Friday, June 29, 2007

People v. Nguyen (Cal. Ct. App. - June 29, 2007)

Justice McAdams writes the majority opinion in this case. Justice Mihara dissents.

The majority opinion contains the following opening paragraph:

"The sole issue in this appeal is whether “the role of the jury [is] diminished and eroded in violation of the Sixth and Fourteenth Amendments to the United States Constitution” by the use of juvenile adjudications to increase the maximum punishment for an offense, in light of the United States Supreme Court’s opinions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296
(Blakely). In concluding that it is, we respectfully disagree with our colleagues on this court and others, and join the small but growing number of courts across the county that have likewise concluded that Apprendi and its progeny compel us to recognize that the Sixth Amendment right to a jury trial is an integral part of the process that is due before a prior conviction may be used to increase the maximum sentence for a criminal offense."

I've got no problem with such a position. Though I think a contrary claim is reasonable as well.

The only thing I want to add is that the opening paragraph might just as well conclude with the following:

"We recognize that our opinion ain't gonna last that long. The California Supreme Court will surely either depublish it or -- more likely -- grant review. But we think we've made the right call here. So, for whatever it's worth, and for however briefly it'll remain published, here's our view . . . ."

So read the (recently amended) opinion while you can.

Hansen Beverage Co. v. National Beverage Co. (9th Cir. - June 29, 2007)

Judge Canby had me going here. At least for a while.

It's a trademark case. Hansen makes the "Monster" energy drink. National introduced a new energy drink which it called "Freek," with a prominent picture of a monster on the can. The issue is whether Freek violates Monster's trade dress. The district court granted a preliminary injunction, finding substantial likelihood of confusion.

Judge Canby's opinion is nice and tight. It starts out by addressing -- quickly, and, I thought, fairly accurately -- a couple of procedural issues; e.g., issue preclusion. So far so good. Then it concludes that, on the merits, the district court erred. It says that "Monster" and "Freek" are not really the same, which makes sense. It says that the aggressive coloring of Freek should not really matter, which I think is right. It points out some other relevant differences between the cans. All of this seemed fairly persuasive, albeit a bit perfunctory.

But then, on the last couple of pages, the opinion goes from being fairly tight to being conclusory and unsupported. The district court discusses lots of factors that allegedly indicate likelihood of confusion to which Judge Canby simply responds that these factors "could apply to any number of competitors in the energy drink market." Maybe. But that doesn't make them irrelevant or untrue; e.g., the fact that Monster's marks are arbitrary (and hence entitled to a greater degree of protection), the fact that the goods are inexpensive and hence that customers are likely not to devote a great deal of care to their selection, and (significantly) the fact that there is evidence of actual confusion. At this point, it seemed like Judge Canby was relentlessly moving towards a particular conclusion without bothering to support it.

Mind you, as I was reading, I still assumed that Judge Canby was right; just that his opinion on these points was not particularly persuasive. It still seemed, from his description, that overall, the products were sufficiently different such that consumers weren't likely to be confused. So that Judge Canby was correct that the district court erred.

Then I looked at the separately-attached exhibits, which displayed pictures of the two cans. And totally changed my mind.

These cans look very similar. It's not the picture of the monster that matters -- that's the thing that Judge Canby focused on. It's the prominent dripping lettering of the word "Freek" on the can that looks, to me, totally similar to the prominent "M" on the Monster can.

I can easily see from the pictures why consumers might be confused. As well as why National (as the district court found) aggressively tried to ensure placement of the Freek cans side-by-side with Monster cans. Because, especially side-by-side, you could easily get the sense that they were from the same company. (The only defense, ironically, is that the Freek cans, to me, look a lot cheesier than the Monster cans. But incredible lameness is probably not a compelling defense to trademark infringment.)

So while Judge Canby's analysis and opinion originally (weakly) persuaded me, as they say, a picture is often worth a thousand words. I agree with the district court.

Look at the pictures and see what you think.

Even if reasonable minds (and eyes) could disagree on this one, I surely don't think that the district court's decision was clearly erroneous, as would be required in order to reverse the issuance of the preliminary injunction. I'd have gone the other way in this one.

Thursday, June 28, 2007

People v. Thornton (Cal. Supreme Ct. - June 28, 2007)

While the United States Supreme Court is cranking out a plethora of 5-4 decisions, with a very well-defined liberal and conservative group (and Justice Kennedy as the swing), the California Supreme Court's decisions are often the exact opposite. Today the California Supremes decided three cases: two death penalty cases (here and here) and one three strikes case (here). Each of these opinions was unanimous. Each found in favor of the government and against the criminal defendant.

No splits here. Which isn't the greatest news for the two guys who're going to be killed, or the one who'll spend 29 years to life in prison for shoplifting an $18 fanny pack from J.C. Penny.

Wednesday, June 27, 2007

People v. Bogan (Cal. Ct. App. - June 27, 2007)

How many phone calls do you think will be made today to 702-810-4183?

Justice Davis published this opinion this afternoon, in which he affirms the convictions of Dwayne Bogan for pimping, pandering, and conspiracy to solicit prostitution. As to the latter: Yes, Virginia, you can conspire with your prostitutes to commit prostitution even if you're their pimp. Welcome to the wonderful world of conspiracy.

Doctrine aside (which is entirely accurate, mind you), during the course of the opinion, Justice Davis elects to publish the pimp's actual cell phone number not once, not twice, but three different times. 702-810-4183. Which, though a Las Vegas number, connects directly to this Sacramento pimp. Or at least did. So I guess if you're looking for a prostitute in Sacramento, that might be a number you'd call. Thanks, Justice Davis!

(Don't bother calling the number. At least today. I already did. "The PCS subscriber you are calling is temporarily unavailable," says the recording. Yeah, I thought. "Temporarily." As in 6 years.)

I feel bad if that cell phone number now belongs to someone else. They may get some interesting voicemail messages over the next several weeks. Or years.

Oh, by the way. Thanks again, Justice Davis. For also telling me that the a half-and-half in Sacramento goes for around $100 nowadays. Good to know.

The things you learn from the California Court of Appeal . . .

Contemporary Svcs. Corp. v. Staff Pro (Cal. Ct. App. - June 27, 2007)

Residents of San Diego (and elsewhere) have broad familiarity with the security people of Elite Show Services. They're the security (and parking) people who wear the red windbreakers with "Elite" on them. The Padres and Chargers use them. Even the University of San Diego uses them. They're everywhere.

Lesser known, at least down here, are the yellow-windbreakered security folks, who also operate in San Diego, Orange County, and Los Angeles. Yellow windbreakers are the signature items of two different security firms: Contemporary Services and Staff Pro.

Why do red windbreakers win out over yellow? Maybe this is why. The two yellow-windbreakered firms have spent massive amounts of time and money litigating against each other. And, as the opinion by Justice Fybel amply reveals (in interesting detail), they have done so in a -- shall we say -- sometimes "aggressive" manner.

Spend your money on providing services, my friends. Not on lawyers. And your yellow windbreakers shall wash over events from sea to shining sea.

Andrews v. Cervantes (9th Cir. - June 26, 2007)

We return to sunny (and unhumid) San Diego -- and regular internet access, thankfully -- from the backwaters of North Carolina and are welcomed by this opinion by Judge Berzon. Which is a lengthy exegesis on precisely when prison inmates can get out of paying a $350 filing fee.

The work we'll do to make sure that indigent inmates have to pay $350 to file a civil lawsuit is pretty impressive. This case alone tops out at twenty single-spaced pages. And it's far from the only one, as Judge Berzon lists over a half-dozen other cases that have been forced to adjudicate the precise contours of the "imminent danger of serious physical injury" exception to the rule that once prisoners have three lawsuits dismissed under 12(b)(6) (i.e., "three strikes"), they've got to pay the $350 filing fee thereafter. We're also putting some heavy legal talent into the issue, as MoFo represents the indigent prisoner here.

Ultimately, Judge Berzon holds that the particular prisoner here doesn't have to pay the filing fee because he sufficiently alleges imminent danger. Which means we've devoted $50,000 or so in social resources to try -- unsuccessfully -- to force Antolin Andrews to cough up $350.

It's good to be home.

Monday, June 25, 2007

Burns v. California Fair Plan (Cal. Ct. App. - June 25, 2007)

When your house burns down, you can't recover twice the value of the house. Even if you have insurance policies from two different insurers. Even if it's not you that's trying to recover twice, but rather (1) someone with a life estate -- the buyer of Insurance #1, and (2) someone holding the remainder interest -- the buyer of Insurance #2. And even if, as here, your name is (Ann) Burns.

The insurers only have to pay a collective total of the value of the destroyed property; in paticular, their pro rata share. Sorry that you each had to have your own insurance in order to protect yourself. You collectively only get the value of the destroyed property.


Thursday, June 21, 2007

In Re Marriage of Williams (Cal. Ct. App. - May 17, 2007)

"In this marital dissolution action, appellant Thomas Williams and respondent Hilary Williams dispute the amount of child support that Thomas should pay for their two children. Both parties are wealthy and unemployed. . . . The trial court ruled that Thomas’s earning capacity should include attribution of a reasonable return on approximately $14 million in investments (including home equity of $6 million in his Pebble Beach estate) . . . . In 1995, Thomas sold his company, Combinet, to Cisco Systems, Inc. and received Cisco shares valued between $65 million and $85 million. The parties subsequently acquired substantial real property, including buying and remodeling a 5,400 square foot house in Monte Sereno as well as an 11,000 square foot house on the Seventeen Mile Drive in Pebble Beach. . . . During the marriage, the children lived in their own wing in the Monte Sereno house and also spent weekends in the Pebble Beach mansion . . . 'a large palatial estate' set on nearly three acres on the Seventeen Mile Drive."

Tough lives.

Wednesday, June 20, 2007 v. Gradient Analytics (Cal. Ct. App. - May 30, 2007)

Yesterday I embarked upon a whirlwind tour through the skies of our fair nation. Spending much of my time, sadly, on the tarmacs of our fair nation. But eventually North Carolina received me with open arms, and I am now warmly in the bosom of that Great State.

When I say "warmly," I kid not. Wow. I had forgotten what summers on the East Coast were like, notwithstanding spending the first twenty-some years of my life there. It's not the heat, it's the humidity. Wait. It's both.

For more uplifting news, here are my thoughts today about the integrity of public financial markets. Think that analyst reports are anywhere near objective assessments of public companies? That they aren't sometimes (often?) basically a fraud?

Think again.

Check out the first six pages, and the rest if you'd like to be depressed even further. No one said that stock ownership was pristine. Still, I thought that it might be a bit more pure than this.

Sure, we all know about boilerroom manipulation and the like. But these are sophisticated -- and increasingly popular -- hedge funds.

Which, perhaps, is precisely why they're able to get away with it.

Monday, June 18, 2007

Wimsatt v. Superior Court (Cal. Ct. App. - June 18, 2007)

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That's the lesson of the day. Justice Aldrich doesn't appear especially happy about the result, but he says that he's bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

People v. Bonilla (Cal. Supreme Ct. - June 18, 2007)

It pays to testify.

Bonilla hires Keyes and Nichols to kill his business partner. Bonilla lures the partner to an office complex, at which Keyes and Nichols commit the murder.

The cops eventually catch up with Keyes -- who had been hired for previous murders as well -- and Keyes agrees to testify against Bonilla and Nichols.

Bonilla gets the death penalty. Keyes, who actually committed the murder, gets no more than three years.

The California Supreme Court unanimously affirms.

The whole story actually reads like something out of a real-world Sopranos. Including the huge incentive to "rat out" your fellow murderers. 'Cause three years for getting caught whacking someone ain't that bad a deal at all.

U.S. v. Garner (9th Cir. - June 18, 2007)

James Garner is an elderly man. (No, not that James Garner.) He orders a couple of videos of kiddie porn and has some more kiddie porn on his computer. Nothing violent; but, obviously, he has a serious pedophilia problem. What's the appropriate sentence for his kiddie porn offenses?

22 years. So he dies in prison. And the Ninth Circuit affirms.

Friday, June 15, 2007

In Re Stier (Cal. Ct. App. - June 15, 2007)

Listen to these facts:

"In 1995, respondent, a physician who resides in San Francisco, began an internet and telephone relationship with Jill N., a 41-year-old woman who represented to him that her name was 'Jill Armstrong,' and that she was 18 years old. In February of 1996, while respondent was traveling to a professional conference in North Carolina he arranged to meet Jill at a hotel. In fact, the girl he met was Jill’s 14-year-old daughter Lauren. Jill had persuaded or coerced her daughter to meet men for sexual contact. According to the petition, when respondent met Lauren she claimed to be 18-year-old Jill, and based upon her appearance and demeanor he believed her. The declarations of both respondent and Lauren maintain that they engaged in entirely consensual sexual contact—of a nature not disclosed by the record—during this single encounter. Respondent also asserted in the petition that he was 'duped' as to 'the girl’s age' by Jill, and had no intent to engage in sex with an underage girl."

Okay. Just a couple of comments. (1) You're apparently a 40-ish year old man, Dr. David Mark Stier. Who went to Yale Medical School. Yes, you may have been duped. But what are you doing trying to sleep with an 18-year old anyway?! Especially since you're -- it appears -- a pediatrician, for Christ's sake. (2) Stranger -- and utterly more irrational still -- what sort of a parent is "Jill N."?! Pretending to be and then whoring your 14-year old daughter out to 40-year old men?! What sort of a nutjob thinks that's okay?

It's a crazy world, my friends.

Thursday, June 14, 2007

Garabet v. Superior Court (Cal. Ct. App. - June 14, 2007)

The first four pages of this opinion -- plus the fact that Justice Aldrich holds that plaintiff was time-barred in suing -- don't exactly make me want to run out and have lasik eye surgery. The words "corneal transplants for both eyes would be the next step" were particularly scary.

People v. Rivera (Cal. Supreme Ct. - June 14, 2007)

I agree with the California Supreme Court on this one. The police can "knock and talk" with someone -- i.e., can knock on their door and converse with them, including asking for consent to search the home -- without much constitutional scrutiny; e.g., pursuant to an anonymous, unconfirmed tip. You always have the right to tell the police "No, you can't come in unless you have a warrant." And as long as that's clear, I don't see the harm in letting the police knock on your door and see if you want to voluntarily assist them.

Makes sense to me.

Wednesday, June 13, 2007

McKenzie v. Vanderpoel (Cal. Ct. App. - June 13, 2007)

This case is wonderful. For three reasons.

First, what a trust! Maud Bull created an inter vivos trust in 1959 with 2000 shares of IBM stock. Guess how much that trust's worth today, even after throwing off some income to various beneficiaries? Wait for it: well in excess of $33 million. Sweet!

Second, what a mistake! Obviously Maud Bull didn't know the stock would do so well, since when she created the trust, she declared that each of the beneficiaries would get a set amount -- $200 to $500 a month -- of the income from the trust for life. The rest of the income goes back to principal. Well, that may be a lot of income in 1959, but as of 1992, the stock was throwing off income of over $1.2 million a year. And the beneficiaries were still just getting their piddly fixed $200 to $500 a month. D'oh!

Third, what subtlety! Justice Epstein writes the entire opinion straight up. And, from the name of the trustor -- Maud L. Bull -- you'd probably have no reason to suspect that we're talking about anyone famous here. But we are. The present beneficiaries of this trust are the children (and grandchildren) of Bull's niece, who's name was Phyllis Potter. Who, as old-time Hollywood aficionados may recall, was the first wife of . . . Fred Astaire. So we're talking about Fred Astaire's kids and grandkids here. Who are all trying to get (and fighting a tiny bit about how to obtain) more money from the trust. And Justice Epstein doesn't even mention the identity of the famous father/grandfather of the beneficiaries.


Tuesday, June 12, 2007

People v. Hobbs (Cal. Ct. App. - June 12, 2007)

Here's a good statutory construction opinion. Let's see how you'd read the statute.

It's a misdemeanor to be a "peeping tom" under Section 647 of the Penal Code. But it's a felony under 311.4(c) for anyone who "knowingly promotes, employs, uses, persuades, induces or coerces a minor . . . to engage in . . . either posing or modeling . . . for purposes of preparing any . . . videotape . . . involving[] sexual conduct by the minor." What do you think it takes to be convicted under Section 311.4(c)? What counts?

It's pretty obvious that the statute is directed at people who convince minors to make kiddie porn, right? But what about the following fact pattern, which comes from our very own San Diego:

"Via the Internet, [defendant] learned that there was going to be a girls’ swim meet on May 17 and 18, 2003, at Valley View High School in Moreno Valley. Somehow, he obtained many of the keys to the school, and particularly to the gymnasium area. Sometime between 2:30 p.m. on May 16 and 6:00 a.m. on May 17, defendant snuck into the girls’ locker room. At one end, there was a coaches’ office that was raised slightly and equipped with large windows, so as to afford a view of most of the locker room. Defendant covered these windows with paper and tape. He then made a small hole in the paper and set up a video camera so he could film through the hole. He used cones and caution tape, which he found in the coaches’ office, as well as handwritten “Do Not Enter” signs, to block off rows of lockers that were outside his camera range. On May 17 and 18, defendant filmed at least 45 girls who were competing in the swim meet as they changed into and out of their bathing suits. The girls were between 8 and 18 years old. He would zoom in on their breasts, crotches, and buttocks, particularly when it appeared that they were just about to undress."

That's clearly peeping. And maybe some other stuff. But does it violate Section 311.4(c)? Did the defendant "knowingly promote[], employ[], use[], persuade[], induce[] or coerce[] a minor" to "pos[e] or model[]" for the videotape? What do you think? (And don't take the cheap way out by merely saying "I hate pedophiles so I'm going to interpret the statute in any way that results in a conviction." Yes, that definitely happens, and is perhaps understandable to some degree. But it still ain't right.)

Justice Ramirez writes the majority opinion. Justice Richli dissents. It's rare that you see an opinion discuss intelligently the differences between transitive and intransitive verbs and why this matters. So if only for that reason the opinions are worth reading.

Check 'em out. See what you think.

P.S. - It's not mentioned in the opinion/dissent. But both Justice Ramirez and Justice Richili were career prosecutor before being appointed to the judiciary, and both prosecuted sex crimes. Pretty interesting that they come out different ways on this one.

Cadlo v. Metalclad Insulation Corp. (Cal. Ct. App. - June 11, 2007)

This one was published by the Court of Appeal just under the 5:00 p.m. wire today. It involves a couple of different interesting topics, so even though I wasn't able to finish posting before I went home for dinner, I thought I'd finish it up at an absurdly early hour in the morning.

First, it's a good CCP 998 case, and holds that plaintiff can recover expert fees even though the statutory offer was made fairly early in the discovery process (i.e., that it remained in "good faith"). That will make the case cited a fair piece. Plus, purely as a matter of interest, compare the relatively tiny CCP offer (around $100,000) with the eventual verdict at trial and judgment entered therewith ($1,000,000+). I bet the defendants wish they could turn back the clock, eh?

Second, the case also raises some very interesting issues about what you do when the plaintiff dies immediately after the verdict; particularly when, as here, he dies after the verdict has been rendered but before the judgment has been entered. Many times, as here, the verdict includes a component -- often a huge one (e.g., here, for seven figures) -- for future damages. Had the plaintiff died during trial, he wouldn't have been able to recover those. Plus, even after the trial, prior to entering the judgment, we now know that the jury's award is erroneous in fact; namely, that it includes compensation for future damages (e.g., future medical expenses) that we are certain will not be incurred. This is just a small -- but very concrete -- subset of larger issues about what you do with a verdict that we know, post hoc, is erroneous, and that results in (as here) a substantial windfall to one of the parties (e.g., gives them, or their estate, millions of dollars in unjust compensation). Or, to put it another way, why and how we structure our civil justice system to place a very high premium on finality notwithstanding the consequences of that approach and the resulting inefficiencies. When a plaintiff dies two days after the verdict is rendered, it's pretty clear that the resulting award is "wrong" in some ways, and that the failure to modify it according to what we now know is indisputably true enshrines a degree of injustice. That said, we enshrine similar injustice all the time, and necessarily do so whenever we decide cases -- as we must -- on the basis of what we know at the time. Plaintiff here was given large damages for future medical expenses that we now know won't be incurred. But the plaintiff in another case might have been given future medical expenses, or lost wages, that eventually turn out to substantially undercompensate him; for example, he lives for 40 years (losing wages and incurring medical expenses throughout) rather than the 20 that was expected at trial. Or the plaintiff in a different case eventually suffers additional damages as a result of the accident -- maybe even dies -- but is uncompensated therefor because we didn't realize that would be the actual consequences of the tort. All of those situations involve injustice. And the fact that we overcompensate in some cases and undercompensate in others hardly makes the system "all balance out" and thereby become just. It remains inadequate, and inefficient, even if one party or the other receives a windfall but that those windfalls are randomly distributed.

Generally, we say "tough luck" and enshrine the verdict, even when we know it's wrong -- or, more accurately, "right" given what we knew at the time but "wrong" in fact. There are very few grounds upon which one can modify a judgment (e.g., in federal court, under Rule 60) in light of post-judgment facts. Basically we simply value finality over other principles, so even if we're sure that the judgment is actually wrong, we let it stand anyway. For a contrary principle would allow consistent litigation over a judgment in light of ever-changing actual events.

My personal sense is that we may value finality a bit too much, and that there might be other regimes that might be superior. Some of these changes might be fairly radical; e.g., judgments might be annuities rather than lump-sum amounts, as is sometimes done in medical malpractice cases (albeit imperfectly and, at least in California, inequitably), in order to more accurately reflect eventual realities. Other changes might be less fundamental; e.g., allowing parties to attack a judgment when it is essentially beyond doubt that the award was inaccurate in light of future events. The extremely high standard of review would reflect our keen interest in finality but the exception would nonetheless allow us to modify a result when we're absolutely sure that it's not actually the right one in light of future events.

That said, that's not the law. Nor is it likely to be anytime soon. This case is a good example, and Justice Simons's opinion collects and reflects the various cases that hold that even, as here, when the judgment hasn't even been entered yet we're still unwilling to tinker with it in light of things we now know to be true. Finality is that important. So plaintiff gets his money for future medical expenses over the next 20 or so years even though he's indisputably dead.

Plaintiff dropping dead two days after the verdict but before judgment is entered is presumably pretty rare. Nonetheless, don't think that the case is unimportant for that reason, or that the system should (or must) accept inefficiencies in a case like this one on the grounds that it's a statistical outlier. The general principle evinced by the underlying rule is one that is probably implicated in the majority of cases, all of which involve a necessarily imprecise estimate of future events that may well (and often do) turn out to be demonstrably wrong. The inefficiency and injustice that exists here isn't aberrational, but rather pervades the system. That doesn't make the system wrong, of course. But you gotta nonetheless recognize both the consequences as well as the justifications -- right or wrong -- for adopting the relevant rule.

Monday, June 11, 2007

U.S. v. Freeman (9th Cir. - June 11, 2007)

Drug dealers can get creative. Some even invent their own little language to help conceal from police (or any eavesdroppers) the subject of their conversation.

So, for example, Kevin Freeman and his co-conspirators say "iggidy" when they mean "ounce," "dove" to signify the number twenty, "diamond" to mean ten ounces of crack cocaine, and -- albeit less creatively -- "bread," "cheese," and "chips" to refer to money.

Their novel "language" included the following metric as well: "Brown, and Mitchell altered words by placing “e-z” or some variant thereof in the middle of words. . . . “fezone” to mean phone; “teznower” to mean tower; “fezo” to signify four and “fezi” to signify five; “deezove” to mean dove; “peezark” to mean park; and “reezey” to mean ready."

Judge Gibson (sitting by designation from the Eighth Circuit) doesn't mention this fact, but I speculate that this "rule" was loosely derived from the once-ubiquitous phrase "fo' sheezy mah neezy." A phrase that, thankfully, will presumably soon fade from hipness and into oblivion -- if it hasn't already.

Friday, June 08, 2007

U.S. v. Alverez-Tejeda (9th Cir. - June 8, 2007)

I'd swear that this case was a made-up law school hypothetical if I hadn't actually read it in the advance sheets myself.

I won't tell you how it comes out. Though I will tell you that the district court and the Ninth Circuit disagreed regarding the proper result.

The issue presented is whether the seizure described below was permissible. As for the relevant facts, the first two substantive paragraphs of the opinion say it all:

"Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police officer."

Interesting, huh?

Thursday, June 07, 2007

People v. Rios (Cal. Ct. App. - June 7, 2007)

Great first line of an opinion: "A bar fight began with fisticuffs, escalated to broken beer bottles, and ended in Jesús Patiño’s bloody death from a severed jugular vein."

McNairy v. C.K. Realty (Cal. Ct. App. - May 22, 2007)

Sorry for the late blogging start. I was up in Pasadena arguing a Ninth Circuit case myself earlier today, and just returned to San Diego. So, as they say, "I gotta lot of catching up to do."

Meanwhile, in stark contrast to the glorious view of the ocean that currently confronts my senses as I sit here typing away, I thought I'd offer the following alternative. Read the first several pages of the opinion -- and the remainder, if you'd like -- and imagine what it would be like to live in a place like that.

Ewwww. Definitely not fun. It sounds like the housing equivalent to the traffic between LA and San Diego. Nothing you want to live in.

Wednesday, June 06, 2007

U.S. v. Narvaez-Gomez (9th Cir. - June 6, 2007)

This has nothing to do with the actual opinion. But I couldn't help noticing how Narvaez-Gomez initially gets detained -- which eventually leads to his being sentenced to eight years in prison for being a deported alien found in the United States.

The police initially detain Narvaez-Gomez because he's smoking in a public park (in San Diego, again) that apparently doesn't allow smoking. Which I guess is indeed an infraction. Then, during that detention, the police ask him a bunch of guestions about his legal status, call in the Border Patrol, and he eventually gets busted for the biggie.

All of which is entirely legal. Though let me ask you this: Doesn't it seem like the detention for smoking was largely pretext? Does it surprise you that someone like Narvaez-Gomez is detained for that offense, and then heavily questioned, whereas others -- I fully imagine -- engaged in the same offense are ignored?

Maybe they bust everyone in San Diego who smokes in a public park. Though I've lived here for over a decade and haven't ever seen it happen.

But they detain Narvaez-Gomez for it. Which doesn't entirely surprise me.

U.S. v. Mayer (9th Cir. - June 6, 2007)

Don't join NAMBLA. For a variety of reasons, actually. But add to your list the fact that at least some of your NAMBLA colleagues may actually be cops wearing a wire. So when you arrange trips with them to foreign countries to "meet" little boys, they'll bust you when you get off the plane in San Diego.

At which point you'll be sentenced to three-plus years in prison, and when to appeal to the Ninth Circuit, your panel will consist of Judges Hall, O'Scannlain, and Callahan. I needn't tell you the result thereafter, do I?

Tuesday, June 05, 2007

Michaely v. Michaely (Cal. Ct. App. - May 10, 2007)

Zzzzzzz. Often you get some interesting California Court of Appeal cases in the afternoon. Not thus far today. Nothing. Not even anything boring.

So I'll continue on my television theme today. This morning it was blood and gore to spice things up. Now it's sex and revenge for the afternoon.

Want to see a divorce proceeding that drags on for over 12 full years? Want to see a rich husband get spanked -- hard -- for being a total jerk in discovery?

Then read this one.

It'll make you happy. It did me.

Lambright v. Schriro (9th Cir. - May 11, 2007)

Not much today from the Ninth Circuit or California Court of Appeal. One published opinion apiece, neither of which is especially enthralling. So, like the television networks, I thought I'd change the lineup today in order to spice things up. Linked, of course, to the law. With this query:

Let's say you've been sentenced to death. Who'd you most like to have on your Ninth Circuit panel?

Let me give you a hint. And I'll do so by telling you a story. The story of Joe Lambright.

Back in 1980, Joe was traveling across the country with his friend Robert Smith and Joe's girlfriend Kathy Foreman. Bob complained to Joe and Kathy that they got to have sex but he didn't, at which point Joe said they'd find her a woman to have sex with. And, Joe added, he'd like to kill someone just to see if he could actually do it.

So, near Tucson, Arizona, the trio picked up a hitchhiker, Sandra Owen. Bob raped Sandra in the back seat of the car, and again in the mountains, at which point Bob started choking Sandra and Joe started stabbing her. Joe then struck Sandra in the head with a rock, and Sandra died. Joe and Bob were ultimately arrested, Kathy was granted immunity in exchange for her testimony, and Joe and Bob were sentenced to death.

The Arizona courts affirmed Joe's sentence on direct appeal and state habeas. And the federal district court denied habeas relief as well. But, in 1999, the Ninth Circuit gets into the game, and things start to change. In the first appeal (which, remember, is 19 years after the crime), the panel reverses the conviction, with Judge Reinhardt writing the opinion (which Judge Ferguson joins) and Judge Thompson dissenting. Opinion #1. But that one promptly gets taken en banc (Opinion #2), and is reversed on a 10-1. The 1 being Judge Reinhardt. So then the case gets remanded back to the panel, which then (Opinion #3) temporarily reverses the death sentence and remands to the district court for an evidentiary hearing on the ineffective assistance of counsel claim. Which the district court conducts and finds no prejudicial error. At which point the case goes back up to the Ninth Circuit -- to, remember, the same panel -- and, in this opinion (Opinion #4), the panel reverses the district court and vacates the death sentence for ineffective assistance of counsel.

Mind you, I think the Ninth Circuit is probably right here. And its a unanimous per curiam opinion, after all, with even Judge Thompson (a Reagan appointee, remember) signing on. There really wasn't much at all done at the penalty phase here. It might well have made a difference. So I'm not at all saying the court got this one wrong.

It is, however, 27 years after the crime. And we've still got more to go. Joe ain't getting strapped down for quite a while at this point -- and, most likely, never will. And just remember how much time, expense, and effort we've flushed down the toilet to get to where we are. Not a happy state of affairs.

P.S. - The answer is Judge Reinhardt.

Monday, June 04, 2007

Haluck v. Ricoh Electronics (Cal. Ct. App. - June 4, 2007)


That's all I can say about this opinion by Justice Rylaarsdam. Which slams -- and I mean, slams -- Judge James M. Brooks (in Orange County).

It's rare that you see a judgment reversed for judicial misconduct. And even rarer that you see a reversal with such a damning indictment of what transpired below.

Here are just a few snippets from Justice Rylaarsdam's opinion. Which deserves a full read anyway, since that's the only way one can get a complete picture of the kind of antics that went on in the trial court:

"The delineated exchanges between the court and counsel are the antithesis of judicial decorum and courtesy. . . . [T]he judge instigated and encouraged many of the[ abusive comments towards plaintiff's counsel]. He also allowed, indeed helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at will and at the expense of plaintiffs and their lawyer. . . . The 'overruled' signs also demonstrated the court’s lack of courtesy and decorum. . . . This conduct was a sideshow in the overall circus atmosphere mocking a serious proceeding important to the parties. . . . Defendants challenge plaintiffs’ argument that the court used these signs only when ruling on their objections. Again, this misses the mark. It is like saying a baseball team could not complain if the umpire decided to call balls and strikes with his eyes closed, as long as he kept them closed for both teams. . . . Here the judge and defendants’ lawyer had fun by making plaintiffs’ lawyer the butt of their jokes. They took turns providing straight lines and punch lines to each other in a way that could only convey to the jury that they were a team and plaintiffs’ counsel was an outsider."

Sadly, this does not appear to be an isolated incident for Judge Brooks. He was publicly admonished last year for absurd, similar misconduct in a number of different cases. And apparently received advisory letters in 1996 and 1999, as well as a private admonishment in 2003, for, inter alia, making improper comments that reflected improper demeanor and ethnic and other bias.

Please tell me that at least one of you readers up in O.C. is going to run against Judge Brooks the next time he's up for reelection (in 2010). He ran unopposed last time. Sadly. (Indeed, for the more creative amongst you, I think that a recall of this guy might even be in order; while I'm usually not that fond of such a move, this may be one of those exceptions that proves the rule. Apparently, by my calculation, you'd need 100,00o or so signatures. Tough, and a bit expensive, but perhaps a good private investment. And definitely a good public one.)

People v. Stevens (Cal. Supreme Ct. - June 4, 2007)

Gutsy. At least relatively.

The California Supreme Court, chastened by the Rose Bird recalls, rarely reverses death sentences. And, as usual, unanimously affirms the death sentence here.

But Justice Moreno, who would also affirm the death sentence here, nonetheless writes a scholarly and very analytical concurrence that discusses the difficult problems with the way at death sentences in California are permissible based solely upon the perpetrator "lying in wait" to commit the crime. Justice Moreno contends that permitting imposition of the death penalty in such cases -- at least as applied by the California Supreme Court -- doesn't appear to constitutionally (or rationally) distinguish between those individuals who deserve the death penalty and those who do not. (Justice Kennard once held a similar view, but recently backtracked on it. And even Justice Werdegar, who writes a separate concurrence, seems a tiny bit concerned about how broad the "lying in wait" doctrine has been applied -- though not enough to change the result here.)

Read the (relatively brief) concurrences, even if you skip the 38-page majority opinion. They definitely add value.

Uttecht v. Brown (U.S. Supreme Ct. - June 4, 2007)

I usually don't discuss U.S. Supreme Court cases. On the theory that the opinions of the Supremes garner massive amounts of attention and press even without my particularlized take. So I generally devote my scarce literary resources elsewhere.

Still, I read 'em all. And, today, I decided to depart from my usual practice. But only because there's a neat little Ninth Circuit connection in this case.

The obvious connection is that it's a Supreme Court opinion that reverses the Ninth Circuit in a death penalty case. No surprise there. Albeit on a 5-4.

But the more interesting connection, at least to me, was the last substantive paragraph of Justice Steven's dissent. In which he expressly discusses the author of the Ninth Circuit's opinion below -- Judge Kozinski.

Now, it makes sense to do that, as weird as it might initially seem. The fact that it was Alex who authored the opinion that reversed the death sentence -- rather than, say, Judge Reinhardt, who was also on the panel -- is something that Justice Stevens understandably wants to highlight. In part because it helps establish that this is not a stereotypical "liberal" opinion from the Ninth Circuit that the Supremes regularly reverses, and instead is authored by a bright -- and conservative (though libertarian-leaning) -- jurist.

But what's a little surprising is that Justice Stevens not only mentions that the opinion is from Judge Kozinski, but also expressly mentions that Alex clerked for Justice Burger (back in 1976-77). And not easily, I might add -- Justice Stevens has to try mightily to make that fact somehow relevant, much less worthy of inclusion in the final substantive paragraph of his dissent. (The ostensible "connection" is that Judge Kozinski clerked back in the old days of the Burger Court and that, before the present opinion, precedent would have granted the defendant relief. But this alleged "connection" is a huge stretch.)

Anyway, I don't recall the Supreme Court ever previously highlighting -- much less to this degree -- the fact that the judge below previously clerked for the Court. So it was interesting, and since they were talking about a Ninth Circuit judge, I thought I'd mention it.

One last point. Justice Stevens only mentioned the fact that Judge Kozinski clerked for Justice Burger. But the express reference to Judge Kozinski's clerking days probably makes even more sense when you recall the other individual for whom Judge Kozinski clerked -- the one that Justice Stevens doesn't expressly mention. Justice (then-Judge) Kennedy. The (utterly expected) swing vote on this 5-4 opinion.

Clearly, in my mind, Justice Stevens is saying: "Tony: Your own guy, Alex, wrote this thing. Come on, baby. Gimme your vote."

Didn't work. But probably worth the effort, eh?

Friday, June 01, 2007

Flint v. Dennison (9th Cir. - June 1, 2007)

I must admit that when I initially thought about this case, my first thought was that the University of Montana had violated the First Amendment by imposing a $100 cap on how much any student could contribute/spend on his own campaign for student office. My mind -- naturally, I think -- thought of Buckley v. Valeo, and since a cap on personal expenditures for public office would be unconstitutional, my initial reaction was that the same would probably be true here.

But Judge Bea convinces me otherwise. I'm not entirely on board for the way in which he applies the various doctrines, but I'm ultimately persuaded that student offices -- and the educational mission of a University -- are sufficiently different from campaigns for public govermental positions that the cap on expenditures here is constitutionally permissible. An educational institution can, I think, legitimately decide: "We want running for office to be a learning experience, and done in a particular manner (e.g., without massive expenditures and with a focus on personal and face-to-face interactions and public addresses), and we think that imposing a $100 limit on expenditures advances that educational experience." Such a electoral regime, I'm persuaded, does not violate the First Amendment.

One other, admittedly tangential, thing about this case. Something that you wouldn't get from reading the opinion. Back in 2001, the same lawyer for the plaintiff here (James Bopp, from Terre Haute, Indiana) filed and won a lawsuit in the Central District of California against U.C. Irvine for imposing an identical $100 cap on expenditures for student office. I assume that Mr. Bopp thought this was going to be a pretty easy victory, as well as a nice way to obtain Section 1988 fees. But it was not to be.

Why exactly U.C. Irvine didn't appeal their loss to the Ninth Circuit, whereas U. Montana did, is not entirely clear to me. Perhaps Montana was simply smarter. Regardless, the $100 cap is constitutional. Which doesn't buy that much pizza and beer for the electorate. So much the "worse" for college students, I guess.

Melican v. Regents of UC (Cal. Ct. App. - May 23, 2007)

"Sure, we may have -- indeed, undeniably did -- mishandle, mistreat, and sell body parts for profit, all of which we weren't supposed to do. And, yes, you gave your body to us solely for teaching purposes, and we're totally sure that a lot of the bodies that were given to us were misused for other purposes. Indeed, we can't account for the vast majority of the bodies that were given to us; of the 441, we only know what we did with 121, and the other 320 may well have been totally misused. But, guess what: we (smartly) didn't keep records of which particular bodies we illegally misused. So we get summary judgment when you sue us. 'Cause, yeah, we mangled a lot of them, but no individual person can prove that their particular body was sold for parts. So everyone loses but us."

That's what the UC Regents say. The trial court grants summary judgment. And Justice Aronson affirms.