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Pity Matthew Mulford. The young deputy attorney general from San Diego fell on a sword Wednesday for Riverside’s Fourth District Court of Appeal. It was Mulford’s duty to defend the Fourth District’s Division Two for its policy of issuing notices to lawyers that the court has reached a tentative decision in upcoming cases and advising them that oral argument really isn’t needed. Those who insist on arguing anyway risk sanctions if they repeat any of the arguments in their written court briefs. Mulford was virtually eaten alive by several of the justices who felt the appellate court had gone too far and improperly deterred attorneys from seeking oral argument. It was the court’s feeling that lawyers’ clients might have a constitutional right to oral argument, even if that’s not stated outright. “Isn’t counsel put in a damned-if-you-do, damned-if-you-don’t position?” Chief Justice Ronald George asked Mulford. “There doesn’t seem to be much of a way out.” George, as well as Justices Joyce Kennard and Kathryn Mickle Werdegar, argued that the Fourth District’s policy of prohibiting any repetition of briefs, along with its threat of sanctions combined with the fact that new issues can’t be raised at oral argument by law, hamstrings lawyers. “What’s left for counsel is to stand in front of the bench,” Werdegar said, “and say, ‘We’re ready for questions,’ when the court has already said, ‘We don’t have any.’” When a shaken Mulford said the appeal court was just trying to provide guidance for lawyers, George pounced again. “How’s that guidance?” he asked, “It’s more like a mat outside the courtroom door saying, ‘Counsel not welcome.’” Earlier, Mulford had said the Fourth District’s notice that it had reached a tentative ruling and needed no more help via oral argument is its way of “hinting” that the lawyers could be wasting his or her time. “Hinting?” George huffed. “It’s more like hitting somebody over the head with a two-by-four, isn’t it?” George also noted that the California Academy of Appellate Lawyers had weighed in with an amicus curiae brief opposing the practice. San Luis Obispo solo practitioner Daniel Mrotek challenged the policy after Justices Barton Gaut, Thomas Hollenhorst and Betty Richli — all from the Fourth District’s Division Two panel — upheld Jose Pena’s convictions on felony drug convictions. The justices had issued their standard notice in the case, saying oral argument wasn’t necessary. Mrotek didn’t pursue it and told Kennard on Wednesday that he had, indeed, been deterred by the court’s adamancy and the threat of sanctions for repeating any issues raised in briefs. “We must assume,” he said, “that what a court says is what a court means.” Justice Ming Chin noted, seemingly as a devil’s advocate, that the court’s policy could be a wise way to save judicial resources by emphasizing stronger cases over weaker ones. And the chief justice noted that the high court itself frequently advises lawyers by letter that they should focus their arguments on a particular topic. “Now that doesn’t mean you couldn’t raise other issues,” George said. “But it does highlight areas that counsel could look at to help the court.” He also asked whether appellate justices could suggest a certain time limit for arguments — such as 10 minutes per side — as an alternative to suggesting none at all. Mrotek said he saw nothing wrong with the courts focusing the discussion or even setting a time limit, but not in chilling the possibility of oral argument. “The court has no business suggesting how an attorney should exercise this right,” he argued. “Counsel must decide that themselves.” The case is People v. Pena, S106906. In a second case, the high court justices seemed skeptical that state legislators meant to allow attorneys fees in all bad faith defamation or slander suits, not just those against peace officers. Code of Civil Procedure § 1021.7 allows courts to award attorneys fees in any case brought against a peace officer, “against a public entity employing a peace officer or in an action for libel or slander.” San Francisco’s First District held in 2001 that the word “or” in the language broadened the meaning of the statute to allow attorneys fees in all bad faith slander or libel cases, that it was separate from the peace officers portion. That directly contradicted Planned Protective Services v. Gorton, 200 Cal.App.3d 1, a 1988 ruling by San Diego’s Fourth District, Division One. In Wednesday’s case — Martin v. Szeto, S103417 — the First District let two men pursue attorneys fees against Craig Martin after the San Francisco solo lost a slander suit against them. Martin had sued, claiming the men — Richard Szeto and Anthony Lincoln — had defamed him by falsely telling a potential client he used narcotics. Several of the high court justices indicated Wednesday that they felt the Legislature was clear that § 1021.7 was meant to apply only to peace officers, and that otherwise it would violate the single-subject rule — that a statute embrace only the sole subject expressed in its title. Justices Chin and Marvin Baxter noted that even the American Civil Liberties Union had written a letter of support at the time of the law’s passage and indicated satisfaction that it would be limited to peace officers. Martin represented himself and was opposed by Corte Madera lawyer Mattaniah Eytan.

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