What is an arguable issue on appeal?  

 In People v. Hernandez (2014) ___, Cal.App.4th ___, Justice Rylaarsdam wrote the opinion in a criminal appeal in which the Court previously appointed counsel to represent the defendant.  The attorney filed a Anders/Wende brief, in which the attorney indicated he could find no issues to argue on defendant’s behalf.  TheAnders/Wende brief is based on Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436.

The Court published its opinion, reaffirming its long-standing rejection ofAnders/Wende briefs.  It stated: 

                 “Long ago, this court discredited the custom of raising ‘‘arguable-but-unmeritorious’ issue[s]’ in Anders/Wende appeals; yet this practice persists.  As Justice Gardner noted in People v. Johnson, supra, 123 Cal.App.3d 106, ‘In this case we reject a concept which has crept into our judicial literature – the ‘arguable-but-unmeritorious’ issue on appeal.  We hold that an arguable issue on appeal consists of two elements.  First, the issue must be one which, in counsel’s professional opinion, is meritorious.  That is not to say that the contention must necessarily achieve success.  Rather, it must have a reasonable potential for success.  Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.’”  

 (Opn., pgs. 3-4.) 

 Justice Gardner advocated jettisoning the concept of ‘arguable-but-unmeritorious’ issues, a position with which this Court agreed.  While the Court must review the record in such appeals, and must do so when the defendant personally files a brief raising certain issues, “But there is no such obligation with respect to counsel supplied so-called ‘arguable-but-unmeritorious’ issues.”  (Opn., pg. 4.)  As a result, “An attorney who cannot discover an arguable issue thus secures an appellate review of the record which is not necessarily enjoyed by his more feisty counterpart who raises one or two frivolous issues, easily disposed of by the inspection of a few pages of transcripts.”  (Opn., p. 4; citing People v. McGee I1978) 82 Cal.App.3d 127, 129.) 

 One of the tasks of an appellate attorney is to select the issues on appeal.  Selecting three or four grounds for appeal is best.  At times, an appellate attorney may drop weaker grounds, fearful that their inclusion will bring down the credibility of the appellant’s position.  If a brief includes a laundry list of errors, numbering over five, the Court of Appeal may wonder whether so many errors could be committed in one hearing.  If an civil appellate attorney cannot find any issues for appeal, the attorney simply notifies the client and may even refuse to take the appeal.  Court-appointed criminal appellate attorneys face a different challenge.  What do they do if they cannot find an arguable issue on appeal?  As pointed out by Justice Rylaarsdam, filing a brief in which the attorney discusses the case and indicates he or she cannot find any issues to argue on the defendant’s behalf, is not acceptable.




We may have a new California Supreme Court Justice

 COURTESY OF CALIFORNIA GOVERNOR'S.OFFICE.                                                                        

Governor Jerry Brown nominated a new Supreme Court justice to replace retiring Justice Marvin Baxter, who was one of the Court’s most conservative members.  The nominee is Mariano-Florentino Cuéllar, a Mexican-born Stanford Law School Professor.  Mr. Cuéllar would become the second Democrat to sit on a Court filled with Republication appointees, except for Justice Goodwin Liu, who was appointed in 2011.  Governor Brown has one more vacancy to fill, which became open when Justice Joyce Kennard decided to retire.  

Cuéllar has substantial experience in immigration, having service as a special assistant for justice and regulatory policy in the Obama White House from 2009-2010.  He co-chaired the Obama transition team’s immigration policy working group in 2008 and 2009.  He also worked for the U.S. Treasury Department from 1997 to 1999 under President Clinton.  

Cuéllar was born in Mexico.  When he was young, he crossed the border legally each day to attend a Catholic school on a scholarship in Brownsville, Texas.  His family then moved to the Imperial Valley in California.  His family was granted green cards and he graduated from Calexico High School.  Cuéllar became a U.S. citizen in 1994 and has taught at Stanford since 2001. 

Cuéllar appointment will add diversity to the panel and will have a Latino justice.  The Court’s only other Latino member, former Justice Carlos Moreno, retired in 2011.  Even though the Court is stacked with Republicans, it is nice to see the appointment of a Latino judge, particularly one who has hands on experience with immigration and a scholar to boot!   If Cuéllar is confirmed, his name will be listed on the November 4thballot for voter approval.


Refresher on Filing Notices of Appeal

                In a recent family law case, In re Marriage of Lin (2014) _ Cal.App.4th _, the appellate court described the actual time limits for civil appeals.  According to California Rules of Court, rule 8.104(a), the time limit is 60 days from when the appealable order or judgment is served by a party or clerk’s notice of entry of judgment or through service by the clerk or party of a file-stamped copy of the order.  Even if a party waives notice of ruling in court, this waiver will not cut down the 60-day period.  If no such notice of entry of judgment has been given, then the outside limit is 180 days from entry of the judgment.  If the court record does not reflect the shortened time, the 180- day period will apply.             

 Since the notice of entry of judgment has the effect of cutting down an appellant’s time to appeal from 180 to 60 days, thus shaving off 120 days, I would expect a prevailing party, especially one represented by an attorney, would want to eliminate the uncertainty of facing a long appeal period by taking this quick, extra step. 

                If a party is served with a printed form or document entitled “Notice of Entry of Judgment,” then I know the 60-day rule applies.  But a file-stamped copy of the order or judgment, without something to announce it is a Notice of Entry of Judgment, also complies and is often overlooked.  As noted in Lin, the “triggering document” must show the date on which it was served.  (C.R.C., rule 8.104(a)(1).)

                If a party is not sure, take the shortest time period, usually the entry of the judgment or order, and calculate 60 days from that date.  That way you will never be late. Don’t wait until the last day.  I gave myself a couple of extra days because I worry about getting into a car accident and fighting with the ambulance to make a quick stop at the Court of Appeal before I go to the Emergency Room.  (I figure worrying about filing a notice of appeal while I undergo surgery will cut down my chances of survival.)


A Bad Court Reporter can Ruin Your Day . . . and Your Appeal


Years ago, I was told that the definition of comedy is “bad things happening to other people.”  In the movies, we laugh when someone takes a big tumble, but we know if we were to fall we wouldn’t want anyone laughing at us.  Not to mention the pain of falling.  Maybe that is why you see comedians taking falls, but never shedding a drop of blood. 

 Appellate law is not the most exciting area of the law.  I like to think of it as more of an intellectual exercise where you are searching for judicial error or misconduct.  It usually isn’t the stuff of exciting movies, unless Al Pacino or Gregory Peck are arguing their cases. 

 In Manhattan, the courts were faced with an odd situation.  One of their court reporters apparently had some type of breakdown, suffering from the extreme pressure of reporting cases, in this instance a high-profile criminal trial.  The New York Post reported the alcoholic court reporter wrote out his own script for the trial instead of typing the words spoken by the parties and the judge.  The reporter sat through the hearing, probably looking as normal as apple pie, and pretended to take down those words, but he was actually writing, “I hate my job, I hate my job,” over and over again.  Apparently the reporter had committed similar misconduct in some 30 Manhattan court cases.  Who would have guessed?

  The reporter’s failure to report the proceedings will have a significant impact on any appeals for which a transcript cannot be supplied.  If this problem was discovered months after the reporter took down the testimony, it may be very difficult, if not impossible, to reconstruct what was said on the stand.   The judges have been holding “reconstruction hearings” at which all those involved testify about what they remember.  Tough, because memories fade so easily, especially if you have a heavy caseload. 

  The reporter, who has since been fired and is completing rehab, denied screwing up in court.  I guess the proof is in the transcripts.  Maybe someone will testify at the reconstruction hearing that the witness actually said, “I hate my job” over and over again on the stand, without a single objection or comment from the judge.  If the reporter’s notes are only gibberish, it is going to be very tough to argue that all the witnesses in 30 cases spoke that way.

  Claudia Trupp of the Center for Appellate Litigation in New York was quoted in the paper as saying, “This situation is terrible for everybody.  It’s very difficult to come up with a sufficient record based on everybody’s recollection years after the event.”   Glad it didn’t happen on one of my appeals.


Finding the Passion in Practicing Law

Last week I helped a friend with her small claims appeal.  Even though they call it an “appeal,” a small claims appeal is really a rehearing.  At the initial hearing, she lost and owed the plaintiff almost $6,000.  I thought the law was in her favor and knew if it could be carefully explained to the judge, she would win.  I also knew that I was more experienced at making those arguments, so I volunteered to represent her.  We won and she was very happy.  I have worked on cases involving many millions of dollars, but I worked on this $6,000 claim as if the same amount was at issue.  To my client, that was a substantial amount of money and I really wanted to help her.  When the judge ruled in her favor, I felt relieved and happy that I could remove the burden of this judgment off her shoulders.  Those are the times when I feel satisfied in helping people. 

Several years ago I won an appeal, Plotnik v. Meihaus.  In that case, the Court of Appeal confirmed the right of a pet owner to sue for emotional distress when another person intentionally harms or kills a pet.  It was a very gratifying win for me and I received more publicity and letters on that case than on any other case in my entire career.  Well, my 15 minutes of fame was over, or so I thought.  I recently received an e-mail from retired attorney Sandy Toye, who previously specialized in handling animal-related matters.  She wrote: 

                “A friend of mine recently informed me of Plotnik v. Meihaus.  I just wanted to thank you for accomplishing something I spent my entire professional career trying to accomplish . . . It means so much to all animal lovers and to me personally.  You are truly a hero and an inspiration.  Thank you.” 

That letter made my day and reminded me once again of why I do what I do.  There is a sense of accomplishment in being able to help people, and in this case, pets.  (My dog expects no less from me.)  Knowing there are now potential consequences (big $$$) for harming animals might dissuade some from inflicting such harm.  For that I am happy.

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