Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Monday, March 16, 2009

"That's You", Part II.

From my Respondent's Brief, an excerpt of the introduction:

“Appellants’ Opening Brief (“OB”) comes with much sound and fury, but in the end signifies nothing.

"Inflammatory, inapt words like “evil” (OB, p. 9) and “immoral crime” (OB, p. 13) are bandied about with abandon (even including accusations that the trial court was “morally wrong” [OB, p. 18]), but they do not obfuscate the appeal’s overall lack of merit, persistent neglect of the facts and findings against them, and numerous fatal procedural defects.


"As has been said about this case, it is like arranging a car accident and calling it a personal injury case. (RT, p. 22:4-5.)

"In doing so, Appellants have failed to surmount mandatory procedural hurdles, which should result in the appeal being dismissed (at least in large part) without even having to reach its purported merits.

"First, while explicitly bringing a challenge to adequacy of damages (OB, pp. 2-3), Appellants failed to first bring a motion for new trial as required (as discussed more fully below). (E.g., Jenkins v. Dahnert (1962) 202 Cal.App.2d 567, 568 [21 Cal.Rptr. 15].)

"Second, while mounting a sufficiency of the evidence challenge (in large part), Appellants failed to cite a plethora of material evidence that supports the judgment (and is against their proffered conclusions). In such a case, “All the material evidence on the point and not merely their own evidence” must be presented to the appellate court. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416, 430]; emphasis in original.) “Unless this is done the error is deemed waived.” (Id.) Accordingly, where the sufficiency of evidence standard applies, Appellants’ claimed errors are waived.

"Third, Appellants improperly seek for the first time on appeal to hold the estate of [L] (who died before the complaint was filed) responsible despite they have failed to sue it in the trial court, or make any timely claim against it. ([Statement of Decision], pp. 6 and 12; and [Clerk's Transcript, p. 9, 10:7-9 and 45.) Principles of due process as well as California law regarding the separateness of trusts and estates preclude this prejudicial, untimely effort.

"[Appellants’] appeal fails to provide any basis for this Court to disturb the considered judgment on appeal. Accordingly, this Court should affirm in all respects.”

At oral argument, Appellants’ counsel picked up where his brief left off and spoke about the “disgusting” work his clients (in-home care providers) had provided, including dealing with incontinence, bathing and cleaning. Another of the justices interjected “I have to say counsel that when I found that kind of language in your brief I was very offended.”

When the justice made that comment, I wondered if he was saying he was offended by Appellants’ counsel’s attempt to emotionally sway the court with inflammatory (and irrelevant) language—a point I made in my brief (see excerpt above).

It didn’t turn out that way.

The justice then explained why he was offended. He said that his mother had been an in-home care provider and therefore found the description of the work as “disgusting” to be “very offensive”. He lectured the other attorney that the work they do is "honorable". This connection didn’t exactly cut my way either for obvious reasons.

Nevertheless, that justice as well as the other two voted to affirm in favor of my clients.