Ever since the Great Recession ushered in drastic cuts to state-court budgets, litigators have grown accustomed to the absence of court reporters in California courts. For trials and potentially dispositive motion hearings (and for all court hearings in unusually significant matters) lawyers have learned to arrange for their own court reporters, in order to make a complete record for appeals. This is an inconvenience for practicing lawyers and a regrettable expense for their clients. For indigent litigants, however, it can effectively imperil the right to appeal, as the California Supreme Court recently held.
California practitioners generally know that they cannot cite or rely upon unpublished or depublished California opinions in California courts, except when relevant to law of the case, res judicata, etc. (Cal. Rules of Court, Rule 8.1115(a).) Violations of the “no-citation rule” can even be sanctionable. (People v. Williams (2009) 176 Cal.App.4th 1521, 1529; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885-886.)
Recently, though, there has been an underground debate as to whether the judicial notice statute, Evid. Code, § 452(d)(1), might trump Rule 8.1115. (See Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 218, fn. 14; Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions (2011) 62 Hastings L.J. 1397; Scott Talkov, Citing Unpublished Opinions: The Conflict Between the No-Citation Rule and Judicial Notice, California Litigation Attorney Blog.)
While Code of Civil Procedure section 425.16 is alive and well in state courts, the statute may be on its way out in federal diversity cases in the Ninth Circuit. A very recent opinion from that court calls for en banc review, ostensibly to rule that no immediate appeal is available from the denial of an anti-SLAPP motion. But as anyone familiar with the Ninth Circuit’s treatment of California’s anti-SLAPP statute knows, there is a movement afoot to rule that this creature of state procedure has no place at all in federal court. Will California’s anti-SLAPP statute survive?
The recent decision of the California Court of Appeal, Second District in Saheli v. White Memorial Medical Center (2018) 21 Cal.App.5th 308, proves again the point that what is stated in your contractual arbitration clause matters. While it may seem axiomatic that words matter, in reality business law scribes generally spend less time on crafting arbitration clauses than the business terms of an agreement.
As the California Supreme Court has recognized, amici curiae can play a “valuable role” in litigation. (Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1177.) “[B]ecause they are nonparties who often have a different perspective from the principal litigants[,]” their arguments “enrich[ ] the judicial decision-making process.” (Ibid.) Amicus filings are on the rise, and not just in the U.S. Supreme Court. However, with this increased volume has come an increased number of unhelpful and poorly written briefs. Governing court rules reflect this concern. For example, the U.S. Supreme Court advises:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
(S. Ct. Rule 37.1.) Likewise, in California, amicus briefs must “assist the court in deciding the matter.” (Cal. Rules of Court, rules 8.200(c)(2) & 8.520(f)(3).) So, the question becomes how, in more practical terms, amici can help shape important decisions, aiding courts, rather than burdening them.
The California Rules of Court allow superior courts to use a tentative ruling procedure in law and motion matters. (See CRC 3.1308.) Many attorneys assume that they must contest an adverse tentative ruling to preserve their objections for appeal. While there may be good reasons to contest, it is not necessarily mandatory.
It is not “invited error” to submit on a tentative ruling. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401 (“Mundy”); see Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs ¶ 8:248.12 (“Rutter”).) The doctrine of invited error is based on a principle of estoppel; it “prevents a party from misleading the trial court and then profiting therefrom in the appellate court.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) But so long as a litigant asserts an issue in the trial court and does not actively invite error, the issue is preserved for appeal. (Mundy, supra, 203 Cal.App.4th at pp. 1405-1406; Rutter, supra, ¶ 8:248.12.)
The ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.
As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.