Tuesday, June 30, 2009

Beninanti v. Black Rock City LLC (Cal. Ct. App. - June 30, 2009)

It's pretty freaking obvious that if you're at Burning Man and approach a flaming 60 foot wooden structure to throw some stuff into it of your own, you're potentially comparatively negligent. Totally.

But what the Court of Appeal holds today is that recovery is barred in its entirety -- and as a matter of law, no less -- based upon the doctrine of primary assumption of the risk. We've previously limited this doctrine to the context of sports and other like-recreational injuries; football, skiing, hockey, etc. It seems a very major, and potentially troubling, expansion of this doctrine to say that you can "primarily assume the risk" of pretty much anything we think is "obviously" dangerous. But that's exactly what the Court of Appeal holds.

As a policy matter, maybe that's the right call. Maybe if you do something really stupid we should say that you recover absolutely nothing even if the defendant also did something negligent (i.e., slightly stupid). That would, of course, be consistent with a contributory negligence rule. Something that California has expressly rejected. Of course, the Court of Appeal might say "Well, here, we're talking about something really, really, really obviously stupid." Though drawing that line seems difficult. And potentially why we have juries rather than judges decide the level of comparative negligence in most cases.

Is this a good case in which to articulate a major expansion of the doctrine of primary assumption of the risk? Yes. It is. You have at least a facially plausible argument that going to Burning Man is "sort of" like a sport; at a minimum, it's certainly a cultural experience. So you might say that just like sports would be frustrated if we impose any degree of liability based upon voluntary participation, the same's true for cultural experiences like Burning Man.

But where does it stop? Is drinking Coca-Cola from a glass bottle similarly a cultural experience such that you can't recover if the bottle shatters? Watching television? Fist-bumping? The line that we've previously drawn in the primary assumption of the risk area -- between "sports" and "non-sports" -- is admittedly a fuzzy one. But at least it's a line. The Court of Appeal's holding here seems to me to leave open the possibility that anything is now open to a primary assumption of the risk argument.

Which, again, a reasonable person could indeed support on policy grounds. But as a doctrinal matter, I'm not sure that's an accurate recitation of the import of existing precedent, or something that we want the Court of Appeal deciding rather than the California Supreme Court (even if you decide that the judiciary, rather than the Legislature, is the proper one to decide these things).

So it's an interesting, and potentially revolutionary, case. Let's see what happens to it from here. Informed obvservers may well want to spend the energy on this one to get it amended, depublished, or taken up.

Wilson v. San Luis Obispo County Dem. Central Comm. (Cal. Ct. App. - June 29, 2009)

The United States is not, say, Iran, right? Or even Honduras.

There's no way that someone could get elected to an office and then get booted out -- notwithstanding her victory in the election -- simply because other elected officials didn't like her. Right?

Think again.

Gail Wilson wins an (admittedly uncontested) election to the San Luis Obispo County Democratic Central Committee. The Elections Code provides that she can be booted out if she registers as a republican, misses meetings, and stuff like that, but Wilson doesn't do anything like it. She does, however, raise a stink about some of the other members of the Committee being allegedly ineligible for office. Which does not endear her to her fellow officeholders. So they decide to boot her out. And vote 22-10 to do so.

Wilson files a petition for writ of mandate, saying: "Hey, the voters elected me. You can't unelect me just because you don't like me." But the Court of Appeal, in an opinion by Justice Yegan, says: "Yes they can."

This may seem bizarre, but Justice Yegan's probably correct as a doctrinal matter. Even though this is an elected office, it's an internal political party, and their own bylaws might be something to which we have to give deference. So if they say, for example, "I don't care if you get elected: The second you say nice things about the shape of an elephant, you're booted," we're compelled to go along with that. However silly.

Nonetheless, I do think the opinion demonstrates that there are at least segments of our elections that are not as far from the electoral systems of unfree countries as I might have initially thought. I wouldn't have thought upon first glance that an elected official could be booted just for objecting to the alleged illegality of some of her colleagues -- and by those very same colleagues, no less. But apparently I was wrong.

Chapman v. Pier I Imports (9th Cir. - June 29, 2009)

This is why so many attorneys who file ADA claims in California use professional plaintiffs. Because when the plaintiff tells the truth, the case may well get bounced.

So better to have a plaintiff who knows how the system works and what needs to be said -- essentially, the same stuff that was alleged in the complaint. That's what the system wants to hear, and that's what works.

Monday, June 29, 2009

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

Going back in time is difficult in the real world. But we do it in the judiciary all the time.

For example, ever since the Supreme Court in Booker held that the sentencing guidelines were advisory, the Ninth Circuit has conducted what we call "limited Ameline" remands, in which the district court is basically asked whether -- for those cases that were on appeal when Booker was decided -- it would have imposed the same sentence had it known the guidelines were advisory. The answer is typically "yes", and regardless of the accuracy of that retrospective prediction, at least we give the defendant a shot.

The question in this case is whether the district court can take into account post-sentencing conduct in such remands. And Judge Thompson concludes, entirely reasonably, that it cannot, at least for purposes of answering the question "would your sentence have been different at the time had you known the guidelines were advisory?" We're trying to figure out what you would have done. Adding events after the date in question aren't relevant to that inquiry.

Other circuits do it differently, and at some point, I think the Supreme Court should take the issue up. More accurately, I think they should have taken the issue up, since at this point, the number of pending-Booker cases is rapidly diminishing, and the appellate process for most of these cases has already concluded. But given the way the Ninth Circuit does it -- with limited remand, not a full resentencing -- Judge Thompson's decision seems correct. As a temporal matter, we're asking what you would have done then, not what you'd do now.

Now, Judge Thompson doesn't hold that post-sentencing events are always irrelevant, only that they're not relevant to the first prong of the Ameline inquiry: whether or not the judge would have given the same sentence. The panel expressly doesn't decide whether post-sentencing conduct is relevant in the minority of cases in which the district court responds that its sentence would indeed have been different had it known the guidelines were advisory. That's a more difficult question, and one for another day.

So here, the district court doesn't get to take into account the defendant's alleged rehabilitation after his sentence was handed down. Again, this seems right if you accept the predicates of the Ninth Circuit's limited Ameline procedure. I'll also add something that Judge Thompson does not mention: it would seem a bit untoward to do otherwise in the event the post-sentencing conduct was unfavorable. Imagine, for example, the defendant committed an assault in prison post-sentencing, and the district court said: "I know you filed an appeal, and got a remand under Ameline to see if I'd do the same thing. Given your recent crime, however, I feel like giving you an extra couple of years. Congratulations on winning in the Ninth Circuit." There's something about that that doesn't feel entirely kosher. And a one-way rachet in post-Ameline remands doesn't seem fair either.

So I'm on board for this one. When you go back in time, let's really go back in time. No peeking into what subsequently transpired.

Friday, June 26, 2009

In Re Lloyd Rucker (9th Cir. - June 26, 2009)

Couldn't agree more. At least about the result.

Lloyd Rucker committed widespread fraud, went to prison, and tried to avoid paying a multimillion civil judgment against him by making massive contributions to 401(k) plans well in excess of IRS limits (and then lying to everyone, including the IRS, about them). The bankruptcy court said: No way. We can grab these. But the district court reversed, saying that these funds were indeed exempt.

The Ninth Circuit in turn reverses the district court. Holding that the bankruptcy court's decision was not clear error.

I'd have gone even further. It's crystal clear that the principal purpose of putting these funds into the 401(k) was to defraud creditors rather than for legitimate retirement reasons. Indeed, had the bankruptcy court held otherwise, I'd have held that to be plain error. And am quite frankly stunned that the district court -- Judge Morrow, who's ordinarily a bright and reasonable jurist -- reversed the bankruptcy court.

No way this was a legitimate retirement scheme. To Judge Gould, this case is all about standard of review, and a reversal is required because the bankruptcy court's decision was not clearly erroneous. Which is true. But to me the case is even more about the facts. And I'd have reversed regardless of the standard of review.

Charisma R. v. Kristina S. (Cal. Ct. App. - June 26, 2009)

Even lesbian parents sometimes bag out on the relationship shortly after a kid is born. Making it even tougher than usual to figure out who the parents -- and what their respective rights -- really are.

Interesting lineup of counsel as well. One member of the couple (the nonbiological parent) is represented by Squire Squre & Dempsey, presumably pro bono. The other member -- the biological parent -- is represented by an attorney with The Liberty Counsel (from Lynchberg, Virginia, so you already know where this is going), which declares itself committed to "preserving the culture one case at a time by advancing religious freedom, the sanctity of human life and the traditional family." Not an organization to which you'd think a lesbian parent would normally turn. (Though according to the plaintiff she's now an ex-lesbian.)

P.S. - Various panels take a different approach to initials; some use both initials, others use a first name and an initial for the last name. I note in this regard that with a first name like "Charisma", in the Google world, it takes only about 10 seconds to discover the actual last names of these parties. Or even to take a gander at Facebook or, if you're bold, hear what one of them has to say on Twitter, no less.

Thursday, June 25, 2009

In Re K.P. (Cal. Ct. App. - June 22, 2009)

Occasionally you need very few facts to figure out how a dependency petition is going to come out, even if it's contested. Like here.

"In May 2005, another dependency petition was filed alleging jurisdiction of J.P., K.P. and J.M. (collectively, the minors) under section 300, subdivisions (b), (c), and (g) (no material support), following domestic violence between the mother and the father leading to the mother’s arrest. The petition also alleged appellants had a history of domestic violence and substance abuse. Reports indicated the mother was possibly bipolar and detailed her lengthy child welfare history. Two mental health experts examined the father and found he had borderline personality disorder, antisocial tendencies, signs of paranoid schizophrenia and depression, and an IQ of 73. . . . A third dependency petition was filed in September 2007 . . . after incidents of domestic violence between the mother and maternal grandmother and a fight between the mother and father."

Uh, yeah. You guys ain't keeping the kids. I'm pretty sure about that.

Ahmed v. Holder (9th Cir. - June 24, 2009)

What?! One of the chefs in the kitchen of an Indian restaurant in Koreatown (Makkah Halal Tandori) was an illegal immigrant from Bangladesh?! I'm shocked. Stunned. Whodathunk?

U.S. v. Overton (9th Cir. - June 18, 2009)

We (rightly) go out of our way to abbreviate the names of victims of sexual assault, particularly intrafamilial victims. As Judge Tallman does here.

Given that fact, we should probably also be careful not to unnecessarily include in the opinion facts that make the identity of the victim crystal clear. Of course we'll have to use the defendant's name and his relationship to the victim (here, her stepfather). But we probably need not let everyone know the full name of the daughter's mother (page 7282 of the opinion), and surely we can say that on a particular day, the defendant and his wife "left home for their mutual workplace in Boseman" rather than, as Judge Tallman does, "left home for work at Montana State University (“MSU”) in Bozeman, where they were both employed." Ditto for saying defendant left the nude photographs of his stepdaughter on "his work computer" and "his work computer system" rather than on "his work computer at MSU" and "the MSU computer system." Seems like those changes would make sense.

And I know it would require the use of brackets, but in footnote 11, one option would surely be to quote the indictment so that it read "including by a computer [located at defendant's home address] and computers at [defendant's work]" rather than, as the opinion currently does, publishing the victim's full home address (!) and her mother's workplace. Not hard to figure out who we're talking about when you include the victim's home address and the full names and workplaces of both her parents.

By the way: Twenty years in prison for an otherwise respectable first offender who takes pictures and has sex with his 17-year old stepdaughter and downloads kiddie porn from the internet. Never think, as Overton did here, that "coming clean" with the police about your "addiction" will make everything tolerable. It won't.

Wednesday, June 24, 2009

In Re Complaint of Judicial Misconduct (9th Cir. - June 24, 2009)

The thing about people like Chief Judge Kozinski is that they're so smart, and subtle, that it's sometimes hard to figure out if they're being deliberately sly or merely stumbling into saying something that may have a broader ramifications than they intended.

So take this opinion, for example. It's a facially simple one, and is one of the legions of opinions in the Kozinski Era in which he's quickly (and publicly) dismissing an entirely meritless complaint against a judge.

It contains the usual stuff: we have no jurisdiction since you're complaining about a decision on the merits of the underlying suit, you only have allegations rather than any actual evidence of bias, part of your complaint is about a state court (rather than federal court) judge over whom we have no power, etc. etc. This is par for the course.

But then there's this seemingly -- and perhaps actually -- innocuous line. The complaint in part whines about some things the trial judge did when s/he was a state court judge. We know, of course, that the federal courts have no statutory power to adjudicate such misconduct complaints for a wide variety of reasons, all of which Chief Judge Kozinski discusses (or discusses by implication by incorporating a lengthy 1986 opinion by then-Chief Judge Browning's opinion on the same point). No problem with that.

But the brief paragraph on this point ends with the following line: "It would be incompatible with this constitutional principle to sanction a judge for conduct preceding confirmation."

Now, if all that Chief Judge Kozinski means by this is that it would be improper for the judiciary to sanction a judge pursuant to the existing misconduct statutes for such conduct, I totally agree. Which, after all, is all we need to say in order to resolve the complaint here. So one way to read this sentence by Chief Judge Kozinski is to impart the missing words by context. And, normally, I'd be absolutely confident that's what he -- or anyone else -- meant.

Why did my ears nonetheless perk up at this statement? Because, at least facially, it also says something about the merits of an ancillary, high-profile dispute. Let's not forget that there's someone on the Ninth Circuit who's keenly interested in whether it's indeed permissible "to sanction a judge for conduct preceding confirmation." Particularly in one of the contexts that Chief Judge Kozinski expressly discusses: Impeachment.

And, no, I'm not talking about Judge Kent. His conduct was post-confirmation. Think pre-confirmation as in putting your name on a memorandum saying that waterboarding isn't torture. For which a wide variety of people have indeed called for this judge to be sanctioned, and potentially impeached.

I honestly have no idea whether this was in Alex's mind when he wrote that line. But it was definitely in mine when I read it.

Warfield v. Bestgen (9th Cir. - June 24, 2009)

So I obviously now know how much influence I have on the Ninth Circuit. Yesterday I tell the court to slow down -- to pace themselves -- and crank out so many opinions at once. They issued ten today. So, dutifully, they follow my counsel. How many published opinions today? Ten.

So much for my input. Thankfully, however, even in the rush to finish up the opinions as this class of clerks starts to leave, there's still room for a little humor. So take today's tidbit from Judge Thomas:

"Not only did Robert Dillie promise his investors 'a gift for your lifetime and beyond,' he pledged 'preservation of the American way of life,' 'preservation of your assets,' and 'preservation of the American family.' Unless Dillie meant to refer to the way of life perfected by the Boston swindler Charles Ponzi and his family, we can safely say that Dillie’s claims were a bit overstated."

Even I got a chuckle out of that one.

Tuesday, June 23, 2009

U.S. v. Lopez-Velasquez (9th Cir. - June 23, 2009)

Whoa. Pace yourself.

The Ninth Circuit's publications today are in the double digits. Spread 'em out, my friends. Too much work for our hero.

I can, however, summarize -- abeit at a superficial level -- pretty much all of the opinions issued today. The majority of them are criminal cases. Here's how they all get resolved: "A convicted criminal has brought an appeal/challenge to his sentence/habeas petition. We hereby reject all his claims. Affirmed."

With one exception. There's one case today in which the Ninth Circuit indeed grants relief to the criminal defendant. What could possibly explain this anomaly?

Let's check out the last words of the opinion, which are contained in a (very lengthy) footnote. There, the panel has to distinguish a prior case -- albiet an unpublished one -- that's very close to the present case and in which the Ninth Circuit didn't grant relief. The panel here comes up with a variety of purportedly distinguishing characteristics, and tellingly ends by saying that it's not bound by the prior opinion anyway since it was unpublished.

To add to the differences between that prior case and the current one, I might add one more -- a difference that likely swamps all of the others in terms of significance. The unpublished case had a panel that included Judges Beezer and Callahan. Today's case had a panel that included Judges Pregerson and Reinhardt.

Which, not coincidentally, helps explain the divergent results between not only those two cases, but also the pro-government decision reached in the other the criminal cases decided by the Ninth Circuit today and this one.

Bakersfield Energy Partners v. CIR (9th Cir. - June 17, 2009)

Next time you wonder whether the rich are able to come up with fancy ways to get out of paying taxes, check this one out.

Good to know we're all paying our fair share. [Insert dripping sarcasm here.]

Monday, June 22, 2009

Lahr v. NTSB (9th Cir. - June 22, 2009)

I'm not a conspiracy nut. In the slightest. True conspiracies are freakishly hard to keep secret, and generally the alleged motivations for them aren't sufficiently strong to justify the potential downside.

I mention this only because while I don't believe there's a grand conspiracy, as I was reading this case earlier today, I was nonetheless struck by the underlying facts. It's a FOIA lawsuit about TWA Flight 800, which was the airplane that exploded off the coast of Long Island back in 1996. The explosion is generally attributed at this point to a short circuit that caused the fuel tank to explode. But lots -- and I mean, lots -- of witnesses said they saw a streak of light going towards the airplane, and there was both an initial and lingering theory that the plane had been shot down by a missile.

I obviously don't know which theory is correct. Prior to reading this opinion, I had thought that anyone who still believed the "missile" theory was probably either a committed partisan or a nutjob. But now I don't. It's a toughie in part because there are 250 or so witnesses who say they saw the streak, and while there's a "zoom-climb" theory that attempts to explain what these witnesses saw (consistent with the no-missile theory), it's far from conclusive.

In the end, I'm pretty confident that there was no grand conspiracy, and tend to believe (more likely than not) that the experts are right that there was no missile. But I'm far from certain.

Here's a good -- and not overly rambling -- discussion of the missile strike theory from the plaintiff in the case. Who, parenthetically, largely prevails in his FOIA request.

One other point. It's not that I consistently reject conspiracy theories. For example, I think even on the slim evidence that's available, it's pretty solid that there was massive fraud in the recent Iranian election. But fraud in an unfree country is a lot easier than a conspiracy in a liberal democracy.

People v. Medina (Cal. Supreme Ct. - June 22, 2009)

Sometimes you can get the most accurate sense of a judge -- or anyone, for that matter -- by his or her reaction to close cases. For example, take this case. Someone says "Where you from?" and a fistfight starts between three gang members on one side and a sole gang member on the other. If one of the three, unable to subdue with his fists the (seemingly quite powerful) one, then decides to shoot and kill the person who resists, are all three guilty of murder, or just the one?

The California Supreme Court votes 4-3 that all three are guilty of murder. Justice Moreno, joined by Justices Kennard and Werdegar, dissent.

Lest my (necessarily abbreviated) description suffice, here's the basic point of the dissent: "Stripped to its essence, what the majority holds is that the challenge 'Where are you from?' is so provocative in the context of gang culture that any response up to and including murder is a reasonably foreseeable consequence of that utterance, so as to justify a murder conviction not only of the actual perpetrator but also of any other gang members involved in the target offense, whatever the surrounding circumstances. I cannot subscribe to such an expansive interpretation of the natural and probable consequences doctrine even in the context of gang violence, which no one doubts is a plague upon some of our state's most vulnerable communities."

Neither the majority opinion nor dissent is overly long, and both are worth a read. See who you think has the better of the argument.

Friday, June 19, 2009

Bisno v. Douglas Emmett Realty Fund (Cal. Ct. App. - June 19, 2009)

This is a tough rule to apply in practice, if only because after litigating a case for a long while, lawyers often lose their objectivity and come to believe their own arguments. (I'm guilty of this sin as well, though I attempt to realize and compensate for it.) Because of this, especially when you've won big at trial, you often need to take a step back and say: But how will this victory look to a neutral panel on the Court of Appeal, who -- unlike me or the trial judge -- have never lived with this case for years? Will they really be as outraged and/or sympathetic as the court/jury was below? Or will their reaction, especially in light of the size of the victory, potentially be the opposite? Those are good questions to ask, because even after a huge win, it's often a good idea to give a healthy settlement discount to the other side. Ironically, the bigger the outrage below, the higher the discount one might offer to settle the case for on appeal.

I mention that lesson in light of this case. In which a rich individual "living" in a totally fancy rent-controlled apartment obtained a million-dollar-plus judgment at trial for allegedly having his rent wrongfully reset to market rates. Yes, there were surely some problems with what the defendants had done. Yes, one could make an argument that what was really going on was a relentless campaign to evict a troublemaker and raise the rent. And this argument was indeed successful in front of the jury, which awarded the plaintiff over $700,000 in punitive damages.

But, again. Humility. Rationality. Objectivity. You need to retain this stuff. And realize that you're not the most sympathetic plaintiff in the universe. That the judgment seems pretty big for what transpired. And that you face real exposure on appeal. As a result, maybe settling the case for a much, much smaller amount than what you obtained below makes sense. Standards of review and the like be darmned.

Ultimately, for whatever reason, the appeal goes though. And, of course, I have no idea what the settlement offers -- if any -- were on appeal. But once that happens, it's all on the line. And what can happen? Well, here, the plaintiff not only loses every penny of his judgment, but is also potentially (indeed, likely) responsible for hundreds of thousands of dollars of the other side's attorney's fees on remand.

Not what you want to hear if you're the plaintiff heading into what would otherwise be another nice relaxing weekend on the beaches of Santa Monica.

P.S. - Here's the apartment complex in question, which is right on the ocean. I used to live near there (albeit over the border in Venice). Trust me: It's an exceptionally nice place, and at a rent-controlled $1000/month, something to die for.

Thursday, June 18, 2009

United Rentals Northwest v. Snider Lumber Products (Cal. Ct. App. - June 18, 2009)

There's only so far that "plain language" and the alleged "unambiguity" of a statute can take you. At least in my view.

Take this case, for example. At least from reading Justice Wiseman's opinion, it seems one of the easiest case in the universe. Defendants own a sawmill upon which 10 lumber drying kilns -- essentially, buildings 68 feet long, 14 feet wide, and 20 feet tall where lumber was heated and dried -- are located. After a retooling of the sawmill, they decide the kilns aren't that essential, so decide to dismantle and sell 'em. They hire a contractor to take down the kilns, package 'em, and oversee their sale to a group of buyers. To do so, the contractor rents some equipment from the plaintiff, United Rentals Northwest. This is a pretty simple -- and, I'm sure, routine -- set of facts.

There's ultimately a lawsuit, so needless to say, something goes awry. Basically, there's a dispute between the rental company and the contractor, so the rental company sues and gets a default judgment. Meanwhile, it's filed a mechanic's lien against the defendants' sawmill, which it then seeks to foreclose. You may say that the plaintiffs' beef is really against the defaulting defendant, but for policy reasons, we permit these liens in certain cases. And that's what the fight is about.

Section 3106 of the Civil Code permits a mechanic's lien for suppliers who lease equipment to contribute to a "work of improvement" on a piece of real property. That's the basis for the plaintiff's lien, which (of course) the defendants dispute. How's taking down 10 buildings a "work of improvement"? It's true that mechanic's liens are generally for actually constructing stuff on a property, not taking stuff down. But Section 3106 expressly provides: "'Work of improvement' includes but is not restricted to the construction, alteration, addition to, or repair, in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or road, the seeding, sodding, or planting of any lot or tract of land for landscaping purposes, the filling, leveling, or grading of any lot or tract of land, the demolition of buildings, and the removal of buildings."

Seems pretty clear that plaintiff has a lien, right? They demolished/removed a building. The statute says they accordingly have a lien. And, for the Court of Appeal, that's the end of the matter. As Justice Wiseman puts it, "this is the end of the analysis."

But is it? It seems to me that we grant a lien on property for "works of improvement" because the work that's been done actually improves the property, hence the lien on the result. This policy sentiment underlies the defendants' argument -- bolstered by precedent -- that a "work of improvement" under Section 3106 has to result in a "permanent improvement" to the property; i.e., increase its value. Which is why all those earlier cases say that improvements have to "improve" (i.e., benefit) the property.

Justice Wiseman responds that this precedential requirement "cannot have much significance where the improvement is the removal or demolition of a building, however. . . . Logically, the permanency doctrine must be satisfied in this context by the fact that the removed or demolished building is removed or demolished." But I'm not sure that's right, either doctrinally or as a matter of fact. Lots of demolitions improve the value of the property. If you've got a lot that has a falling-down crack house on it, its market value pre-demolition might be $50,000 but post-demolition $100,000. The demolition would "subtract" from the property and yet improve its value. (Which, after all, is why you might rationally invest in the costs of demolition, even if you had no intention whatsoever of building anything on the property.) So as a logical matter, I'm not at all sure that Justice Wiseman is correct that the traditional common law requirements don't equally apply to demolitions.

Justice Wiseman concludes by essentially saying that this argument is irrelevant anyway since the statute is crystal clear, saying: "We have no authority to add a requirement that, after the work is done, the land must be better off in some other sense." This is the "plain language" point, though it seems to me that the existence of the previous common-law precedent itself tends to belie this argument. Moreover, I think that this may put too much weight on the mere existence of the words, which I forthrightly admit are indeed fairly clear.

Take the following hypothetical. I get a raise here at USD and decide that I want a solid gold outhouse built in the front yard of my property to flout my newfound wealth. I have no doubt that whoever builds the thing for me is entitled to a mechanic's lien, since surely that building "improves" the property. At least purely in terms of total market value.

But two years later, my wife finally convinces me that the thing couldn't be more gauche. So I agree to have it removed. Since, in the post-Tyco era, no one else is crass enough to want a gold outhouse, I hire someone to take it away, melt it down, and sell it for $900/ounce.

Yes, the person who removed the outhouse "removed a building" under Section 3106. But I'm not convinced that's a work of "improvement" covered by the statute. The market value of the property post-removal is now less than it was before. What's transpired in this hypothetical is more akin to removing a piece of artwork or any other type of personal property to sell to another party -- to which a mechanic's lien indisputably does not apply -- than to the classic "demolition" context in which the demolition itself improves the value of the land.

On the facts of this particular case, I'm not entirely certain the difference I've described above matters. But it might. Defendants might have simply wanted the buildings removed because they were unnecessary and ugly and a burden, in which case surely a mechanic's lien exists. However, they also appeared to take great pains -- at seemingly high expense -- to carefully dismantle the buildings and sell them to a third party for substantial value. Which suggests that the facts of this particular case might be closer to the "golden outhouse" hypo than one might otherwise think.

To me, it's a very plausible reading of the statute -- not to mention precedent -- that a "work of improvement" is something that increases the value of the underlying property. I don't think we'd want a subjective test about "why" the defendant allegedly sold the property (e.g., did they do it for its scrap value or otherwise), but rather the inquiry would be an objective one: Would a reasonable person have thought the value of the property would be improved by the demolition? If so, mechanic's lien; if not, otherwise.

I think such a vision not only comports with common sense, but also the central purpose of Section 3106. And probably place a higher value on that component of statutory interpretation than is usually given by the "plain language" crowd. To take the converse of the golden outhouse hypothetical, imagine that an owner of a perfectly good wharf decides that he thinks that prime numbers are exceptionally lucky and so hires someone to destroy every horizontal wooden plank on the wharf except for the prime-numbered ones, thereby totally destroying its utility. There's no doubt that's an "alteration . . . of a wharf," right? But is that really a "work of improvement" that would justify a lien on the property -- in particular, a lien (as here) on an innocent third party? That seems much more questionable, and I don't think this can properly be answered merely by the mantra of "plain language." Even when, as in this hypothetical, that language is indeed totally plain.

Reasonable minds might disagree on this one. And I agree that sometimes, plain language is indeed the end of the inquiry. Just not necessarily here, and not when -- as here -- there may be both precedent and common sense that augur in favor of a consistent and potentially easily-applied alternative doctrine that's in line with the structure and purpose of the statute.

Or that's my (overly long) take, anyway. Having written something that's itself nearly as lengthy as Justice Wiseman's entire opinion. See what you think.

In Re Warren (9th Cir. - June 18, 2009)

Unless you've got an abnormally high interest in the automatic disclosure and dismissal rules in bankruptcy cases, you can largely skip this one from the Ninth Circuit today.

Except for footnote 1. Judge T.G. Nelson discusses therein the use of nunc pro tunc orders, and where and when they're appropriate. Both in bankruptcy cases as well as elsewhere. My gestalt sense is that he's right that those orders are overused, and should properly be limited to those in which the record doesn't reflect what the court actually intended to do at the earlier date (but that wasn't sufficiently expressed). It's often okay to change your mind or grant leave or whatever, but doing it nunc pro tunc often improperly uses this doctrine.

Latin -- at least the language -- is surely not my thing, but a little knowlege about the actual doctrines is definitely helpfu.

Wednesday, June 17, 2009

Vernoff v. Astrue (9th Cir. - June 17, 2009)

I'm the parent of three children -- and, next month, if all things go as planned, a fourth -- and there's no doubt I'm the father of each of them.

But particularly in the modern era, the answer to the seemingly simple question "Who's your daddy?" is not always so facile. We all know the scoop about surrogacy, gay and lesbian adoption, etc. But today's Ninth Circuit case has a new (and interesting) factual twist on the whole issue.

A little background first. Back in 2004, the Ninth Circuit had a case involving a father in Arizona who had prostate cancer and who delayed treatment so he could deposit some semen for later use by his wife in case he didn't make it. Sadly, he didn't, and around 10 months after his death, the wife was artificially inseminated and had his kid. The wife then applied for Social Security survivor benefits on behalf of the child, and the Ninth Circuit held that, yep, the child was indeed the child of the deceased father, so he got benefits. The Social Security Administration didn't like this ruling, but it acquiesced to it -- albeit in the Ninth Circuit only.

Meanwhile, in California, another tragedy was taking place. Shortly after the Ninth Circuit's ruling, in 2005, another husband died of accidental causes. The wife again wanted to potentially have the husband's child -- they'd been married for five years. So again a physician took some sperm and froze it.

But there are significant differences between the two cases. For example, in the first case, the husband was alive (though knew he was dying), and expressly agreed to the procedure at the time. But in the second case, because the husband died in an accident, there was no express consent by the husband to the procedure (and the couple had no previous children), and instead they took the sperm out of the husband after he was dead. (I didn't realize that you could do this. It makes sense, of course. I just hadn't thought about it.) Another difference is that unlike the first case, where the child was conceived 10 months after the father's death, in the second case, the child is conceived over three years later. And the final difference is, again, that the first case was in Arizona, whereas the second case is in California.

So in answering the question "Who's the kid's daddy?", all of these facts might be important. It's also raises interesting policyand doctrinal issues. Are children conceived in this context entitled to social security survivor benefits? Where do we draw the line? Do we require express consent of the father, or implicit consent, or merely a biological connection? Should we consider a child conceived 9 months after death a survivor, or 3 years, or 10 years, or 50? Medical science again forces us to rethink and assess some of our basic assumptions in this area.

Ultimately, Judge Hall concludes that none of this matters, and that instead what matters is that the child was born in California, not Arizona. Because whether you're a "child" of the deceased for Social Security purposes depends upon state law. And, according to Ninth Circuit, the child here was a child of his mother, but not of his father. Since -- and this seems ironic to me, given the usual differences between the two states -- California law is allegedly more restrictive about who counts as a "parent" in this context than Arizona.

So particularly if you're interested in who counts as a daddy in our Great State, this is definitely an opinion worth reading. Plus, the whole "pull the sperm out of you after you're dead" thing is a neat concept to brighten up a Wednesday morning.

People v. Dillon (Cal. Ct. App. - June 16, 2009)

Check me on this one. Annette B. is a victim of sexual assault in San Francisco on New Year's Eve of 2005. She's recently done a little coke, and has been drinking. She gets sexually assaulted by a stranger in the street, and his defense is consent. So, of course, we have to impeach the defendant. Par for the course.

Here's what I don't understand. Annette is 19 years old and tiny -- 5'1" tall, 90 pounds. They do a urine test after the assault and her blood alcohol content is 0.17 percent. (It's New Years Eve, after all; ignore the coke for now, or that she's underage.)

Here's my question: To get to .17 percent for a 90 pound woman, how many drinks are we talking about? Assume standard sizes: a can of beer, a class of table wine, a shot of 80 proof alcohol, etc. And assume for simplicity purposes it's all at once; no "over a half day" or "six hours" or anything like that (the evidence here suggests a pretty small time frame). How many drinks gets a 90 pound woman to 0.17?

Here's what the defense expert testifies at trial: It'd take between 8 and 9 drinks to get to that point.

Are you insane? That many drinks and, personally, I'm out -- way over 0.17. And I'm nearly tipping the 200 mark, and a guy at that. Have you ever seen a 90 pound woman drink 8 or 9 drinks? I have. And it darn sure ain't no .017.

So I looked it up. On the most trusted source on the planet: Wikipedia. Which says that for a 90 pound woman, 8 drinks puts you at 0.40, and 9 drinks puts you at .45. Basically: Dead.

Even if you spread those drinks over three or four hours, you're still looking at between 0.35 and 0.40. At which point you're definitely not walking, or doing any of the other things that Annette's clearly doing at the time. Which makes me think: Who the heck are these "experts" that testify that her BAC of 0.17 means 8 or 9 drinks?

None of this is central to the case. But still, it definitely made me wonder. Because if I learned anything from my four years at Dartmouth it was the impact of alcohol on the body. So if I'm way off on this one, and can let a 90 pound woman pound 8 or 9 drinks and only reach a 0.17, please let me know. 'Cause that ain't what I was taught. At all.

Tuesday, June 16, 2009

Paterson v. City of Los Angeles (Cal. Ct. App. - June 16, 2009)

As I read this opinion, which (on the merits) seems right to me, I was hoping that someone would say exactly what Justice Mosk says in his brief (two-paragraph) concurrence.

An officer with the LAPD calls in sick. A lieutenant with the LAPD believes he's faking it, and abusing sick leave (apparently, you've actually got to be sick in order to get the leave), so instructs a sergeant to check it out by going to the officer's home. The sergeant arrives and, yep, the "sick" officer's not even at home. The officer's kid gives the sergeant the officer's cell phone number, and the sergeant reaches the allegedly sick officer. At which point the sergeant essentially says: "I'm just calling to make sure you're really sick in bed at home," and the officer says "Yes," to which the sergeant basically says: "Liar. I'm at your house right now." And, indeed, the officer wasn't at his house (though was allegedly "sick" elsewhere). At which point they try to discipline the officer and his wife, who's also an officer with the LAPD and who also said her husband was sick at home.

For reasons that are unclear to me, but irrelevant, no discipline gets imposed against either officer. Who then promptly sue the LAPD for allegedly violating the Public Safety Officer's Bill of Rights, seeking a civil penalty of $25,000 for each violation of the Act, punitive damages, compensatory damages for common law claims, etc.

The City gets summary judgment below, but I agree with the majority opinion, which is authored by Justice Armstrong, that the trial court's basis for this grant was wrong. Yes, the tort claims don't work, but the City's argument that there's no statutory claim based upon the mere fact that the discipline against the officers was eventually reversed does not insulate them from liability under the Act. Nor does the City's alternative (new) argument on appeal that there's immunity under the Act because the sergeant was just "checking on the safety of the officer." That's not what was going on, and we all know it. Plus, this is a summary judgment motion, so we gotta resolve inferences in favor of the nonmoving party. In short, no dice for the arguments you raised in favor of granting summary judgment.

But when I read the opinion, I have to tell you that my overall reaction was that the officers are lucky to have avoided discipline, and surely shouldn't be able to sue under the Act. You mean to tell me the LAPD can't even conduct a simply check on whether it's officer's lying or abusing sick time without going through the whole big rigamarole of complying with the Act? Which requires that you tell 'em about the investigation beforehand, usually conduct any interrogation during duty hours, etc. etc. You're just making a phone call, for goodness sake. Seems to me like that's totally fine, especially when -- as here -- it seems that your suspicions are entirely well-founded. To say, in advance: "Pursuant to the Act, this is to notify you that we're investigating to see if you are really sick, and are currently located at your house. Are you sick at your house?" would defeat the whole purpose of going to the house in the first place, since at that point, anyone would know to make up a different lie.

Which is where Justice Mosk's concurrence comes in. He doesn't say what I say, of course (as I'm far too crude and unsophisticated), but he does go out of his way to say -- and I appreciated it -- that "not every 'sick check' qualifies as the type of investigation or interrogation that would make applicable the rights under Government Code section 3303." and "whether there was a violation in this case, and, if so, what the appropriate remedy should be are matters to be determined by the trial court." A sentiment with which I wholly agree.

Why the rest of the panel didn't sign onto these two paragraphs I don't know. I would have. And I would have, for whatever that's worth (which I recognize is nothing).

Holley v. Yarborough (9th Cir. - June 16, 2009)

When Judges Kleinfeld, Nelson and Milan Smith agree that the criminal defendant deserves a writ (in an AEDPA case, no less), you know it's got to be a fairly strong claim. As indeed it is.

Two minor points. First, I thought that footnote two was extremely interesting (as well as long), and I might have put that one in the text. Particularly since the court goes out of its way to decide this issue. Second, on page 7162, last paragraph: holding Holly horizontally made it hard for her to "breathe", not "breath". (Good to see Judge Smith spelled motherf****r correctly in the next sentence, though.)

Monday, June 15, 2009

People v. Meredith (Cal. Ct. App. - June 15, 2009)

Everyone admits it was wrong for the trial court to start the criminal jury trial with the defendant still wearing his prison orange jumpsuit. But Justice Hull seems right that given the evidence at trial, there's no real doubt that the defendant was guilty, or at least that the whole jumpsuit thing didn't matter.

Why, you might ask, did the trial court let the jury see the defendant in his prison orange? Especially after it granted defendant's (form) motion in limine to let the defendant wear "civilian" clothes at trial? Because -- and I've never seen this before -- no one had civilian clothes available that would fit the defendant. To which you might think: "Is the dude 800 pounds or something?"

Nope. 6' 4", 268 pounds.

You'd think that the defendant -- or even the Sheriff -- could find this size clothing somewhere in Sacramento (which was where the trial was). Heck: Just borrow whatever clothes Ron Artest (6' 7", 260 pounds) wore the last time he was in jail in Sacramento. That should work.

People v. Avila & Dykes (Cal. Supreme Ct. - June 15, 2009)

Not that there's ever a good day to be on death row in California, but for at least two people, today's an even worse day than normal.

Not that this is massively surprising. But you do have the California Supreme Court unanimously affirming two different death penalty cases today. In the first, People v. Dykes, Chief Justice George writes the opinion for a unanimous court, and topping out at 114 pages. In the second, People v. Avila, Justice Chin writes the opinion for a unanimous court, and comes in a comparatively brief 63 pages.

Two entirely different cases. But the same result. Almost as if the justices knew that people were watching.

Friday, June 12, 2009

City of Las Vegas v. FAA (9th Cir. - June 12, 2009)

What's a FONSI/ROD look like? And, no, the proper response is not "Ask Pinky Tuscadero".

Here's the true answer. Hint: You can now get into and out of town a tiny bit faster -- always important, particularly in Las Vegas -- and the probability that you have to circle the city is a bit lower.

Gilbert St. Developers v. La Quinta Homes (Cal. Ct. App. - June11, 2009)

There's no place better than the 4/3 to find interesting writing styles. By which I mean, of course, Division Three of the Fourth Appellate District. Or, to the rest of the nation, "The O.C."

Among those on the 4/3 who adds flair to the traditional content of judicial opinions is Justice Sills. I've said before that I tend to like his style, which keeps things interesting, and that's still the case. Not many opinions, for example, mention Nils Bohr. As this one does, when it refers -- entirely appropriately in the context of the underlying dispute, I might add -- to Bohr's famous quip: "Prediction is very difficult, especially about the future." Nice.

Justice Sills also mentions -- again, appropriately, and in context -- that the expression "pig in a poke" derives from a con game in the Middle Ages in which a buyer would purchase what he thought was a suckling pig in a bag ("poke") only to discover after the sale that it was actually a cat or rat. I didn't know that. Cool. Now that I've been edified, I'll also add to what Justice Sills said by telling everyone that this same practice may also be the origin of the phrase "Let the cat out of the bag" as well as, perhaps, the expression "left holding the bag," since upon revealing the conents of the poke, the cat presumably often escaped, leaving the customer with only the bag. More arcane knowledge for a Friday morning.

So I liked reading this opinion, and learned something, as I often do with Justice Sills' work product.

Lest I go overboard with the positive comments, and be accused of overly browning my nose (and I'll let you figure out for yourself the origin of that phrase), let me add to them some very minor gripes about a couple of components of Justice Sills' style. Appropriately enough on a day in which I fiddled -- for the second time in several years -- with the style of this blog. (I didn't like how tall and narrow the posts were in the old format, and was able to improve the thing on other fronts as well; e.g., having links automatically open up in a new window. And, yes, I know the colors are garish; sorry about that. POSTSCRIPT: I'll keep tinkering with the colors until it stops looking like -- in the entirely accurate words of one reader -- "a teenager's MySpace page").

Back to Justice Sills. Two things. First, I'm a fan of parentheses, not brackets, for quotes in a citation. I like the regular use of brackets as indicating author-added material, and don't see why regular old bluebook form and the use of parentheses needs (or is improved) by changing to brackets. Smith v. Jones (1988) 314 U.S. 346 ("Insanity is a defense.") seems better to me than Smith v. Jones (1988) 314 U.S. 346 ["Insanity is a defense."]. Second -- and again a very minor stylistic point, but this time a slightly annoying one -- is Justice Sills' use of section headings. I have no problem with placing them in the center of the page. But let's delete the three-inch margins on both sides. Page 8 of the opinion, for example, begins with this:

2. The Problem of Incorporation

by Reference

a. What is Incorporated

Must Be Known or Easily Available

at the Time of Incorporation

Seems to me it'd be a lot better to read like this:

2. The Problem of Incorporation by Reference
a. What is Incorporated Must Be Known or Easily
Available at the Time of Incorporation

So those are my whines for the morning. Wait, one more. Offerred, again, in an honest spirit of trying to help. Footnote 11, Page 11: Vaden v. Discover Bank is actually at 129 S.Ct. 1262, not 128 S.Ct. 1262.

Nits aside, this is another classic easy -- and fun -- read. Check it out.
POSTSCRIPT - An astute reader tells me that Section 1:6 of the California Style Manual says to use brackets instead of parentheses for parentheticals. Which just goes to show you how much I know about the CSM. So my critique on this point is totally not with Justice Sills -- and I likely should have noticed that lots of others do the same thing; my bad -- but rather with the style manual he's got to comply with. My bad.

Thursday, June 11, 2009

Alex O. v. Superior Court (Cal. Ct. App. - June 10, 2009)

I'm glad that Justice Benke decided to publish this opinion. It's important. In large part because I agree with her that it's unconstitutional for a court to tell a U.S. citizen who lives in Mexico that he can't come to the U.S. except to attend school, work, or visit his family. You can't banish people, even as a condition of probation. And it's important to remind people that, especially if (as here) both the trial court and -- even on appeal -- the California Attorney General's Office believe otherwise. (I also agree with Justice Benke, by the way, that it is nonetheless permissible to require the probationer to inform his probation officer in advance whenever he's planning to cross the border.)

I also appreciated the opportunity to read the opinion for another, much less significant, reason. You can buy four pounds of weed in Tijuana for $400?! Dude! I mean, I'm sure it's relatively skanky stuff, but still. $100 a pound? Wow.

Maybe now I understand why the place is so popular. Swine flu and decapitations notwithstanding.

Wednesday, June 10, 2009

Enrique M. v. Angelina V. (Cal. Ct. App. - June 10, 2009)

I'm not at all saying that Justice Aaron -- or the trial court, for that matter -- gets this one wrong. Lots of the dispute is fact-specific about what's best for this particular kid; what his last name should be, where he should go to middle school, etc. Obviously reasonable minds can differ on this one.

But let's at least be honest. One of the central issues is whether the child (over whom the parents have joint custody) should go to the middle school near his mother's house or the middle school near his father's house. Allegedly the child prefers the latter, and of course what we're asked to decide is what's in his best interests.

So I can see the court caring about continuity (the child went to elementary school near the mother's house), transportation difficulties (the father's school is 15 minutes away from the mother's house, which is where the child stays the majority of the time), etc. But what I think we should be forthright about is which is the "better" academic institution. The choices here being Woodland Park Middle School in San Marcos, near Mother, or Marshall Middle School in Scripps Ranch (near Father).

The trial court says that both schools are good, a declaration that the Court of Appeal reiterates. And I'm sure that's true. But come on. We all know which school is "better" in terms of test scores and stuff like that, and we should be honest about that. Here are the scores from Woodland Park, and here they are from Marshall.

Are those the be-all end-all? Of course not. Do I think we should send a child to the school of whichever parent lives in the richer neighborhood? No way. But if all other things were equal, and your child had a choice between Woodland Park and Marshall, should we be honest about which one we'd prefer? (Indeed, which one parents assuredly do prefer, if they are allowed to seek a transfer from one to the other.) Yes. We should. And then we should forthrightly put that into the mix and decide, rather than pretending that as long as a school is "good", they're equal.

POSTSCRIPT - Full disclosure. An astute reader noted that even though the identity of the Father is not revealed in the opinion, it only took a little digging to discover that he went to law school at USD while I've been teaching here. Given that nugget, I was easily able to discover the identity of the father through public sources. Two points: (1) He wasn't a former student of mine, and (2) I didn't know any of the above when I wrote the post. (But nice catch by the reader, since the USD connection came not from this opinion, but from a different one.)

San Diego Police Officer's Ass'n v. San Diego CERES (9th Cir. - June 10, 2009)

Ah, San Diego. The sun. The beaches. The luxury. The disastrous pension situation.

The case out of the Ninth Circuit this morning is but a tiny sliver of the legal disputes generated by the latter. But it's an interesting one, if only because few people are aware that parts of the pension dispute involve -- of all things -- claim preclusion and the Contracts Clause.

It's also a case worth reading, at least for those down here in San Diego, for the opinion's attitude towards some of the appellant police officers' arguments. Let me just give one snippet as an example: "Despite the district court’s having granted summary judgment to Appellees on all of Association’s federal claims, Association contends that it should be considered the prevailing party. . . . Association seeks to emulate the alchemists in the Middle Ages in its effort to transmute the base metal of its total loss on the merits into the gold of 'prevailing party' status . . . . That just won’t work." Given this predicate, to whom do you think the opinion was referring in footnote eleven, which reads: "Each of Association and Appellees argues that the other’s appeal as to the award of costs should be deemed frivolous. But neither party submitted the motion required under Fed. R. App. P. 38. In the absence of such a separately filed motion, we cannot grant a party its attorneys’ fees
and costs in defending an appeal, notwithstanding the potential merit of any claim." (Parenthetically: Latham, which represented the appellees, should know better than to make this basic mistake -- a mistake that likely cost the City a monetary benefit that it can ill-afford to lose. Maybe I'm just bitter because I figure that, as a City taxpayer, my share of the loss is around a full penny.)

So another piece of the pension puzzle comes to an end. Now to deal with the remaining 999.

Tuesday, June 09, 2009

People v. Haller (Cal. Ct. App. - June 9, 2009)

It's one thing to say that a sentence of 78 years to life (for which the defendant will be eligible for parole, at the earliest, when he's 119) isn't "cruel and unusual" for a defendant who left threatening messages for his ex-wife and then drunkenly showed up at her house with a knife, only to be promptly shot in the groin by her shotgun-toting husband. It's another thing to say that he totally got what he deserved.

Justice Sims repeatedly says the latter. (E.g.: "[Defendant] made [his ex-wife's] life (and her husband's life) a living hell and deserves the sentence he received.")

I do gotta say that it somewhat bothers me -- or at least bothers me more than it appears to bother Justice Sims -- that this dude receives a longer sentence than most premeditated murderers. And I know that Justice Sims is entirely correct that the fact that the guy took a shotgun blast to the groin -- which resulted in the loss of one of his favorite friends -- doesn't technically matter for sentencing purposes. Still. There's something there. In the end, I think I have a slightly different view than Justice Sims on this guy being let out of prison when he's, say, 80 years old.

I'm not saying that Justice Sims is wrong and I'm right. And I totally get his disposition on the merits, since it takes a fair piece for a sentence to be unconstitutional. Nonetheless, I think that had I written the opinion, I might not have been as over the top about Haller fully deserving to be 119 before being released.

Maybe I'm too much of a softie in that regard. Could easily be.

People v. Ugalino (Cal. Ct. App. - June 9, 2009)

There are certain advantages that accrue from attending law school. For example, if you've just committed first degree robbery, and have been caught by the police, you're unlikely to tell them -- as Del Ugalino did here -- that "you can't arrest me for ripping off a drug dealer." For while we don't expressly teach the contrary rule, I'm pretty sure that most law students know the scoop.

Lest there be any doubt: Even if the thing you're stealing is illegal, you can still be convicted. Especially if, as here, you point a gun in someone's face to do so. Something that Ugalino gets to ponder for a dozen-plus years.

Farb v. Superior Court (Cal. Ct. App. - June 2, 2009)

You and your wife hired a surrogate back in '93 . She got pregnant with twins in January of '94, but shortly thereafter, you not only decided that you didn't want children with your wife, but you didn't want her at all. You left her, and your divorce was final in May of '94. Meanwhile, the pregnancy continued apace, and in October '94, out came two twins -- Rita and Robert. The kids lived with your (now ex-) wife, and you didn't provide any child support or anything like that. They were hers.

Fast forward a dozen years, to 2006. You die. You're worth over $120 million. So needless to say, this is going to be a tough probate; indeed, as of 2009, it's still ongoing. A little over a year after you die, your twin surrogate children sue your estate for what they allegedly should have gotten in child support.

A thorny issue on the merits, huh? But one that the judiciary need not resolve, because you'll note that I said the lawsuit was filed a little over a year after you died. That little bit matters. CCP 366.2 says you have to sue a dead person within a year after his death. You didn't. Hence you lose.

The lesson for the day is not to wait to sue dead people. They've got all the time in the world. You don't.

P.S. - There is perhaps another lesson here about not deciding to have children shortly before deciding to get divorced. Maybe you want to think about those things in reverse order, eh? But that's a separate issue.

Monday, June 08, 2009

Doppes v. Bentley Motors, Inc. (Cal. Ct. App. - June 8, 2009)

Oh, the trials and tribulations of wealthy residents of Orange County. For example, that my new Bentley simply does not smell correctly. I'll take a quarter million for that, thank you very much.

Admittedly, if I dropped a boatload of cash on a Bentley, I'd want it to smell pretty darn good as well. Like freaking lilacs all the time. But perhaps I ask too much.

Anyway, the Court of Appeal holds that you can get prejudgment interest in addition to getting back your cash for the Bentley. Chalk one up for another satisfied O.C. customer.

P.S. - There's a companion case today that has more of the facts, as well as an interesting discussion about why the trial court should have granted terminating sanctions against the defendant (!). Check it out. Not exactly the kind of publicity that Bentley Motors would prefer, I'm sure.

P.P.S. - I randomly stumbled on the fact that the plaintiff in this case, August B. Doppes, owns a patent for a telephone-shaped air freshener. Given the context of this litigation, pretty ironic, eh?

Friday, June 05, 2009

CFIT v. VeriSign (9th Cir. - June 5, 2009)

They say that IP's on the decline and that antitrust is the new hot field (again).

Here's some proof. Alongside a neat little overlap.

Unlimited Adjusting Group v. Wells Fargo Bank (Cal. Ct. App. - June 4, 2009)

I'll admit it in advance. I'm a moron.

I keep reading and rereading this case to try to understand it. But I just can't get my head around it. Justice Mosk does a wonderful job writing a seventeen-page "UCC For Dummies" primer precisely for people like me. But I still don't understand.

What I hear Justice Mosk saying is that a depository bank doesn't have any liability on a check if the intended payee and the named payee are identical. After all that reading, and helpful explanation, I at least understand the terminology. But I still can't seem to grasp the concept. Notwithstanding Justice Mosk's totally helpful use of hypotheticals for people -- like me -- who barely know what "UCC" stands for.

Here's my problem with the whole thing. Imagine I write a check to pay my cable bill -- $100 to "Cox Cable Television" -- and put the check in my mailbox. Some dude walking along the street then opens my mailbox and steals the check. The dude then walks into my bank and says "I'd like to cash this check." The bank says: "But this check's payable to Cox Cable Television?" At which point the dude says: "Oh, yeah. That's me. First name: Cox. Last name Television. Middle name Cable, after my grandfather." The bank says: "Do you have any identification?" Dude responds: "See the 'CCT' monogram on my T-shirt. That's my identification." Bank says: "Good enough for us. Here's your $100. Have a nice day, Mr. Television."

As I understand it, Justice Mosk's saying the Bank has no liability at all in this setting. Even though the Bank was clearly totally negligent. After all, the present case is very similar -- Plaintiff writes $6.1 million in checks to a established Wall Street broker named "Carlin Equities Corporation," the thief opens up a bank account with a virtually identical name ("Won Charlie Yi dba Carlin Corporation"), cashes the checks, and steals the money. To which the Court of Appeal says that, as a matter of law, even if there's negligence, the Bank's not liable.

I keep thinking: "I've got to be totally off base here, right? No way the Bank gets off scot-free under the facts of my hypo, right? How's this case different?" Or am I reading the case correctly but merely displeased with what the UCC apparently provides?

As I said, I'm in a jumble on this one. Something -- and I assume it's my own competence -- just feels totally wrong.

P.S. - RIP, Kodiak ("Kodi") Rierson/Martin/Swartz/Price, 1993-June 5, 2009.

Thursday, June 04, 2009

Nelson v. NASA (9th Cir. - June 4, 2009)

Most of the opinions from the Ninth Circuit get published at 10:00 a.m. But sometimes, particularly with en banc denials (and associated opinions), they dribble in thereafter. Which happens today. To the tune of five different missives in Nelson v. NASA.

It's a good case, on a relatively novel issue. Can the Jet Propulsion Laboratory (JPL) require new, intrusive background checks on existing long-term employees? Or do the employees have a constitutional right not to have that happen?

The district court denied the plaintiffs' motion to preliminarily enjoin the new checks, but around a year ago, a panel in the Ninth Circuit unanimously reversed, holding there were serious issues about the constitutionality of the program and that the balance of hardships favored an injunction. Then came the (predictable) vote to take the case en banc -- when you're at least allegedly dealing with national security, that's gonna happen.

What happens then? The best way to frame the result is to use Judge Wardlaw's concurrence. Since it's both descriptive and telling.

First, adopting a trick from Judge Reinhardt (who joins her concurrence), Judge Wardlaw tells everyone the outcome of the en banc vote without (facially) violating the rules against doing so. "[T]he active judges of our court, in a vote that was not close, denied rehearing of this case en banc." Dropping a footnote to Reinhardt's dissent last month in Cooper in which he again rails against keeping en banc votes secret (my discussion here).

Second, Judge Wardlaw tells you who authors dissents from the denial. And, more interestingly, tells you -- with very few holds barred -- what she thinks about 'em. Her reaction falls into two categories. First, there's Judge Callahan's dissent. As to which Judge Wardlaw is fairly vicious. Judge Wardlaw repeatedly refers to Judge Callahan by name in her concurrence, and I get the distinct sense it's not merely for reference. Perhaps that's because of lines like these: "Our opinion is actually much narrower than Judge Callahan would have her audience believe." Snap!! "Her audience". Wow. Tell us what you really think, Kim.

So Judge Callahan's dissent is in the first group. Judge Wardlaw also responds to Judge Kleinfeld's dissent, and her response there is deliberately measured and fairly neutral. Judge Wardlaw finally responds to Chief Judge Kozinski's dissent, and her response to him is affirmatively solicitous, with lines like: "Chief Judge Kozinski’s dissent thoughtfully raises a number of considerations to be taken into account in shaping the right of informational privacy." It's as if Judge Wardlaw is saying: "Alex: Smart, reasonable, but slightly off. Andy: Good, solid arguments, but wrong. Connie: Get real." Only in 24 pages.

Plus we have the now-predictable pitches to the United States Supreme Court. From Judge Callahan, an opening line that both ups the ante and mirrors verbatim one of the bases for certiorari: "This case places before the court an issue of exceptional importance: the degree to which the government can protect the safety and security of federal facilities." From Judge Wardlaw, the rejoinder, ending her concurrence in the denial with: "Even the Supreme Court would find it a much surer task to outline the contours of the doctrine of informational privacy with some of Judge Kozinski’s questions actually answered. Therefore, I concur in the denial of en banc rehearing, and await the next round."

Not hard to figure out who the "audience" is for each of those lines, eh?

Good stuff all around.

People v. Gerold (Cal. Ct. App. - June 3, 2009)

"Not Guilty By Reason of Insanity" does not mean "Innocent". At least for purposes of expunging your records.

Wednesday, June 03, 2009

Catholic League v. City and County of San Francisco (9th Cir. - June 3, 2009)

This is a long opinion, and entails an elaborate discussion of the Establishment Clause as applied to a fairly unique set of facts. If you're interested in conflicts between Church and State, reading the whole thing is time well spent.

That said, I can summarize the dozens of pages of single-spaced text fairly concisely.

Here's Judge Paez, who authors the majority opinion: "It's okay for San Francisco to pass a totally symbolic resolution that says that Catholic Charities shouldn't discriminate against gays and lesbians by refusing to place adoptive children in single-sex families, even though Cardinal Levada said they should. That's just San Francisco's take on a matter of public interest. A City can speak on a secular subject even when doing so insults the policies of a particular Church."

Here's Judge Berzon, who concurs: "I agree with Judge Paez. I just want to add that I'm a little nervous. It's okay here, sure. But were the City to go farther -- start taking out advertisements to slamming the Church, start telling Muslims not to observe Ramadan, etc. -- and we're looking at something different. Tread lightly."

I think both opinions are well put. For myself, I've got no doubt that an American Kristallnacht -- or anything like it -- would violate the First Amendment. But I also agree that this ain't that.

People v. Ebaniz (Cal. Ct. App. - June 3, 2009)

Tyrone Ebaniz is a sixteen-year old charged with participating in the grisly group torture and murder of his best friend, seventeen-year old Eric Jones. At his first trial, he's convicted of a wide variety of charges -- including first degree murder -- and sentenced to 34 years to life. The Court of Appeal affirms all of these convictions except the first degree murder charge, which it reverses for instructional error. The Court of Appeal lets the DA decide whether to retry him on the murder count, and the DA goes for it.

At the second trial, the DA again gets a conviction for first degree murder. But, on appeal, the Court of Appeal again reverses, this time for a different instructional error. Again, the Court of Appeal lets the DA decide whether to try again, and the DA again says: "Sure, why not?"

The third time's the charm. At least for Ebaniz. This time, the jury acquits him of both first- and second-degree murder.

End of story, right? Nope. Ebaniz then seeks to vacate his plethora of convictions from the first trial -- the ones the Court of Appeal affirmed. Why? On the basis of the testimony introduced at the third trial, which he claims is "new evidence" that supports his innocence of even those old counts.

And the Court of Appeal agrees. So now Ebaniz gets a new trial on those as well.

Sometimes, when you're a DA, you've gotta leave well enough alone. We'll see what happens at Trial No. 4.

Tuesday, June 02, 2009

Clem v. Lomeli (9th Cir. - June 2, 2009)

We learned last month that you can't necessarily believe everything you read in the Rutter Group. Today, we learn that even when you're in the Ninth Circuit, you can't even rely upon the Ninth Circuit's own Model Civil Jury Instructions (here, No. 9.25).

Is nothing sacred?

Chau v. Starbucks (Cal. Ct. App. - June 2, 2009)

When you leave money in the tip jar at Starbucks, to whom are you leaving it? And who may permissibly recieve it; in particular, can the company command that the store manager ("shift supervisor") gets a cut?

The general rule in California is that the company can't take a cut of tips from its employees and give the dough to their agent (e.g., the manager). Judge Cowatt, down here in San Diego, followed this general rule, and in a suit brought against Starbucks on behalf of its California baristas, awarded the employee class 86 million plus. But, today, in an opinion by Justice Haller, the California Court of Appeal reverses, and orders judgment entered on behalf of Starbucks.

Yes, the Court of Appeal said, if you give your tip directly to a particular employee, they get to keep it. But if you give a "collective" tip -- e.g., into a tip jar -- that's tipping everyone, including supervisors. Or at least that is what we believe, and on the basis thereof, we're going to allow Starbucks to require that these tips be shared with managers. (Parenthetically, as here, we're also going to allow Starbucks to highly regulate tipping, and to dictate where and how the tip jar is displayed -- which will ensure that the tips indeed flow to the manager and not exclusively to the employees.)

This is definitely a case in which social norms are relevant; indeed, dispositive. Which raises interesting issues about how judges know (and explain) these norms, particularly when judges may disagree about them. But I'll leave that discourse for another time.

For now, just know that if you were ever a barista at a California Starbucks after 2000, today was not a good day for you. You lost some money that you otherwise had coming to you.

Monday, June 01, 2009

In Re H.H. (Cal. Ct. App. - June 1, 2009)

Just a little hint: When you're riding a bike, minding your own business, and the police stop you because you don't have the proper lighting equipment thereupon (and, yeah, I'm sure that was their real concern), the first words out of your mouth should not be to proclaim: "I'm not on probation." Because, my friend, such a sua sponte statements tends to -- oh, I don't know -- maybe raise a little suspicion about what the heck's up with you. Like maybe we should pat you down and find that loaded gun in your jacket, eh?

People v. Davis (Cal. Supreme Court - June 1, 2009)

The California Supreme Court issued its opinion today in the case against Richard Davis, who was the person who kidnapped and killed 12-year old Polly Klass. It's a case familiar to anyone who was cognizant of current events in the early 90s -- particularly in California, and especially parents. Your little girl is having a slumber party with her friends and an intruder who slips into your home kidnaps and eventually kills her. Chilling.

It doesn't take much to figure out what the California Supreme Court's going to do in this one once the resulting death sentence comes up on automatic review. This is an extremely high profile case. The possibility of being recalled -- or defeated for reelection -- is a distinct possibility if you vote to reverse. So I hope it comes as no surprise to anyone that the California Supreme Court unanimously affirms the conviction and death sentence.

And if doing so requires the court to hold (as it does here) that the public safety exception to Miranda applies and allows the police to continue to question a suspect -- and use the resulting testimony against him at trial -- even after he's invoked his right to counsel, so be it. Because even though nine full weeks have gone by after the kidnapping, I'm sure the questioning was motivated not to obtain evidence against the suspect, but due to the concern for Polly Klass's safety and the belief that she might be alive and in jeopardy. Yep, that's why the police went back in and questioned Davis after he invoked -- and why they waited four full days to do so. Not to obtain evidence, but because they were desperately concerned for the immediate safety of Klass. Yep. I'm certain of it.