California Appellate Report

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

2012-01-26T12:16:00.000-08:00

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

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 It then bounces around, getting withdrawn, resubmitted and deferred until it's ultimately resubmitted in June 2011.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

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

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

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

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

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

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

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

2012-01-26T11:13:00.000-08:00

Third judge's a charm?

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

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

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

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

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

2012-01-25T12:37:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

2012-01-25T12:13:00.000-08:00

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

That one day matters. Dispositively so here.

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

2012-01-24T11:26:00.000-08:00

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

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

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

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

2012-01-23T10:36:00.000-08:00

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

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

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

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

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

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

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

2012-01-20T14:34:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

2012-01-19T12:42:00.000-08:00

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

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

Are they a "family" yet?

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

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

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

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

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

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

Right result?

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

Tough questions. Tough case.

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

2012-01-18T11:51:00.000-08:00

Wasted money.

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

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

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

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

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

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

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

2012-01-17T12:33:00.000-08:00

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

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

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

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

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

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

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

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

2012-01-13T15:00:00.000-08:00

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

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

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

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

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

Years went by without resolution, and in 2006 Transport filed separate lawsuits against each reinsurer, which lawsuits were consolidated. Following an 17-day trial, the jury quickly answered “No” to special verdict questions whether the lawsuits were timely filed, and judgment was entered against Transport.

Transport appeals, an appeal that has generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply brief. And, Transport tells us, the appeal presents two issues of first impression in California, issues 'that when decided by this court, will have an impact far beyond the confines of the specific dispute in this case. . . . [T]his court's opinion is likely to become the lead authority on issues involving the statute of limitations in reinsurance claims, not only in California, but possibly throughout the nation'—apparently inviting us to publish some lengthy opinion addressing the claimed issues. We decline the invitation, and resolve the appeal under well-settled principles of appellate review, most fundamentally the doctrine of invited error. And we affirm."

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

Double, or even triple, ouch.

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

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

2012-01-12T11:50:00.000-08:00

When it rains, it pours.

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

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

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

No surprises thus far. Happens every day.

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

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

DEFENDANT: No."

The court, over defendant's objection, allows the question. So the AUSA then asks Lopez-Alvia:

"Q: Do you recall testifying under oath on February 24th, 2010, and being asked this question by the Court—by the Magistrate Judge:

Ms. Lopez, has anyone threatened you?

And you gave—did you give the following answer:

No.

Did you tell that under oath to Magistrate Judge Guerin?

DEFENDANT: Yes.

Q: Was that a lie?

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

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

DEFENDANT: Yes."

Pretty damning, eh?

Except for one thing. Here's what the transcript of the guilty plea hearing actually says:

"COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?

DEFENDANT: No.

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

DEFENDANT: No.

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

DEFENDANT: No.

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

DEFENDANT: No."

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

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

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

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

And then Judge Bea ends the opinion with this:

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

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

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

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

2012-01-11T12:28:00.000-08:00

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

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

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

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

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

"Have it your way" indeed.

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

2012-01-11T10:17:00.000-08:00

The California Supreme Court should grant review of this case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2012-01-10T11:56:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2012-01-09T11:45:00.000-08:00

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

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

So get prepared. Just in case.

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

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

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

2012-01-05T13:55:00.000-08:00

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

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

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

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

Not especially sympathetic. Even down here in San Diego.

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

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

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

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

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

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

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

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

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

2012-01-05T11:41:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

Hmmmm. . . .

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

2012-01-04T12:18:00.000-08:00

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

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

Pretty glowing, eh?

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

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

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

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

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

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

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

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

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

2012-01-03T11:39:00.000-08:00

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

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

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

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

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

Which I get.

Hepting v. AT&T (9th Cir. - Dec. 29, 2011)

2011-12-30T11:34:00.000-08:00

The merits are interesting, and involve complex constitutional arguments about whether it was permissible for Congress and the Attorney General to immunize communication companies for assisting the United States in its massive eavesdropping (without a warrant) of e-mail and telephone traffic after 9/11. The Ninth Circuit, like the district court, says "Yes."

But wholly apart from the merits, check out the caption. Hard to find one that's longer. Nearly 20 pages.

Lots of effort went into this one. Lots.

Henry v. Red Hill Evangelical Lutheran Church (Cal. Ct. App. - Dec. 9, 2011)

2011-12-29T08:17:00.000-08:00

Sara Henry gets hired to teach preschool kids. It's at an evangelical Lutheran preschool -- I didn't even know those existed, to be honest -- but she's up for the job. She does well. Within six years, she's the director of the program.

She's not an evangelical Lutheran. She's not even Lutheran. She's Catholic. But no biggie. She's doing her job.

But then her employer learns that she's living with her boyfriend and they're raising a child together. That's a biggie. They fire her.

And while she tries, there's nothing she can do about it.

Robinson v. City of Chowchilla (Cal. Ct. App. - Dec. 23 & 27, 2011)

2011-12-27T11:45:00.000-08:00

Christmas brings joy -- and disappointment -- to virtually everyone. But apparently it doesn't necessarily end there.

On the Friday before Christmas, Justice Dawson issued this opinion. Which affirmed the trial court. To the chagrin, and yet happiness, of both of the litigants. Defendants had filed the appeal. But plaintiff filed a cross-appeal. Both of them lose their appeal. Which means that both of them somewhat win. So no one's Christmas was entirely ruined.

But then, today -- the first business day after Christmas -- Justice Dawson issues this opinion. Which involves plaintiff's separate appeal of the trial court's denial of his request for attorney's fees. Surely both opinions were ready before Christmas. But this one gets out only after the holidays. And this one does not simply affirm. Robinson instead obtains a reversal. Victory! Sweet victory. A late Christmas present, to be sure. But a happy one.

At least for Robinson. The City of Chowchilla (and their lawyers) taste defeat. But at least tasted holiday turkey first.

But fear not. Justice Dawson has a present for them as well. Robinson wins his appeal. But that doesn't necessarily means Robinson actually gets a present. The Court of Appeal simply remands. Maybe he will be entitled to attorney's fees. That's for the trial court to decide, in accordance with the Court of Appeal's holding. And that holding has some portions that are favorable to Robinson, but others that favor the City of Chowchilla.

So, in the end, Justice Dawson spreads out both the rewards as well as the pain. A little right before the holidays. A little right after.

Merry Christmas.

Park v. First American Title Co. (Cal. Ct. App. - Dec. 16, 2011)

2011-12-26T12:29:00.000-08:00

It's the day after Christmas, so neither the Ninth Circuit nor the California courts cranked anything out today. But that doesn't mean that working stiffs like us have nothing to learn today.

For example, we can take advantage of Justice Fybel's recent decision to publish this opinion. Which provides further evidence that title insurance is worth only slightly more than the paper upon which it is printed.

Which probably makes it only slightly less valuable than that ill-fitting sweater you may have received over the holidays.

Kumar v. Yu (Cal. Ct. App. - Dec. 16, 2011)

2011-12-23T12:23:00.000-08:00

I'd have thought it was obvious that if a tenant breaches a lease for, say, $1500 a month, and after a month of vacancy, the lessor leases the property to another party for $1600 a month, the lessor's damages are reduced by $100 for each month during the defendant's original lease term.

But apparently that wasn't so clear. At least until this opinion.

Seems right to me.

Drake v. Obama (9th Cir. - Dec. 22, 2011)

2011-12-22T11:58:00.000-08:00

Let me make clear at the outset: The Complaint here is frivolous. President Obama was born in the United States. It's absurd -- frivolous -- to assert otherwise.

So too are many of the legal claims asserted in the litigation. The FOIA claims are silly. The quo warranto claim obviously belongs (if anywhere) in a court in D.C. Plaintiffs' failure to articulate RICO claims -- even though they alleged they had them -- because there are "so many complex rules" about RICO pleadings that are difficult to follow is simply pathetic.

The Ninth Circuit rightly dismisses all of these obviously deficient legal claims. It also holds that none of the plaintiffs have standing, and hence dismisses their assertion that President Obama was born outside the U.S. and is accordingly ineligible to be President. The closest they came was when they gathered together some of the minor candidates who ran against President Obama -- e.g., Alan Keyes -- and included these parties as plaintiffs. That might potentially have worked, notwithstanding the fact that these individuals actually had no chance whatsoever of winning the election even if a lame chicken was running in place of the allegedly ineligible Democratic nominee. But plaintiffs filed their complaint only after the inauguration. Which means they lack standing. File before the inauguration, dudes. Yeah, you run into potential ripeness problems, but those aren't nearly as severe as the standing problems that you obviously should have foreseen.

There's only one interesting part of the Ninth Circuit's opinion about which I had a question. Everything else seems obviously right. Judge Pregerson holds that active military personnel don't have standing, even though they say that they're potentially disciplined if they refuse to follow the orders of a Commander-in-Chief who's ineligible for office. Judge Pregerson says that they have an alternative: Obey the orders. Which seems true, and so I agree that the standing claim here is speculative. But imagine that one of the plaintiffs had violated an order. Standing? I can definitely see an argument. Then you're not just talking about a generalized issue you have in common with everyone else.

Nonetheless, the Ninth Circuit's clearly right here. No standing. So one more frivolous lawsuit bites the dust.

Just in time for the next election.

Retired Employees of Orange County v. County of Orange (9th Cir. - Dec. 19, 2011)

2011-12-21T13:14:00.000-08:00

It's a testament to modesty and neutrality when the Ninth Circuit certifies a state law question to the state supreme court. It's nice when the California Supreme Court answers that question fairly promptly. And it's wonderful when, in light of the state court's answer, the Ninth Circuit remands the case and tells the district court to act quickly. Especially when, as here, the case involves retirees, who subsist upon the benefits at issue and some of whom die throughout the pendency of the litigation.

Well done.

Romero-Mendoza v. Holder (9th Cir. - Dec. 19, 2011)

2011-12-21T11:04:00.000-08:00

If your biological parents had stayed unmarried, you'd be free to stay in the United States. Unfortunately for you, at some point after you were born, they got married. Which means we're deporting you.

So much for family values, eh?

People v. Covarrubias (Cal. Ct. App. - Dec. 20, 2011)

2011-12-20T14:54:00.000-08:00

I agree with Justice Aaron. The decision to admit the testimony of ICE Agent Andrew Flood was erroneous. But it was also likely harmless. Covarrubias was pretty clearly guilty of smuggling 193 pounds of marijuana across the border, as his story had a ton of holes and was not particularly credible. So letting Agent Flood testify about the structure of drug organizations etc. wasn't really the reason Covarrubias was convicted.

Justice Aaron discusses at length why Agent Flood's testimony should have been excluded, but doesn't really focus on the portion of that testimony that I find most problematic. Covarrubias claimed that he was a "blind mule" -- that he did not know the drugs were in his car -- and Agent Flood testified that blind mules are "fictional" and don't really exist. Stating that he had never come across anyone in his lengthy experience in law enforcement who was actually a blind mule, even though many of them claimed to be.

That seems obviously improper to me. Let's just change the facts slightly. How about this testimony: "I've been involved in law enforcement for many years. I've seen hundreds of defendants charged with murder. Lots of them say that they didn't do it. But that's simply untrue. I've never met someone who actually didn't do it. It's fictional. They're all guilty."

People v. Lowery (Cal. Ct. App. - Dec. 19, 2011)

2011-12-20T11:44:00.000-08:00

Eddie Lowery was in prison for allegedly stealing $250,000 from 88-year old Joseph Gorman, whose mobile home he and his wife occasionally cleaned. Lowery was acquitted, but during his time in jail, he made a tape-recorded statement in which he told his wife (over the jailhouse phone): "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman‟s house, maybe this week, and I'm gonna blow his fucken‟ head away."

Lowery says that he wasn't serious; that he was just blowing off steam to his wife, and so this wasn't a true "threat" -- but was instead protected by the First Amendment. The California Supreme Court takes up the case and narrows the statute so that it's consistent with the First Amendment, and then remands the case to the Court of Appeal to apply the new test. The issue is whether, on the facts of this case, the statement was really a threat.

The Court of Appeal holds that the trial court erred, but that the error was harmless. Its core argument is that the evidence was pretty strong that Lowery was making an actual threat because he made these statements over the jailhouse telephone even though he knew -- and was repeatedly advised during the call -- that the call was monitored.

Which struck me as strange. I'd have thought this argument went the other way. That you know the authorities are listening seems to me to be evidence that you're not serious when you say you're going to kill someone. As few people make such actionable threats when they're, say, right in front of a cop.

UMG Recordings v. Shelter Capital Partners (9th Cir. - Dec. 20, 2011)

2011-12-20T11:25:00.001-08:00

Veoh lives.

People v. Eubanks (Cal. Supreme Ct. - Dec. 19, 2011)

2011-12-19T12:05:00.000-08:00

It's always difficult to figure out who should live and who should die. I imagine that even God finds the issue not all that easy, so we might rightly expect far-more-imperfect humans to do even worse at this task.

Take this case, for example. Eubanks murdered multiple people. There's a big strike in favor of the death penalty, right? Eubanks is a woman. Her first name is Susan. Which way (if any) does that cut?

The four people she murdered were her children, ages 14, seven, six and four. Again: Which way do those facts cut? For or against killing her?

After she kills her children, she shoots herself as well. Doesn't die, though. Hence the issue. Should we finish the job? Does that realization -- that she thinks she deserve to die for what she did, and can't live with it -- mean we should be more or less willing to kill her?

She's clearly troubled. Obviously. No one kills their four children who's not. I need not go into the exhaustive details, but suffice it to say that her past is not good. At all. She's got no criminal history whatsoever. So that cuts against killing her, right? And there's no real chance she's going to kill in prison, agreed? Those facts surely cut against the death penalty. Do we nonetheless off her?

Maybe we can gain insight into her mental state by looking at the numerous notes she leaves for others and she kills her children. One was to her husband, who was the father of some (but not all) of the children she killed. It read: "You betrayed me. You kept a diary, and you and Rene Dodson conspired against me. . . . I've lost everyone I've ever loved. Now it's time for you to do the same." Adding that he could use any money from her worker's disability case to "bury the kids and find your rainbow. Anna May, I'm sure." That does not make Eubanks very sympathetic. But she writes to the father of Brandon, one of the children she killed: "I know you‟ll hate me forever, but I can't let [Brandon] live without his brothers, so I did what I did," adding that she'd been "strong for 25 years, and I'm tired of all the fight and hurt." She writes to her niece and sister that "I know what I'm doing is going to hurt you tremendously, but I can't and have no desire to go on," and asks to be buried in the same casket as her four-year old child, Matthew, who was one of the victims. How do those notes cut? For or against death?

We choose a sample of the population who feels like showing up for jury duty, death-qualify them, allow both sides numerous peremptory challenges, and let both sides argue. Then those twelve people decides who lives and who dies.

The jury decides that Susan Eubanks should die. And the California Supreme Court unanimously affirms.

Plaza Auto Center v. NLRB (9th Cir. - Dec. 19, 2011)

2011-12-19T11:02:00.000-08:00

Read the first half-dozen pages of this opinion. Which will make you appreciate your current job. No matter how terrible parts of it might be, it'll sound a whole lot better than working for Plaza Auto Center selling used cars in Yuma, Arizona.

The owners there sound like quality folks who treat their employees right. I'll definitely be going there to buy my next automobile.

(Their motto is apparently "Honesty and Integrity is a MUST in ALL our Deals". I'm not sure that their treatment of their employees makes me all that confident in the veracity of that claim.)

People v. Valdez (Cal. Ct. App. - Dec. 16, 2011)

2011-12-16T14:50:00.000-08:00

You can tell this case took a long time to work its way through the criminal justice system because one of the principal issues on appeal is whether it was permissible to introduce the alleged gang member defendant's MySpace page at his trial.

I'm not thinking that there are many "original O.G.'s" with MySpace pages anymore.

Even fewer after this opinion. Which says that, yes, your MySpace page can indeed be used against you at trial.

Crockett & Myers Ltd v. Napier, Fitzgerald & Kirby LLP (9th Cir. - Dec. 16, 2011)

2011-12-16T11:30:00.000-08:00

You're really going to make us to this ourselves?

One law firm refers a medical malpractice case to another law firm expecting a one-third (or one-half) referral fee, which is the usual practice and/or the practice pursuant to an alleged agreement. The prosecuting firm then obtains a half-million dollar fee in the case, but doesn't share. At which point the referring fee sues.

Judge Pro decides that there was no binding agreement (so no 50/50 split), but that the referring firm should receive a quantum meruit recovery, which he sets at $33,000. Back in 2009, the Ninth Circuit reverses, holding -- in a published opinion -- that, no, $33,000 isn't the right figure, and remanding so the district court can recalculate the award.

The case then goes back to Judge Pro. Who responds to the Ninth Circuit's holding by recalculating the award and holding that the reasonable value was . . . $33,000. The same award he had made before.

Yet another appeal to the Ninth Circuit. Yet another reversal. This time by a different panel, because the first panel is already tired of the case and doesn't feel like dealing with it anymore.

And which point the Ninth Circuit has three options. Remand the csae to Judge Pro yet again, hoping that the third time's a charm. Remand the case to a different judge, but that's somewhat insulting and burdens yet another judge with the dispute.

Or simply resolve the case themselves. Which is what they do.

Sure, it requires some factual findings, which appellate courts are loathe to do. But we want this case finished, gosh darn it. So we're telling you the number. One hundred thousand dollars. We're done. Go away.

Six judges on the Ninth Circuit is the most that we're willing to throw at a $100,000 referral dispute between lawyers.

Sessoms v. Runnels (9th Cir. - Dec. 15, 2011)

2011-12-16T10:48:00.000-08:00

Judge Tallman writes a majority opinion. He admits that it's a "close case," but nonetheless affirms the denial of habeas relief. Judge Betty Fletcher dissents, arguing that it's not that close of a case, saying that "rarely has there been a case in which our obligation . . . was more clear than in this one." Judge Tallman then includes some pretty harsh footnotes responding to the dissent, as I discussed when the opinions were first issued.

And the Ninth Circuit takes the case en banc. Which is not especially surprising. Nor inconsistent with the proposition that being mean to Judge Betty Fletcher -- indisputably one of the nicest judges on the Ninth Circuit (if not the nicest) -- may retard rather than advance your case.

People v. Murillo (Cal. Ct. App. - Dec. 15, 2011)

2011-12-15T12:29:00.000-08:00

It's shocking -- yet perhaps not surprising at all -- how many opinions begin like this one. In which the statement of facts commences by stating: "On the day of the assault, Murillo and Vargas consumed about 20 beers each."

Come to think of it, very few positive stories begin with "After drinking around 20 beers, . . . ."

Voit v. Superior Court (Cal. Ct. App. - Dec. 14, 2011)

2011-12-14T13:15:00.000-08:00

Clerk's Offices range from the sublime to the incompetent (and/or actively hostile). As a broad stereotype, the Clerk's Office down in San Diego tends towards the former, and the one in Los Angeles the latter.

There's presumably similarly broad variation throughout the state. And unless you have familiarity with and exposure to the various offices, you never know what you might find once you're forced to litigate in a new county.

Those attorneys who have ever been forced to confront a less-than-sublime Clerk's Office will appreciate this opinion by Justice Premo. Which, in three short pages, totally slams the Clerk's Office in Santa Clara County.

Here's a snippet:

"The actions of the court clerk’s office are quite troubling. 'It is difficult enough to practice law without having the clerk’s office as an adversary." [Citation]Whether Voit’s motion has legal merit is a determination to be made by a judge, not the clerk’s office. No statute, rule of court, or case law gives the court clerk’s office the authority to demand that a petitioner cite or quote precedent before his motion will be filed.

If a document is presented to the clerk’s office for filing in a form that complies with the rules of court, the clerk’s office has a ministerial duty to file it. [Citation] Even if the document contains defects, the clerk’s office should file it and notify the party that the defect should be corrected. [Citation] Moreover, there actually is precedent allowing courts to appoint counsel for indigent inmates facing civil suits. [Citation] By unilaterally refusing to file Voit’s motion, the clerk’s office prevented the court from applying this precedent, or any other relevant law, to Voit’s particular circumstances. The clerk’s office’s actions violated Voit’s rights under both the federal and state Constitutions to access the courts."

Word.

In Re Kinney (Cal. Ct. App. - Dec. 8, 2011)

2011-12-14T10:24:00.000-08:00

Whenever I start thinking fondly of the Bar, along comes a case like this.

It's not that I have a problem -- at all -- with the Court of Appeal. I don't. It does exactly what it should. Good job, Justice Boren.

But as for the Bar: What the hell?! The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006. He was declared a vexatious litigant in 2008. He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope. Not at all. Hasn't even been subjected to an iota of discipline by the California Bar. Still free to practice law on behalf of clients and abuse the legal system accordingly.

The Bar's great about catching people who bounce trust fund checks. The remainder of the disciplinary process is far from as efficient.

Kennedy v. Eldridge (Cal. Ct. App. - Dec. 13, 2011)

2011-12-13T14:09:00.000-08:00

Can a grandfather represent his son in a child custody case in which the son seeks custody of the infrant grandchild? What about if the grandfather previously represented the father of the adverse party (the grandchild's mother)? What about if the grandfather is also a witness, with exhaustive knowledge of the underlying events?

Not surprisingly, the answer is no.

I get where the grandfather is coming from. He wants to protect his child (and his grandchild). He knows -- or at least thinks he knows -- that he can do that better than anyone else, and can give his son better representation than anyone else. And he's certainly right that he can do so at a lower cost than any nonconflicted attorney. Something that's especially important in family law cases, where the alternative is often no legal representation whatsoever.

But still, the Court of Appeal is right that the trial court acted well within its discretion here. There are simply too many problems that might result from the representation to say that the trial court erred.

City of San Diego v. Board of Trustees of CSU (Cal. Ct. App. - Dec. 13, 2011)

2011-12-13T11:22:00.000-08:00

The City of San Diego suing San Diego State University?! Really?

Yes indeed.

I couldn't fathom how these two entities could possibly get into a tiff. Until I read the opinion. Then it all made sense.

Okay, all of it didn't make sense. But at least I could fathom it.

The issue's about money. Not surprisingly. Basically, SDSU wants to expand, and has plans to do so. Which, actually, is good. I was surprised -- favorably -- that in this era of budget cuts and the like, SDSU actually plans on getting larger. In a big way, even. It's planning on adding an additional ten thousand students a year within fifteen years. Which means hiring almost a thousand new faculty members, plus support staff. Lots of new people in sunny, beautiful San Diego.

Which is a good thing. Except for one tiny problem. Traffic. As a San Diego resident, I can attest that traffic around SDSU is already pretty bad. Add another ten thousand students and it's going to get even worse. So to alleviate these problems, as part of the environmental impact report, SDSU identified a lot of traffic improvements that will need to be made. Bigger streets, better off ramps, etc. And the EIR also identified the portion of those costs that should fairly be allocated to SDSU and for which it should pay. Which added up to around $6.5 million.

But SDSU says: "That's fine. We'll pay you that money if the Legislature gives it to us. But we have no way of making them give it to us, so if they don't, that's your problem, not ours." At which point the City responded: "No, that's still your problem. You have to either promise the money or not get your environmental impact report certified." To which SDSU responds: "Stick it. We'll pay if we/the Legislature wants, and won't if we won't." So the City of San Diego then files a writ.

There are tons of disputes down below. Eventually, the trial court finds in favor of SDSU, and discharges the writ. The Court of Appeal reverses.

There are lots of interesting things about Justice McDonald's 83-page opinion, but I'll focus only on two components.

First, Justice McDonald is pretty bold here. The City's best argument is a statement from the California Supreme Court in Marina, a very similar case arising from the expansion of Cal State Monterey. In Marina, the California Supreme Court said, essentially, exactly what SDSU asserts here -- that since the Legislature is in control of the money, Cal State only has to ask for the money, and that's sufficient; if they don't get the money, that's the City's problem. And it was on the basis of that statement that the trial court below dismissed the writ.

But Justice McDonald doesn't agree. He agrees that the statement was made, of course. And also agrees that it supports the trial court's ruling. But he holds that it's dicta.

Which it is. But the thing is, it's dicta from the California Supreme Court. When they say jump, the Court of Appeal generally limits its response to an inquiry regarding height. The Court of Appeal almost invariably follows even dicta. Pragmatically, if you don't follow what they say, you're often very likely to get reversed. Moreover, doctrinally, if your duty is to predict what the California Supreme Court would do (which is what California law "is"), what they say is pretty good evidence of what they'd do.

But the Court of Appeal nonetheless doesn't do that here. Arguing that the relevant sentence was not only dicta, but not really explained either. And, further, that it's wrong. Holding -- and here's where Justice McDonald's pretty bold -- that if the California Supreme Court actually thought about the issue at length, they'd realize that what they said was not right, so would change it. Hence we'll do it for them and not follow that portion of the opinion.

Now, let me be clear: Justice McDonald may well be right on the merits. To say it how we'd say it in academia, money is fungible. SDSU already has lots of it, and they're only going to get more once they add another ten thousand students. So SDSU will have the money to pay for the improvements even if the Legislature refuses to give them another $6.5 million. It's only a question of whether they're willing to spend it. Given those facts, you could see why Justice McDonald might be inclined to hold that it's insufficient to merely say in response to an EIR that you're willing to ask for more money. At a bare minimum, SDSU will be getting more money from tuition, rent, parking, and the like if the expansion goes forward. Given those facts, it seems not unreasonable to consider requiring them to allocate some of this money towards paying for the improvements that make the resulting monetary largess by SDSU possible.

But just because Justce McDonald may be correct doesn't make it any less bold (or unusual) for him to refuse to follow dicta from a higher tribunal. It's still something that you don't usually see. Especially when, as here, the dicta the Court of Appeal refuses to follow is fairly recent. Which means that lots of the members of the Court who signed onto that dicta still possess the power to grant review and affirm that, yep, they meant what they said, and do not believe themselves to be as uninformed (or inattentive) as a lower court considered them to be.

So we'll see where it goes from here.

One other point. Not about the opinion, but rather about the underlying dispute. At issue here is $6.5 million. Not a huge amount in the scheme of things, particularly when it concerns governments. And we're not fighting about whetherlevel of government has to pay -- the Legislature or the City.

Look at how long this lawsuit has gone on (the writ was filed in 2006). Look at the caption and see how many lawyers are involved at all levels of the dispute, both for the City, for SDSU, and for various governmental amici. Imagine how much money has been spent on this dispute on both outside and governmental lawyers. Not to mention how much we've spent on the judicial side. All to figure out whether the State or City are obligated to pay a relatively trivial sum. A sum that's quickly getting burnt in attorney's fees in any event.

Assume that governments are populated by entirely reasonable people. (Counterfactually, I know.) Wouldn't, in such a world, this lawsuit be settled? In a heartbeat.

But this one wasn't. And isn't. And may well even take up additional time and resources once the case either continues on remand or goes up to the California Supreme Court. Or both.

Yes, I know, in tight budgetary times, governments feel increasing pressure, and so may fight to reduce their expenditures. But having everyone spend money on lawyers in order to simply pass the bill to another level of government -- with many of the same taxpayers, no less -- is largely to cut your nose off to spite your face.

It's silly. It shouldn't happen. And yet it does.

People v. Guzman (Cal. Ct. App. - Dec. 12, 2011)

2011-12-12T11:44:00.000-08:00

I prefer that my doctor not fraudulently bill Medi-Cal. I even more strongly prefer that, when inserting an IUD, the doctor use an actual FDA-approved IUD, rather than a cheaper non-FDA approved IUD manufactured in Mexico. Particularly given the whole Dalkon Shield debacle.

The sentence of three years probation and ninety days of community service for doing otherwise seems pretty light.

San Francisco Opera Ass'n v. Flickinger (Cal Ct. App. - Dec. 9, 2011)

2011-12-09T13:20:00.000-08:00

Two individuals die and leave the entirety of their assets to the San Francisco Opera. Around a half million total. The deaths are in 1996, a lawyer gets appointed for the estates (and paid), and by late 1998/early 1999, everything's finished, and the Opera's supposed to get the money.

But the lawyer never writes a check. The Opera never follows up. The money just sits there. Waiting. Waiting. Waiting. Nothing happens.

Six years later, the Opera looks into old bequests, and follows up. The attorney says: "Oh, I'm sure it's been paid out and just not recorded." A year passes, and the Opera eventually says: "Are you sure?"

Yet another year passes. No money. So the Opera hires a lawyer. Another year passes. And finally, in 2009, the lawyer sends a check for most of the money. At which point the Opera files suit. Saying that a partial payment in 2009 of money it should have gotten a decade earlier is hardly sufficient. Wanting the full amount plus interest.

The trial court's willing to make the lawyer give 'em the full amount. Not surprisingly. But the lawyer can't find some of the money, which had probably escheated to California because the accounts were inactive for so long. But that's the lawyer's problem, not the Opera's. But as for interest -- a pretty penny at this point -- the trial court's not persuaded by the Opera's argument. Sure, the lawyer messed up. He was inattentive. He was lazy. But so were you. You didn't effectively follow up on money you knew was due either. We call that laches. No interest.

The Court of Appeal affirms.

It's a half million dollars for a civic organization. With utterly no reason not to distribute it. You'd think -- and hope -- that everyone would be more organized than what was displayed here.

In Re Quantification Settlement Agreement (Cal. Ct. App. - Dec. 7, 2011)

2011-12-09T10:19:00.000-08:00

If you still don't think that water rights are the next looming frontier of California jurisprudence (as well as other southwestern states), read this opinion.

It should change your mind.

This is an important field -- just look at the list of counsel on the appeal -- and is only going to get bigger.

U.S. v. Tapia (9th Cir. - Dec. 8, 2011)

2011-12-08T14:20:00.000-08:00

The Ninth Circuit decides a criminal appeal, and Judge Reinhardt is on the panel. The Supreme Court grants certiorari and unanimously reverses. The case goes back down to the Ninth, and Judge Reinhardt writes the opinion.

Classic story, right? So you obviously know what transpired. That crazy Ninth Circuit panel gave relief to a criminal defendant, the Supreme Court reversed, and now Judge Reinhardt's try to save his leftie opinion by circumventing the Supreme Court's reversal. Right?

Wrong.

Here, the Ninth Circuit denied relief. The Supreme Court did indeed unanimously reverse. Holding that the Ninth Circuit was wrong -- that the district court might well have erred. And, on remand, Judge Reinhardt (and the rest of the panel) holds that, yep, there was error. Thanks, Supreme Court.

This will, of course, show up on the statistics as yet another opinion by the Ninth Circuit reversed by the Supreme Court, as further purported proof that the liberal Ninth Circuit is out of step with the rest of the country (as well as the Supreme Court). The truth, of course, is slightly more complicated.

P.S. - This is the second Tapia case the Ninth Circuit decided this week. I discussed the earlier one here.

People v. Kovacich (Cal. Ct. App. - Dec. 7, 2011)

2011-12-08T12:03:00.000-08:00

This would make a good case for Cold Case Files, or any one of the innumerable other police-murder shows. Except it's real. So you'd have to add a tearful confession or something like that.

But it's about a police officer who murdered his wife nearly thirty years ago, in 1982. Her skull was found in 1995. He was charged and convicted of murder only within the last couple of years. Sentenced to 25 years to life in prison.

You can kill your wife. You can sometimes get away with it. But even when you think you're in the clear, even when you think you've successfully dumped the body, even when you think they can't convict you on circumstantial evidence, sometimes you're wrong.

As here.

Red Lion Hotels v. MAK, LLC (9th Cir. - Dec. 7, 2011)

2011-12-07T13:24:00.000-08:00

It's a pretty big ego stroke when a Ninth Circuit opinion and dissent substantially revolve around what you meant when you wrote your law review article.

That's what Donald Chisum -- whose ego probably doesn't need any additional stroking, since he's already a big stud -- gets out of this opinion.

He writes a law review article in the Washington Law Review back in 1973 (he was a professor at U-Dub Law School at the time) that discussed whether the Washington franchise statute covered franchisees who were located out of state. The Washington Legislature then amends the statute in 1991 to respond in part to Chisum's article. And the question in 2011 then becomes what Chisum meant and what the Legislature did.

People sometimes say law review articles don't matter. This case proves that they clearly do. As long as they're written in the early 70s.

Kwong v. Holder (9th Cir. - Dec. 7, 2011)

2011-12-07T11:54:00.000-08:00

How long does it take to write a unanimous, eleven-page panel opinion denying a petition for review in an immigration case.

Seven years.

Okay, so that's a slight exaggeration. The petition was indeed filed in early 2004. But it didn't get argued until early 2008. So that's four years right there. So one might say that it takes only three to four years for the panel to write those ten pages.

Though, even then, four years to get a case to oral argument seems mighty long itself. Wholly apart from the three-plus years it then takes to write an opinion.

What took so long? Looking at the docket, I can't explain the first four years. Sure, there are the usual requests for extension of time. Because goodness knows you can't prepare a brief in less than six months, right? But the case is fully briefed in 2005. And gets set for oral argument in 2006. At which point Kwong asks to delay the oral argument, a request that's granted, and it takes another two years before the new oral argument date transpires. Not exactly a rush to justice.

Then, as the panel opinion itself explains, the panel twice vacates the submission pending two different en banc matters. There's your additional nearly-four years. That eventually results in an opinion issued on the seventieth anniversary of Pearl Harbor.

The result. Unanimously affirmed.

So Kwong's going to be deported. But fear not. It may have taken seven years to reject his Ninth Circuit appeal. But the Ninth Circuit gave him a stay during this entire period. So he's had seven additional years in the United States. For a total of fourteen years since his 1997 conviction for an aggravated felony.

Not exactly speedy, eh?

Roberts v. El Cajon Motors (Cal. Ct. App. - Nov. 8, 2011)

2011-12-06T16:48:00.000-08:00

Today's been a busy day. But fortunately there's something easy, right in my back yard. Because here, plaintiff was right. Judge Prager (down here in San Diego) was right. Justice Benke is right.

It's an easy case.

U.S. v. Grant (9th Cir. - Dec. 5, 2011)

2011-12-05T11:48:00.000-08:00

A guy walks into a sushi bar . . . .

But the guy walking in is Grant's parole officer. And Grant's not allowed to drink alcohol, but has ordered a large glass of sake.

So this joke ends with Grant getting two years in federal prison.

Grant ultimately gets a reversal from the Ninth Circuit, which was required due to the Supreme Court's recent decision in Tapia. Plus he got bail on appeal, so things are breaking (reasonably) well for Mr. Grant. Assuming he continues to avoid that particular sushi bar and his penchant for rule-breaking.

Plus, in footnote 35, he gets to see a quote from James Q. Wilson. Which is a first for the Ninth Circuit, and only the third time that any federal appellate court has ever done so. The last two times being over 15 years ago.

Which may tell you a little bit about the state of contemporary criminal law jurisprudence.

Joffe v. City of Huntington Park (Cal. Ct. App. - Dec. 2, 2011)

2011-12-02T16:05:00.000-08:00

Totally right.

That's not inverse condemnation. I would have been severely bummed if the Court of Appeal had held otherwise.

Glad they decided to publish it.

People v. Rivera (Cal. Ct. App. - Nov. 30, 2011)

2011-12-02T11:27:00.000-08:00

Defendant admits he killed the victim, but in his first-degree murder trial, denies premeditation, and instead claims that he was in a rage. There's no dispute about the killing. But the prosecutor nonetheless asks the defendant at trial to reenact the murder for the jury by using the prosecutor as the victim -- essentially, to strangle the prosecutor like defendant admits he stranged the victim, Ted Neff.

The trial court says, no, we're not going to have the defendant pretend to strangle the prosecutor in front of the jury. That's just silly (and prejudicial). Go get a mannequin. So the prosecutor does that. And returns with a female mannequin wearing a blue dress, pink ribbon, and hat. (The victim was an adult male.) The defense objects to the "theatrics" of a simulated killing in front of the jury, especially since the killing is not disputed and the only issue at trial is whether defendant was in a rage or did it in cold blood. To which the trial court responds by telling the prosecutor to take the dress and hat off the mannequin.

So the defendant is then compelled to strangle a naked female mannequin at his first-degree murder trial while the jury watches, according to the direction of the prosecutor, who tells him how to turn the dummy, where to put his hands, how to strangle her, etc.

The Court of Appeal doesn't exactly approve of this decision. Here's what Justice Dondero (and the rest of the panel) has to say about it:

The minimal probative value of the evidence was diminished further by the absence of similarity of both the setting and circumstances of the demonstration. A courtroom is hardly the appropriate venue to attempt to recreate and prove the manner of commission of a murder by strangulation. The setting was entirely dissimilar, lacking in the dimensions, configuration and the furniture that was present in the victim‟s home. Further, the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor. The acts of the victim were not reproduced. The emotion associated with the strangling, which was an integral part of the defense, was entirely missing from the demonstration. But for the seriousness of the charge, the courtroom events were suggestive of a slapstick parody.

The Court of Appeal ultimately holds the error harmless, which seems right. But that's no excuse for throttling an innocent dummy at trial.

One more thing. The victim met the defendant through a Craigslist advertisement for sex, and defendant said in his ads that he'd meet people at their hotel room and provide a "session" for them for $140 (which is how the police picked him up). Oh, and a few hours after defendant killed the victim, he was back online soliciting a female customer to join him and his wife in a threesome.

In short: Find sex in places other than Craigslist.

Flynn v. Holder (9th Cir. - Dec. 1, 2011)

2011-12-01T14:12:00.000-08:00

When I first started reading this case, I thought: "Oh my God. You're kidding me. The Ninth Circuit's really going to do this?!"

I mean, I get it. Lots of libertarian conservatives have jumped on the "You should be able to sell your organs" bandwagon. It's consistent with at least one version of economic liberty and bodily integrity. Plus there's an undeniable need out there. People are dying. Every single day. Paying money for organs would presumably save these lives and benefit everyone. So why shouldn't we allow such sales?

But just because you may have a potentially persuasive policy argument is one thing. It doesn't mean you have a valid constitutional claim. And, in this lawsuit, the plaintiffs are bringing an equal protection challenge to a federal statute that bars compensation for bone marrow donations. That's rational basis review. Totally lax. Just gotta have a possible reason, and surely at least one (and probably more) exists. The district court dismissed the claim on a 12(b)(6) motion.

But then I start reading Judge Kleinfeld's opinion. And even though he's just "reciting" the facts, he's clearly reacting favorably to the plaintiffs' claim. Saying all this stuff about the procedure and the need that's exactly what you'd write if you were going to reverse the district court's dismissal.

Sure, he's got his strong libertarian bent, and I'm sure his clerks do as well. But surely he can't be ready to hold that there's an equal protection violation, right?! That'd be radical. Way radical. I'm not saying it'd be indisputably wrong. But wow. A freaky holding.

So after two or three pages, I can't wait any longer. Stop taunting me. I do what I almost never do. I flip to the end of the opinion to see how it comes out. REVERSED.

Holy hand grenades! Wow. This is going to be revolutionary. We're going to hold that there's potentially a constitutional right to get paid for your organs. Amazing.

Will the Supreme Court really let this stand? It seems crazy. But there are libertarians there too. And the liberals might realize, and be sympathetic with, the desperate need. This will be fascinating.

So then I go back and keep reading. And one of the things I learn is that bone marrow donation is not, at least according to Judge Kleinfeld, what I think it is. I think of it -- and probably most people think of it -- as an incredibly painful process where they stick a huge needle into your spine. That's indeed one way of doing it, and the traditional way.

But apparently there's a new way as well. That basically just involves giving blood. They spin the blood through a thingy and collect what you need.

Which I did not know. Moreover, as a practical matter, it makes a huge difference to me. Because even before I got to the "legal" part of the opinion, I had the following thought: "I'm going to do this." I should probably be willing to get a spinal tap to potentially save someone's life, but I'm flawed, so I don't. I also don't give regular blood nearly as much as I should, on the (again, flawed) theory that there's not actually a monster shortage and my blood's not essential.

But even I can't rationalize not giving blood when I may be the only (or nearly only) person who might be a match for someone. Having to sit in a chair for a couple hours isn't too much to ask to save a life. So Judge Kleinfeld's opinion (and the underlying lawsuit) at least did this: It convinced me that this is a procedure that I should do. Maybe others who read the opinion will have the same reaction. I certainly hope so.

But that's a practical and personal conclusion, not a legal one. Moreover, I'm willing to do this wholly absent any payment. That doesn't mean that I have a constitutional right to be paid for it. And that's plaintiffs' claim.

Judge Kleinfeld eventually gets to the merits. Starting with where I would have thought, before reading the opinion, he'd be forced to go. He initially concludes that, as to the "spinal tap" way of getting blood marrow, there's indeed a rational basis. That's painful. That's grabbing an "organ". Maybe one Congress might not think that's a big deal, and would allow you to be paid for it. But our Congress thought that mattered, and a rational argument can be made in that regard. Ergo it satisfies the Equal Protection Clause.

But you can also see where Judge Kleinfeld's going with this. He just told you that one way -- the traditional way -- of grabbing blood marrow is okay under the Equal Protection Clause. That's foreshadowing. As one is reading along, you can already see the argument. If it's true (as we must assume on a 12b6 motion) that it is possible to grab blood marrow just by taking blood, how's that any different than -- well -- giving blood, for which you can be paid. Or giving sperm, or an egg; for which, again, you can be "compensated." That's an equal protection argument with teeth. Or at least potential teeth; once again, the test here is very lax, and we are loathe to strike down (especially) Congressional statutes for lack of a rational basis.

But it nonetheless looks like Judge Kleinfeld's indeed going to so hold. Because remember that we know how the case is coming out. Reversed.

So I'm still enthralled with the decision, and while the process has been a little different than I first expected when I started reading the opinion, it's still a fascinating outcome.

But then Judge Kleinfeld throws a curve.

He does indeed reinstate the complaint. On the merits; not on some procedural technicality or the like. But at the end of the opinion, he decides not to reach the equal protection argument as applied to the blood-like manner of collection. Because while he's exclusively talked about the constitutional issue thus far, in the end, he interprets the federal statute to not cover bone marrow procedures if they just involve the new blood-collecting process. Ergo making resolution of the constitutional claim unnecessary, and also reaching the same result. Donors under that process can be paid. (And, to assist the plaintiffs, also awards 'em costs, which in this case likely means attorney's fees. So everyone gets paid.)

This statutory interpretation is surely defensible. Less controversial, I might add, than reaching this same result on constitutional grounds. And with the same practical consequences. You can indeed sell your bone marrow. But only if you can do it through the less painful means. Which is probably what you would prefer anyway.

That's a change in the law. You used to be not able to do this. Now you can. So feel free. Whether for money or not.

Judge Kleinfeld convinces me it's a good idea.

Carlos Lezama-Garcia v. Holder (9th Cir. - Nov. 5, 2011)

2011-11-30T13:21:00.000-08:00

Petitioner is from Nicaragua. He's been in the United States since 1993. He has no criminal history. So under the Nicaraguan Adjustment and Central American Relief Act, he's entitled to become a permanent resident. We have a special deal for people who came from (then-) Sandinista-controlled Nicaragua. So he files the appropriate petition.

There's only one problem. Petitioner lives in Long Beach. In 2004, he was driving a company truck from Long Beach to San Diego. He had never been to San Diego before, and got confused. He was on the I-5, which is the main interstate from L.A. to San Diego, and was trying to find his exit in San Ysidro, which is on the border with Mexico. He's trying to find the exit, and all of the sudden, time runs out; he's still searching for his exit on the I-5, when all of the sudden a big sign appears: "Mexico". He tries to find a place to turn around before heading into Mexico, but can't find one, and a police officer is telling traffic to keep moving. So, having no alternative, he enters Mexico, and immediately turns around at the next exit to get back to the United States.

The problem, of course, is that he's not a resident of the United States. He tries to explain that he just came from the United States in his company's truck, and is only there on accident. But that doesn't matter; if you don't have a visa and aren't a citizen, we don't let you in. He tries again several days later -- this time using a fake identification -- and that doesn't work either. They detain him, and then move to kick him back to Nicaragua.

But his problems get worse. Sure, he was categorically entitled to permanent residency, and had filed the relevant petition. But a federal regulation says that if you file a pending petition, and then "depart" from the United States without permission, you're deemed to have abandoned that petition. So the IJ holds that he's no longer eligible for relief because he left the U.S, and the BIA affirms. Shouldn't have missed that exit, buddy.

The Ninth Circuit, in a split decision, reverses. Judge Seabright, sitting by designation from Hawaii, writes an opinion (joined by Judge Goodwin) that holds that you haven't really "departed" the United States when you do it by accident and immediately turn around. Judge Rawlinson dissents, arguing, inter alia, that yes, that counts as a departure, and that we should defer to the BIA on this point in any event.

I'll let the competition opinions speak for themselves. Obviously the equities favor the petitioner (at least in my view), and the question is whether the statute permits us to do the right thing. Assuming that his story is accurate, it seems pretty harsh to deport a guy from the country in which he's lived for the past 18 years -- and in which he is entitled to live -- merely because he missed an exit one fateful day.

I'll just add one personal observation. I live in San Diego. There is, in fact, a big sign (at least nowadays) that says "Last Exit in the United States" on the 1-5 as you approach that last exit, as well as a U-Turn lane right before the big "Mexico" sign that gives you one last chance to turn around if you've made a mistake. So you might well think that Lezama-Garcia's story is facially incredible.

But the exact same thing happened to my friend Judybeth Tropp, who lives in San Diego, not that long ago. She's driving along the I-5, heading to Chula Vista to a birthday party with her kids, gets confused, is trying to find her exit, and wham, suddenly she sees the big "Mexico" sign and can't find a way to get over to the U-Turn lane. So there she is, in a minivan with two little kids, in Mexico. Without, obviously, a passport or anything at all about the kids. Desperately hoping that they'll let her back in.

Fortunately, they do. Though I'm not sure they would after the recent heightened security on the border. My only point is that it's quite, quite possible for people to accidentally end up in Mexico if they're driving on the I-5 and looking for an exit near the border. Even if they've graduated from Smith College.

Lang v. Roche (Cal. Ct. App. - Nov. 29, 2011)

2011-11-29T14:42:00.000-08:00

What's another way the judicial process can become a mess? When neighbors repeatedly sue each other, abuse the legal system to advance their hate, and represent themselves pro per.

As in this 16-year -- and counting -- saga.

Yavapai-Apache Nation v. IIpay Nation (Cal. Ct. App. - Nov. 29, 2011)

2011-11-29T13:22:00.000-08:00

Rarely do two sovereign nations sue each other in state court. And when they do, it's a mess.

People v. Engstrom (Cal. Ct. App. - Nov. 28, 2011)

2011-11-28T15:46:00.001-08:00

Doing a little math doesn't constitute jury misconduct.

People v. Dement (Cal. Supreme Ct. - Nov. 28, 2011)

2011-11-28T12:32:00.000-08:00

The opinion took a long time to load, comes from the California Supreme Court, and has the word "People" in the caption. Which suggested to me that it's likely (1) a death penalty case, (2) that's unanimously affirmed.

Right on both counts.

Some tangential points. First, the defendant gets convicted of a death penalty murder offense. As well as oral copulation in a detention facility. Seems like the latter is piling on.

Second, the case provides yet another good reason why you don't want to go to jail. For anything. Ever. Greg Andrews gets sent to jail and, as he and the other new inmates arrive, the defendant says to a nearby inmate (referring to Andrews): "I hope they don't move him in my cell. If they do, I'm going to do him." "Do" as in "kill". And, as (bad) luck has it, Andrews does indeed get assigned to the defendant's cell. Defendant's upset because it's a three-bunk cell already occupied by three people, and there's allegedly only two people in a cell on a lower tier. So defendant decides to invoke a self-help remedy to prison overcrowding. So kills Andrews that night.

Argument Number One Thousand as to why you should stay out of jail.

Finally, what I just said apparently goes double for the Fresno County jail. What could possibly be going on there?! The murder of Andrews doesn't happen quickly. It takes a long time. Defendant drinks some pruno in his jail cell. He starts slapping defendant in their cell (once everyone's locked down for the evening). He interrogates him. He rips off his boxer shorts. He forces him to kiss his genitals. He starts hitting him again. He slams him against the cell lockers. Andrews starts screaming. Defendant starts choking him with a towel. The cellmates pull defendant off, and another uses a call button to alert the officers to contact the cell. Remember: All this is happening right out in the open, in a jail cell, no less.

The officer dutifully gets on the speaker and asks what's up, at which point defendant asks him what time it is, and the officer tells him. Inquiry finished. So defendant then again wraps the towel around Andrews and starts choking him a second time. The cellies again try to stop him. Another pause and discussion. Then defendant starts jumping on Andrews. Starts choking him for a third time. Finally killing him.

What are the jailhouse guards doing all of this? Nothing. Or at least nothing relevant. No inquiry. No looking at the cells. No hearing the screams -- screams which other inmates hear (and so testify at the defendant's trial). An hour or so after the murder, it's breakfast time. At which point the guards open up the cells and everyone leaves. You'd think at this point they'd at least notice the dead body. Nope. That happens only after the cellies return to the cell from breakfast call and use the contact button to say: "There's a dead body in the cell." Then the guards show up.

Defendant, by the way, is hardly an angel. He beat his wife. He murdered his brother. He committed a variety of other offenses. Thank goodness he's virtually unsupervised. How shocking that the jury sentences him to death. Apparently being unpersuaded that the rigors of prison will prevent him from killing in a detention facility yet again.

In the spirit of the season, I will now add to my prior refrain from Thursday the following: "And I also give thanks that during this past year I did not find myself in a local jail. Lord, if you are willing, please make that continue to be the case during the upcoming year as well."

Happy Thanksgiving.

People v. Crivello (Cal. Ct. App. - Nov. 1, 2011)

2011-11-23T11:10:00.000-08:00

Justice Robie ends this opinion with:

"The record before us indicates that this latest effort to commit defendant is the fourth time in as many years that the board has determined defendant is an MDO and the People have sought his commitment based on his 2003 robbery conviction. Twice before the court has rejected that commitment based on the res judicata and collateral estoppel effect of the 2006 determination that defendant’s crime was not an aggravating or causative factor in his underlying offense. In the face of these determinations and existing legal authority, it is inexplicable why the board and the People continue to seek defendant’s commitment using this particular statutory scheme and underlying offense as the basis. They must know such a commitment cannot stand.

But, just in case, let us make this perfectly clear. The predicate basis for defendant to be committed as an MDO based on his 2003 robbery conviction does not exist. Because the court found in 2006 that defendant’s mental disorder was not a causative or aggravating factor in that 2003 robbery, defendant cannot now, or ever, be committed as an MDO under sections 2962 or 2970 based on that conviction. Continued attempts to commit defendant on this basis violate the principles of res judicata and collateral estoppel, and represent an enormous waste of resources.

The judgment ordering defendant committed is reversed. The circumstances of this case compel us to remind the parties of the availability of California Rules of Court, rule 8.272(c)(1) whereby the parties can stipulate to the immediate issuance of a remittitur."

Not very difficult to figure out where the Court of Appeal stands on this one, eh?

To its credit, the Attorney General's Office did concede error. Though that doesn't explain why the People did what they did before, or excuse the conduct below. As the Court of Appeal makes clear.

Linear Technology Corp. v. Tokyo Electron, Ltd. (Cal. Ct. App. - Nov. 22, 2011)

2011-11-22T12:51:00.000-08:00

Well, geeze. I just don't know.

The Court of Appeal's holding definitely has some appeal. I unquestionably agree with the first part. Linear lost its warranty lawsuit at trial. The evidence supported the jury's verdict. Linear's claim that it was entitled to a j.n.o.v. lacks merit. Definitely right.

The harder part is the attorney fee question. The trial court granted $8 million-plus in attorney's fees against Linear pursuant to Section 1717, the reciprocal fee statute. And there's indeed some basis for that. Linear definitely asked for attorney's fees if it won. So arguably the other side's entitled to them as well. That's the whole point of reciprocity.

Linear argues that it waived its request for fees. But it didn't. Its counsel was being a typical attorney, and engaged in a tactical strategy that I'm sure seemed to made sense at the time. Linear stipulated to a certain thing (involving a battle-of-the-forms) prior to trial, but as part of that stipulation -- one that, as a practical matter, would probably mean it couldn't recover attorney fees -- the attorney piped up and said that this stipulation was without prejudice to seeking fees if they prevailed. In short, the attorney entered into a stipulation that effectively said his side couldn't get fees, but nonetheless said that he was not giving up the right to seek fees. No harm "preserving your rights," right?

Wrong. That's all fine if you win. But when you instead lose, the other side then hoists you on your own petards. Saying that since you still claimed to be entitled to fees, so are they. And, in this case, getting them. To the tune of over eight million dollars. And the Court of Appeal affirms.

Like I said, that makes a certain intuitive sense. You said you were entitled to fees, so the reciprocity provision means the other side's entitled to it as well.

But here's the problem. It's almost certain, in my view, that Linear was not entitled to fees. They may have said they were entitled to them, but the stipulation meant they weren't. That's its effect, and even if you say that X doesn't do Y, if it does, then Y's the rule. So Linear wasn't entitled to fees.

Given that fact, it seems bizarre to say that the reciprocity provision of Section 1717 means that the other side is entitled to fees when Linear isn't. Sure, when one side is entitled to fees, the other side should be entitled to them as well (as a matter of fairness), even if that side doesn't have an attorney fees provision in its contract. But when that side both doesn't have an attorney fee provision in its favor and the other side's attorney fee provision doesn't apply, how can fairness require that one side but not the other be entitled to attorney's fees pursuant to Section 1717, the entire purpose of which is to make things equal? That just seems not only bizarre, but the exact opposite of what the statute is designed to accomplish.

Justice Elia says -- in a response that makes some sense -- that Linear shouldn't be allowed to claim that its own request for fees was meritless in order to get out of paying the other side's fees. I surely understand that. It seems somewhat wrong to let you attack your own case once you lose. So I see the equities there.

But it's not like this is judicial estoppel or anything; none of the relevant prerequisites would be met. And the consequence of the Court of Appeal's holding is, again, to let fees be nonreciprocal; Linear would have to prove its entitlement to fees -- which it couldn't do -- if it had won, but the other side here doesn't have to prove its entitlement to fees. Which matters, since there's actually no applicable attorney fee provision.

As a doctrinal matter, this case seems no different than a garden-variety slip-and-fall case in which the plaintiff said, as part of a boilerplate complaint (as they often do), "I demand $50,000 plus attorney's fees," despite the fact that fees unquestionably aren't recoverable. I'm quite confident that the Court of Appeal would not hold that a defendant in such cases was entitled to fees if it prevails, notwithstanding Section 1717, because the plaintiff was not, in fact, entitled to fees, even though she had indisputably requested them. Why should there be a different result here? After all, the slip-and-fall plaintiff would be "disputing his own request" just as much as Linear is doing here.

So, as I said at the outset, I'm in a bit of a quandary. I understand the equities on both sides. But I come to the problem with a belief that (1) it's the moving party's burden to prove that they're entitled to fees, (2) the mere fact that the other side asked for fees themselves isn't sufficient to establish (1), and (3) the reciprocity provision of Section 1717 should care -- deeply -- about whether one of the parties was in fact entitled to fees. All those things seem to suggest that the Court of Appeal's holding here is erroneous.

At the same time, take a different case. Plaintiff files suit claiming that Defendant signed Contract, which contains an attorney fee provision. Plaintiff requests damages and attorney's fees. Defendant alleges that the signature is a forgery, and that Contract was never signed, and prevails at trial. I think that Defendant in that case is entitled to attorney's fees under Section 1717 even though Plaintiff was in fact not entitled to fees because the Contract was never signed. Plaintiff would have been entitled to them had she prevailed, so Defendant is also entitled to them. So the "reality" of whether the contract in fact entitles one side or the other to fees isn't always dispositive.

But this case is different, because unlike in the example above, here, even if Linear had prevailed -- even if the jury had agreed with its version of events -- Linear would still not have been entitled to attorney's fees. In short, given the stipulation, there were no factual findings that would have given rise to a legitimate claim for attorney's fees. Which means that the reciprocity provision shouldn't be used to change that already reciprocal state of affairs into something unequal. Sure, Linear could have filed a motion for fees and had it denied. So could Linear's opponent. But the holding here changes that, and means what while one side isn't entitled to fees when it prevails, the other side is.

I have tried to fashion an alternative rule to the Court of Appeal's along the lines of "you get reciprocal attorney's fees under Section 1717 when the other side has a colorable entitlement to attorney's fees on their side" in order to alleviate both the problem I see with its holding as well as the legitimate problems with allowing a party to attack the validity of its own request for fees once it loses. But I'm not sure I can come up with an intellectually consistent version of such a doctrine. Maybe brighter minds can do better.

The one thing I know is that the Court of Appeal's holding here -- while I totally get it -- nonetheless seems troubling. I'm just not sure you can do this. Or at least can do this and be right.

Which I care about.

The practical lesson nonetheless remains to be careful asking for attorney's fees when you're not sure you're going to obtain them. Because that can be profoundly counterproductive, and may -- as here -- even create a one-way ratchet. Heads you don't win, tails you lose. Which isn't good for you, and darn sure isn't good for your client. Especially when all you thought you were doing, as here, was "preserving" your client's rights.

And getting bit in the behind for eight million dollars as a result.

Bullis Charter School v. Los Altos School Dist. (Cal. Ct. App. - Nov. 21, 2011)

2011-11-21T16:20:00.000-08:00

The respondents' petition for rehearing cites 39 cases that it didn't cite in its underlying brief. That's indeed some indication, as the Court of Appeal notes in denying the petition, that the arguments made therein might be new. Not conclusive, mind you. Maybe they're just bearing down at this point on a key issue raised by the earlier brief. But still, some evidence.

The Court of Appeal might, however, want to change the third sentence of the new footnote, which currently reads: "To the extent the petition raises new arguments and cites new authorities, it is an improper." Either to delete the word "an" or to finish up the sentence.

But the point's nonetheless pretty clear. You can your chance. We're not going to let you make new arguments later.

Hopkins & Carley v. Gens (Cal. Ct. App. - Nov. 21, 2011)

2011-11-21T12:54:00.000-08:00

This is why you have to be very, very careful about the clients you elect to represent. Because sometimes you're judged, among other things, by the company you keep. And when you represent someone who the lower court describes as a sleazeball, often, your attempts to represent that client and advance his interests will transfer that appellation onto you as well.

Here, for example, the trial court described the client as (essentially) a monstrously manipulative liar, saying that his claims that he "sold" his home any hence didn't receive notice of the underlying arbitration -- when the "sale" was to his wife for nothing -- were representatively bogus. The trial court said that it could not recall "ever seeing more evidence indicating an attempt to avoid service of process by an individual than what I have seen in reviewing this file," and the Court of Appeal expressly agreed with this statement. In short, the client was not sympathetic. At all.

Which led, understandably, to the client being sanctioned. And when the trial court extended those sanctions to the attorneys, the Court of Appeal was happy to affirm. Stating, among other things, that "nothing short of a book could describe all the ways in which Gens and his attorneys have sought to distract and mislead the courts in this matter." Ouch.

The attorneys for Gens are J. Michael Matthews and Andrea Kendrick, both from Chapman, Popik & White. Both of whom undoubtedly regret having taken him on as a client at this point. Because no matter how much Gens paid them, it's probably not worth getting the huge rebuke they received today by the Court of Appeal.

So be careful the company you keep.

Reliable Tree Experts v. Baker (Cal. Ct. App. - Nov. 7, 2011)

2011-11-21T10:22:00.000-08:00

Here's an appeal about $6700 in which it couldn't be more clear that the plaintiff is wrong and the appeal accordingly meritless.

Not frivolous, mind you. But meritless.

Over $6700.

What an efficient allocation of social resources.

Salehi v. Surfside III Condominium Owner's Ass'n (Cal. Ct. App. - Nov. 14, 2011)

2011-11-18T12:05:00.000-08:00

This is why you should be very, very careful about filing suit against your homeowner's (or condo-owner's) association. Even if you're a smart attorney. Even if, in fact, you might be right.

Because the HOA has an incentive to fight the lawsuit, and may rack up a quarter million dollars in legal fees that you ultimately might be forced to pay.

That's what Ventura attorney Susan Salehi discovered this week. As a result of an opinion by Justice Yegan that's unlikely to add him to Salehi's list of Christmas card recipients.

For what it's worth, I think this one could have been shorter, and perhaps a little less harsh to Salehi. Salehi dismissed all but two of her causes of action without prejudice on the eve of trial. I agree with Justice Yegan that before deciding whether the Association is the prevailing party (and hence entitled to costs), it should see what happens to the remaining causes of action. Accordingly, I think it's probably enough to say that a party who dismisses her causes of action without prejudice right before trial may well end up being the loser, and that it was hence an abuse of discretion to categorically deny the Association its fees. At least at this point.

That way we'd get the right result and perhaps slam Ms. Salehi a little less.

Perry v. Brown (Cal. Supreme Ct. - Nov. 17, 2011)

2011-11-17T13:48:00.000-08:00

The California Supreme Court answers the Ninth Circuit's certified question -- fairly rapidly, even -- and holds that initiative proponents do indeed have standing under state law to defend that initiative.

The opinion is unanimous. It's also correct. The whole point of an initiative is to get around the regular representative process. This would be frustrated if the executive could effectively invalidate an initiative by refusing to defend it in court.

The (much) harder question is whether, notwithstanding state law, there's Article III standing in federal court. Because just because states might permit a defense doesn't mean that the Constitution allows such a defense in federal court. My personal view is that (1) Article III standing should exist, but (2) under United States Supreme Court precedent, it probably doesn't. To put it differently, if I were writing on a blank slate, I'd hold that there's federal Article III standing, but it nonetheless seems to me that such a position can't be reasonably squared with the Supreme Court's decision in Arizonans for Official Language v. Arizona or the dismissal for lack of jurisdiction in Continental Illinois. I might well not have signed onto those adjudications, but having been outvoted, I'd be compelled -- either as a lower court (precedent) and perhaps under stare decisis even in the Supreme Court -- to follow it. Hence no standing.

Which will make it interesting to see what the Ninth Circuit -- and, potentially thereafter, the Supreme Court -- will do. I think the Ninth Circuit did the right thing to certify the state law issue, and if it adopts a neutral adjudication, I think it should dismiss the appeal on Article III grounds, if what you're doing is deciding the case based upon existing precedent. What else happens is less clear. I'm not sure whether the Ninth Circuit will critique Arizonans for Official Language even though they accomplish the same result; I know I would. And reasonable minds may differ about what an Article III dismissal means as a practical matter for the underlying case. Though I don't think that either of these things changes the proper outcome.

What the Supreme Court would then do is even less clear. Because, on the conservative side, you'll have a group of justices hostile to gay marriage who nonetheless agree with strict standing limitations and Arizonans for Official Language. So they'll be inclined to want to find standing in this case only and for that reason to distinguish the case, but I don't think that's a reasonable interpretation of what the Court said in that case (or in the earlier dismissal). Did they get it wrong in those prior cases? Perhaps. But when you say, as the Court did in Arizonans, that this Court has "[n]ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated," well, that seems a pretty good answer to whether initiative proponents are Article III-qualified defenders of the measures they advocated. Including here. Again, I think that's not the right rule, but the Court signed onto it (without dissent), and even if it's dicta and if the prior adjudications on Article III grounds were done in a summary fashion, that nonetheless tells you where the Court has previously stood.

I'm nonetheless quite confident at least some justices would adopt precisely such a view. Sadly. And on the liberal side, there are the exact opposite preferences: not liking strict Article III limits but being pro-gay-marriage. So they're in a quandry as well: They might well like to overrule Arizonans for Official Language, but would rather not choose this case in which to do it.

So it'll be interesting to see what transpires. But so far, things are going as they should.

People v. Mendoza (Cal. Supreme Ct. - Nov. 10, 2011)

2011-11-17T10:45:00.000-08:00

Shoot a cop in the face -- for no reason -- and you're going to be sentenced to death. And the California Supreme Court will unanimously affirm.

Even more so if the key witness tells the jury that the police officer was "really nice," and not like other officers who are mean or sarcastic.

Being a police officer is a tough job. Massive periods of inaction occasionally interrupted by seconds of extreme danger.

Pomona Police Officer Daniel Fraembs had no idea that he was about to be killed. He thought he was just stopping a couple of kids who were on the railroad tracks for a curfew violation or something. He decided to frisk someone who had a knife sheath on his belt, and when he turned his back to the other youths to conduct the frisk, one of them pulled a gun and shot him in the head. Because he was a felon in possession, knew he was likely to be the next one frisked, and would then have spent 18 months or so in prison.

So Fraembs dies. As will Mendoza.

People v. Ruffin (Cal. Ct. App. - Nov. 4, 2011)

2011-11-16T10:53:00.000-08:00

Here's one about which you should have an opinion.

On the one hand, the Court of Appeal has a darn good point. It's profoundly silly to do what the Legislature has apparently done. Maurice Ruffin was a prisoner, and a guard saw a female visitor with her head in his lap in the visiting area. That's a crime. No oral sex for prisoners while you're in prison. Even if consensual. He pleads guilty and gets sentenced to 16 months in prison.

That part's not silly. Or at least not profoundly so. We can legitimately say that one of the deprivations that you receive when you're in prison is that oral pleasure is out of bounds. And punish you accordingly.

What's somewhat absurd, however, is that as a result of the conviction, Ruffin -- who's never before been convicted of a sex-related offense (he's simply a robber) -- is now subject to mandatory lifetime registration as a sex offender. A penalty that's not only darn severe, but simply bizarre. The theory behind registration, of course, is that we want to know where you are so we can make sure that you don't reoffend. But remember: What Ruffin did was not only consensual, but isn't illegal outside of prison. So we're forcing him to register forever in order to make sure that he doesn't commit an offense that he's now perfectly entitled to commit. Wacky.

But it gets worse. Prison inmates who have consensual relations with anyone while in prison are subject to mandatory registration. But prison guards who have consensual relations with an inmate aren't. The latter's a crime, to be sure, and almost assuredly the more serious one -- after all, there are power differentials, the potential for abuse and/or quid pro quos, etc. Yet we give it the lesser penalty, including no mandatory sex offender registration. Crazy.

So on the one hand, I can't come up with a valid defense for this disparate treatment that makes sense. None. It's just silly.

But the difficult part is remembering that courts aren't the Legislature. We don't take policy-oriented votes, or decide what's silly and what's not. Judicial officers have a very circumscribed role.

So when the Court of Appeal holds -- as it does here -- that the statute is an unconstitutional violation of the Equal Protection Clause, my eyebrows get raised.

Do I agree that the disparate treatment is unwarranted? Yep. Without a doubt. But we're not talking about a suspect class here. The only relevant inquiry under the Equal Protection Clause is rational basis review. A review that doesn't require the Legislature to give a reason, that doesn't require the Legislature to get it right, and that doesn't require the Legislature to have a good argument for what it does. Rather, we ask ourselves only whether there could possibly be some potential reason for the disparate treatment of the two classes: a group of prison guards, singled out for lesser punishment, and a group of prisoners singled out for more.

And, on that score, I gotta say, yeah, there's an argument. Personally, yes, I'd punish the guards more. For all the reasons I identified above. But a legislator with a different personality might do the exact opposite. A legislator might think that guards are generally good people; that they operate under stress; that they generally do things for good (rather than bad) reasons; and that even when they make mistakes, they should generally be forgiven, or at least have the option of being forgiven. Hence justifying no mandatory registration. At the same time, that legislator might think that incarcerated criminals are already one-time losers; that they tend to do things for bad (rather than good) reasons; that the need for prison rules is critical; and that prisoners who offend while already in prison are the most likely to reoffend. Such a legislator might also believe that while a guard who mistakenly has consensual contact with an inmate is generally unlikely to commit other sex crimes once caught and punished, an inmate who's so desperate for sex that he's willing to violate the sex rules while in prison might not only engage in similar conduct once released, but other sex-related statutes as well; e.g., sex with minors, with relatives, with unconsenting people, etc. So such a legislator might well vote to make sex offender registration mandatory for prison inmates but not for guards.

And, in this regard, the standard of review is critical. The question is not whether that legislator is right, and is not even whether that's why, in fact, the Legislature did what it did. The issue is simply whether a person could legitimately hold such a view. And since I'm quite positive that at least one (non-insane) member of the California Legislature does, in fact, hold such a view -- and probably several others as well -- that seems a strong argument in favor of the statute's validity. As crazy and as silly as it undoubtedly is.

So, look, I like that the Court of Appeal takes these things seriously. A lot. But rational basis review can only do so much. And I'm pretty darn skeptical that it can do the work that the Court of Appeal has it do here.

I could potentially see an argument that consensual sexual activities are fundamental rights, thereby subjecting the disparate treatment here to potentially intermediate review (or at least "rational basis with teeth" -- though that phrase seems somewhat ironic given the underlying context). But even that's a difficult push, as we are talking about consensual sex relations in prison, and at that level of generality, we're probably no longer on the "fundamental right" grounds.

So while I'm sympathetic to the Court of Appeal's holding, I'm not sure I can agree with it. It definitely makes for better law. I just don't believe that the Equal Protection Clause, as currently construed, permits us to get there.

Ninth Circuit Goes For the Modern Record (9th Cir. - Nov. 11-15, 2011)

2011-11-15T13:52:00.000-08:00

The Ninth Circuit issued no published opinions on Friday, which was not surprising, as it was Veteran's Day. It then issued no published opinions the following Monday (yesterday). Veteran's Day hangovers, most likely. And today, it again issues no published opinions. Must have been quite a bender.

That's pretty unusual. Rarely does a day go by with no published Ninth Circuit opinions at all. It happens around once a month. It's very rare for this to happen on consecutive days. Moreover, even then, it tends to occur later in the week. Thursday and Friday, for example. My guess being that the clerks and judges may crank out work over the weekend and as the week ends, but might occasionally fade as the weekdays progress.

There was a week back in 2009 which only saw published opinions on one of the five days that workweek: October 13, 15 and 16 (Tuesday, Thursday and Friday) were blanks, and October 12 was Columbus Day. Similarly, just last month, October of 2011 saw another string of blanks, with no published opinions on October 6 and 7 (Thursday and Friday), and none on the following Monday (October 10) either. October 10 being, yet again, Columbus Day.

So clearly there's something on with Colubus Day. Lots of partying (and subseqeunt recovery) on that day in 2009, and apparently -- having learned their lesson two years previously -- there was a transition to tons of pre-partying instead this year. And yeah, yeah, don't give me some cock-and-bull story about new law clerks replacing the old ones during the summer and that explaining the gaps in October arising from the lull between end-of-clerkship opinion issuance and the new clerks writing their new opinions. We all know the judges do all the writing themselves. Clearly what we've been seeing is entirely due to Columbus Day.

But that doesn't explain this week. Maybe now Veteran's Day is the new (additional) Columbus Day. Regardless, we've now seen three days in a row with no published opinions. A blank tomorrow will set a new modern record.

Here's hoping the Ninth takes another day off.

POSTSCRIPT - On Wednesday morning, Judge Pregerson broke the streak by issuing a five-page published opinion. The only one of the day. But the streak is dead. Long live the streak.

People v. Nelson (Cal. Ct. App. - Nov. 14, 2011)

2011-11-15T10:21:00.000-08:00

This is the most important opinion in the history of California appellate jurisprudence.

Okay, so I exaggerate. But I bet you that for the majority of Californians, this opinion has greater practical significance than 99.999% of anything else they'll read in the pages of the California Appellate Reporter.

The critical issue is this: Can you use your cell phone at a red light?

The operative statute provides that you can't talk on a non-hands-free phone when you're "driving." Carl Nelson's sitting at a stop light, flips up his cell phone, and starts making a call. Not realizing that a motorcycle cop had pulled alongside him at the light, and so was sitting right outside his driver's side window. Once Carl saw the cop, he closed the phone and put it down. But the cop decided to give him a ticket anyway. (And I know what half of you are now saying to yourselves: "Jerk." Though some of you are saying that about the police officer, while others are saying that about Cell Phone Carl.)

But Carl says he shouldn't get a ticket, because the light had never turned green. So he wasn't talking on the phone while "driving," he says. And he cites a case from the California Supreme Court that reversed a drunk driving when a dude was found sleeping in his car, with the engine and lights on, that holds that (in that case) a conviction for "driving" while intoxicated requires proof of volitional movement. So Carl says he was not "driving" while on his cell phone because he wasn't moving. The Attorney General's Office, by contrast, says that the legislative history of the statute reflects that anyone should be punished who is "operating" a motor vehicle while using a cell phone, and that Carl's ticket should be affirmed on that basis.

First, the holding. Which you should definitely know. Carl loses. You can't use your cell phone at a stop light. End of story.

I think the Court of Appeal is correct in that regard. I think that Carl was "driving" even though he was at a stop light. That counts.

But I say that even though I'm a lot more conflicted in that regard than the Court of Appeal. And certainly more than the Attorney General's Office. Carl's best argument, in my view, is his argument that the use of a cell phone is a transient act -- even more transient than driving while intoxicated. You can use a cell phone at a stop light and not endanger anyone. It's fine. Perhaps even more persuasively, you can do lots of stuff at a red light. Pick your nose. Look in the glove compartment. Take off your shirt. Close your eyes and take a nap. Do even stupider stuff. Why would the Legislature allow you do do all these things -- things that are far more dangerous and distracting -- but not allow you to talk on a cell phone? Doesn't make sense.

I agree with that. At least in part. But I still don't think that necessarily means you get to talk on a cell phone at a red light. Because the Legislature doesn't have to make sense: it's rational basis review, after all. And I am pretty confident that the dangers of cell phones are more in the public consciousness than the dangers of nose picking. That they choose to legislate about the former and not the latter just makes them inconsistent, but that's not fatal to a statute. More importantly, I think the Legislature might well think that someone who starts talking on a cell phone at a red light might not always stop immediately once the light turns green. It's harder to stop talking than it is to stop searching the glove box. Because the former might be interpreted as rude. So the Legislature could well think -- as I do -- that it makes sense as a prophylactic matter to not allow talking on cell phones, even at red lights, because doing so would advance public safety even though talking at a red light by itself might not be such a bad thing.

That said, I'm not willing to buy the Attorney General's argument that the correct interpretation of the statute is that anyone who's operating a motor vehicle can't use their cell phone. I think that argument picks loose language from the legislative history to advance unjustified ends. And I'm more than a little bummed that the Court of Appeal didn't specifically reject this argument. Because you "operate" a motor vehicle in far more circumstances than just sitting at a red light. For example, imagine that you want to make a cell phone call, and thus pull over to a parking space on the side of the road and make your call (but stay behind the wheel and leave your engine running). Under the Attorney General's view, you're guilty of an infraction.

But I don't agree. Talking on your cell phone while outside of driving lanes seems perfectly fine to me. You're not "driving" at that point, even if you're "operating" your motor vehicle (as you clearly are). It's one thing to say that, at a stop light, you're still "driving" even if not moving. It's another thing to try to argue that even when you've pulled over, that cell phone's got to stay in your pocket. I'm not on board for that. And I wish the Court of Appeal had expressly said so as well. Particularly since the Attorney General's Office was advancing an interpretation of the statute that I don't find plausible, and that might in fact deter people (if not expressly rejected) from doing socially beneficial things like pulling over if they want to make a call.

So know what the lay of the land is here. And, at a minimum, get a hands-free device. Or just stay off the phone entirely while driving. Because even when you're not using your hands, the evidence about accident rates when you're talking on the phone while driving is shocking. Truly amazing stuff. It's like being drunk. Even hands-free. So don't do it.

But I know this last advice falls on deaf ears. Such is life. But at least my counsel about cell phones and red lights might be heeded. Do it only if you're hands-free. Otherwise Nelson's fate could well be yours.

Rich v. Thatcher (Cal. Ct. App. - Nov. 14, 2011)

2011-11-14T12:40:00.001-08:00

The California Court of Appeal starts the week by issuing an opinion that really should go up to the California Supreme Court.

Sure, maybe it's not as clearly-review-worthy as the health care challenges that the U.S. Supreme Court decided to review today. But it still involves an issue that cries out for the review by the California Supreme Court: When do grandparents get to see their children notwithstanding the objection of the child's parent(s)? Here, for example, Father dies, and Mother doesn't want Father's parents to have any visitation with the kid. We know the standard, and it's the usual one in these cases. Best interests of the child. But what evidentiary standard do we apply? Preponderance of the evidence? Clear and convincing evidence? Something else?

Justice Yegan, in a very short opinion (seven double-spaced pages), holds that the standard should be clear and convincing evidence. But he does so relying almost exclusively on an opinion by Justice Chin in 2004. But that was a concurring and dissenting opinion joined by . . . no one else. At best, Justice Chin had one other potential vote for it (Justice Brown), but the majority clearly didn't want to sign onto this point. And Justice Chin was perhaps right (in footnote 6 of his opinion) when he argued that it was somewhat strange that the Court did not decide whether the clear and convincing evidence test was applicable even though the issue was raised and briefed by the parties. But that might have been a pretty good indication of their call on the issue, particularly when Justice Chin decided that he would raise the issue and still couldn't get anyone to formally sign on.

The California Supreme Court instead held that the statutory scheme gave a rebuttable presumption in favor of the parent's decision to exclude the grandparents. That seems right. The issue then becomes whether the statute (or the Constitution) requires something more. Justice Yegan agrees with Justice Chin that it does, arguing that the Due Process Clause grants the parents the primary right to raise the child. There's a decent argument in that regard. But it was also one that the California Supreme Court didn't seem to find especially compelling, arguing that granting visitation didn't detract from that right -- that letting grandparents into the kid's life when there was a finding that it was in the kid's best interest did not negate the parent's authority over the child.

So one view might be that what the California Supreme Court did in Marriage of Harris was correct, and that the appropriate test is the rebuttable presumption the Court created therein. Or another view might be that something more (like the clear and convincing evidence test) is the proper one; that's what Justice Chin argued -- saying that a rebuttable presumption was "meaningless" -- and Justice Yegan and the rest of the panel agrees.

But whatever your view of this issue, its proper resolution should not depend upon which panel one happens to draw on appeal. The California Supreme Court did something in Marriage of Harris. Whether that's the right (or sufficient) take was at issue in that case, and prompted a split opinion. The subsequent resolution of this issue by the Court of Appeal should thus be reviewed. And it's an issue of sufficient importance that we shouldn't wait to do so. The California Supreme Court should grant review of this case.

U.S. v. Ceballos (9th Cir. - Nov. 7, 2011)

2011-11-14T11:07:00.000-08:00

I agree with the panel that there's no appellate jurisdiction over a nonbinding recommendation made by a district court regarding where an inmate should serve his sentence. It's nonbinding. It's not part of the sentence. No appeal.

Given that, I'm not so sure it makes sense to have the first part of the opinion actually decide this question. Which the panel here does. It seems particularly anomalous to tell the district court that it has no jurisdiction to amend a sentence as part of your resolving an appeal over which you have no jurisdiction. It feels sort of like a pot calling the kettle black.

Which isn't to say that the panel can't say whatever it wants. It can. The lack of jurisdiction doesn't stop you from making whatever observations you'd like. Including, when you're on the Ninth Circuit, from saying how you'd resolve an appeal were you in fact to have jurisdiction.

But don't forget that the district court is similarly unconstrained. The Ninth Circuit decides (in dicta) that the district court wasn't authorized to amend the sentence to recommend a particular placement. But that doesn't stop the district court from recommending a placement outside the actual judgment, and the Bureau of Prisons appears to give deference to placement recommendations from the sentencing court regardless of in what document such recommendations are made.

So just like the Ninth Circuit can say what it feels, so can the district court. And while both lack technical legal significance, both have profound practical effect.

Which is what matters.

Lacey v. Maricopa County (9th Cir. - Nov. 10, 2011)

2011-11-11T12:43:00.000-08:00

As I said when the original opinion came out earlier this year, Judge Bybee wrote a pretty darn good (partial) dissent in this one.

I was apparently not the only one who thought so. Because the Ninth Circuit just took the case en banc.

Executive Benefits Ins. Agency v. Arkison (9th Cir. - Nov. 4, 2011)

2011-11-11T11:23:00.000-08:00

I love it when the Ninth Circuit invites amicus briefs. It's awesome.

I'm not going to write one in this case. As I know little -- wait, make that nothing -- about the relevant issue.

But if you have an opinion, by all means, share it with 'em. The question is: "Does Stern v. Marshall, 131 S. Ct. 2594 (2011), prohibit bankruptcy courts from entering a final, binding judgment on an action to avoid a fraudulent conveyance? If so, may the bankruptcy court hear the proceeding and submit a report and recommendation to a federal district court in lieu of entering a final judgment?"

No idea. But we'd love to find out.

You've got thirty days to submit the brief.

POSTSCRIPT - The day after Thanksgiving, the Ninth Circuit gives everyone another 45 days. Yay! So now you've got until January 19, 2012. So put that on your holiday to-do list.

Schad v. Ryan (9th Cir. - Nov. 10, 2011)

2011-11-10T11:54:00.000-08:00

Here's an opinion (in 2009). No, wait. We want to amend it. Here's our revised opinion (in 2010). Which still has the same lineup on the votes, but substitutes a new defendant, since there's a new warden.

Hold on. We want to amend the opinion again. Here's the second amended opinion. Still in 2010. Same lineup. But we also include Judge Callahan's dissent from the denial of rehearing en banc. As well as make some minor changes in the panel opinion.

Wait. We're not done. It's 2011. Time for another amendment. Here's our third amended opinion. Which has the same parties as the earlier amended opinions, but now has a different lineup. Since Judge Graber has now replaced Judge Rymer, making the opinion unanimous. With Judges Schroeder, Reinhardt, and Graber all agreeing on the result.

Though not the way you'd think. The previous opinions reversed the denial of habeas relief with respect to the death sentence. This last opinion affirms the denial of habeas relief.

That's what the panel does today in this per curiam death penalty case.

Three points. Beyond noting that I don't recall previously seeing an opinion that was amended three different times over a period lasting more than two years.

First, notice that the defendant sentenced to be executed outlives one of the members of the panel. There's irony for you.

Second, I recall reading a Senate report -- as well as an interview with Judge Reinhardt at some point -- that said that Judge Reinhardt had never voted to affirm a death sentence. Well, if that was ever true, it's not the case now. Since Judge Reinhardt's on the panel, and the panel's final opinion affirms. So Edward Schad will indeed be killed. With Judge Reinhardt's assent.

Finally, the panel's final amendment is not, as you might expect, due to a change of heart. But rather a result of a change in precedent. The Supreme Court held in Cullen that when state courts have decided an issue on the merits, federal courts can't consider additional evidence on habeas. So that's fatal -- literally -- to Schad. Which is why the Supreme Court GVR'd the second opinion and sent in back to the Ninth Circuit, which then did what it did.

Technically, I'm not sure that this is the panel's "Third Amended Opinion." Since the fact that the case went up to the Supreme Court, which then vacated the earlier result, means that this is actually the first opinion on remand. So I'm not sure I'd style it this way.

Moreover, this may actually have doctrinal (and practical) significance. The panel enters an order alongside the latest opinion by saying that no future petitions for rehearing or rehearing en banc may be filed. I'm not sure that's proper. This is a new opinion on remand. Heck, it's a different result. It's one thing to say that when you've made minor changes in an opinion, that doesn't restart the clock. It's another to say that even when a case (1) goes up to the Supreme Court, (2) gets vacated, and (3) the panel changes the result of the case, no one's permitted to ask for rehearing. You might, after all, have gotten the new result wrong. And the judges who might want to ask for a rehearing en banc -- and who might be keenly interested in hearing a petition requested such relief -- are different judges than the ones who previously tried (but failed) to take the case en banc. Since the sides are now flipped.

It's not that I don't understand the practicalities. The Supreme Court GVR'd the case. The handwriting's on the wall. Ed's going to die. But I think that, procedurally, the case is in a different posture than what exists when an opinion is simply amended. And the fact that we know that an en banc call (or request for panel rehearing) isn't going to be successful is not a sufficient reason to preclude such a request. Since, after all, that's true 99% of the time anyway.

Bauman v. DaimlerChrysler Corp. (9th Cir. - Nov. 10, 2011)

2011-11-10T11:47:00.000-08:00

Judge O'Scannlain writes a sharply worded dissent from the denial of rehearing en banc -- joined by seven other judges -- of an opinion about . . . wait for it . . . personal jurisdiction.

He's pitching the Supreme Court to take up the case. And, for selfish reasons, I'm in favor of anything that gets more civil procedure cases before the Court.

Makes my academic job more interesting.

Teroso Del Valle Master HOA v. Griffin (Cal. Ct. App. - Nov. 1, 2011)

2011-11-09T14:17:00.000-08:00

Get your ugly solar power out of my pretty homeowners association.

Though I actually agree with the Court of Appeal here. The HOA won at trial. Its victory should be affirmed on appeal. The homeowners are wrong.

People v. Nunes (Cal. Ct. App. - Nov. 1, 2011)

2011-11-09T10:26:00.000-08:00

Don't steal beer. Don't drink stolen beer. Don't drink stolen beer on the railroad tracks and throw rocks at passing Amtrak trains. Not good lifestyle choices.

But even more important advice: If you're an engineer on said train, don't stop the train, get off, and confront the perpetrators. Because these offenders may well be gang members who will beat you within an inch of your life. As well as the other Amtrak employees on the train who come to your aid.

Jaramillo v. County of Orange (Cal. Ct. App. - Nov. 8, 2011)

2011-11-08T16:22:00.000-08:00

Sometimes I look in vain for someone sympathetic. A plaintiff. A county. A witness. A defendant. Someone.

This is one of those cases.

I don't want anyone to win. Particularly not Jaramillo or Orange County. But those are the two litigants. One of whom has to win.

It's Jaramillo.

Both of 'em did wrong, in my view. Egregiously wrong. But someone's gotta win.

In Re Marriage of Seaton (Cal. Ct. App. - Nov. 8, 2011)

2011-11-08T11:40:00.000-08:00

There's a quote-worthy line in Fletch (one amongst many) in which Chevy Chase tells Alan's wife, Gail: "Sally Ann and Alan were married eight years ago. Never divorced. Making Alan a bigamist. Even in Utah."

If only real cases were that simple. What about in Nevada?

You'd think the case would be easy, right? Bigamous marriages are void. No good. Don't exist.

But how would you decide this one:

Patricia marries Richard in 1973. She separates from him in 1987, but doesn't divorce him (yet). She then hangs out with Henry, but in 1988 breaks up with Henry to start dating Jeffrey. But a couple months later, an apparently persuasive Henry takes her to Reno, sets her up at a buffet, does some tequila shots with her, and boom, they get married that evening. Remember, by the way, that Patricia's dating Jeffrey at this point and is still married to Richard. All of which Patricia knows, so she falsely states on her Nevada marriage license that she's had previously divorced Richard. Not true.

Patricia eventually sobers up and decides, hey, maybe that Henry chap isn't really my cup of tea, and then continues to date Jeffrey. The next year, Jeffrey finds a picture of Patricia getting married to Henry, and (quite understandably) says: "What the hell?!" Patricia tells her the story, and Jeffrey says, babe, you have to get that annulled or something. Patricia says, yeah, I know, sorry about that, I'll take care of it.

Later that year, Patricia tells Jeffrey: "Honey, you rock. I got a divorce from Richard. I also got the marriage to Henry annulled. I'm free!" Jeffrey responds: "That's great, darling. Just remember that, for the moment, I'm still married." Since Jeffrey married Debra in 1970. Although Jeffrey separated from Debra shortly after he met Patricia, he was still married to her at this point.

Did I mention, by the way, that Patricia was a legal secretary? And that Jeffrey was, at that time, a law student? 'Cause they were.

Jeffrey then passes the Bar, which is a time of transition for many of us. And Jeffrey decides to mark the occasion by divorcing his wife, Debra, and marry Patricia. Which he does. In 1991, Jeffrey divorces his wife, and the next month, he marries Patricia. Who had indeed divorced Richard in 1988.

No problem. Except for one thing. Debra had indeed divorced Richard, but lied about getting her marriage to Henry annulled. That hadn't actually transpired.

Fast forward to 2008, at which point Jeffrey files for legal separation from Patricia, and Patricia responds by filing for divorce. Jeffrey eventually discovers that Patricia did not, in fact, ever out of get her marriage to Henry. So he then amends his answer to say that the parties don't need to get divorced, since they were never married. Bigamous marriages being void and all.

To which Patricia responds by essentially saying that Bigamy Plus Bigamy Equals Marriage. Saying that at the time she married Henry, she was still married to Richard, which meant that she was never really married to Henry, and hence her second bigamy wasn't really bigamy due to the first bigamy.

Which makes for a conundrum. Because not only do we have to figure out if that's right, but we also have to decide all of the above according to the law of Nevada -- the place where the second marriage transpired. What would Nevada say about all this?

There's a Nevada Supreme Court case that holds, in dicta, that you still need an annulment to get out of your bigamous marriage. Which Jeffrey and the trial court seize upon to hold that, yep, the parties were not in fact married -- we're talking about Jeffrey and Patricia at this point -- because Patricia never dissolved anything with Henry before marrying Jeffrey.

But the California Court of Appeal reverses. Holding that, no, that was just dicta, and in a case involving a putative spouse, and that really, Nevada law is probably more like California law, which holds that you don't have to do anything to a bigamous marriage because it was void (not merely voidable) at the outset. It does not exist, so there's nothing to dissolve.

So Patricia wins. Even though she's a huge liar. (I'm crediting Jeffrey's version of the facts here -- as did the trial court -- both because it's eminently more credible as well as because it makes things cleaner.)

But that doesn't end things. Because, okay, the parties were in fact married. But does that really mean that Patricia -- the one who entered into the bigamous marriage -- gets to use that bigamy against Jeffrey? That she gets to defend her marriage to Jeffrey by attacking her marriage to Henry: a marriage that existed only due to her own fraud?

Because even though we say that bigamous marriages are void -- that they never existed -- that's not, in fact, always the case. For example, if X has to pay alimony to Y until Y gets remarried, and Y then gets married, a marriage that's bigamous, California holds that Y can't use the bigamy to attack her own marriage: X gets out of the alimony obligation even though the marriage is in fact void. Ditto for children: Kids born during a bigamous marriage are still legitimate (with the appropriate conclusive presumptions) even though we declare the marriage void. So do we really want to let Patricia take advantage of her own fraud? Or do these cases suggest that we should instead preclude her from attacking the validity of her own marriage?

Justice Mauro concludes -- and I think correctly -- that it's okay to let Patricia attack her own marriage. On the ground that, vis-a-vis Jeffrey, he's simply getting what he expected. He thought that he was marrying someone who wasn't married. He thought that their marriage was valid. So it doesn't really create inequity to say, for all intents and purposes, that, yeah, your marriage was indeed valid. Even though the reason it was valid was not necessarily why you thought it was valid at the time.

There's only one part of the opinion that I would change. At the end, Justice Mauro awards costs to Patricia. I'd have had 'em bear their own costs. Patricia still wins. But I don't condone what she did. I think that even though Jeffrey probably should lose, equity would counsel in favor of not making him pay his future-ex-wife's costs. I figure he's gone through enough.

You'd think that this was a television episode. Indeed, it should be. Don't be surprised if you see it on one of those law shows at some point. But it's real. Some law firm out there, and one more more lawyers, lived this drama.

Welcome to California.

Ditullio v. Boehm (9th Cir. - Nov. 7, 2011)

2011-11-07T10:55:00.000-08:00

My students sometimes ask me why we read dissents, since they're not the law. I generally respond in part that we read them because they often enlighten us to the policy consequences of the majority's decision, and also identify an alternative way the court could have gone. I also mention that sometimes dissents may affect future judicial developments, either in the lower courts or in the Supreme Court. That's especially the case, I add, when the decision is close (e.g., a 5-4).

Here's a good example.

It's not that Justice Rehnquist's dissent made an actual difference in the outcome, as Judge Callahan simply authors a dissent herself. But read her opinion. It follows directly from what Justice Rehnquist said. And if there had been another vote like Judge Callahan's, the law would be different. At least in the Ninth Circuit, and potentially elsewhere. Moreover, she expressly notes that the underlying decision was a 5-4, a fact that (as my students realize) is technically totally irrelevant, but which may nonetheless sometimes may a practical difference.

Good to have concrete examples of the things we teach. Here's one of them.

Glenn v. Washington County (9th Cir. - Nov. 4, 2011)

2011-11-04T12:32:00.000-07:00

The more I read this opinion, the more I became convinced that there was utterly no reason why 18-year old Lukus Glenn had to die. At least viewing the evidence in the light most favorable to the nonmoving party. I would be horrified -- horrified -- if I were his parents, and watched the police kill him.

I agree with Judge Fisher, who reverses the grant of qualified immunity to the officers. And then some. I have rarely seen a case in which I'm more sympathetic to the parents.

Washington County better hope it pulls a jury without parents on it. Because even just reading the thing would make me think twice before calling the police to assist me with an unruly child. My reaction to actually hearing the evidence might be even stronger.

People v. Carlson (Cal. Ct. App. - Nov. 2, 2011)

2011-11-03T16:10:00.000-07:00

Don't drink and drive. You'll eventually be caught and convicted, and (among other penalties) be ordered to participate in drunk driving offender programs.

Don't thereafter drink and drive again. You'll, again, eventually be caught and convicted, and again punished and ordered to do the programs.

Don't thereafter drink and drive yet again. You'll yet again eventually be caught and convicted. You'll again be punished, your license will be suspended, etc. etc.

When of the above happens between 2001 and 2006, to reiterate, don't drink and drive. Because when, in January 2007, you do, this time, you may kill someone -- in particular, the passenger of your car. In no small part because you've got a .23 and are weaving in and out of traffic at almost 95 miles an hour. Which, again, you should not do even in the abstract, and certainly not when drunk.

And when all of that happens, we'll convict you of murder. And sentence you to fifteen years to life in prison.

And the California Court of Appeal will affirm.

Suzanne Amelia Carson didn't follow this sage counsel. She was 27. She'll be a lot older when she gets out of prison.

Mirmehdi v. U.S. (9th Cir. - Nov. 3, 2011)

2011-11-03T11:11:00.000-07:00

This introduction almost seems deliberately baiting.

Judge O'Scannlain begins his opinion with the following paragraph: "We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention."

To which I immediately responded -- out loud, even -- "Of course she can." The fact that someone's in the country illegally doesn't make her any less of a "person" protected by Due Process Clause. You can't run over a person with your car just because they're here illegally: they can sue you. You can't beat a person just because they're here illegally: they can still sue. You can't kidnap them either. The fact that you're here without permission doesn't deprive you of your constitutional rights or your ability to enforce them. That'd be a problem if the Constitution only protected "citizens." But it doesn't. It protects "persons." To put it in the way I'd tell my five-year-old, "Illegal aliens are people too." A fact that's both morally as well as constitutionally relevant.

I know from just the tone of the introductory paragraph as well as the lineup of the panel, however, that the opinion's going to hold that they can't sue. But I still can't believe that they're going to hold that illegal aliens can't sue because they're illegal aliens. Do I know some people feel that should be the law? Sure I do. But it's not, and I can't fathom that any intellectual respectable person is going to so hold.

It's only halfway through the opinion, however, when I start to realize that the panel's not really going to answer the "Question Presented" in the opening paragraph. We're not talking about whether illegal aliens "may sue for monetary damages claiming constitutionally invalid detention." We're instead only addressing whether they may sue for monetary damages claiming an invalid detention in immigration proceedings. So if you're going through immigration court and are detained as part of those judicial proceedings, do you have a freestanding right to sue under Bivens.

That's a completely different question than the one the opinion initially presents. Because even though the panel (predictably) says, no, we're not going to grant you a Bivens claim arising from immigration detentions, that most definitively does not mean that an illegal alien cannot "sue for monetary damages claiming constitutionally invalid detention." Take, for example, an illegally alien put into state prison in an unconstitutional manner. He can sue under Section 1983. The panel's holding doesn't change that. So he can indeed sue for monetary damages claiming constitutionally invalid detention. And even the panel concedes (in its final footnote) that even in the immigration detention context, an illegal alien can still sue the "officers who made the arrest at an operational level." Because there's a previous Ninth Circuit case that expressly so holds, and which they can't overrule. So there's another way to sue.

The question that the panel really answers is whether there should be (1) a freestanding Bivens claim (as opposed to, say, a Section 1983 claim); (2) for immigration detentions in particular. It's only in this particular context that the panel's adjudicating someone's right to sue. And that context is entirely omitted from the introductory paragraph, which mentions neither the Bivens aspect nor anything about the fact that we're only talking about immigration cases.

To be sure, the panel's decision disproportionately affects illegal aliens. They're generally the ones in immigration court and, thus, potentially illegally obtained. But the fact that they're illegally in the U.S. actually has nothing to do with the court's holding. For example, even aliens entitled to asylum (and who, as here, successfully obtain it) aren't permitted to sue. So even if you're "legally" here you still can't sue. Similarly, even aliens expressly permitted to be here -- e.g., those with tourist visas, green cards, etc. -- who are subsequently put in deportation proceedings (e.g., for committing a crime) are not entitled to sue under Bivens either. Again, it's not that they're here illegally, it's instead simply that, for whatever reason, they're in immigration court that precludes a Bivens suit. Indeed, the panel's holding extends even to natural-born U.S. citizens -- they can't sue either -- if they're ever detained in immigration proceedings. And while that's rare, it happens: the DHS occasionally seeks to remove people that they think are here illegally but who were in fact born here. Lots of cases on this. (And might even happen to President Obama if Donald Trump got his way.) Those U.S. citizens can't sue under Bivens either. Because the whole basis of the panel's holding has nothing whatsoever to do with whether someone's in the country illegally, but rather simply arises out of the fact that the remedies already available in immigration court -- hearings, judicial review, habeas petitions, etc. -- suffice by themselves (according to the panel) to provide an adequate remedy for unconstitutional detentions in those proceedings, thereby negating the need for a Bivens remedy.

Can reasonable people fight about whether that's in fact the case? Of course they can. Since none of those existing remedies provide monetary compensation for the harms of prior detention, and instead simply terminate any future detention. So you can see why some jurists might (and, I'm supremely confident, in fact do) disagree with even the panel's limited holding. Because what's the incentive not to unconstitutionally incarcerate someone in immigration court if the worse thing that can happen to you is that they eventually get let out?

But regardless of whether that limited holding is normatively correct, the point is that the opinion does not even attempt to answer the question ostensibly presented in the first paragraph. One that seems to go out of its way to touch hot-button issues: to advise the reader from the get-go that the result of its opinion will deprive "coddled" illegal aliens of illegitimately obtained rights. That's unnecessary, as well as inaccurate.

The case isn't about illegal aliens. It's about immigration court. And limited to Bivens remedies. Things nowhere mentioned in that first paragraph, and that affect illegal aliens and non-illegal aliens alike. And, with deference and respect, I think that introducing the opinion the way it does appeals -- whether deliberately or not -- to prejudice. And that ain't right.

So it's an inartfully worded introductory paragraph. It could be better. I'd have said: "We are asked to decide whether a participant in immigration proceedings has a freestanding claim under Bivens to sue for monetary damages asserting his constitutionally invalid detention." That's the real question, as well as sufficiently hints to the reader the way the panel's going to come out. Without interjecting things to which we need not appeal and which we do not, in fact, decide.

Conahan v. Sebelius (9th Cir. - Nov. 1, 2011)

2011-11-02T11:37:00.000-07:00

Gaye Glazer is diagnosed with liver cancer. Glazer wants surgery, but Kaiser doesn't want to pay for it, and Kaiser's Tumor Board instead suggests that Glazer undergo chemo. Which is cheaper, and which the Tumor Board prefers because surgery might leave Glazer with too little liver to survive.

But it's Glazer's life. She has the surgery. Which removes seventy percent of her liver. She files a lawsuit to have Kaiser cover her costs. She loses below. She lives almost five years after the surgery.

And dies eight months before the Ninth Circuit affirms Kaiser's denial of coverage.

Kaiser: Live; Work; Thrive. But don't expect us to pay for it.

Oglio Entertainment Group v. Hartford Cas. Ins. Co. (Cal. Ct. App. - Nov. 1, 2011)

2011-11-01T10:03:00.000-07:00

This is why you don't sign a musician to a record deal who sings lounge act versions of Ozzy Ozborne songs.

I can think of many, many other reasons as well.

Supremely Unpublished (Cal. Supreme Ct. - Oct. 31, 2011)

2011-10-31T14:11:00.000-07:00

One of the things I like most about the California Supreme Court is that, busy as they are, they're not too busy to occasionally engage in pure error review; e.g., to grant review of the occasional unpublished opinion that's really wrong. Sure, those opinions aren't precedential, so only affect the litigants. But that doesn't necessarily mean that the opinions are unimportant, or unworthy of correction. When you've got thousands and thousands of appellate decisions, some are bound to be wrong, and I think it's beneficial to step in on occasion and say so.

Moreover, since these opinions are (usually) pretty clearly wrong, it doesn't take up that much time to review them. The California Supreme Court's decisions in these cases are (usually) short and unanimous. Yes, they still have to write them and vote on them and have oral argument. But that ain't that tough. And I'm glad the Court's willing to put in the effort.

The two cases from the California Supreme Court today are like that. Here and here. Both unpublished opinions. Both get reversed.

I say this, by the way, notwithstanding the fact that in today's cases, you actually have disagreement; in one case, by Justice Werdegar, and in the other, by Justice Kennard. Even when there's not unanimity, I still am of the view that review is often proper. Because even though three (appellate) judges are more likely to get things right that one (superior court) judge, the former are still far not perfect. And that's true even when one or two California Supreme Court justices agree with 'em.

People v. Thomas (Cal. Ct. App. - Oct. 28, 2011)

2011-10-28T12:03:00.000-07:00

This makes me really inclined to voluntarily submit to an alcohol screening. Which the police used here as a pretext to obtain the defendant's DNA.

I'm sure, by the way, this was all coincidence. The police receive an anonymous tip about defendant. They follow him, and promptly stop him for alleged traffic offenses. They say he's got bloodshot and watery eyes, so ask him to take a PAS test, which he blows into -- at which point they now have his saliva and thus DNA, which they then analyze to tie him to a series of crimes. Of course, they don't charge him with DUI or even a traffic offense, since they got what they wanted. Plus he passed all the tests.

On the one hand, that's darn good police work. As well as permitted by contemporary jurisprudence. On the other hand, a cynic might note that the "anonymous" tip, the alleged "traffic" offense that they saw, and the officer's un-disprovable claim s/he saw signs of intoxication are all easily manufactured, thereby permitting the exercise of a great deal of unchecked executive power.

Two sides of the same coin. Depends on which you value more.

Miller v. City of Los Angeles (9th Cir. - Oct. 27, 2011)

2011-10-27T11:26:00.000-07:00

I probably come out somewhere between the majority and the dissent here; perhaps a middle ground. But if I had to choose, I'd probably say that Judge Ikuta's dissent has the better of the argument over Judge Kozinski's majority opinion.

Judge Kozinski, as he sometimes does, pitches his opinion with mystery and guile, commencing his missive with the following introductory paragraph:

"This is a strange case. Its resolution hinges on the absence, as a factual matter, of something we must accept as a legal matter. There are unlikely to be many more like it, so this opinion’s precedential value is probably limited. We nevertheless publish pursuant to General Order 4.3. While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts."

A neat little intro. Mind you, even as a facial matter, I disagree with one of the things he says in there: the part where he says lawyers should be less willing to apologize. Respectfully, I don't think that's really where the problem is these days. If I had to choose between telling counsel to put a thumb on the scale towards apologizing or a thumb on the scale the other way, I'd choose the former. So I'm not really sure I'd be as gung-ho as Judge Kozinski about publishing an opinion in an effort to try to convince lawyers to be more wary about offering an apology.

I get where Judge Kozinski's sentiment comes from. Here, there was an in limine motion, a lawyer seemed to violate that order during his closing argument, an objection was sustained and the lawyer immediately apologized, and even after sanctions were considered -- and even after sanctions were ordered -- the lawyer has consistently apologized and argued that his error was merely fleeting and accidental (rather than in bad faith). But Judge Kozinski thinks he shouldn't have apologized (much less been sanctioned) because what he did didn't violate the order in the first place. Hence the non-Dad-like advice: "Don't apologize, Son."

But I think Judge Ikuta's probably right. The transcript's admittedly somewhat unclear. And it can sometimes be hard to get the "message" that's intended -- especially during closing arguments -- when you're not actually at the trial. Particularly, I might add, when the transcript (as here) is probably not a perfectly verbatim recitation; court reporters aren't flawless. Here, opposing counsel heard what the other side said -- and presumably understood what he meant by it -- and promptly objected; the district judge heard the same thing and immediately sustained the objection, interpreting the statement in a way that indicated that it did indeed violate the in limine order; and even the offender thought (both at the time and consistently thereafter) that the statement did indeed violate the order, and apologized to the judge (and jury) and made a contemporaneous statement in his apology that seemed to suggest that, yeah, what he was inferring was indeed an effort -- albeit perhaps accidental -- to violate the order.

That's pretty good evidence, I think, that what was meant by the statement, and how the jury was meant to understand it, was shared by all the parties and entailed a violation of the in limine order. Sure, it's not crystal clear, and Judge Kozinski makes a tolerable argument the other way. But I can easily see how all the parties might read the statement the way Judge Ikuta does, and since all of the participants who were there at the time (and in the context of the actual trial) seem to have understood it that way, I think that's more than sufficient evidence to adopt the district court's interpretation.

One thing I know for sure. Judge Ikuta's right about Judge Kozinski's dissent. Judge Kozinski argues at length that the attorney was talking about the defendant's perspective during the closing argument. I agree, and Judge Kozinski's lengthy quotation amply proves this point. But that's not true during the portion of the closing argument at issue. The attorney clearly changed perspectives and started talking about the victim's perspective, including the part of the closing argument that led to the sanctions, and that lends credence to the district court's view that the statement violated the order. Judge Kozinski's "perspective" argument is simply wrong, and is half-a-beat too sly. Judge Ikuta catches him and points this out in her dissent, but Judge Kozinski doesn't budge. Proving that Judge Kozinski is far from a hypocrite, and is more than willing to follow his own advice about the dangers of apologizing or readily admitting error. Let the reader decide. Good for lawyers, good for judges.

But while Judge Kozinski seems wrong to me on this point, I think he might well be right with respect to the second portion of his opinion. In which he alternatively holds that he'd reverse the sanction on the ground that it was excessive. That seems quite plausible to me. The district court imposed sixty-some thousand dollars in sanctions, which was exactly the amount of the plaintiff's attorney's fees at trial, presumably on the theory that the violation of the in limine order caused the jury to hang. But I agree that this is probably wrong. The district court promptly corrected the error and sustained the objection, the wrongdoing attorney expressly (and immediately) told the jury that the inference that he was trying to get them to draw was wrong, and there's no reason whatsoever apart from the fact that this comment was made during a closing argument to think it actually had any impact whatsoever on the jury's ultimate decision to hang.

I agree with Judge Ikuta that the district court could spank counsel to uphold the integrity of the court and to deter future misconduct. But sixty-three thousand for a single comment, even if deliberate (and I'll concede for purposes of argument that it was), seems excessive for something that didn't matter at all. I'm not sure that Judge Kozinski's "$5,000" line really works. Maybe I'd permit an attorney in an appropriate case to be spanked even more than that. But a lawyer who utters a single erroneous line, who immediately apologizes, and who immediately rejects in front of the jury the inference that he was trying to deliver is sufficiently deterred, it seems to me, by having to write a check out of his own pocket for five or ten grand. Unless the guy's burning cigars with hundred dollar bills, sixty thousand-plus is unnecessary, and since it's not compensatory, but rather to deter and preserve integrity, I agree with Judge Kozinski that it's got to be brought down.

But not to zero. The dude did wrong. He should have apologized. And the fact that he did, I might add, would only encourage me further to bring the sanction award lower than I otherwise might.

So I in fact think that the lesson one should receive from Judge Kozinski's opinion today is precisely opposite to the one he actually delivers. Lawyers should be more, not less, willing to apologize. Not only because that's typically the right thing to do, and because counsel's instinct is usually overboard the other way. But also because, after today, you've got an opinion by the Ninth Circuit that says that even when you apologize, that doesn't mean a judge is going to conclude that you actually did the thing for which you apologized.

So it's the perfect world. Apology without meaning. Apology without effect. Apologies that are only an upside.

So apologize.

People v. Kingsberry (Cal. Ct. App. - Oct. 26, 2011)

2011-10-26T12:17:00.000-07:00

It looks like this is indeed the rule in California. Though it seems a bit harsh.

Albert Kingsberry pleads guilty and is given probation for five years, ordered to spend 181 days in jail, and is ordered not to drink or possess any alcoholic beverages during his probation. Four years later, he (stupidly) violates the no-alcoholic-beverages condition. Hope that beer tasted good. Because it's the last one you're going to drink for a while.

So the trial court revokes probation and resentences Kingsberry. To the mid-term of four years in prison.

So Kingsberry does his time. Hopefully he's learned his lesson.

Around three years later, after good time credits are applied, Kingsberry is about to get out of prison. As his release date approaches, the Department of Corrections writes the sentencing judge and says: "Hey, we noticed that you sentenced Kingsberry to four years. But the mid-term for this offense is actually six years. You might have made a mistake. Want him to spend another two years in prison?" At which point the judge says: "Yes." Tacking on two more years to his sentence.

The Court of Appeal concludes that's okay. And based upon its discussion, that does indeed seem to be the law of California. On the theory that the initial sentence was "contrary to law" -- as only three-, six- or eight-year sentences are authorized for this offense -- and "illegal" sentences can be vacated at any time. And even though Kingsberry says "Okay, give me three years: that's a legal sentence," the Court of Appeal says he's not entitled to that, and that the trial judge can go back and give him more time instead.

It seems fine to me to correct sentences based on errors when it's done promptly. So, for example, if weeks (or even months) after the sentence, the trial judge recognized the error, I wouldn't have a real problem with going back and correcting it.

But when no one notices the mistake, when everyone relies on it, when everyone knows that the sentence is X number of years, and when the defendant's entire sentence is almost up, that seems qualitatively different to me. Perhaps not from a legal standpoint, but just as a matter of fairness and settled expectations. The prisoner thinks he's served his time. Paid his debt. Looking forward to an imminent release. Only, after years in prison, to have the trial court say: "Nope. Made a mistake. I'm sentencing you to another two years."

At the very least, as an equitable matter, I might have the trial court at least look at the defendant's current status before resentencing. His disciplinary record. What he's accomplished in prison. To see if it's fair to pull the rug out of the defendant on the eve of his release.

But the Court of Appeal holds -- and, again, this appears to indeed be California law -- that this doesn't have to be done. The trial court can simply say: "I should have known it was six years rather than four. My bad. You pay for it."

I understand that the defendant doesn't get to benefit from the mistake by having his sentence further reduced -- to three years rather than four -- to correct the error. Even though that would indeed solve the "illegal sentence" problem while avoiding the frustration of settled expectations.

Sure, there's a line-drawing problem. How long do you have to be in prison before you can rely on your sentence. A day? A month? A year?

But there's equally a problem with the Court of Appeal's rule -- at least intuitively -- that says (as it clearly does) that even if you've served 30 years in prison, even if you've been a perfect prisoner, and even it's an hour before your release, as long as the trial court decides that it made a mistake and that your 30-year sentence was thus "illegal," it can throw you in the slammer for another decade.

Sometimes I disagree with the appellate court's legal analysis. Not here. It seems spot on. But on a rare occasion or so, that rule nonetheless tugs on me as somewhat unfair. Perhaps not in a "This Cannot be the Law" or "That Violates the Constitution" way, but rather in a "Really? We Can't Do Something Better Than This? way.

This is one of those cases.

Sarei v. Rio Tinto (9th Cir. - Oct. 25, 2011)

2011-10-25T12:25:00.000-07:00

I dare you to read this opinion. Wait. I take that back. I double dare you.

It's an important case. An Alien Tort Statute case arising out of the operations of the Rio Tinto mining group on the island of Bougainville, Papua New Guinea and the resulting uprising against Rio Tinto that led to military intervention and numerous deaths.

These things transpired in the 1980s. The docket number of this appeal begins with "02-". This is not the second time this case has been before the Ninth Circuit. This is the second time it's been before an en banc Ninth Circuit court.

It's important. It's long-running. And it's hopelessly fractured. You can barely tell the result even with a scorecard.

There are eleven members of the panel. Judge Schroeder writes one opinion. She gets three votes: her own, Silverman and Berzon. Judge Ikuta writes another opinion. She gets four votes: hers, as well as Judges Kleinfeld, Callahan, and Bea. A lineup that substantially overlaps with Judge Kleinfeld's opinion, which is joined by Judges Bea and Ikuta. As well as Judge Bea's opinion, which is joined by Judges Kleinfeld and Callahan. Oh, and Judge Ikuta as well. Except for Part III. She's not on board for that.

Judge Reinhardt writes an opinion as well. He agrees with Judge Schroeder, and joins her opinion. Except for Parts II(C) and Part IV(B)(3). Judge Pregerson is also willing to agree with what Judge Schroeder says. Except he, like Judge Reinhardt, doesn't agree with portions of Part IV(B)(3). But Judge Pregerson, unlike Judge Reinhardt, is willing to sign onto Part II(C). Moreover, while Judge Reinhardt agrees with Parts IV(C) and (D), Judge Pregerson doesn't. So doesn't sign onto those parts.

Judge Rawlinson agrees with Judge Pregerson. So joins his opinion.

Then there's Judge McKeown. She's fine with all of the above. But she has a beef with two entirely different portions of Judge Schroeder's opinion: Parts IV(A)(3) and IV(B)(4). So she writes her own opinion. Which is in turn joined by Judges Reinhardt and Berzon. Except for Part II of that opinion. For that, she's on her own. But she's got three votes for Parts I, III and IV.

The whole shebang is 170 single-spaced pages. Of dense, dense prose. One of the dissents alone -- Judge Kleinfeld's -- has 136 footnotes of its own. The final footnote of which, if I'm not mistaken, consists of Judge Kleinfeld citing a law review article by his son Joshua.

So go ahead. Read the thing. Figure out the score, as well as the fights.

I dare ya.

Doe v. Busby (9th Cir. - Oct. 24, 2011)

2011-10-24T13:29:00.000-07:00

I can figure out the law. The opinion makes sense to me. So that's not the issue.

But I have two lingering questions. None of which really matter, but that bear mention regardless.

First, why a "Doe"? This isn't a sexual molestation case or a minor or anything like that. It's an adult. Not just an adult, but an incarcerated adult. Someone convicted, at a public trial, of killing his wife. Someone who's filing a habeas claim in the hope he's let out of prison or, at a minimum, obtains a new trial.

It seems to me like there's a public interest in knowing who this person is. Especially if, as here, he's claiming (pretty persuasively) that his lawyer was incompetent. Identities in cases like this may matter. And I don't, at least offhand, see any reason why permission should be granted to file anonymously.

(Plus, I gotta say, it took a lot of digging to figure out his identity. Louis Peterson. And even then, I can't tell whether this was his "old" (pre-murder) name or a new one, since I can't find any reference to the underlying murder anywhere. But that's perhaps because it was fifteen years ago. Even odder, although the opinion by the Ninth Circuit quotes a California Court of Appeal decision, I can't find that opinion anywhere. Weird.)

Second, I don't understand why the case was reargued. It was originally argued in April 2010, and Judge Thompson was on the panel. As you may recall, Judge Thompson died fairly suddenly in February 2011. My sense is that Judge Thompson was probably the one assigned to write the initial opinion, because his replacement, Judge Milan Smith, ultimately ends up authoring the decision. So, sadly, a fair amount of work by Judge Thompson and his clerk probably went largely to waste.

All that I understand. But why reargument? The opinion is unanimous. The issues, while complicated to a degree, are understandable. Usually the replacement judge simply listens to the previous oral argument and joins -- or, less often, writes -- the relevant opinion. Presumably Judge Smith was the one who wanted the reargument. Which is, of course, his right. But unusual to see. At least in unanimous opinions like this one.

So some lingering questions for us outsiders.

People v. Williams (Cal. Ct. App. - Oct. 14, 2011)

2011-10-21T09:27:00.000-07:00

Here's proof that you can write a coherent and comprehensive opinion in less than a half-dozen pages of double-spaced text.

Myers v. Holder (9th Cir. - Oct. 20, 2011)

2011-10-20T13:40:00.000-07:00

Seems to me like Judge Ikuta has a point here.

She dissents from the panel's decision to stay the mandate in an immigration case. Her dissent is fairly brief (though, as usual, emphatic), and argues in part that the panel's string-cite decision -- which doesn't respond to the points the dissent makes -- isn't good enough, contending that the panel "has a duty" to say why it's doing the thing she doesn't like.

Of course, there's no such obligation, either generally or specifically. But she's right that she makes some facially plausible arguments in her dissent, ones to which I agree the panel should probably respond. Now, maybe the panel's just deliberately making her mad by not responding, and if the whole point is just to show everyone how little they think of her, okay, I get it. But I'm not sure that's indeed their point. In which case the arguments she makes do indeed probably warrant saying something.

Admittedly, there's not much at stake here. It looks like the stay of the mandate here will be for around sixty days or less -- and is in any event entirely within the BIA's control (the stay is only during the period in which the BIA is considering Myers' petition to reopen, a petition they can presumably decide -- thereby ending the stay -- whenever they want). But Judge Ikuta thinks that's a huge burden, and whatever arguments the panel thinks are responsive to that contention perhaps warrant elaboration. If only to give future panels the benefits of the current panel's thoughts.

Sukut Construction v. Rimrock CA LLC (Cal. Ct. App. - Sept. 30, 2011)

2011-10-20T12:10:00.000-07:00

A strip mine apparently isn't a mine.

This according to an opinion that -- perhaps deliberately -- nowhere uses the term "strip mine." Preferring instead to call the property here a quarry. Because holding that a strip mine isn't a mine would seem even more counterintuitive. (The terms are essentially synonyms, though often suggest what types of rock/minerals are sought from the mine. Quarries often yield building rocks/gravel and dimension stones, whereas strip mines often yield coal, copper, etc.)

Notwithstanding how we use these terms, I might think that the Court of Appeal's decision made sense if the quarry/strip mine at issue here was just dredging out sand or landfill or the like. But when you're deliberately taking out certain types of rocks -- i.e., granite, pebbles, etc. -- it seems to me that it's a mine. Even without an opinion of the Attorney General that, as here, suggests that a quarry is indeed a mine. Something that's entitled to deference.

It's admittedly an issue that involves contextual statutory interpretation. But if it looks like a mine, gets rocks like a mine, sounds like a mine, and uses explosives like a mine, then it's probably a mine.

U.S. v. Rizk (9th Cir. - Oct. 19, 2011)

2011-10-19T13:30:00.000-07:00

Rizk was an appraiser who helped her co-conspirators defraud lenders out of tens of millions of dollars by giving inflated appraisals for properties that were actually worth much less. She knew that she was potentially criminally liable for what she did, but she thought that she was at least off the hook for the money once her insurance company paid a little under a million dollars to settle the civil actions against her for what she did. She got a full release of liability as part of that deal, so that means no restitution, right?

Wrong.

So she still owes $46.5 million in mandatory restitution. Though the Ninth Circuit does help her out in one way. They knock a million dollars off this amount. (Because the restitution order to her insurance company was double-counted.)

So once she pays the $45 million or so, she's good to go.

Which is nice. 'Cause I'm sure she'll fully pay this thing.

U.S. v. LaBuff (9th Cir. - Oct. 13, 2011)

2011-10-19T11:35:00.000-07:00

"You're not an enrolled member of an Indian tribe, LaBuff, but you've got enough Indian blood. So you're going to federal prison."

Design In Progress

2011-10-18T15:28:00.001-07:00

I'm trying to change the design of this thing (at long last), so it'll look funky for another day or so. Bear with me.

- Shaun

People v. Miranda (Cal. Ct. App. - Oct. 18, 2011)

2011-10-18T15:18:00.000-07:00

"Defendant argues 'the only evidence [about Jane being disabled] was that Jane suffered from cerebral palsy and seizures, that she had difficulty speaking, and that she attended a school with special education. . . . [But o]ne of the strongest circumstances indicating that Jane lacked the mental capacity to consent is that she did not respond to defendant‘s questions asking if she liked what they were doing during the sexual assault. The jury could rationally conclude that a 15-year-old girl who had the ability to appreciate what was taking place would express some reaction to a surprise sexual assault from her grandfather in a small trailer, with her brother nearby, in the early hours of the morning. Jane's lack of response certainly suggests that she did not have the capacity to understand the consequences of defendant‘s acts or the ability to voluntarily consent to them. From her failure to react, the jury could infer she did not simply have difficulty speaking, but that her mental capabilities, in the circumstances of the offenses, prevented her from being capable of giving consent.

A further indication of Jane‘s lack of capacity to consent is found in her childlike description at trial of the sexual assault. The best she could do to explain what happened was to place shaky marks on simple diagrams to indicate where and how she was touched by defendant, and hold up ten fingers when asked about how she was touched by defendant. The impression left by her testimony was that she lacked the understanding required of one capable of giving consent and defendant knowingly took advantage of that disability. The jury could reasonably infer that an inability to articulate what happened demonstrated that Jane was not capable of appreciating what took place or freely and voluntarily participating in the acts."

True that.

Smallwood v. Allied Van Lines (9th Cir. - Oct. 18, 2011)

2011-10-18T11:49:00.000-07:00

You're living in San Diego. You decide to move to the UAE. Why? I have no idea. San Diego is pretty darn nice. Presumably for the money.

You can't exactly drive a U-Haul with all your stuff to the UAE. So you hire Allied Van Lines. You also (smartly) don't intend on living in the UAE forever. So when Allied comes to your house, you show them one group of boxes that are to be shipped to the UAE and another group that are to be put into storage. Makes sense.

Allied messes up. It ships both groups of boxes to the UAE. Bummer. But easily solved, right? Just ship the second group of boxes back.

One problem. One of those boxes were full of guns and ammunition. To which the UAE responded, shall we say, harshly. Imprisoning you for 11 days and charging you with gun smuggling. A crime that the UAE (understandably) frowns upon. Then moved to deport you from the UAE.

So you do what any good American would do. You sue Allied Van Lines. Which then responds in the way common to any good American corporation. By moving to compel arbitration of the dispute. In Dubai. As required by a small snippet of one of the forms they sent you to sign (even though it doesn't look like a contract). On the theory -- rightly enough -- that an arbitration in Dubai will be much more of a hassle to you, and more favorable to the moving company on the merits, than a lawsuit in the U.S.

The Ninth Circuit has to decide whether that arbitration agreement is invalid under the Carmack Amendment. No, not Carnac. Carmack. Less well-known than the other (fictional) guy. A Senator remembered in posterity only because of this particular amendment to the federal law about common carriers. Plus the fact that he was shot and killed on the streets of Nashville and was allegedly "one of the most racist politicians in Tennessee history." Which is saying something. (Here's the statute of Carmack in front of the Tennessee State Capitol. Notice the absence of a frilly Carnac hat.)

The Ninth Circuit holds that the arbitration provision is invalid. So Smallwood gets to sue in San Diego. Affirming Judge Moskowitz, who's pretty smart and who held the same thing below.

See. You should never leave San Diego.

Lesson learned.

U.S. v. Urena (9th Cir. - Oct. 13, 2011)

2011-10-17T15:30:00.000-07:00

File this under "Things You'd Think We're Obvious And Yet Apparently Need The Ninth Circuit For":

"Urena’s being called a 'bitch' in prison, though it might create risk in that harsh environment did not give Urena warrant to attack Dennis with a prison-made knife. Urena’s being called a bitch in prison did not justify a surprise, pre-emptive attack using deadly force; indeed it would not have justified an assault using much less force."

To put it differently, the defendant -- represented by a lawyer, no less -- was wrong when he claimed that he “had to attack . . . so that no one would think he really was a bitch.”

Shocking, I know.