Thursday, June 30, 2005

U.S. v. Zavala-Mendez (9th Cir. - June 15, 2005)

There are two things in this world about which I'm fairly confident. The first is that Judge Kleinfeld knows Alaska pretty well. The second is that he writes better than Judge Hall. This opinion demonstrates both of these realities.

Sure, this is a criminal immigration case. But -- fairly unusually -- it's a case where the defendant tried to come into the United States from the Yukon (in Canada) on the Alaska Highway. Brrrrr. Here's how Judge Kleinfeld sets the scene:

"Like all American border stations, the Alaskan facility is inside the United States, so by the time Zavala-Mendez got there, he was already across the survey line that delineates one country from the other. It was dark, and traffic is light on the Alaska Highway in January. . . . Zavala-Mendez's car was the first vehicle at the border in four or five hours. The American border station facility is up a hill, a quarter or half mile from the actual border, because permafrost prevented building the facility closer to the border. The actual border is at the start of the hill. It takes well under a minute to drive at the speed limit from the treaty line between Canada and the United States – marked by a concrete obelisk – to the American border facility where federal personnel are sheltered from the extreme cold. . . . As Zavala-Mendez's car approached, an inspector looked, as usual, through binoculars at the license plate, so that the licence plate number could be typed into the computer. Mud obscured the number. That got the inspector out of the station, because water is not a liquid in that part of Alaska in January and the highway does not throw up mud in winter. When the car arrived at the station, one inspector checked the license plate, and the other asked the driver for identifications. The driver, the driver's mother, and Zavala-Mendez all gave their driver's licenses. The computer flagged Zavala-Mendez, so he was taken into custody."

Judge Kleinfeld concludes that Zavala-Mendez isn't guilty of being "found" in the United States, even though he's -- of course -- actually there, and reverses his conviction. Before I read the opinion, I must admit that I thought that Zavala-Mendez was obviously guilty. But Judge Kleinfeld convinces me that there's indeed a difference between being "in" the United States and being "found" there. And his opinion regarding that issue is really quite good. It's also much, much better than Judge Hall's dissent, both linguistically and on the merits. Which is not all that surprising, since Judge Kleinfeld usually writes a fairly easy read.

So I'm glad that at least two truths that I hold to be self-evident continue to persist.

Wednesday, June 29, 2005

Theagene v. Gonzales (9th Cir. - June 15, 2005)

The number of things that I know nothing about could fill a small country. For example, I did not know that the Court of International Trade was an Article III tribunal, and hence its judges eligible to sit on the Ninth Circuit by designation, as Judge Pogue does in this case. Once I found this out, I also learned that Judge Pogue is a fellow graduate of Dartmouth, which made me feel a special kinship with him. At least until I learned that he went to that third-rate law school commonly known as Yale. Then he lost all my respect.

People v. Banuelos (Cal. Ct. App. - June 22, 2005)

Here are the (somewhat bizarre) facts of this case:

Jorge Orozco owns a small market in the Wilmington area that sells prepared food. He was working one morning with his wife and 21-year-old daughter when appellant entered the market and claimed he had been robbed. . . . Appellant said he was hungry but had no money, and he tried to give Orozco an identification card in exchange for some food. Orozco told appellant to leave and he eventually did so. Appellant reentered the market about ten minutes later. This time he was wearing a shirt. He again asked for food and Orozco told his wife to give him two tamales to make him go away. Appellant wanted to eat the tamales at the inside counter, but Orozco told him to leave. Appellant took the food outside. After another ten minutes or so, appellant returned, again not wearing a shirt. He said he was a health inspector and demanded to know whether Orozco had washed his hands before giving him the tamales. Appellant's demeanor was aggressive and he held his hands in fists in front of his chest. He asked Orozco whether he could wash his hands, but Orozco did not want him to use the sink in the kitchen area of the market because his wife was back there. Orozco told appellant he could not go into the kitchen without a shirt. Appellant, who was much younger and larger than Orozco, responded by pulling a health department sign from the wall and throwing it on the counter. He moved closer to Orozco, who told his wife to call the police. Appellant said, "The police coming [sic]. Call the police." He left the market, telling Orozco, "Come out. I'll wait for you outside." As he spoke these last words, he held one hand up in the air in a fist and waved his other arm. . . . Police arrived and contacted appellant outside the market after interviewing Orozco. Officer Liavva Moevao and two other officers approached appellant and asked to speak to him, but appellant just swore at them. Moevao decided to do a weapons patdown and told appellant to put his arms behind his back. Appellant said, "What the fuck for?" and assumed a fighting stance while resisting Moevao's attempt to restrain his arm. Moevao and other officers restrained appellant's arm and forced him to the ground. Appellant continued to struggle and kick until he was placed in handcuffs and leg restraints. He was arrested and taken into custody.

Okay, so he's guilty. And is sentenced to 11 years in prison as a result.

But looking at the facts, does anyone other than me have any concerns regarding the defendant's sanity? I mean, what the guy does is hardly what I'd call normal.

But no one says anything at all about this, or raises any issue about it. And Justice Coffee's opinion is published, but he decides not to publish the portion of the opinion that recites these underlying facts.

You've got to feel at least a little bad for this guy, who's obviously got some mental health issues and who's sentenced to 11 years in prison as a result. Or at least I do. Sure, he committed a crime, but 11 years is a pretty long time for what he did, particularly given his mental problems. Which a decade in prison will likely only make worse.

Tuesday, June 28, 2005

Brierton v. DMV (Cal. Ct. App. - June 21, 2005)

Campus police officers apparently have the authority to perform arrests anywhere in California, not just on or near the university. Or at least that's what Justice Aaron (a former federal magistrate judge down here and a fellow HLS graduate) holds in this case, which involved a DUI arrest by an SDSU campus police officer.

The somewhat troubling thing about this holding is that Section 89560 of the Education Code states that campus police officers -- we called 'em the Campus Po' when I was an undergraduate -- "shall not exercise their power or authorities except [] at the headquarters or upon any campus of the California State University and in an area within one mile of the exterior boundaries of each campus. . . ." This command by the Legislature seems fairly meaningless under Justice Aaron's holding, and the brief concurrence by Justice Benke (a USD Law graduate) -- which attempts to rationalize this statute -- doesn't persuade me otherwise.

Admittedly, a contrary holding would also be a little troubling, since Section 830.2 states that campus police are among those peace officers "whose authority extends to any place in the state." So you've got two statutes that apparently conflict. But it seems at least plausible that Section 830.2 grants broad authority to campus police but Section 89560 states that this authority "shall not" be exercised anywhere other than on or near university grounds. Such an interpretation is arguably superior to one that would make Section 89560 a dead letter.

A difficult question of statutory interpretation.

Monday, June 27, 2005

People v. Gallardo (Cal. Ct. App. - June 15, 2005)

A deputy sheriff in Orange County named Mark Froome makes a traffic stop of Edward Gallardo for having a broken taillight. Froome immediately asks Gallardo if there's anything illegal in the car, Gallardo responds "No", Froome asks Gallardo for consent to search the car, Gallardo says "Okay", and Froome finds a glass meth pipe and a baggie of meth in the car. The whole process lasts less than two minutes.

Two brief points. First, I am continuously amazed at how often people consent to searches when they've got drugs in their car. I've read thousands of those types of cases. There's undoubtedly some reason that has to do with obedience to authority or irrational optimism or something like that that's behind these irrational -- but routine -- decisions. Weird. And something I to this day still don't understand. Let me assure you that if I have drugs or a dead body or whatever in my trunk, and the police stop me, they're definitely going to need to get a warrant before that trunk pops open. Sure, maybe they'll go ahead and get one and nail me. But I'm not gonna help 'em. Sorry 'bout that.

Second, what's the deal with the virtually immediate request for a search here? Justice Moore's opinion --which upholds the validity of the search -- seems to admit that Froome didn't have any real basis to suspect that Gallardo had drugs in his car. There's no claims of "blurry eyes" or "slurring words" or anything like that. Froome just apparently decided to ask about drugs and for consent to a search on his own.

Now, I've got no problem with that, and it's apparently a pretty good investigatory tactic (and certainly worked here). But I've been stopped by the cops more times than I can count -- most recently, last week (damn speed trap on Sunset Cliffs!) -- and no officer has ever asked me if I had anything illegal in the car or asked for consent to a search. Not once. Why not? Could it possibly be because my name is Shaun Patrick Martin rather than -- as here -- Edward Flores Gallardo?

I would hope that it's also due, at least in part, to the fact that I don't use meth. But I have a sneaking suspicion -- and don't we all? -- that that's not entirely all there is. There's a reason that Gallardo gets interrogated and I don't. Even when we both have broken taillights.

People v. Anzalone (Cal. Ct. App. - June 13, 2005)

I'll briefly mention this case for three reasons. First, it concerns an alleged serious crime (attempted murder) that occurred very near a place where I used to live: on Newport Avenue in Cardiff-by-the-Sea (which Justice Benke -- like many others -- shortens to "Cardiff"). Second, I thought I'd mention Justice Benke's discussion of the ineffective assistance of counsel claim, since it's fair, balanced, and neutral, which is something that you don't always see. Kudos to this USD Law ('74) graduate.

Finally, I thought it worth mention that the Court of Appeal found a local retained criminal defense attorney -- M. Lee Haugen of El Cajon -- to be reversibly ineffective. (Though it's also worth mention that the trial court, Judge Kirkman, stated that Haugen acted "in a very competent fashion" and that Justice Benke finds that Haugen only performed incomptently on a single issue, and acted competently on several others.) Still, not exactly something you'd want prominently listed on your resume, eh?

Friday, June 24, 2005

Jimenez v. County of L.A. (Cal. Ct. App. - June 13, 2005)

Good to know that if you're in Los Angeles and charged with a serious crime like rape, and there's conclusive DNA evidence that'll either exonorate you or establish your guilt, the L.A. Sheriff's Department has a policy that it doesn't bother to actually analyze this critical evidence until you've first rotted away in jail for several months. They'll only actually do this work once your trial date is set, which is typically several months after you've been arrested. So if you're too poor to afford bail, you get to experience the joy of incarceration -- even if you're entirely innocent -- for a long, long time. Until the Sheriff's Department feels like getting around to you and doing some work to see if you're actually guilty or not.

This policy is precisely why Jose Jimenez gets to spend a fun-filled five months in jail for a crime he didn't commit. Months that were made even more exciting by the fact that Jimenez was in jail for allegedly raping a 14-year old girl, which undoubtedly made him a huge favorite of his cell- and jailmates, who just love child rapists. Ah, what fun. Sort of like Club Med, but with a lot less liberty and a lot more physical abuse.

Justice Boren also holds here that this policy doesn't deprive anyone of their constitutional rights, including the right to be free from unjust incarceration. So there's no resulting incentive to actually change the policy either. Which is great. It's all cool, right? Everyone should be fine with being incarcerated for a half-year just because the government doesn't feel like conducting definitive tests that would establish your innocence. It's just fine for the government to let you rot in jail because it has a policy of delaying conclusive tests until right before trial. Why bother seeing if a guy is actually guilty until right before his trial starts? It's just an innocent person deprived of nearly all of his liberties locked in an abusive environment. What's the big deal?

Apparently not much, I guess. Or at least it's not a constitutional big deal, according to Justice Boren. I'm sure that the Founders would have been just fine if the English did it to us. And I'm sure the Constitution is cool with depriving innocent people of their liberties in such a fashion.

Oh well. That's the law, anyway. And boy does it make me proud.

Thursday, June 23, 2005

U.S. v. Bello-Bahena (9th Cir. - June 15, 2005)

Two quick points about this case, which involves one of the many, many, many (did I say many?) criminal cases that we have down here in the Southern District of California that charges the defendant with being a deported alien found in the United States.

First, what's up with the district court here; and, for that matter, with the United States Attorney's Office?! The Ninth Circuit has held around a thousand times that you're not guilty if you're under constant official surveillance while you're in the United States. Everybody knows that fact, and especially everyone in San Diego who has any experience whatsoever with the most common criminal offense (by far) tried down here. But here, the district court -- and I can't tell if it's Judge Thompson or Judge Sabraw -- asks the government if they agree that this is the law, and the U.S. Attorney's Office basically responds: "No." So, on that basis, the court refuses to give the appropriate instruction about being free of official restraint. And so, when the case gets to the Ninth Circuit, the court -- and this will come as a surprise to no one -- unanimously reverses the conviction.

Now, I've always been a little unclear about the whole "official restraint" thing as applied to surveillance, and think it's at least a tiny bit troubling. But it's clearly and unambiguously the law. Which means that you have to follow it. And that includes both the U.S. Attorney's Office and district court judges when deciding whether to give a jury instruction requested by the defendant. So why that doesn't happen here is entirely unclear to me. Plus, even if you objected to that state of the law, what purpose does ignoring it serve? All that happens is that the law gets reaffirmed by the Ninth Circuit and now we have to waste money on a retrial. Why not just get it right the first time, and, as a neat byproduct, comply with the law (and not have the defendant rot in jail on the basis of an unsound conviction)?

Maybe I wouldn't have a problem with the district court or U.S. Attorney's Office if they said: "Yeah, that's the law, all right, so he's entitled to the instruction under existing precedent, but we think that the law should be changed, so our position is blah blah blah." But that's not what seems to have happened here; rather, it looks more like "Let's see what we can get away with." Which isn't at all how I'd expect (or want) the relevant parties to act.

One other, totally tangential, point. The transcript reveals (at page 7164 of the slip opinion) that Agent Rodriguez responded to one of defense counsel's questions with the following reply: "Yes, m'am." Is that really right? I thought you spelled the word "Yes, ma'am." Have I been spelling it wrong all along? (Which, as anyone who reads anything I've ever written -- which includes innumerable spelling errors as a result of both my deficient primary school education and utter incompetence -- already knows, is entirely possible.) Or, in the alternative, is "m'am" an acceptable alternative or regional spelling? Or is it just a mistake?

I don't know. But if it's in fact a spelling error in the opinion, watch out. When someone like me catches your spelling error, you know you're in bad shape.

Wednesday, June 22, 2005

People v. Bautista (Cal. Ct. App. - June 8, 2005)

It's one thing to work in a massage parlor in Oakland and jerk off customers for money. It happens. And, if that's indeed your job, and you've got a wealthy little computer progammer as a frequent customer, maybe you end up going to his house every week for five years to jerk him off there. Saves his commute. Okay. Fine. Maybe tell the guy to get a life, or to do the job himself. But okay. I get it.

But please, please, please: Don't decide that it'd be even more fun -- and more profitable -- to bring your eight-year old daughter with you to work. Don't let her watch as you pump this dude's pud. And, for God's sake, if you have anything at all resembling a soul, please don't, after a couple of weeks of what basically amounts to on-the-job training, encourage your eight year old daughter to participate, and ultimately "convince" her to engage in weekly mother/daughter jerk off sessions with this pervert that go on for five straight years. And, as if that's not bad enough, don't also successfully solicit your daughter's 13-year-old friend -- and some other minors as well -- to do the same thing.

It's your daughter, for Christ's sake. How can a mother trade her daughter's life and dignity for $300 a week from a child molester? I just don't get it. At all.

Anyway, as you can probably tell, the facts of this case just boggle my mind.

Le Francois v. Goel (Cal. Supreme Ct. - June 10, 2005)

I think we can all agree that lawyers are pretty good at finding loopholes. That's their job, after all. Or at least part of it. So, on this front, anyway, I think everyone can agree that lawyers are pretty creative. Which is what at least partially dooms the California Supreme Court's attempt to achieve an Aristotelian mean here.

Finally resolving an important issue that has split the Courts of Appeal for quite a while now, the California Supreme Court holds in this case that Sections 437c and 1008 of the CCP preclude a party from seeking reconsideration of a prior summary judgment motion (on grounds other than new facts or new law) but don't prohibit a court from reconsidering such a motion. This holding is a middle ground on a bunch of different levels, and (1) interprets the relevant statutes in a way that avoids striking them down -- as several Courts of Appeal have -- as unconstitutional violations of the judicial power, and (2) rejects the view that both parties and the court may seek reconsideration while simultaneously rejecting the view that neither the parties nor the court may seek reconsideration. And all of the Justices can agree on this middle ground. So everyone's happy, right?

Well, yes. At least as long as you're willing to ignore the fact that the middle ground isn't really tenable. Since it takes about 10 seconds to get around it. Or at least that's precisely how long it took me to find the loophole, and I'm quite sure that it will not only take more sophisticated practitioners even less time, but that they'll also find quite a few other ways around the rule as well.

Here's the problem. Justice Chin recognizes that there's a fine line between a court reconsidering the motion "on its own" -- which the Supreme Court holds is permissible -- and a party filing a motion that asks the court to reconsider the motion, which isn't. And he expressly recognizes that "[i]f all that results from this distinction is that parties merely change the motion from, as in this case, a motion for summary judgment to something like 'motion for court to reconsider on its own motion its previous order denying summary judgment,' and the matter is otherwise litigated in routine fashion, then nothing of substance is accomplished, and sections 437c [] and 1008 will be rendered essentially meaningless." But, he responds, this result is avoided by the Supreme Court's holding because a party "may not file a written motion to reconsider that has procedural significance if it does not satisfy that requirements of sections 437c [] or 1008" (emphasis in original), and hence the trick that Justice Chin identifies, he argues, won't work, since that's a motion to reconsider.

But Justice Chin simultaneously concedes that "[w]e cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling," and also admits that even under the Supreme Court's holding, "nothing would prevent the losing party from asking the court at a status conference to reconsider a ruling." So what's to stop a party, then, from filing the following motion: "Motion to Set Up Status Conference So That Defendant May Request Reconsideration of Prior Denial of Summary Judgment Motion," with 25 pages of argument about why the prior ruling was wrong? Seems like that's perfectly fine as well, even though (1) it's indeed a written motion, (2) the court will be forced to rule on the motion, and (3) the opposing party will include in its opposition whatever (potentially lengthy) arguments on the merits it considers necessary to stop the court from getting it into its head that its prior ruling might be wrong. Which is precisely the result that Justice Chin argued would render Sections 437c and 1008 "essentially meaningless."

So I'm not sure that the attempt to strike a balance here really works in the manner suggested by the Court, or that the loophole that its attempt to close in fact remains closed. It looks to me more like what Justice Chin thought might happen -- but attempted to stop -- will still happen.

That's the problem with smart lawyers. They're always getting in the way of what you're trying to do.

Tuesday, June 21, 2005

Barton v. USDC (9th Cir. - June 9, 2005)

Can you can troll for clients on the internet with a disclaimer that anything they say to you doesn't create an attorney-client relationship and nonetheless claim attorney-client privilege for anything they tell you? Sure you can. At least after this opinion by Judge Kleinfeld.

The lawyers here are seeking lucrative Paxil claims, so they set up a web site that ostensibly seeks to "gather information" (what a crock) about its visitor's experiences with Paxil. Which the lawyers will then sort through and, from the vast quantity of responses, try to grab anyone who look like they have a good case. And the lawyers succeed, getting lots of responses, including four plaintiffs who they ultimately sign up. And, once plaintiffs sue, defendant promptly seeks discovery of their initial communications through the web site. To show, obviously, that the claims that the plaintiffs articulated to their lawyers prior to being coached (Did I say "coached?" I mean, of course, "advised") were a little to a lot different than the claims they later asserted in the litigation.

Plaintiffs claim that this information is privileged. But the district court grants defendant's motion to compel, holding that the disclaimer about forms an attorney-client relationship (among other things) means that there's no such relationship and no privilege either. At which point the plaintiffs seek a writ of mandamus. Which, as we all know, is pretty darn hard to get, particularly in federal court. But Judge Kleinfeld grants it, holding that the responses were indeed privileged.

I don't have a major problem with the result. Which, notwithstanding my backhanded slams, is probably the same one I'd reach, as information you reveal to a potential lawyer is privileged even though they're not yet your lawyer. And I also agree with a lot that Judge Kleinfeld says in the opinion about the importance of confidentiality and the reason for the attorney-client privilege. All good stuff. And stuff with which I agree.

But let's not go overboard here. The last paragraph of Judge Kleinfeld's opinion is way too pollyannaish, and sounds like it comes from someone with a very unrealistic view of what it's like in the trenches. This is where Judge Kleinfeld admits that the cost of not producing these documents may appear to be to allow plaintiffs to change their story and not be caught, but -- he responds -- that won't really happen. Why not? Because all lawyers have an ethical duty of candor, and, for this reason, would never allow their clients to change their story or shade the truth in such a fashion. "Most lawyers' sense of honor would prevent them from [allowing their clients to do so] even if they were not at risk of losing their licenses if they did."

Yeah. I wish that were the case. I really do. But, sadly, I feel pretty strongly that it's not. Lawyers allow their clients to change stories and shade the truth all the time. Particularly lawyers who are self-interested in their client's success, as is nearly always the case. Most concretely, as here, when the lawyer is paid a contingency fee. But sometimes even for a lot less. I wish we could rely on the integrity of lawyers and that this would do the job. But come on. It doesn't. Or at least that's my very, very strong sense.

Better to forthrightly admit that there's a downside to not allowing the discovery -- that we might well be allowing a little bit of sleaziness as a result -- but explain that the advantages of confidentiality are worth it. That's a more honest, and accurate, justification for what the Ninth Circuit does here. Sure, there are some lawyers -- the best ones out there -- who really take their ethical duties to heart. But that sort of stuff is, way too often, lost in the shuffle.

Which is too bad. But it's the way of the world. And we have to deal with the world as it is, not as how we'd like it to be. And to pretend that client's won't shade the truth -- or even commit outright perjury -- because their lawyers just flat out won't let them is relying a bit too much on the universality of internalized legal ethics.

Monday, June 20, 2005

Maffei v. Woodlawn Memorial Park (Cal. Ct. App. - June 10, 2005)

You learn something new every day. Today, I learned that there's actually a pretty detailed procedure about how you go about getting permission to move a body to a different grave site. I had no idea. Now I do.

That's what this case is all about, anyway. Apparently, Fred Maffei's wife (Flora) died in 1982, and Fred says that Flora had told him that she wanted to be cremated and comingled with Fred's ashes when she died. Thing was, Fred was still alive at the time, so that wasn't going to happen immediately. Plus, to make matters more complicated, Flora's mom -- Albina Gabiati, who was 80 years old -- wanted her daughter buried rather than cremated.

Technically, under Section 7100 of the Health and Safety Code, since Fred was the surviving spouse, he was entitled to make the choice, regardless of what the mother-in-law wanted. But he's pretty distraught. Plus, do you really want to pick one final fight with your mother-in-law about the disposition of her daughter's body? So he agrees to bury Flora where his mother-in-law wants.

Eventually, the mother-in-law too passes away, and Fred is getting on in years himself, so 20 years later, when Fred is 80 years old, he asks that Flora be disinterred and cremated, and that her ashes be comingled with his (according to her wishes, at least according to Fred) once Fred dies. So he asks Flora's only surviving brother, Ernie, if that's okay. And Ernie isn't psyched about the idea. So Fred has to go to court. And there's a specific procedure established in Section 7526 which allows people to go to court to ask for permission to disinter or move a body. Justice Parrilli notes that there are only a couple of cases about this statute (now, of course, there are three), which basically allows the court to do whatever it thinks is right.

Anyway, Ernie and Fred fight it out, and ultimately the Court of Appeal affirms the decision below and keeps Flora where she is. There's a discussion in the opinion about the value of letting dead people rest that is pretty interesting if only because it rests upon a lot of religious and traditional assumptions that you're not generally used to hearing in judicial opinions, but basically, Justice Parrilli holds that it wasn't an abuse of discretion to leave Flora alone. And, since that's the standard, it's hard to argue with the result. But I still fell pretty sorry for Fred, who's being denied one of his (presumably very heartfelt) final wishes.

The only other passing thought that randomly popped into my head while reading the opinion -- and this is totally out of left field, since there's utterly nothing in the decision about it -- is whether the relevant statutes regarding this issue make sense, or are even constitutional. Section 7100 gave Fred (as the surviving spouse)the unilateral decision about where to initially bury Flora, but Section 7526 takes away that choice after she's in the ground. Now, I think that passes constitutional muster, since it's not strict scrutiny or anything, and there's a rational basis to distinguish between an initial decision about where to bury someone and actually digging someone up after they're in the ground.

But here's where the statutory scheme doesn't make sense to me. Section 7525 gives Fred (as the surviving spouse) the unilateral decision about digging up Flora -- regardless of Flora's brother or anyone else thinks (including a judge) -- so long as the cemetery consents. But why the hell (pardon my French) does what the cemetery wants matter?! In other words, Fred gets what he wants if he can convince (or bribe) the cemetery to agree, but Fred doesn't get what he wants if the cemetery disagrees. But why should the cemetery have any say in this thing at all?! Especially since it's hardly entirely disinterested in the outcome!

Fred doesn't make this point, but it seems to me -- and I'm admittedly just spouting off here -- that there's an equal protection violation in a statutory scheme that gives Fred the unilateral power to do what he wants with Flora (and expressly gives Fred's rights priority over Ernie's) if the cemetery consents but says that Fred lacks such power (and that Ernie may have priority over Fred) if the cemetery disagrees. What's the rational basis for that distinction? I can't think of any. And the fact that Section 7525 expressly orders the respective rights of the parties (spouse first, children second, siblings third), and does so in a manner consistent with Section 7100, makes it very difficult for Section 7526 to pass constitutional muster, which applies in the present case solely because the cemetery didn't consent.

Anyway, there's another argument for you, Fred. My free 10 minutes of legal work on behalf of your final wishes. Maybe it's a good argument. Seems like it to me. Of course, maybe I'm missing something. Though I doubt it.

Of course, Fred's probably waived this issue by not raising it already. But maybe someone else can assert it -- or the Legislature can change the statute to make it make more sense -- in another case. The cemetery should not be the one deciding which competing statutory scheme should apply.

Friday, June 17, 2005

Truong v. Orange County Sheriff's Dept. (Cal. Ct. App. - June 8, 2005)

Please don't wrap yourself up in the flag. Particularly when you're wrong. Here, the plaintiff engages in a bit of hyperbole. To which Justice Moore responds with language that is itself overdone and -- more importantly -- both messes up the law and does a disservice to the cause to which she refers.

Here's what happens. Plaintiff is arrested for shoplifting, and as she's getting booked, is ordered to get naked and shower in front of a ton of other people. She doesn't particularly feel like participating in a group shower scene, so she refuses, but then four deputies show up with nightsticks and demand more forcefully. At which point she decides: "Hey, maybe a group shower is better than a shower of beatings," so she decides to comply. But as she's taking off her sweater, as she has her sweater up around her neck and is removing her arms out of the sleeves, the deputies jump and start wailing on her, and (among other things) fracture her arm in doing so. Not a nice way to end your shower, and -- accordingly to her -- entirely unnecessary.

Anyway, that's plaintiff's story. So she files a lawsuit claiming excessive force. But Justice Moore holds that she loses as a matter of law since she subsequently pled guilty to resisting the exercise of a lawful duty in violation of Penal Code 148.

But Justice Moore misreads the precedent she cites. Sure, several cases -- entirely properly -- hold that you can't claim, for example, that the police arrested you unlawfully (e.g., without probable cause) if you've been convicted of the underlying crime and haven't obtained a reversal. Of course that's right. That's regular issue preclusion. You can't sue for X when your conviction conclusively establishes that X is untrue.

But that's not the present case. Plaintiff isn't alleging that she was wrongfully convicted. She's saying that even though she may have illegally refused to comply with a lawful order (i.e., to disrobe), that didn't give the officers the right to beat the crap out of her and fracture her arm; e.g., to engage in excessive force. And she's right. The validity of her conviction says nothing about the validity of her claim of excessive force.

This is not someone who's saying that the police started wailing on her for no reason and that the only reason she fought back was because they were illegally touching her. Those types of claims would indeed be barred by a convicted for, say, assault on a police officer, since you're allowed to assault someone who's illegally beating you. But plaintiff wasn't convicted of fighting back or of anything other than unlawfully obeying an order; i.e., the order to get naked. Sure, she disobeyed that order. But that doesn't mean that the officers are either entitled to use excessive force or that the force that they used wasn't excessive.

And all this, by the way, is what plaintiff is trying to express -- albeit inartfully -- when she gets Justice Moore excited. Here's what Justice Moore says in the penultimate paragraph of the opinion: "Truong's analogy of her case to Rosa Parks and her assertion that [the court's holding] gives 'carte blanche to beat to a bloody pulp, with financial impunity, any arrestee, provided they obtained a conviction for the conduct which preceded the beating, is pure hyperbole. . . . Asserting that Truong was somehow analogous to Rosa Parks is both factually inaccurate and diminishes the legacy of those who risked themselves to fight for civil rights in this country. It does not impress this court."

Okay. Maybe a bad tactical choice by plaintiff to invoke a beloved civil rights figure. Truong wasn't Rosa Parks when she refused to get naked.

But, that said, when one puts aside her poorly-chosen rhetoric, plaintiff's point is entirely right. Justice Moore agrees with the defendants and holds that if plaintiff is convicted of disobeying an officer, any beating that comes "mere moments" -- rather than "hours, or even minutes" after the order is disobeyed -- is, as a matter of law, not excessive force. That's neither the correct rule nor one that's supported by precedent. Nor is it one that -- and Justice Moore shouldn't be blind to the reality here -- advances the cause of civil rights. Finally, it is also a ruling would indeed be applicable to immunize some of the egregious conduct performed against civil rights advocates in the South during the 1950s and 60s.

Regardless, for purposes of excessive force, the law doesn't distinguish between individuals based upon the merits of their cause. You can't beat the crap out of anyone merely because they disobeyed a lawful order. And the fact that they admittedly initially refused to disrobe doesn't mean that you are -- as a matter of law -- justified in breaking their arm. Particularly when, as here, plaintiff alleges that she was no longer refusing to comply with this order when they started wailing on her and breaking her bones.

Everyone has something to learn here. The lesson for plaintiffs: Tone down the rhetoric. Sometimes it hurts you. The lesson for judges: Don't let language that doesn't seem right to you blind you to the validity of the message. Which is what happens to Justice Moore here. And because she's misled, she issues a holding that really does set back the substantive cause of civil rights and the constitutional right to be from the use of unnecessary and excessive force by the government.

Thursday, June 16, 2005

U.S. v. Sandoval-Lopez (9th Cir. - June 6, 2005)

There's a lot to like about this case.

First, Judge Kleinfeld reaches the right result, holding that it's ineffective assistance of counsel to fail to file an appeal when your client instructs you to do so. Second, Judge Kleinfeld raises some interesting points about this (accurate) principle, particularly when -- as here -- the decision not to appeal seems entirely reasonable, since (1) the defendant's lawyer negotiated what looks like a pretty good (albeit 7-year) plea bargain for his client rather than risk a huge sentence for allegedly distributing 15 pounds of heroin they found in his car, and (2) the appeal that the lawyer didn't file would almost certainly have failed, particularly given the number of times during his plea colloquy the defendant expressly waived his right to file such an appeal. Finally, I like the way Judge Kleinfeld ends the opinion, with this bon mot:

"The case at bar is a particularly plain instance where 'ineffective assistance of counsel' does not mean incompetence of counsel. It may be very foolish to risk losing a seven-year plea bargain on an appeal almost sure to go nowhere, in a major heroin case. Nevertheless the client has the constitutional right [] to bet on the possibility of winning the appeal and then winning an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush."


P.S. - Two points. First, what do you think the odds of that are (drawing the royal flush)? A million to one? Lower? Higher? Make your guess. Got it? Here's the answer. (Don't feel like clicking, or just can't find the answer in the clutter? I'll tell you: 16,215 to 1. A lot, lot higher than I thought actually. Second, I wish Judge Kleinfeld had written the rest of the opinion with the same focus he displays in its last paragraph. Throughout the opinion, he repeatedly writes backhanded slams on the existing rule, even though he eventually applies it. But the rule is what it is because it's the defendant's life, not the lawyer's. And that's why it's his choice. Which is also why -- contrary to Judge Kleinfeld's last paragraph -- it is indeed incompetence of counsel when you refuse (or fail) to follow your client's instruction to appeal. Because it's your job to effectuate his choices. So when you don't appeal when he's told you to do so, you haven't done your job.

Snowney v. Harrah's Entertainment (Cal. Supreme Ct. - June 6, 2005)

The California Supreme Court held in this case that California has personal jurisdiction to adjudicate a class action against various Nevada hotels (including Harrah's) for allegedly illegally (and without notice) imposing various energy surcharges on their guests.

There's a reason the decision is unanimous. It is not only clearly right. It's also incredibly limited. Time and time again Justice Brown distinguishes this particular case from various other types of suits, and repeatedly refuses to write an opinion that sweeps more broadly than necessary to resolve the particular claim at issue. Several commentators have opined that the decision opens up Nevada casinos to suits in California. But the opinion is much, much more narrow than this, and is expressly limited to the particular types of allegations that are raised in this suit -- which are, as the Court notes, heavily related to the defendant's contacts with the forum state. And the opinion seems to go out of its way to not decide -- or even express an implicit opinion on -- various broader jurisprudential issues. (For a perfect example, compare footnotes 10 and 11 of the opinion, which concerns the related but unpresented issue regarding whether a hotel could similarly be subjected to jurisdiction in California based upon injuries occuring in the hotel, which cites 9 noncontrolling cases on one side of this issue and 8 directly contrary noncontrolling cases on the other side).

The unanimous opinion is a perfect example of case-specific reasoning employed by an appellate court with broad precedential authority. For those who believe in case-by-case adjudication as the proper means of articulating appellate principles, it is exactly the type of opinion that one should prefer. For those who prefer that appellate courts (and particularly supreme courts) establish broad principles of law, by contrast, this is the type of opinion that should be avoided as inefficient and unhelpful to lower courts. So it's a good example upon which to assess this debate.

Regardless of the competing merits of these positions, however, Justice Brown clearly gets it right in this particular case. There's undoubtedly personal jurisdiction over these claims. Sure, the California Supreme Court could -- and perhaps should -- have done more. But at least what they did do was right. Which ain't always the case.

Wednesday, June 15, 2005

People v. Lopez (Cal. Ct. App. - June 8, 2005)

Listen to this closing argument by the prosecutor in a case in which the defendant was charged with resisting arrest:

"The defendant basically admitted the resisting, delaying, challenging the officer when he was interviewed by Officer Bui at the hospital. Do you remember Officer Bui asked the defendant, 'Why did you resist?' A reasonable person at that time would offer their side of the story if they were not good for it, if they were not guilty. If they were guilty, if they were challenging the officer, if they were threatening the officer, they would continue doing that. And this defendant said to the officer, 'Fuck you.' That's how he responded when he asked to explain his actions. That's an adoptive admission where he basically, in essence, admits that he resisted."

A pretty persuasive argument to a jury, huh? Particularly since it was consistent with both the judge's instructions regarding adoptive admissions as well as the evidence that the judge let in.

The only problem with this argument -- and the problem with admitting the evidence in the first place -- is that the prosecutor's closing argument leaves out one tiny little thing. The defendant didn't say "Fuck you." He said: "Fuck you. I want to talk to my lawyer."

Oops. That's not an admission that you're guilty. It's instead a constitutionally protected statement. And one that should never have been admitted into evidence. Much less one one that should have been distorted by the prosecutor -- whose duty is to secure justice, not merely a conviction -- during closing arguments.

Which is what Judge Walsh (sitting by designation from the Santa Clara County Superior Court) rightly holds in this case.

P.S. - Random thought: Should California really allow judges to sit by designation on appeals from their own court? Here, Judge Walsh is reviewing an opinion from the Santa Clara County Superior Court and, as a result, the propriety of the conduct of one of his colleagues -- and, quite potentially, a friend -- on this bench. It seems to me that this is a danger that we could, and should, easily avoid, if only through a broad prophylactic rule against it. Just a thought.

Acosta v. SI Corp. (Cal. Ct. App. - June 6, 2005)

This opinon by Justice Epstein makes sense upon first glance, which is undoubtedly why it comes out the way it does. But I don't know if it stands up to more substantial scrutiny.

Over 100 plaintiffs, all represented by the same lawyer, file a construction defect suit against the defendant for damages to 101 different homes. Defendant wins at trial, and promptly files a cost bill for over $120,000. Plaintiffs move to tax, arguing that the costs need to be allocated against each particular plaintiff. But the trial court disagrees, and the Court of Appeal affirms. Which means that each of the plaintiffs is jointly responsible for the entire $120,000+.

Sure, it's one lawsuit. On the same theory. And with one set of lawyers. And Justice Epstein repeatedly notes this latter fact to hold that the plaintiffs are jointly responsible for the costs.

But it's the plaintiffs that are required to pay the costs, not their lawyer. And it'ss undeniably true that some of the costs incurred by the defendant are only relevant to particular plaintiffs. Why is Plaintiff A responsible for the costs of deposing Plaintiff B about damages that only Plaintiff B incurred and which Plantiff A isn't seeking? These costs aren't the costs of defending against the claims of A. So it doesn't seem to me that A is responsible for paying them.

Sure, A and B have the same lawyer, and are raising similar claims. But that just means that some of the costs can indeed be allocated between the two. So, for example, when D pays a $300 fee to file its answer or $3000 to get a transcript of its own deposition on liability, maybe both A and B are responsible. But that doesn't mean -- as Justice Epstein's holding would require -- that A should be required to pay the costs that the defendant incurred in, say, moving for summary judgment exclusively against B. That's a cost of defending against B's claim. Not A's.

Plus, the rationale articulated by Justice Epstein both has no principled limit and would lead to seemingly absurd results. Sure, the parties here had the same lawyer. But what if they didn't? Justice Epstein likes to reiterate that it's the same attorney, but there's nothing in the CCP that says anything about costs being allocated per attorney, and the statutory interpretation advanced by the opinion would mean that even costs incurred entirely against A (represented by X) would be the responsibility of B (represented by Y) since the defendant was still the "prevailing party". Plus, what about cases that are consolidated? After consolidation -- which is fairly common in cases such as these (and many other mass tort cases) -- the action is treated as one lawsuit. According to Justice Epstein's reasoning, defendant is still the "prevailing party" if it wins at trial, which means that A is responsible for the (potentially massive) costs incurred in defending against B as long as the claims are eventually tried (or resolved) together. But that seems clearly wrong.

So I understand why Justice Epstein comes out the way he does, but the result he reaches nonetheless seems to articulate a very troubling principle. Plus, what's the problem with the converse: just holding each plaintiff liable for its own share of the costs? So if defendant incurs $1000 in costs in connection with acts relevant to both A and B, and an additional $200 in costs in connection with activities relevant only to B, what's the big deal about holding A responsible for $500 (half of $1000) and B responsible for $700 ($500 + $200)? This seems like the entirely right result -- Plaintiff A cost defendant $500 and Plaintiff B cost defendant $700 -- and I don't see the problem with holding each responsible accordingly. Whereas I have a fairly big problem with holding some tiny Plaintiff A who's seeking, say, $5000 -- alongside 100 other plaintiffs seeking the same thing -- responsible for some massive $100,000+ cost award. That just doesn't seem right.

So I think that even though the opinion seems to make sense as you read it, it's still wrong. My take, anyway.

Tuesday, June 14, 2005

People v. Brady (Cal. Ct. App. - June 2, 2005)

Brady accidentally starts a forest fire when cooking some methamphetamine. Okay, that's a bad thing. He should definitely be punished for it. No doubt. And the jury properly convicts him of both manufacturing methamphetamine and unlawfully starting a fire on forest land. I've got no problem with that. Lock him up. I've got no problem with his conviction thus far.

But the prosecution also charges him with murder. Based solely upon the deaths of two pilots who crashed their planes into each other while fighting the fire. And the jury convicts Brady of recklessly starting a fire that caused the death of these two pilots, and as a result, he's sentenced to 13+ years in jail. And even though it's crystal clear that the pilots crashed into each other only because one of them was flying totally erratically -- below the tree line and in the opposite direction he was supposed to be flying -- Justice Pollak holds in this case that this fact utterly doesn't matter: that Brady is still responsible for these deaths notwithstanding the time-honored concept of "proximate cause".

Sorry. I can't agree. Even if you start a fire, that doesn't make you responsible for every consequence that might result, however unexpected. Which is essentially what Justice Pollack holds. That's inconsistent with what we've always taught as proximate cause. This is not a strict liability offense. You're only responsible for the foreseeable consequences. And a pilot flying the utterly erratic way that the pilot at issue was flying was not a properly foreseeable event.

By the way, if you were on the jury, when deciding whether or not to find Brady guilty of these deaths, would it matter to you if you learned that the pilot who was erratically flying the plane responsible for the collision was legally drunk? That maybe this was why he was flying in the wrong direction and in the manner that caused the accident? Well, the trial court entirely excluded this evidence -- alongside the fact that the postmortem of the pilot revealed that was, in fact, legally drunk when he flew the plane. And Justice Pollak affirms, holding (1) that no jury would have been at all influenced by these facts, and also (2) that, in any event, the defendant did not prove that the pilot being drunk definitely caused the collision, only that it "could" have caused it, and that this is insufficient.

Absurd. It might well have made a difference. Plus, the defendant's offer of proof was clearly sufficient -- they even had an expert on the subject of the consequences of pilots flying drunk -- and Justice Pollak's statement that the pilot's drunkenness couldn't have caused the accident because the pilot had made six successful prior drops of fire retardant is just plain silly.

This is a long opinion, but one that seems utterly results-oriented, with Justice Pollak holding whatever is necessary to lock this guy up for 14 years. Which is not the way law should be made. Look, Brady is rightly responsible for any foreseeable consequences of his acts. So if someone sets fire to a house or drives 100 miles an hour to evade police and people die because they burn in the house or the defendant collides with them, then sure, he's liable. But you're not liable just because you commit a crime and some idiot decides to fly a plane when he's legally drunk and -- shockingly -- doesn't do a very good job at it, and as a result, people die. That's not a proximate cause of the crime. Which is why, on the facts of this case, Justice Pollack is wrong. And I think pretty seriously wrong, at that.

Monday, June 13, 2005

Menotti v. City of Seattle (9th Cir. - June 2, 2005)

Wow. Battles beget battles, I guess.

Let me warn you that these are long opinions. That said, it's definitely well worth the tme to read this case, which concerns the constitutionality of the "No Protest Zone" created by the City during the "Battle for Seattle" in connection with the 1999 WTO conference. There's some great stuff in both Judge Gould's majority opinion and in the partial dissent by Judge Paez. Which perhaps is not totally surprising given both the importance of the issue as well as the fact that, even after oral argument, it took the court another a year and a half to write the opinions. That's a long time.

And it shows. Both opinions are really powerful. Plus -- and here's where the "Battles beget battles" stuff comes in -- they're extremely interactive. Judge Gould slams Judge Paez. Pretty hard. And Judge Paez gives about as good as he gets. Make sure to read the footnotes. That's where a ton of the fireworks are. And there's some pretty darn harsh stuff in there. From two judges not legendary for their incendiary behavior. This is a fight that really brought out some provocative language. Very. Which is always interesting to read.

Be sure not to skip Section I of the dissent. The majority does a great job of articulating a description -- in substantial detail -- of a lot of the violence that surrounded the Battle. And Section I of the dissent identifies a lot of conduct by the police that's got to disturb anyone in a democracy. So two great visions. Which made the case a joy to read. Spend the time. It's worth it.

Friday, June 10, 2005

Warrick v. Superior Court (Cal. Supreme Ct. - June 2, 2005)

Sometimes things just strike you as funny. Warrick is hanging out with a bunch of other people in an area well-known for drug sales and starts to run when the police approach his group. The police claim to see Warrick throw a baggie containing 42 pieces of rock cocaine to the ground, and accordingly charge him with possession of cocaine for sale. Warrick's defense is that someone else ditched the baggie, and that he was just in the area looking to score when he (along with everyone else) started to run, and that since the police were able to catch up with him but not anyone else, they put the blame on him and falsely said that they saw him ditch the rock. The Court of Appeal thought that Warrick's defense was utterly implausible, and on that basis, denied his Pitchess motion (for discovery of the police officers' personnel records).

This is the portion of Justice Kennard's opinion (on pages 12-13) that -- for some reason -- brought a smile to my face: "The Court of Appeal questioned why, if defendant was buying cocaine, he had so little cash. One could just as well question why, if defendant was selling 42 rocks of cocaine, he had only $2.75 in his pockets with which to make change for his customers." (emphasis in original)

Now, I admit that I'm no expert on the buying and selling of rock cocaine on the streets, having -- and I'm sure this will shock everyone -- never even contemplated doing so. And I'm also not advocating that the California Supreme Court be packed with a diverse group of Justices who can bring their experiences buying and selling crack on the mean streets of downtown Los Angeles to enlighten the Court's adjudication of disputes.

That said, let me say this, Justice Kennard: Crack dealers don't give change. They are not a 7-11. There is no "Take a penny, give a penny" jar. You pay your $20 and you get your rock. It's that simple. They don't say "Thank you for your business. That'll be $18.75, plus tax. Would you like paper or plastic?" You don't get money back, and -- unless you're a moron -- you don't conclude your transaction with a potentially heavily-armed crack dealer by saying: "Dude, where's my $2.75 in change?!" You pay your $20 and move on. Crack dealers do not compete on the basis of which one gives better coupons or green stamps or access to change. To put it in terms perhaps more understandable to the upper class: It's like a prix fixe meal. There's a set price. And no change.

So, in this case, a little more street savvy would perhaps have been beneficial. Anyway, the line was funny to read. Just proving that even people who wear black robes are sometimes worlds apart from the people they judge.

Thursday, June 09, 2005

Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty (Cal. Ct. App. - June 1, 2005)

You've got to love it when people come to agree with you. Even if they don't seem to admit it.

Here's what I posted on January 10, 2005 about a case called Harron v. Bonilla, in which Justice McConnell concluded that the anti-SLAPP provisions did not apply because the conduct at issue was allegedly illegal:

"Judge McConnell['s] reasoning seems flawed. As to Bonilla, she holds that his speech is not governed by the anti-SLAPP provisions because he violated the Brown Act by disclosing information he obtained in closed session. But that fact (even if true) properly goes to the merits of the suit, not the applicability of the anti-SLAPP provisions. Just because your conduct is potentially illegal doesn't mean it isn't still in connection with an issue of public interest. . . . The illegality of the defendant's conduct does not obviate the anti-SLAPP provisions; indeed, if it did, a court would have to hold that even your run-of-the-mill defamation defendant can't file an anti-SLAPP motion if his words were in fact defamatory, since it's equally illegal to defame someone as it is to reveal official confidences. "

Now, six months later, on June 1, 2005, that same Justice -- in a different case called Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty -- articulates a seemingly directly contrary holding to what she wrote in Harron, and does so in language that parallels my post of January 10, 2005. She now writes (on page 12):

"Plaintiffs contend that this is not a SLAPP suit because they merely seek to enjoin illegal activity such as trespass. Mere allegations that defendants acted illegally, however, do not render the anti-SLAPP statute inapplicable. For instance, the First Amendment does not protect defamation, yet defamation suits are a prime target of anti-SLAPP motions."

And Justice McConnel says this without mentioning her seemingly contrary holding in Harron, nor -- even worse -- my name! (Just kidding. No pride of authorship here. Just glad the idea got across.)

Further proof that "Great minds think alike." At least eventually. Let's hear it for the marketplace of ideas.

Wednesday, June 08, 2005

People v. Pacific Landmark (Cal. Ct. App. - May 31, 2005)

What?! You mean to tell me that a massage parlor named "Victoria's Health Care" that's operated out of a strip mall in the heart of the San Fernando Valley is really a front for prostitution?! I'm shocked. Shocked. Just like Capt. Renault. (Other good lines from Casablanca.)

Roe v. McDonald's Corporation (Cal. Ct. App. - May 27, 2005)

Three very minor (and very quick) comments about this case. First, according to the plaintiff, it provides yet another reason -- apart from diet and health -- to avoid the McDonald's at the South Coast Plaza in Costa Mesa. Second, it's pretty rare that courts allow plaintiffs to sue anonymously, much less without any comment (or even recognition that the plaintiff is suing anonymously). Yet that's what happens here.

Finally -- and I admit that I am totally the only one who will care about this last point -- the ostensible "expert" on security who wasn't allowed to testify (thereby dooming plantiff's case) had the last name of "Reierson." Which is interesting (to me, anyway) only because my wife's last name is "Rierson" (which itself is a butchered form of her ancestor's true last name of "Ryerson"), and I've never read an appeal that involved a similar name; indeed, have never even heard of anyone whose last name is "Reierson." How do you even pronounce such a thing? Re-i-er-son? Ray-i-er-son? I'm lost. (The good thing about Sandy having this crazy last name is that you can totally tell when someone's trying to sell her something over the telephone, since they uniformly mispronounce her name as "Re-er-son" rather than "Ry-er-son". Which gives us the option to hand the phone over to Sierra or Jack, our three- and one-year olds, to permit them to share some scintillating conversation with the solicitor. Which we've never actually done. But which we've thought about a lot.)

Of course, I say that, and then I promptly find 1000 people who's last name is "Reierson". Each of whom I've just inadvertently insulted. Oh well. Another day, another thousand people offended. Sorry about that.

Tuesday, June 07, 2005

Ingels v. Westwood One (Cal. Ct. App. - May 26, 2005)

Okay, maybe it's not legally actionable age discrimination for someone -- here, talk show host Tom Leykis -- to refuse to allow someone to call in to his radio show on the ground the caller is simply too old to possibly have anything relevant to say. Or at least that's what Justice Hastings holds in this case. And I guess that's indeed the law. Or at least Justice Hastings makes a plausible case for such a result. (Though I have to admit that I have some very slight reservations about the holding.)

Regardless of the merits, however, what an incredibly, incredibly lame and bogus thing for someone to do: to believe that old people have nothing valuable to say and to exclude them from participation and engaging in free speech on that basis. How lame. The first five pages of the opinion provide a transcript of what Leykis said on the air, which was basically telling plaintiff that he didn't want to talk to him because he was too old. Leykis' sentiment was captured by what he said to the plaintiff -- on the air -- right before hanging up on him: "I don't really care how smart you are, Pal. You know what, we have a targeted demographic on this program; you don't fit it, period. You're way too old, Pops. You don't belong on the air. Call a big band station. Call somebody else, please. Don't call here."

I've never listened to Leykis' show; indeed, I had never even heard of the guy before reading this opinion. His show is apparently somewhat popular, and his views about the elderly appears to be consistent with his views about other disadvantaged groups. (The home page of his web site, for example, currently highlights a close-up picture of a woman's buttocks and a shirtless woman having her breasts autographed by Leykis. Several other photos on the site reflect Leykis autographing other female body parts, women engaging in mock fellatio with a variety of objects, and simulated lesbian scenes. Classy.)

What's unfortunate about the opinion is that because it was decided on an anti-SLAPP motion, plaintiff is forced to pay Leykis' attorney's fees. Which doesn't seem right. This is, at a minimum, a close case, and one that is itself infected with a public interest. It's one of a few cases that make me think that the anti-SLAPP provisions sometimes go overboard, and that they should perhaps have an exception for cases that are themselves public interest disputes: perhaps an exception similar in form to the new exception in Section 425.17 for certain class action and other litigation. It doesn't seem right to me that the plaintiff -- who's largely trying to combat systemic (and express) discrimination -- will end up having to pay tens of thousands of dollars for his efforts. That just doesn't feel like justice. To me, anyway.

Monday, June 06, 2005

Bank of America v. La Jolla Group (Cal. Ct. App. - May 19, 2005)

Enthusiastic capitalism is sometimes both excessive and amoral. This case is a perfect example.

Micheal and Ruth Selesia own a tiny little house in Fresno. (The opinion doesn't mention any of the underlying facts, but a little investigative digging reveals the following. The house is at 1925 W. Michigan Avenue in Fresno. It's a 3 bedroom, 1.75 bath house with 1294 square feet of living space that was built in 1956. With one fireplace and a two-car garage.) They apparently get a $15,000 credit line on the house, which is worth over $100,000, but for some reason, fall behind on the payments. (The opinion again does not mention that the $15,000 lien was for a credit line, or why the Selesias fell behind. Public records show that Michael Selesia originally owned the house with Claude J. Selesia -- perhaps his brother (?) -- and that these two took out a $15,000 credit line from BofA on January 5, 1999, and that two days later, Claude J. Selesia filed a gift deed transferring the house to Michael. So presumably Michael used the $15,000 credit line to buy Claude out. Anyway, that's my guess.)

So in late 2002, BofA decides to foreclose on the house. The foreclosure sale is scheduled for November 12, 2002. But on November 8, 2002, the Selesias (or some person acting on their behalf) paid BofA all the overdue amounts, and BofA reinstated the loan. But, for some reason -- almost certainly, a mistake by someone at BofA -- BofA didn't cancel the foreclosure sale. So, on November 12, 2002, a dude named Alan Boyajian -- acting on behalf of a partnership called the La Jolla Group II (which, by my best guess, is the name of a partnership between Boyajian and some of his buddies, perhaps including a guy named Leroy Klein) buys the $100,000+ property for a whopping $15,500.

Shortly thereafter, everyone realizes the mistake. They explain to Boyajian that the house really wasn't in foreclosure since the loan had been reinstated, and try to give him his $15,500 back. But, like any excited capitalist who's just stolen a $115,000 house for $15,500, how does Boyajian respond? He says: "Go to hell. The house is mine." And promptly files a lawsuit against the Selesias to kick them out of their house. Nice.

Fortunately, as a result of Justice Wiseman's opinion, Boyajian's conduct -- which really exemplifies the type of quality ethical and moral behavior that I'd love to see my children display, that I hope is taught daily to our nation's youth, and that I definitely wish is mimicked by every person and corporation in America, for our world and community would indeed be a better place for it were this to be the case -- doesn't pay. 'Cause the Court of Appeal holds that since the overdue payments had been paid and the loan reinstated, BofA couldn't foreclose. Which they didn't really intend to, anyway. And, as a result, that Boyajian didn't in fact steal the Selesias' home. Which means he can't kick them out of it. Which is, parenthetically, why, to this day, you can still find Michael and Ruth Selesia at 1925 West Michigan Avenue. May they live there in peace.

So some good news. Plus, I gotta say that it brought a smile to my face that the opinion ends by making sure that Boyajian has to pay costs. Yes. 'Cause being sleazy doesn't pay.

Okay, so maybe I only wish that was the total moral of the story. And, yes, being sleazy didn't pay here. Which I'm definitely happy about. But, on the other hand, Boyajian is still totally rich. He's got almost 300 different propery records in California that I can find, and these include a $3,000,000+ apartment complex at 435 Powell Street in San Francisco. So apparently being sleazy -- or at least amoral -- does pay.

Oh well. At least it didn't pay here. Which is better than the alternative. Let's at least be happy for that, eh?

P.S. -- Kudos to Glenn Wechsler -- a graduate of the fine University of San Diego School of Law (note the newly designed website!) -- for this big victory on behalf of his client. And the opposite to Harry Puscuzzi and Susan Moore -- both graduates of the San Joaquin College of Law -- for representing their high quality, good guy client, Alan Boyajian. Always good to see a USD graduate both fighting for good and winning. Makes me smile.

Friday, June 03, 2005

Gonzales v. Free Speech Coalition (9th Cir. - May 23, 2005)

I've read several interesting cases in the past in which the court has sanctioned a party for filing a frivolous appeal or opposition even though the district court -- or a judge on the court of appeal (in dissent) -- thought that the position articulated by the sanctioned party not only was not frivolous, but actually should have prevailed on the merits. Those cases never fail to interest me, in part because it seemed (and still seems) to me that the fact that a neutral party (i.e., a judge) sincerely believes that Position X is meritorious is super-powerful evidence that Position X is not frivolous (or at least generally not sanctionable). And I was (and am) surprised at how many of those types of cases exist.

Which is perhaps why this case was particularly interesting to me, in part because it involves a fascinating variant on those prior cases, and one that I hadn't previously thought about when considering those more run-of-the-mill sanction cases. Judge Hawkins holds here that the Free Speech Coalition isn't entitled to fees under the Equal Access to Justice Act (EAJA) -- which authorizes awards when the government's position is not "substantially justified" -- on the ground that numerous jurists (including the district court judge, two dissenters in the Supreme Court, and four dissenters on the Ninth Circuit) voted in favor of the government's position. Pretty much exclusively on this basis, Judge Hawkins reverses the fee award, holding that if so many jurists agree with the government, then its position is -- virtually by definition -- substantially justified.

There's obviously a ton that could be said here. All I'll articulate for now are a couple of brief thoughts. First, if that's the correct rule, then the sanction cases that I referred to above seem clearly wrongly decided -- as I have always believed them to be -- since the standard for finding something to be "frivolous" is clearly a lot tougher than the standard for finding something to be not "substantially justified". Second, notwithstanding this thought, I'm still not totally and completely convinced that just because several judges find a position to be justified that it's always "substantially" justified. Sure, I agree that this fact is pretty darn good evidence, and may well often be conclusive. But I'm not totally convinced that this is the be-all, end-all that Judge Hawkins implicitly perceives it to be. Finally, I think that people with a good background in epistemology and philosophy could have some really interesting insights on this topic, and I'd love to hear them. I'm educated just enough in these fields (for example, I majored, inter alia, in philosophy in college) to know that there's some really interesting stuff here without being smart or knowledgeable enough to articulate these points at a sufficiently deep level. But I'm quite sure there are other people who don't share my deficiencies, and would be interested in hearing their take. Judge Hawkins doesn't really do more than scratch the surface here. It's an interesting scratch, but there's a lot more one could say. And that they'd say it a lot better than I would.

But this is definitely still a case -- and a concept -- worth some thought. It has ramifications that are important not only in EAJA cases, but in a variety of other areas as well.

Thursday, June 02, 2005

Allison C. v. Advanced Education Services (Cal. Ct. App. - May 18, 2005)

Sometimes the facts of a case are just totally disheartening. This is one of them.

Allison had one child. His name was Dylan. Dylan began to have emotional problems in the third grade, when he moved from Bakersfield to Crestline, California after the breakup of his mother's marriage to his stepfather. When he was 9 years old, he was hospitalized for a week at a local behavioral center. When he was 10 or 11, he moved to Redlands, where he was was raped at knifepoint by a 14-year old boy. When he was 13, he repeatedly fought with other children, put a tack through his own ear, intentionally cut his own thumb, and gave another student poison to drink. Shortly thereafter, at school, he used a needle and thread to sew his fingers together. Three days later, he was sexually assaulted by an adult man. Shortly thereafter, this 13-year old child went into his grandparent's bedroom, took a rifle from underneath their bed, and killed himself.

Depressing, depressing, depressing.

Wednesday, June 01, 2005

Autopsy/Post Services, Inc. v. City of Los Angeles (Cal. Ct. App. - May 17, 2005)

Now I know why I'm not a wealthy entrepreneur. I clearly can't recognize a fantastic business opportunity when I see one. Since I can't understand -- for the life of me (no pun intended) -- how 1-800-AUTOPSY is supposed to make money. Or why exactly its business model requires frontage on heavily traveled Foothill Boulevard in Pasadena. But apparently it does. Or did, anyway. Before the City of Los Angeles successfully put the kibosh on these plans. A kibosh that was affirmed by Justice Boland in this case, which upheld the City's decision to revoke plaintiff's permit to operate its facility on Foothill Boulevard.

The great thing about this opinion is not only the underlying business model (finally, a response to that pent-up demand for private autopsies!), but also the lengths to which the planitiff (allegedly) went through to hide from the City the nature of his business. At least until he put up that huge "1-800-AUTOSPY" sign on the front of his building. The reason he didn't have a vested right in the permit, Justice Boland holds, is because he got the permit by describing his business as a "medical laboratory." Which it is, of course. Sort of. But it's a bit different from what a usual laboratory does, no? For example, the City was hardly aware from this truncated description that plaintiff intended to roll in corpses through his front door, which he'd be doing since the place doesn't even have a back entrance. Not exactly what the neighbors thought they were getting into when they first moved in, I imagine.

Apparently, 1-800-AUTOPSY is still in business, as revealed by its web site (complete with pictures!). Though not on Foothill Boulevard; indeed, its "Contact Info" fails to list any address at all. But fear not. You can still buy tee shirts, caps, coffin cases, skeleton and skull key rings, glow skull magnets, and a wide variety of other quality merchandise from their fully interactive online store. And, if you're interested, you can learn more about the fascinating business history of 1-800-AUTOPSY here. Plus, if you click within the next 10 minutes, you can also view a recommendation letter on its behalf written by none other than Johnny Cochran himself. Life's funny, eh?