Fortune Dynamic, Inc. v. Victoria's Secret (9th Cir. - Aug. 19, 2010)

How often does the Ninth Circuit refer to the attire of Britney Spears as a factual predicate for the resolution of an appeal?

At least once.

The opinion reverses the grant of summary judgment to Victoria's Secret in a case in which they sold a tank top with the word "Delicious" in printed in silver cursive letters on the front of a hot pink tank top (classy!) notwithstanding the fact that plaintiff had a registered trademark for that word. The Ninth Circuit held that even though the tank top was sold in Victoria's Secret stores, which would presumably suggest that it was made by Victoria's Secret (rather than defendant), there was still a possibility of consumer confusion because people might have initially seen the tank top worn outside of a store, including by the aforementioned Ms. Spears, who was known to have worn it.

I have only three things to say about this opinion:

(1) Conduct a trademark search before you manufacture a product. Makes sense, right?

(2) Thank goodness the opinion didn't include a pictorial representation of the factual predicate to which it refers. I've been able to dig up at least one photo of Ms. Spears wearing the relevant clothing item, which she did as she left rehab in 2007. Yikes!

(3) Judge Bybee and his clerks have to get out more. His opinion says: "The record reveals [] evidence of individuals (including pop star Brittney Spears) wearing Victoria’s Secret’s 'Delicious' pink tank top on the street." But it's "Britney," not "Brittney."

I'd also say "incredible freak show" rather than "pop star," but I admit that's a matter of taste.

People v. Valli (Cal. Ct. App. - Aug. 19, 2010)

We charged you with murder. Plus being a felon in possession. We introduced evidence that you fled the police in at attempt to prove your guilt.

You beat the rap. The jury acquitted you. Well done.

But not so fast. We were ready for that possibility. So minutes after the jury returned its verdict, we arrested you. On the charge of . . . evading arrest. You know, that stuff that we introduced at trial about you fleeing in our unsuccessful attempt to establish your guilt.

And guess what? We won Trial No. 2. And got a sentence of . . . 50 years to life. Which the Court of Appeal affirms.

So ha! That'll teach you to mess with The Man.

Greenwood v. CompuCredit Corp. (9th Cir. - Aug. 17, 2010)

I don't know if you ever received an "Aspire" VISA card offer in the mail. I know I did. Several times. The thing was clearly targeted to unsophisticated consumers with terrible credit. It was a horrendous deal, and the company was clearly preying on people who didn't know how to read very well. I threw the solicitations away, and hoped that everyone else did also. Yet I knew all too well that the company was spending all this money on postage for a reason.

Needless to say, a number of people signed up. For a deal that told them that there was "no deposit required" and that they'd immediately receive $300 in available credit. Which, yeah, they indeed received.

But the card had a $29 finance charge. A $6.50 monthly "account maintenance fee." And a $150 annual fee. All charged in advance. Listed, of course, in small print.

So, yes, they got $300 in "credit". And were promptly charged $257 in fees. So you paid $257 for the right to charge $43 on a card.

What a great deal. I'm sure everyone who signed up for that one did so with full knowledge of the terms. Yep. Positive of it. This isn't a credit card company that's simply ripping people off with tactics that are totally unethical. No. Not at all. (Parenthetically, I noticed that the Motley Fool called the Aspire Card "The Worst Credit Card Ever" -- no small feat!)

Fortunately, they get sued. In a class action. Although this appeal isn't about the merits, it is about the validity of some additional small print in the offer. Which, predictably, prevents the filing of class actions. Or lawsuits of any kind. Instead funneling individual complaints to that by-now-infamous arbitral tribunal, the National Arbitration Forum.

The credit card company loses. In a divided 2-1 opinion.

And I weep for them.

U.S. v. Alvarez (9th Cir. - Aug. 17, 2010)

The Ninth Circuit has gotten a lot of attention lately -- and rightfully so -- for its important preliminary Prop. 8 decisions. But there's some other stuff, on the merits, that's worthy of attention as well.

Like this case.

It's a great debate between Judge Milan Smith, who authors the majority opinion, and Judge Bybee, who dissents. Both do a wonderful job. Both are passionate. Both opinions are worth reading. Notwithstanding the fact that you're thereby committing yourself to almost 80 single-spaced pages. You've got some very creative stuff here. Both chambers really put a ton into this.

We've also not heard the last of this one. The majority opinion holds the Stolen Valor Act, which provides criminal penalties for falsely claiming to have been awarded to Congressional Medal of Valor (and simliar awards), to violate the First Amendment. That's a provocative holding. You will see an en banc call on this one. You may well also see the Supreme Court take this one up if the opinion stands. It's a holding that seems at least plausible after 35-plus pages. But as a one-liner, it is way too easy to dismiss this one as another result from a "wacko" Ninth Circuit. So the opinion today is only the beginning of the story, not its end.

Personally, I probably come out somewhere between the views of Judge Smith and Judge Bybee. I think that Judge Bybee is largely correct (as a thematic matter) that false statements of fact are not typically protected by the First Amendment, but disagree with his view that the relevant inquiry here is a historical one. It's instead precisely what Judge Bybee claims that it is not (and Judge Smith's critique of Judge Bybee's view is right about this) : an ad hoc inquiry as to the social value of the relevant speech. Sure, one can claim that the rules regarding obscenity, defamation, etc. all result from purely historical inquiries, and perhaps in a parallel universe in which every Supreme Court justice is a strict originalist, one of those billions of universes might have come up with the First Amendment regime in which we now live. But we don't live in that universe. Obscenity isn't protected because the Court didn't like it and didn't think it had much value (and protected the stuff that did). Defamation isn't protected for similar reasons. False political speech remains protected because the Court thought it had value even though false.

The history in this area is not the foregone product of history. It is instead a series of deliberate policy choices that often (but not always) track similar policy preferences in the past. So I'm not persuaded by Judge Bybee's view that the "rule" is that false statements of fact aren't protected unless there's historical protection. It's a coherent view, but it's not an accurate description of either the genesis or content of existing jurisprudence. At least for me.

As for Judge Smith, I agree with him that some false statements are constitutionally protected notwithstanding their falsity. I agree that the First Amendment requires "breathing room" for some speech, and hence that Congress might not be permitted to impose punishment for some false statements. I would also interpret the Stolen Valor Act to require scienter -- the statute doesn't facially impose that requirement, but to be constitutional, I think it has to be so limited. The First Amendment would, in my view, preclude punishment for negligently false statements. You have to know of the falsity of what you speak. Furthermore, in my view, the Act would also need to be limited to statements that the speaker intended others to believe; e.g., to rely upon in making an assessment. You can't punish the Onion or Steven Colbert or Tom Hanks even if they "claim" to have won the Congressional Medal of Honor. If they don't intend to instill belief, the First Amendment would preclude their punishment. We need not depend exclusively upon the exercise of executive discretion in such cases. The Constitution is an independent bar. So I'd severely limit the statute in those ways, all of which I believe is required by precedent. Plus is fully consistent with what I sincerely believe was the intent of Congress. Or at least what would have been their intent had they actually thought about it before reflexively voting "Yes" for the passage of a statute that no politician in their right mind would dare oppose.

But that doesn't help Alvarez. Or probably any other person actually charged with the statute. He definitely had scienter, and knew he was lying. He was also definitely intending to deceive people -- to make people at the Water District (to which he had just been elected) think he was a "big deal". He wasn't kidding. So as applied to Alvarez's conviction, there's harmless error even if you limit the statute as I would. Moreover, it's not overbroad, since virtually everyone who would be charged with the statute would be similarly situated. So, in my view, yes, the statute has to be limited to survive a First Amendment challenge, but we can (and should) do so in a way that could nonetheless authorize punishment of Alvarez under the statute.

So what's the right test? For Judge Smith, it's the classic "clear and present danger" test. Just like falsely yelling "fire" in a crowded theatre is unprotected because it satisfies that test, so too (in Judge Smith's view) is Alvarez's speech protected because the statute fails that test.

But just as I disagree with Judge Bybee's test, while I agree with Judge Smith that the statute would fail a clear and present danger test, I don't agree that this is the correct test. Plenty of restrictions on speech don't satisfy the clear and present danger test. We don't allow obscenity even though people don't immediately commit crimes upon viewing it. Defamation isn't allowed even when reputational harms are slight and distant. And, yes, it's true that the cure for some false speech is more speech. But calling someone a "child molester" is actionable even when the entire audience immediately views the alleged perpetrator and twenty witnesses deny the truth of the matter asserted. As a categorical matter, that's not the right test either.

For me, then, the correct First Amendment test is precisely that indeterminate analysis that requires judges to exercise judgment. What's the social value of the particular false statement? Is it a matter of public concern? Do we need breathing room here? What harms might result from the persecution of this speech? What harms might be prevented? Does this speech really contribute so little to public debate that it can be outright criminalized?

In my view, this is one of those rare cases in which the false statement can indeed be punished consistent with the First Amendment. I agree with Judge Smith that false representations don't "trivialize" the actual winners or make bravery in combat less likely. But I think that there is an intrinsic harm to rewarding (even temporarily) individuals who are not deserving of this high merit the appreciation and respect rightfully accorded to those who are. This is, I concede, an incohate harm, and falls along the lines of "unjust enrichment". But preventing such undeserved rewards is itself a socially beneficial consequence. On the other side, in this particular area, I can see nothing at all of value that such false speech advances. Nor the need for breathing room were the statute limited in the manner I suggest (e.g., scienter, intended reliance, etc.). I don't see a public benefit from protecting someone who deliberately lies about winning the CMC in an attempt to mislead others. It's not like protecting someone who calls Obama a communist or a Kenyan or a baby-eater. (All of which are equally true.) Those false statements there's a reason to protect. That's not the case, however, here.

Let me try to persuade you of my position with two hypotheticals. First, a woman asks Dude X shortly before they are about to have sex "Do you have herpes?" and X knowingly and falsely says no, and is convicted under a statute making such conduct illegal. I think such a conviction would be permissible, even if the couple never actually had sex (they were interrupted, or the woman changed her mind), even if counterspeech was possible (an ex-girlfriend who knew the truth was in the next room), and even if there was no "clear and present danger" of transmission because the couple always intended to use a condom, transmission rates are uncertain, sex was only to commence after the movie they were watching ended, etc. So Judge Smith's test would get this one wrong. But I'd say that there's a general social detriment to such statements and they can be punished (civilly or criminally) consistent with the First Amendment.

The hypothetical that Judge Bybee gets clearly wrong, in my view, is this one: My co-worker asks me "You look thin. Have you lost weight?" and I say "Yes, five pounds in the last week," even though I know that I've gained two pounds during that period. That's a false statement. There's no "historical" protection for that, or "traditional" concern for protection of obesity-related representations. So Judge Bybee's test, in my view, permit the government to punish such a statement. But that's wrong too. I'd say, in an admittedly ad hoc balance, that while there's no huge benefit to such statements, we reasonably give some leeway to in this area, and there's no real downside to letting such statements go forward. Now, if a broadcaster hawking a particular diet says the same statement in an advertisement, I come out the other way; in that context, the statement's unprotected. But the First Amendment doesn't permit the government to slap me in prison because I lie about my weight to a friend.

So that's my position. So I think the right result is that the conviction gets affirmed, rather than reversed, but only on a very narrowed statute, and with a different -- and importantly different -- test than that applied by Judge Bybee.

One more thing. Since I'm agreeing with at least his ultimate vote, let me disagree with Judge Bybee on one more thing. He spends several pages arguing that lower courts must follow what the Supreme Court "says" rather than what it "means". E.g., "[T]he majority's principle rests on a line of reasoning that I cannot endorse: that our jurisprudence should rest on a what we think the Supreme Court 'means' rather than what it actually says . . . . We do not have the authority as a lower court to limit the Court's statements to what we believe they mean rather than what they actually say." With respect, I strongly disagree. Lower courts have several constraints and obligations, but central amongst them is a duty to decide the case in the manner it believes the Supreme Court would decide it. Normally, the Court's express language is a telling indicator of the Court's intent, so it'd take a lot to not follow that language.

But that "lot" sometimes exists, and when it does, the lower courts are obligated, in my view, to do precisely what Judge Bybee asserts they are precluded from doing. Imagine, for example, that a sentence in an opinion by the Court accidentally left out a "not" in the context of a larger opinion that made the omission clear, and yet this mistake was either not noticed or was not yet corrected (perhaps an appeal came while petitions for rehearing were pending). Is it really the obligation of the lower court to decide the case exactly opposite what it knows the intent of the Court to be? I think not. Or imagine the Court says that "limitations on X are impermissible" but X includes an obscure subcategory, Y, that it's crystal clear (with reference to both common sense and precedent) the Court didn't think about or intend to limit. I disagree that appellate courts are duty-bound to decide the case in a way the Court would promptly be compelled to reverse.

Moreover, sometimes a similar thing happens temporally. Sometimes the Court says X, and never expressly overrules X, but then decides legions of cases that are doctrinally inconsistent with any version of X. We commonly -- and rightly -- say in such cases that the rule of X has been "undercut" by subsequent precedent and, if we're sure is no longer intended as controlling law by the Court, don't follow it. Seems right to me.

Plus, Judge Bybee's rule is underinclusive as well as overinclusive. To take a contemporary example, imagine that the Court in a unanimous opinion says that "We really, really think that the standing rule is Y, but don't have to actually reach that issue because a different issue (Z) disposes of the case." The actual language of the opinion clearly says that Y isn't the rule. But does that really mean that a lower court is totally free to ignore the statement in Y as if it totally didn't exist? Not to me. Yes, the Court's actual statement was just that it has "grave doubts" about C, not that C is false. But to me, those "grave doubts" mean something relevant for the lower court, and something beyond the extent of the actual language.

So I respectfully disagree with Judge Bybee's extension of textualism beyond the Constitution to the mere text of Surpeme Court opinions. I think that's mistaken.

So a lot of constitutional jurisprudence in this one. Worth thinking about.

U.S. v. Brooks (9th Cir. - July 8, 2010)

It should go without saying, but I'll say it anyway:

Don't pimp 15-year old runaways.

Chapala Mgm't Corp. v. Stanton (Cal. Ct. App. - July 29, 2010)

Tom and Donna Stanton live in a condo and want to replace two windows. The existing ones are brown, but the Stantons would like to replace them with something that's more like the color of sandstone. Not pink or purple, or anything garish like that. Just a really, really "light" brown.

The HOA says "No." The Stantons do it anyway. The HOA sues, and not only obtains an injunction, but also recovers over $60,000 in costs and attorney's fees. A judgment that's affirmed by the Court of Appeal.

Darn expensive windows.

My sense is that we can collectively devote our social resources to perhaps more important issues. Moreover, that HOA's might want to take themselves a little less seriously at times.

People v. Lynch & Jennings (Cal. Supreme Ct. - Aug. 12, 2010)

What we learn today is that if you burglarize and kill the elderly, you'll be sentenced to death, and that if you neglect and kill your five-year old son, you'll also be sentenced to death. In both cases, the California Supreme Court will unanimously affirm.

The common theme, of course, is the murder of someone who's especially vulnerable. On my end, I thought that the guy who committed multiple murders (Franklin Lynch) was higher on the culpability and "deserving of death" scale than the guy (Martin Jennings) who neglected and murdered his son. Nonetheless, you can see why a jury might decide as they did in both cases.

The cases raise for me the eternal question of how we qualitatively compare murder cases to decide who lives and who dies. We only want to kill the "worst of the worst," and yet we don't engage in any actual comparison -- we simply ask a jury to view a single case and to decide the defendant's fate. This necessarily results in some errors, because juries will differ, and my sense is that it's a one-way rachet: rarely will jurors erroneously say "this murder isn't especially bad" based on a sample size of one (if only given that most murders are indeed horrible), and there's a significantly higher risk that a jury may conclude that a particular murder is "especially" bad even if an observer who reviews the totality of murders would conclude otherwise.

Of course, we have trial and appellate courts, which allegedly can make that determination based upon a larger sample size. But due to electoral and other pressures, I've yet to see that constraint actually work in practice, and so it remains a theoretical rather than practical means of ensuring that we dole out death to only those who "actually" deserve it. At least in California, which is the only state I can really talk about with any degree of knowledge.

So two opinions today that come out exactly how you'd expect, but that nonetheless raised for me one of the traditional lingering questions about how the death penalty (and, arguably, other penalties) actually gets applied in practice.

People v. Hall (Cal. Ct. App. - Aug. 9, 2010)

Forty-seven years to life for accidentally killing someone while driving drunk. Seems harsh, right?

Not here. Not to me, anyway.

Snatchco v. Westfield LLC (Cal. Ct. App. - Aug. 11, 2010)

You own a large shopping mall in California. Which of the following are you not allowed to do:

(1) Prohibit a union from passing out leaflets urging patrons to boycott one of the stores in the mall.
(2) Prohibit a preacher from initiating conversations with mall patrons in an attempt to "share his faith."
(3) Prohibit a male teenager from initiating conversations with female mall patrons in an attempt to ask them out on a date.

Answers:

(1) You can't do this. That's the California Supreme Court's decision in Fashion Valley Mall (which I briefly mentioned here). Over the dissent of three Justices who wanted to overrule Pruneyard.

(2) You can't do this either. That's today's decision by the Court of Appeal. In an opinion that is far, far to the left of the dissenters in Fashion Valley Mall.

(3) You presumably can't do this as well. Because there's very little difference between (2) and (3). People have a right -- at least in California -- to attempt to noncoercively "share their faith" just as much as they have the right (in California) to attempt to noncoercively "share their love".

So feel free to try to pick someone up in a shopping mall. On your own behalf, or on behalf of the Lord.

Wilson v. Brown (Cal. Ct. App. - Aug. 10, 2010)

Sometimes you wonder how a trial court can get something so wrong. Like here.

Party A sends requests for admission to Party B, which denies them. Party A then wins at trial, and seeks cost of proof sanctions against both Party B as well as B's counsel for all the attorney's fees A incurred after the RFAs were sent. The trial court grants the motion.

Two problems. First, it's crystal clear you can only award cost of proof sanctions against a party, not its counsel. Second, in this particular case, some of the fee award was obviously improper -- like fees for attending a mediation, which hardly entails the cost of "proving" something at trial -- and Party B clearly had a basis for denying at least some of the RFAs even though B eventually lost.

So the Court of Appeal appropriately remands.

Admittedly, counsel for Party B below is partially to blame as well. He didn't specifically object to the request for fees against counsel, didn't show up at the hearing, and only spent a page and a half arguing that his denials were unjustified. Personally, if someone filed a motion asking for cost of proof sanctions of $50,000+ against me, I'd take the motion a bit more seriously.

Still, the trial court got this one wrong, and the Court of Appeal properly steps in. Justice. Albeit a bit delayed and full of unnecessary transaction costs.

Mito v. Temple Recycling Corp. (Cal. Ct. App. - Aug. 8, 2010)

Three things about this opinion:

(1) I love how short it is. Love it. Five double-spaced pages. Yet says everything -- everything -- that need be said.

(2) The opinion is totally right. Indisputably. Plaintiffs filed a complaint on the last day of the statute of limitations, but didn't include a civil cover sheet. So the Clerk bounced it.

The Clerk can't do that. California Rule of Court 3.220(c) couldn't be clearer, and was enacted precisely for cases like this one. It says: "If a party that is required to provide a cover sheet under this rule or a similar local rule fails to do so or provides a defective or incomplete cover sheet at the time the party's first paper is submitted for filing, the clerk of the court must file the paper." How much clearer can you be?

(3) This shows the difference between the clerks in L.A. and the clerks elsewhere. Those in the City of Angels are notoriously . . . . well, I'll let you fill in the blank. Something along the lines of "strict" is probably the nicest way to finish that sentence. Whereas clerks in many other places, including San Diego, are a bit less interested in bouncing papers. Thankfully.

Good job, Justice Rothschild. Totally right.

People v. Brady (Cal. Supreme Ct. - Aug. 9, 2010)

There's good forensics evidence that suggests that you're the murderer. The person you killed was a Manhattan Beach police officer. Who you killed in the line of duty during a traffic stop. In cold blood. With three separate shots. As his 12-year old nephew watched.

That you previously committed another murder is only icing on the cake. You're going to be sentenced to death. And the California Supreme Court will unanimously affirm.

The only thing surprising about this one -- though, perhaps, we should not be surprised, since I see this time and time again -- is the docket sheet. The death sentence was finalized in March 1999, and the certified copy was filed the next month. It then took nearly three full years to appoint counsel for the defendant, with nothing at all on the docket sheet during this period. Why so long?

Then we have the usual requests for an extension to file the brief. We initially give counsel nine months. Then she wants more time. So we say "Sure, but we're only giving at most four more extensions, for a total of 220 days, so seriously, get the brief done. No later than June 2004 for sure."

So counsel keeps asking for extensions, and the California Supreme Court each time says: "Okay, but remember, we're only doing this until June 2004, and only because each time you're saying you can indeed get it done by June 2004."

Then June 2004 rolls around. At which point counsel says: "Oh, I need some more time." And the Court says: "Okay. But no later than July 2004. No further extensions."

Then July comes. No brief. The Court says: "Okay, September 2004 then."

September 2004. No brief. The Court says: "Okay, November 2004. But after that date, no further extensions will be granted."

But why believe 'em? No brief in November 2004. So another extension to January 2005.

Needless to say, no brief then either. Extension to March 2005. Then May 2005. Then June 2005. Again, "after that date, no further extensions will be granted." But yet again, no brief, so another extension to August 2005, October 2005, November 2005, January 2006, and then February 2006 (twice).

Finally, in March 2006, a brief gets filed. Seven years after the death sentence is final.

"But death penalty briefs are complicated. It takes that long to examine the record and file things," you say? Even if true, that still wouldn't justify the Court entering briefing orders that it has no intention of enforcing, and that everyone knows are meaningless.

It takes the A.G.'s office a little over a year to file its opposition, which also seems a bit long. It then takes defendant's counsel another year to file the "optional" reply brief. No way a reply brief should take that long. Or require six extensions, and -- yet again -- orders that after a certain date "no further extensions will be granted," followed up by entry of yet additional extensions. Why do that? You can just preclude a reply.

Of course, even after all that, it takes another two full years to set the case for oral argument.

So now you'll know the answer the next time someone asks why it takes 10 years to resolve a single death penalty appeal in the California Supreme Court. Even in a fairly straightforward case in which the answer is virtually preordained.

There's plenty of blame to go around.

People v. Jones (Cal. Ct. App. - Aug. 9, 2010)

An appeal this morning from sunny San Diego; indeed, from within a mile or so of my office:

"Defendant Ahmanda Jones appeals from her conviction for shooting at an occupied vehicle. . . . On the night of August 29, 2008, Angel Torres arranged to meet with Jones, a prostitute whom he had met a few nights earlier, to have sex. Jones picked up Torres in a borrowed black two-door Ford Explorer and drove to a parking structure in Mission Valley. After Jones parked the car, Torres paid Jones $60 to have intercourse with her and for her to orally copulate him. The two moved to the back seat of the vehicle, where Jones performed oral copulation on Torres for five to 10 minutes. After that, Torres engaged in intercourse with Jones. While they were having intercourse, Jones and Torres got into a dispute about the length of time that Torres was taking 'to finish.' [!] Jones demanded more money from Torres to continue having intercourse. Torres said that he did not have more money. Jones then told Torres to get off of her, which he did, and threatened to drive away and leave him in the parking structure.

Torres took the keys out of the vehicle's ignition in order to prevent Jones from driving off without him. Jones became angry and got out of the vehicle. She lifted the hood of the Explorer and retrieved a gun from the engine compartment. Torres was inside the vehicle looking for his possessions when he heard a shot coming from the driver's side of the vehicle. . . . As Torres was getting out of the vehicle, he heard two more shots. Torres ran through the parking structure to escape Jones and eventually made his way onto a nearby freeway, where he collapsed. Paramedics took Torres to the hospital. Torres had been shot once in the neck and twice in the upper torso."

Reason Number 768 not to frequent prostitutes.

People v. Busch (Cal. Ct. App. - Aug. 4, 2010)

Farmer goes to Store and says: "I'd like to make a purchase." Store says: "Sure. We're a full-service facility. We've got lots of alfalfa. Also some high-grade marijuana, if you're into that sort of thing."

Farmer responds: "Heck, I'll give it a shot. Maybe it'd be fun to get high while feeding the cows. Give me a joint and a bale of alfalfa." Store says: "Sold." Farmer receives 5 grams of marijuana in a joint, and what he honestly believes to be a bale alfalfa in a burlap sack. But due to an accidental mix-up in packaging, Store actually gives Farmer a five-pound bale of marijuana instead.

Farmer never looks inside the burlap sack, which he places in his back seat (alongside the joint), and never knows that he's got five pounds of weed instead of five pounds of legume. But on the way back to the farm, he's stopped by the cops for speeding. The officer asks: "Do you have any illegal drugs." Farmer says: "Darn it. Yes. There's a joint in the back seat." Farmer consents to a search, at which point the officers discover -- and for the first time, Farmer learns of -- the five-pound bale of marijuana.

The above events are undisputed: Store has a videotape of everything, and Farmer is totally credible. Possession of less than 28 grams of marijuana is a midemeanor punishable by a fine of $100. Possession of five pounds of marijuana is a felony punishable by four years in prison.

Farmer's charged with the felony. Can Farmer be put in the pokey for four years?

The Court of Appeal, in an opinion by Justice Sims -- joined by Justice Raye and the future Chief Justice of the California Supreme Court, Justice Cantil-Sakauye -- says yes.

I've changed the facts of the opinion, of course. But that's the Court of Appeal's holding. Farmer is just as guilty as Andrew Busch. Both knew they had weed. So both can be convicted or all the weed they had, even if they didn't know the full extent (e.g., weight) of it.

Interesting holding. You can see (if only based on precedent) why the case comes out that way. But you can also see (I hope) the problems with it. Because for anyone who thinks it's "just" for Farmer to be put in prison for years for committing an offense that he sincerely and rationally thought was only a $100 crime; well, we'll have to respectfully disagree on that. Yet it's equally hard to find a principled distinction between the Farmer's case and Busch's. Even though there's a huge part of us that doesn't want to allow people who knew they were transporting drugs to quibble at trial about whether they really "knew" that the drugs they were transporting were 10, 20, 50 or 50.425 kilos.

So it's a tough issue. But a holding -- like the Court of Appeal's here -- that would allow Farmer to be convicted of a felony due to Store's unknowable mix-up just seems wrong. So, for me, I'd have written a more nuanced holding here. Rather than the abjectly categorical one that the Court of Appeal issues. Which doesn't seem to me required by either the text of the statute, its intent, or considerations of due process and fair play.

Seems to me like Farmer should only go down for $100. And if Busch is truly like Farmer, ditto for him, and that's something meaningful that we'd want the jury to decide.

Henderson v. PG&E (Cal. Ct. App. - Aug. 5, 2010)

I'm of two minds here.

On the one hand, it seems silly -- irrational, even -- to allow for mandatory relief from defaults based on attorney errors (as long as they file an affidavit) and yet not similarly allow relief from, say, summary judgment motions based on similar errors. An attorney fails to file an answer; we grant relief, even though the neglect is inexcusable. But when an attorney fails to file an answer to a summary judgment motion, we don't grant relief. Doesn't make sense.

Plus, we prefer adjudication on the merits. Seems overly harsh to not to grant relief if there's indeed a valid defense. Sure, we'll spank the lawyer with sanctions. But why not grant relief?

On the other hand, clients choose counsel at their peril. This is why clients should hire good attorneys rather than bad ones. Good attorneys work a long time on their summary judgment papers. Bad ones, like here, (1) wait until the last minute, (2) assign a law clerk to prepare the entire thing, (3) don't supervise 'em or make sure they're making progress, and then (4) are screwed if the associate gets sick, can't finish the work, or (as here) goes on a cruise and simply can't get it done on time. Not a good business strategy. And, sure, I feel bad for the client, but you can always sue your lawyer.

So I'm not sure there's a clear answer to this one. Though I know the rule (at least according to the Court of Appeal): You get relief from defaults, not summary judgment. That's the scoop.

P.S. - I like how Justice Gomes begins the opinion: "Plaintiff Susan Henderson's counsel went 'all in' on a bad bet. First, he waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months. Next, he assigned the preparation of that opposition to a paralegal who he failed to supervise. Finally, learning that the paralegal had left the state with the opposition the last business day before it had to be filed without his having seen it, he hoped for a miracle instead of immediately going to court to request an extension of time." Nice poker reference.

That said, if you're going to slam an attorney for not adequately supervising a clerk, you might want to make extra sure that the opinion in which you do so doesn't have similar clerk-induced errors. See, e.g., The Last Sentence on Page 17 of the Opinion, which reads: "She asserts this is the type of mistake a reasonable sole practitioner might make. !(AOB 17)!"

Oopsies. The law clerk/research attorney was supposed to pull out all the "! xxx !" record cites before the opinion was actually published, but this one got missed. Not a big deal, but somewhat embarrassing given the context, eh?

Reid v. Google (Cal. Supreme Ct. - Aug. 5, 2010)

You'll be happy to know that you no longer have to "stomp and scream" -- often, an exercise in futility anyway -- at summary judgment hearings and beg the trial court (under penalty of waiver) to expressly rule on your evidentiary objections. The California Supreme Court says that it's okay to simply file written objections, and if the trial court doesn't rule on them, they're presumed overruled and you can argue error in the Court of Appeal if you'd like. No waiver.

You'll also be happy to learn -- at least if you represent plaintiffs in discrimination cases -- that the California Supreme Court also thinks that the federal "stray remarks" doctrine is too broad, and held this morning that such evidence (even by nondecisionmakers) may well be relevant and admissible. That's going to make summary judgment in these cases even harder than it is already. Particularly since the California Supreme Court doesn't do a very good job of telling the trial courts how much to weigh such comments, and merely states that they should be viewed "in the totality" of the case and with all inferences in favor of the nonmoving party. That'll turn into heightened paydays for contingency fee lawyers. It's a big win for the plaintiffs' bar.

This was not, parenthetically, the best opinion ever by Justice Chin. It's not that the analysis is necessarily faulty or incomplete. But the opinion reads so much like it's a bench memo. Which, of course, it is. Way too much discussion of prior non-controlling authorities and string cites about tangential topics. Stuff you might want to read when deciding a case but that doesn't add to the actual decision.

But that's what can happen when you write the opinion in advance.

An important case for litigators in any field, but especially on the discrimination side.

Kawashima v. Holder (9th Cir. - Aug. 4, 2010)

Judge Graber dissents from the denial of en banc review and has this to say about the panel opinion (authored by Judge O'Scannlain):

"The panel reads one phrase of the statute in isolation, ignoring the very next phrase in the same sentence. The panel’s interpretation of the statutory provision renders another statutory provision superfluous. The panel’s interpretation is inconsistent with other canons of construction, including the standard caveat that the specific governs over the general and the rule that an ambiguous statute should be construed in the alien’s favor. The panel fails to explain how its method of interpretation is consistent with recent Supreme Court jurisprudence. When made aware that one of its cited cases actually supports a view contrary to its own, the panel simply deleted its citation of that case without explaining why it found that case unpersuasive. Finally, the panel’s opinion will lead to absurd results in other cases."

Tell us what you really think, Judge Graber. Stop holding back.

Turner v. Comm'r of Social Security (9th Cir. - Aug. 2, 2010)

I'm a little surprised that Judge Gould hasn't gotten some flack for this one.

Not that I don't get his point. The question is whether James Turner was disabled as a result of PTSD back in the 80s and early 90s. There's a fair amount of evidence that he was, which I'll mention in a second.

But one of the central attributes of Turner's life is that he's a quasi-loner. He lives on a ranch in rural Oregon, feeding cattle, fixing holes in fences, and assisting in rounding up and branding cattle in return for lodging. He doesn't like people much -- he said he didn't "put up" with "most people" and doesn't like having a boss -- but he goes into town every couple of weeks for supplies and even marries during the relevant period. But the guy definitely likes what he likes, and he structures his life around those preferences.

The majority opinion affirms the ALJ's finding that Turner's able to work, but Judge Gould dissents, in part based on Turner's lifestyle. Judge Gould says:

"[E]ach day that Turner lives in an isolated area, bereft of the normal incidents of companionship that attend urban life and most jobs, stands as a silent confirming witness attesting to Turner’s real difficulties. Why else would he live in the middle of nowhere? "

Oopies. Didn't mean to insult everyone living in rural America -- i.e., "the middle of nowhere" -- I imagine.

Needless to say, there are lots of reasons -- lots -- why someone might rationally want to live outside of a city and avoid "the normal incidents of companionship that attend urban life and most jobs." It's a valid lifestyle choice. It's not necessarily, much less categorically, evidence of emotional disturbance. So the rhetorical question "Why else would [anyone] live in the middle of nowhere" actually has a lot of really fine answers, I think.

That said, I get Judge Gould's point. In Turner's case, his lifestyle choice may well be related to a problem, and an attempt to accommodate a disability. His background gives some hints that this may well be the case: he was a "tunnel rat" in 'Nam (no small feat), saw the remains of a half-dozen American servicemen skinned alive, has a big startle response, seems hypervigilent, freaks out at the sound of helicopters, etc. You can see why isolating yourself in the country might, in such a setting, be support for the proposition that someone has a problem. Hence, I think, where Judge Gould's understandable sentiment comes from.

I just might have chosen slightly different words. Rather than "Why else would he live in the middle of nowhere?", I'd leave out the "middle of nowhere" reference and maybe say something like: "The deliberately isolated manner in which Turner has elected to live his life strongly supports his disability claims."

It's easy to slam someone for an isolated sentence or two. Particularly when you're looking to do so, and want to create controversy. I think Judge Gould's heart is in a good place here. He could just be more careful.

And couldn't we all.

Khan v. L.A. City Employees' Retirement System (Cal. Ct. App. - Aug. 3, 2010)

It's unclear to me which has sweetest retirement system: California public employees or California judges. They're both pretty choice. They'd be even more choice if you combined them, and let a municipal employee who was appointed as a judge get benefits from the public employees' plan at his higher judicial salary.

That's what Judge Abraham Kahn, up in L.A., wanted to do. So he filed suit. Not surprisingly, every judge in L.A. was disqualified, so the case was heard by Judge Glass from O.C. Who held in favor of Judge Kahn.

But the Court of Appeal reverses in a split decision. Sorry. You'll just have to retire on the usual -- very generous -- terms.

I don't have any substantive comments about the decision itself. Both the majority as well as the dissent make decent points, and the proper resolution essentially comes down to one's view of the relevant statutory language as well as the appropriate level of deference.

Still, it's unusual to see a sitting judge file a lawsuit. So I thought this one was worth mention. Even if you're not a judge looking to up your level of retirement benefits.

U.S. v. Monday (9th Cir. - Aug. 2, 2010)

Sometimes the plain language of a statute really is dispositive. Mostly.

The Post Office thinks that one of its letter carriers, Henry Monday, has been stealing mail. So they send a "birthday card" with $40 in it to one of the people on his route. They're right; he opens the letter and steals the $40, and uses it to buy a snack at a local liquor store. They arrest him and charge him with "Theft of Mail" under 18 U.S.C. sect. 1709.

Monday's been caught pretty much dead to rights, so his defense at trial is that he never meant to "steal" the $40, but instead took the money in order to prompt a "talk" with his supervisors. Yes, I know. Lame. But at least, allegedly, this defense removes the "specific intent" of stealing the money, since he was going to give it back after he was caught. Or something like that.

Except Section 1709 makes it a crime for a postal official to "steal[], abstract[] or remove" anything from the mail. "Steal" may require an intent to deprive. But, the Ninth Circuit holds, "remove" doesn't. And since Monday admitted he "removed" the $40, he's guilty. All the fancy legal arguments defendant asserts fail given the "plain language" of the statute in that regard.

Normally, I'm a bit hesitant to find "plain" language "plain," and think that courts often go way overboard and overly simplify things with reference to allegedly "clear" statutory language. In this one, howevever, I think that Judge Canby is correct. The only thing I'd add is that there's a good reason -- call it "legislative intent" -- for the statute to criminalize the "removal" of mail in addition to its theft. Postal carriers shouldn't be doing that either. It's not their mail. So even if Monday's right, I agree with Judge Canby that he's still guilty. Reading the plain language of the statute in a way that makes sense, consistent with its purposes, broadens the statute so that the arguments that Monday makes don't matter.

So with the caveat that a "plain reading" of a statute has to make sense, I wholeheartedly concur in this one.