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Appellate Law

The California Blog of Appeal

Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals; Procedural law relating to the prosecution of appeals, writ petitions, and post-trial motions in state and federal courts in California; and practical skills essential to appellate practice.
By Greg May

Post Frequency: 1.4/day

Last Entry: February 11, 2020 at 16:16:49

A Habeas Class Action

Posted on July 23, 2008
The Prison Law Office, appointed to represent a formerly pro per habeas petitioner who contended the parole board was late in hearing his case, decided to go for a brass ring by filing a class action habeas petition on behalf of all prisoners similarly situated...

It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

Posted on July 16, 2008
“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.” That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion...

A Disregard for Fiduciary Duties that is ?Without Precedent?

Posted on July 15, 2008
Picture this: You represent the defendant in a lawsuit. You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery...

It?s Now Official: It?s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen

Posted on July 11, 2008
There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights. As I wrote in my post, despite my gut- level reaction that the search was wrong, I found the majority [...

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Patrol Cars are Traffic, Too

Posted on July 07, 2008
Image via Wikipedia In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling...

Happy Independence Day

Posted on July 03, 2008

New Entry in ?Worst Brief Ever? Competition

Posted on July 03, 2008
I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being [...

Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds

Posted on July 02, 2008
People v. Picklesimer, case no. C056385 (3d Dist. July 2, 2008) reminds me of one of those time travel conundrums. You know, the ones that go something like (to pick a grisly example), “If you go back in time and kill your mother before she even gets pregnant with you, how can you ever exist [...

Mistakes in Big SCOTUS Cases? (UPDATED)

Posted on July 02, 2008
Image via Wikipedia I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will...

Everyone Got It Wrong on the Deadline to Appeal

Posted on July 01, 2008
It is a critical question, and one that can occasionally confound: what is the deadline to appeal? In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff [...

The Ninth Offers a Party a Hint on a ?Non-Issue?

Posted on July 01, 2008
It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel. But it’s usually across-the-board advice or a warning against future misconduct. I thought the advice offered in Duarte v...

California Attorney Fee Recovery Preempted by ADA - and a Note on Missed Issues

Posted on June 30, 2008
It’s quite common for plaintiffs to sue under similar state and federal provisions. The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no...

It?s not just Bill Clinton . . .

Posted on June 27, 2008
. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U...

Appeal That Fee Award

Posted on June 25, 2008
I don’t usually review unpublished decisions for material for this blog.. But unpublished decisions, even if they don’t create new law, can have some interesting points. (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in [...

You?re Probably Wrong about How Judges Think

Posted on June 24, 2008
Me, too, for that matter. That’s what Judge Posner’s blurb on the jacket of his book, How Judges Think, seems to say. It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges [...

Hyphenating Your Phrasal Adjectives?

Posted on June 23, 2008
Probably not enough, says Professor Schiess.

Offended by Having Your Work Edited?

Posted on June 18, 2008
If so, check out We Are the Products of Editing, by University of Missouri law professor Doug Abrams, in the Missouri Bar’s quarterly magazine, Precedent. Hat tip: Legal Writing Prof Blog.

Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable

Posted on June 18, 2008
As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky. 28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from ?final decisions, judgments, orders, and decrees entered? either by the district courts or the Bankruptcy Appellate Panel...

Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment

Posted on June 16, 2008
In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972. He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even [...

UC Davis Law Students Procure Ninth Circuit Reversal

Posted on June 12, 2008
Congratulations are in order for UC Davis law students Anjuli Fiedler and Rachel Golick who, under the supervision of UC Davis School of Law professor Carter C. White, represented and obtained a reversal for the appellant in Simpson v. Thomas, case no...

A Glitch In Kozinski?s Presiding over Obscenity Trial?

Posted on June 11, 2008
Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage...

Justice Gilbert Profiled

Posted on June 09, 2008
Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week. This comes not long after he was honored with The Beacon of Justice Award. Thanks to Curt Cutting of California Punitive Damages blog for the tip.

What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?

Posted on June 09, 2008
Image via Wikipedia In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote: After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant?s death will abate his appeal (see e...

Waiver of Appeal Rights in Plea Agreements

Posted on June 05, 2008
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v...

Survey Results ? Such as They Are!

Posted on June 02, 2008
Two weeks ago, in response to a post I’d seen elsewhere about judges reading blogs, I put up a survey in the right sidebar that asked readers to choose the description that best described them. During that time, I posted rather lightly, and the blog had a slow few weeks: barely 1300 page views...

I?m Still Here

Posted on May 28, 2008
You wouldn’t know it from my blogging output lately, but I’m still here and will continue blogging. I happen to be moving into a new office during a heavy work week, so actually looking at the newly published cases is a real luxury right now...

Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?

Posted on May 23, 2008
Professor Colin Miller at Evidence Prof Blog thinks so, and links to a draft of his essay advocating the exception. The abstract of his essay references Alton Logan, a man wrongfully imprisoned for 26 years while lawyers who knew the identity of the actual killer stood mute in order to protect client confidences: In 1982, [...

Rehearing Petition Filed in Marriage Cases

Posted on May 22, 2008
What a surprise! A petition for rehearing was filed today in In re Marriage Cases. The petition was filed by the Proposition 22 Legal Defense And Education Fund, but I can’t find the petition on the web anywhere.

The Influence of the California Supreme Court

Posted on May 22, 2008
There are apparently a couple articles out there ranking California’s courts, and its Supreme Court, tops in the nation . . . whatever that means. I say “apparently” because I have to take others’ words for it. I’m way too busy to read the articles themselves...

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