Friday, March 30, 2012

Brantley v. NBC Universal (9th Cir. - March 30, 2012)

Although I'm not ridiculously old, I remember an era in which Blecher & Collins -- run by Max Blecher -- was a scary law firm.  They had big cases, settled for big money, and were big players.  Or at least that was the impression that I had as a young lawyer working in Los Angeles.

That was perhaps a bygone era.  Now they litigate cases like this one.

It's not that they're not still trying to hit home runs.  They are.  In cases like these as well as in others I've read during the past decade.

They're just whiffing.  In a way that's pretty expected.

This litigation is a classic example.  The lawsuit is about the fact that cable companies tie the purchase of channels that people like (e.g., ESPN) with channels that no one wants.  Blecher sues, claiming that this practice violates the Sherman Act.

But the district court dismisses the lawsuit at the pleading stage, and the Ninth Circuit unanimously affirms.  And, trust me, the case is neither going en banc nor getting reviewed by the Supreme Court.  Even people with only a glancing familiarity with antitrust law would understand that this case was a loser from the outset.

It's possible that Blecher is simply "fighting the good fight" with a full understanding that they'll almost certainly lose.  If that's the case, I get it.  That's not exactly a practice that's designed to make a ton of money, but one of the nice things about making tons of money early is that you can afford to take a flyer.  For one lawsuit or -- given enough money -- for a decade or so.  So as long as you're going into cases with your eyes open, I'm more than okay with that.  Good job.  You may know that the judiciary is radically more conservative than you are, so you're going to lose, but you're going to continue to prosecute cases that you think should be legally cognizable.  Cool.  Rock on.

It's only sad if it's something else.  If winning big cases in the past has blinded you to the changes that have happened during the past thirty years in a way that's embarrassing.

It basically depends on if you know you're Don Quixote or if, instead, you're actually Don Quixote.

One of these is Max Blecher.

Thursday, March 29, 2012

In Re Morganti (Cal. Ct. App. - March 28, 2012)

Here's the introductory paragraph to this opinion, which accurately summarizes what it's all about:

"The People appeal from an order granting Christopher Morganti's petition for a writ of habeas corpus and directing the Board of Parole Hearings (the Board) to hold a new hearing to determine whether to fix a release date for Morganti. Like the trial court, we conclude that, even applying the ultra-lenient 'some evidence' standard, the Board's decision that Morganti is unsuitable for parole cannot be upheld. Accordingly, we affirm the superior court's decision granting habeas corpus relief."

I liked Justice Richman's use of the phrase "ultra-lenient."  That's an adjective that I've never seen before, at least in legal writing.  So I decided to look it up.

This is indeed the first time a California case has ever used this term.  Moreover, as far as I can tell, this word has only been used twice before:  both times in Pennsylvania cases, with one of these occasions in 1970 (and another in 2005).

By contrast, the Clockwork Orange term "ultra-violent" has been used approximately twenty times.  Mostly to describe video games.  And, weirdly enough, around half the times, this term is erroneously used in place of "ultraviolet."

But now we've got a new phrase.  Ultra-lenient.  That I'm going to try to use often.

Wednesday, March 28, 2012

U.S. v. Major (9th Cir. - March 27, 2012)

I'm intrigued.

I'd have liked to hear more from Judge Noonan.  But as it is, his opinion leaves me unsatisfied.

Judge Wallace writes the majority opinion.  He explains that "[b]etween December 24, 2005, and July 24, 2006, retail establishments in Fresno and Madera, California, were plagued by a string of armed robberies."  Two individuals, Marcus Major and Jordan Huff, were convicted of committing a number of these crimes.

So what's the appropriate sentence?  Let's see.  Several robberies.  Guns.  Certainly not people we want on the street any time in the next several years.  Remember that we're in federal court, so it's (substantially) the guidelines.  What do you think they get?

Here's a hint:  Luffs the lucky one.  He gets a year and two months less than Major.

Maybe I should have put "lucky" in quotes.  Luff gets 8,941 months.  Which is 745+ years for regular folks.  Major gets over 746.

The Ninth Circuit affirms their convictions.  The biggest questions are about their sentences.  Judge Wallace rejects their Eighth Amendment claim.  "We upheld a 95-year sentence" in a prior case, Judge Wallace says.  What's another 650 years?  At least amongst friends.  Same result.

The majority does conclude that some minor tinkering would perhaps be required to the sentence, for technical reasons that seem right.  So it remands.  To have the district court decide whether the correct sentence shouldn't be 600 or 700 years or so rather than 745.  'Cause that's going to matter.  A lot.

Judge Noonan writes an extremely brief concurrence/dissent.  Which says, in its entirety:

"I concur in the opinion of the court except as to the sentences of over 700 years. The court says, 'No one could dispute that a sentence of almost 750 years is harsh.' No one would bother to characterize such a sentence as 'harsh.' It is simply incapable of execution. No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute. The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture."

I'm just not sure what to make of this.

On the one hand, I share the sentiment.  What's the point?  200 years, 500 years, 700 years.  There's no difference.  Not in a universe (like our federal system) without parole, and probably outside of it.  Why go through the effort?

Plus, this emotional reaction might have practical -- and political -- significance as well.  I can't help but wonder, for example, what effect sentences like these might ultimately have.  Imagine that you're a hard core 'banger like Mssrs. Huff & Major, and realize that your retail crime spree will likely net you several hundred years in prison:  effectively a death sentence.  Why not kill people?  Why not take shots at the police once (as here) they confront you?  Why not cap any potential witnesses after you've cleaned the cash register?  We're talking about the guidelines and mandatory minimums, after all.  Do you really think that sentencing regimes like this stay secret forever?  Or don't affect anyone at all once they're known?

Sure, the possibility of a death penalty might deter you.  In theory.  Though in reality that just means 20 years of appeals and habeas petitions.  And you die in prison either way.

But I'm not sure that's really Judge Noonan's point.  Does he really think these sentences constitute cruel and unusual punishment?  Or are otherwise illegal?  If so, I'd like to hear why.  Because Judge Wallace has made an argument from (and analogy to) precedent, so if he's wrong, that'll require an argument.  But I don't see one.

Maybe, instead, Judge Noonan is simply frustrated by the government's decision to defend the appeal.  But what's the alternative?  Confess error?  Even when there isn't any?  Or maybe Judge Noonan thinks it's silly, as he said, to engage in a "pointless task" of resolving an appeal over a 600- versus 700-year sentence.  But is it a judge's role to decide what tactical decisions are silly?  It's possible that Judge Noonan is hinting that the appeal is really moot in light of practical realities.  And I agree, at least as a practical matter.  But not as one under existing legal doctrine.  It's possible, after all, that all of the sentences but one will be reversed by the Supreme Court, or pardoned, or whatever, and so we have to decide now on the proper result.  Sure, we all know that none of that will actually happen, but it might, so the case isn't moot, so we have to decide it.

Or am I wrong?  Judge Noonan doesn't say.

Or maybe Judge Noonan means something else entirely.  In 1994, less than two months before announcing his retirement, Justice Blackmun wrote a dissent in which he declared:  "From this day forward, I no longer shall tinker with the machinery of death."  Is something like that what Judge Noonan's saying?  Only with respect to super-long sentences rather than the death penalty?  Is this the start of something more general?  Does a judge on the Court of Appeals (rather than a justice on the Supreme Court) have the freedom to so depart from precedent?

Judge Noonan again doesn't say.  We're instead left largely to speculate as to both his message as well as its validity.

Whatever his message, it's intriguing.  There may well be lots to say there.  I just wish I could hear it.

Tuesday, March 27, 2012

U.S. v. Rodrigues (9th Cir. - March 27, 2012)

Judge Trott begins this opinion with a snippet from a poem by Sir Walter Scott:  "Oh what a tangled web we weave when first we practice to deceive."  It's a "theft of honest services" -- i.e., fraud -- case.

I'm a lot less sophisticated than Judge Trott.  So my reaction was similarly less erudite.  It's a case involving a union official in Hawaii who shook down the union's dental and medical plan providers and convinced them to pay "consultant" fees to his relatives in return for getting the union contracts.  To which my reaction arose less from Marmion and more from Casablanca:  "I'm shocked, shocked to find that [corruption in union contracts] is going on here."

The district court the jury the wrong instruction for these kinds of cases because the model Ninth Circuit jury instruction at issue was created before the Supreme Court's decision in Skilling, which -- in a case involving a much more sophisticated theft of assets -- changed the law regarding what counts as the theft of honest services.  But no matter.  The Ninth Circuit holds that the error was harmless.  As indeed it seems to be.  The appeal here involves a classic case of corruption.  A "no pay" job; essentially, a bribe.  Given that fact, as long as the jury found -- as it did -- the underlying facts, it doesn't matter what instruction was given.  The defendant was guilty.

There's a much, much larger problem underneath the surface here that exists with respect to both legal and illegal transactions alike.  A vast amount of economic activity nowadays involves agents attaching themselves -- like lampreys to a shark or barnacles to a ship -- to an underlying monetary circumstance and sucking a tiny piece of this much larger pie.  Corrupt union officials.  CEOs.  Underwriters.  Real estate agents.  In many cases, lawyers.

Given the size of the relevant transaction, the "tiny" piece taken by each individual agent is overlooked and/or justified without much trouble.  Even when, as here, the size of that piece is perhaps not reasonable.  There are upsides and downsides of (essentially) variable compensation, but one downside is that you're rarely sure you're getting what you pay for.  Unlike an hourly wage, in which it's fairly easy to see that you've obtained (say) $20 of work when an employee works two hours at $10/hour.

The line between legal and illegal economic activity isn't as clear as many believe it to be.  But it's nonetheless clear which side of the line this one falls.  Conviction affirmed.

Monday, March 26, 2012

Bagdasarian Productions LLC v. Twentieth Century Fox Film Corp. (9th Cir. - March 26, 2012)

It's true that my kids love everything relating to Alvin and the Chipmunks.  They watched the sequel -- a.k.a., "The Squeakquel" (gotta love Hollywood) -- just last week.

But I doubt that I could persuade even lawyers with a similar passion for high-pitched animal movies to read this opinion.  It's about referee references and appellate jurisdiction.  Which I'm hoping will be the topic of the next installment of the series.

Alvin and the Chipmunks Visit the Ninth Circuit.  Starring Judge Betty Fletcher as Alvin.

Friday, March 23, 2012

People v. Maharaj (Cal. Ct. App. - March 23, 2012)

The second paragraph of this case begins:  "Defendant contends (1) the trial court erred in denying his motion to remove a juror who expressed animosity toward defense counsel and fell asleep during the first day of trial . . . ."  The third paragraph begins by saying:  "For the following reasons, we affirm the judgment. First, with regard to the juror removal issue, the record supports the trial court's conclusion that the juror did not need to be removed for bias or inability to perform the functions of a juror."

When I read this, I was initially skeptical.  I've seen far too many criminal cases in which the Court of Appeal goes out of its way to overlook real problems with the jury and/or particular jurors.

But then I read the rest of the opinion.  The Court of Appeal is exactly right.  It may well be that the juror was not happy with the defense counsel.  But the juror said all the right things when examined by the trial court and defense counsel.  Given those responses, there was no basis for a dismissal.  I'd have done the exact same thing as the Court of Appeal.

Thomas v. Westlake (Cal. Ct. App. - March 23, 2012)

Here's one reason not to put boilerplate allegations of agency -- e.g., "At all times relevant herein, Defendants, and each of them, acted as an agent of each other Defendant in connection with the acts and omissions alleged herein." -- into your complaint.

It may well come back to bite you.

Plaintiff would likely have been able to avoid arbitration if his lawyer had omitted that common pleading mantra.  But he instead did what most other lawyers do.  And, today, his client pays for it.

Word to the wise.

Thursday, March 22, 2012

People v. Int'l Fid. Ins. Co. (Cal. Ct. App. - March 21, 2012)

I'm not someone who's unconcerned about doctrine.  I care about what the law says.  My view is that it's insufficient to analyze a case simply by saying:  "But that's unfair!"  Results assuredly matter.  But it also makes a difference how a court reaches that result.  Sometimes neutral principles create consequences that in a particular case seem inequitable, but that effect is nonetheless required for the stability of an advantageous principle.  I think of doctrine as something like rule utilitarianism.  Yeah, occasionally, we see a bad result.  But I'm willing to defend it because the underlying principle is a valid one.

Then there's this case.

It's not that I don't understand where Justice Dawson is coming from.  I do.  But, my goodness, this is just wrong.  Wrong.  Moreover, it's unnecessarily so.  This is not a case where we have to reach a bad result given larger principles.  We're just reaching a bad result.

Admittedly, in the scheme of things, we're not talking about something critical.  The case is not about someone's life.  Or liberty.  Or even distribution of assets amongst alleged tortfeasors and victims.  It's instead about a bail bond.  An insurance company posted a $65,000 bond, the bonded suspect didn't show up, and the bond was forfeited.  Is that okay?

It seems a straightforward case.  Of course it is.  With only one tiny little wrinkle.  When the defendant was brought to court, he was already out on bail on a different offense, so he already had an outstanding bond for $35,000.  The court wanted to set a $100,000 bond, but also wanted to allow the defendant to get credit for the existing $35,000 bond.  So the trial court said he could apply the existing $35,000 to the $100,000 that was required.  Which left $65,000.  So the defendant did precisely that, and got a bond for the remaining $65,000.

The problem is that, technically, the court couldn't "re-up" the existing $35,000 bond without notice to the first bonding company (since the defendant had not appeared), which didn't happen.  Which is fine.  If the first insurance company wanted its $35,000, I'd give it to 'em.  And that's not even necessary, since the court has already given it back to them.  They issued a bond for a party who showed up, even though he later skipped.  They get their money.

But the Court of Appeal says the second bonding company also is entitled to its $65,000 back.  With all due respect, that's just wrong.  Yes, the trial court "ordered" a $100,000 bond (with a $35,000 "credit") based upon a mistake about the validity of the credit.  But that's not dispositive.  The bonding party submitted a $65,000 bond to secure the defendant's appearance.  He didn't show.  End of story.  That a different bond, by a different party, might not be forfeited for lack of notice doesn't matter to this bond, which was noticed and which was indeed for this offense.  That someone else may get off doesn't matter for your liability, which is independent of the other bonding company.  You ponied up for this defendant on this offense.  If he does not show, you're on the hook.  Not for the entire $100,000, admittedly.  But definitely for the amount that you voluntarily put up.

The Court of Appeal says, well, the $100,000 bond was "void".  No it wasn't.  The total might have been wrong.  But not the $65,000.  A definite and enforceable promise was made with respect to that sum, and on certain conditions.  Those conditions didn't happen, which means the bond is forfeit.  That's all she wrote.

Can I imagine a situation in which the second bonding company would be prejudiced by the error sufficient to require a different result.  Probably.  Maybe when the two bonds were inextricably tied, an error in the first would in fact negate the second.  For example, if the first bond was for $2,000,000, and then a bonding company relied on the fact that the first company was headed by a successful bounty hunter who had a huge incentive to catch the defendant if he skipped decided on that basis to put up an additional $10,000 bond -- well, maybe there I'd hold that the invalidity of the first bond would negate the second, at least if the invalidity of the first bond meant the company never even tried to catch the defendant.  Maybe then there'd be some showing of prejudice.

But there's no evidence -- none, nada, zilch -- of anything like that here.  The second company here wrote the bond not because of the existing bond for a lower amount, but rather because they thought defendant wasn't a real flight risk.  They were wrong.  They should pay.  Not only were they not harmed by the first bond, but in truth, they probably benefited.  I know full well what would almost certainly have happened if the trial court hadn't made its mistake and had instead said that the first bond couldn't be a credit.  Defendant would have then gone (as he did) to the second company and instead of getting a $65,000 bond would have gotten one for $100,000.  And the bonding company would have been out an additional $35,000, with only an additional premium of $3500 to show for it.  Being better off to the tune of $30,000-plus does not, in my mind, constitute anything near the showing of prejudice required before I'd link the two separate bonds.

There are lots of amorphous statements in the 3500s portion of the Civil Code that have remained unchanged since they were passed in 1872, and are very rarely cited by parties.  But one seems especially relevant here.  Section 3533:  "The law disregards trifles."  As applied to the second bond, the problems with the first are indeed trifles.  Nothing here caused them harm.  So no relief.

It's sad that this one is so fact-specific and (relatively) unimportant that the chances for further review are low, and hence that we're at the end of the line.  Because this one's wrong.

Wednesday, March 21, 2012

Emeldi v. Univ. of Oregon (9th Cir. - March 21, 2012)

A female PhD student is combative and makes waves about (among other things) the lack of female professors in her department.  The faculty advisor for her dissertation doesn't think much about the student's work, and when she doesn't respond to his constructive criticism by attempting to solve the problems, resigns from being her advisor.  Not many other people want to be her advisor either, which may tell you something.  She sues, claiming gender discrimination.  The district court grants summary judgment to the University of Oregon.

The Ninth Circuit reverses.

Judge Gould writes an opinion that -- reading between the lines -- hints that his own view is that there probably wasn't actionable discrimination, but nonetheless holds that the evidence from the student was sufficient to get to a jury.  Judge Fisher dissents, articulating a contrary view and also stating that "We need to be cautious when transporting the doctrines that govern the workplace into the university setting, where the roles of student and teacher, especially in a Ph.D. program, are so bound up in personal interactions and subjective judgments."

Maybe it's because I'm in academia, but Judge Fisher's position strikes a chord with me.  I certainly know that I'd be hesitant to take on a faculty role in a student's dissertation if I thought I might be sued if I ultimately thought her work sucked or she refused to do any of the work I suggested.  This would be especially the case if we were different genders (or races, or sexual preference):  I wonder if the net effect of this holding will be to somewhat homogenize and segregate faculty dissertation advisors.

So I'm tugged towards Judge Fisher's dissent.  Though at the same time, Judge Gould has a nontrivial point as well.  At least if the analogy to the workplace holds, here, the student has alleged what seems to be a prima facie case.  And I could indeed see someone dropping a student simply because she was a "rabble rouser" rather than on the merits.

Mind you, at least reviewing the paper record, I'm pretty confident that didn't happen here.  But who knows what a jury would conclude at trial?  (Though that realization too somewhat scares me.)

So what do you think?  A sea change in the PhD world?  Or simply a straightforward application of existing law?

Tuesday, March 20, 2012

People v. Abel (Cal. Supreme Ct. - March 19, 2012)

The first murder was (allegedly) committed by Cain, who killed his brother Abel.  The Bible says that God punished Cain by placing a mark upon him "lest anyone finding him shall kill him," and Cain was banished to the land of Nod.

Now Abel gets into the act.  And the penalty for the murder he commits is death.

Imposed by the State this time.  And unanimously affirmed.

That's your California biblical reference for the day.  Thanks, Cal Supremes.

Monday, March 19, 2012

Otay Land Co. United Enterprises (9th Cir. - March 14, 2012)

I can very easily agree with this opinion by Judge McKeown.  I can also make it even shorter.

"When a statute allows recovery of 'just costs', as 28 U.S.C. s 1919 does, that allows the district court a lot of discretion, so on remand, the court should decide whether an award of costs here would indeed be just."

That's basically what Judge McKeown (rightly) says.  As well as specifying various factors which may or may not support an award of costs and that the district judge might well want to consider.

Let me tell you something else.  Judge Benitez awarded almost $272,000 in costs to defendants, and the case is now going back to him.

Dollars to donuts he makes nearly an identical award on remand.  And it gets affirmed.

Friday, March 16, 2012

Scharer v. San Luis Rey Equine Hosp. (Cal. Ct. App. - March 16, 2012)

You've got to read this opinion from this morning.  Not because it says anything especially doctrinally important (it's a statute of limitations case).  But because it's a veterinary malpractice case.  And how many of those have you read in your lifetime?

Not many, I'll bet.

Even fewer that involve horse ovaries, I imagine.

Thursday, March 15, 2012

The Ninth Circuit The Day After Pi Day (9th Cir. - March 15, 2012)

There are some days in which you can't put lipstick on a pig.  Or, more accurately, you can, but it's still just bacon with a little red around the mouth.  Or, perhaps even more accurately, you can draw analogies, but that turkey just don't shoot.

Today's one of those days.

The Ninth Circuit publishes two opinions.  Here's what the first one's about:

"This case arises out of a dispute between two telecommunications carriers over their interconnection agreement (“ICA”1) under the Telecommunications Act of 1996. Plaintiff-Appellant Western Radio Services Company (“Western”) is a commercial mobile radio service (“CMRS”) provider. Defendant-Appellee Qwest Corporation (“Qwest”) is a local exchange carrier (“LEC”). Western appeals two decisions of the district court: first, its decision dismissing Western’s claim against Qwest for Qwest’s alleged violation of its statutory duty to negotiate the ICA in good faith; and second, its decision affirming the orders of Defendant-Appellee the Oregon Public Utility Commission (“PUC”), which adopted the results of the arbitration leading to the ICA and approved the ICA."

You're kidding me!  Finally!  A dispute between a CMRS and an LEC regarding ICAs as interpreted by the PUC!  OMFG!  Let me at it!  I want to read all 35 nasty, sexy pages!  Especially the last page, in which the author includes an appendix in which he describes all the various abbreviations he's using in the opinion!  I'm about to DTMF in my pants!  Or at least Wink-Start MF!  (That's Dual-Tone Multi-Frequency signaling, or Wink-Start Multi-Frequency signaling, for the uninitiated.  Depends on whether I can control my bladder.)

But at least there's a second opinion the same day, right?  Here's what that one's about:

"Two non-Indian entities brought this action to enjoin Navajo Nation tribal officials from applying tribal law to them intribal courts. They claim that both their contract with the tribe and federal law deprive tribal officials of authority to regulate them. This appeal presents the question whether the Navajo Nation itself — which enjoys sovereign immunity and cannot be sued — is a necessary (and if so, indispensable) party under Federal Rule of Civil Procedure 19."

Look, I'm a Civil Procedure professor who really digs Indian law.  And even I somewhat snoozed through Judge Silverman's opinion.  I can only imagine how regular people must feel.

Don't worry, though.  I can cut to the chase.  Here are the answers to both questions.  Because I know your day will not be complete unless I satisfy your cravings on both issues.

"Regarding the challenge to the approval of the ICA, we conclude that the ICA’s provisions (1) requiring Western to interconnect with Qwest’s network via at least one point per Local Access and Transport Area (“LATA”); and (2) providing Western with the signaling systems of its choice only where such systems are available, do not violate the Act. However, we also conclude that the ICA, as approved, does violate the Act insofar as it applies access charges, rather than reciprocal compensation, to calls exchanged between a CMRS provider and a LEC, originating and terminating in the same LATA, when those calls are carried by an interexchange carrier (“IXC”)."

Yeah, that was my intuition when I read the first two paragraphs of the opinion also.  It's all about whether the LATA's connected to an IXC.

And the indispensible party issue?  Fear not.  "The tribe is not a necessary party because the tribal officials can be expected to adequately represent the tribe’s interests in this action and because complete relief can be accorded among the existing parties without the tribe," at least (as here) in an Ex Parte Young action.

Whew.  What a relief.

Now back to trying yet again to memorize the first 500 digits of pi.  An equally exciting task.  And one with roughly equivalent practical utility for the average reader.

Palomar Medical Center v. Sebelius (9th Cir. - March 14, 2012)

Look, I'll do my part.  I'll publicize the thing.  I'll tell people the Ninth Circuit wants their input.  I'll tell people it's a neat little way to affect the world.  I'll convince people that they can turn their amicus brief into a law review article.

But there's only so much you can do when this is what the panel wants (and needs):
"The panel invites amicus briefs addressing the following questions:
(1) Do the regulations at 42 C.F.R. §§ 405.926(l) and 405.980(a)(5) bar administrative review of a contractor’s decision to reopen a Medicare claim, including the contractor’s compliance with the good cause
standard for reopening set forth at 42 C.F.R. §§ 405.980(b)(2) and 405.986?
(2) If the regulations bar administrative review of a contractor’s decision to reopen, do federal courts have jurisdiction to enforce the agency’s compliance with the good cause standard for reopening?"
Wow.  Sure, I know some law geeks.  I even know some administrative law geeks.  But I'm not sure even I know someone wonky enough to want to submit something on this topic.

But if you are that wonk:  More power to you.  Here you go:  "Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Federal Rule of Appellate Procedure 29(a). Briefs responding to this order shall be filed within 30 days of the date of this order and shall not exceed 15 pages."

Party on.

Wednesday, March 14, 2012

Scott S. v. Superior Court (Cal. Ct. App. - March 14, 2012)

You can't decide to cut off someone's toe based on the papers.  You instead are required to have the doctor actually there to testify.  No hearsay.

So holds the Court of Appeal.

Which makes sense.  Though I'm telling you:  That toe's coming off.  One way or another.  In truth, as a practical matter, this is much ado about nothing.

Consolidated Irrigation Dist. v. City of Selma (Cal. Ct. App. - March 9, 2012)

The benefits of reading tons of appellate cases are legion.  Including but not limited to expanding your vocabulary.

Take this case.  Page three, paragraph three, first sentence:  ruderal.

No idea what that meant.  I'm pretty confident this is the first time in my 45-plus years I've ever seen that term used.

It apparently means "growing in rubbish, poor land or waste."  So, for example, "ruderal species" are plants that are the first to colonize disturbed lands.
Like weeds.  But a fancier classification thereof.

So I'm ending today a smarter person.  At least if I ignore those seven thousand brain cells that I had this morning but will never see again (No. 33).

Tuesday, March 13, 2012

Shannahan v. IRS (9th Cir. - March 13, 2012)

I can't think of a less sympathetic non-criminal case than this one.

The Cheungs get indicted for conspiracy to defraud the United States and tax fraud.  They lived in Seattle (and are U.S. citizens) but make haste to China, which has no extradition treaty with the United States.

From Hong Kong, they "denounce" the United States, and the IRS ultimately issues them a tax deficiency notice for several million dollars related to their fraud.  They then hire a high-priced attorney to file a FOIA request seeking all sorts of information about their tax situation, which the IRS (understandably) refuses to turn over -- at least absent the Cheungs coming to the U.S.

The district court dismisses the lawsuit.  The Cheungs then hire another high-priced firm (K&L Gates) to prosecute an appeal with the Ninth Circuit.

They draw a relatively good panel:  Stephen Reinhardt, Willie Fletcher and Johnnie Rawlinson.  But even that crowd isn't buying it.  Affirmed.

Can't say I disagree.  In the slightest.

P.S. - The attorney who filed the lawsuit is William P. Shannahan.  A name that took me back 25 years or so to another William Shanahan I once knew -- someone who (unfortunately) had eight minutes of fame on YouTube for "mooning" individuals during a college debate dispute.  Resulting in the loss of his job and, undoubtedly, much personal trauma.  Which I always thought was too bad.  Because the guy was -- and presumably remains -- a quality guy.  One with strong feelings, as well as many unique takes on the universe.  But a quality person regardless.

Unlike, I think, the Cheungs.

Monday, March 12, 2012

Peter-Palican v. Government of the CMNI (9th Cir. - March 12, 2012)

The Ninth Circuit certifies questions a lot nowadays.  Even to the CMNI.

Garcia v. ConMed Corp. (Cal. Ct. App. - March 8, 2012)

I can get on board for the Court of Appeal's opinion in this case.  Yes, what defendant's counsel did in her closing statement was misconduct.  But the trial court gave an appropriate admonishment (though, personally, I might have been a bit harsher), and I can see why the jury found for defendant at trial wholly apart from the misconduct.  So I agree with both the trial court and Court of Appeal that the verdict need not be reversed.

But if I were to trade places with Justice Premo, I might have made sure to mention the defendant's counsel -- Genese Dopson -- by name and to reaffirm in no uncertain terms my displeasure at the deliberate decision she made to engage in misconduct during her closing argument.  This is especially appropriate, in my mind, when your misconduct works and avoids sanction, and particularly when (as with Ms. Dopson) we're talking about a seasoned trial lawyer who knew full well what she was doing.
You may perhaps get away with it, as she does here.  But the Court of Appeal might nonetheless want to go out of its way to make sure that there's an informal sanction (and integrity hit) reaffirmed in the permanent pages of the California Appellate Reports as an ancillary consequence of this victory.

Friday, March 09, 2012

Connor v. Heiman (9th Cir. - March 9, 2012)

Think the Las Vegas casinos don't have the Gaming Control Department in their back pocket?

Think again.

If a private citizen in Las Vegas had a civil dispute with someone who allegedly owed her $950, I'm sure the police would respond to her concern just as the officers did here; i.e., to tell the individual that unless he repaid the disputed amount, they were going to immediately arrest him and charge him with a felony.  I'm just sure of it.

I can empathize wtih the plaintiff's frustration here.  Read the case and see if you're similarly situated.

People v. Manzo (Cal. Supreme Ct. - March 8, 2012)

Everybody laughed (and/or cringed) when President Clinton said:  "It depends upon what the meaning of the word 'is" is."  Because he had told the grand jury that there "is nothing going on" between him and Monica Lewinsky, and if "is" means presently, he was arguably correct.

But that legalese did not go over well with the public.  At all.

By contrast, here's a dispute in the California Supreme Court that's entirely about what the word "at" means.  And the public's probably pretty happy with the hypertechnical way the Court figures out the meaning of that word.

The question is a simple one:  Are you shooting "at" an occupied motor vehicle when:

(A) You and the gun you're firing are outside the vehicle you're shooting "at";
(B) Your hand and the gun are inside the vehicle you're shooting "at" but the rest of your body is outside it; and
(C) You and the gun are inside the vehicle.

Cleary, the answer to (A) is "Yes" and the answer to (C) is "No."  What about (B)?

The California Supreme Court unanimously holds that, yes, you're shooting "at" a vehicle even if the gun and your hand are inside the vehicle at the time.  The Court admits that the statute is ambiguous, and on that basis, the Court of Appeal applied the rule of lenity to interpret the statue in favor of the criminal defendant.  But the California Supreme Court reverses.  Holding that because we know that the Legislature didn't want people shooting at cars, this legislative history "breaks the tie" and means -- as in virtually every case -- that the rule of lenity is meaningless.

Of course, the Legislature probably didn't want people shooting at an occupied vehicle from inside a vehicle as well -- since that may well have the same consequences (death, broken glass, car crashes, etc.) as shooting from outside.  The California Supreme Court doesn't really have an awesome answer to why it's analysis doesn't also establish that liability exists even in (C).
But that's neither here nor there.  We don't like criminal defendants parsing the meaning of a word any more than we liked President Clinton doing it.  So there.

Thursday, March 08, 2012

People v. Horvath (Cal. Ct. App. - March 8, 2012)

Justice Robie begins this opinion with:  "The facts of this case are horrendous."

Indeed they are.

Pizzuto v. Arave (9th Cir. - March 8, 2012)

It's just so strange to see a Ninth Circuit opinion that says:  "Pizzuto claimed . . . that Judge Reinhardt made public statements of his intent to impose the death penalty before the sentencing hearing."

Man bites dog.

Obviously, this death penalty defendant isn't talking about this Judge Reinhardt (the one on the Ninth Circuit).  He's talking about this one:  the state court judge in Idaho.

Though both of 'em have the middle initial R.

And, to my knowledge, have never been seen together in the same room.

I'm thinking a Clark Kent/Superman thing.

P.S. - On a serious note, check out this line from Judge Betty Fletcher's dissent:  "I am shocked by the conduct in this case."  Including lots of testimony about Judge Reinhardt's alleged secret involvement in the case.

Sort of makes you want to read the whole thing, eh?

Wednesday, March 07, 2012

Wagner v. County of Maricopa (9th Cir. - March 7, 2012)

There's almost nothing about this I especially like.

I was surprised to see this case even go to trial.  Eric Vogel was a schizophrenic approximately my age who lived an incredibly sheltered and isolated life and was arrested -- entirely properly -- for assaulting a police officer.  So he's put in jail.  Seems okay so far.

At the jail, he gets assessed as having psychological problems, so he's going to be transferred to the psych unit at the jail.  Seems fine.  But he's in jail, and they need to dress him in jail clothes, so they tell him to get on his jail stuff, he refuses, they struggle, but eventually get him dressed.  They then transport him to the part of the jail that deals with inmates with psychological problems.  All seemingly good so far.

He receives treatment for a week and then is bailed out by his mother.  Returns home.  Three weeks later, he freaks out when his mother tells him he he might face additional charges because he spit on an officer while he struggled with them at jail.  He jumps out of a car, runs four or five miles, has a heart attack, and dies.

His estate then sues for violation of his civil rights.

Where's the tort?  Where's the deprivation?  What went down that shouldn't have gone down?

They properly arrested him.  They properly forced him to get into jail clothes.  They properly transferred him to the psych ward.  And when they released him, they weren't the ones -- three weeks later -- who caused him to run five miles.  Why no summary judgment?  Especially given qualified immunity.

The only thing I can gather from the majority opinion is that the court -- like the Ninth Circuit -- wasn't all that thrilled with Joe Arpaio's policy of dressing inmates in pink (including pink underwear).  Okay, well, neither am I, to tell you the truth.  But it's pretty hard for me to jump to the conclusion that this somehow violated Wagner's clearly established constitutional rights, or makes Maricopa County responsible for his death from a heart attack after he was released from jail.  Which is what the entirety of the lawsuit is about.

But, worse, the majority opinion here isn't even discussing whether defendants should prevail on summary judgment or at the qualified immunity stage.  The case went to trial.  The jury found for the defendants.  The Ninth Circuit reverses.


The majority is convinced that there were some evidentiary errors at trial, and reverses on that basis.  But I'm not even sure those were errors, and even if they were, they seem pretty harmless.  The district court said the mother couldn't testify that her son told her he thought he was being raped because that's hearsay.  I find that a pretty credible ruling.  And the district court excluded an expert under Daubert who wanted to say that the heart attack three weeks later was "likely" caused when Wagner recalled being dressed at jail.  But everyone agreed that schizophrenics have a greater risk of heart attacks and that running five miles didn't help.  I'm not sure that the district court got this one wrong when it held the evidence inadmissible.

But more centrally, I don't find it particularly plausible that any of this was why the jury found for defendants in the first place.  I strongly doubt that the jury thought that Wagner had no mental problems (since this was both clear and undisputed); am confident that the jury knew that Wagner didn't like being dressed down at jail (which is why he struggled and was screaming that he was being raped); and pretty firmly believe that the jury was told at trial that Wagner's mental state deteriorated after he was released on bail.  None of that was why they found for the defendants, I think.  The excluded evidence just doesn't seem all that critical.  Even if it was improperly excluded, an issue about which I have my doubts.

So it's hard for me to get on board with Judge Noonan's majority opinion.  And while Judge Randy Smith does a decent job addressing the evidentiary issues in his dissent, even that was too much of a "checklist" for me, in addition to not raising the harmless error point.

Maybe I just don't understand how the case got as far as it did.  Which in turn makes me have a hard time figuring out why, even after a jury verdict, the case gets reversed for non-central evidentiary issues.

It's not that I like wearing pink underwear.  I don't.  But I don't like wearing orange jumpsuits -- or any prison clothes, for that matter -- either. 

The claim that wearing particular prison clothes violated an inmate's clearly established constitutional rights because it caused him to have a heart attack from running while on bail three weeks later just doesn't resonate with me very well.  Nor does reversing a similar judgment from a jury based on evidentiary errors.

P.S. - I do agree, by the way, with Judge Noonan that cutting off the plaintiffs' ordinarily-scheduled ability to close at oral argument was unexplained and perfunctory.  It also seemed somewhat retaliatory.  And I didn't think Judge Smith's defense of this conduct was at all persuasive.  But, again, harmless error.  That's not what caused the jury to come back as it did.

Tuesday, March 06, 2012

Klestadt & Winters v. Cangelosi (9th Cir. - March 6, 2012)

This is a case about bankruptcy, sanctions and appellate jurisdiction.

I know what you're thinking.  Zzzzzzzzzz.  But it's actually a neat little dispute.

Judge Ikuta says that circuit precedent is clear, there's no appellate jurisdiction, and that precedent is normatively correct.  Judge Graber agrees that circuit precedent is clear and that there's accordingly no appellate jurisdiction, but thinks that the court should revisit the issue en banc and overrule that precedent, which she argues was wrongly decided.  Judge Quist, sitting by designation from the Western District of Michigan, agrees that circuit precedent is clear and that there's no jurisdiction, and refuses to take a position on the normative question, saying that it's "not for [him] to decide" whether the case should be taken en banc.

I tend to like it when a judge questions existing precedent.  Especially when, as here, the circuit precedent on the issue seems to be somewhat of an outlier.

I imagine that Judge Graber will call for an en banc vote -- otherwise why write the concurrence -- unless the handwriting on the wall is crystal clear (and perhaps even then).  Despite the snoozy nature of the case, it's not a nontrivial chance of getting a majority vote.  None of the members of the panel who decided the prior circuit precedent (Judges Ferguson, Canby & Hall) have a vote.  And it's not a starkly political case.  It's all about procedure.

That said, maybe the en banc court will decide to leave the circuit split for the Supreme Court to resolve.  Which is another way of saying that the circuit split on this issue might well fester for the next century.

One more thing.  This may well be much ado about nothing.  My (admittedly half-informed) sense is that the sanction orders here appear pretty well-taken.  So even if the appellants prevail, this may well just involve a lot of time and expense just to watch the orders affirmed.

Monday, March 05, 2012

U.S. v. Loughner (9th Cir. - March 5, 2012)

It has taken me half the day to read the entirety of this 117-page (single spaced!) opinion, as well as to try to get my head around it.  It's complicated.  Seriously, seriously complicated.

But, in the end, let me say the following.  Jared Loughner -- the guy who shot Gabrielle Giffords and who killed Judge Roll and several others -- is nutty.  Seriously, seriously nutty.  I have no doubt that he's a schizophrenic.  He needs to take medication.  For his own sake as well as for the sake of others.

I hear what Judge Bybee says.  I hear Judge Wallace's caveats.  I understand Judge Berzon's dissent.  We're talking about procedural as well as substantive stuff here.  Concepts that extend far beyond this particular case.

But it's hard.  Hard not to lose sight of the proper result here.  That's about the only thing about which I feel fairly confident.

Loughner should take drugs.  Hard core, heavy duty drugs.  It's in his interests.  It's in everybody's interest.  The guy cannot function if left alone, unmedicated.  That's essentially beyond dispute.  He won't be competent to stand trial.  He won't be competent to carry on a conversation, or even any kind of meaningful life.  About the only thing he'll be somewhat competent to do is to hang himself.  And while that might perhaps be fine, it's not what our justice system wants.

So notwithstanding what Judge Berzon says -- and she's got some darn good points -- I'm okay with forcing the guy to swallow pills.  As well as compelling his treatment -- his "commitment" -- in the first place.  Sure, I have no doubt they did so in order to restore his competency so he could be found guilty at trial.  And I similarly have no doubt that they wanted to avoid getting a court order because they thought (rightly) that it'd be much more expedient to forcibly medicate the guy without one.

But there are some cases in which I'm probably okay with that.  And this one is probably one of those. Am I concerned about lower-profile cases?  Yes.  Am I concerned about defendants with counsel who might be less aggressive and/or diligent than the ones here?  Sure.

But, in this case, for whatever reason, I'm not inclined to bend over backwards to put up roadblocks to doing what -- for this particular person -- seems clearly the right call.

Maybe Judge Berzon's correct that Judge Bybee has blinded me to the true issues.  Maybe I am letting an easier case make bad law.  I admit that all those may well be true.

But that's still how I feel.  Loughner should be taking his drugs.  And I'm not sad that Judge Burns has been willing to let that happen.

Asahi v. Cotherix (Cal. Ct. App. - March 5, 2012)

I'd have written this opinion somewhat differently.  Despite the fact that I might well have reached the same result on these facts.

The question is whether two separate companies are immune from antitrust liability when they engage in pre-merger anticompetitive conduct.  The correct answer, in my view, is "No."  Once they merge (if they in fact do so), they're a single entity, and Copperweld -- a case I discuss at length in my Stanford Law Review article -- immunizes the conduct of this single enterprise.  But before they merge, they're still two separate entities, both legally and doctrinally, and hence aren't exempt from the antitrust laws.  Either the federal antitrust laws (the Sherman Act) or California's antitrust laws (the Cartwright Act).

The Court of Appeal, by contrast, takes a sharply different view.  Justice Bruiniers' opinion, perhaps understandably, focuses on the fact that these two entities will (likely) become a single entity, and that as a practical matter merging companies often engage in pre-merger agreements, and holds that under these circumstances, the Cartwright Act doesn't apply.  But I'd be a lot more reluctant to so hold.  Not only because they are still separate entities, but also because (1) there's a probability that the merger will never happen, and (2) it's tough to draw a dividing line between impermissible activities and those "in anticipation" of a merger.

Imagine, for example, Competitors X and Y.  They are thinking about merging, so decide to allocate their sales:  X will only sell west of the Mississippi River and Y will only sell east of it.  The Court of Appeal holds that that's fine in the merger context, even though it'd be clearly illegal outside of it.  But what if the "thinking" about merging is in the medium- (or even long-) term:  it's sincere, in that the two companies may well merge in the future, but there's no definitive deal at this point.  Still okay?  For one month?  One year?  Ten years?  How's that different than an actual merger -- a merger that is still not definite, even after a written agreement is reached, without shareholder (and often regulatory) approval, which may come years down the line?  And what about failed mergers?  Still okay to engage in anticompetitive conduct?  What about mergers you know are going to fail?  Still okay to violate the Sherman Act?

I take these concerns to be far from nontrivial ones.  Does this mean that I'd hold that activities taken in contemplation of a merger are subject to the exact same test as those taken outside of this context?  Probably not.  I'd probably consider the context to be relevant to a rule of reason analysis.  And if push came to shove, I might even be willing to hold that if the merger actually takes place, there might be some form of immunity to reasonable pre-merger activities in contemplation thereof. 

But the Court of Appeal's holding here is substantially broader than that targeted principle, and holds a plethora of pre-merger conduct to be essentially categorically immune from antitrust scrutiny.  I don't like that.  I'd have liked to see more discussion of the other side.  Of the downsides -- or at least the potential downsides -- of immunity.  And, accordingly, a more narrow opinion.

I might be inclined to say that if entities want to merge, they can engage in a reasonable amount of coordination, but that they do so at their peril.  If the merger fails, they're not immune.  Consider that yet another downside of a failed merger:  sort of like a break-up fee for the consumer.  Ditto if the pre-merger conduct is beyond that necessary to engage in the merger.

Mergers have their benefits.  But when their social costs outweigh the benefits, or when the social costs are incurred without obtaining those benefits, I see little reason to protect them.  Much less to immunize them categorically from antitrust scrutiny.

So I'd have written this one differently.

Friday, March 02, 2012

San Luis & Delta-Mendota Water Auth. v. Bay Institute (9th Cir. - March 2, 2012)

As we progress into the 21st Century, you're going to see more and more opinions like this one.  Long (e.g., 82 single-spaced pages).  Sharply worded.  With a majority and a dissent that adopt very different approaches to the subject matter.

Water.  Jobs versus the environment.  An allegedly zero-sum game.

This is far from the first of these opinions.  It is even further from being the last.

Long Beach POA v. City of Long Beach (Cal. Ct. App. - Feb. 7, 2012)

Is that a garden hose nozzle in your pocket, or are you happy to see me?  Well, either way, keep it in your pocket.  Because if it's the former, the police might shoot and kill you.

Thursday, March 01, 2012

People v. Schoenbachler (Cal. Ct. App. - Feb. 29, 2012)

Elder abuse.  Despicable.  I'm not sure that two years in prison for Christi Schoenbachler is sufficient.

Also:  Don't judge a book by its cover.  Check out this line from the opinion:  "[Defendants] moved [the victim] to to a facility called Tender Loving Care, a facility that was mice-ridden, filthy, and the abode of other residents who suffered from Alzheimer‟s disease and would scream throughout the night."

Yikes.  Not exactly Tender Loving Care.