What to do when documents you designated for your record on appeal are accidentally omitted by the Superior Court clerk

Posted on June 15, 2012 by mary

If you designated material for your Record on Appeal, but find that it was accidentally omitted by the Superior Court clerk, you need to file a Notice in the Superior Court requesting inclusion of the material.

Rule 8.155(b) of the California Rules of Court provides:

(b)       Omissions

(1) If a clerk or reporter omits a required or designated portion of the record, a party may serve and file a notice in superior court specifying the omitted portion and requesting that it be prepared, certified, and sent to the reviewing court. The party must serve a copy of the notice on the reviewing court.

(2) The clerk or reporter must comply with a notice under (1) within 10 days after it is filed. If the clerk or reporter fails to comply, the party may serve and file a motion to augment under (a), attaching a copy of the notice.

The “notice” must be served on all parties and the appellate court, and must specify the omitted portions and request that they be prepared, certified and sent to the appellate court. If you want material added to the Record on Appeal that you did not include in your Designation of Record on Appeal, then you cannot use this method.

However, if the clerk fails to comply with the notice, you may then file a motion in the appellate court to augment the record under CRC 8.155(a). A copy of the notice that was filed in the superior court must be attached to the motion to augment.

Differences Between Discovery in California State Court and Federal Court: Hold on Discovery in Federal Court Until Parties Confer

Posted on May 15, 2012 by mary

The California Discovery Act allows a Plaintiff to serve written discovery on the defendant as soon as ten days after service of the summons and complaint. (See, e.g., Code of Civil Procedure § 2030.020 [interrogatories].) But if you find yourself in federal court, not so fast.

Absent leave from the District Court, you cannot propound written discovery or take any depositions until after the parties and court have participated in the mandatory FRCP 26(f) conference among counsel. FRCP 26(f) requires parties to confer “as soon as practicable”—and no later than 21 days before the first scheduling conference, which is normally 90 days after defendant’s appearance or 120 days after service. The parties must discuss their claims and defenses, possible settlement, a discovery plan, and required initial disclosures. Only after meeting and conferring can the parties begin taking discovery in the form of depositions, interrogatories, etc. Additionally, each party’s initial disclosures are due within 14 days after the Rule 26(f) early conference. (FRCP 26(a)(1)(C).)

In federal court, a party can obtain discovery before the FRCP 26(f) conference only by court order and for good cause. Expedited discovery may be appropriate, for example, where a party seeks injunctive relief or where physical evidence may be consumed or destroyed.

But a freelance or contract attorney costs more per hour than an associate!

Posted on May 1, 2012 by mary

You’ll know when you start to need a full-time associate attorney. You’ll also know what qualifications, experience, and level of writing you need from your associate. But the majority of attorneys are owners/sole practitioners or partners at small firms where having a good, full-time legal assistant or paralegal is more crucial than having an associate.  And that’s where freelance attorneys come in. The good ones may cost, in strict terms, more per hour than what a full-time associate may cost. But associates must be paid a fixed salary and benefits whether or not they’re billing enough to earn their keep. With associates right out of school, you are often paying them to learn on the job. A good freelance attorney is only paid when you have an overflow of high-level legal work that you can’t get to. If you can find a freelance attorney in your geographic area, you also have someone to cover your court appearances and depositions when you’re overscheduled or on vacation. Some freelance attorneys will even second chair trials.

There are other benefits to using a freelance attorney. As independent contractors, any payments you make to them are a tax-deductible business expense to you. Contract attorneys pay their own payroll taxes via the self-employment tax. With associates, you’re responsible for their payroll taxes.

Top-notch freelance attorneys are efficient researchers, experienced litigators, and excellent writers who can help you deliver outstanding results to your clients.

Appealing an administrative agency decision? Extend your time to file a Petition for Writ of Administrative Mandate by requesting the administrative record at the right time.

Posted on April 15, 2012 by mary

California Gov. Code § 11523 governs the time to seek judicial review of a variety of administrative decisions. (See, e.g., Fair Employment and Housing Com’n v. Superior Court (2004) 115 Cal.App.4th 629.) Section 11523 provides that a petition for a writ of mandate shall be filed within 30 days after the last day on which reconsideration can be ordered. California Gov. Code § 11521, subd. (a), in turn, provides that “[t]he power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30–day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration.”

Thus, in most cases, a Petitioner only has thirty days or a little more to file the Petition for Writ of Mandate after receiving the administrative agency’s decision. It can be very difficult to meet this deadline, especially for pro se litigants or litigants whose existing counsel do not handle writs and appeals.

And rarely will the Administrative Record be ready in a short 30-day period. However, if you are forced to file a Petition for Writ of Mandate in 30 days, you should file a supporting memorandum of points and authorities and clearly inform the Court, such as in a declaration, that you have requested the Administrative Record. The Court will ordinarily schedule a status conference at which it will inquire on the status of the preparation of the Administrative Record and at which it may also set a briefing schedule.

Fortunately, a Petitioner can greatly extend his or her time to file a Petition for Writ of Mandate. California Gov. Code § 11523 provides that by making a request to the administrative agency to prepare all or any part of the administrative record within 10 days after the last day on which reconsideration can be ordered, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her.

Accordingly, if you keep a close watch on the last day on which reconsideration can be ordered (Cal. Gov. Code § 11521, subd. (a)), and then make a request to the administrative agency for preparation of all or any part of the administrative record within ten days, you could potentially extend your time to file the Petition for Writ of Mandate by many months. This is because it usually takes a long time for an administrative agency to prepare the record. Exercise caution and use certified mail for your correspondence with the administrative agency.

Disclaimer: The above article is general, does not contain legal advice, and does not necessarily apply in your individual case.

Surprise! When your case gets removed to federal court and totally does not belong there.

Posted on March 15, 2012 by mary

California litigators who have never practiced in federal court, and who may not even be admitted in any federal court, can be caught off guard when unscrupulous opposing counsel removes a case to federal court on tenuous or frivolous grounds. Here are some of the steps needed to get the case remanded back to state court:

1.       Apply for admission to the U.S. District Court where the case has been removed.  Concurrently, you will need to register to electronically file through the District Court’s CM/ECF system. While admission in most courts is quick, you should call the Clerk to make sure you will be admitted before any deadline to file your motion to remand.

2.       Always read the Local Rules for the District Court where your case is now pending. Make sure you comply with any rules relating to motion calendaring, e-filing, formatting, etc.

3.       Prepare your motion to remand and electronically file it by the applicable deadline. If your motion to remand makes any argument based on defects in removal procedure, it must be filed within 30 days of the date the notice of removal was filed. (28 USC § 1447(c).)

4.       If your motion to remand is based only on lack of subject matter jurisdiction, it can be filed at any time before final judgment. (28 USC § 1447(c).) For any parties who did not join in the removal, you will need to serve them conventionally.

5.       If you believe that there is any merit to the removal, or to simply be cautious, you should preserve your right to a jury trial by filing a demand for jury trial in federal court as soon as possible. You do not need to re-file your complaint in federal court to do this.

6.       If there were no objectively reasonable grounds for the removal and you win your motion to remand, you can recover your attorneys’ fees and costs in bringing the motion. You can also, under Rule 11, ask that opposing counsel be sanctioned.

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