The Los Angeles County Bar Association

Appellate Courts Section Presents

Philip L. Goar

Night of the Roundtables

Tuesday, March 19, 2019

Program - 4:30 PM - 6:00 PM

California Court of Appeals , Los Angeles

1.5 CLE Hours (INCLUDES 1.5 HRS OF APPELLATE COURTS SPECIALIZATION CREDIT)

Provider #36

The Los Angeles County Bar Association is a State Bar of California approved MCLE provider.

The Los Angles County Bar Association certifies that this activity has been approved for MCLE

credit by the State Bar of California.

DISCUSSION LEADERS

Dana Adelstein is an alumnus of the University of California, San Diego

and Yale Law School. Before coming to the Court of Appeal, she taught legal

writing UCLA Law School and was a civil appellate practitioner at Greines,

Martin, Stein & Richland. She has been a research attorney for 12 years,

first for Justice Steven Suzukawa in Division Four, and now for Presiding

Justice Lee Smalley Edmon in Division Three.

Gina Calvelli took an unexpected path to the Court of Appeal. After going

to college in Indiana, she returned home to New York and worked as a

stagehand on and off Broadway and in TV. After 10 years in “show biz,” she

decided she wanted to go to law school, and determined after her first trip to

California, when she rode the train from San Diego to Oakland, that

California was where she wanted to be. After graduating from Stanford Law

School, she worked for a small antitrust/intellectual property/consumer class

action boutique in San Francisco before moving to Los Angeles, where she

worked for 9 years as a litigation associate, then partner, at Riordan &

McKinzie, where she developed a practice in appellate law. She escaped

private practice in 2001, and has been happily toiling away at the Court of

Appeal since then.

Pablo Drobny, a graduate of the Johns Hopkins University and Harvard

Law School, toiled as a writ attorney in Division Seven for 36 years, recently

retired, and in fear of idleness has now decided to enter private practice with

the California Appellate Law Group.

Dinh Ha has been a research attorney at the Court of Appeal for over 10

years. Prior to this, she attended UCLA School of Law and worked as a

litigation associate in a private firm for five years. She spends most of her

free time thinking about her next meal and where to get it.

Katherine Kehr has been a writ attorney in Division Eight since January

2018, so not quite as long as Pablo. She spent the last seven years before

joining the court working on appeals and writs in private practice. Katherine

graduated from Bryn Mawr College and USC Law School and spends her

Monday nights playing the cello in the LA Lawyers Orchestra.

Sharon Perlmutter skipped from kindergarten into first grade, thereby

bypassing that part of one’s education where you learn manners and sharing.

She graduated UC Berkeley with High Distinction in General Scholarship

and Highest Honors in Mathematics, the latter only because it is super-

intimidating. She obtained her J.D. from Yale Law School, worked at a law

firm for 18 months, ran screaming from private practice, and has been safely

ensconced in the warmth of the client-free ivory tower of the Reagan

Building, where she has been a a Court of Appeal research attorney for 25

years.

Merete Rietveld has been a research attorney at the Court of Appeal for six

years in Divisions 3, 8 and 5 doing both criminal and civil cases. Prior to the

Court of Appeal she worked as a law clerk for two judges at the Stanley Mosk

courthouse after having fled the field of litigation. She has a background in

writing and editing, and in hard times, freelanced as a giant fruit in the LA

Veggie Pride Parade.

Don’t ask Janet Tongsuthi how long she has been at the Court of Appeal.

It’s been a long time, but not quite as long as Sharon Perlmutter! Janet

graduated from UCLA Law School in 1995. Her first job was as a research

attorney at Los Angeles Superior Court. She then worked at a series of small

and large firms, practicing medical malpractice and business litigation, with

some real estate transactional work. She began her career at the Court of

Appeal in Division 5, but has been in Division 3 since 2004. She does all

manner of appeals, although she is partial to criminal ones. Take her use of

a contraction in this biography as an indicator she is fine with you doing the

same in your briefs.

NIGHT OF THE ROUNDTABLES:

STOP PUTTING PROOFS OF SERVICE IN MY RECORDS: Things You Do That Drive Us Crazy

Gina Calvelli and Janet Tongsuthi March 19, 2019

Research Attorneys’ Pet Peeves

Electronic Records/Filings

• Please follow the Electronic Formatting Requirements &

Guidelines (see http://www.courts.ca.gov/documents/2DCA-Electronic-

Formatting-Req-Guide.pdf).

• It makes our jobs so much more difficult when attorneys do not

properly bookmark the documents. We don’t like those attorneys.

It is really helpful when attorneys also bookmark each

exhibit to documents (or if a single document includes

multiple documents, such as a memo of points and

authorities filed with declarations attached, bookmark each

document). We like those attorneys.

It is even more helpful when descriptive names are given to

those exhibits (e.g., “Smith Deposition” instead of “Exhibit

A”). We like those attorneys even more.

• Make sure your PDF page numbers match your actual page

numbers.

• Please make your e-filed briefs and exhibits searchable (OCR) --

it cuts down on our scrolling time.

• Don’t scan exhibit volumes (for writ petitions) or appendices in

color unless there is a reason to do so. It makes the file much bigger

than it needs to be.

• Try to keep exhibit volumes less than 20 MB; if they are bigger,

they cannot be emailed on our system.

Records Generally

• Don’t include documents that are utterly unnecessary for the

appeal (e.g., separate proofs of service when there is no issue regarding

whether something was timely served, immaterial motions to continue

hearings or trial, etc.).

• Try to avoid including the same document multiple times in an

appendix -- e.g., a complaint that’s included on its own and then later

attached as an exhibit to several other documents. You can omit the

attached document and just include a notation that it has been omitted

and can be found elsewhere in the appendix.

• Don’t include documents that were not before the trial court.

• If you are using a clerk’s transcript and are going to be relying

upon trial exhibits, make sure to follow 8.122(a)(3) and ensure that they

are included in the CT.

• Include a complete table of contents at the head of each volume

of appendices or exhibit volumes (for writ petitions).

• If you are filing an appendix, please include in the table of

contents the page number where each exhibit to a document starts (or if

there are multiple documents combined into one, where each of those

documents start). And it would be helpful if there was a descriptive

name for each exhibit rather than just an exhibit number or letter.

Also, if you are using tabs in your appendix, it would be really terrific if

all those exhibits had their own tabs.

• If you choose not to list each exhibit in the table of contents (but

we really hope you don’t make this choice), please make sure there is

some sort of indication showing where one exhibit ends and the next

one starts -- i.e., a page where the tab was in the original document, but

please indicate what was on the tab (e.g., “Exhibit A,” a number, etc.)

• Make sure your appendix is in chronological order -- not

reverse-chronological order.

• Check the reproduction quality of your appendices (or the

clerk’s transcript after it is prepared) to ensure that critical documents

are legible. Often, the copy of a critical document included in an

appendix or CT is a copy of a copy of a copy, and can be extremely

difficult to read if the printing is small.

Briefs

• We do a lot of reading. We mean a lot. And many of us have

eyes that are, shall we say, closer to the end of the prime of their lives

than the beginning. So have mercy on us. Don’t cheat on the font size

(at least 13 point) or line spacing (1.5 or double spacing).

• Make sure your table of contents and table of authorities are

accurate. It is frustrating to have to search through your brief to find a

case or statutory citation, or the start of a section of argument. And try

to avoid using passim -- there are times when we are trying to find a

specific discussion of a case or statute, and it would be helpful if we

knew all of the pages on which it appears.

• Having clear and well-written headings are so helpful. It’s even

better (i.e., easier to read) if they are NOT IN ALL CAPS.

• Introductions to briefs just need to give us enough information

to orient ourselves. Is this an appeal from a demurrer, a motion for

summary judgment, a trial? What is the case about generally? What

are the primary contested issues? You don’t need to explain anything in

detail; leave that for the rest of the brief. Keep the introductions short!

• We know what RT, CT, AA, RA, JA, AR, AOB, RB, and ARB

mean. In fact, we use those abbreviations ourselves. You don’t need to

define them for us, unless there is something unusual that needs to be

explained.

• The previous comment notwithstanding, avoid the overuse of

acronyms. Commonly-used acronyms (FEHA, SLAPP, CBS, DWP,

DCFS, etc.) are fine. But if you are going to use an acronym (or an

abbreviation or jargon), make sure to define it first.

• Refer to the parties by name (short-formed if the name is long),

or by something relevant to the issues (e.g., the landlord, or the tenant),

or their trial designations (plaintiff or defendant). It generally is not

helpful to refer to them as “appellant” and “respondent” -- in fact, it

often leads to confusion. Also, if you use the parties’ names, be

consistent in the spelling of their names. It is surprising how often we

see a party’s name spelled more than one way (even by that party’s

counsel).

Statements of Facts

• Tell a story in your statement of facts; don’t just give us a

summary of each witness’s testimony.

• State the facts in light of the standard of review. Don’t leave

out facts that hurt your case, and don’t include facts that the fact finder

clearly could not have found to be true.

• Cite to the record in support of each fact. Don’t wait until

the end of the paragraph and give us a string of citations covering

numerous factual statements. Make sure the citation is accurate (this

is probably the most complained about issue). Don’t give us a multi-

page range when the support for the fact is only on a page or two. And

don’t give us unnecessary chain citations to the record for each fact.

Finally, don’t state a fact without citing to the record. If you don’t cite

to the record, we presume the fact is not supported by the record.

• Don’t cite to arguments (or statements) in trial court

motions/briefs as facts. Similarly, don’t cite as facts the statements in

your separate statement in support of/opposition to a motion for

summary judgment. Although citations to the separate statement can

be helpful, you must also cite to the evidence that supported those

statements in the trial court.

• Don’t include legal argument in your statement of facts. It

annoys us.

Legal Arguments

• It is not helpful to simply recycle your trial briefs -- not only are

they (usually) already in the record (so we have read them), but they

don’t take into account the standard of review on appeal.

• There is no point in wasting several pages on the standard of

review; unless the appropriate standard is in flux, a short statement of

what standard applies to the issue is sufficient. We really do not need

any extended discussion of what, for example, the substantial evidence

standard means or how it applies. We know what it means and how it

applies. We do this for a living.

• Having (briefly) stated the standard of review, be sure to tie

your argument to that standard.

• Keep your summaries of issues and argument as short as

possible -- just give us a brief outline of where you are going.

• Be concise. There is no need to repeat (and repeat and repeat)

your arguments. We got it the first time.

• Be selective in the issues you raise, and avoid arguments that

are sure to lose. Making weak arguments when you have stronger ones

you should be focusing on does not endear you to the research attorney.

• Be honest about the facts and law -- don’t mischaracterize

them. We check your factual citations and read the cases you cite, and

if we find they aren’t what you say they are, we will view everything in

your brief with skepticism. Same goes for mischaracterizing your

opponent’s argument. When we see dishonesty in briefing, we

remember it, and will be suspicious of everything that attorney (or law

firm) submits. Forever.

• Don’t ignore or try to hide bad law, because we will find it;

instead, address it head on, and explain why it doesn’t affect your

argument.

• Cite to more current case law where possible. We understand

that sometimes a case from 1901 is the most applicable to your issue (or

possibly the only applicable case). Most of the time, though, there is

something from this century that stands for the same proposition.

• Stay on top of current case and/or statutory law that may affect

the issues in your case. It is annoying to get supplemental briefing on

issues that could have been addressed in the AOB. But if you need to

file a supplemental brief to address new law, please submit it as soon as

possible, since we generally try to work up cases well in advance of oral

argument.

• Don’t argue that an issue is forfeited when it clearly is not (e.g.,

challenging the sufficiency of the evidence is never forfeited; if the trial

court has a sua sponte duty to give an instruction in a criminal case, the

defendant does not forfeit the issue by failing to object). Asserting

forfeiture in these instances indicates to us that you have not done your

research and reflects poorly on you.

• Expressing outrage or casting aspersions on the motives or

intelligence of your opponent (or the trial judge) is not helpful, and only

distracts us from your actual arguments. The same goes for irrelevant

discussions of how awful the other side was in responding to discovery,

seeking trial court continuances, etc.

• Overuse of bold, italics, or other forms of emphasis in briefs

defeats the purpose of emphasis. Use emphasis sparingly and only

when necessary. The same goes for use of adjectives and adverbs for

purportedly persuasive effect.

• Please avoid irrelevant, misleading, or excessive boilerplate in

your briefs. It is really annoying.

• For repeat players (such as CAP attorneys), please stop copying

losing arguments from prior cases you worked on without trying to

distinguish those losing cases.

• In criminal cases, not every error is one of federal constitutional

magnitude. But if you are trying to preserve the issue for possible

appeal to the federal court, just include a brief argument; don’t spend

pages and pages discussing the constitutional issue when you know it is

going to be decided on state law grounds.

• Concede points you should concede. It enhances your

reputation, and really makes us sit up and notice your other points.

• If the issues in your appeal are in a less common area of law, it

can be helpful to include some of the general legal principles governing

that area and to place your particular issue into a broader context. We

generally have experience in a pretty wide range of law, but may have

little familiarity with the area of law involved in your case. A citation

to a secondary source for background information, if available, could be

helpful for us to quickly get up to speed on your specific issue.

• Don’t seek sanctions on appeal unless they clearly are

warranted. If you do seek sanctions, follow all of the required

procedures. A procedurally improper sanctions request (such as one

included in the brief and not a separate motion) does not come across as

serious, and does nothing more than damage your own credibility.

• Reply briefs:

Don’t rehash your opening brief. We just read it. (This is a

common complaint among research attorneys.)

Be sure to address arguments made and cases discussed in

the respondent’s brief if you didn’t adequately address them

in the opening brief.

You really don’t need to explain that even though you are

not rehashing every argument you raised in the opening

brief, it should not be construed as waiving any of those

arguments. We know that.

• If you are a respondent, be sure to address all of the appellant’s

arguments. You don’t have to spend a lot of time on all of them (if some

are easily disposed of), but it is helpful to us to have your input.

• When opposing a pro per, it is really important that your brief

gives a clear -- and honest -- recitation of the factual and procedural

history. And don’t make arguments that you know are wrong, in the

hope that the pro per won’t notice. Because we will.

• Don’t cite to overruled cases, or unpublished California cases.

• Use the California Style Manual form for citing to cases.

Oral Argument

• Please, we beg you, reply to calendar notices promptly! We try

to work first on cases that are going to be argued, so the justices have

plenty of time to look them over before oral argument. We can try to

guess whether a case will waive oral argument, but sometimes we are

wrong and everyone then has to scramble to get the case worked up in

time for useful consideration before argument.

• Be realistic about your time estimates. If the case does not

present a fairly unique issue of law or an unusual application of law, it

is unlikely to require 30 minutes of oral argument. Remember, the

court has already read your briefs and worked up the case. Also, if you

are inclined to request less than 5 minutes, you might want to think

about whether oral argument is required at all -- after all, you can’t

genuinely argue a case in less than 5 minutes.

• When you realize you’ve won, please stop (or, if you are

respondent, don’t start) arguing. We know you’ve done a lot of work to

prepare for oral argument, but sometimes it is completely obvious from

the justices’ questions and/or comments that you are going to win. If

that’s the case, just ask if the court has any questions. If no one does,

submit and sit down.

• Don’t call the justices “you guys.” For real. More than one

research attorney has complained about this.

Miscellaneous

• For writ petitions:

If you are seeking a stay, be sure to put “Stay Requested” on

the cover of the petition -- it allows our clerks to flag the

petition and circulate it promptly.

Don’t request a stay if the impending hearing/trial/execution

order is months away.

Don’t be surprised if your petition and stay request are

denied if you waited until the last possible minute to file

your petition.

We understand that you often are working under severe

time constraints, but please check the exhibits to make sure

that all the pages have been attached and are in order; the

writ attorneys report that they regularly get exhibits that

are missing pages or are out of order.

• In a dependency case, if we send out a letter asking if the case

is moot because the child is back with the parent, please think about it,

and before you respond that you want us to address the appeal anyway,

counsel your client -- does the client really want an opinion from the

Court of Appeal affirming the findings of the juvenile court finding

justification for the removal of the child in the first place?

• Check your tone in petitions for rehearing. It is not helpful to

tell the justices that they’re idiots, or that they clearly did not read your

briefs. Just calmly discuss your issue with the court’s opinion. But

don’t just rehash what you said in your prior briefs. That will get you

nowhere.

NIGHT OF THE ROUNDTABLES:

DEMYSTIFYING APPELLATE MOTIONS

Dana Adelstein and Dinh Ha March 19, 2019

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Demystifying Appellate Motions

Night of the Round Tables, March 19, 2019

Dana Adelstein and Dinh Ha

1. Request for Extension of Time

2. Request to Augment the Record

3. Request for Judicial Notice

4. Motion to Dismiss Appeal

5. Motion for Appellate Sanctions

6. Request for Publication

7. Petition for Rehearing

8. Motion to File Amicus Brief

9. Request to Expedite Appeal

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1. Request for Extension of Time

Rule 8.212: parties may stipulate to an extension of up to 60 days. (Rule

8.212(b)(1).) A stipulation is effective upon filing.

Parties may apply for additional time upon a showing of good cause. (Rules

8.212(b)(3), 8.220(d).)

The rules require that an application to extend time include a statement of

the present due date, the length of the extension requested, the length of any prior

extensions (either by stipulation or application), and good cause for the extension.

(Rule. 8.60, 8.63.)

Most divisions will grant an additional one or two 30-day extensions beyond

the 60 day stipulated extension.

If the brief is not filed by the due date, court will issue default notice giving

the party an additional 15 days to file. (Rule 8.220(a).) If you seek more time after

default notice has issues, you may get it, but the court will not issue a second

default notice. Thus, if the brief is not filed by the new due date, the appeal can be

immediately dismissed without further notice.

2. Request to Augment the Record

The court may order the record augmented to include: (A) Any document

filed or lodged in the case in superior court; or (B) a certified transcript—or agreed

or settled statement—of oral proceedings not designated under rule 8.130. (Rule

8.155(a).)

You must attach to the motion a consecutively-paginated copy of the material

you want added to the record. (Rule 8.155(a)(2).)

Court will only augment with material lodged or filed in the trial court.

(Rule 8.155(a)(1).)

3. Request for Judicial Notice

To obtain judicial notice, serve and file a motion for judicial notice with a

proposed order. The motion must state (1) why the matter to be noticed is relevant

to the appeal; (2) whether the material was presented below and, if so, whether

judicial notice was taken; (3) why the matter is subject to judicial notice under

Evidence Code §§ 451, 452, or 453; and (4) whether the matter to be noticed relates

to proceedings occurring after the order or judgment that is the subject of the

appeal. (Rule 8.252(a).)

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The material to be judicially noticed must be consecutively paginated.

The Court of Appeal may take judicial notice of material that was not

judicially noticed in the trial court, so long as it could have been noticed. (Ev. Code,

§ 459.)

4. Motion to Dismiss Appeal

The requirements for filing a motion to dismiss appeal before record is filed

are set in out in Rule 8.57.

DO bring a motion to dismiss if there is a jurisdictional defect—i.e., if the

notice of appeal is untimely or appeal has been taken from a non-final judgment.

DON’T bring a motion to dismiss because you believe the appeal is frivolous.

The court will not consider the merits of the appellate issues in connection with a

motion.

5. Motion for Appellate Sanctions

Grounds for sanctions: Under rule 8.278, the Court of Appeal may impose

sanctions, including the award or denial of costs, on a party or an attorney for:

(1) Taking a frivolous appeal or appealing solely to cause delay; (2) Including in the

record any matter not reasonably material to the appeal's determination; (3) Filing

a frivolous motion; or (4) Committing any other unreasonable violation of the rules.

(Rule 8.276(a).)

If you are seeking sanctions, you must serve and file the sanctions motion,

supported by a declaration supporting the amount of any monetary sanctions, no

later than 10 days after the appellant’s reply brief is due. (Rule 8.276(b).)

If the court is considering awarding sanctions, it must give notice in writing

and must give the other party 10 days to respond. (Rule 8.276(c), (d).) So … there

is no need to respond to a request for sanctions unless the court asks.

As a practical matter, sanctions motions are rarely granted. It is probably

not worth asking for unless there has been extremely egregious conduct.

6. Request for Publication

Any person may request that an unpublished opinion be ordered published by

submitting a letter to the issuing court. Letter must “concisely stat[e] the person’s

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interest and the reason why the opinion meets a standard for publication.” (Rule

8.1120(a)(1), (2).)

Generally , a Court of Appeal opinion should be certified for publication if the

opinion establishes a new rule of law, or applies an existing rule of law to a set of

facts significantly different from those stated in published opinions, etc. (Rule

8.1105(c).)

The request to publish must be filed and served within 20 days after the

opinion is filed. (Rule 8.1120(a)(3), (2).)

If we deny request, we are required to forward the request to the Supreme

Court with a copy of our opinion, our recommendation, and a brief statement of

reasons.

The court will order publication if the opinion meets the standards of Rule

8.1105. A publication request can be helpful to the court if it explains how the

opinion may be relevant in other cases.

7. Petition for Rehearing

Petition for rehearing must be filed within 15 days after the filing of the

opinion. (Rule 8.268(a).)

The other side may not file an answer to a petition for rehearing unless the

court requests one. A petition for rehearing will not be granted unless the court

requests an answer. (Rule 8.268(b)(2).)

Best use of petition for rehearing—to address a discrete legal or factual error

the court may not have thought about. For example, an erroneous statement of a

particular fact or an ambiguous disposition. Don’t use the petition to reargue the

points made in the briefs—the court has already thought about those and won’t

revisit them—or to raise entirely new legal issues.

We have no discretion to extend our time to rule on a petition for rehearing.

(Rule 8.268(c).)

8. Request to file amicus brief

Within 14 days after the last appellant's reply brief is filed or could have been

filed, a potential amicus may serve and file an application for permission to file an

amicus curiae brief. (Rule 8.200(c)(1).)

Court may allow later filing for good cause. (Rule 8.200(c)(1).)

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The application must state the applicant’s interest and explain how the

proposed amicus curiae brief will assist the court in deciding the matter. (Rule

8.200(c)(2).)

Courts will generally grant requests to file amicus briefs. If they offer a

different perspective or legal argument, they can be helpful.

9. Request to expedite appeal

Party may seek to expedite an appeal by filing a motion for calendar

preference. Request for preference must be filed “promptly.” As used in this rule,

“calendar preference” means an expedited appeal schedule, which may include

expedited briefing and preference in setting the date of oral argument. (Rule 8.240.)

Most divisions put most cases on calendar as soon as the briefing is complete.

So, as a practical matter, the best way to speed up an appeal is to proceed by

appellant’s appendix rather than CT, and to seek to expedite briefing.

10. Miscellaneous stuff

Stipulate to anything you can.

Submit a proposed order with your motion!

If there is a not a need for an immediate ruling, we will typically defer ruling

pending decision on the merits.

We will typically hold a motion for 15 days to permit the other side to file

opposition. Failure to file opposition may be deemed consent to the motion. (Rule

8.54.)

New authority—we appreciate a letter apprising us of new authority relevant

to briefed issues, but the letter should provide only a citation and a reference to the

issue to which the new authority is relevant, not additional argument. (Rule

8.254.)

Request to consolidate—if one of the appeals has already been briefed, it may

be best to consolidate solely for purposes of oral argument and decision, rather than

for all purposes. Alternatively, can simply coordinate the cases and schedule them

for the same calendar.

Motion to strike a brief for noncompliance with Rules of Court. If a brief does

not comply with Rule 8.204, the reviewing court clerk may decline to file it, but

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must mark it “received but not filed” and return it to the party. If the brief is filed,

the reviewing court may, on its own or a party’s motion, order the brief returned for

corrections and refiling within a specified time, strike the brief with leave to file a

new brief within a specified time, or disregard the noncompliance. (Rule 8.204(e).)

The court typically will disregard the noncompliance (if minor) or, alternatively, will

give the party a chance to comply with the rules.

Replies in support of motions—not provided for in the rules, and generally

not necessary or helpful.

NIGHT OF THE ROUNDTABLES:

SURVEY SAYS: A Survey of Appellate Court Research Attorneys

Sharon Perlmutter and Merete Rietveld March 19, 2019

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2

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From what law school did you graduate?

18 – UCLA

5 – Loyola

4 – USC

4 – Southwestern

4 – U.C. Davis

3 – Harvard

3 – Georgetown

2 – Yale

2 – U. Michigan

2 – Stanford

2 – U. Berkeley

2 – Cardozo

1 – Arizona, Boston College, Hastings, NE University, NYU, U. Virginia, U.

Chicago, U. San Diego, Whittier

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• I do all kinds of appeals.

• I do all kinds of writs.

• Criminal appeals.

• Civil appeals.

Death penalty cases/ dependency/ workers’ compensation.

• My justice.

• I make a collective decision with my chambers/ the other writ attorney.

• The lead attorney.

It depends.

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• No, I am the first to open the file.

• Yes, my justice has.

• It varies too much for me to answer.

It depends.

• While I’m working through the issues. • When I first think we might have a disagreement.

• When I’m writing the case.

• At the outset of the case.

It depends.

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record?

This is a serious violation of the

rule that the record be represented

neutrally.

It is counsel’s duty to be a zealous

advocate, and I anticipate a certain

degree of spin.

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• I don’t like them if they could’ve been avoided by proofreading in the first place.

• I like them if they correct erroneous record citations.

• I like them if they address new law.

It depends.

• I at least skim all of it, looking for possibly relevant material.

• All of it. • Only the stuff that could be possibly be relevant.

It depends.

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• It depends.

• However many I need to get a handle on the answer.

• However many I need PLUS anything from the opposing brief which might go against my

tentative result.

• All of them

It depends

Only the ones discussed.

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• It makes me think the appellant does not care.

• Oral argument does not change things so why wouldn’t you waive?

Depends on the case.

It’s counsel’s call.

Waiver is cost-effective for the client unless the appeal is complex or a close call.

In criminal cases, it is an abrogation of counsel’s constitutional obligations.

The key purpose of oral argument is to answer any questions the justices may have.

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We do not march through arguments - we collapse and synthesize them into bigger picture issues.

As a result, a brief that raises dozens of arguments does the party no good.

Please be succinct. Don't hide the ball; address the other side’s issues head on.

I want them to know that the most important thing they can do is to lay out the facts and the law

clearly, concisely, and in logical order. Also, I know when a party is trying to manipulate us by

bringing in extraneous material that isn't directly relevant to the facts of the case. That

undermines the credibility of that party’s position.

Don't argue forfeiture out of habit. Concede ostentatiously when you're wrong; it builds

credibility.

You WILL develop a reputation eventually. A reputation for scrupulous honesty will serve you

and your clients well. A reputation for showing up to oral argument drunk won't. And for the love

of God, have someone neutral read your petition for rehearing & check it for tone before you file

it.

I take my job very seriously and do my best to objectively advise my judge, who also takes his/her

job very seriously. I read the entire record and almost all of the cases you cite, and it frustrates me

when you mischaracterize them or insinuate that the court has not read them.

It is not helpful to us when you recycle your trial court briefs. If you have two strong issues and

five weak issues, go with the strong ones and leave out the weak ones or keep the discussion to a

minimum. Your brief will be more credible to me. quit wasting time on three pages of the

standard of review (unless you have the rare case where the appropriate standard is in flux),

Please keep reply briefs short.

It is always preferable for you to address problems in your case up front, rather than have me find

them.

And please don't use "passim" in the table of contents.

With unparalleled dedication to the pursuit of justice. :-)

NIGHT OF THE ROUNDTABLES:

WRITS

Pablo Drobny and Katherine Kehr March 19, 2019

WRIT PETITIONS

Jurisdiction

The Court of Appeal has original jurisdiction over writ petitions. (Cal. Const., art. VI, § 10.)

Writ of mandate

C.C.P. § 1085 (a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.

C.C.P. § 1086 The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.

CCP §1087 The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a time and place then or thereafter specified by court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.

C.C.P. § 1088 When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.

Writ of prohibition

C.C.P. § 1102 The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.

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C.C.P. § 1104 The writ must be either alternative or peremptory. The alternative writ must command the party to whom it is directed to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court at a time and place then or thereafter specified by court order why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained must be omitted.

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Petition content Rule 8.486 Petitions (writs of mandate, certiorari, and prohibition in the Supreme Court and Court of Appeal) (a) Contents of petition

(1) If the petition could have been filed first in a lower court, it must explain why the reviewing court should issue the writ as an original matter. (2) If the petition names as respondent a judge, court, board, or other officer acting in a public capacity, it must disclose the name of any real party in interest. (3) If the petition seeks review of trial court proceedings that are also the subject of a pending appeal, the notice “Related Appeal Pending” must appear on the cover of the petition and the first paragraph of the petition must state:

(A) The appeal’s title, trial court docket number, and any reviewing court docket number; and (B) If the petition is filed under Penal Code section 1238.5, the date the notice of appeal was filed.

(4) The petition must be verified. (5) The petition must be accompanied by a memorandum, which need not repeat facts alleged in the petition. (6) Rule 8.204(c) governs the length of the petition and memorandum, but, in addition to the exclusions provided in that rule, the verification and any supporting documents are excluded from the limits stated in rule 8.204(c)(1) and (2). (7) If the petition requests a temporary stay, it must comply with the following or the reviewing court may decline to consider the request for a temporary stay:

(A) The petition must explain the urgency. (B) The cover of the petition must prominently display the notice “STAY REQUESTED” and identify the nature and date of the proceeding or act sought to be stayed. (C) The trial court and department involved and the name and telephone number of the trial judge whose order the request seeks to stay must appear either on the cover or at the beginning of the text.

(b) Contents of supporting documents (1) A petition that seeks review of a trial court ruling must be accompanied by an adequate record, including copies of:

(A) The ruling from which the petition seeks relief; (B) All documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position; (C) Any other documents or portions of documents submitted to the trial court that are necessary for a complete understanding of the case and the ruling under review; and (D) A reporter’s transcript of the oral proceedings that resulted in the ruling under review.

(2) In exigent circumstances, the petition may be filed without the documents required by (1)(A)-(C) but must include a declaration that explains the urgency and the

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circumstances making the documents unavailable and fairly summarizes their substance. (3) If a transcript under (1)(D) is unavailable, the record must include a declaration:

(A) Explaining why the transcript is unavailable and fairly summarizing the proceedings, including the parties’ arguments and any statement by the court supporting its ruling. This declaration may omit a full summary of the proceedings if part of the relief sought is an order to prepare a transcript for use by an indigent criminal defendant in support of the petition and if the declaration demonstrates the need for and entitlement to the transcript; or (B) Stating that the transcript has been ordered, the date it was ordered, and the date it is expected to be filed, which must be a date before any action requested of the reviewing court other than issuance of a temporary stay supported by other parts of the record.

(4) If the petition does not include the required record or explanations or does not present facts sufficient to excuse the failure to submit them, the court may summarily deny a stay request, the petition, or both.

(c) Form of supporting documents (1) Documents submitted under (b) must comply with the following requirements:

(A) If submitted in paper form, they must be bound together at the end of the petition or in separate volumes not exceeding 300 pages each. The pages must be consecutively numbered. (B) If submitted in paper form, they must be index-tabbed by number or letter. (C) They must begin with a table of contents listing each document by its title and its index number or letter. If a document has attachments, the table of contents must give the title of each attachment and a brief description of its contents.

(2) The clerk must file any supporting documents not complying with (1), but the court may notify the petitioner that it may strike or summarily deny the petition if the documents are not brought into compliance within a stated reasonable time of not less than 5 days. (3) Rule 8.44(a) governs the number of copies of supporting documents to be filed in the Supreme Court. Rule 8.44(b) governs the number of supporting documents to be filed in the Court of Appeal.

(d) Sealed and confidential records Rules 8.45-8.47 govern sealed and confidential records in proceedings under this chapter.

(e) Service (1) If the respondent is the superior court or a judge of that court, the petition and one set of supporting documents must be served on any named real party in interest, but only the petition must be served on the respondent. (2) If the respondent is not the superior court or a judge of that court, both the petition and one set of supporting documents must be served on the respondent and on any named real party in interest.

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(3) In addition to complying with the requirements of rule 8.25, the proof of service must give the telephone number of each attorney served. (4) The petition must be served on a public officer or agency when required by statute or rule 8.29. (5) The clerk must file the petition even if its proof of service is defective, but if the petitioner fails to file a corrected proof of service within 5 days after the clerk gives notice of the defect the court may strike the petition or impose a lesser sanction. (6) The court may allow the petition to be filed without proof of service.

Rule 8.112. Petition for writ of supersedeas (a) Petition

(1) A party seeking a stay of the enforcement of a judgment or order pending appeal may serve and file a petition for writ of supersedeas in the reviewing court. (2) The petition must bear the same title as the appeal and, if known, the appeal’s docket number. (3) The petition must explain the necessity for the writ and include a memorandum. (4) If the record has not been filed in the reviewing court:

(A) The petition must include a statement of the case sufficient to show that the petitioner will raise substantial issues on appeal, including a fair summary of the material facts and the issues that are likely to be raised on appeal. (B) The petitioner must file the following documents with the petition:

(i) The judgment or order, showing its date of entry; (ii) The notice of appeal, showing its date of filing; (iii) A reporter’s transcript of any oral statement by the court supporting its rulings related to the issues that are likely to be raised on appeal, or, if a transcript is unavailable, a declaration fairly summarizing any such statements; (iv) Any application for a stay filed in the trial court, any opposition to that application, and a reporter’s transcript of the oral proceedings concerning the stay or, if a transcript is unavailable, a declaration fairly summarizing the proceedings, including the parties’ arguments and any statement by the court supporting its ruling; and (v) Any other document from the trial court proceeding that is necessary for proper consideration of the petition.

(C) The documents listed in (B) must comply with the following requirements: (i) If filed in paper form, they must be bound together at the end of the petition or in separate volumes not exceeding 300 pages each. The pages must be consecutively numbered; (ii) If filed in paper form, they must be index-tabbed by number or letter, and

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(iii) They must begin with a table of contents listing each document by its title and its index number or letter.

(5) The petition must be verified. (b) Opposition

(1) Unless otherwise ordered, any opposition must be served and filed within 15 days after the petition is filed. (2) An opposition must state any material facts not included in the petition and include a memorandum. (3) The court may not issue a writ of supersedeas until the respondent has had the opportunity to file an opposition.

(c) Temporary stay (1) The petition may include a request for a temporary stay under rule 8.116 pending the ruling on the petition. (2) A separately filed request for a temporary stay must be served on the respondent. For good cause, the Chief Justice or presiding justice may excuse advance service.

(d) Issuing the writ (1) The court may issue the writ on any conditions it deems just. (2) The court must hold a hearing before it may issue a writ staying an order that awards or changes the custody of a minor. (3) The court must notify the superior court, under rule 8.489, of any writ or temporary stay that it issues.

Rule 8.116. Request for writ of supersedeas or temporary stay (a) Information on cover

If a petition for original writ, petition for review, or any other document requests a writ of supersedeas or temporary stay from a reviewing court, the cover of the document must:

(1) Prominently display the notice “STAY REQUESTED”; and (2) Identify the nature and date of the proceeding or act sought to be stayed.

(b) Additional information The following information must appear either on the cover or at the beginning of the text:

(1) The trial court and department involved; and (2) The name and telephone number of the trial judge whose order the request seeks to stay.

(c) Sanction If the document does not comply with (a) and (b), the reviewing court may decline to consider the request for writ of supersedeas or temporary stay.

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SELECTED SPECIAL SERVICE REQUIRMENTS Rule 8.29 Service on nonparty public officer or agency (a) Proof of service When a statute or this rule requires a party to serve any document on a nonparty public officer or agency, the party must file proof of such service with the document unless a statute permits service after the document is filed, in which case the proof of service must be filed immediately after the document is served on the public officer or agency. (b) Identification on cover When a statute or this rule requires a party to serve any document on a nonparty public officer or agency, the cover of the document must contain a statement that identifies the statute or rule requiring service of the document on the public officer or agency in substantially the following form: “Service on [insert name of the officer or agency] required by [insert citation to the statute or rule].” (c) Service on the Attorney General In addition to any statutory requirements for service of briefs on public officers or agencies, a party must serve its brief or petition on the Attorney General if the brief or petition:

(1) Questions the constitutionality of a state statute; or (2) Is filed on behalf of the State of California, a county, or an officer whom the Attorney General may lawfully represent in:

(A) A criminal case; (B) A case in which the state or a state officer in his or her official capacity is a party; or (C) A case in which a county is a party, unless the county's interest conflicts with that of the state or a state officer in his or her official capacity.

Bus. & Prof. Code §§ 17209 [UCL] & 17536.5 [False Advertising] If a violation of this chapter is alleged or the application or construction of this chapter is in issue in any proceeding in the Supreme Court of California, a state court of appeal, or the appellate division of a superior court, each person filing any brief or petition with the court in that proceeding shall serve, within three days of filing with the court, a copy of that brief or petition on the Attorney General, directed to the attention of the Consumer Law Section at a service address designated on the Attorney General’s official Web site for service of papers under this section or, if no service address is designated, at the Attorney General’s office in San Francisco, California, and on the district attorney of the county in which the lower court action or proceeding was originally filed. Upon the Attorney General’s or district attorney’s request, each person who has filed any other document, including all or a portion of the appellate record, with the court in addition to a brief or petition shall provide a copy of that document without charge to the Attorney General or the district attorney within five days of the request. The time for service may be extended by the Chief Justice or presiding justice or judge for good cause shown. No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the petition or brief on the Attorney General and district attorney is filed with the court.

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Civ. Code § 51.1 [Unruh] If a violation of Section 51, 51.5, 51.7, 51.9, or 52.1 is alleged or the application or construction of any of these sections is in issue in any proceeding in the Supreme Court of California, a state court of appeal, or the appellate division of a superior court, each party shall serve a copy of the party's brief or petition and brief, on the State Solicitor General at the Office of the Attorney General. No brief may be accepted for filing unless the proof of service shows service on the State Solicitor General. Any party failing to comply with this requirement shall be given a reasonable opportunity to cure the failure before the court imposes any sanction and, in that instance, the court shall allow the Attorney General reasonable additional time to file a brief in the matter.

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SELECTED FILING DEADLINES File the petition as soon as you can. The petition is deemed filed when the documents are received by the clerk's

office. The special rules for overnight delivery of briefs do not apply to writs. (Rule 8.25(b)(4).)

10 days after service of written notice of order

Disqualification/challenge of a judge Code Civ. Proc., § 170.3(d)

Quash service denied Code Civ. Proc., § 418.10(c)

20 days after service of written notice of order

Coordination Code Civ. Proc., § 404.6

Expunge lis pendens Code Civ. Proc., § 405.39

Good faith settlement Code Civ. Proc., § 877.6(e)

Inspection of public records Gov. Code, § 6259(c)

Reclassify civil action Code Civ. Proc., § 403.080

Summary judgment denied or summary adjudication

Code Civ. Proc., § 437c(m)(1)

Venue Code Civ. Proc., § 400

20 days after first arraignment

Juvenile unfitness Rule 5.770(g)

15 days after entry of order denying motion to dismiss

Set aside information or indictment Pen. Code, §§ 995, 999a

30 days after entry of order granting or denying motion to suppress evidence

Suppression of evidence Pen. Code, §§ 1538.5 (i), (o)

30 days after issuance of final ALRB order

Agricultural Labor Relations Board (ALRB) Lab. Code, § 1160.8

30 days after PUC decision on rehearing

Public Utilities Commission (PUC) Pub. Util. Code, § 1756

45 days after denial or disposition of reconsideration

Workers’ Compensation Appeals Board (WCAB)

Lab. Code, § 5950

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SELECTED CASES Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266 General criteria for granting writ petitions: (1) the issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue; (2) the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal. Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 Explanation of an alternative writ: If the petition is in proper form and states a basis for relief, the Court of Appeal may issue an alternative writ which commands the superior court to act in conformity with the prayer of the petition or, alternatively, show cause before the Court of Appeal why it should not be ordered do so. If the superior court “complies” (i.e., elects to proceed as directed), the petition becomes moot. If the superior court does not comply, then the parties must serve and file briefs as set forth in the alternative writ. The matter is then a “cause” to be decided “in writing with reasons as stated,” as required by article VI, section 14 of the Constitution. The Court of Appeal may grant relief, but it may also deny the petition. Circumstances under which a peremptory writ may issue “in the first instance” without oral argument: “when it appears that the petition and opposing papers on file adequately address the issues raised by the petition, that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition of the petition.” Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233 Circumstances under which a “suggestive” Palma notice may issue; its issuance indicates the manner in which the Court of Appeal is prepared to decide the merits of the writ petition, based upon what was before it when the notice was prepared, but such a notice is not binding upon either the trial court or the appellate court.

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Pet Peeves/Do’s & Don’ts 1. Stay requests with no explanation (on cover and in a separate section of the petition). 2. Unnecessarily “hot” writ petitions. (“Your poor planning is not my emergency.”) 3. No clear prayer for relief. (Sometimes, parties complain about a lot of different things and it is unclear precisely what they are challenging/asking Court of Appeal to do.) 4. No simple statement regarding timeliness (with citations to the record and to authority). 5. No or few cites to the record. 6. Parties citing to their own trial court P’s & A’s instead of to the actual evidence. (This frequently happens in petitions challenging the denial of summary judgment or adjudication. Instead of citing to the actual documentary evidence, parties will cite to their own separate statement.) 7. Citing to an entire pleading for a discrete and limited factual assertion. (For example, “Jones admitted he personally prepared the report. (Exh. 5, pp. 136-196.)”) 8. No index of exhibits. 9. Repetition (e.g., petition portion recites the facts in detail, then facts are presented again after the verification, as part of P’s & A’s).

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Writ Process Flow Chart Petition and

supporting documents filed

Forwarded to writs attorney for review

Opposition may be filed (with or without court order)

Denial order filed. Final forthwith; case complete.

Order to Show Cause or Alternative Writ issued

If respondent court “complies” with Alt. Writ, appellate court issues order dismissing writ petition as moot.

Formal briefing in form of written return and reply filed.

Scheduled for oral argument

Oral argument held and cause submitted

Opinion filed; remittitur issued after 60 days

A writ petition is an application for the court to create a cause to be decided on the merits of the case.

A cause is created when the court issues an Order to Show Cause or Alternative Writ. If an OSC or Alt.

Writ issues, the court must decide the case by opinion.

If the petitioner requests it or the parties stipulate to

dismiss the petition, the court must discharge the OSC or Alt. Writ.