Not To Be Published (1/17/23)

tl;dr:

-- Sargon was the wrong objection to expert opinion being outside consensus; People v. Kelly is the right objection

-- Renaming a budget line item got $400M funding for access to justice

-- Gov. Newsom appointed a new Supreme Court justice, but he should have nominated her.

-- New Cal.App.Law.Pod episode w/ Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings

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

Want to get the Governor to support legal access? Here’s Justice Lambden’s $400M tip

Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.”

But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services.

It failed. So he tried again the next year.

It failed again.

Not one to bang his head against a wall, Justice Lambden tried political savvy. He renamed the budget item. It’s name: The Sargent Shriver Access Issue. “We always suspected Maria Shriver probably had a little influence on the governor.”

This time, it passed. “It was the first time California actually funded legal services at that level,” Justice Lambden says, “and it’s been a line item ever since,” responsible for $300 million in access funding.

Watch the clip here:?https://lnkd.in/g9P62xvi

This is a clip from episode 51 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gk_nQsG6

Gov. Newsom appointed a new Supreme Court justice, but he should have nominated her

Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why?

Supreme Court watcher?David Ettinger?explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court Judge Kelli Evans to Justice Guerrero’s associate-justice seat.

And when Ettinger disagreed on his blog, he got a phone call from the governor’s office.

Ettinger noted that the state constitution says that when a justice does not file her “declaration of candidacy” before September 16—thus indicating she was going to let her term expire—that triggers the governor’s duty to “nominate” a new justice to sit for a new term. And a new term must begin with a confirmation by election.

Here, although then-Associate Justice Guerrero did file a declaration of a candidacy, she withdrew it when she was nominated to become chief justice. That, says Ettinger, means Guerrero intended to let her associate justice term expire, meaning the governor needed to nominate a new justice to a new term.

Gov. Newsom, on the other hand, took the position that Justice Guerrero left a “vacancy” when she ascended to the Chief Justice seat, and vacancies are filled by “appointment,” not nomination.

Ettinger explains in depth in his At the Lectern post.?https://bit.ly/3ZtoswF

We also discuss the 1968 debacle over LBJ’s nomination of Fortas after Earl Warren announced his retirement, followed by the scandal over the destruction of the “Fortas papers” leading to the first and only filibuster of a SCOTUS nominee.

Should there be a norm against justices retiring in an election year, if only to avoid these dramas?

Watch the clip here:?https://lnkd.in/g3ct4WhE

This is a clip from episode 53 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gGUS4uci

Plan to Exclude an Expert Under Sargon? Don’t Forget Kelly

Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions.

The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23. 2022). The plaintiff recovered a $12 million verdict based in part on plaintiff’s expert’s novel opinion that fibrous talc causes cancer. The defendants argued that the broader consensus of experts did not agree with the plaintiff’s expert. So the defendants objected on the basis of Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.

But that was the wrong objection. The Court of Appeal noted that Sargon “does not speak to whether a theory has achieved a consensus in the field sufficient to render it "generally accept[ed].”” If the defendants wanted to object that the expert’s opinion was a novel theory not generally accepted within the relevant scientific community, “their motion to exclude did not challenge his testimony based on Kelly and its progeny.” So the objection was forfeited.

The Upshot: Don’t stop at Sargon! Sargon is not a substitute for objections to novel and not-generally-accepted scientific theories. For that, make sure to keep People v. Kelly in your expert-witness toolkit.

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

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

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?www.tvalaw.com/articles. Contact Tim at?[email protected]?or (714) 641-1232.

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