The UCL Practitioner

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."

A successful depublication request: Sony Electronics v. Superior Court

As I reported in March, the Supreme Court depublished the Court of Appeal's opinion in Sony Electronics, Inc. v. Superior Court (Hapner), 145 Cal.App.4th 1086 (2006). The depublication request, which was drafted by Michael Singer of Cohelan & Khoury in San Diego, is available at this link. It is very good and exemplifies the kinds of arguments the Supreme Court finds persuasive when considering whether to depublish an opinion.

"7th Circuit Launches Federal Judiciary's First Wiki

Monday's National Law Journal reports that "7th Circuit Launches Federal Judiciary's First Wiki." According to the article, the wiki will permit both judges and practitioners to add their comments about appellate practice and procedure within the Seventh Circuit.

More thoughts on Alan v. American Honda Motor Co.

In Alan v. American Honda Motor Co., ___ Cal.4th ___ (Mar. 15, 2007), the Supreme Court did not address the appealability of orders denying class certification per se. Its discussion would apply to any appealable interlocutory order. The opinion contrues Rule of Court 8.104(a), which triggers the 60-day time to file a notice of appeal. Rule 8.104(a) states:

Rule 8.104. Time to appeal

(a) Normal time

Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

(3) 180 days after entry of judgment.

(Emphasis added.) Rule 8.104(f) is also relevant:

(f) Appealable order

As used in (a) and (e), "judgment" includes an appealable order if the appeal is from an appealable order.

In Alan, the trial court heard argument on plaintiff's motion for class certification and took the matter under submission. A few days later, the court clerk mailed a written statement of decision denying the motion, along with a minute order stating that the court had ruled on the motion and issued its statement of decision. While the minute order included the date of mailing, the statement of decision did not. And while the statement of decision was file-stamped, the minute order was not. Slip op. at 2-4.

The Court of Appeal held that the two documents combined triggered the 60-day period of Rule of Court 8.104(a)(1). Alan v. American Honda Motor Co., 131 Cal.App.4th 886 (2005). The Supreme Court disagreed:

Because no “document entitled ‘Notice of Entry’ ” (rule 8.104(a)(1)) exists, the clerk’s mailing cannot have triggered the 60-day period for noticing an appeal unless it contained “a file-stamped copy of the judgment” (ibid.) or appealable order (rule 8.104(f)). But the clerk’s mailing contained no such document. While it did contain a copy of the appealable minute order, that order is not file stamped. The typed or printed notation that appears at the bottom of that order—“MINUTES ENTERED 01/02/03 COUNTY CLERK”—is not a file stamp. (In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 686.) Accordingly, the clerk’s mailing did not satisfy rule 8.104(a)(1), and Alan’s notice of appeal was timely filed under rule 8.104(a)(2).

Slip op. at 8. The Court explained that all of the elements of Rule of Court 8.104(a)(1) must be satisfied in a single document:

For these reasons, we conclude that rule 8.104(a)(1) does indeed require a single document—either a “Notice of Entry” so entitled or a file-stamped copy of the judgment or appealable order—that is sufficient in itself to satisfy all of the rule’s conditions, including the requirement that the document itself show the date on which it was mailed. That having been said, we see no reason why the clerk could not satisfy the single-document requirement by attaching a certificate of mailing to the file-stamped judgment or appealable order, or to a document entitled “Notice of Entry.” Obviously a document can have multiple pages. But the rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. “Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 64.)

Slip op. at 12-13. Because the clerk's mailing was insufficient to trigger the 60-day period of Rule of Court 8.104(a)(1), the 60-day period of Rule of Court 8.104(a)(2) was triggered instead when the defendant served a formal "Notice of Entry of Order and Statement of Decision Denying Class Certification," with copies of both the minute order and the statement of decision attached to it. Id. at 13-14.

[Cross-posted to The Appellate Practitioner]

New attorneys' fees opinion: MBNA America Bank, N.A. v. Gorman

On December 19, 2006, the Appellate Department of the Santa Clara County Superior Court handed down its opinion in MBNA America Bank, N.A. v. Gorman, ___ Cal.App.4th Supp. ___ (Dec. 12, 2006). On January 2, 2007, the court ordered the opinion published, and on February 13, 2007, the opinion was posted online along with the rest of the published appellate opinions. Because it is an opinion of a Superior Court's appellate department, it will appear in the Supplement to the Official Reports. Published Superior Court Appellate Division opinions are relatively rare. It seems that the operators of the appellate courts' website had to add an "Appellate Division" category to its pulldown menu in order to accommodate this case.

In any event, in this case, MBNA America Bank commenced an arbitration proceeding against one of its card holders, Mr. Gorman. After obtaining an arbitration award, the bank filed a petition in the trial court to confirm the award. Mr. Gorman opposed the petition by arguing that “under Badie v. Bank of America (1998) 67 Cal.App.4th 779, ‘a mailed insert or “bill stuffer” cannot serve as a waiver of the procedural right of trial by jury or as a basis for enforcement of an ADR clause by a unilaterally issued change in the original agreement.’” The trial court found this argument persuasive, and denied the petition to confirm the arbitration award. Slip op. at 2. Mr. Gorman then moved for attorneys' fees and costs. The trial court granted the motion and awarded over $23,000. The bank appealed. Id.

The Appellate Division affirmed the attorneys' fees award, holding that the award was proper both under the attorneys' fees provision in the credit card contract (which Civil Code section 1717 made reciprocal) and under the private attorney general doctrine of Code of Civil Procedure section 1021.5. Slip op. at 3-8. In reaching the latter conclusion, the Appellate Division determined that Mr. Gorman vindicated "an important public right" by obtaining a ruling that "bill stuffer inserts were not an enforceable means of waiving the procedural right of trial by jury," thus protecting that constitutionally-protected right. Id. at 6. Mr. Gorman also conferred a "significant public benefit" because the order he obtained "should effectively deter [the bank] from [enforcing the arbitration agreement] at least with regard to customers similarly situated to [Mr. Gorman]." Id. at 7. Finally, the court determined that the burden on Mr. Gorman of challenging the arbitration provision was disproportionate to his individual stake in the outcome, because even though the bank said it planned to sue Mr. Gorman in court to recover the debt, Mr. Gorman incurred attorneys' fees that were three times as high as the debt amount. Id. at 7-8.

The Appellate Division also affirmed the amount of the fees award, finding it reasonable, and further held that Mr. Gorman would be entitled to recover his attorneys' fees incurred on appeal. Id. at 11. While challenges to unconscionable arbitration clauses come up quite often in class action litigation, this decision certainly provides an incentive for credit card holders and other consumers to challenge such clauses even in individual actions.

Supreme Court oral argument and conference calendar for 2007

The California Supreme Court just put up a very cool calendar (pdf) showing the Court's oral argument schedule (with locations), conference dates, and court holidays for 2007. This will be an extremely useful tool for anyone who is following pending Supreme Court cases and review petitions. I don't think they made such a calendar available in 2006, or if they did, I never saw it on their site. (Now, if the court would only publish an RSS feed for new opinions like the Eleventh Circuit does ....)

"Rookie Mistakes" in brief writing

This month's California Lawyer has an article (subscription) by legal writing specialist Clyde Leland on brief-writing mistakes commonly made by new attorneys. The article concludes: "The good news is that lawyers' writing gets better with practice. The key is to remember your audience and your goals: Write so that readers too busy to read everything you wrote will understand what the problem is and how the law applies to address that problem." I had the pleasure of working with Clyde Leland once. In 1999, I helped him present an MCLE program called "Persuasive Statements of Fact" for the Bar Association of San Francisco, Appellate Practice Section. In fact, you can still order the video of that program from BASF.

And while we're on the subject of brief writing, last Monday's Daily Journal had a focus column, "Once More Into the Brief" (subscription) by Robert D. "Bo" Links. A snippet: "The foremost principle of writing briefs is right in front of you: be brief. .... To be sure, a significant case will probably require a significant effort. But to be effective, every advocate should follow the command that applies to every speaker: be brilliant, be brief, and be seated."

Supreme Court announces amendment to Rule 976 on publication of Court of Appeal opinions

Last week, the Supreme Court announced in a press release that effective April 1, 2007, Rule of Court 976(c) will be amended. That Rule addresses the standards for publication of Court of Appeal opinions. Currently, Rule 976(c) prohibits publication of most opinions ("No opinion ... may be certified for publication ... unless ... "). The amended Rule almost creates a presumption in favor of publication ("An opinion ... should be certified for publication ... if ..."). In addition, three new grounds for publication have been added. Amended Rule 976(c) (which will be renumbered as Rule 8.1105(c) as of January 1, 2007) will read:

(c) Standards for certification

No An opinion of a Court of Appeal or a superior court appellate division — whether it affirms or reverses a trial court order or judgment — may should be certified for publication in the Official Reports unless if the opinion:

(1) Establishes a new rule of law,;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;, or

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(2)(5) Resolves Addresses or creates an apparent conflict in the law;

(3)(6) Involves a legal issue of continuing public interest; or

(4)(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

In addition, new subdivision (d) has been added, specifying the factors that the Court of Appeal should not consider in deciding whether to publish an opinion:

(d) Factors not to be considered

Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.

As I have previously reported, these amendments were the result of a long period of analysis, study and public comment spearheaded by the Advisory Committee on Rules for Publication of Court of Appeal Opinions. It will be interesting to observe whether more opinions will be published as a result.

Amendments to Federal Rules of Civil Procedure effective today

A reminder that the amendments to the Federal Rules of Civil Procedure go into effect today (Dec. 1, 2006). In honor of that event, Howard Bashman has yet another article at law.com: "What Do the Federal Appellate Procedure Rule Changes Mean for You?"

California practitioners should also note that the most recent amendments to the California Rules of Court will go into effect on January 1, 2007. The rules are being completely reorganized and renumbered. For example, the rules about publication of appellate opinions will now be numerically adjacent to the rest of the appellate rules—definitely an improvement. [Thanks to Jeff Lewis of So Cal Law Blog for the email reminder.]

"Ten Tips for Excellence in Appellate Advocacy"

Howard Bashman has another article up at Law.com: "Ten Tips for Excellence in Appellate Advocacy" (Nov. 13, 2006). Here is tip number six:

6. Get outside help. The insights of an experienced and effective appellate practitioner can be invaluable in deciding what issues should be raised on appeal and how best to argue those issues to obtain the best possible result for the client. No one may know the case or the governing law better than the trial lawyer, but, to win on appeal, you will need to persuade appellate judges who themselves have no preexisting knowledge about your case and often have little, if any, experience with the law governing the outcome in your case. An experienced and effective appellate practitioner can assimilate what the trial lawyers know about the case and present even the most complicated legal and factual matters to appellate judges in the brief and at oral argument in a manner that is both easy to understand and persuasively reasoned. Highly qualified appellate practitioners do not want to take your client from you or control the case on remand to the trial court; rather, they want to work with you to ensure that your client gets the best possible result on appeal.

This is good advice. I'm available to work on appellate matters (hourly or contingency) if there are plaintiffs' attorneys out there who need help.

Miscellany from the blog pile

The Weblog Awards 2006 is accepting nominations for "Best Law Blog" in the comments to this post.

Blawg Review #84 is available this morning at the blog Transcending Gender. Links to past Blawg Reviews are collected at the main Blawg Review site.

Howard Bashman's most recent column is now available at Law.com: "Electronic Filing on Appeal: What Does the Future Hold?"

Now a month old, this article is still interesting: "Gimme an 'S': The High Court's Grammatical Divide." I remember debating this very issue with my judge during my clerkship. He put a lot of thought into that kind of thing.

Why are the Court of Appeal opinions in In re Tobacco and Pfizer no longer citable precedent?

Two weeks ago, when I reported on the Supreme Court's grant of review in In re Tobacco II and Pfizer, I pointed out that the two Court of Appeal opinions were "no longer citable as precedent." Since then, I've received more than one email from readers asking why this is, and whether the two opinions have any remaining precedential value. I'm happy to provide more information about this.

Under Rule of Court 977(a), only "published" opinions are citable as precedent:

Except as provided in (b) [relating to citation in the same action for purposes of res judicata, collateral estoppel, or law of the case], an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(Emphasis added.) Rule of Court 976(d)(1) states that when the Supreme Court grants review, the Court of Appeal's opinion is no longer considered "published":

(d) Changes in publication status

(1) Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing.

(Emphasis added). Accordingly, when the Supreme Court grants review, the Court of Appeal's opinion may no longer be cited (except in the same action) and no longer operates as binding precedent.

An opinion's status as "published" may be restored after review is granted only if the Supreme Court takes action under subdivision (2) of Rule 976(d). The Supreme Court may "order publication of an opinion, in whole or in part, at any time after granting review." Rule of Court 976(d)(2). We saw such a publication request in Branick. The request, which was filed after the Supreme Court issued its opinion, was denied.

"Making the Most of Appellate Oral Argument"

The latest installment of Howard Bashman's monthly appellate practice column for Law.com is available at this link. This month's column begins, "An experienced appellate advocate once remarked that there are three versions of every appellate court oral argument: the oral argument that the advocate planned to deliver; the oral argument that the advocate actually delivered; and the oral argument that the advocate wished he had delivered."

"How Many Issues Should You Raise on Appeal?"

Howard Bashman's Law.com column this month is called, "How Many Issues Should You Raise on Appeal?" Some jurisdictions require a more formal statement of the "issues on appeal" than California does, and the article is primarily focused on those jurisdictions. Still, it is important for any appellate practitioner to carefully select the arguments to pursue most vigorously on appeal, which often means deemphasizing or even omitting your weaker arguments.

U.S. Supreme Court approves citation of unpublished federal opinions

As Law.com reported last week, the Supreme Court has approved proposed Federal Rule of Appellate Procedure 32.1, which, if Congress allows it to go into effect, will permit citation of unpublished federal opinions in federal courts. This development could impact the ongoing debate about whether California Rule of Court 977 should be similarly revised. If the California rule is ever changed, it could definitely affect UCL practice, because a great many UCL decisions are unpublished. As I previously reported, the Advisory Committee on Rules for Publication of Court of Appeal Opinions is considering certain revisions to Rule of Court 976, which guides the Court of Appeal in deciding whether an opinion should be published, but it is not considering whether to change the rules about citing unpublished opinions.

This development has been widely reported in the blogosphere, but my hat tip goes to Patently-O, whose feed reached my desktop first.

New appellate practice decision: Boyle v. CertainTeed Corp.

In Boyd v. CertainTeed Corp., ___ Cal.App.4th ___ (Mar. 10, 2006), the Court of Appeal explains the difference between preserving an argument for appeal and properly presenting that argument on appeal:

[Respondent] misunderstands the concept of implied waiver, or forfeiture of a claim. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court. (See Evid. Code, § 353, subd. (a) [evidentiary objection must be timely made and articulate specific ground for objection].) There is no requirement that a trial court objection be supported by extensive argumentation to avoid forfeiture. If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. (People v. Stanley (1995) 10 Cal.4th 764, 793.) This latter rule is founded on the principle that an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)

[Respondent] argues that the rule on appeal requiring claims of error to be supported by reasoned argument and legal citations extends to the trial court, and that a party forfeits a claim presented to the trial court unless the claim is supported by argumentation and citations to authority. The argument is untenable. In the appellate court, a party’s challenge to a ruling must affirmatively prove error, which necessitates argumentation and citation of authority. But in the trial court, a party’s challenge to a procedure is sufficient to preserve the issue on appeal if the challenge alerts the court to the alleged error, even without elaboration through argumentation and citation of authority.

(Slip op. at 4.) It's a good thing, too, because in the middle of trial there isn't time to thoroughly brief every point, as appellate-level practice requires.

Comments invited on proposed revisions to Rule of Court 976 regarding publication of Court of Appeal opinions

After a lengthy period of analysis, the Advisory Committee on Rules for Publication of Court of Appeal Opinions has issued its latest proposed revisions to Rule of Court 976 and is now seeking comments. The Committee's initial draft report, dated October 2005, is here (pdf) and it is quite interesting (as I mentioned in my original post on the draft report). The current proposed revisions, including a comment form, are here (pdf). Comments may also be submitted online. The Committee recommends reading both the initial report and the latest proposed revisions before venturing any comment. Comments are due by Friday, April 28, 2006.

New appellate practice decision: Garau v. Torrance Unified Sch. Dist.

Speaking of appellate practice, the Court of Appeal (Second Appellate District, Division Seven) also issued a rare published opinion on Wednesday dismissing an appeal for lack of appellate jurisdiction because the order purportedly appealed from—reclassifying the case from "unlimited" to "limited" jurisdiction—was not appealable. Garau v. Torrance Unified School Dist., ___ Cal.App.4th ___ (Mar. 1, 2006). The Court rejected the argument that "the reclassification order here is in effect an appealable 'final judgment' because the transfer to the limited jurisdiction department of the superior court eliminated the right to appellate review of [two] dismissed causes of action …," pointing out that review was available either through a writ proceeding or through an appeal from the final judgment dismissing the two claims. (Slip op. at 2.)

Although the case was not a class action, the opinion contains an interesting discussion of one of the leading class action decisions, Daar v. Yellow Cab Co., 67 Cal.2d 695 (1967):

The Daar Court’s primary concern was the demurrer and the fate of the dismissed class plaintiffs. Those dismissed plaintiffs were directly aggrieved by the order sustaining the demurrer as it removed them from the case and terminated the action as to the class. The class plaintiffs’ case was final irrespective of the transfer to the municipal court. Once dismissed these class plaintiffs could not have sought writ review of the transfer order under the former section 400 because their case was over and they were no longer parties in the remaining transferred action. The Daar Court’s decision to characterize the order sustaining the demurrer a final judgment is based on the recognition that absent an immediate right to appeal, those plaintiffs would lose all opportunity to obtain review of the order dismissing them from the action. Thus, in our view Daar involves a unique situation concerning class action claims, recognizing the right to an immediate appeal for dismissed class claimants. In fact, subsequent case law interpretations of Daar indicate the legacy of the case is not that reclassification/transfer orders are, standing alone, appealable final orders. Instead, Daar is cited as the original authority for an exception to the one-final judgment rule for certain “death knell” orders relating to class actions.

(Slip op. at 9-10 n.8 (emphasis added).) The lesson I would draw from that discussion is that orders tantamount to denial of class certification—such as an order dismissing one or more class claims at the pleading stage—are immediately appealable.

Court of Appeal can "depublish" its opinions?

On Wednesday, the Court of Appeal (Third Appellate District) issued an interesting order in which it "decertified" an opinion that it had previously certified for publication under Rule of Court 976. The Rules of Court do not expressly permit the Court of Appeal to, in effect, "depublish" an opinion; the Rules seem to limit that power to the Supreme Court. I asked Ray Cardozo, Chair of the Bar Association of San Francisco's Appellate Practice Section, about this. He replied:

I am familiar with instances in which parties have asked the court of appeal to decertify an opinion, but since I am not sure that any of those instances ever succeeded, I do not know if the question of the court's power to do so ever arose. I would read Rule 976(b) as implicitly conferring the power on the court of appeal if a majority concurs before the decision is final.

I agree it seems logical that the Court of Appeal should have the power to change the publication status of its own opinions before finality, but that power is certainly not explicit in the Rules of Court. I observe that as of this writing, the "decertified" opinion remains on the Court of Appeal's website as "published." UPDATE: Professor Martin explains the reason for the "decertification" here.

Today's California Supreme Court oral arguments start in 15 minutes and can be viewed online

The California Supreme Court is holding oral arguments in Sacramento today starting at 1:00 p.m., and for the second time this year, the arguments will be televised and made available via web feed (scroll down and click on "California Supreme Court Oral Arguments **LIVE**") through The California Channel. A list of the cases to be argued is available in this press release from last week (PDF). I hope this practice continues. [Via lrc-orbit.]

New class action decision: Figueroa v. Northridge Hospital Medical Center

In Figueroa v. Northridge Hospital Medical Center, ___ Cal.App.4th ___ (Oct. 20, 2005), which was published last week, the Court of Appeal (Second Appellate District, Division Two) held that an order denying a motion for leave to amend the complaint to add class action allegations is not an appealable order, at least when the parties and claims are otherwise unchanged. This case involved a UCL claim, but it did not arise in the context of Prop. 64. Nonetheless, it's obviously relevant. Many plaintiffs are seeking leave to amend their complaints to satisfy Prop. 64's requirements, including class action allegations. The lesson to be learned here: if leave to amend is denied, file a writ petition, not an ordinary appeal.

Comments sought on proposed revisions to Rule of Court 976

As I previously reported, the Supreme Court has convened an Advisory Committee on Rules for Publication of Court of Appeal Opinions whose charge is to "review the publication practices that exist within the Court of Appeal districts and their divisions" and to "consider whether the existing publication rules could be amended to better assist the courts in making their initial determination of whether to certify an opinion for publication." On October 19, the Committee released its Preliminary Report and Recommendations on Rules for Publication of Court of Appeal Opinions, including a proposal to amend Rule of Court 976. Public comments have been requested and are due by January 6, 2006. The preliminary report has a lot of interesting tidbits, such as the fact that a publication request by a party carries far more weight than a publication request by a non-party.

How to snatch defeat from the jaws of victory

An odd development yesterday in Shapell Industries, Inc. v. Superior Court, ___ Cal.App.4th ___ (Sept. 19, 2005). My original post on Shapell is here.

As you may recall, this case was decided in the context of a petition for a writ of mandate. Yesterday, the Court of Appeal issued a modification order explaining that after it issued its alternative writ, the trial court vacated the challenged order, thereby complying with the alternative writ. Unfortunately, nobody told the Court of Appeal about this. If the petitioners had done so, the Court of Appeal would have dismissed the proceeding as moot, and the petitioners would have achieved their goal. Instead, the Court of Appeal went on to fully analyze the merits. Ultimately, it issued an opinion discharging the alternative writ and denying the petition. In other words, the petitioners lost, and the trial court's original order was, in effect, affirmed. The Court of Appeal chastized the petitioners for not advising it of the trial court's action sooner:

We strongly caution petitioners against engaging in such conduct in the future, which would justify an award of sanctions against them were we inclined to impose them.

Ordinarily, we would dismiss a petition as moot if the trial court complies with the terms of the alternative writ. However, when a pending case involves a question of public interest that is likely to recur between the parties or others, “the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.” (In re William M. (1970) 3 Cal.3d 16, 23.) We find the issues in this case warrant our consideration. Further, given the conclusion that we reach, our failure to resolve the issue would result in a miscarriage of justice, since the outcome would be inconsistent with the conclusion we reach on the specified legal issue before us.

Modification Order, slip op. at 2-3 (emphasis added). If I were a trial judge, I would also take away this important lesson: An interim order granting an alternative writ—even one that stays all trial-level proceedings—doesn't necessarily indicate where the Court of Appeal is going. (The one part of this that's not entirely clear is how the trial court could have vacated its prior order after the alternative writ was issued if the Court of Appeal also stayed all proceedings.)

In appellate advocacy, where do you draw the line?

Yesterday's Daily Journal reported on an oral argument before the Ninth Circuit on Monday in which Judge Harry Pregerson rebuked the appellant's counsel for filing an "arrogant" brief that insulted the district judge. Thanks to über-blogger Howard Bashman, the brief in question is available online, along with a further summary of press coverage of the oral argument. According to the Daily Journal:

"Do you regard this as an effective way to present written advocacy?" Circuit Judge Harry Pregerson asked nationally recognized appellate specialist Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles. "You slam the district judge?" .... "I was a district judge for 12 years and if I read all that, I wouldn't like it," said Pregerson .... "I think you ought to apologize to the district judge."

Sometimes the line between advocacy and insult can be a fine one (although apparently not in this case). When you represent the appellant, your job is to argue that the trial judge made a mistake, plain and simple. I've always assumed that trial judges understand this reality, and won't take it personally (or retaliate against your client later) if you forcefully argue for reversal. It will be interesting to read a brief that Judge Pregerson believes crosses the line. You can also listen to the oral argument at this link (thanks again to Howard Bashman).