Friday, February 28, 2014

People v. Maloney (9th Cir. - Feb. 28, 2014)

Coincidentally, as California is drenched in much-needed rain, the Ninth Circuit issues an opinion that reflects the reality that you don't always need a weatherman to know which way the wind blows.

The Ninth Circuit issued an opinion back in 2012 written by Judge Randy Smith involving a case in which an AUSA made a new claim in closing argument in order to "sandbag" the defendant, who was never given the chance to respond to this argument.  The Ninth Circuit, in a split opinion, held that what the AUSA did was proper.

I said that I was pretty sure that Judge Smith was wrong.  Last year, the Ninth Circuit took the case en banc.  When it did so, I said:  "We'll see what the en banc panel looks like.  But I'd predict a reversal regardless."

We then got the en banc panel.  The US Attorney's Office must have been happy when it learned that Judge Smith -- the author of the panel decision -- was on the panel.  There's one vote.

But that's about it.  Eight of the other ten judges drawn for the panel were Democratic appointees.  And the other two Republican appointees (Judges Kozinski and Clifton) are hardly a prosecutor's dream.  Especially the former.  Who's been known to be -- shall be say -- more than a tiny bit critical of prosecutorial ethics on occasion.

Then the en banc oral argument happens.  Which you're free to watch if you've got an extra hour.  An effort that may well be worthwhile if you've ever felt yourself on the hot seat at oral argument.  Ouch.  Blistering.  I had to occasionally look away as the en banc panel interrogated the AUSA defending the government's acts below.  It was that devastating.

Clearly, I wasn't the only one who could read the tea leaves.  Three weeks later, the Ninth Circuit received a motion from the U.S. Attorney's Office to "Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court."  Which, today, the Ninth Circuit did.

The U.S. Attorney's motion stated that "she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that 'no reference should have been made to luggage in rebuttal argument.'  The United States Attorney’s Office also stated that it planned to 'use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules."  Hence the decision to basically fold and confess error.

The Ninth Circuit appreciates this confession.  Judge Wardlaw writes a brief opinion that relays the facts and, on behalf of the court, "commends" the U.S. Attorney -- by name -- for confessing error, and that then reverses the conviction and remands as requested by the U.S. Attorney.  Everyone on the panel joins this opinion.  Except for Judge Smith.  Who concurs in the result only.

I appreciate the confession of error as well.  It was the right thing to do.

Though, to be ruthlessly honest, the Ninth Circuit may be giving the U.S. Attorney's Office a little more credit than credit is due.

I'd have been extraordinarily impressed with the U.S. Attorney if she had confessed error before the case got to the panel.  I'd have been tolerably impressed if the U.S. Attorney had confessed error once the case had been taken en banc.

But none of that transpired.  Rather, the U.S. Attorney only confessed error after it (1) saw the panel drawn for the en banc court, and (2) got totally creamed at oral argument.

At that point, it confessed error.  Now, maybe that was because the U.S. Attorney suddenly realized that its position was wrong.  Long after two rounds of briefing in which she strenuously argued that what her office did was right.

But let me be a bit more cynical.  In a situation in which cynicism is, in my view, fairly justified.

Why did the U.S. Attorney confess error?  Because she knew she was going to lose.  Knew it.  Perhaps more critically, not only would she lose, but she was almost certainly staring down the barrel of an opinion that would slam the propriety of her Office's conduct.  Hard.

It's only at that point that the U.S. Attorney relents.  Basically to save herself and her office from critique.

I'm not saying that's a bad thing.  It isn't.  But when the Ninth Circuit "commends" the U.S. Attorney, that commendation should be perhaps tempered by the circumstances under which this concession was made.

Because -- as the U.S. Attorney or any sentencing judge well knows -- a mea culpa means a lot more when you turn yourself in sua sponte than when you say it in an attempt to save yourself at sentencing.

P.S. - I also thought that the U.S. Attorney's claim that she was going to use the video of the en banc oral argument "as a training tool" in her office to be artfully worded.  I have no doubt whatsoever that she's more than sincere in this regard.  But you could use the facts of this case in one of two ways.  First, you could tell your AUSAs that they better not sandbag defendants because it'd be ethically wrong.  Alternatively, a U.S. Attorney could tell her subordinates that they better not sandbag defendants because, if they do, they'll be ruthlessly attacked by the Ninth Circuit.  Then show them the video.  The underlying message of these two different approaches are pretty darn distinct.  Which one do you think the U.S. Attorney intends to deliver?

Thursday, February 27, 2014

People v. Spriggs (Cal. Ct. App. - Feb. 27, 2014)

Last year, I discussed a published opinion from the Appellate Division that held that it was illegal to use your smartphone to surf the internet (e.g., to check Google Maps) while driving.  I articulated a lot of reasons why that decision might in fact be wrong.

Today the Court of Appeal, which granted review of this decision, shared my view.  You still can't talk on your cellphone.  But the statute at issue doesn't apply to merely looking at it.

Something definitely worth knowing.

Dariano v. Morgan Hill USD (9th Cir. - Feb. 27, 2014)

At the height of our involvement in Vietnam, the United States Supreme Court held that high school students had a First Amendment right to protest the war by wearing black armbands in school.  This morning, the Ninth Circuit holds that students do indeed have that right.  Unless it hacks off others in the school who threaten to beat them up.  At which point, the students' right to free speech disappears and the students can be forced to take off the armbands.

Admittedly, the facts of today's case are slightly different.  But the principle is exactly the same.  It's not a black armband here, but rather an American flag.  Some students decided to wear clothing with American flags on them.  Not coincidentally, they did so on Cinco de Mayo.  You can probably figure out the basic gist of what the students were trying to say.

Not surprisingly, other students were not pleased at the content of this speech.  So threatened to beat up the (American) flag-displaying students.  At which point the school stepped in and forced the flag-wearing students to stop their speech.  The Ninth Circuit holds that's okay.  Since there was a real risk of violence, there was no First Amendment right to speak.

Although straightforward, Judge McKeown's opinion essentially ignores the hard part of the case, and nowhere discusses the problem of giving a "heckler's veto" to First Amendment rights.  It's pretty easy to see the systemic problem created by a rule that says:  "You have a right to speak until someone else doesn't like your speech and threatens violence."  Namely:  It encourages violence, or at least the threat of it.  That's especially likely in cases of, as here, unpopular speech.  If you don't like what someone's saying, threaten to beat them up.  At which point they no longer have the right to speak.

This is a thorny problem in First Amendment law.  It's also the real problem of adopting rules like the one Judge McKeown creates/applies here.  She's more than smart enough to realize this fact.  But rather than confront the issue head on, she instead simply ignores it.

Which is unfortunate.  I'd have liked to see her defend the rule.

Johnson v. Prasad (Cal. Ct. App. - Feb. 25, 2014)

The Swimming Pool Safety Act requires many residential pools to have various safety features (e.g., alarms or a fence).  But it only applies to pools constructed or remodeled after 2007.  So lots of pools aren't covered.

Landlord rents a single family home to Tenants.  The property has a backyard pool.  Tenants get together at the home with members of their family.  Grandmother forgets to close the back sliding glass door, which is the only access to the pool from the house.  Four-year old Allen slips out of the home, unnoticed, and drowns in the pool.

Is Landlord potentially liable for the child's death?

Justice Robie and the Court of Appeal hold:  Yes.

According to the Court of Appeal, a jury could reasonably conclude that a landlord owes a duty to put up a net or other safety features, notwithstanding the fact that the statute doesn't require it.  The Court of Appeal simultaneously holds that a jury could also reasonably go the other way.  It's a jury question.  No summary judgment.

A critical case for a huge number of people in Southern California.  As well as throughout the state.

Wednesday, February 26, 2014

Garcia v. Google (9th Cir. - Feb. 26, 2014)

I'm sure you'll see this morning's opinion by Judge Kozinski talked about in various places, since it's a high-profile case.  The Ninth Circuit, over the dissent of Judge Randy Smith, orders Google to remove "Innocence of Muslims" from YouTube on the ground that one of the actors, Cindy Garcia, is entitled to a preliminary injunction because she has a copyright in her performance and was lied to when she was told she was acting in a "regular" movie rather than in an anti-Islamic film.

For that reason, I'm going to largely leave the case alone.  Apart from merely mentioning it.

The Ninth Circuit's clearly making new law here.  Whether it's good (versus bad) new law is another question.  But it's clearly new.

I think Judge Smith has a pretty good point that (1) district courts are given a pretty large amount of discretion with preliminary injunction decisions, and it's fairly aggressive for the Ninth Circuit to step in and reverse the district court here, and (2) mandatory injunctions -- like ordering Google to take down the movie -- are subject to even more scrutiny.  So even apart from the merits, procedurally, what the Ninth Circuit is doing here is definitely on one side of the spectrum.

That said, if there was ever a case in which a Court of Appeals wanted to make new law that gave actors copyright interests in their performance, this is surely the best vehicle imaginable.  An actress gets paid $500 to have a tiny role in a movie she's told is called "Desert Warrior" and it turns out to be an anti-Islam movie that subjects the actress to a fatwa.  You can see why those facts might potentially impel a tribunal to want to protect the plaintiff.

You also know what they say about good facts making bad law.

It'll be interesting to see if this one stands.  In the meantime, good luck watching this thing on YouTube.  This is what you'll see.  Since the Ninth Circuit enters an immediate order that compels Google to take it down.

Of course, information wants to be free.  And it's virtually impossible to sue everyone.  So you can still see the full movie in plenty of places.

Robert v. Stanford University (Cal. Ct. App. - Feb. 25, 2014)

I talked yesterday about how untoward it might be it seek to recover $20,000 in costs from a former employee who made less than $12,000 a year.

Here's the flip side of that equation.

It's facially similar.  Plaintiff brings a race discrimination claim and loses at trial.  Defendant -- Stanford University -- then seeks (and obtains) an award of $100,000 in attorneys' fees for the costs it incurred defending against the lawsuit.  Plaintiff seeks to reverse that award on the grounds that he's essentially impoverished.

That's where the similarities end, however.

Here are the two facts that radically distinguish the result of these two cases, and why the court rightly refused to award costs to the defendant in the case I discussed yesterday and yet (rightfully) awards attorneys' fees to the defendant in the present case:

(1)  The lawsuit in yesterday's case (Foster Farms) was expressly a "close" one.  By contrast, the court (rightly) found that the present case (Robert) was "without merit and was frivolous and vexatious."  There's a world of difference between cases that are close and cases that are utterly frivolous.

(2)  Somewhat related to (1), Foster Farms involved a (somewhat) sympathetic plaintiff who was fired from her job for visiting her sick father in Guatemala.  By contrast, Robert involves a plaintiff who was fired from his job at Stanford for far less sympathetic conduct.  The Court of Appeal's current opinion gives only a synopsis of the underlying facts, so here's a more detailed version -- one that was set forth in an earlier appeal by Robert from the restraining order that Stanford got against him (and that he then unsuccessfully appealed):

"Appellant Francis Robert, formerly a Stanford University employee, appeals after the trial court entered a restraining order against him under Code of Civil Procedure section 527.8 directing that he refrain from, among other things, stalking or following Sarah Noftsinger, who was also in Stanford's employ. Concluding that his claims of error have been forfeited on appeal and that he has not demonstrated reversible error in any event, we affirm the order. . . .

Noftsinger, in her twenties, began working as an assistant coach for the Stanford University women's soccer team in or around 2004. Robert, some 25 years her senior, had worked since 1998 in the Stanford admissions office processing athletic admission applications. Robert, an avid Stanford sports fan, frequently associated with people on campus connected with athletics and he attended many Stanford sports events, initially meeting Noftsinger through these connections.

Noftsinger and Robert became further acquainted with each other at work, although their employment duties or functions did not particularly overlap. At first, Noftsinger considered Robert simply as a work acquaintance and she politely refused him when he made overtures toward her that she perceived to be of a romantic nature. But, as time went on, it became clear that Robert was preoccupied with her. He would show up at her office sometimes many times a day. He would appear in parking lots where her car was parked. He communicated electronically with her, sending many instant messages most of which Noftsinger would just delete. Sometimes his messages and communications included references or information concerning her personal life that she had not disclosed to him. She would block text messages from him but he would find a way around that. He would appear at bars and restaurants where she frequented and stare at her. He gave her presents. He would follow her while driving and would drive past her house. In May 2006 when she was in the hospital having had surgery, he entered her room and took a photo of her while she was asleep or unconscious.

Over time and into 2007, Roberts preoccupation with and stalking of Noftsinger became pervasive and more aggressive, even ang[ry]. He referred to massacres that were going to occur and accused Noftsinger of treating him like a white Southerner treats a nigger. She attempted to ignore him and told him to leave her alone but in the spring of 2007, Noftsinger reported Roberts behavior to one of the Stanford coaches. Stanford conducted a full investigation, hiring an outside psychologist, Stephen White, to perform a workplace threat assessment. White interviewed Robert and Noftsinger, among others, and reviewed e-mails and messages that Robert had sent to Noftsinger. White concluded that Robert was strongly preoccupied with Noftsinger, that he had engaged in a persistent pattern of unwelcome pursuit, and that in spite of potentially adverse employment consequences to himself, Robert would have a very difficult time staying away from her. As a result of the investigation, in May or June of 2007, Stanford issued a stay-away order directing Robert to stay away from Noftsinger both on and off campus and to cease contacting her. Robert was told that if he did not comply, his employment would be terminated.

After the issuance of the stay-away order, Noftsinger made arrangements to move from Palo Alto to San Francisco. Her father and some friends agreed to help her move her belongings. On her moving day, Noftsinger saw Robert drive by her house while she loading belongings into her car. On route to her new home, those helping Noftsinger move observed Robert following in his car.

Then, late in the evening of January 22, 2008, while Noftsinger and a friend were walking Noftsinger's dog outside her San Francisco home, they saw Robert walking toward them on the street. The way he was staring at her and attempting to cover his face with one hand while keeping the other hand in his pocket alarmed Noftsinger and she thought he might have a gun. Afraid, Noftsinger and her friend made their way inside her apartment as quickly as they could. Noftsinger reported to Stanford that Robert was still stalking and harassing her despite the stay-away order. Although Robert had been harassing her for some time, this was the first time that Noftsinger had been afraid he had a gun. She was so fearful that she left town for three days after the incident.

Stephen White spoke with Noftsinger about the incident and he remained of the view that Robert would persist in his preoccupation with Noftsinger, despite the threat of termination of his employment. Also, Robert was caught lying when Stanford personnel investigated the incident. And it was not the first time that Robert had been observed in violation of the stay-away order. As a result, Stanford terminated Robert's employment."

That's the employment termination that Robert claims was "discriminatory" on the basis of his race (Native American).  A claim for which the trial court found he had no evidence and that Stanford was forced to defend -- and Ms. Noftsinger was forced to endure -- at trial.

You're going to get spanked for attorney's fees for that.  Even if you're indeed poor.  And no one other than you is going to complain.

(Moreover, plaintiff -- Francis Robert -- should count himself lucky (in my book) that unlike Foster Farms, Stanford did not file a cross-appeal about the trial court's decision to only award Stanford $100,000 despite the fact that it incurred $235,000 in fees.  Stanford did the right thing.  Despite the fact that it might well have won a cross-appeal.)

Tuesday, February 25, 2014

Escriba v. Foster Poultry Farms (9th Cir. - Feb. 25, 2014)

Maria Escriba worked in a Foster Farms poultry processing plant in Turlock, California.  I dare anyone to attempt to enjoy that job.  She took off four weeks during Thanksgiving and Christmas of 2007 in order to visit her sick father in Guatemala.

There was a dispute about whether Escriba asked for unpaid family medical leave or just a two-week vacation.  By contrast, there's no dispute that when Escriba failed to show up or contact work for three straight days, she was terminated.  The case was complicated both because it was a "he said/she said" case about what Escriba requested when she took off work as well as because lots of the supervisors at Foster Farms don't speak Spanish.  Which makes it difficult because you can probably guess what language is spoken by many of the people (including Escriba) who work on the Foster Farms line pulling feathers off of chickens.

Which is why we have juries.  The jury ultimately found in favor of Foster Farms.  From my reading of the evidence, that's an entirely reasonable conclusion.  The Ninth Circuit agrees.

So that's the merits.  Escriba loses her appeal.

But Foster Farms cross-appeals the district court's refusal to award it over $21,000 in costs.  It's true that the prevailing party is normally entitled to costs.  But the district court (correctly) viewed this case as a close one, and one that related to an important workplace issue that might affect lots of people even though it was not a class action.  The district court also correctly noted that awarding costs would essentially bankrupt the not-wealthy-at-all Escriba.  Which is why it exercised its discretion to refuse to award costs.

The Ninth Circuit affirms that decision as well.

I've got no problem with the Ninth Circuit's decision.  I just wanted to point out that Foster Farms hired high-priced attorneys from Mayer Brown in Washington DC to bill a nontrivial number of hours (almost certainly resulting in legal fees well over $20,000) in order to attempt to convince the Ninth Circuit to impose a $20,000 cost award against a former employee who worked in its poultry processing plant and was paid less than $12,000 a year.  This strategy was undertaken by a company that had approximately two billion dollars in revenue during the years in question.  And which proclaims on its web site that its principal "Values" are that "We work with great people.  They're family to us" and that, accordingly, "It's important to us to treat our employees . . . with fairness and respect."

Remember that the next time you're buying chicken in the grocery store.  Because I know that I hire high-priced lawyers to seek a $20,000 cost award against my family members who make less than $12,000 a year all the time.

That's the way I show them love.  And demonstrate to the world my values.

Hilton v. Superior Court (Cal. Ct. App. - Feb. 25, 2014)

Paris Hilton's brother gets good news from the Court of Appeal.

Writ granted.  No multimillion dollar restitution order.  Released from probation.

The California Appellate Report:  All the celebrity news that's fit to print.

People v. Rosalinda C. (Cal. Ct. App. - Feb. 24, 2014)

I'm fairly confident that Rosalinda C. is indeed still mentally disabled.  She's been committed to California Psychiatric Transition for the past five years, and seems to continue to have schizophrenia.

But isn't it interesting how one tends to interpret behavior depending upon what one expects.

For example, as part of establishing how Rosalinda is still mentally disabled, the Court of Appeal notes that "Rosalinda had recently begun to exhibit other symptoms indicating poor impulse control, such as urinating on herself on purpose in order to achieve other ends, like avoiding group therapy, and ensuring she was the last in line for medication or meals."  I don't know.  Honestly, that sounds like a pretty good strategy to me.  If I was institutionalized and wanted to get out of mandatory group therapy, peeing on myself would probably do the trick pretty darn well.

Or take the next sentence:  "Rosalinda was digging in the trash to look for food, and she sometimes ate out of the trash."  Sounds pretty crazy, right?  Until you realize that when she was committed, Rosalinda tipped the scales at 300 pounds.  At which point she was promptly (and understandably) put "on a restricted-calorie diet and has lost significant weight."  Maybe she's eating stuff in the trash can because she's really hungry and they won't give her the food she wants.

Which the Court of Appeal (and the medical staff) notes is a possibility.  But discounts because "Dr. Turpin
had tried other ways to help hungry patients, such as encouraging them to drink water, or giving them extra portions of vegetables."  Oh, yeah.  Because I know from personal experience that all I have to do to get my kids to stop complaining about how "starving" they are is to pour them another glass of water and dump a pile of institutionally prepared vegetables on their plate.  Works every time.

As I said, it may well be that Rosalinda has some serious problems.  But we should nonetheless be careful that we're not interpreting the things we see merely in the way we expect to see them.

Monday, February 24, 2014

Ennabe v. Manosa (Cal. Supreme Ct. - Feb. 24, 2014)

This is why you don't allow your minor daughter to throw parties at your house while you're away.  Or at least why you should tell her not to serve alcohol.

Or, at the very minimum, why you should tell her not to charge admission to the party.  Because that's what makes the minor potentially liable here.

Another unanimous opinion by the California Supreme Court.

Friday, February 21, 2014

In Re Aarica S. (Cal. Ct. App. - Feb. 21, 2014)

After reading this case, it's hard for me to understand how prostitutes can ever get busted.  At least if they're smart and "stick to the playbook" religiously.

Prostitutes -- like drug dealers -- constantly ask their customers (upon introduction) "Are you a cop?"  We all know that doesn't work.  Undercover officers can lie.  So why criminals persist in asking that question is beyond me.  Perhaps they don't know the relevant doctrine.  They clearly should read more blawgs.

But what prostitutes do know is that the police, including undercover police, can't "have their cake and eat it too."  Which, in this context, means that the police aren't permitted to commit sexual acts with prostitutes, which includes (though is certainly not limited to) either touching the prostitute sexually or having the prostitute touch the officer sexually.

So what smart prostitutes do when they're picked up off the street -- including the 17-year old here -- before "sealing the deal" is to touch the would-be customers' genitals.  The officer here was able to get around this approach by blocking the streetwalker's hand when she made her move.  But the prostitute, undeterred, then told the would-be-john-slash-maybe-a-cop to touch her.  Which is a pretty good way to figure out if someone's undercover.  A "normal" guy looking to buy a sex act will presumably have no problem taking a free promo.  Whereas a cop knows that's not allowed.  So it's a pretty good litmus test of whether you should feel comfortable sealing the prostitutorial deal.  (That's probably not a word, but I like it anyway.)

The officer here smartly circumvented this latest test by briefly touching the prostitute on the knee.  An act that's apparently permitted by the rules and that the prostitute erroneously concluded meant that her customer was not a cop.  So good police work.  By contrast, bad job by the prostitute.

But even though everything "worked out" here, I wonder about the underlying "rules".  I presume there are plenty of smart prostitutes and/or pimps out there.  Surely some of them know to insist upon actual intimate touching before sealing the deal.  And if some of them know, why doesn't that knowledge get diffused in the relevant communities fairly quickly?  Or why doesn't the "cream rise to the top" and the non-busted prostitutes have a competitive advantage over busted ones, leading (over time) to uniformity of knowledge?  Why doesn't the market/"invisible hand" doesn't seem to work here?

I have a similar reaction to drug dealers.  If I was looking to sell a kilo of coke, for example, I'd make darn sure the guy wasn't a cop by forcing him to do a line or two first.  If the guy refused, no deal.  No exceptions.  Sure, there's still always the risk that he's an informant, or is a true criminal who will nonetheless later roll over on you.  But are you really that hard up for a buyer that you're going to take what seems to me to be a pretty high risk that a coke buyer who doesn't do coke is actually a cop?

I'm certain that creative police officers will invent ways to get out of such a "trap".  Like the cop here who blocked the hand and touched the knee.  Maybe they'll simply do whatever's required by the bad guy and then thereafter commit perjury.  Or maybe they'll be even more creative; I've heard tell of one undercover officer who refused to consume a portion of the relevant drugs by saying that she was pregnant.  Smart.

But if the dealer or prostitute or whatever internally imposes a uniform rule that s/he unflaggingly follows in order to screen out undercover cops, it seems like that'd work pretty well.

So I wonder why they don't.  (Perhaps, of course, they do.  And those people simply don't get busted as much, which means I don't read about them.)

Regardless, it's a neat little business.  Where each side has it's own "rules" as well as responsive ones in light of the other sides'.

Gilmore Bank v. Asia Trust New Zealand Ltd (Cal. Ct. App. - Feb. 21, 2014)

A California resident has a $3.3 million arbitration judgment entered against her.  She's got over $5 million in assets, but as the arbitration proceeds (and as her liability becomes clear), she starts frantically forming trusts and other entities and disbursing her assets to them in an attempt to stop plaintiffs from collecting on the eventual judgment.  One of her big transfers is to a New Zealand entity that the debtor solicited via e-mail and that she selected to take title to an annuity to be issued on her behalf by a Swiss insurance company.

When the debtors find out about all of this, they sue (among others) the New Zealand entity, claiming that it's required to turn over the assets that were fraudulently concealed.  That entity -- which is represented by the same lawyers that represented the debtor -- moved to quash the summons, claiming that they aren't subject to personal jurisdiction in California.

The Court of Appeal properly disagrees.  If you've got a deliberate contact with the forum state -- as the New Zealand entity does here -- that creates jurisdiction.  At least in this context.

I was somewhat surprised that Justice Ikola's opinion nowhere cites McGee v. International Life Ins. Co., a 1957 opinion from the United States Supreme Court that seems pretty on point.  In McGee, a life insurance company entered into a contract with a California resident, and that single contact was deemed sufficient to create jurisdiction given that the defendant had "purposefully availed" itself of the forum state.  If that's true in McGee, it seems equally (if not more) true here, in which a third party enters into a contract with a nonresident in order to circumvent a judgment.  There's purposeful availment in both cases.  Indeed, here, given that the debtor is in California, the relevant trusts (created by the debtor) are in California, the trustee of the trust (the debtor's niece) is in California, and the assets from the annuity are sent by the New Zealand entity to California, I think the present case is even stronger.

McGee wasn't cited by the appellant until its reply brief, so perhaps that (partially) explains the omission.  But since Justice Ikola spends a decent amount of time discussing lower federal court cases (and explaining why they're not binding on a California court), I think it might be valuable to discuss the closest United States Supreme Court case on point.  Not only because it supports the Court of Appeal's opinion.  But also because that's the one federal authority that is binding on a California tribunal.

Regardless of the omission, however, the Court of Appeal reaches the correct result.  Both jurisprudentially and as a matter of justice.

Thursday, February 20, 2014

People v. Rodriguez (Cal. Supreme Ct. - Feb. 20, 2014)

It generally takes a fair amount of violence to convince a jury to sentence a woman to death.  Torture.  Mass murder.  Stuff like that.  Things you don't see very often.

So when I read this opinion, and saw that Angelina Rodriguez was sentenced to death for poisoning her husband, I was initially somewhat surprised.  Sure, that's a special circumstance, so made her eligible for the death penalty.  But that was enough to push the jury over the edge?

No.  Not just that.  There was also the fact that defendant had forced her husband to buy a $250,000 life insurance policy just before she killed him.  That's another special circumstance.  But still.  That's enough to sentence a woman to death?

Probably not.  But then there was the fact that she had previously tried to kill him by disconnecting the gas lines in her house, which she hoped would either poison him or cause the house to explode.  That's not nice either.

Oh, yeah.  And then she tried to dissuade a witness from testifying against her at her murder trial.  Including evidence that suggested that she tried to have the witness killed.  That's not good.  You can see why the jury didn't really like her.

But the kicker, I think, was what transpired seven years previously.  Defendant had a 13-month old daughter named Alicia.  Defendant took out a $50,000 life insurance policy on the infant.  Without telling her husband. The kid then choked to death on a Gerber pacifier.  Defendant sued Gerber, and got a settlement of almost three quarters of a million dollars.

You know where this is going, right?  Defendant was the only one in the house.  There's substantial evidence that defendant purposefully ripped the pacifier apart and shoved one of its pieces into her baby's throat in order to kill her.  Deliberate.  Malicious.  Viciously premeditated.

Which makes me more than understand why the jury sentenced her to death.  A decision that the California Supreme Court -- not surprisingly -- sees no need to disturb.

Wednesday, February 19, 2014

Centinela Freeman Emergency Medical Assocs. v. Health Net (Cal. Ct. App. - Feb. 19, 2014)

I like Justice Croskey's opinion.  It's pretty darn comprehensive, and it smartly addresses a complicated issue.  I feel like I understand this stuff a lot better as a result of having read it, and I'm persuaded that the Court of Appeal correctly analyzes the relevant policy considerations.  It really does justice.

That said, I tend to think that I might have even gone further than the Court of Appeal did.  Despite the fact it wasn't necessary to do so in order to resolve this appeal.

Emergency physicians are in a tough situation.  They're (rightly) required by statute to provide services to people in emergency need, regardless of ability to pay.  In turn, HMOs are rightly required to reimburse these physicians for the emergency services they perform on behalf of their enrollees.  Even if the HMO doesn't have a contract with these physicians.  Makes total sense.

Sometimes HMOs pay intermediaries -- called independent practice associations (or IPAs) -- to perform their health care obligations to enrollees.  Fair enough.  California law allows that, and that seems just fine to me.  If the HMO wants to delegate its duties to someone else, that's its call.

But what happens when the HMO delegates its duty -- including its duty to reimburse emergency physicians -- to an IPA, and then the IPA goes belly up?  Who gets stiffed:  the HMO or the physician?

The Court of Appeal holds that the HMO gets stuck with the bill if the HMO knew or should have known that the IPA was in financial distress.  So reverses the trial court's grant of a demurrer.  That decision seems right.

As far as it goes.

But I don't know why the HMO shouldn't be stuck with the bill regardless of whether the HMO knew that the IPA was financially unstable.  It was the HMO's decision to delegate.  The emergency physician had no say in the matter.  The HMO could have investigated the IPA.  The physician couldn't.  The HMO got paid by its enrollees.  The physician, by contrast, fronts the services.  As between these two entities, I don't see any reason why the physician -- who had utterly no say in the matter (much less benefited therefrom) -- should be stuck with the consequences of the HMO's unilateral decision to delegate its responsibilities to an IPA.

If I'm a contractor building a house and one of my subcontractors fails to complete its tasks and goes belly up, I'm on the hook, not the owner of the house.  If I delegate to a colleague my obligation to teach a class and he flakes, it's my bad, not the students'.  When you delegate, it's your responsibility to see that things go right.  And your obligation to pay if they don't.  I don't see any reason for a different result here.

I'm okay with California law permitting an HMO to delegate its tasks to an IPA.  But I don't think that immunizes the HMO if the IPA fails.  Surely it wouldn't mean, for example, that the patients who paid the HMO suddenly weren't entitled to the health care coverage for which they paid, right?  If the IPA's failure doesn't immunize the HMO (which got paid) from delivering services to its enrollees, I don't see why the same thing shouldn't be true for the emergency physicians who delivered such services.  The HMO suffers the consequences of its decisions.  Not someone who had nothing to do with 'em.  Regardless of whether the HMO "knew" that the IPA was financially unsound.

I surely don't claim to be an expert in this area.  But I nonetheless have a sense of which party should be justly stuck with the bill.

Blixseth v. Yellowstone Mountain Club (9th Cir. - Feb. 18, 2014)

Let's see.  It's a hard-core, blistering opinion.  One that repeatedly slams not only the appellant (e.g., from the first paragraph of the opinion:  "Blixseth has now filed a blunderbuss appeal."  Or from the last paragraph:  "Blixseth's claims are a transparent attempt to wriggle out of an unfavorable decision by smearing the reputation of the judge who made it), but also his counsel.  By name.  (Check out footnote 2.)  Slams that the author makes sure get set forth in a published opinion.

The panel consists of Judges Kozinski, Paez and Berzon.  It's a per curiam decision.

Which means, of course, that we can only wonder baselessly about who the actual author of this sharply worded opinion could possibly be.

Tuesday, February 18, 2014

Nakano v. United States (9th Cir. - Feb. 18, 2014)

Think it'd be fun -- or at least remunerative -- to become the CFO of a big company?  Maybe.  Though maybe you'll get personally whacked with a $11+ million tax bill once the company files for bankruptcy and isn't able to pay the IRS.


Lesson for the day:  If you have anything whatsoever to do with a company, make sure you pay the IRS.  Because it can be ruthless.

Concepcion v. Amscan Holdings (Cal. Ct. App. - Feb. 18, 2014)

Days after the California Supreme Court held that it's illegal to record ZIP codes on credit card receipts, a variety of law firms filed duplicative class actions that alleged that Party City did so.

Plaintiffs took no discovery.  There was no motion for class certification.  At a one-day mediation, the parties settled for coupons to the class, and the lawyers sought $350,000 in fees.

Plaintiffs' attorneys generally described their activities, but did not submit time sheets.  The trial court thought the amount of work was high given the nature of the litigation, but permitted plaintiffs to submit their detailed time sheets in camera, without production to the other side, in order to justify the requested fee.  After plaintiffs did so, the trial court changed its mind, and awarded the full amount of the requested fees.

You can't do that.

Parties generally get to see what the other side submits.  That way we can have a fair evaluation of the evidence.  If you want to rely on time sheets to justify your fee, you've got to produce them to the other side.  Not just to the court.

Monday, February 17, 2014

In Re Marriage of Greaux and Mermin (Cal. Ct. App. - Feb. 14, 2014)

Here's a neat little case.

Husband and Wife have a small business.  They sell "rhum agricole" to retail establishments.  Something I'd never heard of.  But apparently it's just rum distilled from sugar rather than molasses.  Something that started in the French West Indies.  Anyway, Husband busts his hump in the business, and Wife does the same.  She is the key marketing person and the face of the brand.  Everything's going fine.  Hard work, but fine.

Until Husband and Wife get divorced.  At which point Husband's trying to keep the business alive, but Wife is essentially happy to have it destroyed.  Talking to employees and customers, sewing doom and gloom, etc.

The trial court ultimately splits the community assets and denies spousal support to either side, but also enters an order that says that Wife can't compete with Husband in this business for five years.  Presumably thinking that it's such a niche market that, with her contacts, she could easily just "take over" the business by starting a competitor if she felt like it.  Wife appeals.

The Court of Appeal concludes (1) that family law courts are permitted to enter noncompetition orders, and those don't necessarily violate either Section 16600 of the Business and Professions Code or public policy, but that (2) trial courts should be hesitant to enter such orders, and need to do so for sufficient reasons and on an adequate record, which didn't exist here.  So remands.

That seems a fair way to resolve this relatively unusual confluence of family law issues and noncompetition agreements.

The business (and divorce) are in Marin County, the fancy last names of the parties are "Greaux" and "Mermin," and the Court of Appeal decides this case on Valentine's Day.  All of which figures.

Friday, February 14, 2014

U.S. v. Gonzalez-Monterroso (9th Cir. - Feb. 14, 2014)

Here's yet another example of what weird results one sometimes gets from trying to figure out under the "categorical approach" whether a particular crime is a "crime of violence" under the sentencing guidelines.  Because the Ninth Circuit holds that included in the list of crimes that aren't necessarily crimes of violence is a conviction for attempted rape in the fourth degree in Delaware.

It's also proof that you can't necessarily tell the nature of the crime just from the label that the state legislature as appended to it. The doctrinal equivalent of not being able to tell a book by its cover.

Bay Cities Paving & Grading v. City of San Leandro (Cal. Ct. App. - Feb. 13, 2014)

"I can't believe the City gave that contract to the lowest bidder!  That's outrageous!!  It should have given the bid to me, even though my $5 million-plus bid would have cost the City over a half-million dollars more!  All because the lowest bidder's bid accidentally left out page 33 of its bid -- a page that's about the terms of a bid bond.  Even though the lowest bidder promptly gave the City page 33 once it realized it was missing, that inconsequential error should entitle me to win the bid!!"

No it doesn't.

Thursday, February 13, 2014

Vosgien v. Persson (9th Cir. - Feb. 13, 2014)

I have little to say about Judge Fletcher's opinion other than it's right, right, and right.  It's a nice, short opinion that's perfectly and concisely reasoned.  Well written.  Well done.

It's one of those rare cases in which a defendant gets habeas relief due to "actual innocence".  Though (1) we're talking about "legal" innocence here, and (2) defendant still doesn't get a ton of the relief that he's seeking, and will still have to spend a boatload of years in prison.

But as far as the opinion goes, it's spot on.

Peruta v. County of San Diego (9th Cir. - Feb. 13, 2014)

It's not that I don't appreciate Judge O'Scannlain's 77-page majority opinion.  Or the dissent of Judge Thomas, which runs the case to a full 127 pages.  They're both exhaustive.  They're both coherent.

Each articulates a distinct view of the Second Amendment.  Judge O'Scannlain holds that San Diego can't require "good cause" in order to grant a permit to carry a concealed weapon.  Judge Thomas disagrees.  There are lots of amici on both sides.

Regardless, take a look at these 127 pages while you can.  Because they're not going to last in published form for long.  This case is going en banc.  Where -- as here -- the draw will definitely matter.

Even if the case didn't go en banc (which it will), the opinions still wouldn't last.  Judge O'Scannlain expressly disagrees with the holdings of the Second, Third and Fourth Circuits.  So creates a circuit split.  In a high-profile case.  The Supreme Court would step in even if the en banc court didn't.

Which it will.  And should.

Wednesday, February 12, 2014

People v. Simpson (App. Div. - Jan. 24, 2014)

Erica Simpson crosses over a double yellow line on the south 405 into the HOV lane.  In doing so, she almost hit Ernie Schoop, who has to brake suddenly in order to avoid a collision.

Unfortunately for Simpson, Schoop's a traffic cop for the LAPD.

So Schoop gives Simpson a ticket for going over the double yellow line.  Simpson fights it in traffic court, but loses.  At the trial, after all the evidence, the judge (Deborah Christian) tells Simpson that she's going to find her guilty.  The judge then asks the cop whether the lane change was also unsafe, and the officer says "Yes."  At which point the judge then adds on a charge of making an unsafe lane change, and immediately finds Simpson guilty of that offense as well.

You can't do that.

There's a reason we split judicial and executive power.  Judges decide cases.  They don't (with rare exceptions) institute charges.  That's what the executive does.

So it's okay to fine Simpson for the yellow line violation.  But the unsafe lane change gets reversed.

Justice accomplished.

Tuesday, February 11, 2014

Burquet v. Brumbaugh (Cal. Ct. App. - Feb. 11, 2014)

I'm not really sure what defendant/appellant is thinking here.  Or why he thinks it's worth (1) pursuing an appeal, and/or (2) hiring an attorney to do so.

It's not that appellant is the worst ex-boyfriend in the history of the universe.  He's not.  By far.

But he nonetheless can't let go, and when you keep trying to communicate with someone who's repeatedly asked you to leave them alone, and especially when you show up at her place unwanted, that's enough for a restraining order.  Entirely appropriately, I might add.  As the Court of Appeal (rightly) holds.

Move on, Randy.  Let it go.  Legally as well as otherwise.

U.S. v. Zepeda (9th Cir. - Feb. 10, 2014)

Judge Paez (joined by Judge Fernandez) adopted a particular view that reversed the defendant's convictions and let him go free on those charges.  Judge Watford, in dissent, articulated a different view that would affirm the defendant's conviction.  I suggested a third path that would reverse the conviction and yet remand for a new trial.

The Ninth Circuit decides to take the matter en banc.  We'll now see which alternative the court finds most persuasive.

Monday, February 10, 2014

People v. Lipsett (Cal. Ct. App. - Feb. 10, 2014)

Did you realize that it counted as "carjacking" to steal someone's dirt bike when it's sitting in a driveway at 4:00 a.m. unattended?  Or that when the owner subsequently comes out to confront the thief, and his dog (a big German Shepherd) follows thereafter, it counts as a threat to shoot "a person" under the criminal threats statute when an accomplice says "Shoot the dog"?

I certainly didn't.  But it's true.

Smith v. Swarthout (9th Cir. - Feb. 10, 2014)

Sometimes you take a flyer.  You know that the "book" says that you should strike a particular juror, but you decide to let the person on anyway.

It was a bad bet by defense counsel.  Defendant's charged with assaulting his wife and forcing her to take numerous Benadryl, Advil and ibuprofen pills in what he told police was her attempt to commit suicide.  A story that collapsed once his wife recovered in the hospital and told everyone what really transpired.  Oops.

He's facing lots of time in prison.  During voir dire, one of the jurors -- Juror No. 6 -- is a retired lieutenant from the NYPD.  Everyone in the universe assumes that the defense is going to bounce the guy.  But counsel says:  "“I think this is going to surprise Juror No. 6. We have a jury. We’ll accept this jury.”


Turns out that Juror No. 6 isn't merely a retired NYPD police officer.  His daughter also lives three houses down from the defendant and the victim.  He's talked about the case with her.  They know the defendant and the victim.  Juror No. 6 knows about the defendant's priors.  He's personally seen the defendant walking around the neighborhood.  A fact that Juror No. 6 distinctly recalls because he "remember[s] commenting, “Geez. There’s a black actually living in his neighborhood.”  Juror No. 6 himself lives three blocks away from the home of the defendant and the victim.

None of which he tells anyone in voir dire.  Despite the fact that this information is clearly relevant to the trial judge's inquiries of the prospective jurors.

But that's not all.  Even after all of this gets discovered -- and the trial judge (for whatever reason) refuses to bounce Juror No. 6 -- then, during deliberations, this juror conducts his own investigation outside of the jury box (reading pill labels, researching the internet, etc.) and tells other jurors about his discoveries.  Which the foreperson then discloses to the judge, since everyone knows that's not okay.  Juror No. 6 admits to some of this misconduct, but claims (as to other parts) that he just "told" the other jurors that "they" could do some internet research if they wanted to discover particular facts.  The other jurors, by contrast, clearly state that that's not what Juror No. 6 said, but instead told them directly about his discoveries on the internet.

Juror No. 6 eventually gets bounced.  But the trial judge nonetheless allows the jury -- including Juror No. 6 -- to render a guilty verdict on two of the four counts.

The United States Supreme Court has held that it's not reversible error to accept a verdict from a juror who gave "honest though mistaken" answers during voir dire.  To hold otherwise, the Court held, would expect far too much perfection from our legal system.

By contrast, despite the fact that many people desperately try to get out of jury service, sometimes, you've got someone who's trying desperately to get on.  In my opinion, that's exactly what transpired here.  Juror No. 6 was desperate to get on the jury of his black neighbor previously charged with attempted murder and now charged with assaulting his wife.  He knew he couldn't lie about being a former NYPD officer, but what he could do was to hide everything else, including but not limited to his contact with and knowledge of his neighbor.  Which is what he did.  And, even when caught, he submitted evasive answers, and downright lies, in an attempt to stay on the jury and be able to convict.  Which he did.

It's nonetheless a testament to (1) our systemic "trust" in jurors (and/or unwillingness to call them liars), (2) the limitations of appellate review, and (3) the constraints to AEDPA that the Ninth Circuit affirms the refusal to grant habeas relief here.  The California courts made an "implicit" (*cough*) finding that Juror No. 6 was merely acting improperly, not deliberately.  Appellate courts, and especially federal courts under AEDPA, cannot deviate from this "reasonable" finding.  Convictions upheld.

The Supreme Court wasn't kidding when it said that justice ain't perfect.

Friday, February 07, 2014

U.S. v. Hammond (9th Cir. - Feb. 7, 2014)

The district court judge thought it would violate the Eighth Amendment to sentence two ranchers to a mandatory minimum five years in prison for setting a backcountry fire on their own property (in one case, as a backfire to stop an existing fire caused by a lightning strike) that accidentally escaped and burned a small portion of public land.

The Ninth Circuit, by contrast, thinks that such a sentence is just fine.  The panel thinks this sentence is by no means "grossly disproportionate" to the offense.

I can't help but wonder whether the experience -- including but not limited to the location -- of the underlying judges might explain at least part of this intellectual divergence.  The district court judge, Michael Hogan, has lived in or around Portland [and Eugene], Oregon nearly his entire life, and grew up in Oregon City, Oregon.  His experience with the wilderness, including but not limited to fires therein, might be starkly different than, say, the author of the Ninth Circuit's opinion, who was born in St. Louis and who has lived a large portion of his adult life in Detroit, Michigan.  Presumably there are far fewer ranches, controlled burns, and wildfires in Detroit than in Oregon.

So maybe that explains part of the dynamic.  The fact that the author of the panel opinion spent a great deal of his adult life as a U.S. Attorney might explain a portion as well.

I'm sure there are innumerable other relevant factors in play as well.  But my guess is that Holmes was nonetheless onto something when he famously said:  "The life of the law has not been logic; it has been experience."  Including but not limited to here.

In Re Marriage of Boblitt (Cal. Ct. App. - Feb. 7, 2014)

There have been a fair number of published opinions from the California Court of Appeal during the past week about marital dissolution actions.  Which I guess makes sense.  What with Valentine's Day coming up and all.

Today we learn that it's an often an incredible hassle to get divorced when the couple runs a small business.  Or multiple small businesses.  The resulting fights over these martial assets are sometimes a complete nightmare.  Take a look.  And recoil in horror.

So it's a frustrating, depressing, and money-wasting process for Mr. and Mrs. Boblitt to get divorced.  But at least it's not as bad as the process that their virtual namesakes -- Mr. and Mrs. Bobbit -- went through.

Be glad for the little things.  As it were.

Thursday, February 06, 2014

In Re Marriage of Martin (Cal. Ct. App. - Feb. 6, 2014)

I wanted to mention this case if only because of its caption.  Fortunately, it's not about my marriage.  A fortunate occurrence not only because its a dissolution action, but also because it's about what happens when the husband -- and that'd be me -- dies.  Yikes!

In this case, the trial judge bifurcates dissolution ("divorce") and other matters (e.g., property), and orally pronounces the parties divorced, but takes a couple of days to enter a written finding.  During the interim, the husband dies.  Does this death divest the court of jurisdiction?

No.  CCP 669 provides that “If a party dies after trial and submission of the case to a judge sitting without a jury for decision or after a verdict upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon,” and this provision applies to dissolution actions.  In the divorce context, this means that even though one of the parties dies, as long as the court has acted on one of the issues (as here -- dissolution), the matter may continue to be litigated.  You simply substitute a representative for the dead party and keep the thing going.

The downside for the husband is that he's dead.  But let's look at the bright side of things.  At least he got to know that he got divorced beforehand (he was the one who petitioned for dissolution).  And he gets out of having to attend future dissolution proceedings.  As well as having to personally pay his divorce lawyer.

Sneaky bastard.

City of Palmdale v. City of Lancaster (Cal. Ct. App. - Feb. 6, 2014)

I'm not one of those hard-core anticapitalist "stop feeding the pigs on Wall Street" types.  Nonetheless, whenever the veil gets pulled back on how bailout money and redevelopment funds are spent, I often have a reaction that views these transactions to be (1) depressingly, (2) incompetent.  With a hint of (3) corruption.

My overall sense of these things did not change when I read this opinion.

General Motors stops making Saturn cars.  Which leaves Juan Gonzales -- the owner of Saturn of Antelope Valley -- pretty much hosed.  So Juan decides that he's going to switch his lot to Chevrolet, which requires him to get a Chevy dealership.  Chevy's fine with that, but it requires him to have (1) a very good lot, and (2) be ready really quickly.

So Juan tries to get a lot in the Palmdale Auto Mall -- one of the view places in the area that will satisfy Chevy's requirements.  But the City of Palmdale essentially refuses to rent or sell him a spot there.  It's not that Palmdale hates auto dealers.  But apparently Palmdale prefers that someone else -- Mr. Maile (who has a history of other dealerships at the Palmdale Auto Mall) -- get the Chevy dealership that's up for grabs.  Whether that's a legitimate motive I leave for others to decide.

Regardless, the only other place that Juan can possibly go that satisfies Chevy's requirements is the Lancaster Auto Mall.  You'd think that the City of Lancaster (which owns the mall) would have Juan over a barrel, since if he can't open at Lancaster, he's done.  And you'd be right.  So Lancaster's in the driver's seat.

But the Lancaster City Council nonetheless decides -- and I leave it to you to figure out the reason -- to give Juan over $600,000 in financial assistance to open up a lot at the Lancaster Auto Mall.  Which, to no one's surprise, Juan happily pockets.

One more thing.  There's a crystal clear state law -- Section 53084 of the Government Code -- that flatly prohibits cities like Lancaster from doing what Lancaster did.  Section 53084 provides that cities "shall not provide any form of financial assistance to a vehicle dealer . . . that is relocating from the territorial jurisdiction of one local agency to the territorial jurisdiction of another local agency . . . within the same market area."  And there's absolutely no dispute that Lancaster and Palmdale are in the same market area.

So let's add "illegal" to whatever other adjectives we'd like to append to the Lancaster City Council's decision to provide over half a million dollars in taxpayer largess to the desperate Mr. Gonzales.

The City of Palmdale -- to benefit itself and/or Mr. Maile -- promptly sues.  The trial court enters a preliminary injunction prohibiting Lancaster's assistance.  And Mr. Gonzales, seeing the writing on the wall, closes up his Saturn lot and immediately opens up a Chevy lot in Lancaster.  Without any apparent financial assistance from Lancaster.

That'd be a telling story even if it ended there.  A little information about how (and perhaps why) cities "race to the bottom" in fighting for business in their area.  Even when they totally don't have to.

But it doesn't.

The injunction on Lancaster providing financial assistance to Gonzales lasts for two years.  Four days before it's set to expire, the City of Lancaster pays Gonzales $300,000.  Pretty much exactly half of what it originally tried to pay him but which the court blocked.  This time -- at least ostensibly -- in return for agreeing to operate his Chevy dealership in the Lancaster Auto Mall for ten years.

Palmdale sues again.  But this time the trial court denies relief.  And the Court of Appeal affirms.  The payment isn't (at least in theory) for "relocating".  It's for "staying".  So now it's totally fine.  That this makes it completely easy to circumvent the relevant state law, and that there's pretty much no way in the word that Gonzales would ever even be able to move his lot during the next decade (since the only other acceptable location to Chevy -- the Palmdale Auto Mall -- is a no-go), is irrelevant.  The statute says what the statute says.

What a wonderful use of taxpayer dollars.  Not only the payments that Lancaster made to Gonzales.  But also the money in spent defending these various lawsuits.

Because I'm sure the City of Lancaster is just rolling in dough.


Wednesday, February 05, 2014

Greater LA Agency on Deafness v. Cable News Network (9th Cir. - Feb. 5, 2014)

The Ninth Circuit understandably decides to pass the buck on this one.

At issue in the litigation is whether the California Disabled Persons Act (DPA) -- which entitles individuals with disabilities "full and equal access" to "places of public accommodation" -- requires the folks at to place captions on all videos on the web site so that deaf people can view and understand them.  There are a number of federal district court decisions that hold that the DPA only applies to physical places of public accommodation, and thus doesn't apply to web sites.  But there's very little California authority on point.

So the Ninth Circuit certifies the question to the California Supreme Court.  Hoping that this action will mean that the latter, rather than the former, will the be focus of the massive ire that will inevitably be generated by the allies of whichever party loses the appeal.  Errr, I mean:  Hoping that this action will advance important interests of comity and federalism.

Ball's now in your court, Cal Supremes.

P.S. - Remember when I said previously that you want to be worried whenever you sue media defendants, lest they file an anti-SLAPP motion to what one might normally think is a lawsuit that has nothing at all to do with the exercise of the defendant's exercise of its First Amendment rights?  In a companion case decided today, the Ninth Circuit reiterates this message.  Holding that's alleged conduct here indeed gives rise to an anti-SLAPP suit.  So be forewarned.

Tuesday, February 04, 2014

People v. Lewis (Cal. Ct. App. - Dec. 16, 2013)

It's not that I approve of what the trial court said when it sentenced Marcellous Lewis -- a minor -- to 115 years to life.  (Essentially, LWOP -- Life Without the Possibility of Parole, since Lewis will almost certainly be long dead before his earliest parole eligibility date.)  Because, to be clear, I don't.  The trial court said:

"None of these people had done anything to you. You're just a mean, cold person. I don't know how you got that way. You said you were deeply affected by the murder of your brother and your cousin, but instead of trying to do something better, you cause more viciousness and more heartache to this community and to these people. You deserve the same amount of consideration that you gave those three human beings -- none.'"

Everyone deserves consideration as a person.  Even when, as here, that person is a rapist and murderer.  So I do not agree that a judge should display towards a defendant the same attitude defendant displayed to his victims.  That's inequitable, and unjust, pure retribution.  In its worst form.

At the same time, I must say, having read the facts of the case, that Lewis really seems like a profoundly bad person.  Really, truly, profoundly bad.  The kind of person you want to see locked up.  Potentially forever.  The kind of cold, heartless person that laypeople classically describe as a 'sociopath'.

As relevant here, Lewis is hardly the person you'd choose if you were trying to make the argument that a sentence of LWOP for a minor is unconstitutionally cruel and unusual punishment.  Given that fact, it's not at all surprising to me what the Court of Appeal does here.  And I'm virtually certain what the trial court will do on remand.  Something that the Court of Appeal allows.  And that will ensure that Marcellous Lewis will not see the outside of a prison for his entire adult life.

Monday, February 03, 2014

Reynolds v. City of Calistoga (Cal. Ct. App. - Feb. 3, 2014)

The Court of Appeal gives a pretty good summary of its opinion in the first paragraph:

"Grant Reynolds, proceeding pro se, brought a public trust action challenging operation of a reservoir by the City of Calistoga (City) insofar as that operation affected downstream fisheries (the Public Trust Suit). He then initiated a second action, the matter on appeal here, challenging the City’s use of Napa County sales tax revenue (the Tax Suit). He purported to bring the Tax Suit in the public interest and sought to make the sales tax revenues available for purposes of settling the Public Trust Suit. Reynolds is neither a resident nor a taxpayer of the City or Napa County, and he asserts no other personal interest in the City’s use of the sales tax revenue. The trial court sustained the defendants’ demurrer without leave to amend on the ground that Reynolds lacked standing to bring the Tax Suit. We agree that Reynolds lacks standing to pursue this action as a taxpayer, as a citizen suing in the public interest, or as a person suing to protect a public trust. We affirm."

I noticed from the opinion that Mr. Reynolds doesn't live anywhere near Napa County; indeed, he lives just a mile or so (as the crow flies) from my office at the University of San Diego.  From the content of the opinion and the relentless litigation, I assumed that Reynolds was an attorney.

Nope.  Just a regular person.  Though someone with a pretty interesting (and quirky) background.

Regardless, Reynolds loses.  Lawsuit dismissed.

Carter v. Caleb Brett LLC (9th Cir. - Feb. 3, 2014)

What my sixth-grade daughter's teacher said on her most recent report card (which came home on Friday) applies equally to district courts adjudicating requests for attorney's fees:

Show your work.