Kowal Law Group Logo
wrong way

Court Rejects Appeal Based Entirely on New Case Counsel Chose Not to Mention

Tim Kowal     February 9, 2021

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative needed a two-thirds majority vote rather than a bare majority, another case on the same question was answered in a different case (that case is City and County of San Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703). The other case was unfavorable to appellants. The other case, though of parallel jurisdiction and thus not binding, nonetheless was decisive on the issues.

Appellants' counsel did not mention the unfavorable new case in their briefing. In fairness to appellants, the unfavorable new case only came out two months before their reply brief was filed. Sometimes very recent authorities escape counsel's attention. Unfortunately, appellants were also the same losing parties in the unfavorable new case (albeit represented by different counsel).

And removing all doubt, appellants' counsel admitted at oral argument she was aware of the unfavorable new case in time to brief it, but had chosen not to brief it because, she explained, that other case was "different."

The First District obviously did not agree. It exhaustively analyzed the unfavorable new case, found it persuasive, and adopted its reasoning.

"We admonish counsel," the court stated in its published opinion, "to candidly acknowledge such authority in the future." The court cited Jon B. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58 ["Your failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court."]; Rules Prof. Conduct, rule 3.3(a)(2) ["A lawyer shall not: [¶] . . . [¶] (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel," fns. omitted].

Before issuing its opinion, the court did invite further briefing from the parties on the new case. So counsel's misstep here did not effect any probable change in the court's opinion on the merits. But it likely effected a change in the court's opinion on her credibility.

h/t Ben Shatz.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram