ISSUE OF HEARING UNPRESERVED ISSUES AND CITING TO DEPUBLISHED CASES AS CONTROLLING AUTHORITY ON THIS ISSUE
Everyone is taught via MCLEs and supervisors that trial counsel forfeits an issue for review when they do not ensure that that objection or issue has been read and considered by the bench officer. They teach us that anything out of the court stating “on the record the court has read and considered” has not made it into the trial court record and counsel needs to take steps to ensure that thing is admitted properly. In the most recent published LPS Conservatorship case, the appellate court reminds everyone of this “exception” to the rule.
“The public guardian argues C.O. forfeited his jury trial claims because he failed to raise them in the trial court and fully participated in the court trial. C.O. acknowledges, and the record before us supports, that neither he nor his appointed trial counsel presented to the trial court the claims he now asserts” Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
However, the appellate court reminds the PG of its inherent authority to hear issues even if they are forfeited.
As a general rule, “a party may forfeit [the] right to present a claim of error to the appellate court if he did not do enough to ‘prevent or ‘correct’ the claimed error in the trial court.” The forfeiture doctrine is not absolute, however, as we are “generally not prohibited from reaching a question that has not been preserved for review by a party.” (Ibid.)
Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
We elect to decide the merits of C.O.'s claims. There are no disputed facts at issue and the parties agree, as do we, that our review of his claims are de novo. Under these circumstances, we exercise our discretion to address the merits, notwithstanding C.O.'s failure to raise the claims in the trial court.
Sure the appellate court stated its reasons however, this runs into the next issue. We are taught by supervisors and the writ department that we need to shepardize/keycite our briefs because we can get into trouble for citing unpublished/depublished cases, California Rules of Court, rule 977(a) citation of a case which has been ordered depublished. We were taught in an MCLE that the court in Alicia T. v. Cty. of Los Angeles, clearly admonishes and sanctions counsel for their reliance on an unpublished case. The Alicia T. court rejected counsel’s brief because the offensive citation was used for more than the mere form of the brief as counsel used it for proving a key point in their theory. (Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, 886 (Cal. Ct. App. 1990)
In making its argument, if the appellate court wished to rely on a case for stating that it exercised its discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues, then shouldn’t the appellate court have cited to “good law” rather than a depublished case?
The court in Conservatorship of C.O., cited to Conservatorship of Bryan S. This case when shepardized/keycited clearly states that it is certified for partial publication. The appellate court in C.O.’s case cites to the very section that is ordered depublished.
Bryan Forfeited His Timeliness Objection.
** [NOT CERTIFIED FOR PUBLICATION]
B. Bryan Did Not Have a Right To Refuse To Testify Based on Equal Protection Principles.
Bryan next argues that requiring him to testify violated his equal protection rights because others who are subject to different kinds of civil commitments cannot be compelled to testify. Although Bryan again did not raise this issue below, we exercise our discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues. We nonetheless reject Bryan's argument on the merits.
Conservatorship of Bryan S., 42 Cal. App. 5th 190, 194, 255 Cal. Rptr. 3d 195, 199 (2019), review denied (Mar. 11, 2020)
I would contend that when the appellate court in Conservatorship of C.O. cited to the unpublished portion of Conservatorship of Bryan S. to support its issue of the appellate court extending its discretion and hearing issues not raised at the trial court level, it made an error similar to that of counsel in Alicia T. as the court in issuing its opinion relied on (1) a section from a partially published case and (2) used that de published section to support its substantial claims.
Under California Rules of Court, rule 18, when a brief fails to comply with the rules the defective brief may be: (a) returned to counsel for correction and redeposited, (b) ordered stricken with leave to file a new brief within a specified time, or (c) considered as if properly prepared.
I would presume the third option would be the most likely basis for rebuttal if counsel filed for review of the sixth district’s discretion and chooses to rely on this misapplication of the law as grounds for review. Obviously, a writ of mandamus would not be successful but in a perfect world it were, do you think that the California Supreme Court would apply the abuse of discretion standard given that the lower court had made a discretionary ruling (like whether to allowing an unpreserved claim to be heard despite lack of a trial record)? Generally, because abuse of discretion gives the most deference to the lower court, that court’s decision will not be reversed unless maybe there is a finding of "plain error".
Juvenile Dependency and