Friday, January 31, 2014

St. Mary v. Superior Court (Cal. Ct. App. - Jan. 31, 2014)

The California Court of Appeal doesn't grant writs on most routine discovery matters.  But it does here, and I'm glad it did.

Defendant serves 119 RFAs, and plaintiff responds to them, but does so four days late.  Defendant then immediately files a motion to deem the RFAs admitted.

So far, that's fine.  Plaintiff should have timely responded, but better a late response than ever.  For its part, defendant was probably playing the "RFA lottery," but that's fine too.  So is its motion to deem the RFAs admitted.  Worth a shot.  Especially since some of the belated RFA answers arguably might not be in substantial compliance with the rules.

The trial court examined the belated answers to the RFAs and deemed lots of them admitted.  The Court of Appeal granted plaintiff's writ and reverses.

The trial court made two errors.  First, it examined the RFA answers individually rather than in toto to determine if the belated answers were in "substantial compliance" with the rules.  Some of plaintiff's RFA answers were clearly fine:  They were simply "Admit" or "Deny".

Other answers, by contrast, were less awesome.  In a not-infinitely-bright move, counsel for plaintiff decided that even though the RFA answers were untimely, he'd add commentary to his admissions or denials.  For example, for RFA No. 20:

“Admit you attended a meeting with David Nilsen on or about January 13, 2006.”  Response: “Admit. Thomas Schellenberg was also present.”  Okay, fine.  Though I'd have been more careful given the untimeliness of the response and left that last part out.  Or, in a related vein, RFA no. 91:

“Admit you received a letter from David Nilsen, owner of Cedar Funding, Inc.[,] on or about April 9, 2008, telling you that there were problems at Cedar Funding, Inc.”  The following response would be just fine:  Admit that I received the letter, deny the description of its contents."  But plaintiff instead says:  "Deny. That letter dated April 10, 2008, was by no means a statement of ‘problems at Cedar Funding, Inc.’ but attribution of all delays to ‘the worldwide financial markets are in turmoil due to the
effects of the U.S. sub-prime mortgage markets[,]’ and ‘investment banks like Bear Stearns.’ In fact, on 4/17/08 at 5:26 P.M., Mr. Schellenberg answered my inquiry of one hour earlier by personally attributing all problems to a declining, problematic economy and urging me to discount ‘rumor and fear, innuendo and imagination.’ All problems fully known and understood by Mr. Schellenberg and Mr. Nilsen were continued to be concealed. [Sic.]”  Ugh.

But the Court of Appeal nonetheless holds that, taken as a whole, the RFA responses were indeed "in substantial compliance" with the rules.  Holding that trial courts don't examine each RFA individually to make this determination.

The second error was just a basic abuse of discretion.  The Court of Appeal clearly didn't like the propounding of 119 RFAs and the rapid-fire motion to deem 'em admitted.  It thought -- rightly -- that defendant was trying to pull a procedural trick.  One authorized by the rules, perhaps, but not one to be favored.  We prefer adjudication on the merits.  Especially when -- as here -- there's at least a pretty strong facial allegation that the defendant is indeed a sleaze who defrauded plaintiff out of her hard-earned money.  We're not really going to stretch to let 'em get away with that based upon some slight errors in responding to a hundred-plus RFAs.

None of which means that lawyers should take RFAs lightly.  Far from it.  Respond early.  Respond clearly.  Don't find yourself in a situation where -- as here -- you're desperately hoping that the Court of Appeal will grant a writ.

Thursday, January 30, 2014

Dews v. Superior Court (Cal. Ct. App. - Jan. 30, 2014)

Who says that law reviews don't matter at all anymore?!  Not the First Appellate District, that's for sure.  Which drops the following footnote in the middle of its opinion:

"Our analysis is informed by a recent law review article that comprehensively discussed Serna and concludes Bellante was wrongly decided: Maurer, Searching for Sense in Serna: The Sixth Amendment Right to a Speedy Trial in California Misdemeanor Cases (2012) 43 McGeorge L.Rev. 1093, 1118."

The Court of Appeal goes on to conclude that the law review article was exactly right, and for the reasons articulated therein:  Bellante was wrongly decided.

Let's hear it for the author of that article:  Abigail Maurer.  Who just graduated from law school a year or so ago and who's now working for the California OLC in Sacramento.

Well done, A.M.

Petrosyan v. Prince Corp. (Cal. Ct. App. - Jan. 29, 2014)

Sometimes trial courts get upset with (and/or frustrated by) pro per litigants.  Often understandably.  Particularly when the case goes to trial.  Pro pers generally don't know procedure, don't know any evidence rules, and don't really understand motions in limine.  So it can be a hassle.

But it's nonetheless the price we pay for a judicial system in which people are entitled to represent themselves.

Sometimes trial courts get so frustrated that they go a bit overboard.  And when they do, they get reversed.

You can see why the trial court was nonplussed.  There had already been one mistrial due to the plaintiff's inability to understand the rules.  Now there's the potential for another.  The trial judge had better things to do.  So dismissed the lawsuit with prejudice.

Can't do that.  At least when, as here, the misconduct wasn't even particularly clear.

Dismissal's a harsh remedy.  Keep that in mind.  Even with litigants you'd strongly prefer disappear forever.

Wednesday, January 29, 2014

Finberg v. Manset (Cal. Ct. App. - Jan. 28, 2014)

There are some cases I'm absolutely certain are wrong.  There are others that I think about for a long time and, after lots of analysis, think came out the wrong way.  (There are also lots and lots of cases I think come out right, but those usually aren't nearly as interesting to talk about.)

Then there are cases like this one.

This opinion falls into the relatively rare category of cases that I'm not sure that I even understand.  A status I find myself in even after reading over the thing again and again.

It's not that I don't understand the court's analysis.  I do.  I just don't completely understand the statutory structure.  And without being totally confident of that pretty basic thing, I'm not 100% sure that my instinctive reaction to the case is right.

But I'm not going to let that stop me.  So notwithstanding my relative incompetence in the area of complex family law, I'll share with you my thoughts on this case.  Because I have a strong suspicion that even though I might end up reaching the same result, I'd get there in a very, very different way than the Court of Appeal does.

Here's the part I understand:

The case is all about whether grandparents get a right to visit their grandkids.  The general rule in this situation -- backed up by a statute -- is that when the kids' parents are alive and together, there's no right to visitation.  The theory being that the parents should get to decide who the kids should see, so if they have the grandparents, or think they're a bad influence, tough.

That's understandable.  So are at least most of the statutory exceptions.  So, for example, if the parents are permanently separated, yeah, the grandparents can ask to visit their grandkids.  (Remember that the court doesn't have to let 'em; we're only talking about the right to ask.)  This makes sense.  Maybe one of the parents now hates the other one -- and, derivatively, his/her in-laws -- so wants to lash out at the grandparents.  Grandparents get to go to court if they want.

Ditto if one of the parents has been gone for over a month and the other parent doesn't know where s/he is.  Again:  Makes sense.  Don't want the remaining parent to have a nonreviewable veto over the ability of the parents of the missing parent to see the grandkids.  Same exception when one parent joins the grandparents in the petition.  Same exception when the grandkid isn't residing with either parent.

All this I get.  Basically, if the parents are living together, and are unified, and don't want grandparents to see the kids, that's it.  The parents have that right.

I also fully understand why the statute expressly refers to both natural and adoptive parents.  No reason to make a distinction between the two.  Same rules apply whether the parent(s) "naturally" had the kid or adopted the kid.  A kid's a kid.

Here's the part I don't understand:

The last exception is when "the child has been adopted by a stepparent".  Now, I totally understand why that exception was added.  The Legislature did so in response to a particular Court of Appeal decision in 2000.  There, the father was gone, and the grandparents were raising the grandkid alongside the kid's mother.  Then the mother remarried and left the grandparents, and didn't want the grandparents seeing the kid.  Too bad.  Grandparents had a right to petition to visit.  But once the (new) husband formally adopted the kids, now both "parents" wanted to block the visits.  So the Court of Appeal said that while it's potentially unjust, that's what the statute says, so no more grandparent visitation.

At which point the Legislature changed the rule.  Precisely to change the result in that case.  Now the adoption wouldn't block the grandparents from seeking to visit.

The problem is that the creation of this exception seems to me to do precisely what the trial court held that it indeed does:  violates the Equal Protection Clause by treating adoptive parents differently than natural parents.  'Cause that's what it indisputably does.  At least as far as I can understand it.

Take three situations.  Situation 1:  Husband and Wife have a "natural" kid.  Situation 2:  Husband and Wife jointly adopt a kid.  Situation 3:  Wife adopts a kid, Husband comes along, then Husband adopts the kid too.

Assume that in all three situations Husband and Wife are still married and living together.  Assume that in all three situations both Husband and Wife hate Wife's parents.  So don't want any visitation by these grandparents.

You'd think that all three situations would be treated identically, right?  It's their kid in all three settings.  "Naturally" in the first one, and by adoption in the other two.  But that doesn't matter.  A kid's a kid.  A family's a family.  Doesn't matter if it's "natural" or by adoption or when.  Two parents having one kid = autonomy over whether the kid sees the grandparent.

Yet the statute says otherwise.  The statute gives the parents a veto in Situations 1 and 2, but not in 3.  Even though the three families are identical families in every single sense of the word.

That does indeed seem to me to violate the Equal Protection Clause.  There's no reason to treat a "biological" family different than an "adoptive" family different than any other family.  The fact that a "stepparent" adopted the kid in (3) is totally irrelevant.  Any more than the fact that a "stranger" adopted the kid in (2).  Family's family.

The Court of Appeal, however, goes down a different track.  Saying that this whole thing is subject merely to "rational basis" review and that it makes sense because it only marginally interferes with parental rights.  That seems wrong on multiple levels.  For one thing, we're distinguishing between types of families, which strongly implicates the most intimate of relations, so I'm not at all certain that strict (or at least intermediate) scrutiny applies.  And for another, even if rational basis review properly applies, I still don't see the basis:  even if parental rights are only "slightly" infringed (and I'm not at all sure that's even right), the distinction between Situations 1 through 3 doesn't have ANY foundation in fact.  There's no reason for a "slight" infringement in (1) (or 3) that doesn't equally apply in the other.

Which is what you do with Equal Protection review.  You don't focus on the severity of the difference.  You focus on whether there's a reason.  And, here, there's not.  And the Court of Appeal doesn't even seem to posit one.

So at least as I understand the statute, the constitutional analysis here just seems completely wrong.

Now, admittedly, one might reach the same result obtained by the Court of Appeal as a matter of remedy.  And that I might have some sympathy with.  Even if the statute violates the Equal Protection Clause (and I think it well might), that doesn't necessarily tell you which way it cuts.  Maybe you strike the offending exception:  which would, admittedly, change the result here.  Or, alternatively, you strike the other side of the equation, and apply the rule equally to Situations 1 through 3.  That's permissible too.  Which means the grandparents still get to apply for visitation here (which is what the Court of Appeals holds), and only means that similarly-situated grandparents might get to do the same in other situations as well pursuant to the Equal Protection Clause.

In the end, I just don't get why the statutory exception here matters.  And particularly in an era in which families are constantly changing (adoption, same-sex marriage, in vitro fertilization, etc.), I think it's critically important to not permit the Legislature to single out a particular familial form and favor (or disfavor) it.

Single people who adopt are parents.  Couples who adopt are parents.  Single people who adopt and then marry another single person who also adopts are parents.  Couples who have a biological child are parents.  To reiterate:  Parents are parents.  To say that some of these people are more "parents" or have more autonomy over their children seems wrong.  As well as precisely what the Equal Protection Clause was designed to prohibit.

So maybe the Court of Appeal could properly reach this result.  But not this way.  Not -- at least as far as I understand it -- at all.

Tuesday, January 28, 2014

People v. White (Cal. Ct. App. - Jan. 28, 2014)

The voters recently reformed the Three Strikes Law to potentially lower sentences for people who didn't commit violent felonies as their third strike.  But defendants who were armed during their offenses aren't entitled to relief.  The voters thought that if you commit an offense and are packing, that's pretty much by definition serious.

But translating a common sense thought into words is sometimes difficult.  Especially at the margins.  Statutes generally employ general terms.  They get the point across, but in a close case, it's somewhat difficult to figure out what exactly those words mean.

Like here.

The relevant statutory words are "armed with a firearm".  You stay in prison for 25 to life if you were "armed with a firearm" "during the commission of the offense."

What that means is pretty straightforward in most cases.  Commit a burglary with a gun in your hand; boom, you're ineligible for relief.  Carry a gun while you do a drug deal:  Same thing.  For the majority of cases, the words -- and concept -- are easy to apply.

But what if being armed with a firearm is the offense?  In particular, does a conviction for being a felon in possession of a firearm mean that you were "armed with a firearm" "during the commission of the offense?"  Yeah, sure, as the Court of Appeal explains, you were "armed" with the firearm because you had it.  But when that's the actual offense, I think it's a little strange to say that you were armed with the firearm during the offense.  It was the offense.  It's as if the statute says that you get an extra five years if you were naked during an offense.  If the actual offense for which you're convicted was being naked, do you really get the base level plus the five years?  It just seems a bit strange.  And surely was not what the voters were really thinking about when they voted on the law.

But the Court of Appeal adopts a straightfoward interpretation.  You were armed because you had a gun.  That was "during" your offense because it was at the same time.  QED.  Not eligible for relief.

I can't put my finger on exactly what bothers me here.  But I know that I have some lingering feeling that there's something wrong with doing literal textual interpretation when deciding how a text applies to a marginal situation that the voters surely did not actually consider.  There's part of me that thinks it's more important to talk about principles and values than the dictionary and grammatical usage of a given term that clearly was intended to speak to certain situations but not this one.

Of course, I hear Justice Scalia cackling in the background, telling me what a moron I am in this regard.  Maybe he's right.  But I still can't help wondering whether strict literalism is really the right way to go in a case like this.

LA USD v. Garcia (9th Cir. - Jan. 28, 2014)

One advantage of certifying state law questions to the relevant state court is that once they've answered your question, the federal opinion is often super easy to write.

Monday, January 27, 2014

In Re Glass (Cal. Supreme Ct. - Jan. 27, 2014)

It's not too surprising that disgraced journalist Stephen Glass doesn't get to be a California attorney (despite passing the bar exam).  Not only because what he did was wrong -- really, quite wrong -- but as a colleague of mine put it, he also "p*ssed off the wrong people."  The more you know about what Glass did, the more my colleague's comment seems exactly right.  Read the California Supreme Court's opinion for more (excruciating) details.

I was, however, a little bit surprised that the opinion was unanimous.  I would have initially thought that some justices on the California Supreme Court would have a different take.  But I concede that the Court has a slight institutional preference for uniformity.  Particularly in cases (like this one) that are both high-profile and nonjurisprudential.  So perhaps I should have weighed that interest a little more than I did.

Regardless, everyone relevant agrees that Glass doesn't have the moral character to become an attorney in California.  Even today.  Good luck elsewhere.  In the meantime, enjoy being a law clerk.

I'm of two minds about the disposition.  On the one hand, I think the Court had a pretty good opening paragraph that summarized well why Glass ain't getting the Court's say-so.  It reads:  "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic's fact checkers. The articles appeared between June 1996 and May 1998, and included falsehoods that reflected negatively on individuals, political groups, and ethnic minorities. During the same period, starting in September 1997, he was also an evening law student at Georgetown University's law school. Glass made every effort to avoid detection once suspicions were aroused, lobbied strenuously to keep his job at The New Republic, and, in the aftermath of his exposure, did not fully cooperate with the publications to identify his fabrications."

Yeah.  That's pretty bad stuff.  Note the connection to doing this stuff while in law school.  As well as thereafter.  That's in substantial part what gets him dinged.

On the other hand, the stark truth of the matter is that the Court's rationale is largely itself fiction.  Is Glass likely to be a sleazy lawyer?  No.  No way.  In large part (if not entirely) because of his prior misdeeds; in particular, (1) getting caught, and then (2) having his life ruined therefrom.  Who's the most likely, in my mind, to be an unethical lawyer?  The guy who's always cheated a little bit (or a lot) and not been caught.  'Cause they still believe they're the smartest person in the room, and continue to internalize the benefits of cheating.  By contrast, who's amongst the least likely to cheat?  The dudes who've been busted.  Not only because they (typically) realize the consequences of their conduct.  But particularly in high profile cases -- and you can't get much higher profile than this one -- because these guys know there's always someone looking over their shoulder.  People (clients, opposing counsel, Bar officers, judges, etc.) who know full well their past history and who are just itching to get their pound of flesh and have the guy disbarred.

So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes".  I don't pretend that anyone who disagrees with this statement is lying, or irrational; reasonable people may perhaps not believe in rehabilitation, or that the world -- and, especially, people therein -- are nearly as gray as I do.  But when the California Supreme Court concludes that Glass simply doesn't have the moral character equivalent to the median (or even low end) California attorney, I'm just not buying that conclusion.  I know plenty of California lawyers.  I've taught thousands of 'em personally.  From all that I've read about Glass -- and I've read a lot -- my strong sense is that he's at this point as ethical as at least the average California attorney.  Maybe more so.  I'd quite readily entrust a legal matter to him.  The kinds of stuff he's done over the past several years favorably impress me.  And yes, yes, yes, I know (and the California Supreme Court constantly reminds me) that he's done these good deeds at least in part precisely because he wants to show that he's reformed and should be permitted to be an attorney.  I get it.  But I don't think you voluntarily go into therapy four days a week merely to try to "make a record" for yourself.  Or personally bathe homeless people purely because it looks good on a resume.  I have a keen sense that this guy's sincere.  Perfect?  No way.  Not in the slightest.  But I'll let you in on a little secret.  Neither am I.  Neither are you.  Neither are any of us.  Intellectually, morally, ethically, spiritually, or otherwise.

So I believe -- partly irrationally, but in large part rationally -- in redemption.  And think it's transpired here.  Even if the entirety of the California Supreme Court concludes otherwise.

(One part of the opinion particularly bothered me.  The Court views some of what Glass has done favorably, and says, for example, "To be sure, through therapy he seems to have gained a deep understanding of the psychological sources of his misconduct, as well as tools to help him avoid succumbing to the same pressures again."  Good job.  But then discounts the importance of these changes with the simple conclusion:  "But his 12 years of therapy primarily conferred a personal benefit on Glass himself."  As if the reason people go to therapy isn't to have true insights and help themselves be better people, but rather as an outlet for their incessant narcissism.  Ditto for the fact that as a law clerk, Glass appears to have been truly committed to pro bono work, including work on behalf of the homeless and other vulnerable clients.  Stuff like the following:  "California attorney Paul Zuckerman testified that he decided to give Glass a chance as a law clerk. After initially assigning Glass minor projects and exercising close oversight, Zuckerman became convinced that Glass was one of the best employees in the firm, with a fine intellect, a good work ethic, and reliable commitment to honesty. Glass exhibited great compassion, assisting at a personal level with difficult clients and helping to find resources and social services for some of the firm‟s many homeless clients. Other lawyers who had worked for or with the firm confirmed Zuckerman‟s view of Glass as an employee who conducted excellent legal research, was assiduous and hyper-scrupulous about honesty, and stopped to think about ethical issues."  His pro bono work included helping "many homeless clients, and in addition to the legal work he does on their cases, he has helped them with their personal problems, even with regard to matters of personal hygiene."  The Court fobs all this off with the terse statement:  "Glass points to the pro bono legal work he does for clients of his firm as evidence of sustained efforts on behalf of the community, but we observe that pro bono work is not truly exemplary for attorneys, but rather is expected of them. (See Bus. & Prof. Code, § 6073.)"  Wow.  This does not reflect highly on the Court's understanding of contemporary realities or the profound difference between (1) what Glass has done, and (2) what most attorneys do.  When you're comparing apples to apples, and deciding whether Glass has what it takes to be an ethical attorney, the terse conclusion that attorneys are simply "expected" to do good isn't really what I'm looking for.  Under this view, Glass could be a modern day Mother Teresa and it wouldn't matter either.  We expect attorneys to do this stuff anyway.  Plus he's just trying to build his resume so he's admitted to the Bar.  That bastard.)

It's not that I don't get why the Court rejects Glass.  I do.  Seriously.  It's a high profile case.  We've got "standards" that we've got to uphold.  Some -- maybe most -- people wouldn't like it if they knew that people like Glass got to become attorneys in California.  So there's pressure to reject the guy.  A reality that I understand.  Plus it's only one guy.  A guy who truly did do some very-not-good stuff.  Why not throw him under the bus?  It's not like he doesn't "deserve" it, right?

Plus, to be honest -- and this part I'm not kidding about -- the reality is that we've got plenty of lawyers in California.  Not for low- or middle-income folks, mind you.  But for paying clients, well, we're darn near bursting at the seam.  Why add one more when there's even a chance that the guy's just a faking scumbag?  We've got plenty of applicants who haven't done anything bad.  Or, more accurately, about whom we don't know anything bad.  Why not admit them over someone like Glass?

That's a tolerable argument.  One that has some degree of traction for me.

I'm just not sure how much.

It'd be a viciously easy case, in my view, if I could admit Glass as a member of the Bar limited to doing "good works".  Pro bono cases.  Low bono cases.  Public defender.  Legal aid.  Stuff like that.  If there was a program like that, I'd admit him in a heartbeat.  And if, after ten years or so, if things went as I am certain they would go, with everyone looking over his shoulder, he wanted to grab a brass ring or two, so be it.  More power to him.  He paid for his misdeeds and deserves the chance.

But there's not.  And, lacking that, the California Supreme Court just doesn't think this guy has what it takes.  Its money is on this guy probably (?) being worse than 90% (more?) of attorneys in California.

Maybe I'm a sucker.  Maybe I'm a dupe.  But I'd bet otherwise.

Friday, January 24, 2014

FujiFilm v. Yang (Cal. Ct. App. - Jan. 24, 2014)

Whereas the vast majority of courts (including the federal system) have adopted the "transactional" test for claim preclusion ("res judicata"), California has thus far stuck with the "primary rights" doctrine -- a relic of our common law past that's (at best) confusing, unhelpful and often substantially unjust.

Nonetheless, that's the approach the California Supreme Court has elected to take.  Hopefully, at some point, we'll adopt a more enlightened vision.  But for now, that's the law.

So when appellant arguesthat the California Court of Appeal should adopt the prevailing transactional approach, I have no problem whatsoever when Justice Rubin responds in the today's opinion:  "We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine."

Fair enough.  Exactly right.

By contrast, I do have a problem with Justice Rubin's backhanded slam on how appellant crafted this argument.  Justice Rubin says:  "Instead of pertinent case law to support her position, her appellant's brief relies solely on an eight-and-a-half page block quotation from a 15-year old law review article."

Let's break this sentence down.

Justice Rubin first doesn't like the fact that there's a huge block quote from a law review article.  I can see how that might be a little bit distracting.  At least in terms of form.

But the stark reality -- as much as some of us might hate to admit it -- is that sometimes law review articles are actually pretty darn good.  They're well-written, well thought out, and sometimes even persuasive.  Now, could an appellate advocate say the same thing as the law review article does by changing around a word or two, and claiming the language as her own?  Sure.  But do we really need to compel such plagiarism?  Especially when the existing article is good as is?  Personally, I've seen a nontrivial number of appellate briefs that lift -- sometimes verbatim -- things I've said in a law review article or in a blog post and slap 'em down in the brief.  Sometimes with a footnote that cites my original piece.  Sometimes entirely without any such reference.

If a lawyer wants to forthrightly concede that he can't say it any better than a law professor who spent a year or more crafting a particular article and getting it published, I don't see why we should care.  Or backhandedly insult the person by insinuating that this practice is lazy or somewhat untoward.  If someone says something exactly right, I see no reason not to quote it.  Even if the resulting passage is perhaps long.  For example, I'm certain I could accurately summarize the Gettysburg Address, or the Declaration of Independence, by cutting 'em up a bit and replacing words here and there.  But if those things say exactly what I want to say, I see no reason not to just put 'em down on paper.

It should be the thoughts that matter.  Not whether they are in a block quote or whether someone else said 'em first.  (Indeed, as far as legal briefs go, I'd think that the fact that a neutral person -- with no stake in the matter whatsoever -- thought that X was the right legal principle would count slightly in favor of the persuasiveness of such a claim.  At least as contrasted to identical words articulated by a hired gun paid to advance a particular position on behalf of a client.  Yet more reason to be happy with a direct quote.)

Let's then talk about the final portion of Justice Rubin's missive.  The part that backhandedly slams the piece as being a "15-year old law review article."

Let me tell you a secret.  There's an easy way to make your law review articles more recent:  Simply publish the exact same article time and time again, with incredibly slight variation.  Indeed, that's a good way to become an "expert" in the field.  Despite the fact that you've said basically one thing twenty different times.  Academics are well familiar with this move.  Many engage in precisely such a practice.  That way they're insulated from critiques similar to Justice Rubin's -- that their articles are "too stale".  "Hey, I've got twenty articles on this topic.  Including one from just last year."  What could be better evidence of relevance and expertise?!

As you may be able to tell, I'm not especially enthralled with this practice.  Which seems a waste of intellect as well as trees.  If you've said something once, and things haven't changed, there's no need to say it again.  So a 15 year old (God forbid!) article may well be equally good -- or, in many cases, even a fair piece better -- as an identical one from a year ago.

That's particularly true here.  California has had the primary rights doctrine for over a century.  It has not substantially changed -- sadly -- during this era.  And certainly hasn't changed in the last 15 years.  Its defects are legion.  They're the same now as they were in 1950, and certainly the same as they were in 1999.  I might find it plausible to slam an article on, say, the legal implications of GPS tracking as coming from a "15-year old law review article".  But similarly slamming an article on a relic like the primary rights doctrine as being "too old"?!  Get serious.

Now, look.  I'd have said everything I just said about virtually any slam about quoting from a law review article.  At least any article that I thought was persuasive.  That seems to me an entirely acceptable -- and honest -- thing to do.  If anything, something I'd respect, and not want slammed (even in a backhanded way).

But I will nonetheless forthrightly concede that I find the reference here to be especially grating because (1) the law review article, in my mind, is entirely right, and (2) as it so happens, it was written by a colleague of mine here at USD -- a fellow civil procedure professor by the name of Walter Heiser.  Who also so happens to be the nicest guy you'll ever meet in your life.

Not that he'd actually care about the implicit slam.  He's way too nice of a guy.  Plus there's the theory that "any publicity is good publicity."  (Though, in this regard, at least Justice Rubin might have given Professor Heiser his props by actually citing the article -- which, I'm quite confident, is the absolute leading article on California's primary rights doctrine -- rather than just mentioning it sub silentio.)

But I'll nonetheless admit that I have a somewhat proprietary interest in the guy's welfare.  So I thought I'd expressly say so.

But I'll reiterate that I'd say the same thing if anyone did the same thing even to a law review article of a guy I despised.  The things (sometimes) have value.  When they do, I give props -- not slams -- to any lawyer who elects to cite 'em directly rather than rework the wheel in language that's allegedly the lawyer's "own".

I don't want to lose cite of the legitimate part of Justice Rubin's opinion.  He's exactly right that the Court of Appeal can't abrogate the primary rights doctrine by itself.  That's the California Supreme Court's job.  So an appellate brief that has a huge focus on why that doctrine stinks -- even if that's entirely right -- does indeed miss the mark.  (Though, I might add, a truly smart appellate advocate might nonetheless elect to argue the merits in the hope of persuading the Court of Appeal that it was indeed time for a change and, hopefully, getting the Court of Appeal to encourage the Supreme Court to accept review  As it indeed sometimes does.)

At the very least, I wouldn't slam a wonderful piece of scholarship -- in a doctrinal field that's (1) complicated, and (2) actually relevant to practicing lawyers -- in the way that the opinion does here.  Sure, law professors could all write articles about the hermaneutics of fifteenth century Scottish land use decisions, and then make sure to publish that same article every single year so it doesn't get "old".  But that's hardly a world in which I'd prefer to live.

So let's show the relevant people here -- law professor and appellate advocate alike -- some love.

You can simultaneously reject an argument yet appreciate the sentiment.  As well as the argument.

Thursday, January 23, 2014

In Re Gary Grant (Cal. Supreme Ct. - Jan. 23, 2014)

One of the downsides of really, really, really liking pornography is that during the course of viewing and/or downloading several hundred thousand pornographic images on your computer, it's distinctly possible that a small fraction of those files may contain images of teenagers below the age of 18.  At which point you've committed a pretty serious offense.  At least if the trial court doesn't believe you when you say that you instantly and immediately deleted them.  Which, to be honest, is more than likely exactly what it'll find.  Because I doubt the trial court's gonna be all that sympathetic to your situation.

This is bad enough for anyone.  But even worse for an attorney.  Because it means -- as the California Supreme Court holds today -- that you're going to be disbarred.  Possession of child pornography is a crime of moral turpitude, and gets you kicked out of the Bar.

As Santa Clara Law School graduate Gary D. Grant discovers to his chagrin.

Dickens v. Ryan (9th Cir. - Jan. 23, 2014)

Here's a neat little en banc decision from the Ninth Circuit where you get to count the votes.  Not an easy task given the various lineups around Parts I, II and III of the opinion.

Particularly interested in the count is Gregory Dickens.  Who lives or dies depending upon whether the vote's 6-5 or 5-6.

There's a little something for everyone in this one.  Check out the lineups.

It's another case where the en banc draw matters.

Wednesday, January 22, 2014

Ahn v. Kumho Tire USA (Cal. Ct. App. - Jan. 22, 2014)

This is why you don't just rest on your laurels even when plaintiff gives you awesome responses to interrogatories in which it admits that it has utterly no facts to support its case.  Because even if you follow up with a meet-and-confer letter that says you're going to "bind" them to those admissions, and thereafter move for summary judgment on the basis of their interrogatory answers, the case is by no means necessarily over.  Even if -- as here -- the trial court grants summary judgment on the ground that the plaintiff was "bound" to its initial answers.

Because the Court of Appeal may well reverse.

Parties can -- and often do -- amend their interrogatory answers.  Even if, as here, there was utterly no reason for the deficient answers in the first place.  Defendant can give it a shot and file a motion for summary judgment.  But if the plaintiff gets it together and, in response to that motion, prepares a new set of interrogatory answers that indeed creates a genuine issue of material fact, well, then, defendant's out of luck.  Summary judgment denied.

The practical pointer -- which the Court of Appeal doesn't give, but which I will -- is to follow up on great interrogatory answers with some RFAs that track the opposing party's answers.  Those are far more binding.  Good luck trying to get out of those.

Defendant here didn't adopt that approach.  And, as a result, is going to either have to settle or go to trial.  In a case that it might otherwise have gotten kicked forever.

In Re Marriage of Sharples (Cal. Ct. App. - Jan. 22, 2014)

Thank God for opinions like this.

Wife wants to get pendente lite attorney's fees from Husband in a dissolution action.  She files the relevant paperwork, including a declaration that explains the reasons for her request, the relevant information about attorney's fees, etc.

At the hearing, the trial court (Judge James Warren in Riverside) says:  "Interestingly enough, in all the documents I reviewed, I did not see anywhere a family law form 319, which is mandatory for you to be able to recover attorney’s fees, so your request for attorney’s fees is denied."  (FL Form 319 lists various information about income, fees, etc.)

To which Wife's attorney responds, respectfully:  "Your Honor, I believe the form is an optional form."  At which point the trial court says:  "No, it’s not. It’s mandatory as of January 1st, 2012. Family law
form 319 is mandatory, sir."  The trial court then denies Wife's motion for attorney's fees exclusively on the ground that she didn't file FL Form 319.

My first reaction was that the trial court's ruling seems pedantic.  So what that a particular form was not filed?  What's relevant is whether the necessary information was filed.  If something's missing that you need to adjudicate a motion, say so.  It's way too picky just to say simply:  "There's a particular form missing.  Motion denied."  Justice isn't supposed to be purely about whether or not someone fills in blanks.  We care about what's inside the blanks.  Or at least should.

Moreover, once I read further, I was even happier for the Court of Appeal's opinion.  Because not only was the trial court overly picky, but it was also obviously and indisputably wrong.  Yes, the Judicial Council created FL Form 319 effective January 1, 2012.  And, yes, in connection with this form, the Council also created California Rule of Court 5.93 (now 5.470) governing the use of this form.

But this rule says only that in order to request attorney's fees, a party must file a "Request for Attorney’s Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319."  That second part is exactly what Wife's counsel did here.  There's no argument anywhere that anything in FL-319 was left out of the declaration that Wife submitted.

So not only was the trial court overly picky, but it was also wrong on the merits.  And I was glad to see the Court of Appeal say so.  (There is, parenthetically, a local Riverside rule that says that filing FL-319 is mandatory in settlement conferences, but this wasn't a settlement conference, and even it it was, it'd have been preempted by the relevant Rule of Court.)

Judges should be trying their best to decide cases on the merits.  That didn't happen here.  Hopefully it will now.

Tuesday, January 21, 2014

Kalitta Air LLC v. Central Texas Airborne System, Inc. (9th Cir. - Dec. 19, 2013)

Guess how much it (currently) costs to be admitted to practice before the United States District Court for the Northern District of California?  $305.00.

Guess how much it currently costs to be admitted to practice pro hac vice before the United States District Court for the Northern District of California?  $305.00.

When you prevail in a civil case, guess which of these costs (if any) are part of recoverable costs?

Only the first one.  Being admitted to practice forever.

Which makes absolutely no sense.  Particularly when the need for the second one actually arises solely from the case at hand, and benefits no future clients, whereas the need for the first one -- the one where the Ninth Circuit lets you get your money back from the other side -- both arises more generally and benefits all of the attorney's clients throughout his or her career.

But according to the Ninth Circuit, that's what the statute says.  A couple of other circuits have held otherwise, so now there's a circuit split.  But c'est la vie.  Good luck getting the Supreme Court interested in stepping in to resolve a circuit split that purely involves an issue of statutory interpretation and is over around a couple of hundred dollars or so.

Friday, January 17, 2014

Obsidian Finance Group v. Cox (9th Cir. - Jan. 17, 2014)

The Ninth Circuit made bloggers a tiny bit happier today.  Holding that even bloggers -- not just the institutional press -- are protected by the First Amendment holding in Gertz, and that as a result, a plaintiff who sues 'em for defamation for posts that involve a public concern needs to demonstrate actual (not merely presumed) damages as well as negligence on the part of the blogger.

Law blogger Eugene Volokh (The Volokh Conspiracy) represented the defendant on appeal, and law blogger Tom Goldstein (SCOTUSblog) filed an amicus brief.  Darn good representation on behalf of a blogger who "published blog posts on several websites that she created [] accusing [plaintiffs] of fraud, corruption, money-laundering, and other illegal activities" and "apparently has a history of making similar allegations and seeking payoffs in exchange for retraction."

A nice present as we head into the long weekend.

Thursday, January 16, 2014

Grenning v. Miller-Stout (9th Cir. - Jan. 16, 2014)

It's certainly not waterboarding or the like.  But I too wouldn't like it if prison guards kept the lights on in my cell 24 hours a day.

Whether that constitutes "deliberate indifference" depends a lot on the facts; in particular, on just how bright it was.  The facts here are exceptionally unclear.  Which is why the Ninth Circuit remands.

Putting a tiny little night light into my cell to make sure I'm not fighting, or digging a hole, or doing other untoward things seems okay.  Shining a spotlight on me 24 hours a day is a different matter.

I'm sure the present case is somewhere in between these two extremes.  We'll find out precisely where on remand.

Villacorta v. Cemex Cement, Inc. (Cal. Ct. App. - Dec. 11, 2013)

Even though plaintiff's lawyer only asked for $44,000 in lost wages during his closing argument, the jury's still permitted to award $198,000.  So holds the Court of Appeal.  Correctly, I might add.


Wednesday, January 15, 2014

Lintz v. Lintz (Cal. Ct. App. - Jan. 14, 2014)

Marrying elderly multimillionaires doesn't always work out the way you hope once they die.  As Susan Lintz discovers here.

Admittedly, Mrs. Lintz still gets to spend tons of cash during the marriage.  But her efforts to get more after her husband's death don't succeed.  They constitute elder abuse.

So she's got to live with less.

Tuesday, January 14, 2014

People v. Goolsby (Cal. Ct. App. - Jan. 14, 2014)

One of the common misconceptions about appellate jurisprudence amongst laypeople is the belief that if you're a criminal defendant who prevails on appeal, you get to go free.  Not true.  Almost always, your remedy is simply a retrial.  A retrial which will more than likely have the same result as your initial trial; i.e., a conviction.

There are, of course, exceptions.  Sometimes the prosecution will offer a plea deal.  Sometimes some of the witnesses might be unavailable.  Sometimes the retrial will result in an acquittal.  Nonetheless, the vast majority of the time, you're facing another trial.

But then there are cases like these.

This is probably what most people think of when they think about a criminal defendant "getting off on a technicality."  (Though, here, it's a substantive problem with the prosecution, not a Fourth Amendment or similar problem.)  Richard Goolsby has an argument with the girlfriend with whom he resides in a mobile home, so he pours gasoline on the thing and burns it down.  With her inside.  Fortunately, she gets out, but they charge Goolsby with felony arson.

Felony arson's broken down into a variety of degrees, with corresponding punishment.  You get the most prison time (not surprisingly) if you hurt someone, the next most if you burn down an "inhabited structure or inhabited property" (e.g., a house), less if you torch a "structure or forest land", and not much if you burn "other types of property".

Since both Goolsby and the victim were living in the mobile home, not surprisingly, the DA charges him with arson of an inhabited structure.  "Structure" being defined (for our purposes) as "any building".  Goolsby's also charged with the lesser "arson of other property" offense, on the theory that it's (somewhat) a lesser included offense.  But once the jury convicts on the greater offense, consistent with the instructions they were given, they don't issue a verdict on the lesser.

Here's the problem:  Is a mobile home a "structure"?  Which, given the definition, is to ask whether it's a "building".

You can see why there might be some debate here.  On the one hand, it's got four walls, a floor and a roof.  People live in it.  On the other hand, it's mobile.  It's got wheels.  Our traditional understanding of "building" doesn't include something with wheels.  So that's the debate.

The Court of Appeal says it ain't a building.  Yes, there are some cases that hold that when a mobile home is "permanently" attached to the ground it's a "building".  But -- perhaps unwisely -- the DA didn't offer any such evidence here.  Hence the Court of Appeal holds that the evidence is insufficient as a matter of law.

Which leaves the lesser offense, right?  For which the guy's indisputably guilty.

Except for two problems.  One, the jury didn't render a guilty verdict on that.  Two, there are some other facts you need to prove -- e.g., that the defendant doesn't own the property (because, with limited exceptions, it's not arson to torch your own stuff -- that weren't proven here.  So on the state of this record, the Court of Appeal says it's can't just enter a judgment of conviction on the lesser.

So what to do?

The Court of Appeal bites the bullet.  It says that since Goolsby was already charged with the relevant act, the Double Jeopardy clause bars his reprosecution.  The state had its chance.  It blew it.  Goolsby goes free.

Justice Richli slightly disagrees.  She agrees that the home here wasn't a "structure".  But disagrees on the retrial point.  She'd let the guy be retried.  On the theory that the lesser offense is still "pending" since the jury never reached it, so the Double Jeopardy Clause doesn't bar its continued prosecution.

I think everyone's got a good point here.  Including but not limited to the (absent) dissent.  I think it's a close issue whether a mobile home is a "building".  Looks (mostly) like a duck, quacks like a duck, etc.  So I might be somewhat more willing than the panel here to affirm Goolsby's conviction.

But I'll forthrightly admit that I'm torn -- as I recognize I shouldn't be -- by the fact that Goolsby may well get to go free unless I so hold.  It's a close case.  We don't want someone who tried to burn up his girlfriend on the street.  Even if it's the DA's fault (and I'm not saying it is), I'm not excited about letting the guy go.  Which I might well have to do if I say the home isn't a building.

Admittedly, Justice Richli's got a potential way out.  But as between calling a mobile home a "building" and adopting her interpretation of the Double Jeopardy Clause, I'm not sure the former isn't somewhat more persuasive as a matter of doctrine.  So that's the way I lean.

Yet I understand that my motivation for doing so is "impure".  That I'm thinking thoughts that I should not (e.g., about justice in this particular case).  But I'm human.  It's hard to put those aside.  Try as I might.

A colleague of mine asked me earlier today whether my jurisprudential theory generally imposed any "hard" interpretive limits.  For me, this opinion may well demonstrate the difficulty of providing a solid, easily definable answer to that query.

Monday, January 13, 2014

LSAC v. California (Cal. Ct. App. - Jan. 13, 2014)

I could talk about law school admissions decisions for far longer than anyone would be interested.  For that reason, one might well be advised to discount my believe that this is a very interesting case.

But I'll say it anyway.  This is a very interesting case.

For those outside the law school setting, here's the basic scoop.  Candidates for admission to law school almost invariably take the LSAT, which is sponsored by the Law School Admission Council (LSAC).  Back in the old days, pretty much everyone took the same test and under the same basic conditions.  But, in the modern era, with the rise of ADHD, ADD, and a plethora of other disability diagnoses, a large -- and ever-increasing -- number of LSAT test-takers get "accommodations" when they take the LSAT.  By far the largest accommodation requested is extra time.

Which should not be surprising.  Test-takers with disabilities may well require more time in order to situate them similarly to other test-takers.  Take, for example, a blind test-taker.  S/he may well need more time to read the relevant questions (perhaps in Braille), and it wouldn't be at all fair to deny such an accommodation.  Otherwise s/he might obtain an overly low score that's not representative of his or her real abilities.

The problem, of course, is that extra time is a benefit -- and a potentially big one -- for every test taker.  Including but not limited to those with disabilities.  As a result, you've got the potential problem of test-takers getting "diagnosed" with disabilities for instrumental reasons.  Something that's especially a problem with somewhat "fuzzy" disabilities.  Because everyone -- everyone -- wants extra time if they can get it.

As a result, we've got to separate the "true" disability claims from the "false" ones.  Which is no easy task.  Plus, there's legal liability if the LSAC potentially gets it wrong.

But the LSAC nonetheless takes a pretty strong approach to the topic.  More than a lot of other entities, it's concerned that just granting exceptions to pretty much everyone might compromise the value of its test.

For good reason.  Scores on LSATs are pretty decent predictors of first-year grades in law school, and combining LSAT scores with undergraduate GPAs predicts success in law school even better.  But that strong correlation only really holds for unaccommodated tests.  Once you start giving candidates extra time, LSAT scores become much less predictive.

So one way the LSAC responded to this reality was to make full disclosure.  If the LSAT was taken in a "regular" setting, the LSAC said so.  That way the relevant admissions officials could know that it had its "normal" predictive power.  But if the LSAT was taken in an accommodated setting, the LSAC said so as well.  In some subtle but -- for admissions officials, anyway -- unmistakable ways (e.g., by not providing a "score band" for that particular candidate).  The test-taker still got a score like everyone else, and on the same range.  But admissions officials could tell that s/he was accommodated.  That might help the candidate; for example, perhaps a low LSAT might (despite high undergraduate grades) might be given less weight, since it has less predictive power.  But, in other settings, that same fact might hurt a candidate; for example, perhaps a high LSAT (despite low undergraduate grades) might be given less weight in the admissions process.  Either way, whether a benefit or burden, the LSAC would tell the law school admissions officers the truth.  But in doing so, it'd necessarily reveal an asserted disability.

Things went down this way for a while.  Which required admissions officers in law schools to engage in a careful balance.  You can't discriminate against the disabled.  At the same time, you want to try to predict success based upon everything you know.  So admissions officers took a holistic approach to all the information they were given.

But then California got into the act.

In September 2012, California enacted a new law -- effective January 1, 2013 -- that essentially made it illegal for LSAC to tell admissions officers at law schools whether someone who took the LSAT was accommodated (e.g., got extra time).  At which point the LSAC sued, claiming that this statute violated its right to equal protection (since other test-giving entities were not covered) as well as its right to free speech.  The LSAC moved for a preliminary injunction against enforcement of the statute, and the trial court granted this request.

The Court of Appeal reverses.

I think that Justice Hoch's opinion gets at least half of the case right.  I'm persuaded that the statute does not impermissibly single out the LSAT, and hence doesn't violate equal protection (or implicate related rights, like bills of attainder, etc.).  The LSAT, as well as the LSAC, are somewhat unique.  It's permissible for California to single out those entities and subject them to special rules.  I can see that.

The free speech claim is a little different.

The LSAC says that it's being prevented from telling admissions officers the truth.  That's a pretty powerful claim, in my view.  The Court of Appeal holds that the statute in question only regulates commercial speech.  That's a conclusion that seems plausible to me (albeit hardly entirely self-evident).  But there's nonetheless a serious issue about whether even commercial providers can be prevented from telling people the truth about the predictive power of their own scores.

The Court of Appeal's opinion commendably reflects a keen understanding of the values at stake.  In the end, Justice Hoch ends up vacating the preliminary injunction but remanding the case back for a trial on the merits.  California's statute is permissible, Justice Hoch says, if LSAC's policy of "flagging" test scores that result from accommodations "causes real discriminatory harm to prospective law students with disabilities."  But if the state can't prove that fact, then the statute does indeed violate the free speech rights of the LSAC.  That's for the trial court to figure out, as a factual matter, on remand.

But in the meantime, no flagging.  Accommodated test-takers get to obtain an accommodated score without revealing this fact to the law schools to which they apply.

Important for anyone out there who's thinking about taking the LSAT.  Similarly important to people at law schools in the admissions office.  Or -- and I'm speaking as one such person -- to faculty members who've chaired the Admissions Committee at their law school for the past decade or so.  No longer do they get to evaluate the predictive power of an individual applicant's LSAT score when assessing the capabilities of a particular applicant.

Let me just say one thing about the merits of the underlying dispute.  Something that the Court of Appeal doesn't mention, but which nonetheless may well deserve some serious consideration.

As I said earlier, "flagging" accommodated LSATs can either benefit or harm a particular candidate.  It all depends upon whether the candidate has an "abnormally" high or low score.  It hurts the former but helps the latter.  At least in general.

Mind you, telling the truth often does that.  Some people it helps.  Some people it hurts.  I'm not sure that what we're really trying to get at in analyzing the propriety of free speech is whether "on balance" speech generally helps or hurts a given class.

Overall, though, if the question really is what practical effects "flagging" has, I'd urge the trial court on remand to carefully consider the contemporary admissions environment.  And by "contemporary" I do not by any means limit myself to the last three or four years, a period during which admissions to law school have been substantially declining.  I instead mean the past two or three decades.  Because it's during that period that LSATs and rankings and their associated metrics have really become critical.

Law schools already have substantial incentives to accept even those LSATs that they know may well be inflated and/or not serve as particularly effective predictors of success.  Why?  Simple answer:  The rankings in U.S. News and World Reports.

Law schools care a lot about maximizing the LSATs of their entering class because that counts for a lot in how U.S. News ranks law schools.  Which in turn counts a lot in whether (and/or how many) students decide to enroll in your school.  That's true regardless of whether the LSAT is an accurate predictor of success/intellect, an inaccurate predictor, or simply a random number generated by three hamsters walking on a keyboard.  Who cares?  Law schools want high LSATs because it helps them recruit others.  Ditto, by the way, for undergraduate GPAs.  The fact that these scores also may not be perfectly (or even at all) predictive doesn't matter.  Because they are predictive in one critical aspect:  They accurately predict how the school will be ranked in U.S. News.  Which explains why a candidate with a 3.3 in engineering at MIT may well be viewed as "worse" than a candidate who has a 3.6 in basketweaving at an online college.  Notwithstanding the fact that everyone would recognize that the former will likely do better in law school than the latter.  Because the former hurts in U.S. News while the latter helps.

The substantive point is that there are already substantial incentives for law schools not to discriminate against accommodated students who receive "abnormally" high LSAT scores.  Not only -- or even, if truth be told, primarily -- because it's illegal.  But rather because ignoring the fact that such scores might not be especially predictive affirmatively helps lots of law schools.  It enables them to "goose" their LSAT scores and resulting rankings.  Regardless of whether those scores are predictive.

Admittedly, one doesn't want to go overboard here.  There are some schools that surely care more about predictive success than rankings.  My alma mater, for example.  Surely plenty of others.  Law school admissions aren't entirely "numbers" games.  At least in lots of places.

But when the trial court needs to figure out if telling the truth about LSAT scores hurts accommodated students, it might be worthwhile to consider the overall admissions environment.  Including but not limited to how those scores are actually used.  Because the reality of the process actually matters a lot.

Regardless, in the meantime, an LSAT score is an LSAT score.  Even if we know that the predictive power of one may not, in fact, be equal to another.

Fascinating case.  Important for lots of people.  Worth reading (and caring about) at least a bit.

Candyce Martin 1999 Irrevocable Trust v. IRS (9th Cir. - Jan. 13, 2014)

If you want to know a lot about the history of the San Francisco Chronicle, and/or if you want to see how really, really rich people attempt to manipulate their tax liability, take a look at this opinion.

I was glad to see that the IRS (largely) won this case.  I know a little bit about these tax "option" (e.g., "BOSS" and "Son of BOSS") strategies.  Seeing them operate (and potentially succeed) makes me look forward even less to paying my own taxes on April 15th.

It's one thing to pay taxes as part of a common enterprise.  It's entirely another when you think you're the sucker.

Friday, January 10, 2014

In Re G.L. (Cal. Ct. App. - Jan. 10, 2014)

Some dependency cases are totally easy.  This one isn't.

You've got to read the whole thing to really get a feeling for the complexity here.  On the one hand, you've got a terrible drug-addicted mother who's already lost four other children.  One the other hand, you've got someone who's really trying to be a parent, and who clearly really cares about her child.  Albeit within the emotional and other substantial constraints under which she operates.  Those two hands are part of the same person.  What to do with the child?

For what it's worth, at the appellate level, at least, I'd have done the same thing as the Court of Appeal.  I'm sure Mother's not happy that her kid's been taken away, but that makes sense to me.  I can also understand why the kid's appointed attorney is not happy that Mother's nonetheless granted reunification services, since she's often been a terrible parent -- and I'm sure the attorney thinks, perhaps correctly, that the kid would be better if Mother simply left the picture entirely.

But the trial court -- Commissioner Imhoff, down here in San Diego -- really seemed to think about this case deeply, and it wasn't (and isn't) an easy one.  He thought that taking a middle ground was appropriate.

There's a reason we give "boots on the ground" deference in cases like this one.  This is a perfect example.

Maybe the trial court was right.  Maybe it was wrong.  Odds are that even the trial court realizes that.  At least if he's being honest.

But if there's anyone in this admittedly imperfect universe who's in a position to give our best guess possible as to what's the right call, it's a dedicated trier of fact below.  That's what you've got here.  Which is why the Court of Appeal affirms.

Aircraft Svc. Int'l v. Int'l Brotherhood of Teamsters (9th Cir. - Jan. 10, 2014)

It's been six years in the making.  But we finally get to see it.

The Battle of the Smiths.

In the Red corner, we have Judge N. Randy Smith.  "Randy".  BYU undergrad.  Bush II appointee to the Ninth Circuit.

In the Also Red (but Slightly Purplish) corner, we have Judge Milan Smith.  "Milan".  BYU undergrad.  Bush II appointee to the Ninth Circuit.

Let the grudge match between these vicious opponents begin!

Okay, so, in truth, it's not a grudge match.  They're not even universes apart in their respective worldviews.  Unlike some other judges on the Ninth.

Moreover, the Smiths have been on the same panel before.  But except in a couple of en banc votes, they've been largely on the same page.  As far as I can tell, we've never seen a panel opinon where one Smith writes an opinion and the other one writes a dissent.

Until today.

Randy authors the majority opinion.  Joined by Judge Kleinfeld.  Milan dissents.  It's a labor (unions) case, so you can probably guess from the lineup which way it comes out.  The district court issues an injunction that stops some workers at Sea-Tac from conducting a threatened eight-hour strike.  The majority says that's okay.  The dissent respectfully disagrees.

No one's going ballistic.  Partially because no one on the panel is a hard core member of the Blue Corner.

Still, it's Randy versus Milan.  Smith v. Smith.  And in the first of perhaps three or four battles in the next twenty years, at present, the winner is . . . Randy.

Thursday, January 09, 2014

Certainteed Corp. v. Superior Court (Cal. Ct. App. - Jan. 8, 2013)

I like the speed -- incredible speed, really -- the Court of Appeal employs to get this opinion out.

Deposition terminated on November 25, 2013.  Trial court reluctantly holds on December 10, 2013 that it's not permitted to allow the deposition to be continued.  Writ filed the day before Christmas, December 24, 2013.  Trial scheduled to commence on January 14, 2014 in this expedited case.

Court of Appeal issues a peremptory writ on the Friday after Christmas, December 27, 2013.  (Wow!)  On Monday (December 30), the trial court refuses to vacate its order.  That Friday, plaintiff files its return, and on the following Tuesday (January 7) defendant files it reply.

Court of Appeal publishes its opinion one day (!) later.  January 8, 2014.  Four court days before the trial is scheduled to commence.

Who says appellate courts can't be speedy when they want to be?

It's also an important case.  We all know that, under the new rules, depositions in state court presumptively can't be over seven hours long, but that courts can change those limits.  The question here is whether courts can change those limits for (1) complex cases, (2) in which a physician certifies that the deponent might well die within six months.  Paragraph (b) of Section 2025.290 seems to state that in those types of cases, depos can only be a maximum of 14 hours total (over two days).  The trial court thought that was a hard limit.  Not subject to extension by a court.

The Court of Appeal disagrees.  Those things can be extended too.

Right result.  Somewhat hard to get there given the statutory text, however.  Nonetheless, I think the Court of Appeal's approach is plausible, so am on board.

And definitely agree with the process.  Speedy justice is good justice.

At least when the case comes out the right way.

Wednesday, January 08, 2014

Cardinale v. Miller (Cal. Ct. App. - Jan. 8, 2014)

The Court of Appeal does not look fondly upon those who try to assist others in avoiding judgments that have been entered against them.

Not fondly at all.

In Re Marriage of Finby (Cal. Ct. App. - Jan. 7, 2014)

Ah, the difficulties of getting divorced as a high-income couple in Orange County.

The trial court was wrong, and Justice Rylaarsdam (and the rest of the panel) is right.  Wife got paid a boatload of money for bringing her "book of business" from UBS to Wachovia.  She got the boatload up front despite the fact it was (understandably) conditional on her staying at Wachovia for nine years or so.  Similar thing for various "bonuses".  This is how people are paid in the modern era.

The trial court says all this money is Wife's separate property.  Nope.  She built up the book of business during the marriage.  It's true that her "entitlement" to the resulting money doesn't "vest" until after the separation date, because she's got to continue to work at Wachovia in order to be "entitled" to the money.  But that doesn't mean that Husband's not entitled to any of that money.  Much of which is simply payment for the book of business that Wife brought over.  A book that she generated during the marriage.

The Court of Appeal doesn't use the term "option", but that's exactly what this is.  Wife was granted an option during the marriage -- based upon her work during the marriage -- to earn a lot of money.  How much she'll obtain upon exercise of that option may depend upon future (post-separation) events; e.g., if she continues to productively work for Wachoiva.  But that doesn't mean the option has no value.  It does.  In spades.  That option value is community property.  It gets split fifty-fifty.

It's true that the option is hard to value.  But so are lots of things.  Including but not limited to options in the financial world.  For example, if Wife really thinks the option is so "speculative" that it has no value, I'm more than willing to buy 70% of her expectancy for $500.  I'd make a killing.  The fact that there's no way in the world she'd sell at this price proves that the option (1) has value, and (2) can be determined.  We just have to find the right number so that Wife's indifferent about a potential sale.  Since she's the one with superior knowledge and control about the value of the option, she's the best one to value it.  So we get to a number that makes sense.  Then split it down the middle.

Tuesday, January 07, 2014

Market Lofts Community Ass'n v. 9th Street Market Lofts LLC (Cal. Ct. App. - Jan. 7, 2014)

The Ninth Circuit's taken the week off thus far.  And the California Court of Appeal has been light.

But today nonetheless grants us an opportunity to look at how condo development sometimes works.  In the present case, the development of condos at Ninth and Flower in LA -- next to the Staples Center.  Surely a hot commodity in the present market.

One entity develops the condos and a related entity develops the parking structure next door.  The parking structure grants an irrevocable license that runs with the land to the condo HOA, which permits the owners of the condos to park there -- a license of no small importance during basketball games if your condo's next door to the Staples Center, I imagine.  The license further provides that it shall be at no cost.

Makes sense.  Develop condos.  Develop parking.  Make sure the former has access to the latter.  Include parking spaces for free, built into the cost of the condos.

But shortly after the HOA gets formed it's allegedly "dominated" by insiders at the developer.  Presumably because no one else has yet moved in, so the developer owns all the condos.  At which point the developer allegedly takes away all (or nearly all) of the HOA's rights under the "irrevocable" parking license.  Agreeing that parking will no longer be free, but will instead cost the HOA $75/month per space.  Which the HOA will pass on to the condo owners.  Eventually, as people buy the condos, a "real" HOA board is created, at which point it discovers what the developer did, and sues.

The trial court dismisses the lawsuit for lack of standing.  The Court of Appeal reverses.

That seems right to me.  The contract was expressly for the benefit of the HOA and the condo owners.  If they can't sue for its breach, who can?!  Standing too often gets in the way of adjudication on the merits, and often in settings in which there's little reason not to permit people to bring suit.  This seems a perfect example.

One benefit of state courts is that they're not limited by the "case and controversy" requirement of Article III, alongside the overly strict interpretation of that provision articulated by federal courts.

Monday, January 06, 2014

People v. Ledbetter (Cal. Ct. App. - Jan. 6, 2014)

Sometimes the California Court of Appeal really does get things.  Including but not limited to the silliness of some possible adjudications.

Seems to me like the Court of Appeal is correct.  The state wants a retrial on a strike, but there's no need to waste money doing so, since the net result (even if the state was successful on remand) would be to add a single day to the guy's already-existing 39 year sentence.

Makes sense to me.  We've all got better things to do.

People v. Wahidi (Cal. Ct. App. - Dec. 30, 2013)

Imagine that you accidentally rear end someone's vehicle with your car.  Their bumper is dented.  You know the accident is your fault.  Not surprisingly, they want you to pay for the thing.  Which you're willing to do.

The process can go one of two ways.  The "formal" way involves the victim calling the police, having the officer write a report and (almost certainly) give you a ticket, and then having the victim make a claim on your insurance policy.  The "informal" way involves you giving the victim the cost of the dented bumper.  To make it simple, let's call it $600.

Your insurance deductible is $500.  The ticket will be another $300.  Your insurance rates will go up.  You know all this in advance.  So let's say you ask the victim if he'll just let you pay the $600 and call it even.  No "extra" money.  Just settling the thing civilly.

Any problem with that?

I'd think not.  Happens all the time.  It's not "bribery" to pay the guy off.  At least as long as you're not paying him extra.  It's not "dissuading a witness" from calling the police.  It's a simple, straightforward transaction I'm confident happens every single day in every single city in the United States.

Now let's change the hypothetical a tiny little bit.  You break a guy's car window with a baseball bat during a fight.  You feel bad about it.  So you approach the victim at a mosque.  You've seen him several other times at different mosques.  But you're going to this one to try to set things right.  You apologize to the victim for what you did.  And tell the guy:  "We’re both Muslims. That if we could just settle this outside the court in a more Muslim manner family to family, have our families meet and settle this out of court and not take this to court."  'Cause that's in fact the Muslim way.

Let's stipulate that your sole intent in having this conversation was in fact to try to persuade the guy to resolve the dispute civilly.  Or religiously.  In other words, to not further involve the police.


The Court of Appeal says "Yes".

Remember that the next time you try to "resolve" things informally.

What's most fascinating to me about the opinion is not just that people do these things every day.  But that lawyers do these things every day.  Abdulla Wahidi gets convicted of a felony for approaching the victim as he did.  But if he were smarter (or richer), he would have hired an attorney.  Who'd have gone to the victim (or the victim's lawyer) and who'd have said the exact same thing.  No way in the universe the lawyer would have been found guilty of a crime.  Or even disciplined.  That'd just be "resolving the dispute".

Might there be an "implicit" quid pro quo; i.e., I pay you off, criminal charges/tickets go away?  Sure.  That happens all the time.  You think there's absolutely no link between Michael Jackson paying $23 million and the alleged molestation victim deciding not to testify at the guy's criminal trial?  Could be.  Or not.  I'm sure there's no express linkage.  Especially since none would be enforceable anyway.  But the parties -- including but not limited to the lawyers -- nonetheless know full well what's going on.

Perfectly fine.  No charges.  Except when -- as here -- the parties are unsophisticated enough not to bring in lawyers.

Then you get a felony.

Friday, January 03, 2014

U.S. v. Dharni (9th Cir. - Jan. 3, 2014)

Judge Wallace is right.  Temporarily kicking spectators out of the courtroom during voir dire because there's a shortage of seats doesn't constitute reversible error.  There may have been better ways of doing what went down here; in particular, the judge should have made sure to invite back the people waiting out in the hall as seats became available.

But that doesn't mean that defendant gets a retrial.  Sorry about that.

Thursday, January 02, 2014

In Re Garcia (Cal. Supreme Ct. - Jan. 2, 1014)

Once the Legislature (overwhelmingly) passed a statute that expressly allows undocumented/illegal aliens to become members of the State Bar of California, there was little doubt how this case would come out.  As it indeed does.  Unanimously.  Sergio Garcia gets to become an attorney in California.

Mind you, it's unclear that Mr. Garcia gets to actually practice law in much of the usual capacities.  He's not allowed to accept employment as an attorney with a law firm or a company.  That'd violate federal law.  And to do so might even get him disbarred.  It's also unclear if he can become even a for-profit sole practitioner; that depends upon a statutory interpretation question that the California Supreme Court (smartly) leaves for another day (read: never).

Regardless, Mr. Garcia gets to be an attorney.  At a minimum, he can do pro bono work if he'd like.  No barrier to that.  Do good.  Enjoy.  Congratulations.

The only disagreement in the California Supreme Court relates to terminology.  The Chief Justice's opinion uses the phrase "undocumented alien".  Justice Chin concurs with the result, but writes separately with the exclusive point of noting that, were he the author, he'd have used the term "illegal alien".

A classic debate.  Substantively meaningless, of course.  But words nonetheless matter.  Hence the expression of disagreement.

Personally, I think the term "unauthorized alien" is a nice compromise.  "Illegal" alien is both perjorative as well as inaccurate.  People aren't illegal.  Plus it's not a crime to be in the country without permission (at least in the usual case).  It's a civil offense.  You can be deported.  You can be detained (as with some other civil offenses).  But unless you've been previously deported or some other exceptions apply, you can't be thrown in jail.  Because it's civil, saying that someone's an "illegal" alien seems unjustly inaccurate.

That said, calling someone an "undocumented" alien somewhat understates their status.  In a similar way the term "illegal" alien overstates it.  It's not just that they've misplaced documents.  They're not allowed to be in the U.S.  That's meaningful.  In a way that's more significant, I think, than the term "undocumented" reflects.

I get why those on the right want to use the term "illegal" and on the left "undocumented".  Again, words can have an effect.  But I wonder if -- at least when writing an opinion -- there isn't some value in using terms that both sides should be able to agree upon.  For me, there's indeed some value to that.  Moreover, since there's no doubt that Mr. Garcia's "unauthorized" -- and since the relevant federal statutes repeatedly employ that same phrase as well (albeit inconsistently) -- I'd use it.

If only because it'd (hopefully) avoid the kind of petty language fight demonstrated here.  Especially when there may well be a value in having an opinion that was joined without the slightest whiff of controversy by the entire court.  As here.

Lopez-Valenzuela v. County of Maricopa (9th Cir. - Jan. 2, 2014)

It's always nice when the first thing the Ninth Circuit does in a new year is to prove me right.

Thanks, Ninth.  You're a good friend.