Contact
  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com

 

 

Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017

Donna@DonnaBader.com

 

 

 

Meta
http://appellatelaw-nj.com/
Friday
Oct282011

The correct use of a motion in limine

In Johnson v. Chiu (2011) 199 Cal.App.4th 775, the Fourth Appellate District, Division Three examined what it considered to be "a textbook example of the inappropriate use of in limine motions."  In that case, the plaintiff sued Dr. Chiu for medical malpractice and negligent maintenance of a laser machine that malfunctioned during a skin treatment.  The trial court granted summary adjudication on the medical malpractice cause of action, but denied summary judgment on the negligent maintenance claim.  After the case was sent to a second judge for trial, the defendant brought a motion to dismiss the negligent maintenance claim, labeling it as a motion in limine.  The motion was denied and defendant filed a writ, which was also denied.  Not one to give up, the defendant brought his motion in limine before a third judge, who was assigned to try the case, and the motion was granted.  What perserverence!  Then the plaintiff appealed.

The court examined the use of a motion in limine, noting it is a motion to exclude evidence before the evidence is offered a trial, on grounds that would also be sufficient to object or move to strike the evidence.  The motion is brought in advance of trial to avoid trying to undo damage (or "unring the bell") of evidence heard by the jury.  It is not designed to replace dispositive motions.  The court noted: 

"'[M]otions in limine deal with evidence.  May this particular documentbe admitted?  May an expert witness testify to certain facts or conclusions?  An in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication.'"

(Id. at p. 780.)  The motion in limine was dispositive of plaintiff's action and it sought a determination that either the pleading was insufficient or there was no triable issue of fact.  Demurrers, motions for judgment on the pleadings, and summary judgment motions should be used to deal with such challenges.  Here, hwever, the plaintiff failed to challenge the motion in limine as a disguised (and insufficient) motion for summary judgment and a motion to reconsider.  She conceded this omission and withdrew her procedural challenge.

Nonethless, the appellate court found that the motion failed on a substantive level and that the trial court erred in granting defendant's motion.  The judgment was reversed and plaintiff will now be able to continue on with her negligent maintenance cause of action.

 

Monday
Oct172011

Hey, where did my medical marijuana clients (and due process) go?

My mother always told me that having a genuine and youthful excitement about life would keep me young.  I have tried to live with this principle in mind.  For instance, you could have found me at the very first performance of Lord of the Rings, praying (okay, let's downgrade that to hoping) that I would not be hit by a car on my way to see the final episode of The Return of the King.  You would also find me at every new Disney animation film, laughing louder than the kids.  It's a principle that has given me hope for the future and allows me to avoid becoming jaded in my old age.

The federal government is testing my philosophy.  Of course, I won't try to take this personally but I am facing a tough reality that tests my childish hopes.  As most of you know, I represent several medical marijuana collectives in Lake Forest.  Despite California law that confirms the right of medical marijuana patients to obtain marijuana for their illnesses, the City of Lake Forest insists that collectives and dispensaries can be absolutely banned in the city.

Okay, so we both have our legal positions.  That's what the courts are for.  Unfortunately, the City of Lake Forest has spent an awful lot of money defending its position.  My clients are not nearly as wealthy, or maybe I am just a cheap date, but I have yet to reap the benefits of even a fraction of what the City has paid to its attorneys.  My tools for this battle have been my mind and my research and writing abilities.  They have always served me well.  In fact, one of the things I like about being an appellate lawyer is that you don't have to get your hands dirty, as you might in trial, and its not nearly as confrontational.  When the facts of a case are boiled down to the essentials, an appeal is really about judicial error.  Being an analytical type, I am comfortable in this playground.

By the feds have changed that game plan.  Being a good lawyer is just not enough.  Having the strength of California law on your side is meaningless.  As I prepare for oral argument on the issue of whether the city can ban collectives, I have just discovered - yes, within the last hour - that my clients are gone.  First, the feds seized the bank accounts of the property manager and told the landlord that he or she better evict these evil collectives.  If the property manager failed to do so, then the feds just might seize the real property as well.  Three-day notices to quit were promptly served.  Today I am told by an unnamed (and frightened) source that my clients were told if they did not vacate within three-days, the feds would raid the collectives and shut them down.

To use a term employed in tennis -- Advantage City.  No due process, no right to adjudicate issues in an unlawful detainer and the appellate court, no discussion, just goodbye and don't slam the door behind you.   What happened to my clients?  Perhaps once they are closed down, they might not have the ability to continue the fight. Times are tough, but maybe they will get tougher for me now that my clients have been sent packing.

This is not the America that I have believed in, a land that pays respect to the rights of others and the rule of law.  Worse yet, I have to wonder what will happen to the patients.  I include in my concern the "seemingly healthy young males" that might be suffering from cancer and other diseases but don't advertise their diseases so judgmental people can determine, without medical expertise, if these people are truly suffering.  I also find myself thinking about the man who showed up recently at one of the collectives, struggling to get up the stairs with his crutches and legs that refused to obey him.  And what about the guy who has been struggling to overcome AIDS since 2000?  Don't these people have any rights?  It is a sad day to have to tell these people that their medicine is beyond their reach.

As Michael Moore has often said, we are living in a country ruled by fear.  I refuse to give in to fear.  I have the law and the Constitution on my side!  Oh, wait, there is someone knocking on my door.  The pounding is getting heavier.  I'll be back . . .

 

 

Wednesday
Oct052011

A new appellate decision from the Second Appellate District in Pack v. Superior Court (City of Long Beach)

The Court of Appeal in the Second Appellate District, Division Three in Long Beach filed its opinion in Pack v. Superior Court (City of Long Beach), Case No. B228781, in which the plaintiffs filed a declaratory relief action, arguing the city's ordinance is invalid because it is preempted by federal law.  The city set up a system which required a $14,742 non-refundable application fee, and if the collective was approved, it could participate in a lottery for a limited number of permits.  If you were lucky enough to obtain a permit, your collective would pay a minimum of $10,000 annually for a license and be subject to heavy regulations, including having your marijuana analyzed for quality control by an independent lab.

The appellate court held that the ordinance, which permits and regulates medical marijuana collectives, is preempted by federal law, or more specifically, the federal Controlled Substances Act (CSA).  Enacted in 1970, the CSA puts marijuana on Schedule 1, and as such, this scheduling reflects a government determination that marijuana has no accepted medical use.  It is also illegal under federal law to maintain any place for the purpose of manufacturing, distributing, or using any controlled substances.  (21 U.S.C. sec. 856(a)(1).)

California disagrees with this position, and in 1996, a majority of citizens approved the medical use of marijuana by approving Proposition 215, which is known as the Compassionate Use Act (CUA).  In 2003, the Legislature then enacted portions of the Health & Safety Code, now known as the Medical Marijuana Plan Act (MMPA), which seeks to impose some order on this scheme.  (Health & Safety Code sections 11362.5, et seq.)  The MMPA decriminalizes under state law the acts of collective cultivation and maintaining a place for sale or use of medical marijuana.

The Long Beach ordinance defines a "collective" as an association of four or more qualified patients and their primary caregivers who associate at a location within Long Beach.  Plaintiff's complaint did not allege that the ordinance applied to personal cultivation outside of a collective and the City's attorney conceded that the ordinance did not apply to prohibit personal cultivation and possession.  As such, the appellate court did not address this argument.

The plaintiffs argued the City's ordinance went beyond mere decriminalization and "permitted" conduct prohibited by the federal CSA, and for that reason, it was preempted.  And since all drug use, according to federal law, is recreational and illegal, then any ordinance establishing a permit scheme for medical marijuana collectives is an obstacle to federal law and thus preempted.  The appellate court remanded the case back to the trial court to determine if any provisions of the ordinance could be severed from the preempted portions and given independent effect. 

Monday
Oct032011

But he (or she) is lying!

I have to admit that I am getting caught up in Google+.  It is much more interactive than this blog or even Facebook, and I have taken to following people with many different interests.  Some say that blogs will be a thing of the past and most "blog" entries will migrate to services such as Google+.  But I am here for now.

I was watching another round of oral argument before the court of appeal last week when one of the attorneys made a reference to opposing counsel.  The justice stopped the attorney, asked what he meant by the remark, and chastised him for making the reference.  It wasn't offensive by any means, but the attorney had used the opposing counsel as an example when he might have used any other California resident.

I often remind attorneys not to make personal attacks, not even a mention that appears to be a personal attack, on opposing counsel.  The courts just don't like it.  No matter how many times I have raised this point, attorneys continue to make personal attacks.  It puts the court in the uneviable position of trying to decide just who is lying.

Okay, but what about when the other side is dishonest, or shall I say, just out and out lying?  Sorry, I think you need to banish the word "liar" from your vocabulary.  I like to think the other side has forgotten, overlooked, or even is suffering from temporary amnesia.  We often don't see the same event eye-to-eye.  First, you need to consider whether the alleged lie could be the result of a different interpretation of the same set of facts.  Second, give the person the benefit of the doubt that maybe he or she misheard or misinterpreted the communication.

Okay, so we've eliminated all of that, and yes, the attorney is really just lying.  Sometimes it does happen, although I suspect it might happen less than we believe it does.  If the truth can be revealed by resorting to facts, then by process of elimination, the attorney is wrong.  Leave it to the court to suspect he or she is lying.  If you have to write a declaration countering what has been presented as the truth, present your version, stating your belief that opposing counsel is in error or has possibly overlooked that letter or later conversion.  If you do it in an objective style, then you will increase your credibility without "attacking" the other attorney.

Here's an example:  several years ago I was blasted in a Respondent's Brief for not addressing  in my Appellant's Opening Brief a case cited below at the trial level.  He argued that it was proof I was trying to pull a fast one or worse, an acknowledgment that my position sucked (a legal term).  I thought I had mentioned the case.  It was there in the table of contents.  When I went through the brief, I could see that one page was missing, which contained a discussion of the case.  I was able to fix the omission and dealt with the case.  I was apologetic about the omission and thanked opposing counsel for pointing out an error that I could correct.  I did not resort to any personal attacks, but I think he looked badly for engaging in such an aggressive attack only to be proven that I was not avoiding the case.

 

 

Wednesday
Sep212011

A nice review on An Appeal to Reason

Fellow appellate attorney Mary-Christine (or affectionately known as M.C.) Sungaila posted a very nice book review of An Appeal to Reason, on http://socal-appellate.blogspot.com/2011/09/introducing-guest-bloggers.html

I do appreciate her recommendation to pick up my book, along with a few others, for your summer reading but I am not sure I would ask anyone to go that far.  I am a big advocate of balance in one's life and find that far too many attorneys are working almost round the clock.  The new social media does not make it any easier because we attorneys are now so accessible.  I have even read about the lack of sleep and insomnia experienced by attorneys who cannot "shut off their minds" at the end of the night.  I would much rather take advantage of a well-rested attorney who can then learn some valuable pointers from my book.  Read it first thing in the morning over a steaming cup of coffee (skip the donut, please!) or maybe at the end of the day.  But for summer reading at the beach?  My advice is to put the book down, jump into our California surf and play with your children or loved ones.