Not To Be Published (10/04/23)

Tip Summary:?

--?Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment.

--?Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.

-- New Cal.App.Law.Pod episode?w/?How to Prepare for Oral Argument.

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

Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment

At trial, you have a right to impeach an adverse witness’s testimony. The court denied that right in People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.). The court admitted the 911 call of Bingham’s girlfriend reporting that Bingham had beat her up with a lock, but excluded her subsequent statements recanting. That was error. But it was harmless error, so the conviction was still affirmed.

A different outcome was called for under People v. Corella?(2004)?122 Cal.App.4th 461, 470. Corella noted that it is the jury who must determine credibility, and when the case turns on the statements of a critical witness who does not appear at trial, the trial court commits reversible error by excluding inconsistent statements “because it prevented the jury from making a credibility decision based on all?available evidence." (Id.?at p. 472.)

But the Bingham court declined to follow Corella, because Corella suggests the “miscarriage of justice” standard may be met solely if the jury did not have all the evidence to make the credibility determination. Instead, the Bingham court noted that the “miscarriage of justice” standard requires “examination of the entire cause.”

Here, the Bingham court considered the facts that Bingham was seen with the victim five minutes earlier, that he was found with a lock in his car after the beating, that his statements to the victim during a monitored call at the jail acknowledged he “saw all the blood,” and that the victim reconciled with Bingham before she recanted. Under the examination of the entire cause, the court found no prejudice. The fact that the jury was not provided all evidence to determine the victim’s credibility, which might have resulted in reversal under Corella, was not dispositive.

Takeaway

Bingham is unpublished and thus not citable. So if you have an issue involving exclusion of impeachment evidence, Corella is the operative authority. But Bingham’s criticism of Corella is valid, so that that into account: whether the exclusion should result in reversal must be based on the totality of the evidence.

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

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Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent

If you set out to achieve the “impossible,” you are ambitious, but not alone. Impossible Foods, creator of the “Impossible Burger,” learned that another company, Impossible X, was also using the “Impossible” brand on some personal fitness and lifestyle websites, an Amazon platform, and a YouTube channel. But its sole owner-operator, Joel Runyon, lived in Texas. So was Impossible Foods’ trademark complaint—seeking a declaration that it was not violating any of Impossible X’s trademark rights—properly filed in federal court in California?

In answering that question, consider that Impossible X hadn’t done anything to enforce its trademarks in California. That fact stuck out to the district court, who granted defendant Impossible X’s motion to dismiss on grounds of lack of specific jurisdiction. The court ruled that, in a lawsuit involving trademark enforcement, Impossible X’s contacts with California had to relate to trademark enforcement.

But a divided panel in Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023) reversed. Writing for the majority, Judge Bress reasoned that the defendant’s minimum contacts with a forum, as necessary to justify specific jurisdiction to issue a judicial declaration about trademark enforcement, need need not relate to trademark enforcement. Instead, the court may look to the defendants general business-development historical contacts with the forum—even if those activities did not relate to enforcing the trademark, the subject of the lawsuit.

This was too much for Judge VanDyke, who dissented. Judge VanDyke would have drawn a bright line between the activities relevant to the lawsuit (trademark enforcement) and the past business-generating activities in the forum. By sweeping in the historical collateral activities, Judge VanDyke says, the majority “reconceptualizes specific jurisdiction as a kind of backward-looking "general jurisdiction lite," [and] pushes our precedent in a new and troubling direction.” He also says the majority’s rule “is also potentially the most radical reimagining and expansion of specific jurisdiction in decades.”

Judge VanDyke also would have found plaintiff’s counsel waived the broader argument based on historical contacts. Underscoring the novelty of the majority’s ruling, plaintiff Impossible Foods’ counsel conceded that it was not arguing that the court had general jurisdiction based on past contacts. Judge VanDyke says that was enough to find that any argument to extend the doctrine of specific jurisdiction based on general historical connections with the forum was waived.

I think Judge VanDyke has the better argument here. But as the Impossible Foods case is 9th Circuit precedent, if you are invoking the diversity jurisdiction be prepared to raise the defendant’s historical contacts with the forum. Even if that does blur the Schwarzenegger factors, it is a blurring that the Impossible Foods case seems to endorse.

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://eepurl.com/hcceAv.

How to Prepare for Oral Argument

Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include:

??? Anticipate the panel’s questions when you can, but…

??? …be prepared to respond when you don’t know the answer.

??? Be prepared to answer: “What is your rule” for answering the key statutory or legal question.

??? Give direct answers to the panel’s questions.

??? Don’t read your argument. The judges have enough of what you’ve written. Now they want to hear what you say.

??? Give a different spin—don’t just repeat what you said in briefing.

??? Concede weak arguments.

??? Just be a friend of the court: be polite, don’t interrupt, and try to help the court do its job solving the problems in your case.

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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