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JUSTICE MORENO STILL MIXES IT UP WITH ANNUALS Carlos Moreno, the only California Supreme Court justice who continues to hire annuals — staff attorneys who rotate on and off the court for about a year at a time — has picked the next two who will grace his chambers. They are Clay West and Sandra Sepulveda, and they are expected to join the court in February. “Both are highly intelligent, excellent writers and I think we seem to connect on a personal level,” Moreno said last week. West, a 2001 graduate of Yale Law School in New Haven, Conn., currently clerks for Senior Judge R. Guy Cole Jr., who’s been on Cincinnati’s Sixth Circuit U.S. Court of Appeals since 1995. Sepulveda graduated this year from Stanford Law School, Moreno’s alma mater, and, according to the justice, is studying for the Bar. He said Sepulveda, who attended UC-Berkeley, externed for him for two years on the Los Angeles federal court. West and Sepulveda will replace Tal Klement and Alison Markovitz, who came to the court from Moreno’s L.A. court in October. By the time they leave the high court, Klement and Markovitz will have worked there close to a year and a half, the time frame Moreno has in mind for their replacements. All six other Supreme Court justices have forsaken the hiring of annuals in favor of permanent staff attorneys. But Moreno said he likes to give recent law school graduates an opportunity to work for “a prestigious appellate court” and enjoys the “infusion of new ideas, new perspectives.” “You feel like you can teach them and learn from them,” he said last week. “And both of my [current] annuals have done a superb job.” Moreno’s permanent staff comprises research attorneys Steven Levine, a former L.A. County deputy district attorney; and Robert Katz, who was on the late Justice Stanley Mosk’s staff for eight years. Moreno’s chief of staff is Gregory Wolff, a member of Chief Justice Ronald George’s staff for many years. Many seasoned court observers like the idea of having rotating staff mixed in with long-timers. It’s good, they said, to have staffers who know their way around the court, but it’s also good to have fresh ideas to consider. — Mike McKee MOVING RIGHT ALONG Former San Francisco Superior Court Judge Kevin Ryan slipped off the bench just in time. Shortly after he was sworn in as Northern California’s new U.S. attorney last month, an appellate court reversed him twice. But in both instances, the First District Court of Appeal conceded it was a close call. In the first case, the three-judge panel ruled Ryan improperly removed a juror during deliberations in the murder trial of Daniel Alas. Alas was convicted of the second-degree murder of Anton Segal, a doorman at a San Francisco strip club. Segal was beaten with a car anti-theft device. During the second day of jury deliberations, the foreperson sent the judge a note saying a juror “in his heart of hearts” could not follow the law. After concluding there was a “demonstrable reality” the juror could no longer deliberate, Ryan excused him. But in ordering a new trial, the appeal court said Alas was denied his constitutional right to a unanimous verdict based on recent Supreme Court decisions regarding the removal of jurors. “The decision to intervene, then, can be treacherous,” Justice Patricia Sepulveda wrote. “The only advice we can offer judges on the firing line is to remind them what we think the cases teach.” In the second reversal, the same appellate court reversed Ryan for doing the right thing for the wrong reason. The judge ordered Jehad Baqleh, a cab driver accused of raping and murdering a woman, to undergo a psychiatric examination on his fitness to stand trial. But the appellate panel held that Ryan failed to follow the Civil Discovery Act in ordering the examination as requested by the prosecution. “As a result, the order directing petitioner to submit to examination � fails to adequately specify the time, place, conditions, scope and nature of the examination, as required by the statute,” wrote Presiding Justice J. Anthony Kline. — Dennis J. Opatrny PLANNING AHEAD When First Union Securities signed an arbitration agreement as part of a deal to buy and sell stock for En Pointe Technologies, it was probably unaware that it had just insulated itself from a future shareholder’s suit. California’s Second Appellate District ruled last week that because of the agreement, the bank cannot be sued by En Pointe shareholders who alleged that En Pointe executives and First Union conspired to artificially drive up the price of En Pointe stock. Kenneth Frederick, a shareholder of En Pointe, sued both parties, claiming they pumped up the stock’s price so insiders could line their pocketbooks before the stock crashed. First Union, per the arbitration agreement, sought to have itself removed from the suit. Writing for a three-judge panel, Justice Norman Epstein agreed. “Plaintiff is not bringing this action on his own behalf, but derivatively on behalf of the corporation. The causes of action do not belong to him, but to En Pointe,” Epstein wrote. Even though the executive who signed the agreement for En Pointe was a target of the suit, the court held that, nevertheless, the company (and thus its shareholders) was bound by the agreement. When En Pointe stock was at its pinnacle in early 2000, insiders sold nearly 700,000 shares during a two-week span. According to the court, Frederick v. First Union Securities, 02 C.D.O.S. 6757, is only the second reported shareholder derivative suit to be ordered into arbitration. — Jason Hoppin CROSSING THE LINE Lawyers have a lot of leeway in making closing arguments at trial, but implying that the judge condones lying apparently goes too far. Last week, Los Angeles’ Second District Court of Appeal ruled that Santa Monica plaintiffs lawyer Ian Herzog acted improperly by implying that his clients’ misrepresentations to Allstate Insurance Co. were no worse than the trial judge’s decision to give jurors credit for showing up on days when the court wasn’t in session. “Allstate had the right to have a decision made without having the jury being polluted with snide insinuations that some of them might be committing judicially approved fraud,” wrote L.A. County Superior Court Judge Aurelio Munoz, who was sitting by designation. In the case, Fareed and Rashiba Cassim had been awarded more than $9.8 million in damages and nearly $1.2 million in attorneys fees in a policy dispute with Allstate over an arson fire at the Cassims’ Palmdale home. During the trial, L.A. County Superior Court Judge Harold Cherness had let jurors show up on off days, sign up for jury credit and leave without going to work. Herzog, a past president of Consumer Attorneys of California, implied in closing statements that what the judge had let jurors do was equivalent to the alleged lies his clients had made to Allstate. Cherness overruled the defense lawyer’s objection. The appeal court said the comments went too far. “When counsel made reference to the fact that some of the jurors might be accused of cheating, there was no question he was letting the jurors know that the court had no objections to the procedure,” Judge Munoz wrote in Cassim v. Allstate Insurance Co., 02 C.D.O.S. 6797. “When the objection was [overruled] there was nothing else [defense] counsel could do except object again, which would have had the effect of drumming home to the jury that the court thought a little cheating was permissible.” The ruling, in which Justice Fred Woods Jr. concurred, reversed the lower court judgment. Justice Earl Johnson Jr. dissented, saying the plaintiffs’ lawyer’s comments were not that serious and were limited to less than two pages of a 15,000-page transcript. “I conclude the analogy drawn by plaintiffs’ counsel here, if error, was not error sufficient enough to justify reversal of this jury verdict,” he wrote. “The lawyer’s ‘remarks’ were temperate, not hot-headed, aimed at the jurors’ reason � not to arouse their passions.” — Mike McKee

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