News from the Director

FDAP News: January Seminar, E-Filing, Joinders ...
Sept. 8, 2014

Seminar Save the Date

Please save the date for the FDAP 2015 Annual Training. It will be held on Friday, January 16, 2015, at the Court building in San Francisco. Details and registration will be available in October.

Judicial Changes in the First District

The Commission on Judicial Appointments has approved two First District appointments. 

Justice Humes, who was in Division Four, is the new Presiding Justice of Division One. His bio is here: http://www.courts.ca.gov/20495.htm

Therese M. Stewart, formerly of the SF City Attorney's Office, is now an Associate Justice in Division Two. Her bio is here: http://www.courts.ca.gov/26982.htm

That leaves two vacancies at the court: one each in Divisions Two and Four. 

E-Filing/TrueFiling Down Time

Last week, TrueFiling was inaccessible for portions of two days due to technical problems. Those problems appear to be resolved. Because such problems could arise again, we offer some guidance and reassurance.

Generally, there is no need to worry about missing a deadline due to TrueFiling having an outage. The second paragraph of Local Rule 16(h) provides that "Filings due on the day of a technical failure which were not filed solely due to such technical failure shall be due the next court day." A “technical failure” occurs, and the extended deadline applies, “whenever the system is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour after 12:00 noon that day.” Here is the full text of Subdivision (h) of Rule 16:

(h) [Technical Failure/Motions for Late Filing] If a filer fails to meet a filing deadline imposed by Court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the Court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.

The Clerk of the Court shall deem the EFS system to be subject to a technical failure whenever the system is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour after 12:00 noon that day. Filings due on the day of a technical failure which were not filed solely due to such technical failure shall be due the next court day. Such delayed filings shall be accompanied by a declaration or affidavit attesting to at least two attempts by the filer to file electronically after 12:00 noon with each attempt at least one hour apart on each day of delay due to such technical failure. The initial point of contact for any practitioner experiencing difficulty filing a document into the EFS system shall be the toll-free number posted on the TrueFiling Web site.

If there is a technical failure on the day your document is due, file it on the next court day, accompanied by a declaration “attesting to at least two attempts by the filer to file electronically after 12:00 noon with each attempt at least one hour apart on each day of delay due to such technical failure.” (Rule 16(h).)

If there is a technical failure, but your document is not due until some future date, simply file the document the next day and there will be no need for the declaration.

If you have a very urgent filing (e.g. client entitled to immediate release), consider contacting the Division Clerk in order to coordinate the delivery of the urgent document to the Court, perhaps by fax or email, while TrueFiling is down. Feel free to contact your FDAP consulting attorney in order to discuss how best to handle the urgent matter. 

California Supreme Court warning on pro forma argument joinders.

Counsel considering joining in a co-appellant’s arguments should take heed. In a recent capital opinion (People v. Bryant (Aug. 25, 2014; S049596) __ Cal.4th __ (slip opn., pp. 15-16)), the California Supreme Court “strongly disapprove[s]” of the “seriously improper tactic” of “blanket” pro forma joinders in co-defendants’ arguments in multi-issue appeals. “Cursory and unfocused” joinders which do not identify the specific arguments being adopted frustrate appellate review by requiring “the opposing party or this court to sort out what claims ... are nonfrivolous as to the other defendants.” 

While the difficulty posed by blanket joinders may be especially acute in capital appeals, due to the "scores" of claims briefed, many of the Court’s stated concerns apply equally to other multi-defendant, multi-issue appeals. "There are likely to be instances when a particular claim simply does not apply to all defendants" or where only some of the defendants preserved the issue below. 

The court’s bottom line is this: "Appellate counsel for the party purporting to join some or all of the claims raised by another are obligated to thoughtfully assess whether such joinder is proper as to the specific claims and, if necessary, to provide particularized argument in support of his or her client’s ability to seek relief on that ground."

“‘Each appellant has the burden of demonstrating error and prejudice.’” Consequently, even where the “error” analysis applies equally to all defendants, counsel should consider whether to provide “particularized argument” on prejudice as to that defendant.

 

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