Cal. Supreme Court Depublishes Recent PAGA Opinion
In Doe v. Regents of the University of California, the Second Appellate District held a student subject to a Title IX investigation, threatening to impose suspension for an entire academic, year was entitled to seek a preliminary injunction in the Superior Court.
The student was ultimately exonerated, and was awarded attorneys' fees under Code Civ. Proc., § 1021.5 for conferring a significant public benefit in light of the university's failure to follow its own policies.
Jeff Lewis and I covered this case on the fourth episode of the California Appellate Law Podcast, www.CALPodcast.com. Additional notes available here.
Last week, however, the Supreme Court, while denying the university's petition for review, depublished the Second District's opinion. The upshot is that other students may not use the decision against schools similarly refusing to follow their own policies in the future. The Second District had hoped: "The injunction should deter UCSB from violating its policies requiring prompt resolution of Title IX allegations, particularly where interim suspensions are issued.”
The depublication order, alas, makes this less likely. The process, as is too often the case, will remain the punishment.
Read more here.
Updates from the Fourth Appellate District
At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: Justice Judith McConnell from Division One (San Diego), Justice Manuel Ramirez from Division Two (Riverside), and Justice Kathleen O'Leary from Division Three (Santa Ana). Some highlights:
Caseloads:
Div. 1: Crim. 45%; Civ. 48%; Juv. 7% (down from 20-25%; they don't know why)
Div. 2: Crim. 50%; Civ. 45%; Juv. 5%
Div. 3: Crim. 30%; Civ. 55%; Juv. 15%
Appearing Remotely:
Div. 1 is on video using WebX
Div. 2 is on video using BlueJeans
Div. 3 is still phone-only, hopes to be on video in Nov.
I'm sure the justices wish this went without saying: when appearing remotely, please don’t appear in front of an unmade bed or a sink of dirty dishes. Dress professionally.
Justices are conferring about cases via email, and the conferences are not as robust as in the robing room. But there is no estimate when normal will return.
Budgets are in crisis, and video imposes new costs. This may impact workloads.
Read more here.
Block Quotes Are a Tough Sell -- Here's How to Pitch Them
Bryan Garner's LawProse Lesson 346 is how to block quote without boring your reader. You have to sell it. Tell the reader what is coming, followed by a colon. This makes the block quote merely confirmatory -- you've made your point, and the reader can either believe you and skip the quote, or read the quote to double-check. You win either way.
Then briefly recapitulate the quote afterward, to add continuity to your brief.
Otherwise, block quotes are like unsolicited emails. No one is interested, and no one has the time.
The Trouble with Unpublished Opinions
Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still more frustrating is that you cannot prevent judges from reading unpublished decisions that are unfavorable to your case, or from relying on those opinions.
A recent (published) decision out of the First Appellate District upheld the validity of a bail bond even though it was for the wrong amount. The bond company, American Surety Co., had relied on a published 1919 Court of Appeal holding for its position. But the Court rejected that holding, stating:
"In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."
Now, is it possible that, when preparing its briefs for the appeal, or preparing for oral argument, counsel for American became aware of those unpublished cases, but, due to the constraints imposed by Rule 8.1115, could not mention them? Perhaps American found other authorities that refuted those unpublished cases, but, alas, they too were unpublished?
I am troubled by the prospect suggested here that the bench may be relying on a subterranean body of law that the bar may not gainsay.
People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154.
Read more here.
Recovering Costs for Unused Trial Exhibits
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits.
That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the prevailing party may recover costs for unused trial exhibits under Code Civ. Proc., § 1033.5. The Second Appellate District held such costs are recoverable, reasoning that the statute’s interpretation “must reflect the reality of how complicated cases are tried.”
A sound approach. A black-letter rule in either direction on this strikes me as a wrong one.
Read more here.
Statements you do not want to read in the opinion deciding your appeal:
- "The lengthy opening brief (AOB) ... is largely comprised of a series of convoluted factual claims which are only sporadically supported by citations to the record."
- "it is not until page 47 of the AOB that [appellant] reveals who brought the lawsuit against whom ... and for what purpose."
- "None of [appellant's] complaints are supported by evidence in the record, developed into an argument that might justify reversal, or supported by legal authority."
I will leave you to wonder about the outcome.
https://lnkd.in/ggY4HvK
G058270.PDF
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