Category Archives: Appeals

Peder Batalden is our Latest Featured Speaker!

Posted on by Faith Pincus
07 Jul

Our latest featured speaker is Peder Batalden from Horvitz & Levy!

Peder will be speaking at our upcoming 9th Circuit Court of Appeals Boot Camp: The Nuts and Bolts Webinar on September 26 & 28. He most recently spoke at our 8th Annual Advanced Appellate Practice Seminar in California and was praised by the attendees for his knowledge and insight.  He also spoke at our 2021 9th Circuit Court of Appeals Boot Camp to rave reviews.

We’re excited to have you with us again, Peder!

Peder is a partner at Horvitz & Levy. He has successfully petitioned for review in the U.S. Supreme Court, and he has argued and won numerous appeals in the U.S. Courts of Appeals for the Ninth and Tenth Circuits. He routinely assists clients in responding to large money judgments, drawing upon a deep knowledge of federal jurisdiction and procedure to assist in staying enforcement of judgments and preparing post-trial motions so that issues for appeal are not lost.

Additionally, Peder is co-author of the leading treatise on civil appeals before the Ninth Circuit, the Rutter Group’s Ninth Circuit Civil Appellate Practice. Because Peder is speaking at our 9th Circuit program, along with co-author John Querio, the Rutter Group will give attendees at that program 40% off the Guide.  Attendees will learn how to take advantage of this discount during the program.

He is also a past Chair of the State Bar of California’s Standing Committee on the Federal Courts, which works to enhance bench-bar relations and studies proposed changes to federal rules. He also routinely comments on proposed amendments to the Federal Rules of Appellate Procedure and to the Ninth Circuit rules.

Throughout his career, Peder has represented many significant companies, including AutoNation, Bank of America, Chevron, Ford Motor Company, Honeywell, Hospital Corporation of America, Lyft, Media News Group, The Sherwin-Williams Company, Newell Brands, Sempra Energy, TASER International, Travelers, and Toyota Motor Sales. He has also represented government entities and employees in federal civil rights actions; major medical providers in healthcare matters; and insurers in coverage actions.

Thank you for joining us again, Peder!

Stays, Bonding and Supersedeas in California: The Trial Court Just Ruled – Now What?

Posted on by Faith Pincus
12 Dec

by Pablo Drobny, recently retired Lead Appellate Court Attorney from the California Court of Appeal, Second Appellate District

I.  If the order or judgment is not appealable.

A.  If you are the losing side, consider a traditional writ petition.

B.  If you are winning side, remember an improper appeal does not stay enforcement of the order.

II.  When the judgment or order is immediately appealable, before a notice of appeal is filed:

A.  Review the statutes concerning stays and bonding on appeal to determine which provisions apply to your case.

i.  If more than one applies, see CCP §917.6.

B.  If you are the losing side, consider asking for a discretionary 10 day stay from the trial court (CCP §918).

C.  If you are the losing side, and you are indigent, make a motion under  CCP §995.240.

D.  If you are the winning side, consider asking the trial court to require a bond or undertaking (CCP §917.9.) even where the statute doesn’t require it.

III. Where CCP §916 applies, is the judgment stayed?

(See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal. App. 5th 872.)

A.  Filing of a notice of appeal does NOT stay a mandatory injunction.

B.  Filing of a notice of appeal does NOT stay matters not embraced in the judgment or affected thereby.

IV.  When to petition for a writ of supersedeas — CCP §923.

A.  When a bond is required but you cannot post one.

i.  Only if you first requested waiver in the trial court.

B.  When respondent and the trial court refuse to acknowledge a statutory stay — automatic or otherwise.

C.  When appellant wrongly insists there is an automatic stay.

D.  When the trial court denied a motion for a discretionary bond.

Pablo has spoken at every one of our appellate and writ seminars held in Los Angeles, since 2007. He’s the best – and one of the best rated speakers of all time! You can find some of his programs here:

Appellate Law Bundle

1st Annual Advanced Appellate Conference [Civil]

2nd Annual Appellate Conference

3rd Annual Advanced Conference

Demystifying Civil Appeals and Writs

Or you can just go to our audio page and search on “Appellate” as the keyword and California as the location.

Statements of Decision: The Ideal and the Reality

Posted on by Faith Pincus
14 Nov

by T. Peter Pierce, Esq., of Richards, Watson & Gershon

In 2018, we held our annual 3rd Advanced Appellate Conference program. One of our speakers, T. Peter Pierce, spoke about Statements of Decision: The Ideal and the Reality at that program, along with the Hon. Kathleen Banke, Associate Justice, CA Court of Appeal, 1st Appellate District, Division One. Peter has spoken at all of our appellate programs, including our 1st and 2nd Annual Advanced Appellate Conferences. And Peter came back for our 4th Annual Advanced Appellate Conference as well. Justice Banke spoke at our 3rd Annual and 4th Annual program in San Francisco and this year’s 5th Annual Appellate Seminar.

Limited time offer for our blog readers: Take 50% off any of the above conference recordings (with code SOD50) or 20% off of our Statements of Decision audio package (20SOD). Bundles excluded.

Both Peter and Justice Banke are fantastic speakers, as our attendees note every time they see Peter and Justice Banke speak.

We wanted to share with you some of their discussion, rules and cases they mentioned that you need to know about, and tips regarding Statements of Decision. And be sure to read all the way to the bottom to get to their list of strategies to employ.

A.     Applicable Circumstances for a Statement of Decision
– Trial court MUST issue a tentative decision on “the trial of a question of fact by the court.” (Cal. Rule Court (CRC) 3.1590.)
– Trial court MAY issue Statement of Decision on “the trial of a question of fact by the court.”  (CCP section 632.)  Must issue under certain circumstances (see below).
– Scope of “trial of a question of fact by the court.”  Does it apply to law and motion or other matters?

B.      Timing and Procedure Intertwined
1.  If trial is concluded within one calendar day or less than eight hours spread over more than one day, a party must request a Statement of Decision before the case is submitted for decision. Failure to do so means the loss of any right to a Statement of Decision, although a court may still issue one at its discretion. (CCP 632.)
2.  Regardless of length of trial, the trial court is required to issue a tentative decision. 
a.      If the trial court opts to announce a tentative decision orally, it must announce it in open court in the presence of all parties appearing at trial (CRC 3.1590(a)).  If the trial is concluded within one calendar day, or lasted less than eight hours, a party is not entitled to a written Statement of Decision.  Under CCP section 632, the trial court may issue an oral Statement of Decision.
b.      If the trial court does not announce its tentative decision in open court with all parties present, it must serve all parties with a minute order or written tentative decision.
         3.      Four specified options for a tentative decision are:
  Option 1- Court states that tentative decision is its proposed Statement of Decision (CRC 3.1590(c)(1)).
Issue: Does a party have 10 days after announcement or service of tentative decision to request that the Statement of Decision be modified to include certain issues (CRC 3.1590(d)), or does a party have 15 days under CRC 3.1590(g) to serve and file objections? Probably the latter because CRC 3.1590(c)(1) expressly refers to subdivision (g).
  Option 2- Court states it will prepare a Statement of Decision  (CRC 3.1590(c)(2)).  A party may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues. (CRC 3.1590(d)).  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)  Court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
   Option 3- Court orders a party to prepare a Statement of Decision (CRC 3.1590(c)(3)).  A party not ordered to prepare a Statement of Decision may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues.  (CRC 3.1590(d).)  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)
Option 4- Court directs that the tentative decision will become the Statement of Decision unless within 10 days a party (1) specifies the issues it requests be included in the Statement of Decision, or (2) “makes proposals” not included in the tentative decision (CRC 3.1590(c)(4)).  If a party does so, the court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
         4. The four options in the rule are not exclusive; the rule is phrased in the permissive “may.”  The court could do something else, like send out a written tentative decision without any further direction to the parties.
         Permissive language is consistent with the rule that a Statement of Decision is not required unless the parties request it.  If a Statement of Decision is timely requested and not waived, the trial court must render a Statement of Decision (Karlsen v. Superior Court(2006) 139 Cal.App.4th 1526, 1530-1531).  CCP section 632 requires the trial court to issue a Statement of Decision upon the request of any party if made within 10 days after the court announces a tentative decision (with exception of shorter trial where request must be made before submission of case).
Where the court did not designate either party to prepare a Statement of Decision, by default, and by analogy to California Rules of Court, rule 232(c) [predecessor to Rule 3.1590(c)], the court is required to prepare it.  (In re Marriage of Sellers(2003) 110 Cal.App.4th 1007, 1010–1011.)
        5.     Failure to issue a Statement of Decision in response to a timely request is not per se reversible error.  Instead, the failure is subject to harmless error review.  (F.P. v. Monier (November 27, 2017).)

C.      Elements of Statement of Decision
“A statement of decision explains the factual and legal bases for the trial court’s decision in a nonjury trial.” (Uzyel v. Kadisha(2010) 188 Cal.App.4th 866, 896.)

To comply with a request for a Statement of Decision, a court need only fairly disclose its determinations as to the ultimate facts and material issues in the case. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) When this rule is applied, the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary factsand from legal conclusions. (Metis Development LLC v. Bohacek(2011) 199 Cal.App.4th 748, 758.)

The trial court is not required to respond point by point to the issues posed in a request for Statement of Decision. The court’s Statement of Decisionis sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.  (Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 494-495, 497-500; Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1379–1380.)

A Statement of Decisionneed not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.  (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1124.)

D.     Omissions or Ambiguities in the Proposed Statement of Decision
If a party fails to bring omissions or ambiguities in the proposed Statement of Decision’sfactual findings to the trial court’s attention, that party waives the right to assert on appeal that the Statement of Decision is deficient. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.)  The doctrine of implied findings would then apply if the statement truly contained ambiguities or omissions.

Ordinarily, when the court’s Statement of Decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. (Ermoian v. Desert Hospital(2007) 152 Cal. App. 4th 475, 494-495.)

If the Statement of Decision fails to decide a controverted issue or is ambiguous, any party may bring the omission or ambiguity to the trial court’s attention either before the entry of judgmentor in conjunction with a new trial motion or a motion to vacate the judgment under Code of Civil Procedure section 663. (CCP § 634.)  If an omission or ambiguity is brought to the trial court’s attention, the reviewing court will not infer findings or resolve an ambiguity in favor of the prevailing party on that issue. (CCP § 634.)

If an omission is not brought to the trial court’s attention as provided under the statute, however, the reviewing court will resolve the omission by inferring findings in favor of the prevailing party on that issue.If an ambiguity is not brought to the trial court’s attention as provided under the statute, the reviewing court will resolve the ambiguity by inferring that the trial court decided in favor of the prevailing party on that issue. (Code Civ. Proc., § 634.) To bring an omission or ambiguity to the trial court’s attention for purposes of Code of Civil Procedure section 634, a party must identify the defect with sufficient particularity to allow the court to correct the defect.  (Uzyel v. Kadisha(2010) 188 Cal. App. 4th 866, 896-897; Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135,139 [objections must be filed 15 days after proposed decision].)

In rendering a Statement of Decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts.  The trial court need not discuss each issue listed in a party’s request for a Statement of Decision; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530; Hellman v. La Cumbre Golf & Country Club(1992) 6 Cal.App.4th 1224, 1230; Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 824–827.)  Only when the trial court fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.  If the judgment is otherwise supported, the omission of findings is harmless error unless the evidence is sufficient to sustain a finding in the losing party’s favor which finding would completely undermine findings supporting the judgment. A failure to make findings on an immaterial issue is not reversible error.

E.      Objections to a Proposed Statement of Decision
Any defects in the trial court’s Statement of Decisionmust be brought to the court’s attention through specific objectionsto the statement itself – not through a proposed alternative Statement of Decision. By filing specific objections to the court’s Statement of Decisiona party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous. A proposed alternative Statement of Decisiondoes not serve these functions and does not satisfy the requirements of Code of Civil Procedure section 634 and Rule 3.1590. (Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1380; Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135,139–140; Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 497-500;Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-61.)

F.      Interplay Between Statement of Decision and Judgment
A court may amend its Statement of Decisionafter it receives objections from affected parties. If judgment has not yet been entered, the trial court has inherent power to amend its Statement of Decision to award prejudgment interest. Even after a court has issued a written decision, the court retains authority to change its findings of fact or conclusions of law until judgment is entered. Until a judgment is entered, a Statement of Decision is not effectual for any purpose (Code Civ. Proc., § 664).  A court sitting as a trier of fact may at any time before entry of judgment amend or change its findings of fact.  (Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135, 141.)

A Statement or Decision or memorandum of decision is not appealable. Courts embody their final rulings not in Statements of Decision but in orders or judgments. Reviewing courts have discretion to treat Statements of Decision as appealable when they must, as when a Statement of Decision is signed and filed and does, in fact, constitute the court’s final decision on the merits. But a Statement of Decision is not treated as appealable when a formal order or judgment follows. (Pangilinan v. Palisoc(2014) 227 Cal.App.4th 765, 769; Alan v. American Honda Motor Co., Inc.(2007) 40 Cal.4th 894, 901.)

G.     Strategies Involving Statement of Decision
–        If the tentative decision is in your favor, do not request a Statement of Decision.
–        If the tentative decision is against you, timely request a Statement of Decision.  Possible exception when de novo standard of review.
–        If you lose on the tentative, identify alternative theories that the trial court did not decide, and request an express statement that the trial court did not reach the issues encompassed within those theories.
–        Be judicious in objecting to Statement of Decision.  Focus on broader issues and not on every minor point.
–        If you are the prevailing party, and the losing party objects to the Statement of Decision, think carefully about whether the objections will allow the trial court to clear up ambiguities and omissions, thereby bolstering the judgment in your favor.
–        If you are required to request a Statement of Decision before the case is submitted, make an educated guess as to whether you will be the prevailing party.

 

 

Administrative Writ of Mandamus – What is it?

Posted on by Faith Pincus
07 Nov

by Charles L. Post, Esq. and Eunice C. Majam-Simpson, Esq.

For our latest Writs of Administrative Mandamus course, held in September 2020, please click here.

In 2017, we held a terrific program on Administrative Writs of Mandamus. Two of our speakers, Charles L. Post, Esq. and Eunice C. Majam-Simpson, Esq., created this terrific outline highlighting the things you need to know about what an Administrative Writ of Mandamus is and the process surrounding it.

If you are interested in knowing more about Administrative Hearings, we held a program on hearings two years ago. You can find out more about that program here. Our audio packages include all materials distributed at the program, and the PowerPoints.

Administrative Writ of Mandamus – What is it?

A.  What is it?

  1.  A method of obtaining judicial review of agency (public and private) decisions and actions.

B.  Two Types

1.  “Administrative Mandamus” under CCP §1094.5 et seq.

2.  “Traditional” or “Ordinary” Mandamus Pursuant to CCP §1084

C.  Uses and Prerequisites

1.  Challenge of an agency’s adjudicatory decision (a decision that concerns private rights or interests, when a hearing is required by law to be given before the agency that issues the decision).

2.  Prerequisites

–  Final agency decision

–  The decision resulted from a proceeding which was required by law

–  Evidence was required to be taken

–  Discretion in factual determinations is vested within the agency

–  “Agency” can mean both governmental and private organizations

D.  Goal of Administrative Mandamus Review

1.  To obtain a writ (an order from the Court) to a lower tribunal (the agency) directing the agency to set aside its decision, to reconsider its decision, or take such other action as the Court directs. (CCP §1094.5(f).)

2.  Special Proceedings

–  CEQA (Public Resources Code § 21165.7)

–  Traditional Mandamus (CCP §§ 1084-1097, 1107-1110(b))

E.  Features of Administrative Mandamus

1.  Administrative mandamus is a civil, special proceeding. (CCP § 23-63)

2.  Administrative mandate is a judicial review but it is not a reconsideration of the agency decision. There are some agency decisions that by statute or case law are judicially reviewed at the appellate level. (Public Utilities Commission, Department of Alcoholic Beverage Control, State Bar, etc.)

3.  Equity applies in administrative mandamus. Curtain v. DMV (1981) 123 Cal.App.3d 481, 484.

4.  Speedy proceeding. Mandate hearings usually occur within weeks or months of a filing. Local court rules may specifically control the filing of an administrative mandamus (departments which may hear, other rules, etc.).

5.  No damages. In very narrow circumstances, a separate, later action for damages may be instituted. O’Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 729.

6.  No jury. Administrative mandamus is heard by the Court. CCP §1094.5(a).

7.  Administrative exhaustion required before judicial review is available by administrative mandamus.

8.  A court considering a writ of administrative mandamus conducts a limited trial de novo, reviewing the administrative proceedings and the evidence admitted during the hearing. A court may inquire into whether the agency acted in excess of its jurisdiction, committed a serious error of law, or abused its discretion in determining of facts. CCP §1094.5(b)-(c).

9.  Understand the standard of review. “Substantial evidence” or “independent judgment”.

10.  Petitioner has the burden of proof. “Rarely if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.” Fukuda v. City of Angels (1999) 20 Cal.4th 805, 814.

11.  New evidence not admissible. (Yes, there are exceptions but they are few and far between. More on this later.)

12.  “Discovery” as that term is used in the Civil Code as to civil proceedings is not available in the usual administrative mandate proceedings. (Yes, there are exceptions. More on this later.)

13.  Presumption that the administrative decision is correct.

14.  Prevailing party obtains costs, including administrative record preparation costs, and other costs of suit.

15.  Attorney’s fees not usually available. (Yes, there are exceptions. More on this later.)

16.  Generally no joinder with other causes of action. (No addition of declaratory relief, etc.) Allowed when cases of unconstitutionality declarations or applications for traditional mandamus (especially useful when uncertain as to which type of writ should be sought).

17.  A hearing on a petition for writ of administrative mandamus proceeds like a law and motion matter but the result of the judgment. CCP §1094.5(a), (f). This hearing, therefore is the only “trial” in an administrative mandamus action. Unlike other types of trials, no witnesses testify, and with certain limited exceptions, the only evidence the Court can consider is the evidence in the administrative record.

F.  Judicial Review of What?

1.  Governmental agency decisions. Although there are a few statutory exceptions, proceedings under CCP §1094.5 are the exclusive remedy for challenging the final adjudicatory decision of a state or local government agency when the decision is the result of a required evidentiary hearing. The list of qualifying decisions is long: professional license denial, licensed disciplinary proceedings, employee discipline imposed by a state or local public employers, termination of tenured teachers, driver’s license decisions, denial of disability retirement benefits, and many zoning and land use decisions.

2.  Adjudicatory decisions of private organizations. Any private organization that by bylaws or due to internal rules must hold a hearing and reach an adjudicatory decision may be submitted to administrative writ review. Hospital privilege decisions, internal insurer decisions regarding fees that will be charged by participating practitioners, private company decisions to terminate or discipline employees under a grievance procedure that requires evidence to be taken and considered during a hearing and union decisions.

G.  How is this different from traditional Mandamus?

1.  Traditional writ of mandate under CCP §1085 is appropriate when the Petitioner has no plain, speedy, and adequate alternative remedy and the Respondent has a clear, present and usually ministerial duty to act.

2.  Traditional mandamus may also apply when an administrative agency is not required to hold an evidentiary hearing.

3.  Quasi-legislative acts may also be reviewed on traditional mandate.

H.  Objections to Evidence.

1.  Offering Evidence. A party may lose the opportunity to raise on writ of administrative mandamus by failing to raise the issue in the administrative hearing. This rule also applies to defenses that require an evidentiary showing. Jenron Corp. v. Dept. of Social Services (1997) 54 Cal.App.4th 1429, 1437 (failure to raise laches defense in administrative hearing waives the issues in subsequent administrative mandamus proceeding).

2.  A party must object to the admission of evidence at the administrative hearing, otherwise the evidentiary objection will be deemed waived. Hand v. Board of Examiners (1977) 66 Cal.App.3d 605, 613.

a.  Hearsay evidence in administrative proceedings. Important differences from civil proceedings. Hearsay is generally admissible to supplement or explain other evidence in administrative proceedings, as long as it is both relevant and is “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” Gov’t. Code § 11513(c). Specific rules applicable to a given administrative proceeding may further limit or permit the use of hearsay. Know your rules.

b.  Hearsay objections must be made at the hearing. At risk of waiving issue in later judicial review.

c.  Exceptions

(1)      Lack of subject matter jurisdiction.

(2)      Failure to state a cause of action.

(3)      Constitutional issues.

d.  These issues may be raised at any time. Don’t rely on an exception. All things being equal, it is better to object than not object. Consider use of wholesale “throughout this proceeding” objections. Often the administrative hearing officer will prefer such “global” objections rather than forcing him or her to rule on each individual objection. This time saving technique, however, can have pitfalls. Make sure that the stipulation that all objections have been made and preserved is on the record.

I.  The Record

1.  The standard applies whether the Court is considering the writ under the independent judgment test or the substantial evidence test. This is also true when the Court is deciding a purely legal issue.

2.  CCP §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when: (1) the evidence could not, with due diligence, have been procedure during the administrative proceedings; or (2) the administrative body improperly excluded the evidence. Western States Petroleum Assoc. v. Superior Court (1995) 9 Cal.4th 559, 578.

3.  Evidence outside the administrative record might also be appropriately considered on issues not related to the validity of the decision being challenged such as standing and capacity to sue; affirmative defenses such as laches, estoppel and res judicata and the accuracy of the record. Western States, supra, 9 Cal.4th at 578.

4.  Sufficient record is essential to meet Petitioner’s burden. Eureka Citizens for Responsible Government v. City of Eureka. That said, in cases where the issues is purely legal and base on undisputed facts, a full record may not be necessary. Elizabeth D. v. Zolin (1993) 21 Cal.4th 347, 353.

5.  When to make the request. The record may be requested before filing, at the time of filing, or shortly after filing a petition. The Respondent agency may begin preparing the record as soon as the petition has been filed. However, this is a statutory and regulatory driven process. Petitioner should ascertain whether a particular statutory or regulatory scheme includes any special requirements concerning when the record must be requested.

6.  Make request in writing.

7.  Laches, burden of proof, res judicata, estoppel, validity of regulations, duress and necessity. May be supported by evidence outside the record.

8.  Bias charges.

a.  Raising the issue.

b.  Constitutional due process requires a competent and impartial tribunal in administrative hearings. The issue of bias must be raised at the administrative hearing. In APA Act cases, claim of prejudice must be raised under the procedures of Government Code § 11512(c) or the issue will be waived. Less stringent standard of impartiality than allowed for a hearing for judges in a civil matter. “The fact that an administrative agency is both accuser and judge is not considered to deprive the accused of due process of law.” Hallot v. Superior Court (1992) 3 Cal.App.4th 1575.

9.  Statute of limitation issues. In cases governed under CCP §1094.6 and the Administrative Procedures Act, request for preparation of the administrative record within 10 days after the date of the administrative decision being challenged, the applicable statute of limitations will be tolled until 30 days after the record has been delivered or mailed to the Petitioner. CCP §1094.6(d).

J.  BEWARE! Know your statutes.

1.  Different statutes have different statute of limitations and time limits.

2.  Preparation of the record can take months, certain time lines apply.

 K.  Record Preparation.

1.  The Petitioner has the burden of proof and bears the burden and the cost of preparing and producing the administrative record. CCP §1094.5(a), CCP §1094.6(c).

2.  This cost may be recoverable if the Petitioner prevails.

3.  Agencies are required to prepare and produce a record.

Sidney Tribe is our Latest Featured Speaker!

Posted on by Faith Pincus
Sidney
05 Jul

Our latest featured speaker is Sidney Tribe from Talmadge/Fitzpatrick/Tribe! Sidney will be returning to speak at our upcoming 3rd Annual Advanced Appellate conference in Seattle on September 14th. Sidney has previously spoken for us at our 1st Advanced Appellate conference in Seattle as well as our Legal Editing seminar. She received excellent evaluations from attendees at both seminars, and we are thrilled to have her back!

Sidney is currently a partner at Talmadge/Fitzpatrick/Tribe. She grew up in Spokane and Seattle, and graduated magna cum laude from Willamette University in 1994 with a B.A. in English Literature. At Willamette she was a G. Herbert Smith Scholar and two-time recipient of the Dona Adams Rothwell Award. She received her J.D. from the University of Washington in 2002, where she was Executive Articles Editor of the Washington Law Review and President of the Moot Court Honor Board. She is also a member of the Order of the Barristers.

Sidney was fortunate to serve as a law clerk for the Honorable William Baker at the Washington State Court of Appeals Division I from 2005 to 2007. From 2007 to 2014, she was an associate at Talmadge/Fitzpatrick focusing primarily on appellate practice. In January2015, she became a partner. Some notable published opinions include Frisino v. Seattle School Dist. No. 1, — Wn. App. —-, 2011 WL 989416 (2011), Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010), South Tacoma Way, LLC v. State, 169 Wn.2d 118, 233 P.3d 871 (2010), Little Mountain Estates Tenants Ass’n v. Little Mountain Estates MHC LLC, 169 Wn.2d 265, 236 P.3d 193 (2010), Shafer v. Dep’t of Labor & Indus., 166 Wn.2d 710, 213 P.3d 591 (2009), and Seymour v. Wash. State Dept. of Health, 152 Wn. App. 156, 216 P.3d 1039 (2009).

Sidney is a member of the Washington State Bar Association, the King County Bar Association, the Washington Employment Lawyers Association, and Washington Women Lawyers. She has done pro bono work for the Unemployment Law Project, the King County Bar Association Newcomer’s Project, and the Ninth Circuit Court of Appeals Pro Bono Program. She has also been a Director at Facing the Future, a nonprofit that helps teachers integrate global issues into their core curriculum. Sidney’s incredible husband Mick is a geographer/GIS business analyst, and they have two adorable dogs, Tazzy and Jake.

Robin Meadow is our Newest Featured Speaker

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Robin Meadow of Greines, Martin, Stein & Richland LLP is our latest Featured Speaker!

Robin first spoke at one of our appellate seminars in 2008 and has been a regular ever since. Seminar attendees continually rave about his teaching style and the excellent handouts he provides.

In addition to being a Certified Appellate Specialist, Robin is also well-versed in the use of technology during an appeal. Attendees always appreciate his discussion about technology during our seminars. Robin has spoken at The Complete Appeal and the Advanced Appellate Roundtable multiple times. Coming up in January, Robin will be at our Third Annual Advanced Appellate Conference, where he has spoken each year.

Robin Meadow
Greines, Martin, Stein & Richland LLP

Few appellate specialists have successfully tried a jury case. Robin Meadow tried jury cases for over 20 years at a major commercial firm, while also handling appeals, in many fields of law. Over time, he realized that it’s nearly impossible to excel at both trials and appeals, because the skill sets and practice rhythms differ completely and often clash. Concluding that his greatest strengths lay in appellate work, Robin joined GMSR in 1994, handling his last trial late that year.

Robin’s trial-court experience gives him a unique perspective on appellate work. He understands the demands and pressures trial lawyers face and the many ways that things can go wrong in the trial court. And he is very much at home consulting with trial lawyers during trial, helping them protect their appellate record so they’re well positioned to either preserve a victory or overturn a defeat.

Robin’s practice at GMSR continues the substantive focus he developed in his earlier years business disputes, real estate, partnerships, and probate and entertainment law.  But, like most appellate lawyers, he is a generalist and at GMSR has also handled multiple significant appeals involving healthcare, family law, personal injury and bankruptcy.

He is also an expert in technology for appellate lawyers and courts. A pioneer in the use of electronic records and briefs, Robin co-authored the California Second District Court of Appeals first protocol for electronic briefs (since adopted by other California Courts of Appeal), and he filed the first electronic brief ever accepted by a California appellate court.

When he isn’t practicing law, he enjoys spending time with his family, reading about history and playing bass guitar in a rock band.