U.S. v. Drake (9th Cir. - Sept. 15, 2008)

The criminal justice system in Guam doesn't come out smelling like a rose here.

From a dubious initial traffic stop to two years of delay to having to turn over charges in an utterly routine prosecution to the United States to an entirely deficient record, what transpired here hardly screams "excessive competence."

White v. Mayflower Transit (9th Cir. - Sept. 12, 2008)

Looking to get your first argument in the United States Supreme Court? Think you might get there by taking an utterly boring issue , but nonetheless one about which there's a fairly strong circuit split? Looking, in a perfect world, for a perfect vehicle in which you can easily take the matter over; for example, a case previously (and unsuccessfully) litigated by a pro se litigant who's got nothing to lose, and everything to gain, by letting you take over the case pro bono and file a pure "circuit split" certiorari petition?

Then here's your dream.

Kievernagel v. Kievernagel (Cal. Ct. App. - Sept. 12, 2008)

Who owns sperm? That may seem like a totally silly question. But it's not. And it matters.

Justice Morrison holds that the guy owns it, and that makes sense. Now, the guy can give the sperm away, of course. In a wide variety of ways. (And, no, I'm not going to provide a hyperlink for that last sentence.) And if he does, I assume whomever he gives the sperm to then has ownership rights, or at least partial ownership rights -- the complexities on that latter point are actually quite doctrinally interesting.

But let's take the facts here. The guy freezes the sperm because his wife desperately wants kids, and there's going to try IVF. The husband doesn't want kids -- the evidence about that is fairly clear -- but he's worried his wife will divorce him if he says no, so acquiesces. But when he fills out the form at the freezing place, a check is placed on the box that says that the sperm should be destroyed on husband's death, rather than the form that says the sperm should be given to the wife. The husband then unexpectedly dies in a helicopter crash. The wife then wants the sperm to have kids from her deceased husband, but the husband's parents say that both he and they don't want that. So who gets the sperm?

God. Destroyed. Because that was the husband's intent.

Even though I recognize that opinions may change over time, I'm pretty sure that Justice Morrison gets this one right. When you tell someone to freeze your sperm, but to whack it if and when you die, that's what you should get, absent anything else really compelling that proves you wanted something else. And there's none of that here.

So a death sentence for Joseph Kievernagel's sperm. But once that seems justified.

Rest in peace.

Hassan v. Chertoff (9th Cir. - Sept. 11, 2008)

Your last name is Hassan. You're from Pakistan. You've been living in the United States, and the DHS has treated you pretty shabbily (IMHO). You're trying to get back into the U.S. after being somewhat tricked into leaving (for Saudi Arabia), so you file an appeal. One more thing. You've been questioned about your ties to a group suspected of having links with terrorists.

You argue your appeal, wait a couple of months, and then discover that the court's opinion is published on . . . September 11.

Uh oh.

Winter v. Window Fashions Professionals (Cal. Ct. App. - Sept. 10, 2008)

Here's yet another reason not to include in any contract you draft a clause -- whether relating to arbitration or anything else -- that says "X, but X may not be valid in California."

At least if you personally would like X to be the case, just say X. Whether X is enforceable or not, leave that a question for another day (and another forum). Because otherwise, by saying the rule is X but maybe non-X, you definitely won't get X.

So just say X.

People v. Cross (Cal. Supreme Ct. - Aug. 28, 2008)

Getting pregnant counts as "great bodily injury".


Just so you know.

Truth v. Kent School District (9th Cir. - Sept. 9, 2008)

"We took over a year after oral argument to decide what would seem like a relatively straightforward case involving a student club. But at least we got it right, back in 2007, and unanimously affirmed."

"Oops. Did we say 'affirmed'? We meant, of course, 'reversed and remanded,' at least in part. Took us another ninth months to figure that one out and publish the revised opinion. But, again, at least we got it right."

"Oh. Really? Okay. Well, it's another half-year later, and we'll do what we can. But Judge Wallace wrote both of the earlier opinions, and he won't sign on to yet another change. So I guess it's up to both of the other panel members to write a lengthy concurrence at this point. Which means there's a majority opinion joined by all of us and then a 'concurrence' -- albeit one with precedential force -- signed by two of the three."

What a long, strange trip it's been.

Edwards v. Ayers (9th Cir. - Sept. 9, 2008)

I'm as insensitive as the next guy, especially when reading judicial opinions. Believe me.

Still. It's a death penalty case in which the defendant totally randomly shot two 12-year old girls at in the head with a rifle at a campground, killing one of them (Vanessa Iberri). Pretty gruesome, random, and scary. And I admit that the fact that he shot both girls in the head -- and Vanessa right between the eyes -- is, I guess, a little impressive.

Again: Still. I wouldn't start the opinion -- as Judge Schroeder does -- with the following sentence: "This is a death penalty appeal by California state prisoner, and crack marksman, Thomas Francis Edwards."

The "crack marksman" aside is too much. Even for me.

Showing Animals Kindness and Respect v. City of West Hollywood (Cal. Ct. App. - Sept. 9, 2008)

Think you know what "advertising" means? What an "advertisement" is?

Read this.

Still sure?

An interesting difference of opinion between Justice Rothschild and Justice Mallano.

P.S. - I like the 110-inch television screen concept. But I'd rather it display, say, sports -- rather than pictures of animals being killed (alongside their screams -- presumably in stereo). Especially at 11:45 p.m.

Call me crazy.

Center for Biological Diversity v. California Fish & Game Comm'n (Cal. Ct. App. - Sept. 2, 2008)

It's been a lazy Monday thus far. Nothing from the Court of Appeal (or the California Supreme Court, though that's no surprise), and only one published opinion from the Ninth Circuit (on a fairly routine asylum case).

So I thought I'd just quote a memorable line from one of last week's published opinions:

"The information in the administrative record shows the [tiger] salamander species does not breed prolifically, is vulnerable to several significant threats, has lost most of its original habitat, and has been displaced by a hybrid from a significant portion of its range."


And then tell you my reaction. Which was that same words could easily have described me during college.

I'll be teaching Week Two of my "Law of Love" class in 90 minutes, so we'll see what (if anything) comes out of the Court of Appeal this afternoon. Hopefully something juicy.

U.S. v. Nader (9th Cir. - Sept. 5, 2008)

Your prostition business may well be exclusively in-state. All of the phone calls that your customers make to you may well be in-state calls. But you can still be convicted of violating the federal Travel Act because your use of a telephone is a "facility" of interstate commerce. So holds Judge Clifton.

Pretty expansive view of the Interstate Commerce Clause, eh?

Prostitues in (as here) Montana, or other relatively isolated states (e.g., Alaksa and Hawaii), beware.

Rodriguez v. Smith (9th Cir. - Sept. 4, 2008)

Judge Rawlinson, joined by Judge Hug, says (in essence): "Five circuits have already decided this exact issue. Four of them have decided X. Only one of them has decided Y. We think that the four are more persuasive than the one, so that's the way we're going." Though says that in 15-plus single spaced pages.

Judge Rymer, by contrast, dissents, and essentially says: "Well, I like the one better, so that's the way I'm going." And does so quite concisely, in a way that I very much liked. Her dissent, in toto, reads as follows: "While I understand joining the parade of courts to decide this issue, I would reverse for the reasons stated in Muniz v. Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi’s well-reasoned dissent in Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006)."

I like that. No need to kill more trees or repeat the same arguments in your own words. If what you have to say has been said before well, a single sentence saying so will sometimes suffice. As here.

KRAI v. United States (9th Cir. - Sept. 4, 2008)

Sorry, KRAI. You don't own one of the (far-away) Hawaiian Islands. As fun as that'd be. Even if you did own it, the statute of limitation makes you SOL (s*** out of luck) on this one.

P.S. - The relevant "island" at issue -- Kingman Reef Atoll -- actually sounds pretty cool.

Cascade Health Solutions v. PeaceHealth (9th Cir. - Sept. 3, 2008)

"I know we certified a question to you, Oregon Supreme Court. But I've got good news. Never mind."

Good to know people can still get along.

People v. Warner (Cal. Ct. App. - Sept. 3, 2008)

"Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband, who later accused him of abusing the couple’s child. His arrest at his apartment in front of his friends infuriated him. The court dismissed the charges against him for lack of evidence, but he felt depressed and distraught at losing his chance to have his day in court. Weeks later, he killed her husband with a shotgun blast to the chest."

That's a pretty darn tight summary of Warner's affairs. And, as grim as that description may well be, is probably less grim than his next 100 years. In the pokey.

Affirmed.

P.S. - I do gotta say that, as far as sympathy for murderer goes -- and, as you can imagine, that's not a very high scale -- this one strikes my somewhat sympathetic. I mean, I wouldn't want anyone making allegations like that against me (or getting me arrested for it). Fortunately, however, I have no shotgun. And, I hope, at least a tiny bit more self-control.

Johanson v. C.I.R. (9th Cir. - Sept. 3, 2008)

As Judge Silverman put it this morning (in the midst of holding that the alimony payments at issue here were taxable to the recipient because they terminated upon death): "The fact that Weiler continues to pay spousal support after Johanson remarried does not constitute a written agreement regarding the status of payments in the event of Johanson’s death." (emphasis in original).

In other words, remarriage does not equal death. An enlightened view, to be sure.

Villegas v. Gilroy Garlic Festival Ass'n (9th Cir. - Sept. 3, 2008)

Come on. En banc draws don't really matter at all. They're all pretty representative, right? Nothing really rides on them.

Really?

Here's a 6-5 decision in a Section 1983 case. The six in the majority conclude there's no Section 1983 violation, and the five in dissent conclude otherwise. Who's on top? Two Reagan appointees (Kozinski and O'Scannlain), a Bush I appointee (Rymer), two Bush II appointees (Callahan and Randy Smith), and -- in a somewhat surprising swing vote capacity -- Judge McKeown. Who's on bottom? Five Clinton appointees.

I'll have (much) more to say about this one later. And my thoughts on the matter relate a fair piece to a conversation that Chief Judge Kozinski and I had in Little Italy a few months back.

But I'll just say this for now: Don't think that en banc draws don't matter. They sometimes do. A lot.

P.S. - Can I also just say how much I loved the opening line of the dissent by Judge Thomas, which states that "Gilroy holds itself out as the 'Garlic Capital of the World,' and no one seriously disputes the claim." Hilarious. To which I assumed the following was an unstated but intended inference: "Because who, after all, would ever even want to vie for such a title?"

Johnson v. Knowles (9th Cir. - Sept. 2, 2008)

"You've got an argument, Petitioner. An argument that admittedly finds some support. But that support comes from the bottom, not top, side of a 6-3 decision by the Supremes. And that's neither the side on which you want to be nor is it sufficient to allow your untimely habeas petition to go forward. Dismissal affirmed."

So sayeth Judge O'Scannlain, albeit more formally, in this opinion, which holds that unless you're actually innocent, the Schulp gateway ain't helping you much. Regardless of what Justices Stevens, Blackmun, and O'Connor said.

Salinas v. Martin (Cal. Ct. App. - Aug. 28, 2008)

Letting pit bulls run around your property can create liability.

Shocking, I know.

In Re Antonio B (Cal. Ct. App. - Aug. 28, 2008)

You're walking down the street with your buddy. He's smoking a doobie. There's just the two of you.

Three police officers come up to you guys and arrest your buddy. You don't try to fight, flee, or anything else, and haven't done anything wrong. Can they put you in cuffs?

No. Not in America, anyway.

The depressing thing about the opinion, however, is that it takes nine pages to explain why not.

Richards v. Richards (9th Cir. - Aug. 28, 2008)

Don't hire your lover to kill your spouse. Otherwise you'll get . . . pretty much away with it, but only $50,000 of his million dollar life insurance policy.

Well, I guess not getting the whole million is some disincentive, anyway.

Barba v. Perez (Cal. Ct. App. - Aug. 28, 2008)

As a person keenly interested in litigiation strategy, I very much enjoy it when the Court of Appeal not only issues opinions that generate opportunities for tactical behavior, but also goes ahead and gives tactical pointers. And when, on those rare occasions, there's a conflict between the justices, and each gives his or her own insight into the tactical move and countermoves that are generated by the court's holding, it's pure gold, IMHO.

Gold like this.

Justice Butz writes the majority opinion, and holds that a Section 998 offer tendered (as here) simultaneously with service of process may well generate cost-shifting. Justice Sims -- who, by the way, authors a sincerely respectful dissent -- not only disagrees on the merits, but says that such early offers may give rise to strategic abuse, since defendants at that stage of the litigation aren't typically able to conduct discovery and/or accurately assess the plaintiff's damages. Plus, Justice Sims argues, "[i]magine . . . the litigation frenzy that will be produced if defense counsel must also take the plaintiff’s deposition and obtain medical specials during this 30-day period. Not to mention the retention of experts and obtaining opinions from them. Why on earth do we want to do this?"

But Justice Butz responds that early settlement is precisely the goal of Section 998, and if that coincides with early discovery, so much the better. Justice Butz also gives tactical counsel to a defendant facing an early offer, counsel that's especially good advice as it comes from the Court of Appeal: "Even assuming a situation (unlike the one presented here) where a defendant has no information about the plaintiff’s damages when served with an early section 998 offer, defense counsel may request that plaintiff provide informal discovery on the damage issue and/or allow an extension of time to respond to the demand. If plaintiff’s counsel refused to accord the defendant these courtesies and unyieldingly insisted that defendant respond without information, such conduct could then be presented to the trial court when it considered whether to award special fees and costs. Undoubtedly, such obstinacy would be viewed as potent evidence that plaintiff’s offer was neither reasonable nor made in good faith." Thanks for the pointer! We'll definitely make such requests at this point, right? No reason not to.

But Justice Sims responds with a quasi-tactical point of his own, though I'm sure he's not really suggesting the resulting strategy as opposed to just identifying a problem with the solution that Justice Butz advances: "With respect, I do not think a defendant should be obligated to evaluate a $99,000 offer based on damages information supplied informally (not under oath) by a plaintiff or his attorney. Although plaintiffs’ attorneys are officers of the court, on rare occasions such attorneys have been known to inflate their client’s damages in demand letters written prior to discovery. In my view, a 998 offer approaching $100,000 can be reasonably evaluated only after basic discovery procedures (requiring responses under oath) have been used."

Darn good point. Which leaves me with only one question: Raise your hand if you think that Justice Sims was being deliberately sarcastic when he said that on "rare" occasions plaintiffs have been known to exaggerate their damages in pre-litigation communications. Awesome.

Anyway, a very interesting case. Both doctrinally as well as strategically. Know it. Use it. Be it.

Chimenti v. Weisz (Cal. Ct. App. - Aug. 27, 2008)

How do you think you'd feel if, upon your death, this is the way you were remembered in the everlasting pages of the California Reporter:

"At the time he executed his will, Joseph Clementi was living in Philadelphia, Pennsylvania. Richard E. Weisz was Clementi’s accountant, and apparently his only friend."

Sad, huh?

By contrast, you'd be a lot happier if you were the accountant. Who receives a six-figure bequest in the will and also becomes the trustee of a multimillion dollar charity upon Clementi's death.

Sweet.

People v. Bolton (Cal. Ct. App. - Aug. 27, 2008)

Here's an interesting case. From down here in San Diego, even. Concerning a defendant with a cool name -- "Exodus Bolton" -- but who I'd just as soon not meet on the trolley, thank you very much.

For those ethics junkies out there, it's a must read. Ditto for criminal defense lawyers. Because it's a very interesting case that provides firm support for the proposition (1) that attorneys can (and perhaps even must) present testimony from their client that they're pretty sure is false (as here, IMHO) so long as they don't "know" it's perjurious, and (2) that putting the client up on the stand without direct examination, and letting him give his perjurious testimony narratively, is a pretty good solution to the problem.

Both propositions are controversial. See if you think that Justice Aaron is correct.

In Re Bardzik (Cal. Ct. App. - Aug. 26, 2008)

This afternoon brings us this modification of this original opinion by Justice Sills. Who, apparently, has been watching the Food Network a fair piece lately, and adds (inter alia) the following soup analogy as a means of comparing and contrasting various cases:

"Where the evidentiary facts in the case before us make up a thin consommé indeed, in Mosley they were, as in Hinman VIII and La Bass & Munsee, thick as lentil stew."

I mentioned when the original opinion came out that I thought that the breezy opinion by Justice Sills worked pretty well, at least for me. This just adds to it.

Admittedly, that's coming from a person (me) who knows as little about lentil stew as he does about Regis Philbin. So feel free to take my thoughts (and your consommé) with a grain of salt.

Zhao v. Mukasey (9th Cir. - Aug. 26, 2008)

Some cases are fairly simple.

You're a married couple from China. You are practitioners of Falun Gong. You've got a good (and credible) story of religious persecution by Chinese authorities. And you filed an affirmative asylum claim within a year of coming to the United States (i.e., the DHS didn't catch you).

Plus you've got Judge Reinhardt on the panel, and he writes the opinion.

In such a setting, you're going to be granted asylum.

Dzyuba v. Mukaasey (9th Cir. - Aug. 25, 2008)

Let me offer some additional help -- beyond that provided by the Ninth Circuit earlier today -- to the BIA on remand.

As recent events should have made crystal clear, the former republics of the USSR aren't all the same country. Georgia isn't Russia. Georgia isn't the Ukraine. Georgia is Georgia.

Now, here, Mr. Dzyuba was a native of Georgia, but went to the Ukraine before coming to the United States. Now that we're kicking him out, we admittedly have to figure out where to kick him out to: say, Georgia or the Ukraine. This is a big deal, and I'm not pretending the answer is at all clear, since his internal movement at the time was all within a (then-) single country.

All I'm saying is that it matters. At least for now. Once Russia invades everyone else, well, maybe that'll moot the whole thing. But go ahead and make the effort at this point.

Personally, if the guy wants to go back to Georgia rather than the Ukraine, I'd let him. No big deal.

U.S. v. Easterday (9th Cir. - Aug. 22, 2008)

Normally, when everyone on the panel agrees that the defendant's conviction is just and proper, you simply affirm. Here's one of the exceptions to that rule.

The difficulty here is that there's circuit precedent that everyone on the panel agrees is both on point and also would require a reversal of the conviction, but everyone also agrees that this precedent is wrongly decided. So what do you do?

Judge Schroeder writes the majority opinion and says that this precedent has been undercut by subsequent Supreme Court authority, and hence that the panel is entitled to ignore/overrule it. Judge Randy Smith, by contrast, dissents, arguing that because the subsequent authority is far from clear, the panel has no authority to overrule circuit precedent.

It's an interesting -- and enlightening -- battle about both the normative and descriptive power of Ninth Circuit precedent. You definitely get two competing views here, and these views are especially helpful because both sides make their arguments forthrightly, with no hiding the ball or hidden agendas. So it's a good case.

Plus, as an aside, both authors make sure to include their own aphorisms. Judge Schroeder begins her opinion by saying: "This case illustrates the enduring truth of Ben Franklin’s sage observation that 'nothing is certain but death and taxes.'" While Judge Smith begins his dissent by saying: "In this case, I find myself between 'the proverbial rock and a hard place.'"

Let the battle of epigrams begin!

McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)

You see plenty of death penalty cases that take a long period of time. So, sure, the murder that gave rise to the death penalty at issue here took place in the 70s. That's right: The 70s. That's a long time ago, even when you consider that the death sentence wasn't imposed until 1981. We are still talking about 27 years just for the case to reach the Ninth Circuit. Again: That's a long, long time.

But not so weird that you haven't seen something like it before. But here's the wrinkle: the defendant who was sentenced to death here -- and whose death sentence is at issue before the Ninth Circuit -- is currently walking the streets. And has been since 2003.

And, no, we're not talking about someone who was released on the ground that he was actually innocent. Rather, he was released because there were serious questions about whether he was competent to stand trial (!), combined with the fact that after the district court granted a habeas petition and contemporaneously gave the state six months to retry the defendant, the Great State of Arizona forgot to ask for a stay (!!).

I haven't seen many death penalty cases in which the defendant has actually been released from prison while the appeal's pending. And I gotta say that the prospect that we would just pick up a guy who has been out walking the streets for five years, doing nothing wrong, and promptly kill him just seems, well, weird. I mean, sure, I get it; if you're sentenced to death, you're sentenced to death. But isn't it still a little strange.

Anyway, for better or worse, that's not going to be a problem here. Since the panel unanimously decides that, yep, the district court was right that the conviction and sentence can't stand. With McMurtrey getting not only Judge Pregerson (who writes the opinion) and Judge Willie Fletcher to sign on, but also Judge Bybee. Which tends to suggest that a reversal either en banc or by the Supreme's probably isn't in the cards.

Still, not the type of death penalty case you see every day.

In Re Shaputis & In Re Lawrence (Cal. Supreme Ct. - Aug. 21, 2008)

As I've often discussed, there's been a lot going on in the California Court of Appeal in response to the nearly uniform decisions of the last several Governors (Davis & Terminator) to reverse the recommended grant of parole to anyone convicted of murder. (See, for example, my last post on the subject, from March.) Eventually, of course, that sort of stuff has to be sorted out by the California Supreme Court, and it granted review in two cases in no small part to do so.

But the result in these cases -- Shaputis and Lawrence -- issued today hardly definitively resolve the resulting issues. Indeed, the split in those cases only demonstrates how wildly up in the air these things are.

In Lawrence, the Court affirms the Court of Appeal's reversal of the Governator's denial of parole. It's a 4-3, with George, Kennard, Werdegar, and Moreno on top. But in Shaputis, the Court reverses the Court of Appeal's reversal of the Governator's denial of parole. It's a (4-3), with the same four on top, with the three dissenters in Lawrence (of course) concurring in the judgment, but disagreeing with the relevant standard -- the standard articulated in Lawrence. Justice Moreno, by the way, specially concurs in Lawrence to explain why he comes out. And to highlight his potential role as the Justice Kennedy of the California Supreme Court, at least on this subject. (Though that role is already played by Chief Justice George on a wide variety of subjects. But you can never have enough Justice Kennedys, right?)

This won't be the last word on the subject from the California Supremes. Trust me on that one. But for now, there you have it.

Koninkluke Phillips Electronics v. KXD Technology (9th Cir. - Aug. 20, 2008)

Bad things can happen to you when you manufacture and sell counterfeit goods. Even before trial. For example, a civil contempt order awarding almost $1.3 million in lost royalties, $353,000+ in attorney's fees, and another $10,000 per day until you file reports that the district court ordered but that you decided -- in your infinite wisdom not to file. Oh, yeah. Plus that $2 million bond.

And when you try to appeal, tough luck. Rightly dismissed as an unappealable interlocutory order.

People v. Meneses (Cal. Ct. App. - Aug. 19, 2008)

Ah, the exciting life of a capper.

Pelton-Shepherd Industries v. Delta Packaging Products (Cal. Ct. App. - Aug. 19, 2008)

Here's a wonderful review of what can go wrong in discovery. Especially if you leave it until right before trial. As well as a fairly comprehensive review of the relevant provisions and deadlines for motions to compel.

You'll also view some fairly strong language by Justice Robie regarding the conduct of Judge Saiers (in San Joaquin County) as well as counsel for the parties below. (Kenneth Ruttenberg, a Loyola Law graduate, and Richard Archbold, a Hastings graduate, represented one side, and Charles Hastings, a Humphrey's College of Law graduate, represented the other, on appeal.) Here's the first line about Judge Saiers: "We conclude the trial court [Justice Robie then mentions Judge Saiers by name in a footnote] botched its responsibilities under the Civil Discovery Act and prejudicially abused its discretion in granting Pelton-Shepherd’s motion to compel after the discovery motion cutoff date . . . ." Strong words. You don't see "botched" used much to describe trial courts, do you?

And here's the money quote from Part B of the opinion: "[T]he discovery in this case is a classic example of how not to conduct discovery (on the part of the lawyers) or to manage discovery (on the part of the court)." So pretty much everyone gets savaged.

P.S. - This is far from the first time that the Third Appellate District has savaged Judge Saiers, with whom the justices appear far from fond. Though, in truth, the feeling is probably mutual as well.

With some justification, as I'm sure the counsel involved would admitm at least on their best days. The only defense of what transpired here is probably that it wasn't an especially high-value case -- the real amount in controversy was barely above the jurisdictional minimum for an unlimited case -- and hence counsel may not have done their absolute best. Still, the errors that were made are pretty obvious ones; e.g., missing deadlines and not making the correct motions.

As Justice Robie makes fairly clear, it was not an impressive performance by anyone involved.

Oltman v. Holland America (9th Cir. - Aug. 19, 2008)

Want to see the Ninth Circuit go out of its way to be nice to a civil litigant in order to prevent inequity? Then check this out. Especially Section B and -- in particular -- footnote 4.

I happen to agree with Judge Clifton's resolution. But I'm also certain that not every judge would be similarly inclined to adopt such a favorable approach. Either on the merits (equitable tolling) or in deciding whether to find for appellants on this issue, as Judge Clifton does, notwithstanding the fact that they never really articulated this argument on appeal.

Still, I like it when judges are nice, and reach an equitable result. As happens here.

U.S. v. Jaeger (9th Cir. - Aug. 18, 2008)

I agree with Judge Graber in this one. It's one thing for a judge to threaten a witness and intimidate him or her into not testifying. It's quite another to do what Judge Molloy (up in Montana) does here. Which I took as trying -- honestly and sincerely -- to protect and look out for the best interests of the witness.

The former's both wrong as well as legal error. The latter's not only proper, but an entirely nice thing to do.

U.S. v. Park (9th Cir. - Aug. 11, 2008)

Hmmm. At first, Judge McKeown had me totally convinced she was right. But then I thought: "Wait a minute, I'm not so sure." And that's still where I am.

Let me first just totally agree with Judge McKeown on the central point. Or at least on the point as Justice McKeown articulates it. Defendants have some property along the Clearwater River in Idaho an easement of which allows them to engage in "livestock farming." So clearly they can raise chickens, which surely are livestock. But what about dogs? Which is a relevant question, since that's what defendants are now doing (and what the United States files suit to enjoin).


Judge McKeown frames the question as follows: "In this appeal, we are asked to determine the unusual question whether dogs are 'livestock.'" And while the district court said that they weren't, and hence granted summary judgment to the United States, Judge McKeown disagrees. She holds: "Despite a gut inclination that the answer might be “no,” resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term “livestock” is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."


On that point, I agree with her. Especially after reading the opinion. Maybe dogs aren't livestock. But maybe they are. Context and intent are important. So I agree with her that summary judgment would not be proper on the ground that dogs categorically don't count as "livestock".


So that's where I was after I first finished reading the opinion. Totally, totally in agreement. With an opinion, quite frankly, that I thought (and still think) is incredibly well-written.


But then, for whatever reason, I read it again. Because, I think, in the back of my mind, something about it just didn't seem right. Even though, intellecually, I was (again) completely on board.


And then figured out what my problem was. A problem that I couldn't initially even articulate, but which I think my subconscious grasped well before my conscious brain was actually aware of the problem.


Here's the scoop. I agree with Judge McKeown that dogs might potentially be livestock. So the defendants are, in my view, potentially (though not certainly) entitled to raise them. Maybe that's indeed included within the scope of the easement for "livestock farming".


But, as I reread the case, I suddenly realized: that's not what the defendants are doing. And is potentially why the district court was correct to grant summary judgment.


Defendants aren't dog breeders; in other words, they're not raising dogs like you'd raise sheep or chickens or whatnot to sell. Rather, they're running a kennel (and an associated dog training service). Now, it may well be that dogs count as livestock. But the easement only allows "livestock farming". That may potentially cover a dog breeder, who raises and sells animals, but now that I look at it, I don't see how a dog kennel counts. That's not the raising and selling of livestock. It's not doing to animals what we do, on a regular farm, to plants. It's instead the taking care of animals. So even if those animals are livestock, that's still not livestock farming.


Take, for example, a veterinarian. They take care of animals too. But surely a veterinarian isn't engaged in "livestock farming", right? Even if they only work on cows; i.e., livestock.


So I think the appropriate focus is not only the one centrally addressed by Judge McKeown, which involves the word "livestock," but rather should focus on the whole phrase. Because the former point is one on which I think she's clearly correct. But the only thing that Judge McKeown says in the entire opinion with respect to the additional caveat that the plaintiffs must be engaged in lifestock farming is the following: "The word “farming,” which follows “livestock,” is unhelpful because “to farm” is simply defined as “to engage in raising
crops or animals.” But that seems wrong. Yes, it doesn't help us decide whether dogs count as livestock. But it does tell us whether the district court correctly granted summary judgment on the ground that defendants aren't engaged in livestock farming, right?


Admittedly, I haven't read the district court's opinion, so don't know whether it really (or clearly) focused on the phrase "livestock farming" as a whole rather than on the single word "livestock". But, at a minimum, I think that the "farming" limitation (1) is more significant than Judge McKeown's opinion first led me to believe, (2) may well provide, at worst, an alternative basis upon which the district court's grant of summary judgment could (and perhaps should) be affirmed, and (3) perhaps requires at least brief additional discourse, especially since one leaves Judge McKeown's opinion (or at least I did) with the belief that the case at this point gets to go to trial. But I don't think that's in fact the case. It may well be -- or at least I've persuaded myself -- that the district court's grant of summary judgment should probably be affirmed, albeit potentially (if the district court's opinion only relied on the word "livestock") on alternate grounds. Or, at a bare minimum, that the opinion should clearly state that it doesn't reach the issue of whether defendants were engaged in "livestock farming" as a whole, an opinion that's instead left for remand.


Those are my (extended) thoughts, anyway.

Lockerby v. Sierra (9th Cir. - Aug. 7, 2008)

Judge Hawkins is correct. The defendant here should indeed get a discharge. Even a deliberate breach of contract -- here, of a routine settlement agreement -- doesn't constitute a willful tort.

Nonetheless, anyone who's thinking of hiring Tucson, Arizona attorney Alexander L. Sierra to do anything on their behalf -- Sierra's the one filing for bankruptcy, who was previously sued for malpractice, and who deliberately decided to breach the settlement agreement -- should definitely read this case.

You're not going to hire Mr. Sierra as your attorney anyway, since he's been disbarred. But I wouldn't retain him for anything else either , honestly. He doesn't sound like the kind of person I'd especially like to have to deal with.

A discharge applies to debts, not reputation.

People v. Nelms (Cal. Ct. App. - Aug. 14, 2008)

It's an unusual case in which a convicted defendant will want to abandon his appeal and yet the Court of Appeal will refuse to allow him to do so. But it happens. Even in non-death penalty cases.

Can't think of an example. Here's one.

People v. Muniga and People v. Wallace (Cal. Supreme Ct. - Aug. 14, 2008)

Two death penalty opinions from the California Supreme Court this morning. With striking similarities.

Both involve a first-degree murder committed during a residential burglary. Both involve elderly women killed in their homes -- the first, Hazel Hamilton, was a 83-year old widow, and the second, Alma Franklin, was 73. Both murders were committed long ago -- Hamilton was killed in 1991, and Franklin was killed in 1994 -- and are only now (17 and 14 years, respectively, after the murders) adjudicated by the California Supreme Court. Both murders involved the fairly horrific beatings of the victims.

And the convictions and death sentences of both defendants -- Keone Wallace and John Mungia -- are unanimously affirmed by the California Supreme Court.

I think you get a sense of the Court's reaction to both cases from the following line of the opinion by Justice Kennard -- who's hardly a pro-death penalty fanatic -- in Wallace: "In the course of a residential burglary, defendant beat to death a frail, elderly woman who was particularly vulnerable because of her age and her poor physical condition. He also attempted to rob and sexually assault her. On these facts, the death sentence is not grossly disproportionate to defendant’s culpability."

Facts matter.

Christian Research Inst. v. Alnor (Cal. Ct. App. - Aug. 13, 2008)

Imagine that you're a lawyer with, say, Ross Dixon & Bell. Hypothetically, of course, say you're Kevin Kieffer,
Becki Kieffer, Jennifer Mathis, Jenece Solomon, or Michael Gower (full disclosure: Mike's a former student of mine). Or say you're Peter Eliasberg, who's with the ACLU Foundation of Southern California. You worked on a long, hard-fought SLAPP, in which you filed and won on appeal (in a divided vote) an anti-SLAPP motion against the plaintiff. You've now moved for an award of your attorney's fees. You ask for a quarter million dollars. You're feeling pretty good, eh?

Then two things happen. (1) The trial court denies your motion. Awarding you less than $25,000 -- in other words, less than 10% of what you ask for. Ouch.

But wait. There's more. You appeal. At which point (2) the Court of Appeal not only affirms, but includes a wide variety of things in the opinion that you'd probably prefer not to be written for posterity. Including but by no means limited to the following bot mots:

"The record suggests Alnor sought to transfer to the opposing parties the cost of every minute counsel expended on the case, whether or not anti-SLAPP work was involved. The fee request included, for example, billings for obtaining the docket at the inception of the case, obtaining unspecified but “numerous court documents,” and attending the trial court’s mandatory case management conference — all of which would have been incurred whether or not Alnor filed the motion to strike. Indeed, counsel even sought reimbursement for drafting the client retention agreement, which does not appear to have been limited to anti-SLAPP measures given the hours counsel billed for other work. Counsel’s willingness to flout the statutory restriction on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced view of the fee request."

Or this one: "Faced with a motion that involved little or no time spent on discovery, the trial court was justifiably puzzled at the size of the fee request. The trial court observed the matter was not particularly complicated for an anti-SLAPP motion, and nothing in counsel’s billing submission establishes otherwise. The attorneys’ legal research entries do not suggest the pertinent issues were difficult, since counsel spent almost as much time on mundane research concerning page-limit extensions and whether the trial court had discretion to delay the motion hearing beyond 30 days as on any particular substantive question. Indeed, the five attorneys Alnor deployed on the motion appear to have expended more time telephoning, conferencing, and e-mailing each other than on identifiable legal research for the motion, supporting the trial court’s conclusion the matter was overstaffed. In sum, based on the trial court’s own observations in managing the proceedings up to the hearing and on the billing record eventually submitted, the court could reasonably determine counsel’s fee request was unreasonably padded, vague, and worthy of little credence."

Or this last entry: "Given that precedent so amply established the controlling issue, the trial court was entitled to note, in assessing the reasonableness of more than 400 hours counsel logged on appeal, that counsel failed to uncover or cite the seminal cases applying the dispositive standard. . . . The trial court could reasonably conclude the inflated, noncredible, often vaguely documented hours claimed by counsel precluded turning Alnor’s contingent fee arrangement with counsel into a windfall."

I can't imagine that the attorneys here did anything other than cringe at every successive paragraph they read.

Winfred D. v. Michelin North America (Cal. Ct. App. - Aug. 8, 2008)

Bigamy? I'm not even sure that's a crime anymore.

But if you decide to introduce evidence of it to impeach the plaintiff in a closely-contested civil case, it nonetheless remains grounds for a reversal of the judgment in favor of the defendant.

Lesson: When you ask the Court to introduce inflammatory evidence, be careful what you wish for.

D'Lil v. Best Western Encina Lodge (9th Cir. - Aug. 12, 2008)

It's yet another case -- indeed, the second one today (the first one is here) -- involving a repeat ADA plaintiff. The district court thought that plaintiff wasn't credible. Neither do I.

Whether the particular record here is clear enough to so find is a matter of dispute between the majority opinion (written by Judge Reinhardt) and the partial dissent (written by Judge Rymer), and I think that both positions in this regard are reasonable.

But I'm nonetheelss left with a firm and definite belief -- rightly or wrongly -- that the plaintiff here will say whatever needs to be said in order to obtain damages and fees.

Do some social benefits result from ADA mills? Sure. Are there social costs as well? Definitely. Underlying the credibility dispute between the majority and dissent is, I believe, a similar dispute about whether the former outweighs the latter.

Read the opinion and decide for yourself whether you think plaintiff's telling the truth when she says she intends to go back to the Best Western Encina.

In Re James C. (Cal. Ct. App. - Aug. 11, 2008)

Some good news, some bad news.

Bad news first. Judge Francis Devaney -- down here in San Diego -- apparently has been applying a "consistent" policy in which he sentences juveniles in border cases to a year at Camp Barrett (a junvenile facility in Alpine) but suspending this sentence on the condition that the juvenile, as part of his probation, be banished from the United States. Even if they're a citizen.

Uh, I've got news for you, Judge Devaney. Your policy in this regard couldn't be more unconstitutional. As well as, quite frankly, offensive. We don't banish U.S. citizens. We just don't.

The good news. First, Justice Huffman (and the rest of the panel) knows this, and in a fairly brief opinion, says so. Second, that Attorney General's Office knows this as well. And while the AG's Office is willing to argue on appeal that in this particular case the defendant waived this issue (though he didn't), it also has the foresight and integrity to concede that what Judge Devaney has been doing is wrong. Which I like. Especially since the three most responsible attorneys in this regard -- Assistant AG Gary Schons and Deputy AGs Scott Taylor and
Marissa Bejarano -- are all USD Law graduates.

I like it when our alums do the right thing. Especially when other people -- including people in positions of power -- are doing the wrong thing.

People v. Hovarter (Cal. Supreme Ct. - Aug. 11, 2008)

I rarely have substantial doubt about the guilt of a defendant sentenced to death. Most of the time, I'm pretty darn confident -- even if based solely on the description of the evidence on appeal -- that the defendant did it. Sure, there are exceptions, but they're definitely the exception rather than the rule. At least in my mind.

So I was stunned when I read this case. In which the defendant -- Jackie Ray Hovarter -- is sentenced to death for killing Danna Elizabeth Walsh. And after the California Supreme Court was done recitiong the evidence that was admitted against Hovarter at trial, I literally said out oud: "That's it?!"

Look, I'm not saying the guy's definitely innocent. I have no doubt that he tried to kill a different woman -- "A.L." -- four months after Walsh's murder. And, look, I'm like everyone else in the world, and think that if you're willing to rape and kill one woman, if there's another woman who's been raped and killed in the same general geographic area (i.e., in the same town), there's a darn good chance you did that one to. But when there's no eyewitnesses, no link at all between the defendant and the victim, and no physical evidence of any type, for me, it's an incredible, incredible stretch to say that someone's clearly guilty beyond a reasonable doubt -- so much so, indeed, that we're willing to sentence him to death. And the fact that there's a jailhouse informant here who've even less credible than most jailhouse informants -- and that's saying a lot! -- hardly changes the picture. Sure, it means that there's legally sufficient evidence for a conviction, of course, because a jury could indeed decide to believe a total liar like the informant here. But, man, I gotta say, if there's ever a true case in which "lingering doubt" might let you put a person in prison for life and yet not be totally sure he should be irrevocably killed, this is it. And, to tell you the truth, I'm not sure that I've ever really seen one of those before -- one in which that residual doubt might actually have affected my own calculus.

Now, admittedly, there's part of me that doesn't especially care, since I'm confident that Hovarter in fact tried to kill another woman, so part of me says that he's only getting what's coming to him anyway. But, for good or bad, our system doesn't work like that. Or at least it shouldn't.

Nor -- and this is one of those very rare case in which the initial jury deadlocks in the penalty phase, the defendant chooses to be resentenced by the judge, and the judge then decides upon death -- does the system decide upon death versus life due to electoral or other pressures. But, at least in the trial court, do I have a lingering suspicion that that might have played a part as well; i.e., that an elected judge might decide to sentence a defendant who we all know is at least an attempted murderer to death due to potential backlash from the electorate to a contrary decision? Yeah. I do. Based upon nothing, of course. But when my reaction to the case is so different, I gotta wonder -- again, based on virtually nothing about this individual case or judge -- whether that played a role as well.

Anyway, read this one. See if you reaction is the same as mine. Maybe you totally believe the informant (though if you do, wow, we're definitely on different pages). Or maybe you're more persuaded than I am that it's okay to sentence someone to death when you're sure that the offender committed at least an attempted murder even if he might not have done this particular crime. Or maybe you just have a different take than me. But, on my end, I'm at least a little troubled by this one. And didn't expect to find a "lingering doubt" case on my (virtual) doorstep this morning.

Oh, yeah. The California Supreme Court unanimously affirms the conviction and sentence. Twenty years thereafter. No real surprise there. And I can't even say that, as a matter of law, they're wrong. My reaction here is much less doctrinal than equitable. Yes, the law seems like it was followed. But I'm still not sure that what happens is right.

Cachil Dehe Band v. State of California (9th Cir - Aug. 8, 2008)

It's a case about Indian gaming. You represent the Indian tribe, and want more slot machines. You've lost in the district court, and now appeal to the Ninth Circuit. You're waiting for the panel to be announced just prior to oral argument. Who's your dream -- absolute dream -- draw?

Right. Judge Canby.

Ca-ching!

I'm not saying he's wrong here (when he finds in favor of, you guessed it, the tribe). You'll not find a bigger -- or more interested -- expert on Indian law on the federal bench.

But talk about a great draw if you're the tribe. It's hitting a 16 against a 9 and getting a 5.

Jonathan L. v. Superior Court (Cal. Ct. App. - Aug. 8, 2008)

You've got to give Justice Croskey credit. It's rare enough that the Court of Appeal admits that it made a mistake. It's even rarer to go out of your way to admit your mistake. But that's exactly what happens here.

This is the homeschooling case, which I briefly discussed when it initially came out. The Court of Appeal's holding that (in the context of an allegedly abused child) California did not grant parents the right to homeschool one's child -- a conclusion that seemed to flow directly from the relevant statutory dictates -- resulted in a firestorm of controversy. And, as I predicted, after a petition for rehearing was filed, Justice Croskey promptly went to work on amending the opinion.

After the petition for rehearing was filed, he could have simply dismissed the appeal as moot, as the dependency proceedings here had by that time been dismissed. But he didn't do that. He could also have merely limited his holding to state that regardless of whether there was a right to homeschooling, that right doesn't preclude the state from ordering public schooling of an abused child. Which is a conclusion that he not only reaches, and that effectively resolves by itself the present case, but is also, in my mind, exactly right.

But he doesn't do that either. He instead confronts head on the central issue -- the one that had generated so much controversy -- and holds that, in fact, his prior opinion was wrong. That there is a right to homeschool one's child, at least as a matter of pratice (even if the statutes appear to go the other way). Contrary to what he had previously held. And goes to great lengths, in an opinion that explores the subject in great depth and sophistication, to explain why that's the case.

Now, you can take this reversal in one of two ways. First, you could view it as the product of a good faith change of mind in light of additional information that didn't exist when Justice Croskey wrote the initial opinion, combined with an ability and willingness to be forthright and honest in changing one's mind and admitting when you were initially wrong. Alternately, you could view it as a cynical attempt to reverse one's self in light of controversy -- including from the Governator himself -- and to pander to that controversy with a keen recognition that justices on the Court of Appeal are subject to periodic retention elections.

Personally, I'm strongly of the former view. But I gotta admit that even the most neutral and well-intentioned person is probably at least dimly aware of the realities of the latter.

Regardless, I think that this is an admirable opinion. And I applaud both Justice Croskey as well as the rest of the panel.

People v. Becerra (Cal. Ct. App. - Aug. 7, 2008)

This is why I love reading the California Appellate Reporter. Because even if you go to Urban Dictionary or google the term "nose dipping," you'll still have utterly no clue as to what that phrase could possibly mean. But Justice Ikola knows. Check out page 4. When someone tells you to "Keep that nose of yours clean; don't be nose dipping," that apparently means "Don't testify against me. Otherwise I'll have you killed."

Because nothing shows poor form like having someone threaten to kill you in street vernacular and having to respond: "Wait. What do you mean? Can you repeat that again in the Queen's English?"

GEC Capital Corp. v. Future Media Productions (9th Cir. - Aug. 7, 2008)

Sometimes you amend an opinion to respond to an argument in a petition for rehearing. Sometimes you amend to correct a factual error. And sometimes you amend to get your colleagues off your back.

Back in July, Judge Trott wrote an opinion in an otherwise fairly routine bankruptcy case involving default interest. The district court had applied -- and extended a bit -- the Ninth Circuit's holding back in 1988 in a case called Entz-White. But Judge Trott, as well as the rest of the panel, found that case distinguishable. Which, of course, is totally fine.

But in the midst of the opinion, in so holding, Judge Trott also inserted the following footnote (footnote two): "With the addition of the 1994 amendments, including § 1123(d), the continued validity of our holding Entz-White is questionable. We, however, do not reach that issue today as the facts presented in this appeal—grounded in a § 363 sale—are distinguishable from those in Entz-White."

Now, I'm admittedly just speculating, but my sense is that the claim that "the validity of our holding in Entz-White is questionable" didn't exactly go unnoticed. By either the parties or, more critically, the other members of the Ninth Circuit.

Whatever the reason -- and I don't think anywould be surprised if the words en banc were part of the threatened utterances -- here's the entirety of the Order that the panel issued earlier today: "The Opinion filed on July 3, 2008, is hereby amended as follows: on slip Opinion page 8112, delete footnote #2."

Controversy over. For now, anyway.

McMillan v. Shadow Ridge at Oak Park (Cal. Ct. App. - Aug. 4, 2008)

Please don't get me wrong, Justice Perren. I completely agree with you. You're totally right in this one. When a party in a civil action appears pro per, even with a "counsel on the side", there's no disqualification when the opposing party talks directly to the pro per litigant. That's totally permissible. You're also completely correct that a party shouldn't be able to frustrate the other side by making unclear whether they're represented by the "informal" counsel or pro per. Exactly right.

I also don't disagree with what you said when you began the opinion. The first sentence of which says: "Over 140 years ago, our Supreme Court stated, 'A party to an action may appear in his own proper person or by attorney, but he cannot do both.' (Board of Commissioners v. Younger (1865) 29 Cal. 147, 149.)" The Court did indeed say that. And it's generally true, as well as nicely applicable here.

That opening statement caught my eye, however, because, technically, I think it's not, in fact, accurate. In my mind, at least, a party to an action can simultaneously represent himself and be represented by an attorney -- a fact that, if true, disproves at least the universality of the California Supreme Court's categorical statement. When, you might ask, can they do so? When they're an attorney as well. So if, for example, the plaintiff is an attorney, and also formally associates another counsel, in my mind, both (or either) attorney can represent the plaintiff. And hence appear at hearings, enter into stipulations, argue motions, etc. The plaintiff in such a setting is "represented" by two attorneys -- himself (or herself) as well as the outside counsel.

Are there any cases on this precise point? Maybe. Both Scott v. Times-Mirror Co. (1919) 181 Cal. 345 and Conroy v. Waters (1901) 133 Cal. 211 at least come close, as both involved a party to was an attorney and who represented himself (alongside other counsel), and the Supreme Court in each refused to find reversible error notwithstanding the "can't be both pro per and have an attorney" language of Younger.

So I raise the point if only because (1) I hadn't seen the language that Justice Perren quoted ever before (it apparently comes up every couple of decades or so!); (2) it articulates an interesting categorical proposition, and one that even be practically relevant to members of the California Bar; and (3) may be misleading, or even untrue, at the margins.

Not, again, that you're wrong, Justice Perren. I'm with you. Totally. Especially since the plaintiff here was not, in fact, an attorney. Regardless, I just wanted to make a tangential -- and hopefully helpful -- point.

Garcia-Aguilar v. United States District Court (9th Cir. - Aug. 6, 2008)

Not a good day for the U.S. Attorney's office down here in San Diego. Which gets called out by Chief Judge Kozinski for (1) doing a bad job, and then (2) trying to get out the consequences of this (alleged) malfeasance by convincing -- successfully, I might add -- three district court judges down here (Judges Burns, Benitez, and Collins) to refuse to accept the unconditional guilty pleas of various criminal defendants.

No dice, he holds. And grants a writ of mandamus. In his inimitable fashion; e.g., the second sentence of the opinion is: "These consolidated cases show again why the ten most terrifying words in the English language may be, 'I’m from the government and I’m here to help you.'"

Chief Judge Kozinski: A funny guy. But, simultaneously, not at all shy about sticking it to you when he thinks you deserve it.

U.S. v. Flores-Villar (9th Cir. - Aug. 6, 2008)

You're an illegal alien from Mexico. You've previously been convicted of importing marijuana. You're now convicted of being a deported alien found in the United States. Your best chance for reversal is to make a constitutional equal protection argument and assert that, on that basis, you get to become a U.S. citizen.

You lose below, but appeal to the Ninth Circuit. And a week before oral argument, find out that the panel drawn for your appeal consists of . . . Judges Hall, Rymer and Kleinfeld.

You might as well start packing now.

People v. Manning (Cal. Ct. App. - July 31, 2008)

Think that admission of prior offenses doesn't matter? Think again.

Without the admission of the evidence regarding the prior offense, there's no way that the defendant here gets found guilty beyond a reasonable doubt. But with the admission of the prior offense -- notwithstanding the fact that the prior was fairly dissimilar to the current charge (forcibly assaulting a co-worker versus allegedly groping a sedated patient eight years later) -- he definitely gets convicted.

People v. Diaz (Cal. Ct. App. - July 30, 2008)

No opinions from the Ninth Circuit today. Guess they're all still sleeping off the Sun Valley conference. Plus no opinions from the California Court of Appeal yet either. Maybe they had a good time as well.

Regardless, I can still give some good advice, derived (as always) from counsel received from the good pages of the Federal and California Reporter. Today, here's my thought:

I know that there's a convenience aspect to the process that your customers undoubtedly appreciate. My strong recommendation is nonetheless that you should not let people buy Ecstacy from you through the admittedly expedient means of sending you a text message.

Here's one reason why.

Twardowski v. American Airlines (9th Cir. - July 30, 2008)

You know the panel thinks that this is a fairly easy case when (1) the opinion is per curiam; (2) the majority of the sections consist of a single paragraph, and (3) the caption takes up more pages than the opinion.

Ramirez v. Nelson (Cal. Supreme Ct. - Aug. 4, 2008)

The Court of Appeal has to follow precedent. The California Supreme Court has a little more flexibility. And, as a result, often does a little more "justice" than the lower courts.

So, for example, Justice Gilbert, reading a statute, feels contrained to say that a homeowner might well be liable per se for having a contractor electrocute himself when his polesaw hits an overhead high voltage line. A result that, as I mentioned here, seems profoundly unjust, and yet that seems to be the lay of the land.

But the California Supreme Court says, essentially: "Look, that's just too absurd and unfair. We don't like it." Which is exactly right. And, I imagine, was how Justice Gilbert may well have seen it as well. But when you're the California Supreme Court, on an issue of California law, you're the boss. There's no one higher than you. So you can do, essentially, what you want.

Which it does here.

I'm not especially complaining. I think the California Supreme Court's decision enhances justice. I just feel bad for Justice Gilbert. Or anyone else on the Court of Appeal that doesn't have a similar infallibility that arises from finality.

People v. Sutton (Cal. Ct. App. - July 30, 2008)

The holding here is itself important -- basically, that even if the defendant doesn't waive time (i.e., the right to be brought to trial within 60 days), appointed counsel's engagement in another trial constitutes "good cause" to continue the trial beyond that statutory period. That's an important -- and interesting -- holding, and does conflict a tiny bit (albeit in an arguably distinguishable way) with some other holdings.

But let me focus less on the doctrinal merits here than on a passage in the opinion that quotes some of the dialogue below. Dialogue that jumped out to me as not right -- as not the type of discourse that I especially like to see manifested by judges. Here's the exchange between the defendant and Superior Court Judge
Judith L. Champagne (up in Los Angeles):

“Defendant Sutton: I’m confused.
The court. What are you confused about, Mr. Sutton?
Defendant Sutton: I’m told you have 60 days to start trial. Sixty days was up yesterday, and we’ve not waived any time. The minute order –
The court: That’s excellent. And I found good cause to put your case over.
Defendant Sutton: What’s the good cause? What’s the good cause?
The court: The good cause is that one of the lawyers is engaged and can’t try two cases at one time. And if one of the lawyers is engaged on a case with two defendants, it’s good cause to put both over. Now, do you want a further explanation than that?
Defendant Sutton: Yeah, but the minute order show we never waived any time. I’m confused.
The court: You’re not confused. You just don’t like it.
Defendant Sutton: Well, that’s a fact.

The court: That’s a fact. And you know what my answer to you is? Too bad. See you on Monday.”

The sarcastic "that's excellent" comment is somewhat snarky, but I'm willing to let it go. But I thought the "too bad" comment somewhat crossed the line. The Court of Appeal doesn't mention anything about this exchange, but I'd have dropped a footnote that said we expect a little more circumspection, neutrality and restraint from our judges. Because the appearance of justice matters too.

People v. Phomphakdy (Cal. Ct. App. - July 31, 2008)

The theme of the past 36 hours of my life has been: "Drugs, drugs, and more drugs!!" And, no, I'm not talking about personally. I mean professionally.

Yesterday the Court of Appeal (correctly) affirmed the dismissal of a lawsuit brought by San Diego County to the identification card provisions of the Medical Marijuana Program Act, and I briefly talked about that decision here. Then, that afternoon, I took the bench as a pro tem and decided a couple of cases, in one of which drugs played at least a healthy role. At the end of the day, back at my office, I then commented upon a decision by the Court of Appeal that, inter alia, discussed a Los Angeles physician who's willing to say that consuming three to six pounds of marijuana a month seems about right. Which is definitely nice. At least if you're into that sort of thing.

Thereafter, in more drug-related news, this morning, I donned a DEA jacket (metaphysically, at least) and, surrounded by a dozen DEA agents, executed -- as a court-appointed special master -- a search warrant on a physician (the name of whom I shan't reveal) who allegedly diverted a fair amount of controlled substances. Getting hooked on Vicodin, it seems, is not a good life, and entails an extremely hard habit to control. Finally -- or at least finally for now -- I stumble across this case, in which the Court of Appeal holds that Medical Marijuana Program Act's typical limit of "no more than eight ounces of marijuana" and “no more than six mature or 12 immature marijuana plants" unconstitutionally amends the Compassionate Use Act. And also, for those in the Bay Area up north, mentions Hany Assad, who's another doctor (like the other one I discussed yesterday) who's more than willing to both prescribe marijuana and testify -- again, ultimately successfully, at least once the case gets to the Court of Appeal -- on behalf of the defendant. (Though I must warn you that the stuff here about Dr. Assad doesn't sound especially good.)

In short, for me, at least, the past 36 hours have been all about drugs. And that's not even counting the fact that Cheech and Chong just announced that they're getting back together.

Dude. Like, heavy.

In Re Matthew A. (Cal. Ct. App. - July 28, 2008)

"You're like a little kid. We tell you and tell you and tell you, but you never seem to listen. Time to ground you to your room, I guess."

Or, as Justice Flier -- the mother of three children and several grandchildren herself -- puts it here, "Courts utilizing this technique may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious. But, if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment."

So there.

People v. Windus (Cal. Ct. App. - July 30, 2008)

You've got to love a doctor who'll not only prescribe marijuana for you, but who, at your trial, will testify that using three to six pounds of marijuana every month would be appropriate for your condition.

I mean, I'm no expert in the area. But three to six pounds per month?! Couldn't you keep, like, an army stoned with so much pot?

So those of you in Redondo Beach who're looking for some extra "compassion" pursuant to the Compassionate Use Act might want to look up Dr. William Eidleman. And based upon what I know about Redondo Beach, that describes a fair piece of the population.

Conviction reversed.

County of San Diego v. San Diego NORML (Cal. Ct. App. - July 31, 2008)

In a decision that should surprise no one, the Court of Appeal affirmed today the trial court's dismissal of the challenge brought by San Diego and Riverside County to California's Medical Marijuana Program Act. So you can still get your identification card.

Justice McDonald rightly holds that, sure, there may perhaps be some degree of conflict between California's Compassionate Use Act and the federal Controlled Substances Act. (Though even that is up to debate; after all, the former merely precludes state prosecution, and does not even attempt to alter the availability of potential federal prosecution.) But even assuming that's true, "[t]he identification card statutes impose no significant added obstacle to the purposes of the CSA not otherwise inherent in the provisions of the exemptions that Counties do not have standing to challenge [e.g., the CUA itself], and we therefore conclude the limited provisions of the MMP that Counties may challenge are not preempted by principles of obstacle preemption."

Which is exactly right.

In Re Marriage of Bardzik (Cal. Ct. App. - July 25, 2008)

Sometimes writing in a fun, informal fashion doesn't work. But my strong sense is that the opposite is true here.

For those of us who don't know all that much about family law -- and I'm clearly in that group -- it's a wonderful opinion. Flowing. Informative. And full of both details, not only doctrinal but also factual, as well as insight. If you want to know what happens to child support orders when one of the parents quits work or retires or just starts "taking it easy", this is a great opinion in which to start learning. If only because it's replete with lines that put a tiny little smile on your face as you're reading. (Like: "Most (all?) judges, after all, would make more money if they returned to private practice, but the phrase “extraordinary work regime” does not even begin to describe the often typical 2,200 (or is 22,000 these days?) billable hours a year that might be required." Or the discussion of Regis Philbin. Which isn't nearly as random as you might think.)

One more thing. I have a bad habit -- one that I learned from this guy -- of writing complete sentences within parentheticals. It's a habit that I try to break, since I know that it's a English composition horror show, but find myself doing it all the time, at least in my nonacademic work, because it's just so easy and seemingly righteous. I've always felt guilty about it. But now that I notice that Jusice Sills does the same thing (a fair piece, I might add), I'm going to worry about it less. I may well be wrong. But at least I've got precedent.

Anyway, I liked the opinion. It's a very good read.

Dougherty v. Haag (Cal. Ct. App. - July 28, 2008)

I can promise you this: Paul Dougherty isn't a big fan of Justice Sills. At least after this.

Dougherty is a forensics expert in firearms who was censured by the Association of Firearm and Toolmark Examiners (AFTE) for giving allegedly absurd expert testimony in a civil case. So he brings a lawsuit against the AFTE.

And not only loses in the trial court, but gets absolutely slammed by the Court of Appeal.

It's bad enough that Justice Sills only deems Dougherty's arguments worthy of response in repeated parentheticals. For example, take a gander at the following "sentence" -- and I use that term loosely, given its seemingly intentionally run-on nature -- by Justice Sills:

"Dougherty complains that he was denied the right to have counsel of his own choosing (but only because he chose counsel who could not make a hard-to-schedule board meeting); the board went forward with the ethics committee’s “vague and conclusory report” (which is still clear enough to give anyone who reads it a good understanding of the three major items that cast doubt on Dougherty’s double ricochet thesis); he couldn’t “question his accuser” (the case did not turn on Haag as percipient witness); the board didn’t give him a chance to voir dire the board for conflicts of interest (AFTE is a private organization whose board was chosen independently of this disciplinary matter); the board shifted the burden of proof to him (which is not a valid inference from the fact that he was invited to defend himself, but even if so, a prima facie case had already been made); the board voted only once on all ten accusations (so?); the board failed to issue its own report substantiating each charge with “clear and convincing evidence” (so?); the board allowed Haag to respond to the Nixon Report (the Nixon report was new, Haag’s rebuttal was new, so both were made available to the membership)."

Doesn't give you a sense that Justice Sills is really in love with the arguments that Doughtery and his counsel are making, eh?

But it gets worse. Take a look at the last paragraph of the opinion. And feel the pain:

"Stepping back from this appeal, however, there is something very heartening about this case: A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous -- roughly the equivalent of saying that a shotgun can shoot at a right angle. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn’t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they didn’t deserve a lawsuit, they deserve a medal."

Come on, Justice Sills. Don't hold back. Tell us what you really think. :-)

People v. Osorio (Cal. Ct. App. - July 30, 2008)

You've been found guilty of murder, arson, robbery, and burglary. Among the people you murdered was a 34-year old traffic officer for the police department. And you belong to a gang, and your nickname in this not-easily-impressed group is -- tellingly -- "Criminal".

Given these facts, don't be surprised when you're sentenced to two consective life terms without the possibility of parole. Plus 44 years. And when the Court of Appeal affirms.

People v. Gonzales (Cal. Ct. App. - July 30, 2008)

When you're going to use your first four peremptory challenges to strike Hispanic jurors, at a minimum, you've got to be more subtle about it. Sure, maybe you can get away with striking the guy with the baggy pants. But, trust me, that guy to whom you didn't ask any questions, or develop any record about other than the fact that he (like at least one other juror you didn't strike) also speaks Spanish; well, that ain't gonna cut it as a race-neutral explanation. Not by a longshot.

Klein v. United States (9th Cir. - July 30, 2008)

When I started reading this case, which certifies a question to the California Supreme Court, I had an unusual thought. Unusual for me, anyway. My initial reaction was: "Hey, I love certification as much as the next guy, and generally even more. I typically like the modesty and comity and restraint that it entails. But this seems to go overboard, even for me. There isn't an oft-repeated or critical legal issue at stake here, so I don't see why the Ninth Circuit can't just decide the case by itself. Sure, it's a prediction. But give it a shot." It was, I initially thought, one of those very rare cases in which I thought that certification might not be worthwhile.

But then I read the rest of the opinion. And Judge Gould persuaded me that this is actually precisely the sort of case in which certification is appropriate.

Here's the paragraph that convinced me that Judge Gould was entirely right and I (or at least my first reaction) was wrong:

"When “there is no relevant precedent from the state’s highest court, but . . . there is relevant precedent from the state’s intermediate appellate court,” we “must follow the state intermediate appellate court decision unless [we] find[ ] convincing evidence that the state’s supreme court likely would not follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (emphasis omitted) . . . . We are particularly reluctant to follow [the California Court of Appeal's decision in] Shipman in light of the harsh result that granting immunity here would create, where Klein’s injuries were so severe and where he would have been able to seek recovery for those injuries from Anderberg’s employer if that employer had been anyone but the federal government. However, because we are “in doubt” about how the Supreme Court of California would resolve this important question of California law concerning immunity of a landowner for its employee’s negligent vehicle operation on its land harming a recreational user of such land, we prefer if possible to let that court speak to the issue rather than making our best prediction of what it would say."

Wonderful. And absolutely correct. I like it when a federal court thinks to itself -- and even says out loud -- "Look, we think that X got it wrong, and might well hold that way. Because that's our idea of justice. But we understand that this is your law, and that our role isn't necessarily to do what's right or equitable here. So we will restrain our own power, let you know what we're thinking, and give you a chance to decide. Let us know if you want to take this thing yourself, or would instead prefer that we just go ahead and do what we're thinking." I very much like the sentiment -- and restraint -- that entails.

City of Hollister v. Monterey Ins. Co. (Cal. Ct. App. - 29, 2008)

Thinking about purchasing a policy with Monterey Insurance Company, or have to deal with them on a claim? Then take a look at this.

Rarely, in my view, does an insurance company look this bad. Justice Rushing gives excruciating details about how Monterey Insurance -- and one of its adjusters, Jack Boczar -- handled an insurance claim filed by the City of Hollister when one of its old buildings at the Hollister airport caught fire. Suffice it to say Justice Rushing's description makes it crystal clear that this is not an insurer with which I'd elect to do business.

The type of stuff the insurer pulled here is exactly why some people despise insurance companies. And I was more than happy to see that the trial court, as well as the Court of Appeal, didn't let them get away with it.

Bandana Trading Co. v. Quality Infusion Care (Cal. Ct. App. - July 21, 2008)

Let me give a tiny little lesson on propriety. If you're a juror, don't aggressively nod -- either affirmatively or negatively -- during counsel's closing argument. And for God's sake, whatever else you do or don't do, don't start clapping during his or her closing. For so many reasons that I don't even feel like counting them.

But if you do, c'est la vie. It generally ain't gonna get you booted off the jury (!) or constitute reversible error.

However, it's still extremely bad form.

Moore v. Czerniak (9th Cir. - July 28, 2008)

As they say at the outset of Celebrity Deathmatch: "Let's get it on." And that's precisely what the respective authors do here. In a wicked smackdown that's virtually without parallel.

I naturally hesitate to recommend to anyone to read through a series of opinions in a single case that, in total, span over a hundred single-spaced pages. But this is an exception. It's a tour de force. Filled with the type of no-holds-barred language and attacks that are utterly classic.

It took the authors over three years to write this one: the oral argument was in March 2005, and the opinions came out only today. You gotta admire the effort. As well as the final product. I defy anyone to find a better example in which the authors go totally all out to unhesitatingly respond to, attack, and otherwise slam the crap out of the contrary beliefs of their colleagues. Even if you don't have the stomach to read the whole 100 pages of diatribes, at least read the footnotes of both the majority opinion and dissent. As well as Appendix A of the majority opinion, which is devoted exclusively -- and I've never seen this before -- to yet more slams on the dissent. Fantastic. Classic.

The majority opinion is written by Judge Reinhardt. No surprise there. Not a guy to hold his tongue. Or to suffer what he considers to be foolish reasoning in silence. His opinion is almost fully joined by Judge Berzon, who also writes a concurring opinion that's doctrinally interesting in its own right, and also manifests a tone that is quite a bit different than both the majority and dissent. The dissent, in turn, is written by Judge Bybee. Not a massive surprise there either. Judge Bybee doesn't hesitate to take others to task when he feels they are deserving. And does so here in spades.

I thought about providing selected exemplars of colleague-to-colleague slams from the footnotes, but I would simply be doing them injustice. You gotta read the stuff yourself.

We all know that judges occasionally -- indeed, often -- pull punches because they have to work with (and, at times, hope to persuade) the judge on the other side in a large number of other cases. That ain't happening here. You get Judges Reinhardt and Bybee in their full, unvarished truth. And I love it. Absolutely love it.

Don't let me down. Read the footnotes. And feel the love.

People v. Cruz (Cal. Supreme Ct. - July 24, 2008)

Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court.

Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for drunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense.

Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective.

People v. Evans (Cal. Supreme Ct. - July 24, 2008)

Throughout the history of Anglo-American jurisprudence, for almost half a millennium, a defendant has had the right to allocute after being convicted of a crime. To express sorrow for what he's done. To explain his actions. To beg for mercy. To try to place a human face on things before the court pronounces sentence.

You don't have that right in California anymore.

Lopez v. Imperial County Sheriff's Dept. (Cal. Ct. App. - July 22, 2008)

Ties go to the runner in baseball. Ties go to the House of Representatives in elections. Ties go to the respondent in the United States Supreme Court.

But ties in Imperial County -- at least in the Employment Appeals Board -- go to the bureaucratic equivalent of overtime. Revote.

In Re P.C. (Cal. Ct. App. - June 23, 2008)

Tell me that there's an obvious solution to this problem. Please.

A homeless mother who's trying hard and seems to sincerely care about her children. Children who remain strongly attached to their mother, but have also bonded with a family that's eager to adopt them.

Read the details. Tell me what the easy answer is. Justice Fybel seems to do what's right, but I think it's far from an easy case.

I just have no idea (or at least am incredibly torn) as to how society should deal with these incredibly difficult issues. Which, I fear, arise far too often.

People v. Monjaras (Cal. Ct. App. - July 21, 2008)

It's as good a reason as any -- or at least good enough -- to publish an opinion merely to put to rest meritless arguments that nonetheless seem to be repeatedly raised in the Court of Appeal

Or, as Justice Scotland puts it so artfully here: "Our point in publishing this opinion is to say in no uncertain terms that a moribund claim like that raised by defendant has breathed its last breath."

To which I respond as follows: (1) Hear, hear. And yet (2) Wanna bet?

Los Angeles County Prof. Peace Officers' Ass'n v. County of Los Angeles (Cal. Ct. App. - July 22, 2008)

Sometimes you can summarize an opinion very succinctly. Using only three or four sentences of the opinion to get the point fairly clearly.

That's the case here. About which you need know very little more than this:

"Labor Code section 4850 provides that when a public safety officer (like each plaintiff here) "is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, . . . to a leave of absence while so disabled without loss of salary . . . ." The principle question [see below] in this case is whether Los Angeles County's policies concerning payment for excess accumulated vacation hours violate section 4850. . . . [Taken together, these policies mean] that, for example, a deputy who has accumulated excess vacation hours, but who has never been injured on duty, might collect more in retirement benefits than a deputy who has been injured on duty, even if the two have the same employment history in terms of rank, years of experience, and so on. It also means that a deputy who retires after taking leave due to a non-job-related injury, perhaps a ski accident, might collect more than a deputy who retires after having suffered an injury in the course of his or her duties, even if the deputies are in other respects identical. Plaintiffs' theory is that this different treatment violates section 4850. The trial court agreed, as do we."

You can read the whole thing. But as a matter of both doctrine and equity, it seems right.

P.S. - I'd just probably quibble with the "principle question" part. Yeah, it's a question about a principle. But I think that Justice Armstrong actually means that it's the principal question. A tiny -- but extant -- difference.

Bonanno v. Connolly (Cal. Ct. App. - July 22, 2008)

If you've got a wife, a girlfriend, and an adult daughter from a prior marriage, don't die intestate. Because if you do, your estranged wife -- from whom you've been separated for 12 years -- will file a claim for a huge chunk of your estate, your girlfriend will file a palimony and other claims, and your daughter will seek her share as well. And they'll fight, fight, fight -- for years -- over your former material possessions. And try to hose each other every step of the way.

Is this really what you want as your legacy?

Garcia v. Paramount Citrus Ass'n (Cal. Ct. App. - July 21, 2008)

"Dude, I authored a kickin' opinion when this thing first came up. Then, after you lost, you let me know that one of my colleagues/panel members should have been disqualified. So be it. We replaced the disqualified justice with another one and reheard the thing. That's good enough. We ain't gonna get a whole new panel -- from a different district, no less -- like you asked. We also won't refrain from using any of the language I used in the earlier opinion. Which, IMHO, kicked butt. Albeit yours.

So here's my opinion, again, with minor technical changes. Deal with it. You don't get a second bite at the apple just because the earlier one had a tiny little worm in it we didn't know about. We took out the worm. Apple's the same."

That, in a euphamistic nutshell, is what Justice Vartabedian says here.

P.S. - Not that he -- or I -- are calling Justice Kane a worm. I want to make that crystal clear.

Simmons v. Ghaderi (Cal. Supreme Ct. - July 21, 2008)

Congratulations to (insert any one of a number of applicable prestigeous appellations here: Judge, Secretary, Justice, Dr., etc.) Shirley Hufstedler on winning this one. Unanimously, no less.

Given that I previously discussed this case in the Court of Appeal, I'd typically link to my prior discussion -- in which I noted, inter alia, that I thought this was a hard case, and one that (for that reason alone) was a prime candidate for a grant of review. But out of respect, I'll merely limit my comments to a sincere congratulations, alongside a note that it takes a gifted advocate to win a case with strong merits on both sides without losing a single vote.

Well done.