Thursday, March 1, 2018
LACBA Urges Depublication of C.A. Opinion
By a MetNews Staff Writer
The Los Angeles County Bar Association Board of Trustees has given the green light to its Amicus Briefs Committee to seek depublication by the California Supreme Court of a Jan. 9 opinion from the First District Court of Appeal which accused a defendant of appealing the denial of an anti-SLAPP motion, and securing extensions, solely for the purpose of the delay.
The opinion, in Central Valley Hospitalists v. Dignity Health, also faults the defendant for hiring an appellate law specialist rather than having its trial counsel handle the appeal. Justice James A. Richman of Div. Two wrote the opinion, joined by Presiding Justice J. Anthony Kline and Justice Therese M. Stewart.
Trustees voted unanimously on Tuesday night—except for one abstention—to authorize the requested action. It acted after hearing from Richard A. Rothschild, the committee chair.
Rothschild, who is director of litigation for the Western Center on Law & Poverty, explained that in the first 18½ pages of the slip opinion, the appealability of the denial of anti-SLAPP motions is criticized and the last 2½ pages are comprised of “Some Closing Observations.”
Those observations, he said, warrant depublication.
He noted that the appellant had obtained extensions from opposing counsel of 60 days within which to file the opening brief and 30 days to file the reply brief. Richman wrote:
“[W]e do not understand how 90 days of extensions in an anti-SLAPP appeal can be a manifestation of anything but delay.”
Rothschild told the trustees:
“The California Rules of Court say you can get the 60 days by stipulation and the Court of Appeal can’t even interfere with that. Speaking personally, I know in our office, I can’t remember an appeal where both our side and the other side didn’t take the 60 days, and gave each other the extension.”
The lawyer remarked:
“We think the practice is good. It promotes civility…and it promotes more thoughtful appellate briefs.”
Rothschild also complained that the opinion questions the need for counsel with expertise in appellate law. The appellate lawyer representing defendant Dignity Health was Barry S. Landsberg of Manatt, Phelps & Phillips, LLP.
Landsberg twice asked that the date set for oral argument be changed to accommodate his schedule.
In the Jan. 9 opinion, Richman wrote:
“[A]s to the continuance of oral argument, while it was based on the schedule of the attorney who signed the appellate briefs, he did not even participate below—he did not sign the papers, he did not argue the motion.”
“The suggestion was that there’s only one way to present an appeal, and that’s for people who participated in the trial court proceeding to do the appellate briefs.”
There is, he acknowledged, sometimes an advantage to that approach, but in other instances it is preferable to have an appellate lawyer do the work based on being more “objective and detached” and better knowing appellate procedures.
A third aspect of the opinion, he said, was “definitely troubling.” Richman recounted in the opinion:
“On August 11, 2017 the clerk of our court sent a letter to counsel advising that “the court, acting on its own motion, is considering the imposition of sanctions on appellant and or appellant’s counsel in case No. A148742 for taking an appeal that is frivolous or filed for purposes of delay.”
“On August 14 our clerk’s office received from Dignity Health’s counsel a request for dismissal. We did not file it.”
That wording, Rothschild said, “suggested that the threat of the sanction prompted the dropping of the appeal.”
Decision Already Made
In fact, he noted, an attorney for Dignity Health had previously advised the Clerk’s Office that it would be seeking to dismiss the appeal.
A docket entry on Aug. 11 made prior to the dispatch of the letter reflects a telephone conversation in which “Joanna McCallum, attorney for appellant” indicated she “intends on filing either a stipulation to dismiss or request for dismissal next week.”
(Richman’s opinion does quote from a letter from Landsberg to the California Supreme Court in which he asserted that the defendant believed the appeal was meritorious up until the state high court issued an opinion putting the matter in different light, prompting the decision to contact the Court of Appeal to announce an intention of dismissing the appeal. However, it is not spelled out that the Landsberg’s announcement preceded receipt of the Clerk’s Office’s letter telling of the prospect of sanctions being awarded. Sanctions were, in the end, not awarded because the plaintiff did not accept the opportunity to argue in support of that action.)
The failure to note the chronology, Rothschild charged, was a “material omission” but, he allowed, “It was probably inadvertent.”
However, after the misimpression created by the opinion was pointed out in a petition for rehearing and in a letter from the California Academy of Appellate Lawyers, Rothschild said, “the court didn’t change its opinion.”
Trustee Bradley S. Pauley, partner in a leading appellate law firm, Horvitz & Levy LLP, said the First District’s opinion has “sent a minor shockwave” within the appellate law community.
Pauley, immediate past chair of LACBA’s Appellate Law Section, noted the section’s intense concern over the opinion.
Extensions of time to file briefs, he advised, “are so common that I can’t imagine the last time that I haven’t entered into a stipulation for extension of time in a normal case”—noting that certain cases, such as those involving writs, might entail a special urgency for a resolution.
“To criticize the retention of appellate counsel as an invitation to delay is deeply troubling because there are good reasons to retain appellate counsel.”
Pauley commented that it is “strange” that the State Bar certifies lawyers as specialists in appellate law while a Court of Appeal panel questions the need for a litigant on appeal to turn to someone versed in that field for representation.
Trustee Marc Sallus, who primarily practices probate law, noted that he also handles appeals in that area. He observed that the first part of the opinion, questioning the right of immediate appeal from the denial of an anti-SLAPP motion, is “repetitive” of comments in other Court of Appeal decisions, and that the last part is “mean-spirited.”
He noted that in urging depublication, LACBA would not be criticizing justices sitting in Los Angeles.
In other actions, the board confirmed LACBA President Michael E. Meyer’s appointment of Ann Park of Pond North LLP to a vacancy on the board and approved the appointment of Christopher Noyes, of Kabateck’s firm, to the board of LACBA’s charity arm, Counsel for Justice.
Won’t Get Contract
Chief Financial Officer Bruce Berra reported that LACBA’s bid to take over the Los Angeles County’s “Self-Help Legal Access Center Program” at courthouses, assisting pro pers, has failed. Although LACBA’s response to the “request for proposals” had met with initial favor, Berra said that in subsequent negotiations, its “best and final offer” had just been rejected.
Kabateck said that what the county “really wanted us to do was to lose money or to make no money on this.”
A contract to conduct the program has not yet been awarded by the county’s Department of Consumer and Business Affairs but it is assumed that Neighborhood Legal Services, the current contract, will receive the award.
Meyer, Kabateck, and the other officers have vowed to reverse policies that had caused LACBA to lose about $1 million a year.
LACBA Shows a Profit For 2017
The Los Angeles County Bar Association is now in the black, according to a report by its chief financial officer, Bruce Berra.
Berra advised members of the Board of Trustees at their monthly meeting Tuesday night that for the year ending Dec. 31, LACBA had net excess revenues of $89,686—and, when interest and dividends from investments are added, the sum comes to $575,364.
The report for the 12 months ending Dec. 31, 2016, showed a deficit of $1,058,186 before interest and dividends were added and $1,033,741 after they were taken into account.
Berra said the figures for 2017 take into account a reduction in the amount paid in salaries (Chief Executive Officer Sally Suchil, who resigned effective Jan. 13, 2017, was making $322,673 a year) and the receipt of cy pres awards.
A reform movement within LACBA began in November 2015, in reaction to fiscal practices of Suchil and then-President Paul Kiesel. Candidates calling for restraint in spending were elected to officer and trustee seats in 2016 and last year, with all current officers and most trustees being aligned with the movement.
President Michael E. Meyer ran for the post of president-elect in 2016—in the first contested election in 25 years—with fiscal responsibility being the first goal in his platform (and an end to secrecy within the organization being the second).
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