California Injury Blog

Wow, talk about an uphill battle.

What kind of relief are you seeking? Further liberalization of the rules regarding publication? (The rules of court were changed last April in a way that would tend to result in a higher percentage of opinions being published.) Publication of ALL opinions?

Greetings,

I am an appellate attorney in Ventura and am interested in the lawsuit you describe in this post. I think it might be worth a detailed article for publication in the L.A. Daily Journal or similar publication.

Would you consider sharing a copy of the complaint with me, or at least telling me the case number and the county where the action is pending. I think ALL lawyers would be interested in the suit and its implications.

Feel free to call me at (805) 642-0425.

Thanks,

Greg May

Will you post a copy of the federal complaint online?

It is about time someone has the courage to finally challenge a truly unfair rule. Allowing Courts to have unpublished cases that cannot then be cited is an affront to the entire system of 'justice.' Who does the Appellate Court answer to if not itself. As the Legislature ruled in the 80's that the CA Supreme Court could only accept and review a tiny percentage of all civil cases (because the CA Supreme Court has to devote the majority of its time reviewing all death penalty cases instead), now the Appellate Court often answers to no one. The Appellate Courts don't even necessarily accept each others rulings (they often stated this in such 'unpublished' cases). What this allows is poorly exercised, "throw away rulings." In uncitable cases, a Court can easily bury unfair, bad rulings without fear of review or repercussion. If all cases were citable, one would have to believe that Appellate Courts would give more careful thought to it's rulings, particularly in the application of the laws equally for all; and justice would be more fairly meted out. Special interest groups would no longer be able to influence Courts to the extent they do now. If every case were citable, a Court's ruling would necessarily have to follow another, or a good argument based on real law would have to be made as to why the prior ruling was wrong or invalid in said case. As you have stated, it is the 'common man' whose life is being hurt by the current and ridulous idea that only certain cases, and thus certain rulings are, in essence, valid. Perhaps the Courts need to be reminded that the California Constitution states " a citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." Allowing certain cases to be unpublished and thus be "uncitable" means the citizens in those cases have been granted lesser rights to be heard than those citizens in citable cases.

The complaint against the California Supreme Court is now posted on line. See the link at the end of the original October 5, 2007 article.

I'm in the process of drafting a federal complaint to likewise file in NDCal, attacking the state's publication rules on generally the same as-applied grounds. In my case, the suit will cite a series of garbage appellate decisions that issued re three unrelated litigations in the past 20 years, in which I represented myself. If appellate courts can get away with such nonsense as you allege in dismissing the appeals of counsel, just imagine the liberties taken in dismissing pro pers appeals.

My first appellate decisions is exemplary. It held that it had no jurisdiction to reconsider an appeal that it had inadvertently (for no reason) summarily dismissed as abandoned, not even where the appeal had already been fully and timely briefed; or to reconsider an appeal that it had inadvertently dismissed for failure to specify the order appealed from on the notice of appeal, when in fact the one-sentence notice singularly specified the order by date and part; or to reconsider an appeal it had simply never mentioned in its orders. (Respectively, this justified the dismissal of separate appeals from costs, from the final judgment, and from an award of sanctions.) The opinion remarkably claimed an authority -- a case that referred to an extra-judicial proceeding, which precluded the acceptance of an untimely filing, after a first submission had been mistakenly refused. The mid-1980s opinion went to state that the court had decided to be kind to me as a pro per--had I been an attorney, I would have received severe sanctions for making a motion to set aside any such clerical mistakes. (The dismissed cost appeal alone was a de facto $31,000 sanction, in that I sought to tax $31,000 awarded for routinely disallowed pre-trial expert witness fees—this being the bill submitted for a 12-hour examination by a hired-gun psychologist, whose report was never utilized.)

A few years later, the presiding justice of this three-judge panel (Strankman) became the chair of the advisory committee that produced the 1991 appellate advisory report, which first advised the state’s judicial council against making any substantive change to its publication rules. This report expressly declined even to consider the possibility that three judges might issue a legal opinion that they did not really hold.

Nevertheless, in two later litigations, I somehow succeeded in winning one reversal on appeal--and so a settlement (against Stanford University), and I prevailed in a trial, winning a verdict of intentional misrepresentation (against local Coldwell Banker realtors). I mention this to mitigate the dismissive preconceptions that being a pro per naturally induces.

The most recent litigation (false advertising, against Cendant), decided within the two year section 1983 limitations period, is unusually telling re the publication rules, in that it did plainly stated a highly significant and new point of law approving an important and longstanding national advertising policy, in that the defendant Cendant therefore requested publication, in that it did so by a letter from counsel in Chicago, and in that the request was tardy--wherefore, under the rules, the court of appeal was bound to forward the request to the Supreme Court for a decision, with its recommendation against publication. However, in so doing, the court of appeal failed to provide a reason for its recommendation, which the rules expressly require. Fully informed of the facts and law of the case by virtue of my seeking review, the Supreme Court of course summarily decided against review and publication.

One of the three appellate judges (Parelli) was on the advisory committee that produced the 2006 advisory report re the publication rules, attached as an exhibit to your complaint, which avoids substantive change, again sidestepping due process guarantee and judicial accountability considerations.

Even though unpublished, the opinion is of vastly more than de minimus utility to Cendant, both in and out of this state. In many other states, and in all federal courts, it can indeed be cited as this state’s leading on point case, simply because it singularly espouses the point. In this state, Cendant (or rather, Cendant’s successor companies, since Cendant has been dissolved in clouds of scandal) now promulgates the false advertising, without fear of penalty, by virtue of the opinion. And everywhere, Cendant can cite the opinion in pre-litigation bullying. (Under this state’s present rules, can one cite a federal or other state case that cites an unpublished opinion of this state? The question reveals the tolerated absurdity of the rules.) And so I am incorporating a commerce clause violation in my complaint, besides the due process and equal protection violations/injuries. (Even a de minimus commerce clause effect suffices for standing, before a balancing test is applied.)

I am also adding a cause of action based on the ongoing deterrence of future litigation.
See Wolfe v. George 05-16674.

Your current suit would seem related, per federal standards that require referencing related cases in initial filings. Perhaps one my above-sketched facts or theories is supportive of it, or adaptable to it? Perhaps there are collaborative—even class--possibilities? Feedback of any sort from any one is welcome. In any case, I do request that you post subsequent pleadings where they can be reviewed.
And I wish you luck!

I plan to post my filings where they can be reviewed by anyone, perhaps before filing them, but have yet to decide on the forum and time. It depends if I get together a reasonable draft before the March 26 deadline that I've construed. I have already a prepared set of docs that explain the substance of the still-savable state litigation. If anyone is interested, I'll forward them. Or, better, can someone suggest an appropriate Internet depository to post them to?

I would like to stand up and applaud this law firm. You just gave me a glimmer of hope that there are good lawyers out there.
Our organization was formed because we are tired of slimeball attorneys. If all attorneys worked for their client the way this firm has, there would be no need for our organization and we would be quite happy.
The National Association of Pro se Litigants, Inc.