Thursday, January 31, 2008

Wednesday, January 30, 2008

People v. Seminoff (Cal. Ct. App. - Jan. 29, 2008)

There are various parts of this opinion about which I might disagree. For example, it seems to me that the prosecutor was deliberately asking tangential questions to the witness purely in order to get her to invoke her Fifth Amendment rights (rather than risk prosecution) and hence get her testimony on the suppression motion stricken. Sure, the credibility of the witness was a central issue, but that does not open up every possible inquiry on the ground that it might provide fertile grounds for impeachment. And, unlike Justice Bedsworth, I thought that the queries posed by the prosecutor were darn tangential to the issue at hand, and that this was the case even though the queries admittedly related to the marijuana in the room.

Who cares if the witness "intended to sell" the marijuana, for example? The only reason the prosecutor asked that query, in my view, was because the prosecutor knew that she would whack herself if she answered it, and figured that -- even after some point -- the witness would invoke. Since that was the core purpose of the question, I think that the severe sanction of striking the entire testimony of the witness was pretty harsh. And the fact that the questions concerned some items relevant to the charge doesn't seem enough for me. The pot was wrapped in wet towels, for example. Does that mean you get to ask the witness: "Did you use these towels to abuse your child earlier in the evening? For a sex act? Did you use the marijuana as a suppository? To beat a man to death?"

At some point, the purpose of the questions seems purely to get the witness to invoke. And I had a keen sense that was the case here. Especially after the witness had already copped to possessing and transporting the marijuana.

Admittedly, my reaction to the case was somewhat colored by the fact that the police officer's testimony at the suppression hearing was less than unambiguously credible. To put it mildly. "I announced myself at the door. I waited 30 full seconds. Then I opened the door a crack and announced myself again. And waited another full 30 seconds. Only then did I enter. I smelled the overwhelming smell of marijuana, even though the pot was all wrapped up and none of the paramedics recalled any such smell. I saw some methamphetamine in plain view. The witness gave me permission to look in her briefcase. None of what the witness says is true." Well, yeah, I guess maybe that's what really happened. But I have a spidey-sense -- potentially inaccurate, I admit -- that this testimony sounds a bit too good to be true.

I do, however, agree with Part II of Justice Bedsworth's opinion, which concerns the validity of the entry into the hotel room after the four-year old son of the witness came down to the hotel lobby and accounced that he could not wake his mother. Justice Bedsworth concludes that this justified a warrantless search, and this seems right to me. Especially given the first sentence of the fourth paragraph of Part II, in which Justice Bedsworth states:

"If there is one thing four-year-old boys are usually good at, it is waking their parents."

As the parent of a four-year old boy, I couldn't agree more.

Tuesday, January 29, 2008

Costco v. Hoen (9th Cir. - Jan. 29, 2008)

Prohibition. The Sherman Act. The 21st Amendment. Costco's mission to provide cheap intoxication to the masses.

Important interests, all. That directly collide in this case.

Costco challenged a variety of restrictions in Washington that drove up the price of alcohol -- e.g., by making volume discounts to retailers illegal -- as violating the Sherman Act. The district court largely agreed. But the Ninth Circuit, in a closely watched case, largely reverses.

It's a tough case. The interactions between the sovereign and the regulation of alcohol has always been a dynamic one. Especially here in the States. I have no doubt that the Washington regulations have the effect -- and probably the purpose -- of raising the price of alcohol. But the State's generally allowed to do that. Mind you, Costco has a pretty good response that if you want to do that, you should raise excise taxes rather than regulate competition. But Judge O'Scannlain makes a reasonable argument that, doctrinally, the regulations here are permissible -- even if imperfect -- as acts of the State. Sure, competitors couldn't engage in horizontal price-fixing in order to raise prices. But perhaps State regulation may permissibly accomplish the same end.

You don't read nearly as many antitrust cases nowadays as you did in the 80s. Much less do you read nearly as many cases involving the 18th and 21st Amendments as you did in the 20s. So this one is interesting.

Costco will undoubtedly seek further review. And consumers in Washington await the results.

Monday, January 28, 2008

People v. Morton (Cal. Ct. App. - Jan. 22, 2008)

Sometimes you don't know whether to laugh or cry:

"The events giving rise to the crimes charged against Morton occurred on November 7, 2004. At that time, Morton resided with his girlfriend and alleged victim, Theresa Windham. According to the prosecution’s evidence, Morton was sitting in the living room watching television, while Windham was cooking in the kitchen, topless. Morton made an unflattering comment about Windham’s appearance as compared to that of a stripper in the movie he was watching. Windham took umbrage, told Morton she was going to move out, and noted that he also fared poorly in comparison to the 'good looking and big' man in the movie.

Not to be outdone in the umbrage department, Morton picked up the chair he had been sitting in, and tried to throw it through the window near Windham. He then grabbed a wooden table and threw that at Windham. Neither connected.

Windham went into the hallway, picked up the phone and attempted to call 911. Morton grabbed the phone from her, and they both went into the bedroom. Morton hit Windham several times in the jaw with a closed fist, and 'head-butt[ed]' her. When Windham began screaming, he grabbed her by the throat from behind, and a neighbor heard her shout 'you’re going to choke me to death.' According to the neighbor, Morton responded something to the effect of 'I don’t give a damn, you bitch.'

Morton and Windham ended up on the floor, and Morton again choked her until Windham thought she would actually pass out. Although Windham was able to get Morton’s hands off her throat, he remained on top of her. He squatted over her face, then pulled down his pants and told Windham 'I’m going to shit on you.'

Windham managed to escape this Fellini-esque nightmare, and fled the apartment, still topless. Morton followed her, but according to Windham, his mood had changed. He told Windham he loved her and wanted to go to his sister’s house. A neighbor overheard him say to Windham: 'be quiet, because if the cops come, I’m going to be gone. Is that what you want?'"

It goes on like this. While reading the description of the facts, at times, I had both reactions. Some of the comments are so bizarre and crazy and strange as to be funny. And yet, knowing that it's all real, and knowing how the cycle persists (as well as the physical results), makes it impossible to feel anything other than sorrow.

Friday, January 25, 2008

Verga v. WCAB (Cal. Ct. App. - Jan. 25, 2008)

I'm sorry. Did I say "Yes"? I meant, of course, "No."

Or, as the Court of Appeal says in this modification of the opinion: "On page 11, last paragraph, first sentence, insert the word 'not.'"

U.S. v. Cherer (9th Cir. - Jan. 25, 2008)

I've said it before. It remains true. I'll say it again:

When you're a 35 year old man, and engaging in sex talk with an alleged 14-year old girl, that's not actually a 14-year old girl on the other computer. It's the FBI.

Paris Cherer found that out the hard way. And will get to remember that fact for the next 25 years. In prison.

Parenthetically, Judge Noonan has a very interesting dissent to the sentence here. He notes that Cherer gets 25 years for trying to meet an alleged 14-year old in a hotel to have sex; in other words, for a crime with a nonexistent victim and no actual harm. By contrast, under the sentencing guidelines, you only get 8-17 years for an actual forcible rape of a real victim. And Judge Noonan contrasts the present case -- and 25 year sentence -- with a Ninth Circuit forcible rape case in which the defendant got 7 years, and argues that it's hard to argue "that Cherer’s clumsy effort to obtain forbidden sex was over three times more heinous" than the actual rape that got 7 years.

Ultimately, Judge Noonan gets outvoted, and the majority says that the 25 year sentence seems fine (even if seemingly high). But he still articulates an interesting perspective. And it is indeed hard to argue that 25 years is the right sentence for an internet attempt at sex with a minor but 7 years is the right sentence for a completed forcible rape.

Thursday, January 24, 2008

CKE Restaurants v. Moore (Cal. Ct. App. - Jan. 24, 2008)

I wouldn't have facially thought that filing a declaratory relief action once someone tells you that they're probably going to sue you (by filing a Proposition 65 notice) would be subject to an anti-SLAPP motion, and hence suddenly raise the prospect of attorney's fees. You'd have thought, at least initially, that it was just a procedural device to get the matter in court faster (and, potentially, in a different forum), not something that would result in potentially large liability for attorney's fees.

But, if that was your belief, you'd be wrong, at least according to Justice Coffee. You're subject to an anti-SLAPP suit. Which CKE (i.e., Carl's Jr.) discovered on appeal. To its substantial detriment.

P.S. - Page 4 of the opinion, last sentence of third paragraph: I'm pretty positive that Scot Wilson -- a young attorney for CKE (and a UCSD and Pepperdine Law graduate) -- drove his fries, onion rings, and fried zucchini to Santa Fe Springs, not "Santa Fe prings".

Ross v. Ragingwire Telecommunications, Inc. (Cal. Supreme Ct. - Jan. 24, 2008)

If you've got a prescription, and it's medically necessary, California law let's you take a toke. But that doesn't mean your employer can't fire you for it. Even if it happens at home off-duty and doesn't affect your job.

So holds the California Supreme Court. Justices Kennard and Moreno dissent, but Justice Werdegar's opinion gets more votes.

Something to think about the next time you have a need for doobage.

Bertrand v. Santa Clara County (9th Cir. - Jan. 24, 2008)

That was fast.

The Ninth Circuit back in June decided an immunity case. None of the members of the panel liked it, but they were bound by circuit precedent -- a published opinion authored by Judge Paez back in November 2003 -- to find that the social worker had immunity. So Judge Reinhardt writes an opinion that grants immunity, but Judges Reinhardt, Milan Smith, and Ferguson also write separately to say that they think the circuit precedent on this point is wrong.

Thereafter, in rapid order, (1) the July case gets taken en banc, (2) it gets argued last month, and (3) within 45 days, the en banc court unanimously cranks out a per curiam opinion reversing the panel. An opinion that spans, in its entirety, all of two full pages.

Whew. That was a toughie, huh?

What I especially liked is that the en banc court unanimously overrules Judge Paez's 2003 opinion, which the court says was wrongly decided, not because of intervening precedent or anything, but rather because it was simply wrong. And who's one of the members of the unanimous en banc court to so hold? Judge Paez, of all people. Who simply signs on to the opinion; there's no separate statement that says "Oopsie" or "This is why I changed my mind" or anything like that. Just signs on with the rest of the 11-member panel.

So a quickie -- an interesting quickie -- opinion in the morning.

Wednesday, January 23, 2008

People v. Williams (Cal. Ct. App. - Jan. 22, 2008)

This opinion is fairly short (seven double-spaced pages). And I've got a very brief -- and idiosyncratic, I admit -- question about it.

Does it speak ill of me -- and it may well -- that I really want to know how old the defendant is? I mean, if he's a 25- or 35-year old guy, this whole stuff seems so weird. In addition, obviously, to being a crime and worthy of punishment. And yet, if the defendant's 70 or something, the case takes on a whole new meaning.

My strong sense is that the former is true. But I really wanted to know. Not because it makes a difference in the law, or (perhaps) the result. But it does potentially give the thing a slightly different flavor.

So that thought popped into my head, so I thought I'd share it. Even if -- and, again, this is distinctly possible -- my emotional reaction to the underlying events should intellectually be the exactly the same regardless of whether the defendant was also elderly.

A weird tangent for the day.

Plumlee v. Masto (9th Cir. - Jan. 17, 2008)

Sometimes it's lonely being the only strong leftie drawn for an en banc panel. So you get outvoted. Big time. As in double digits to your one.

Such is the life of Judge Pregerson. Who was drawn for this case, which took en banc the previous opinion in a criminal case authored by Judge Betty Fletcher (and joined by Judge Thomas). But neither Judge Fletcher or Thomas -- or even reliable lefties like Judge Reinhardt -- were selected for the en banc court. And hence Judge Pregerson stood alone.

Vox clamantis in deserto, as we used to say.

Tuesday, January 22, 2008

Frantz v. Hazey (9th Cir. - Jan. 22, 2008)

Maybe Alex Kozinski has changed -- albeit only a tiny little bit -- as a result of his new role as Chief Judge. And, perhaps, has only changed in the context of en banc opinions.

Regardless, if there has been a change -- and I admittedly think it's way too soon to tell -- I think I'll like it.

The "old" Judge Kozinski would typically write a blistering (and, usually, blisteringly persuasive) dissent, or concurrence, if he had something special to say to his colleagues. And that part, thankfully, hasn't changed. He still writes directly. He still takes on the other side head on. All of which is good. And which he does here, in which he writes a concurrence (joined by Judges Wardlaw, Paez, and Bea) that responds to a concurrence by Judge Gould (joined by Judges O'Scannlain, Rymer, Silverman, Callahan, and Ikuta) that adopts a starkly different view, albiet resulting in the same result, than the majority opinion.

That said, for all the similarities, and for all the (great) directness, Chief Judge Kozinski's concurrence is nonetheless, I think, a tiny bit mellower than usual. A tiny bit less harsh. A tiny bit more collegial, albeit within the context of a very targeted response. It's not a "classic" Kozinski concurrence. But is instead an older, slightly gentler, reproach.

And that's not because Alex has mellowed in his old age. He hasn't. If anything, I think the near uniform consensus is that he's gotten a bit meaner, and a fair piece more tempermental, over time. At least towards parties and their counsel.

But I think there may be at least some slight evidence that, at least with respect to his colleages, and at least in en banc decisions, there's an incipient mellowness starting to reveal itself. Subtle. Careful. And not in a way that would at all diminish the classic Kozinski response. But that's nonetheless there.

Time will tell, of course. Still, I liked what I saw here. And look for more to come.

P.S. - Please don't think I'm saying that Alex will never tee off on people in the future. Trust me: He will. You can take that one to the bank. There may nonetheless be something here, in particular cases, that's slightly different from his usual take.

Ali v. Bureau of Prisons (U.S. Supreme Ct. - Jan. 22, 2008)

You gotta love this opinion. For at least two different reasons.

First, it's not your usual 5-4. Sure, in general, the conservatives are in the majority and the liberals are in dissent. Nothing surprising there.

But unlike the usual case, where Kennedy's the swing vote, this time the swing vote that adds the fifth vote to the four conservatives (Roberts, Scalia, Thomas, and Alito) is . . . . Ginsberg.

Ginsberg?! That's right. Ginsberg. Kennedy dissents, with Stevens, Breyer, and Souter on board. But not Ruth Bader. Hence the 5-4 the other way.

Ain't gonna see that often.

Second, it's a neat case for statutory interpretation types. Or even just people who like grammar a lot. The question is all about how you interpret the phrase "any law enforcement officer" in a particular statute. Does that phrase really mean any law enforement officer is immune from suit? The conservatives (and Ginsberg) say, sure, any means any, and the statute is unambiguous. Whereas the liberals (and Kennedy) go the other way. And, in the process, discuss -- and debate -- a ton of different guides to statutory interpretation. All of which, of course, have latin descriptions: ejusdem generis, noscitur a sociis, etc. Cool beans. And important even beyond this particular case.

Plus, Justice Breyer also writes a separate dissent (joined by Stevens) that makes a very interesting argument, and essentially argues -- among other fascinating points -- that rather than being crystal clear, the word "any" often is actually meaningless. Or at least inherently limited by its context. You can summarize this point in a great line he uses, in which he says: "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.'" Rather, he argues, "the context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as 'any' will apply."

Sure, this argument has its origin at least as far back as an early opinion by Chief Justice Marshall. But it's never been made as neatly as Justice Breyer makes it. So that's interesting as well.

So some good stuff in here. And not too long. Worth the read.

CONFLICT DISCLOSURE: I was one of the counsel for the petitioner (the side that lost) in this one, and was on the briefs as well as at counsel's table at oral argument. I rarely post about cases in which I've been involved, but given the makeup of the majority, as well as the contents of the opinions, I thought an exception was justified. I've tried to describe the opinion as neutrally as possible -- but, obviously, you can be the judge of whether I've successfully done so. And, in case you're wondering: Sure, we knew we might well lose some or all of the conservatives. But had no idea whatsoever that we'd lose them plus Ginsberg. No clue.

Monday, January 21, 2008

Jessen v. Mentor Corp. (Cal. Ct. App. - Jan. 16, 2008)

And, equally tangentially, on the lighter side of things, read this opinion. Which is yet another of the everyday cases you read involving a deformed testicular prothesis. Dime a dozen, right?

P.S. - Do you think Justice Perluss recognized the potential of footnote two, which says "there is no significant difference in appearance or weight between an unfilled and filled implant, especially in the small size Jessen received" (emphasis added)? I mean, sure, I know we're talking about a prothesis here. But, personally, I'd strongly prefer not to have a reference to my "small size" in any of the affected area in question -- especially in a published opinion!

U.S. v. Lococo (9th Cir. - Dec. 27, 2007)

It may be a holiday. There may be no new opinions to read. It may even be raining (as it is) in ordinarily sunny San Diego. But there are still cases about which something can be said.

For example, this one's from a couple of weeks ago, but there's no reason -- at least that I can see -- to publish this opinion. Which basically doesn't say anything other than (1) conclusions, that (2) are totally fact-specific.

Wholly beyond publication, while I'm a fan of short(er) opinions, I do think that this one goes off the deep end. The defendants are in prison. For a long time. So there's lots at stake. And each of the parties have filed long briefs that make a variety of different arguments.

I think that the resolution of these appeals require more than just mere recitation of the judicial conclusions. Which is basically what happens here. Maybe a lengthy exegisis on each point is unnecessary. But more -- a fair piece more -- than what's here seems to me to be the bare minimum.

I think this is a good example of what happens when (potentially) good intentions go way too far. Brevity ain't always the soul of wit.

Friday, January 18, 2008

Nguyen v. Nguyen (Cal. Ct. App. - Jan. 17, 2008)

Stylistically, this opinion reads a little bit like the first -- and sometimes second -- drafts of the briefs that I sometimes write. And that's not necessarily a good thing.

I'm not saying that Justice Sills gets this one wrong. Far from it. In fact, I think he's totally right, and that Janet Nguyen -- rather than appellant Trung Nguyen -- was properly declared the winner of the relevant Orange County supervisorial seat at issue in the litigation.

It was a freakishly close election. The original canvass of the votes declared that Trung was the winner. By seven votes. But then Janet asked for a recount of the paper ballots. And, after the recount (and various challenges to various votes), Janet was declared the winner. By, ironically enough, seven votes. At which point Trung then filed an election contest. And the trial court changed four votes in Trung's favor. But that still left Trung three votes short. Hence Janet's the winner.

So the underlying backdrop is pretty interesting. As well as timely, and should hopefully encourage people to get out and vote. Including but not limited to the California primary election on the 5th. Remember: even a single vote sometimes matters.

But I digress. What I mainly wanted to say was that Justice Sills writes this opinion in a passionate manner. Which I don't necessarily dislike. He believes strongly in what he's saying, and it shows. Mind you, unlike advocates, judges might often want to sound a little less one-sided. But, sometimes, emotions seep through. And that's not always a bad thing.

But I do have one suggestion. Yes, when you first write the thing, you use a lot of italics for emphasis. At least if you're like me you do. You want to have the reader really hear and understand what you're saying. You think -- at least subconsiously -- that if the reader really knows and feels the nature of what you're writing, including the emphasis on particular thoughts and words, then they will truly get the meaning of what you're saying and a deep level. Hence the italics. You're writing in the same manner that you speak. Or, more accurately, think.

Which is all well and good. And understandable. And, again, something that I do in spades.

Nonetheless, you should generally edit that stuff out as the drafts progress. Yes, you still feel it. Yes, the points of emphasis are still meaningful. But take 'em out anyway.

In this opinion, Justice Sills italicizes multiple different phrases for emphasis on pretty much every single page of the opinion. Take a gander, for example, at page 17, which italicizes for emphasis no less than a half-dozen different phrases. With all due respect to Justice Sills, that's probably way too much. A random italicization or two in an opinion -- or in a brief -- is okay. But not multiple emphases on every single page.

IMHO, anyway. And, on this one, my suggestion is to do as I say, rather than as I do. There's no doubt in my mind that one could find briefs I've written -- especially ones that only went through a couple of drafts -- that have way too many emphases. It's a big flaw of mine. Among many others, I might add.

But think of it this way: When even I think that someone's placing too much emphasis on particular words, that should say something.

Just a suggestion. Keep drafting those things with a lot of italics. Get it out of your system. But edit 'em out as the process continues. And I'll try -- try -- to do the same. Really.

Thursday, January 17, 2008

People v. Medina (Cal. Ct. App. - Jan. 17, 2008)

Maybe this year's a bad one for computer integration as well. Consider this line in the opinion published today by Justice Kane: "Defendant told the officer it was his hous7e."

Time to work the bugs out of that computer system, huh?

People v. Chakos (Cal. Ct. App. - Jan. 17, 2008)

I think that 2008 is going to be an unusual year, as I keep seeing things that are pretty darn rare. Not four-headed monsters or anything. But nonetheless stuff you don't see every day.

Like this amendment, which was published today by Justice Sills. An amendment that consists solely of removing a somewhat snide comment made in the previous opinion.

In footnote 7 of the original opinion, Justice Sills quoted at length from the Attorney General's brief, in paragraphs in which the AG tried to "make sense" (i.e., argue from) a particular precedent (Hunt). Justice Sills was, shall we say, less than persuaded by this analysis, and said -- among other things -- that the AG's interpretation was "a misreading of Hunt," and then explained why. Moreover, after articulating the AG's position, Justice Sills then included the terse line: "Hunt held no such thing." And, as a bonus, Justice Sills then concluded the footnote by saying: "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"

In a word, Justice Sills was a bit miffed. And didn't mind showing it.

Then the AG moved for rehearing. And, upon the passage of time, perhaps Justice Sills was less upset. Or, perhaps, just wanted to be nicer.

And so, today, changed the opinion to delete that last line: the part that said "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"

The footnote still ends with "Hunt held no such thing." Which is pretty incisive. But gone is the bonus slam.

Anyway, I haven't seen many amendments that accomplish nothing other than toning down rhetoric. So it's unusual. (I was fine, by the way, with both the initial slam as well as its subsequent deletion. The slam seemed somewhat appropriate, but at the same time, it surely was unnecessary as well. Including it is just a matter of whether you want to be especially nice or mean, and I don't think it unusual that, as time passes, and initial tempers flare, one may tend to become a little more of the former and a little less of the latter.)

I guess the only downside is that we now can't cite a clear case for the proposition that not every statement in a published opinion is a holding! :-)

In Re Marriage of Barthold (Cal. Ct. App. - Jan. 15, 2008)

"A party can't file a motion for reconsideration that doesn't meet the requirements of CCP 1008; e.g., that doesn't raise anything new. But while a party can't do that, if it does, and the judge is thereby persuaded to grant the relief requested therein 'sua sponte' (albeit obviously prompted by the improper motion), that's okay. Sure, that'll undoubtedly lead to the filing of improper Section 1008 motions, since, after all, they've now got a chance of working. But trial courts can always sanction such motions if they want. So you'll have more sanctions and more motions, but also more justice. And that's probably the best of the two available alternatives."

That's not exactly the way Justice Ruvolo puts it. But it's pretty darn close.

And I think, on the merits, he's probably right as well. Even though I can definitely see the other side.

So dust off those Section 1008 exemplars, you often-way-too-litigious types. They may well work for you in the end.

Wednesday, January 16, 2008

Preserve Shorecliff Homeowners v. City of San Clemente (Cal. Ct. App. - Jan. 16, 2008)

You should read this opinion if only for the breezy manner in which Justice Sills writes it. That's not something you see every day. Even from him.

Plus, on the merits, he's exactly right. It's unconstitutional under the First Amendment to require that people who circulate referenda petitions be eligible voters in the city (or other locality) in which the referenda is to be voted upon. Sure, there's a 1994 Court of Appeal opinion (Browne) that upheld such a statute. But that's not good law after the U.S. Supreme Court's opinions in Meyer (which predated Browne) and Buckley (which came after, and is more on point). (Parenthetically, I might not have included Section C.3.a of the opinion -- which tries in part to distinguish Browne -- and instead would have just gone with C.3.b, which argues that this opinion doesn't survive Buckley. I think the latter point is much stronger than the first.)

So I agree with Justice Sills on the merits. Even though I can also see the counterarguments, and think that the dissenters in Buckley made some good points. I also agree with his decision to reach the constitutional issue even though -- somewhat stunningly -- no such argument had been raised by the parties below. His analysis of this issue is spot on, in my view. Exactly right.

So a neat First Amendment opinion for the day.

P.S. - For what it's worth, I'm somewhat less convinced by the companion opinion (in a separate case, but published at the same time) authored by Justice Sills. I think there's a pretty good argument for substantial compliance in that one. But I see his argument to the contrary, which is far from frivolous. Still, I think that the first opinion is better. And is much more clearly right.

U.S. v. Lowry (9th Cir. - Jan. 16, 2008)

Here's a criminal opinion that you don't see every day. Or at least you don't see every day since the mid-1800s. It's a prosecution of Native American for trespassing on U.S. land, in which the Indian claims that she's entitled to live there because she has aboriginal title to the property. Neat, huh? Not your typical boring drug distribution or other criminal enterprise. This one's actually cool.

The result, you ask? Well, let's just say that Karen Lowry and Chief Joseph now have one more thing in common.

Tuesday, January 15, 2008

In Re Marriage of James M. (Cal. Ct. App. - Jan. 15, 2008)

I sympathize with the trial court in this one.

It's a marital dissolution proceeding, the ex-wife is proceeding pro per (having failed to pay her lawyer), and she repeatedly demands that the trial date be moved -- even in the midst of trial -- based upon her bipolar disorder. The trial court, Judge Silber (in Orange County), eventually gets frustrated with all of this -- both the apparent judge-shopping as well as the years of resulting litigation (and cost) and denies her final request, and she appeals. And Justice Fybel reverses.

Mind you, Justice Fybel expresses some sympathy with the trial court as well. But I'd have expressed a fair piece more. As well as potentially come out the other way. At some point, justice delayed is justice denied, and I think this repeatedly-delayed trial either comes very close to or crosses the line.

My reaction to this dispute is also probably colored by the particular nature of what I perceive to be the ex-wife's conduct. I have no doubt -- or at least little doubt -- that she did, indeed, feel incredibly stressed, and was indeed a mental "wreck", as the various trial dates approached. But, in part, that's the nature of the beast. Every time a trial date approached, she got a psychologist to say -- accurately, no doubt -- that she was totally stressed and bummed, and so a continuance was justified, and also that a delay might "help". But come on. We all know that the delay is probably only going to "help" until the next trial date. At which point the stress will reappear. At some point, you gotta say: "Sorry. That's the trial date. You gotta be ready at this point." And two years of delay is probably long enough. Or at least darn close. Especially after the ex-wife has said (as she did here) that this would be the last time, no other continuances would be requested, and then, at the latest trial date, surprise surprise, another request -- brought before a different judge -- comes down the pike.

Which is not to say I'm not somewhat sympathetic to the ex-wife. I am. But I'm also sympathetic to the position of the ex-husband. As well as of the trial court, which has to both arrange its schedule and deal with all this stuff. Again, at some point, enough is enough.

And so I might have written this one a tiny bit differently than Justice Fybel. Mind you, I think that Justice Fybel does a good job at the end of saying that there might be additional ways to solve this problem as well (and which I thought of while reading the opinion myself): maybe appointing a guardian ad litem (which had been attempted in the trial court previously) or appointing an attorney. But even apart from such measures, I think that the situation facing the trial court might require a little additional deference as well.

One thing I do know. Unlike Justice Fybel, I definitely wouldn't have awarded costs on appeal to the ex-wife. The interests of justice, in my mind, definitely don't support it. Nor, for sure, would I have awarded her her attorney's fees on appeal. Something that Justice Fybel expressly leaves open.

Even if she's entitled to a new trial, no way I'm giving her those. That only adds insult to injury. And, in my mind, ain't right.

Bingue v. Prunchak (9th Cir. - Jan. 15, 2008)

Las Vegas police officer Eli Prunchak sideswiped an innocent bystander as he was racing to join a high-speed case on I-95. The bystander sued, and Prunchak moved for qualified immunity, but his motion was denied by the district court.

But this is Vegas, baby! Roll again! This time in front of the Ninth Circuit.

And the slot machine -- er, I mean, panel draw -- comes up: Bybee . . . . Smith . . . . and Smith.


Denial of qualified immunity reversed.

P.S. - I express no views on the merits. Regardless, I'm pretty sure that Prunchak let out a big fat sigh of relief -- or at least should have -- when his lawyer told him who was on the panel.

Monday, January 14, 2008

De Bruyn v. Superior Court (Cal. Ct. App. - Jan. 15, 2008)

Toilet overflow? Massive water damage? A hassle. But at least you're insured, right?

Well, sure, you're insured for the direct water damage. But let's say that the water causes some mold. Which, of course, it's definitely going to do.

In that event: Tough. You're not covered. At least if your insurance policy's with Farmers. As well as, at this point, with pretty much every other insurer as well.

So much for resting easy at night, or on vacation, huh?

U.S. v. Calvert (9th Cir. - Jan. 14, 2008)

Here's a good one for the day. An opinion by Judge Larson, sitting by designation from the Central District. Who's an old debate type -- from roughy my era, no less -- so I was especially attentive. But even without the personal connection, I'd still have been interested in the opinion.

For two reasons. One policy-centered, the other far from it.

First, as to policy, Judge Betty Fletcher writes a very interesting concurrence about the role of dicta, especially in the context of explaining the rationale behind one's decision. It's short, and definitely worth reading. My sense was that Judge Fletcher was fine with at least some of the explanation, but not other parts, and just wanted it left out. But Judge Larson, who had devoted the effort to writing the thing, and who also thought that it helped explain why he reached the result he did, wanted it left in. And since Judge Gould was willing to go along with Judge Larson, you've got Judge Fletcher's concurrence.

Disputes like these are always interesting. On the one hand, sure, you don't want to spout off about unnecessary things. But you also want to tell observers where you're coming from, even if some -- or even most -- of your analysis is technically unnecessary to the result. After all, virtually everything other than "We find for the appellee" (or whatever) is, in some sense, technically "dicta". But we still put it in there.

That said, sometimes judges definitely say more than what's necessary. And the dispute here is a pretty good example of two sides of the coin, and prompts some good thoughts about how much is enough and how much is too much.

So that's the policy reason to read the opinion. On the non-policy side, it's also got a line -- on the first page, even -- that I first thought was funny, and that later became telling. Timothy Tyler convinced an elderly couple to let them into their house on the pretext of inspecting the motor home they had listed for sale, and then bound the couple to chairs in their dining room with plastic ties. At which point the wife asked Tyler to please, please leave, to which Tyler responded "I don't like this any more than you do."

Which is absurd, of course. Sure, Tyler might not have been having a good time. But I'm nonetheless quite confident that Tyler would much rather be in the position he was in than in the bound and at-the-mercy-of-a-stranger position that Gerardine (the wife) was in.

So I thought that was an interesting thing to say. One with a modicum of truth, but that nonetheless was total nonsense.

But then guess what happens? Tyler takes Geraldine to go to the bathroom, and when he comes back to the dining room, Geraldine hears three gunshots. At least one of which was from a gun that Clyde (her husband) had surreptitiously retrieved from the kitchen during the home invasion robbery. Clyde had been shot in the abdomen by Tyler, and spent several weeks in the hospital as a result. But he was better off than Tyler. Who died from the gunshot wounds inflicted by Clyde during the battle.

So, in the end, Tyler was right. He didn't like these events any more than Geraldine did. And turned out to like them very much less.

An interesting case.

POSTSCRIPT - A little birdy called my office shortly after I posted this -- anonymity is always preserved here at the California Appellate Report -- noting that he couldn't figure out from my post who Calvert (the name of the defendant in the caption) was. Calvert, as it so happens, was a colleague of Tyler (the dead guy) in prison, and Calvert allegedly recruited Tyler to retailiate against Clyde for previously testifying against a guy named Peters, another jailmate, to whom Calvert owed $60,000. Confusing? Such is the nature of criminal conspiracies, I'm afraid.

Friday, January 11, 2008

Crowley Meritime Corp. v. Boston Old Colony Ins. Co. (Cal. Ct. App. - Jan. 11, 2008)

There's gotta be a sexier way to start a published opinion than this:

"In this case we cross the Atlantic Ocean to consider the relationship, if any, between domestic and foreign insurance agreements in an arbitration dispute involving equitable contribution between insurance companies."

Doesn't exactly make you want to drop everything to read the remaining pages, does it? Truth be told, using the phrases "domestic and foreign insurance agreements," "arbitration," and "equitable contribution between insurance companies" in the same sentence pretty much ensures that I'm going to want to the skip to the end. Or the next case.

But I didn't. And that's 5 minutes of my life I'll never get back.

I'm sure if you're a California meritime insurance lawyer, you'll want to read this one. Then there's the other 299,999,998 of us.

P.S. - Not Justice Marchiano's fault. Just the nature of the beast.

Thursday, January 10, 2008

McGarry v. Sax (Cal. Ct. App. - Jan. 10, 2008)

The two published cases this afternoon both happen to involve pro per litigants in the California Court of Appeal. The first of whom was someone who was injured when some professional skateboarders threw out a free skateboard deck into a crowd of spectators. The second of whom was someone who was late for her plane flight from LAX to Vancouver, decided to make various references to "bombs" in connection with her luggage (which did not go well for her), and then sued United Airlines.

Both pro pers lose. The first, Daniel McGarry, is a nonlawyer (though apparently assisted by a lawyer, Linda Foster, on appeal) who made a variety of procedural mistakes in the Notice of Appeal and, in any event, lost on the merits with respect to the remaining defendant. Affirmed.

The second, Barbara Levin, is a former lawyer (and Indiana U. and Indiana Law graduate) who's been suspended (and hence not entitled to practice) since 1999, and was a former prosecutor in Illinois. And who could perhaps benefit from some anger management classes. (As an aside, I loved footnote 4 of the opinion, which reads: "The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.") Affirmed as well.

(P.S. - For what it's worth, if I were Ms. Levin, rather than have a published Court of Appeal opinion that described both my alleged activities at LAX, as well as my psychiatric and other history -- e.g., my personality disorders -- I've have accepted the jury's verdict and not filed an appeal. But that's just my thought.)

You're not going to win that many cases as a pro per. These two are not the exceptions to the rule.

People v. Matye (Cal. Ct. App. - Jan. 10, 2008)

The "bag whore" case continues.

I posted about this opinion -- which is memorable (to me, anyway) only because of the use of that term -- back in 2006. The case then went up to and down from the California Supreme Court. And now returns from whence it came.

And, fortunately, the latest opinion (by Justice Scotland) continues to use the phrase "bag whore". 'Cause you can't say that term too many times in an opinion, I say.

Just a reminder: A bag whore is someone who trades sex for drugs. Live and learn.

Feldman v. Bomar (9th Cir. - Jan. 10, 2008)

Here's a case that hits close to home. 87 miles to the Northwest, to be exact:

National Park Service: "Non-native feral pigs are eating all the rare, native plants on Santa Cruz Island. And causing lots of other problems too. We're going to get rid of them."

Pig-Huggers: "Wait! Don't kill them! Can't you just sterilize them, or give them birth control, or something like that?"

NPS: "No. That's a hassle. Killing's easier. Faster, too."

PHs: "Okay then, I'm going to sue. You violated NEPA and CEQA."

District Court: "No they didn't."

PHs: "Here's my appeal to the Ninth Circuit."

NPS: "Go ahead. By the way, at this point, we've already killed all the pigs. They're dead, Jim. No relief. Dismiss the appeal as moot."

Ninth Circuit: "Yep. Done."

The actual opinion is a little bit longer. And not in dialogue form. But that's nonetheless pretty much what it says.

Wednesday, January 09, 2008

Fiscal v. San Francisco (Cal. Ct. App. - Jan. 9, 2008)

San Franscisco voters may be liberal. They might like gun control. They might even pass a statute that bans the sale and possession of handguns in the city. Indeed, all of this is, in fact, true.

No matter. You can still possess and sell handguns in San Francisco. So sayeth the First District.

Berger v. City of Seattle (9th Cir. - Jan. 9, 2008)

Today was a busy day for the Ninth Circuit, with nine published opinions. But by far the best -- and longest -- of the litter was this one.

It's a classic, and important, debate between conservatives and liberals regarding how much one can legitimately restrict free speech in a public forum. With Judge O'Scannlain representing the righties -- and authoring the majority opinion -- and Judge Berzon representing the lefties.

Both sides make cogent arguments for their position. Both sides of the debate seem reasonable. But, obviously, one of them has the better of the argument.

See which position you find more persuasive. Everyone recognizes the value of free speech. The question is how much the government can limit it. And this case is a perfect framing of the resulting debate.

Great job by both chambers.

Tuesday, January 08, 2008

City of Los Angeles v. 2000 Jeep Cherokee (Cal. Ct. App. - Jan. 8, 2008)

Call me crazy. But when (1) your case is substantively identical to one which the California Supreme Court granted review; (2) the California Supreme Court granted review of your prior opinion, held it pending the adjudication of the other case, and then remanded it after it adjudicated the case it took; (3) the California Supreme Court squarely held in the other case that preemption existed, on facts (again) identical to those at issue in your case; and (4) after the California Supreme Court ruled, the appellant in your case admitted that the present case must be affirmed -- well, given all these facts, why are we publishing this opinion? Which, in large part, merely consists of block quotations from the California Supreme Court's case, and holds that, yep, as everyone agrees, the case is on all fours.

No harm to publish it, I guess. Though some trees might disagree. Still, for whatever it's worth, I don't think the opinion meets the standards for publication. Though that may just be more insight into how meaningless those standards are in practice than anything else.

You publish opinions you feel like publishing. Even if the principal point is simply to say: "See, I told you so."

Fair enough.

NLRB v. Friendly Cab (9th Cir. - Jan. 8 , 2008)

You don't see many labor law cases anymore. For a variety of reasons, including (but by no means limited to) the decline in union membership. Which is a personal bummer for me, because I went ahead and took a labor law class in law school but now very rarely get a chance to apply that knowledge. But enough about me. What about your friendly taxicab drivers at Friendly Cab?

They want a union. Their employer, however, says they can't have one. Or, more accurately, that they can do whatever they want, but that the employer doesn't have to bargain with them. Because the taxicab drivers are, according to the employer, independent contractors rather than employees.

The NLRB, however, begs to differ. Even under the Bush Administration. Hence the action.

The NLRB finds an unfair labor practice. Friendly Cab appeals. And the Ninth Circuit affirms. In an opinion by Judge Callahan, no less.

Which seems right.

So there you have it. Your labor law reading for the day. And a semester in law school vindicated for yours truly. A win-win.

Monday, January 07, 2008

People v. Jefferson (Cal. Ct. App. - Jan. 7, 2008)

Imagine that you and your homies have recently killed someone in a drive-by shooting. Someone who, as it turns out, was a totally innocent bystander. Oops. Bad Move #1.

The police drag you and one of your friends in for interrogation. Happens. You and your buddy both invoke your right to be silent. Smart. Good Move #1. Especially good (for you, anyway) since the police basically have no ahrd evidence against you anyway. So the only way you're going to be in trouble is if you talk. Which you seem to know, by the way. Smart again.

The police then put you, and, thereafter, your friend, into the same holding cell. Which, of course, they've bugged. Duh. You and your buddy then proceed to have a lengthy and detailed conversation in the bugged holding cell about your respective involvements in the shooting.

Oopsies. Bad Move #2. One that's putting you in prison for 25-to-life for first degree murder.

Mind you, I don't feel bad for you. Your call to pull the trigger, after all.

Still, as a life lesson, I make the following counsel: Whenever the police deliberately put you and your buddy in the same holding cell, assume that the cell is wired for sound. Have your incriminating conversation about the first-degree murder you committed, well, somewhere else. Anywhere else. Anywhere but a jail.

Probably a pretty good thing to remember.

People v. Oglesby (Cal. Ct. App. - Jan. 7, 2008)

This is not why Rodney Lyn Oglesby is spending six years in prison. Or at least not most of the reason why.

Still, it doesn't help your domestic violence case -- or your attempt to appear sympathetic -- when the third charge to which you pled guilty was for "committing animal cruelty by killing a kitten."

That's only okay if you play in the NFL.

CHP v. Quigley (Cal. Ct. App. - Jan. 7, 2008)

I was just teasing, Justice Rushing. I knew -- or at least suspected -- that the bizarre spelling of "Thus" in this opinion (about which I posted on Friday) was likely the fault of a computer, not an actual typo.

Still, I liked the heading of the amendment posted today. Which I've never seen before, and which says: "(opn. on rehearing; reposted 1/7/08 to correct data corruption occurring in posting process on 1/4/08)"

Hopefully, and presumably, that sort of stuff doesn't happen all the time. Otherwise I'm sure it'd be totally annoying to the respective authors.

Friday, January 04, 2008

CHP v. Quigley (Cal. Ct. App. - Jan. 4, 2008)

It's a sign of the times that it takes 25 pages for a court to explain precisely why a dude who wears a baseball cap on his head -- or, for that matter, a yarmukule or dixie cup tied to a string -- doesn't get off on the grounds that he's wearing acceptable safety equipment under California's Helmet Law. Or, more accurately, why a dude with a baseball cap isn't entitled to merely a "fix-it" ticket that simply says "Eventually come to the police station with an acceptable helmet and we'll let you off."

Regardless, that's the law. Wear those absurd half-head helmets with the obviously fake DOT sticker and you may well just get a meaningless fix-it ticket. But flout the law even more and it's likely an actual ticket for you. That's basically 25 pages in two sentences.

Interesting case.

P.S. -- "ThOus" on page 10 of the opinion should be "Thus". Let's run that spell-checker one last time.

Thursday, January 03, 2008

Hayward v. Marshall (9th Cir. - Jan. 3, 2008)

This is yet another of the plethora of cases in which the Governor -- here, Gray Davis -- reversed the recommendation of parole for someone convicted of murder. And you can tell how it's going to come out on appeal merely by reading the first couple of paragraphs of the Ninth Circuit's opinion. In front of a panel, by the way, that includes Chief Judge Kozinski. Who's not exactly a bleeding heart leftie:

"On December 15, 1978, Hayward, with other members of the Vagos motorcycle gang, traveled to the Buccaneer Bar in Sierra Madre, California. There, he confronted a man who, according to conflicting accounts, had either slapped or battered and attempted to rape Hayward’s girlfriend (who would later become Hayward’s wife). The confrontation turned physical and ended after Hayward stabbed the man twelve times, killing him. In 1980, a California jury convicted Hayward of second degree murder, and the court sentenced Hayward to state prison for a term of fifteen years to life.

Hayward has spent the last twenty-seven years in prison. He is now sixty-four years old. He retired from the Vagos motorcycle gang in 1981. In the twenty-seven years Hayward has spent in prison, he has completed substantial vocational training in the fields of plumbing, mechanics, welding, meat cutting, and shoe repair. Hayward obtained a GED in 1981 and has developed typing and computer skills through job assignments in prison. For the last twenty years, Hayward has led prison tours for university students studying criminal justice. He has not had a major disciplinary violation in prison since 1989, and his last minor disciplinary infraction was in 1997."

Even before addressing the merits, the opinion then continues with a legion of factual recitations in the same vein. Which make the intended result pretty darn clear. A result that ends up reversing my former colleague (and all-around great guy) Gary Feess.

So Ronald Hayward gets out of prison. And I think the majority is right that the probability that the sixty-four year old Hayward will stab someone a dozen times in a bar fight upon his release is pretty much nil.

Saleh v. Fleming (9th Cir. - Jan. 3, 2008)

"This will undoubtedly shock you," Judge Berzon essentially says in her short -- but trenchant -- concurrence in this case, "but I agree with Judge Norris -- who dissented in that earlier Ninth Circuit case about Miranda -- rather than the contrary views of Judge Brunetti. But Brunetti had two votes, and Judge Norris had one, and so I'm forced to go along with Judge O'Scannlain in this one."

Makes things pretty clear. And hardly a surprising lineup.

Wednesday, January 02, 2008

People v. Lawrence (Cal. Ct. App. - Jan. 2, 2008)

"There is nothing like a short stint of self-representation to dampen the hubris of a defendant who may not truly appreciate the dangers and disadvantages of self-representation when advised of them as part of a Faretta waiver."

Ain't that the truth. Great line by Justice Perluss.

P.S. - Congratulations on the puppies!

Leadsinger, Inc. v. BMG Music Publishing (9th Cir. - Jan 2, 2008)

The New Year starts out poorly for karaoke lovers. Because the Ninth Circuit holds here that even after you get the compulsory mechanical license provided by statute, it's not thereby permissible (or fair use) to display the lyrics to the songs as well. That'd be a copyright violation. So if that's what you want to do, you have to pay more.

Oh well. Looks like your tab at the karaoke bar will go up. Unless everyone memorizes all the lyrics. Which ain't gonna happen.

Music Companies 1, Karaoke Singers 0.