Appellate attorney kicks the V.A.’s butt in 9th Circuit Court of Appeals

May 11th, 2011 , 4:05 pm

Today I picked up the L.A. Times and read the following headline, “Judges slam VA’s mental health care.”  Underneath that headline was the following, “Court orders overhaul of handling of PTSD, other ailments, citing a rate of 18 suicides a day for  returning vets.”  That was enough to pull me in.  The article reported that the 9th Circuit Court of Appeals ruled in a case against the Department of Veterans Affairs, finding the V.A. failed to care for those suffering from post-traumatic stress disorder.  In fact, their treatment delays were so “egregious” that they violated the veterans’ constitutional rights “and contribute[d] to the despair behind many of the 6,500 suicides among veterans each year.”  The reporter did the math and noted that amounted to an average of 18 vets per day.  Wow!  That’s an astounding number.  Seeing that number brings home the reality of war.

The 9th Circuit took nearly two years to issue a decision, in part because the court was attempting to push the parties to resolve the dispute through mediation.  No deal.  The decision was not unanimous; however, with Judge Kozinski dissenting.  He opined that even though the V.A.’s behavior might “shock and outrage” the court, it could not step in to tell the V.A. what to do.  That didn’t stop Judge Stephen Reinhardt, who wrote the opinion, nor did it stop Sr. Judge Procter Hug Jr. from stepping in to join in that opinion.  Judge Reinhardt wrote:

There comes a time when the political branches have so completely and chronically failed to respect the People’s constitutional rights that the courts must be willing to enforce them.  We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war.”

The case was filed by Veterans for Common Sense and Veterans United for Truth.  The lower court denied the groups’ claims on procedural grounds after a seven-day trial in 2008.  It concluded that it lacked the authority to tell the V.A. what to do.  The groups were represented by Gordon Erspamer, a San Francisco attorney who represented them pro bono.  Now some law firms allow associates or partners to work on pro bono cases, but you still have to have a lot of respect for someone who is willing to take on the government.  The V.A., through the Justice Department, had no comment and said it would be reviewing the ruling.

The reporter, Carol J. Williams, included the following statistics:  25 million vets in the U.S., including 1.6 million who served in Iraq and Afghanistan over the last ten years.  A Rand Institute study in 2008 reported that approximately 300,000 vets currently suffer from PTSD and major depression.  And why not?  Risking their lives on a daily basis?  Extended stays?  Seeing death and destruction everywhere?  Fear that has little chance to subside?

But rather than taking care of these vets within 30 days of requesting help, the V.A. ignored their applications for months and even years, or worse yet, denied them.  Tens of thousands were simply placed on a waiting list due to chronic shortages.  The ruling also referred to a 2007 report by the Office of the Inspector General that noted there were no suicide prevention officers at the V.A.’s 800-community-based outpatient clients, which is where most of the vets would receive their medical care.

It seems so odd to me that we have spent days celebrating the skills of our Navy Seals, who were successful in killing Osama bin Laden.  But our returning vets are heroes too.  They are the unsung heroes that faced death on a daily basis.  They certainly deserve better.  And it makes me proud that Mr. Erspamer persisted in his efforts to give them some assistance and to provide some light to the rest of us.  This is just shameful and the V.A. should have more than “no comment.”  These are the cases that renew my admiration of trial lawyers and the appellate lawyers who continue their fight!

Justices report on common problems in appeals

May 5th, 2011 , 2:46 pm

I recently attended a conference, On Federal and State Appeals, sponsored by the State Bar’s Litigation Section and the Committee on Appellate Courts.   The panels were asked about common problems in appeals. Since these problems also involve trial work at the superior court level, I thought I would pass them on:

• Make sure the separate statement includes all relevant facts and complete citations to the evidence.  Sometimes attorneys will refer to “facts” in their separate statement, including citations to the evidence, but the memorandum of points and authorities and supporting declarations will include facts – some of them quite favorable – that are nowhere to be found in the separate statement.  As Judge Norma Manella explained, “Justices are not pigs hunting for truffles in your briefs.”
• In summary judgments, the attorneys submit expert declarations that are conclusory, lack authentication, and fail to include the evidence to which the declarant is referring.
• Be specific with your offer of proof.  It should not rely on conclusory statements or ultimate facts; provide the court with evidentiary facts concerning the proposed testimony or evidence.
• If you have made an objection to evidence at trial but it comes in anyway, such as when you object and a long discussion follows, don’t forget to make a motion to strike.
• If you have a blow-up diagram or even a Power Point presentation, be sure to prepare an 8×11 hard copy of them so that they can be included in transcripts and easily submitted to the appellate courts.

The justices also noted that they are seeing more cases of juror misconduct, which is understandable given all of the resources now available to jurors to conduct even basic research.  One justice noted that in the past a juror might visit the scene of an accident; however, in order to conduct research, the juror would have to make an effort to go to the library.  Now, it’s just too easy and tempting with all of the resources at hand.  Jurors can research facts and the law, and even seek outside opinions.  Jurors should be reminded by the court that they are not to do such research, especially if they hear testimony that mentions a web site or blog.  In a similar vein, attorneys should remind their clients not to post blogs, pictures, etc. while a case is pending.  I have heard a few bad stories.  In fact, it seems that opposing counsel is conducting more research on our clients than we are!  Do you google your new clients?  Not a bad place to start to learn about your clients.  I have to admit that I have turned down a few clients on the basis of what that preliminary research has revealed.

Appellate issues regarding punitive damage awards

April 27th, 2011 , 7:37 pm

I like to give credit where it is due.  As I have mentioned in the past, I enjoy reading the blog posts at www.calpunitives.com.  The authors at Horvitz & Levy help educate me on the subject to punitive damages – for which I am grateful, especially since I have been known to handle appeals for plaintiff’s attorneys.

Here are two recent blog posts of interest:

1.  On April 19, 2011, the blog reported on an unpublished opinion filed in Miller v. Faiz, Case No. G042917 by the Court of Appeal of the Fourth Appellate District, Division Three in Santa Ana.  The issue was whether an appellate court can consider a defendant’s argument that an award of punitive damages is excessive even if the defendant did not raise the issue in a new trial motion.  As a fundamental rule of appellate practice, we are taught that if you want to raise an issue of excessive or inadequate damages, you must first bring it to the lower court’s attention in a motion for new trial so that the trial court can evaluate the arguments and perhaps reduce or increase damages.  In Miller, the plaintiff argued the defendant waived the issue by failing to bring it up below, but the Court of Appeal held that a constitutional challenge to the amount of a punitive damage award is a purely legal issue that can be considered for the first time on appeal.   The court reviewed the issue de novo and determined the punitive damages – at a ratio of 8.3 to 1 – were excessive, but an award in a ratio of 4.2 to 1 would be sufficient.  Justice Aronson dissented.  A dissent in the 4/3?  Highly unusual, but it does happen . . . occasionally.  He dissented because he believed the original amount was sufficient.  I might add that while the ratio did not exceed a double digit, at least it was not the 1:1 ratio that we are often seeing.

2.  The blog also reports on a petition for review filed with the California Supreme Court in Behr v. Redmond (2011) 193 Cal.App.4th 517, which asks the Court to resolve an issue that is of importance to many of us:  (1)  If a court of appeal substantially reduces a compensatory damages award, is the appellate court required to remand it back to the trial court for a new trial on the punitive damages award, or can it affirm the punitive damages award?  The petition argues there is a conflict among the courts of appeal, noting there are five different approaches by the various courts.   The petition also raises an issue as to whether the California Constitution creates a constitutional right to a trial by jury on punitive damages, and whether the 1.75 to 1 ratio violates the Fourteenth Amendment’s due process clause.  You can find a copy of the Petition at http://www.horvitzlevy.com/extranet/XNet/case_27/filing862.pdf.

By the way, I also received an announcement that Justice David Sills will be retiring as Chief Justice of the Court of Appeal, Fourth Appellate District, Division Three.  He will be missed very much and I wish him and his family the best.  It has always been a pleasure to appear before him, which I have done for as long as he has been Chief Justice!  (Maybe I should also consider retiring?)

Continuances in Motions for Summary Judgment

I don't want to sound like a broken record - as I have recently covered requesting continuances in motions for summary judgment - but I picked up a few useful nuggets in Christoffersen v. Soka University, Case No. G042935.  This is an unpublished case so it can't be cited, but I've written on several occasions that unpublished opinions are helpful for a variety of reasons.

In Christoffersen, the plaintiff, a university professor, sued Soka for religious and age discrimination after she was denied tenure.  She claimed the real reasons for the denial of her application were because she refused to join a Buddhist organization and she was then 62 years of age.

Soka filed a motion for summary judgment, which included several declarations.  Plaintiff never served any written discovery requests during the lawsuit (oops!).  Probably after receiving the motion, plaintiff attempted to conduct discovery, but it did not proceed smoothly.  Plaintiff filed an ex parte application to compel production of documents and to continue the summary judgment hearing.  Her then attorney filed a "declaration," and while it included an affirmation that the statements were made with personal knowledge, it was not executed under penalty of perjury.  The ex parte application was denied.  Since the plaintiff elected to proceed with her appeal without a reporter's transcript, the appellate court could not determine what was said by the trial court.  Very hard to show abuse of discretion under such circumstances.

Plaintiff made a second request for continuance in her opposition, but while her attorney signed a proper declaration, she made no mention of the need for additional evidence and a continuance.  The court granted the motion.  What is important to note:

• The court set forth what a declarant must show in requesting a continuance - which I won't repeat here - but it noted that the request must be supported by a "declaration" or an "affidavit" under oath.  The declaration initially submitted by plaintiff failed to have the necessary language  that it was executed under penalty of perjury and the reviewing court found she "failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h)."


• A request for a continuance without a declaration or affidavit also fails to comply.  "Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h)."


• The requesting party must show how the discovery would provide "facts essential to justify opposition," rather than just conducting "exploratory" discovery.


• Plaintiff failed to show diligence.


• While the paperwork failed to adequately support the request for a continuance, the court concluded the trial court acted within its discretion.  "Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion."

The abuses of anti-SLAPP motions and sloppy briefs

In Grewal v. Jammu, the First Appellate District, Division Two, filed an Opinion on January 11, 2011, that makes our worst errors public.

Plaintiff Grewal filed a defamation action.  Defendants filed an anti-SLAPP motion three years after plaintiff's original complaint.  It was scheduled to be heard five days before the trial date.  The moving papers were over 206 pages long, and that page count did not even include a request for judicial notice of thousands of pages from three court files, including a 54-page court opinion.  Defendants claimed the complaint involved an "issue of public interest," while plaintiff argued otherwise.  The trial court concluded the first three causes of action did not involve an issue of public interest and that plaintiff had demonstrated a probability of prevailing on the fourth.  The defendants appealed.

The court affirmed the judgment below, finding that defendants essentially conceded plaintiff had met his burden under the anti-SLAPP statute.  It noted, "And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost - and prejudicial delay.  It is time for plaintiff's case to be heard on the merits.  Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal." (Emphasis added.)

What is important - at least to me - is the court's irritation with the legal documents filed below and on appeal.  For instance, it noted that the memorandum of points and authorities submitted in support of the anti-SLAPP motion did not have "argument headings," so the court had trouble determining defendants' arguments.  The defendants failed to identify the exact subsection that they claimed applied.  The court made some assumptions, which were confirmed at oral argument.  (Another good reasons never to waive oral argument.  The court may need your help in clearing up any confusion that you may have created.)

As to the defendants' brief, the court had this to say:

"The opening brief . . . is 72 pages long.  Following an abbreviated 'Statement of the Case,' the brief spends almost 21 pages on a 'summary of facts,' reciting the claimed facts from the Jammu defendants' perspective only, their 'summary of [plaintiff's] evidence and declarations' consisting of a grand total of 20 lines. Such advocacy is not to be condoned . . . Beyond that, the brief is not well organized, and lacks any meaningful or logical argument headings, jumping from arguments referring to 'issues of public interest' (Arguments IV and V) to 'free exercise of religion' (Argument VI) to 'limited public figure' (Argument VII) to 'public figure status."  (Arguments VIII, IX, and X.)  The brief is, in a word, unhelpful."

The court found the same problems existed with the 66-page reply brief, and in summation, that both briefs fail to "come to grips with the issue here."   The court opined that the anti-SLAPP motion should never have been brought, resulting in an appeal that is utterly lacking in merit.  The court concluded, "Something is wrong with this picture."  In the beginning, anti-SLAPP motions were brought - as intended - against big developers or companies that sought to silence and retaliate against the complaints of individual plaintiffs.  As the courts construed the anti-SLAPP provisions broadly, more and more lawsuits were caught up in this procedure,  including commercial speech cases.  While intended as an early screening device for bad lawsuits, these motions were frequently used to stop actions, including discovery, in their tracks, detour to an immediate appeal, and if successful, the winning party could recover attorneys fees.  The court noted the "explosion" of such motions and was especially critical of the right to an immediate appeal.  The court balanced the loss of the right of an appeal against the plight of the plaintiff, who must expend thousands of dollars on appeal, while the case is stopped in its tracks for around two years.  In conclusion, the court spent a considerable amount of time exploring the abuses of anti-SLAPP motions, including statistics, in the hope the Legislature would do something to fix the situation.

On a more personal note, the days of transparency in practicing law may well be over when the appellate court criticizes your briefs in a very public forum.  In fact, that public scolding may well be preserved for eternity.  And with clients spending more and more time researching their attorneys, is that something you would want your clients to see?