Now, more than ever, terms like “illegal alien,” “illegal immigrant,” and “undocumented worker” generate fear and controversy in our society. And in the courtroom setting, the passionate responses inspired by “immigration” carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. So significant is this danger that courts across the country (including in California) are increasingly excluding evidence of a litigant’s immigration status—even if arguably relevant to an issue in the case—because it is too prejudicial to be heard by a jury. In a recently published decision, Velasquez v. Centrome, Inc., the Second District Court of Appeal followed suit, recognizing “the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant.”
“This petition . . . ask[s] this Court to unmistakably clarify, to the whole patent community, that its Mayo/Biosig/Alice decisions (“3 decisions”) ended the claim construction anomaly hampering especially ET CIs – but meet, by their ‘ET proof’ refined claim construction, all ET CIs needs.”
So begins the petition for review filed by a respected law firm in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee. Where it ends is not yet clear, but in denying the petition the U.S. Supreme Court issued an order to show cause as to why the attorney drafting the petition should not be sanctioned for submitting the often incomprehensible brief. Apparently the client drafted much of the petition, and that may well explain how it reads–or should I say, looks?
The petition includes such illuminating prose as “[p]rolongating this claim construction anomaly in the NPS – i.e. its current schisms encouraging sloppiness in SPL precedents – badly hampers the innovativity of the US economy in all areas of ET, just as it stopped the petitioner’s investments to follow-up technologies of the ‘453 technology (see Section IV).”
Is this code? If it is, the U.S. Supreme Court justices and clerks couldn’t break it. In reading the Schindler petition I was frequently reminded of Circuit Judge Alex Kozinski’s The Wrong Stuff, which among other things, recited this passage from an appellate brief:
“LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.” To which Kozinski commented, “Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA.”
There must be a backstory explaining how such an awful petition gets filed, and it may well be the result of a client control train wreck. But in general, why do lawyers so often come up short as wordsmiths? Shortage of time? (“If I had more time I would have written a shorter letter?”) Lack of basic writing skills? (In a profession that depends on writing and requires 7 years of college and professional education?) Difficult clients? (Sometimes, but who writes the briefs?) Dreaded legalese? (Is there a cure yet?) Whatever the reasons, since legal writing is coin of the realm for attorneys, what is said about the clients and the cases when lawyers submit briefs that are difficult to decipher? Judge Kozinski had this suggestion:
If we live and die by our briefs (and we do), then perhaps as lawyers, we need to find a way to do better. And in some instances, much better. If a court can’t quickly tell what we want, where are we? Judge Kozinski had plenty of ideas about that too.
The California Supreme Court is undergoing a few changes. Justice Joyce L. Kennard has retired and has not yet been replaced. And Justice Marvin R. Baxter is leaving at the end of the year. Much has already been written about Governor Brown’s opportunity to continue remaking the Court in his (latter-day) image. Having appointed Justice Goodwin Liu, speculation is rampant about just how liberal Brown’s “new” court will become, and which demographic each new justice will represent. This post has nothing to say on that.
Instead, this post takes a moment to reflect on the loss to the public of these two devoted jurists and fine people. The necessary distance that judges must maintain from the public they serve and the lawyers appearing before them, often makes it difficult to gauge judge as person. And many advocates, driven as they must be by their client’s cause, may not care about such things. The Court will shape the law, and the individual justices will shape the Court’s decisions. Fair enough. But having been fortunate to spend a little time with Justice Kennard and Justice Baxter outside the realm of judge and lawyer, I have gained some small insights into their personalities. And so I write to say a few words about what will be lost to the legal community, rather than to speculate about what the new Court will look like.
Justice Kennard’s fierce independence and keen interest in oral argument are well known. If one knows her only by the command presence she so easily manifests, it might be possible to conclude there is little warmth–but that conclusion would be dead wrong. I have been fortunate to spend some time with Justice Kennard outside the realm of advocate and Court. Over the last few years, Justice Kennard generously shared her time with some of my U.C. Hastings appellate clinical program students. In chambers, Justice Kennard made us all feel like long-time friends: insisting that we have cookies and refreshments; regaling us with her passion for the majesty of the law and the fidelity the law demands; reminding us–as tender aunt, not scolding justice–of the serious responsibility we have as advocates to strive for perfection in all things; and endearing us with her willingness to share thoughts about, among other things, her love for gardening. Each of our meetings ended long after the appointed time, and only out of our worry that we might wear out our welcome, not because Justice Kennard tired of our visits.
I met Justice Baxter at a reception at U.C. Hastings. Up until that moment, the prism through which I viewed Justice Baxter was that of all advocates–my reading of his decisions and occasional presence at Court arguments. But at the reception, and at a chance meeting in a nearby eatery a few years later, I was impressed by how soft-spoken and gentle Justice Baxter is. Free of (most) of the constraints that we don upon entering the Court, we shared long conversations about public school roots, public universities, pro bono programs, the Central Valley, and sports cars. And each time I walked away, I felt as if I had met with a friend I had known for many years.
Because we are always fighting a client’s battles, we see jurists as those who can make or break our case and have little reason to think of them in any other light. Because we are ethically bound to remain distant, we have little opportunity to meet with those deciding the cases. Others will write about the rich contributions Justices Kennard and Baxter have made to life and law in California. Others are already writing about the new Court that is in the making. I have written here to say farewell not just to two fine jurists, but also two nice people.
A recurring theme in my recent Daily Journal publications has been the rough doctrinal fit between operation of Civil Code section 1717 and Code of Civil Procedure section 1021 and section 1032. Section 1717 has been interpreted to apply to actions “on a contract” where such contracts contain an attorney fee provision. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 523. And there is no problem when the only claims being litigated are contract claims. In such cases, it seems workable to ignore sections 1021 and 1032, and simply follow section 1717 with its reciprocity provision, definition of prevailing party (“the party who recovered a greater relief in the action on the contract”) and voluntary dismissal/settlement escape hatch. See, e.g., Hsu v. Abarra (1995) 9 Cal.4th 863. Section 1717’s odd placement in the substantive landscape of the Civil Code aside, it seems to work procedurally when only contract claims are litigated.
But while “ignoring” Code of Civil Procedure sections 1021 and 1032 may seem logical when only contract claims are being litigated, those sections cannot be ignored when tort claims are being litigated and the contractual attorney fee provision is broadly worded to include recovery for torts. In those situations, the appellate decisions largely ignore section 1717 and instead, follow section 1032 to determine the prevailing party for attorney fee purposes. See, e.g., Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984. The rationale is that: 1) section 1021 was not superseded by section 1717; 2) section 1021 states that recovery of attorney fees is “left to the agreement, express or implied, of the parties”; 3) tort claims are not actions on a contract; and therefore, section 1032’s prevailing party definitions control and section 1717’s features–such as reciprocity–have no application. And most of the time, it seems to work.
So if you just want to know the general lay of the land in contractual attorney fee cases and have limited time on your hands, Maynard provides a thorough explanation of the law usually applied when fee provisions embrace tort claims. And an older case, Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, demonstrates strict application of section 1717 based on an attorney fee provision limited to contract claim recovery. You could start with those cases.
But while the intermediate appellate courts have, for the most part, found a way to reconcile section 1717’s existence with that of sections 1021 and 1032–by going one way or the other–there are still decisions that seem to mix apples and oranges by allowing 1717 to apply in cases with broadly worded fee provisions and tort litigation. It’s these ‘tweeners’ that drive home the eternal tension between sections 1021 and 1717. For example, consistent with cases like Maynard, the Court of Appeal in Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, held that the presence of a broadly worded and unilateral fee provision meant that the successful defendant could not recover attorney fees for successfully defending tort claims (because 1717 does not control and therefore, its reciprocity provision had no application). But then the court also held that the defendant could recover fees for defeating the contract claims–because 1717’s reciprocity requirement applied to those claims. Such a result implies that Maynard and a myriad of other cases have overstated the either/or approach to sections 1717 and 1021. Only time and a California Supreme Court decision will ultimately resolve such statutory tension.
If you’re still with me, I recently discovered Justice Anthony Kline’s dissent in Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1160. If you have the luxury of time on your hands, and curiosity about the tension between sections 1717 and 1021/1032, you may find Justice Kline’s dissent enlightening, it is certainly provacative. Of course, Justice Kline’s interpretation of the much more limited legislative purpose behind section 1717 (only applicable in contracts of adhesion with unilateral attorney fee provisos) has not garnered support in the reported decisions, and an awful lot of water has flowed under the appellate bridge since then. But doctrinally speaking, Justice Kline was on to something.
This blog entry provides an analytical metric for double-checking assumptions about application of Civil Code section 1717 and contractual attorney fee awards. As the case law demonstrates, it is easy to misapprehend how and when the statute actually operates.
Section 1717(a) states that “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to other costs.” Section 1717(b)(1) states that “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” And section 1717(b)(2) states that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”
It sounds straight forward and if section 1717 applied to every single suit involving a contractual attorney fee provision, it would be. But of course, it’s not that simple. A two-step analysis of attorney fee provisions in contracts may be helpful in determining the applicability and reach of section 1717.
With Christmas just around the corner, the holiday season is well underway. For many, this means that the next few weeks will be filled with buying and wrapping gifts, baking and decorating cookies, listening to festive holiday tunes, and of course, hosting and attending parties. It’s fitting, then, that earlier this month the California Supreme Court heard oral arguments in Ennabe v. Manosa, a case that presents some unanswered questions about social host liability.
Code of Civil Procedure section 473, subdivision (b) requires a court, under certain circumstances, to grant relief from default or dismissal that results from counsel’s mistake, inadvertence, surprise, or neglect. In a recently-published opinion, Las Vegas Land & Development Co. v. Wilkie Way (2013) 219 Cal.App.4th 1086, 1090, Division Three of the Second Appellate District reminded us that California appellate courts are currently split on whether this mandatory provision applies to summary judgment. There, the court joined the majority and held that it does not. (Id. at p. 1091.)
The verdict is in. AEG Live is not liable in the Michael Jackson wrongful death suit. An appeal is a foregone conclusion. But will an appeal be a "Thriller?"
The standards of review tend to reduce the possibility of drama, and also deflate the charged emotions attendant during trial. For example, the pivotal factual dispute–was AEG Live negligent in its retention or supervision of Dr. Murray–will be subject to the substantial evidence standard of review. Despite its name, the substantial evidence standard is not about quantity. Rather, the substantial evidence standard asks if there is any credible evidence sufficient to support the verdict. If there is, the jury’s resolution of the factual issue stands.
Misdirection is a form of deception employed by magicians to focus the attention of an audience on one thing in order to distract its attention from another. For example, a magician announces that he is going to make a donkey appear behind a curtain in the middle of the stage. While his beautiful assistant distracts the audience by making a sudden, scantily-clad appearance, the magician does something very ordinary—leads a donkey onto the stage. A moment later, the magician drops the curtain to the ground, revealing a real live donkey. The audience is amazed. Because its attention was focused on the beautiful assistant, the audience did not notice what would otherwise be an obvious act. Thus, thanks to misdirection, the magician was able to lead his audience to draw the false conclusion that the donkey had “magically appeared.”
In a recently-published decision, Rayii v. Gatica (2013) 218 Cal.App.4th 1402, one party attempted to use this same technique to lead the Court of Appeal to draw the false conclusion that the jury’s finding was not supported by sufficient evidence. The Court of Appeal, however, was not amazed. Rayii reminds us that, unlike a magician’s audience, the Court of Appeal is not easily distracted. The decision is also a reminder that on appeal, the standard of review matters.
Under the California Rules of Court, rule 8.1125(c), the Supreme Court has the discretionary power to depublish an opinion at any time. Recently, the California Court of Appeal held that, when this happens, depublication can constitute “a change in the law” sufficient to warrant reconsideration under Code of Civil Procedure section 1008. Farmers Insurance Exchange v. Superior Court (Wilson) (2013) 218 Cal.App.4th 96, 105 (Farmers). And in the unusual circumstances presented by Farmers, it necessarily did.