Monday, July 31, 2006

In Re Jonathon M. (Cal. Ct. App. - July 31, 2006)

Ever see an opinion published solely for the purpose of insulting the trial judge below? If not, read this one. It's a perfect example.

The tenor of the opinion is evident from its first paragraph, in which Justice Sims states: "Once again, we are asked to issue a writ commanding San Joaquin County Juvenile Court Judge Barbara A. Kronlund to honor a peremptory challenge filed under Code of Civil Procedure section 170.6 (section 170.6). Once again, we shall issue a writ."

The opinion goes on like that for thirteen pages. All with respect to a writ petition in which the "opposition" to the writ (by Judge Kronlund) states, in its entirety: "Upon further review, Real Party in Interest will not be filing an opposition in this case.”

Think Justice Sims decided to publish a thirteen page opinion in an appeal the respondent conceded because the law regarding this undisputed matter was unclear? Or, instead, because Judge Kronlund has consistently hacked him off?

You be the judge.

POSTSCRIPT - I received a helpful (and very nice) e-mail from one of the participants in the case, who noted -- correctly -- that the AG's office was technically representing the People of the State of California, not Judge Kronlund, in this writ proceeding. So it was really the People, not Judge Kronlund, who expressly stated that they wouldn't be filing an opposition. Hope that clears things up (or at least makes them more accurate)!

S.B. Beach Properties v. Berti (Cal. Supreme Ct. - July 31, 2006)

This is a nice, short, and (in my view) correct decision by the California Supreme Court, which holds that you can't recover fees on an anti-SLAPP motion if the plaintiff dismisses the lawsuit prior to the filing of your anti-SLAPP motion.

Justice Corrigan writes the opinion for a unanimous court. What's most interesting is the brevity of the opinion, which tops out at nine (double-spaced) pages. Pretty darn short and to the point. Which is both nice and refreshing.

Moreover, to be honest, I thought that most of the opinion was fluff anyway. As I was reading the opinion, I kept saying to myself: "Come on. Get to it. You're just saying total generalities. Actually address the arguments on both sides, not merely puke out platitudes." I thought as I was reading this part that this was going to be a correct, but fairly unreasoned, opinion. Only in the final three or four paragraphs does Justice Corrigan actually engage is substantive analysis. But when she (finally!) does so, it's persuasive.

So it's a short opinion that could have been even shorter. Still, happy to read it.

Harper v. Poway Unified School Dist. (9th Cir. - July 31, 2006)

Pretty interesting when a fairly substantial portion of your dissent entails a block quote from a blawg. As Judge O'Scannlain -- joined by four others -- does here.

Friday, July 28, 2006

Burkle v. Burkle (Cal. Ct. App. - July 28, 2006)

What a banner year it's been in the California Court of Appeal for billionaire Ronald Burkle. First, in January, he lost his bid to keep documents under seal in his wife's divorce action against him. But that was only one of the multiple lawsuits against him by members of his own family. Today, Justice Boland -- along with Cooper and Rubin, each of whom were also on the earlier panel -- hands him another loss, this time reversing a grant of summary judgment to him in the lawsuit filed against Burkle by his daughter.

Both your wife and your daughter are filing lawsuits against you. What a wonderful life. Makes me feel warm and fuzzy all over.

Thursday, July 27, 2006

Kepilino v. Gonzales (9th Cir. - July 25, 2006)

Here's a riddle for you: When is a prostitute not a prostitute? Answer: When she's a prostitute in Hawaii.

Makes no sense, you say? Perhaps it will after you read this opinion by Judge Pregerson.

Here's the basic scoop. Young Ok Kepilino is a native and citizen of South Korea who comes to the United States as a visitor for pleasure (!) in 1996. She marries an American citizen and adjusts her status in 1998. But in 1999 she's busted for practicing massage (or, should I say, "massage") without a license and for prostitution, pleads no contest to both charges, and pays a fine of $500. Seems pretty routine. Happens all the time, I'm sure.

But then, in 2002, Kepilino goes to visit her sick mother in South Korea. When she comes back into the U.S. at the Honolulu airport, the Department of Homeland Security says: "Nope. You're inadmissible. Under Section 212(a)(2)(D)(i), because you're an alien who's has engaged in prostitution during the past ten years -- and we know you are, since you were found guilty -- you can't enter the United States. See ya."

I didn't know, by the way, that Section 212 really said that. But, upon reading the statute, indeed it does. Which seems pretty harsh -- after all, being booted out of the country is a lot more harsh than the $500 fine imposed for the actual crime. But there you have it.

Interestingly, however, Kepilino argues that even though she was convicted of prostitution, she didn't in fact engage in prostitution. Which seems like a pretty tough argument to make, right? But Judge Pregerson finds that she's right, and reverses the decision below on this basis.

How could that possibly be, you might ask? Remember the answer to the riddle above? That's why. Because Hawaiian prostitutes aren't prostitutes. Or, perhaps more descriptively, because prostitution in Hawaii isn't necessarily prostitution under Section 212 of the INA. That's because, in Hawaii, a person can be convicted of prostitution based upon the performance of "sexual contact" or "sexual penetration" for a fee, and these terms are defined to include, inter alia, touching people through their clothes (i.e., massaging their nether regions) or engaging in oral sex. (This is a family blog, so I'm not going to get too specific here.) By contrast, the INS has interpreted Section 212 to define prostitution as limited to engaging in actual sexual intercourse; indeed, to engage in the practice repeatedly. None of which Kepilino necessarily did, since the admissible records of her Hawaii prostitution conviction doesn't mention specifically what she did (or whether she did it more than once).

Hence, she may be a prostitute, but she's no prostitute. So she can stay in our great nation. Or at least in Hawaii. Who's official motto, ironically enough, is "Ua mau ke ea o ka aina I ka pono." Which means: "The life of the land is perpetuated in righteousness."

Righteousness indeed.

Wednesday, July 26, 2006

People v. Queen (Cal. Ct. App. - July 25, 2006)

Want another reason why participation in the criminal justice system -- in any form -- sometimes totally sucks? Here's one, which derives from the opinion in this case:

"[D]efendant Allen D. Queen was found guilty of attempted murder of a public official . . . . In June 2003, defendant was in custody and on trial for felony charges of making criminal threats. When all but one of the jury’s verdicts were read, defendant attacked the prosecutor, Kenneth Puckett, in the courtroom with a shank, which he had constructed out of a plastic coat hanger. Defendant punched and stabbed Puckett in the chest, neck and head before he was subdued. In a letter to a reporter, defendant admitted he carried the shank in order to kill Puckett. During an interview with a police officer regarding the incident, defendant said to tell Puckett, 'Maybe next time.' At his trial on the matter, defendant testified he started making the shank more than a week before the attack and that he had brought it to court every day. Defendant said he made the weapon with the intent to stab one of the investigators who had worked on the case, but she was not present when the verdicts were read. Several weeks later, defendant again was found to be in possession of a shank, this one constructed of steel, which he held while resisting the efforts of six officers to remove him from his jail cell. Two officers were cut during the incident, and defendant admitted he tried to cut every one of the officers. Defendant was taken to a medical unit where he was placed in five-point restraints in an observation cell. Defendant escaped from the restraints and shattered a window with one of the leather belts."

Yikes! This is not -- I repeat, not -- a guy I want out on the streets. EVER.

Nor shall he be, since he was sentenced to an aggregate term of 259 years to life.


Gabriel P. v. Suedi D. (Cal. Ct. App. - July 25, 2006)

Check out the first two factual paragraphs of this opinion, which describe the beginnings of some really beautiful relationships between intelligent, sophisticated parties and that -- stunningly -- leads to the eventual filing of a paternity action:

"Suedi and Gabriel first met at an entertainment club when Suedi was approximately 15 years old and Gabriel was approximately 20 years old. Gabriel then believed that Suedi was at least 21. [Yeah, right.] Both were unwed. Suedi and Gabriel began to have sexual relations, and at some point Seanna was conceived. During this period, Suedi also had sexual relations with Anthony O., who was then approximately 29 years old and also unwed. Suedi led each man to believe that he was Seanna’s father."

Believe it or not, eveything goes downhill from there.

Tuesday, July 25, 2006

In Re Andrade (Cal. Ct. App. - July 25, 2006)

Liber Andrade is a passenger in a car that nearly collides with another car. The driver of the other car gets out and screams at Andrade, and Andrade gets out of the car and starts to fight with him. At which point the guy pulls a knife and cuts Andrade in the neck. When the fight ends, the adversaries and bystanders generally dissipate. In the meantime, Andrade walks to his nearby apartment, grabs a shotgun, and returns to the scene of the fight. He aims the shotgun at a couple of guys at the scene, who scream "We're not in it, we're not in it!" But Andrade doesn't believe them, and fires three shots, killing one of the victims and injuring the other.

Turns out that the victims were right. They were just bystanders, one of whom just happened to be dressed similarly to the guy who cut Andrade in the fight. So Andrade blew away a dude who never even touched him. And will spend 15 to life in prison -- and, thereafter, be promptly deported to Mexico -- as a result.

Yet another reason not to shoot a guy with a shotgun.

Kreeger v. Wanland (Cal. Ct. App. - July 25, 2006)

Lawyers like lawsuits. Lawsuits like lawyers. Could there be a more accurate truism? This case is the latest demonstration of how lawyers and lawsuits sometimes get completely and utterly out of control.

The opinion filed today by Justice Hull is related to a previous opinion that he issued earlier this month. I commented on the earlier opinion here, noting that the underlying litigation started "with what would be universally recognized as the worst of all possible worlds -- an automobile accident between two lawyer-affiliated people." The present opinion is actually about Lawsuit #3. Lawsuit #1 was filed in 1999, as a result of an automobile accident between friends/spouses/employees of lawyers. Then Lawsuit #2 was filed in 2002 when the winner of Lawsuit #1 sued the loser (and their lawyers) for malicious prosecution. Lawsuit #2 gets dismissed on an anti-SLAPP motion, at which point Lawsuit #3 gets filed in 2004 by the winner of Lawsuit #2 (and loser of Lawsuit #1) for malicious prosecution against their adversaries (and their counsel) in Lawsuit #2.

To summarize: (1) Piddly automobile accident; (2) Malicious Prosecution lawsuit; (3) Malicious Prosecution lawsuit. Lawyers. Who doesn't love 'em.

Lawsuits #1 and #2 are now over, but Lawsuit #3 persists, as Justice Hull affirms the denial of an anti-SLAPP motion to strike Lawsuit #3. Holding -- if you can follow this one -- that plaintiffs in Lawsuit #3 might well be able to establish that the plaintiffs in Lawsuit #2 lacked probable cause to assert that the parties in Lawsuit #1 lacked probable cause.

I'll be so excited if there's a Lawsuit #4. Doesn't every little fender bender, after all, deserve seven-plus years of expensive, utterly out of control litigation?

Feel the love.

Monday, July 24, 2006

U.S. v. Romm (9th Cir. - July 24, 2006)

I'm a little disturbed about this case. Judge Bea holds that it's a permissible border search for the authorities to turn on your computer and look through it -- without probable cause -- for evidence of a crime.

This may go too far for me. This case is a good example of the resulting problem. When Romm crosses the border, the authorities turn on his computer in order to search for child pornography. After an extensive search, they discover some deleted pictures in his internet cache, and charge him with possession. The defendant contests the legality of the search, the trial court upholds it, and Judge Bea affirms.

I'm fine with routine border searches for drugs, weapons, and the like. That seems reasonable to me. But I'm less keen on searches of your papers (including those in your computer), which I think the Founders (rightly) thought should be more secure. Sure, they can turn on your computer to see if it's a bomb. But going through it to examine its actual contents seems different. And I find it even less reasonable for border authorities to conduct routine intrusive searches, without probable cause, for deleted files -- stuff that you're deliberately trying not to bring into the country.

There are some doctrinal complexities in this particular case that perhaps make it a bad vehicle in which to articulate the proper vision of a permissible border search; in addition, Judge Bea expressly doesn't address one of the legality issues raised by the defendant only in his reply. Still, I'm concerned about the flip manner in which Judge Bea upholds the validity of the search here, particularly the failure to recognize that a search at the border of information content, especially deleted content, is substantially and qualitatively different than the types of border search traditionally conducted and jurisprudentially accepted.

So whenever you leave the country, from now on, remember that the authorities can look at anything on your laptop. Anything. Even if you deleted it. Pretty scary, I think. Not my idea of a presumptively "reasonable" search.

Friday, July 21, 2006

In Re Marriage of Erickson & Simpson (Cal. Ct. App. - July 21, 2006)

I had no idea that it cost this much to get divorced in San Diego. Debra Erickson files for divorce from Dennis Simpson and hires Phillips, Lerner, Lauzon, & Jamra to represent her. They do less than six months of work for her before they're substituted out and then file a motion for fees. Guess how much they ask for?

Over $90,000. That's a heap of change for a partially-completed divorce, huh? Guess their fancy web page (among other things) costs a lot of client money to maintain.

Yet another reason to get along with your spouse.

Thursday, July 20, 2006

Escamilla v. California Dept. of Corrections (Cal. Ct. App. - July 19, 2006)

Yes! Yes! Yes! Please spend my taxes this way, California Attorney General's Office! This is precisely why we all work so hard and yet are totally enthused about giving the government its fair share. I couldn't be more proud of the efficient, essential manner in which my appointed representatives litigated this case. Right on!

What happens, you might ask? Well, Carlos Escamilla is an inmate at the Calipatria State Prison. He's just bought $70 worth of stuff at the prison canteen and is in the exercise yard waiting to be returned to his cell when a riot breaks out in the yard. After the riot ends, Escamilla and his stuff are escorted by a correctional officer to an administrative segretation unit, at which point another officer informs Escamilla that he's going to the hole. Escamilla says "Okay, but can you put the stuff I'm wearing -- my Levis jeans, Reebok shoes, Nike sweatshirt, and Seiko watch -- with the stuff I just bought at the canteen." To which the officer responds: "No! That goes to the trash."

So Escamilla spends some time in the hole (in his boxers), and when he's released, he asks for his stuff back. But the prison can't find it. Presumably, it was either stolen or -- consistent with the officer's statement -- thrown in the trash. So he files a plethora of different administrative requests for the stuff, asking for either the return of the stuff that was taken from him or its value, $255. But the prison repeatedly tells him to go to hell. So he's forced to sue; again, asking for either the return of his stuff or its value.

The trial court, after a fair piece of litigation -- and a defense (at taxpayer expense) by the state -- orders the prison to give Escamilla $225. Seems reasonable to me. After all, they took and lost his property. Seems to me they should give it back. Plus, why the state elects to spend what is undoubtedly many, many thousands of dollars in defense- and judiciary-related time and salaries to defend a meritorious $255 lawsuit isn't easily apparent to me. But so be it.

But here's where it gets really good. The Attorney General appeals. Brilliant! And asserts a plethora of meritless arguments therein, primarily (1) Escamilla's alleged failure to exhaust administrative remedies, notwithstanding both contrary precedent and Escamilla's numerous administrative filings, and (2) alleged insufficiency of the evidence to support the $225 award, an argument that's simply absurd given the factual findings and deference to the trial court.

Regardless, let's see what we're spending just on the appeal of this $255 award. We've got the salaries of the various counsel in the Attorney General's office, who are writing briefs, supervising the appeal, and doing the oral argument. We've got the salaries of the three justices on the Court of Appeal, who are compelled to read the briefs, decide the appeal, and who end up writing a 27-page opinion. We've got the salaries of the support staffs at all of the various offices. And we've also got the salaries of the counsel for Escamilla who's appointed to represent him in the appeal. All over a meritorious award of a piddly $255!

Superb. Just what I want to see. That's definitely how I'd spend the money if it were mine. Glad to see such wise decisionmaking by our appointed officials. Simply excellent.

James Humes is the Chief Assistant AG on the brief, Francis Grudner is the Senior Assistant AG, and Heather Bushman (a Loyola Law graduate who forgot to pay her bar dues back in 1999) and Lora Martin (a Thomas Jefferson graduate with the same last name as, but unrelated to, yours truly) are the Deputy AGs.

I don't blame Heather and Lora, who are the grunts and likely don't have the ultimate say over whether to file the appeal. But I definitely blame their bosses. I haven't seen a more frivolous waste of taxpayer money by the AG's office in a while. Really impressive.

Wednesday, July 19, 2006

U.S. v. Lyons (9th Cir. - July 19, 2006)

This is the second Ninth Circuit opinion in three days involving a criminal defendant named Lyons. The first one was a telemarketer (discussed here). This one is a forger of celebrity signatures. This must be "Publish Opinions About Incarcerating Pests You Don't Like" Week in the Ninth Circuit.

That said, who knew that we were so aggressive in prosecuting people who forge celebrity signatures? The defendant here, O. Stephen Lyons, forged the signatures of, inter alia, Arnold Schwarzenegger, Jerry Garcia, Muhammad Ali, and Carmen Electra. The feds conduct a sting operation and bust him when he fakes the signature of Yul Brynner on a Villa Rides movie poster. (I loved, by the way, that Lyons called the informant to ask him whether Brynner had died before Sharpie pens were invented. Not something you want recounted at your trial for mail fraud, eh?)

So Lyons gets convicted, his conviction is (properly) affirmed by Judge Gould, and Lyons now gets to spend three years in prison. That seems like a lot, huh? For forging, inter alia, a Carmen Electra signature? Seems like it should be equally criminal to want one of those.

Tuesday, July 18, 2006

Franco-Rosendo v. Gonzales (9th Cir. - July 18, 2006)

Imagine that it's your birthday (as it might well be). You live in Reedly, California (outside of Fresno), and you've got four young children -- whose ages are seven, four, two, and a wee four months -- all of whom are United States citizens. You're from Mexico, and you're trying to avoid being deported. One more thing. The mother of these four young children is seriously ill, and if she's successfully deported to the rural, indiginous area of Mexico where she's from -- which is five hours from the nearest hospital -- things aren't going to go well for either her or her children.

You've been ordered to be deported. You've lost your appeal before the BIA. You've got one last shot, and you've filed an appeal before the Ninth Circuit. What would be your wish -- your fondest dream, your most precious hope?

Well, if you could, you'd wish for a reversal by the Ninth Circuit. But if your genie didn't allow you to demand a particular result, you should wish for the next best thing: That Judge Reinhardt not only be on your panel, but that he is the author of a published majority opinion.

Which happens here. Needless to say, Judge Reinhardt reverses and remands the deportation order.

Mind you, I'm not saying he's wrong. Judge Trott, after all, goes along with him, as does Judge Wardlaw. I'm just saying that when the equities are as they are here, if you're trying to avoid being deported, you've got no better judicial friend than Judge Reinhardt.

Happy birthday, Luis & Eulalia. Even if it isn't.

Monday, July 17, 2006

U.S. v. Lyons (9th Cir. - July 17, 2006)

Telemarketers. Who doesn't hate them? I know I do. With a deep and abiding passion. Perhaps I hate door-to-door solicitations more. But it's a close call. Neither of them are my favorites.

Like many people, I never buy from or give anything in response to any of these solicitations. And my pre-existing sentiment in this regard was only solidified after reading this opinion by Judge McKeown. Sure, you know intellectually that most of these telemarketer charity things have absurdly high expense ratios and/or are complete scams. But actually reading the details burns this reality into your soul. Check out the first half-dozen pages of the opinion and see where the millions of dollars in charitable contributions went, as well as just how deliberate and intentional (in my view) the scam was -- an attempt to do just pitifully enough to try to make it legal and stay out of jail. I really hope these people rot in prison.

Two other tangential points. First, I smiled at the first footnote. Always good to work in a Seinfeld dialogue in the first sentence. Second, conversely, I very much frowned at the last page; in particular, at what the district court judge -- Judge David O. Carter (of the Central District of California) -- said to the defendants and their counsel below. Sure, Judge Carter was mad. And, who knows, perhaps he was angry for good reason, as he had a sense -- and perhaps an accurate one -- that defendants' counsel was deliberately improperly objecting.

Still, you just don't say what Judge Carter did: "I'm warning you. [B]y the time they fish your client out of prison, if he's convicted -- and even if I'm overturned in terms of something I say in front of the jury, it will be years. So don't press me on it counsel." That just ain't right. You don't do (or say) something like that. It's an abuse of power. And a not-so-veiled threat.

So some interesting stuff in here. A nice opinion on a hot and muggy day in Southern California.

Friday, July 14, 2006

People/U.S. v. Estrada (9th Cir. & Cal. Ct. App. - July 14, 1006)

Here's something I haven't seen before. Both the Ninth Circuit and the California Court of appeal only issue one substantive published opinion today. They're both criminal cases. And they're both called "People/U.S. v. Estrada".

The Ninth Circuit case involves a conviction for possession of methamphetamine. The California case involves a conviction for petty theft. Estrada's first name is Mateo in the former and Frank in the latter.

They're both convicted. The convictions of both are affirmed on appeal.

Not a good day to be named Estrada.

Thursday, July 13, 2006

FTC v. (9th Cir. - July 13, 2006)

Okay, okay. I'm going to stop calling the Ninth Circuit lazy. It issued five published opinions yesterday and four today, compared with one each day for the California Court of Appeal. So my new mantra is that the Ninth Circuit is the hardest working court in show business. Great job.

Plus, this is a darn good opinion by Judge O'Scannlain. Admittedly, I don't think it's that tough of a case. But he writes a fairly short (seven page) opinion that quickly and cogently disposes of appellant's arguments. The opinion is also interesting to read if only to learn what did, and also -- thankfully -- how the FTC actually got off its duff and did something about it.

This is another one of those "mail you a check and, when you cash it, you're automatically signed up and billed for some service you don't want, so you better be darn sure to read the fine print" solicitations. If you're at all like me, you get plenty of these in the mail. My own take is that it's sleazy to mail a solicitation in the guise of a check period, if only because we all know that this type of solicitation deliberately deceives the consumer into opening up the envelope in the first place (rather than throwing it away) because she thinks it might contain a real check. But it's even sleazier when, as here, the only substantive reference to the fact that by cashing the check you're signing up for a monthly $19.95 charge is in fine print on the back of the check.

Now, I gotta admit, my instinctive reaction to this case was: "I'd find this mailing deceptive, but I really do think that most of the people who signed the check knew what they were doing. After all, I can't fathom that someone would sign the back of a check and not read what was immediately above their signature, even if it was in somewhat small print." So my gut reaction was that most people knew what they were doing.

But that just shows you that I'm not very bright. (As if that comes as a shock to anyone.) Because I found the following fact both surprising and pretty significant: Of the 225,000 people and businesses who deposited the checks, only one percent actually logged into the internet service that they had (ostensibly) agreed to buy as a result of cashing the check. Leading to an inference that many -- indeed, most -- of the people either had no clue that they were buying anything or that they had to actual desire to purchase anything when they signed and cashed the check.

That's a pretty huge figure. And one that's available only because the underlying service was internet access -- for similarly deceptive check solicitations for "credit protection programs" or a magazines (or the like), we wouldn't be able to obtain such concrete evidence regarding who actually desired the service. It firms up my belief that these check solicitations really are fundamentally deceptive, and that they really do mislead a huge number of people into ordering things that they don't want.

Judge O'Scannlain affirms the trial court's order that refund over $17 million to consumers, as well holding one of the principals at personally liable for this amount. That's correct as a matter law. And it also makes me happy. Exactly what I want to see happen in situations like this. Let's hear it for justice. Yay!

Wednesday, July 12, 2006

Bridgeman v. McPherson (Cal. Ct. App. - July 11, 2006)

I'm not sure that you can do this, Justice Sims. It's superficially appealing, and I can understand why you might want to do it. But, upon reflection, I think the move is -- fairly clearly -- doctrinally illegitimate.

Here's the scoop. Sometimes overseas voters, who often get their ballots late, can't mail them back in time for them to be received (as required by California law) by election day. So California passes a law that says that a special absentee voter can fax their ballots back in lieu of mailing them. Fair enough. Unfortunately, because it all comes in one packet (the fax), unlike a ballot stuffed in an envelope, anyone who examines the fax will be able to see both the name of the voter and how they voted. Which means the ballot isn't secret.

Secret ballots are a pretty fundamental component of our democratic electoral system. But given the nature of the fax, California passes another statute, Elections Code 3103.5, that says that in order to return the ballot via telefax, the voter must sign an oath that says "that by returning my voted ballot by facsimile [(fax)] transmission I have waived my right to have my ballot kept secret.”

The thing is, that statute pretty flatly conflicts with the California Constitution, which expressly declares (in Article II, Section 7) that "[v]oting shall be secret." So some voters file a lawsuit.

Notwithstanding this clear conflict between the statute and the California Constitution, Justice Sims upholds the statute. Sure, he admits, the constitution trumps statutes. Justice Sims nevertheless holds that the law is valid because it's designed to enforce another critical constitutional right -- the right to vote -- and when two such constitutional provisions conflict, the Legislature can, as here, adopt a statute that seeks to effectuate the latter.

As I said, upon first reading the opinion, I thought that this doctrinal move had some facial appeal. Even though it conflicted with pretty much everything we're ever taught about constitutional supremacy. The more I thought about it, however, the more I realized that you can't do this. That a statute that conflicts with a provision of the constitution isn't constitutional even if it legitimately and in fact serves to protect another vital constitutional liberty.

I won't go through the complete analysis -- this is a blog, after all, not a law review article -- but let me just give you an example. Say the police are pretty darn sure that there's a serial killer sleeping peacefully in his home. In order to arrest him, rather than get a warrant, they decide to simply bust into his house. And, in order to convict him, maybe they also search his house, again without a warrant. Perhaps go even further. Maybe because they're darn sure that he's guilty, rather than risk letting some hotshot attorney get him off on a technicality, they also deprive him of his right to counsel at trial. Heck, let's go all the way. Rather than risk an adverse result from the right to "due process" and let this serial killer go free, after catching him, the police simply take him out in the backyard and fire a bullet into his brain.

All of this is utterly impermissible under the Constitution, right? We're super darn sure of that. Or at least I am.

But what if the police say: "Yeah, I know that stuff facially conflicts with the Fourth and Fifth and Sixth (and perhaps tons of other) Amendments. But we did all of it to protect other critical liberties. In particular, the critical constitutional rights of all of his future victims to vote, engage in free speech and free exercise, make contracts, breathe, etc." So, they say, what we did was categorically necessary to enforce other constitutional rights. Critical rights; moreover, rights for a number people rather than merely one.

I don't have any doubt whatsoever that we'd resoundingly laugh such an argument out of court. Even if it were true that the conduct of the police in fact had such a result; in other words, that each of these acts were indeed necessary. We wouldn't permit the police even to try to make such a showing in such a setting. And that's true even if they were acting pursuant to a state law that said "If the only way you can stop a future killing is to violate the constitution, go right ahead." We'd strike that puppy down.

The same is true here. You can't uphold a statute that conflicts with the constitution merely because it is designed to effectuate other constitutional rights. (I leave aside for now the difficult question of whether there's a potentially different result when constitutional provision X has an "effectuate" clause that might permit right X to be enforced at the expense of right Y pursuant to the constitutional provisions of X.)

So I think this one is wrong. It's a result that is understandable, and may make some superficial policy sense. But that's nonetheless inconsistent with the purposes and function of a constitution.

That's my take. Now I'm off to the courthouse to argue a far, far less important and theoretical case before the California Court of Appeal this afternoon. One that's interesting in its own right, mind you. But -- for some inexplicable reason -- people generally find the intricacies of civil procedure much less fascinating than constitutional law. Go figure.

California Court of Appeal vs. Ninth Circuit (July 12, 2006)

Yes, I've been somewhat mean to the Ninth Circuit lately. So mean, in fact, that a kind reader ---- indeed, someone from the "other team" -- recently e-mailed to let me know that the big party bash known as the Ninth Circuit Judicial Conference started on Sunday. Which may well explain why that institution has been taking a publication nap lately.

Of course, now I'll just insult the Ninth Circuit for being both lazy and on vacation -- and on the taxpayer dole, at that! (Oh, yeah. I'm sure the conference just had to be in Huntington Beach!)

Just kidding. You federal guys and gals have fun. We miss you!

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.

Monday, July 10, 2006

Jogani v. Jogani (Cal. Ct. App. - July 10, 2006)

Number of published opinions issued by the California Court of Appeal today: 9.

Number of published opinions issued by the Ninth Circuit today: 0.

Ah, those lazy July days. At least if you've got life tenure, I guess.

Anyway, this opinion by Justice Mallano is the best (and most interesting) of the bunch. It's admittedly a long one, topping out at 33 pages. But I still enjoyed reading it. It's about judicial estoppel, and is one of a long list of cases that holds that judicial estoppel doesn't apply because the first court didn't necessary accept or rely on the false statements. (Justice Mallano also published another opinion on the exact same topic -- Gottlieb v. Kest -- earlier today. And that one's 46 pages. So a big judicial estoppel day for Justice Mallano.)

It's an interesting doctrine and an interesting story here. You learn about a guy who, in 1979, had property worth $375 million (and $100 million net equity) in residential apartments in Los Angeles. And who, by the mid-1990s, had lost the $100 million in net equity and now had equity of negative $50 to $70 million. But, in an awesome display of two-way rachet we call leverage, by 2002 owned properties with a value in excess of $1 billion and net equity of $550 million. Quite a chunk of change.

You'll also learn about his brothers, who allegedly helped turn things around and was owed half -- in other words, $225 million -- of that equity. And, perhaps predictably, how brothers thereafter started suing brothers over the resulting largess. And, to make matters more interesting (and to bring judicial estoppel into play), how one of the brothers, who had been sued by many, many people during the downturn in real estate, had "allegedly" (i.e., pretty clearly, in my mind) lied under oath at a gazillion judgment debtor exams about how he wasn't involved in any partnerships and didn't have any assets. And how his brothers thereafter tried to use these statements against him to estop him from claiming to the contrary in his lawsuit against his family.

So a family fight, lots of lies, defrauded creditors, and a ton of money. Should keep it interesting, at least for a Monday. On the merits, Justice Mallano does a good job, and in the end, I agree with him, even though at points during the opinion he somewhat lost me. Still, in a way, that's perhaps the sign of a good opinion: the ability to convince the reader that you're right, even though the reader at various points is pretty darn skeptical.

I especially liked the last half-dozen or so pages, in which Justice Mallano explains why the judgment debtors may (with an emphasis on may) potentially have some relief against the liar. Still, I'd like to see DAs go after a lot more people for perjury in civil cases than they do. Perhaps even here. Some of this stuff is pretty darn egregious.

A nice 33-page diversion on a day in which my in-laws arrive from North Carolina to stay with us for a week. :-)

POST-SCRIPT: The California Court of Appeal cranked out another one at the end of the day to make it an even 10. Double digits versus zero. Even more impressive!

Friday, July 07, 2006

Wanland v. Mastagni, Holdstedt & Chiurazzi (Cal. Ct. App. - July 6, 2006)

Sometimes you gotta know when to quit. And, sometimes, you gotta realize that the nutjob attorney is none other than you.

This case proves the point. It starts with what would be universally recognized as the worst of all possible worlds -- an automobile accident between two lawyer-affiliated people. On the one side is Shannon Mello, who was a clerical employee at the law firm of Mastagni, Holstedt & Chiurazzi (which is now, I believe, Mastagni, Holstedt & Four Other People). On the other side is Georgia Wanland, who's husband is attorney Donald Wanland (with Wanland & Bernstein).

It seems like a fairly tiny accident; nonetheless, the parties saddle up their respective lawyer friends/spouses and sue. Mello hires one of the lawyers at the law firm she works for, Michael Kelly (who's no longer there), to sue Wanland and her husband. But since the folks at Mastagni might be witnesses, she substitutes Christopher Kreeger as her counsel. On the other side, the Wanlands. Things go tolerably for Mello when the matter goes to arbitration, and she's awarded $28,280.69. But a trial de novo is requested, and at trial, the Wanlands win a defense verdict on a 9-3 vote.

Seems pretty mundane, huh? That's the end of it, right? The jury has spoken. C'est la vie.

Not a chance. Don't forget: Attorneys are involved. The Wanlands, led by Donald Wanland, promptly file a malicious prosecution suit against Mastagni, Kelly and Kreeger. To which the defendants -- and I know this will come as a complete and total surprise -- file an anti-SLAPP motion to strike the complaint. Which, not at all surprisingly, they win, as the court finds that there was probable cause to file the lawsuit. (Which, after all, they won at the arbitration, and for which they got three votes at trial.) And, of course, the court awards the defendants their costs and fees.

Now, a rational attorney would say: "Damn. I screwed up. I shouldn't have filed the lawsuit. My bad. Now I'll have to pay." But not Wanland (who, parenthetically, was put on probation by the Bar back in 2002). Nope. Not at all.

First, he promptly files a Notice of Appeal. Then, to make matters worse, he spends three months trying to get a stay of the judgment. A process that prompts a ton of legal work, in part (as the trial court found) due to the Wanlands' "repeated failures to provide proper sureties, and by presenting a forged signature in one instance, and inadequate property descriptions in other cases.” Nice.

Needless to say, the Wanlands lose their appeal of the granting of the anti-SLAPP motion. Which, of course, means they're now liable for more fees; namely, the fees on appeal. So the case goes back down for the trial court to determine the amount of the post-trial fees. Does Wanland learn his lesson, and suck it up, at this point? No way. He promptly heavily litigates the amount of these fees, arguing that he shouldn't be required to pay for the fees that resulted from his lengthy efforts to stay the judgment.

But the trial court disagrees, and awards yet more fees. At which point Wanland yet again files an appeal. Which, in this opinion by Justice Hull, he promptly loses. Generating yet another award of appellate fees.

So let's see. The Wanlands originally had a defense verdict. But then they filed their lawsuit, and as a result, were down $19,518.00 -- not to mention their own time and money -- once the trial court struck the lawsuit and awarded fees. And thanks to their subsequent (brilliant) decisions, the Wanlands are now down an additional (1) $16,940 for litigating the adequacy of the undertakings, (2) $20,312.50 for the appeal and post-appellate motion to recover attorney's fees, and (3) an undetermined additional amount -- but undoubtedly yet another five-figure amount -- for the second appeal (and motion for fees).

Impressive. Needless to say, Donald Wanland represented himself (and his wife) in the appeal. Alongside a junior associate in his firm, Daniel McGee. Who's someone hardly in a position to tell his boss: "Cut it out, you moron. You're being an idiot." Advice that, if accepted, could have avoided a world of hurt.

Let's review the lessons we've learned. (1) Don't be a fool. (2) Get out when you can. (3) Don't represent yourself in a matter in which you're emotionally invested. (4) Don't mess with the SLAPP statute. (5) Don't throw good money after bad. (6) Try, try, try not to be a nutjob.

Good lessons all.

Thursday, July 06, 2006

Dark v. Curry County (9th Cir. - July 6, 2006)

Judge O'Scannlain has written some pretty good opinions in his day. Like this one. And this one. And this one. And others. Mind you, he's written some pretty crappy opinions as well.

But this one falls into the former category. It is a analytical, well-reasoned, temperate, and persuasive opinion. Judge O'Scannlain decides that even though plaintiff's ADA claim (the plaintiff was allegedly terminated because he had epileptic seizures -- and, indeed, I think it's pretty clear he was) wasn't entirely cognizable on all fronts, it was nonetheless improper to enter summary judgment in favor of the defendant, since it was possible that a jury would find that at least some types of reasonable accommodation were possible.

This opinion really is "fair and balanced". I liked it.

Good job, Diarmuid.

Wednesday, July 05, 2006

Hoffman v. Arave (9th Cir. - July 5, 2006)

Oh, Judge Pregerson's law clerks (and Judge Pregerson). For shame. For shame.

Here's the first sentence of footnote 2: "At trial, Wages was one of the principle witnesses against Hoffman." Principle?! Oh my. Now, I'm terrible at spelling and grammar. But even I know that one's wrong. Principal.

Let's do a little more proofreading before we publish, shall we? What do you think the opinion is: a blog? :-)

U.S. v. Clark (9th Cir. - July 5, 2006)

Check out Judge Kozinski's concurrence in this one. The sole point of which -- over many pages -- is to insult counsel for the United States (Robert L. Ellman, from the Department of Justice), and to contend that he tried to mislead the court both in the briefs and at oral argument.

As my father used to say, "Don't p*** on me and tell me it's raining." That's basically what Judge Kozinski says over several pages.

Admittedly, Judge Kozinski is slightly more articulate than my father's saying. And uses bigger words, too. Like "perspicacious".

Still, the message is the same. Ditto for the attitude. Check it out.

In Re Janee W. (Cal. Ct. App. - June 30, 2006)

If you're going to invoke your right to counsel (or to remain silent), why do it the traditional, boring way, and simply say "I'm not going to talk until I see a lawyer." I much prefer the way that Janee W. does it here: "I will talk only to my lawyer and Jesus Christ."

Sort of has panache, huh? Plus, it somewhat throws down the gauntlet, no? You're not absolutely refusing to talk, after all. You're just saying: "Look, I'm happy to talk to you. Just produce Jesus Christ. Then I'll talk."

Seems reasonable to me.