Tuesday, July 11, 2006

Bougere v. County of Los Angeles (Cal. Ct. App. - July 11, 2006)

Much closer today. Published opinions issued by California Court of Appeal: 6. Published opinions issued by the Ninth Circuit: 1.

Impressive, Ninth Circuit. Might even get to double digits by the end of the week!

Speaking of effort, I got a late start on blogging (and work) today because I spent the morning arguing a case in the Court of Appeal. At least someone's working during the summer. (Got another one tomorrow, even.) Still, sorry about the late post.

Meanwhile, let's take a quiz. That was brought to my mind by this opinion by Justice Doi Todd.

Let's say you represent a prisoner who got the poop beat out of him while in the L.A. County jail and you want to sue L.A. County for civil rights violations under Section 1983. But there's a split of authority on whether the Sheriff, in doing what he did, was acting as a state actor (and hence is immune from Section 1983 liability). The California Supreme Court -- e.g., state court -- has recently held that the Sheriff is a state actor, and hence immune from suit. But the Ninth Circuit -- e.g., federal court -- has squarely gone the other way, holding that the Sheriff isn't a state actor and hence can be sued.

Remember, you represent the plaintiff. You're thinking about filing a federal question case; in other words, you could presumably be in either state or federal court here in California. Are you going to sue in (A) state court -- whose Supreme Court, remember, recently squarely held that the sole defendant you're planning to sue is immune, or (B) federal court, which has squarely held the contrary.

Hmmm. A toughie, huh? Go ahead. Take your time.

Needless to say, the attorney for plaintiff in this case chooses (A). (Counsel for plaintiff on appeal -- who I assume also represented the plaintiff in the trial court -- is Southwestern University School of Law graduate Barry Zelner.) As a result of this brilliant choice of forum, plaintiff promptly loses on a demurrer. Can you guess the grounds? Yep. Immunity.

Also needless to say, Justice Doi Todd affirms. Remember: There's a controlling California Supreme Court case out there. Think the California Court of Appeal is gonna follow it? Uh, yes.

Lesson for the day: Pay attention in civil procedure. And think -- and open up a law book or two -- before you file.