People v. Pizarro (Cal. Ct. App. - May 21, 2013)

I am exhausted.

Not over the stuff you might think.  Though that might assuredly play a part.

Rather, I am spent -- spent, I tell you -- after reading this opinion by Justice Kane.

There is some interesting stuff in the opinion about juror misconduct.  Which is what ultimately gets the defendant, Michael Pizarro, a new trial in the first-degree muder of his 13-year old half-sister.  A trial that will be required notwithstanding the fact that the murder was nearly a quarter-century ago and Pizarro has already been unanimously convicted for this offense twice.

No one is happy out this result.  Not me.  Not Justice Kane.  No one.

But that's what happens when a juror goes on the Internet and reads the published decision by the Court of Appeal in the case that's the exact one the juror's deciding on remand.

Cannot do that.  Improper.  Likely criminal.  Reversible error.

So for any jurors who may be reading the California Appellate Report while you are still a juror:  Stop now.  Turn off the computer.  You can come back and read all you want after you are discharged from service.  Do everyone -- everyone -- that favor.

But the majority of Justice Kane's opinion actually concerns a different issue.  DNA evidence.  That is the part that has literally exhausted me.

It is not just that the topic is complicated.  As well as, commendably, addressed at intellectual depth in the opinion.  All that's tiring, for sure.

It's also pure volume.  The opinion spans over 115 pages.  In, again, incredible depth.

Yikes.  You just don't see that usually in the Court of Appeal.

For me, it felt less like reading an opinion than reading a dissertation.  A science dissertation, no less.

I learned a lot.  A ton.  But I'm exhausted.  Spent.  Done.

So go ahead and read this one if you want to learn a lot about DNA evidence.  Which is, admiringly, a fascinating as well as critical field.

But I warn you ahead of time.  It's going to take you forever.  As it did me.

And, at the end, you're going to need a nap.

Enjoy.

People v. Lopez (Cal. Ct. App. - May 20, 2013)

I have a couple of reactions to the underlying facts of this case.  So I thought others might be interested in those facts as well:

"Respondent [Sergio Jose Lopez], a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena Zavala. Zavala stated as follows: During an argument with respondent the previous day, she asked him to move out. Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with respondent, and he 'let go.' Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her 'if they were okay.' Zavala responded that 'they were not okay.' Respondent 'pulled her head out of her elbows where she was crying and brandished a silver handgun revolver in his right hand.' Respondent said, 'I told you if you were ever going to leave me, I will shoot you and shoot myself.' Respondent inserted a single bullet into the revolver's cylinder. He cocked the revolver and put the muzzle against his temple. Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at her and then at himself. When respondent pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and mattress. Zavala said that she was not going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told respondent that she was going to take a break. Respondent replied, '[Y]ou're not going anywhere.' Zavala felt 'an object hit her in the buttocks.' Respondent had thrown a candle at her. Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw her onto the bed. For several minutes, he hit her with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said that her children were going to be home soon from school.

Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched the vehicle and found a revolver that was registered to respondent. The revolver's cylinder contained one expended cartridge and no live rounds. Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found underneath the hole in the sheet. Scheller saw 'an impact mark on the wood of the headboard.'"

The rest of the facts are about what you'd expect.  Criminal charges for assault with a firearm, injury on a cohabitant, negligent discharge of a firearm, etc.  Restraining order issued that bars Lopez from further assaulting or contacting the victim, etc.  The usual stuff.

But here are some things that might surprise you.  Or at least that surprised me:

(1)  Remember that Lopez is an attorney.  Surely he was disbarred -- or at least suspended -- for all of this, right?  Especially since he'd only been admitted to the California Bar around three years before these offenses.  We care seriously about domestic violence, about firearm offenses, about an attorney who allegedly lacks impulse control, etc.  No way a guy like this gets to keep his license, right?

Wrong.  Lopez is still an active, practicing member of the California Bar.  Specializing in, ironically, criminal law and family law.

(2)  You'd think that Lopez's criminal prosecution would be a slam dunk.  They find the gun and the bullet hole.  Good witness testimony.  To be sure, it's a classic he-said/she said dispute, but that's lots of domestic violence cases.  Seemed to me like there's no reason the state couldn't win this one.

I was wrong again.  The jury outright acquits Lopez on the assault, false imprisonment and negligent discharge of a firearm counts.  It hung on the inflicting corporal injury on a cohabitant count, which the prosecutor then dismissed.  Those are the biggie counts, and are the one most relevant to the central facts.

The jury finds Lopez guilty essentially only on ancillary counts:  one count of attempting to dissuade a witness (the victim) from testifying, and one count of violating the restraining order.  The latter is only a misdemeanor, and as to the former, the trial court grants a new trial, holding that this verdict was against the weight of the evidence.  "Thirteenth juror" theory stuff.

Which means that Lopez essentially just gets time served and -- after the Court of Appeal's (correct) ruling that the new trial order on the dissuasion count isn't a double jeopardy bar, a potential second trial on that one.

The guy could have done much, much worse.  Indeed, I'm at a loss to explain why the jury came out the way it did.  The Court of Appeal's opinion includes a lot about the facts on the prosecution's side, but nothing about Lopez's defense.  So hard to assess why the case came out the way it did.

Point (2) may be linked to Point (1).  Maybe Lopez is still a lawyer because he got off of the most serious counts.  Though now that his conviction is (essentially) final on the restraining order violation I wouldn't bet on him remaining an attorney for long.  Even if he beats the dissuading witness count on retrial (or has the trial judge dismiss it).

(3)  Third surprise:  I didn't know that just hanging out with a potential witness in a hotel, hoping that they thereby avoid a subpoena, was a felony.  My baseline here was always that people were free to avoid subpoenas as long as they did so legally.  No requirement that I answer the door, for example, if I fear it's a process server.

I think that's the case, anyway.  But there's apparently a distinction people who "help" someone not answer the door; that's a crime.  Even if there are no threats and the third party truly is only advancing the internal desires of the would-be witness.  I knew that professional responsibility rules for lawyers sometimes draw a related line, but had no idea that the criminal law did something similar.  Good to know, and at some later point, I might even think about this issue in more detail.  (For now, I'm just happy to be introduced to the concept.  And I agree with the Court of Appeal that if that is indeed the law, the evidence here was not legally insufficient, and that a reasonable jury could find that Lopez was not just "hanging out in a hotel room with his girlfriend" but was instead helping her avoid a subpoena so she didn't have to testify against him at his preliminary hearing.)

(4)  Final point.  If you ever doubt that there's such a thing as BWS (Battered Women's Syndrome), reread this case.  Look at what the victim does on Lopez's behalf even after she's "free" and able to escape his psychological clutches.  That someone doesn't leave an alleged batterer doesn't mean that there wasn't battery.  It may not make rational sense, but people aren't uniformly rational animals.

Case in point.

In Re Martin (San Diego - May 13, 2013)

Regular readers may notice that I have been very light on posts this week.  In fact, I must forthrightly confess that I have probably read fewer pages of the Federal and California Appellate reporters this week than any week during the past decade.  A period that includes a plethora of vacations, crushing workloads at the office, etc.  Because I enjoy learning and thinking about the law and legal problems, I almost always find some spare time to do so, edven when things are busy.

This week has been an exception.  I have done virtually nothing on the law side since I got on my bicycle at the end of work on Monday to return home.

Since I generally post about legal matters, I won't bore you with the factual details of my week.  I also don't have to.  All I have to do instead is to refer you to this post, which I wrote almost exactly five weeks ago.

The prescience of that post is almost freakily scary.  Similarly eerie is how the facts of Spriesterbach describe nearly perfectly -- stunningly so -- how my Monday the 13th, as well as the rest of the week (and counting), turned out.

With one exception.  In my post, in addition to discussing legal doctrine, I took Spriesterbach to task -- rightly so, I think -- for, immediately after the accident, "saying 'You fucking bitch.  I am going to sue you.'  He picked up his bicycle and threw it, and picked it up again and threw it against a tree.  He pulled earplug from his ears and called the police."

By contrast, yours truly -- and I remember the events as vividly as anything in my memory -- could only manage to repeatedly moan a single sentence fragment, over and over.   "Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God."

I've been posting from my "temporary office" since then, and likely for a while longer.  I will pick up the pace of my "recreational reading" -- and publishing my reactions -- as I'm increasingly able.

In the meantime, I want to emphasize again what I said five weeks ago.

Let's be especially careful out there.

It matters even more than I previously realized.

P.S. - Today's Bike to Work Day.  Coincidental timeliness strikes yet again.

Greene v. Bank of America (Cal. Ct. App. - May 16, 2013)

Not too long ago, I litigated an appeal in which the attorney for the defendant (Jan Chilton) was the same one as in this appeal. l.  I found Him to be reasonable, sophisticated and smart.

I do not think that these qualities in an opposing counsel uniformly exist.  Far from it.

I ended up (partially) winning my appeal.  Mr. Chilton loses this one.

But I mention the identity and qualities of the respondent's counsel because it perfectly explains, in my view,what happens here.

This appeal is a no-brainier.  Appellant is totally right.  The trial court clearly got this one wrong.  Justice Armstrong's opinion persuasively and concisely explains why appellant's arguments are both basic and entirely right, and why respondent's are wrong.  It is a totally simple case.

But it is nonetheless a mark of a good lawyer that s/he is able to make totally erroneous arguments look at least plausible and/or facially appealing.  That's what Mr. Chilton does here.

Sometimes ou lose and there's nothing to be ashamed of.  Your side was wrong.  Nothing you could do about that but put the best possible, albeit losing, argument forward.

And be proud even in defeat.

Slater v. Clarke (9th Cir. - Nov. 19, 2012)

I'm not sure how the Massachusetts officials who (allegedly) decided not to extradite Daniel Tavares could possibly have made that decision rationally.  Nor could the survivors of the two people who died as a result.

But I'm also not sure how Judge Leighton, from the Western District of Washington, could deny the defendant's immunity motion.  State officials are absolutely immune for these sorts of executive, prosecutorial decisions.  That's clearly the rule.

Fortunately, Judge Christen isn't as confused as the above-mentioned officials.  Reversed.

County of Tulare v. Nunes (Cal. Ct. App. - April 29, 2013)

Doesn't the Court of Appeal find it somewhat ironic that the County of Tulare adopted -- and the Court of Appeal affirmed -- an ordinance that bars the cultivation of medical marijuana in places zoned for agriculture?

Gonzalez v. F.E.V. (9th Cir. - March 23, 2013)

There's a dissent in this Section 1983 police excessive force case.  The panel consists of Judges O'Scannlain, Trott and Clifton.  One need not speculate as to the identity of the dissenter.

It's a fascinating case.  Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously:  that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves.  Accordingly, on a summary judgment motion, a core issue involves the degree of reasonable inferences necessary before a jury reasonably could conclude that the officers' story lacked credibility.  That's a darn good point, and it's one that I didn't sufficiently appreciate until I was reminded of it by Judge Clifton's dissent.

One can summarize Judge Clifton's dissent by saying that there was sufficient evidence here for a reasonable jury to find that the police officer deliberately shot the unarmed decedent in the head at point-blank range when the vehicle the decedent was driving was travelling four miles an hour.  The majority says that, as a matter of law, that's not excessive force.

Read it and see if you agree.

People v. Fisher (Cal. Ct. App. - May 10, 2013)

It may well be -- as the Court of Appeal holds -- that a criminal court doesn't have the statutory power to enter a restraining order in an extortion case, unlike some other criminal cases (e.g., stalking, domestic violence, etc.).

However, if that's indeed the case, the law should be changed.

Defendant tries to extort a job from someone by threatening him.  Defendant gets convicted.   After trial, defendant sends the victim a note that says he was "looking forward to seeing [the victim] at the trial, but no matter; other opportunities will present themselves.  Have no doubt; I will be a regular fixture at the races, in the future."

I think it should be just fine in a case like that for the court to include as part of its sentence that the defendant have no further contact with the victim.  Ever.

The Legislature should get on it.

Duchrow v. Forrest (Cal. Ct. App. - April 30, 2013)

I'm looking for someone to root for here.

Lawyer A represents Lawyer B in an action against Lawyer B's employer.  Lawyer A withdraws at the beginning of trial, and the case is dismissed.

Lawyer A then sues Lawyer B for alleged unpaid fees and costs.  Lawyer A's complaint seeks $44,000, but on the fourth day of a five-day trial, seeks to up that amount ("conform to proof") by several hundred thousand dollars, relying on a provision that he knew about for years.  The trial court allows the amendment, and the jury gives him a six-figure award, but the Court of Appeal reverses.

Lawyer B, by the way, represented herself at trial.  He's a transactional lawyer.  She's also been declared a vexatious litigant.

How Lawyer B -- Ernestine Forrest -- gets to keep a spotless public disciplinary record despite having been declared a vexatious litigant I'll never know.

I'm not in favor of Lawyer B.  But I'm definitely not in favor of Lawyer A either.

If only we could just give the six-figure back pay award that Lawyer A received to the deserving poor rather than ration it out between these two . . . .

In Re David & Sharon Welsh (9th Cir. - March 25, 2013)

I certainly do not have a firm understanding about how bankruptcy works.  For what it's worth -- which is not much -- it seems to me that this Ninth Circuit opinion, which affirms a (split) decision of the Bankruptcy Appellate Panel, seems correct on the merits.

But I do wonder about the equities of the thing.

David and Sharon Welsh live in Montana.  They have a house worth $400,000 -- which buys you a lot in Missoula (check out this 5 bedroom, 4 bath home with 4200+ square feet and two acres of land) -- and lots of equity in the home.  They own three cars, an Airstream trailer, and two ATVs.  They also earn nearly $100,000 every year, plus many additional thousands of dollars in Social Security benefits.  In short, for Montana, they're rich.

But, like many of us, they have debts.  They cosigned their daughter's student loan and have a $50,000 line of credit with Bank of America.  They don't feel like paying these debts.  So they file for bankruptcy and propose a plan that has them continuing to pay off their secured debts (the house, cars, trailer, ATVs, etc.) but pay only $15,000 of their $180,000 unsecured debts.  Despite the fact that their disposable income, even as calculated pursuant to the bankruptcy rules (e.g., excluding Social Security income), would allow them to make far more substantial payments.

The Ninth Circuit says that the debtors' plan was nonetheless required to be affirmed.  Which indeed seems to be the case.

I'm all for giving people a fresh(ish) start.  Though case like this one, while perhaps not the most egregious, might not give the bankruptcy rules a great name.

Goldstein v. City of Long Beach (9th Cir. - May 8, 2013)

Ninth Circuit judges certainly know their way around a dictionary.

Thomas Goldstein spent 24 years in prison based upon the perjured testimony of an unreliable jailhouse informant, Edward Fink.

Judge Reinhardt describes the informant as "the eponymous Edward Fink."  Judge Thomas delves even further into the dictionary, calling him "the aptronymic Edward Fink."

Eponymous.  Aptronymic.  Informant = Fink.  Get it?

It's been a big year already for the word "eponymous."  In the Ninth Circuit alone, Judge Wardlaw used it last month in a lawsuit involving Donald Trump and Trump University, and Judge Berzon used this same term in a different opinion the previous month.  So Judge Reinhardt makes it three months in a row. 

I'm looking forward to seeing what June brings.  Maybe a reference to sprinter Usain Bolt?  Sexting Congressman Andrew Weiner?  The possibilities are endless.

But Judge Thomas ups the ante.  As far as I can tell, "aptronym" has never been used in any published or unpublished federal or state court decision.  Ever. 

And it works.

Let's keep 'em coming.

Elija W. v. Superior Court (Cal. Ct. App. - May 8, 2013)

I had a lot to say about this opinion when it first came out in February.  Suffice it to say that I didn't especially like it, and found it -- at a minimum -- insufficiently reasoned.

Today the Court of Appeal amended the opinion after rehearing.  It reaches the same conclusion.  But it's substatively lots better.  With emphasis on the penultimate word of that sentence.

There are still lingering thoughts in my mind as to whether this is the right result.  But the opinion at least makes more sense, and concrete reasoning, than before.  So that's great.  Whether psychologists are cateogrically mandatory sex abuse reporters -- or whether there's an exception (as the Court of Appeal holds) for psychologists appointed as part of a "defense team" -- is still a tough issue.  But here's one view.  One that's now articulated reasonably well, and in a manner that, unlike the initial opinion, strikes me as a reasonable approach.

So I'm glad to see the changes.  I think the Court of Appeal's decision on rehearing is both a lot more coherent as well as more intellectually defensible.  Even though it reaches the same result.

I will say that it struck me as unusual to see the change in authors.  The panel remains the same.  But whereas Justice Woods wrote the original opinion, and remains on the panel, Justice Perluss authors the opinion on rehearing.  Maybe Justice Woods thought the original opinion was just fine.  Maybe Justice Perluss decided to do a solid and take on the editing task himself.  Whatever the reason, I'm glad the opinion got changed.

But usually it's the original author that either makes the changes (or doesn't).  Rare to see what went on here.

The Los Canos Co. v. Kramer (Cal. Ct. App. - May 7, 2013)

Plaintiff in this case has a point.  One with which I agree.  Court reporters charge way too much for copies of transcripts.  So when they say the fees are unreasonable -- e.g., $16,000 for simply sending an already-existing uncertified electronic copy of a transcript (for which the reporter has already been fully paid by the noticing party) -- I couldn't agree more.  Plaintiff's proposal, which is around $35 or so rather than $16,000 -- seems about right to me.  That's reasonable.

The Court of Appeal nonetheless also seems right in affirming the dismissal of plaintiff's putative class action lawsuit.  Trial courts are expressly allowed by statute to limit how much court reporters can charge a nonnoticing party for a transcript.  That's effectively the exclusive means of limiting the court reporter's charges to "reasonable" amounts.  So when the plaintiff didn't file a statutory motion before the rendering trial court, that's the end of the matter.  Case dismissed.

I can imagine some cases in which recourse to the statutory procedure might be difficult.  Previously terminated actions, for example, come to mind.  But there's no reason to believe there was a problem here.  So the statutory motion is exclusive.

Makes sense.  And, I might add, worth filing.

Because two dollars a page to copy a transcript that's alerady been created (and paid for) is absurd.

People v. Williams (Cal. Supreme Ct. - May 6, 2013)

It seems so easy at first.  Scam someone in a drug deal.  Buy some kilos of cocaine with bundles of "cash" wrapped in plastic that are actually ripped up phone books in the shape of bills.

Yeah, in theory, that works.  A theory that sounds even more attractive when you've been smoking a ton of weed when you come up with the plan.

But one of the many deficiencies of the plan -- and by no means the biggest, I might add -- is that one of the guns you bring with you to the scam might accidentally go off and shoot someone.  At which point you may feel compelled to deliberately kill the remaining witness, as you're already guilty of felony murder.  All of the sudden you find yourself convicted of two counts of first-degree murder and sentenced to death, and although the prosecutor strikes the first five African-American women in the jury box, the California Supreme Court affirms.  Sure, you've still got federal habeas.  Good luck with that.  Not exactly what you'd hoped for when you had the bright idea to acquire some cocaine with ripped up phone books.

Working at McDonald's and the like may not be fun, and you'll definitely not get rich quickly (if at all).  But at least you won't be sentenced to death.  (Or, hopefully, kill anyone.)

City of Riverside v. Inland Empire Patients Health and Wellness Center (Cal. Supreme Ct. - May 6, 2013)

I kept waiting for the other shoe to drop in this one.  It never came.

The California Supreme Court holds that Riverside -- and any other municipal entity -- can totally ban the sale of medical marijuana notwithstanding the initiative (and subsequent statute) that allows medicinal use.  So it's okay for you to use marijuana for your cancer, terminal illness, etc.  But good luck actually getting some.  Every municipality can prohibit such conduct as a public nuisance.  Such ordinances aren't preempted by the state law.

The decision itself was not entirely surprising.  Neither the Court of Appeal nor the California Supreme Court have been particularly favorable when it comes to medical marijuana.  They've taken a very limited approach, and this morning's opinion is fully consistent with this outlook.  It's also true that advocates of medical marijuana have sometimes understood the relevant statutes more broadly than they in fact are.  Possession and sale of marijuana remains a crime, albeit a federal (rather than state) one.  Moreover, states possess traditional police powers to extensively regulate -- viz zoning and other regulations -- even entirely legal and/or constitutionally protected conduct; e.g., housing, adult bookstores, etc.  All this, plus a strong presumption against preemption, makes today's opinion not a complete shocker.

But as I read the opinion, I nonetheless kept waiting for the dissent.  Something that never came.  The opinion was unanimous.

That, by contrast, was surprising.  At least to me.  Notwithstanding the fact that I'm fully aware that the justices are -- beneficially, in my view -- generally a get along, go along group.

I agree there's no express ("conflict") preemption.  But the case for implied preemption is strong.  The California Supreme Court makes much of the fact that state law doesn't "positively" allow the sale of medical marijuana, but instead merely provides an exemption from certain criminal laws.  But as the Compassionate Use Act itself expressly makes clear, the intent of the statute was to advance -- indeed, "to ensure" -- the ability of "seriously ill Californians . . . to obtain and use marijuana for medical purposes."  That's a positive right.  Or at least a positive intent.  With all due respect to the California Supreme Court, that can't successfully happen if every municipality in the state prohibits (as Riverside does) the sale of marijuana to critically ill citizens.  Nor can it happen if someone sick in Riverside is required to get in their car and drive up to whatever municipality -- say, in Humboldt -- elects to exercise legislative grace and allow medical marijuana dispensaries.

Justice Liu has a brief concurrence that tries to explain the preemption point with an analogy to the Federal Arbitration Act.  I appreciate that.  Especially since I'm in the midst of writing a law review article that makes a very related preemption point.  He's right, for example, that just because the FAA requires courts to enforce arbitration agreements, that doesn't require employers to use them.  True.

But let me draw a closer analogy.  Imagine that Riverside passed a zoning ordinance that said that no building with an office in Riverside could write, draft, enforce, or have employees sign an arbitration agreement, nor could any arbitration hearing be conducted therein.  Because, in Riverside's view, such proceedings (and clauses) are "nuisances".  Would conflict preemption exist?  Clearly, yes.  Because the local ordinance conflicts not with the text of the statute, but with the accomplishment of its purposes.  Particularly when, as with medical marijuana, lots of municipalities pass similar laws, and especially when (as here) there's little to no recourse to an out-of-state forum.

There's admittedly a structural problem underneath all of this, and one that the California Supreme Court either overlooks or deliberately fails to mention.  The Compassionate Use Act was a statute passed by initiative.  The Legislature was an obstacle, and had to be bypassed.  For that reason, the statute is not easily modified, since that would require yet another initiative.  Nor, for similar reasons, can the statute flexibly respond to attempts to circumvent it.  Those who draft the statute have to try to anticipate efforts -- like those of Riverside here -- to defeat the objectives of the Act, and if they are unsuccessful in anticipating a particular means of circumvention, that puts the objectives of the initiative at risk.  The Legislature can't (or, more accurately, won't) adopt a "quick fix" as would happen in the case of a legislatively passed statute.

In one universe, that's where the judiciary would come in.  Courts would apply implied preemption to make sure that there isn't a structural public choice failure.  They'd make sure that localities could not circumvent the purpose of a statute by engaging in conduct that there's every reason to believe would defeat the central objectives of the statute.  If you asked someone who voted for the CUA at the ballot box whether they wanted medical marijuana to be legal but whether localities should nonetheless be able to categorically prohibit its sale, I have no doubt whatsoever what the response would be.  In one universe, that would matter.

But that universe is not California.  Not even for a single justice.

So I was surprised.  Perhaps not at the ultimate result.  But definitely at the uniformity.

People v. McCoy (Cal. Ct. App. - May 3, 2013)

The facts of this opinion start on page four, and take up three double-spaced pages.

Read them.

I'm rarely at a loss for words.  This is one of those times.

U.S. v. Mancuso (9th Cir. - May 1, 2013)

Think dentistry is a profession for nerds?

Whatever else dentist Jerome Mancuso was, he was assuredly not a nerd.  As Judge Bea notes in the opinion, Dr. Mancuso "distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana."  In particular, Mancuso liked to distribute . . . cocaine.

It's not that Mancuso was a straight-up dealer.  Make no mistake:  He did, indeed, distribute coke.  But he didn't sell it from his office like you'd normally think.  Rather, he was principally a buyer.  Albeit a buyer who liked to party.  A lot.  Lots of witnesses testified that Mancuso had a particular catchphrase:  "I'll buy and you fly."  Mancuso bought the cocaine and shared it with his friends.  For free.  How's that for a drug distribution network?

But distributing drugs for free is still distribution.  Whether it's in a dirty alley or, as here, tooting lines with your friends in (as Judge Bea puts it) "bars, restaurants, golf courses and ski resorts."  Apparently Mancuso did not realize that it's no longer the 1980s.

So Mancuso's found guilty, and the district court has to sentence him.  Lots depends on how much cocaine Mancuso distributed.  The PSR calculates the drug amount as over 750 grams.  That's a lot.  But it divided that amount in half on the theory that Mancuso snorted half of it himself.  Which is nearly a pound of cocaine.  Which is only the amounts to which the witnesses testified at trial.  Who knows how much Mancuso snorted with others or by himself?

In short, Mancuso liked cocaine.  A lot.  Now he gets to pay the piper.  (Beyond, of course, the fact that his heart and nose are almost certainly trashed forever.)

Ultimately, both the AUSA and district court are pretty nice to Mancuso.  At least with respect to the sentencing issues.  The district court uses only a calculation of 263 grams, and then it downwardly departs to result in a sentence of less than half the lowest guideline range.  So Mancuso receives a sentence of only 16 months.

On the theory, in part, that he still has the potential to be "an outstanding doctor."  At least if he stops spending all his spare time doing lines.

The Ninth Circuit gives Mancuso a partial victory on his appeal, vacating some of his convictions and remanding for potential resentencing.  Though it also grants the government's cross-appeal regarding its attempts at forfeiture. So maybe Mancuso gets a month or two less time in jail and ends up losing the $160,000 the government seeks.

Hopefully Mancuso won't need that much money anyway.  In the future, he can put the money in the bank instead of up his nose.

People v. Goolsby (Cal. Ct. App. - April 30, 2013)

When they talk about getting off on a technicality, this is what they mean.

Though here, it's not the constable who's blundered.  It's the prosecutor.

People v. Xiong (Cal. Ct. App. - April 30, 2013)

DNA evidence is incredibly helpful.  Both to persuade a jury to convict and, occasionally, to exonerate.

Usually, DNA evidence is just a start.  Especially in "cold hit" cases.  You identify a suspect, either independently or through a DNA match, and then you build up a case from there.  Witnesses.  Some physical evidence.  Maybe a confession.  The combination of all of these results in a conviction.

I haven't seen a case in which basically the only evidence against the defendant was the result of a "cold hit" off the DNA.

Until now.

A taxicab driver, Jose Martinez, gets killed by a shot to the back of his head.  No one can identify the person who shot him, or who got in the cab.  No fingerprints.  No gun.  Nothing.  The only evidence that exists is some blood in the back seat of the taxicab.  Blood that presumably came from the person who shot Mr. Martinez, since the taxicab likely crashed shortly after the driver was shot, resulting in the back seat passenger (likely) being thrown against the front seats and bleeding.

Detectives enter the DNA from the blood into a database.  No hits.  But a year later, a cold hit comes up.  Xiong.  Who lives within a mile or so of the crime scene.  So they interrogate him.  Nothing.  No evidence.  Nothing from any search.  No confession.  No independent evidence at all.  Just the DNA evidence and a bump on Xiong's head.  Maybe from being hit in an alley, maybe from a long-ago accident in a taxicab, maybe from something else.  Essentially, it's all about the DNA.  Xiong's DNA matches the blood in the cab, and the probability that it would match any particular random person is low.

Proof of guilt beyond a reasonable doubt?

The jury decides it is, and convicts Xiong of first-degree murder, and he's sentenced to life without the possibility of parole.  The Court of Appeal affirms.  Holding that the DNA evidence alone, even from a cold hit, is sufficient to establish guilt beyond a reasonable doubt.

That's even true despite the fact that the prosecution never introduced evidence about the probability of a random match between the DNA in the taxicab and the DNA in a random Asian.  There's a very low probability of a match between the suspect DNA in the taxicab and that of a random Caucasian, African-American, or Hispanic.  There are readily available databases of Asian DNA -- the ethnic group to which the defendant belongs (Hmong) -- but the expert here didn't use any of them.  That's despite the fact that, presumably, if there's a DNA match between the blood and Xiong, there's likely a higher probability of a similar match to an Asian (with similar DNA) than to someone in a different ethnic group.

No matter.  The DNA evidence alone is good enough.  Cold hits are themselves sufficient to establish guilt.

My money's on Xiong being guilty.  But isn't it a scary prospect if he isn't?

It's a cold hit.  If your (or my) DNA matches the blood -- and everyone admits it's possible, just not very likely -- then we go to prison too.  Until we die.  There may be absolutely no evidence against us other than the random hit.  But that's enough.  We're convicted entirely on the basis of our DNA.

And, at some point, a random hit happens that identifies someone innocent.  It's a mathematical (as well as human) certainty.  They go to prison forever as well.

As I said, I've never seen a case that's based entirely on a cold hit.  I have now.  And it frightens me.  And would frighten me even more if I thought that there's someone out there who may well have 15 loci in their DNA that are the same as mine.

Which there may well be.

For all of us.

Battaglia Enterprises v. Superior Court (Cal. Ct. App. - April 29, 2013)

See?  I'm not always wrong.

Or at least, when I say something, other -- wiser -- people occasionally come to agree with me.

Of course, even a broken clock is right twice a day.

Jameson v. Desta (Cal. Ct. App. - April 29, 2013)

Yes.  It's true.  Plaintiff is claiming that he received too much medical treatment while in prison.

The Court of Appeal nonetheless gets this one right.  For the third time.  It previously twice reversed the trial court's dismissal of plaintiff's lawsuit.  Now it does so again.

Pretty impressive for a pro se litigant.

Which is not to say that Jameson will win at trial.  He's got an unusual claim.  He's incarcerated for murder.  He is, in short, not a litigant with whom a jury will likely find sympathy.

But he'll get to trial.  No small feat.  And who knows?

U.S. v. Trujillo (9th Cir. - April 16, 2013)

Two things are surprising about this case.  I'll mention them very briefly.  Without elaboration.

First, it's a cocaine sentencing modification case, and the AUSA who argued the case in the Ninth Circuit (Wendy Wu) is with the Cyber & Intellectual Property Crimes section of the U.S. Attorney's Office.  Huh?

Second, the Ninth Circuit somewhat slams the district court judge for being lazy and overly dismissive, and reverses and remands on that basis.  The district court judge is Judge Dean Pregerson.

I'll stop there.

People v. Harrison (Cal. Ct. App. - April 18, 2013)

Not the most sympathetic defendant in the universe.  Not surprising that his convictions are affirmed.

At all.

Taxpayers for Accountable School Bond Spending v. San Diego USD (Cal. Ct. App. - April 25, 2013)

This is a staggering devotion of resources -- really quite shocking -- devoted to fighting about whether Hoover High School (here in San Diego) gets to put up some lights for its football field.

It's very plausible that Proposition S, which was approved by the voters in 2008 and authorized up to $2.1 billion dollars of school bonds, didn't expressly authorize this particular project at Hoover.  The trial court held otherwise, but the Court of Appeal says that the "field lighting" part of the referendum referred to something different than the particular projects approved for Hoover.  The Court of Appeal may well be right.  (That said, there's no way the vote would have been different had the project been expressly approved.  But we don't apply harmless error analyses to elections.  We only do that in civil and criminal adjudications.)

So the petitioner, which is a nonprofit organization ostensibly concerned about government spending, gets some relief.

But is the candle really worth the wick?

It's quite possible -- perhaps even likely -- that the amount of money spent by the taxpayers on this litigation far exceeds the amount that would have been spent on the two light stands.  The trial judge (and support staff) took a lot of time, the Court of Appeal took a lot of time, and the school district hired at least three outside lawyers -- plus whatever resources were devoted at the trial court level -- to defend the measure.  The Court of Appeal's opinion is 73 pages long.  That's a big hint that the amount of money spent on this thing was far from insubstantial.

That result is also far from surprising.  Given that it's a close case, it's not like the petitioners could reasonably have expected the school district to just concede.  Especially since they won in the trial court.  So a fight was fully expected.

The net result is a "win" for petitioners.  At least if you count as a "win" a result that will likely actually increase taxes in San Diego.  With no material benefit other than a 72-page opinion by the Court of Appeal that's completely fact-specific and of no assistance in any other case.

Win a battle, lose the war.

Maybe petitioners should change the name of their group to "Taxpayers for Less Spending on Schools But Higher Taxes So We Can Pay Lawyers."

Schwab v. CIR (9th Cir. - April 24, 2013)

I'll readily admit that I can only partially follow the legal analysis in this opinion.  Not that it's wrong.  Not that it's confusing.  Not that the opinion isn't written well.  None of that.  It's simply that the underlying issue involves tax laws, regulations, annuities, surrender values, and all sorts of other esoteric things with which I'm not entirely familiar.  So try as I might, I have only a vague impression of the merits of the case, or of the I.R.S.'s appeal.

But I do nonetheless know enough to slightly modify one thing that Judge Milan Smith says.

In rejecting the I.R.S.'s position, Judge Smith concludes his opinion by arguing the following:

"Finally, prudence counsels us against adopting the Commissioner’s proposed ban on considering surrender charges under section 402. Just as variable universal life insurance policies did not exist when the Court decided Guggenheim and its companion cases in 1941, ever-creative financial institutions are liable to devise new life insurance instruments that we cannot contemplate today. We therefore decline to tie the hands of the tax court now, or in the future, by adopting the Commissioner’s proposed blanket prohibition on considering surrender charges when valuing life insurance policies under section 402."

I understand that as a general principle.  When dealing with innovation, you often don't want to make bright-line rules.

But I'm not as confident as Judge Smith that this doctrine is applicable in this particular context.  Indeed, a contrary principle might well apply.

The basic reason is this:  This is a tax case.  There is, indeed, a lot of "financial innovation."  But particularly in the modern era, a lot of that "innovation" relates primarily -- if not exclusively -- to the (purportedly "legal") evasion of taxes.  And there's good reason -- real good reason -- to believe that that's not just true in general, but particularly here.

Notice what the "life insurance" policy does here.  It's got a monster "premium" of six-figures a year.  So that's how much the "policyholder" invests.  The "amount" of the "life insurance" depends highly upon the return of the "investment vehicle" the "policyholder" chooses.  Here, that's the S&P 500.  A policyholder gets to stop paying "premiums" once the S&P 500 goes up a certain amount.  And while the investment has to stay in the account for a limited period of time -- 8 to 12 years -- the "balance" of the life insurance policy is deliberately designed to be withdrawn not only upon death, but instead whenever the investor feels like realizing his investment returns.

What's the difference between (A) this "life insurance" policy, and (B) a straightforward mutual fund (or hedge fund) that similarly invests in the S&P 500 and requires investments to stay in the fund for years?  None.  None whatsoever.  Except that, according to the taxpayers -- as well as the company that set up the "policy" -- the increase in value the fund (e.g., capital gains) are taxable in (B) but not in (A).  By calling it a "life insurance" policy, you get all the benefits of an investment but avoid the consequent taxes that everyone else pays.

Could the IRS say that's okay?  Sure.  If Congress or the IRS wants to allow people to so easily avoid capital gains taxes, they're free to do so.  Indeed, I'm happy to sign up.  I'd probably vote against such a taxation regime (at least without knowing more), but if it were allowed, I'd gladly participate.  Only a few want to pay more taxes than are due.

But, at the same time, the IRS clearly doesn't want these tax shelters to operate.  Which is, indeed, how this particular case came about.  Because once the IRS got wind of what was going on in this area, and started to clamp down, the "life insurance" company here terminated the plan, which led to the "surrender value" dispute involving the present taxpayers.

I say all of this for a simple reason.  Flexibility may be good in some areas.  But in others -- and tax law comes to mind -- there may well be value even in admittedly overbroad and inflexible rules.  The ability of taxpayers to find "creative" ways to avoid taxes is exceptionally high.  Particularly when assisted by highly compensated accountants, lawyers and financial advisors who can readily obtain a healthy chunk of whatever money gets diverted from the public fisc.  The IRS might understandably, and properly, want to create bright-line rules precisely to preclude the type of "financial innovation" to which Judge Smith refers, and that is amply present in this case.

It's possible, of course, that mankind's several centuries of experience with life insurance and the financial preparations for death have nonetheless left undiscovered beneficial ways to make sure that dependents are cared for upon death.  But I'm pretty sure at least the basics here are covered.  By contrast, I'm quite confident that there are legions of creative ways not yet identified to try to get around paying taxes.  New ones crop up every year.  Always have.  Always will.  When deciding whether a bright-line rule like the one proposed by the IRS is beneficial, I'm not so sure a policy that favors innovation is necessarily a valuable one.  Sometimes the best rules are the ones that are the clearest.  Even when they're potentially overbroad.

Mendoza v. Hamzeh (Cal. Ct. App. - April 22, 2013)

You don't see a huge number of attorney fee awards imposed against a party that files an anti-SLAPP motion.  It's also unusual to see a strong negative reaction by a court to a party's failure to cite controlling authority.  Counsel generally know that if there's a case on point -- or even close to on point -- the best strategy is to cite it and then attempt to distinguish it.  Which is also the ethically required approach as well.

Here's an exception.

I don't know how defendant's counsel could have messed this one up.  Defendant filed an anti-SLAPP motion claiming that a pre-lawsuit demand letter was privileged.  But there's controlling authority -- from the California Supreme Court, no less -- that clearly holds that such letters that constitute "extortion" (e.g., that threaten criminal sanctions) aren't privileged.  Although one could potentially make an argument that the two letters are somewhat different, they're darn close.  Defendant was accordingly under a duty to at least cite the contrary case in his anti-SLAPP motion.  But he didn't.

It got even worse when, upon receiving the motion, plaintiff's counsel wrote defendant's attorney a letter citing the omitted authority, requested that defendant withdraw the motion, and gave him over a month to think about it.  Defendant refused to do so.

Which is, of course, his right.  But it led to an entirely expected -- and understandable -- award of attorney's fees alongside the denial of the motion.  As well as an additional award of costs and fees once the defendant made the similarly unwise decision to appeal.  An appeal that, needless to say, was not successful.

Cite clearly controlling authority.

U.S. v. McClendon (9th Cir. - April 19, 2013)

Judge Gould does his best Kozinski impression.  Which made me chuckle out loud:

"At around 2:20 a.m. on a spring night, two police officers responded to a 911 call placed by an elderly disabled homeowner who feared a possible invader. The homeowner reported that an unknown vehicle was parked in his driveway with its engine and lights off and that someone had knocked on his door. . . . [After finding numerous incriminating pieces of evidence on a companion, police officers spot Eddie McClendon walking down the street, and order him to stop and raise his hands.]  McClendon did not comply. He did not stop. He did not show his hands. He continued to walk away. When the officers got still closer to McClendon, McClendon took his hands and 'pushed them down towards his waistband and [again] turned away from [the officers],' making a flinging motion. The officers then closed the distance and forcibly arrested McClendon, tackling him and placing him in handcuffs. They found a loaded silver handgun, still warm to the touch, on the grass a few feet away. McClendon denied tossing the gun and said that the backpack was not his. At the time of McClendon’s arrest, he was wearing a black knit cap, which police found to be a rolled-up ski mask, one with eye holes and a mouth hole. But McClendon had no skis. And there was no snow."

It's a tiny little aside, and maybe not even all that clever.  But I still liked it.

This troubled week could definitely use a bit of humor.

Hoogenberg v. Simmons (Cal. Ct. App. - April 18, 2013)

You think your divorce proceedings were bad?  Listen to this one, which involves San Diego residents Tracy Hoogenberg and Buford Keith Simmons:

"The parties were married in May 2008 and separated one year later in May 2009. They have one child (Child) born in March 2009. On June 3, 2009, Tracy filed a petition for dissolution of their marriage. She requested that the court determine the parties' property rights and award custody of Child to her with visitation to Keith, and that the parties pay their own attorney fees.

What followed was an astoundingly lengthy, circuitous, and expensive course of litigation, particularly given that both parties had substantial financial assets and were married for a very brief time. Tracy had significant investment assets acquired after the death of her first husband. Keith owned a wetsuit business in La Jolla with two partners, and he had an ownership interest in a building in La Jolla.

For purposes of the current appeal, the case was finally resolved in July 2011, by which time Tracy had incurred more than $800,000 in attorney fees and costs. In its final decision, the trial court found the protracted litigation was due in large part to Keith's 'questionable legal tactics' (including his request to declare the marriage a nullity and failure to respond to discovery) and his hiring and firing of numerous attorneys. To support its sanctions award, the court concluded that Keith had failed to comply with 'even the most basic' financial disclosures; filed misleading and delayed disclosures; failed to fully disclose his assets; misused Tracy's computer hard-drive to disseminate her emails to third parties; failed to respond to discovery requests; failed to appear at his own deposition and trial; and acted intentionally and in bad faith. Based on these findings, the court ordered $150,000 in sanctions against Keith under section 2107 for breach of his fiduciary duties of disclosure, and $250,000 in sanctions under section 271 for his uncooperative conduct. Applying the remedy in section 1101, subdivision (h) for the fraudulent failure to disclose, the court also awarded Tracy the $245,850.24 value of Keith's separate property savings account."

Yikes.

 

MHC Limited Financing v. City of San Rafael (9th Cir. - April 17, 2013)

The Federal Rules of Civil Procedure took a real beating from the Ninth Circuit today.  A couple of opinions were published that had professors who teach civil procedure shaking their heads.  Like me.

I'll mention only one of them for now.  This opinion by Judge Thomas.

(At some future point, I'll have even more to say about Chief Judge Kozinski's concurrence in a different opinion earlier today.  But I want to deal with the easy one first.)

I won't particularly dispute Judge Thomas' result.  It's one of the plethora of "mobile home rent control takings" cases that federal and state courts have had to deal with during the past several decades.  It's a holding worth at least brief mention:  San Rafael's ordinance is not a taking.  That matters if you either live in a mobile home or own a mobile home park.

But I mention the case not because of its holding, but rather due to its language.  In particular, how it describes various motions in federal court.

Several times in the opinion Judge Thomas refers to plaintiff having moved for a "directed verdict" under FRCP 50.  To be clear:  There's no such thing in federal court.  Not for the past 20+ years, anyway.  That's the old, common law term.  In federal court, we call it a motion for judgment as a matter of law.  After two-plus decades, we might want to start using the appropriate terms.

Plus, in truth, plaintiff didn't even make a "directed verdict" motion anyway, regardless of what it's called.  Plaintiff's motion was made after jury's adverse verdict.  That's not a directed verdict motion (or JML), but rather a rJML -- a renewed motion for judgment as a matter of law.  What we called in the old common law days a j.n.o.v. motion.  For some reason, Judge Thomas' opinion talks about the correct motion when he's quoting from prior Ninth Circuit cases regarding the standard of review, but in his section headings and text, repeatedly refers to an alleged motion for a directed verdict.

I know I'm being a stickler here.  But I imagine the parties -- which collectively spent over $5 million in legal fees on the case -- used the correct terms.  So we should as well.

People v. Pellecher (Cal. Ct. App. - April 17, 2013)

Courts and commentators occasionally say that resort to legislative history is a crock.  (You listening, Justice Scalia?)  For those doubters, I'd suggest reading this opinion.

It's a classic case where legislative history matters.  Could you reach the same result by relying exclusively upon the statutory language?  Sure.  You could.  And a portion of Justice Mallano's opinion does precisely that.

But relying entirely upon the text would leave a lot of doubt.  Resort to legislative history puts most, if not all, of that doubt to rest.  Even for someone -- like me -- who was a little dubious about the opinion's holding when he first started reading it.

A nice, tight opinion.

Cameron v. Craig (9th Cir. - April 16, 2013)

I agree with every single word Judge Milan Smith utters in this opinion.  Every.  Single.  Word.

It's the battle of the Michelles.  Arrestee Michelle Cameron wins some things in the Ninth Circuit.  Officer Michelle Craig wins others.

The Ninth Circuit's partial reversal of the district court's grant of qualified immunity may make my taxes go up a tiny bit.  Because the case is down here in San Diego, and it means that the case will either have to be settled or will go to trial.  And, in my view, the defendant's exposure here is nontrivial.  Particularly because I did my state and federal tax returns yesterday, I'm keenly aware of the resulting consequence.

But it's a small price to pay.  Judge Smith gets it right:  A reasonable jury could well find that the search here was deliberately excessive and part of a conspiracy between Officer Craig and another San Diego Sheriff's Deputy, who had broken up with Cameron and was allegedly manufacturing his baby mama's (rough) arrest in order to humiliate her and gain advantage in a custody dispute.  If true, it's despicable.

Judge Smith's right that there was probable cause.  He's also right that that's not the end of the matter, and that disputed issues of material fact remain for trial.

Defendant should settle.  Because the same ugly facts that colored (in part) the Ninth Circuit's reaction may well have the same effect at trial.

People v. McEvoy (Cal. Ct. App. - April 15, 2013)

One topic we discuss in my Law of Love class is incest.  We talk about the normative rules -- should (certain types of) incest be constitutionally protected -- as well as predictive ones.  Sexual mores and constitutional protections for intimate human relations have undeniably evolved during the past half-century, and will almost certainly continue to do so.  When, if ever, will we reach a point at which the judiciary will declare certain forms of consensual incest permissible?

There are -- as one might expect -- various views on this subject.  Some believe that incest laws are categorically good, and will (for that reason) persist.  Others believe that at least some incest laws -- generally, those involving consensual adult relationships -- are overbroad, and will eventually be held to infringe upon fundamental liberties.  Still others believe that incest laws are normatively overbroad but will nonetheless continue to be upheld, and a few believe that current incest laws are good but may eventually be struck down regardless.

Regardless of one's position on the predictive issue, I'm fairly confident that the existing incest rules will not be successfully challenged in a case like this one.

Daniel McEvoy may facially have a tolerable claim.  He's 38 years old.  His sister is 36.  They had not seen each other in many years.  They were exceedingly close, and his sister called him her "best friend."  You could see someone potentially making a nonfrivolous claim that this brother and sister couple should be able to be sexually intimate, or even marry, in the same way that people (currently)have a right to be intimate and/or marry a person of a different race.  That claim might be especially strong if the couple did not intend to have, or were incapable of having, children.  Which is why Dan McEvoy raises his constitutional challenge here, asserting that his conviction for incest violates his constitutional rights.

I'm nonetheless not surprised in the slightest that the Court of Appeal unanimously rejects this claim.  For one thing, neither precedent nor prevailing mores are likely to make recognition of this supposed constitutional right arise anytime soon.  For another, if and when they do sufficiently change, I have a strong feeling that the initial articulation of a "right to incest" won't be made in a case like this one.  One in which (1) the sister testified, quite forcefully (and seemingly credibly), that the incest was not consensual, and (2) in which the brother had previously raped a woman at knifepoint at her home.

Doctrinally, those facts may not ostensibly matter, since consent's irrelevant to the incest conviction here and the prior offense technically doesn't relate to the present charge.

But that they don't legally matter doesn't mean they don't matter.  They do.  There was a snowball's chance in hell that the Court of Appeal would agree with McEvoy's legal contention that incest is a constitutional right.  And even that went away when the Court of Appeal was told that the incest was not consensual and that the defendant previously raped someone at knifepoint.

Battaglia Enterprises v. Superior Court (Cal. Ct. App. - April 11, 2013)

I understand why Justice Aaron elected to decide this appeal even though the parties settled the case before oral argument.  After all, she'd already drafted the opinion.  No reason to let it go to waste.

But I do wonder why it ends the way it does.  When you're deciding an appeal (in the "interests of justice") involving parties who have settled, I don't think you can end the opinion, as this one does, with the line "Real parties in interest are entitled to costs in this proceeding."  Indeed, it may even be beyond your power to do so, as the case is moot.

State courts, unlike federal courts, may be entitled to issue advisory opinions.  But I don't think they can award monetary costs therein.

Otherwise, the opinion is fine.  As well as worthy of mention.  The Court of Appeal holds that parties (or at least sophisticated parties) can validly agree to mandatory venue clauses so long as the venue selected was a permissible one under California's venue statutes.  Pursuant to a 1929 case, we don't enforce venue selection clauses when the selected venue was impermissible; for example, we won't force a Bakersfield-only defendant to litigate a lawsuit brought by a Bakersfield-only plaintiff in San Diego even if the parties agreed to do so.  But if a Bakersfield corporation entered in to a contract in San Diego with a San Diego corporation, we'll enforce a venue selection clause that limits litigation to San Diego (rather than Bakersfield), because this was one of the otherwise permissible venues.

Makes sense.

Stoltenberg v. Ampton Investments (Cal. Ct. App. - April 4, 2013)

I'm not a huge fan of the appellate disentitlement doctrine.  Either in how it's articulated or, in particular, how it's practically applied.

Justice Mosk's opinion here nonetheless seems right to me.  At some point, it's entirely proper to dismiss an appeal -- or to at least think srongly about it -- based upon the defendant's refusal to follow presumptively lawful efforts to enforce the underlying (unstayed) judgment.

This is one of those cases.

I think the doctrine should be rarely applied.  Primarily because it's profoundly unjust to let stand a judgment we know to be erroneous stand merely because the defendant refuses to comply with this erroneous judgment.  We should prefer adjudication on the merits whenever possible.

I might well allow the appeal to be reinstated were the defendants -- now chastened -- to fully and immediately comply with the underlying order of the New York court here.  But I think it's entirely permissible to say that, as things stand now, the appeal is dismissed.  And maybe even to leave them guessing as to what might happen next.

(Though, truly, rather than say -- as Justice Mosk does -- that maybe the Court of Appeal will reinstate the appeal, and maybe it won't, I'd more likely say something like "Maybe I'll reinstate the appeal if you comply, and maybe you won't, but I'll definitely reinstate it if you comply and pay the other side their $20,000 [or whatever] in legal fees I anticipate they've had to spend thus far in order to confront your intransigence with the order."  That'd give me a keen sense of how the defendants should be treated.)

Spriesterbach v. Holland (Cal. Ct. App. - April 9, 2013)

This case should be required reading for anyone who drives.  Which is to say, virtually everyone.

Admittedly, I'm biased.  I'll say that up front.  The case is about where you are allowed to ride a bicycle, and the duty of drivers of motor vehicles to look out for them; i.e., not to smash into them.  Even ordinary people should care about not driving over bicyclists.  But I'm particularly interested in the opinion since I routinely bike to and from my work here at USD.  So I have an especially strong desire that people who ride bicycles not be injured or killed by inattentive motorists.

Fortunately, thus far, I've not been hit.  But that's likely partially due to the fact that most of my route consists of separate bicycle lanes or paths.  As well as luck.  Which hopefully will persist.

But there's ample reason to believe it won't.  The facts here are incredibly common.  Driver's waiting to exit a parking lot.  Bicyclist is initially biking along the road in the same direction of traffic, but confronts construction on that side of the road that makes it dangerous to continue, so crosses over to the other side of the road and bikes on the sidewalk for a while (against traffic).  Driver's primarily looking at oncoming traffic on her left -- waiting for a break so she can pull out -- and not really looking much to her right.  So Driver pulls out of the parking lot and smashes into Bicyclist, who has entered the intersection (from the sidewalk) at the same time.  Bicyclist is injured and incurs $80,000 in medical expenses for required surgery.

Who responsible?

On the one hand, we expect drivers to be attentive.  Motorists normally have a duty to make sure it's safe when they pull out -- that's what Section 21804 of the Vehicle Code says -- so they're ordinarily responsible when there's an accident.  But, at the same, time, motorists don't normally expect vehicles from their right, since that's against traffic.  We all know, however, that sometimes bicycles go on the "wrong" side of the road.  Is that the biker's fault?  Or do motorists have a duty to watch for 'em?

More critically, what about sidewalks?  Bikers often ride on roads, but sometimes travel on sidewalks.  Is that okay?  When a car pulls into traffic, they surely have a duty to not hit a pedestrian who's walking on a sidewalk and enters the intersection at the same time.  Is the rule the same when it's a biker?  Or does the fact that a bike travels much faster than a pedestrian -- making them harder to spot -- and generally travel on the road (rather than the sidewalk) require a different rule?

So we've got to figure out what the legal rules are.  Or -- perhaps even more importantly -- how far we need to look up the sidewalk to our right each of the hundreds of times every day we pull into an intersection while driving our cars.

So what's the rule?

It's actually a pretty hard question.  You might want to say that bikes should be on roads, not on sidewalks, so it's the biker's fault.  To tell you the truth, I'm somewhat sympathetic to this rule.

But sometimes -- as (perhaps) in this case -- it may indeed be much safer for the bike to travel on the sidewalk rather than on the road.  I've done so myself on rare occasions.

More importantly, however, listen to what Justice Suzukawa says about this topic.  Because he's unquestionably correct:

"We note that local regulations concerning bicycle riding on sidewalks vary tremendously by jurisdiction. According to the "L.A. County Sidewalk Riding Guide" maintained by the Los Angeles Department of Transportation (LADOT) Bike Blog, sidewalk riding is permitted in 12 cities in Los Angeles County and is prohibited in 32 cities and the county itself. In 25 cities, sidewalk riding is not permitted in "business districts;" in another 19 cities, there is no clear language in the municipal code concerning sidewalk bicycle riding. (http://ladotbikeblog.wordpress.com/2010/09/22/la-county-sidewalk-riding-epilogue/ [as of Mar. 27, 2013].)

The LADOT Bike Blog observes as follows: "If you take a close look at the sidewalk riding map, you‟ll see quite a jumble of rules and regulations across LA County. Think about if that jumble were applied to another moving vehicle, like, say, a car. What would it be like were the „right turn on red‟ law to be applied city by city instead of state by state? Endless accidents by drivers unsure of what to do next; lawsuits; deaths; lots and lots of tickets for moving violations; it would be total chaos. Traffic rules demand a certain amount of uniformity, which is why most guidelines governing how cars move through space are dictated at the state level. [¶] . . . [¶] If bicycles are supposed to be considered vehicles with responsibilities and rights equal to automobiles, like [California Vehicle Code section] 21200 states, then bicyclists deserve to have rules for their operation that are at least as uniform as the rules for operating an automobile." (http://ladotbikeblog.wordpress.com/2010/09/22/la-county-sidewalk-riding-epilogue/ [as of Mar. 27, 2013].)

We echo the sentiments of the LADOT Bike Blog and urge the Legislature to adopt uniform legislation governing bicycle riding on sidewalks. In the absence of such uniform legislation, we fear that collisions like the one here will continue to occur." Word. In short, when you're driving, you currently have no idea whether a biker is allowed to be on the sidewalk.  So you'd better look. So what about this case.  Was the motorist negligent? The jury said "No."  And the Court of Appeal affirms.  She wasn't automatically liable under Section 21804 -- I agree with that result -- and it's a question for the jury.  Which decided in a special verdict that the motorist was not guilty of negligence.  Done deal. I think that's a plausible result.  Maybe not what I would have decided were I on the jury.  But then again, maybe it is.  Depends on how fast the bike was going, and how I felt about the parties.  It's a result within the range of reasonable.  Tough call. Interestingly, however, I think the following fact might well explain the jury's decision.  One that's totally -- totally -- legally irrelevant, and yet might practically make a big difference.  Maybe even to someone like me, who would want to do the right thing. Here's what Driver said at the trial about the accident:

"Holland testified that upon leaving the Ralphs parking lot at about 4:40 p.m., she came to a complete stop behind the line separating the parking lot from the sidewalk. . . . As she took her foot off the brake and began to move forward, Spriesterbach [the bicyclist] rode directly in front of her and she drove her car into him. She immediately braked and stopped about 18 inches into the sidewalk area. She saw Spriesterbach make contact with the hood of her car; he then fell forward and disappeared from her view. He had been coming from the right, opposite the flow of traffic on the roadway.

Holland immediately got out of her car and asked Spriesterbach if he was okay. He said, 'You fucking bitch. I'm going to sue you.' He picked up his bicycle and threw it, and then picked it up again and threw it against a tree. He pulled earplugs from his ears and called the police."

I know I'm not supposed to make value judgments about the participants when I'm deciding liability.  But I can't help it.  When you've got one person who's allegedly nice, and jumping out of their car to ask an injured party if he's okay, and the other party calling her a "bitch," immediately threatening to sue, and throwing a bicycle around, I'm going to have a hard time finding the "bitch" liable for your alleged shoulder injury.  A seriously hard time.

And I bet I'm not alone.  Which may, in part, help explain the jury's "no negligence" finding.

There's only one part of this opinion that I'm not so sure about.  And it's an important one, and may well mean that the court decided the case the wrong way.

The trial judge instructed the jury that riding a bicycle on the sidewalk against the flow of traffic was negligence per se because it's impermissible under the Vehicle Code.  The Court of Appeal holds that this instruction was erroneous.  That's important, and seems right to me.

But the Court of Appeal holds that the instruction was harmless because the jury didn't find that the bicyclist was contributorily negligent (a question further on down in the special verdict form that the jury never had to reach), and instead concluded that the driver wasn't negligent.  So no blood no foul since the erroneous instruction only related to the defense of contributory negligence.

This has some superficial appeal.  I can see why the Court of Appeal so decides.  But it bespeaks an assurance in the jury that I do not share.

I think the instruction is in part about the defense but also, in part, about the initial negligence case as well.  If the jury's told -- as it was here -- that it's impermissible for a bicyclist to be on the sidewalk, that fact may well influence it assessment about whether a driver has a duty to be on the lookout for a bicycle travelling thereupon.  Heck, even I might so conclude, and I'm a lawyer who understands full well the difference between negligence and contributory negligence.  I think lay jurors would come to this same conclusion even more readily. 

So I think the Court of Appeal might well have decided this individual case incorrectly.  In light of the erroneous instruction, I think there's a chance -- indeed, a very real chance -- that the jury may have reached its "no negligence" finding as a result of a legal error.  So I'd remand for a new trial.  Maybe they'd have reached this same conclusion even without the instruction that says that the bicyclist should ever have been on the sidewalk in the first place.  But I'm certainly not sure that's the case.  And think there's ample reason to think otherwise.  So I'd have reversed and remanded in order to allow a jury to decide the case pursuant to an accurate recitation of the relevant legal principles.

So an important case.  For everyone.  Bikers and drivers alike.

U.S. v. Hernandez (9th Cir. - April 8, 2013)

This seems all very academic to me.

That's not necessarily a slam.  I like opinions that go into detail, and that discuss at a low level of generality the relevant legal principles.  That's a sign of good work.

I just wonder if this is really the case for it.  Or if the doctrine matches the relevant underlying factual settings.

Judge Goodwin's opinion talks about sentencing entrapment.  Which is an important topic, to be sure.  The police know that a certain quantity of drugs creates enhanced liability, so sets up a sting in which it agrees to "sell" such a quantity even though no drugs (at all) exist.  We've got a variety of doctrinal principles designed to deal with this problem, and they work tolerably well.

This case is a variant.  What happens when the sting isn't about buying or selling drugs, but rather ripping them off?  Drugs that, again, do not actually exist.  Do the same principles apply?

I hadn't thought about that before.  And I like the way Judge Goodwin addresses it.  It's also a very important topic, both for the relevant individuals involved as well as society at large.  Defendant's culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums.  The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.

But what works for fake drug sales doesn't really work for fake drug thefts.  With a fake drug sale, it is possible for a defendant to prove the he didn't really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying.  We can't, however, say the same thing for fake drug thefts.  As Judge Goodwin rightly explains, "once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten."  (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch.  Remember:  Lift with your legs, not your back.)

So Judge Goodwin recognizes that there's a danger here.  And that, as a result, we need to take what he calls a "hard look" at these sorts of cases.  So the Ninth Circuit holds that, unlike in fake drug sales cases, in fake drug theft cases, the defendant need only show a lack of intent or capability to deal in the quantity of drugs charged.

Makes some sense.

But then Judge Goodwin applies that principle to Hernandez himself.  Holding that Hernandez didn't prove entrapment because he presumptively had both the intent to steal the relevant quantity of drugs (since he did, in fact, join the plot) as well as capability to deal 'em.

That makes facial sense as well.

Here's the problem:  What's true for Hernandez is almost certainly true for everyone else as well.  A result that makes the "hard look" the Ninth Circuit creates essentially meaningless.  Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan.  That's equally true for pretty much everyone who joins a plan, right?  If the undercover or C.I. says "We're going to steal 100 kilos," and if the defendant agrees, boom.  Intent.  True for Hernandez.  True for Everyone.

Ditto for capability.  Sure, the Ninth Circuit's doctrinal test says that you can prove entrapment in the event you can prove that you couldn't possibly have sold the quantity of drugs you intended to steal.  But here's what Judge Goodwin says when the Ninth Circuit applies that test to Hernandez himself:  "His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine.  He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery."  True for Hernandez and, presumably, for virtually everyone else as well.

So, in the end, we've got a facially "hard look" test that, in reality, is going to be satisfied over 99% of the time.  That'd be my prediction, anyway.  Someone else can do the hard empirical work to prove or disprove it.

So neat little case.  That may seem to matter more than I think it will.

Mashiri v. Department of Education (9th Cir. - March 14, 2013)

What do you do if you're a student at the Thomas Jefferson School of Law and the Department of Education fails to give you a federally subsidided Stafford Loan?

You sue.  And lose.

The upside, however, is that Mashiri at least (a) successfully graduated law school, and (b) passed the California bar examination.

For every cloud there is a silver lining.

Kanppe v. U.S. (9th Cir. - April 4, 2013)

Here's a timely reminder from the Ninth Circuit:

File your tax returns on time.  Don't rely on your accountant.

Enjoy the next eleven days.

U.S. v. Jennings (9th Cir. - April 3, 2013)

The next time someone calls you "sophisticated," read this case.  You'll discover that it's not quite the compliment that you might otherwise take it to be.

It means that you're smart enough to open a bank account.