Holiday Break

I'm on the East Coast (North Carolina and Virginia, specifically) for the holidays, and have limited internet access here. So I'll take a break for the holidays, and resume posting when I return on the 30th.

Until, then: Happy holidays, all.

Moreno v. Baca (9th Cir. - Dec. 9, 2005)

Sometimes it takes time for people to come around. But they occasionally do. As the Ninth Circuit does here.

I strongly criticized the panel opinion when it came out earlier this year (in March), aruging that it stretched both the facts and the law in an attempt to reach a particular result (namely, whether reasonable suspicion is required to search a parolee). I predicted, among other things, that this opinion "was not long for this world," and argued that this was a good thing, since both the majority opinion as well as the concurrence made their authors look pretty bad.

Apparently, in the end, everyone agree with me. Because the panel elected to withdraw the opinion and issue in its place a new one that properly (and, this time, unanimously) resolves the case on narrow, fact-specific grounds. Good job, Judges Tashima, Pregerson, and Clifton. Belated. Very. But good. The earlier opinions were not your finest hours.

Camacho v. Bridgeport Financial, Inc. (9th Cir. - Dec. 12, 2005)

Circuit splits. Who doesn't love 'em? Lawyers think that they may get their case in front of the Supreme Court as a result of them. Academics have fun launching attacks on them. And they provide fertile grounds for law students who want to write law review comments. Okay, from a policy perspective, they're almost assuredly not good things. But policy smolishy. The more the merrier. Bring 'em on.

Anyway, if you like circuit splits, you'll like this opinion by Judge Tashima. Here's the scoop. Section 1692g of the Fair Debt Collection Practices Act (FDCPA) requires debt collectors to inform debtors of certain things, including their right to dispute the debt. Lots of the rights in the FDCPA are expressly activated by "written" disputes, but Section 1692g(a)(3) doesn't make any reference to the need for a "written" dispute -- rather, any form of dispute (e.g., an oral communication) would seem to suffice. So, pursuant to that statutory language, does a debt collector violate the FDCPA when it tells the debtor (as Bridgeport Financial did here) that it will presume that the debt is valid unless the debtor notifies it "in writing" that the debtor disputes the debt?

Back in 1991, the Third Circuit, in Graziano v. Harrison, said "No." But, now, the Ninth Circuit, in a unanimous opinion by Judge Tashima, says "Yes."

There's your circuit split. Ordinarily, I'd predict intervention by the Supreme Court at some point to resolve the issue. But, here, I think that Congress will actually get into the act first and change the statute to overrule the Ninth Circuit's rule legislatively. Which I'm sure Judge Tashima would be fine with. But that's my guess as to what will (at least eventually) happen. We'll see.

Brown v. Lambert (9th Cir. - Dec. 8, 2005)

What a great opinion. Really, really impressive. The kind of opinion that I wish I could write, but totally can't. Short, persuasive, concise, to the point, and complete. And even a tiny bit funny. Wow.

Yes, yes, I know. I've repeatedly complimented Judge Kozinski (see, e.g., here), both on his writing and on his analysis, in the past. So do a lot of other people. But that doesn't mean it's not true. Plus, I'm hardly a (total) whore, and I'm happy to slam him when I think it's appropriate (see, e.g., here and here).

But not here. This one is a great opinion. It's a death penalty case, and Judge Kozinski begins his opinion in a typically breezy (and smile-inducing) fashion with the sentence: "Cal Brown is not a nice man." He then goes on to describe Brown's horrible crimes, and does so in two brief paragraphs that give the reader a fully accurate measure of the man -- and his offenses -- without overdoing it. And, as usual, Judge Kozinski gets in some (entirely appropriate) pop culture references, including a discussion (in footnote 4) of precisely what it means when someone make the contemporary gesture that says "Talk to the hand."

What's most impressive, however, is how quickly and persuasively Judge Kozinski deals with the merits. One really needs to read the opinion to see what I mean. And that's not hard; it's a short one, and tops out at 11 pages. And every page is a masterpiece.

Judge Kozinski holds that Jurors X and Y were properly dismissed for cause based upon their expressed reluctance to impose the death penalty, but that Juror Z was improperly dismissed on those same basis. His analysis is concise, accurate, and ruthlessly persuasive. Yes, one could write a 50 page opinion that says that same thing. But Judge Kozinski's is better. Again, I wish I had his (and his law clerk's) literary talent in this regard.

Finally, what's also striking about Judge Kozinski's opinion is how obviously, obviously right he is -- that the proper resolution is so clear that it even satisfies the strict AEDPA habeas requirements -- alongside the fact that every single court below found the other way. The trial court in Washington, the Washington appellate courts, the state habeas courts, and the federal district court all upheld the exclusion of Juror Z. And yet, in 11 short pages, Judge Kozinski demonstrates that these holdings are uniformly erroneous. And does so in a manner that leaves -- at least for me -- utterly no doubt.

Which not only demonstrates Judge Kozsinki's talents, but also the critical importance of having smart, hard-working, and interested judges on the bench. When you do, you get opinions like this one. Impressive.

Milne v. Steven Slesinger, Inc. (9th Cir. - Dec. 8, 2005)

This case would be worth reading if only for the fact that it concerns who owns the copyright to the Winnie the Pooh books. The details are obviously more involved than what you read in this truncated opinion, but Judge Callahan's opinion is still a neat little introduction to the story. You'll hear about Steven Slesinger getting on a boat to England to try to persuade Alan Milne to sell him the copyright to the Pooh books. You'll read about the death of Alan Milne and the resulting copyright transfer to his wife and son, Christopher Robin Milne (recognize the name?). You'll read about how the Copyright Term Extension Act of 1998 affected the Pooh copyright, and how Christopher Robin and his daughter, Clare (Milne's granddaughter), negotiated for an increase in revenues from Disney and subsequently got into a fight about the Pooh revenues. And you'll read about how Disney subsequently funded litigation in Clare's name regarding the ownership of the copyright.

Interesting stuff, all. Neat. Worth a gander.

The other interesting thing is something that seems to entirely escape Judge Callahan's attention, since it's not mentioned anywhere in the opinion. Judge Callahan recognizes that the strongest argument on Clare/Disney's behalf is the "movement of freedom" argument based on Section 304(c)(6)(D), and that her/its position is one that is squarely supported (and advanced) by Professor Nimmer's seminal copyright treatise. Judge Callahan ends up saying, basically, yeah, that's his view, and he's smart all right, but there's actual precedential support for that position, so we're not going to adopt it. Which is fine. But she might also have mentioned -- or at least I'll mention here -- that Professor Nimmer also isn't entirely a stranger to the litigation, since the counsel of record for Clare/Disney is none other than David Nimmer, who's Professor Nimmer's son and who continues to maintain his father's treatise. So, basically, Clare's best argument amounts to "Well, my lawyer wrote a book that says that I should win, so I should win." Not something you see every day!

Anyway, Clare loses, Disney loses, and Nimmer loses. Affirmed.

Mpoyo v. Litton Electro-Optical Systems (9th Cir. - Dec. 5, 2005)

Let's try to calculate the odds here.

You filed a lawsuit against your employer. The federal district court dismissed your suit with prejudice. You appealed. The Ninth Circuit affirmed.

While the first suit was on appeal, you filed a second lawsuit against the same employer, raising claims that were related to the first suit. Indeed, you tried to add these very same claims to the first lawsuit, but couldn't because the district court denied you leave to amend. And the district court promptly dismissed your second suit as well.

So now you're appealing. Yet again. To the Ninth Circuit. On issues of res judicata. In a situation identical to those that confronted the First, Second, Third, Fifth, and Eight Circuits. All of which affirmed a res judicata dismissal.

Oh, by the way. You're representing yourself. Great. What are the odds you're going to win your appeal?

Exactly. Zero. Affirmed.

People ex rel. Lockyer v. Brar (Cal. Ct. App. - Nov. 30, 2005)

You'd think that people would learn. Especially attorneys. But I guess not.

Remember the whole Trevor Law Group scandal? Well, this is an attempt by Harpreet Brar, an attorney from Brea, to follow in the footsteps of that esteemed firm. It seems that Brar -- like the Trevor Law Group -- filed a plethora of shakedown suits against small businesses, which in turn prompted the Attorney General to file a 17200 action against Brar. Pretty routine, actually.

What's perhaps most interesting is how Brar defended that suit. Talk about being a bad lawyer. Wow. It's one thing to stink when you're defending a client. Happens all the time, I'm sure. But doing a totally incompetent job when you're defending yourself. That takes skill.

But Harpeet Brar accepts this impossible mission. And performs admirably. Admirably in an incompetent sort of way, anyway. He files an anti-SLAPP motion to the complaint against him, which buys him time, but the motion is so meritless that it's not only denied, but his appeal from the denial is summarily dismissed by the Court of Appeal since it's "frivolous at a glance". Then, on remand, when it's time to answer, Brar neglects to do so. Oops. So the Attorney General asks for a default. And Brar doesn't get it together to respond to even that request for over three months. Then there's another couple of months of delay thereafter. Check out the sequence of events at the top of page three of the opinion. Yikes. Not really the kind of lawyer I want working for me.

And it serves Brar well. Not. The court ends up imposing a default judgment of $1.79 million in civil penalties against him, plus a permanent injunction. Not exactly a resounding win for Mr. Brar. His excuse, by the way, for not answering the complaint. "Someone must have been stealing mail from my home mailbox." Which, of course, even if true doesn't explain many many months of delay. He'd have been equally successful with "My dog ate my answer." Affirmed.

P.S. - The Court of Appeal's opinion notes that Brar was put on probation by the State Bar for two years as a disciplinary measure. Pretty impressive, given that Brar was only admitted to the Bar in April 2000. The State Bar's web site, however, doesn't have a record of the imposition of such disclipline. Interesting. For a counterexample, take, for example, Harbhajan Brar of Fresno, whose short career in the law consisted of being admitted in December 1988, being publicly reproved two years later (in February 2001), incurring a criminal conviction (and interim suspension) exactly a year later (in February 2002), and resigning from the Bar with charges pending couple of months later. An impressive three year career. Not exactly Pepperdine Law Schools finest graduate.

People v. Prince (Cal. Ct. App. - Dec. 5, 2005)

This one is long. Long. 69 pages. There's a lot of good stuff in there, the vast majority of which concerns the type of evidence and testimony that is properly admissible with respect to DNA evidence. In particular, the type of evidence and testimony that juries love; i.e., the classic "The odds against this DNA coming from any random person other than defendant is one in a million/billion/zillion etc."

In other words, an important holding. But let's all just take a guess at how it comes out. Not by the nature of the testimony or the law, but rather merely by reference to the underlying crimes.

The defendant, Patrick Paul Prince -- "PPP", as I like to call him -- was convicted of breaking into the homes of five different children in the middle of the night and sexually assaulting each of them. PPP allegedly sexually assaulted EK, a 10-year old girl, in October 2001, by threatening her family and then forcibly assaulting her. PPP ran off when EK's mother returned to the house, and EK came running out of her bedroom screaming "Mommy, run, get out, he has a knife and he'll kill you!" Yikes. Then, two months later, PPP allegedly broke into the house of KS, a 12-year old girl, and threatened her and her family with a gun, and started to sexually assault her. When PPP put down his gun to get duct tape to wrap up the girl, KS picked up the gun and fired off two shots at him. Okay, maybe not the smartest thing for her to do. Since PPP grabbed the gun from her and could have killed her in response. But didn't; instead, he fled. Which made me smile. Good for KS. Too bad she didn't hit him. (Interesting, KS then went to her mother's bedroom and woke her up, crying hysterically and screaming that someone had tried to rape her. The mother told KS that she was dreaming. To which KS responded that she wasn't -- that this was real, and that she had fired shots at her attacker. At which point the mother went to KS's bedroom and saw the bullet holes. No dream, Mom. This one's real.)

Ten months later, PPP breaks into the bedroom of a 16-year old girl and sexually assaults her, holding an ice pick. Then six months later, PPP breaks into the bedroom of an adult woman (in her 30s), carrying a knife this time, and sexually assaults her as well. Then, five short days later, he breaks into the home of a 12-year old girl, presumably to sexually assault her as well. Anyway, in toto, five burglaries and many, many sexual and other assaults on young girls. All committed in the same small town in rural California: Wofford Heights.

PPP gets convicted on all counts. His sentence? 75 years to life. Plus 23 years and 4 months.

Not someone that anyone wants to let out. To sexually assault their own -- or anyone else's -- children.

And Justice Ardaiz doesn't disappoint. Convictions on a couple of minor counts are reversed for insufficient evidence (as is not particularly unusual in child molestation/assault cases), but the remainder are affirmed, notwithstanding the somewhat troubling DNA testimony. So it's life in prison for you, PPP. Enjoy.

People v. Manriquez (Cal. Supreme Ct. - Dec. 5, 2005)

There are perhaps many things to be learned from this 57-page opinion, in which the California Supreme Court again unanimously affirms the defendant's death sentence. But I'll limit myself to the following:

Here are four places I'd strongly consider avoiding in the Los Angeles metropolitan area. Since they're the places at which the defendant, Abelino Manriquez, allegedly committed four different murders. None of them sound like places I'd particularly like to visit:

(1) The Las Playas restaurant in Paramount (at 8335 Rosecrans Avenue). That's where Manriquez shot and killed Miguel Garcia at 4:40 a.m. If, however, you visit, feel free to leave a review of the restaurant here.

(2) Fort Knots in South Gate (at 9015 Long Beach Boulevard). This is a strip club, and is where he shot and killed the doorman, George Martinez, after Manriquez was thrown out of the club for touching one of the dancers (Daneen Baker) on her thighs. Fort Knots is now known as "Club Oz", after being bought by the owner of another strip club, "The Classic Lady of Oz". Two pool tables and lap dances for $10 at Fort Knots. If you're interested.

(3) The Rita Motel. The opinion (by Chief Justice George) says that that the Rita's in Compton, but I actually think that it's in Lynwood (at 12112 Atlantic Avenue). Everyone seems to think that murders always happen in Compton, for some reason. Nope. Lynwood. 2.7 miles away. Anyway, the Rita Motel is where Manriquez and his girlfriend, Sylvia Tinoco, were drinking beer and doing coke, after which Manriquez decided to shoot and kill Efrem Baldia. I'd especially try to avoid the motel parking lot (where the killing transpired) as well as Room 23. The latter is the scene of Manriquez' pre-murder coke party, as well as -- I'm sure -- a wide variety of unhygenic acts performed by various other patrons.

(4) The Mazatlan Bar. The opinion again says that this is in Compton. But the only reference I can find to this bar is the one in East Los Angeles (at 3800 Hammel Street). Again, maybe the presumption is just that every murder in Los Angeles is in Compton. Or maybe there's -- shockingly -- more than one "Mazatlan Bar", or that the one in Compton closed after a sufficient number of murders. Whatever. Just to play it safe, try your best not to fall asleep at the bar at anyplace in Los Angeles called the Mazatlan. Because that's what Jose Gutierrez did. And Manriquez shot and killed him as a result. So play it safe. At least buy a Red Bull alongside your many shooters to try to stay awake.

So Manriquez has been convicted of four different murders. Oh, he also allegedly forcibly raped a woman at gunpoint as well. Nice. Anyway, the guy's (shockingly) sentenced to death. And I doubt he'll be getting off of death row any time soon.

Evans v. Centerstone Development Co. (Cal. Ct. App. - Nov. 21, 2005)

The following is never a good sign: You're the attorney who filed the appeal, and the first page of the court's opinion contains the following: "We publish this opinion because this case presents a prime example of a frivolous appeal and of flagrant violations of the rules pertaining to appeals." Ouch!

Perhaps it's needless to say, but I'll say it anyway: Justice Rylaarsdam's opinion then goes on to repeatedly and mercilessly slam the attorney for appellant. Here's a brief sample of some of the highlights: calling one argument/citation "so oblique as to be meaingless"; writing that "We decline the implied invitation that we review the 1,839 pages of the arbitration transcript to find such testimony" when appellant didn't reference a particular page; "The rules themselves demonstrate the frivolous nature of the plaintiffs' contention."; and ending the substantive discussion with the following bot mot: "Because of the lack of organization and the improper format of plaintiffs' briefs, arguments in addition to those we have discussed may have been alluded to or raised in other than the discussion section. To that extent or to the extent plaintiffs raised other issues without fully or properly briefing them, they are waived."

And all of these comments were the nice ones. The last section of the opinion, regarding sanctions, is where the Court of Appeal gets really harsh. I'll spare you (and the appellant's counsel) from a recitation of those. But they're funny, and really insulting, so I encourage some light reading on your own. Ouch ouch ouch. It hurts so, so bad.

Plaintiff's counsel, by the way, is Randall Waier, a graduate of Loyola Law school whose office is in Newport Beach -- indeed, a couple blocks from John Wayne airport. Mr. Waier has been disciplined previously, and was given a private reproval back in 2000. This time the sanction is going to hit him in the pocketbook as well.

Riggs v. Fairman (9th Cir. - Nov. 30, 2005)

Toughie for me. Toughie for them.

I previously commented on the panel's opinion in this case, noting that it was a difficult case and that I couldn't entirely figure out which side I agreed with -- Judge Rawlinson's opinion or Judge Bea's dissent. Which is pretty darn rare for me. So I called it a "toughie". (The issue is basically about the proper remedy for an undisputed ineffective assistance of counsel. In a case that really, really looks bad: a homeless person who shoplifts a bottle of vitamins, gets offered a five-year deal that's rejected by his incompetent lawyer, and then is sentenced to a mandatory 25 years to life. Do we keep the dude in jail for 25 or give him the 5 year deal?)

Anyway, I apparently wasn't the only one who thought this was a toughie. The Ninth Circuit voted to take the case en banc. So we'll see how this one comes out down the road. Should be interesting.

People v. Murphy (Cal. Supreme Ct. - Nov. 28, 2005)

An interesting 4-3 decision by the California Supreme Court. With Justice Blease of the Third Appellate District sitting by designation to replace Justice Brown and make it 7. (He joins the dissent, by the way.)

A close case. Basically the issue is whether the police have to knock before they enter a house in which they suspect the occupants are selling drugs. The actual facts are more complicated, and the majority tries to somewhat limit its holding. But the import of the opinion is pretty darn broad. And the answer, FYI, is "No". Someone inside might destroy drugs. Which will, quite frankly, presumably almost always be the case.

So you better hope that the police don't think you're selling drugs. 'Cause if they do, they'll be coming in, and they won't be knocking. Politely or otherwise. "Exigent circumstances". That's the basic holding.