Tuesday, September 30, 2014

PMRA v. County of Alameda (9th Cir. - Sept. 30, 2014)

You don't get a plethora of dormant Commerce Clause cases in the Court of Appeals.  Even in these relatively conservative times.

But here's one.  And it's fascinating.

The facts are fairly straightforward.  Alameda County passed an ordinance in 2012 that essentially requires prescription drug manufacturers to set up and run "kiosks" in which customers can safely return unwanted drugs.  Makes a lot of sense.  We want people to be able to safely dispose of now-unwanted prescription drugs, rather than keeping them about for others to steal, abuse, or mistakenly consumer.  The prescription drug companies benefited from the initial sales.  So they should cover the costs of disposal.  Fair enough.

The drug companies, however, alongside a plethora of conservative interest groups as amici, claim that the ordinance violates the dormant Commerce Clause because all of the relevant prescription drugs travel in interstate commerce.  Judge Randy Smith demolishes this argument.  In an opinion that you can hardly claim is authored by a flaming liberal who's never met an economic regulation that he didn't like.

So that's how the merits get resolved.

For me, however, there's one portion of the ordinance that's discussed at some length in the opinion but that nonetheless continues to trouble me.

The ordinance indisputably obtains local benefits; i.e., protects the health of residents of Alameda County.  But under the statute, the seven-figure cost of that regulation also indisputably is borne largely by consumers outside of this locality.  That's because the statute affirmatively prohibits the drug manufacturers from imposing a "tax" or "fee" on local purchases in order to reimburse the manufacturers for the cost of the program.  As a result, the people of Alameda County benefit from the program, but the cost of that program is borne almost entirely by people outside of Alameda County (in the form of higher prices).

That doesn't seem entirely fair, does it?  As a matter of equity, one might think that the costs of a program that benefits a particular locality should be borne by that locality.  A result that the Alameda ordinance expressly precludes by barring drug companies from charging local residents for the cost of the program via a tax or fee.

Judge Smith hold that, as a constitutional matter, that's not a huge problem.  And his reasoning on this point isn't at all frivolous.  The program costs a million bucks or so.  As contrasted to the billion or two that the drug companies make.  The program's not disproportionate.  It doesn't result in a huge increase (at all) in drug prices.  It's a fairly minimal burden in the scheme of things.  And it doesn't have the effect of precluding the importation of drugs, either de jure or de facto, into the county.  So it's constitutionally permissible.

I get all that.

But it nonetheless seems to me that there's a serious agency problem here.  Alameda County obtains costly benefits for its residents at virtually no cost to itself but at real costs to others.  You can see the systemic problem with such a regime.  If Alameda County can do that -- and you see the incentive for it to do so -- then so can everyone else.  Every locality can obtain local benefits and externalize its costs.  Even when the local benefits aren't even close to equivalent to the costs.  You're not paying them.  Why should you care?

That's the very definition of a collective action problem.  Too many cows on the commons.  To allow a structure the permits localities to externalize the cost of local benefits is to legitimize a subpar, and monstrously inefficient, institutional regime.  And that's exactly what the ordinance does by barring the drug companies from imposing fees that impose the burden of the ordinance on those who benefit by it.

You can see why you'd want to gussy that up into a constitutional argument.  Maybe even a valid one.

So, for me, the most difficult part of the ordinance is the "no fee" provision.  Everything else I'm entirely comfortable with.  Seems perfectly fine.  But that "no fee" part continues to trouble me.

Ultimately, Judge Smith says that if there's a problem with the ordinance, it's up to the other branches of government.  Okay.  I get that.  He's undeniably correct that if the federal government thinks this is a problem, Congress can preempt ordinances like Alameda's.  Absolutely right.

But I'm perhaps a little more worried than Judge Smith is about the separate agency problems with that potential solution as well.  I'm not sure that Congress really has the practical ability to respond to every penny-ante extraction propounded by a particular locality.  Yeah, if it becomes a trend, or if a particular ordinance is particularly burdensome, I have no doubt that the pharmaceutical companies (and their well-paid lobbyists) will be on it like white on rice.  So maybe, given the practical reality of the agency-cost-laden world in which we live, I shouldn't worry so much about the agency costs I definitely see associated with the particular ordinance at issue here.  These are big boys.  They can more than take care of themselves.

But there's nonetheless still something that nags at me at the codification of the resulting principle as a matter of constitutional law.  Because extractions aren't always taken from the powerful.  Sometimes they're taken from the weak.  And the principle here doesn't articulate a difference.

Interesting stuff.

Monday, September 29, 2014

Deck v. Jenkins (9th Cir. - Sept. 29, 2014)

Stephen Robert Deck was a lieutenant with the California Highway Patrol.  He started chatting online with someone he thought was a 13-year old girl named "Amy".

You already know where this is going.  Both what Mr. Deck wants from "Amy" and whether "Amy" is really a 13-year old girl.

Deck drives 45 minutes to meet "Amy" in a public place and tells her that even though he's sick, he "probably won't be able to my hands off you."  The police arrest Deck when he comes to the purported meeting, and in his car, they find not only MapQuest directions to "Amy's" apartment but also "six packaged condoms past the listed expiration date."

Seriously, dude?

I'll not recount in detail the underlying legal fight in the Ninth Circuit.  Suffice it to say that Judge Christen, joined by Judge Thomas, grants habeas relief based upon a fairly central misstatement of law made by the prosecutor in closing argument.  Judge Milan Smith, by contrast, not only dissents, but also helps to author the California Attorney General's petition for certiorari.  Judge Smith's dissent begins by saying:

"I respectfully dissent.  The Supreme Court has repeatedly—and often unanimously—reversed our circuit’s decisions granting § 2254 relief. For example, in its four most recent terms, the Supreme Court has reversed us thirteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254, ten of which reversals have been unanimous. In my view, this case is yet another candidate for reversal because the majority flouts clear Supreme Court AEDPA precedent in order to justify its holding that a state court’s decision is incorrect."

Judge Smith then goes on to explain this conclusion at length.

Judge Smith's dissent contains a decent predictive argument as to what might well end up transpiring in this one.  But it simultaneously goes the other way as well.  Judge Smith ends his dissent with the following quote from Justice Scalia:

"It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit."

That definitely supports Judge Smith's argument that at least some members of the Supreme Court are more than willing -- desirous, even -- to reverse habeas relief grants by the Ninth Circuit.

But it also bears mention that this quotation from Justice Scalia was from one of his dissents from the denial of a writ of certiorari.

Proof itself that Supreme Court review of this one is far from certain.

P.S. - In a twist of fate, the Ninth Circuit publishes this opinion involving a fake 13-year old girl on the same day my daughter turns 13.  Happy birthday, Sierra.

Stay out of chat rooms.

Friday, September 26, 2014

Hendershot v. Ready to Roll Transportation (Cal. Ct. App.- Aug. 14, 2014)

Talk about classy:

"On May 24, 2012, the plaintiffs filed a putative class action against the defendant for failure to pay overtime wages, among other causes of action. The complaint alleged that the putative class members were non-exempt employees who chauffeured vehicles for the defendant, and that the defendant failed to compensate them for periods when they were required to remain on-call in between trips transporting clients. . . .

On June 28, 2012, the plaintiffs propounded requests for production, requests for admissions and a form interrogatory on the defendant. On July 27, 2012, the defendant asked for a one-month extension to respond to the discovery. The plaintiffs conditioned such an extension on the defendant’s agreement that it would provide (1) “good faith, substantive responses, and not simply objections” as well as (2) “the contact information for all putative class members.” The defendant’s counsel “agree[d] to the proposal” and said it would employ a “[Belaire] notice procedure” [i.e., opt-out notices] to provide the plaintiffs’ counsel with contact information for the class. The defendant’s counsel committed to providing the plaintiffs’ counsel with a draft of a Belaire notice within a week.

The defendant thereafter obtained new counsel. On September 7, 2012, the defendant’s new counsel acknowledged the parties’ agreement regarding the discovery extension but asked for additional time to “review the [Belaire] Notice [and] communicate with my client about the details.” The plaintiffs’ counsel agreed to the extended timeframe, and the defendant’s counsel agreed to finalize the Belaire notice by September 26, 2012.

However, the defendant’s counsel did not send the plaintiffs’ counsel a draft Belaire notice. On September 18, 21 and 25, 2012, the plaintiffs’ counsel contacted the defendant’s counsel by phone and email seeking to determine if the defendant had any revisions to the draft Belaire notice. The defendant’s counsel did not respond. During this time, the defendant’s chief executive officer, Gale Ricketts, met individually with 29 putative class members and obtained their signatures on agreements releasing any and all claims they might have against the defendant.  [Several of the "settlements" were for $5.00.]

The defendant served its discovery responses on the plaintiffs in September. On October 29, 2012, the plaintiffs moved to compel further responses to their discovery requests, including the request seeking all documents pertaining to defenses the defendant intended to assert in this action. The plaintiffs argued that, in spite of the defendant’s prior agreement to provide substantive responses to the discovery in exchange for an extension, the defendant had refused to respond to over half of the requests for admissions and the related Form Interrogatory 217.1, had asserted boilerplate objections to certain requests for production, and had only produced a portion of responsive documents. On December 11, 2012, the court granted the motions. The defendant was ordered “to file supplemental responses as prayed for” by December 21, 2012, and to pay the plaintiffs $10,000 in attorney’s fees. . . .

The parties’ counsel agreed to set Ricketts’ deposition for January 31, 2013, and, accordingly, the plaintiffs’ counsel noticed the deposition for that date. However, on January 30, 2013, the defendant’s counsel informed the plaintiffs’ counsel that Ricketts would not appear for her deposition because she had, for some unexplained reason, traveled out of state. The plaintiffs’ counsel objected on the grounds that the parties’ counsel had previously agreed to this date and the deposition had been properly noticed. However, Ricketts did not appear for the deposition."

Defendants ultimately persuade the trial court to deny class certification because even though the plaintiffs thought there were 53 class members, since defendants had now settled and/or agreed to arbitrate with almost all of them, there were only nine left -- the three named plaintiffs and six others.  Hence the trial court held that the proposed class did not satisfy the numerosity requirement.

You can imagine how the Court of Appeal -- properly, in my view -- reacted to the discovery and other shenanigans of the defendant below.  Suffice it to say that the Court of Appeal reverses and remands.

Notwithstanding the fact that, yes, there might indeed be only nine members of the class.

Thursday, September 25, 2014

Golightly v. Molina (Cal. Ct. App. - Sept. 25, 2014)

"Gloria Molina" is a real name, and it's the name of the lead defendant in this case (LA County Supervisor Molina).  You might think that "Robert Glen Golightly" is a fake name -- homage to Truman Capote's Holly Golightly, or Audrey Hepburn in the film version of the book.

But, no, it's a real name.  At least a legally real name.  Of this guy.  Who's darn serious about suing the Board of Supervisors for an alleged Brown Act violation.  As well as trying to recover a seven-figure award of attorneys' fees even though he loses.

No dice.  At any level.


Holguin v. DISH Network (Cal. Ct. App. - Sept. 22, 2014)

Cable television is expensive.  Ditch cable!  Let's sign up for satellite television!

That's what the Holguins (from San Diego) thought, anyway.  They signed up for DISH Network in 2006.  And the guys show up as planned to install the satellite antenna and relevant cable.

Apparently -- and I didn't know this before reading the Court of Appeal's opinion -- sometimes, the guys snake the cable down a sewage pipe.  Easier, I guess, than going through the walls vertically.

But that means that once you drill through the sewage pipe, you've got to make sure to patch the pipe back up once you're done.

Which the DISH Network installers didn't do here.

Oopsies.

You can figure out what transpired next.  Sewage.  Mold.  Lawsuit.  Trial.  Judgment.  Appeal.

Suddenly cable isn't looking so bad.  By comparison, anyway.

Wednesday, September 24, 2014

Mercury Casualty & Ins. Co. v. Chu (Cal. Ct. App. - Sept. 24, 2014)

I'd have thought that the insured was totally out of luck in this one.

I'd have been wrong.

Chu's driving a car and his roommate Pham is his passenger.  Chu hits another car, and Pham is injured.  Chu sues Pham for his injuries.

Not surprising that Pham would win, since Chu's at fault in the accident.  But this dispute is about insurance coverage.

Chu has a minimal $15K/$30K auto insurance policy with Mercury Insurance.  But that policy -- like pretty much every one I've ever had and/or seen -- expressly excludes coverage for injuries to anyone with whom you reside.  So if you accidentally hit your spouse (or child) with your car, or they're in the vehicle and get injured in an accident in which you're driving, your insurance doesn't cover that.  Your wife and/or child can't sue you and get money from the insurance company.

Ditto for roommates.  Or other relatives with whom you live.  If they live with you, your policy does not cover your injuries to them.  The policy couldn't be clearer.  And Chu and Pham repeatedly admit in sworn testimony that they live together.

End of story, I figure.

Not so.

Justice O'Leary's opinion persuades me.  Yeah, that's what the policy says.  But that doesn't mean it's legal.  California has an interest in providing insurance coverage for victims of accidents.  It has thus passed a statute that regulates exclusions in policies.  One of those is admittedly relevant here:  it says companies can exclude coverage when the benefits of that coverage would ultimately inure to the benefit of the insured.  Hence the spouse example.  There's no coverage for that since letting your wife sue you and get money from your insurance company would essentially flow money your way.  Something that precedent affirms isn't required.

But Justice O'Leary holds that what's true for your resident family members isn't true for roommates.  Letting your roommate get money from your insurer doesn't flow back to you.  He's your roommate, not your spouse.  So since the exception in the statute doesn't apply, the exclusion is void as against public policy.  Hence Pham gets to recover his $330,000.

Mercury Insurance doesn't like that result.  It says that the reason for the exclusion is because there's too much risk of collusion.  We don't cover husbands who hit wives, it contends, because there's then we'd be worried that husbands might deliberately hit their spouse in order to collect insurance money.  Ditto for roommates.  They might be scamming the system.

But Justice O'Leary articulates the right response.  We trust juries.  They get to separate out the true "accidents" from the frauds.  The risk of collusion shouldn't invalidate coverage when, as here, there is no reason at all to believe that it's a fraud.  Plus, Justice O'Leary rightly notes that if we're worried about collusion between non-related roommates because they're "friends", there's no limit to that principle.  Friends can collude even if they don't live together.  Mercury's argument proves too much.

So there's insurance coverage.  Pham gets his money notwithstanding the provisions of the policy.  And Chu doesn't have to repay the six-figure sum in attorney's fees that Mercury spent defending him at trial.

So what I originally thought was a loser for the insured turns out -- rightly enough -- to be a winner.  The trial court, which shared my initial view (albeit with much more information), gets reversed.

The only thing I'll add to what Justice O'Leary says is that I wonder if the holding doesn't go far enough.  Justice O'Leary seems to assume, via precedent and otherwise, that coverage exclusions for resident relatives are entirely okay.  I wonder if that's really true.  I get the point about spouses and kids.  The money they'd receive from an insurance company can, broadly speaking, be said to belong to the insured, so coverage maybe "flows" to him.  But what about a nephew who lives with you?  A cousin?  A stepbrother?  Their money doesn't seem to me to be yours.  We rightly tell insurers that they have to cover -- at least with minimal liability coverage ($15,000) -- auto accidents in which you hit a stranger and are at fault, or injure a passenger in your car who's a friend.  Why isn't the same true for at plenty of categories of relatives?  Yes, Justice O'Leary is right that they could have refused to have been a passenger with you driving.  But so could your friend, and he's still covered.  What's the difference.  Moreover, pursuant to the Court of Appeal's holding, all that matters for purposes of the statute is that the money doesn't "flow your way".  That's true for strangers as well as cousins.

Plus, although Justice O'Leary's "they can stay out of your car" argument works in some cases -- e.g., as here, with passengers -- it doesn't work for others.  Imagine you're driving home, take a left turn, and plow into a pedestrian in a crosswalk you somehow failed to see.  If it's a stranger, you're covered.  If it's a neighbor, you're covered.  If it's a roommate, you're covered (at least after today).  If it's your cousin or spouse who lives with you, however, you're not.  Even though that made not the slightest bit of difference in the accident:  You had no idea at all who you were hitting before you did it.  Doesn't seem to make an infinite amount of sense.

Again, maybe on the spouse part, I get it.  I could see an argument that the statute applies.  Cousin?  Don't see how what the Court of Appeal says here isn't equally true.  Relative or no.

One final point.  Notice that roommates are now covered but spouses are not.  After today, add that fact to the list of marriage penalties.  "Sorry, baby, I'd love to marry you.  But we can't afford the additional taxes.  Plus, I love you too much to not have you covered in case you're a passenger in my vehicle and accidentally injure you.  Let's stay roommates instead."

Fleet v. Bank of America (Cal. Ct. App. - Sept. 23, 2014)

Justice Bedsworth authors another classic opinion in which he speaks carefully, saying in footnote 1:

"Because they [plaintiffs Robert and Alina Fleet] are representing themselves, their complaint is not in the form to which courts are accustomed.  [Footnote 1:]  The trial court sustained BofA’s demurrer to the Fleets’ original complaint and told the Fleets they had to plead with more specificity. The Fleets evidently took this admonition to mean they had to try their case in their amended complaint. The result is a complex and fact-intensive document that requires concentration and dogged analysis. The Fleets’ appellate brief demonstrates mastery of English but a natural – and commendable – unfamiliarity with legalese. This might be a good time to associate in someone who speaks that tongue."

Let me help translate for Mr. and Mrs. Fleet Justice Bedsworth's own legalese:

Get a lawyer.

Tuesday, September 23, 2014

Zoogolis v. Wynn Las Vegas (9th Cir. - Sept. 23, 2014)

Normally I wouldn't mention this opinion.  Since it's a state-specific holding about administrative exhaustion in a particular factual setting.  Yawn.

But wait!  That state is Nevada.  The administrative tribunal is the Nevada Gaming Control Board.  And the facts involve whether a high-rolling German gambler is required to pay the Wynn Casino the full amount of the $1.3 million he lost there or whether he only has to pay $250,000 since that's how much he told the Wynn (pursuant to a Nevada statute) they should cap his gambling markers.

Now you've got my interest, Ninth Circuit.

Sadly, the case is not about the merits.  But, for whatever it's worth, Judge Rawlinson's opinion seems right that administrative exhaustion isn't required.  Because Zoogolis had actual "credit instruments in the form of markers" under the relevant Nevada statute.

Germany 1, Nevada 0.

Thus far.

Solus Industrial Innovations v. Superior Court (Cal. Ct. App. - Sept. 22, 2014)

Reading tea leaves isn't easy.

The trial court overrules a demurrer, but certifies the issue as presenting a controlling issue of law, and defendant files a writ.  The Court of Appeal summarily denies the petition.  Trial court's ruling stands.

Except the California Supreme Court then grants review and transfers the issue back to the Court of Appeal with instructions to issue an OSC.  Hmmm.  The Court of Appeals figures that the Supreme Court didn't like the decision to overrule the demurrer.  So, as instructed, it hears the writ, and holds that the trial court erred, reversing the decision below.

All's right with the world.

Except now plaintiff files a petition for review.  Which the California Supreme Court again grants.  Transferring the matter back to the Court of Appeal and order it to reconsider its opinion in light of a particular statute.

You could read this latest grant in one of two ways.  Maybe it's a hint (as it often is) that the Court doesn't like the opinion below.  Or maybe the California Supreme Court's just being a pain (or, more charitably, just wants a more thorough evaluation of the merits).

Justice Rylaarsdam figures:  Once burned, twice shy.  The Court of Appeal changed its mind after the Court's original grant of review, and did what it thought the Supreme Court wanted.  It's not doing the same thing again.  This time, it sticks to its original disposition.  Trial court's still overruled.

The Court of Appeal essentially says:  Your move, California Supreme Court.  We're done trying to figure out the true motivation behind your grants of review.  If you want to change this thing, you'll have to do it yourself.

Monday, September 22, 2014

Sessoms v. Grounds (9th Cir. - Sept. 22, 2014)

You can't get much closer than this.

It's a federal habeas case.  Miranda.  The district court denies the petition, and back in 2011, a three-judge panel affirms.  But the case gets taken en banc, and Judge Betty Fletcher authors a majority opinion that reverses and grants relief.

It's a close shave for the petitioner.  Six judges in the majority.  Five dissenters.  Couldn't lose a single vote and still win.  But win petitioner does.

Except it's not over.  The state petitions for certiorari, and the Supreme Court GVRs the case in light of an intervening decision.  So time for the Ninth Circuit to take a second look.

Petitioner hopes, however, for the same result.  The en banc court retains jurisdiction over the case on remand.  And a GVR isn't an expression of any view on the merits.  It's essentially the same issue, the only difference being a new case that doesn't particularly affect the result.

But while the new Supreme Court case doesn't matter, practical reality does.  Because during this whole process, the author of the majority opinion -- Judge Fletcher -- dies.  Which can matter a ton, because it's a 6-5 vote.

Will the judge drawn to replace Judge Fletcher be more like the other members of the prior majority (Judges Schroeder, Wardlaw, Fisher, Paez, and Milan Smith)?  Or more like the dissenters -- Judges Murguia, Kozinski, Silverman, Callahan, and Ikuta?

Ultimately, Judge McKeown gets drawn.  She then authors the new majority opinion.  Another 6-5.  With the same dissenters.

It's also an interesting case on the merits.  Here's how Judge McKeown begins the latest opinion:

"An American poet wrote more than 100 years ago: 'When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.' When a suspect says 'give me a lawyer,' that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal—it is not a maybe or a perhaps—it is an invocation of the Fifth Amendment right to counsel."

Hence the majority holds (once again) that petitioner is entitled to relief.  With one vote to spare.

The dissenters again dissent.  With a slight difference.  Last time, Judge Kozinski fully joined in the dissent.  Today, he does the same thing.  But he also writes separately.  Saying some fascinating stuff.

Maybe time changes things a bit.  Maybe reflection matters.  He still comes out the same way, saying that petitioner isn't entitled to relief.  But what he says bears substantial quotation.  Here's his take:

"This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. [Citations]

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessoms was bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., [Citations]. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. [Citations]. When courts bend over backwards to salvage evidence extracted byquestionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a na├»ve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end."

When was the last time you saw someone not only "reluctantly" dissent, but affirmatively express the view that the contrary majority position ultimately "prevails in the end"?

Not something you see every day.

This one's essentially over in the Ninth Circuit at this point.  But "the end" is far from here.  You'll see the state petition (again) for certiorari.

We'll see what the Supreme Court does.



Friday, September 19, 2014

Pope v. Babick (Cal. Ct. App. - Sept. 19, 2014)

The good new for respondent Matthew Babick and his counsel is that they won at trial, and they win the appeal as well.  Congratulations.

The bad news is that Justice Moore doesn't shy away from telling us what she things about Babick's counsel.  Her opinion expressly names Babick's trial attorney -- Gregory Kane -- and notes that he "directly violated a court order by eliciting causation evidence from a California Highway Patrol officer who responded to the scene. Kane was subsequently sanctioned $500 and the jury was given a curative instruction."  The Court of Appeal says that it "find[s] Kane’s behavior unacceptable from an officer of the court," and adds that "we disapprove of Kane’s actions in the strongest possible terms."  Justice Moore even ends her opinion by saying:  "Once again, we strongly disapprove of Kane’s behavior. If it were up to us, he would have been sanctioned far more than $500."  Yikes.

Don't think that Babick's appellate counsel --  Gregory P. Konoske and D. Amy Akiyama -- get off entirely scot free either.  With respect to them, Justice Moore says:   "[T]his court neither appreciates nor accepts counsel’s inapt and inept attempts during oral argument to minimize Kane’s misconduct."  Double yikes.

Again, Babick wins on appeal.  But his counsel take a beating.  A savage beating.


Thursday, September 18, 2014

U.S. v. Garcia (9th Cir. - Sept. 18, 2014)

Maybe you hate a former housemate of yours.  Maybe for totally irrational reasons, maybe for good ones, whatever.  You don't like her.  Okay.

Maybe you don't even want to hurt her.  Just scare her a little bit.  Reminder her of that time she had your car towed.  That's not a good quality in you.  At all.  You shouldn't do anything about it.

But if you reject this advice, for goodness sakes, do not decide that the way you make your feelings felt is to explode a pipe bomb in her car.  Doesn't matter if it was in the middle of the night, there was no one around, and no one got hurt (or was even meant to get hurt).

You exploded a pipe bomb.  That's now a federal offense.  As well as a profoundly serious one.  One for which you'll receive, as here, thirty five years in prison.  A stark contrast to the fairly brief period of probation you're likely to receive in state court if you slash its tires or (maybe) even if you steal it and drive it into a lake.

And your conviction and sentence will be affirmed by the Ninth Circuit.

Briefly put, there's pretty much no possible way to fill in the blank in the following sentence with something that makes sense:  "It's a nice day today.  I think I'll _________ with a pipe bomb."


Wednesday, September 17, 2014

The Depressing Ninth (9th Cir. - Sept. 17, 2014)

You don't get a very good impression of the nature of mankind if you read today's published opinions from the Ninth Circuit.

You've got one attorney who completely abandons a client who's been sentenced to life in prison and never even lets him know (despite promising to do so) that the Nevada Supreme Court has denied his state habeas petition and hence the one-year clock for filing a federal habeas petition has commenced.

You've got police officers who incarcerate an innocent man for two years by charging him with a series of crimes that were committed by someone else -- someone the officers allegedly knew had the same modus operandi, who confessed to committing these distinctive crimes in the exact same area of L.A., whose fingerprints were ultimately found at the scene of one of the crimes with which the defendant was charged, and whose arrest promptly terminated the series of crimes for which defendant was charged (which had continued unabated even after defendant's arrest).  None of which the officers disclosed to defendant or his attorney.

You've got an Indian tribe trying to rebuild itself after it was entirely dispossessed of its land by the federal government's decision to build a dam and floods the entire reservation, forcing every single family but one to leave the reservation.

And you've got a popular web site for aspiring models (with over 600,000 members) that rapists use to lure women to fake auditions, drug and rape them, and videotape the entire process for distribution to those who enjoy such pornography.  Allegedly with the knowledge of the owners of the web site.

What a world in which we live.

Tuesday, September 16, 2014

People v. Peyton (Cal. Ct. App. - Sept. 16, 2014)

Justice Yegan begins this opinion with the following introduction:

"Lamenting the delays associated with the orderly processing of criminal cases, Justice Macklin Fleming explained a popular way for a criminal defendant to avoid, or at least delay trial: 'sidetracking.' He describes this as diverting 'the inquiry into a collateral issue. . . . In the operation of a railway system to sidetrack a train is to switch it from the main line to a siding. In criminal law to sidetrack a cause is to divert the accusation from the pending issue [guilt or innocence] to some other issue, any issue, and then keep the prosecution [or the trial court] so occupied in litigating the side issue that the hearing of the accusation itself comes to a halt.' (The Price of Perfect Justice, Basic Books, Inc, (1994) at p. 54.)

Appellant is the poster boy for sidetracking."

I agree with Justice Yegan that there's such a thing as "sidetracking" and that, when it happens, it's a problem.  It can be a deliberate tactical strategy.

But there's also something called "being a nutjob".  Not making tactical decisions to try to derail a prosecution, but simply being so incredibly divorced from reality that one makes counterproductive, irrational decisions that are virtually random in their nature and effect.

IMHO, appellant here is a poster child for the latter, not the former.

Look at what the appellant filed and see if you think he's rationally trying to derail the prosecution or instead merely filing whatever crazy concepts fly into his head at the moment.  For now, just take one little snippet from the motion this pro per criminal defendant filed on November 6, 2012, in which he "alleged that Judge Hirsch 'leaked' appellant's identity to the media after appellant accused Judge Hirsch of judicial corruption. He repeated his claim that because he was Muslim and Judge Hirsch was Jewish, Judge Hirsch was prejudiced against him. According to appellant, Judge Hirsch's 'leaking' appellant's name to the press put his life in danger and was done because of appellant's religious beliefs. This, according to appellant, 'crossed the line' and 'Allah gave me the full holy right to act in return in aggression . . . by any means I choose . . . I have chosen to act in aggression against Judge Hirsch . . . with my brains and legal applications. . . .'"

Ah, yes.  There's a motion that's going to be granted.  There's one that a rational party is definitely going to file.  I can't fathom a more brilliant display of "sidetracking" than this.

Put simply, this case is a bad vehicle for a good concept.  Yes, deliberate sidetracking exists, and it can potentially be a problem.  Indeed, I might even agree that the sidetracking in this case was a big problem if defendant were out on bail at the time.  Because then defendant's wasting everyone's time and getting a tactical benefit -- his freedom -- as a result.

I strongly suspect, however, that as a two-striker ultimately sentenced to ten years in prison, the defendant here's not on bail, but is instead rotting in jail the entire time he's tactically "sidetracking" the proceedings.  Maybe I'm wrong (though I doubt it), and if I am, then yeah, the crazy motions and resulting delay are maybe a reason to keep him in and/or adopt some other remedy.

But if the only result of crazy motions is that a guy who should be incarcerated stays incarcerated, I don't really see how that's a monster problem.  A slight hassle?  Sure.  But it ain't hard to deny what are clearly frivolous motions like the ones filed here.  Nor do I suspect that we need to deter the type of conduct that transpired here, because I strongly suspect that most defendants know that what went down here was in no small part the reason the guy to a decade-plus in prison.  You don't piss off the judge who's sentencing you.  That's not a lesson we really need to desperately reiterate in spades lest everyone forget it.

The Court of Appeal publishes the opinion to "remind" trial courts that they can revoke pro per status if the defendant is being "deliberately obsructionist".  Which is clearly true.  But this case isn't the poster child for a "deliberately' obstructionist party because it's unclear that there's anything at all "deliberate" out what he's doing.  There's no deliberation.  There's no intent to delay.  It just seems to me it's the conduct of someone divorced from reality and convinced -- truly convinced -- that the trial judge is biased and the world's against him and everything will be just fine once he's able to present all of this to the federal court (in which he's sued the state court judge) and the Court of Appeal.  That is what he truly believes.  As evidenced by his final statement to the trial court: "When I reverse you on appeal, I will make sure to rub it in your face."

Yeah.  How'd that work out for you in the end?

The trial court could tolerate and quickly deny the silly motions that this pro per defendant filed or it could have revoked his constitutional right to represent himself and forced an attorney upon him that he didn't want and would aggressively fight.  I could imagine arguments for doing the latter.  But they are ones based upon paternalism and the need to protect the innocent.  Not -- as here -- as a bulwark against deliberate, tactical sidetracking.

It's not that Justice Yegan doesn't have a point.  He does.

It's just not that I'm at all sure this is the case in which to make it.

Suarez v. City of Corona (Cal. Ct. App. - Aug. 29, 2014)

A compressed natural gas (CNG) tank in a van explodes while being filled at a fueling station owned by the City of Corona, injuring a passenger, who sues the City.  The Fire Department investigates the explosion, tests the fuel lines and investigates the tank on the van, and concludes that the explosion was caused by "stress corrosion cracking" on the van's tank that resulted from sulfuric acid from contents in the cargo area of the van.  In short, it wasn't the City's fault.  In the slightest.

Plaintiff nonetheless continues to litigate against the City.  If by "litigate" we mean doesn't drop the suit; there's not really any depositions, etc. against the City.  The City eventually is forced to file a motion for summary judgment, which is predictably granted.

The trial court imposes sanctions against the plaintiff and his lawyers.  But the Court of Appeal holds that the particular statute the trial court applied only authorizes sanctions against parties, not lawyers.

Fair enough.

So the City wins the lawsuit, but loses its only enforceable sanction award.  A partial win.

One final point completes the story.  Although the lawsuit was frivolous, how much did the City of Corona spend to defend this lawsuit?  Over $135,000.

That's a fair piece of change for a lawsuit that indisputably had no merit.

Monday, September 15, 2014

Jon Dalver Inc. v. Arch Ins. Co. (Cal. Ct. App. - Sept. 15, 2014)

How'd you like to have this case walk in the door:

The owner/manager of Jon Dalver, Inc. (a cosmetics manufacturing company) sees a used sanitary napkin around the toilet area in the women's bathroom and blood around the toilet seat.  She promptly goes ballistic, and (allegedly) goes to department full of female workers screaming that they're "dirty" and demanding to know who's on their menstrual period.

Pretty bad, right?  I mean, you're probably going to get sued for that.

But it gets worse.

Not satisfied when each of the workers says they're not responsible -- having had the supervisor scream "Are you on your period?! at each employee -- the manager then forces another employee to "take each of [the employees] into the bathroom, one by one, and check their panties to see who was on their menstrual period, by requiring each to pull down their pants and underwear for an inspection.”  The employees ask what happens if they refuse, at which point the supervisor says they'll be fired.  So a male supervisor waits outside the bathroom door with the female supervisor as "the designated female employee went into the bathroom with each employee, 'stood a foot or two away' while the employees 'had to pull down their pants and their panties, exposing their vaginal area, so that [the employee] could see if they were wearing a sanitary napkin and therefore on their period.'"

Oh my.

I'll take that case on the plaintiffs' side, thank you very much.  Since it's akin to taking candy from a baby.

Oh, and this conduct isn't covered by insurance.

Not a good day for Jon Dalver, Inc.

U.S. v. Gadson (9th Cir. - Aug. 19, 2014)

This house is somewhat cute.  Small, of course.  A fixer-upper.  But right along the river in Fairbanks, Alaska.  Lots of space.  For sale now for $119,500.  The beauty and splendor of the Alaska frontier can be yours for an insubstantial chunk of change.

Though thanks to the second paragraph of this opinion from Judge Ikuta, it's now public knowledge that this home "was the hub of a drug trafficking operation" selling crack cocaine.  A search of which revealed "a shoe box on top of the living room couch containing approximately a kilogram of cocaine, another shoe box containing another kilogram of cocaine and some $29,000 in cash behind the drugs. . . . . A loaded shotgun and ballistic vests were found near the shoe boxes. Powder cocaine, crack cocaine, ecstasy, marijuana, drug paraphernalia, and more cash and money orders were found in various locations in the kitchen and dining room. The bedrooms contained more drugs. . . . [including] powder cocaine, crack, marijuana, heroin, 156 tabs of ecstasy, and approximately $13,000 in cash."

Presumably, none of that comes with the $119,500 purchase price.

The asking price of this property -- which has been pretty much consistently listed for sale since 2008 -- has fluctuated greatly over time.

I wonder if Judge Ikuta's express reference to this address will nudge it down a bit.





Friday, September 12, 2014

Schinkel v. Superior Court (Cal. Ct. App. - Sept. 12, 2014)

Prisoner Larry Schinkel wants to recall his three-strikes, 25-to-life sentence under Proposition 36, and the question is whether he was convicted of a serious or violent felony and hence disqualified from relief under the statute.

Schinkel has six prior convictions for burglary.  He then got arrested and convicted of four counts of sexual intercourse with a minor.  And after he was arrested on those charges, he solicited someone to kill the minor so she couldn't testify against him.

That's why he got 25-to life.  Once on the charge of solicitation of murder and twice more on two of the sexual intercourse with minor charges.

That's all you need to know.  You know where this one's going even before you get to that part of the opinion in which the Court of Appeal says that "defendant is one of the truly dangerous criminals that the voters meant to exclude from the resentencing provisions of Three Strikes Reform Act."


In Re Snowden (9th Cir. - Sept. 12, 2014)

No, not that Snowden.  This one's instead a guy who took out a $575 payday loan in Washington and thereafter filed for bankruptcy.  (Instead of fleeing to Russia)

As for the other party to this transaction, they may have fancy advertisements and nice, brightly lit stores, but for the underbelly of how "Check Into Cash" works, read the opinion.  Here's a portion:

"Snowden advised CIC’s Sequim, Washington office that she was 'thinking about filing for bankruptcy,' and provided her bankruptcy attorney’s phone number. She was advised that she should let CIC know if she decided to file. When Snowden told CIC that she could not repay the loan, CIC said that she must call CIC every day, otherwise the company would call her 'references.' Snowden complied, calling CIC every day until the day she filed for bankruptcy because she 'didn’t want to be embarrassed.'

Snowden was employed as a hospital nurse. CIC employees called her at work numerous times asking why she had not yet repaid the loan. Snowden referred them to her attorney and asked that they stop calling her at work, but the calls persisted."

Harassing someone at work even after they ask you to stop, threatening to call their "references" merely to embarrass them, demanding they call you every single day, and then violating the automatic stay after they file for bankruptcy.

Stay classy, Check Into Cash.


Thursday, September 11, 2014

People v. Johnson (Cal. Ct. App. - Sept. 11, 2014)

When you read the transcripts of defendant Daniel Johnson's recorded phone calls as he's talking to friends -- recounted on pages three through five of this opinion -- you realize two things.  First, he's not very bright, since he's essentially confessing to his crimes on a recorded jailhouse line.  Second, he's got to learn to express himself better.  Because my rough estimate is that, in each of his various conversations, which collectively entail probably a hundred different sentences, Mr. Johnson uses the word "nigger" in literally half of them.

(Here's a classic example, from how he ends his third conversation:  "Yeah, nigger. There’s a camera on (Gerrard), too, my nigger. So let, let everybody know, man. When you niggers is around there. Nigger, I thought I was good. I mean, I got it, I got it all so quick, right? You feel me? I got—I told the bitch to leave so quick that the nigger I was with didn’t even know I kicked the bitch out. You feel me? Smooth, though, nigger…. That mother fuckin’ nigger had a camera right here, Cuz. That’s crazy. Shit, man. You know, I fucked up, my nigger. I—I’m a learn from this.")

It's not an especially attractive quality when every other sentence of our nation's youth includes the word "Like . . .".  It's even less attractive when "nigger" serves as an alternative placeholder.

Hopefully Mr. Johnson will indeed [a] learn from this.

People v. Venegas (Cal. Ct. App. - Sept. 11, 2014)

How tough can it be to be a police officer in Compton?  At least this tough.

The Born Krazy Minded gang got pushed out of some territory on Indigo Street in Compton and wanted to reclaim it, so one night, some gang members shoot up one of the houses on the street.  The police are called about a shooting on Indigo Street, and officers Orozco and Robles, who were in the vicinity, promptly saw two cars travelling on Indigo at a high rate of speed.  One was green, one was gold, and both ran a stop sign on Indigo, narrowly missing the officers' vehicle.  Since there were two perpetrators and one cop car, the officers decided to follow the green one.

The officers sped after Greenie, which accelerated even faster, ran another stop sign, and turned onto Tamarind Street.  The officers then saw the driver throw something out of the vehicle, and called for another officer to try to find what was discarded.  Which turned out (of course) to be a Glock.

Greenie then turns onto Cocoa, at which point the gold car reappeared, driving the other way.  Ha!  Now we might even get you both.

So the officers and Greenie are speeding towards Goldie, and as the gap closes (and Greenie passes Goldie), the gold car swerves towards the officers, who are forced to themselves swerve to avoid a collision.  That bastard!  Goldie tried to make us spin out so that Greenie can get away!

But the officers are driving Dukes of Hazzard style, and keep up their pursuit of Greenie despite the serendipitous reappearance of Goldie driving the other way.  Greenie continues to blow through stop signs and drive on the wrong side of the street, but the officers keep up the pursuit.

Greenie eventually returns to Tamarind Street, with the officers closing in.  At which point Goldie appears yet again, and this time, when the cars pass each other, Goldie crashes head on into the patrol car, disabling the vehicle.

The officers eventually recover from the crash and arrest the driver of the gold car.  Backup officers also eventually come to the crash site, and then drive down Estrada (where Greenie was headed) and eventually find that vehicle abandoned on East Caldwell, with no one in it.  They eventually find the driver of Greenie stashed in a home, surround the place, and force him to surrender.  So in the end, the pursuit succeeds.  Everyone's arrested, and convictions follow.

But geeze.  Deliberately smashing into a patrol car head-on so your fellow gang member might escape a pursuit.  That's hard core.  For both the gang member as well as the officers.

They say that police work entails long periods of boredom punctuated by brief periods of extreme danger.

That's certainly true in Compton.

Wednesday, September 10, 2014

Rudin v. Myles (9th Cir. - Sept. 10, 2014)

It's pretty bad when you've been charged with murder and your lawyer is so ill-prepared and incompetent that even the trial judge gets scared.  So scared, indeed, that he appoints a second attorney to "assist" the first one.

You're even more scared, I imagine, when you listen to your attorney's rambling opening statement at trial on your behalf and realize (alongside everyone else who listens to that speech) that it makes no sense and had "no cohesive theme".  Your attorney (you later discover) appears to be spending more time selling the media rights to his representation of you than he does on actually preparing for that trial.

You ask the attorney appointed to "assist" your attorney how things are going.  This is your counsel's opinion of your attorney at trial:  your representation is "a farce, and that disturbs me as an attorney. . . . This has become a sham, a farce and a mockery."

(Which perhaps reminds you of the following line from Arrested Development:
Michael:  "I'm not going to turn this mock trial into some sort of . . . .
GOB:  You were going to say 'mockery' weren't you?
Michael:  I was in trouble like three words into that.

You smile.  But your smile is fleeting.  Especially when you're convicted and sentenced to life in prison.

Things can't get much worse on the representation side, can they?

Oh, but they can.

Read the entire opinion for more.  But in the meantime, here's a snippet from the majority opinion.  Which, over the dissent of Judge Adelman (sitting by designation from the Eastern District of Wisconsin), denies habeas relief:

"We are troubled by the outcome of this case for many reasons. Margaret Rudin’s direct appeal and collateral review proceedings have been pending in either state or federal court for a combined total of 13 years. She has potentially meritorious claims that she has suffered prejudice at the hands of her own attorneys’ egregious misconduct. Yet she has never had an opportunity to present those claims in court.

Rudin’s defense counsel, Amador, indisputably engaged in egregious professional misconduct during the course of her underlying criminal trial. On direct appeal of her judgment of conviction, the Nevada Supreme Court acknowledged that Rudin’s trial was plagued not only with inadequacies on the part of defense counsel, but also with prosecutorial misconduct and legal error on the part of the State and the court.20 Although two members of the Nevada Supreme Court found the record sufficiently clear as to the “inherent prejudice created by [trial counsel]” to require immediate reversal of Rudin’s judgment of conviction, a majority of the court declined to address the effect of those errors, finding them more appropriate for resolution on collateral review.

But then, in her collateral review proceedings, Rudin was abandoned. Rudin’s first attorney filed nothing in any court on her behalf, and he also failed entirely to investigate her post-conviction claims. By the time Rudin requested and obtained substitute counsel, her state and federal limitations periods had already run, but nobody, not even the court, knew that to be true. And although the state post-conviction court, seeing the case as a “mockery of [its] promise to people who are in the criminal justice system that they will have an adequate defense,” initially granted Rudin relief, the Nevada Supreme Court reversed that court’s judgment, finding Rudin’s petition untimely and reinstating her criminal convictions. Now, for reasons that completely escape us and that remain unexplained by the record, Rudin’s current counsel failed to file a protective habeas application in federal court to preserve Rudin’s right to any opportunity for review that may have remained.

At this point, Rudin is still in prison, having served 13 years of her life sentence for murder. We know from the state post-conviction court that the State’s “proof of guilt [at that trial] was not a slam dunk by any stretch of the imagination.” We also know from the post-conviction court that, had Rudin been represented by competent counsel, the jury’s verdict may have been different. Thus, what we do not know is whether Rudin is lawfully imprisoned. And, regrettably, that is something we may never know.

The prejudice that Rudin potentially suffered at trial has only been compounded by the inadequacies of her attorneys on collateral review, who have now precluded her from having any chance at presenting her claims in federal court. Thus, if ever there were a case in which equitable tolling
should apply to soften the harsh impact of technical rules, perhaps this is that case. However, we are bound by AEDPA and the standards established under our caselaw and that of the U.S. Supreme Court, which circumscribe our power to grant relief to cases in which extraordinary circumstances–in
other words, abandonment–made it impossible for the petitioner to file on time."

Oy.

ALPS v. Ingaldson Fitzgerald (9th Cir. - Sept. 10, 2014)

It's funny to see this Ninth Circuit opinion end with a signature line and, thereunder, "Judge Jacqueline H. Nguyen, Presiding Judge."

You routinely see things like that in the state court system (in which Judge Nguyen formerly served), but not generally in the federal system.  Which doesn't actually have a "presiding judge".

In Judge Nguyen's defense, she is the only active member of the Ninth Circuit on the panel, and the opinion certifies a question to the Alaska Supreme Court, so she presumably thought it'd be helpful to add that line.

Still, not something you see every day.


Tuesday, September 09, 2014

Castellanos v. Small (9th Cir. - Sept. 9, 2014)g

This opinion by Judge Murguia -- in a habeas case -- begins in the way you usually begin these things when you're going to deny relief:  with a poignant recitation of the facts.

Plus, I gotta say, those facts made a difference to me.  If only on an initial, emotional level.  Because here's what they are:

"Petitioner Anthony Castellanos, who was 17 years old at the time of the incident giving rise to this case, was at his apartment with his 11-year-old and 12-year-old neighbors, Joey and Nicky. Castellanos was trying to recruit Nicky to join his gang, the King Kobras, but Nicky had previously
refused. Castellanos, who had been cooking French fries in the kitchen, walked into the living room where Nicky was sitting on the couch, pulled a gun from his waist, and pointed it at Joey and Nicky. Joey ducked, fearful of what might happen. Castellanos then turned and pointed the gun directly at Nicky, put his finger on the trigger, and said, “What do you think about this?” He fired, shooting Nicky in the head."

Yikes.  I mean, shooting a 12-year old child in the head, killing him in cold blood, for not joining a gang?!  Seriously?!  And in front of his 11-year old brother?!  Wow.

Yet, notwithstanding this opening gambit, Judge Murguia reverse the conviction and grants habeas relief.  On the ground that one or more Hispanic jurors was improperly dismissed by the prosecutor.

It's difficult to look into the heads of prosecutors.  I have no doubt whatsoever that there are improper race-based dismissals.  But the record here is especially unclear.  Particularly with respect to the one juror that the opinion extensively discusses.  Defense counsel challenged five dismissals of Hispanic jurors.  The prosecutor had to justify each one.  It's clear to me that the prosecutor didn't really have his act entirely together.  For example, the central juror at issue was one that the prosecutor thought was white.  As a result, he didn't really focus on this one, and gave a lame (and, ultimately, not very persuasive) reason for bouncing her.  That's why the Ninth Circuit grants relief.

At the same time, however, look at the ultimate jury that convicted the defendant:  four Caucasians, one Asian, and seven Hispanic jurors.  Hard to argue that the prosecutor's bouncing jurors on account of their race when a majority of the jurors are, indeed, Hispanic.  Moreover, it's not like he ran out of challenges:  the prosecutor only used 12 of his 20, leaving 8 left.  If you've got 8 challenges left and let 7 Hispanics on the jury, that's some evidence -- and remember that we're in deferential AEDPA land -- that the prosecutor was not, in fact, discriminating based on race.

I can't help but wonder what really went down here.  Maybe, of course, the prosecutor was really discriminating based on race, and his failure to submit a rational explanation for his strike is good evidence of pretext.  But it's also distinctly possible that the lameness of the reason for striking this particular juror was because the prosecutor was focused on the other four -- remember, it's clear the prosecutor thought that this juror was actually Caucasian -- and simply "failed to show his work."  A conclusion somewhat supported by the ultimate composition of the jury.

So this is a toughie.  One framed by an initial articulation of the facts that doesn't make one especially empathetic towards the defendant.

Shaw v. Superior Court (Cal. Ct. App. - Aug. 21, 2014)

One of the topics that I do not cover at length in my first-year Civil Procedure class is when parties have a right to a jury trial.  Not that this issue is uninteresting, or unimportant.  Far from it.  There's neat historical stuff, plus the whole law-and-equity distinction, at issue.  Were it exclusively an issue of what's interesting to an academic, "right to jury" stuff would clearly be up there.

But you can't cover everything in the first year.  Not even close.  And my excuse for leaving out this subject is an immensely practical one.

Most of the underlying issues have simply already been decided.  Want to know if there's a jury trial in a workers compensation case?  Look it up.  There's a simple yes-or-no answer.  FLSA?  Ditto.

That's true for pretty much everything.  Because (1) you're rarely the first person to have ever litigated the particular cause of action at issue, (2) it's pretty important whether a party has the right to a jury, and (3) the answers are typically binary -- either there's a right or there's not.  No gray area.

Which is not to say that the first couple of cases that decide whether there's a right to a jury trial are easy.  They're not.

But once you've got an answer, there you go.  Precedent.  Judges follow it.  Done deal.  This is not an area where the facts of one case arguably create a different result.  If one Alien Torts Act case entitles a party to a jury trial, most likely, so does the next.

So while we spend a lot of time in law school teaching will-be lawyers how to reason and argue, with a focus on complicated cases, we sometimes leave out ones the answers to which are now settled.  Ones that don't come up that much in actual practice.

I say all this as backdrop to this opinion.  Which relates to whether a cause of action under Section 1278.5 of the Health and Safety Code, which prohibits a health care facility from retaliating against any of its employees for complaining about the quality of care or services provided by that facility, entitles the parties to a jury trial.

Justice Croskey does the necessary historical analysis.  Is this the type of claim that would have been a legal one that entitled a party to a jury trial back in the 1850s?  Holding that, yeah, it is.  Notwithstanding the contrary opinion by the trial court below.

You won't read cases like this in law school.  Or even much in practice.

But you see it now.

Monday, September 08, 2014

People v. Doolittle (Cal. Ct. App. - Sept. 8, 2014)

Ken Doolittle sells "investments" in "mobile home trust deeds" to elderly people.  With a rate of return that's allegedly "guaranteed".

You know where this is all going.

Let me reiterate.  Investments.  In mobile home trust deeds.  To the elderly.

The question is how many years in prison Doolittle properly receives.





People v. Banks (Cal. Supreme Ct. - Aug. 14, 2014)

Kelvyn Banks is a very, very bad guy.

Whose death sentence is unanimously affirmed by the California Supreme Court.

Scary dude.

Friday, September 05, 2014

People v. Hojnowski (Cal. Ct. App. - Aug. 4, 2014)

What's the appropriate penalty for spitting on a corrections officer?

Eleven years in prison.

On the merits, one can find little technical fault with Justice Needham's workmanlike opinion.  It raises and resolves the issues coherently.  It's a straightforward resolution.

But can you seriously read what transpired here and not have serious concerns about what we're doing in situations like this one?

Because Joseph Hojnowski isn't legally "crazy".  He's competent to stand trial.  I admit that.  Under what we mean by "competent", yeah, he "understands" the nature of the proceedings, in that he gets that they're looking to lock him up.

But he's an absolute nut.  Just listen to him.  Read everything he says.  About the judge, the process, his lawyer, etc.  The guy has the most tenuous grip whatsoever on reality.  He thinks he's about to get out of prison in a couple of weeks (wrong), clearly doesn't have any intelligent understanding of what's going on, and -- ancillary to the above -- seems to think that repeatedly referring to the judge as "dude" and "motherfucker" in court will be beneficial.  The guy's as crazy as any stereotypical homeless guy you think about on the street.  Except this person is in prison and facing an additional 11 years for the offense of spitting on a guard who didn't take as kindly as the judge did being called a motherfucker.

The trial judge rightly doesn't let Hojnowski represent himself at trial because to do so would be a farce.  (Saying:  "[D]efendant doesn’t even begin to have the ability to defend himself on his own. He can’t — quite frankly, he can’t even make sense here trying to basically discuss these issues.  If the Court were to allow the defendant to represent himself, it would be a sham proceedings. It would be a folly.”)

But, truth be told, even without the guy representing himself, it's still a farce.  You've got everyone sitting there magisterially while some nutjob's calling everyone involved a faggot and a motherfucker and displaying only the loosest possible connection to the real world while all the time everyone knows that the guy's just digging his own grave and looking at another decade-plus in the hole because he has no idea at all about how one interacts with the outside world.  In a word:  He's lost it.  Completely.

I'm not saying that I know what to do in situations like this.  I don't.  The guy did something he should not have done.  He needs to be punished.  Whether a spit's worth a decade in prison, well, to be honest, that wouldn't be my initial predisposition.  Though I hardly want the guy on the outside either.

But there's nonetheless something that bugs me about how antiseptic this whole thing reads.  Everyone at the trial level plays it straight.  Everyone goes through the motions.  Applies the relevant rules.  Let's the guy speak and sits there quietly and does their job.  Ditto for the Court of Appeal.  Applies the rules and precedent faithfully.  Affirms in a straightforward opinion that recites the facts and rules.

But doesn't something nag at you about all of this?  We're just basically warehousing a guy.  There's no way he's actually getting any better in prison.  Indeed, I'll be stunned if he's not substantially worse.  I suspect, moreover, that a large part of what caused him to lose it is being locked up in the first place.  We're putting this guy in prison for another decade, and we know he's eventually going to lose it again and make another mistake, then we'll add another decade or two, then again, and again, and eventually the guy will die in prison and we'll put him in the ground.

No biggie.  Plenty more where that came from.  Next patient, please.

And we don't care.  Not one iota.  We don't actually care about the fact that this is a person.  One with serious problems.  We're not really even going to try to solve them.  We'll just start putting (as here) a bag on his face every time he takes a shower and we'll call that "success".  One more lost soul.  But one hidden behind large concrete walls we'll pretty much never peer behind, and even when we do, we will just do -- as the Court of Appeal does here -- our jobs.  No more.  No less.

Something about that just doesn't sit right with me.  Something just makes me feel that humanity is -- or at least should be -- better than this.

That this ain't the way it's supposed to be.

Thursday, September 04, 2014

U.S. v. Hardrick (9th Cir. - Sept. 4, 2014)

Judges Reinhardt and Noonan like kiddie porn.

That's (of course) not true.  But both of them write separate concurrences that -- while affirming the conviction here -- bemoan the way we treat this issue.  Judge Reinhardt says that these people have psychological problems and that incarcerating them forever isn't right (excepting only the people who actually produce the underlying material, who should rot).  Judge Noonan says that these people are often upstanding, otherwise-law-abiding citizens, and maybe we should publicize more highly the long sentences we often impose in an effort to deter misconduct.

At least in the Court of Appeals, kiddie porn is the crack cocaine of the 21st century.  Lots of people questioning whether we should have the sentences we do for mere possession.

U.S. v. Reyes (9th Cir. - Sept. 4, 2014)

Does a represented criminal defendant have a right to be present at sidebar conferences with the judge?

Sometimes, yes.

It's harmless error here.  And when the sidebar concerns only issues of law, the defendant can be left sitting in his chair (at least as long as the attorney's allowed to consult with him if counsel thinks it's necessary).

But during, for example, voir dire, when a juror's privately telling everyone why he might not be able to be fair, the defendant has a right to hear what's said.

So you gotta let him approach the bench alongside counsel.

Wednesday, September 03, 2014

U.S. v. Edwards (9th Cir. - July 31, 2014)

The Ninth Circuit's application of precedent in this case seems right.  When you've got a 911 call of shots being fired, and respond to the scene five minutes later and see a guy who tends to match the description of the shooter, I can't fault the panel for holding (as it does) that you're allowed to stop the guy.

I'll just add, however, that if four cops are allowed -- as the Ninth Circuit holds -- to draw their guns and order to the ground any black male between the ages of 17 and 26, and around 5'7 or 5'9, wearing a black shirt and grey pants they happen to spy in Inglewood; well, let's just say that'll result in a non-trivial number of innocent people being held at gunpoint.

Especially when, as here, the relevant black male is described as 19 or 20 years old, and the guy you take to the ground at gunpoint is 26.  And he's 5'11 instead of "between 5'7 and 5'9".

But close enough for government work, apparently.  And the dude ended up being a felon who had a gun.  So it's all good.

According to the Ninth Circuit, anyway.

Tuesday, September 02, 2014

FTC v. Grant Connect (9th Cir. - Aug. 15, 2014)

It takes real guts -- or stupidity -- to be a huge scammer and yet to file an appeal claiming that the FTC isn't allowed to make sure you don't scam additional people in the future.  But Kyle Kimoto gives it a shot.

Read what this guy did and you wonder (at least if you're me) why the guy's not in prison for even longer than he is.  Moreover, his arguments as to why the injunction against him is overbroad are not ones that strike a resonant chord with me.  If I had my way -- unconstrained by law -- the guy would be precluded from ever engaging in any business.  Ever.  Any.  Business.  He can work for someone as an employee if he'd like.  But the businesses he creates seem to be . . . troublesome.  Hence the prison time and multimillion dollar restitution awards.

So his claim that the limitations on his business activities are not perfectly tailored are not ones that exactly tug on my heart strings.

Levitt v. Yelp! (9th Cir. - Sept. 2, 2014)

It's perfectly legal for Yelp! to highlight (and repost) negative reviews of businesses and reduce their star ratings if these businesses refuse to buy advertising on Yelp!

So holds the Ninth Circuit.

Monday, September 01, 2014

U.S. v. Stewart (9th Cir. - July 31, 2014)

You'd normally think that the fact that your drug dealer is trying to rip you off increases his moral culpability rather than decreases it.  He's not only a drug dealer, but a thief.

But that's not the way the sentencing guidelines work.  Yeah, the guy here sold GHB.  But what he sold was such "bunk" -- the GHB was so diluted -- that it wouldn't really achieve the desired effect.

Which you definitely don't want in your drug dealer.  But which society is apparently pretty happy with.  Because we may well end up giving that guy a lower sentence.

None of which helps the defendant here, since he's a "career criminal" and the district court already made a substantial downward departure.  But, in the future, if you're thinking about whether to sell high-quality versus low-quality drugs, think the latter.  It may help you out if you get caught.

Just don't get shot by a frustrated customer.

It's Labor Day, after all.  Work smarter, not harder.


Friday, August 29, 2014

People v. Deluca (Cal. Ct. App. - Aug. 14, 2014)

If you're a registered sex offender, and sufficiently poor that you don't have enough money for a home, you're going back to prison.  Pure and simple.

Maybe not de jure.  But de facto.  Because you've got to register and tell the authorities every single place you "sleep, eat, work, or engage in leisure activities."  If you forget one, you go to jail.  If you wait longer than five days after changing a residence, you go to jail.  Your "residence" being defined broadly as any place you regularly reside; a curb, a bush, a shelter, anything.  Just like in this case.

You're going to screw up.  Inevitably.  Because it's an infinite hassle to tell the police every single spot in a city in which you ever hang out or "engage in leisure activities".  You're homeless, after all.  You move around.

So if they want to put you back in prison -- say, here, for another seven to eight years -- it's not a problem.  At all.  You'll have messed up at some point.  And back in you go.

Oh, one more thing.  You're a sex offender.  You're not popular.  They'll want you back in.

I don't know what the empirical data is on homeless sex offenders in California.  But my gut tells me that a huge portion of them -- huge -- are violated and put back in prison for failing to keep up with the constant reregistration requirements.  It's an easy bust.  Why not make it?

Rich sex offenders with homes stay out.  Poor sex offenders without 'em go back in.  That's basically the rule.

It's not that I don't get why people support sex offender registration.  I do.  But at some point, when we know that virtually everyone in a certain class of people (i.e., homeless) can't, and won't, comply with the onerous requirements we put on them, doesn't that just seem a little wrong?  Almost like we don't have the guts to simply sentence them to infinitely long prison sentences, so we instead give 'em a particular (long) sentence, let 'em out, then put 'em back in at our leisure.  With the "short" sentence as proof that we tried to let them rehabilitate themselves but they just weren't up to snuff.

Seems like something they're not going to look back on especially favorably in, say, 2114.

Thursday, August 28, 2014

People v. Garcia (Cal. Ct. App. - Aug. 28, 2014)

There's so much in this opinion that's really, really good.  As is typical for Justice Bedsworth.  Plus, it involves a fascinating issue -- whether it's relevant in a woman-on-girl molestation trial that the alleged perpetrator is a lesbian -- as well as a scintillating dynamic in this particular case of how the prosecutor used this information notwithstanding the trial judge's reluctance to/instructions about not letting it in.

In short, read the whole thing.  The Court of Appeal reverses the conviction -- though barely, I think -- and remands for a new trial, holding that what transpired here was prejudicial.

As I said, there's much in here with which I profoundly agree.  But let me nonetheless ask Justice Bedsworth (and the rest of the panel) what I think is amongst the hardest questions raised by this holding (though not addressed directly in the opinion):

If, as the Court of Appeal holds, sexual orientation is entirely irrelevant in a molestation trial, does that equally mean that a defendant in such a proceeding similarly has no right to introduce this evidence?  So, for example, if a homosexual male is accused of molesting a 15-year old girl, I take it he's not allowed to introduce any evidence about his exclusive attraction to males, right?  Despite the fact that this evidence may be overwhelming?  Not relevant.  At all.  Jury not permitted to hear it.

Seems troubling, no?

U.S. v. Nora (9th Cir. - Aug. 28, 2014)

Two police officers are driving along doing their job and see three guys standing in front of a house in a high-crime area.  The officers have, I presume, a gut feeling and decide to pull up in front of the house and try to talk to the two guys.  Which is fine.  Consensual contact.

In the seconds it takes the officers to pull around and get in front of the house, two of the guys have moved to the porch of the house, and another's in its yard, which is surrounded by a fence.  Okay.  They apparently moved.

The police start chatting, and one of the guys looks nervous, and it seems like he's trying to keep his right side hidden from the cops.  Seconds into the conversation, that guy suddenly spins around and starts to run inside the house, pushing past one of the other dudes on the porch.  At which point the officers see that the guy's holding a blue-steel semiautomatic handgun in his right hand.  The officers scream "Stop, police," but the guy with the gun (and one of the guys on the porch) continue into the house and shut the door behind them.

Now what to do?

The police don't just go barging in.  But they have just seen a guy with a gun flee from the cops into a home.  That's potentially pretty serious, no?  They call for backup.  Twenty officers come.  The house is surrounded.  A police helicopter arrives as well.  Bright lights are pointed on the house, and there's a standoff for twenty to thirty minutes, as officers call for the occupants to exit with their hands up.

Which they eventually do.  The police then search one of the bad guys, find some drugs on him, and he admits he's got more drugs in the house.  Plus they run a check on the guy and find out that he's got prior convictions, including being a felon in possession of a weapon.

So the officers gets a warrant to search the house.  Find guns, cash, and drugs.  Prosecution of the defendant follows.

Seems pretty straightforward, right?  Often times these things end in shootings.  Righteous or not.  Or barging into a house without a warrant.  None of that transpires here.  So what's the problem?

According to the Ninth Circuit, it's ordering the defendant out of the house.  No probable cause, Judge Watford holds.  Lots of evidence in the house is accordingly suppressed.

There's lots to say in favor of Judge Watford's opinion.  Possessing a loaded handgun in public is only a misdemeanor, he notes.  The home is a foundationally protected place, he rightly explains.  The police could have gotten a warrant in advance.  All true.

Something nonetheless makes me uncomfortable.  Despite the validity of each and every one of these points.

At a base level, there's a guy with a gun who's fled from the police.  That seems pretty serious.  To me, anyway.  Serious enough to shoot into the house?  No.  Serious enough to blast away at the guy as he's running inside?  Not then either.

But still serious.  Serious enough, my gut tells me, to tell him to come outside.  In strong language, even.  Including but not limited to a helicopter and bright lights.  Commanding him to come out.

Could the police have gotten a warrant?  Yeah.  But are we really going to compel 'em to do so?  To repeat:  There's a guy with a gun who's fled from police.  Maybe my intuitive sentiment is wrong.  But I sort of want this situation to be resolved expeditiously.  Plus, I can't help feeling that it's somewhat "wrong" that evidence gets tossed here when the police acted in what seems to me a pretty reasonable fashion.  Certainly as contrasted to what alternatives might well have gone now (e.g., someone shot and killed -- defendant and/or the officers).

So that's my sentiment.  For whatever it's worth.

P.S. - Note to Judge Watford:  I think the contemporary way to describe the locale at issue is "South Los Angeles," not -- as the opinion does in its third paragraph -- "South Central Los Angeles."  It's the same area, of course.  And since I'm somewhat who was clerking in L.A. and drove through the intersection at Florence and Normandie six days a week between 1991 and 1992 (but who, thank goodness, took the I-10 on the afternoon of April 29), I'm quite familiar with the locale.  But I'm also pretty sure that since the L.A. riots, people deliberately started calling the place its new name.

People v. Kent (Cal. Ct. App. - Aug. 27, 2014)

I love the California Court of Appeal.

Four weeks ago, I posted a lengthy critique of Justice Rylaarsdam's opinion that held that appointed counsel should not file Anders/Wende briefs raising "arguable but unmeritorious issues".  I ended the post by seeking input from others on the Court of Appeal (and elsewhere) on this issue, which is an important one.

Yesterday afternoon, Justice Aronson did precisely that.  Telling me -- nay, everyone -- his thoughts on the matter.  Disagreeing with Justice Rylaarsdam, and holding that appointed counsel should continue to file such briefs.

Justice Aronson articulates his reasons for that conclusion a little differently than I did.  But we end up in the same place.  He says that "[w]hile an argument may prove unmeritorious, that is for the court ultimately to determine," not counsel, and that's the heart of things.  As long as (in my view) the case raises a nonfrivolous argument, you should at least identify it.  Then it's the Court of Appeal's job to sort it out.

We've now got to opinions from the exact same division -- the 4/3 -- going opposite ways on an issue that comes up hundreds of times a year.  The California Supreme Court should grant review and make a final decision as to which position should prevail.  What you do as an attorney shouldn't depend on what panel you guess you'll draw.  Nor should the prevailing procedure necessarily be the one that's the "least common denominator" or the one adopted either internally (by you) or by an external organization (e.g., an appellate defender's officer) in light of the conflicting holdings of the Court of Appeal.  It's for the judiciary to say whether "arguable but unmeritorious" issues should be raised, as well as to interpret what we exactly mean by that.

And that's exactly what the California Supreme Court should do.

Wednesday, August 27, 2014

Alexander v. FedEx (9th Cir. - Aug. 27, 2014)

Judge Fletcher holds that FedEx drivers aren't independent contractors even though FedEx tries to make them ones.  Judge Trott, joined by Judge Goodwin, fully agrees with everything Judge Fletcher says.  But nonetheless writes separately to take FedEx's counsel -- O'Melveny & Myers -- to task for its brief.  Here's the first paragraph of Judge Trott's concurrence:

"The resolution of this case as a matter of granting summary judgment to the drivers is far from simple, as the length and complexityof Judge Fletcher’s meticulous opinion demonstrates. It has not been made easier by FedEx’s brief, which, by quoting part of a sentence from an admission — but not all of it — creates a rosier picture of the drivers’ state of mind than the record supports."

Judge Trott then goes on to talk about the importance of not using out-of-context quotations,"the regrettable lesson that the basic information we require to resolve a controversy is not always found in the parties’ briefs, but in the ungilded record itself," and his suggestion (to O'Melveny & others) that "[l]awyers would be well advised not to elide the truth, the whole truth, and nothing but the truth."

Not something you really want the Ninth Circuit to say as a commentary on your (losing) brief.



People v. Lujano (Cal. Ct. App. - Aug. 26, 2014)

The trial court -- Judge Koosed in Riverside -- holds that the relevant searches were valid under the Fourth Amendment, "colorfully" stating:  "They’ve got consent up the ying-yang here."

The Court of Appeal respectfully disagrees.  At least with respect to the detention inside the home.

P.S. - I wondered if any other appellate opinion had ever previously employed the term "up the ying-yang," and as it turns out, there are indeed three of 'em.  One even from California, albeit unpublished (in 2010).  Two others, both from Massachusetts, in the 90's.  All of 'em quoting the trial court or something else below.  Because, I think, appellate tribunals tend not to use the term "up the ying-yang" themselves.

P.P.S. - Oh and, by the way, the related term "up the wazoo" has only been used in a published appellate decision once.  In the Ninth Circuit.  In 2010.  By someone you can probably guess.  Not at all quoting anything below, but rather using it himself.  (Arguing, in a concurring opinion to an en banc opinion, in relevant part that wife-beaters, "though they might use a golf club or meat cleaver to threaten their mates, aren't likely to be packing such implements up their wazoos.")

Tuesday, August 26, 2014

People v. J.S. (Cal. Ct. App. - Aug. 26, 2014)

I'll not comment on the substance of this opinion, other than to articulate my view that the Court of Appeal's opinion is absolutely right, and that it'd have been a travesty if the relevant procedural rule was the one advanced by the Attorney General.  For exactly the reasons Justice Hollenhorst identifies.

I'll instead share a paragraph from the middle of the opinion.  Which for some reason made me break out in a visible smile:

"The Attorney General makes much of several decisions infelicitously referring to petitions pursuant to section 2966, subdivision (b), as being 'rendered technically moot' by the expiration of the initial commitment period. (Merfield, supra, 147 Cal.App.4th at p. 1075) The Merfield court, however, like the cases it cites, acknowledges even where the initial commitment term is over, the initial certification an offender qualifies as an MDO has continuing ramifications where the offender is subject to recertification. (Ibid.) In other words, 'technically moot' means, apparently, not moot at all, if by 'moot' we mean having no further practical impact."

Too funny.

Medina-Lara v. Holder (9th Cir. - Aug. 26, 2014)

That didn't take long.

The Ninth Circuit holds oral argument in this case yesterday morning.  It's the last case on the calendar.  Here's the oral argument.

The panel listens to oral argument, steps back, and then decides the case and assigns an opinion to be prepared.

Then, minutes later, the panel issues the following order:

"For reasons to be set forth in a disposition which will follow in due course, we grant Medina–Lara’s petition for review because the government did not meet its burden to show that his California convictions constitute predicate offenses for purposes of removability under 8 U.S.C. § 1227(a)(2). We, therefore, order the United States to release Medina–Lara from custody immediately."

Petitioner's been detained for five years.  Not a day longer.  Petitioner's counsel ends his argument with a request for a short-form order, and that's exactly what he receives.

Speedy justice.



Pedro v. City of Los Angeles (Cal. Ct. App. - Aug. 25, 2014)

You sort of wonder when you read this opinion why the LAPD is making such a big deal out of Officer Jason Pedro's decision to drive a friend of his to a medical appointment in an unmarked police car while he was on duty.  Should he do that?  No.  Should he have been a bit more courteous to the person with whom he interacted on the sidewalk outside the clinic?  Sure.  Should he have been more, shall we say, "forthright" in his statement to a fellow officer about what he was doing there?  Absolutely.

But the guy's been a cop with the LAPD for 15 years.  Why such apparent excitement about dragging the guy through a Board of Rights hearing and getting that guy suspended from his job?  Sure, I'd love to think that he LAPD's that serious in every single case of alleged misconduct.  But somehow, I doubt it.

Though maybe I get what's going on a little bit more once I get to page 9 of Justice Croskey's opinion. Which reads:

"[T]he board believed that [Officer] Pedro was not completely truthful in describing his platonic relationship with the minor, who apparently was 16 years old at the time of the incident, or in stating that he did not know either the nature of her visit to the clinic or that abortions were performed there."

Yeah.  Now I get it.  You drive your sixteen-year old "friend" to an abortion clinic twice while on duty and in uniform.  Allegedly telling a fellow officer who spots you there that you're "working the Gang Unit in Detectives and was conducting a follow up with a victim.”

Now I can sort of see why the LAPD might make kind of a big deal about that.

Though Officer Pedro gets entirely off.  On what the police generally call a "technicality" as applied to perps but that becomes an extraordinarily important procedural limitation was applied to one's self.