Richards v. Prieto (CCW)

[fizux]

Still in a holding pattern?

Yarp.

[Window_Seat]

FRAP 28(j) authority by Appellees

FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.

[Funtimes]

FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.

Who signs a legal document "very truly yours"... are they sleeping together or what?

[press1280]

FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.

SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below. Yolo is obviously trying to give CA9 the impression that SCOTUS rubber stamped Kachalsky and Woolard.

[wolfwood]

Who signs a legal document "very truly yours"... are they sleeping together or what?

Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.

[Funtimes]

Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.

Very truly yours belongs in a love letter! You lose cool points if you do that :P. Clearly, no man card exists if you are signing letters like this!

[wolfwood]

fair enough brother

[Window_Seat]

My elementary school teachers would address their signatures with "very truly yours" when there was a letter to my parents, which would have resulted in certain punishment.

Erik.

[sarabellum]

Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

Citing to unpublished decisions is sanctionable conduct, as attorneys have a duty of candor to the tribunal to only put forward meritorious legal theories:

In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.

Best regards.

[M. D. Van Norman]

SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below.

[sarabellum]

A denial of certiorari is an endorsement. As as result cases are cited as such, e.g. Woxberg v. United States, 329 F.2d 284 (9th Cir.), cert. denied, 379 U.S. 823 (1964)

[wolfwood]

Citing to unpublished decisions is sanctionable conduct, as attorneys have a duty of candor to the tribunal to only put forward meritorious legal theories:

In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.

Best regards.

[sarabellum]

There is no federal law controlling the ethical conduct of attorneys. State law controls the ethical conduct of attorneys. See for example, United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) (dismissing criminal charges because of prosecutor's ex parte communications with defendant in violation of California ethics rules). As in the example of Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, citation to non-precedential cases, while ignoring controlling authority is breach of the duty of candor to the tribunal. At the appellate level, FRAP 32.1 allows counsel to cite to an unpublished decision to urge a deviation from published authority, but does not and cannot attempt to alter the duty of candor, controlled by state law.

CRPC Rule 3-200 provides, "A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is...(A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause... or (B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law."

Best regards.

[FABIO GETS GOOSED!!!]

You know, it helps sometimes to go to the source, i.e., Cal. Rules of Court, rule 8.115(a) which defines "unpublished opinions":

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

Mehl is not "an opinion of a California Court of Appeal or superior court appellate division" therefore...(you can finish the sentence).

[sarabellum]

You know, it helps sometimes to go to the source, i.e., Cal. Rules of Court, rule 8.115(a) which defines "unpublished opinions":



Mehl is not "an opinion of a California Court of Appeal or superior court appellate division" therefore...(you can finish the sentence).

The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.