Thursday, May 31, 2007

People v. Richardson (Cal. Ct. App. - May 30, 2007)

Don't send sexually explicit IMs to thirteen- and fourteen-year old girls. Even if they seem like they're into it. And especially if they don't. Otherwise, several years in prison awaits.

As Michael Richardson discovers here.

P.S. - One more thing, on this last day of May. I appreciate the effort, Ninth Circuit and California Court of Appeal. But slow down, my friends. Or at least spread the stuff out. You guys have published more than fifty opinions in the last three days. Even for someone like me, that's a lot of reading. Pace yourself.

People v. Kinney (Cal. Ct. App. - May 31, 2007)

This case might make a good student law review article.

Defendant exercises his right to represent himself at his first criminal trial and makes various statements during closing argument that, let's say, are less than well-advised (e.g., are incriminating). Assume that first trial ends in a mistrial -- or, as here, the conviction is reversed on appeal. During the retrial, the prosecution wants to introduce into evidence defendant's statements during closing argument in the first trial.

Permissible? Or a violation of (or impermissible burden upon) the guy's right to represent himself?

For comparison's sake, the United States Supreme Court held in Simmons that a defendant's incriminating statements in support of a motion to suppress on Fourth Amendment grounds (e.g., an admission that he owned the suitcase in which the drugs were found) weren't admissible at trial, holding that it's "intolerable that one constitutional right should have to be surrendered in order to assert another.”

What do you think? Justice Morrison thinks -- indeed, holds -- that it's permissible to introduce the closing argument into evidence. No constitutional violation. And writes a decent defense of that position.


On a (much) less intellectual level, if you're wondering what the street price of methamphetamine is in Placer County -- perhaps you're comparision shopping amongst dealers -- Justice Morrison's got that for you as well: "[T]he market rate for methamphetamine in Placer County was a fifth of a gram for $20; .875 of a gram (a “half-teener”) for $40 to $50; a sixteenth or 1.75 grams for $80 to $100; an eight-ball, 3.5 grams for $140 to $150; a fourth of an ounce, 7 grams, for $240 to 250; a half-ounce, 14 grams, for $300 to $400; and an ounce, 28 grams, for $600 to $ 800. The price depended on the quantity available and quality."

Thanks for that, Fred.

U.S. v. Kayser (9th Cir. - May 31, 2007)

At the risk of being a pest, I'm going to point it out again.

Seven days ago, Judge Trott issued this opinion for the en banc court in which he wrote: "The principle problem with the government's defense is that . . . ." Which was an error obvious even to a grammar idiot such as myself. Even though it apparently escaped the attention of the entire en banc panel. So I promptly posted about it here, assuming that this would successfully enlighten the universe regarding the difference between "principle" and "principal".

Not so, apparently. Today, Judge Ikuta issued this opinion. In which, on the third page of the opinion, she writes: "This theory was supported by two principle pieces of evidence."

I ain't no genius. I don't even spell so good. But come on. If even I can know this rule, so can everyone else. (Especially Judge Ikuta, who's extremely bright.)

So there. I'm sure this post will finally do the trick. Or, more plausibly, that the Ninth Circuit can at least make it past a week before making the same basic mistake again.

Garcia-Jimenez v. Gonzales (9th Cir. - May 30, 2007)


Judge Silverman authors an opinion on January 3, 2007 that's (allegedly) so simple that it doesn't even require oral argument, and that unanimously upholds the deportation of Garcia-Jimenez.

Nothing strange there. Happens every day.

Garcia-Jimenez petitions for rehearing (and en banc review). No one calls for an en banc vote. Par for the course on both counts.

But Judge Pregerson, who originally joined the panel opinion, now changes his mind and dissents. And his dissent appears to be based on the exact same arguments that Garcia-Jimenez made in his original briefs, and that the panel (including Judge Pregerson) originally rejected.

There's no explanation in the dissent -- or at least nothing that I recall -- as to why exactly Judge Pregerson changed his mind. Or exactly what went down here that resulted in Judge Pregerson's dissent from an opinion with which he originally (at least apparently) agreed.


Wednesday, May 30, 2007

U.S. v. Trimble (9th Cir. - May 30, 2007)

"The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904."

That's the first paragraph of Judge Berzon's opinion in this case. Which gives you a hint as to how the rest of it is going to read.

It's a tiny little matter, involving seventy-five whole dollars in fines that Trimble had to pay for various traffic tickets but that others did not -- basically all because the U.S. had two different forms, old ones (that were still being used) that didn't refer to the additional $25/ticket fine and new ones that did. The panel decides that's an equal protection violation, even under rational basis review, and that result seems plausible (though I can imagine other defenses that the panel doesn't discuss).

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can't just save some money by confessing error and refunding the piddly seventy-five bucks?

Ministry of Defense of Iran v. Cubic Defense Systems (9th Cir. - May 30, 2007)

It's not every day you see the Ministry of Defense of Iran (technically, "The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran, as successor in interest to the Ministry of War of the Government of Iran") as the plaintiff-appellant in a Ninth Circuit appeal. But it happens here.

It's a complex matter, both procedurally and substantively. Basically, in 1990, Iran assassinated Dr. Cyrus Elahi in Paris, and his brother subsequently got a default judgment against Iran in federal district court in D.C. for $311.7 million. Then, of course, came the tough part: collecting. The brother did a variety of things, and got some money from the U.S. government, but then -- and this is what gave rise to the appeal -- sought to attach a $2.8 million judgment that Iran had obtained in the ICC against Cubic (for, not surprisingly, refusing to deliver weapons to the new government after the Iranian revolution).

I'll spare you the complicated procedural history (including a trip up to the Supremes), though it's actually an interesting case. In the end, Judge Betty Fletcher decides that the attachment was valid under section 201 of the Terrorism Risk Insurance Act of 2002, and Judge Fisher dissents.

Not your usual, run-of-the-mill appeal.

P.S. - How'd you like to go around and tell your friends "Guess who I represented today? The Ministry of Defense of Iran." Not many attorneys can (truthfully) say that. But Anthony J. Van Patten and Mina Almassi (whose last name is misspelled by the Ninth Circuit as "Amassi") have precisely such a client.

Which kicks my butt. The largest foreign government I ever represented was Gabon. Though, in my defense, unlike here, I won. That said, the Gabonese Republic is perhaps a tiny bit more sympathetic than the Ministry of Defense of Iran.

Tuesday, May 29, 2007

Urzua v. Gonzales (9th Cir. - May 29, 2007)

Sometimes it doesn't pay to be a truthful person.

Take Neftali Urzua Covarrubias, for example. He wants to stay in the United States. Here's his scoop: "There is no dispute that Urzua has met the requirements of continuous presence and extreme hardship to himself and to his son. Urzua has been in the United States for almost eighteen years. During this time, Urzua has worked for the same employer and has paid taxes. He learned English and is active in his church and in his community. He and his brother own a house together. Urzua coaches a children’s soccer team, and he is very close to his extensive family residing in California, including four siblings, aunts, uncles, nieces, nephews, and
cousins. Urzua also plays an important role in the life of his elevenyear-old U.S.-born citizen son whom he supports emotionally and financially. Although his son does not live with him, Urzua spends part of nearly every day with his son, provides him with medical insurance, and pays child support."

The problem, however, is that when Neftali was asked about his brother at the immigration hearing, Neftali volunteered that he had paid $1200 to help get his brother over the border. Oops! As the youngsters say nowadays, "TMI". As the immigration judge said below: "“I do believe that [Urzua] is statutorily ineligible to establish good moral character because of having helped his brother enter the United States illegally. I think part of the problem is that he, [Urzua], is such a[n] honest person, that he just volunteered a little too much information.”

Judge Tallman affirms. Judge Pregerson dissents.

All the guy had to do was lie and I'm sure they'd have never found out about helping out his brother. We tell our children that the truth will set you free. Not here. Unless by "free" we mean "deported".

Friday, May 25, 2007

Blue Cross v. Rubin (9th Cir. - May 25, 2007)

Ever see a published opinion in which the opinion itself is less than 5 pages but the caption is almost three times as large? Now you have.

P.S. - Can't we eliminate at least two pages, since pages 6225 and 6226 of the caption are nearly blank? The trees would thank us, I'm sure.

U.S. v. Curtin (9th Cir. - May 24, 2007)

Fifteen informed, incredibly well-educated judges, each of whom reads -- and the majority of whom sign onto -- the majority en banc opinion. At least fifteen incredibly educated clerks as well.

Yet, the very first sentence of the paragraph on page 6158 reads: "The principle problem with the government's defense is that . . . ."

Principle vs. principal. When even I can spot a grammar error, you know it's pretty obvious.

The eighth sign of the apocalypse.

Thursday, May 24, 2007

Rotolo v. San Jose Sports & Ent. (Cal. Ct. App. - May 24, 2007)

I agree with the majority opinion (written by Justice Bamattre-Manoukian) in this one. It's tragic that the 17-year old plaintiff went into cardiac arrest and died while playing ice hockey at Logitech Ice in San Jose. It is even more tragic, and sad, that there was at least one automatic external defibrillator (AED) on the wall near the penalty box, but that no one knew that the AED was there, and as a result, it wasn't used on the plaintiff. It might well have saved his life.

But there's an express California law that governs AEDs, and you can't (typically) be liable for having or not having an AED. And I agree with the majority that, yes, it would have been infinitely better for the facility to let participants know about the existence of the AED (e.g., post larger signs, give handouts, etc.) and to have a more concrete plan about what to do in the event they're needed. And maybe, even, that part of the AED law should be changed to require things like this. But I'm persuaded that that's not currently the law (statutory or common), and hence that summary judgment was properly granted to the defendant.

Justice McAdams writes a brief dissent, but I find the majority opinion more persuasive on this one. Even though reasonable minds could definitely disagree.

People v. Lancaster (Cal. Supreme Ct. - May 24, 2007)

Read the first eight pages of this opinion. Then see if you agree with me as regards the following maxim:

When you're clearly guilty of murder, put on no evidence at the guilt phase, and have prior convictions for both the forcible rape of a 9-year old girl as well as a home invasion robbery, don't repeatedly make (and get caught with) shanks and jail-made handcuff keys in your cell while you're awaiting trial. Because the jury at the penalty phase will hear about that stuff. And sentence you to death. And the California Supreme Court will unanimously affirm.

Oh, also. Don't testify at the penalty phase if this is what you're going to say: "Defendant testified, accusing the witnesses against him of lying. He did not trust attorneys or psychiatrists. He said he would not ask the jury to spare his life because only God can give life. Defendant disparaged Dr. Romanoff’s testimony, telling the jury, 'this antisocial syndrome bull stuff, don’t fall for that.'"

That ain't gonna help either.

U.S. v. Orman (9th Cir. - May 22, 2007)

Orman: "Do you find Chief Orman attractive?"
Jack: "You're a striking figure, yes."

Orman: "Do you like South Pacific?"
Jack: "Doesn't everybody?"
Miyagi: "Oh, everybody."

Orman: "Can they really bust me if I stuff a gun into my boot before entering the Paradise Valley Mall in Phoenix and am a convicted felon?"

Ninth Circuit: "Yes."

Wednesday, May 23, 2007

Powell v. Kleinman (Cal. Ct. App. - May 23, 2007)

Who says the Court of Appeal doesn't -- at least occasionally -- dig deep, immerse itself in the facts, and issue detailed and very specific rulings based upon a heafty analysis of the facts?

Sure, it doesn't happen all the time. But it happens here. I very much enjoyed Justice Gomes's analytical evaluation of the evidence here, which seems entirely correct to me. Some of the expert declaration was admissible, and some of it wasn't. I'm persuaded.

Maybe there's a little bit too much introductory stuff at the outset of the opinion; e.g., lengthy discussions of the most basic evidentiary and procedural principles. But that's what naturally happens (albeit sadly) when opinions are derived directly from bench memoranda.

Still, on the merits, some excellent heavy lifting. Great job.

People v. Oropeza (Cal. Ct. App. - May 23, 2007)

Don't cut someone off on the 805.

Oh, also: Don't shoot someone just because they cut you off on the 805. Or you may, as here, get 80 years to life.

Baker v. Exxon Mobile (9th Cir. - May 23, 2007)

I like it when an opinion is somewhat entertaining. But, sometimes, the judge/clerk is simply trying way too hard.

Like this nautically-themed dissent by Judge Kozinski from the denial of a petition for rehearing en banc.

Tuesday, May 22, 2007

In Re Sandra Lawrence (Cal. Ct. App. - May 22, 2007)

Fourth time's a charm.

Davis wins rounds one and two. Schwarzenegger wins rounds three. But loses round four.

So Sandra Lawrence gets out of prison. Unless the California Supreme Court intercedes.

Interesting facts. And an interesting dispute between the majority and the dissent. You can definitely see where both sides are coming from on this one.

Eight Unnamed Physicians v. Medical Exec. Comm. (Cal. Ct. App. - May 22, 2007)

I got a late start reading opinions today. Sometimes the fact that I have a real job (okay, make that "real job") gets in the way, sadly.

But even the first, tiny little amended opinion I read today made me smile. For example, when Justice Marchiano says: "The first full sentence on page 13 is modified to read: Moreover, cost conscious, creative lawyers with today’s technology and law firm resources should be able to economize in a manner that does not jeopardize an adequate defense." All I could think of was that this sentence would be equally valid were it to read: "Moreover, creative lawyers with today's technology and law firm resources should easily be able to pad their bills in a manner that does not substantially advance the defense."

Monday, May 21, 2007

People v. Superior Court/Decker (Cal. Supreme Ct. - May 21, 2007)

I know that some of our youngest readers are starting to study for the bar exam this week.

Maybe this will help.

It's a good review of the elements of solicitation and attempt; in particular, as applied to attempted murder. It's not that long, and it's got a dissent, so you can see the various arguments that a person might make one way or the other.

But, according to the majority, what does it take for an "attempt"? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you've got an attempt.

P.S. - Don't call Russell Wafer at the Lock, Stock & Barrel in Temple city if you want your sister whacked. Because that "John" dude he'll set you up with is actually a cop.

P.P.S. - That last part probably won't be on the Bar.

People v. Cervantes (Cal. Ct. App. - May 16, 2007)

Wilfredo Cervantes wants to appeal his drug conviction. But the court reporters says that due to a "technical malfunction" (really?!), she can't prepare a transcript of the evidence at trial. The trial court recalls nothing about the case. The appellate counsel for Cervantes weren't trial counsel, so don't know what went on there either. So what to do?

The prosecutor says "Here's what the evidence was . . . ." and prepares a draft settled statement. Appellate counsel for Cervantes make some minor changes, and the trial court then approves the statement.

Justice Gilbert says "Wait a minute. I think not." He does the tiniest bit of digging and discovers that the trial counsel for defendant (Mark Stein), while no longer with the PD's office, is still a member of the Bar. So wisely, in my view, vacates and remands to see if the parties can get Stein's input on the settled statement. And also says that, if they can't, that Cervantes gets a new trial. Yeah, that's a pain, but it happens incredibly rarely, and it's better to retry than to deprive someone of an appeal because the state/court reporter screwed up.

A very short opinion; only five doubled-spaced pages. Eminently reasonable. My only objection is that the last sentence ends with two periods. :-)

Friday, May 18, 2007

U.S. v. Smiskin (9th Cir. - May 18, 2007)

I assume this means that members of the Yakima tribe don't have to pay stop at highway toll booths either.

Orkin v. Taylor (9th Cir. - May 18, 2007)

Elizabeth Taylor gets to keep Van Gogh's painting Vue de l’Asile et de la Chapelle de Saint-Rémy. Because the
Holocaust Victims Redress Act, according to Judge Thomas, doesn't create a private right of action (which seems pretty right) and the plaintiffs' state law claims are time-barred (ditto).

Art law. Not something you typically read about on a lazy Friday.

Thursday, May 17, 2007

CHP v. Superior Court (Cal. Ct. App. - May 17, 2007)

Plain language means something. To real people. As here.

As a result, over the California Highway Patrol's strenuous objection, police officers are now entitled to write "fix-it" tickets for, inter alia, motorcyclists who fail to wear helmets. For which there's no real penalty at all; you just eventually pick up a helmet, ride to the police department, get them to sign off on the fact that you are now wearing one, and boom, the citation goes away. At which point you probably promptly take off the helmet -- hopefully after turning the corner from the police station -- and ride on home.

Mind you, there are some caveats. Which should at least calm the CHP down. Justice Rushing says that the police officer doesn't have to write a fix-it ticket, and notes that the danger to the motorcyclist from continuing not to wear a helmet would justify an officer from writing a regular citation rather than a fix-it ticket. Plus, if the police officer happens to know that the particular person they stopped makes it a habit not to wear a helmet, that's another permissible justification for not writing a fix-it ticket.

But if you get stopped by a hog-loving, helmet-hating officer in California, s/he can now write you a fix-it ticket if s/he wants. So look good. Be respectful. Flirt a little. And see how it goes.

People v. Leonard (Cal. Supreme Ct. - May 17, 2007)

Imagine that you're a parent. You have a son with brain damage, who has an IQ of 78. He has repeated epileptic seizures, and can neither work nor drive. He doesn't have enough money to eat, and shoplifts foodstuffs from convenience stores and pizza parlors to eat. He doesn't appear to be at all violent; just mentally disabled, and very troubled.

And then, one day, he comes in and tells you that he took a gun from your house and shot six individuals dead in cold blood -- three in a Quik Stop convenience store and, on another occasion, three more at a Round Table Pizza. The police perform ballistics tests on your gun and discover that it was indeed the weapon used in the killings. Your son is then sentenced to death.

A nightmare, to be sure. For the parents of the victims as well.

Needless to say, the California Supreme Court unanimously affirms the conviction and death sentence.

P.S. - Just one random snippet of the stuff that the defendant did during his trial: "On September 13, 1994, the trial court was considering a defense motion to exclude the media from the hearing on defendant’s motion for change of venue, when this exchange occurred: The Court: "Let’s take a short break. [¶] Defendant has his finger up.” Defendant: “I am guilty.”" Not exactly stuff you want your client to volunteer if you're his defense counsel. Especially since they can (and do) use the statement against him at trial.

Wednesday, May 16, 2007

Acosta v. Kerrigan (Cal. Ct. App. - May 16, 2007)

The central issue in this appeal is whether the trial court or arbitrator is the one who should decide whether (and the extent to which) attorney's fees are contractually recoverable for prevailing on a petition to compel arbitration. Interesting, and important.

But even more interesting is the interchange between the majority and the dissent. Here's what Justice Johnson says in holding that the trial court, rather than the arbitrator, should decide the issue:

"Our interpretation of this attorney fee provision, in the absence of any extrinsic evidence, is subject to our de novo review. But that turns out to be no easy task. This case proves contracting parties as well as the Legislature can hand the courts a conundrum in which two contradictory interpretations are equally plausible. By only the slimmest of margins we have elected to adopt the construction advocated in this majority opinion, while recognizing the position taken in the dissenting opinion is perfectly reasonable, too."

Talk about modesty. Which is something that's nice to see. Meanwhile, here's how Justice Zelon opens her dissent: "While I concur . . . that the issue presented by this case is extremely close, I cannot conclude that this is a matter for the trial court, rather than the arbitrator."

Feel the love. Share the love. Be the love.

People v. Pereira (Cal. Ct. App. - May 15, 2007)

You've got to have probable cause or a warrant before you rip open a teddy bear. Even if the teddy bear is mailed using a fake name and return address. And even if the teddy bear subsequently turns out to contain a half-pound of marijuana.

That's the law, at least now, here in California. And in the Seventh Circuit. Though it's not the law in the Northern District of New York.

Teddy bears throughout the Golden State rejoice.

Tuesday, May 15, 2007

Vasquez v. Los Angeles County (9th Cir. - May 15, 2007)

Seems right to me.

Los Angeles County redesigns its county seal to update it (e.g., to remove oil derricks) and, to (inter alia) avoid potential litigation, removes a cross symbol. Ernesto Vasquez sues, claiming that the redesign violates the Establishment Clause because it "convey[s] a state-sponsored message of hostility towards Christians."

Judge Clifton concludes that Vasquez has standing to sue (which isn't crystal clear, but I agree), that the case isn't moot just because the redesign also included an allegedly "Christian" picture of the Mission San Gabriel (which seems totally right), and that, on the merits, Vasquez loses (yep). It doesn't constitute a violation of the Establishment Clause to remove a cross from your state symbol. That's simply not a "state-sponsored message of hostility" towards a particular religion.

Fair Housing Council v. (9th Cir. - May 15, 2007)

You know you've got an interesting opinion when each judge on the panel feels the need to write separately.

You probably know about, allows individuals to both post and search for potential roommates. Under the Fair Housing Act, one can't publicize various preferences (e.g., "Whites Only", "Men Only"), and publishers are liable if they do. The question here is whether the Communications Decency Act immunizes from publicizing the discriminatory preferences of its posters.

Judge Kozinski writes the majority opinion, and holds therein that might be liable under the FHA for various drop-down menus and other devices it invented that permit users to specify discriminatory preferences (e.g., "I will live with children" or "I will not live with children"), but isn't liable for the "additional comments" section, which is often used to specify additional discriminatory preferences. Judge Reinhardt concurs with the first part but dissents from the second, while Judge Ikuta concurs in both holdings but does not agree with Judge Kozinski's discussion in Part II (including, inter alia, a hypothetical discussion regarding whether a website would be immunized under the CDA).

So an interesting case, and on an interesting issue. Judges Kozinski and Reinhardt write well, as usual. So it's definitely an opinion worth reading.

Plus, as with any Judge Kozinski opinion, don't overlook the footnotes. Which often make one smile. I liked the first footnote, which amply demostrates the geeky -- but lovable -- nature of both Judge Kozinski and his clerks by translating Andy Warhol's aphorism into the modern era by saying that everyone in the computer age will eventually "enjoy a trillion or so nanoseconds of fame". Funny. (Plus, a tangential slam on bloggers.) Also, don't miss footnotes 10 and 11 (and the accompanying sentence in the text). You gotta love Alex.

Monday, May 14, 2007

Kronemeyer v. Internet Movie Data Base, Inc. (Cal. Ct. App. - May 14, 2007)

Imdb is a public forum. Guys who claim that they were executive producers on "My Big Fat Greek Wedding" but who aren't listed on the film's credits aren't likely to prevail on the merits when they bring a lawsuit for declaratory and injunctive relief against imdb to put them on the list. And instead get SLAPPed.

The only thing surprising about this case is that Preston Gates & Ellis (now K&L Gates) only recovered attorney's fees of $6,270 below. That's way tiny. I bet you they charged imdb more -- and entirely reasonably so. And that they'll also recover more fees than this from plaintiff for defending the appeal.

Or at least they should.

Davis v. O'Melveny & Myers (9th Cir. - May 14, 2007)

O'Melveny & Myers apparently can't prepare a valid arbitration agreement even for its own employees. The Ninth Circuit unanimously concludes that O'Melveny's arbitration agreement is procedurally unconscionable, contains four separate substantively unconscionable provisions, and isn't severable. Hence its employees -- including but not limited to paralegal Jacquelin Davis -- get to sue in court.

Too funny.

P.S. - How do you think it feels to be the young attorney at O'Melveny -- Adam KohSweeney -- who argued the case and who has to tell the partners that their own arbitration provision is invalid. I bet he's had better days.

U.S. v. Hoang (9th Cir. - May 14, 2007)

Don't ship your meth via FedEx. Or, if you do, don't try to mask it with coffee. They're, like, way onto that trick by now, dude. It'll only cause them to get the dog for a sniff.

Oh, yeah. Paying the FedEx fee in cash. Omitting telephone numbers for the sender and the recipient. Using a non-existent address for the shipper. All of these are telltale signs. They all prompt a dog to take a whiff. The cops aren't totally stupid, my friend. Criminals, by contrast . . . .

All of this is going to happen more frequently, by the way, now that Judge Wardlaw has squarely held that detaining a package doesn't consistitute a search so long as it can make its delivery date. Hence, if we can pull a dog in quickly, we can take a sniff, and if probable cause results therefrom, we can then take a peek. So when you ship drugs in the mail (or via FedEx), you should expect at least a drug-sniffing dog. Ditto, by the way, if you ship anything else. So be careful whenever you put anything odiferous in the mail.

Mind you, in footnote five, Judge Wardlaw drops a hint that the sender's contract with FedEx might be a good place to look for an argument that even temporary diversions might be impermissible. But no such argument is made here, so Hoang's out of luck. And, hence, in prison.

Friday, May 11, 2007

Gallarde v. INS (9th Cir. - May 11, 2007)

The statute seems pretty clear. It reads: "Any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces . . . on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States." So when Paulo Gallarde requested and received a discharge from the Navy (six months before his tour of duty was up) on the ground that he was an alien, it seems like he can't become a citizen. And so held Judge Burns (down here in San Diego).

The statute seems pretty unambiguous. Nonetheless, in the end, I agree with Judge Bea, who reverses Judge Burns and holds that the statute only applies to someone who avoids the draft. Judge Bea's opinion changed my mind; yes, the statute seems clear, but in context, and when the statutory provisions are read as a whole, the interpretation advanced by Judge Burns (and the government) would lead to absurdities, and isn't what I believe was intended by the statute.

It's a good example of context and structure and purpose trumping what would ordinarily be viewed as clear and unambiguous language. And I think that Judge Bea gets it right.

People v. Verdugo (S.B. App. Div. - April 17, 2007)

Rarely do decisions of the Appellate Division get published. And when, as here, they do, it usually takes a long time for them actually to be "published". But, as here, when they are, they're usually something special.

Those of us in California who have had the misfortune of being stopped by the police for a traffic violation will easily recall the typical opening mantra of the officer as s/he greets us at our vehicle's window: "Licence, registration, and proof of insurance, please." Which we dutifully turn over to the officer, as our failure to do so would, in everyone's mind, be an additional offense; e.g., for failure to present proof of insurance.

Except, as I have now discovered, it's not actually that way. A straightforward reading of the statute reveals, and as the Appellate Division holds, that you're only required to present proof of insurance after (and only if) you receive a ticket for another offense. Sure, once they hand you that other ticket, they can demand proof of insurance. But not until. So, for example, if they don't write you a ticket, or let you off with a warning, they technically can't demand proof of insurance. And, as here, if they do, and detain you in order to investigate your insurance status (or, presumably, just refuse to let you go while they write the ticket for failure to give proof of insurance), that's an unconstitutional seizure.

Who knew?! What's most interesting about this discovery -- to me, at least -- is that, upon reading the statute, it seems clearly right. And yet, notwithstanding that fact, everyone (including the police) assumes otherwise. Which just goes to show that just because a law is written that says X, everyone may still do Y -- thousands of times a day, for years -- until someone actually bothers to read and interpret the actual statute.

Mind you, I'm not sure that typical police practices will change anytime soon. They may well still approach vehicles with the mantra "License, registration, and proof of insurance" on the theory that they're merely "requesting" (rather than demanding) these documents, and almost assuredly, you're going to give them to them anyway -- if only to avoid hacking them off (and, among other things, thereby encourage them to write you a ticket for whatever offenses for which they originally stopped you).

Still, it's nice to know that, if you wanted, you could say "Nah, I'm not giving you proof of insurance until you write me a ticket. And I don't think you can. So there." Sort of gives you the illusion of power. Which is nice.

Thursday, May 10, 2007

Baxter v. Peterson (Cal. Ct. App. - May 8, 2007)

It's always a little bit interesting when a defendant gets found liable for fraud (and imposes punitive damages). It's a little more interesting when that defendant is an attorney. It's even more interesting when that attorney -- here, Gail Peterson -- is a prosecutor with the L.A. City Attorney's Office. Hence the interest in this case.

Ultimately, Justice Mosk reverses the award of punitive damages (on a somewhat dubious ground, in my opinion) and remands for a new trial on the fraud claim due to an erroneous jury instruction. Still, it's fun reading. Plus, you get to read a bit about Ms. Peterson's contemporary -- quite widespread -- real estate holdings.

Not bad on a City Attorney's salary.

Steven M. Garber & Assocs. v. Eskandarian (Cal. Ct. App. - May 10, 2007)

It's always fun when the other side repeatedly fails to respond -- either properly or at all -- to discovery. Or motions to compel. Or motions for terminating sanctions. Or when they fail to file a CCP 473 motion even after the trial judge essentially tells them that such a motion would be granted if they filed it.

You gotta love that stuff. Especially when you're suing the defendants for unpaid attorney's fees. Since it means you're going to win.

As attorney Steven M. Garber does here.

Congratulations, Steve.

Timothy J. v. Superior Court (Cal. Ct. App. - May 10, 2007)

I agree with Justice Blease that age alone -- apart from a "special" mental condition -- can easily make a child incompetent to stand trial; e.g., that a two-year old may be incompetent to stand trial even if she's a normal, healthy two-year old. So I think that Justice Blease is correct to remand both of these cases, where it seems like the lower court has required the showing of a special mental deficiency as a prerequisite to any claim of incompetency. Plus, I think that Justice Blease writes a really, really good opinion in this regard, and one that is extremely sophisticated and persuasive.

Still, I gotta tell you, I'm a little weirded out by the first of these cases (Dante H.'s). He's an 11-year old kid who (alongside some friends) broke some windows at the local elementary school and stole stuff from the gym. He gets A's and B's in school. He's got a three-digit, average I.Q. He answers each of the standard "competency to stand trial" questions exactly how you'd expect: Yeah, I know what the trial is, what not guilty is, yes I'll trust and rely upon my attorney, and parents, etc. Just a normal kid. But experts say that he's still incompetent to stand trial because he's a kid, and kids aren't really independent, defer to their parents, and lack a wide variety of analytical and sophisticated mental skills because (at least in part) their nerves haven't myelineated yet. In other words, because they're kids. Who often -- as any parent well knows -- both do stupid stuff and aren't the most sophisticated people in the universe. E.g., who answer, entirely truthfully, the question "Why'd you do that?" with the answer "I don't know."

Which seems fine. But it leaves me with two fundamental questions. First, is this really what "competence to stand trial" means? I always assumed it meant the ability to understand what's going on and to assist in your defense. Which I fully presume that Dante H. (and other normal 11-year olds) typically have. Sure, they may not be fully myelineated, or whatever, but it seems like we're talking about two different things here. Second, and relatedly, if Dante H. (and other 11-year olds) aren't competent, then I'm quite positive that lots and lots of criminal defendants aren't competent as well -- even though we routinely find otherwise. As anyone with extensive personal exposure in this area is fully aware, many defendants act (and think) precisely like 11-year olds. If that. Maybe they're not fully myelineated either. Or maybe they're just utterly immature and still not capable of performing complex analytical skills (e.g., rationally weighing costs, benefits, and consequences), even though they may well understand (like Dante H. does) what's doing on.

There's just a stark contrast between the type of evidence deemed potentially sufficient here and the type of evidence required for the identical issue in your typical (adult) criminal case. It's not that I disagree with any of the science or anything like that; I'm sure it's all true. And I'm sure that, at some level (e.g., with four-year olds), you'll need to virtually nothing else to prove to me that they're incompetent to stand trial than simply stand up and say "For Christ's sake, he's four!"

But normal 11-year olds seem a lot like many of the typical 18-year olds that we have in prison. So I wonder whether we're doing wrong by either excessively critiquing the competence of the former or, alternately, by not paying particular attention to the similar incompetence of the latter.

Wednesday, May 09, 2007

People v. Reyes (Cal. Ct. App. - May 9, 2007)

On the merits, I initially agreed with the majority opinion by Justice Woods in this case. Which involves an extremely disturbing rape. As well as an example of both the impact of a rape on the victim and why there is sometimes a delay in reporting the crime to authorities.

At the end of the opinion, I was more than happy that the guy got spanked for 47 years in prison. Entirely right. I'd have given him more if I could.

But, notwithstanding that sentiment, I think that Justice Johnson is right in dissent. Defendant -- entirely appropriately -- got the upper term, pre-Cunningham. Yes, as Justice Woods mentions, defendant had priors, and those could potentially have justified the selection of the upper term. But where, as here, it's crystal clear from the record that the trial court selected the upper term was because of the large violence and other things -- not the defendant's (relatively scant) prior record -- Justice Johnson persuades me that you can't affirm just because the defendant had priors. You've gotta remand.

Mind you, on remand, I'm sure that Reyes will still get 47 years. But the process is important. You can't short circuit it just because you want -- as I do -- Reyes to spend the rest of his life in prison. That'll happen. It just has to happen in the right, and meaningful, way.

Nichols v. Birdsell (9th Cir. - May 9, 2007)

Here's how Judge Wallace begins his opinion in this case: "This case presents a new issue for our court: whether debtors’ pre-bankruptcy application of their right to tax refunds to post-bankruptcy tax obligations constitutes an asset that must be turned over to the bankruptcy trustee pursuant to the Bankruptcy Code, 11 U.S.C. § 542."

Zzzzzzzzz. Boring. That ain't gonna encourage many non-bankruptcy people to read much further.

Here's how I'd have begun the thing: "This case presents a new issue for our court: whether a debtor who is entitled to a tax refund of thousands of dollars can instead leave that money with the IRS, file for bankruptcy seven days later, and then say 'Ha, ha. Gotcha. You can't touch that money or use it to pay off my debts. And I still get to use it to pay my future taxes. There's nothing you can do about it.' But, contrary to the debtor's apparent belief, we're not that stupid, nor is the circumvention of bankruptcy laws so facile. Debtors lose."

Upon reflection, if I were writing the thing, perhaps that'd not only be the start, but the whole opinion.

Tuesday, May 08, 2007

Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. - May 8, 2007)

Last month I noted that the Ninth Circuit had been certifying questions to state supreme courts like crazy, particularly in March and April. Oregon, Washington, and Nevada (twice), and I wondered both if the Ninth Circuit would keep up the pace as well as when the California Supreme Court would get in the act.

It did. Now. The month of May brings the California Supreme Court into the fold, with this opinion requesting certification regarding whether local ordinances regulating cell phone towers are preempted by the California Utilities Code.

Unlike the Ninth Circuit's certification to the California Supreme Court last year in Readylink, which I (gently) criticized, I think that the certification decision here is probably the right call. There's a case now pending in the California Supreme Court (Sprint Telephony) that raises a nearly identical issue to the one here. Might as well get the California Supreme Court's actual view rather than guessing at it. My only (slight) critique is that if the cases are really identical, it might be more efficient simply to defer submission of the present case -- and then decide it promptly after the California Supreme Court decides Sprint Telephony -- rather than go through the extra step of certifying. Sure, the latter is the more risk-adverse move, but I might nonetheless have cut out the extra step.

Still, good call. And glad to see California join the 2007 certification crew. Presumably, next up: finishing up the list with certification to Alaska, Arizona, Hawaii, Idaho, and Montana.

U.S. v. C.M. (9th Cir. - May 8, 2007)

The Ninth Circuit's been on a tear this week. They've issued more published opinions in the last two days than in the rest of the month combined. Glad to know we're getting our money's worth.

For a study in contrasts, both on the merits and as a matter of style, check out this opinion. Judge Ferguson writes the majority opinion, and the first several sentences provide an accurate tenor of the remainder:

"Title 18 U.S.C. § 5033 of the Juvenile Delinquency Act (“JDA”) prescribes the process due to a juvenile who isplaced in federal custody. The arresting officer must immediately advise the juvenile of his or her rights; immediately advise the juvenile’s parents, guardian, or custodian of the juvenile’s rights; comply with any request by the juvenile to speak with his or her parents or a parental surrogate; and bring the juvenile before a magistrate “forthwith.” None of these requirements were met in this case — C. M. was not advised of his rights until six hours after his arrest; neither his parents, nor any individual who could act in loco parentis, were notified of C. M.’s rights; C. M.’s repeated requests to speak with a representative of his consulate went unheeded; and C. M. was locked in a holding cell for nearly ten hours before being brought before a magistrate. We find that the government violated every requirement of 18 U.S.C. § 5033, and that these violations were not harmless."

Judge Callahan authors a dissent, the tenor of which may also accurately be discerned from the first several sentences:

"I question whether the government agents violated 18 U.S.C. § 5033 of the Juvenile Delinquency Act (“JDA”) in their processing of C.M. in as many ways as the majority states, but I agree with the majority’s implicit determination that the alleged violations did not rise to the level of a constitutional violation. See United States v. D.L., 453 F.3d 1115, 1125 (9th Cir. 2006). I disagree, however, with the majority’s determination that the alleged violations, were prejudicial and with its directions that the juvenile information must be dismissed."

Not too surprising. Still, a study in contrasts.

Monday, May 07, 2007

Dennis v. Experian Information Svcs (9th Cir. - May 7, 2007)

Judge Kozinski waxes poetic about the importance, but danger, of credit reporting services in this dissent. An interesting confluence.

The last sentence is also funny, in a crazy (but classic Kozinski) way. It argues for a liberal result -- stronger judicial regulation of the credit reporting industry -- with the typical conservative argument (focusing on an increase in price to consumers that results from regulation) by asserting that unless we regulate a little bit (e.g., here), Congress (e.g., liberals) will backlash and regulate even more, thereby driving up costs.

It's the "bad is good to stop more bad" argument well-known to us debate types. But rarely have I seen it in a judicial opinion. As I recall, the argument similarly went that a nuclear war would be good because it would forestall the development of doomsday weapons that would obliterate Earth.

Friday, May 04, 2007

U.S. v. Bibler (9th Cir. - May 4, 2007)

Don't know why. But the (real) name of this defendant -- Brooke Bibler -- made me think of the infamous Dirk Diggler. Maybe they're married.

That's it for this week. Have a wonderful weekend, all.

El Dorado Meat Co. v. Yosemite Meat & Locker Svc. (Cal. Ct. App. - May 4, 2007)

Want a case that allows you to justify -- or at least argue -- that virtually every single expense involved in document productions, internal personnel time, and expert witness fees are recoverable "costs" under CCP 1033.5? That, as here, would justify a "cost" award of around $200,000? Or even, on a more mundane and item-specific matter, says that document production copying costs of 19 cents per page is "not abnormally high" (and hence authorizes their recovery)?

Then here's your baby. I can assure you this one will be cited routinely by prevailing parties if it remains good law. And will be routinely abused.

Thursday, May 03, 2007

Fergus v. Songer (Cal. Ct. App. - May 3, 2007)

Judge Tangeman (up in San Luis Obispo) did the right thing, and granted a new trial on damages when the jury pretty clearly awarded attorney Clark Fergus a $1.2 million contingency fee even though they were expressly instructed that Fergus was only entitled to a reasonable (hourly) fee.

But while he was right on the merits (in my view), he was wrong on procedure, and issued his factual findings supporting the grant of a new trial 15 days after the verdict, rather than within 10 days. And, for entirely that reason, Fergus gets his $1.2 million fee award. So sayeth Justice Yegan.

Admittedly, Justice Yegan also gives Fergus a loss alongside his victory, as Justice Yegan compel Fergus to confronts continued causes of action for malpractice on remand. But Justice Yegan simultaneously caps the exposure to those claims at $1.2 million. So the worst that Fergus can do is a wash.

Interesting case. And ample reason for lawyers to remind judge that they not only have to do the required work (e.g., make findings), but also that they gotta do the work on time. Otherwise, as here, it's often all for naught.

Consider that the lesson of the day.

Canatella v. Van de Kamp (9th Cir. - May 3, 2007)

It's always neat when an opinion is both doctrinally as well as intellectually interesting. As is this one.

Doctrine first. It's a statute of limitations case regarding when a cause of action persists (and accrues) under Section 1983. For that reason, there's a large Erie component, and Judge Bybee does an excellent job parsing out the various areas in which federal law governs and in which, by contrast, the federal courts will follow California law. It's smart. It seems exactly right. And in an area that's hardly a cakewalk. The lawsuit's dismissed on statute of limitations grounds by the district court, and Judge Bybee rightly affirms. Good job.

Atmospherics second (though they assuredly relate to the merits). It's a case brought by a California lawyer, Richard A. Canatella. That is essentially all about precisely the link I just inserted. Cantanella's suing the State Bar of California over putting his disciplinary record, and a summary of the underlying offenses, online. He says that this violates his rights to privacy, due process, equal protection, green cheese, and a variety of other critical constitutional liberties. (You get a sense, by the way, of my view of the merits of this action.)

Why, you might ask, would Canatella be sufficiently excited about the matter to file such a suit? Listen to what the summary says (according to Judge Bybee) and you'll see why: "Canatella stipulated to filing numerous frivolous actions in courts in San Mateo, San Francisco, and Santa Clara county courts, as well as in the California Court of Appeal and federal district and appeals courts. . . . Sanctions were ordered against him or his clients 37 times. Courts repeatedly found him responsible for frivolous, meritless and vexatious actions. Sanctions totaled more than $18,000 in one matter, and the opposing parties were granted all fees and costs in another. In one case, a federal judge said, 'This complaint is a paradigm for "frivolous."' Wrote another federal jurist: 'Plaintiff’s repeated attempt to challenge the sanctions and judgments . . . in the face of clear authority that his claim is frivolous evidences his bad faith and wrongful purpose.'"

You'd probably freak out too if that's what they said about you. Mind you, Cantanella offers the following defense (?) of his conduct in his second amended complaint, and alleges that he was not actually sanctioned 37 times, but was instead "investigated" for 47 "purported sanction orders" over a nine year period and was sanctioned on at least 26 "separate" occasions by federal and state courts between 1989 and 1998. Once you hear that, by the way, do you think the judges have a pretty good sense regarding whether Cantanella's a particularly sympathetic figure? Or, perhaps, think -- shockingly -- that a person sanctioned this pervasively is precisely the type of person who would file the present action?

What's perhaps even more shocking about this lawsuit is not that Cantanella lost (as he should), but rather that he felt it a good idea to file the thing in the first place. Totally ignore transaction costs (and, in my view, the very real risk of being sanctioned yet again). What's he thinking he will accomplish? He ain't going to win; in my view, that's pretty clear. The only thing he's going to do is precisely what transpired: create a published opinion that disseminates still further his disciplinary record, and that ensures that the description of his stellar performance is forever enshrined in the Federal Reporter. That way anyone who does a search on Lexis and Westlaw gets to see the same stuff that he's trying to bury -- just in case they missed it in either a Google search or in the monthly disciplinary reports.

Great idea. Totally worked. Brilliant.

Admittedly, given his history, perhaps it's not too suprising to see Cantanella make a decision in civil litigation that some might view as, well, let's just say, less than rational. I'm quite certain it wasn't his first ill-considered move, nor will it likely be his last. Which any client who's thinking about hiring the guy might well be advised to seriously consider.

P.S. - This isn't the only Ninth Circuit appeal involving Cantanella. Read this post, which I published back in 2005, which related to Cantanella's continuing fights against the State Bar. Or the Ninth Circuit opinion back in 2002 (referred to in this case) involving Cantanella, the State Bar, and Younger abstention. Classy.

Wednesday, May 02, 2007

People v. Thomas (Cal. Ct. App. - May 2, 2007)

You can kill someone in Compton in 1981. You can flee the state, use false names, and evade prosecution for 25 years. All this is possible.

But when the authorites eventually find you in Cleveland, arrest you, extradite you to California for trial, and then convict you, what you can't do is to claim that it's a violation of due process to punish you for a murder you committed 25 years ago. Because, sure, it's been 25 years, and memories have perhaps faded. But it was your conduct in fleeing justice that caused the 25 year delay. Plus, at least here, you can't show prejudice as a result of the delay anyway.

You did it. You fled. You were convicted. Yes, it's justice delayed. But that's not the system's fault. It's yours. So it's not justice denied. Affirmed.

In Re Smith (Cal. Ct. App. - May 2, 2007)

It's already after noon, and there's only one published case today. This one. Which concerns a relatively esoteric (and somewhat fact-specific) issue regarding whether Ernest Smith has to serve five years of parole when he's already been in prison (at least constructively) for 32.75 years. On a 20-year sentence.

Justice Duffy holds that he doesn't. Essentially because 32.75 > 20 + 5. That's admittedly a simplification. But it captures the essence of the holding. And I'm pretty sure that her math is right.

As I read the opinion, I was impressed by how well and easily it flowed. Wholly apart from the merits, I just thought it was especially well-written. Only at the end was it revealed that it was an opinion by Justice Duffy. Which made sense. She got her A.B. in English Literature at Berkeley, after all.

Tuesday, May 01, 2007

People v. Prince (Cal. Supreme Ct. - April 30, 2007)

It's a lazy and surprisingly drizzly day here in ordinarily sunny San Diego. And, on the opinion front, all we have thus far is one published opinion from the Ninth Circuit and one from the California Court of Appeal. A good excuse to take off work early on this May Day, if you ask me.

Alternately, if you want to stay at work but merely pretend to be productive, you can read this case. Which tops out at a stunning 159 pages. And which will almost certainly put you in the mood to match the drab and depressing weather here in San Diego today.

It's a death penalty case. About Cleophus Prince, who killed a plethora of young, attractive women down here in San Diego in circumstances that can only be described as both chilling and immensely scary. He's the kind of predator whose mere existence has pervasive consequences for the feeling of safety and security to which every member of society is entitled. So to read what he did, and to recognize that there are surely others out there like him, doesn't exactly make one chipper.

So read the facts of his crimes -- which go on for a couple of dozen pages themselves -- only if you're in the mood to be depressed. Especially if you're a young woman in San Diego. The facts alone definitely have the potential to hit way too close to home.

On the merits, as you might imagine, the California Supreme Court unanimously affirms the convictions and sentence. Notwithstanding the fact (as revealed deep into the opinion, on page 154) that the prosecutor at the sentencing phase in the present case made an argument nearly identical to one that resulted in the reversal of a death sentence by the Illinois Supreme Court in 2001. But the California Supreme Court unanimously says that they agree with the dissent in that case. Which gives you a sense -- if you didn't have it already -- that the California Supreme Court is quite different than other state supreme courts, at least in (and, some might say, especially in) death penalty cases.

One more thing. The murders and other crimes were all back in 1990. It's now 2007 -- 17 years later. And only now are we even (mostly) done with his direct appeal. There's still the petition for certiorari, the state habeas proceedings, and the (potentially multiple) federal habeas rounds. 17 years and the process has, in essence, only just begun. Something with which no one, on either side of the aisle, should be happy.

159 pages. I slog through it so you don't have to. Happy May Day!