Thursday, April 30, 2009

In Re Prindle (Cal. Ct. App. - April 20, 2009)

Guess what sort of opinion contains the following description of the underlying facts: "In May 2002, Darrel Prindle entered the home of Angela Prindle, his estranged wife. He shot and killed Angela. He also shot Angela's sister (Jessica Harris) and Jessica's daughter (Crystal Perkins)."

Is it:

(A) A death penalty case;

(B) A criminal (e.g, 25-to life) case;

(C) A tax case; or

(D) A probate case.

All of the above are, of course, possible. The correct answer is nonetheless (D). Of all things. (No fair, by the way, if you intuited the right answer via the caption.)

Wednesday, April 29, 2009

Burn v. Neiman Marcus (Cal. Ct. App. - April 28, 2009)

Why do people embezzle?

Gambling debts? Drug problems?

Sure. I've seen all the above.

But here's a new one. Someone who embezzled -- to the tune of $1,000,000 -- and spent nearly all of it shopping at Neiman Marcus.

I gotta say that's a new one to me.

Mind you, I think I can one-up this. I was once at a law firm where the bookkeeper, who was a 60-ish year old woman, embezzled around the same amount and spent a fair chunk of it on twenty-something boy toys.

I guess it's all about what you happen to really, really like.

P.S. - On the merits, I actually think that Justice Pollak's dissent makes a darn good point. The majority holds that retailers have no duty whatsoever to ensure that they aren't paid with stolen or forged checks, regardless of the number of red flags. I understand the reasoning, but think that the better view might be to the contrary. Let me give a hypothetical -- or, at least, I'll call it a hypothetical. Imagine that someone brings a small claims action against AT&T because it accepted multiple abnormally large ACH transfers (e.g., "pay-by-phone", where you just give your account and routing numbers on the check) from a dude who took those numbers off a third party's check. AT&T accepts the money (over $1000 worth) but, due to the suspicious nature of the transfers, cancels the subscriber's cell phone account. But keeps the money, and never tells the third party (i.e., the person whose account numbers were stolen) that it actively suspects fraud. The thief subsequently is caught and sent to jail for his crimes, AT&T is up $1000+ for services it never had provided, and the victim loses another $500 (in addition to the $1000+) during the period between when AT&T discovered the fraud (but did not tell him about it) and when the victim discovered it. The majority here says there's "no duty" at all, so presumably the victim recovers nothing. Whereas I think that the victim should clearly recover the $1000+, and potentially the $500 as well. [To avoid speculation, no, this didn't happen to me, nor to anyone I know personally.] For this reason, I'm not sure that I wouldn't take this case up if I was on the California Supreme Court. The categorical rule established here seems overly harsh, and creates a fair amount of mischief.

People v. Frazier (Cal. Ct. App. - April 29, 2009)

Here's an interesting case for the hard-core animal liberation crowd.

You get an extra several years in prison if you "personally" inflict great bodily injury on another person. It doesn't count if you direct someone else to do it; even if you tell your friend "Get him!," and the friend does, there's a California Supreme Court case on point that says the enhancement doesn't apply. Because you didn't "personally" inflict the injury.

Now for the present case. What if the person you say "Get him" to isn't actually a person, but is instead a dog? So the dog commits the attack, not you. Same result? Enhancement or no?

Justice Sims says that's different. And I agree with him. We treat dogs like other types of property. If you use a knife to slice someone, you've "personally" inflicted injury. If you use a car, same thing. Ditto for dogs.

What's interesting is to figure out if the result would be the same in a world in which we didn't treat animals as property; if we really adopted the "guardian" or other rationales that are occasionally advanced. Would the result then be different in this case?

Plus, although I fully agree with Justice Sims, I wonder if his reasoning is entirely correct. He says that the enhancement applies because unlike the situation in which you tell another human (i.e., the principal) to attack, and hence only aid and abet, "the law does not recognize dogs as having the mental state that can incur criminal liability." As Justice Sims puts it succintly: "[D]ogs do not possess the legal ability to commit crimes.
As a consequence, a dog cannot be a principal to a crime" and hence the California Supreme Court's holding is inapplicable.

I initially thought this was correct. But then I thought: Well, wait a minute. What if you tell a three-year old, or an insane person, to attack another? Those people often as a matter of law similarly lack the mental state to incur criminal liability. But I presume the California Supreme Court's ruling would still apply, as you still did not "personally" inflict the injury. (I admit that I haven't actually looked up any cases on this point, but this seems reasonable as a matter of first principles.)

So what I really think is that the defendant here "personally" inflicted the injury not because dogs cannot be criminally liable, but rather because they are deemed property and hence mere instrumentalities. Which in turn heightens the issue about whether the rule here would be the same if we treated them otherwise.

I like the cases that make you think. This one's definitely one of 'em.

Tuesday, April 28, 2009

County of Los Angeles v. Fairmont Speciality Group (Cal. Ct. App. - April 28, 2009)

Are you from Honduras (as a couple of my friends are)? If so, I've got a great profession for you:

Drug dealer.

Why, you might ask? For the money, of course. But the big side benefit is that, apparently, Honduras won't extradite you. Which is good for drug dealers, but bad -- as this case reflects -- for bond companies.

For anyone interested in empirical work, it'd be interesting to see if this gets reflected in the marketplace for bonds. Do people charged with drug offenses who are Honduran nationals have a harder time getting bonds and/or pay a premium due to their differential ability to successfully flee? How well does the "invisible hand" work in this area?

Regardless, if you're from Honduras and are about to be -- or are -- busted for a drug offense, after what I learned today, I have three words for you:

Flight to Tejucigalpa.

Mohamed v. Jeppsen Dataplan (9th Cir. - April 28, 2009)

Sometimes you smile when the panel draw comes out.

This is a torture case. Err, I mean, "extraordinary rendition." Oops, I mean, "enhanced interrogation techniques." Whatever. It's a bunch of people who had their testicles zapped, were beaten, deprived of sleep, etc. Call it what you will; by any name, it's not an evening at the Ritz. Several of these people have been at Guantanamo, but this lawsuit's about what transpired at the U.S. "dark prisons" and/or at the hands of the foreign governments who we transferred these people to in order to do our dirty work. Err, I mean, "the work the American people sadly don't have the stomach to perform personally in these desperate times." Like the whole "injure your privates" thing.

The district court dismisses the lawsuit, even though it's against a private party who allegedly helped with the program, when the U.S. comes in on a 12(b)(6) and seeks dismissal pursuant to the state secrets privilege. The ACLU represents the plaintiffs, Munger Tolles represents the defendants, and (as you might expect) there's lots of amici.

Who's the panel? Judges Schroeder, Canby and Hawkins. Two Carter appointees and a Clinton. Could you get a better panel if you were the plaintiffs? Of course you could. But could you get worse? Definitely. Much.

So the decision is unanimous. Reversed.

Monday, April 27, 2009

Iglesia Evangelica Latina v. Southern Pacific Latin Am. Dist. (Cal. Ct. App. - April 27, 2009)

Is there anything wrong with this opinion on the merits? Probably not. It's another one of those difficult "who really owns the church" cases, which are always a nightmare. So I'll basically take Justice Zelon's word for it -- at least after twenty-nine pages -- that the trial court got it wrong. On the merits, this seems plausible.

My chief complaint about the opinion, however, goes to style rather than substance. This is a classic example of those opinions from the California Court of Appeal that read exactly as what they are -- basically, as a bench memorandum written prior to oral argument to enlighten the judges and speed up the opinion-writing process that is barely retouched in the final version. Which is not a compliment. Pages and pages of the opinion entail the mere recitation of the facts and holdings of prior cases that obviously help the judges understand the case (and tangentially might serve as a sort of introduction to the reader) but that affirmatively distract from the substantive analysis and serve the principal function of merely ensuring the death of more trees. Take a look, for example, at pages 12 through 20. Classic bench memo.

Do I understand why opinions from the California Court of Appeal sometimes read that way? Of course I do. You've got a very brief period of time after oral argument to crank out your opinion. So chambers writes it in advance. And having done so, what you publish is often what you have. Sometimes with other classic marks of rapid California appellate justice; here, footnote 14, which entails a lengthy discussion of a case discussed at oral argument that's relegated to a footnote because (of course) this was all added after the draft opinion had already been prepared.

Unfortunately, the combination of statutory deadlines and the way state chambers sometimes works results on occasion in an opinion that's much less readable than it could be. This, in my opinion, is an example.

I'm sure that Justice Zelon could and would write a better opinion in a different setting. She's definitely bright enough. Unfortunately, the structure we have sometimes results in opinions like this one. Opinions that on the merits may be just fine. But are hardly products of which we are especially proud.

Sort of like a lot of my posts, I imagine. My only defense being that it's not my full-time job. :-)

Arizona v. Gant (U.S. Supreme Ct. - April 21, 2009)

The usual rule I impose upon myself is to not write about contemporary Supreme Court cases. They get enough play and insight as it is, and I leave that stuff to my academic scholarship.

But I'm going to depart -- abeit incredibly briefly -- from that guideline in this exceptional circumstance. Because when I read this opinion, I found myself saying: "You know, even though no one else on the Court agrees with him, I think that Justice Scalia is correct."

That's rare. As in, rare. So I thought I'd at least mention it.

Have Nino and I occasionally agreed? Of course. In plenty of 9-0's, 8-1's, and even 5-4's. But rarely when he's out on his own.

Nonetheless, I think he persuades me that his approach is the better one here. For slightly different reasons than the ones he articulates; for example, I'd emphasize that abandoning precedent is more permissible when a prior holding is "badly reasoned and produces erroneous and unconstitutional results," as opposed to Justice Scalia's phrasing that favors departure when precedent is "badly reasoned and produces erroneous (in this case unconstitutional) results."

Still, even with my various reservations, of all the different opinions in this case, I think that I find Justice Scalia's solitary voice the most persuasive. So thought I'd mention it.

See what you think.

Friday, April 24, 2009

People v. Waldie (Cal. Ct. App. - April 24, 2009)

Two points about this one.

(1) Ewwwww. Creepy!! Reading the notes the defendant sent to the 15-year old just made my skin crawl.

(2) This is a classic example of an overly agressive view of what counts as "harmless error". There's no way the result in this case is crystal clear, and I could easily see a jury deciding there was reasonable doubt. My sense is that -- perhaps partly due to (1) -- the Court of Appeal nonetheless themselves concluded, albeit on a cold reocrd, that the defendant was guilty. Hence the result.

Do I think the guy's guilty? Sure. Probably. Was there a real defense in this one? Totally. And could the error in letting the jury know about the defendant's (totally understandable) refusal to talk to the police have affected the verdict? Sure it could. (Which, I have no doubt, is why the prosecutor highlighted it during closing arguments.)

We use harmless error way too much, I think. Including here.

P.S. - That said, to reiterate: Ewwwwww!

Gardner v. Martino (9th Cir. - April 23, 2009)

You've got more rights under the First Amendment if you're a blowhard. Or, to put it as Judge Consuelo Marshall does (sitting by designation), if you're "an opinionated and arrogant" host of a radio show, you're harder to sue for defamation than someone who's actually reasonable.

To put it another way, the more you defame everyone, the harder it is for any particular person to sue you for defamation. Since, after all, everyone knows you just say whatever you feel, without any actual knowledge or validity. So, as here, even if you're accusing a particular business of "lying" about something, which may seem to be a statement of fact, it's really a statement of opinion if you say stuff like that all the time, and your radio audience just listens to be amused.

This particular case involves a show called The Tom Martino Show. Presumably it would include a wide range of other contemporary radio content as well.

To represent the holding mathematically, one might say: Defamation + Defamation + Defamation = No Defamation.

You can understand where this principle comes from, since if people really do not put actual faith in anything you say as a statement of fact, it's hard to call it "defamatory," since statements of opinion are protected. The heightened immunization of less valuable speech is nonetheless, at a minimum, interesting.

U.S. v. Crowe (9th Cir. - April 24, 2009)

A cohabiting man and woman (who have an eighteen-month-old son) go to a bar to celebrate New Year's Eve. They return home from the bar and get into an argument, which eventually becomes physical. During which one of them grabs a knife from the kitchen counter and fatally stabs the other in the chest.

Because it's on an Indian reservation, the defendant's charged in federal court. At trial, the jury learns about previous domestic violence, including the fact that during a different argument between the parties earlier that year, the defendant hit the victim on the head with a liquor bottle. Defendant is convicted.

What's the sentence? Thirty-two months. Less than three years in prison.

Seem reasonable? Too low or too high?

Does it matter that the jury only found the defendant guilty of involuntary manslaughter? After all, the stabbing was during a mutual confrontation. Does that make the three year sentence just? Or does the fact that the victim is dead -- forever -- demand more? Or do the circumstances of the offense justify less? From the facts I've discussed, what's your sense?

Let's see if one more fact matters to you. Here it is: The defendant's a woman.

Change things for you?

Thursday, April 23, 2009

Silverbrand v. County of Los Angeles (Cal. Supreme Ct. - April 23, 2009)

Sometimes you win in the Court of Appeal and you're really, really happy. Until the case gets taken up by the California Supreme Court. At which point you sometimes realize, if you're smart: "Oh my. I'm going to totally get killed. My argument is wrong on the merits and totally inequitable. This ain't going to be pretty."

That's what I imagine Daniel Barer must have -- or at least should have -- thought in this one. The issue is whether the prison "mailbox" rule (i.e., that a notice of appeal by an incarcerated prisoner is deemed filed when s/he delivers it to the prison mailbox, as opposed to the Clerk of the Court) applies in both criminal cases (where it's been a longstanding rule) as well as civil cases. The County of Los Angeles successfully persuaded the Court of Appeal to distinguish between these two areas, but then the California Supreme Court granted review. And it was Mr. Barer's job to defend the Court of Appeal's ruling.

Which is possible, of course. But on the merits, there's no way the distinction should hold. And this fact did not go unnoticed. In a move that wasn't at all surprising to pretty much anyone, the California Supreme Court ultimately decided unanimously that the mailbox rule applied in both civil as well as criminal cases.

Sometimes you've got a dog of an argument. In that event, just enjoy the ride. Sure, you're going to lose, and get grilled in the process. But articulate the best position you can and, thereafter, don't feel bad when you get crushed. It isn't you. There's nothing personal about it. You were just on the wrong side. And, in truth, the world's a better place for you losing. So be happy it all worked out.

U.S. v. Mendez-Sanchez (9th Cir. - April 23, 2009)

Your lawyers are telling you that you're going to be convicted, and are explaining why. I know you don't want to hear it. For reasons both rational and irrational. But you should listen. Really. Getting a new lawyer every time you hear something you don't like won't solve the problem, and eventually the district court will stop the lawyer roulette and start the trial.

You're sad. I understand that. You don't want to do a decade in prison. I get that as well. In spades.

But listen to your lawyer. Seriously. Listen. Otherwise your decade in prison will become two decades.

Like here.

Sierra Club v. Department of Transportation (9th Cir. - April 20, 2009)

When you win in Congress, you don't have to win in court anymore.

I bet you're glad that Obama guy won, right Sierra Club?

Wednesday, April 22, 2009

Morgan v. American Family Mut. Ins. Co. (9th Cir. - April 22, 2009)

I was wondering when we were finally going to see one of these.

Over the past decade or so, the Ninth Circuit has become much more pro-certification. I haven't run any hard numbers, but my internal (admittedly vague) calculations are that we're seeing the Ninth certify questions at a rate of triple (or more) of what we did, say, 15-20 years ago. My sense is also that this heightened pace has only intensified further during the last couple of years. With pretty much the uniform concurrence of everyone on the panel.

Today, however, Judge Bybee dissents from the certification order. Since his dissent is both cogent and concise, I can quote it in full:

"Fifteen years ago we certified a nearly identical question to the Arizona Supreme Court. See State Farm Mut. Auto. Ins. Co. v. Falness, 39 F.3d 966, 967 (9th Cir. 1994). We received an answer and we then issued an opinion in Falness. Id.; State Farm Mut. Auto. Ins. Co. v. Falness, 872 P.2d 1233, 1234 (Ariz. 1994). Falness is not in question in Arizona courts. Indeed, the Arizona Supreme Court has cited our Falness decision with approval. See Philadelphia Indem. Ins. Co. v. Barerra, 21 P.3d 395, 404 (Ariz. 2001) (en banc). Here, the majority has certified nearly the same question again to the Arizona Supreme Court. There really isn’t much doubt how this case must be resolved after Falness. Rather, we are certifying because we doubt the wisdom of Arizona’s application of its rule. In effect, we are inviting Arizona to revisit the reasonable expectations doctrine as applied to the named insured exclusion. I have my own doubts about the wisdom of the rule and its operation in Arizona, but I still don’t think there is any lack of “controlling precedent in the decisions of the [Arizona S]upreme [C]ourt and intermediate appellate courts” to justify our order. See ARIZ. REV. STAT.
§ 12-1861. I respectfully dissent."

To me, this raises the interesting issue of what one should do when the State Supreme Court says X but you think the law should be Y. Judge Bybee seems to be saying that the majority's in this boat and that in such a setting the decision to certify is improper. He also implies (and I have no reason to disbelieve him) that as to the substantive merits, he's in this boat as well -- and that, despite his misgivings as to the wisdom of the underlying state law, he nonetheless wouldn't certify.

The reason the issue is complicated, at least to me, is that obviously the panel thinks that there's some hope that the state law is in fact Y. Otherwise it would make no sense to certify, since the State Supreme Court will merely respond by saying "Nope, X is the rule." Remember, in this regard, that in cases under state law, the federal courts (including the Court of Appeals) are required to predict what this state supreme court would do, not merely read the existing cases. That's what state law "is".

So obviously the panel thinks that state law "might" be Y, since if they were 100% sure that the law "is" X -- i.e., that the State Supreme Court would say, yep, X applies -- there'd be no point in certifying the case. So then the issue becomes how much uncertainty justifies a decision to certify. One percent? Ten percent? Fifty percent?

Judge Bybee implicitly provides an answer to this question by arguing, at the end of his dissent, that the court should not certify because "I still don’t think there is any lack of 'controlling precedent in the decisions of the [Arizona S]upreme [C]ourt and intermediate appellate courts' to justify our order." But notice that this quote is not from any federal source, but is instead from Arizona's internal certification statutes. A federal court is not required to follow this standard; rather, Arizona's just telling its own supreme court that it can't answer a question unless the federal court was convinced (i.e., "that it appears to the certifying court") that there is no controlling state precedent.

Now, maybe Judge Bybee is saying (albeit obliquely) that a federal court shouldn't certify unless it's convinced that the state is permitted to answer the question pursuant to its internal state procedures. You could devise comity or other plausible rationales for such a view, but my sense is that they'd come up short. Or maybe the quotation is merely a coy attempt by Judge Bybee to persuade the Arizona Supreme Court not to take up the question, by implicitly arguing that they can't. But this both seems a wrong view of what the Arizona statute says as well as impugns Judge Bybee's motives, so I'll reject that theory as well.

Which leaves the question: So what's the standard, if not state law? Judge Bybee doesn't answer that question, but then again, neither does the majority.

It seems to me that certification is plausible -- and permissible -- if a federal court thinks that there's an actual chance (i.e., a non-hypothetical probability) that the state supreme court will say the law is Y even though existing state precedent says X. So even if there's a one percent chance, that's fine, at least as a categorical matter. Mind you, when you assess whether you should certify, that probability gets thrown into the mix alongside a ton of other equitable considerations. How long will certification take? What's the downside to the parties or the system of delay? What's the probability of not getting an answer back? All these factor into whether you should vote to certify.

So, in the end, I think that Judge Bybee has to do a little bit more here than he does to justify his vote. It'd be one thing if he said "I think there's no chance whatsoever that the current Arizona Supreme Court will change its mind, so certification is improper." And it'd be another thing if he said "I think there's a totally low chance that the Arizona Supreme Court will change its mind, and given the harms unique to this case engendered by delay, certification is thus not worthwhile." But I'd like to see (1) which version of this argument Judge Bybee intends (perhaps both?); and (2) more support for such a conclusion. Since, at least to me, it's not there just yet.

This is not a slam at all on Judge Bybee, since the majority doesn't really answer this question either, an issue that in any event I haven't seen virtually anyone else answer either. But it is something to think about. When should a federal court certify when it has some reason to think/hope that state law will change? Particularly with the rise in certification orders in the Ninth Circuit, I'd love to see someone on the court give explication of this issue a shot.

Buckingham v. Gannon (9th Cir. - April 22, 2009)

It's rare enough that you see a district court deny approval of a class action settlement. It's even rarer when the parties attempt to appeal the denial. All of this nonetheless transpires here.

For what it's worth, I agree with the per curiam opinion here. The disapproval of a proposed settlement like the one here isn't immediately appealable. The only thing I'd add to the opinion is that the rule here is similar to the rule that you can't appeal the grant of a new trial. The denial orders a "new settlement," which may well be better than the old one -- just like the new trial might be better than the one that was vacated. You have to wait and see, and don't get to appeal in the meantime. Even though that results in some hassle and expense in the trial court. That's just the way it works.

Tuesday, April 21, 2009

Sinha v. Holder (9th Cir. - April 21, 2009)

Is there any reason whatsoever to talk about this opinion, which was published earlier today? Nope. None whatsoever. It merely makes some amendments to an earlier opinion. Nothing special at all.

The only reason to even mention the thing is because it's written by Judge Berzon. Whose daughter just won a Pulitzer.

Reason enough. Congratulations!

County of Los Angeles v. Fairmont Specialty Group (Cal. Ct. App. - April 21, 2009)

Does statutory language matter? Sure it does. But so does the policy behind a statute, as well as its purpose.

So I could talk at length about the various complicated statutory provisions that govern when bail is forfeited. Or I can just tell you the facts and let you figure out what's fair. Since that's in fact the rule, and rightly so.

Defendant is arrested in Inglewood and Bondsman bails her out. Defendant then skips, and a bench warrant is issued. So Bondsman now has a certain period of time to catch Defendant or otherwise bring her to court.

During this period, Defendant is arrested on an unrelated charge in Culver City, the arresting officers notice the warrant, and the Culver City police call the Inglewood police about the warrant. But the Inglewood police tell Culver City to let her go, which Culver City does.

L.A. County subsequently wants to forfeit the bail. Bondsman objects, saying "You freaking had her in custody and let her go. Why should you make money off of your letting her out of jail once you had her?!"

To which, in my mind -- as well as Justice Manella's -- there's no good answer.

Solis v. Matheson (9th Cir. - April 20, 2009)

You could literally write a book -- a whole book -- about federal courts and Native American law generated solely from cases involving smoke shops on Indian reservations. There are that many cases.

Here's chapter 21, which involves the FLSA and the application of overtime principles to employees in those smokeshops. In a word (or three): The statute applies.

Monday, April 20, 2009

People v. Flores (Cal. Ct. App. - April 20, 2009)

The situation in Riverside is perhaps better -- at least slightly -- than it once was. But it's still a nightmare. Take a look at this if you don't believe me.

It used to be that you didn't get any civil trials at all. Now you get them, thanks to special dispensation, once in a blue moon.

But you've still got criminal defendants being kicked for an inability to timely find a court in which to try 'em. Plus, honestly, the Riverside D.A. isn't helping things by its well-known practice of papering Judge Tranbarger even when he's assigned to a case that will otherwise be dismissed. I mean, come on. I know you don't like the guy. But you'd rather dismiss the case, even with prejudice, than give it a shot in his courtroom? Geeze.

(I say all this, by the way, having no connection whatsoever to the situation out there other than knowing a few students who are Riverside ADAs, previously working with someone (Hal Hopp) who's now a Riverside judge, and the fact that the Riverside DA is a USD Law graduate from way back. All I can tell you is what I see and read. And it ain't good.)

U.S. v. Santacruz (9th Cir. - April 20, 2009)

Some cases resolve themselves. For example, one in which the sole question presented is: "Does a conviction for possession of child pornography constitute a 'crime of moral turpitude'"?


McKnight v. Torres (9th Cir. - April 20, 2009)

Let me offer some advice.

Let's say you're using some young women to smuggle Ecstacy into the U.S. from France. Mind you, I'm not saying that's what you're actually doing. Let's just say you're doing it. Allegedly.

You (understandably) want to strike a deal with the United States, which has indicted you. They want a proffer before they'll consider your proposal. You're hesitant, of course. Since you'll be totally implicating yourself. To which you respond by hiring a good attorney, who strikes a written deal that says that the government will not use anything in your proffer at your trial or sentencing.

Sounds good, right?

Except for one thing. You -- and your lawyer -- forgot to add to the deal an agreement not to allow them to turn your proffer over to France. Which then totally uses it to prosecute you there. Which will presumably add a fair piece of additional time to the eight-some years you got in the United States.


Nothing about this worked out very well for you, did it? I at least hope you had some good times when you used your own product (and, potentially, couriers). 'Cause prison's, well, a little bit more of a downer.

Lessons: (1) Make sure the proffer agreement covers any use to anyone. Especially foreign governments, and especially if you've been working there as well. (2) Get yourself an even better lawyer.

Nordyke v. King (9th Cir. - April 20, 2009)

I usually don't comment much on high-profile cases, on the theory that most of the arguments will eventually be made elsewhere anyway. So will just mention this case -- a high-profile "right to bear arms" case that's been pending in the Ninth Circuit for forever -- in passing, and let the reader check it out if they'd like.

The only thing I'll add is that both sides win something here. The City wins summary judgment and dismissal of the lawsuit against it. By contrast, the Nordykes win a ruling that the Second Amendment is incorporated into the Fourteenth Amendment.

So a mixed bag, in which there's something in there for everyone.

P.S. - For all the discussion in the opinion and concurrence about terrorists and self-defense and the like, it's pretty interesting that the opinion comes out exactly ten years to the day after Columbine, eh?

Friday, April 17, 2009

Century 21 v. Haberman (Cal. Ct. App. - April 17, 2009)

I'm not so sure.

Do I agree with Justice Ikola that the complaint here isn't subject to an anti-SLAPP motion? Sure I do. The first count was to recover a $200,000 loan and $14,000 in interest. That's just a routine money claim and isn't a SLAPP. The second count was for a declaration that the plaintiff doesn't have to arbitrate. I agree with Justice Ikola that this count also isn't subject to an anti-SLAPP motion. Going to court to find out whether a monetary (non-SLAPP) claim must be arbitrated does not itself constitute a SLAPP.

So I think this case could be resolved upon fairly simple -- and limited -- grounds. But Justice Ikola goes a bit beyond that, and in doing so, I think may unnecessarily make some pretty bad law.

I fully understand where he's coming from, as well as the statutory and precedential analysis he uses. It's not at all patently meritless. Justice Ikola basically reads the statute, as well as SLAPP precedent involving other "private" proceedings -- e.g., nonjudicial foreclosure -- to argue that private arbitration simply does not ential "a judicial proceeding [or judicial body], or any other official proceeding authorized by law" as required for the anti-SLAPP provisions of CCP 425.16(e) to apply. It's not a "judicial proceeding," the Court of Appeal holds, for the simple reason that it's deliberately a private nonjudicial proceeding. And, sure, there are lots of statutes in the CCP and Evidence Code about arbitrations, and about the litigation privilege applying therein, but the fact that there are statutes doesn't mean that the proceeding is "authorized by law" either. That's Justice Ikola's reasoning, and -- again -- it makes some sense.

I nonetheless think it's wrong. Both as a textual matter as well as a matter of policy. Arbitrations are more than merely private contracts. They're designed and encouraged as an alternative to formal litigation, and accordingly seem to me to be something properly protected under the anti-SLAPP statute. Remember that I agree the present case isn't protected, since it merely involves declaratory relief about an underlying money dispute, but I think that -- properly interpreted -- arbitrations should indeed be "judicial proceedings or any other official proceeding authorized by law."

Let me give the policy reason first, and then the textual one. Recourse to arbitration should be protected by the anti-SLAPP statute for the same reasons that recourse to court is protected. We prefer such relief to self-help. We also recognize that parties can potentially use arbitration to intimidate and drag people through the mud just like they can judicial lawsuits. Indeed, often, the out-of-pocket cost of arbitration exceeds the cost of judicial remedies. For the same reason we apply the litigation privilege to arbitrations, even though the latter isn't formally a "court," so too should the anti-SLAPP provisions apply to recourse to arbitration. To take an easy point. A statement in court is protected by the anti-SLAPP provisions. But under Justice Ikola's holding, a statement in an arbitration won't be protected, since it's not a statement in a "judicial proceeding or any other official proceeding authorized by law." I think that's a disadvantageous view of the law, and something that would be avoided if the statute in fact covered arbitrations.

And, as a textual matter, I think it does. Why is an arbitration a "judicial proceeding or any other official proceeding authorized by law?" The best argument, I think, is that arbitrations are "authorized by law" because they are not only permitted by the courts, but are affirmatively compelled. The easiest example is when a party files a lawsuit in court (or petition to compel arbitration) and the court affirmatively obligates the parties to go to arbitration. Surely the resulting proceeding is "authorized by law," right? It's not only "authorized" by law, but affirmatively coerced.

Moreover, even proceedings initiated via arbitration are forced to be there because, as a legal matter, the state refuses to allow judicial recourse in the face of a valid arbitration agreement. In my view, when the law affirmatively compels you do enter into a certain dispute resolution proceeding, the resulting proceeding is at least "authorized by law" (and probably more), and hence is covered by the anti-SLAPP statute. So just like a court-ordered mediation (or judicial arbitration) would be clearly covered by the anti-SLAPP statute, so too are private arbitrations. When you're legally compelled to enter into such proceedings, they're covered, at least for your run-of-the-mill arbitration in the current legal milieu.

So while I understand where Justice Ikola comes from, and again agree with the disposition of this particular case, I would disagree with his foundational premise. A premise that I think creates law that is harmful to a fair degree, and unnecessarily so. Both the text of the anti-SLAPP statute and its purpose, I believe, compel a contrary conclusion.

Ponder that as we head into a warm and wonderful weekend. Enjoy!

Thursday, April 16, 2009

World Financial Group v. HBW Ins. & Fin. Svcs. (Cal. Ct. App. - April 16, 2009)

The thing about the anti-SLAPP statute is that it's sufficiently powerful to be abused. Like here.

There's no way that the conduct here counts as "protected activity". The trial court and Court of Appeal find as much. And it's not even close. But defendants still get to obtain a stay of the action below (as well as increase the fees associated with prosecuting the matter) by making an anti-SLAPP motion that, in my view, borders on (but likely doesn't cross) the frivolous.

I do think, however, that the Court of Appeal did the case right, wholly apart from its correct adjudication of the merits. For one thing, it granted the plaintiff's motion for a calendar preference; as a result, the appeal and stay only lasted for around six months, rather than the usual year or two. For another, while not saying things affirmatively mean about the defendant's appeal, one does get the keen sense that Justice Perren (and the rest of the panel) were far from keen about defendant's arguments. Including adding the following in footnote 8, a reference appended to a sentence that reads "This rule has been recognized in a line of cases affirming the denial of anti-SLAPP motions, none of which are cited in defendants' opening brief." --

"WFG discusses each case in its brief, yet defendants' reply brief simply ignores three of them and makes only passing references to the other two. Other courts have found such conduct sanctionable. (See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-886 [$750 sanction assessed for repeated citation to unpublished case and failure to address controlling case after respondent identified both errors]; see also Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 [appellant and his attorney assessed $32,000 sanction for, among other things, "utter failure to discuss the most pertinent legal authority"].) While we decline to impose sanctions here, we do not look lightly upon such a blatant omission of relevant law and treat it as an implicit concession of defendants' claim. (See generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 9:58, pp. 9-17 to 9-18 [warning counsel that "[y]our failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court"].) "

Ouch. That's not what you want in a published opinion if you're anyone. Much less if you work for a big firm like, say, Davis Wright Tremaine -- as counsel for defendants (John LeCrone, Mary Haas, and Rochelle Wilcox) in fact do -- in which a published slam like that tends to get around. (Mary's probably glad in retrospect that the caption misspells her last name!)

Plus, you gotta love anyone -- including but not limited to Justice Perren -- who manages to work in the following line (from The Godfather) at page 12 of the opinion: "As Salvatore Tessio said to Tom Hagen, 'Tell Mike it was only business.' So it is here."

I laughed out loud. First, it's a great movie. Second, it's a great line. Third, it's a line that's actually somewhat descriptive, and in fact does somewhat stand for the point that Justice Perren's trying to make in the opinion(rather than being just randomly funny, which is usually good enough anyway). [That said, I will say that the actual meaning of this line in the movie is perhaps the opposite of what Justice Perren's using it for. Since the point of the line is that, yes, it's sort of just business, but at the same time the nature of the act makes it sort of something else as well. To use a line from a different (inferior, but still tolerable) quasi-gangster movie, when Jelly says in Analyze This "Sorry, Doc, nothing personal" as he's about to kill Ben Sobel, Sobel (played by Billy Crystal) says: ""Don't kid yourself, Jelly. It doesn't get more personal." That's somewhat the point.]

But I still love the Godfather line. Especially since it's from Abe Vigoda. Anyone who can use a line from Fish even half-plausibly in a judicial opinion is a god in my book.

P.S. - To answer the inevitable question that arises whenever you say Vigoda's name: Alive.

Millenkamp v. Davisco Foods Int'l (9th Cir. - April 14, 2009)

It's 2009. Computers are the size of walnuts. We're preparing for a mission to Mars. It's a brave new world.

But the more things change, the more they stay the same. So I'll summarize this case, which comes (not surprisingly) from Idaho, in four simple words:

"You killed my cows."

Sure, it's about milk permeate, pH levels, rumen acidosis, and lactic acid. But that's just a 21st century way of accidentally whacking some calves.

Some things are constant. Including lawsuits.

Wednesday, April 15, 2009

General Mills v. FTB (Cal. Ct. App. - April 15, 2009)

I can't think of a better day for this opinion to be published. You think your taxes -- due today, by the way -- are complicated? Think how tough it must be for unitary corporations with subsidiaries in California to figure out their respective state tax liability for forward and derivative contracts. Not easy.

On the upside, complexity gives lots of leeway to attempt to avoid tax income. Something that General Mills has hardly overlooked. Including but not limited to today's timely win in the Court of Appeal.

Get those tax returns in.

Tuesday, April 14, 2009

Mega Life & Health Ins. Co. v. Superior Court (Cal. Ct. App. - April 14, 2009)

There are a couple of things that may facially appear to mean something but that actually mean nothing of the sort.

So, for example, in this case, we see Justice Richli pointedly refer to Section 3523 of the California Civil Code, which states: "For every wrong there is a remedy." But, as Justice Richli rightly (though perhaps sadly) notes, this is by no means in fact the case. (She doesn't actually say that, of course, but that's essentially her point.) There are actually tons of wrongs without a remedy. Or, perhaps more accurately, there are lots and lots of wrongs that don't create private legal rights. Like the one in this case.

So even though Section 3523 is a "maxim" of California jurisprudence, it's really quite meaningless.

I might add, by the way, that this is a perfect case in which to establish this point. Because it involves a company called the "Mega Life and Health Insurance Company". A company that I happen to know a tiny bit about, having had a couple of (unfortunate) clients who purchased the cheap coverage offered by this entity. Continuing the line of "things are not always what they purport to be," let me just say that Mega Insurance (1) is not a "mega" (or even large) company, and (2) assuredly does not offer "mega" insurance. Far from it.

U.S. v. Felix (9th Cir. - April 13, 2009)

Let me take you -- if you'll have me -- on a digression. But for a good cause. Because it relates to an issue about which I've never devoted much thought, but which I nonetheless had occasion to examine earlier today.

We all know the usual rules about practicing in court. You've generally got to be admitted to the Bar, and the Bar to which you're admitted generally needs to be the one in which you're practicing. Otherwise you've got to get pro hac vice status. Which is much more of a pain than it should be, but nonetheless is generally possible.

With that introduction out of the way, I had chance to stumble upon this case from the Ninth Circuit. Which is an otherwise ordinary drug conviction that gets affirmed. No big surprise there, and the merits of the case are nothing special.

But I always like to know the players, especially in cases from my current locale (San Diego). So I noticed, for example, that the defendant's lawyer -- Benjamin Lechman -- was a USD Law graduate. Not a former student of mine (that I recall, anyway), but a connection nonetheless. (Ben also did his undergraduate studies at Point Loma Nazerene University, which is just up the street from my house. PLNU students have a killer view of the Pacific and a fair number of students who surf, so perhaps Ben was at one point one of the bevy of "Nazbos" who occasionally find their way north and surf the break in front of my home.)

How about on the U.S. Attorney side? There's of course the U.S. Attorney -- Karen Hewitt (also a USD Law graduate, though Berkeley undergrad) -- but the AUSA who actually argued (and likely briefed) the case is Davene Finnel. So where's Ms. Finnel from?

Hence the digression. Because it ain't easy to tell, in large part because while she's done hundreds of cases as an AUSA in San Diego during the past several years, she's not a member of the California Bar.

Which -- and I want to make this crystal clear -- is nothing against Ms. Finnel personally. She seems an entirely reasonable and (I presume) personable individual. But I did want to figure out how a person who's never been admitted in California could practice law here for several years.

Of course, the easy answer -- the one I knew already -- was that she's an AUSA and practices in federal court, not state court. But that's insufficient, since most federal district local rules require that you be admitted in the jurisdiction (e.g., California) in order to be admitted to the local district court (e.g., the SDCA). Unless, of course, you're admitted pro hac, which has its own set of restrictions and to which Ms. Finnel -- as a regular practitioner here -- presumably would not qualify.

So what are the special AUSA rules, which I knew generally but not specifically? I looked 'em up. In the SDCA, the relevant provisions are in Local Rule 83.3(c). The usual rule -- Rule 83.3(c)(1) -- is that only members of the California Bar can be admitted to the SDCA. But Rule 83.3(c)(3) makes special provisions for attorneys for the United States (e.g., the U.S. Attorney or AUSAs), presumably because you get transferred around and are doing mostly federal law anyways. For those people, you can be admitted to the SDCA as long as they're (1) admitted to any other state bar (easy), (2) representing the United States (check), and -- here's the tougher part -- (3) "provided that the attorney shall apply for and pass the next succeeding California bar examination for which the attorney may be eligible after receiving permission to practice before this court and thereafter obtain admission to the State Bar of California."

So far so good, right? We create an exception for AUSAs since we know they move around a fair piece and don't want to burden 'em. Do other lawyers also move around? Sure. Do they get the same exception? No. But perhaps that's okay. It's a very temporary measure to resolve an immediate problem. Soon the AUSA will become a regular member; i.e., at the next Bar exam.

Except for one thing. (c)(4).

Under 28 U.S.C. § 543, the Attorney General may appoint "Special" Assistant United States Attorneys "when the public interest so requires." Now, Section 543 doesn't say anything about giving those people special rules or privileges, and instead is just an authorization to allow them to become AUSAs. But Local Rule 83.3(c)(4) says that anyone so appointed by the AG is exempt from the requirements of paragraph (c)(3); i.e., will never be required to take and/or pass the California bar. Including Ms. Finnel, who became a member of the SDCA several years ago, and has practiced in that court ever since, without qualifying under the regular rules (e.g., by becoming a member of the California bar).

This strikes me as a questionable practice -- again, not as applied to Ms. Finnel individually, but rather as a general (and perhaps constitutional) policy matter. Do I get a temporary exception? Sure. But forever, or even several years? I think not. Particularly when there are plenty of people -- indeed, a daily increasing number -- of attorneys who have passed the California bar and who would be itching to be AUSAs in their home district. The justification for (c)(4), as opposed to (c)(3), seems exceptionally meager.

This exception also seems to me to make constitutionally suspect the remaining provisions of Rule 83.3(c). For example, and perhaps most importantly, Rule 83.3(c)(1) and (c)(5) state that if you're not a member of the California bar, you can't practice at all in the SDCA-- even in a single case pro hac vice -- "if any one or more of the following apply to the attorney: (1) resides in California, (2) is regularly employed in California, or (3) is regularly engaged in business, professional, or other activities in California." It seems to me that given (c)(5), there's a potentially serious constitutional problem -- particularly under the Privileges and Immunities Clause -- with these provisions. A non-admitted (to California) government lawyer is categorically entitled to litigate for years in the SDCA even if she resides in and/or does business here; by contrast, a non-admitted non-AUSA is categorically precluded from litigating in the SDCA if he resides here.

Such a structure might fail even basic rational basis tests, and when you up the ante with the P&I Clause, I think there's a strong argument that Local Rule 83.3(c) is untenable in its current form. Why can a (1) non-resident of California appear as an attorney here on occasion (pro hac vice), but (2) a resident of California cannot, when both residents and nonresident AUSAs can appear? The existence of the exception in (c)(4) calls into question all of the foundational arguments that might otherwise justify the exclusion of state residents from obtaining pro hac vice status. Why can you permissibly exclude Private Lawyer X -- just transferred by his law firm to this state -- from admission to the SDCA for a single case when you categorically include AUSA Y, who was also transferred here and who's entitled to litigate forever?

Are there arguments one could make to attempt to justify this disparity? Sure there are. But I'm not sure they'd either (1) would, or (2) should prevail.

I'm on board for (c)(3). I'd be even more on board for changing (c)(5) -- the rule applicable to non-AUSAs -- so that it allowed admission of private attorneys on the same terms as (c)(3) (i.e., you've got to take the California bar and be admitted as soon as you can). But I'm not on board for (c)(4). Which seems to me both unsound in isolation as well as when contrasted to the analogous provisions governing non-AUSAs (including, say, federal public defenders, who have no similar exemption). Plus it makes the whole structure constitutionally suspect as well.

So ponder some of that the next time your mind considers the words pro hac vice.

Monday, April 13, 2009

Vidrio v. Hernandez (Cal. Ct. App. - April 13, 2009)

If I were Judge McKnew (up in Los Angeles), here's what I'd say about this opinion, which reversed his $1857.50 sanction award: "Okay. You got me. I was angry that Mercury Insurance Company attended a mandatory settlement conference and (1) negotiated in total bad faith by never offering more than $1000, and (2) being rude to me personally. They totally should have ponied up more, if only on a cost of defense basis, and I thought -- and still think -- they weren't 'meaningfully' participating in the MSC. So I spanked 'em for almost two grand. The Court of Appeal can reverse me -- and did -- holding that there's no way to sanction a nonparty for refusing to pay more. But, notwithstanding the reversal, I think I got my point across. And, in the process, made Mercury pay a lot more than $2000 in attorney's fees, both in the trial court and on appeal, in a case that on the merits could easily have been settled for $10,000."

Though, if I were Justice Perluss, I'd respond: "All true. But we still get to reverse you."

Friday, April 10, 2009

People v. Smith (Cal. Ct. App. - April 9, 2009)

You're sitting in your car, minding your own business, in the parking lot of a motel. A cop sees you and starts questioning you, and you even consent to a patdown search and a search of your car, which finds nothing. What's the reasonable suspicion? Nothing. But you go along with it to be cooperative.

Things change, however, when the officer says that he's going to pull down your pants. You demur to the request, which does you no good, as the police promptly put you into a control hold. They put you near their police car, surround you a tiny bit, and in front of anyone who happens to be looking, (1) pull down your pants to your knees and, (2) pull the elastic of your underwear forward so they can see your genitals. And then reach on in to grab whatever they might find.

The Court of Appeal holds that such a search is entirely "reasonable" in scope and effect.

Sure, the defendant here happens to be on parole, with a "diminished expectation of privacy," but I didn't know that meant to were compelled to show your junk to any official who wants to view it.

P.S. - I tend to think that I'm reasonably well-informed as to various legal -- and non-legal -- terms. But I must admit that before this case, I'd never heard of the term "reach-in", which is what these types of searches are called. "Reacharound" I know. But reach-in's a new one to me.

Thursday, April 09, 2009

People v. Dyke (Cal. Ct. App. - April 9, 2009)

Let me reiterate -- and expand upon -- what Justice Rivera holds today in this opinion.

(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.

(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One.

Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls". Justice Rivera is exactly right on that point.

I also want to add one other thing. The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.

There's a name for that. And it's not "justice".

People v. Earle (Cal. Ct. App. - March 19, 2009)

It's the rare case in which the Court of Appeal will find that the consolidation of two criminal charges against a defendant results in reversible error. This is such a case.

Or at least that's the opinion of Justice Rushing, who writes a very powerful -- and lengthy (46-page) -- opinion. By contrast, Justice Mihara dissents, and writes a 27-page dissent of his own. If you've got the time, they're great reading. See which one you agree with. They definitely adopt different perspectives on the exact same case, which is always interesting. Plus, it's not surprising that a judge with a civil background prior to joining the bench might have a different perspective than a former district attorney on this issue.

I will say that the one frustrating thing about the Court of Appeal is that far too many opinion/dissent combinations, including this one, look exactly like what they are -- which is to say, competing draft opinions written in advance of the oral argument by two different chambers. As a result, in both opinions, you have the same basic statement of facts, review of procedure, etc. Which is annoying, because, of course, having read the majority opinion, we already know that stuff, so there's no need to repeat it twice. But having written the opinion that way in advance of oral argument -- as we all know transpires in state court (as opposed to federal court) -- we're reluctant to delete our excellent work. Hence the duplicative stuff.

Federal court has that sometimes to a tiny degree, in the case of competing bench memoranda, but it's not nearly either as bad or as pervasive. This is one area in which state procedure (and the requirement that the opinions be issued speedily after oral argument) really makes -- or, more accurately, helps to make -- for the issuance of opinions that are harder to read (and hence worse). Sadly.

Wednesday, April 08, 2009

In Re R.W. (Cal. Ct. App. - April 8, 2008)

I understand that this is a dependency case, in which we're (sadly) used to seeing some pretty atrocious facts. For that reason, I can understand and appreciate the following sentence from Justice Fybel's opinion, which nonetheless made my ears perk up, both as a parent and as an educator:

"R.W.'s grades at every school have generally been good, usually C's and B's, with some A's, a few D's and some F's in physical education."

I guess it's all about how high you set the bar.

In Re Marriage of Corona (Cal. Ct. App. - April 7, 2009)

If you're (1) an attorney in San Diego, (2) have a heavily litigated (and somewhat nasty) divorce case, (3) the merits of which involve extensive disclosure of your (and your ex-wife's) assets and property settlement agreement, and (4) not only lost but were sanctioned $5000 below, one of the bad things that can happen on appeal is that you lose your appeal in a published decision.

Richard Corona knows what I mean.

This isn't a great result for the ex-wife either, mind you, since her financial stuff is all out there as well. But at least she wins, and well as gets some public vindication.

Though even her victory is far from a solid one. Particularly since she (or, more accurately, her counsel) initially argued on appeal that there was no jurisdiction over this interlocutory matter, then retracted this assertion at oral argument (once she realized that the transaction costs of the appeal had already been sunk) and instead urge the Court of Appeal to resolve the case, only to see that request rejected by Justice O'Rourke on the ground that she was right to begin with and that jurisdiction cannot be created by the consent of the parties. So while the sanction order gets reviewed (and affirmed), the majority of the appeal is dismissed for resolution at a later date. A result that lets -- i.e., forces -- the parties to continue to expend fees and to tee up the issue once more at a later date.

But that's the way the system works. Jurisdiction is like that.

Which is why you want to think before initially moving to dismiss.

P.S. - Mr. Corona might not care much about his financial information being revealed in light of his other problems, including those that led to his current ineligibility to practice law.

Tuesday, April 07, 2009

Fones4All Corp. v. FCC (9th Cir. - April 7, 2009)

"Notwithstanding your claim that there's an intercircuit conflict, not a single judge -- and we've got a lot of them -- has voted in favor of your petition for rehearing or requested a rehearing en banc. We know your next step will be to file a petition for certiorari in the Supreme Court that raises the same 'intercircuit conflict' argument you raised here. So we're amending the opinion and adding two pages to preempt and respond to that claim. Good luck getting certiorari at this point."

Judge Schroeder says it much more nicely than that, but with the same basic message.

K.J. v. Arcadia USD (Cal. Ct. App. - April 7, 2009)

Being in love is a sufficient excuse. Or, to put it as Justice Klein does:

"Under the delayed discovery doctrine, accrual of a cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action. Here, K.J. alleged the perpetrator exploited her age of minority, vulnerability and confidence to seduce her into an unlawful and harmful sexual relationship, she believed she was in love with him and that he had done nothing wrong, and she lacked a real awareness that she had been victimized until July 2007, when she gained that insight through psychotherapy. These allegations are sufficient to invoke the delayed discovery rule of accrual."

It's a story, by the way, of a 15-year old student and a popular high school teacher in his 30s. One of whom (and you can guess which) was convicted and is spending a dozen years in prison.

The toughest part about this holding for me is the fact that the victim (1) confessed to her parents, (2) was no longer a minor at the time, (3) had the teacher arrested, and (4) still waited over a year (much longer than the applicable six-month period) to file her claim. That seems awfully long, and I strongly doubt that the victim was entirely "unaware" during this whole period that she had been psychologically effected by these events (a realization eventually "discovered" during therapy). Maybe the full impact only became clear later, but I feel pretty confident that the basic scoop always remained the same.

That said, it's a pleading case, at the demurrer stage, and that matters. At this stage, maybe it's right to let the case go forward. Though the final result maybe should diverge from what happens here.

Monday, April 06, 2009

People v. Samaniego (Cal. Ct. App. - April 6, 2009)

Anyone who listens to Los Angeles traffic reports has heard of "Tujunga," which is a community north of L.A. off the 210 (heading out from Pasadena to the Cajon Pass or Simi Valley). As in: "There's a huge backup on the 210 at Tujunga, so those of you trying to get home during rush hour might as well stay at work for all the good it's going to do you to fight rush hour." But how many people have actually spent some time there?

After reading this opinion, you're perhaps even less likely to do so. Sure, there's a fascinating discussion of the place, and I feel like I know it a lot better than I did before today. Including a variety of interesting people and hotspots. So, for example, at the corner of Silverton and Valmont in Tujunga, there's the "tweaker house" -- so named because a variety of (presumably skinny) Caucasian methamphetamine users hang out there. Which is good to know if you're ever in the mood, I guess. Plus, feel free to make yourself at home by giving a shout out to Michele Pace, Luis Vasquez and Earl Heim, who live there, and introduce yourself with a friendly smile to Terri Weitzman, Donald Nelson, and Josh Green, who are regular visitors. Also feel free to score there from Josh Krippner and Shawn Kidd. In short, have a good time. Tell everyone they're now famous, which is how a plain-Jane square such as yourself found his or her way to a tweaker house in Tujunga. It's amazing how much you can learn just by perusing the pages of the California Appellate Reporter.

Even less inviting than the place on Silverton and Valmont is the house and trailer located on the aptly-named "Glory Avenue" in Tujunga, which is where you might run into a variety of the members of the Hispanic gang in Tujunga with the name "Toonerville". On the upside, however, the members have interesting names; e.g., Silly, Stranger, Shaggy, Gangster, and Huero -- plus a woman named "Dreamer" who's occasionally there was well.

You'll have to ignore, of course, the occasional first-degree murder. But other than that, I submit to you that Tujunga is the perfect place to meet new and interesting friends. Spring Break!

Al Mutarreb v. Holder (9th Cir. - April 6, 2009)

Improper service. Failure to check a particular box. Leaving the record blank. For a sense of all the various procedural things that can go wrong in a deporatation case, here you go.

I think that Judge Berzon is right to be a stickler here. We generally shouldn't deport someone in absentia and with no real evidence produced against him unless there's a darn good reason to do so. Which there isn't here.

Friday, April 03, 2009

People v. Dawson (Cal. Ct. App. - April 2, 2009)

There's a lot in here that I think we all can agree with. Including but not limited to the opening line of Justice Richman's opinion, in which he says: "We see, yet again, the tragic consequences that can result from the mixture of boating and alcohol—here, the death of Mark Spier." With that I definitely agree. Don't drink and boat.

That said, this is not your ordinary drunk boating case. At all.

Everyone agrees that the defendant, William Dawson, is properly charged with a variety of misdemeanors, including but not limited to "BWI" (boating while intoxicated, which is actually called, inter alia, "unlawful operation of a vessel while under the influence of alcohol"). The dispute is whether he's properly charged with a felony; e.g., "unlawful operation of a vessel while intoxicated resulting in bodily injury." Those felony charges would totally be permissible in the usual case, in which the defendant is drunk and slams into another boat or runs over someone peacefully waterskiiing. That'd be a no brainer.

But here, the primary -- and unfortunate -- person who was doing most of the totally unsafe drinking and boating was the victim, Mark Spier. Spier got increasingly intoxicated over the course of a day of boating, had a blood alcohol content of 0.22 at the time of his death, and also had methamphetamine and Diazepam in his system. Which is, in my mind, pretty much the sole reason why he died. As the afternoon went on, "Spier was paying less attention to directions and getting more difficult to deal with" by the various people on the boat. For example, about ten minutes before the accident, Spier got in the water to ski, stashing a beer or two in his life vest before entering (!). But he was way too drunk to waterski, and eventually climbed back into the boat. Everyone encouraged Spier to skip waterskiing for the day because he was obviously too intoxicated, but Spier insisted that he wanted to ski, and got more and more agitated and angry that the waterskiing was not working out.

During all of this, the boat started drifting a little too close to shore, and Tyler Martino -- who had been driving the boat all day (and only drinking a little bit, if at all) -- was out of the driver's seat. While people were shouting at the drunken Spier to calm down and relax and not worry about not waterskiing for the day, the defendant (Dawson) started backing the boat away from the shore, very slowly and smoothly. At which point Spier suddenly said "Fuck it," and jumped into the water -- basically directly into the boat's spinning propeller. As one of the witnesses put it (entirely accurately): "He jumped in and he was dead."

So, again, don't drink and boat. But the question here is: Is Dawson guilty of a felony for killing Spier? Or was Spier's unilateral decision to jump off the boat into the propeller a "superceding" intervening factor which leaves Dawson guilty of a midemeanor (of course) for his taking brief control of the boat from Martino but innocent of the much more serious felony charges of causing Spier's death while intoxicated? As you can imagine, lots -- lots -- rides on this.

Below, the magistrate who conducted the preliminary hearing dismissed the felony charges on the ground that Dawson was not the promixate cause of Spier‘s death, and when the People filed an appeal, the superior court delined to reinstate the charges. But, in this opinion, the Court of Appeal reverses and remands.

Definitely check out the opinion to see the various competing opinions. The Sonoma County District Attorney, for example, argues on appeal that a defendant is guilty of BWI causing death even if the victim "jumped, was pushed, lost his balance and fell, or was struck by lightening and fell" into a propeller -- a fairly shocking (and I think erroneous) argument, and one that even Justice Richman isn't prepared to adopt. But Justice Richman concludes that Dawson properly is charged with a felony because it was "foreseeable" that Spier would end up in the water and thus subject to the risk of harm from a moving propeller.

This seems a bit aggressive too me. I'm not saying it's an outrageous statement, and I see the argument. I nonetheless think that, at some point, other events -- including the completely irrational decision of a drunk individual to jump into a propeller -- break the chain of causation such that you can't say that the illegality of the defendant "caused" the death. And this, in my view, is one of those cases. If -- and I'm fairly persuaded that this is the case -- even a totally sober person would have done exactly what Dawson did, and would in no way have been able to prevent the accident, it seems difficult for me to believe that his intoxication "caused" the death and hence justifies a boatload of years in prison. (Please forgive the inadvertent pun.)

A great case to round out the week. And, in the immortal words of Michael Conrad (as Sergeant Phil Esterhaus on Hill Street Blues), if you're going boating this weekend, remember: "Let's be careful out there."

Thursday, April 02, 2009

In Re Masoner (Cal. Ct. App. - April 2, 2009)

The plethora of parole-denial appeals that flood the system nowadays typically involve murder convictions in which the parole board (or Governator) denies parole to a seemingly rehabilitated murderer who's spent a lot of time in prison. This case is no exception.

The difference is that this case involves a second degree murder conviction of someone who didn't murder someone deliberately, but instead killed them in a drunk driving accident. That's not your usual parole case. So it's interesting to see how it plays out.

Masoner has been in prison since 1984 -- i.e., 25 years -- after being sentenced to 15 years to life for having too many drinks with business associates and having a .23 when he got behind the wheel and crashed into a house, killing four-year old Jessica Shaner. Read the other details and see if you'd let him out at this point. On the one hand, a totally innocent four-year old child and her family. On the other hand, 25 years. What would you do and hold?

Wednesday, April 01, 2009

Bradley v. Gilbert & Kelly v. Human Rts Campaign (Cal. Ct. App. - April 1, 2009)

What is it about this date? Both of the opinions published by the Court of Appeal today (one from the Second District, here, and one from the Third, here) deal with disputes involving $1M+ estates. I'd expect that on, say, All Soul's Day, but not April 1. We should be thinking about fun and merriment, not death and the fact that (1) we can't take it with us, and (2) our heirs will likely fight about the spoils.

Plus, as long as we're talking about our ultimate fate, don't forget to make sure you don't die this year. Especially if you're wealthy, since next year's a freebie for estate tax purposes.

Don't think you can help it, or that avoiding the tax man can't help keep you alive? Think again.

Kauer v. Holder (9th Cir. - April 1, 2009)

It's perhaps appropriate that this opinion gets published on April Fool's Day. Because some may find it a joke -- a sad, pathetic joke -- that people can get deported based upon secret evidence that they have no abilty to dispute. The Ninth Circuit, however, thinks it's not so funny. And reverses and remand on this basis.

There's some incredibly good stuff here, especially for those interested in the ongoing/neverending War on Terror. Judge McKeown authors a careful, deliberately moderate opinion. She denies one appeal as moot -- the petitioner had already been deported, since after eight solid years in prison during ongoing deportation proceedings the petitioner told the IJ that it'd be better “to die in a real jail in front of his people” than to continue his seemingly indefinite confinement in the United States. So you're gone, and even though you might be entitled to relief, tough. The judiciary can't give you any once you're out of here. With respect to the other petitioner, however, Judge McKeown gives her a remand, and hence an opportunity to confront the evidence against her -- an essential element of due process.

As I said, Judge McKeown's opinion is mellow and restrained. Perhaps what you might expect from someone who has had her name bandied about as a possible Supreme Court nominee. By contrast, Judge Noonan faces no such constraints, and in any event has no problems calling them how he sees 'em. And writes a short but powerful concurrence to make his feelings on this issue known. Hmmm, which line to quote? How about the one where he analogizes the conduct here to Nazi Germany or the Soviet Union: "See United States ex rel. Mezei, 345 U.S. 206, 217-218, 224 (1953) (Black, J., joined by Douglas, J., dissenting) (comparing the power conceded to the Attorney General to the arbitrary procedures provided by the criminal law of Nazi-Germany or the Soviet Union) (Jackson, J., a former Attorney General and chief prosecutor at Nuremberg of Nazi crimes against humanity, joined by Frankfurter, J., dissenting) (stating simply that procedural due process is “of the indispensable essence of liberty”)." Come on. Tell us what you really think. :-)

Judge Rawlinson then writes her own short concurrence. Which indicates that she's on the other side; that she joins Judge McKeown's opinion only "reluctantly," and articulating her belief that petitioners should have been deported a long time ago already.

A good April Fool's Day case. But not a joke at all. Check it out.