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

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

This is what sometimes happens.

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

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

Mistake.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Be glad for the little things.  As it were.

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

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

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

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

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

Sneaky bastard.

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

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

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


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

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

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

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

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

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

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

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

But it doesn't.

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

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

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

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

Ugh.

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

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

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

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

Ball's now in your court, Cal Supremes.

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

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

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

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

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

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

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

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

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

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

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

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

Regardless, Reynolds loses.  Lawsuit dismissed.

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

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

Show your work.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well done, A.M.

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

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

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

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

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

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

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

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

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

Then there are cases like this one.

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

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

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

Here's the part I understand:

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

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

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

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

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

Here's the part I don't understand:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Like here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I'm just not sure how much.

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

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

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

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

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

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

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

Fair enough.  Exactly right.

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

Let's break this sentence down.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Because the Court of Appeal may well reverse.

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

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

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