Scharer v. San Luis Rey Equine Hosp. (Cal. Ct. App. - March 16, 2012)

You've got to read this opinion from this morning.  Not because it says anything especially doctrinally important (it's a statute of limitations case).  But because it's a veterinary malpractice case.  And how many of those have you read in your lifetime?

Not many, I'll bet.

Even fewer that involve horse ovaries, I imagine.

The Ninth Circuit The Day After Pi Day (9th Cir. - March 15, 2012)

There are some days in which you can't put lipstick on a pig.  Or, more accurately, you can, but it's still just bacon with a little red around the mouth.  Or, perhaps even more accurately, you can draw analogies, but that turkey just don't shoot.

Today's one of those days.

The Ninth Circuit publishes two opinions.  Here's what the first one's about:

"This case arises out of a dispute between two telecommunications carriers over their interconnection agreement (“ICA”1) under the Telecommunications Act of 1996. Plaintiff-Appellant Western Radio Services Company (“Western”) is a commercial mobile radio service (“CMRS”) provider. Defendant-Appellee Qwest Corporation (“Qwest”) is a local exchange carrier (“LEC”). Western appeals two decisions of the district court: first, its decision dismissing Western’s claim against Qwest for Qwest’s alleged violation of its statutory duty to negotiate the ICA in good faith; and second, its decision affirming the orders of Defendant-Appellee the Oregon Public Utility Commission (“PUC”), which adopted the results of the arbitration leading to the ICA and approved the ICA."

You're kidding me!  Finally!  A dispute between a CMRS and an LEC regarding ICAs as interpreted by the PUC!  OMFG!  Let me at it!  I want to read all 35 nasty, sexy pages!  Especially the last page, in which the author includes an appendix in which he describes all the various abbreviations he's using in the opinion!  I'm about to DTMF in my pants!  Or at least Wink-Start MF!  (That's Dual-Tone Multi-Frequency signaling, or Wink-Start Multi-Frequency signaling, for the uninitiated.  Depends on whether I can control my bladder.)

But at least there's a second opinion the same day, right?  Here's what that one's about:

"Two non-Indian entities brought this action to enjoin Navajo Nation tribal officials from applying tribal law to them intribal courts. They claim that both their contract with the tribe and federal law deprive tribal officials of authority to regulate them. This appeal presents the question whether the Navajo Nation itself — which enjoys sovereign immunity and cannot be sued — is a necessary (and if so, indispensable) party under Federal Rule of Civil Procedure 19."

Look, I'm a Civil Procedure professor who really digs Indian law.  And even I somewhat snoozed through Judge Silverman's opinion.  I can only imagine how regular people must feel.

Don't worry, though.  I can cut to the chase.  Here are the answers to both questions.  Because I know your day will not be complete unless I satisfy your cravings on both issues.

"Regarding the challenge to the approval of the ICA, we conclude that the ICA’s provisions (1) requiring Western to interconnect with Qwest’s network via at least one point per Local Access and Transport Area (“LATA”); and (2) providing Western with the signaling systems of its choice only where such systems are available, do not violate the Act. However, we also conclude that the ICA, as approved, does violate the Act insofar as it applies access charges, rather than reciprocal compensation, to calls exchanged between a CMRS provider and a LEC, originating and terminating in the same LATA, when those calls are carried by an interexchange carrier (“IXC”)."

Yeah, that was my intuition when I read the first two paragraphs of the opinion also.  It's all about whether the LATA's connected to an IXC.

And the indispensible party issue?  Fear not.  "The tribe is not a necessary party because the tribal officials can be expected to adequately represent the tribe’s interests in this action and because complete relief can be accorded among the existing parties without the tribe," at least (as here) in an Ex Parte Young action.

Whew.  What a relief.

Now back to trying yet again to memorize the first 500 digits of pi.  An equally exciting task.  And one with roughly equivalent practical utility for the average reader.

Palomar Medical Center v. Sebelius (9th Cir. - March 14, 2012)

Look, I'll do my part.  I'll publicize the thing.  I'll tell people the Ninth Circuit wants their input.  I'll tell people it's a neat little way to affect the world.  I'll convince people that they can turn their amicus brief into a law review article.

But there's only so much you can do when this is what the panel wants (and needs):
"The panel invites amicus briefs addressing the following questions:
(1) Do the regulations at 42 C.F.R. §§ 405.926(l) and 405.980(a)(5) bar administrative review of a contractor’s decision to reopen a Medicare claim, including the contractor’s compliance with the good cause
standard for reopening set forth at 42 C.F.R. §§ 405.980(b)(2) and 405.986?
(2) If the regulations bar administrative review of a contractor’s decision to reopen, do federal courts have jurisdiction to enforce the agency’s compliance with the good cause standard for reopening?"
Wow.  Sure, I know some law geeks.  I even know some administrative law geeks.  But I'm not sure even I know someone wonky enough to want to submit something on this topic.

But if you are that wonk:  More power to you.  Here you go:  "Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Federal Rule of Appellate Procedure 29(a). Briefs responding to this order shall be filed within 30 days of the date of this order and shall not exceed 15 pages."

Party on.

Scott S. v. Superior Court (Cal. Ct. App. - March 14, 2012)

You can't decide to cut off someone's toe based on the papers.  You instead are required to have the doctor actually there to testify.  No hearsay.

So holds the Court of Appeal.

Which makes sense.  Though I'm telling you:  That toe's coming off.  One way or another.  In truth, as a practical matter, this is much ado about nothing.

Consolidated Irrigation Dist. v. City of Selma (Cal. Ct. App. - March 9, 2012)

The benefits of reading tons of appellate cases are legion.  Including but not limited to expanding your vocabulary.

Take this case.  Page three, paragraph three, first sentence:  ruderal.

No idea what that meant.  I'm pretty confident this is the first time in my 45-plus years I've ever seen that term used.

It apparently means "growing in rubbish, poor land or waste."  So, for example, "ruderal species" are plants that are the first to colonize disturbed lands.
Like weeds.  But a fancier classification thereof.

So I'm ending today a smarter person.  At least if I ignore those seven thousand brain cells that I had this morning but will never see again (No. 33).

Shanahan v. IRS (9th Cir. - March 13, 2012)

I can't think of a less sympathetic non-criminal case than this one.

The Cheungs get indicted for conspiracy to defraud the United States and tax fraud.  They lived in Seattle (and are U.S. citizens) but make haste to China, which has no extradition treaty with the United States.

From Hong Kong, they "denounce" the United States, and the IRS ultimately issues them a tax deficiency notice for several million dollars related to their fraud.  They then hire a high-priced attorney to file a FOIA request seeking all sorts of information about their tax situation, which the IRS (understandably) refuses to turn over -- at least absent the Cheungs coming to the U.S.

The district court dismisses the lawsuit.  The Cheungs then hire another high-priced firm (K&L Gates) to prosecute an appeal with the Ninth Circuit.

They draw a relatively good panel:  Stephen Reinhardt, Willie Fletcher and Johnnie Rawlinson.  But even that crowd isn't buying it.  Affirmed.

Can't say I disagree.  In the slightest.

P.S. - The attorney who filed the lawsuit is William P. Shanahan.  A name that took me back 25 years or so to another William Shanahan I once knew -- someone who (unfortunately) had eight minutes of fame on YouTube for "mooning" individuals during a college debate dispute.  Resulting in the loss of his job and, undoubtedly, much personal trauma.  Which I always thought was too bad.  Because the guy was -- and presumably remains -- a quality guy.  One with strong feelings, as well as many unique takes on the universe.  But a quality person regardless.

Unlike, I think, the Cheungs.

Peter-Palican v. Government of the CMNI (9th Cir. - March 12, 2012)

The Ninth Circuit certifies questions a lot nowadays.  Even to the CMNI.

Garcia v. ConMed Corp. (Cal. Ct. App. - March 8, 2012)

I can get on board for the Court of Appeal's opinion in this case.  Yes, what defendant's counsel did in her closing statement was misconduct.  But the trial court gave an appropriate admonishment (though, personally, I might have been a bit harsher), and I can see why the jury found for defendant at trial wholly apart from the misconduct.  So I agree with both the trial court and Court of Appeal that the verdict need not be reversed.

But if I were to trade places with Justice Premo, I might have made sure to mention the defendant's counsel -- Genese Dopson -- by name and to reaffirm in no uncertain terms my displeasure at the deliberate decision she made to engage in misconduct during her closing argument.  This is especially appropriate, in my mind, when your misconduct works and avoids sanction, and particularly when (as with Ms. Dopson) we're talking about a seasoned trial lawyer who knew full well what she was doing.
You may perhaps get away with it, as she does here.  But the Court of Appeal might nonetheless want to go out of its way to make sure that there's an informal sanction (and integrity hit) reaffirmed in the permanent pages of the California Appellate Reports as an ancillary consequence of this victory.

Connor v. Heiman (9th Cir. - March 9, 2012)

Think the Las Vegas casinos don't have the Gaming Control Department in their back pocket?

Think again.

If a private citizen in Las Vegas had a civil dispute with someone who allegedly owed her $950, I'm sure the police would respond to her concern just as the officers did here; i.e., to tell the individual that unless he repaid the disputed amount, they were going to immediately arrest him and charge him with a felony.  I'm just sure of it.

I can empathize wtih the plaintiff's frustration here.  Read the case and see if you're similarly situated.

People v. Manzo (Cal. Supreme Ct. - March 8, 2012)

Everybody laughed (and/or cringed) when President Clinton said:  "It depends upon what the meaning of the word 'is" is."  Because he had told the grand jury that there "is nothing going on" between him and Monica Lewinsky, and if "is" means presently, he was arguably correct.

But that legalese did not go over well with the public.  At all.

By contrast, here's a dispute in the California Supreme Court that's entirely about what the word "at" means.  And the public's probably pretty happy with the hypertechnical way the Court figures out the meaning of that word.

The question is a simple one:  Are you shooting "at" an occupied motor vehicle when:

(A) You and the gun you're firing are outside the vehicle you're shooting "at";
(B) Your hand and the gun are inside the vehicle you're shooting "at" but the rest of your body is outside it; and
(C) You and the gun are inside the vehicle.

Cleary, the answer to (A) is "Yes" and the answer to (C) is "No."  What about (B)?

The California Supreme Court unanimously holds that, yes, you're shooting "at" a vehicle even if the gun and your hand are inside the vehicle at the time.  The Court admits that the statute is ambiguous, and on that basis, the Court of Appeal applied the rule of lenity to interpret the statue in favor of the criminal defendant.  But the California Supreme Court reverses.  Holding that because we know that the Legislature didn't want people shooting at cars, this legislative history "breaks the tie" and means -- as in virtually every case -- that the rule of lenity is meaningless.

Of course, the Legislature probably didn't want people shooting at an occupied vehicle from inside a vehicle as well -- since that may well have the same consequences (death, broken glass, car crashes, etc.) as shooting from outside.  The California Supreme Court doesn't really have an awesome answer to why it's analysis doesn't also establish that liability exists even in (C).
But that's neither here nor there.  We don't like criminal defendants parsing the meaning of a word any more than we liked President Clinton doing it.  So there.

People v. Horvath (Cal. Ct. App. - March 8, 2012)

Justice Robie begins this opinion with:  "The facts of this case are horrendous."

Indeed they are.

Pizzuto v. Arave (9th Cir. - March 8, 2012)

It's just so strange to see a Ninth Circuit opinion that says:  "Pizzuto claimed . . . that Judge Reinhardt made public statements of his intent to impose the death penalty before the sentencing hearing."

Man bites dog.

Obviously, this death penalty defendant isn't talking about this Judge Reinhardt (the one on the Ninth Circuit).  He's talking about this one:  the state court judge in Idaho.

Though both of 'em have the middle initial R.

And, to my knowledge, have never been seen together in the same room.

I'm thinking a Clark Kent/Superman thing.

P.S. - On a serious note, check out this line from Judge Betty Fletcher's dissent:  "I am shocked by the conduct in this case."  Including lots of testimony about Judge Reinhardt's alleged secret involvement in the case.

Sort of makes you want to read the whole thing, eh?

Wagner v. County of Maricopa (9th Cir. - March 7, 2012)

There's almost nothing about this I especially like.

I was surprised to see this case even go to trial.  Eric Vogel was a schizophrenic approximately my age who lived an incredibly sheltered and isolated life and was arrested -- entirely properly -- for assaulting a police officer.  So he's put in jail.  Seems okay so far.

At the jail, he gets assessed as having psychological problems, so he's going to be transferred to the psych unit at the jail.  Seems fine.  But he's in jail, and they need to dress him in jail clothes, so they tell him to get on his jail stuff, he refuses, they struggle, but eventually get him dressed.  They then transport him to the part of the jail that deals with inmates with psychological problems.  All seemingly good so far.

He receives treatment for a week and then is bailed out by his mother.  Returns home.  Three weeks later, he freaks out when his mother tells him he he might face additional charges because he spit on an officer while he struggled with them at jail.  He jumps out of a car, runs four or five miles, has a heart attack, and dies.

His estate then sues for violation of his civil rights.

Where's the tort?  Where's the deprivation?  What went down that shouldn't have gone down?

They properly arrested him.  They properly forced him to get into jail clothes.  They properly transferred him to the psych ward.  And when they released him, they weren't the ones -- three weeks later -- who caused him to run five miles.  Why no summary judgment?  Especially given qualified immunity.

The only thing I can gather from the majority opinion is that the court -- like the Ninth Circuit -- wasn't all that thrilled with Joe Arpaio's policy of dressing inmates in pink (including pink underwear).  Okay, well, neither am I, to tell you the truth.  But it's pretty hard for me to jump to the conclusion that this somehow violated Wagner's clearly established constitutional rights, or makes Maricopa County responsible for his death from a heart attack after he was released from jail.  Which is what the entirety of the lawsuit is about.

But, worse, the majority opinion here isn't even discussing whether defendants should prevail on summary judgment or at the qualified immunity stage.  The case went to trial.  The jury found for the defendants.  The Ninth Circuit reverses.

Really?!

The majority is convinced that there were some evidentiary errors at trial, and reverses on that basis.  But I'm not even sure those were errors, and even if they were, they seem pretty harmless.  The district court said the mother couldn't testify that her son told her he thought he was being raped because that's hearsay.  I find that a pretty credible ruling.  And the district court excluded an expert under Daubert who wanted to say that the heart attack three weeks later was "likely" caused when Wagner recalled being dressed at jail.  But everyone agreed that schizophrenics have a greater risk of heart attacks and that running five miles didn't help.  I'm not sure that the district court got this one wrong when it held the evidence inadmissible.

But more centrally, I don't find it particularly plausible that any of this was why the jury found for defendants in the first place.  I strongly doubt that the jury thought that Wagner had no mental problems (since this was both clear and undisputed); am confident that the jury knew that Wagner didn't like being dressed down at jail (which is why he struggled and was screaming that he was being raped); and pretty firmly believe that the jury was told at trial that Wagner's mental state deteriorated after he was released on bail.  None of that was why they found for the defendants, I think.  The excluded evidence just doesn't seem all that critical.  Even if it was improperly excluded, an issue about which I have my doubts.

So it's hard for me to get on board with Judge Noonan's majority opinion.  And while Judge Randy Smith does a decent job addressing the evidentiary issues in his dissent, even that was too much of a "checklist" for me, in addition to not raising the harmless error point.

Maybe I just don't understand how the case got as far as it did.  Which in turn makes me have a hard time figuring out why, even after a jury verdict, the case gets reversed for non-central evidentiary issues.

It's not that I like wearing pink underwear.  I don't.  But I don't like wearing orange jumpsuits -- or any prison clothes, for that matter -- either. 

The claim that wearing particular prison clothes violated an inmate's clearly established constitutional rights because it caused him to have a heart attack from running while on bail three weeks later just doesn't resonate with me very well.  Nor does reversing a similar judgment from a jury based on evidentiary errors.

P.S. - I do agree, by the way, with Judge Noonan that cutting off the plaintiffs' ordinarily-scheduled ability to close at oral argument was unexplained and perfunctory.  It also seemed somewhat retaliatory.  And I didn't think Judge Smith's defense of this conduct was at all persuasive.  But, again, harmless error.  That's not what caused the jury to come back as it did.

Klestadt & Winters v. Cangelosi (9th Cir. - March 6, 2012)

This is a case about bankruptcy, sanctions and appellate jurisdiction.

I know what you're thinking.  Zzzzzzzzzz.  But it's actually a neat little dispute.

Judge Ikuta says that circuit precedent is clear, there's no appellate jurisdiction, and that precedent is normatively correct.  Judge Graber agrees that circuit precedent is clear and that there's accordingly no appellate jurisdiction, but thinks that the court should revisit the issue en banc and overrule that precedent, which she argues was wrongly decided.  Judge Quist, sitting by designation from the Western District of Michigan, agrees that circuit precedent is clear and that there's no jurisdiction, and refuses to take a position on the normative question, saying that it's "not for [him] to decide" whether the case should be taken en banc.

I tend to like it when a judge questions existing precedent.  Especially when, as here, the circuit precedent on the issue seems to be somewhat of an outlier.

I imagine that Judge Graber will call for an en banc vote -- otherwise why write the concurrence -- unless the handwriting on the wall is crystal clear (and perhaps even then).  Despite the snoozy nature of the case, it's not a nontrivial chance of getting a majority vote.  None of the members of the panel who decided the prior circuit precedent (Judges Ferguson, Canby & Hall) have a vote.  And it's not a starkly political case.  It's all about procedure.

That said, maybe the en banc court will decide to leave the circuit split for the Supreme Court to resolve.  Which is another way of saying that the circuit split on this issue might well fester for the next century.

One more thing.  This may well be much ado about nothing.  My (admittedly half-informed) sense is that the sanction orders here appear pretty well-taken.  So even if the appellants prevail, this may well just involve a lot of time and expense just to watch the orders affirmed.

U.S. v. Loughner (9th Cir. - March 5, 2012)

It has taken me half the day to read the entirety of this 117-page (single spaced!) opinion, as well as to try to get my head around it.  It's complicated.  Seriously, seriously complicated.

But, in the end, let me say the following.  Jared Loughner -- the guy who shot Gabrielle Giffords and who killed Judge Roll and several others -- is nutty.  Seriously, seriously nutty.  I have no doubt that he's a schizophrenic.  He needs to take medication.  For his own sake as well as for the sake of others.

I hear what Judge Bybee says.  I hear Judge Wallace's caveats.  I understand Judge Berzon's dissent.  We're talking about procedural as well as substantive stuff here.  Concepts that extend far beyond this particular case.

But it's hard.  Hard not to lose sight of the proper result here.  That's about the only thing about which I feel fairly confident.

Loughner should take drugs.  Hard core, heavy duty drugs.  It's in his interests.  It's in everybody's interest.  The guy cannot function if left alone, unmedicated.  That's essentially beyond dispute.  He won't be competent to stand trial.  He won't be competent to carry on a conversation, or even any kind of meaningful life.  About the only thing he'll be somewhat competent to do is to hang himself.  And while that might perhaps be fine, it's not what our justice system wants.

So notwithstanding what Judge Berzon says -- and she's got some darn good points -- I'm okay with forcing the guy to swallow pills.  As well as compelling his treatment -- his "commitment" -- in the first place.  Sure, I have no doubt they did so in order to restore his competency so he could be found guilty at trial.  And I similarly have no doubt that they wanted to avoid getting a court order because they thought (rightly) that it'd be much more expedient to forcibly medicate the guy without one.

But there are some cases in which I'm probably okay with that.  And this one is probably one of those. Am I concerned about lower-profile cases?  Yes.  Am I concerned about defendants with counsel who might be less aggressive and/or diligent than the ones here?  Sure.

But, in this case, for whatever reason, I'm not inclined to bend over backwards to put up roadblocks to doing what -- for this particular person -- seems clearly the right call.

Maybe Judge Berzon's correct that Judge Bybee has blinded me to the true issues.  Maybe I am letting an easier case make bad law.  I admit that all those may well be true.

But that's still how I feel.  Loughner should be taking his drugs.  And I'm not sad that Judge Burns has been willing to let that happen.

Asahi v. Cotherix (Cal. Ct. App. - March 5, 2012)

I'd have written this opinion somewhat differently.  Despite the fact that I might well have reached the same result on these facts.

The question is whether two separate companies are immune from antitrust liability when they engage in pre-merger anticompetitive conduct.  The correct answer, in my view, is "No."  Once they merge (if they in fact do so), they're a single entity, and Copperweld -- a case I discuss at length in my Stanford Law Review article -- immunizes the conduct of this single enterprise.  But before they merge, they're still two separate entities, both legally and doctrinally, and hence aren't exempt from the antitrust laws.  Either the federal antitrust laws (the Sherman Act) or California's antitrust laws (the Cartwright Act).

The Court of Appeal, by contrast, takes a sharply different view.  Justice Bruiniers' opinion, perhaps understandably, focuses on the fact that these two entities will (likely) become a single entity, and that as a practical matter merging companies often engage in pre-merger agreements, and holds that under these circumstances, the Cartwright Act doesn't apply.  But I'd be a lot more reluctant to so hold.  Not only because they are still separate entities, but also because (1) there's a probability that the merger will never happen, and (2) it's tough to draw a dividing line between impermissible activities and those "in anticipation" of a merger.

Imagine, for example, Competitors X and Y.  They are thinking about merging, so decide to allocate their sales:  X will only sell west of the Mississippi River and Y will only sell east of it.  The Court of Appeal holds that that's fine in the merger context, even though it'd be clearly illegal outside of it.  But what if the "thinking" about merging is in the medium- (or even long-) term:  it's sincere, in that the two companies may well merge in the future, but there's no definitive deal at this point.  Still okay?  For one month?  One year?  Ten years?  How's that different than an actual merger -- a merger that is still not definite, even after a written agreement is reached, without shareholder (and often regulatory) approval, which may come years down the line?  And what about failed mergers?  Still okay to engage in anticompetitive conduct?  What about mergers you know are going to fail?  Still okay to violate the Sherman Act?

I take these concerns to be far from nontrivial ones.  Does this mean that I'd hold that activities taken in contemplation of a merger are subject to the exact same test as those taken outside of this context?  Probably not.  I'd probably consider the context to be relevant to a rule of reason analysis.  And if push came to shove, I might even be willing to hold that if the merger actually takes place, there might be some form of immunity to reasonable pre-merger activities in contemplation thereof. 

But the Court of Appeal's holding here is substantially broader than that targeted principle, and holds a plethora of pre-merger conduct to be essentially categorically immune from antitrust scrutiny.  I don't like that.  I'd have liked to see more discussion of the other side.  Of the downsides -- or at least the potential downsides -- of immunity.  And, accordingly, a more narrow opinion.

I might be inclined to say that if entities want to merge, they can engage in a reasonable amount of coordination, but that they do so at their peril.  If the merger fails, they're not immune.  Consider that yet another downside of a failed merger:  sort of like a break-up fee for the consumer.  Ditto if the pre-merger conduct is beyond that necessary to engage in the merger.

Mergers have their benefits.  But when their social costs outweigh the benefits, or when the social costs are incurred without obtaining those benefits, I see little reason to protect them.  Much less to immunize them categorically from antitrust scrutiny.

So I'd have written this one differently.

San Luis & Delta-Mendota Water Auth. v. Bay Institute (9th Cir. - March 2, 2012)

As we progress into the 21st Century, you're going to see more and more opinions like this one.  Long (e.g., 82 single-spaced pages).  Sharply worded.  With a majority and a dissent that adopt very different approaches to the subject matter.

Water.  Jobs versus the environment.  An allegedly zero-sum game.

This is far from the first of these opinions.  It is even further from being the last.

Long Beach POA v. City of Long Beach (Cal. Ct. App. - Feb. 7, 2012)

Is that a garden hose nozzle in your pocket, or are you happy to see me?  Well, either way, keep it in your pocket.  Because if it's the former, the police might shoot and kill you.

People v. Schoenbachler (Cal. Ct. App. - Feb. 29, 2012)

Elder abuse.  Despicable.  I'm not sure that two years in prison for Christi Schoenbachler is sufficient.

Also:  Don't judge a book by its cover.  Check out this line from the opinion:  "[Defendants] moved [the victim] to to a facility called Tender Loving Care, a facility that was mice-ridden, filthy, and the abode of other residents who suffered from Alzheimer‟s disease and would scream throughout the night."

Yikes.  Not exactly Tender Loving Care.

Rohit v. Holder (9th Cir. - Feb. 29, 2012)

This one's timely.  At least for me.

I probably agree with Judge Wallace's opinion as a matter of precedent.  Soliciting a prostitute is indeed a crime of moral turpitude.

But see if you agree with the following statement in the opinion:  "[S]ex between an adult and a minor may be prohibited, but it is not inherently morally turpitudinous. . . . Prostitution, on the other hand, and solicitation thereof, always involves sexual exploitation."  (Similarly:  "[S]olicitation of prostitution is always base, vile and depraved.")

I wonder if Judge Wallace thinks the same is true about visiting a strip club.  Or Anna Nicole Smith marrying J. Howard Marshall.  Or the numerous "sugar daddy" web sites.  Or visiting a Hooters.

Does trading sex (or other sexual/nonsexual conduct) for money always involve explotiation?  Is it never truly consensual?  Does it matter if you're trading sex as opposed to something else?

Maybe.  Now onto my 1:00 p.m. "Law of Love" class.  Which is all about precisely that.

U.S. v. White (9th Cir. - Feb. 29, 2012)

I guess there are problems with virtually every area of the law.  Whether it's long hours, ungrateful clients, miserable pay, or what have you.

Read this case to see what I mean.  And imagine being the (third) lawyer appointed to represent White at his trial.  Not fun.

Definitely makes me happy I'm in academia and can take -- or not take -- whatever cases I want.

P.S. - Notice also how long this criminal case took to work its way through the system.  The district court docket number begins with 03.  The Ninth Circuit number begins with 07.  So you're talking nine and five years, respectively, to deal with a relatively straightforward case.  Albeit one that involves someone who's incredibly disruptive.

Howard v. Omni Hotels (Cal. Ct. App. - Feb. 8, 2012)

Ron Howard Seriously Injured When He Slips In Tub in San Diego Omni!

That's what the People Magazine headline would be for this case.  Or, for you online folks, what TMZ would say.

But fear not, Opie fans.  It's not that Ron Howard.  His wife's name is Cheryl.  (To whom he's been married for over 40 years, I might add.  Great job, Ron & Cheryl.)  Whereas, according to the first footnote of this opinion, this Ron Howard's wife is named Lisa.  So it's a different Ron Howard in SoCal.  Though I certainly checked out the converse possibility.

This Ron Howard, unfortunately, has a worse track record than the more famous one.  He lost on summary judgment below, but got a break when the court granted a new trial motion as to one of the defendants and reversed his prior decision.  Both sides appealed, and this Ron Howard not only lost his appeal but also lost the appeal of defendant Omni.

So no money for this Ron.

Balsam v. Trancos (Cal. Ct. App. - Feb. 24, 2012)

I'm happy that the Court of Appeal affirms here.  Defendant's a spammer.  It sends out (at minimum) millions of e-mails a month.  Glad to see 'em found liable.  And, yes, this benefits an attorney who focuses on these type of cases and a representative plaintiff who isn't really injured.  But I'm okay with that.  We're paying 'em as private attorneys general so we don't have to enforce the statute ourselves.  It's enforcement on the cheap, at least as far as tax dollars go.  Plus, plaintiff and his counsel are hardly getting rich; the attorney obtains a fee award of less than $82,000 for a case that has to go to trial against a defendant who's constantly trying to hide his identity and location.  Seems more than fair to me.

I can also understand why the Court of Appeal doesn't hold the CEO personally liable.  But here I'm less psyched about the result.  The CEO runs numerous defendants who do nothing but send out a practically infinite amount of spam.  He knows enough to try desperately to hide what he's doing and his involvement.  I'm pretty confident he knows that he's doing something illegal and hiding behind shell companies while he does it.  The Court of Appeal nonetheless says "there's no evidence" that the CEO knew that what his companies were doing was illegal.  I guess that's true, if by "no evidence" we mean "no evidence that the CEO hasn't shredded, and as long as the CEO testifies he didn't know, we can't disprove his completely self-interested assertion."  Does the CEO have a story on why he sends out spam like it's going out of style and why his "security" concerns made him fake virtually everything associated with his businesses?  Sure.  But I don't buy it.  For a second.

This business thrives on not being found, and once it is, simply folding up shop and doing the exact same thing under a different name.  I know it.  You know it.  And I'm darn sure the CEO knows it.

So this case adds some value in marginally spanking the defendant.  But given the holding on individual liability, it's nonetheless not a serious advance.  No reason not to do it again if all that happens is that you have to spend $100 to reincorporate under a different name.

People v. Haraszewski (Cal. Ct. App. - Feb. 23, 2012)

If you're a serial child molester, and a registered sex offender, here are some things you might not want to do:  (1) bring a 12-year old boy who you're molesting to a nude beach; (2) take nude pictures of him; (3) leave your car in a park leading to the nude beach after it has closed; (4) have a big tub of Vaseline, a vibrator, a book on oral sex, and alcohol in the car; and (5) let the 12-year old drive your car.  Because when they stop you (shock!) for No. 5, they're going to find out the rest.  As well as many of the other kids you've molested.

Not really a problem for Mr. Haraszewski at this point.  He'll be spending the next 600 years to life -- whichever comes first -- in prison.  So not much opportunity to make the same mistakes again.

In Re Marriage of Falcone and Fyke (Cal. Ct. App. - Feb. 23, 2012)

My father was a small-town attorney who took almost everything that walked in the door in order to put food on the table for his five children.  Wills, real estate, litigation, tax returns; whatever.  But he refused to do divorce cases.  When I was a child, I didn't really understand why.  Those people needed lawyers, right?  They paid fees as well.  Why not take those cases?

As I got older, and especially once I became a practicing lawyer myself, I had more insight into his decision.  And cases like this one exemplify the types of cases with which my father feared he might potentially become embroiled if he ever took on a divorce matter.

In this particular case, in the end, it actually all turns out fine.  Yes, one of the parties frivolously mucks up the litigation and makes it a disaster.  But she gets sanctioned, ends up having to pay the attorney's fees of her former spouse, and gets declared a vexatious litigant.  There's still massive disruption and inefficiency, but it's not an unmitigated disaster.

But that's only because she has money.  If there weren't assets there, this would be a terrible case.  And, sadly, cases like this are both far too common as well as exceptional.  Common in that frivolous litigation in family law matters is pretty routine.  Exceptional in that, most of the time, the frivolous litigant doesn't have any substantial assets, and so there's very little that a court can do.

Which is a deadly combination.

One big upside of hiring a lawyer is that they tend to take an objective look at things.  Or at least more objectively than you might during a contentious divorce.  If you have the funds, hire a lawyer.  At least as compared with the alternative, it'll save you money, stress, and potential disaster.

And, for the record, I don't litigate divorce cases.

Like father, like son.

People v. Thomas (Cal. Supreme Ct. - Feb. 23, 2012)

If you kill two on-duty police officers, you're going to be sentenced to death.  The fact that you're also found guilty of a different murder is simply icing on the cake.

And it may take the California Supreme Court 83 pages and nearly 17 years to resolve your direct appeal.  But it'll unanimously affirm your death sentences for the two officers.

Joaquin v. City of Los Angeles (Cal. Ct. App. - Jan. 23, 2012)

It's been a pretty slow week thus far, with the three-day holiday and all.  No opinions by the Ninth Circuit today (and only a couple earlier in the week), and only one published opinion by the Court of Appeal thus far.

But the good thing about all that is that is encourages me to go back and reread cases that were a disaster.  Like this one.  Which was decided on the same day as another opinion that was amended today, so it led me to go back and reread it.  A case that's a huge clusterfart.

The opinion shows, in my mind, how these things can become a nightmare.  I won't attempt to defend my views on this one, and reasonable people can (and surely do) disagree.  I'll just give you my take.  A take that's admittedly based on an incomplete and cold appellate record.  But it's nonetheless my opinion.

I think the Internal Affairs department of the LAPD made a pretty coherent call when it concluded that the LAPD officer here fabricated a sexual harassment charge against another LAPD officer in order to avoid pending discipline against him.  I think the Board of Rights, which investigated this charge, similarly made a coherent call when it agreed and recommended that the complaining officer be terminated for fabricating the charge.

I didn't read the entire underlying opinion, but instead only the snippets of it quoted on appeal, but I must say that I was somewhat surprised to learn that the superior court reversed the termination on the grounds that it wasn't supported by substantial evidence.  The Board made a very specific and detailed credibility finding.  I would have thought this would have resulted in dispositive deference.  But apparently not.

So the officer gets reinstated.  Okay.  I guess I can live with that.  Not my preferred solution, but okay.

But then the officer sues, claiming retaliation.  And gets to proceed to trial.  And prevails.  To the tune of $2 million-plus.

That's something for which I'm not on board.

It's bad enough that a sworn peace officer may have fabricated a report against another officer to avoid discipline and then avoided discipline for this offense.  But the thought that such a person might become a multimillionaire by doing so is simply too much.  More critically, it seems to me that the LAPD did exactly what we should want them to do here.  It investigated a tough dispute.  It made a credibility call.  It tried to do the right thing.

Letting a huge jury verdict stand in such settings would deter organizations like the LAPD from doing exactly what we want them to do.  You don't want an organization's self-interest -- avoiding liability -- placing a huge thumb on the scale of its investigation.  Especially when it involves reputations and careers.

So I'm glad to see the Court of Appeal reverse the judgment here.  It's the right call.

I'm still sad the case had to go to trial; in my mind, it should have been dismissed on summary judgment or on a nonsuit.  But justice delayed is at least better than justice denied.

Mardesich v. Cate (9th Cir. - Feb. 21, 2012)

There are occasional hassles that attend the resolution of an with an 08- caption (which means it was filed in 2008) in 2012.  The first footnote of this opinion demonstrates one of them.  Each of the five defendants is no longer the proper party, so needs to be substituted out on appeal.

Rod Hickman's no longer the Secretary of the Department of Corrections.  So he's replaced by Matthew Cate.  Joe McGrath's the old Deputy.  Scott Kernan's the new one.  John Dovey was the Director, but he's out, and Terri McDonald's in.  Deborah Johnson is now the Warden at the central woman's prison, so she's the new defendant, replacing the old Deborah -- but with a different spelling -- Debra Jacquez.  Elections also happen.  Bill Lockyer has moved on as Attorney General.  Kamala Harris takes his place.  Both at the helm and as a defendant.

So it's a whole new cast of characters.  Except for the petitioner, Destinni Mardesich.  Who's destined -- yeah, I know -- to spend the next 26 years to life for helping to kill her baby daddy when she was 16 because she thought he try to get custody of his son.  A destiny that the Ninth Circuit refuses to change, as it affirms the district court's dismissal of her habeas petition.

It's somewhat ironic that it takes the Ninth Circuit until 2012 to resolve Dentinni's 2008 appeal given that the basis for this dismissal is that her petition is time-barred because it's eighteen months late.  But at least Judge Ikuta issued the opinion relatively quickly after oral argument -- around 70 days.  That way the thing doesn't continue until 2013.

But all this talk is of little import to Destinni.  Who's got nothing but time at this point.

Ibrahim v. Department of Homeland Security (9th Cir. - Feb. 8, 2012)

Imagine that the Department of Homeland Security erroneously placed you on the No-Fly List, and as a result, you were not allowed to take a flight, were detained for several hours in the airport, had your visa revoked, and were left outside the United States for years with no way to return.  Could you sue?

Maybe.  Maybe not.  But to even find out, it's going to take litigation with unprecedented magnitude.

Exemplified by this case.  Which started over six years ago.  And still isn't even past the pleading stage.  And has also been forced to be pending in multiple different Courts of Appeals.  So the plaintiff is probably looking at another five to ten years before the suit finally gets resolved.  Enjoy Malaysia in the meantime.

Don't think it could possibly happen to you?  Don't be so sure.  Read Judge Willie Fletcher's opinion.  The List is both expansive and far from perfect.  Maybe they couldn't revoke your visa if you're a U.S. citizen.  But enjoy driving or a week on the train if you ever need to go cross-country.  Oh, yeah, and good luck if you want to visit the Eiffel Tower.  I guess you could take a ship.  But you're more likely going to have to settle for the cheap knock-off in Las Vegas.

People v. Leavel (Cal. Ct. App. - Feb. 17, 2012)

What's up with a public defender who forgets that his client has pled not guilty by reason of insanity?

I understand that it took forever for this case to get to trial.  They catch the defendant in mid-2005 and in August 2005 he pleads not guilty.  The circumstances of his crime are more than a little bit nutty, so the case lingers, with numerous inquiries into the defendant's competence to stand trial, and in April 2007, appointed counsel for the defendant -- William Figueroa -- amends the plea to not guilty by reason of insanity.  The court appoints an expert to conduct an examination, and a couple months later, the expert writes a report that concludes that the defendant is sane.

Two and a half years later -- after the trial is continued "ad nauseum" -- the defendant finally goes to trial.  At which point the defendant's lawyer reenters a plea of not guilty by reason of insanity and asks the court to appoint an expert to evaluate the defendant's sanity.  But the next day, the court checks its records, and tells the defendant (and his counsel) that they already entered an insanity plea and got an expert report three years earlier.  At which point "Attorney Figueroa responded, 'Wow,' presumably having forgotten the matter," and withdraws the request for an expert.

Oops.

This isn't an especially serious offense (in the scheme of things), but it is a felony.  So you might think that the public defender was simply overworked and lost this one in the shuffle.  But it's a three strikes case.  One in which the defendant was sentenced to 102 years to life once the jury found him guilty and rejected his insanity plea.  So it's kinda a big deal to the defendant, who presumably wasn't happy once he realized that his attorney didn't even know what plea had been entered.

Which assumes that the defendant's keenly aware of what's actually going on.  Which isn't necessarily the case.

Regardless:  It's still not the San Bernardino County Public Defender's best day.

Marshall Naify Revocable Trust v. U.S. (9th Cir. - Feb. 15, 2012)

The really rich -- especially the really, really rich -- are indeed different than us.  They don't have to pay taxes the rest of us do.

Check it out.  Marshall Naify is about to get $660 million in capital gains, and doesn't feel like paying taxes on it in California (even though he lives there), so ostensibly "moves" the stock to Minnesota.  So doesn't pay any tax on this gain -- at all -- to Califonria.  But at the same time, he deducts on his federal taxes $62 million in purported state taxes that he "might" have to pay if his scheme to cheat California fails.  And does so even though California has never even gone after him for the $62 million.  Neat trick, eh?  Don't pay state taxes, but deduct 'em anyway.

And sure, after reading this opinion, you might be inclined to say:  But he lost his federal tax refund lawsuit.  The Ninth Circuit affirms.  So all's right in the world.  Justice was served.

Which is partially correct.  But don't forget what happens below.  Naify thought he'd owe California $62 million, but the FTB only went after $58 million.  And Naify settles that dispute on very favorable terms:  he ends up only having to pay $19 million of the $62 million he purportedly owes, plus $7 million in interest (as he's had the time value of money for that $19 million, which has since gotten a lot bigger).  So his scheme largely works.

And it works on the federal side as well, at least in part.  The IRS then allows Naify to deduct the entire $26 million it paid.  But Naify continues to say that he should be allowed to deduct even more than this amount -- on the grounds that his scheme had at least a two-thirds chance of failing, so even if he shouldn't be allowed to deduct the entire $62 million, he should still be allowed to deduct $47 million:  the "chance" that his plans would fail and he'd have to pay.  (Parenthetically, notice -- as the Ninth Circuit does, that two-thirds of $62 million is actually $41 million, not the $47 million deduction that Naify seeks.  "Oops," Naify's lawyers say.  "We must have done the math wrong."  Yeah.  Or simply asked for -- yet again -- a higher deduction than Naify could conceivably have been entitled to, hoping that the FTB wouldn't audit them.)

So, sure, the Ninth Circuit doesn't allow Naify to deduct more than he's actually paid.  And it only took years and years of litigation in the district court and Ninth Circuit to make that happen.  After the guy avoids paying tens of millions of dollars that he probably owes to California to begin with.

Yeah.  That's justice.  What a huge win.

Range Road Music v. East Coast Foods (9th Cir. - Feb. 16, 2012)

Did you allow a live band to cover some Coletrain songs at your jazz lounge?  Play a CD over the speaker in the lounge?

Well, then, you're going to have to pay $4500 in statutory copyright damages for each song.  As well as over $160,000 in costs and attorney's fees to the other side.  Not to mention your own costs and fees.

That'll teach you to mess with Hollywood.

People v. Brandao (Cal. Ct. App. - Feb. 8, 2012)

Here's a question for you.  One especially timely given that yesterday was Valentine's Day.  (Though hopefully the fact scenario below doesn't even come close to applying to your particular status.)
Which is worse:

(A) Having sex with a 16-year old girl?  Or

(B) Sending a text message to a 16-year old girl that says "I missing you"?

Assume that you're a 37 year old man.

The answer, of course, is (B).  Much worse.  At least according to California.  Which requires mandatory lifetime registration as a sex offender for the latter, but not the former.

And according to the Court of Appeal, this doesn't violate equal protection.  It's instead a statute with a rational basis.  Someone could reasonably conclude that the latter is more culpable.

In Re Michael G. (Cal. Ct. App. - Feb. 14, 2012)

Parents often say that they love all of their children equally.  Here's a case where the mother essentially concedes that she loves her other two children more than her middle child -- Michael.  If she indeed loves him at all.

Happy Valentine's Day, Michael.  You can now be adopted.  You're only seven years old, so probably don't fully know what that means yet.  But trust me, as well as the Court of Appeal.  It's in your best interests.

U.S. v. Polar Star (9th Cir. - Feb. 14, 2012)

Don't build houses for the U.S. military in Alaska.

It'll just be a mess.

Watison v. Carter (9th Cir. - Feb. 13, 2012)

I agree with the vast majority of what Judge Farris says in this opinion.

Indeed, I must say, I'm somewhat shocked at the decision by the district court -- Judge Reed, a senior judge from the District of Nevada -- did below.  It's a prisoner Section 1983 case, and as the Ninth Circuit rightly holds, it's fairly clear that the plaintiff has alleged a plethora of claims which, if true, state a claim.  Why Judge Reed thought it was okay to dismiss these claims is beyond me.

Let me just give one example.  Watison brings a half-dozen federal claims, and also around a dozen supplemental state law claims.  The state law claims certainly seem plausible; theft, assault(ish), etc.  But Judge Reed dismisses them without explanation and with prejudice.  Huh?  You've got to at least give a reason, right?  Plus, I agree with the Ninth Circuit that I presume that these claims were simply dismissed because they were supplemental state law claims (and the federal claims had just been dismissed), but if that's the case, the dismissal has to be without prejudice.  Which matters.  A lot.

The strong sense I got from reading the opinion is that Judge Reed was either doing a quick-and-dirty (or sloppy) job resolving the case or, perhaps more likely, had such a strong distaste for the plantiffs' claims that he wanted them out of court -- any court -- come hell or high water, doctrine be damned.  Personally, there's part of me that would understand such a reaction, as I'm not at all convinced that what plaintiff says occurred actually did occur.  But it's at the pleading stage.  If he's lying, that's something to deal with at a later point.  We don't deal with it now.  He says the guard rubbed his inner naked thigh while leering at him.  If true, that states a claim.  End of story.

For similar reasons, I also found Judge Noonan's partial dissent more persuasive on the Eighth Amendment point than the majority opinion.  Here's the allegation in the complaint (as Judge Farris describes it):  Watison "alleged that LaGier entered his (Watison’s) cell while Watison was on the toilet and began to search it, that Watison asked LaGier to leave the room, and that LaGier approached Watison while Watison was still on the toilet, rubbed his thigh against Watison’s thigh, 'began smiling in a sexual contact [sic],' and left the cell laughing."

Does that violate the Eighth Amendment?  Well, I could reason from first principles, but we also have cases on the issue, and since those are binding on us, we'd best start there.

On the one hand, we have an en banc Ninth Circuit case from 1993, which held -- as Judge Farris describes it -- "that the Eighth Amendment prohibited clothed body searches of female prisoners by male guards directed by a prison policy to 'push inward and upward when searching the crotch and upper thighs of the inmate,' to 'squeeze and knead' 'the leg and the crotch area,' and to 'search the breast area in a sweeping motion, so that the breasts will be ‘flattened.’"  So feeling up an opposite-sex, clothed inmate by physically touching her is prohibited.

On the other hand, we have a panel opinion from the Ninth Circuit from 1985 that holds -- again, as Judge Farris describes it -- that it isn't unconstitutional for a prison to "allow[] female guards to observe male inmates disrobing, showering, using the toilet, and being strip-searched, and allowing them to conduct pat-down searches including the groin area."

Judge Farris holds that the current case is more like the latter than the former.  I don't see it.  Seems to me like the holding of the earlier panel case might be severely undercut by the subsequent holding of the en banc court eight years later.  And even if the latter case did survive, it seems to me like the current case is more like the former anyway.  Here we have a someone sexually rubbing his own thigh against the naked thigh of someone else.  That seems even worse than what was at issue in the en banc case.  I know, because I had to undergo something very similar to what happened there at the hands of the TSA when I flew out of D.C. last weekend.  Which I was fine with; a little stroking and pants-pulling -- and, believe me, they were very thorough -- is a lot less severe than if someone starting rubbing my naked thigh with his thigh.

Nor am I sure that the way that Judge Farris distinguishes the cases works.  Judge Farris says that the en banc case involved female inmates, whereas "Watison is a male inmate."  With respect, I don't think that makes a difference.  There's no inherent gender difference in your reaction to unwanted sexual contact.

So although I like a lot of things Judge Farris says in this opinion, I'd have agreed with even more if he had also agreed with Judge Noonan.

Martinez v. Brownco Const. Co. (Cal. Ct. App. - Feb. 10, 2012)

The California Supreme Court should grant review in this case.

The traditional rule -- at least as articulated by the Court of Appeal -- during the past three decades is that a subsequent CCP 998 settlement offer effectively revokes the first.  So if, for example, plaintiff makes a 998 offer to settle for $100,000, then later makes a different 998 offer for $200,000, you pretend that the first offer doesn't exist.  So if plaintiff obtains a judgment for, say, $300,000, she only gets 998 costs after the second offer, even though this judgment is greater than the first offer as well.  Similarly, if plaintiff gets a judgment for $110,000, she gets no benefit under CCP 998; even though the judgment exceeds the first 998 offer, that one is deemed not to exist given the second offer.  Even if the second offer was months (or years) apart from the first.

That's the consistent rule.  But today, the Second District decides otherwise.  Disagreeing with this traditional rule and permitting plaintiff to recover her costs from the date of her first offer (in addition to her second).

I'm actually pretty sympathetic with what the Second District does here.  I think it's the right (or nearly right) rule.  For many of the reasons the Court of Appeal articulates here as well as some additional ones as well.

But the California Supreme Court should review the case regardless.  Section 998 offers are too common -- and too important -- for their import to depend on whatever draw you happen to get on appeal.  There has to be a set rule about successive offers:  either they effectively withdraw the first or they don't.  Lawyers as well as litigants have to know what the rule is, and if it's uncertain, settlement will be discouraged.

So the California Supreme Court should decide the issue once and for all.  So I'll be bummed -- exceedingly so -- if they don't take this case.  There's no reason not to.

In Re Mims (Cal. Ct. App. - Feb. 9, 2012)

On the one hand, you've got the fact that petitioner here -- who was convicted of murder -- killed her husband after claiming to be abused.  That tends to invoke sympathy.  Plus, she's 70 years old at this point. Not likely to be a danger.  Moreover, she's has been in prison for almost thirty years.  Where she has had an exemplary record.  These facts militate in favor of a grant of parole, right?  And she's got fancy (and likely pro bono) counsel, Nixon Peabody, to file her habeas petition.

On the other hand, she was a career call girl.  She's never really expressed sincere remorse for her crime.  The person she killed -- her husband -- was in a wheelchair.  Who was 69 at the time of the murder.  And who was thinking about divorcing her.  Oh, and he was her fifth husband.  Who died by being stabbed.  Not once.  Not twice.  Fifty one times.  A stabbing that occurred five months after they were married.  Plus, nine months after the murder of her fifth husband, she met and married Husband Number Six.  Whom she struck on the head with a hammer while she was on bail for the murder of Husband Number Five.  Marriage No. Six didn't last either.  But at least the husband lived through it.

The Board decided to deny parole.  The trial court reversed.  The Court of Appeal reverses and reinstates the Board's decision.

Save the Peaks Coalition v. USFS (9th Cir. - Feb. 9, 2012)

Judge Milan Smith begins this opinion with the following:  "This case represents a gross abuse of the judicial process."  It's similarly vitriolic throughout.  So if for that reason alone, it's worth a read.

I'll leave the merits -- it's an environmental case -- to Judge Smith.  Suffice it to say that he's not happy with the litigation that the Save the Peaks Coalition filed to stop artificial snowmaking on a ski resort in Arizona.

The one thing I'll say is that even though Judge Smith mentions the merits of res judicata only late in the opinion, in a single sentence in footnote four, that's really the proper focus of his doctrinal complaint.  He's not happy about successive litigation, especially when he thinks it gets in the way of jobs (pointedly noting that the ski resort "supports approximately 200 full-time jobs and $12.08 million in economic output"), and is not shy about saying so.  But it's not the laches or prejudice rules -- the ones at issue in the case -- that are the genesis of this problem.  It's the limited scope of nonparty preclusion (i.e., issue and claim preclusion).

So I'd have liked to see him talk about this more other than by dropping an unexplained footnote that says that nonparty preclusion doesn't exist here.  If everything he says is right, it seems like this would be a pretty strong case of virtual representation (same attorneys, involved parties, etc.), in which case we can easily get rid of the lawsuit on those grounds.  If virtual representation doesn't apply, I'd love to know why not:  are there additional facts that cut against the strength of his objections (and the potential applicability of virtual representation) that he's not revealing, and if so, what are they?  Moreover, given his strong language about the injustice here -- which I can understand -- what's the solution?  Res judicata is a common law doctrine for the most part.  Surely we can modify it if it indeed creates "a gross abuse of the judicial process," right?  What are Judge Smith's suggested changes?  And he's on the Ninth Circuit, with a sympathetic panel.  Why not go ahead and change the principles to which you object?  Or at least explain the reasons you can't do so and the countervailing rationales that support those principles?  I'd sincerely love to hear more.  Especially since I (and, I'm sure, others) could potentially get on board for a change in these principles if a persuasive case was made on the merits.

I think that might be more persuasive than an opinion that some people might well read as saying simply:  "Those damn environmentalists! Always getting in the way of progress!"  A sentiment that lots of people might agree with but with which lots of other people might not concur.  For those who are in the middle, or who care about the actual doctrine rather than the particular positions of the parties, I think an opinion that talked more about the underlying principles that gave rise to the problem that Judge Smith perceives might be more influential.  As well as potentially more persuasive.

P.S. - By a twist of fate, Judge Smith's opinion was also issued on the same day as this published Ninth Circuit opinion.  Which was also a case brought against the US Forest Service, was also in Arizona, was also somewhat strongly worded (though far less so), which also seems to have involved successive litigation and application of res judicata principles (at least according to footnote two), and which reversed the dismissal of plaintiff's claims.  I wonder what light that sheds, if any, on the propriety of res judicata as applied to these types of claims.

U.S. v. Kimsey (9th Cir. - Feb. 8, 2012)

I get why they wanted to charge James Kimsey with contempt for ghostwriting on behalf of purportedly pro se litigants.  Indeed, I'm happy they have it a shot.  Even though, as the Ninth Circuit holds, you can't do that.

They should have just charged Kimsey with the unauthorized practice of law.  But that's a state charge, so would require that the district attorney get motivated, rather than the U.S. Attorney.

Good luck with that.

People v. Latham (Cal. Ct. App. - Feb. 7, 2012)

I know that everyone wants to read the Ninth Circuit's gay marriage decision that came down today.  I know that because of the number of phone calls I've received and the fact that the Ninth Circuit's website has been swamped for the last couple of hours.

But I'll let the opinions in Perry speak for themselves.  They'll get a lot of commentary (and rightly so) even without me.

Meanwhile, if you want a break from the lofty constitutional discourse -- or simply the 128 pages of text -- in Perry, here's an opinion from the California Court of Appeal today that's worth reading.

Sure, sometimes you have evil parents who maliciously kill their infant children and get convicted of murder.  Rightly so.  But what you don't usually see is an opinion in which two parents are convicted of murder of a 17-year old child who died from diabetes.  Seventeen year olds are usually capable of largely caring for themselves (as well as their diabetes), and it's a rare case in which parents are charged with murder when they haven't smacked the kid around or simply left an infant to rot.  Plus, the evidence of malice here (if any) is very, very slim.  The parents definitely didn't act as I'd wish, and I too would have hoped that they'd have taken their daughter to the hospital several days earlier, but there's basically no evidence that they wanted her to die.

Nonetheless, their sentences are severe:  17 years to life for the father and 15 years to life for the mother.  I've seen gangland killings with lower sentences.

Read Justice Aaron's opinion and see what you think.  I think it's a much closer case than she makes it out to be, but at the same time, I can also read between the lines.  It's a case from Riverside County, and the father had pled guilty to using a minor to transport methamphetamine.  So you might have a sense of why the judge and jury -- who got a look at the defendants -- responded the way they did.

Lewow v. Surfside Owners Condo. Ass'n (Cal. Ct. App. - Feb. 2, 2012)

That's pretty nice.
Paul Lewow filed a lawsuit against his homeowners' association and lost.  The HOA filed a notice of entry of judgment, and was about to file a motion for attorney's fees seeking around $300,000.  So Mr. Lewow did what you might expect many people in such a situation to do:  He filed for bankruptcy.

At that point, the HOA couldn't file its motion for attorney's fees.  But Lewow wasn't safe.  His bankruptcy filing was dismissed around six months later, in July 2012.  And then, a little more than a month later, the HOA filed its motion for attorney's fees.

Fee motions are normally due within 60 days (i.e., within the time for filing an appeal), and the attorney for the HOA thought that the fee motion was tolled during Lewow's bankruptcy.  But, as the Court of Appeal notes, that's wrong.  The period isn't "tolled," but rather, you've got thirty days after the bankruptcy petition is dismissed to do whatever you need to do.  But the HOA waited until 32 days after the dismissal to file its motion.  Oops.

So the fee motion is pretty clearly untimely.  Nonetheless, while the Court of Appeal so holds, it also holds that the trial court had the discretion to extend this deadline -- even retroactively -- and that there was good cause here to do so since this was a difficult legal issue and even a reasonable attorney could be confused.  So it affirms the fee award.  To the joy of the HOA and the chagrin of Lewow.

Two lessons, though.  First, don't wait until the last day to do things.  Especially when things may be unclear.  If the HOA had just filed its fee motion a two days earlier, it would have avoided lots of pain and expense on appeal.  Second, while it might have been reasonable for the HOA's attorney in this particular case, since the law was unsettled, it's not unclear at this point.  You've got thirty days after the bankruptcy is over.  That's it.  And in the modern era, bankruptcy petitions are far from uncommon.  Especially for litigants facing a huge attorney fee award.

So file early.  Lest the result in your case be far different than the one here.