Not To Be Published (04/17/24)

Tip Summary:?

--?“Super snap removals” not permitted in Ninth Circuit.

--?The Racial Justice Act Is Unconstitutional.

-- CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”.

-- Top 10 Tips for Family Law Appeals.

-- New Cal.App.Law .Pod episode?w/?Is the Racial Justice Act Unconstitutional?.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at [email protected] . And I am always happy to talk about these kinds of issues in your cases.

Tim Kowal

“Super snap removals” not permitted in Ninth Circuit

Here’s a first-year civ pro question with a twist: Plaintiff files a complaint in state court. But before court processes it for filing, defendant—who, not even served yet, gets wind of the complaint through an efile-watcher service—files a notice of removal in federal court. Question: Is this “super-snap removal” effective?

The answer is important because, in a diversity action as in Casola v. Dexcom, Inc. , No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2) . But that defect is deemed waived if the plaintiff does not seek remand within 30 days of the removal.

Answer: No, super-snap removals in the Ninth Circuit are not effective.

“Snap Removals” might still work:

Notably, however, the panel did not decide what happens to regular “snap removals”—that is, where the complaint has been accepted as filed, but the defendant files a notice of removal before service. This is a tricky question because, under the plan text of 28 U.S.C. § 1441(b)(2) , the no-removal rule only applies to a defendant who is “served.” So if you are anticipating a lawsuit in your home state and want to remove to federal court, watch the efiling listener service like Courthouse News Service and file a “snap removal” before you are served—but don’t file a “super-snap removal” before the complaint is actually filed!

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

The Racial Justice Act Is Unconstitutional

A divided panel in People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App .5th ___, a residential burglary case, reversed a guilty verdict. Because of lack of evidence of guilt? No, the prosecution’s evidence was overwhelming. Instead, the majority reversed because, after the prosecution made a peremptory challenge to a Hispanic prospective juror, and after the defense objected that the challenge was based on implicit bias, the trial judge erred by overruling the objection.

The Racial Justice Act, and specifically Code of Civil Procedure section 231.7, requires reversal when a juror who is a member of a protected class is excused without express findings that the reasons for the excusal “bear on the prospective juror’s ability to be fair and impartial.” Lacking that express finding here, the majority concluded it was reversible error to deny the defendant’s objection.

Dissenting, Presiding Justice Gilbert noted that there is a “cogent argument raised by Justice Yegan in his dissent in [People v. Simmons (2023) 96 Cal.App .5th 323—dissenting to PJ Gilbert’s majority opinion!] that the Racial Justice Act violations the doctrine of separation of powers.” Specifically, these two jurists refer to the fact that the California Constitution, article VI, § 13, require a showing of a “miscarriage of justice” before a judgment may be reversed. Absent a structural error—such as a showing of actual bias, not present here—the mere failure to make a finding, even a finding required by statute, cannot support reversal alone. (F.P. v. Monier (2017) 3 Cal.5th 1099 [failure to make required findings in a statement of decision does not support reversal absent a showing of prejudice].)

When Justice Yegan referred to a separation-of-powers violation, he was addressing the fact that the Legislature declared in the racial Justice Act that the use of racially discriminatory language in a criminal trial constitutes a miscarriage of justice. (Simmons, at p. 340.) But Justice Yegan, quoting Marbury v. Madison, reminded his colleagues that “The Legislature cannot dismantle California's separation of powers doctrine by dictating to the judiciary how the California Constitution should be construed.”

The dissents in both cases were correct. The Racial Justice Act is an unconstitutional separation of powers to the extent the legislature purports to dictate to the judiciary the content of the Constitutional.

Watch for a petition for review in this one.

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”

CEB DailyNews has published my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals.” The briefing faux pas in two recent cases garnered a lot of attention, especially Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), where counsel should have known better—leading to a published decision. Appellant’s counsel in Grant misrepresented several cases, including two nonexistent cases. When the 9th Circuit panel issued a focus letter asking her to explain, and then asked again at oral argument, counsel gave this bewildering response: the nonexistent cases “did not apply.”

The panel struck appellants' brief and dismissed the appeal.

Some observers have suggested this result is correct because otherwise, winnable civil rights cases could be lost to shoddy lawyering. But on the other hand, most civil rights cases do not pay well, and the few attorneys willing to take a shot may be scared off by harsh treatment.

So it bears remembering that it was not just the two nonexistent cases that got counsel into trouble. It was the fact that none of the cases really supported the appeal.

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

Top 10 Tips for Family Law Appeals

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include:

?? Know your appealable issues—appeal now, or lose it forever!

?? Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.

?? Get the standard of review right, and use this tip when challenging discretionary rulings.

?? Brief like an appellate attorney: Put cites on everything. Put headers on everything.

?? Make a record!

And five more!

One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

Is the Racial Justice Act Unconstitutional?

This quick-tip episode of the #CalAppLawPod will update your litigation toolkit with cases on both sides of a (possible) split of authority whether missing findings are reversible per se.

Is the Racial Justice Act a get-a-new-trial-free card? And is that allowed?

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.

But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”

We discuss five cases, two of which (including the Supreme Court) held that a statute may not excuse the “miscarriage of justice” requirement, and the other three excusing that requirement anyway.

What do you think?

Listen to the podcast here .

Video clips from the podcast are available here .

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal . He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com , and posts regular updates of appellate news and tips for trial attorneys at KowalLawGroup.com . Contact Tim at [email protected] or (949) 676-9989.

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