Metropolitan News-Enterprise

 

Wednesday, August 15, 2018

 

Page 3

 

Justice Moore Provides ‘Don’ts’ in Drafting Appellate Briefs

 

Court of Appeal Justice Eileen Moore of the Fourth District’s Div. Three has provided instruction on what not to do in an appellate brief. Her teaching came Monday in an opinion that was not certified for publication. The opinion affirms Orange Superior Court Judge Linda S. Marks’s judgment notwithstanding the verdict in an employment case, which leaves plaintiff Joseph Mora with no recovery. Before discussing, and rejecting, challenges to Marks’s rulings by Mora’s lawyer, Janeen Carlberg of Santa Ana, Moore commented:

 

JANEEN CARLBERG

Santa Ana attorney

Before we begin, we must note some rather significant problems with Mora’s briefs, as these issues impact how we approach the facts of this case, as well as Mora’s arguments. Mora’s joint appellant’s reply brief and cross-respondent’s brief is 67 pages long. It does not include a single citation to the record. This is entirely improper. It violates California Rules of Court, rule 8.204(a)(1)(C), which states a party must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” We are “not required to search the record...seeking error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Thus, “[i]f a party fails to support an argument with the necessary citations to the record,...the argument [will be] deemed to have been waived. [Citation.]” (Duarte v. China Community Hospital (1999) 72 Cal.App.4th 849, 856; see Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.)

Mora and his counsel cannot claim they are only now learning of this error; Spectrum raised this issue at the beginning of its cross-appellant’s reply brief. Rather than recognizing the problem and seeking leave of this court to amend the brief (which would have been granted if requested in a timely manner), no action was taken. Accordingly, we disregard and deem waived any part of Mora’s reply and cross-respondent’s brief that is dependent on facts not supported by record citations, which is nearly all of it.

In addition, Mora’s opening brief frequently fails to include record references, particularly when stating a “fact” that would be entirely beneficial to him and detrimental to Spectrum. For example, the first paragraph of his statement of facts states: “During his employment at [Spectrum], Mr. Mora was a superior employee.” In the next paragraph, he characterizes his supervisor as “a person who did not allow employees to take time off of work for any reason, including legally protected leaves of absences.” We disregard all such statements that are not supported by record references. Counsel is also reminded that citing to the page number of a multivolume record is insufficient. Citations are required to include the volume number as well. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)

Finally, in addition to the other problems with Mora’s briefs, they persistently refer to the court as “she,” “her,” and “herself” rather than “the court.” Counsel is cautioned that the court is the court, and nothing else. The proper pronoun for the court is “it.” Mora’s briefs also refer to the court as having “claimed” or “argued” certain points. The court does neither. It issues rulings. Counsel further states “this trial court went on to contort the law with a bizarre ruling” and “the trial court really seemed to struggle to formulate a coherent ruling.” Counsel is admonished in the strongest possible terms that showing at least a modicum of respect toward the court is a professional responsibility. Further, attempting to blame the court for everything that went wrong during a case is patently unpersuasive.

 

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