Program 57. Forfeiture: A Four-Letter Word in the Court of Appeal. Friday, September 12, :15 PM - 3:45 PM

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1 THE STATE BAR OF CALIFORNIA 87 th Annual Meeting Program 57 Forfeiture: A Four-Letter Word in the Court of Appeal Friday, September 12, :15 PM - 3:45 PM Sponsored by the Committee on Appellate Courts The State Bar of California and the Office of Education of the State Bar of California are approved State Bar of California MCLE providers. Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not been adopted or endorsed by The State Bar of California s Board of Trustees and do not constitute the official position or policy of The State Bar of California. Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations The State Bar of California All Rights Reserved

2 State Bar of California 87th Annual Meeting Grand Hyatt Hotel San Diego, California September 12, 2014 (2:15-3:45 p.m.) Program 57 CAC Forfeiture: A Four-Letter Word in the Court of Appeal An appeal is not a do-over. Among the principles limiting appellate review in the state and federal systems, an issue must be preserved for an appellate court to consider it. Preserved means the issue was addressed by, or at least argued to, the trial judge, at the right time and in the right way. Forfeiture means you gave up the issue, foreclosing it from appellate review, by failing to do something in the trial court. When an issue is not preserved, the state and federal courts of appeal usually will not consider it, no matter how compelling. * * * This program explores how to preserve issues for appellate review in civil litigation and avoid crucial missteps where issues can be forfeited; criminal law is not covered. MODERATOR: SPEAKERS: Jesse W.J. Male (State Bar Committee on Appellate Courts) Fiore Racobs & Powers PLC Riverside, California The Honorable Richard D. Huffman Associate Justice, California Court of Appeal Fourth Appellate District, Division One Rupa G. Singh (Staff Attorney) Ninth Circuit Court of Appeals San Diego, California Kevin K. Green (Certified Appellate Specialist) Robbins Geller Rudman & Dowd LLP San Diego, California

3 Program Scope The outline below identifies the topics this program is expected to cover. It will not address appellate forfeiture in criminal law, which alone could be a separate program. It also will not address the forfeiture, waiver, and other procedural defaults that can occur after a civil action goes on appeal (such as failure to designate a reporter s transcript and waiver in appellate briefs). This program focuses on traps for the unwary and necessary steps at the trial level to ensure the appellate court will review an issue on the merits. Background and Context for Discussing Forfeiture Trial litigation is a continuum from the complaint initiating suit to the ultimate resolution, whether by pretrial motion or, in the rare case, a trial. And sometimes there is a writ petition along the way or an appeal, either interlocutory or after a final judgment. At every stage, counsel on both sides must be vigilant to preserve issues for possible appellate review. This applies to both the plaintiff and the defendant. You do not know in advance whether your client will be the appellant, who has the duty to preserve issues for appeal, or the respondent (in the California courts) or the appellee (in the federal courts). It is thus crucial to look ahead with eyes on the appellate horizon. In both the state and federal courts, the tenets of appellate review favor affirmance. Both legally and as a practical matter, the trial court is presumed correct until shown otherwise. All burdens are on the appealing party. The appellant must file a timely notice of appeal and all fees, designate or otherwise submit an adequate record for appellate review, and, most significantly at the briefing phase, identify an error that was 2

4 prejudicial and therefore requires reversal. But the first onus on an appealing party is triggered before the appeal preserving the issue at the trial level. Winning issues on appeal are like gold nuggets. They are few and far between. Little stings more on appeal than a strong issue that was forfeited in the trial court. The need to preserve issues reflects the distinct institutional roles of trial and appellate courts. Most legal disputes are resolved, either by settlement or litigation, at the trial level. When appellate review does occur, appellate courts examine the result for prejudicial error (based on the record before the trial judge, without new evidence) and clarify the law for the trial bench and future litigants. Because appellate tribunals are courts of review, parties are generally required to give the trial court an opportunity to address an issue before it may be raised on appeal. If there is no ruling, there is nothing to review. Preserving issues is also a matter of fairness. A trial judge should not be reversed if there was no opportunity to address an issue. Likewise, the appellee or respondent should not face renewed trial litigation if the issue was not tested through the adversary process before going up on appeal. The only significant exception is pure questions of law. Although the better practice is to raise at the trial level if possible, appellate courts have discretion to consider them even if not presented there. For example, a statute s proper interpretation can be decided on appeal without offending forfeiture principles. As Chief Justice John Marshall famously stated, it is the duty of the judicial branch meaning the appellate courts to say what the law is. 3

5 Anticipated Program Topics (Time Permitting) I. Pleading Stage A. Complaint and amending B. Answer or other responsive pleading C. Demurrers (state court) and motions to dismiss (federal court) II. Discovery A. Interrogatories and requests for admission B. Depositions C. Motions to compel III. Summary Judgment A. Separate statement of undisputed facts B. Responding to the movant s separate statement C. Objecting to supporting evidence IV. Trial A. Jury instructions B. Motions in limine C. Motions and objections during trial D. Trial exhibits E. Verdicts and statements of decision V. Post-Trial Motions A. State practice B. Federal practice 4

6 Additional Resources on Forfeiture The leading appellate treatises are useful sources for judicial decisions and other authority on specific issues involving forfeiture. For California law, see: Rutter Group Cal. Practice Guide, Civil Appeals and Writs (blue cover) Ch. 8 Witkin, Cal. Procedure Vol. 8 (Attack on Judgment and Writs) and Vol. 9 (Appeals) Cont. Ed. Bar. (CEB), Cal. Civil App. Practice Guide (red cover) Ch. 2 and 5 For federal law, see: Rutter Group Fed. Practice Guide, Ninth Circuit Civil App. Practice (green cover) Ch. 7 Ninth Circuit website at (Guides and Legal Outlines) For both state and federal law, see: Axelrad, Appellate Practice in Federal and State Courts (brown cover) Ch. 2 5

7 Forfeiture: A Four-Letter Word in the Court of Appeal Speaker Biography Kevin K. Green is a partner in the Appellate Practice Group at Robbins Geller Rudman & Dowd LLP in San Diego. Mr. Green received his B.A. from the University of California at Berkeley in 1989 and his J.D. from Notre Dame Law School in He clerked for two years at the Supreme Court of Indiana (Hon. Theodore R. Boehm, Associate Justice) and then for one year at the U.S. District Court for the Southern District of California (Hon. Barry T. Moskowitz, now Chief Judge). In 1999, Mr. Green entered practice in San Diego focusing on appeals and writs. In 2006, he became a Certified Appellate Specialist (State Bar of California Board of Legal Specialization). In 2011, he was elected to the California Academy of Appellate Lawyers. Mr. Green is active in the legal community. He has chaired the Appellate Court Committee of the San Diego County Bar Association, served on the State Bar Committee on Appellate Courts, and currently sits on the Appellate Advisory Committee (Judicial Council of California) and the Magistrate Judge Merit Selection Panel (Southern District of California). In his practice, Mr. Green has handled appeals across the country. Representative decisions: Duran v. U.S. Bank National Assn., 59 Cal. 4th 1 (2014) (amicus curiae brief) Luther v. Countrywide Fin. Corp., 195 Cal. App. 4th 789 (2011) Lynch v. Rawls, 429 F. App x 641 (9th Cir. 2011) Troyk v. Farmers Group, 171 Cal. App. 4th 1305 (2009) In re F5 Networks, Inc. Derivative Litig., 207 P.3d 433 (Wash. 2009) Smith v. Am. Family Mut. Ins. Co., 289 S.W.3d 675 (Mo. Ct. App. 2009) Alaska Elec. Pension Fund v. Brown, 941 A.2d 1011 (Del. 2007) (en banc) Ritt v. Billy Blanks Enterprises, 870 N.E.2d 212 (Ohio Ct. App. 2007) McKell v. Wash. Mutual, 142 Cal. App. 4th 1457 (2006) In re Guidant S holders Derivative Litig., 841 N.E.2d 571 (Ind. 2006) Lebrilla v. Farmers Group, 119 Cal. App. 4th 1070 (2004) Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003)

8 Forfeiture: A Four-Letter Word in the Court of Appeal Speaker Biography Justice Richard D. Huffman was appointed to the Fourth District Court of Appeal for the State of California by Governor George Deukmejian in October of 1988 following his tenure as a Judge of the Superior Court for San Diego County since April of Prior to his appointment to the bench, Justice Huffman served as Chief Deputy District Attorney for over 10 years and as Assistant District Attorney for the remainder of his 14 years service with the San Diego County District Attorney s Office. In those positions he was responsible for the overall supervision of a staff of 450, while at the same time personally taking to trial a number of complex and sensitive cases. His contributions to the administration of justice and his trial skills brought him four singular honors: Outstanding Prosecutor of the Year by the California District Attorneys Association, Outstanding Public Lawyer by the San Diego County Bar Association, Prosecutor of the Year by Citizens for Law and Order, and selection for membership in the American College of Trial Lawyers. He was also the recipient in 1988 of the San Diego Trial Lawyers Association s Trial Judge of the Year Award. In 2012 Justice Huffman was presented with the Ronald M. George Award for Judicial Excellence by the Judicial Council of California. Justice Huffman was admitted to the State Bar of California in January of 1966 following his graduation with a J.D. degree from the University of Southern California. He began his legal career with the State Attorney General s Office. For three of his five years there, Justice Huffman headed the Attorney General s Special Prosecutions and Organized Crime Unit for Southern California, also serving in a cross-designated capacity as Special Assistant United States Attorney for the Southern and Central Districts, as well as being a member of the Federal Strike Force on Organized Crime in Los Angeles. Additionally, Justice Huffman is a former Vice President of the San Diego Bar Association, served two terms on the State Bar of California s commission evaluating judicial nominees, and continues to serve as a law professor and a regular lecturer at programs for judges and attorneys. He has been a member of the adjunct faculty of the University of San Diego law school since 1972, and has served as a faculty member and as director of the University s International and Comparative Law programs in Guadalajara, Mexico, Oxford, England and Dublin, Ireland. He is a Judicial Fellow of the American College of Trial Lawyers, an honorary diplomate of the American Board of Trial Advocates, a member of the Board of Governors for the Association of Business Trial Lawyers, a founding director of the San Diego Inn of Court and a Master of the American Inns of Court. Justice Huffman was a member of the California Judicial Council from 1997 to 2011, and served as chair of its Executive and Planning Committee. He is currently chair of the Blue Ribbon Commission on Children in Foster Care, and chair of the Financial Accountability and Efficiency Committee for the Judicial Council. He has also served as co-chair of the Tribal Court/State Court Forum, chair of the Riverside Criminal Backlog Reduction Task Force, chair of the Criminal Law Advisory Committee, a member of the Appellate Advisory Committee, and chair of the Task Force on Photography, Broadcasting & Recording in the Courtroom (Rule 980 Task Force). A native Californian, Justice Huffman and his wife Caroline have resided in San Diego since They have one son, Richard.

9 JESSE W.J. MALE has been a member of the California State Bar since 2005 and is an associate attorney in the Inland Empire office of Fiore, Racobs & Powers. Mr. Male received his undergraduate education at Drake University in Des Moines, Iowa, where he graduated cum laude, in only three years, and earned his Bachelor of Arts (B.A.) degree in Economics and International Relations. In 2005, he obtained his Juris Doctor (J.D.) degree with honors from Drake University School of Law. While attending the School of Law, Mr. Male was a member and then Article Editor of the Drake Journal of Agricultural Law. Mr. Male previously served with the Army National Guard and United State Marine Corps Reserve. He finished his military service as a Judge Advocate in the California Army National Guard, where he was an Administrative Law Officer and then Trial Counsel for the 40th Infantry Division. Mr. Male was an associate attorney at Fiore, Racobs & Powers from 2005 to Prior to returning to Fiore, Racobs & Powers in 2014, Mr. Male served as a staff attorney for both the California Court of Appeal and the Review Department of the California State Bar Court, and operated his own appellate practice. He has worked on over 200 appellate matters, including Starlight Ridge South v. Hunter-Bloor (2009) 177 Cal.App.4th 400. Mr. Male also served as an Adjunct Professor of Law at the University of La Verne College of Law, where he taught Legal Analysis & Writing II and Appellate Advocacy. By appointment of the Board of Governors of the State Bar of California, Mr. Male serves as a member of the State Bar s Standing Committee on Appellate Courts. R

10 Rupa Singh is a veteran Staff Attorney at the Ninth Circuit Court of Appeals, where she presents her research and analysis to panels of Ninth Circuit judges on federal civil appeals in the areas of labor and employment, intellectual property, foreclosure, civil rights, bankruptcy, social security, tax, and environmental law. Colleagues and judges uniformly commend Rupa on her clear, thoughtful, and effective oral and written advocacy. Rupa also has ten years of complex commercial litigation experience at two prestigious Am Law 100 law firms, most recently as a partner at McKenna Long & Aldridge LLP, and previously as an associate at Morrison & Foerster LLP. At both firms, Rupa handled high-stakes, sophisticated litigation involving intellectual property, contractual, regulatory, consumer law, and tort disputes for international and Fortune 500 companies, ranging from Japanese biotech Fujisawa Pharmaceuticals, Inc. to telecommunications giant AT&T, Inc. Over the last fifteen years of her practice, Rupa has been an engaged and resourceful community leader. The San Diego County Board of Supervisors appointed her to its Commission on the Status of Women, where she was elected Vice Chair. Rupa is former president of the Federal Bar Association of San Diego; former Vice President and Board Member of the Lawyers Club of San Diego; and former Chair of the San Diego County Bar Association s Appellate Courts Committee. Over a decade ago, Rupa co-founded and served as the inaugural president of the South Asian Bar Association of San Diego, and also co-founded and presided over the national charitable Foundation of the South Asian Bar Association of North America. In addition to receiving the San Diego County Bar Association s 2007 Service to Diversity award, Rupa has received many distinguished service awards from the San Diego Volunteer Lawyers Program for her pro bono advocacy on behalf of domestic violence victims, and other recognition for her initiative and leadership. She has taught continuing legal education programs on topics such as civil procedure, business litigation, appellate practice, and elimination of bias. Rupa obtained her B.A. summa cum laude from the University of Pennsylvania in 1996, where she rowed on the Varsity Crew Team and was elected to Phi Beta Kappa. She received her J.D. magna cum laude from New York University School of Law in 1999, where she was an editor on the NYU Law Review and published her student note. Rupa served as a law clerk to Judge Irma E. Gonzalez (Ret.) of the Southern District of California from , and as ethics law clerk to Judge M. Margaret McKeown of the Ninth Circuit Court of Appeals from She is married to a telecommunications engineer, and the proud mother of two daughters.