Weekly Appellate Report Podcast

Appellate Practice

April 2017



This week's show regards a lot of procedure, and also a couple of firsts: Neil Gorsuch's first day on the U.S. Supreme Court bench, where he heard oral arguments in an class action securities appeal brought by the California agency charged with managing public employee pension funds. The second first: the state high court's clear enunciation that mandatory civil procedure rules and jurisdictional procedural rules are not the same thing. Both augur meaningfully for class action attorneys and civil practitioners generally.

Professor David Engstrom, of Stanford Law School, joins the show first to discuss the SCOTUS case, California Public Employees' Retirement System v. ANZ Securities, Inc., which poses a class action procedure question: whether statutory time limits rightly bar putative class-actions plaintiffs who opt out of a class suit to pursue their claims individually, but who do so after the statute's time limit has run. Professor Engstrom explains why barring such suits counters standing precedent, and would have the undesirable consequence of flooding district courts with putative class members' protective actions. He'll also discuss how Neil Gorsuch quickly got into they fray in his first day of oral argument, and how Gorsuch's addition to the Court might tip this case.

Then, Audra Ibarra, from the California Appellate Law Group, will explain the important procedural development created by the Cal. Supreme Court's ruling in Kabran v. Sharp Memorial Hospital. In that ruling, the state high court clarified conflicting precedent and held that mandatory procedural rules are different from jurisdictional ones (whereas prior case law had sometimes treated them synonymously), such that objections to the former can be waived if not raised at trial. In this case that meant a new trial motion, which was granted even though its supporting documents were untimely filed, was properly upheld when the defendant first raised the timing issue on appeal. Ms. Ibarra further explains just how civil law attorneys can discern the difference between mandatory and jurisdictional rules, and what the difference might mean for your motion or appeal.

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