Tuesday, January 31, 2012

Welch v. California State Teachers' Retirement System (Cal. Ct. App. - Jan. 31, 2012)

This is facially a very appealing case.  Melanie Welch is a teacher and in 1998 is attacked by a group of students, who kick her in the leg and punch her in the face.  She doesn't go back to work, and says that she calls someone at the California State Teachers' Retirement System about getting disability benefits but they tell her she doesn't qualify because she doesn't have five years of service.  But this isn't true.  Six years later she finds out that she qualifies and applies, but they deny her benefits because she didn't apply on time.  There's some more procedural wrangling below, but eventually, the case comes up on appeal, and the Court of Appeal reverses.  You misled her, so you probably have to give her benefits.

Again, facially, that seems right.  It might even be correct as a legal matter.  If you told someone the wrong thing, and if telling them the wrong thing resulted in the delay (and stopped them from obtaining the evidence they need of the underlying disability), this may be your problem, not theirs.

But let's read between the lines a little bit to figure out what's really going on here.

The day after the attack, the school principal asks Welch to return to work, but she says she's too shaken up.  That's reasonable.  So the principal tells her to see an occupational therapist, which she does.  Who says that, yes, she's cleared for work.  But Welch still doesn't return.

So the district puts Welch on administrative leave.  With pay.  Pretty nice.

Meanwhile, the school district has started to investigate allegations of Welch's erratic behavior, including allegedly hitting children at the middle school.  My strong sense is that these are not new allegations, and that stuff has been going on for a while.  Perhaps consistent with her taking the hat of a kid that led to her getting attacked.  Welch says, however, that the school district's only doing this because she said she'd complain about the lack of safety in her school, to which the principal responded that if she filed a complaint, "he had 20 kids who would say that she hit and kicked them."  Now, maybe the principal was stupid enough to make such a threat, which seems exceptionally overblown in any event to head off a complaint that (gasp!) a school in Oakland is occasionally violent.  Or maybe Welch is just making things up.  Let's try to remember that when we're assessing equity and credibility.

That's when Welch says she made her phone call and was falsely told she didn't qualify for benefits.  A call to an unnamed person on an unknown date with no evidence other than Welch's testimony.  But fear not.  It's not as though Welch is helpless.  In February 1999, the school district tells Welch that she's being dismissed -- though will continue to pay her for several weeks of doing nothing -- and Welch files a petition for writ of mandate, which she ultimately wins on procedural grounds.  But then the district redoes everything in the right way and dismisses her again, and this one sticks.

But still, after years of active litigation, no claim by Welch for disability benefits.  To get her five years, Welch -- who, remember, says she's disabled -- works as a substitute teacher in Sacramento, but says she "didn't handle it very well."  In any event, she doesn't get enough time in.  But then, in 2005, she sues, claiming the deception and disability described above, asserting PTSD.  Oh, and she also applies for SSI benefits for disability, which she obtains.

When Welch sues, the ALJ finds Welch not credible.  But the trial court denies benefits on different grounds (because Welch can't prove she was disabled back in 1999 as opposed to today).  But the Court of Appeal reverses.  Holding that this all might well be the Retirement System's fault and strongly hinting that Welch should get benefits.

Oh, one more thing.  Welch may be totally disabled and unable to work.  But that doesn't stop her from prosecuting her case in pro per.  Which she does successfully.

Again, maybe all of this is complete justice.  But maybe not.  Depends profoundly upon your view.

Monday, January 30, 2012

People v. Johnson (Cal. Supreme Ct. - Jan. 30, 2012)

It's always nice to be cited by a court.  Especially when the citation is with approval.  Particularly when the court that's giving the compliment is the highest court in the state.  And even more so when, as in this case, the citation is accompanied by a description that expressly says that your piece is "thoughtful".

And, no, this isn't self-congratulation.  Rather, that's what the California Supreme Court says today about two recent law review articles.  One of the pieces is by an assistant professor at the University of Florida Law School, E. Lea Johnston.  Add that to the tenure application.  The other is by Jason R. Marks, who's a research attorney at the California Supreme Court.  Always good to be given a compliment by your boss.  I figure it's time for Jason to ask for a raise.  (Good luck with that.)

It might be even nicer if the California Supreme Court actually did what Ms. Johnston and/or Mr. Marks suggested.  But they elect not to.  Today's holding nonetheless does something productive.  It holds that California courts can deny self-representation to criminal defendants who are competent to stand trial but nonetheless (essentially) incompetent to represent themselves.  The Constitution allows state courts to take such a position, and the California Supreme Court elects to do so.

There are pros and cons of such an approach, but in my view, the upsides outweigh the downsides.  And the justices agree, which is why today's decision is unanimous.

There's more work to be done here, for sure.  But this decision is at least a step in the right direction.

People v. Hartshorn (Cal. Ct. App. - Jan. 20, 2012)

I liked this footnote by Justice O'Rourke (in a case involving the extended committment of a mentally challenged individual):

"The term 'mentally retarded person' is used in Welfare and Institutions Code section 6500, which is the statute providing the grounds for Hartshorn's commitment. We use that term because the Legislature has not sought fit to amend the statute using different terminology."

Subtle and appropriate.

Thursday, January 26, 2012

Oshodi v. Holder (9th Cir. - Jan. 26, 2012)

What do you do when another panel in your circuit issues a holding you don't like, but the opinion doesn't get taken en banc?  Drop a footnote like this.

This immigration case gets argued and submitted in 2009.  That's a long time ago.  It then bounces around, getting withdrawn, resubmitted and deferred until it's ultimately resubmitted in June 2011.  So the panel's now ready to write (and/or issue) an opinion.  But two months later, in August, Judge Reinhardt writes an opinion in a different immigration case -- Ren v. Holder -- that's really, really bad for the present panel's desired resolution.  The issue in the current case is whether the IJ properly made an adverse credibility finding.  That exact same issue was at issue in Ren.  And Judge Reinhardt's opinion held in that case that IJs cannot make adverse credibility findings based on absent evidence without giving the petitioner a chance to explain the things that the IJ thinks are missing.  Which didn't happen in the present case.  So it looks like the panel here has to reverse.

But that's not what the panel wants to do.  It wants to affirm.  And it certainly doesn't want to follow Judge Reinhardt's holding, which it doesn't like.

The problem is that Judge Reinhardt's case was even older than the current one.  That case was argued and submitted in August 2009, and also took two-plus years to decide.  So the panel has to follow it.

But they don't feel like it.  So they drop a footnote -- footnote four -- that says that even though Judge Reinhardt's opinion "purports" to make this holding, it's really dicta since the issue was not presented for review.

Really?  Are you sure?  Here's what Judge Reinhardt's decision says:  "We must first decide whether under the REAL ID Act, the IJ, having concluded that corroborative evidence was necessary, was required to give Ren notice of that decision and provide him with an opportunity to obtain the required evidence or explain his failure to do so. A plain reading of the statute's text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof."  That doesn't sound like dicta, does it?  And the panel certainly seemed to think that this issue was presented for review and was necessarily decided, right?

One view might be that Judge Reinhardt (and the rest of the panel) was totally overreaching and that the current panel was thus right not to follow his opinion.  Another view might be that the current panel was simply displeased with this holding and didn't feel like following it, and that calling a clear holding "dicta" improperly created a conflict with circuit precedent.

Regardless of who's right, I don't think that you can permit conflicts like this stand, particularly on issues (like this one) that constantly arises.  I think the Ninth Circuit has to take this one en banc and decide what the right rule is.  The proper resolution of the issue shouldn't depend upon an arcane -- and highly contentious -- inquiry into whether a particular issue was "really" presented by the briefs and whether a panel that clearly intended to make a particular holding "really" did so.

U.S. v. McGowan (9th Cir. - Jan. 26, 2012)

Third judge's a charm?

A prison guard allegedly assaults a couple of inmates and is criminally charged for it.  The jury convicts, but the district court enters a judgment of acquittal.  The Ninth Circuit reverses.  And because it's Judge Real, the Ninth Circuit also remands the case to a different judge.  (The Ninth Circuit gives a slightly different reason, but the identity of the jurist is a big part of it.)

Now it's time to sentence.  The new judge, Judge Wright, decides upon a three-year sentence, in part because he believes a snitch who says that the guard is also smuggling drugs into the prison.  Another appeal, and another reversal.  The Ninth Circuit holds that the district judge shouldn't have relied on the informant's testimony without permitting cross-examination, especially in a setting such as this one in which the informant had every reason to lie and little indicia of reliability.

And another district court judge.  The Ninth Circuit says that Judge Wright may have already made up his mind on the sentence, so we'll get a third judge on remand.

Let's hope that one sticks.  It also makes me wonder what the record is for multiple reassignments on appeal.

Wednesday, January 25, 2012

Klein v. Chevron (Cal. Ct. App. - Jan. 25, 2012)

So that's why I'm getting poor gas mileage!

I like this opinion.  I like the class action.  It's about something I didn't know.  And it matters.

You see, my friends, gasoline is a liquid.  A fact of which we're all aware.  Here's something we also know:  Liquids expand as the temperature gets higher.  So when you buy gasoline when the temperature is higher, you get less of it.

You still get a gallon.  But a gallon isn't necessarily equivalent to a gallon, as weird as that might seem.  At higher temperatures, a gallon of gasoline actually contains less fuel than a gallon at lower temperatures, as the liquid has expanded.  For example, a gallon of gasoline at 75 degrees may contain around one percent less fuel than a gallon of gasoline at 60 degrees.

Here's another fact of which you're likely aware:  California tends to be warmer than other states.  Put these common facts all together, and you discover something new.  We're getting less fuel per gallon than people in other states.  When we fill up our engines, we get an equal number of gallons, but effectively less gasoline.

Okay, you might say.  That may all be true.  But that's just an inalienable fact.  It doesn't make for a good -- or proper -- class action.  It's like another case I read about several months ago, in which plaintiffs filed a class action claiming that buyers of premium gasoline don't get all the gasoline for which they paid when the service station uses a single dispensing nozzle because there's some leftover regular gasoline in the nozzle.  True, but irrelevant.  We're not going to let you file a class action over it.  It's just the nature of the beast.

I admit that there was part of me that had the same reaction here.  Lots of damages -- hundreds of millions, perhaps -- but nothing totally deceptive about it.  It's just the nature of the beast.

But then I read two facts that changed my opinion.  First, we can compensate for this problem.  Easily.  And gas stations already do so in Canada.  Where it's cold.  And where implementing that technology benefits them.  You see, when it's cold, gas stations give out more fuel in a gallon, because the liquid is denser.  So stations add a device to their pump that compensates for that.  Effectively taking the temperature when the gasoline is pumped and delivering less fuel when it's colder because a gallon in such settings gives more fuel.  If companies do this when it benefits them, it seems slimy not to do so when it does not.  Unfair, even.

Second, temperatures is not just a hypothetical.  Companies pay taxes on gasoline.  But they only pay taxes on gasoline at 60 degrees.  In other words, there's a standard amount of fuel at a certain temperature, and the gasoline companies pay taxes on only this amount.  But gasoline in California is dispensed at an average temperature of 70 degrees.  Do the companies pay more taxes on their California sales because they're pumping less fuel at 70 degrees?  No.  They knowingly pay the lower taxes on 60 degree fuel.  But pump out 70 degree fuel.  And collect taxes -- big taxes -- from consumers at the higher 70 degree rate.  And pocket the excess.  Again, we're talking big money:  around one percent of the taxes on gasoline, which are huge.  This, too, seems wrong.  Perhaps even fraudulent.

There are more details in the opinion, alongside difficult judicial abstention and other issues.  But I gotta tell you that not only do I think the Court of Appeal gets this one right, but this is exactly the type of case where I'm glad we have class actions.  Is any individual consumer going to sue for $50?  No.  When put together, are we talking about massive amounts of money?  Yep.  And is there a potential problem here, as well as a potential solution?  Definitely.

There are lots of times when I think that class action lawyers have filed claims that are silly and/or designed solely to extort a quick settlement.  This is not one of them.  I'm sure the lawyers plan on getting paid.  But I'm happy to pay 'em if they do the right thing here.  Because this one may actually have merit.

Vitkievicz v. Valverde (Cal. Ct. App. - Jan. 25, 2012)

Section 1013 of the Code of Civil Procedure gives you five extra days when service is by mail.  Except when you only have four.

That one day matters.  Dispositively so here.

Tuesday, January 24, 2012

Marken v. Santa Monica-Malibu USD (Cal. Ct. App. - Jan. 24, 2012)

One theory of quantum physics says that there are an infinite number of parallel universes.  If that's true, in several of them, I assume I teach mathematics to high school students rather than law to law students.  And, sad to say, if there are indeed an infinite number of universes, I assume that in some of them, I'm accused by a student of sexual harassment.  I'm fairly confident that my reaction to being wrongfully accused would be a strong one, even if -- as in this case -- I admitted that I had indeed engaged in some potentially inappropriate conduct (but denied the remainder).

But despite the vastness of infinity and the massive variation that entails -- and boy do I feel tiny right now -- I feel confident that even in that situation, in the overwhelming majority of universes, if someone accused me of sexual harassment and I was disciplined but returned to the classroom, I would not initiate a huge litigation in an attempt to keep the underlying documents from inquiring parents.  It'd take time.  It'd take money.  And it might well result in a published opinion that repeatedly mentions my name and where I teach.  Resulting in far more publicity and scrutiny than just turning over the documents.  Which is not what I'd feel like spending my hard-earned money on.

But in the present universe, some people make contrary choices.  Including one teacher at Santa Monica High School.  And because of that choice, you can read all about it if you'd like.

Monday, January 23, 2012

Rossa v. D.L. Falk Construction, Inc. (Cal. Supreme Ct. - Jan. 23, 2012)

The California Supreme Court is busy.  It can only take a limited number of cases.

But some of 'em are easy.  Like this one.

CCP 917.1 allows you to stay an adverse money judgment by posting a bond.  CRC 8.278 says that if you prevail on appeal, you can recover the premium on that bond as well as the cost to obtain a letter of credit as collateral.

What the "premium" for a bond entails is clear.  Not so the "cost" to obtain a letter of credit.  Are we talking about just application and issuance costs; here, around $1000?  Or do those recoverable costs also include interest charges that you have to incur in your particular case because you have to borrow money in order to deposit sufficient funds to persuade the bank to issue the letter; here, around $100,000?

The trial court held that the latter wasn't included.  As did the Court of Appeal.   The California Supreme Court agrees.  Its opinion is unanimous.  Not a toughie.

Which just proves that persuading the California Supreme Court to grant review is not necessarily a reason to throw a huge party.  It's only half the battle.  Sure, sometimes they grant review to reverse.  But that's not always the case.  Sometimes they grant review just because they're excited to affirm.

Friday, January 20, 2012

Los Angeles USD v. Garcia (9th Cir. - Jan. 20, 2012)

I'm generally in favor of certifying questions to state courts.  It shows modesty.  It shows deference.  It's a good thing.  And the Ninth Circuit's been doing more and more of it.  Good.

It certifies another question today.  Asking the California Supreme Court to decide yet another state law issue on which, true enough, there's little to no California precedent.  So it makes sense.

But this is one of those rare cases in which while it may may sense for the Ninth Circuit to certify the question, if I were on the California Supreme Court, I might well vote to decline to answer it.

Sure, the issue matters.  California law says that if you're 18 to 22, and haven't yet graduated from high school, and need special education services under the IDEA, you get them.  Generally from the school district in which your parents live.  This makes sense.  That's where the student probably goes to school and/or reside.

But it's the modern era.  What if you're 18 to 22, haven't graduated high school, still need special services, but are in jail?  Who gives you those services now?  The district in which your parents live?  The district in which your jail (or prison) is located?  The state?

The relevant California statute wasn't written with an eye towards special education students incarcerated as adults.  But it happens.  To a non-trivial number of students.  So it's an issue that has some import. Which is a reason to certify the question.  On important state law matters, it makes some sense to let the highest state court have a shot at resolving the issue.

But that doesn't mean the state court has to answer the question.  And, here, these matters arise under the IDEA, so they'll normally be litigated in federal court.  So there's not a huge risk of forum-shopping or unjust discrimination if the federal court says X but a state court feels the right answer is Y.  We'll ultimately have a uniform answer, and fairly rapidly so, even if the Ninth Circuit just decides the matter itself.

And the Ninth Circuit's right that who's responsible for educating these students may have a state budgetary impact, but to be honest, that's a legislative issue -- not something the California Supreme Court should care about.  Someone's going to pay.  Maybe the Los Angeles Unified School District.  Maybe the Fresno School District.  Maybe the state.  But it's basically the same amount of money.  Yeah, we want to get the allocation right if we can.  But it's a Legislative decision, and we decide the matter based upon interpretation of a statute.  The Ninth Circuit can do that pretty much as well as the California Supreme Court.  Moreover, if the Legislature doesn't like what either the Ninth Circuit or California Supreme Court decides, they can easily amend the statute.  So, in my mind, at least, there's no real need to get the California Supreme Court's view on the issue.  A decision by the Ninth Circuit would be just fine with me.

In some cases, this might lead me to vote against certifying the question in the first place.  But not here.  The plaintiff here has already been transferred to state prison, making his particular claim basically moot.  So we don't need to act especially quickly here -- we've elected to decide the case on "capable of repetition yet evading review" grounds, and in this setting, speed isn't a priority.  So taking the time to give the California Supreme Court a shot at answering the questions isn't a significant downside.  Worth the shot.

But that also means that the California Supreme Court should be equally fine with declining to answer the question.  That'll boot the case back to the Ninth Circuit, and potentially result in some additional delay.  But no biggie.  The case will get resolved.  We'll get a uniform answer.  And while L.A. might have to pay for X and Fresno might have to pay for Y, it'll largely balance out in the end; and, again, it's the largely same total amount of money either way, and the Legislature can easily amend the statute if they don't like the decision of whatever tribunal decides.

The California Supreme Court's busy.  They've got death sentences to uphold and a plethora of Courts of Appeal to keep in line (and uniform).  This is an important issue, but one that the Ninth Circuit can decide just as well.  The California Supreme Court has a limited docket -- it can decide far fewer cases than the Ninth Circuit can.  So I'd probably respond to today's certification decision with:  "Thanks, Ninth Circuit.  We appreciate the certification.  Truly.  Honestly.  But you go ahead and take this one.  We trust you."

So that's my vote.  We'll see if the seven actual justices on the California Supreme Court agree.

Thursday, January 19, 2012

E.C. v. J.V. (Cal. Ct. App. - Jan. 19, 2012)

Defining a "family" in the modern world is tough.  Really tough.

What do you think the right answer is here?  J.V. (I'll call her "Judy") is in a sexual relationship with Brian, gets pregnant, and has a kid, but the relationship with Brian ends shortly after the pregnancy begins.  So Judy gets a friend, E.C. ("Emily"), to help.  Judy and Emily are good, and perhaps even best, friends.  Judy makes Emily her Lamaze partner, and even lets her cut the umbilical cord.  But Judy and Emily aren't living together, though they occasionally spend nights in each other's home.  And it's not sexual.

Are they a "family" yet?

After the minor is born, Judy (the mother) and the baby live with Judy's mother, but three months later, move into Emily's house.  But still, it's not sexual.  Are they a "family" now?

Shortly thereafter, however, Judy and Emily start sleeping together.  Judy gives Emily a ring.  They eventually discuss entering into a domestic partnership, but never do.  Emily joins the Air Force in 2005 (let's hear it for "Don't Ask/Don't Tell"), and Judy and the baby move in with Emily's mother.  Family?

What about when Emily signs the baby up for kindergarten and lists herself as the "parent/guardian" of the child?  Or when Emily takes the baby for doctor's appointments and the like?  Judy doesn't make Emily do any of these things, but neither does she stop her.  It's clear that Emily would like some sort of legal status over the child -- at one point, Judy writes a letter that says "Well, I can see that your [sic] pretty serious about the custody thing. We'll talk about it some more when you come home for Christmas K? I think it's a great idea."  But the talks never pan out, and Emily and Judy eventually break up.

And at this point, it's not just a hypothetical question.  If Emily and Judy are a "family," then Emily is a "presumed parent" of the child and likely gets visitation, even over Judy's objection.  But if they're not, she's not.

So whatchathink?  Family?  Does it matter that they weren't having sex when the baby was born?  Does it matter that they didn't strike an actual deal?

The trial court denies presumed parent status.  The Court of Appeal reverses and remands.  It doesn't hold that Emily is a presumed parent.  But it hints that she might well be.

Right result?

Justice Raye definitely gets one thing right.  It's not easy figuring out "presumed parent" status even in those relationships in which biology may matter (e.g., heterosexual ones).  It's even harder when biology does not matter.  And ratchet up the difficulty to an even higher level when the sexual nature of the relationship is either delayed or not present at all.

Tough questions.  Tough case.

Wednesday, January 18, 2012

Alvarez v. Brookstone Company (Cal. Ct. App. - Jan. 18, 2012)

Wasted money.

Plaintiff files a putative class action against Brookstone claiming that it illegally recorded ZIP codes on credit card receipts.  Defendant files a demurrer and prevails, with the trial court following a recent Court of Appeal decision (Party City) holding that ZIP codes (unlike telephone numbers) don't entail "personal identification" under the relevant statute.  Plaintiff appeals.

Then, in February 2011, the California Supreme Court decides a case that expressly repudiates Party City and holds that ZIP codes are indeed personal information subject to the statute.  It's a case on all fours with the present appeal.  The California Supreme Court also holds that this is the "only reasonable interpretation" of the statute.

Does Brookstone abandon its appeal in light of this clear authority?  No.  It instead argues that the California Supreme Court's decision should only be given prospective, rather than retrospective, effect.

This argument is silly.  It had a zero percent probability of success.  Decisions are usually given retrospective effect.  And the fact that the Court held that the only reasonable interpretation of the statute was the one that it adopted is the nail in the coffin.  Defendant's argument that they "relied" on Party City is both a nonstarter at a doctrinal level (you can't generally rely on intermediate authority to avoid the retrospective decision of a higher court) as well as on the facts here, since plaintiff filed her complaint before the decision in Party City was issued and accordingly sought relief for conduct that couldn't have been founded upon a decision that had not yet even been rendered.

It's a fee-shifting case.  It's a case (like the vast majority of them) where you also have to pay your own lawyers.  Smart counsel should know not to spend good money after bad.  Here's a perfect example.

Sometimes defeat is inevitable.  When it is, retreat.  Don't waste time and money on arguments that have no chance of success.

Tuesday, January 17, 2012

U.S. v. Kuok (9th Cir. - Jan. 17, 2012)

Someone buys stuff off eBay.  He's a citizen of Macau.  Some of those items aren't allowed to be exported, because they can be used in defense equipment.  One of the things he tries to buy is from a British company.  The most sensitive thing he tried to buy was from a company in Arizona.  When the authorities searched his eBay account, they discovered he had bought some two-way radios from a seller in Los Angeles.  He also agreed to meet an undercover officer in Panama.  To get there, he changed planes in Atlanta.  Where the authorities arrested him.

Where is venue proper for this offense?  China?  Britain?  Arizona?  Georgia?  Los Angeles?

No, no, you silly.  The answer is obvious.  San Diego.  Which is where the government indeed tries him.

San Diego?!  How was that location at all involved in the offense?  One of the undercover agents who was investigating the defendant operated out of the San Diego ICE offices, and at some point cashed a money order that the defendant had given him in a local bank in San Diego.

Ta-da!  Venue in San Diego.  It matters not that the defendant had no idea whatsoever that he was dealing with an undercover agent from San Diego -- or else he wouldn't have committed the crime with him (duh!) -- or that the only basis for venue there was the government's own conduct.  The Ninth Circuit holds that there "is no such thing as manufactured venue or venue entrapment."  Sure, the venue requirement is in a somewhat important document:  the Constitution.  But that requirement's satisfied by acts unknown to the defendant that are unilaterally performed by the government to advance a criminal prosecution.

I guess an argument could equally be made that venue is proper in a particular district because that's where the government elected to file the indictment.

The defendant here gets his convictions reversed on a couple of different basis, and a new trial is ordered on a couple of the counts because he should have been allowed to present a duress defense to the jury.  But that retrial will happen in San Diego.  Because venue is something we simply don't take very seriously.  At least in criminal cases.

Friday, January 13, 2012

Transport Ins. Co. v. TIG Ins. Co. (Cal. Ct. App. - Jan. 13, 2012)

When you have an appellate case that's resolved on Friday the Thirteenth, it's invariably going to unlucky for one or the other of the participants.  Someone's going to lose.

But losing is one thing.  Getting mocked -- even if alongside a compliment -- is another.

That's what happens to several San Francisco lawyers today.

It's a case about reinsurance.  Thrilling, I know.  Here's Justice Richman's concise description of the case in the introduction:

"Numerous suits were brought against Aerojet, and as early as 1980 it begin submitting claims for property damage to Transport [Insurnace Company], which it denied based on a policy exclusion. . . . A December 1997 decision by the California Supreme Court held that site investigative expenses could be covered, and in late 1999 Transport finalized a settlement with Aerojet, agreeing to pay $26.6 million. Transport claimed that over $12 million of this was the responsibility of the reinsurers, and in December 1999 submitted its billing and final proof of loss to them.

Years went by without resolution, and in 2006 Transport filed separate lawsuits against each reinsurer, which lawsuits were consolidated. Following an 17-day trial, the jury quickly answered “No” to special verdict questions whether the lawsuits were timely filed, and judgment was entered against Transport.
Transport appeals, an appeal that has generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply brief. And, Transport tells us, the appeal presents two issues of first impression in California, issues 'that when decided by this court, will have an impact far beyond the confines of the specific dispute in this case. . . . [T]his court's opinion is likely to become the lead authority on issues involving the statute of limitations in reinsurance claims, not only in California, but possibly throughout the nation'—apparently inviting us to publish some lengthy opinion addressing the claimed issues. We decline the invitation, and resolve the appeal under well-settled principles of appellate review, most fundamentally the doctrine of invited error. And we affirm."

Ouch.  Sure, you called their briefs (as well as the other side's) well-written.  But quoting, mockingly, from one of those briefs?  And then affirming?  On the grounds the lawyers delayed and then invited the error?

Double, or even triple, ouch.

P.S. - Don't think that this pattern doesn't continue in the rest of the opinion.  It does.  Just one example:  "In its reply brief, Transport asserts that 'When this court applies the actual invited error doctrine to the actual facts of this case—where it is clear Transport in fact objected to the 'reasonable time' prong (5 AA 1194)—the court will inevitably conclude that Transport's trial counsel did not 'invite' error and has properly preserved the important issues this case presents for appeal.' We conclude otherwise."

Thursday, January 12, 2012

U.S. v. Lopez-Alvia (9th Cir. - Jan. 12, 2012)

When it rains, it pours.

The Ninth Circuit publishes as many merits opinions today as it has during the entire rest of 2012.  There's some neat stuff in there as well.

I'll mention one of these opinions for now.  This one.  As to which my reaction is:  "Right on."

It's a fairly stunning case.  Lopez-Alvia is smuggling around 10 pounds of cocaine across the border, and customs officials catch her.  She initially pleads guilty, and has a plea hearing, but then changes her mind and withdraws the plea.  Her defense at trial is duress, claiming that she only smuggled drugs because she was threatened to do so.

No surprises thus far.  Happens every day.

Everything's going fine, but then at trial, the AUSA asks the court to permit him to introduce a statement that Lopez-Alvia made at the plea hearing; in particular, the following:

"COURT: Ms. Lopez, has anybody threatened you?

The court, over defendant's objection, allows the question.  So the AUSA then asks Lopez-Alvia:
"Q: Do you recall testifying under oath on February 24th, 2010, and being asked this question by the Court—by the Magistrate Judge:
Ms. Lopez, has anyone threatened you?
And you gave—did you give the following answer:
Did you tell that under oath to Magistrate Judge Guerin?


Q: Was that a lie?

DEFENDANT: How is that? I don’t understand.

Q: Well, are you—you’ve now admitted that you in fact told the judge that you were not threatened in this case. And I’m asking you was your testimony on February 24th, 2010, while you were under oath, was that a lie? Did you lie to the judge about not being threatened?

Pretty damning, eh?
Except for one thing.  Here's what the transcript of the guilty plea hearing actually says:
"COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?


COURT: Have you ever been treated for a mental condition?


COURT: Ms. Lopez, has anyone threatened you or forced you to plead guilty?


COURT: Has anyone made any promises to you as to what would happen in your case?


In other words, it's crystal clear that Lopez-Alvia was being asked at the plea hearing -- which was entirely about the voluntariness of the plea -- that the question she was asked what whether anyone "threatened you . . . to plead guilty."  It wasn't about the merits.  There wasn't a contradiction at all.

When, at a break, the defense counsel got a copy of the transcript and reviewed it, counsel promptly moved for a mistrial, which the district court granted.  Lopez-Alvia then moved to bar a retrial on double jeopardy grounds, which the district court denied.  The Ninth Circuit affirms.

I agree with that.  The AUSA didn't deliberately cause a mistrial, which is the primary situation in which you'd get a double jeopardy bar.  He was trying to get a conviction.  Improperly, to be sure.  But that doesn't bar a retrial on double jeopardy grounds.

But I also agree not only with Judge Bea's holding, but with the other things he does as well.  First, he mentions the relevant AUSA -- Jerry Alpert -- by name.  Repeatedly.  Second, Judge Bea notes that the district court can bar a retrial based upon its supervisory powers as a sanction for the AUSA's conduct if it finds such a sanction to be appropriate.  Totally right.  Good reminder.  Third, the Ninth Circuit reminds the district court that as an alternative to this "strong medicine" -- or in addition -- it can discipline Mr. Alpert directly.  Yep.  Definitely consider it.

And then Judge Bea ends the opinion with this:

"Third and finally, we note that the district court is not the sole institution with the authority to investigate and discipline prosecutorial misconduct. Within the Department of Justice, the Office of Professional Responsibility (OPR) is required to '[r]eceive, review, investigate and refer for appropriate action allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . litigate.” 28 C.F.R. § 0.39a(a)(1). If a complaint is filed, OPR would therefore be required to review the conduct of the Department attorney. Anyone may file a complaint with the Office by sending a letter to the address listed on OPR’s website at http://www.justice.gov/opr/process.htm (last visited January 4, 2012)."

Through which Judge Bea essentially says:  "I'm a judge.  It's potentially awkward for me (or one of my clerks) to file a formal complaint with the OPR.  But someone should do it.  At which point OPR would be required to investigate.  I'll get you started.  Here's the website address.  Send a one-sentence letter to OPR alongside a copy of my opinion.  One of you will surely do that, right?  Or can you not take a hint?"

So there's your assignment for today.  Help a Ninth Circuit judge out, will ya?

Wednesday, January 11, 2012

Bylsma v. Burger King (9th Cir. - Jan. 11, 2012)

A lead story on Yahoo! yesterday asserted that it's largely an urban myth that restaurant workers spit in your food.

Which is why we also read the Federal Reporter.  Because today's opinion from the Ninth Circuit proves beyond a shadow of a doubt that sometimes restaurant workers do indeed spit in your food.

Especially if you're a police officer.  Not only did Officer Bylsma observe a white phlegm blob inside his Whopper, which he rightfully took to be a spitwad, but when it was tested for DNA, it matched Gary Herb, who was working at the Burger King at the time.  Busted.  Felony assault.  Ninety days in jail.

Bylsma, by the way, sued Burger King.  Wanting big money.  The Ninth Circuit certifies the case to the Washington Supreme Court.  The question is whether you can recover under a particular Washington statute -- the WPLA, which governs contaminated food -- absent a physical injury.  Does merely viewing a glob of spit, which allegedly causes emotional distress, give rise to a cause of action under the statute?

We'll find out the answer to that question in due course.  But even today, we know the definitive answer to the question:  Do people at fast food restaurants sometimes spit in your food?  Yes.  Yes they do.

"Have it your way" indeed.

People v. Clancey (Cal. Ct. App. - Jan. 10, 2012)

The California Supreme Court should grant review of this case.

At first glance, it might appear to be a purely fact-bound issue.  Did the trial court here merely "indicate a plea," as California law permits, or did it instead engage in impermissible "judicial plea bargaining."  The majority and the dissent have different takes on this issue.

But the conflicting opinions reflect fundamentally divergent views on the proper role of the judiciary in criminal plea agreements.  And give the prevalence of plea bargains in criminal cases, as well as the increasing involvement of the judiciary in this practice, this is a critical issue upon which the California Supreme Court should express an opinion.

Certain facets are common ground.  It's permissible for a trial judge to "indicate" a sentence in a given case.  So, for example, if a trial judge says:  "Just so you know, my current thought is that I'm going to give you five years," that's okay.  That might persuade a defendant to plead guilty (if he's happy with five years).  But that doesn't coerce a plea, so is fine.

On the other hand, a judge can't get down and dirty into the plea negotiation process, by making back and forth offers, pushing one side or the other to compromise, etc.  That both risks coercing a plea as well as may diminish the neutrality of the court as well as harm the trial judge's ability to impartially evaluate any final plea agreement (which the court ultimately has to approve).

The critical question here -- and the one that I believe is centrally presented by the case -- is whether a trial court can make an "indicated sentence" conditional on a guilty plea.  In other words, we all agree that a judge can say "I'm thinking about giving you five years, regardless of whether you're convicted at trial or whether you plead guilty."  But can a judge say "I'm going to give you five years only if you plead guilty; if you go to trial, you take your chances."

The majority says, nope, you can't do that.  Justice Mihara makes a decent argument as to why that should be impermissible.  It sounds somewhat like the type of "bargaining" -- a give-and-take -- that's not allowed.  It might coerce a guilty plea.  You could see why we might well want the judiciary to be more neutral than this; to be an objective, outside observer of the plea bargaining process rather than a participant.  Those are potentially winning arguments, and you could see why a system might well adopt them.

But Judge Lucero doesn't agree.  She's sitting by designation from Santa Clara.  And, perhaps because she's a trial judge, she has a substantially different take.  She says that telling a defendant what you'll do for them  if they plead guilty does not "coerce" a plea, but rather simply gives them a choice.  And doesn't detract from a judge's ability to evaluate a plea because he or she is merely telling the parties in advance a given sentence that she not only would approve, but be willing to enter if the defendant "pleads to the sheet".  It's okay for a defendant to do so, and for a judge to indicate a sentence.  Why can't that indicated sentence be good only if the defendant pleads guilty, rather than forces a trial?

These, too, are decent arguments.  So both sides have tolerable points.  It's a close issue worthy of being taken up at a higher appellate level.

More importantly, this is a critical issue.  As both the majority and the dissent recognize, as caseloads become heavier, more and more courts are adopting formal policies in which the trial court is more actively involved in the negotiation of pleas.  This case is a perfect example.  There's an express "Early Resolution Calendar" in Santa Clara that led to the bargain here.  Judges are trying to settle cases.  If this process is permissible, it validates what these and other courts are doing, and approval would advance these regimes.  By contrast, if this process is impermissible, it's important to put a stop to it now.  Because it's pervasive already and likely to get even more so as the judicial budget crunch continues apace.

Where you come out on this debate largely revolves, in my view, about whether you think it's permissible for judges to take systemic interests into account in resolving plea deals.  One view is that judges should be pure outsiders.  Neutrals.  The federal system largely adopts this approach.  No active involvement in pleas.  We approve plea deals, but don't negotiate them, and simply decide whether they're fair.  Any contract is purely up to the parties to negotiate, with the People representing society, the defendant representing the individual interests, and the judge deciding only fairness.  That's attractive on many different levels.

On the other hand, judges do represent social interests.  In particular, the interest in systemic efficiency; e.g., the need to avoid resource drains and resolve cases without a trial.  Judges protect that interest when they decide whether or not to approve deals.  Why can't they do that in advance?  Even when the People think that a trial best serves the interest of justice, isn't it a permissible role for a neutral judge to say, no, you're undervaluing the benefits of informal resolution.  We should get this case resolved, and just like I'm allowed in sentencing to reduce defendant's sentence for acceptance of responsibility, I can do exactly the same thing in response to his or her decision not to impose the costs of a trial upon society.  And since I can do that at the final stages, I can tell them that in advance.  That's a permissible part of "indicating" a sentence.

Personally, I find both of these competing positions to have a fair degree of merit.  On the one hand, in the area with which I'm personally most familiar (civil cases), I like the federal system better.  No trial judge involvement in settlement negotiations.  No having the judge who's going to hear your summary judgment motion telling you what you should offer.  Too much of a risk that, if you disagree, and refuse to make the suggested offer, the judge might consciously or unconsciously retaliate when deciding the motion.  Similar dynamics may well apply in criminal cases, thereby supporting a similar rule.

But, at the same time, the criminal caseload is crushingly burdensome.  Trial judges can -- and do -- play a role in reducing them.  Sure, some cases might be resolved by a trial judge saying "I'm going to give you five years either way."  But a lot more would be resolved were the trial court permitted to grant the defendant a benefit by pleading to the sheet.  Otherwise why not simply say:  "Thanks, judge.  I'll take the five.  And will play the lottery at trial as well to see if I can get zero."

I can't make the call about which of these positions should be the policy of California.  Nor should a panel on the Court of Appeal.  This is something that should be decided, once and for all, by the California Supreme Court.  Different states go different ways.  Our highest tribunal should decide which of these competing views accurately reflects the policy of our state.

So I don't have unconflicted feelings about the merits.  But I nonetheless strongly believe that this is a case in which review by the California Supreme Court is both warranted and exceptionally important.

Tuesday, January 10, 2012

U.S. v. Alcala-Sanchez (9th Cir. - Jan. 10, 2012)

This is what happens when you have too many criminals and too few prosecutors.

Sergio Alcala-Sanchez is walking along I-905, about three miles north of the Mexican border.  Border Patrol stops him and determines that he's an unauthorized alien, and has been previously deported from the United States.  So Alcala-Sanchez gets criminally charged.  (Suggestion:  If you're committing a crime by your mere presence in the United States, perhaps walking alongside a heavily-traveled interstate just north of the border is not a preferred way of avoiding detection.)

We've got a "fast track" program down here in San Diego that gives you big benefits if you plead guilty fully and quickly.  We do so because we have so many border crimes that we've got to process these things along or else the judiciary (and U.S. Attorney's Office) will be swamped.  So Alcala-Sanchez pleads guilty and in return gets a decent plea agreement.  In particular, the government promised that they'd only suggest a total offense level of 12, which would result in a guideline range of two to three years in prison.  A decent deal for both sides.

But when the Probation Office calculated an offense level of 20, rather than sticking to the deal, the U.S. Attorney's Office said:  "Okay."  It filed a sentencing memorandum that said, yep, the offense level is 20, which means a range of five to six-and-a-half years (rather than two or three), and recommended the top range of six-and-a-half.

At which point Alcala-Sanchez's lawyer says:  "You breached the agreement!  Withdraw that thing!  You promised me you'd only ask for two or three!"

Then, at the sentencing hearing, the AUSA who negotiated the plea appeared.  She said, essentially, well, yes, I negotiated the plea, and I hear what defendant's saying about us being in breach.  I'm not saying that he's wrong, because I don't want to lie about the deal I struck.  But I wasn't the attorney who submitted the sentencing recommendation -- a different AUSA did that -- and I'm just a junior person, and am totally not "comfortable making a recommendation that is different than what the sentencing assistant was going to recommend."  In short:  Yes, I made that deal, and yes, I feel bound to it, but no way I'm going to challenge in open court what my bosses have apparently done.  You have to take that up with them.

So the district judge sets another hearing for the following week.  At which point the line attorney who negotiated the plea agreement again appears and "apologized profusely" for the fact that the U.S. Attorney recommended a deal different than the plea agreement.  And says that, at this point, the government's willing to let Alcala-Sanchez have the benefit of his deal, and will only recommend two to three years.

But the defendant says:  "Yeah, I hear you, but you still breached of the agreement.  Sure, you're willing to say now that I should only get two to three.  But you've already argued otherwise.  You can't unring the bell.  I negotiated for us having a unified front.  You didn't do that.  Sure, you're now willing to go along with what I've requested.  But you've also made it clear that you're only doing that because I've got you by the short hairs.  So the district court knows how you really feel, and will probably sentence me at this point to the higher number.  I want to withdraw the plea."

At which point the AUSA who submitted the sentencing recommendation says:  This wasn't deliberate.  This was just a mistake.  "This is what happens when these cases get handed from person to person to person, Your Honor."  And the line attorney adds to this by noting the “overwhelming number of cases that [she] personally ha[d].”  Mistakes happen when you're crushed.  Plenty of 'em.  Don't blame us.

The district court listens to all of this, accepts the government's position, holds that they're not in breach, and ultimately accepts the five-to-seven year range initially suggested by the government but departs downward, sentencing the defendant to four years.

Alcala-Sanchez appeals.  The Ninth Circuit reverses.  It's a breach.  You agreed to do one thing.  You did another.  That you then backtracked doesn't mean you didn't breach.  Defendant didn't get the benefit of the bargain or the unified front he requested.  Back to the Southern District.  This time before a different judge.

Which is understandable.  As well as highlights one of the many problems you have when there are too many offenders and too few resources with which to prosecute them.

Just one more thing.  It of course makes sense to remand to a different judge.  But will that really solve the problem?  It's not like the new judge will not know everything that has already transpired.  The initial U.S. Attorney recommendation.  The breach.  The relevant (and changing) positions of the parties.  It's not like there's going to be a "unified front" at this point either.  Since the new district judge can (and surely will) learn everything that the initial judge knew, and will know it instantly upon reading the Ninth Circuit's opinion.  An event that's surely going to happen, right?  What district judge is going to take a remanded case and not read the published appellate opinion that remanded it?

Sure, maybe the new judge is slightly less invested in achieving the same outcome as the initial sentence.  But it hardly puts the defendant back in the position for which he bargained.  It's simply the best we can do.

Monday, January 09, 2012

People v. Pearson (Cal. Supreme Ct. - Jan. 9, 2012)

What?!  A California Supreme Court death penalty opinion that's only three dozen pages long?!  And that unanimously reverses the death sentence?!

Seems like 2012 may well be a freaky year.  Or perhaps this, alongside that whole Mayan thing, is another sign of the coming apocalypse.

So get prepared.  Just in case.

Okay, okay.  Maybe it's just a totally unique case.  After all, the trial court here bounced a juror for cause even though she consistently said -- without any equivocation -- that yes, she could indeed impose the death penalty.  Said it around half a dozen times, and in response to literally hundreds of oral and written questions.  That's pretty unusual.  And indeed requires reversal of the death sentence.

So maybe it's just an anomaly.  Still.  I'm getting ready.  'Cause you never know.

Thursday, January 05, 2012

In Re Marriage of Sorge (Cal. Ct. App. - Jan. 5, 2012)

It's tough to figure out who to root for here.

In the red corner, we have Maryanne Sorge.  In the blue corner, we have Joseph Sorge.  Maryanne and Joseph were married, but are now divorced.

Pursuant to their divorce settlement, they split up the money in various ways, and Joseph agreed to pay Maryanne specified child support and alimony.  Then, in 2007, Maryanne moved to modify the deal and get more money.  They had three children, but only one of them is still a minor.  He's 14.

Maryanne has no debt.  She has over $13 million in assets.  Half that amount is liquid.  She's currently getting around $50,000 a year in child support for the one child, and she also gets alimony of about $150,000 a year.  That was the the deal the parties struck.  She wants more:  She now wants over $200,000 a year in child support.  Plus attorney's fees.  Plus sanctions.  Plus pendente lite attorney's fees.  She has remarried, but doesn't want so say how much her new spouse makes.

Not especially sympathetic.  Even down here in San Diego.

But that's equally true -- if not more so -- for Joseph.  He sold his company for $100 million, and says he still has assets worth nearly $70 million, of which over $50 million are "easily" liquid.  So he's got even more than his ex-wife.  But doesn't want to pay more in child support, even after selling his company for boatloads of cash.  His primary argument is that his "income" is negative because he's invested a ton of money in start-up companies that aren't making any money yet, and counts all those investments as "business losses" and thus deductible from his yearly income.  Never mind that he's only spending that money because he expects to make even more money in the future.

But when he makes the money, the kid will no longer be a minor, so it won't be counted as income for purposes of child support.  For now, he wants the losses to be counted so he doesn't have to pay more.

Oh, and he's sort of a jerk in the litigation.  Threatening to sue court-appointed experts and the like.  Both sides have aggressive and incredibly high-priced counsel.  Hence the requests for six-figure sanctions and attorney's fee awards.

I somewhat feel the same way I feel when I watch, say, the New York Giants play the Dallas Cowboys.  As a Washington Redskins fan, I don't really want either team to win.  But someone has to.  That's the nature of the game.  So too here.  With the only difference being that in divorce court, you can't simply watch and root for injuries.

Ultimately, the Court of Appeal largely agrees with Maryanne.  Joseph says his losses have to be counted, but Justice Aaron says -- rightly, in my view -- that you're not allowed to structure your income to hose your child.  Joseph could have invested the assets in regular old stocks or bonds and gotten current income, but decided not to.  That's his call, of course.  But it doesn't reduce his child support liability.  The trial court can properly impute income, as it essentially did here.

Maryanne also wins on the pendente lite order.  She says that she needs $60,000 now -- from Joseph -- in order to pay her attorneys for their response to Joseph's appeal.  Note the not-significant fee she's paying her lawyers for a single brief.  Joseph responds that she hardly needs $60,000 from Joseph now since she's got over $13 million in assets.  Just write 'em a check!  No need for it to come from Joseph at this point.  That's not "need," but rather greed.

This issue is closer, in my view.  But in the end I think that Justice Aaron is correct.  Need is relative, not absolute.  (So too, I might add, is wealth.)  Especially here.  Sure, Maryanne can pay.  But Joseph can pay even more easily.  So the trial court, balancing the equities, can properly tell the former to do so now.  It's not necessary to wait until the end.  It's so much easier for Joseph to write a check than for Maryanne to do so -- even though it's within both of their skill sets -- that it's okay to tell the former to go ahead and do it.

So that's how high-priced divorces sometimes go.  Someone wins.  Someone loses.  And we occasionally get to watch the sausage being made.

U.S. v. Russell (9th Cir. - Jan. 5, 2012)

Sometimes I like to discuss doctrine.  Sometimes I like to mention stories.  And sometimes, as with this case, what I learn from an opinion may have practical significance to the public at large, so I like to share it.

The lesson from today's case -- one that's definitely worth remembering -- is that if an officer asks you for your consent to search you, and you agree to allow him to pat you down, you've thereby agreed to permit him to touch your junk.

That's purportedly why they start the patdown from the ankle up.  So you can alelgedly say "stop" when it gets too personal.  Sure, you might think they're going to stop at the upper thigh.  But when they go higher, and the cop cops a feel, that's tough for you.  You consented.  The best you can do at that point is to say:  "That's not a gun, officer.  Could you please release my privates?"  At which point, verily, the (hopefully non-kung-fu grip) shall be released.

A rule that applies not only in airports, but everywhere.  And a rule that's going to make me think twice about consenting to a patdown.  Even to the nicest of officers.  (Except perhaps really nice-looking ones.)  Because while I don't want to be rude, and while I don't want to frustrate law enforcement, I generally have a greater desire to avoid being groped by strangers.  Including but not limited to strangers with guns.

Judge McKeown expressly doesn't decide whether this holding applies to opposite-gender patdowns.  So keep that in mind.  Though for many (but assuredly not all) men, at least, I imagine that an opposite-gender patdown might be preferable to the ones Judge McKeown does expressly allow.  Homophobia, etc.

So that's a lesson for today.  Be careful when you give consent.  Because, in this area, we're going to give a pretty broad interpretation to degree that consent takes.

Oh, one more thing.  Not something completely relevant to everyone, and not something that you may be able to do much about in any event, but nonetheless interesting.

Here's why the officers decided to track Russell down at his departure gate and pat him down (including his various "packages"):

"Officer Matt Bruch is a Port of Seattle Police Officer assigned as a task force officer with the Drug Enforcement Administration group at the Seattle-Tacoma International Airport. On August 12, 2010, Bruch received a phone call from an Alaska Airlines ticket agent reporting that Russell, described as a black male wearing a leather jacket and a large necklace, had paid cash for a last-minute, one-way ticket to Anchorage, Alaska. The Alaska Airlines agent also reported that Russell was traveling alone and did not check any luggage. In light of these circumstances, Bruch was suspicious that Russell might be a drug courier."

Rank the following facts, in order of importance, that likely led to Bruch's suspicion that Russell might be a drug courier:

(1)  Russell paid cash for a last-minute, one-way ticket to Anchorage, Alaska.
(2)  Russell was traveling alone and did not check any luggage.
(3)  Russell was a black male wearing a leather jacket and a large necklace.

Hmmmm. . . .

Wednesday, January 04, 2012

Jennifer R. v. Superior Court (Cal. Ct. App. - Jan. 4, 2012)

I guess I can get on board with the California Court of Appeal's finding in this case that the San Diego County Health and Human Services Agency didn't do all it could to help Mother (Jennifer) deal with her methamphetamine problem, and that she was accordingly entitled to a stay in the determination as to whether to take her child (James) away from her permanently.  The Agency did some things, but I agree that they could have done more.

Though here's how Justice Huffman describes Mother:  "The record shows Jennifer was highly motivated to participate in services.  She completed her court-ordered case plan.  Jennifer's visits with James were regular, affectionate, and loving. . . . The social worker acknowledged Jennifer was willing to participate in substance abuse treatment from the beginning of the case."

Pretty glowing, eh?

Just remember that this is the same Jennifer who already lost custody of an older child due to her continuing abuse of methamphetamine.  Then, after getting clean, started using again, and then lost custody of her second child.  Then, after James was born, continued to hang out -- and protect -- the father of James, A.B.  A guy who choked her while she was holding James, causing her to pass out and drop James to the floor face-first.  Who bailed A.B. out of jail after this incident.  Who continued to live with him -- a guy who has been arrested 20 to 30 times, and who's regularly used meth (and continues to do so) for the past thirty three years.  Who, during the pendency of the case, stabbed Jennifer in the neck, nearly severing a major artery, while high on meth, and in response to which Jennifer waited 12 hours to seek medical attention -- and told the social worker that the underwire on her bra might have caused the injury -- in order to avoid getting A.B. in trouble.  Oh, did I mention that both A.B. and Jennifer were high on meth at the time?  They were.  Jennifer also tested positive for meth several months later.  She said it was from "cold medicine".  Right.  The same cold medicine A.B. has been taking for thirty three years.  Sure, Jennifer eventually obtains outpatient substance abuse treatment in April.  But stops going in July -- one month before the court hearing at issue.

This is the Jennifer who's "highly motivated to participate in services"?

It's not that I don't feel sorry for Jennifer.  I do.  She's a serious victim of domestic violence.  She's got major depression issues.  She's got an addiction she's finding difficult or impossible to quit, even after losing two kids and about to lose a third.  She's made incredibly bad choices, especially regarding A.B.  She's never going to stay clean while she's with him, and she can't seem to leave him.

So should we try to help?  Definitely.  Could the Agency have done more?  Probably.  Is it worth it to give her yet another shot?  Maybe.  I get it.  She's definitely far from the worst caregiver you see in these sorts of cases.

But let's not sugarcoat things.  She's far from a model parent.  She's not someone who's consistently done everything we ask her to do and only needs the tiniest of helping hands.  She's got a problem and she's only been sporadic -- not "highly motivated" -- in trying to solve it.  And let's be honest.  She's likely to lose her third child no matter what we do.  Because, in the end, she's likely going to choose the pipe and A.B. over her child.

Lastly, don't forget who we care most about here.  The kid.  James.  He got dropped face-first on the floor.  The back of his head was flat -- a classic symptom of neglect (i.e., you're left on your back so routinely while your parents smoke meth that your skull deforms).  While he was in foster care, he went from the third percentile in weight -- neglect, again -- to the 50th.  He's the one we care most about.  And his life, if we're honest, is a lot better apart from his mother (and A.B.) than with them.

So let's not lose sight of the big picture.  Even if, as here, it may make sense to hold that Jennifer's entitled to another shot.  The same shot she was given -- and ignored -- with her two other kids.

I wish I could be more optimistic.  But I'm not.

Tuesday, January 03, 2012

Balderas v. Countrywide Bank (9th Cir. - Dec. 29, 2011)

Well, 2012 is off to a somewhat slow start.  Yesterday's a holiday, so nothing then.  Then nothing at all published by the Ninth Circuit today.  And nothing so far from the California appellate courts either.  I assume some jurists and their staff had an awesome New Year's Eve.

But that shall not detain us.  Because 2011 still has some good stuff worth mentioning.

For example, Judge Ikuta writes a neat concurrence in this one.  Which says, in its entirety:

I concur in the opinion except for the penultimate paragraph, in which the majority takes the opportunity to give the Balderases some helpful legal advice. After clarifying that a lender must leave the TILA Notice of Right to Cancel with the borrower in order to “deliver” it (an interpretation with which I agree), the majority worries that the broker may in fact have left the Balderases with two copies of the completed form, as per Exhibit 14 of the complaint. Maj. op. at 21516. To address its concerns, the majority seizes on a footnote in the complaint, where the Balderases asserted that “[b]ecause the signing occurred after midnight, the actual signing date was the 26th of September, 2006.” Although the Balderases’ counsel didn’t make anything of this fact, the majority opines that if the Notice of Right to Cancel was indeed signed on September 26th, but incorrectly dated September 25, the notice itself would violate TILA. See maj. op. at 21516. Regardless whether the majority is better at spotting issues than the Balderases’ attorneys, it is not the job of judges to make up arguments and then purport to rule on them. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Our appearance of neutrality is damaged when we step outside our role and give a helping hand to one of the parties. Accordingly, I decline to participate in that portion of the opinion."

I'll add some subtext to that concurrence, which I think would go as follows:  "I say this in part because I think the Balderases are baldface liars.  They lost their house because they didn't pay their loan, and thereafter made up some absurd claims that are flatly belied by the documents they signed.  Nonetheless, they're willing to lie, and at this stage of the process, we have to believe their lies, and those lies -- if true -- would indeed state a cause of action.  So I join the majority opinion, as is my (and our) duty.  But that doesn't mean I have to like it, and that surely doesn't mean that we should go out of our way to assist the Balderases in obtaining the fruits of their perjury.  Let their lawsuit go forward, with faith that a jury will reject it.  But don't actively help 'em.  No need to make our test of faith harder than it already is."

Which I get.