Legal News and Appellate Tips

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations because that is the prerogative of the the Legislature, who has not enacted such a mandate. The court reasoned that the Superior Court was correct when it ruled that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”

Two charter schools and a former state senator, Richard Pan, who authored SB 277 out of a need for a “statewide standard,” filed a petition to depublish the opinion. Senator Pan argued that individual schools need to be able to set their own vaccination policies. He said that when he had urged, while a senator, a “statewide standard,” he meant only “a minimum standard.” Schools should not be able to ignore or relax state vaccine mandates, according to Pan, but schools should be able to impose new and stricter mandates.

The plaintiff, the parent of a child fully vaccinated except for the Covid vaccine, responded by noting that Education Code section 49405 states that “ on the subject of vaccination shall be adopted by school or local health authorities.” The plaintiff also noted that the opinion meets the requirements for publication under California Rules of Court rule 8.1105 because, among other things, it establishes a new rule of law or applies a new interpretation of existing law, and involves a legal issue of ongoing public interest.

On February 22, 2023, the Supreme Court denied the depublication request, and denied review.

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. The Supreme Court recently amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it. Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

High-profile and celebrity family law attorney Christopher Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff Lewis and Tim Kowal about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it.
This week, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it.
Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition, Covid-based excuses may garner extended appellate deadlines.

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!