The Appellate Practitioner

Seeking successful depublication requests

I am always trying to figure out what types of arguments the California Supreme Court finds persuasive in deciding whether to depublish a Court of Appeal opinion under Rule of Court 8.1125. As we all know, depublication orders are extremely rare. To that end, I am collecting copies of successful depublication requests. I've created a list of them here. So far, I only have two. If you have a copy of a successful depublication request that you are willing to share, please forward it to me at uclpractitioner@gmail.com and I will add it to the list. Then we can all review them and try to read the Supreme Court's tea leaves.

Persuasive Legal Writing - November 12, 2008

On Wednesday, November 12, 2008 from 9:00 a.m. to 12:15 p.m., the Bar Association of San Francisco will present its seventh annual seminar on persuasive legal writing, featuring First District Court of Appeal Justice Stuart R. Pollak and certified appellate specialist Daniel U. Smith. I would think that the MCLE credits provided would count as appellate specialization credits. Click here for more information and to register.

The Triennial First District Appellate Symposium: The View from the Bench - November 8, 2008

On Saturday, November 8, 2008, the Appellate Practice Section of the Bar Association of San Francisco will present its Triennial First District Appellate Symposium, a day-long seminar featuring justices and staff attorneys from the First District, as well as experienced practitioners. The seminar provides six hours of appellate specialization MCLE credit. Click here for more information and to register.

Ninth Circuit certifies another question to the California Supreme Court: Klein v. United States

On July 30, 2008, the Ninth Circuit certified another question to the California Supreme Court under Rule of Court 8.548:

Does California Civil Code § 846, California’s recreational land use statute, immunize a landowner from liability for acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that cause personal injury to a recreational user of that land?

Klein v. United States, ___ F.3d ___ (9th Cir. July 30, 2008) (slip op. at 9647). The order certifying the question has this to say about the binding effect of intermediate California Court of Appeal opinions on the federal courts:

When “there is no relevant precedent from the state’s highest court, but ... there is relevant precedent from the state’s intermediate appellate court,” we “must follow the state intermediate appellate court decision unless [we] find[ ] convincing evidence that the state’s supreme court likely would not follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (emphasis omitted); see also Munson, 522 F.3d at 1002 (certifying a question to the California Supreme Court, and having that certified question accepted, where our court was “in doubt about whether the California Supreme Court would follow” an earlier state intermediate appellate court decision). Here, we have grave concern that Shipman did not state California law correctly, and there is “convincing evidence” that leads us to believe that the California Supreme Court likely would not follow Shipman. That evidence makes us hesitant to follow it as well. .... However, because we are “in doubt” about how the Supreme Court of California would resolve this important question of California law concerning immunity of a landowner for its employee’s negligent vehicle operation on its land harming a recreational user of such land, we prefer if possible to let that court speak to the issue rather than making our best prediction of what it would say. See Munson, 522 F.3d at 1002.

Id. at 9652-53 (emphasis added) (alteration in original). [Via California Appellate Report.]

"Are Reply Briefs Really Necessary?"

Friday's Recorder has an article called "Are Reply Briefs Really Necessary?" California Supreme Court Chief Justice Ronald George and Associate Justice Kathryn Werdegar both seem to think so.