ F.3d ___ (7th Cir. Sept. 24, 2008) (slip op. at 8).

• "HP argues the trial court erred in refusing to apply the principals of Daugherty to the determination of class certification." Hewlett-Packard Co. v. Superior Court, ___ Cal.App.4th ___ (Sept. 26, 2008) (Sixth Appellate District) (slip op. at 7).

• "Hence, negligent driving of postal trucks was a principle activity for which Congress wanted to create liability when the FTCA waived sovereign immunity." MB.Financial Group, Inc. v. United States Postal Service, ___ F.3d ___ (9th Cir. Sept. 25, 2008) (slip op. at 13770) (via California Appellate Report).

Seeking successful depublication requests

I am always trying to figure out what types of arguments the California Supreme Court finds persuasive in deciding whether to depublish a Court of Appeal opinion under Rule of Court 8.1125. As we all know, depublication orders are quite rare. In fact, according to the 2008 Court Statistics Report - Statewide Caseload Trends, 1997-1998 to 2006-2007, recently published by the California Judicial Council, the Supreme Court granted only 19 depublication requests in 2007. (I suspect that most of these were in criminal cases, although I do not have statistics on that point.)

To that end, I am collecting copies of successful depublication requests. I've created a list of them over at my other blog, The Appellate Practitioner. So far, I only have two. If you have a copy of a successful depublication request that you are willing to share, please forward it to me at uclpractitioner@gmail.com and I will add it to the list. Then we can all review them and try to read the Supreme Court's tea leaves.

[Cross-posted to The Appellate Practitioner]

"High Court Justices Go Digital to Access Founding-Era Documents"

Law.com had an article earlier in the week on The Constitutional Sources Project, which "has digitized and made freely available online more than 11,000 historical documents relating to the Constitution and the amendments." That's a link to bookmark.

[Via How Appealing.]

New Court of Appeal opinion in Mervyn's on remand

Yesterday, the Court of Appeal (First Appellate District, Division Four) handed down its third opinion (and its second published one) in the case between Mervyn's and Californians for Disability Rights: Californians for Disability Rights v. Mervyn's, LLC, ___ Cal.App.4th ___ (Jul. 30, 2008). In it, the Court held that Mervyn's violated the UCL's "unlawful" prong by failing to comply with the federal Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.). Today's San Francisco Chronicle has an article on the opinion.

For our purposes, the opinion's discussion of the procedural history is most interesting:

While this case was pending on appeal, the voters of California amended the statute under which the case had been prosecuted. The voters’ enactment, popularly known as Proposition 64, was passed in the California General Election on November 2, 2004, and went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) At the time this case was tried, the UCL authorized any person acting for the general public to sue for relief from unfair competition. (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 228 (Mervyn’s).) “Standing to bring such an action did not depend on a showing of injury or damage.” (Ibid.) Proposition 64 amended the UCL to limit private enforcement to those who have suffered injury in fact and have lost money or property as a result of such unfair competition. (Ibid.) Proposition 64 did not state whether this new limitation applies to pending cases. (Id. at p. 229.)

On December 6, 2004, Mervyn’s moved to dismiss this appeal upon the claim that Proposition 64’s change in standing requirements apply to pending cases. We denied the motion because new legislative enactments are presumed to operate prospectively, rather than retroactively, to avoid unfair impairment of existing rights and obligations. In July 2006, the California Supreme Court reversed our ruling, upon concluding that application of Proposition 64’s standing requirements to pending cases would not constitute a retroactive application of the law because the initiative measure did not change any existing rights or obligations. (Mervyn’s, supra, 39 Cal.4th at pp. 232-234.) While the measure “withdraws the standing of persons who have not been harmed to represent those who have,” it did not impair any rights because lack of standing is a jurisdictional challenge that can be raised at any time in a legal proceeding. (Id. at pp. 232-233.) The high court reversed our denial of Mervyn’s motion to dismiss the appeal and remanded the case to us “for further proceedings consistent” with its opinion. (Id. at p. 234.)

On remand to this court, CDR asked leave to move for substitution of plaintiff on appeal—it did not contend that it had standing to appeal in its own right as a party aggrieved by the judgment under Code of Civil Procedure section 902. We denied CDR’s request and granted Mervyn’s motion to dismiss the appeal for lack of standing by CDR. CDR petitioned for review in the Supreme Court. The Supreme Court granted review and transferred the case to us with directions to vacate our decision and to reconsider the cause in light of United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300 (United Investors) and Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 (Branick).

United Investors held that a plaintiff has standing to appeal dismissal of a UCL complaint following demurrer even if it has no authority to maintain its suit in superior court, because plaintiff “is sufficiently aggrieved by the dismissal of its complaint that it has standing to appeal under Code of Civil Procedure section 902.” (United Investors, supra, 125 Cal.App.4th at p. 1305.) Branick held that Proposition 64 does not forbid amendment of complaints in the trial court to substitute new plaintiffs for those who have lost standing under the new measure. (Branick, supra, 39 Cal.4th at pp. 241-242.) The “ordinary rules governing the amendment of complaints” apply. (Id. at p. 239.)

Upon reconsideration, we denied Mervyn’s motion to dismiss the appeal in a ruling we issued on April 17, 2007. We concluded that the two cases referenced by the high court, “when read in conjunction, lead to the following conclusion: CDR is a party aggrieved by entry of judgment against it and thus has standing to appeal the judgment even if CDR has no authority to maintain its suit in superior court (United Investors, supra, 125 Cal.App.4th at pp. 1304-1305); and, if CDR succeeds in its effort to reverse the judgment on appeal, it may seek leave in the superior court to amend its complaint to substitute a plaintiff who meets the Proposition 64 standing requirement.” (Branick, supra, 39 Cal.4th at pp. 240-244.) Mervyn’s petitioned for review in the Supreme Court, and the petition was denied on July 18, 2007.

The parties completed briefing on the merits of the appeal in January 2008, and the matter was argued and submitted for decision. We now turn to the trial court’s factual findings following the bench trial, and then proceed to discuss CDR’s claims raised on appeal.

Slip op. at 3-4. After concluding that the trial court erred by entering judgment in Mervyn's favor, the Court went on:

As discussed above, CDR lost standing as a plaintiff when the voters adopted Proposition 64, which amended the UCL law to limit private party lawsuits to those who have lost money or property as a result of alleged unfair competition. (Mervyn’s, supra, 39 Cal.4th at p. 227.) We therefore cannot remand the case with directions to enter judgment in CDR’s favor. However, CDR is entitled to an opportunity to amend its complaint to substitute a new plaintiff with standing. (Branick, supra, 39 Cal.4th at pp. 239, 242-243.) We therefore remand the case to the trial court so that CDR may file a motion for leave to amend its complaint. “On remand, should plaintiff[] in fact file a motion to amend, the superior court should decide the motion by applying the established rules governing leave to amend.” (Id. at p. 238, citing Code Civ. Proc., § 473.) If the court grants the motion, the court shall enter judgment in favor of the newly substituted plaintiff and determine the appropriate scope of injunctive relief. In fashioning injunctive relief, the court shall consider appropriate alternative means for making merchandise available to disabled individuals who are denied physical access to the merchandise.

Id. at 30-31.

Procedures for electronic service of Court of Appeal briefs on the Supreme Court now available

In early January, I reported on an amendment to Rule of Court 8.212(c)(2) to permit electronic service of Court of Appeal briefs on the Supreme Court. The advisory notes to the amended rule said that instructions would appear on the Supreme Court's website, but at the time, none were available. Now, however, this new page provides instructions on how to electronically upload your service copy (in lieu of serving four paper copies). This should save quite a few trees. But be sure to read the "Terms of Use" (pdf), which warns that if the upload fails for any reason, you'd better have those paper copies ready to go. Presumably, your proof of service must indicate that the Supreme Court's service copy was electronically uploaded pursuant to Rule 8.212(c)(2).

[Hat tip: Nota Bene]

[Cross-posted at The Appellate Practitioner]

Op-Ed by Chief Justice George: "Reform death penalty appeals"

Chief Justice Ronald M. George has an op-ed piece in today's Los Angeles Times, "Reform death penalty appeals." Of interest to those of us who practice in the civil arena:

California's Supreme Court issues 110 to 115 opinions annually, almost twice as many as the U.S. Supreme Court. Typically, these include more than 20 capital appeals. (Another 30 capital-case-related habeas corpus matters also are disposed of each year.) Yet this is only a small portion of the cases that are awaiting our attention. At the moment, nearly 400 capital appeals are pending before the court, about 80 of which are fully briefed and ready for oral argument and decision. About 130 non-death-penalty cases presenting important civil and criminal issues also are pending, 80 of them fully briefed, and the court selects additional cases for review at almost every weekly conference. Only if the state Supreme Court were to defer these other cases could it more quickly address the backlog of capital appeals -- and even then, new death penalty appeals and new legal issues requiring review would continue to pour into the system.

One of the 80 fully-briefed, non-capital cases pending at the Supreme Court is In re Tobacco II Cases, no. S147345 (review granted 11/1/06), which raises reliance and class certification in UCL cases after Proposition 64. [Via How Appealing.]

Supreme Court now accepts electronic service copies of Court of Appeal briefs!

A few interesting amendments to the Rules of Court went into effect on January 1, 2008. For example, Rule of Court 8.212(c)(2) used to require that four paper copies of all briefs filed with the Court of Appeal be served on the Supreme Court. Effective Tuesday, Rule 8.212(c)(2) was amended to provide that the Supreme Court may now be served by email instead:

(c) Service

(1) ....

(2) One electronic copy or four paper copies of each brief must be served on the Supreme Court as provided in either (A) or (B).

(A) One copy of each brief may be served on the Supreme Court electronically by sending the copy to the Supreme Court’s electronic notification address.

(i) The copy must be a single computer file in text-searchable Portable Document Format (PDF), and it must exactly duplicate the appearance of the paper copy, including the order and pagination of all of the brief’s components. By electronically serving the copy, the filer certifies that the copy complies with these requirements and that all reasonable steps have been taken to ensure that the copy does not contain computer code, including viruses, that might be harmful to the court’s electronic filing system and to other users of that system.

(ii) ....

(B) Instead of serving an electronic copy, four paper copies of each brief filed in a civil appeal must may be served on the Supreme Court. ....

The Advisory Committee Comment says that "'Electronic notification address' is defined in rule 2.250. The Supreme Court’s electronic filing address can be found on the California Courts Web site at www.courtinfo.ca.gov/courts/supreme." I went to that site and it doesn't seem to be available yet.

The California Blog of Appeal also has a post on some of the rule changes, and last week, the Daily Journal had a Focus piece by David Ettinger of Horvitz & Levy on the subject: "New Year, New Rules" (subscription). [Cross-posted at The Appellate Practitioner.]

CAOC Board of Governors and Amicus Curiae Committee

I'm pleased to announce that I will be a member of the Board of Governors of Consumer Attorneys of California in 2008. I'm looking forward to working more closely with CAOC over the coming year, and I would encourage all plaintiffs' attorneys to join. CAOC works very hard to advance and protect our collective interests and those of our clients. Being a CAOC member has been more rewarding to me than any other professional association that I've joined to date.

Additionally, I am on the CAOC amicus curiae committee. If you represent the plaintiffs and need amicus support in a pending appellate matter, particularly in the California Supreme Court, please visit the amicus committee page for more information on the CAOC's amicus program and how to submit your request for amicus assistance.

Court of Appeal refuses "notices of unavailability": Carl v. Superior Court

In an opinion issued last week, the Court of Appeal (Fourth Appellate District, Division Three) held that "a 'notice of unavailability' is not a fileable document under the Rules of Court and will be returned to counsel." Carl v. Superior Court, ___ Cal.App.4th ___ (Nov. 19, 2007) (slip op. 4). While this opinion does not relate strictly to the UCL or class action law, it should be of interest to all practitioners, especially solos. This opinion will probably impact the utility of such notices in the trial courts as well. [via Legal Pad]

New Ninth Circuit FLSA collective action case: McElmurry v. U.S. Bank Nat'l Assn.

In McElmurry v. U.S. Bank Nat'l Assn., ___ F.3d ___ (Aug. 8, 2007), the Ninth Circuit held that a district court order denying plaintiffs' motion to issue notice of a collective action under section 16(b) of the Fair Labor Standards Act ("FLSA") (29 U.S.C. §216(b)) was not immediately appealable under the collateral order doctrine. The opinion contains this useful explanation of the difference between a class action and a FSLA "collective action":

A “collective action” differs from a class action. See generally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 7B FED. PRAC. & PROC. § 1807 (3d ed. 2005). In a class action, once the district court certifies a class under Rule 23, all class members are bound by the judgment unless they opt out of the suit. By contrast, in a collective action each plaintiff must opt into the suit by “giv[ing] his consent in writing.” 29 U.S.C. § 216(b). As result, unlike a class action, only those plaintiffs who expressly join the collective action are bound by its results. See 29 U.S.C. § 256; Partlow v. Jewish Orphans’ Home of S. Cal., Inc., 645 F.2d 757, 758-59 (9th Cir. 1981), abrogated on other grounds by Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165 (1989). Because non-parties to a collective action are not subject to claim preclusion, giving notice to potential plaintiffs of a collective action has less to do with the due process rights of the potential plaintiffs and more to do with the named plaintiffs’ interest in vigorously pursuing the litigation and the district court’s interest in “managing collective actions in an orderly fashion.” Hoffmann-LaRoche, 493 U.S. at 173. Although § 216(b) does not require district courts to approve or authorize notice to potential plaintiffs, the Supreme Court held in Hoffman-LaRoche that it is “within the discretion of a district court” to authorize such notice. Id. at 171; see Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) (a district court “may authorize the named plaintiffs . . . to send notice to all potential plaintiffs”).

Slip op. at 9453-54. The court held that it lacked appellate jurisdiction over the trial court's order denying the motion for notice to the potential plaintiffs, and that post-judgment appellate review provided an adequate remedy. In particular, it cited the federal rule governing the appealability of class certification orders (which differs from the California rule):

[I]t is well-established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23. See Coopers & Lybrand, 437 U.S. at 477 (no collateral jurisdiction over appeal from order refusing to certify the class); Blackie v. Barrack, 524 F.2d 891, 895 (9th Cir. 1975) (no collateral jurisdiction over appeal from order certifying the class).

Slip op. at 9457.

New reference pages at the California courts website

I just discovered these new pages at the California courts website:

• A list of all of the California courts with links to their websites (the links to the Superior Court websites are particularly useful because those web addresses are not uniform)

• A map of the Court of Appeal Districts (pdf)

"Appeal Courts Are Publishing More Cases"

Today's Recorder has a very interesting article (subscription) about the increase in the number of published Court of Appeal opinions since April 1, when the Rule of Court governing publication (Rule 8.1105) was amended. According to the article, "[p]reliminary figures show that during the first 2 1/2 months after an amended rule on publication took effect April 1, the number of decisions published by the state's six appellate courts rose 35 percent."

The article also quotes several Court of Appeal justices on their approach to publication under the new rule:

[T]he Second District's H. Walter Croskey has the distinction of publishing the most rulings under the amended rules. According to The Recorder's count, Croskey published seven rulings between April 1 and June 15 of this year.

....

Croskey noted, though, that under the amended rule he and his colleagues seem more inclined to grant attorneys' requests to publish a ruling that was initially issued unpublished. "We give it a broader interpretation," he said.

In fact, by The Recorder's reckoning the six appellate courts chose to publish 41 rulings between April 1 and June 15 of this year that were originally unpublished. That compares to 23 for the same time period in 2006.

Not only numbers have changed, Croskey said, but so have the justices' attitudes.

"The difference in the new rules essentially is that, before you had to provide literally a reason to publish," he said. "Now the bias seems to have switched and you have to almost have a reason not to publish. That's my way of looking at it."