Doing this job -- or at least writing this blog -- you get used to various personalities and institutions in the Court of Appeal. I was reminded of that when I read this otherwise totally innocuous amendment to a prior opinion. A tiny little thing. That states, in toto: "On page 5, footnote 7, beginning 'In raising this appeal,
appellant' is deleted in its entirety."
Okay. Out goes footnote 7. Guess it wasn't really necessary.
But I did just wonder: What did footnote 7 say? I know it starts with "'In raising this appeal, appellant . . . ." What's the rest?
Not much, as it turns out. But the "rest" is nonetheless meaningful.
The original footnote read, in its entirety: "In raising this appeal, appellant does not contend the officers should have been
designated as experts pursuant to Evidence Code section 801, subdivisions (a) and (b)." So the Court of Appeal deletes that footnote. Which leads one to believe that, well, maybe, appellant did contend that the officers should have been designated pursuant to Section 801.
Which in turn makes me think: Well, what about that?! If they did in fact argue that -- otherwise, why delete the footnote -- what about the merits of that argument. Does it work?
The Court of Appeal doesn't say.
Of course, the Court's under no obligation to say why it does what it does. So I can just deal. But I will say that the amendment nonetheless did leave an open question in my mind. Not a burning open question or anything, but still, something that the Court of Appeal might have liked to say something about. If, in fact, the reason for deleting the footnote was because the appellant did indeed argue the thing that the Court of Appeal (originally) said it didn't, and hence, that the Court of Appeal didn't address.
Now, the Court of Appeal not only doesn't have to satisfy my curiosity -- or anyone else's, for that matter -- but is also fairly busy. Though, in that regard, it probably bears mention that this is the Fifth District. In my experience, you can count on that district to publish an opinion about once every week or two. Rarely more.
So, for example, this (tiny) amendment was on November 14. The Fifth's most recent published opinion was two weeks earlier, on November 1. Then one a week before that, on October 23. Then October 19th and October 12th, then one on October 1, then just one opinion in all of September (on September 10).
Which is just a longwinded way of saying (and/or showing) that there aren't legions and legions of published opinions typically coming out of the Fifth. So maybe a tiny explanation for that argument that we're now hinting the appellant did, in fact, potentially make -- and its merits, or lack thereof -- might potentially be something we could do.
All of which is not to blame the Fifth. It's been understaffed, especially recently. It just got two new justices -- Justices DeSantos and Snauffer -- in August. Being two short can make a big deal for a district that only has ten or so justices when it's fully staffed. So I get it.
Still. Could have potentially seen a more detailed amendment on this one. If in fact the appellant did in fact make the argument we initially thought it didn't.
