Thursday, November 30, 2006

In Re Jaime P. (Cal. Supreme Ct. - Nov. 30, 2006)

Justice Baxter is on the losing end of this 6-1 decision, in which Justice Chin patiently (and I believe rightly) concludes that the California Supreme Court's earlier holding in In re Tyrell J. should be overruled, and that warrantless searches of juvenile probationers without reasonable suspicion aren't permissible when the police search them unaware of the probation search condition.

Justice Baxter's dissent isn't perhaps too surprising, since he voted in the majority in In re Tyrell J. itself. Still, I think that even Justice Baxter should agree that the legal landscape has changed since then, including (and especially) as a result of the United States Supreme Court's opinion earlier this year in Samson -- a case from California, no less. You gotta change you mind when the world around you changes, my friend.

It was a good day for Justice Kennard, who wrote the dissent in In re Tyrell J. Sometimes you're vindicated over time. Even if it takes, as here, a decade or so for the rest of the world to realize that you're right.

Congratulations, Joyce.

P.S. - Guess whether "Jaime" is a boy or girl. Ready? Yep, you're right. Boy. Boy gangbanger with a gun, no less.

Morgan v. Canady (9th Cir. - Nov. 30, 2006)

Look, I like our woodsy next-to-next-door neighbor to the North as much as anyone. Seattle, clouds, the constant rain. It's all good.

That said, I think Judge Clifton goes overboard in this opinion. Which makes a single amendment. Which, in its substantive entirety, reads as follows:

"[C]hange 'California' to 'Washington'."

No, thank you.

U.S. v. Lopez (9th Cir. - Nov. 30, 2006)

I liked the composition of this one. Which affirms a decision of a USD Law School graduate (Judge Napoleon Jones) in a case argued by a USD Law School graduate AUSA (Timothy Salel) and a USD Law School graduate federal defender (Chase Scolnick). So USD Law School all around.

Not on the panel, though. Which consisted of graduates from Yale (Judge Graber), UCLA (Judge Wardlaw), and McGeorge (Judge Rawlinson). And was, parenthetically, an all-woman panel. Which isn't something you see every day.

Wednesday, November 29, 2006

Cassady v. Morgan Lewis Bockius (Cal. Ct. App. - Nov. 29, 2006)

Sorry for the late post today, but I was in a deposition in Los Angeles all day, and then had to drive back to San Diego (in rush hour LA/OC/SD traffic, mind you) in order to get back to USD in time to participate in the "Battle of the Brains" competition and thereby demonstrate that the faculty's intellectual prowess vis-a-vis our students is greatly, greatly exaggerated. Which we did. In spades. (Though, to toot our own horn, we prevailed in the end. Thanks largely, I think, to the "Supreme Court" category of questions, which -- not surprisingly -- we were pretty good at, thank you very much. E.g., Ruth Bader's the second oldest on the Court, not Nino.)

I did get a chance to read today's cases, however. Lots of stuff that could only marginally keep my interest, though, as usual, I slogged through it nonetheless. This case was fairly interesting, however, both from a lawyer-watching perspective as well as from the perspective of learning something that might actually help the most important people in the world; namely, us. Justice Aldrich's opinion is all about (1) The lawsuit by Los Angeles attorney Ralph Cassady against his former employer, Morgan, Lewis & Bockius, and (2) the legal standards by which attorneys are entitled to indemnification (including defense costs) from their former law firms for malpractice lawsuits against them (pursuant to Labor Code sect. 2802).

In other words, if you're an associate (or even otherwise employed by a law firm), and you are sued for malpractice based upon something you did at the firm -- whether meritoriously or not -- does your law firm have to defend you, or can they hang you out to dry? As, indeed, Morgan Lewis did to Mr. Cassady here.

I'll leave you in suspense. Read the opinion. It's got a lot of good stuff. Or at least read it if and when you ever get sued. Or, perhaps, if and when you're thinking "I'm tired. I don't feel like doing my job very well today, and want to go home. If I screw up, and get sued, can I at least make my law firm defend and indemnify me?"

(The answer, by the way, is: Maybe. Shocking, I know. Read the opinion for more!)

Tuesday, November 28, 2006

Vulovic v. Robinson (Cal. Ct. App. - Nov. 28, 2006)

I'm somewhat (and increasingly) hesitant to call someone a bit sleazy, especially on a cold appellate record. But I nonetheless think I'll continue to call 'em as I see 'em.

So when I read this case, which involved the validity of a bequest in which 87-year-old Helen L. Odian left her entire $3 million-plus estate to Catharina Vulovic, who had been her paid live-in companion before Ms. Odian moved into a nursing home, my reaction was this: I'm glad that Ms. Vulovic won't take care of my relatives.

Not because every bequest to a caretaker is the result of overreaching, though I'm in favor of somewhat broad prophylactic rules in this regard (for example, California's). But, on the facts of this case, I'm fairly convinced that Ms. Vulovic was fairly sleazy. So was very glad to see Justice McKinster -- rightly -- affirm the holding of the trial court that Ms. Vulovic won't become an instant multimillionaire.

P.S. - Justice McKinster doesn't mention it except in passing, but I also don't have a very fond opinion of many of the salespeople who sold Ms. Odian (through Vulovic) what I'm certain was overpriced and inappropriate junk. Particularly the person who convinced the incompetent, elderly Ms. Odian to convert her substantial assets in order to purchase an annuity. Yeah, like that's an appropriate investment for Ms. Odian, and not one that you pushed on her simply in order to obtain a huge commission. Sleazeball.

Six Flags v. WCAB (Cal. Ct. App. - Nov. 27, 2006)

It's fairly rare that I talk about a worker's compensation appeal. But this one is different. Among other things, it's a more significant opinion, with a fairly wide-ranging impact, and holds that Labor Code sect. 4702(a)(6)(B) violates the California Constitutuion.

What does Labor Code sect. 4702(a)(6)(B) say, you might ask (as, indeed, I did when I first read the opinion)? Well, basically, Section 4702 in general says that when a worker dies on the job -- as Bantita Rackchamroon, a hostess at Six Flags, did when she was hit and killed by a roller coaster -- the employer has to pay the worker's family $250,000. Paragraph (a)(6)(B) further provides that when the employee has no dependents, that sum must be paid to the estate of the worker.

Seems reasonable, right? After all, maybe the worker has parents, siblings, or significant others who might need the money.

But Justice Kitching holds that this provision is unconstitutional under article XIV, section 4 of the California Constitution, which authorizes the Legislature to establish a worker's compensation regime solely to require employers to compensate "any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.” So by adding the estate as a beneficiary, Section 4702(a)(6)(B) violates the California Constitution.

Justice Kitching's opinion is excellent. Comprehensive, well-reasoned, and nicely articulated. Indeed, at the end of it, my principal reaction was: "It seems so obvious that this statute was unconstitutional. I wonder how many employers and/or insurers actually paid the quarter-million dollars without ever consulting an attorney and realizing that the statute was unconstitutional?"

I bet a lot did. Which meant a lot of money to the State of California -- since paying the money to the "estate" of people without dependents often, as here, resulted in some payment to the State -- and a lot of money out of the pockets of employers who weren't required to pay.

Shows the importance of having a lawyer with a broad range of knowledge, including knowing a fair piece about state constitutional law, eh?

Monday, November 27, 2006

People v. Kelly (Cal. Supreme Ct. - Nov. 27, 2006)

Sorry, my friends on the California Court of Appeal. Your jobs just got a fair piece harder.

People v. Wright (Cal. Supreme Ct. - Nov. 27, 2006)

A guy named "Shaun" (spelled the correct way, I might add) has a pound-plus of marijuana in his car and gets busted up in Huntington Beach after the police get a tip from a dude at a car wash that Shaun and his backpack reek of pot.

Ultimately, in this case, Shaun's conviction is affirmed by the California Supreme Court. Not because Shaun was properly precluded from asserting a defense under the Compassionate Use Act (he wasn't), but instead because the error was harmless. As Shaun was definitely selling, not just smoking, his pound-plus.

Love the name. Love the locale. Love the holding.

And love the message: If you sell pot, TAKE A SHOWER. Don't reek of it.

P.S. - Washing your clothes a bit more often won't hurt either.

Wednesday, November 22, 2006

Goold v. Superior Court (Cal. Ct. App. - Nov. 22, 2006)

Laura files for divorce from Edward. The Standard Family Law Restraining Orders (which are on the back of the summons) prohibit Edward from encumbering marital property without the written consent of his spouse. Laura and Edward thereafter stipulate to give most of the marital property to Edward, but Laura gets the marital house. Which, as the parties stipulate, includes a first mortgage of $252,000 but no other encumbrances.

Immediately after this order, however, Edward (1) gets an $100,000 line of credit on the marital house from Wells Fargo, which he promptly cashes out; (2) signs a $150,000 trust deed on the marital property to Mike's Remodeling, for work that was done on Edward's separate business properties; and (3) sells the marital property for $600,000 to a third party.

The Superior Court holds Edward (Goold) in contempt, and sentences him to 360 hours -- and says it will consider a work furlough. Personally, I'd also have held the dude in contempt, and (1) sentenced him to a lot more time, and (2) had him serve it in jail.

Tuesday, November 21, 2006

Fields v. Yusef (Cal. Ct. App. - Nov. 21, 2006)

When people want turkey, I guess they want it bad. Hence the double-digit number of published opinions that the California Court of Appeal cranked out today.

Much more than your typical day. Maybe, like a baseball team, this is "getaway day" for the state judiciary.

Regardless, I can describe this opinion for you relatively succinctly. Who's got the obligation to make sure there aren't any spounges left in you after surgery? The doctor? The nurses? Can the former rely on the latter in order to get out of liability?

Answer: The doctor, and no. Pretty much, anyway. Read Justice Doi Todd's opinion for more. (And the dissenting opinion of Justice Chavez for a different view.)

U.S. v. Lazarenko (9th Cir. - Nov. 21, 2006)

"Sandy, baby!" Welcome to the Ninth Circuit!

Justice O'Connor sat on a couple of panels last month, and this opinion is the first published disposition from that crew. Justice O'Connor doesn't write the opinion -- Judge Tallman does -- and the appeal involves a fairly unusual set of circumstances, arising as it does from the siezure of $2.5 million in assets from the former Ukranian Prime Minister (Pavel Ivanovich Lazarenko). (Lazarenko, by the way, is one of a very select group of former foreign leaders -- Manuel Noriega comes to mind -- who's currently serving time in a U.S. prison.) (Total parenthetical note: Did you guys know that Noriega is scheduled to get out of prison sometime next year? Wow. Time really flies!)

Okay, enough parentheticals. The opinion itself concerns complicated fed courts issues that wouldn't be worth slogging through but for the involvement of the various judicial and foreign dignitaries referred to above. In the end, the appeal is dismissed, and everyone -- including Sandy -- concurs.

Justice O'Connor. Noriega. The former Soviet Union. I feel like it's the 1980's all over again.

Monday, November 20, 2006

Miller v. Bank of America (Cal. Ct. App. - Nov. 20, 2006)

This case is about a class action lawsuit in which Bank of America was charged with illegally seizing social security payments and other public benefit payments to cover various unrelated bank fees (primarily NSF and overdraft fees). A California Supreme Court opinion from 1974 generally doesn't allow banks to seize government benefit payments to offset unrelated charges, but this case is arguably distinguishable from the present one.

I'll leave you in suspense about how the class action comes out. Read this relatively short opinion by Justice Siggins for the answer. I'll instead only ask a single question:

Guess how much in NSF and overdraft fees Bank of America has obtained from the class (people who directly deposit their social security and other government benefit checks into BOA accounts) during the class period, which is between January 1994 and May 2003?

What do you think? How much did they earn? Come on. Guess.

Would you believe: $284,211,273.

Wow. That's a freaking lot of change.

(Which, by the way, explains why Walter Dellinger and Arturo Gonzalez are both on the briefs for BoA. When that much is at stake, you want the best. And these two are most certainly in that class.)

Holbrook v. City of Santa Monica (Cal. Ct. App. - Nov. 20, 2006)

Not every bad -- or even horrible -- decision is also an illegal or unconstitutional one.

I happen to agree with Santa Monica City Councilmen Robert Holbrook and Herb Katz that City Council meetings should end by, say, 11:00 p.m., and that putting the public comment period at the end of these extraordinarily long meetings -- in order to force the public to sit through the whole thing -- is unwise. In general, meetings -- including governmental meetings -- shouldn't end around midnight. It's not conducive to public participation. It's a bad idea.

That said, I also agree with Justice Zelon that poor meeting schedules are neither unconstitutional nor violate the Brown Act (or, for that matter, OSHA regulations). And, quite frankly, it's fairly frivolous to argue to the contrary. Finally, I'd strongly hope that our elected representatives would understand that fact. Something that Mssrs. Holbrook and Katz apparently did not.

Santa Monica. A crazy place. Backed up by some crazy laws and some crazy elected officials. I gotta admit that I love 'em, and appreciate the sentiment. But please realize that the law doesn't solve all your problems. Sometimes you gotta simply be content with an attempt at persuasion, and, if that doesn't work, chalk it up to the (more-than-occasional) problems with representative democracy. It's a crappy system, to be sure. It's simply better than the available alternatives.

Friday, November 17, 2006

Oakland Raiders v. Oakland-Alameda County Coliseum (Cal. Ct. App. - Nov. 17, 2006)

Raiders lose. As usual. All the time.

They's as impressive in the courtroom as they are on the field.

They're horrible.

Iskenderian v. Iskenderian (Cal. Ct. App. - Nov. 17, 2006)

It's lunchtime. And I haven't had anything to eat. So you'll have to excuse me if I started to drool when I read this opinion.

It's about the Zankou Chicken restaurants, which are a yummy staple of Los Angeles. I remember one of the places on the corner of Sunset and Normandie in Hollywood, "back in the day" (i.e., when I was an Angelino). Lebanese chicken. Yummy.

The legal discussion in the opinion by Justice Boland isn't particularly interesting. The case involves a familial squabble about who owns the trademark to the name "Zankou Chicken," and the resolution of the case largely revolves around fact-specific inquiries. So if you're looking for a fascinating and in-depth discussion of IP, this one ain't for you.

If, howwever, you're looking to read an interesting story -- in particular, about one family's struggles (and fights) during the creation of a Lebanese restaurant chain -- this is definitely worth a read. It's got immigrants struggling to make a living, a family patriarch, success in the American dream, family drama and intrigue, the involvement of selfish (and perjurious) widows, and -- in the end -- murder, as a son, diagnosed with cancer, shoots and kills his mother, sister, and himself. The facts of the case have very little to do with the ownership of the trademark. But they nonetheless allow an interesting way to peek into another family's life, and make for a good read on a lazy Friday afternoon.

P.S. - On the Zankou Chicken website, the section on "Our History" omits the part about the murders. Hardly a surprise, eh?

Thursday, November 16, 2006

Day v. Collingwood (Cal. Ct. App. - Nov. 16, 2006)

I hate to say it. 'Cause I'm a loyal, institution-type guy. But Justice Aaron is right in this case. Motions for sanctions under CCP 128.7 can indeed be brought post-judgment. Judge Strauss (down here in San Diego) was wrong in holding that he lacked jurisdiction to consider such requests. Which means that the motion for sanctions against attorney Darren J. Quinn -- a graduate of the University of San Diego School of Law -- should have properly been considered, and will be considered on remand.

Mind you, I'm not too too worried about our alum, Mr. Quinn, because Justice Aaron goes out of her way to note that motions for sanctions should ordinarily be brought before or soon after a judgment, and that delay in bringing such a motion -- here, the motion was filed over four months after a final judgment was entered --can (and should) be considered in assessing the merits of the motion. So I don't feel especially disloyal.

Regardless, Justice Aaron is correct. So go ahead and file those postjudgment sanctions motions -- so long as you served the motion prejudgment and complied with the safe harbor rule -- to your heart's content. Just do so quickly if you want to win 'em.

P.S. - Full Disclosure: Upon further review, my disloyalty concern appears unfounded. Or maybe even 100% off. Because while I was focusing my attention (not surprisingly) on the attorney against whom the sanctions were sought, I briefly ignored the identity of the counsel who was seeking them. Who is (at least according to the list of counsel on appeal) is T. Hall Brehme. Who not only is also a graduate of the esteemed University of San Diego School of Law, but who is also a former student of mine. (And who, if I recall correctly, did quite a good job in my Professional Responsibility class.)

I'm always happy to see my former students on the sanctioning side of the equation rather than on the sanctioned side!

U.S. v. Zakharov (9th Cir. - Nov. 15, 2006)

I always like reading about case with a San Diego connection. Like this one. Which not only concerns an appeal from the Southern District of California, but which may well have also been about the "San Diego connection." To cocaine, that is.

Sure, the case is technically about a seizure of cocaine on the high seas; in particular, cocaine hat was found aboard the Belize-registered vessel Svesda Maru when it was 500 miles off the coast of southern Mexico, in international waters. And we're not talking about merely a tiny little bit of cocaine. We're talking about many, many kilos. As in 9200 kilos. One of the largest cocaine seizures in meritime history. Literally tons of cocaine.

I say "San Diego connection" because, yeah, the boat was captured in international waters, but where exactly did you think those 9200 kilos were likely going to end up? Mexico? Canada? Not likely. Almost assuredly the good old U.S. of A. Very potentially through San Diego, via TJ. And from there to Los Angeles, San Francisco, and beyond.

Actually, the case is (in part) all about this; in particular, whether there was a sufficient nexus between the coke seized in international waters off Mexico and the United States. But Judge Tallman agrees with the district court -- and I think he's right -- that there was indeed enough evidence that the cocaine was destined for the United States to support jurisdiction.

There was another interesting issue in the case as well; namely, whether the government violated Federal Rule of Criminal Procedure 5(a), which provides that “any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge.” After all, Zakharov was arrested without a warrant, and the government took 11 days to take him before a magistrate judge. That's more than a little delay, no?

But Judge Tallman holds -- again rightly -- that this delay wasn't unnecessary. Because that's simply how long it took the ship to travel the 1620 nautical miles from where in was seized, in southern Mexico, to the nearest federal magistrate judge (in San Diego). Sure, the U.S. could have taken him by helicopter or faxed over something or whatever. But they're not required to do so. Zakharov was immediately taken to the magistrate the very same day the ship arrived in the United States. That's good enough.

9200 kilograms of cocaine. Ingeniously stashed behind a fuel tank. Which took five-plus days of searching by successive seven-member Navy/Coast Guard boarding parties to find. Impressive on both sides of the criminal aisle in this one.

Wednesday, November 15, 2006

Fernandez-Ruiz v. Gonzales (9th Cir. - Nov. 15, 2006)

Whoops! I wrote a brief comment about this case earlier today that poked a tiny bit of fun of my former boss, at which point a very smart reader e-mailed me to mention -- in a very funny way -- that although Judge Reinhardt (who authored the opinion) voted with the majority in the en banc court (an opinion that I discuss here), the original panel opinion actually denied review. So while it's still interesting that Judge Reinhardt successfully cranks out a 23-page, single spaced opinion (and gets the rest of the panel to sign onto it) a mere three weeks after the en banc court remands the case to the panel -- pretty speedy, no? -- Judge Reinhardt was thereby supporting only one of his prior decisions, not two.

I still defend my claim that Judge Reinhardt's clerks are darn hardworking. I should add, however, that there's at least one other judge's chambers that's equally (if not more) dedicated to burning the midnight oil. And that's still working, and cranking out e-mails, at 11:24 at night.

Good job. Keep up the excellent work!

In Re Leni (Cal. Ct. App. - Nov. 15, 2006)

Justice Raye begins this opinion with the fairly harsh (albeit a bit subtle) phrase: "During the 17 years it took the Lenis to end their 25-year marriage, . . . ." Ouch.

Sure, Constance and Charles Leni got married in 1977, separated in 1985, got back together, filed for divorce (and separated again) in 1992, and then finally got formally divorced in 2003. During all of which time they were buying, selling, and living in various properties, all under various terms and conditions. Which sort of made the splitting of their assets a mess.

Still. That opening line is a tough one. Perhaps "tough but fair". But definitely tough.

That said, it did make me smile.

(Which only proves that, deep down, I'm a bad person. Very, very bad.)

Tuesday, November 14, 2006

U.S. v. Martinez-Martinez (9th Cir. - Nov. 14, 2006)

Wow. The Ninth Circuit doesn't waste much time before it invites judges to sit by designation, huh? Here's an opinion authored by Judge Larson, who sits on the district court in the Central District of California. And who was confirmed by the Senate only eight months ago!

Confirmed in March 2006 and already hearing cases in the Ninth Circuit in October 2006, with a published opinion the very next month. Talk about speedy.

P.S. - Full disclosure: I knew Steve ("Judge Larson") way back when he was in high school, as he debated for Damien High School (in La Verne, California) during the same period I debated for Lake Braddock High School (in Burke, Virginia). I wish I could tell you who won the debates we had against each other. Or what I know about Steve high school days. But I forget one and will refrain from revealing the other. You can guess which is which. :-)

Great job, Steve -- err, Judge Larson. Keep up the good work!

People v. Mesa (Cal. Ct. App. - Nov. 14, 2006)

I really like Justice Johnson's concurrence in this case. You don't read many of them -- from any judge or justice -- that begin like this, either in style or in substance:

"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s
failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."

I like it. A lot.

Both the majority opinion (by Justice Perluss) and the concurrence are well, well worth the read.

Monday, November 13, 2006

Law Offices of David A. Boone v. Derham-Burk (9th Cir. - Nov. 13, 2006)

This opinion by Judge (William) Fletcher is about presumptive attorney fee awards in bankruptcy cases. I'm not a bankruptcy person, so I didn't really know how this stuff worked. Hence it was marginally interesting reading on a Monday morning; sort of a glimpse into a different world.

My only comment was about footnote 1. The case revolved around a tiny, tiny, tiny dispute; namely, whether the attorney (David Boone) should have been paid an extra $1,248 in fees. You might think: "I can't believe that someone would spend the time and money to appeal to both the BAP and the Ninth Circuit over such a tiny amount of money. That's utterly irrational." And you'd be right. But, hey, sometimes, when you feel that you've been unjustly deprived of something, it's worth it -- if only internally -- to stand up for the principle of the thing. Even if such conduct is technically irrational.

The reason I mention this is because it helps to explain footnote 1, in which Judge Fletcher mentions that although Boone filed diligently prosecuted his appeal, "Neither the United States trustee nor the Chapter 13 trustee filed briefs in this court or the BAP," noting further that "It would have been of great assistance to us and the BAP if such briefs had been filed." Because the dispute is only over $1,248.00, I can see why no briefs were filed on that side; after all, it would cost more to write them than it would to lose. Plus, even if you don't write them, you may still win (as, indeed, they eventually do, at least in part).

So I'm not really sure that's their fault. (Nor, I think, is Judge Fletcher saying that it is.) My only reaction was that I bet if Judge Fletcher had invited briefs, he'd have gotten them. My strong sense is that, acting pro bono, there'd be plenty of practitioners, law professors, and/or law students who'd be more than willing to write up some pretty good briefs in cases like these these, if only for the experience. Just ask, Willie. I'm sure you'd be surprised (and pleased) by the positive response.

Notwithstanding what many people may think, there are lots of nice lawyers out there willing to help.

Friday, November 10, 2006

In Re Manfer (Cal. Ct. App. - Nov. 9, 2006)

As a wise man once said, "Nothing is over until we decide it is." Which apparently includes a marriage. For, as Justice Ikola (rightly) holds here, once the spouses decide that it's over, it is indeed over. Even if no one else knows. The date of your separation is the date you actually separated, not the date upon which you revealed your separation to the world.

That's the moral -- indeed, holding -- of the sad story of Samuel and Maureen Manfer. Who had an argument one week after their 31st wedding anniversary, at which point Samuel promptly moved out of the house and Maureen concluded that the marriage was finally over. (It sounds like this did not come as a shock to either party, as Samuel had already leased a separate apartment prior to the argument.) However, even though all these events transpired in June 2004, Maureen and Samuel decided to "keep up appearances" until after the holidays (! -- remember, this is all the way back in June), principally so their three daughters wouldn't find out. So they went on trips together, continued to have social contacts, and the like. But didn't live together. And no sex.

So Maureen says the date of separation is June 2004. But Samuel says that the date of separation is March 2005, the date upon which they revealed their separation to the world. (The fight, of course, is all about money, since after the date of separation, the money a spouse earns is his and her own.)

The trial court agrees with Samuel, but Justice Ikola agrees with Maureen, and reverses. Once you decide it's over, and in fact separate, it doesn't matter who you tell. Or who you don't tell. It's over.

Wednesday, November 08, 2006

Renderos v. Ryan (9th Cir. - Nov. 8, 2006)

I'm hesitant to help out child molesters. That said, when you read a hundred of cases like this, you can come up with a very simple piece of advice:

When someone you molested calls you up on the telephone to discuss the years-ago molestation, don't admit it. Don't talk about it. And definitely don't say, as Renderos does here, "You were the one asking for it."

Why not? Because, you dummy, the cops are obviously listening. And the tape recording ain't gonna play well in front of the jury at your trial.

How "not good"? How about 66 years in prison not good?

Yeah, that bad.

Lankford v. Arave (9th Cir. - Nov. 7, 2006)

Not suprising: A panel opinion in which Judges Reinhardt and Fletcher vote to reverse in a death penalty case. Very surprising: When Judge Bybee not only does so as well; indeed, also writes the opinion as well as agrees that the conviction -- not merely the sentence -- should be reversed.

But it happens here.

This can only be viewed as Number 5.

Tuesday, November 07, 2006

People v. Dalerio (Cal. Ct. App. - Nov. 7, 2006)

Don't read this case. It's disturbing, and concerns the (alleged) kidnapping and attempted murder of a nine-year old girl. It includes the following two sentences: "The victim lay down on the ground and defendant started choking her. Before she lost consciousness, the victim urinated on herself." The recitation of what the little girl subsequently told others when they came across her after the attack literally made me shudder.

Rather than these cogent -- but extremely disturbing -- sentences, I much preferred this line by Justice Simons: "For five to ten minutes while the victim followed him, defendant appeared to be looking for the her neighbors." This is one of those rare cases where I'd rather read unintelligible typos than the actual facts.

Levi v. O'Connell (Cal. Ct. App. - Nov. 7, 2006)

With the shocking -- and I mean, shocking -- announcement that Britney Spears filed for divorce from Kevin Federline earlier today, I know that it's going to be an uphill battle to get anyone to read a judicial opinion today. There are magazines to buy: Us, National Enquirer, People, etc. Who has time for anything else? (Election? What election?)

Nonetheless, in a desperate effort to restrain the celebrity-hungry masses from feasting entirely upon Britney Spears drivel, I shall somewhat debase myself by talking about this case exclusively as regards two of the participants therein. Doctrine schoctrine. Any exciting gossip? Or weird people? Details, my friend. Give me the lurid, fascinating details.

Well, maybe there aren't weird individuals involved, but there are at least two interesting participants. The first is the substantive plaintiff, Levi Clancy. He's a 13-year old child. But not your typical 13-year old child. Boy, howdy. He's instead an "extremely gifted" child who started attending Santa Monica College when he was seven years old. Yes, you read right. Seven. (Which made me wonder: if you're a 22-year old student at SMC, and you look at the seat next to you and see a seven-year old child there who just kicked your a** on a quiz or something, don't you inevitably just say to yourself: "Man, I must totally suck.")

But that's neither here nor there. Anyway, Levi goes to college when he's seven, passes the California High School Proficiency exam when he's nine, and he starts attending UCLA when he's 13. So his mother, Leila J. Levi, files a lawsuit that says that California is responsible for paying Levi's tuition at UCLA because the state is obliged to provide a free public education to children. And equal protection, etc. etc.

Needless to say, Ms. Levi loses the lawsuit. Doesn't take a 13-year old genius to figure that one out. And Justice Cantil-Sakauye affirms.

The other interesting participant is the attorney for Ms. Levi, Richard D. Ackerman. He runs a one-person shop called "The Pro-Family Law Center" (the sworn enemy, I assume, of its counterpart, "The Anti-Family Law Center") out here in Temecula. Mr. Ackerman's a double graduate of Western State in Fullerton (both undergrad and for law school), and joined the Bar in 1994. His web site says: "The Pro-Family Law Center is headed by a governing board of conservative Christians with the goal of influencing American society and culture," and its "mission statement" declares that "The Pro-Family Law Center exists to promote and defend Judeo-Christian values through advocacy and litigation." And as long as Mr. Ackerman didn't charge Ms. Levi -- a single mother -- for the lawsuit (and I'd be appalled if the opposite were true), I'm very happy for his pro bono services. I like lawyers working for the public interest. Regardless of whether their version of the public interest is different, or even inconsistent, with mine.

The only (very marginal) shots that I'll get in on Mr. Ackerman are (1) his self-selected e-mail address ( -- I don't see that he's a "real" professor anywhere, and wouldn't personally select that address even if I was, and (2) his somewhat inflated (if perhaps not factually inaccurate) description of the cases upon which he's "worked" in the past; e.g., "Ackerman has defended the Pledge of Allegiance before the Ninth Circuit Court of Appeals and United States Supreme Court . . . . fought before the Supreme Court to prevent the spread of AIDS. . . . and has represented parties and friends of the court at the United States Supreme Court level (Lawrence v. Texas, Newdow v. U.S. Congress, ACLU v. Ashcroft, and others). I mean, yeah, I guess submitting an unsolicited amicus brief on behalf of your own group counts as "defending" these topics and "representing parties and friends of the court," but somehow, my sense is that you're trying to give off a different impression than that you simply puked out an amicus brief -- along with a thousand others -- that pretty much no one read. (There's some other really good and interesting stuff about Mr. Ackerman as well, but I'll leave that to a google search. Let's just say that he's a very interesting character in his own right.)

There are my two personalities for the day. Sure, neither of them are Britney Spears. But how many people are? (Thankfully.)

Monday, November 06, 2006

Macias v. County of Los Angeles (Cal. Ct. App. - Oct. 27, 2006)

It's been a fairly lazy November for the California judiciary thus far. Perhaps everyone's focused on the election; and, in some cases, on their own retention.

But that simply allows us to revisit the quality manner in which our government sometimes treats its citizens. Let's see, for example, what happens to Trinidad Macias at the hands of
Los Angeles County Sheriff’s Department in this case:

"At approximately 5:00 a.m. on August 28, 2002, Macias was praying the rosary as he sat on the toilet in his home in Pico Rivera, California. Macias, then a 60-year-old retired college professor, has 90 percent hearing loss in both ears and was not wearing his hearing aid at the time. He was dressed in only a t-shirt, with no clothing below the waist.

Macias felt a rumbling sensation under his feet that felt like an earthquake, and then three deputies wearing combat-type clothing burst into the bathroom with their guns drawn. Macias pointed to his ears to try to indicate that he was deaf.

The deputies pulled Macias off the toilet, threw him to the floor, and dragged him outside, striking his shoulder against the wall in the process. Once outside, he was guarded by another deputy. Macias was forced to stand in his driveway wearing nothing but a t-shirt, with his genitals exposed, under guard and unable to reenter his house to get more clothing or his hearing aid, for roughly one hour. It took the deputies only about four minutes, however, to determine that there were no safety threats within Macias’ home. Because of Macias’ sparse clothing, it was immediately apparent that Macias himself was not a safety threat."

Why drag a half-naked 60-year old man praying the rosary on his toilet into the street at gunpoint and display him in public for more than an hour? Because "[a] confidential informant had told [police] that Steve Hernandez, a reputed member of the Pico Nuevo street gang, lived
in the garage at Macias’ home [and] [a]ccording to the informant, [] sold methamphetamines from Macias’ garage without Macias’ knowledge and also stored weapons either in the garage or under the house."


Not that it matters, but they found neither drugs nor guns in the house. But, hey, that rosary could easily have been used as a weapon.

Friday, November 03, 2006

Freytag v. Ayers (9th Cir. - Nov. 3, 2006)

Sure, you can petition for rehearing or rehearing en banc. And you might even have a point; in many cases, the opinion may well be weak -- or even flatly inaccurate -- in places.

But even in such cases, will you chage the panel's mind? Not likely. You'll instead get an amendment like the one in this case, in which Judge Reinhardt amends his opinion, inter alia, as follows:

"The opinion filed September 13, 2006, slip op. 11183, and appearing at 463 F.3d 838 (9th Cir. 2006), is hereby amended as follows: 1. At slip op. at 11205, line 4: insert “sufficiently” after “failed to invoke”."

What a victory!

Thursday, November 02, 2006

County of Los Angeles v. Harco Nat. Ins. Co. (Cal. Ct. App. - Nov. 2, 2006)

On March 13, 2004, Harco National Insurance Company posts a $1,000,000 bond for the release of Armin Vossooghi, who'd been charged with robbery and battery. At which point Vossooghi skips. Appropriately enough, bail is forfeited on April Fool's Day, 2004.

On September 20, 2004, Harco files a motion to extend the 185-day time period in which to surrender Vossooghi, but that motion is denied on October 21, 2004. Summary judgment on the bond was then entered December 7, 2004. Appropriately enough again. A day that will live in infamy.

Meanwhile, however, on November 24, 2004 (the day before Turkey Day!) Vossooghi was arrested in Florida and held for extradition in California. So on May 20, 2005, Harco files a motion to vacate forfeiture, set aside summary judgment, and exonerate bail (i.e., "Give me back the million bucks!").

But even though Vossooghi was arrested in November, and summary judgment on the bond entered in the following December, Harco's counsel never filed an appeal of that judgment.


Sorry. Your request to return the $1,000,000 is untimely. You should have filed an appeal.

So Los Angeles says: "Thanks for the million dollars. We'll put it to good use. I promise. Oh, yeah. One more thing. Thanks for costs on appeal as well." Affirmed.

In Re D.D. (Cal. Ct. App. - Nov. 2, 2006)

Here's a single sentence from this case:

"On June 24, 2005, officers executed a search warrant at the home of the maternal grandparents, who were not present, and found rock cocaine, marijuana, pipes, and scales."

Which made me think: "Wow. Just like my grandparent's house!"

(Just kidding, Nana.)

People v. Dominguez (Cal. Supreme Ct. - Nov. 2, 2006)


Here's the entire text of the California Supreme Court's most recent modification to an opinion:

"The majority opinion is modified as follows.

The final sentence of the first paragraph on page 1162, which reads 'This issue was not raised in the Court of Appeal and is thus not properly raised in this court. (People v. Randle (2005) 35 Cal.4th 987, 1001.)' is deleted.

The phrase 'Assuming the issue was properly before us' in the first sentence of the second paragraph on page 1162 is deleted, so the sentence reads: 'We find no prejudicial error.'

This modification does not affect the judgment."

Or they could have said: "I guess we should have paid more attention the first time. But who cares. You're still gonna lose."

Wednesday, November 01, 2006

Pinard v. Clatskanie School Dist. 6J (9th Cir. - Oct. 30, 2006) (Part II)

I noticed this when I first read the opinion, but my earlier post was long enough already, so I left out this part of the case. Nonetheless, since multiple loyal readers sent me an e-mail about it, I thought I'd add one additional comment about the opinion. Especially since the Ninth Circuit and California Court of Appeal decided to start out November with a whimper (rather than a bang), with the former publishing nothing except an order that made typographical changes in a single previous opinion and the latter publishing only in relatively snoozerific cases.

The thing that caught my (and other reader's attention) in this opinion was its use of the phrase "f**king pu**y". Mind you, as you certainly understand, these were words that were used by Judge Fisher only in the context of quoting someone else. Still, he used 'em.

The question then arose: How often have published cases employed such a phrase?

The answer: Not many.

I was able to find 25 cases that iterated such language. As you might imagine, the phrase is employed throughout the United States, with one case each from woodsy Oregon, student-friendly Massachusetts, far-flung Hawaii, and even ordinarily mild-mannered Kansas. Moreover, not surprisingly, there are three cases that employ this phrase from New York City, and another from the Eastern District of New York. Chicago gets its licks in as well, with three cases from the Northern District of Illinois (and one from the Central District of Illinois -- a Chicago wannabe, no doubt). Pennsylvania also as three cases; I guess those steel mills often hear rough and tumble language such as this.

California, of course, largely leads the way, with a near-record four cases that employ this phrase. But -- and this came as a fairly large surprise to me -- the number one state whose judicial opinions use such language is . . . . drum roll, please . . . . Ohio. Ohio?! Wow.

Some might argue that it makes sense that the state that leads the way in producing Presidents of the United States would also lead the way in employing this particular vulgarity.