Volume 26 • Number 1 2013
THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA Editorial Opinion Section Update By Lisa Cappelluti
Lisa Cappelluti
his journal is presented to and an Advisory Panel of esteemed ins and outs of the courtroom. We you by the State Bar’s Liti- judges and past members. The Ex- have been honored to have several T gation Section. The Section ecutive Committee organizes and judges as presenters for this seminar was established in 1983 to promote produces continuing education pro- including Judges James P. Kleinberg, and further develop educational pro- grams and seminars, provides recog- Winifred Smith, Lawrence W. Crispo, grams for new and experienced prac- nition to outstanding attorneys Victoria Chaney, James L. Warren, titioners across the state of Cali- through its Annual Trial Lawyer Hall Harold Kahn, and Elizabeth Feffer fornia. Our voluntary membership of Fame Award, provides outreach from Los Angeles and San Francisco. association is comprised of a very and training for new lawyers, and Coaching for the New Practitioner diverse group of professionals with a service to the greater community by will be held again this year in both shared interest in the betterment of assisting in the collection of profes- Northern and Southern California. the profession through current edu- sional clothes for job-hunters in The following programs were pre- cational programs and State Bar need. sented by the Litigation Section at activities. Last year, in 2012, a total of Our Section is actively involved the 2012 State Bar Annual Meeting: 9,200 attorneys enrolled as members throughout the year developing and • Negotiating and Drafting of the Litigation Section and, as your producing litigation education for Effective ADR Agreements. new incoming Chair of the Executive active and experienced practitioners, • ADR Update: Arbitration and Committee, I am hoping to reach and assisting and mentoring new Mediation Legal Developments. 10,000 members in 2013. practitioners. For the last four years The Section is led by the Liti- we have presented Coaching for the (Continued on Page 48) gation Executive Committee com- New Practitioner, a seminar de- posed of 15 experienced attorneys signed to teach new attorneys all the California Litigation Vol. 26 • No 1 • 2013 Volume 26 • Number 1 2013
THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA
Inside Editorial Opinion: Section Update By Lisa Cappelluti 2 Letters to the Editor 3 Editor’s Foreword: The Way We Litigate Now? By John Derrick 4 Warning: The Internet May Contain Traces of Nuts (Or, When and How to Cite to Internet Sources) By Paul J. Killion 9 A Fresh Approach for a New Day By Judge Steven Jahr, Director, Administrative Office of the Courts 15 To Cite or Not to Cite? That Is the Question Citing Unpublished Decisions in California State and Federal Courts By Benjain G. Shatz and Emil Petrossian 21 Bring Your Own Court Reporter By Robert Cooper 25 Judicial Discretion Advised: A Critique of California’s Per Se Disqualification Rule in Concurrent Representation Cases By Mark T. Drooks and Jessica S. Chen 30 An Unresolved Issue: Article III Standing for Statutory Damages By Michael A. Geibelson and Joel A. Mintzer 35 Ninth Circuit Attorney Fee Awards & De Novo Review By Audra Ibarra 39 New Lawyers: The New Trial Lawyer By Neil Berman 41 ADR Update: California Arbitration in the Wake of Concepcion By Paul J. Dubow 44 “I Learned about Litigating from That” The Corporate Crack By William M. Shernoff 46 McDermott on Demand: Book Review The Partisan: The Life of William Rehnquist Reviewed By Tom McDermott
1 Letters to the Editor
EDITORIAL BOARD John Derrick Santa Barbara, Editor-in-Chief just finished reading “Id., Ibid. And All that Stan Bachrack, Ph.D. Los Angeles, Managing Editor Sharon J. Arkin Los Angeles Stuff: What You Always Wanted to Know But Winnie Cai Goleta Never Dared to Ask” published in “California Paul Chan Los Angeles I Thomas C. Corless Los Angeles Litigation, November 2012 issue. Whew! I hope I prop- Kathryn M. Davis Pasadena Paul J. Dubow San Francisco erly copied and quoted this title! If not, to the Saji Dias Gunawardane Santa Barbara California Style Manual (“CSM”) I will direct myself. Russell Leibson San Francisco Thomas J. McDermott, Jr. Palm Desert Your article is great. I plan to photocopy it and tape Hon. Wm. F. Rylaarsdam Santa Ana Jill Jackman Sadler Paralegal Support it to the window near my office computer. I am a long Benjamin G. Shatz Los Angeles practicing attorney (admitted in 1978) and am caught Hon. Helen Williams San Jose Susan E. Anderson Wise Long Beach between the Blue Book and the CSM every time I file a Joan Wolff San Francisco pleading or brief. Yee gads, is a pleading a brief? LITIGATION SECTION EXECUTIVE COMMITTEE Lisa M. Cappelluti San Francisco, Chair Please don’t judge me harshly; the holiday season cre- Robert M. Bodzin Oakland, Vice Chair ates legal writing skills self-doubt. Carol D. Kuluva Los Angeles, Treasurer Reuben A. Ginsburg Los Angeles, Secretary Anyway, your article wedged beneath the other fine Michael A. Geibelson Immediate Past Chair Farzaneh Azouri Woodland Hills writers’ diatribes/reassurances about the brutality of Kathleen Brewer Westlake Village David P. Enzminger Los Angeles our court budget cuts and the breast beating of fine Eric P. Geismar Northridge jurists about the horrors that await for lack of enough Ruth V. Glick Burlingame J. Thomas Greene San Francisco money to buy 1985 style court services in the future, Jewell J. Hargleroad Hayward was like an oasis in the desert. My immediate reaction Rhonda T. Hjort San Francisco Megan A. Lewis Sacramento was: I can use this! Karen J. Petrulakis Oakland William Seligmann Santa Cruz So, to close and not waste your, my, or the Michael R. Sohigian Los Angeles Edward A. Torpoco San Jose Internet’s resources, I send you a thank you which is Donald W. Barber Whittier, Advisor direct and sincere. Man the barricades of proper legal Charles Berwanger San Diego, Advisor Paul Chan Los Angeles, Advisor citation. We owe it to Fitzgerald, Hemingway, and Justice Victoria Chaney Los Angeles, Advisor Hon. Lawrence W. Crispo (Ret.) Pasadena, Advisor William Boyd (a favorite British author). Excellence Tanja L. Darrow Los Angeles, Advisor can be delivered even by the poor, non-BMW driving Hon. J. Lynn Duryee San Rafael, Advisor Elizabeth A. England San Francisco, Advisor attorneys in California who recognize that doing it Michael Fabiano San Diego, Advisor right matters. Proper citations read by an overbur- Terry Barton Friedman Santa Monica, Advisor Hon. J. Richard Haden (Ret.) San Diego, Advisor dened trial judge are a bit of Mozart in the same Kevin J. Holl San Francisco, Advisor Jamie A. Jacobs-May San Jose, Advisor desert from whence your citation pearls have Mark A. Mellor Riverside, Advisor appeared. I plan to do better. Eileen C. Moore Santa Ana, Advisor Bradley A. Patterson Irvine, Advisor Hon. Ronald S. Prager San Diego, Advisor Very truly yours, Norm J. Rodich Irvine, Advisor Jerome Sapiro, Jr. San Francisco, Advisor Hon. J. Richard Haden (Ret.) San Diego, Advisor Hon. James P. Kleinberg San Jose, Advisor Laurie Butler Hon. Ronald S. Prager San Diego, Advisor Santa Monica Attorney e. robert (bob) wallach San Francisco, Advisor Hon. James L. Warren (Ret.) San Francisco, Advisor Joan Wolff San Francisco, Advisor Mitch Wood Section Coordinator Ana Castillo Administrative Assistant Editor’s response: Many thanks, Laurie. Actually, ...... you didn’t quite cite it correctly, but we’ll forgive Copyright 2013, State Bar of California The opinions contained in this publication are solely those of the you. There has even been talk of having the Liti- contributors. gation Section laminate that article and make it a California Litigation is pleased to review original articles submitted for publication. Articles should be 1,000-2,000 words. Please submit hand-out at events. We shall see. William Boyd is, proposed articles – and Letters to the Editor – to John Derrick, at indeed, an excellent author. I recommend An Ice [email protected]. To subscribe: Cream War and A Good Man in Africa to get start- California Litigation is mailed free to all members of the Litigation ed. By the way, we would like to publish more Section of the State Bar of California. To join the Litigation Section, send your name, address, telephone number, and State Bar membership readers’ letters — and they need not all be ones number to Litigation Section, State Bar of California, 180 Howard singing our praises. Best to email them to me at: Street, San Francisco, CA 94105-1639. Section dues are $75 per year and should be enclosed with the enrollment information. [email protected].
2 Editor’s Foreword The Way We Litigate Now? By John Derrick
cial court reporter services for law- Petrossian explain. John Derrick yers needing to make a record. Not As the table of contents shows, by long ago, that would have been utterly no means everything in this issue in fanciful. Today, that is less so — Los hinted at in the front cover illustra- Angeles, the largest county in the tion. For example, following on from he front cover of this issue state, has discontinued court-provid- some articles in the last issue, and, in draws on a few articles in ed reporter services for most civil pro- particular, one that was very critical T this edition, at least a cou- ceedings, so the age of BYOR (“bring of the Administrative Office of the ple of which reflect the way we liti- your own reporter”) is upon us. And Courts, that entity’s Director, Judge gate now. There’s a judge gazing at a maybe, indeed, advertisements in Steven Jahr, gives his perspective on Wikipedia screen. Lawyers and courthouses could help bridge budget the state of the judicial branch. All judges can and do cite to Wikipedia, gaps. I’d need to think about that one. that plus more — including the latest but the trick is to know (a) when it’s Anyway, this change in the the logis- in our “I Learned About Litigating a good idea to do so and when it isn’t, tics of the way we litigate raises a From That” and “New Lawyer” and (b) how to do it, if that’s what bunch of issues. Robert Cooper’s arti- columns, as well as the first in a regu- you want to do. Paul Killion’s article cle examines them. lar ADR Update column. discusses that, and also delves into Then, on the floor, is a wastepaper wider questions about when it is ap- basket for unpublished opinions. But John Derrick, the Editor-in-Chief of this propriate to cite to Internet sources don’t be in too much of a hurry to journal, is certified by The State Bar of for authority, in general, and the consign those to the trash. Aside from California Board of Legal Speciali- logistics of so doing. their intrinsic use as research tools, zation as a Specialist in Appellate Law. Another detail in Peter Siu’s cover the rules about citing to them are a lit- [email protected] illustration is the advertisement on tle more tricky than you might imag- the courtroom wall offering commer- ine, as Benjamin Shatz and Emil California Litigation Vol. 26 • No 1 • 2013
3 Warning: The Internet May Contain Traces of Nuts (Or,When and How to Cite to Internet Sources)
By Paul J. Killion
Paul J. Killion
he Internet is so prevalent it is easy Bergquist (N.D. 1996) 550 N.W.2d 394, 404 to forget that it only became accessi- [Sandstrom, J., dissenting].) T ble to the general public in 1995. A month later, the first Internet citation Based on a Westlaw search for “http,” the used in any federal appellate case appeared in first citation to the Internet found in any pub- a concurring opinion by United States lished appellate decision in the United States Supreme Court Justice David Souter. (Den- appeared the next year, in a dissenting deci- ver Area Educ. Telecomm. Corporation, sion by Justice Sandstrom of the North Dakota Supreme Court. (Wishnatsky v. California Litigation Vol. 26 • No 1 • 2013
4 Inc. v. FCC (1996) 518 U.S. 727, 777, fn. 4 times in California appellate decisions, and [Souter, J. concurring].) The first California over 3,600 times in federal appellate ones decision to cite to the Internet was a 1998 (based on the same “http” search). While not decision authored by Justice Haller of the all these cases actually rely on the Internet Fourth District, Division One. (In re Mar- sources they cite, many do. riage of Shelstead (1998) 66 Cal.App.4th Given this reality, when is it appropriate to 893, 905.) cite an Internet source in an appellate brief in Of the Internet citations in those early California? And what form should the citation decisions, only two of the sources remain take? available. Justice Sandstrom’s citation is still available, though it takes several steps in nav- When is it Appropriate igating the site to find the information (it was — to Cite to Internet — a citation to the North Dakota State Uni- versity bookstore to show that its hours were Sources for Authority? publicly available). (See Wishnatsky, supra, The answer is not “never.” Under 550 N.W.2d at p. 404.) The first of Justice California Evidence Code section 452, subdi- Souter’s two Internet citations is still avail- vision (h), a court may take judicial notice of able (a USA Today article). (See Denver “facts and propositions that are not reason- Area, supra, 518 U.S. at p. 777, n. 4.) But ably subject to dispute and are capable of Justice Souter’s second citation (to a technol- immediate and accurate determination by ogy news article) has morphed into an resort to sources of reasonably indisputable entirely new Web site. (Ibid.) And Justice accuracy.” Furthermore, a “reviewing court Haller’s citation (to a Department of Labor may take judicial notice of any matter speci- guideline) now results in a “page not found” fied in Section 452” (Evid. Code, § 459, subd. message. (See In Re Marriage of Shelstead, (a)), although under Rule 8.809 of the supra, 66 Cal.App.4th at p. 905.) California Rules of Court, a party must file a These three cases illustrate both the prob- formal motion in the appellate court to obtain lem and the challenge in citing to the judicial notice. Information from the Internet Internet — it is an impermanent source of can satisfy the judicial notice requirements, information. Web pages change frequently. In as California courts have recognized. (See, fact, Web designers stress the need for con- e.g., In re Crockett (2008) 159 Cal.App.4th stant updating to attract search engines. Add 751, 762, fn. 6.) to that the problems associated with commu- Under the Federal Rules of Evidence, a nity-edited sites like Wikipedia, and the relia- federal court can take judicial notice of an bility of information on the Internet can raise adjudicative fact that is “not subject to rea- significant questions. As one comic quipped: sonable dispute because it: (1) is generally “Information on the Internet is subject to the known within the trial court’s territorial juris- same rules and regulations as conversation at diction; or (2) can be accurately and readily a bar.” determined from sources whose accuracy Nonetheless, the Internet remains a pre- cannot reasonably be questioned.” (Fed. dominant, if not the predominant, source of Rules Evid., rule 201(b).) As the Ninth Cir- information for most Americans today and cuit bluntly stated, this rule has equal appli- appellate courts do not ignore this reality. In cation to the Court of Appeals: “[I]t is non- fact, despite the imperfections, to date sense to suppose that [the Court of Appeals Internet sources have been cited over 630 is] so cabined and confined that [it] cannot
5 exercise the ordinary power of any court to research (whether legal or nonlegal) should take notice of facts that are beyond dis- apply the same evaluation criteria to the pute…An…appeals court could not function sources they select as they would to more if it had to depend on proof in the record” of traditional media, satisfying themselves that such facts. (Singh v. Ashcroft (9th Cir. 2004) (1) the material has been written or pub- 393 F.3d 903, 905-06.) lished by an authoritative entity or person; A particular hurdle for taking judicial (2) the material has been subjected to some notice of Internet information is the require- form of peer review or editorial oversight to ment under both California and federal judi- ensure its accuracy and currency; and (3) the cial notice rules that the fact or proposition material is stable and likely to remain accessi- be capable of immediate and accurate deter- ble using the same citation the author used in mination from sources of reasonably indis- originally visiting the site. putable accuracy. (See Evid. Code, § 459, subd. (a); Fed. Rules Evid., rule 201(b).) As — Use of Wikipedia — illustrated at the start of this article, Web Wikipedia deserves separate discussion sites can and do change, sometimes frequent- because it is so broadly used. Wikipedia is a ly, leaving the information no longer available. community-written Web site and, like many Unavailability can be the result of any of a Internet resources, it contains an important number of causes, including: (1) the Internet general disclaimer: “Wikipedia makes no content has evolved into something different guarantee of validity.” Wikipedia further ad- from that originally cited; (2) the content has vises that “[t]he content of any given article migrated to a new location; (3) the content may recently have been changed, vandalized, has vanished from the Internet; (4) the site or altered by someone whose opinion does now requires subscriptions or passwords for not correspond with the state of knowledge access; or (5) the original citation was simply in the relevant fields.” incorrect because it contained spelling, typo- Perhaps due to its questionable reliability, graphical, transcription, or editing errors. neither the United States Supreme Court nor (See Barger, On the Internet Nobody Knows the California Supreme Court has ever cited You’re A Judge: Appellate Courts’ Use of to a Wikipedia article. (See Horvitz & Levy, Internet Materials (2002) 4 J. of App. Prac. Like SCOTUS, the California Supreme & Process 417, 439-445.) Court eschews citations to Wikipedia, At Many of the citation problems with chang- The Lectern Blog, (posted June 19, 2012) ing Web sites can at least be contained by [hereafter Like SCOTUS].) Nonetheless, and providing information in the citation as to the despite Wikipedia’s disclaimer, as of August date the author accessed the Internet source. 2012, nine published and 31 unpublished Both the Bluebook and California Style opinions from the California Courts of Appeal Manual require that citations provide the had referenced Wikipedia, including many date the material was accessed. (See Cal. which cited Wikipedia as authority for a Style Manual (4th ed. 2000) § 3:15, p. 109; proposition. (See also Like SCOTUS, supra; The Bluebook; A Uniform System of Citation Derrick, On Citation to Wikipedia (& Other (19th ed. 2010), § 18.2.2(c).) Older Internet Things) (2010) California Litigation, vol. 23, pages can sometimes be accessed at sites No. 2, pp. 5-7.) A recent search of federal such as archive.org, which has an Internet cases referencing Wikipedia and judicial archive “Wayback Machine.” notice “reveals about five attempts by liti- In sum, those who use the Internet for gants to cite [Wikipedia] per year and about a
6 50 percent success rate.” (Stephanian, Ju- er Wikipedia a sufficiently reliable source”]; dicial Notice.Net (Spring 2012) ABA People v. Moreno (2009) 2007 WL 2998986, Section of Litigation Magazine, at p.4.) *2, fn. 2 [nonpub. opn.] [“Wikipedia, although In a 2010 article examining the use of useful in many other contexts, is not a recog- Wikipedia in federal appellate decisions, the nized source for determining legislative in- author divided cases into the following cate- tent”].) The Third District was especially crit- gories based on how Wikipedia was used: (1) ical in a 2009 unpublished case, In re S.G.: to support quips; (2) to fill non-controversial “Appellant’s only sources in support of her gaps in the record, such as in pro se civil contention are Wikipedia articles on federally rights cases, police investigation background recognized tribes and the Apache. We are not in criminal evidence suppression hearings, persuaded. Articles in the online encyclope- and examiner findings in social security dia Wikipedia can be edited by anyone at any cases; and (3) to resolve disputed factual time. Unsurprisingly, any article at any time contentions. (Gerken, How Courts Use may contain factual errors, and can become Wikipedia (2010) 11 J. of App. Prac. & very unbalanced. We conclude Wikipedia is Process 191, 193-201.) With regard to the not a sufficiently reliable source upon which last category, the author was very critical of a court can determine whether a tribe should courts that relied on Wikipedia to resolve dis- be notified pursuant to the [Indian Child positive factual disputes. (Id. at p. 201 Welfare Act].” (In re S.G. (2009) 2009 WL [“When Wikipedia is adduced to decide the 875510, *4 [citations omitted] [nonpub. material facts…, the roles of the participants opn.].) (See generally Badasa v. Mukasey may be seriously compromised.”) (8th Cir. 2008) 540 F.3d 909, 910 [reversing In California, some courts have treated decision of Board of Immigration Appeals for Wikipedia as a reliable source. (See, e.g., finding Immigration Judge’s reliance on DVD Copy Control Assn. v. Kaleidescape, Wikipedia to be only harmless error; very Inc. (2009) 176 Cal.App.4th 697, 738 [citing critical of Wikipedia as a reliable source].) Wikipedia as authoritative for the original Given the controversy, before citing Wiki- meaning of the expression “a pig in a poke”]; pedia it is best to ask: In re Carleisha P. (2006) 144 Cal.App.4th • How critical is the fact to the outcome? 912, 920 & fn. 5 [citing Wikipedia and the If the fact is critical, a simple citation to related Wiktionary for definitions of “ammu- Wikipedia is probably insufficient and formal nition”]; see also O’Grady v. Superior Court judicial notice is likely required. (See Cal. (2006) 139 Cal.App.4th 1423, 1433 [describ- Rules of Ct., rule 8.809.) ing Wikipedia as “a well-known cooperative • Is the fact disputed? If so, bear in mind encyclopedia”]; Patel v. Shah (2004) 2004 that the reliability of Wikipedia can be easily WL 2930914, *5 [nonpub. opn.] [citing attacked. Wikipedia for meaning of “simple majority”]; • How reliable is the Wikipedia article? For but see Gerken, supra, at pp.201-02 [criti- example, has it been edited frequently? Are cizing Patel decision for using Wikipedia as the edits substantial? Are the edits contro- authority to resolve a contested contract versial? Does the article contain mainly facts issue in the case].) or mainly opinion? Does the article cite rep- But other California courts have raised utable sources? serious reservations about Wikipedia’s relia- Like any Internet resource, Wikipedia bility. (In re Marriage of Lamoure (2011) must be cited carefully and with full under- 198 Cal.App.4th 807, 826 [“We do not consid- standing that it may not be a reliable source.
7 theses (or brackets where appropriate) by — How to Cite — to Internet Sources the phrase “as of.” The Bluebook provides some additional The most current edition of the California tips in presenting direct citation to Internet Style Manual (now 12 years old) provides sources: only modest guidance regarding direct cita- • Look to see if the source has a certificate tion to Internet sources. (See Cal. Style or logo indicating that a governmental entity Manual (4th ed. 2000) § 3:15, pp. 108-09.) has verified that the document is complete The current Bluebook (2010 edition) pro- and unaltered (e.g., official government Web vides substantially more guidance. (See sites containing regulations). (Bluebook, Bluebook, supra, Rule 18, §§ 18.1-18.5, pp. supra, § 18.2.1(a)(i).) 165-173.) The Bluebook explains that “[a]n • When available, provide the author infor- internet source may be cited directly when it mation. (Id. at § 18.2.2 (a).) does not exist in a traditional printed format • If available, the date of the material cited or when a traditional printed source…exists should be provided (as it appears on the but cannot be found or is so obscure that it is Internet site), not the date the site was visit- practically unavailable.” (Bluebook, § 18.2.2, ed. If the material is otherwise undated, the p. 166.) It cautions: “All efforts should be date the Web site was last visited should be made to cite to the most stable electronic placed in a parenthetical after the URL. (Id. location available.” (Ibid.) at § 18.2.2 (c).) The California Style Manual does provide • Blogs and other dynamic sites that are the following official directions for citation to updated frequently should include a time- Internet sources: “[P]rovide as much of the stamp, in addition to the date, whenever pos- Uniform Resource Locator (URL), in angled sible. (Id. at § 18.2.2 (c).) brackets (< >), as is necessary to facilitate • The URL should point the reader directly locating the material on the Web site, and the to the source cited rather than intervening date the material was read or downloaded pages or links. (Id. at § 18.2.2 (d).) from the Internet site, which is signaled in • Where a document is available both in parentheses (or brackets if the citation as a HTML format and in a widely used format whole is parenthetical) by the phrase ‘as of’ that preserves pagination of the printed work in conjunction with the date.” (Cal. Style (e.g., Adobe’s PDF format), “the latter should Manual, § 3:15, p. 109.) The Manual also always be cited in lieu of an HTML docu- gives a useful tip: “If necessary a URL may be ment.” (Id. at § 18.2.2 (e).) A pinpoint cita- divided between lines at any ‘/’ in the tion to the location cited within the PDF ver- address.” (Ibid.) This avoids strange line sion should be included. (Id. at § 18.2.2 (f).) breaks in the text created by lengthy URLs that word-processing programs read as one, Finally, Internet citations in a brief should long word. be carefully reproduced and then confirmed. The easiest method is to simply cut and paste In sum, the official California citation form the citation into a Web browser. for an Internet source requires the following attributes: • The URL must be provided in angled Paul J. Killion is a partner with Duane Morris brackets (< >). LLP in the firm’s San Francisco office. He is a • The date the material was read or down- certified appellate specialist with the State Bar loaded must be provided, signaled in paren- of California Board of Legal Specialization.
8 A Fresh Approach for a New Day
By Judge Steven Jahr, Director, Administrative Office of the Courts
Hon. Steven Jahr
had been retired for three years after Since the mid-1990’s, the Judicial Council serving 22 years on the bench in Shasta has been in the forefront of reform for our I County, when I received a phone call last branch, sponsoring the landmark laws which summer asking about my interest in be- transferred trial court operations funding coming the state’s fifth director of the Ad- from the counties to the state, and which uni- ministrative Office of the Courts (AOC). fied the superior and municipal courts within During those three years, I had observed each county to more efficiently deploy limit- with dismay the growing criticism of the ed court resources. The Judicial Council suc- Judicial Council of California — created 87 ceeded in championing these reforms in the years ago in the state’s constitution as the face of vigorous opposition. Had those policy-making body for California’s judicial reforms failed, the five-year recession with branch — along with its staff agency, the Administrative Office of the Courts. California Litigation Vol. 26 • No 1 • 2013
9 which we have been grappling would have program. And while the SEC process was been much more destructive of the courts’ ongoing, it was the Chief Justice who autho- capacity to serve the public. rized the Interim Administrative Director of Under the council’s leadership during that the AOC, Jody Patel, immediately to initiate period, access for all Californians to their reform processes, including downsizing the courts was improved by the creation of self- AOC from 1100 staff to 800, in order to meet help centers for court users who increasingly crushing budget reductions. represent themselves, by the development of So when I was asked to serve, I said yes, a family law facilitator program, by the expan- because I have a stake in all of this. Let me sion of access to child support services in explain. family courts, and by the adoption of more Before my wife and I moved from a Wil- uniformity in the civil rules of court, ensuring shire Boulevard law practice in Los Angeles that California attorneys who practice in mul- to Redding in 1980, we had practiced in the tiple counties did not routinely encounter in- courts in many Southern California counties. consistent procedures from county to county. Then, in Northern California, I had the same The council fostered expansion of court inter- kind of exposure to court functions and prac- preter programs statewide, and it placed sig- tices in several counties. From these experi- nificant emphasis on judicial and staff educa- ences, both north and south, urban, subur- tion and training to ensure equal access and ban, and rural, I saw the sharp disparities in fairness for all court users, regardless of gen- service between courts and in the access der or ethnicity. It was the council that these largely isolated, uncoordinated institu- brought reforms to the jury summoning pro- tions afforded the public we all serve. cess, reducing considerably the burden on When I was first appointed to the bench in our citizens. 1986, I became involved in court administra- But as I watched, those achievements were tion at the local and state levels, serving as overshadowed by criticisms that the council our superior court’s presiding judge for four and the AOC had become overly bureaucratic years and on the board and as vice-president and non-responsive to the needs of the of the California Judges Association. In the courts. I heard those criticisms even from col- mid-1990’s, former Chief Justices Malcolm leagues in my former court, which had long Lucas and Ronald George appointed me to supported the reforms and initiatives of the chair budget committees supporting a trial council. court funding reform movement that even- But something else caught my attention as tually led to state trial court funding. Later, I well. served a three-year term on the Judicial It was the efforts of our new Chief Justice, Council, chairing its Rules and Projects com- Tani G. Cantil-Sakauye, who had assumed of- mittee. My term ended in 2001, at which fice at the very moment when the confluence point I focused the balance of my career on of criticisms inflamed public discourse about assignments in my court’s felony department, our courts. She took the helm firmly and our drug court, our family department, and without hesitation, calling for a period of pub- then concluded by a return to my civil lic self-assessment, and of reform. assignment. It was the Chief Justice who formed the I have a stake in all this because I have Strategic Evaluation Commission (SEC) to seen, from the perspectives of law practice make a top-to-bottom assessment of the and judging, from north to south, rural to operations of the AOC. She appointed new urban, how crucial to the individual effective- advisory groups to oversee the courthouse ness of each court the coordinated support construction and facilities maintenance pro- and uniform policy-making role of the Judicial grams and the troubled case management Council has proven to be.
10 — The Judicial Council — trial court experience, our constitution is a Representative Body requires that voting members of the Judicial Council include not only the Chief Justice, its The Judicial Council’s constitutional com- chair, and one other supreme court justice, position ensures that the broad range of view- but three justices from the courts of appeal, points and experience in the branch are and ten superior court judges. All are select- reflected, and its structure is designed to pro- ed by the Chief Justice following a statewide mote equivalent consideration of the needs of application and vetting process. In addition, all the courts, regardless of where they are four attorney members are appointed by the State Bar Board of Governors, and one legis- lator is selected by each house of the Legislature. Importantly, court executives and others also sit as non-voting advisory members. It is vital to understand that while the While no one disputed the membership ensures that a breadth of experi- ‘ ence and perspectives is brought to the table, need for improved case the members must bring a statewide perspec- tive. If they didn’t, the council would quickly degenerate into a fragmented body and politi- management systems within cize the branch, disadvantaging citizens in jurisdictions whose courts could not success- the trial courts, controversy fully “compete” in such a forum. Debates within the judicial branch about administration, especially when it involves the arose over the statewide natural tension between local court autonomy and statewide uniformity in practices or poli- California Court Case cies, have been ongoing for decades. Not sur- prisingly, the expression of differing view- points on this topic became more pointed as Management System the branch experienced disabling budget cuts over the past few years. Those different (CCMS) initiative. points of view are on full display at Judicial Council meetings these days, as I have ’ observed. The Chief Justice makes sure about that. — Self-Assessment: Taking — a Hard Look at Ourselves situated, so that access to justice for all citi- One of the first things the Chief Justice did zens is uniform throughout the state. when she took office was to survey the judges California’s Judicial Council structure can around the state about the operations and be contrasted with the dominant model effectiveness of the AOC. When I had served throughout our country, in which a state’s on the Judicial Council, it was my view — and supreme court makes the statewide rules and still is — that the AOC is the staff agency to sets the statewide policies. Whereas a state the Judicial Council and, as such, has the supreme court is composed of a small num- duty to provide customer service to the coun- ber of justices who do not necessarily have cil, the courts, and ultimately the public.
11 But that was not the perception communi- ing, public comment is permitted and cated to the Chief Justice. It prompted her to encouraged. form the SEC. And when that committee pro- The number of council meetings was in- vided its report to the Judicial Council more creased from six to 12 in 2012. And the mem- than a year later, some thought that the coun- bers are engaged. The significant demands on cil would sweep the report under the prover- their time of their “day jobs” have not stop- bial rug. To the contrary, the report was pub- ped them from preparing carefully to fully lished for all to see. Some predicted that the discharge their duties as council members. council would reject the report’s 150 recom- At present, the council is in the midst of a mendations for reform. To the contrary, the first ever top-to-bottom assessment of all its council adopted almost all of them. And the advisory committees, task forces, and work- Chief Justice promptly appointed as addition- ing groups established through the years to al Judicial Council members three of the assist the council in its work, with a view to members of the SEC, including its chair and reorganizing and making more effective those vice-chair. groups, and placing oversight for their activi- The council, in adopting the recommenda- ties directly with the council. tions, established directives to me, as director of the AOC, and timelines for completion. We — California Court — in the AOC have developed a reporting Case Management System process for regular updates to the council regarding our progress, which can be tracked While no one disputed the need for im- at the California courts Web site. As of proved case management systems within the January 2013, roughly one-third of the direc- trial courts, controversy arose over the state- tives have been fully implemented over what wide California Court Case Management Sys- is expected to be an 18-month process, tem (CCMS) initiative. including the implementation of a complete I confess little first-hand knowledge of the overhaul of the executive management struc- development of CCMS, since it began after ture of the agency, which I firmly supported. my term on the Judicial Council ended and In addition, the council has provided for a was terminated by the Judicial Council review process so that our restructuring work months before I was hired as administrative and reporting can be independently verified director for the AOC. by its members. I do know that the program was controver- sial in my former court. There was a sense — Fresh Leadership — that a distant authority was dictating the on the Judicial Council design and implementation of an unknown product, which would compel replacement of In my new position, I have already partici- our local integrated case management system pated in a handful of Judicial Council meet- that had served our court and justice system ings and have witnessed the interaction and stakeholders well for years, even as it was involvement of council members. The Chief’s getting long in the tooth. influence is plain. There is open and free dis- Late in the development, of CCMS, howev- cussion and debate. er, I attended a council-led regional demon- And in keeping with her insistence on self- stration of the capabilities of the final version assessment and the reassertion of council re- of CCMS, known as V4, after my retirement. sponsibility for the work of the AOC, the Afterwards, I learned that trial court repre- members have established active oversight of sentatives — judges and court personnel — AOC implementation of council policies. were involved in the development of the sys- These days, at each council business meet- tem and that my former court’s administra-
12 tive staff had come to embrace the prospect using V3. The systems for those pilot courts, of its future deployment there. essential to their operations, are being fully Shortly after the Chief Justice took office, supported by the AOC’s Information the State Auditor issued a report strongly Technology Services Office. But new deploy- criticizing CCMS and its costs. In response, ments have ended and the final comprehen- the Chief Justice appointed a council commit- sive version of CCMS is mothballed. tee, which included representatives of our Now the council, through its newly created internal technology committee, is working collaboratively with the courts to create a statewide business plan for case management technology to develop a process by which adequate state funding can be restarted to enable the organized replacement of aging, unsupported individual court systems. Judge The Chief Justice Jim Herman of Santa Barbara Superior Court ‘ is heading up that effort. has made it clear — Courthouse Construction — In 2002, responsibility for construction, that she believes maintenance and management of California’s trial court facilities became a state responsi- bility, delegated to the Judicial Council. self-assessment is Since that program was developed, nine new court facilities have been designed and the duty of all constructed, all on budget. Many more are in the design and land acquisition phases, although there has been a significant slow- public officials. down in progress as the Legislature and ’ Governor have redirected construction rev- enue streams during the last three budget years to instead support court operations. As soon as she took office, the Chief Jus- tice took measures to put the council more directly in charge of the construction pro- gram. She appointed the Court Facilities trial courts, to oversee and bring the CCMS Working Group — comprised of justices, project to completion, which they did. But judges, attorneys, architects, and other sub- the die was cast. The projected initial costs of ject matter experts. Justice Brad Hill was rolling out V4 into trial courts were much too installed as chair. The working group initiated high in the environment of the state’s fiscal an audit of the construction program by crisis. The council voted to terminate deploy- Pegasus Global Holdings, an international ex- ment in the spring of 2012. pert in construction programming. The audit Fortunately, earlier versions of CCMS con- called for specified improvements in the man- cerning the subjects of traffic (V2) and vari- agement of our construction program. ous civil case types (V3) had been deployed The working group, through a cost-reduc- in trial courts, which were willing to serve as tion subcommittee, is conducting an exhaus- pilot program platforms. In fact, today fully tive review of all planned projects. So far, the 25% of civil cases are processed in California working group and council have identified
13 construction savings of about $116 million. the state’s budget. Increasingly, the budget In the meantime, I recommended that for the courts has been supported by user fil- function and oversight would improve if the ing fee increases and by growing fine penalty AOC’s facilities division was split into two assessments. In fact, General Fund support offices, one for construction projects, and one for the courts has plummeted. Now only one for maintenance and property management penny out of every General Fund dollar goes activities. The council adopted that to the courts. This means that we are slowly recommendation. moving toward a user-funded court system — The nature of court facilities requires pro- paid for by filing fees and fines. This trend vision of extensive security measures for the has continued with little or no public policy members of the public, as well as secure cir- debate over the wisdom of such an approach. culation and holding areas for prisoners. This No more. means that the cost of constructing proper The council, the Chief, and I are vigorously courthouses — like the cost of building hospi- pursuing budget restoration and stability with tals — is considerable. With the experience the Governor and the Legislature. We are obtained from construction of an initial gen- focused on coordinating with the State Bar eration of courthouses, the working group and with the organized specialty bars and and the AOC are now also focusing on sys- other stakeholders to ensure a unified, con- tematizing methods to compress the time and sistent, and reinforced message for restora- costs involved in preconstruction processes tion of budget dollars and to avoid the incon- so that we can build future courthouses at a sistent and competing messages that were so lower cost. harmful to the branch’s budget advocacy last A separate working group, comprised of year. judges and court executives, has been estab- At the same time, the task of developing a lished by the council to address the AOC’s superior and defensible process for allocating program for maintaining all existing court- budget dollars among the trial courts is being houses in the state. That oversight activity pursued by the Trial Court Funding Working has included an auditing process, which will Group, formed by the Governor and the Chief soon be concluded, in keeping with the Justice to assess implementation of the Chief’s program of vigorous self-assessment Lockyer-Isenberg Trial Court Funding Act of and improvement. 1997. Clearly, the challenges for our branch are — Moving the Branch Forward — significant. But the will to address them The Chief Justice has made it clear that openly and with fresh approaches is strong. she believes self-assessment is the duty of all As a former lawyer, a retired judge, and now a public officials. She believes the branch is judicial administrator, I welcome this oppor- uniquely suited to exercise this duty because tunity to work to enhance the administration our core strength as a branch is to problem- of justice and to protect the constitutional solve, to collect the evidence, to assess the right of all Californians to have their day in evidence with care and deliberation, and then court. With the organized support of the bar, to decide. I support her view whole-heartedly. and the meaningful contributions of justices In addition to my responsibilities to imple- and judges, the Chief Justice and the Judicial ment the council directives flowing from the Council will successfully meet the challenges SEC recommendations, my duties include our ahead. most important issue: the budget for the judi- cial branch. Judge Steven Jahr has been the Director at the The cost to the taxpayers of running the Administrative Office of the Courts since entire judicial branch represents just 2.1% of October 2012.
14 To Cite or Not to Cite? That Is the Question Citing Unpublished Decisions in California State and Federal Courts
By Benjamin G. Shatz and Emil Petrossian
Benjamin G. Shatz Emil Petrossian
very day in California, lawyers en- where nearly all written opinions can be gaging in legal research come across readily located electronically via Westlaw, E that perfect case that makes that Lexis, Google Scholar, and other sources. key point — only to realize that the case is This increased access to unpublished deci- “unpublished.” Hence the quandary: Should sions has made it more tempting to cite the case be cited? Can it be cited? them, while at the same time giving rise to The quagmire of handling unpublished case law has thickened in our digital age, California Litigation Vol. 26 • No 1 • 2013
15 much confusion regarding the propriety of The next question is, “when” is an appel- doing so. late opinion ripe for citation? The rule again is To complicate matters, California has uni- clear: As soon as the Court of Appeal issues que practices regarding unpublished, partially an opinion for publication, it may be cited. published, and even depublished appellate (Rule 8.1115(d).) This is true even though opinions; and federal practices governing the citation of published and unpublished author- ity have a complicated history. Given that precedent is the lifeblood of legal argument, understanding how to deal with unpublished authority is essential knowledge for any litiga- tor. To help eliminate some of the confusion surrounding unpublished decisions, this arti- cle aims to provide a roadmap for California Taking their cue from practitioners to determine whether a particu- ‘ lar decision may be cited in state and federal the Ninth Circuit, courts in California. — Citations in — as they must, California’s California State Courts The rules governing the citation of unpub- federal district courts lished California state-court opinions in Cali- fornia state courts are relatively straightfor- ward. All decisions of the California Supreme also generally apply Court are automatically published in Califor- nia Reports, and thus may be cited. (Cal. California’s rules Rules of Court, rule 8.1105(a).) The problem of unpublished decisions aris- es with opinions from the Court of Appeal or regarding the citation of superior court appellate division. Opinions of these courts are not published unless specifi- unpublished or depublished cally certified for publication. (Rule 8.1105 (b).) Fortunately, a simple rule of court exists to provide guidance: Any decision that is not California cases. certified for publication (or not ordered pub- ’ lished) “must not be cited or relied on by a court or a party in any other action.” (Rule 8.1115(a).) So far, so good. The rule has two express exceptions: An unpublished opinion may be cited or relied on when the opinion is (1) “relevant under the the decision is not technically “final” for doctrines of law of the case, res judicata, or another 30 days after it is published — e.g., collateral estoppel”; or (2) “relevant to a the Court of Appeal has jurisdiction to change criminal or disciplinary action because it the opinion sua sponte or via a petition for states reasons for a decision affecting the rehearing; and the possibility of review by the same defendant or respondent in another Supreme Court still exists (generally for such action.” (Rule 8.1115(b).) These excep- another 100 days). tions rarely come into play. The same is true for a previously unpub-
16 lished decision that has been ordered pub- issues of federal law — are not binding on lished: As soon as the decision is certified for California state courts and constitute only publication, it may be cited. (Rule 8.1115 persuasive authority. (See Ticconi v. Blue (d).) Sometimes opinions are only partially Shield of Cal. (2008) 160 Cal.App.4th 528, published, so be sure to cite only to the pub- 541, fn. 10.) Even courts viewing federal deci- lished portions of such decisions. (Rule sions on federal issues to be deserving of 8.1110.) “great weight,” recognize that, in some cir- Understand, however, that citing recently cumstances, California state courts may published cases within this 100-day window ignore federal precedent. (E.g., Etcheverry carries some risk. If the Court of Appeal v. Tri-Ag Serv., Inc. (2000) 22 Cal.4th 316, grants a rehearing or if the Supreme Court 320; People v. Williams (1997) 16 Cal.4th grants review, then the opinion is immediate- 153, 190; Pac. Shore Funding v. Lozo ly superseded and no longer considered pub- (2006) 138 Cal.App.4th 1342, 1352 [lower lished, and thus is not citable. (Rule 8.1105 federal court decisions on federal law are not (e)(1).) Moreover, the Supreme Court has binding on state courts; such decisions are authority to order that an unpublished opin- persuasive and entitled to great weight; but ion be published, and to decertify the publica- where lower federal precedents are divided tion of a published opinion.(Rule 8.1105 or lacking, state courts must necessarily (e)(2).) Accordingly, when contemplating make an independent determination of feder- freshly hatched decisions, extra diligence is al law].) required. The precise wording of Rule 8.1115’s re- — Citations in — strictions on the citation of unpublished opin- California Federal Courts ions makes clear that the rule applies to opin- Turning to the federal court system, opin- ions of the Court of Appeal and superior ions from the Supreme Court of the United court appellate division. Thus, California’s States, are, of course, all published and Rule does not extend to unpublished deci- always citable. Similarly, with limited excep- sions from other jurisdictions, including fed- tions noted below, district court decisions are eral courts. Precedent consistently recog- also citable whether they appear in a print nizes this basic limitation on the rule’s scope. publication or not. (Sorrels v. McKee (9th (See, e.g., Haligowski v. Superior Court Cir. 2002) 290 F.3d 965, 971.) (2011) 200 Cal.App.4th 983, 990, fn. 4 The complications arise at the intermedi- [“Unpublished federal opinions are citable ate appellate level. Like California’s Court of notwithstanding [Rule 8.1115] which only Appeal, the federal circuit courts of appeals bars citation of unpublished California opin- issue both published and unpublished deci- ions.” (emphasis in original)]; Harris v. sions. Published decisions appear in West’s Investor’s Bus. Daily, Inc. (2006) 138 Cal. Federal Reporter (starting with cases from App.4th 28, 34 [“[E]ven unpublished federal 1880), and — somewhat ironically — starting opinions have persuasive value in this court, in 2001, “unpublished decisions” (from most as they are not subject to [Rule 8.1115], circuits, including the Ninth Circuit) typically which bars citation of unpublished California appear in a case law reporter titled the opinions” (citation omitted)]; Bowen v. Federal Appendix. Thus, it is perfectly accu- Ziasun Techs., Inc. (2004) 116 Cal.App.4th rate to say that “unpublished cases are pub- 777, 787, fn. 6; City of Hawthorne ex rel. lished in the Federal Appendix” — although a Wohlner v. H&C Disposal Co. (2003) 109 non-lawyer might perceive this as lawyer’s Cal.App.4th 1668, 1678, fn. 5.) double-talk. Of course, unpublished decisions of federal The governing citation rule in the Ninth district and appellate courts — even on Circuit is Circuit Rule 36-3, which provides
17 that unpublished Ninth Circuit dispositions 1167–1168 [citing and relying on an unpub- and orders are (a) not precedent (i.e., not lished Third Circuit case].) Even Ninth binding on district courts or other Ninth Circuit decisions rely on sister-circuit unpub- Circuit panels), except when relevant under lished precedent from time to time. (E.g., the doctrine of law of the case or rules of EEOC v. United Parcel Serv., Inc. (9th Cir. claim preclusion or issue preclusion; (b) 2002) 306 F.3d 794, 803, fn. 5 [citing a 4th citable to courts within the Ninth Circuit if Circuit Federal Appendix case]; United issued on or after January 1, 2007; and (c) States v. Arellano-Rivera (9th Cir. 2001) not citable if issued before January 1, 2007, 244 F.3d 1119, 1126.) Under the federal doc- except under limited circumstances (e.g., trine of stare decisis, of course, these author- when relevant under preclusion doctrines, or ities are only persuasive precedent. (Hart v. for factual purposes, or to demonstrate the Massanari (9th Cir. 2001) 266 F.3d 1155, existence of a conflict). (See Sorchini v. 1169–1174.) City of Covina (9th Cir. 2001) 250 F.3d 706, Likewise, Ninth Circuit Rule 36-3 does not 708 [the “factual purposes” exception “per- cover unpublished state-court decisions. mits the citation to an unpublished disposi- Nonetheless, the Ninth Circuit and federal tion where the very existence of the prior district courts in California typically apply case is relevant as a factual matter to the state rules governing the citation of unpub- case being briefed,” which “will almost always lished state court decisions. For example, in involve one or both of the parties to the Rennick v. O.P.T.I.O.N. Care, Inc. (9th Cir. pending case” — the exception does not per- 1996) 77 F.3d 309, 317, the plaintiffs cited mit citation for the purpose of providing Ciampi v. Red Carpet Corp. (1985) 167 “notice” to a court of the existence or ab- Cal. App.3d 336, rehearing granted, to sup- sence of legal precedent (emphasis port their argument that the defendant vio- original)].) lated California’s Franchise Investment Law. Thus, the key date to remember is 2007: The Ninth Circuit refused to consider Unpublished Ninth Circuit decisions issued in Ciampi, however, because the California or after 2007 are citable without restriction as Court of Appeal had granted rehearing, persuasive authority. But pre-2007 unpub- thereby superseding the opinion and render- lished decisions are not citable, subject to ing it unpublished under California’s publica- certain rare exceptions. tion rules. By its express terms, Rule 36-3 extends Similarly, in Credit Suisse First Boston only to unpublished Ninth Circuit decisions, Corp. v. Grunwald (9th Cir. 2005) 400 F.3d not to decisions or orders issued by other 1119, the Ninth Circuit refused to consider courts, including district courts within the Jevne v. Superior Court (2003) 113 Cal. Ninth Circuit. (See Renick v. Dun & Brad- App.4th 486, review granted, based on the street Receivable Mgmt. Servs. (9th Cir. California Supreme Court’s grant of review. 2002) 290 F.3d 1055, 1058 [“Rule 36-3 quite The court explained: “Under California Rules clearly prohibits citations only of our unpub- of Court, a superseded opinion is not consid- lished dispositions; it does not apply to ered published, and an unpublished opinion unpublished dispositions issued by any other cannot be cited to or relied on by other courts within our circuit or elsewhere”].) courts. In short, an unpublished opinion Thus, federal courts in California generally does not constitute binding precedent. can (and often do) rely on unpublished Accordingly, we are not bound by the Jevne orders and opinions from district courts and court’s analysis of California law.” (Grun- courts of appeals from circuits other than the wald, supra, 400 F.3d at p. 1126, fn. 8.) Ninth Circuit. (E.g., Alvarenga-Villalobos v. Taking their cue from the Ninth Circuit, as Reno (N.D.Cal. 2000) 133 F.Supp.2d 1164, they must, California’s federal district courts
18 also generally apply California’s rules regard- Litig. (8th Cir. 1997) 113 F.3d 1484, 1493, ing the citation of unpublished or depub- fn. 11 (“Joint Implants”). lished California cases. (E.g., Taylor v. Quall Cole’s reliance on Joint Implants seems (C.D.Cal. 2006) 458 F.Supp.2d 1065, 1068 erroneous, because the Eight Circuit’s deter- [rejecting citations to two unpublished mination regarding the applicability of California Court of Appeal opinions].) How- California’s citation rules directly contradicts ever, at least one federal district court in the Ninth Circuit’s rule. Cole also suggested California has refused to be bound by those that it was permitted to rely on the unpub- rules. In Cole v. Doe 1 (N.D.Cal. 2005) 387 lished state-court decision “not…as deci- sional law but rather for its persuasive rea- soning.” (Cole, supra, 387 F.Supp.2d at p. 1103, fn. 7.) But such a rule undermines California’s prohibition of unpublished state- court decisions, because all unpublished decisions constitute persuasive (albeit uncitable) authority. Thus, citing an unpub- lished decision for its “persuasive reasoning” A final consideration is no different than citing it as “decisional ‘ law.” Indeed, this is precisely the type of argument that practitioners should never is that federal district make to support citing a noncitable unpub- lished decision. Ultimately, the applicability of California’s courts have the power citation rules in federal courts makes sense. Federal courts charged with the task of to prohibit or restrict the resolving issues of state law must determine how state courts would rule on those same issues. (Mullaney v. Wilbur (1975) 421 U.S. citation of unpublished 684, 691 [state courts are the ultimate expositors of state law, and federal courts “are bound by their constructions except in decisions by local extreme circumstances”].) This purpose would be undermined if federal courts could court rule. consider unpublished cases that state courts ’ could not rely on. (See, e.g., Antablian v. State Bd. of Equalization (Bankr. C.D.Cal. 1992) 140 B.R. 534, 536–537 [recognizing that because its task was “to determine how a California state court would rule,” the court could not reasonably rely on an unpub- lished California state-court decision “as an indication of how a California appellate court F.Supp.2d 1084, 1103, fn. 7, the district court would rule”].) cited and relied on an unpublished California Moreover, federal courts’ ability to cite case, reasoning that California’s rule was “not unpublished state-court decisions might lead binding in the federal courts,” as determined to disuniformity in the law, which, in turn, by the Eighth Circuit, In re Temporoman- could engender forum shopping between the dibular Joint Implants Prods. Liability state and federal court systems. Thus, Cali-
19 fornia federal courts’ application of Cali- outside of the generic definition of a crime of fornia’s state rules regarding the citation of moral turpitude.”]; Nunez v. Holder (9th unpublished California state-court opinions Cir. 2010) 594 F.3d 1124, 1137, fn. 10 brings stability to both court systems. [unpublished state-court decisions are “perti- A notable exception to the application of nent to show how a statute has been applied California’s rules in federal courts appears in in practice”].) Powell v. Lambert (9th Cir. 2004) 357 F.3d A final consideration is that federal district 871 and its progeny. In Powell, the Ninth courts have the power to prohibit or restrict Circuit held that litigants may cite to and rely the citation of unpublished decisions by local on unpublished state appellate decisions court rule. The local civil rules presently in where the issue presented is the adequacy of effect in the Central, Eastern, and Southern a state procedural bar — particularly when Districts of California do not prohibit or the bar prevents the assertion of federal restrict citations to unpublished district rights. (Powell, supra, 357 F.3d at p. 879.) court decisions. The Northern District, how- Powell reasoned that reliance on unpublished ever, expressly prohibits citation to “[a]ny decisions for this limited purpose is appropri- order or opinion that is designated: ‘NOT ate because “it is the actual practice of the FOR CITATION,’ pursuant to Civil L.R. 7-14 state courts, not merely the precedents con- or pursuant to a similar rule of any other tained in their published opinions, that deter- issuing court…either in written submis- mine the adequacy of procedural bars pre- sions or oral argument, except when relevant venting the assertion of federal rights.” (Ibid., under the doctrines of law of the case, res citing Valerio v. Crawford (9th Cir. 2002 en judicata or collateral estoppel.” (N.D.Cal. Civ. banc) 306 F.3d 742, 776.) Powell further L.R. 3-4(e) [emphasis added].) Accordingly, explained that “[u]npublished decisions are in the Northern District, unpublished deci- not irrelevant to a determination of a court’s sions from any jurisdiction with a non-cita- actual practice. Indeed, to the extent that de- tion rule or applicable procedure are not cisions of the state courts are unpublished citable. because they involve only routine application The rules governing citation of unpub- of state court rules, unpublished decisions are lished opinions should be carefully followed. a particularly useful means of determining Mistakes can be costly. (See Alicia T. v. actual practice.” (Powell, supra, 357 F.3d at County of Los Angeles (1990) 222 Cal.App. p. 879.) 3d 869, 885–886 [monetary sanctions Subsequent court decisions relying on imposed to discourage violation of the cita- Powell seemingly have expanded its holding tion rules].) But depending on the venue and to cover any state statute, the actual applica- circumstances, unpublished opinions may be tion of which by the state court is relevant to a useful source of persuasive authority. Prac- the issues before the federal court. (See, e.g., titioners should tread carefully and double- Vizcarra-Ayala v. Mukasey (9th Cir. 2008) check the rules when citing unpublished 514 F.3d 870, 876, fn. 3 [relying on unpub- decisions, keeping in mind that the mere fact lished California decisions regarding the that a decision is unpublished does not nec- application of Cal. Penal Code § 475, pro- essarily mean that it cannot be cited in any scribing specific forms of forgery]; Castillo- and all courts. Cruz v. Holder (9th Cir. 2009) 581 F.3d 1154, 1161, fn. 9 [unpublished cases “are per- Benjamin G. Shatz co-chairs the Appellate tinent for showing that there is a ‘realistic Practice Group of Manatt, Phelps & Phillips, probability’ that [Cal. Penal Code § 496] has LLP. Emil Petrossian is a litigation associate been and will be applied to conduct falling at Manatt.
20 Bring Your Own Court Reporter
By Robert Cooper
Robert Cooper
hen practicing appellate law, Merced (2003) 110 Cal.App.4th 362, 364.) “ there are at least three im- The current budget cuts have forced trial Wmutable rules: first, take great courts to take drastic measures that impact care to prepare a complete record; second, if a party’s ability to comply with these funda- it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of California Litigation Vol. 26 • No 1 • 2013
21 mental rules of practice. One such measure is to provide the appellate “court with an ade- the terminating of court reporters from the quate record precludes any determination in court’s payroll. As a result of such staffing re- [his or her] favor.” (Martin v. Inland Empire ductions, appellants can face potential obsta- Utilities Agency (2011) 198 Cal.App.4th 611, cles in pursuing an appeal; namely, access to 633.) Without a reporter’s transcript, the a court reporter’s transcript. court of appeal can summarily affirm the lower court’s ruling or, alternatively, dismiss — Rules Governing Appellate — the appeal. Review of Trial Court Decisions For example, when the ruling is subject to Appealed judgments and orders are pre- an abuse-of-discretion standard of appellate sumed correct, and the appellant has the bur- review, “[t]he absence of a record concerning den of overcoming this presumption by affir- what actually occurred at the hearing pre- matively showing error on an adequate re- cludes a determination that the court abused cord. (See Ketchum v. Moses (2001) 24 Cal. its discretion.” (Wagner v. Wagner (2008) 4th 1122, 1140-1141 [articulating this rule]; 162 Cal.App.4th 249, 259 [affirming order Stasz v. Eisenberg (2010) 190 Cal.App.4th denying Code Civ. Proc., § 473, subd. (b) dis- 1032, 1039 [“in the absence of a required cretionary relief based on this ground].) reporter’s transcript and other [necessary] Likewise, to the extent that a party seeks to documents, we presume the judgment is cor- challenge the sufficiency of the evidence to rect”].) This rule “is not only a general princi- support the trial court’s ruling, such a claim ple of appellate practice but an ingredient of may be barred based on the appellant’s failure the constitutional doctrine of reversible to present the transcripts for the trial or the error.” (Denham v. Superior Court (1970) 2 underlying hearings. (See, e.g., Aguilar v. Cal.3d 557, 564 [internal quotes and citation Avis Rent A Car System, Inc. (1999) 21 Cal. omitted].) 4th 121, 132; see also EnPalm, LLC v. “A necessary corollary to this rule is that a Teitler Family Trust (2008) 162 Cal.App.4th record is inadequate, and appellant defaults, 770, 775 (maj. opn.) [attorney fee award]; if the appellant predicates error only on the Foust v. San Jose Const. Co., Inc. (2011) part of the record he provides the trial court, 198 Cal.App.4th 181, 189 [“Without a proper but ignores or does not present to the appel- record, there is no way for this court to find late court portions of the proceedings below that the trial court’s conclusions were not which may provide grounds upon which the supported by substantial evidence”; sanctions decision of the trial court could be affirmed.” imposed].) (Osgood v. Landon (2005) 127 Cal.App.4th In numerous other situations, appellate 425, 435 [internal quotes and brackets omit- courts have similarly refused to reach the ted]; accord, Buckhart v. San Francisco merits of an appellant’s claims based on the Residential Rent Bd. (1988) 197 Cal.App.3d appellant’s failure to provide the reporter’s 1032, 1036 [“if any matters could have been transcript or a suitable substitute. (See, e.g., presented to the court below which would Walker v. Superior Court (1991) 53 Cal.3d have authorized the order complained of, it 257, 273-274 [transfer order]; Maria P. v. will be presumed that such matters were Riles (1987) 43 Cal.3d 1281, 1295-1296 presented”].) [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead The Practical Implications opn. of Grodin, J.) [new trial motion hearing]; Jones v. Dumrichob (1998) 63 Cal.App.4th — of the Rules — 1258, 1264 [“appellants’ failure to designate Governing Appellate Review the reporter’s transcript of the trial as part of Based on these rules, an appellant’s failure the record on appeal leaves this court with no
22 evidence upon which to base a finding that As an alternative to a reporter’s transcript, the trial court abused its discretion” in award- Cal. Rule of Court 8.130(g) allows parties to ing expert witness fees]; Hodges v. Mark use an agreed or a settled statement. These (1996) 49 Cal.App.4th 651, 657 [nonsuit are rarely used. They are not efficient, motion where trial transcript not provided].) because they entail substantial time in prepa- ration. While a settled statement is created — Practical Tips to — based on a proposal and a counter-proposal Avoid Procedural Defaults procedure between the parties (followed by judicial settlement), an agreed statement is In addition to filing a notice of appeal based on the parties’ agreement regarding before the jurisdictional deadline expires, the contents and the scope of the trial testi- “the court rules requiring prompt action on mony, an inherently tricky source of disputes. the part of appellants to perfect and prose- cute their appeals with diligence should be Recent Trends and strictly complied with in every respect.” — New Issues — (McGinnis v. Monjoy (1959) 169 Cal.App.2d 519, 522 [appeal dismissed where appellant Regarding Reporters’ Transcripts failed to pay for the reporters’ transcripts for A major debate exists as to whether appel- seven months and failed to correct deficien- late courts may entertain an appeal without a cies in the clerk’s transcripts; emphasis reporter’s transcript in certain situations. In added]; Ehman v. Moore (1963) 221 Cal. Chodos v. Cole (2012) 210 Cal.App.4th 692, App.2d 460, 462-463 [appeal dismissed based a case involving an anti-SLAPP motion, on appellants’ failure to secure reporter’s Division Five of the Second District issued a transcript reflecting offers of proof].) split decision on this issue with a vigorous dis- With the courts no longer supplying court senting opinion. reporters, the burden shifts to prospective The majority held that it does “not believe appellants in civil cases to arrange for a court existing Supreme Court authority requires a reporter in advance to be present at hearings transcript of the hearing in connection with (or trial proceedings). This, of course, re- whether the anti-SLAPP statute applies to a quires additional expenditures in terms of specific pleading.” (Chodos v. Cole, supra, appearance fees on top of the transcription 210 Cal.App.4th at p. 700.) The majority rea- costs, thus further driving up the costs of liti- soned that “[n]one of the parties relies upon gation. While the costs charged by court the oral argument before the trial court, and reporters can be exorbitant (particularly for we decide a pure legal issue based on the fil- transcribing an entire trial), a party that ings before the trial court — as did the trial intends to appeal cannot afford to be penny court.” (Id. at p. 699.) Noting that “the avail- wise and pound foolish. ability of court reporters has been limited” Otherwise, if the reviewing court “cannot based on a recent policy adopted by the Los knowledgeably rule on the merits” of the Angeles Superior Court (id. at fn. 3), the appeal, it can “consider the claim aban- majority applied a liberal view, indicating that doned.” (In re Valerie A. (2007) 152 Cal. the court could order the record augmented App.4th 987, 1002-1003 [appellant’s claim at the appellant’s expense on its own motion. considered abandoned where appellant failed (Id. at p. 699.) to provide reporter’s transcript of trial court The dissenting justice, however, strongly proceeding]; Interinsurance Exchange v. disagreed with the majority’s view. (Chodos Collins (1994) 30 Cal.App.4th 1445, 1448 v. Cole, supra, 210 Cal.App.4th. at p. 707 [affirming sanctions order for lack of ade- [dis. opn. of Turner, P.J.].) Finding the majori- quate record].) ty’s view to be totally inconsistent with the
23 “requirements imposed in Supreme Court 21, 2010) [2010 Cal. LEXIS 832].) Three authority” regarding the need for presenta- years later, the problem has become much tion of the transcripts, the dissent held that worse. the trial court’s anti-SLAPP ruling should be For example, court reporters are now rou- affirmed based on the appellant’s failure to tinely demanding fees in excess of the statu- present the reporter’s transcript on appeal. tory rates set in Government Code section (Id. at pp. 707-709.) 69950 for transcribing proceedings. Seeking Confirming the recurring nature of this to shift their loss of employment checks to lit- issue, Division Four of the Second District igants, they typically claim that they are not recently issued an order in a fully briefed case bound by the rates set by this statute, that was scheduled for oral argument striking because they are now operating as “official the parties’ briefs “because the current state court reporters pro tempore.” (Govt. Code, § of the record and briefing inhibit appellate 68086, subd. (a)(5)(B).) As a result, private review.” (Shatz, Southern California Ap- court reporters typically demand fees that are pellate News (Jan. 10, 2013)
24 Judicial Discretion Advised: A Critique of California’s Per Se Disqualification Rule in Concurrent Representation Cases
By Mark T. Drooks and Jessica S. Chen
Mark T. Drooks Jessica S. Chen
he scenario reads like a standard rigor. While the per se disqualification rule MPRE question: A law firm inadver- seems straightforward, the consequences of T tently takes on a new client whose implementing such a rule can be complicat- interests are adverse to an existing one, with- ed, particularly in the modern legal land- out obtaining written consent from either. scape, where lawyers within the same law The representation involves a clear conflict of firm have no knowledge of their colleagues’ interest, and in California, many courts say cases, and strict adherence to the duty of loy- that the law firm is subject to automatic, or alty may actually harm the clients to whom per se, disqualification. the duty is owed. Indeed, other jurisdictions Much of law school is devoted to learning have applied a more flexible standard for that, in the law, general principles are by defi- evaluating whether disqualification is appro- nition false. Where the facts are supposed to priate, and California should do the same. be critical to decision-making, per se rules such as this one often undermine analytical California Litigation Vol. 26 • No 1 • 2013
25 Existing California 283.) In successive representation, “the chief — — fiduciary value jeopardized is that of client Law on Disqualification confidentiality.” (Ibid.) California courts have established two sep- But in a concurrent representation situa- arate standards to analyze whether disqualifi- tion, where an attorney’s representation of cation is appropriate when there is a conflict one client is adverse to the interests of anoth- of interest. In a successive representation sit- er current client, the duty of loyalty is impli- uation, where an attorney’s current client has cated, and many courts conclude that per se disqualification is required even if the repre- sentations are unrelated in subject matter and there is no risk concerning confidential information. (State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1431.) Moreover, in the case of concurrent repre- sentation, the so-called Hot Potato Rule pro- Moreover, the per se hibits counsel from withdrawing from repre- ‘ sentation of one client prior to disqualification in order to convert a concurrent representa- rule contradicts the tion into a successive representation for pur- poses of assessing the conflict of interest. general rule that (Truck Ins. Exchange v. Fireman’s Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 1060.) Although this rule originally applied to pro- disqualification motions hibit dropping the preexisting client in favor of a new one, the rule has been interpreted are always confided broadly to prohibit a firm from dropping the new client in order to honor its obligations to its original client. (State Farm Mut. Auto. to the discretion Ins. Co. v. Federal Ins. Co., supra, 72 Cal.App.4th at p. 1431.) of the court in light of — Why Per Se — Disqualification is Bad Policy the competing interests While the rationale behind the per se rule is to protect the clients’ interests, absent specific to the case. issues of confidentiality, the harm to the ’ client from violation of the duty of loyalty often verges on the metaphysical. In certain cases, the per se rule may be used as a tacti- cal move by one client to disqualify counsel to the detriment of the other. Consider the following hypothetical: Law- interests adverse to the attorney’s former yer A in Los Angeles has been representing client, the test is whether there is a “substan- Client No. 1 in a complex litigation in Cali- tial relationship” between the subject matter fornia for five years. Lawyer B, in the New of the current and former representations. York office of the same Law Firm as Lawyer (Flatt v. Super. Ct. (1994) 9 Cal.4th 275, A, agreed to represent Client No. 2 in a minor
26 matter in New York. Client No. 2 is adverse to attorneys in the same firm may be adverse to Client No. 1 in the California litigation, but no that client in some unrelated matter. Many confidences relating to the two cases were corporate clients routinely waive conflicts shared between Lawyer A and Lawyer B, and that are brought to their attention. Indeed, if the California and New York matters are the conflict described above had been discov- unrelated. No waivers were obtained because ered in a check, it is entirely possible that the the Law Firm’s conflicts check inadvertently clients would have waived it. failed to disclose any conflict. California courts have noted the outdated Three months into the New York matter, assumptions underlying conflict law in other Client No. 2 brought the conflict to the Law contexts. For example, the Court of Appeal, Firm’s attention, and the Law Firm dropped in ruling against automatic vicarious disquali- out of the minor matter, but declined to drop fication, acknowledged: “In a situation where out of the complex litigation due to concern the ‘everyday reality’ is no longer that all for prejudicing Client No. 1. The latter, a attorneys in the same law firm actually ‘work sophisticated business with in-house counsel together,’ there would seem to be no place for capable of assessing the issues, wishes to a rule of law based on the premise that they retain the Law Firm as counsel, but Client No. do.” (Kirk v. First Am. Title Ins. Co. (2010) 2 subsequently moves to disqualify the Law 183 Cal.App.4th 776, 802; see also In re Firm in the California litigation. County of Los Angeles (9th Cir. 2000) 223 In the above scenario, the Law Firm would F.3d 990, 997 [“The changing realities of law likely be disqualified under California’s per se practice call for a more functional approach rule, regardless of whether Client No. 2 suf- to disqualification[.]”].) These outdated fers actual prejudice from the conflict. And assumptions are no less true in concurrent because of the Hot Potato Rule, broadly representation cases, and the talismanic invo- defined, the Law Firm can do nothing to cure cation of loyalty should not render them the conflict. The tactical advantage for Client irrelevant. No. 2 to bring a disqualification motion is Disqualification may result in substantial clear, while it is Client No. 1 that suffers and harm to the innocent client who wishes to is forced to find new counsel. retain conflicted counsel. As courts have The wisdom behind the per se rule is ques- acknowledged, disqualification “can be mis- tionable given the current legal landscape. used to harass opposing counsel, or to intimi- There are international and national law firms date an adversary into accepting settlement with many lawyers and offices, such that on terms that would not otherwise be accept- there is no genuine risk that a lawyer in Los able.” (Gregori v. Bank of America (1989) Angeles would be influenced by, or even have 207 Cal.App.3d 291, 301.) Disqualification knowledge of, actions of a lawyer in New York also causes substantial delays and increased on an unrelated case. Moreover, given the costs. It is the disqualified attorney’s client size of law firms and the complexity of litiga- who bears the financial and strategic cost of tion, conflict checks can be a complicated finding a replacement, and the prejudice is affair; and the occasional conflict of interest is especially pronounced if disqualified counsel likely inadvertent and results in no actual has expertise in the subject area or is familiar prejudice. with the complex facts and issues in long- Perhaps more important, lawyers often standing litigation. serve corporate clients with far-flung business Finally, the added deterrent value of a per interests and large portfolios of litigation; se disqualification rule instead of a discre- they do not necessarily view the duty of loyal- tionary rule is questionable. Law firms make ty as a matter of personal fealty that prevents substantial efforts to avoid conflicts, and them from representing a client where other there is no reason to believe that a draconian
27 remedy enhances those efforts. In reality, of limitations. The Supreme Court rejected many concurrent conflicts arise through inad- this claim, holding that Flatt had a duty of vertence, innocent error, or some failure to loyalty to the existing client (whom the law connect related corporate entities. firm had continued to represent). Though the initial cases only concerned — Why Per Se — protection of the preexisting client, subse- Disqualification is Bad Law quent case law interpreted Truck Ins. It is a distortion of the Hot Potato Rule to Exchange and Flatt broadly to support the conclude that disqualification from represen- tation of Client No. 1 should be automatic on motion by Client No. 2, when the purpose of the rule is to protect Client No. 1. In Truck Ins. Exchange v. Fireman’s Fund Ins. Co., supra, 6 Cal.App.4th 1050, the seminal case on the Hot Potato Rule, counsel withdrew from representing Client No. 1 in two small lawsuits to represent Client No. 2, with inter- ests adverse to Client No. 1, in another law- Other jurisdictions suit; the law firm effectively fired its existing ‘ client after the latter client refused to consent to concurrent representation. (Id. at pp. already have adopted 1053-54.) The holding in Truck Ins. Ex- change is narrow: “[A] law firm that knowing- a more flexible ly undertakes adverse concurrent representa- tion may not avoid disqualification by with- drawing from the representation of the less approach toward favored client before hearing.” (Id. at p. 1057.) Flatt v. Superior Court cited Truck Ins. disqualification in Exchange for the proposition that concur- rent representation conflicts may not be concurrent cured “by the expedient of severing the rela- tionship with the preexisting client.” (Flatt v. Super. Ct., supra, 9 Cal.4th at p. 288.) The representation cases. rule thus exists to protect the pre-existing ’ client from losing its counsel. The facts in the Flatt case — rarely described by courts that quote this language — demonstrate this point. In Flatt, the attorney (of that name) met with Client No. 2, a prospective client, to discuss potential claims against Client No. 1, a preexisting one. One week after the meeting, Flatt stated she could not represent Client proposition that under no circumstances may No. 2 because her firm was representing an attorney in a concurrent-representation Client No. 1 in an unrelated matter. Client No. conflict drop one client and retain the other, 2 later sued Flatt, claiming that Flatt had and that even where the conflict was short- breached a duty to advise him of the statute lived and inadvertent, counsel could do noth-
28 ing to cure it. The Hot Potato rule, originally in the one-month representation versus harm intended to protect the original client, thus to the client in the three-year litigation, and morphed into a “gotcha” rule that prejudiced noted that there was no evidence that confi- the original client. dential information was shared. (See also Moreover, the per se rule contradicts the SWS Financial Fund A v. Salomon Bros. general rule that disqualification motions are Inc. (N.D. Ill. 1992) 790 F.Supp. 1392, 1400 always confided to the discretion of the court [denying disqualification where plaintiff in light of the competing interests specific to would suffer “substantial costs” if disqualifi- the case. (Oaks Mgmt. Corp. v. Super. Ct. cation were granted]; Research Corp. (2006) 145 Cal.App.4th 453, 462 [citing Code Techs., Inc. v. Hewlett-Packard Co. (D. Ariz. Civ. Proc., § 128, subd. (a)(5)].) Indeed, even 1996) 936 F.Supp. 697, 702-03 [denying dis- cases affirming a per se rule recognize excep- qualification where plaintiff’s counsel simul- tions. (See State Farm Mut. Auto. Ins. Co. v. taneously represented defendant in a minor Federal Ins. Co., supra, 72 Cal.App.4th at p. matter, but had spent 19 months preparing 1432 [an exception where the conflict plaintiff’s case].) “occurred by ‘mere happenstance’”]; Forrest In evaluating whether disqualification is v. Baeza (1997) 58 Cal.App.4th 65, 80 [rec- appropriate, California courts could consider ognizing an exception in the shareholder deri- such relevant factors as: (i) the nature of vative context].) clients and length and significance of each representation; (ii) whether the conflict was A Discretionary Approach inadvertent; (iii) prejudice to Client No. 1, — to Disqualification in — including financial burdens or burdens in parting with counsel familiar with a case; and Concurrent Representation Cases (iv) prejudice to Client No. 2 from continued A less expansive interpretation of the Hot representation of Client No. 1. This is not Potato Rule would allow counsel to cure con- unlike the discretionary standard already flicts by dropping the new client and keeping employed by courts for determining propri- the preexisting one, which is more accurately ety of disqualification generally. (See Oaks in line with the Flatt and Truck Ins. Ex- Mgmt. Corp. v. Super. Ct., supra, 145 Cal. change cases. If a disqualification motion is App.4th at pp. 464-65.) brought, judges should be permitted to exer- While an attorney’s breach of ethical cise their discretion to consider all the rele- duties should not be condoned, California vant facts to reach the most equitable result courts should adopt a discretionary approach in the individual case. to disqualification in concurrent representa- Other jurisdictions already have adopted a tion cases, where interests of both affected more flexible approach toward disqualifica- clients are to be carefully weighed and con- tion in concurrent representation cases. For sidered. Such an approach is consistent with example, in Parkinson v. Phonex Corp. (D. existing disqualification law and would more Utah 1994) 857 F.Supp. 1474, 1477, the court effectively protect client interests than the denied disqualification where two attorneys per se rule, which aims to protect the duty of in the same law firm simultaneously repre- loyalty but may ultimately harm the interests sented the plaintiff and defendant in two sep- of innocent clients. arate matters for a one-month period; one matter was a three-year litigation, whereas Mark T. Drooks and Jessica S. Chen are attor- the other was a one-month estate planning neys at the Los Angeles law firm, Bird, representation. The court weighed “the rela- Marella, Boxer, Wolpert, Nessim, Drooks & tively minor harm” alleged by the defendant Lincenberg, P.C.
29 An Unresolved Issue: Article III Standing for Statutory Damages
By Michael A. Geibelson and Joel A. Mintzer
Michael A. Geibelson Joel A. Mintzer
rticle III of the United States Con- So where does that leave the viability of stitution limits federal courts’ juris- claims where standing is based solely on A diction to specified “cases” and statutory damages or penalties without other “controversies.” That limitation requires a injury? plaintiff to have standing to sue. And general- ly, for standing to exist, the plaintiff must have — RESPA and — suffered an “injury in fact.” First American v. Edwards But the United States Supreme Court The First American case alleged a viola- recently decided not to decide whether the tion of the Real Estate Settlement Procedures availability of a claim for statutory damages is, Act (“RESPA”). RESPA prohibits the pay- by itself, sufficient to create the Article III ment of “any fee, kickback, or thing of value” “injury in fact” required for standing to bring in exchange for business referrals and also suit. (First American Financial Corp. v. forbids that a “portion, split, or percentage of Edwards (June 28, 2012) No. 10-708, 132 S. any charge made or received for the render- Ct. 2536, 2012 U.S. LEXIS 4875.) The Court’s ing of a real estate settlement service” be paid unsigned, one-sentence order stated only that for services that are not actually rendered to it had “improvidently granted” certiorari in the customer. (12 U.S.C. § 2607.) the case; thus, its basis for declining review remains unclear. California Litigation Vol. 26 • No 1 • 2013
30 Thus, a real estate closing agent cannot The importance of the issue in First receive payments from a property title insur- American is heightened by the Supreme er in return for business referrals. RESPA also Court’s consideration of Standard Fire In- provides for statutory damages of up to three surance Co. v. Knowles, No. 11-1450 (ar- times the amount the buyer was charged — gued Jan. 7, 2013), where the court granted regardless of whether the amount that was charged was the same as or more than what would have been charged but for the improp- er relationship. (12 U.S.C. § 2607(d)(2).) When plaintiff Denise Edwards bought a home in Cleveland, Ohio, she relied on her closing agent, Tower City, to arrange the pur- chase of title insurance. The agent referred Thus, the Third, the title insurance business to First ‘ American. In her complaint, Edwards claimed that First American had bought a stake in Sixth, and Ninth Tower City as consideration for Tower City agreeing to refer all title insurance business Circuits’ decisions exclusively to it. Edwards sought statutory damages under RESPA, but did not claim that she had suffered any financial loss. Indeed, contrast with she could not claim that her charge for title insurance was higher than it would have been the Supreme Court’s without the exclusivity agreement, because Ohio law mandates that all title insurers charge the same price. and other courts’ First American moved to dismiss Edwards’ complaint on standing grounds, asserting that decisions holding she had not pled an injury-in-fact, but rather only a statutory injury. But the Central Dis- trict of California held that a RESPA statutory that Congress injury was a sufficient injury-in-fact. (Ed- wards v. First Am. Fin. Corp. (C.D. Cal. cannot create standing 2007) 517 F. Supp. 2d 1199.) The Ninth Circuit affirmed, holding that RESPA gives rise to a statutory cause of action regardless by creating of whether an insurance overcharge occurred. an injury. The Supreme Court granted certiorari ’ specifically to decide “[w]hether a private purchaser of real estate settlement services has standing to sue under Article III…when the violation did not affect price, quality, or other characteristics of the settlement ser- vices provided.” But after months of anticipa- certiorari to decide whether a class action tion by consumers and businesses, the plaintiff can avoid federal jurisdiction under Supreme Court dismissed the petition as the Class Action Fairness Act by stipulating improvidently granted. that the aggregate amount in controversy is
31 less than the jurisdictional minimum of $5 to the class representative only, and that the million. (See 28 U.S.C. § 1332(d).) If the class representative can then seek recovery court decides putative class representatives on behalf of others who cannot demonstrate a can stipulate that damages are below the loss of money or property. (In re Tobacco II jurisdictional limit, then plaintiffs may be able Cases (2009) 46 Cal.4th 298, 320.) Federal courts, which have to apply Article III, are split on the question. In Avritt v. Reliastar Life Ins. Co. (8th Cir. 2010) 615 F.3d 1023, the Eighth Circuit considered a California UCL claim. It noted that “[a]lthough federal courts ‘do not require that each mem- ber of a class submit evidence of personal standing,’ a class cannot be certified if it con- Yet privacy tains members who lack standing.” (Avritt, ‘ 615 F.3d at p. 1034, citation omitted.) The court then summarized what other courts statutes have have said about these issues when consider- ing class certification: “A class must therefore extended far be defined in such a way that anyone within it would have standing. Or, to put it another way, a named plaintiff cannot represent a beyond the class of persons who lack the ability to bring a suit themselves.” (Ibid, citations and internal quotation omitted.) Other courts have also common law addressed the matter in terms of class mem- ber standing, and have refused to certify definition of classes for class members not having federal standing. (See Oshana v. Coca-Cola Co. (7th Cir. 2006) 472 F.3d 506, 514; O’Shea v. a privacy injury. Epson Am., Inc. (C.D. Cal. Sept. 19, 2011) ’ 2011 U.S. Dist. LEXIS 105504, at *28-31, and cases cited therein.) Avritt relied on prior decisional law and the Rules Enabling Act, 28 U.S.C. § 2072, which prevents the use of the class action form to “abridge, enlarge or modify any sub- stantive right.” Thus, “a class representative to avoid federal court. This is significant must be part of the class and possess the because Article III standing applies only to same interest and suffer the same injury as federal courts, and not California state courts. the class members.” (Califano v. Yamasaki The difference between federal and state (1979) 442 U.S. 682, 700-701; see also court standing can arise in California UCL Amchem Prods., Inc. v. Windsor (1997) 521 (Unfair Competition Law) cases. As a result U.S. 591, 624 [class treatment improper of Proposition 64, a UCL plaintiff must allege where some class members suffered no an injury and the loss of money or property to injury].) have standing to sue. (See Civ. Code, §§ And “if none of the named plaintiffs pur- 17203-04, 17535.) The California Supreme porting to represent a class establishes the Court has held that this requirement applies requisite of a case or controversy with the
32 defendants, none may seek relief on behalf of constitutional mandate. (See, e.g., Alfi v. himself or any other member of the class.” Nordstrom, Inc. (S.D. Cal. Dec. 8, 2010) (O’Shea v. Littleton (1974) 414 U.S. 488, 2010 U.S. Dist. LEXIS 129761 [dismissing for 494.) The Ninth Circuit has taken a different lack of standing claim alleging violation of Civ. view, holding that Article III is satisfied if “[a]t Code, § 1749.5, subd. (d)].) Others have held least one named plaintiff [satisfies] the actual that so-called “injuries in law” created by injury component of standing.” (Stearns v. Congress may be enough to establish Ticketmaster Corp. (9th Cir. 2011) 655 F.3d standing. 1013, 1021.) As noted, First American itself concerned an alleged kickback arrangement between a — Standing and Injury in Fact — title insurance company and real estate clos- Federal courts’ jurisdiction is constitution- ing agents that would violate the Real Estate ally limited to actual “cases” and “controver- Settlement Procedures Act (RESPA), 12 sies.” One element of this “bedrock require- U.S.C. §§ 2601 et seq. RESPA bars such kick- ment” is that plaintiffs “must establish that back schemes and allows homebuyers to re- they have standing to sue.” (Raines v. Byrd cover statutory damages, even if the scheme (1997) 521 U.S. 811, 818.) For standing pur- itself did not cause the homebuyers any actu- poses, “The requirement of injury in fact is a al out-of-pocket loss. Joining the Third and hard floor of Article III.” (Summers v. Earth Sixth Circuits, the Ninth Circuit ultimately Island Inst. (2009) 555 U.S. 488, 497.) decided that the homebuyer had standing to Distinct from an “injury in law,” an injury in pursue RESPA’s statutory damages even fact must be (a) concrete and particularized, though he suffered no financial harm from and actual or imminent not conjectural or the kickback scheme. (Edwards v. First Am. hypothetical, (b) fairly traceable to the chal- Fin. Corp. (9th Cir. 2010) 610 F.3d 514; see lenged action of the defendant, and (c) likely also Alston v. Countrywide Fin. Corp. (3rd to be redressed by a favorable decision. (See Cir. 2009) 585 F.3d 753, 762-763; Carter v. Friends of the Earth, Inc. v. Laidlaw Welles-Bowen Realty, Inc. (6th Cir. 2009) Envtl. Servs. (TOC), Inc. (2000) 528 U.S. 553 F.3d 969, 988-989.) The Fifth Circuit had 167, 180-181; Lujan v. Defenders of previously reached the opposite conclusion. Wildlife (1992) 504 U.S. 555, 560-561.) (See Moore v. Radian Grp. Inc., 69 Fed. And “[a]lthough Congress may grant an Appx. 659; 2003 U.S. App. LEXIS 12159 (5th express right of action to persons who other- Cir. 2003) [affirming Moore v. Radian Grp. wise would be barred by prudential standing (E.D. Tex. 2002) 233 F.Supp.2d 819, 824- rules, Art. III’s requirement remains: the 25].) plaintiff still must allege a distinct and palpa- Thus, the Third, Sixth, and Ninth Circuits’ ble injury to himself.” (Gollust v. Mendell decisions contrast with the Supreme Court’s (1991) 501 U.S. 115, 126.) “It is settled that and other courts’ decisions holding that Congress cannot erase Article III’s standing Congress cannot create standing by creating requirements by statutorily granting the right an injury. to sue to a plaintiff who would not otherwise have standing.” (Raines v. Byrd, supra, 521 — Standing Challenges Likely — U.S. at pp. 818, 820 fn.3 [Congressmen with- to Arise in Privacy Cases out injury lack standing to challenge consti- Similar to RESPA, many privacy statutes tutionality, despite statutory grant].) provide for significant statutory damages Relying upon these authorities, some fed- without proof of actual injury. (See, e.g., eral courts have dismissed claims for statuto- Video Privacy Protection Act, 18 U.S.C. § ry damages that are not accompanied by 2710; Song Beverly Credit Card Act, Civ. other injury in order to comply with their Code, § 1747.08.) These damages multiply
33 quickly in the class action context. With this derails of credit card expiration dates and exposure and the First American decision certain credit card numbers, and provides for in hand, the next wave of standing chal- statutory damages of $100 to $1,000 per vio- lenges are likely to arise in class actions lation. (15 U.S.C. §§ 1681c(g), 1681n.) A alleging privacy violations with only a threat retailer processing millions of transactions of future harm. per year could be exposed to literally billions However, the Supreme Court has repeat- in damages even if additional digits provided edly held that a “possible future injury” is no useful information or caused no harm. not sufficient to satisfy Article III. (Lopez v. KB Toys Retail, Inc. (C.D. Cal. (Whitmore v. Arkansas (1990) 495 U.S. July 17, 2007) No. CV 07-144-JFW, 2007 U.S. 149, 158; Lujan v. Defenders of Wildlife, Dist. LEXIS 82025, at *14-15.) supra, 504 U.S. at p. 564, fn.2 [future harm Because the certified question in First at indefinite time cannot be an “actual or American asked generally whether statutory imminent injury”].) Instead, “[a] threatened damages are sufficient for standing or injury must be ‘certainly impending,” whether a specific injury in fact must also be (Whitmore, supra, 495 U.S. at p. 158), and identified, the same question could arise in “proceed with a high degree of immediacy, the context of these privacy-related statutes: so as to reduce the possibility of deciding a the Telephone Consumer Protection Act, the case in which no injury would have occurred Video Privacy Protection Act, the Cable at all.” (Lujan, supra 504 U.S. at p. 564, Communications Privacy Act, the Fair Credit fn.2; and Krottner v. Starbucks Corp. (9th Reporting Act, the Electronic Funds Transfer Cir. 2010) 628 F.3d 1139, 1142 [for standing, Act, the Drivers Privacy Protection Act, and plaintiff must be “immediately in danger of the Electronic Communications Privacy Act. sustaining some direct injury”].) And a fail- Several pending cases (including those ure to allege or prove any imminent injury is that were stayed pending the decision in a basis for a denial of certification (and dis- First American) are likely to either deepen missal). (See Low v. LinkedIn Corp. (N.D. the split among the circuits, or provide the Cal. Nov. 11, 2011) 2011 U.S. Dist. LEXIS vehicle for the Supreme Court to once again 130840, at *8-*9, *15 [dismissing Internet take up the issue. And the many actions cookie and beacon case for lack of Article III pending in the district courts in California standing].) concerning violations of the Song Beverly Notwithstanding these authorities, the Credit Card Act and California’s Invasion of wave of litigation has already arrived under Privacy Act will provide vehicles more locally numerous states’ consumer privacy laws. for the Ninth Circuit to address the bounds California is no exception. And privacy of its First American decision in the context statutes may provide a vehicle to address the of state statutes. standing issue. Privacy statutes can be Thus, only time will tell whether First analogized to common law privacy torts, American and statutory violations without where the appropriation of personality, other injury will support standing and Article intrusion on seclusion, publication of private III jurisdiction, or whether the Supreme facts, and portrayal in a false light can cause Court will take another opportunity to actual injury that supports standing under address the issue that it avoided in First Article III. American. Yet privacy statutes have extended far Michael Geibelson and Joel Mintzer are busi- beyond the common law definition of a pri- ness trial lawyers and partners with Robins, vacy injury. For example, the Fair and Kaplan, Miller and Ciresi L.L.P. They can be Accurate Credit Transactions Act (FACTA) contacted at [email protected] and jam- requires retailers to redact from receipts [email protected].
34 Ninth Circuit Attorney Fee Awards & De Novo Review
By Audra Ibarra
encourages meritorious claims and discour- ages frivolous ones, it ultimately reduces litigation. By contrast, under the American Rule, each party pays for its own attorney fees regardless of the outcome, unless a specific statute or contract provides otherwise. The philosophy behind the American Rule is that parties should be free to prosecute or defend claims they perceive to be right and should not be discouraged by fear of potential liabili- ty for the opposing side’s fees. Proponents of the rule believe that parties to a contract should be able to decide whether a fee-shift- ing provision would be beneficial to them and that the Legislature can put this in place where public policy requires it. Audra Ibarra When federal district courts award or deny attorney fees, the courts of appeals most of- s attorneys, we care about these ten apply the highly deferential abuse-of-dis- things. Our clients do, too. Attor- cretion standard of review, which rarely ney fees frequently exceed the results in reversals. But reviewing courts A apply the more rigorous de novo standard of damages in a case, and ensuring recovery, or limiting exposure, can be critical. review to purely legal issues that can arise in Most of us know the basic rules governing decisions about fees. attorney fee awards in civil litigation. Under Over the last few years, the Ninth Circuit the English Rule, the loser in a civil case pays has reversed and vacated attorney fee orders for the winner’s fees. That rule is followed in on de novo review of legal issues in five main England and most Western countries, other categories: (1) prevailing party status; (2) than the United States. The philosophy attorney eligibility; (3) statutory and contrac- behind it is that a party is entitled to legal tual authorization; (4) status or requirements; representation to prosecute or defend a claim and (5) method of amount determination. and should not have to incur the cost if that claim or defense is proven valid. Proponents of the English Rule believe that because it California Litigation Vol. 26 • No 1 • 2013
35 — Prevailing Party Status — NDS Group PLC (9th Cir. Aug. 4, 2010, Nos. The Ninth Circuit has applied a de novo 09-55005, 09-55633) 2010 WL 3034603 [find- standard of review and reversed attorney fee ing status in case concerning Racketeer orders because it disagreed with the district Influenced and Corrupt Organizations Act]. court’s decision on prevailing party status. — — Most recently, in La Asociacion de Trabaja- Attorney Eligibility dores de Lake Forest v. City of Lake Forest Another area in which the Ninth Circuit (9th Cir. 2010) 624 F.3d 1083, a nonprofit has applied a de novo standard of review and organization advocating on behalf of day reversed is where it disagreed with the dis- laborers sued a city over the enforcement of trict court’s decision on attorney eligibility for restrictions on soliciting work on public side- coverage by an award. Most recently, in walks. (Id. at p. 1085.) After the parties set- Rickley v. County of Los Angeles (9th Cir. tled, the nonprofit moved for attorney fees 2011) 654 F.3d 950, a woman sued a county pursuant to the Civil Rights Attorney’s Fees for violating her rights to freedom of speech Awards Act, and the district court denied the and equal protection. (Id. at p. 951.) After motion. (Id. at p. 1087; 42 U.S.C. § 1988(b).) the parties settled, the woman moved pur- The Ninth Circuit reversed in relevant suant to the Civil Rights Attorney’s Fees part. (La Asociacion de Trabajadores de Awards Act to recover fees for her spouse, Lake Forest v. City of Lake Forest, supra, who was her lead attorney, and his co-coun- 624 F.3d at pp. 1085, 1090.) The court stated sel. (Id. at p. 952; 42 U.S.C. § 1988(b).) The that it reviews “a district court’s determina- district court denied the fees for the spouse, tion regarding ‘prevailing party’ status de but granted them for co-counsel. (Rickley v. novo.” (Id. at p. 1089.) It noted that prevail- County of Los Angeles, supra, 654 F.3d at p. ing party status usually turns on the question 952.) of whether a judgment has materially altered The Ninth Circuit vacated and remanded the legal relationship of the parties. (Ibid.) the order as to the spouse. (Rickley v. And it explained that this question “is a legal County of Los Angeles, supra, 654 F.3d at p. one.” (Ibid.) 957.) It explained that although “[a]wards of The court held that similar to a judgment attorney’s fees are generally reviewed for an that confers prevailing party status, a settle- abuse of discretion,” the court “only arrive[s] ment agreement may confer such status at discretionary review if [it is] satisfied that when, as in this case, the agreement: (1) was the correct legal standard was applied and judicially enforceable; (2) materially altered that none of the district court’s findings of the legal relationship between the parties; fact were clearly erroneous.” (Ibid.) By con- and (3) provided actual relief on the merits of trast, it reviews “questions of law de novo.” plaintiff’s claims. (La Asociacion de Traba- (Id. at p. 953.) The court held that the Civil jadores de Lake Forest v. City of Lake Rights Attorney’s Fees Awards Act does not Forest, supra, 624 F.3d at pp. 1089-90.) require “counsel to be independent and emo- The Ninth Circuit also reversed on the tionally detached.” (Id. at p. 955.) Thus, the issue of prevailing party status in Weissburg court concluded that under the Act, “a suc- v. Lancaster School District (9th Cir. 2010) cessful civil rights plaintiff may recover a rea- 591 F.3d 1255 [finding status in case concern- sonable attorney’s fee for legal services per- ing Individuals with Disabilities Education formed by her attorney-spouse.” (Id. at p. Act], Citizens for Better Forestry v. United 951.) States Department of Agriculture (9th Cir. The Ninth Circuit also reversed on the 2009) 567 F.3d 1128 [declining to find status issue of attorney eligibility in Weissburg v. in case concerning Equal Access to Justice Lancaster School District, supra, 591 F.3d Act], and Echostar Satellite Corporation v. 1255 [finding grandmother eligible] and
36 Winterrowd v. American General Annuity agreed with the district court’s interpretation Insurance Co. (9th Cir. 2009) 556 F.3d 815 of statutory requirements. Most recently, in [finding out-of-state attorney eligible]. Fabbrini v. City of Dunsmuir (9th Cir. 2011) 631 F.3d 1299, a city sued an individ- — Statutory and — ual for failure to sufficiently collateralize a Contractual Authorization municipal loan. (Id. at p. 1301.) The city vol- Review of the district court’s finding of untarily dismissed the lawsuit, and the indi- statutory or contractual authorization can vidual filed a defamation claim and a section also lead to de novo opinions and reversals. 1983 malicious prosecution claim against the In Hyde v. Midland Credit Management city. (Ibid; 42 U.S.C. § 1983.) The city moved (9th Cir. 2009) 567 F.3d 1137, a debtor to strike the defamation claim under brought an action against a debt collector for California’s anti-SLAPP statute and to dis- violations of the Fair Debt Collection Prac- miss the malicious prosecution claim. tices Act. (Id. at p. 1139; 15 U.S.C. § 1692k (Fabbrini v. City of Dunsmuir, supra, 631 (a)(3).) After a bench trial, the district court F.3d at p. 1301.) The district court granted returned a verdict in favor of the collector. the motion to strike, but denied the motion (Hyde v. Midland Credit Management, su- to dismiss. (Ibid.) pra, 567 F.3d at p. 1139.) The collector The court awarded attorney fees to the moved for attorney fees. (Ibid.) The district city on the basis of the successful anti- court granted the motion and found the SLAPP motion and later granted summary debtor and his attorneys were jointly and judgment in favor of the city on the malicious severally liable for the award. (Ibid.) The prosecution claim. (Fabbrini v. City of Ninth Circuit reversed as to the attorneys. Dunsmuir, supra, 631 F.3d at p. 1301.) The (Id. at pp. 1139, 1142.) The court noted that attorney fee award included fees not only for it reviews “de novo the legal question [of] the successful anti-SLAPP motion, but also whether attorney’s fees and costs may be the unsuccessful motion to strike the mali- awarded” under a statute. (Id. at p. 1139.) It cious prosecution claim “to the extent that held, on a matter of first impression, that the any of those hours were ‘inextricably inter- Fair Debt Collection Practices Act does not twined’ with the anti-SLAPP motion.” (Id. at authorize a district court to order that an p. 1302.) attorney (as opposed to a party) pay an The Ninth Circuit vacated and remanded attorney fee award. (Id. at pp. 1140-42; 15 the order as to the fees for the malicious pro- U.S.C. § 1692k(a)(3).) secution claim. (Fabbrini v. City of Duns- The Ninth Circuit also reversed on the muir, supra, 631 F.3d at p. 1302.) It stated issue of statutory or contractual authoriza- “any elements of legal analysis and statutory tion in Oregon Natural Desert Association interpretation which figure in the district v. Locke (9th Cir. 2009) 572 F.3d 610 [hold- court’s decision are reviewable de novo.” ing no retroactive authorization under (Ibid.) The Ninth Circuit held that the Civil Freedom of Information Act] and SCIE LLC Rights Attorney’s Fees Award Act requires v. XL Reinsurance America, Inc. (9th Cir. that a section 1983 malicious prosecution Sept. 27, 2010, Nos. 08-56502, 08-56537) claim be found “unreasonable, frivolous, mer- 2010 WL 3825495 [finding no authorization itless or vexatious” in order for a prevailing under contract]. defendant to recover attorney fees. (Ibid.) The court noted that the district court had — Statutory Requirements — failed to make the requisite finding. (Ibid.) The Ninth Circuit has also applied a de The Ninth Circuit also reversed or vacated novo standard of review, and reversed and on the issue of statutory requirements in vacated attorney fee awards because it dis- Harris v. Maricopa County Superior
37 Court (9th Cir. 2011) 631 F.3d 963 [finding case, “the pro-rata allocation of general fees requirements not met under Arizona between claims for which a fee award is ap- statute], Kimbrough v. California (9th Cir. propriate and claims for which such an 2010) 609 F.3d 1027 [finding requirements award is not appropriate, based solely on the not met under Prison Litigation Reform Act], number of claims, is impermissible.” (Id. at p. and 21X Capital LTD v. Werra (9th Cir. 971.) The court explained that a party that March 4 2011, No. 09-17336) 2011 WL moves for an award of attorney fees bears 759954 [finding requirements not met under the burden of proving entitlement to the California Civil Code section 1717, subdivi- amount requested. (Id. at pp. 971-72.) sion (a)]. The Ninth Circuit also reversed and vacat- ed on the method of amount determination — Method of — in Evon v. Law Offices of Sidney Mickell Amount Determination (9th Cir. 2012) 688 F.3d 1015 [holding dis- Lastly, the Ninth Circuit has applied a de trict court must consider several factors novo standard of review and vacated fee under Fair Debt Collection Practices Act] awards because it disagreed with the district and Hohlbein v. Utah Land Resources LLC court’s method of determining the amount of (9th Cir. April 22, 2011, No. 09-17598) 2011 the award. In Harris v. Maricopa County WL 15268727 [holding lack of prelitigation Superior Court, supra, 631 F.3d 963, a for- notice of intention to sue does not justify mer Arizona court employee sued her former reduction]. employer, the state court, for violations of, among other things, Title VII and the — Why These Cases — Fourteenth Amendment. (Id. at p. 968.) The are Significant district court granted the employer’s motions The Ninth Circuit is ready, willing and able for judgment on the pleadings and summary to reverse on legal issues regarding prevail- judgment, and awarded the employer attor- ing party status, attorney eligibility, statutory ney fees. (Id. at p. 969.) and contractual authority, statutory require- The majority of the employer’s request for ments, and method of amount determination attorney fees was not allocated to a specific if it disagrees with a district court’s decision claim in the case, but instead was designated on an attorney fee order. Although attorney “general fees.” (Harris v. Maricopa County fee awards and denials are usually affirmed Superior Court, supra, 631 F.3d at p. 971.) on appeal, affirmance is not guaranteed, To determine the amount of the attorney fee especially on these issues. award, the district court divided the general The court reviews these and other legal fees equally across the 10 claims in the em- issues under a de novo standard, conducting ployee’s complaint; then for each claim for a more searching and independent review. which an award was appropriate, it added Thus, the loser in a civil case should litigate one-tenth of the general fees to the total. and preserve these and other legal issues in (Ibid.) the district court and, if necessary, raise The Ninth Circuit vacated and remanded. them on appeal. Given the Ninth Circuit’s (Harris v. Maricopa County Superior willingness to reverse on these issues, if Court, supra, 631 F.3d at pp. 969, 980.) The there is doubt on the outcome of appeal, court held that a challenge to the method both sides may want to explore settlement. used to determine the amount of fees attrib- utable to claims for which an attorney fee Audra Ibarra is a civil and white-collar appel- award is appropriate is “legal in nature and late attorney. She has a solo practice and is therefore reviewed de novo.” (Id. at p. 970.) also counsel to California Appellate Law The court further held that in a civil rights Group. [email protected]
38 New Lawyers: The New Trial Lawyer
By Neil Berman
dire to the time the verdict comes in, there is nothing else in our profession that matches the intensity. However, times have changed. Newer lawyers coming into civil litigation will never be able to match the sheer volume of trial work undertaken by our predecessors. The rising cost of litigation, from expert costs to lack of funding for our court system, ren- ders resolving disputes in the courtroom a rare occurrence. The popularity of ADR con- tinues to blossom. It was once considered weak to agree to mediate a heavily disputed claim. Now it is universally considered cost- effective. What this continuing trend means for new lawyers is that we have to find other ways to stay sharp for the big game. Our colleagues Neil Berman that came decades before us would be in trial monthly (and some weekly). They got to make mistakes, learn and grow. They could am a trial lawyer. I have been practicing experiment. If they made a mistake and some for over six years, yet am still in single theme didn’t resonate with one jury, they digits with respect to taking cases to ver- would be picking another the following week. I The new breed of trial lawyers are not afford- dict. When I first started as a civil litigator, I would go to conferences and hear from the ed this luxury. legends of the trial bar. These panels of mas- Still, there are no excuses. Our clients ters would be comprised of distinguished deserve and demand effective trial lawyers. attorneys who have tried many hundreds of The challenge for the next generation of trial cases each. attorneys is how to become as comfortable in My head would spin every time I would the courtroom as those that came before us hear their resumes. On the left would be and how to keep our arrows poised when someone who tried 300 cases, on the right they are being let out of the quiver so infre- would be a gentleman who tried 250 cases, quently. and in the middle would be someone who The answer is to learn the requisite skills tried a paltry 200. To a young lawyer, hearing and keep them sharp by exercising trial skills these figures sounded like (and still does) in our voluminous non-trial work. Here are six learning about Wyatt Earp and the Wild West. (of many) ways to do so: I am no Melvin Belli, but I am a trial attor- 1. Take and defend a lot of depositions: ney. I love the theater and excitement of trial. From the moment the jury walks in for voir California Litigation Vol. 26 • No 1 • 2013
39 While depositions may be held in a conference valuable professional experience. room and not in the majesty of the courtroom, 5. Go watch others: Even though trials you can still hone your preparation and cross- aren’t occurring as frequently as they were in examination tactics. Ask your partner if you the “good old days,” they are still happening can prepare and defend your liability and/or every day around the state. If you live near a medical expert for their depo. You can then major metropolis, there is no shortage of vet- prepare that person with the same attention eran trial lawyers from whom you can learn. to detail you would if you were getting them Take a half-day and watch one of the legends ready for trial. The more comfortable you are pick a jury. Observe how a crafty attorney in diligently preparing and conducting exami- picks apart an opposing expert. Marvel at an nations in a deposition will serve you well emotional and succulent summation. Not when the venue moves from the boardroom only can you learn useful tips, but just as to the courtroom. importantly you can also glean what doesn’t 2. Arbitrate: For those in personal injury, resonate with jurors. take the appropriate UM or UIM case and 6. Sit second chair early and often: I was arbitrate it. These are perfect mini-trials for so fortunate that I had an extraordinary men- you to practice your craft. Except for picking tor (Cheryl P. Weiner) to learn from. She a jury, you get to do almost everything you threw me right in the deep end and I loved it would at trial. Prepare and deliver an open- and still thank her for it. I sat second chair in ing, cross-examine experts, conduct a direct a trial within a couple months of entering of your client, and make a succinct closing. civil litigation. She let me cross-examine a 3. Expedited jury trials: This concept is defense witness and conduct the direct of a gaining more popularity among both sides of key percipient witness. The confidence she the bar and is being welcomed by the superi- showed in me has helped me become more or courts. This model allows for a truncated comfortable in all phases of my practice. If jury trial. Fewer jurors and time constraints you are a partner handling a file, let your for questioning witnesses makes this model associate do something substantive during a more cost-effective, but still just as useful as trial. It will not only relieve some of the bur- a regular trial for practicing the skills neces- den for you at the time, but will make sure sary to litigate. Pick the right case and go for you have someone who is gaining confidence it. Taking a smaller case to expedited jury and will be ready to take on more responsi- trial will not only get your client their day in bility the next time you enter the court- court, but will allow you to prepare yourself house. If you are a young associate, make so you are better equipped for future regular your presence felt and do whatever you can trials. to get to counsel’s table. The more times you 4. Administrative hearings: These hear- sit there, the more at home you will be when ings are great venues to gain experience. your day as the lead dog comes around. Whether it is a Social Security disability or We practice in a new era. Gone are the unemployment hearing, you will have an days where trial attorneys live in the court- opportunity to get in the courtroom, prepare room. Yet our clients will expect and deserve your client, cross-examine experts/witnesses the future generation to be every bit as effec- and — most importantly — think on your tive as our predecessors. You owe it to your feet in a pressure situation. Plus, they can be future clients and to yourself to get and keep very rewarding. A client who receives Social yourself ready. Security disability benefits after a long ardu- ous review process and hearing is every bit as Neil Berman is a partner at Rucka, O’Boyle, grateful as one that receives a substantial ver- Lombardo & McKenna in Monterey County. He dict after a civil jury trial. You can make a practices personal injury, workers’ compensa- major difference in someone’s life and gain tion and Social Security Disability law.
40 ADR Update: California Arbitration in the Wake of Concepcion
By Paul J. Dubow
Paul J. Dubow
ast year, the United States Supreme 36 Cal.4th 148 that a class action waiver in a Court issued its seminal decision in contract was unconscionable and, hence, L AT&T Mobility LLC v. Concepcion unenforceable where the effect of the waiver (2011) 131 S. Ct. 1740, 179 L. Ed. 2d 742, was to “cheat” consumers out of small sums wherein it held that a class action waiver con- of money. tained in the arbitration clause in AT&T’s cus- The Court, recognizing that the Discover tomer agreement was not unconscionable. In Bank rule applied to all contracts and not doing so, the Court held that the Federal Ar- just arbitration contracts and, therefore, bitration Act (FAA) preempted the rule enunciated by the California Supreme Court in Discover Bank v. Superior Court (2005) California Litigation Vol. 26 • No 1 • 2013
41 would not have been preempted under the Gentry is concerned with the effect of a class then-existing test for preemption, added an action waiver on unwaiveable statutory rights additional preemption test, to wit, whether regardless of unconscionability. But in the state rule or statute disfavors arbitration. Sanders v. Swift Transportation Co. of The Court held that the Discover Bank rule Arizona LLC (N.D. Cal. 2012) 843 F. Supp. disfavored arbitration, because (1) the switch 2d 1033, 1037, a different federal court noted from bilateral to class arbitration sacrificed the principal advantage of arbitration, its informality; (2) class arbitration required pro- cedural formality as evidenced by the rules of the American Arbitration Association, which mimicked the Federal Rules of Civil Pro- cedure; and (3) class arbitration increased risk to defendants. ‘Code of Civil — Unwaiveable Statutory Rights — Procedure section 1281.2, One might think that Concepcion validat- ed class action waivers in all California arbi- tration contracts. But California has other subdivision (c), is rules and statutes that render unenforceable class action waivers or arbitration clauses in another statute that general and, hence, disfavor arbitration. There is a debate in the courts and elsewhere about whether Concepcion extends to these may be affected rules and statutes. Perhaps the most common rule that bars by Concepcion. the enforcement of a class action waiver in a ’ California arbitration contract is the one that denies enforcement of the waiver (or the con- tractual right to arbitrate in general) where the plaintiff is asserting what is deemed to be an unwaiveable statutory right. These rules are set forth in Gentry v. Superior Court that Gentry prohibited an arbitration claim (2007) 42 Cal.4th 443 [statutes protecting outright and that when a state law or rule employees], Broughton v. Cigna Health- does so, it is preempted by the FAA, as set plans of California (1999) 21 Cal.4th 1066 forth in Concepcion. [Consumer Legal Remedies Act], Cruz v. There has been a similar split in the courts Pacific Healthcare Systems, Inc. (2003) 30 with respect to the Private Attorney General Cal.4th 303 [Unfair Competition Law], and Act. (Cf., Brown v. Ralph’s Grocery Co. Franco v. Athens Disposal Company, Inc. (2011) 197 Cal.App.4th 489, 500 [statute not (2009) 171 Cal.App. 4th 1277 [Private preempted], Quevedo v. Macy’s Inc. (N.D. Attorney General Act]. Cal. 2011) 798 F. Supp. 2d 1122 [statute pre- In Plows v. Rockwell Collins, Inc. (C.D. empted].) The desire to keep statutory claims Cal. 2011) 812 F. Supp. 2d 1063, the court based on public policy in the courts and out held that while Concepcion overruled of the hands of arbitrators may be a laudable Discover Bank, it did not overrule Gentry, goal, but as expressed by the court in Nelsen because Discover Bank is a rule about v. Legacy Partners Residential, Inc. (2012) unconscionability, while the rule set forth in 207 Cal.App.4th 1115, 1136, while these rules
42 may be based on the sound public policy of of conflicting rulings on a common issue of the California Legislature, courts are not free law or fact.” The statute also permits a court to ignore Concepcion’s holding that state to delay granting the petition where there are public policy cannot trump the FAA. Thus, it other issues between the parties that are sub- is doubtful that the rules making unwaiveable ject to a pending court action or special pro- statutory claims non-arbitrable will survive ceeding and the court determines that reso- Concepcion. lution of these issues may make the arbitra- tion unnecessary. There is no comparable — Unconscionability — provision in the FAA. Thus, an otherwise Another doctrine that some think could be valid arbitration agreement subject to the affected by Concepcion is that of uncon- California Arbitration Act may not be scionability, most vividly expressed by the enforced because of the happenstance that a California Supreme Court in Armendariz v. third party involved in the dispute is not sub- Foundation Health Psychare Services ject to the arbitration agreement or the dis- (2000) 24 Cal.4th 83. Although application of pute includes a non-arbitrable claim as well this doctrine will abrogate or limit an arbitra- as an arbitrable claim. tion contract, it has been a bulwark against The California Supreme Court has already attempts by drafters of adhesion contracts to held that section 1281.2, subdivision (c), is restrict the ability of their customers or not preempted by the FAA. Cronus Invest- employees to bring certain claims, reduce the ments, Inc. v. Concierge Services (2005) 35 statute of limitations, cap damages, and Cal.4th 376. But that decision was rendered impose other limitations on dispute prior to Concepcion. The statute might be resolution. saved from preemption because courts are But unconscionability is a contractual not obliged to deny a petition to compel arbi- defense and applies to all contracts, not just tration in those situations where section arbitration contracts. Section 2 of the FAA 1281.2, subdivision (c), applies. They have states that a written provision to settle a dis- the discretion to stay the arbitration pending pute by arbitration is valid “save upon such the outcome of the judicial proceeding or grounds as exist in law or in equity for the stay the judicial proceeding pending the out- revocation of any contract.” The Concepcion come of the arbitration, a result that is also court noted that “this savings clause permits set forth in Section 3 of the FAA. agreements to arbitrate to be invalidated by But, given that this statute can result in ‘generally applicable contract defenses such the denial of enforcement of an otherwise as fraud, duress or unconscionability.’” (31 valid arbitration agreement, it is conceivable S.Ct. at p. 1746, emphasis added.) The doc- that it could be found to disfavor arbitration. trine of unconscionability should, therefore, Such a ruling would be unfortunate, because survive Concepcion. the spectre of conflicting rulings emanating from an arbitration and a court proceeding is — Third-Party Cases — certainly not desirable. Perhaps it is time to Code of Civil Procedure section 1281.2, amend the FAA to include a provision similar subdivision (c), is another statute that may to Section 1281.2(c). be affected by Concepcion. This statute per- mits a court to deny a petition to compel arbi- Paul J. Dubow is an arbitrator and mediator tration where “a party to an arbitration agree- practicing in San Francisco specializing in ment is also a party to a pending court action employment, securities, and commercial or special proceeding with a third party, aris- transactions. He has been a member of the edi- ing out of the same transaction or a series of torial board of California Litigation for the related transactions and there is a possibility past 20 years.
43 “I Learned About Litigating from That” The Corporate Crack
By William M. Shernoff
William M. Shernoff
tried the Egan v. Mutual of — A Life-and-Law — promised to pay $200 a month for life Omaha case in 1974. In 1979, Changing Accident if Mike became totally disabled by an I the California Supreme Court accident, but only for three months if rendered its landmark decision in Michael Egan, a muscular 55-year- the disability was a function of a sick- that case formally establishing insur- old roofer, fell off a ladder. He had ness. Following his mishap, Mutual of ance bad faith as an independent begun his day like thousands before, Omaha started paying the benefit on cause of action. This case could have constructing rooftops in Pomona, the basis of Mike’s accident. Then it turned out a lot differently, but for a California. But this morning, as he cut off the benefit abruptly several pivotal piece of evidence that was stepped down the ladder, a rung months later contending that his uncovered during trial. It all hap- broke. Mike plunged 12 feet to the back problems were due to arthritis pened in a split second of time and ground, injuring his back severely. — a sickness. by a slip of the tongue. Here’s the Mike had a Mutual of Omaha dis- story. ability insurance policy. The policy California Litigation Vol. 26 • No 1 • 2013
44 Mike’s case was simple. He hurt daughter. On the other side of the back in Omaha. The court ordered his back falling off a roof. After about courtroom sat attorneys for Mutual the company to produce it immedi- six months of conservative therapy, of Omaha, self-acclaimed as the ately, and it arrived by air courier the the injury required back surgery. The largest accident and health insur- next day. ance company in the world. When I first read the file jacket, I It soon became obvious that knew I had hit pay dirt. During the Mike’s disability was caused by the entire trial, Mutual of Omaha had accidental fall and not a sickness. asserted that its home office had not The defense attorneys’ only strategy seen this file during the crucial peri- was to turn against the local od when the company reclassified adjusters and throw them under the Mike’s claim from accident to sick- bus. Mutual of Omaha’s home office ness. Here was a file jacket bearing knew nothing of this “reclassifica- approximately 20 dated stamps from tion to sickness,” argued the attor- that crucial period. It showed that I showed the court neys. If the strategy worked, the the home office knew of and ‘ jury might sympathize with an hon- approved the reclassification to est company that simply had two sickness. my copy of the rotten eggs. The trial’s focus shifted. After using the file jacket in fur- The question became, who was ther questioning of Gustin, it was responsible for the dirty work — the beginning to appear that Mutual of file, which was local adjusters or the home office? Omaha was sinking into its own cor- Mutual of Omaha called Willard porate crack. The jury believed that Gustin, a home office manager to the company hadn’t treated Mike represented to me explain that the authority to termi- fairly in the first place. In addition, nate a claim such as Egan’s rested they now witnessed Mutual of with local adjusters and that they Omaha’s deceptive attempts to shove as full and complete did so without home office authori- all the blame onto its lower-echelon ty. The home office file on Egan, he adjusters. And that backfired. said, in fact had been misplaced for yet did not contain a period and had been lost some- — The Outcome… — where, “as can happen in large cor- And the Lesson porations.” The file, he said, must After hearing all the testimony, the file jacket. have fallen into a “corporate crack.” the jury was quite upset at Mutual of ’ Omaha and hit them with a multi- — It Pays to be — million-dollar punitive-damage a Good Listeneer award. This verdict led to the land- Gustin stuck to his story that the mark California Supreme Court deci- local level did the dirty work and the sion. If I hadn’t caught that slip of the home office didn’t know what was tongue about a file jacket, the case going on. But when Mutual of Oma- would have turned out much differ- ha’s own lawyer questioned him, he ently. It pays to be a good listener. inadvertently referred to a “file jack- operation was unsuccessful, and the et.” I was lucky enough to catch this William M. Shernoff is a senior part- doctors declared Mike totally dis- innocent slip of the tongue. I had a ner of Shernoff Bidart Echeverria abled. Classification of Mike’s injury copy of what was represented as the Bentley LLP, in Beverly Hills and as either a sickness or an accident entire claim file, but had never seen Claremont, a law firm specializing became the pivotal point in the case. or heard of a “file jacket.” in insurance bad faith litigation. He The trial reflected a classic con- I showed the court my copy of is a former president of California frontation. Mike, a stout Irish immi- the file, which was represented to Trial Lawyers Association (now grant with a grade-school education, me as full and complete yet did not Consumer Attorneys of California). worked most of his life as a roofer. He contain the file jacket. Finally, it (Reprinted with permission of had a disabled wife and a young came out that the file jacket was Consumer Attorneys of California.)
45 McDermott On Demand: Book Review The Partisan: The Life of William Rehnquist By John A. Jenkins (Public Affairs: NY)
Tom McDermott
n this biography of former was nihilistic at its core, disrespectful side he was on when it came to crim- Chief Justice William H. of precedent and dismissive of social, inals and law abiders, minorities and I Rehnquist, the author, John A. economic, and political institutions the white majority, the poor and the Jenkins, starts with an introduction that did not comport with his black- that includes the following: and-white view of the world. “Rehnquist’s judicial philosophy Rehnquist instinctively knew whose California Litigation Vol. 26 • No 1 • 2013
46 rich, the powerless and the powerful. to the book sympathetic to and the finest efforts of the great He set his plan accordingly. Rehnquist, you will either stop read- musical composers, we may well Infatuated with his own genius, he ing now, or go on — but wonder why have misgivings as to whether the spoke his mind, cast his votes, and you have failed so miserably in your logical treatise method which has damned his critics.” own judgment making the next sev- characterized almost all of philoso- In other words, this was a flawed eral hundred pages a bit of a drag. If phy since its inception can ever suffi- man with a flawed personality who you are already indisposed as to ciently grasp the human reality which Rehnquist, you will stop reading now is the nexus of the problems which it because your beliefs have been seeks to solve.” confirmed. Putting aside what apparently If we needed any further push passed for academic excellence at into giving it up, a few sentences Stanford at the time, what that later, he states: “Thus, despite his means is that King Lear may be more intellectual gifts, Rehnquist left no instructive than Kierkegaard. It has body of law or opinions that define no relation whatsoever to Jenkins’ his tenure as chief justice or even assertion that this establishes that seem likely to endure.” Rehnquist was early on a nihilist and The book is So the cases aren’t of any value that the above was the first iteration ‘ either. Nothing to learn here. of Rehnquist’s nihilistic judicial phi- To pound the nail in Rehnquist’s losophy. The Rehnquist quote has well-written in coffin, still in the introduction, we nothing to do with nihilism. learn that, in the Rehnquist court: The book is well-written in a “Gone are the majorities that rejuve- spritely journalistic fashion. Jenkins a spritely journalistic nated the Bill of Rights, enfranchised is not a lawyer. This will be obvious to black citizens, dismantled southern any trial lawyer reading the book. For segregation, protected people from example, Jenkins states that when fashion. Jenkins is police abuse, removed religion from Rehnquist went into practice in public schools, forced a president Phoenix, Arizona, with top-line law from office, and safeguarded a firms doing litigation as well as other not a lawyer. This woman’s right to abortion.” legal activities, he fell into an “Ozzie Of course, all of these might have and Harriet type of life.” No one who been better done by a responsible has ever been with a major law firm will be obvious to legislature or Executive Branch. in a major metropolitan area, doing Though Jenkins wants a political litigation, had an “Ozzie and Harriet court, he is dismayed that Rehnquist type of life.” Has Jenkins never heard gave us a political court. The prob- of clients, partners and judges? He any trial lawyer lem is, of course, that it was a politi- obviously never had to deal with cal court with the wrong politics for them. the author. If you want a diatribe that the reading the book. It’s fair to write a political biogra- Supreme Court roars off the track to ’ phy, especially when you make your the right (never to the left) too often, point of view known as clearly as you will find this book of interest. If Jenkins does. But the author needs you are of an opposite persuasion, to get his motivations straight. the book may be a blood-boiler. For Jenkins quotes from a thesis working lawyers, I’m afraid there’s Rehnquist wrote for his master’s de- not much to learn here. Judges have gree at Stanford: “When we compare prejudices? I’m shocked – shocked! the emotional dynamism of the vast appeared to lead a flawed court to written literature on the subjects of A longtime member of the Cali- flawed decisions. philosophy and politics with that of fornia Litigation Editorial Board, I don’t know why authors write the great tragedies, in the field of Mr. McDermott is a sole practition- such introductions. If you have come drama, with the master works of art er in Palm Desert.
47 Editorial Opinion Cooper in 2010. Nominations for the lar professional goals are also key (Continued from Inside Front Cover) 2013 Hall of Fame are already com- aspects of professional development ing in and we look forward to the and present Litigation Section • A Beginners Guide to Civil next reception in June. mixers in both Northern and Sou- Writ Practice in the Courts of Our community outreach efforts thern California. We encourage all Appeal. includes two programs: the Dress for members and readers to visit the • Insurance Law for Litigators. Success program, which assists State Bar Web site page for the • Summary Judgment: Recent underprivileged women in acquiring Litigation Section for a listing of all Developments and the View from employment, and the National of our planned events and latest the Bench. Lawsuits program founded by the announcements. • The Cocktail Party Conun- Litigation Section in association with drum: The Accidental Client. the Men’s Wearhouse, which is a Lisa Cappelluti is the San Fran- • What Every Litigator and national clothing drive for men’s pro- cisco Managing Partner of Lorber, Mediator Needs to Know About fessional attire. Greenfield & Polito, and the 2012- Expedited Jury Trials and EJT We understand that networking 2013 Chair of the Litigation Sec- Proposed Consent Orders. and meeting others who share simi- tion’s Executive Committee. Our planning for 2013 includes several new programs reaching out to our members in diverse areas of litigation practice. We are planning two separate panel discussions to be held in March and April on selecting outside and in-house counsel as well as uses of alternate dispute resolu- tion tools for in-house legal depart- ments. We are also creating new “webinars” to provide further inex- pensive educational opportunities for Litigation Section members. These can be found on the State Bar Web site. (To access the website go to http://litigation.calbar.ca.gov and click on “education.”) The Section also produces three publications: California Litigation publishes articles on current litiga- tion and legal practice; the Cali- fornia Litigation Review publishes summaries of cases and relevant legal developments; and California Litigation Update provides current legal information and is posted on the section’s State Bar Web site each month. We have a very active subcommit- tee devoted to providing review and comments to legislation and pro- posed jury instructions. The Section’s Annual Trial Lawyer Hall of Fame Award was presented last year to Mary Alexander who was celebrated with an awards reception in San Francisco. Past inductees include Mark P. Robinson in 2011 and Chris Arguedas and Penny
48 THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA Litigation Section Executive Committee Past Chairs
Alvin H. Goldstein, Jr. 1983 – 1985 Daniel M. Sklar 1985 – 1986 Robert Aitken 1986 – 1987 James C. Hagedorn 1987 – 1988 Hon. Lawrence W. Crispo 1988 – 1989 Mark A. Neubauer 1989 – 1990 Cedric C. Chao 1990 – 1991 Michael D. Whelan 1991 – 1992 Mark C. Mazzarella 1992 – 1993 Thomas J. McDermott, Jr. 1993 – 1994 Mark W. Hansen 1994 – 1995 Kimberly R. Clement 1995 – 1996 Teresa Tan 1996 – 1997 George L. Mallory, Jr. 1997 – 1998 Dana J. Dunwoody 1998 – 1999 Robert S. Gerber 1999 – 2000 Jerome Sapiro, Jr. 2000 – 2001 Curtis D. Parvin 2001 – 2002 Laura Lee Blake 2002 – 2003 Charles V. Berwanger 2003 – 2004 William J. Caldarelli 2004 – 2005 Richard L. Seabolt 2005 – 2006 Erik J. Olson 2006 – 2007 Mark A. Mellor 2007 – 2008 Gregory A. Nylen 2008 – 2009 Michael D. Fabiano 2009 – 2010 Elizabeth England 2010 – 2011 Michael A. Geibelson 2011 – 2012 ❊ Past Editors-in-Chief Mark Herrmann 1987 – 1989 Mark W. Hansen 1989 – 1991 Christopher Engh 1991 – 1994 Robert Aitken 1994 – 1996 Russell Leibson 1996 – 1999 Hon. Elizabeth Humphreys 1999 – 2002 Joan Wolff 2002 – 2006 Sharon J. Arkin 2007 – 2011 California Litigation Published by FIRST CLASS State Bar of California PRSRT Litigation Section U.S. Postage 180 Howard Street PAID San Francisco, CA 94105-1639 Los Angeles, CA Permit No. 32623 VOLUME 26 • NUMBER 1 2013
E Printed on Recycled Paper