Tuesday, May 03, 2016

Hearn Pacific Corp. v. Second Generation Roofing Inc. (Cal. Ct. App. - May 2, 2016)

The Court of Appeal's published opinion does not mention the appellate attorney's name.  (For which that lawyer is undoubtedly incredibly thankful.)  Moreover, the list of counsel on appeal includes three different lawyers for the respondent; though the docket contains only one of them, Oakland attorney Jeffery Alan Chadic.

Here's a snippet of what Justice Stewart's opinion says about counsel for the respondent.  Suffice it to say:  the Court of Appeal was not pleased:

"For [Respondent] Hearn to turn around now and argue the opposite -- that 'Hearn remained the only party asserting its claims' and that section 368.5 does not apply -- without so much as even a nod to what it said in its pleadings, is baffling. There are limits to appellate advocacy, chief among them a duty of candor to the court. (Rules Prof. Conduct, rule 5-200.) It may be Hearn has some explanation for its change of tune, but the explanation is not to be found in the 32 pages of briefing Hearn has filed on appeal, nor did it surface in any way at oral argument. Responsible (not to mention, effective) appellate advocacy requires confronting serious potential obstacles, not burying one’s head in the sand to them, be they potentially controlling adverse authorities or problematic portions of the record. As has been said by the federal circuit that is home to Chicago’s Lincoln Park Zoo: 'The ostrich is a noble animal, but not a proper model for an appellate advocate.' (GonzalezServin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934 [Posner, J.].)"

There's lots more in the opinion as well.  The last real shot the Court of Appeal gets in on counsel for respondent is fairly typical of what you see throughout the thing; e.g., "For the first time on appeal, Hearn also contends in scattershot fashion the 'purported' assignment was invalid on a number of grounds. The position borders on frivolous, and also rests in large part on repeated violations of the rules of appellate briefing."  Yikes.

Sometimes you lose.  Sometimes you lose really, really big.

And the Court of Appeal doesn't even bother to hide -- indeed, goes out of its way to express -- its displeasure with you.