California Supreme Court dismissed Pack v. Superior Court

For those of us who are involved in medical marijuana, we have been watching how the Supreme Court handles several important appeals.  The most anxiously watched case is City of Riverside v. Inland Empire Patient's Health and Wellness Center, Case No. S198638, which deals with the issue of whether cities and counties can absolutely ban medical marijuana dispensaries and patients' associations.  An unpublished decision also from the Fourth Appellate District, Division Two, entitled  People v. G3 Holistic, Case No. S198395, raises the same issue.  Several amicus briefs have been filed in both cases.  These cases are fully briefed and are waiting for oral argument dates.

Another medical marijuana case, Pack v. Superior Court, Case No. S197169, involved the City of Long Beach's ordinance, which required high fees to participate in a lottery system, was also pending before the Supreme Court.  At least until August 22, 2012, when the Court dismissed the case, ruling:

"On January 18, 2012, we granted review of the Court of Appeal's decision in this matter. (See Cal. Rules of Court, rule 8.500(a)(1).) The sole issue presented by that decision was whether, as mandamus petitioners Pack and Gayle argued below, City of Long Beach Ordinance No. ORD-10-0007 (Ordinance No. 10-0007), imposing a regulatory permit scheme for the lawful operation of medical marijuana collectives in the city, was preempted by the federal Controlled Substances Act (CSA). However, in their brief to this court, and by a letter from their counsel, the mandamus petitioners have now abandoned their federal preemption argument in favor of unrelated issues not raised or decided at any prior stage of this proceeding." 

The Supreme Court also noted the subject ordinance had been repealed and replaced, and thus the appeal was moot.  In addition, the legal validity of the new ordinance had not been previously considered, and therefore, it was not ripe for the Supreme Court.  (See http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1994201&doc_no=S197169.)

This appeal was heavily briefed, including several amicus briefs and responses.  Then it was dismissed.  Some, including medical marijuana supporters, may celebrate that dismissal, but it still represents a lot of work for the litigants.  I am sure it is a major disappointment to the petitioners, but at least the Riverside cases are still pending.  Meanwhile, petitions for review have also been filed in  two medical marijuana cases in Los Angeles,  County of Los Angeles v. Alternative Medicinal Cannabis Collective, Case No.  S204663, and 420 Caregivers  v. City of Los Angeles,  Case No. S204684.

For most appellate attorneys, arguing before the Supreme Court is one of the highpoints of your career.  In fact, you can work as an appellate attorney for your entire life and never make it to the Supreme Court.  But to get that far and put so much time and effort in briefing, only to have the case dismissed, must be a tough way to resolve a case.  Keep in mind, however, that the dismissal does not revive the Court of Appeal's published decision. It remains depublished.  See CRC rule 8.15(e)(1) "Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing."  The Supreme Court has the power to publish the Court of Appeal Opinion and it did not.  See also CRC, rule 8.528(b)(3) "After an order dismissing review, the Court of Appeal opinion remains unpublished unless the Supreme Court orders otherwise." However, the case is still binding on the parties.

Painting a picture at trial for the Court of Appeal

  When you file an appeal, you have to keep in mind that your audience, the Court of Appeal, was not present at trial and has little information as to the appearance and demeanor of the parties and witnesses.  And while credibility or the lack thereof is not the province of the appellate court, like most of us, the Court wants to get a clear picture of the "story."  For more on this, you can read my article "Painting a Picture at Trial for the Court of Appeal," which was published in the most recent issue of Plaintiffmagazine.  You can find it at www.Plaintiffmagazine.com.

Caring is an important element of handling an appeal

Last week I appeared before the Fourth Appellate District, Division Three of the Court of Appeal in Santa Ana.  This is my favorite court and I appear here more than anywhere else.  I know each justice personally and attend business functions where we socialize and talk - about things other than my cases!  It would be great to think that appearing before these justices would be a comfortable experience.  Not so, at least for me.  No matter whether I am appearing on a BIG appeal or a little one, or even I feel like I have an excellent chance of winning, I still get nervous just before "show time."  I feel the pressure of wanting to do the best job possible for my clients.

As I was waiting for the courtroom to open, I met up with an attorney who had previously pposed me on an appeal years before.  He is primarily a trial lawyer and doesn't often appear before the Court of Appeal.  He told me that these appearances really make him nervous.  He thought I should be very comfortable going forward with my argument.  Wow!  I was thinking that he is in court all the time and faces a judge, and quite often, twelve jurors.  My perception was that he should be more relaxed in facing three justices.  Interesting thing about perceptions.  We are often wrong.

As we talked, I told him my theory that an attorney can never completely eliminate that nervousness.   I think we get nervous because we care.  We might know how important a successful appeal is to our clients and we believe we are on the right side of justice.  Maybe the nervousness keeps us alert.  Of course, I don't want to ever get so nervous that I can't think on my feet.   (No, I am not ignoring those situations when attorneys get nervous because they aren't prepared.)  

That brings me to the very point that has been on my mind.  In the last few weeks I have received inquiries from potential clients.  They try to fill me in on what happened at trial but a common complaint has surfaced.  Many of these clients believe their trial attorney didn't really care about them, was not prepared, and would not listen to their input.  These attorneys were inpatient when the clients made suggestions or asked questions about the trial.  The clients felt as though the attorney was handling the case to make money, and for no other reason.

Even though attorneys might occasionally handle cases on a pro bono basis, I cannot fault an attorney who has to consider making money to pay bills and put food on the table.  I don't even think clients believe we should act solely out of charity.  But . . . I think they are entitled to be represented by an attorney who genuinely cares about their case and demonstrates that concern.  Whenever I take on a case, I have to ask myself if I care about the client's situation.  If I don't, then I am not the right attorney for the job.   Every attorney has decide if they can represent the client with commitment and caring.  If they can't, turn down the case and let someone who cares handle it.

These days, people are so disillusioned by the world around them.  Times are tough for a lot of them.  They feel betrayed on so many levels.  Finding someone who is honest and cares about their case is very important to them.  On the flip side, winning a case that you honestly care about, knowing it will help your client, is more fulfilling than winning a case where you don't.   Hearing a client's problems and forming a relationship with him or her is all about making an important connection.  That should include caring.  And letting your client know you care.

My Spreecast

 I'm going live!  Watch the first ten minutes of my interview with trial attorney Mitch Jackson as we talk about my book, An Appeal to Reason.  It was a great opportunity for me to advise trial attorneys about protecting their appeals at the trial level and avoiding mistakes that might jeopardize their chances on appeal.  In the near future, I will talk about how to handle specific problem areas.  For now, follow this link, enjoy, and learn.

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Frivolous use of appellate proceedings to avoid the inevitable

                The real estate market has produced many casualties.  Of course, when we were in the midst of the real estate bubble, we were all delighted to buy houses we couldn't afford and speculate on dreams of reselling at a huge profit.  I can remember when my agent took me to see my current home.  It hadn't even been listed and was being previewed by realtors.  "Let's see," I said, "I have Thursday available."  She responded, "I will be there in 45 minutes to pick you up."  Those were the days when buyers were making offers within a day of the house being on the market.  Any delay meant the house was gone.   But those days are gone and we are now suffering with houses that are upside down and we cannot even give them away.

                In Brown v. Wells Fargo Bank (2012) 204 Cal.App.4th 1353, the appellant and plaintiff was in default on her $480,000 mortgage.  Wells Fargo instituted foreclosure proceedings and the appellant filed a lawsuit, including requesting a preliminary injunction, to prevent the sale.  She then appealed from the court's order dissolving a preliminary injunction and allowing the sale to go forward.  Why, you might ask?  Well, it seems she failed to deposit $1,700 a month into a trust account in lieu of a bond as ordered by the court.  No, she had not made a single payment.  And she filed her notice of appeal two days before the property was scheduled to be sold.

                Appellant argued the order dissolving the injunction was invalid because it was issued "ex parte."   After calendar notice of oral argument was sent to appellant's attorney, he asked that the appeal be dismissed.  In her opening brief, appellant ignored the fact the trial court agreed to set the matter for hearing.  She made no showing the trial court abused its discretion nor did she show any miscarriage of judgment.

                The court noted, "The appellate courts take a dim view of a frivolous appeal.  Here, with the misguided help of counsel, the trustee's sale was delayed for over two years.  Use of the appellate process solely for delay is an abuse of the appellate process."  (Id. at pp. 1356-1357.)  It further held the appellant had not presented any viable issue on appeal and the appeal was frivolous as a matter of law.  It concluded, "'[R[espondent is not the only person aggrieved by this frivolous appeal.  Those litigants who have nonfrivolous appeals are waiting in line while we process the instant appeal.'"  (Id. at p. 1357.)

                The appellant was fortunate in that respondent did not ask for monetary sanctions and the court did not issue an order to show cause re sanctions payable to the court.  It did, however, deny appellant's request to dismiss the appeal, awarding respondent costs on appeal.  It also awarded attorney's fees if there was a provision for them in the note or deed of trust.  Finally, it ordered the clerk of the court to send a copy of the opinion to the State Bar for consideration of discipline.  Ouch!