California again has reason to celebrate as the 9th Circuit Court of Appeals struck down Proposition 8 as unconstitutional.  This may seem like old news to gays in other states who enjoy the right to marriage, or civil unions and domestic partnerships that provide the same rights.  The celebration is sweet to those of us in California because of the turmoil that supporters of gay marriage have endured:  a voter-approved ban, legal fights over the right to marry, which seemed to support the right and then withdrew it, and then the loss of the  opportunity to marry that was later taken away.  One day we may all look back on these battles as strange in a society that claims to honor personal freedom and human rights. 

Supports of Proposition 8 may ask the 9th Circuit to rehear the case, conduct an en banc hearing (heard by 11 judges), or go directly to the U.S. Supreme Court.  The windows of opportunity changes according to the relief sought, but at least by the end of 90 days we will have our answer.

The Court's Opinion in Perry v. City and County of San Francisco is a whopping 128 pages long.  In the opinion written by Judge Reinhardt, he concludes Proposition 8 violates the Fourteenth Amendment of the U.S. Constitution.  While the Constitution allows communities to enact many desirable laws, they must at least have a "legitimate reason for the passage of a law that treats different classes of people differently."   The Court held there was no such reason for enacting Proposition 8:  it could not have been enacted to advance California's interests in childrearing or responsible procreation nor could it have any effect on religious freedom or on parents' rights to control their children's education.  Judge Reinhardt explained:

                "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships.  Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-six couples.  The Constitution simply does not apply for 'laws of this sort.'  Romer v. Evans, 517 U.S. 620, 633 (1996)."

(Opn., p. 5.)

Rather than making a broad ruling, the Court narrowly decided the issue, reasoning that Proposition 8 only took away the designation of "marriage" while "leaving in place all of its incidents."  (Opn., p. 6.)  It also limited the holding to California, which may make review by the U.S. Supreme Court less likely.

While acknowledging the official sponsors of Proposition 8 have standing to appeal the decision by the district court, the Court concluded "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."  (Opn., p. 7.)  It traced the development of laws relating to marriage, noting that California's Domestic Partner Act provides domestic partners with the same rights, protections, and benefits of married couples, only withholding  the official designation of "marriage."  In Marriage Cases, the California Supreme Court held that the fundamental right to marriage could not be denied to same-sex couples.  Then Proposition 8 came along, providing that only marriage between a man and woman was valid.   

In response to the publication of the Court's opinion, there were a flurry of newspaper reports and editorials.  In one editorial written by Dean Erwin Chemerinsky of the UC Irvine School of Law, he notes, "No doubt many are offended by the idea of same-six marriage.  But, of course, those who don't like the idea of same-sex marriage don't have to marry someone of the same sex."  (Los Angeles Times, Op-Ed, Feb. 8, 2012.)

You can find the decision, including the concurring/dissenting opinion of Judge Smith, here: http://www.ca9.uscourts.gov/datastore/general/2012/02/07/1016696com.pdf.

The appellant argued the appeal involved several issues of first impression in California and looked to the court to become the lead authority on these issues.  Instead, the court resolved the appeal under principles of appellate review, including the doctrine of invited error. 

Appellant first argued that the trial court committed instructional error because the instruction on the statute oflimitations contained an incorrect statement of law regarding accrual and omitted any mention of tolling.  The court concluded the argument was barred by the doctrine of invited error.

Invited error occurs when an appellant's conduct induces or invites the commission or error by the trial court, resulting in an estoppel to raise it as a ground for reversal on appeal.  (As an interesting side note, the court cited to Cal. Practice Guide: Civil Appeals and Writs.  One of the authors of that treatise, Jon B. Eisenberg, is co-counsel for appellant.) 

While the instruction in this case was submitted by another party, appellant agreed to the instruction.  Appellant later argued that an attorney who submits to the trial court after an adverse ruling and after making appropriate objections, does not waive the error.  The court of appeal did not see it the same way, indicating that appellant's recitation of the fact was less than candid.

One complaint that I frequently hear is that attorneys cease objecting because they are fearful of a trial court's reaction.  The court stated, "the claim that advocating a position with an experienced judge would somehow 'aggravate' her is sheer speculation -- not to mention demeaning."  (Opn., pp. 25-26)  In reality, making objections can irritate a judge, and the attorney is mindful of the fact that during the course of trial, the judge has many opportunities to hurt the attorney's presentation of the case.  However, failing to object also results in the loss of valuable rights and grounds for appeal, so the attorney has to risk a judge's displeasure so the record on appeal can be preserved.

The court also noted that appellant did not request an instruction on equitable tolling.  Each party "'must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.'"  (Opn., p. 27.)

The court also found that appellant's challenge to the trial court's order denying its motion for summary adjudication failed because an order granting or denying summary adjudication is generally reviewable only by a petition for writ of mandamus, especially where the parties litigated the same issues at trial.  The court also found the argument would fail on its merits.

Finally, the court rejected appellant's last argument that the trial court erred in rejecting its equitable estoppel instruction.  Although appellant proposed such an instruction, the trial court did not find any evidence to support the instruction.  It concluded, "A party is entitled to 'correct' instructions on 'every theory of the case advanced by [it] which is supported by substantial evidence," citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572. (Opn., p. 32.)

How frustrating and expensive to have gone through this appeal, spending a boatload of money on attorneys' fees and producing a hefty boatload of paper, only to have the door shut on you on strictly procedural issues.

Times are changing and it seems that people also have a rather low opinion of politicians, bankers, mortgage brokers, etc.  The list could go on.  The importance of credibility and connecting with one's customers or clients cannot be denied.  While the Internet was first thought of a place where people did not have to make personal connections, my experience has been otherwise, that people are connecting in new ways and in numbers that I could never envision.

Right after Thanksgiving, the Court of Appeal in the Fourth Appellate District, Division Three, filed an opinion in Kim v. Westmoore Partners, Inc., in which it sanctioned attorney Timothy J. Donahue $10,000 for lying to the court when seeking an extension of time, and for filing a boilerplate accusation and request for sanctions against opposing counsel.  The decision included a "cautionary tale for appellate counsel.  Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel."  (Opn., pg. 3.)

What had Donahue done?  He sought an extension of time to file his respondent's brief, which is not a required document, stating additional time was needed to address the "complex issues raised" and to research and finalize the brief.  The extension request was granted.  When his brief was filed, it turned out to be an almost exact duplicate of a brief he filed years earlier.  In fact, the court could observe where some words from the earlier case that had not been changed.  (A warning about using cut-and-paste and then failing to adequately proofread the brief.)  The court reasoned that frivolous appeals do not require significant time to rebut.  Mr. Donahue's letter brief was conclusory, even to the point of suggesting that the order was issued in error, and the court must have meant it was considering sanctions against appellant's counsel.

On the day of oral argument, Donahue sent another attorney, who was unaware of the sanction request.  What a surprise!  The court issued a second order to demand Donahue's personal appearance.  The court noted that not every request for an extension will be deemed sanctionable merely because it doesn't contain much detail, but given the facts in this case, the request was not reasonable.

The court decided it could not overlook Donahue's conduct and used its published opinion to instruct the legal profession:

"Our legal profession is rife with cynicism, awash in incivility.  Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It's time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility.  All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions."

(Opn., pg. 30.)

This is the start of a new year.  People are searching for others who will be honest and try to solve problems honestly and simply, without escalating disputes into modern warfare.  If you have a list of resolutions for 2012, let this be the first one on it.

I have been done this blog for several years now.  With the birth of Google+, Twitter, and Facebook, I am told that  blogging is dead.  My blog is written mostly for trial lawyers, so it would be hard to imagine that a mainstream audience might be interested in recent appellate cases if I were to post publicly on Google+.  Or perhaps I am underestimating a large segment of the population.

I find myself being interested in events beyond my appellate practice.  I listen and watch news programs - I love Rachel Maddow! - when before I might have filled up that time with episodic comedies or classic movies.  Last month I traveled to Cuba to conduct some research on its legal system, only to discover that one cannot accurately assess Cuba's legal system without considering its political and social systems.  It was a valuable mission and I can't wait to report on my visit and share my observations.

While I enjoy my appellate work, I want to devote time to more creative endeavors, such as photography and creative writing.  So much is happening in the world right now that I find I cannot stick my nose in a law book and ignore it.  That means that my blog will change too.  I hope you enjoy it.             

Oh, let's forget about work and just enjoy the Holiday season.   I hope you appreciate what you have and your friends and family.  I'll be back in January 2012!  

The Supreme Court decided a procedural issue that might arise in any action involving an initiative.  In the federal case, the opponents of Proposition 8 are challenging its constitutionality.  Proposition 8 would add a section to the California Constitution providing that "[o]nly marriage between a man and a woman is valid or recognized in California."  The Supreme Court was not deciding the substantive question of the constitutional validity of Proposition 8, which will be decided by the Ninth Circuit.

The Court noted that in the past official proponents of initiative measures have been allowed to participate as parties, either as interveners or real parties in interests, and they did not have to show that their property, liberty or other personal legally protected interests would be affected if the measure was invalidated.  They were also allowed to participate in such lawsuits whether or not the government officials were also defending the measure. 

In an opinion by our new Chief Justice Cantil-Sakauye, the Court wrote that in situations where the public officials have declined to defend the initiative's validity, and in light of the "nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution . . . and the unique role of initiative proponents in the constitutional initiative process . . .," it would constitute an abuse of discretion to deny official proponents a role in the proceedings.  (Opn. , pg. 10.)  The Court continued:

"In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, sec. 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state's interest  in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment."

(Opn., pgs. 10-11.)

I know, that's a fine way to start the Holiday season.  Now the 9th Circuit can work on the substantive aspects of the appeal, and hopefully, Proposition 8 will be declared unconstitutional.

Have a Happy Thanksgiving!

Inland Empire claimed Riverside's ordinance was preempted by state law, and in particular, the Compassionate Use Act of 1996 and the Medical Marijuana Program Act (MMPA).  The court disagreed and affirmed the lower court's judgment.

According to Riverside's zoning codes, medical marijuana dispensaries are prohibited.  Riverside's zoning code also state that any use that is prohibited by state and/or federal law is prohibited, and any violation of its code is deemed a public nuisance and subject to abatement.

In a 27-page opinion, the appellate court found that the CUA and MMPA, which it narrowly construed to constitute a limited criminal defense, did not touch on land use issues or prohibit a city from banning dispensaries.  It stated, "[N]othing in the CUA or MMP sugggests that cities are required to accommodate the use of medical marijuana and MMD, by allowing MMD's within every city.  Nothing stated in the CUA and MMP precludes cities from enacting zoning ordinances banning MMD's within their jurisdiction.  Furthermore, those who wish to use medical marijuana are not precluded from obtaining it by means other than at an MMD in Riverside."  (Opn., pgs. 22-23.)

While the CUA and MMPA does envision local government regulations, it does not explicitly allow banning collectives or dispensaries.  The court disagreed, fiding that a ban is a "lawful method of limiting the use of property by regulating and restricting the location and establishment of MMD's in the city . . . A ban or prohibition is simply a type or means of restriction or regulation."  (Opn., pg. 25.)

Given this Court's decision, one might expect to see the cities and counties enacting absolute bans to collectives and dispensaries.  It might be one way for them to eliminate the costs of litigation incurred in fighting the establishment of such groups.  Coupled with the recent actions by the federal authorities in seizing bank accounts and properties, one might easily conclude the forces of the federal and local governments - not necessarily the State - are aligned against group activities involving medical marijuana. 

The story is not yet over as it is anticipated that Inland Empire will seek review from the California Supreme Court.  There are other cases involving the same issue filed in other districts, and if one district were to conclude MMDs cannot be banned, then the matter will eventually have to be resolved by the California Supreme Court or the State legislature. 

It also means that qualifying patients will have to struggle to find any dispensary that is open to them, even if it involves a lot of travel.  Growing in the home may also be an option, but given that the immediate source of medical marijuana may be cut off, anyone who starts growing now will have weeks and months to wait before harvesting a crop.  As more and more people learn of the medicinal effects of marijuana, it will be impossible to put the geni back into the bottle, and we can expect to see a surge in the purchase of illegal drugs. 

Whether we will also see an increase to fend off the drop in sales for prescription painkillers remains to be seen.  By mandating cholesterol tests for kids as young as 11, perhaps the big pharmaceutical companies can make up the gap in prescribing statins to adolescents, confident in the knowledge that if they can give statins to children at 11, they may have a steady stream of income in this area for the next 60 years of that child's life.

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.

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 . . .

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.