Hobby Lobby lesson

Appellate practitioners can glean an important lesson from yesterday’s Hobby Lobby argument: Beware of raising arguments which clearly are not going to be productive.

The government’s merits brief led off with the assertion: “RFRA does not grant free-exercise rights to for-profit corporations.” Although standing arguments can result in a “home run” in the sense the other side is kicked out of court for procedural reasons, Solicitor General Verrilli ended up spending an inordinate amount of time responding to questions concerning his standing argument such as:

Justice Scalia: . . .  There is not a single case which says that a for profit enterprise cannot make a freedom of religion claim, is there?

Although appeals generally are decided based on briefing, rather than oral argument, you don’t want to waste your limited argument time on loser issues either.  Once you brief an issue, the Court can hammer you on it all it wants, detracting from the limited time you have for your main points.

transcript here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf

for briefing, see Becket fund site:



Falcon v. Long Beach Genetics (D062807) March 21, 2014

In this published case, the Court not only shoots down an appeal from a summary judgment motion, but first takes the lawyer to task for poor briefing, both in the trial court and on appeal:

We set out the undisputed material facts as ascertained from the parties’ moving and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327) and state other facts and draw inferences from them in the light most favorable to plaintiffs.  (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)  Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs’ claimed disputes as to defendants’ enumerated material facts pertaining to the section 47(b) privilege.  Plaintiffs’ opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence.

To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation.  Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C).  We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment.  (See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5 [“The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court.”]; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1025.)

Substantively, the case involved a couple who had obtained a DNA test at no cost through the San Diego County Superior Court after a the County initiated a paternity action.  Long Beach Genetics determined Dad was not the dad, but in reality he was;  the lab had mixed up the data, prompting a negligence action, which was dispensed with at the trial court by summary judgment.

The Court of Appeal held the litigation privilege (Civ. Code 47, subd. (b)) applied because “DNA testing was sought to assist County in the then pending proceeding to ascertain minor’s paternity; defendants’ acts in conducting the test and communicating its results plainly furthered that goal, and had some logical relation to the action.”  In addition to elaborating on the privilege, the opinion contains a helpful recitation of summary judgment procedural requirements (and some nice law if you are defending a deficient summary judgment on appeal).

So, aside from the fact a question of damages appears questionable to me, as the child really was Dad’s biological child, the moral is “you get what you pay for,” and if you want to sue someone for negligence, pay for your own test.  And also, get your paperwork in order.