KABC Radio Interview – Raymond Lee Jennings & Jeffrey Ehrlich


McIntyre in the Morning

Wednesday, January 25, 2017.

KABC radio host, Doug McIntyre interviews Raymond Lee Jennings, a man who spent more than a decade in prison after being wrongfully convicted of murdering a young girl. Also interviewed, Jeffrey Ehrlich, Mr. Jenning’s defense attorney, who explains what went wrong that led to convicting an innocent man, and the legal process involved in the exoneration of Mr. Jennings.

Special thanks to Doug McIntyre, radio talk show host for KABC, and to KABC for inviting Ray Jennings to share his story, and to Rob Marinko for taking an interest in the story.

For more great radio visit www.KABC.com

Help Ray Jennings: www.gofundme.com/RayJennings

“The Man Who Knew Too Much”


A note on the recent NBC Dateline special on the Ray Jennings case: Dateline did a remarkable job of telling a complex story, which has so far spanned 16 years. They had a lot of ground to cover. As a result, they were unable to get into the details of our critique of the prosecution’s case against Ray. We hope that viewers of the program understand that there is much, much more evidence that demonstrates that Ray is innocent than what was presented on the show. We are optimistic that all the information will be made public by early 2017. When it is made public Michelle O’Keefe’s murder will remain a tragedy; but it will not remain a mystery.

Watch on Dateline NBC’s Website

 

#RepayRay Social Campaign Launched to Help Ray Jennings Rebuild His Life

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copy-Ehrlich-Law-Firm-Logo.jpgThe Ehrlich Law Firm
16130 Ventura Boulevard, Suite 610
Encino, CA 91436

Website: www.ehrlichfirm.com
Phone: (818) 905-3970
Fax: (818) 905-3975

July 1, 2016:  FOR IMMEDIATE RELEASE

Ray Jennings with his mother (left) and fiance, Kim (right). Photo Credit: Jeffrey Ehrlich

Ray Jennings with his mother (left) and fiance, Kim (right). Photo Credit: Jeffrey Ehrlich

Social-media campaign raises thousands for wrongfully convicted Iraq-war vet

Los Angeles, CA – When Sergeant Ray Jennings came home from Iraq in 2005, he was arrested at gunpoint and falsely accused of murder. This Fourth of July weekend, Americans are finally thanking him for his service.

The #RepayRay campaign has raised almost $10,000 dollars to help Sgt. Jennings rebuild his life after 11 of wrongful imprisonment. Organizers hope that figure will multiply as more people help by visiting www.GoFundMe.com/RayJennings .

The campaign was started by Clint Ehrlich, a law student who discovered Jennings’ case a year ago on network television. Ehrlich saw holes in the prosecution’s case, so he began an investigation with his father, appellate lawyer Jeffrey Ehrlich.

The duo unearthed evidence that convinced the Los Angeles District Attorney’s office to release Jennings from prison last week. He had been serving a life sentence for the 2000 murder of 18-year-old college student Michelle O’Keefe.

The killing received national attention, because Jennings was such an unlikely suspect. The married father of four held a secret security clearance, having enlisted in the military at 17 years old, and was training to become a U.S. Marshal.

In Iraq, Jennings commanded a five-man team that searched door-to-door for high-value terrorists. He was nearly killed when an IED exploded beneath his Humvee.

Jennings witnessed the shooting on his second night working part-time as a security guard. He was patrolling a Park-n-Ride lot in Palmdale when he heard gunfire and immediately radioed for help. O’Keefe had been shot to death inside the brand-new Mustang she had just received as a graduation present.

The physical evidence all pointed away from Jennings. There was no gunshot residue on his uniform, and no DNA, hair, or fibers to suggest that he had any contact with O’Keefe. Blood from a different man was found beneath her fingernails.

In February 2005, the D.A.’s office declined to prosecute the case. “There is simply insufficient evidence to prove beyond a reasonable doubt that Jennings did the killing,” wrote Deputy District Attorney Robert Foltz.

Ten months later, without finding new evidence, Foltz charged Jennings with first-degree murder. “I can’t put my finger on precisely what the difference is,” said Foltz, “but it was clear we had a fileable case.”

Last week, the D.A.’s office admitted that it had actually had no case against Jennings. On June 23, he walked out of court a free man. However, the State offered him no compensation for his 11 years of wrongful imprisonment.

Jennings had no money, no clothes, and nowhere to stay. “That’s why we started #RepayRay,” said Clint Ehrlich. “Ray risked his life for our country. This is the least we can do to pay him back.”

# # #

For more information about the Jennings case please see the website for the Ehrlich Law Firm, www.ehrlichfirm.com. Jeffrey I. Ehrlich can be contacted at 818.905.3070.

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Los Angeles District Attorney’s Office agrees to free Iraq-war vet wrongfully convicted of murder

PRESS RELEASE

copy-Ehrlich-Law-Firm-Logo.jpgThe Ehrlich Law Firm
16130 Ventura Boulevard, Suite 610
Encino, CA 91436

Website: www.ehrlichfirm.com
Phone: (818) 905-3970
Fax: (818) 905-3975

June 22, 2016:  FOR IMMEDIATE RELEASE

Los Angeles District Attorney’s Office agrees to free Iraq-war vet wrongfully convicted of murder

Los Angeles, CA – The Los Angeles County District Attorney’s Office today accepted the recommendation of its newly-created Conviction Review Unit (CRU) and has agreed to ask a court to release Raymond Jennings, who was convicted of murdering 18-year old Michelle O’Keefe in a Palmdale, California parking lot on February 22, 2000.

Jennings’ attorney, Jeffrey I. Ehrlich of the Ehrlich Law Firm in Encino, California, first requested that the CRU vacate Jennings’ conviction in October 2015. In April 2016, the CRU agreed to re-open the investigation of the O’Keefe murder, and is now actively pursuing a murder investigation focusing on new suspects.

The District Attorney will appear with Ehrlich in Department 100 of the Los Angeles Superior Court on June 23, 2016 at 8:30 a.m., and they will jointly request that the court release Jennings from prison on his own recognizance. In 60 days, the parties will return to court, and the District Attorney is expected to ask the court to vacate Jennings’ conviction based on new evidence that shows that Jennings is innocent.

On the night of the murder, Jennings, then 25 years old, had been patrolling the parking lot as an unarmed security guard. He heard gunshots and saw a car slowly rolling backward into a planter. Ms. O’Keefe’s body was inside, slumped over the steering wheel. She had been shot multiple times.

No forensic evidence tied Jennings to the crime. There was no gunshot residue on his clothes, nor was there any hair, fibers, or other trace evidence to suggest he had been in contact with the victim. No witness claimed to have seen the crime. At the time, Jennings was a 7-year veteran of the Army National Guard, with no prior criminal record. He held a “secret” security clearance and was studying to be a U.S. Marshal.

The murder went unsolved for over 5 years.  In 2005, the District Attorney’s office charged Jennings with the murder, and he was arrested while he was on leave from serving in Iraq with his National Guard Unit. The case against Jennings was wholly circumstantial, and was primarily based on a now-discredited  claim that he knew non-public details about the crime that only O’Keefe’s killer would have known.

Jennings was tried three times, with the first two juries unable to reach a verdict. In December 2009, a third jury convicted Jennings of second-degree murder. He was sentenced to a life term. His conviction was affirmed on appeal in 2011.

In June 2015, Jennings’ case came to the attention Ehrlich’s law-student son, Clinton Ehrlich. Clinton had seen a link on the internet to an NBC “Dateline” episode about the case. After watching the program he concluded that the case against Jennings was flawed, and he did further research. A few days later he convinced his father to take on the case for Jennings pro bono.

Clinton continued to develop a critique of the State’s case against Jennings, and on October 2, 2015, the father-son team submitted a 34-page single-spaced letter to the CRU, refuting every aspect of the State’s case. The letter persuaded the four experienced prosecutors staffing the CRU that Jennings was innocent and that the O’Keefe murder investigation should be re-opened. A new investigation was launched in May 2016.

The new investigation immediately focused on the people other than Jennings who had been in the parking lot when O’Keefe was shot.

Jennings, who has five children, has thus far served over 11 years in prison.

# # #

For more information about the Jennings case please see the website for the Ehrlich Law Firm, www.ehrlichfirm.com. Jeffrey I. Ehrlich can be contacted at 818.905.3070.

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Another California Supreme Court Victory for The Ehrlich Law Firm

California Supreme Court Decides in Favor of Plaintiff in Nickerson v. Stonebridge Ins. Co

On June 9, 2016, the California Supreme Court decided Nickerson v. Stonebridge Ins. Co., which I argued in April. The Court unanimously held that so-called “Brandt fees” in insurance bad-faith cases could be included in the calculation of punitive damages.

Thanks to my co-counsel, Bill Shernoff, his team, and my son Clint Ehrlich, who helped me on the briefing.  It’s an honor to be making new bad-faith law with Bill Shernoff.

Nickerson vs Stonebride Life Insurance

 

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Jeffrey Ehrlich Featured in May 2016 Edition of “Valley Lawyer”

The May 2016 issue of “Valley Lawyer” featured Jeff Ehrlich and four other successful lawyers practicing in the Valley who have argued in the U.S Supreme Court.

For information about Mr. Ehrlich’s SCOTUS victory, see UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358 (1999).

Valley Lawyer Jeffrey Ehrlich Cover

 

 

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Ehrlich Law Firm retained to defend appeal in fatal police shooting of man holding water nozzle

Ehrlich Law Firm retained to defend appeal in fatal police shooting of man holding water nozzle

criminal defense attorneyOn December 12, 2010, Douglas Zerby was sitting on the pack porch steps of his friend’s apartment, holding a hose nozzle. A neighbor saw him, and called 911, reporting that a man was holding a gun. The Long Beach Police Department responded to the call, and had multiple officers watching Zerby from 20 to 30 feet away for more than five minutes. Without giving him any warning, they shot him multiple times. Garo Mardirossian and Tom Beck, representing Douglas’s father, obtained a wrongful-death verdict of $2 million in federal court in Orange County. They have retained Jeffrey Ehrlich to handle the appeal in the Ninth Circuit.

Ehrlich Law Firm defeats new-trial motion in $58-million auto-accident case

Ehrlich Law Firm defeats new-trial motion in $58-million auto-accident case

Duty to DefendGreg Rizio of Rizo & Nelson obtained a $58 million verdict ($14.5 million net) for Timothy Herman, who was involved in an auto accident that left him catastrophically injured. The defense sought a new trial, based primarily on an argument that the $58 million verdict was excessive. Mr. Rizo retained Jeffrey Ehrlich to prepare the opposition to the new-trial motion, which was denied. Mr. Ehrlich was retained to handle the appeal.

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Ehrlich Law Firm wins affirmance of record $15 million non-economic damage award in wrongful-death case

Ehrlich Law Firm wins affirmance of record $15 million non-economic damage award in wrongful-death case

Landmark California AppealsRicardo Echeverria of Shernoff Bidart Echeverria Bentley LLP and Scott Howry of Young Woolrich obtained a wrongful-death verdict on behalf of the minor children of Tiffany Paregien, who was run over by a large truck while she was crossing a street in Bakersfield. The accident was recorded on security video at the accident site. Ms. Paregien’s children were 11 years old and 4 months old at the time of her death. Because she had no work history, Mr. Echeverria sought only non-economic damages, and was awarded $7.5 million for each child. The defense appealed, arguing that the trial court had improperly excluded evidence that Ms. Paragein was high on methamphetamine at the time she was killed, and that the verdict was excessive. In an unpublished opinion, the Court of Appeal affirmed the verdict in its entirety, finding that the video of the accident confirmed that Ms. Paragien’s intoxication was irrelevant since she was run over from behind while walking normally in the crosswalk, and that the verdict – which the defense claimed was the highest award of non-economic damages in a wrongful-death action in California – was not excessive as a matter of law. Paregien v. Perez (Cal. Ct. App., Mar. 5, 2015, F067517) 2015 WL 1014194.

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Ehrlich Law Firm wins reversal of defense verdict against stroke victim

Ehrlich Law Firm wins reversal of defense verdict against stroke victim

Cars speeding at night on a busy streetPlaintiff Mohamad Harb, MD, suffered a stroke while driving home from the hospital and was involved in a single-car accident. The Bakersfield police officer who responded to the scene was convinced that Dr. Harb was drunk or on drugs, and refused to allow an ambulance to transport him to the hospital. As a result of the delay, Dr. Harb suffered catastrophic brain damage. At trial, the City proposed a confusing, redundant police-immunity instruction, and also convinced the trial court to instruct on comparative fault. This allowed the City to argue that Dr. Harb alone was responsible for his condition, since he failed to take his blood-pressure medicine. The jury returned a defense verdict. In a published opinion, the Court of Appeal reversed.

The Court agreed that it was prejudicial error to give the police-immunity instruction, and that it was also improper for the court to instruct on comparative fault based on Dr. Harb’s pre-treatment negligence. In a case of first impression, the Court held that in California, medical providers and first responders cannot ask the jury to weigh their negligence in providing substandard care against the circumstances that caused the need for care in the first instance. Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 183 Cal.Rptr.3d 59,

The basics of California Appeals — two not-so-simple rules

Published Articles

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

By Jeffrey Isaac Ehrlich, 2010 | Download .doc

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Landmark California AppealsSuccess on appeal in California depends on many things — the facts that underlie your case, the legal positions you can take in light of the state of the law, your skill in selecting and presenting the issues to the appellate court in a persuasive way, and the beliefs and proclivities of the appellate judges who will hear your case. But before any of these factors can have an impact on the appeal you plan to bring, you must first satisfy the most elemental aspects of any appeal — you must get the appeal on file timely, and you must provide the court with an appropriate record for appellate review. Unless you can accomplish these two basic tasks your appeal will fail. This article will explain how to satisfy these most basic of appellate rules.

The rules governing filing appeals and designating the record are technical, and involve some deadlines that are jurisdictional. This article provides an overview, but before any lawyer tries to file and proceed with an appeal, he or she should carefully review the relevant sections of the California Rules of Court, and would do well to consult an appellate treatise (or an appellate lawyer.)  It’s not exactly a “don’t try this at home” situation; more like, “don’t try this without making sure you do it right.” The problem is not that it is particularly hard to comply with the rules; it is that if you fail to do so, for whatever reason, the result can be catastrophic for the case.

Rule 1: File the notice of appeal on time

Many of the deadlines built into the law have a certain amount of flexibility. If good cause exists, the failure to meet the deadline can often be excused under section 473 of the Code of Civil Procedure, or its equivalent provisions in the California Rules of Court. Rule 8.60(d) of the Rules of Court allows a reviewing court, for good cause, to relieve a party from default from any failure to comply with the rules — “except the failure to file a timely notice of appeal.” Likewise, 8.104(b) states that no court can extend the time to file a notice of appeal, and that “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” The only exception to this is when there is a declared public emergency, such as a fire or an earthquake. (CRC, Rule 8.66.)

The timely filing of a notice of appeal is a jurisdictional prerequisite. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) Accordingly, “unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (Id.) Don’t get too excited about the concept of a “constructively filed” notice of appeal. That rule only applies in appeals by self-represented litigants in criminal custody, and holds that their appeals are deemed constructively filed when presented to the prison authorities within the normal deadline for filing an appeal. (See, e.g. Silverbrand, 46 Cal.4th at pp. 114 -120 [detailing history of prison-delivery rule and applying it to civil appeals as well as criminal cases].)

Filing the appeal timely does not sound so hard, and it often is not. But it can be tricky in some cases for two reasons: (1) it is not always clear what orders are appealable and what orders are not; and (2) the deadlines themselves are sometimes less than straightforward.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey Isaac Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices in Encino and Claremont, California. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

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Jeffrey I. Ehrlich retained as co-counsel in $10 million wrongful-death/products liability appeal

Ninth Circuit Appeals

Jeffrey I. Ehrlich retained as co-counsel in $10 million wrongful-death/products liability appeal

Toyota LogoDecember 2014

After her Toyota Camry was struck in a traffic collision by Olga Bello, Noriko Nori’s foot became trapped behind the brake pedal and was pressing on the accelerator pedal, causing her car to accelerate to 100 mph.

Ms. Nori was unable to control the vehicle and was killed when her car crashed into a tree. The jury awarded her heirs $10 million, and the defendants have appealed.


Why hire The Ehrlich Law Firm to handle your appeal?

Jeffrey Isaac Ehrlich is certified as appellate specialist by the State Bar of California’s Committee on Legal Specialization.  In California, only lawyers who receive this certification can call themselves “appellate specialists.” In order to be eligible for certification, a lawyer must have handled a minimum number of appellate matters, must devote at least half his or her practice to appellate work, and must pass a one-day examination. Mr. Ehrlich was among the first attorneys in California certified as an appellate specialist. As of January 2015, there were only 282 certified appellate specialists in California, out of more than 170,000 California lawyers.

Mr. Ehrlich has briefed and argued hundreds of appeals, in the following courts: The U.S. Supreme Court; the U.S. Court of Appeals for the 3rd, 4th, 5th, 6th, 7th, 9th and 11th Circuits; the California Supreme Court; the Virginia Supreme Court; the Maryland Court of Special Appeals, the Louisiana Court of Appeals, and the California Court of Appeal. In California, Mr. Ehrlich has handled appeals in the appellate courts sitting in San Francisco (First District), Los Angeles (Second District), Sacramento (Third District) San Diego (Fourth District, Div. 1), Riverside (Fourth District, Div. 2), Santa Ana (Fourth District, Div. 3), Ventura (Second District, Div. 6),,, and Fresno (Fifth District) – in sum, every appellate court in the State except for the Sixth District, which sits in San Jose.

Both the California and the federal appellate system dispose of the vast bulk of their civil appeals in unpublished decisions. Fewer than 25% of all appeals decided are decided by published decisions that have precedential value. Mr. Ehrlich has over 55 published appellate decisions in the state and federal courts. Very few appellate lawyers in California have comparable experience with civil appeals.

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10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them

Published Articles

10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them

By Jeffrey Isaac Ehrlich

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Mistakes Trial Lawyers MakeGetting a case from the pleading stage through trial can be like trying to walk through a minefield. There are always procedural traps lurking to snare the unwary trial lawyer. Here are 10 easy, and distressingly common mistakes for a trial lawyer to make, which can have disastrous consequences on appeal. Happily, they are easily avoided, if you know what to look for.

Mistake 1: Failing to appeal from an appealable order or to take a writ from an order subject to review by a statutory writ

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)

The flip side of the one-final judgment rule is that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”) § 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)

The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.

There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.

For example, a “death knell” order that denies certification of a class action, or that disposes of an entire class action (such as an order sustaining a demurrer to class allegations) is deemed “final” and is immediately appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 184 [denying class certification]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rprt. 724, 728 [same]; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957, 93 Cal.Rprt.2d 413, 416, fn. 1 [demurrer to class allegations].) The death-knell doctrine is therefore deemed part of the one-final judgment rule, not an exception to it.

In general, the law recognizes two general exceptions to the one final judgment rule: (1) a “collateral” final judgment or order, or (2) a judgment final as to a party. (“Civil Appeals” § 2.76.) The latter exception occurs frequently — when one party is simply dismissed from a case that goes on as the remaining parties. If you are the plaintiff and one of the defendants is dismissed, you must appeal at the time; not from the ultimate “final” judgment.

The definition of a “collateral order” is a bit more involved, and beyond the scope of this article. In general, it requires that three conditions be satisfied: (1) the order directs the performance of an act or the payment of money; (2) the order involve an issue that is wholly collateral to the main issue in the case; and (3) as to that collateral issue, the order is final. (Civil Appeals, § 2.77.)

Ultimately, every time an order is issued, the trial lawyer must consider whether it could be considered “final” and appealable, or within an exception to the one-final judgment rule, or subject to review by statutory writ. When in doubt, it may be worth asking an appellate lawyer.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey Isaac Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices in Encino and Claremont, California. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

10 Common mistakes that trial lawyers make (Part 2)

10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them (Part 2)

page 2

By Jeffrey Isaac Ehrlich

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Mistake 2: Failing to make appropriate evidentiary objections on summary-judgment motions, or to respond to the other side’s objections

A motion for summary judgment or summary adjudication of issues must be supported and opposed by admissible evidence. (Code Civ. Proc., §§ 437c, subd. (b)(1), and (d); Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741, 74 Cal.Rptr.3d 715, 719.) As explained in the article in this issue by Justice Moore and Steven B. Stevens, objections to evidence in support of or in opposition to a motion for summary judgment or adjudication must follow the format in California Rules of Court 3.1352 and 3.1354.

If you are responding to a summary-judgment motion, pay particular evidence to the moving party’s evidence. If it is not admissible, be sure to raise a proper objection. The objections should be made with the opposition, but the rules also seem to permit raising them “at the hearing.” Be safe, and do it sooner. But don’t go overboard. Only raise evidentiary objections you would be willing to raise at trial. (See, e.g., Nazir v. United Airlines, Inc. (2009) __ Cal.App.4th __, __ Cal.Rptr.3d __, 2009 WL 3235159, 7. [Appellate court, in discussing moving party’s objections to opposing party’s evidence: “Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?].)

If you don’t raise the objections timely at the hearing on the motion, you won’t be able to raise them later on appeal. Section 437c provides that a party who fails to raise evidentiary objections at the hearing waives those objections on appeal. (Code Civ. Proc. §§ 437c, subds. (b), (d); Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 263, 77 Cal.Rptr.2d 781, 784.)

And while it goes without saying, if the other side raises evidentiary objections to your opposition evidence, read them and be ready to either try to cure the defect, or at least to respond at the hearing. Sometimes, if the problem is simply a lack of foundation, or some other minor issue, a supplemental declaration can cure the problem. If you can cure the problem at the hearing, and you do not do it, it can make it impossible to do so on appeal.

Mistake 3: Failing to get rulings on your evidentiary objections on summary-judgment motions

No matter how well taken your evidentiary objections are, it won’t matter if the trial court does not rule on them. The law places the responsibility for obtaining a ruling on the evidentiary objections on the party making them. If no ruling is made, the objections are deemed waived on appeal. (See, e.g., Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 576, 57 Cal.Rptr.3d 204, 212.) The only exception is if the record clearly reflects diligent efforts by counsel to obtain a ruling, and a refusal by the trial court. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)

Mistake 4: Failing to state the proper basis for an evidentiary objection at trial

The trial lawyer must make proper, timely objections to evidence at trial, and where appropriate, move to strike. (Civil Appeals, § 8:270.) The lawyer must obtain a ruling on the objection to preserve the issue for appeal. (Id.) The objection must be made on the proper ground. An objection made on one ground does not preserve other grounds for appellate review. (Wegner, Fairbank, Epstein, et al., California Practice Guide – Civil Trials & Evidence (Rutter 2008 rev.) (“Civil Trials”) § 8:3317.) An objection that offers no legal grounds preserves no grounds for review. (Id., § 8:3319.)

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey Isaac Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices in Encino and Claremont, California. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

The basics of California Appeals — two not-so-simple rules (Part 5)

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

page 5

By Jeffrey Isaac Ehrlich, 2010 | Download .doc

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B. Designating the Record on Appeal

1. The mechanics

Rule 8.121 (a) requires the appellant to file in the trial court a designation of the record on appeal within 10 days of filing a notice of appeal (although the designation can be combined with the notice of appeal). The rule contemplates a single document designating both the oral proceedings and the documents, usually the RT and a CT or Appendix. There is a Judicial Council form, APP 003, which is optional.

The notice designating the record must state when the appeal was filed, the form of the record of Superior Court documents (CT or Appendix), and the form of the oral proceedings (RT). If the appellant uses an RT, the designation must designate what proceedings it will contain. Rule 8.130(a)(1) requires that the notice specify the date of each proceeding to be included in the RT. Hence it is improper to designate “all oral proceedings”. A local rule in the Second Appellate District requires even more specificity — L.R. 3(a)(1) requires not only the date of each proceeding, but also the department, the name of the court reporter or electronic-recording monitor, and the nature of the proceeding.

The designation may specify the portions of designated proceedings that should not be transcribed. (Such as voire dire, or specific witnesses whose testimony was not relevant to the issues raised on appeal.) But if not all testimony will be designated, the notice must specify the points to be raised on appeal. (Rule 8.130(a)(2).) This enables the respondent to determine whether additional parts of the record must be transcribed. Designating less than all testimony limits the scope of appellate review to the points stated in the designation notice. (Rule 8.130(a)(2).) Copies of the notice of designation must be served on all other parties, and on all known court reporters.

If the appellant designates only part of the oral proceedings, then the respondent may file a notice of designation of additional proceedings within 10 days of service of the appellant’s designation. (Rule 8.130(a)(3).)

The designating party (that is, both the appellant and the respondent making a designation of additional proceedings) must make at the time the designation is filed a deposit for the approximate cost of transcribing the designated proceedings. There are two ways to compute this: (1) obtain a written estimate from the court reporter in advance, or (2) using the amounts specified in Rule 8.130(b)(1)(A) and (B): $325 for each proceeding of less than 3 hours, and $625 for each proceeding longer than 3 hours.

If the appellant files a notice electing to proceed via a Clerk’s Transcript, the respondent can trump that election by filing an election to use an appendix in lieu of the Clerk’s Transcript within ten days of the appellant’s election. (Rule 8.124.) At that point, the appeal will proceed using an appendix unless the Superior Court orders otherwise on a motion to oppose the election. (Id.)

If the appellate elects to use a Clerk’s Transcript, the election must designate the items to be included, specifically identifying each document by title and filing date. (Rule 8.122(a)(1).) It is sufficient to collectively designate all minute orders or all jury instructions given, refused, or withdrawn. (Rule 8.122(a)(1).) The designation may also specify parts of a document that need not be included — which can be handy if there are duplicates of other documents.) (Id.)
Optional documents in a Clerk’s Transcript or an Appendix include any document filed or lodged in the case in the Superior Court; any exhibit admitted in evidence, refused or lodged; any jury instructions submitted by a party or given or refused. (8.122(b)(3).)

2. Judgment calls — what should you include?

You must include everything necessary for the appellate court to understand what occurred in the trial court, and to evaluate whether it constituted an error, and whether that error was prejudicial. As the appellant, if you fail to provide the appellate court with this information, you will lose the appeal. You should not, however, burden the court with more than it needs to do its work properly. In extreme circumstances, lawyers who thoughtless include more in the record than properly belongs there can be subject to sanctions. (Rule 8.276(a)(2).)

The rules specify certain items that must be included in every Clerk’s Transcript, whether designated or not, and which must therefore also be included in any appendix in lieu of a clerk’s transcript. These include the notice of appeal; the order or judgment appealed from and any notice of its entry; any notice of intention to move for new trial, JNOV, or reconsideration of an appealable order, together with their supporting and opposing memorandum and exhibits, and any order thereon; notices or stipulations concerning preparation of the reporter’s transcript; and the register of actions, if there is one. (Rule 8.122(b)(1); 8.124(b)(1)(A).)

If your appeal follows the trial court granting a demurrer or a summary-judgment motion, deciding what to include in the record is easy — you put in the operative pleadings, all documents filed by the parties in support of, or opposition to, the motion or demurrer, and the order resolving the motion or demurrer. If the appeal follows a jury trial, it can be harder to decide what to include. Although all exhibits are automatically part of the record, it makes sense to include the key exhibits in the CT or Appendix so the court has ready access to them. All minute orders entered during the trial are also a good idea, because they show what happened each day, and sometimes may be the only evidence of orders the court made.

Many lawyers automatically include an RT of law-and-motion hearings, but I do not recommend this unless something happened at the hearing that has particular significance to the appeal — such as a lawyer making a concession on the record, or the trial court making a particularly intemperate comment that is indicative of bias. Appellate courts do not review a trial court’s reasoning, only the correctness of its decision. In almost all cases, nothing that happens in a law-and-motion hearing has any bearing on the appeal because the court will simply look at the motion and the evidence in support and in opposition, and decide whether it was properly granted given the appropriate standard of review.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey Isaac Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices in Encino and Claremont, California. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

He also edits that magazine’s issues on insurance and on law-and-motion and appeals. He has also authored articles on appellate and law-and-motion practice; on oral argument; and on substantive legal topics, such as insurance, arbitration, patient rights, and federal preemption of state law under ERISA, Medicare, and the Federal Arbitration Act.

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