Alvarez v. Tracy (9th Cir. - Dec. 8, 2014)

If you're a judge on the Ninth Circuit, it's gotta make your week if you wake up and find that you're on the receiving end of a blistering dissent by Judge Kozinski.  You gotta be thinking:  "This is why I wanted to be on the Ninth Circuit?!"

Not that Judge Kozinski is always right.  At all.  But he's got a way of saying things that's flashy.  As well as memorable.  And this just in:  He pulls punches.  Not.

You can read the couple of dozen single-spaced pages that he devotes to his dissent in this one, which responds to an opinion by Judge Randy Smith joined by Judge O'Scannlain.  But the following is sufficient to give you a good feel for the thing.  As well as, perhaps, to entice you to read it:

"When we take the judicial oath of office, we swear to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . .” 28 U.S.C. § 453. I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinterested observer. Today we do not live up to this solemn responsibility. Relying on a ground not raised by either party here or in the district court, we refuse to consider petitioner’s serious and, in my opinion, meritorious claims. This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat the parties. Alvarez and the Community both failed to raise legal issues at the proper time and in the proper manner. Alvarez failed to raise his jury trial and confrontation claims by way of a direct appeal within the tribal court; the Community failed to raise an exhaustion defense in district court. The Community committed an additional default by also failing to raise this issue on appeal—something we’ve repeatedly held is an independently sufficient basis for declining to address it. [Cites]

The majority forgives the Community’s double-default but holds Alvarez strictly to his single oversight. I can’t see the justice in this, but it gets worse: Alvarez committed his default when he stood before the Community court without representation. It’s not clear that he was ever advised of a

right to take an appeal. But if he was, it happened months before his trial. After he was convicted and sentenced to eight years in prison, he was not reminded of his right to appeal; he was given no notice-of-appeal form or other guidance about how to take an appeal. He was incarcerated with no ready access to legal materials and faced a 5-day filing deadline—shorter than any I’ve ever heard of.

The Community, by contrast, was at all times represented by competent (and presumably well-compensated) counsel. It was fully aware that failure to exhaust was a plausible defense, and raised three separate exhaustion arguments in the district court (though not the one that my colleagues are so taken with). It then chose not to argue exhaustion at all in its appeal to us.

Confronted with this checkered procedural history, we might hold both parties to their defaults. That would have an appearance of fairness. Or, we could forgive both parties their defaults, which also seems fair. But if we do either of these things, the exhaustion issue drops out, and we must rule on the merits of Alvarez’s petition. The only way to reach the majority’s result here is by excusing the Community’s defaults while holding Alvarez strictly to his—which is just what my colleagues do.

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, uncounseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly

believe is right. But we see the world very differently. See, e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc). I can find no justification for showing such solicitude for the overdog while giving the underdog the back of the hand."

The "I disagree with even the punctuation" point perhaps goes a bit too far (as well as is silly).  But you get the point.

Clearly.

P.S. - The Ninth Circuit's web site lists the opinion as authored by Milan Smith.  But it's actually Randy.  Which is not just a "Smith v. Smith" error.  The two might actually have come out opposite ways in this one had both been on the panel.

People v. Lavender (Cal. Supreme Ct. - Dec. 8, 2014)

You know what's going to happen in the next twenty pages when Justice Baxter begins this opinion by saying:

"Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury‘s collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person."

Yep.  The grant of a new trial is going to be reversed.  Unanimously.

Justice Baxter's introduction may well deliberately understate the nature of the "imperfection" at issue here.  This is a case where one of the jurors (allegedly) said that the defendant must be guilty because he didn't testify.  Guess we need to brush up a bit on the Fifth Amendment, eh?

But the California Supreme Court says that that error is like any other type of internal error in jury deliberations.  We assume they worked it out.

In truth, we make this assumption even though we know it's not always true.  Justice Baxter's right that the "give and take" of deliberations "will often" correct these errors.  The negative pregnant there is also right:  We know full well that, lots of times, it won't, and will instead perniciously affect the verdict.

But, as a policy matter, we simply don't want to hear about it.  It's excruciatingly hard to differentiate between errors we "care" about (e.g., the Fifth Amendment) and those we don't (e.g., errors about the weight of particular testimony).  Juror deliberations are like sausage.  We like the result, but only if we close our eyes to how it's made.

So we close our eyes.  And, ummm, the sausage -- justice -- is so yummy.

As long as you forget what's in it.

People v. Kirwin (Cal. Ct. App. - Dec. 4, 2014)

Justice Hoffstadt begins this opinion by saying:

"Does a trial court abuse its discretion in denying a criminal defendant the right to represent himself when he has repeatedly refused to come to court and be interviewed by a court-appointed mental health expert? Is a defendant who makes six separate telephone calls urging a relative to persuade the prosecution’s chief witness not to testify at trial entitled, under People v. Bailey (1961) 55 Cal.2d 514, to dismissal of all but one of his six convictions for attempting to dissuade a witness? The answer to both questions is no, and we affirm Defendant Charles Kirvin’s convictions and, with one small correction, the 26-year prison sentence imposed in this case."

I'll add only one sentence to this otherwise cogent recitation of the case.  A fact that Justice Hoffstadt tactfully omits from his initial recitation, but which I'm confident matters -- both from a legal as well as a practical perspective -- to how the Court of Appeal comes out in this case.  It would read:

"Oh, and, by the way, not only does the defendant refuse to come to court whenever he doesn't feel like it, but he also repeatedly throws excrement on people -- like jail officials -- he doesn't like.  Is this the kind of guy we're going to let represent himself in court?"

Okay, so that's two sentences.  But you get the point.

Throwing poo = Not representing yourself.

We have enough problems in courtrooms already these days without adding flying feces to the mix.

Hartpence v. Kinetic Concepts (9th Cir. - Dec. 3, 2014)

It seems like a fairly straightforward order:  "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)
and Circuit Rule 35-3."

Which made me think:  "Hmmm.  Don't remember that one.  Hartpence v. Kinetic, you say?  Usually I'm pretty good about recalling high-profile and/or 'might-go-en-banc' cases.  Let me go back and read what I said."

So I searched.  Didn't say anything at the time.  Must not have thought it was important.

But it is now.  Going en banc.  So let's take a look at the panel opinion.

Searching.  Searching.  Searching.  Nothing.

Strange.  Well, there are two case numbers on the caption.  Maybe it's the second one.

Search again.  Nope.

Oh.  I get it.  Must be an en banc call over an unpublished disposition.  Rare, but happens sometimes.  Let's pull it up.

Searching.  Nothing.  Searching under the second number.  No.

What the heck?

So I dig and dig.  Turns out that there's no panel opinion.  At all.  It got argued in July.  But that's it.  No opinion.  You've got the oral argument and then next thing that happens the thing gets taken en banc.

Which is darn rare.

When you listen to the oral argument, it's pretty clear what happens.  Appellant argues that the law in the Ninth Circuit is X but that an intervening Supreme Court decision holds Y, so Y's the law, not X.  But as the panel recognized at oral argument, there's a post-Supreme Court holding from the Ninth Circuit that reiterates that X is the law.  As Judge Berzon noted at the oral argument, "We're pretty strict here in the Ninth Circuit about what a panel can do" in such situations.  Short of an en banc call, the law's X, and the panel is bound to follow it.

What normally happens in these situations is the the panel writes a short opinion that says they're bound to X even if X is wrong, and then someone on the panel (or someone else) subsequently calls for en banc review.  Seen that tons of times.

Not here.

The departure from typical practice initially struck me as strange.  But the more I thought about it, the more it made sense.  Why not find out now whether the court wants to take it en banc instead of later?  Certainly faster.  More importantly, it leave you options.  If the whole Ninth Circuit wants to take it up, that'll make things easier:  We'll know quickly whether the law's X or Y.  And if the Ninth Circuit doesn't want to take it en banc, the panel's got more options:  they can try to distinguish the present case from the cases that hold X, try to rationalize X and Y, etc.  Or they can simply apply X.

No need to go through all those mental gymnastics initially if we can first persuade the court to take the case en banc.

So I like it.

People v. Buza (Cal. Ct. App. - Dec. 3, 2014)

The voters enacted Proposition 69 in 2004, which requires that the police take a DNA sample of anyone arrested for any felony.  Notice the operative word "arrested".  No warrant.  No finding of probable cause.

How does that square with the Fourth Amendment?  Big debate.  On the one hand, we don't allow lots of searches without consent or probable cause.  On the other hand, we allow fingerprinting, booking photos and other ancillary stuff as a standard practice.  Which set of principles properly applies?

The Court of Appeal thought it was the latter, and struck down the requirement.  But shortly thereafter, the United States Supreme Court decided Maryland v. King, which held that a very similar statute in another state wasn't unconstitutional.  The California Supreme Court had granted review and stayed the present case pending King, and after that decision, last year, returned the case to the Court of Appeal for reconsideration.

So what did the Court of Appeal do?  Fold?

Nope.  Doubled down.

Justice Kline clearly favors Justice Scalia's dissent in King.  His opinion on remand quotes pages and pages from it.  Even calls it "piercing".

But relying on a dissent isn't going to persuade the California Supreme Court.  Because it's a dissent.

So Justice Kline does what any good lawyer, or judge, would do.  Distinguishes the case.

This statute is different, he says.  For one thing, it applies to all felonies, not just the "serious" ones at issue in King.  For another, that statute allowed DNA testing only after the person was charged -- and hence after a probable cause determination by a judge -- whereas California's law applies immediately after the arrest, and hence before any such hearing.  Plus, California's statute allows familial DNA searches, whereas Maryland's expressly prohibited that practice.  So there.

Justice Kline recognizes that King was a 5-4.  It might well be that the majority in King wouldn't care about these alleged differences.  But he's giving it his best shot.  Only takes one vote to swing the decision the other way.  Maybe for one of the justices, these differences will tip the scales.

But Justice Kline doesn't stop there.

He recognizes that these distinctions might well not persuade the Supreme Court.  Indeed, in a footnote, he recognizes that they didn't even persuade the Ninth Circuit.  A tribunal which, earlier this year, essentially gave up the ghost (albeit in a case that reviewed a preliminary injunction) and admitted in a four paragraph per curiam opinion that King essentially means that Proposition 69 is valid.

But Justice Kline isn't deterred.  He gets it.  So he expressly bases his holding on state law; in particular, Article I, section 13 of the California Constitution.  The Supreme Court isn't permitted to review decisions that rest upon independent and adequate state law grounds.  Gotcha.

We'll see if the California Supreme Court's willing to play the same game.  Justice Kline thinks it's at least worth a shot.  Time will tell whether the gambit works.

Count those votes.

People v. Parker (Cal. Ct. App. - Dec. 2, 2014)

She did, in fact, shoot up a doctor's office.  That's not good.  Not good at all.

But there's always a story.  Not necessarily one that makes everything make sense, but that's a big part of the story as well.  Here's two paragraphs of hers:

"In 1994, defendant had surgery to remove a cyst in her vaginal area. Defendant believes the surgeon intentionally disfigured her labia and cut her vaginal artery, which defendant believes is causing her to bleed internally, despite the artery being four inches from the surgery site and no incisions being made in her vaginal wall. Defendant also believes the doctor is a member of a cult that harms women.

On August 20, 1999, defendant entered the doctor’s office with a .22-caliber revolver and ordered the doctor to the floor. Defendant discharged two rounds into the ceiling and ordered the receptionist to assist with handcuffing the doctor. Defendant then waited for the media to arrive so she could 'expose' the doctor. Law enforcement arrived, and defendant engaged in a standoff for approximately 20 minutes."

Not your typical shoot-em-up offense.

Perhaps not surprisingly, the jury finds the defendant not guilty by reason of insanity.  So she gets sent to Patton, an in-patient mental health facility.

And gets better.  Thankfully.  Medication (presumably).  Mental health treatment.  The works.

Wonderful.

After six years, she's sufficiently better that she gets released from the hospital.  Still gets outpatient treatment.  Still supervised by the San Bernardino/Riverside Conditional Release Program (CONREP).  But out and "free".  At least relatively.

I won't belabor the details, but suffice it to say that in 2009 she begins to decompensate.  Gets more paranoid.  Maybe starts drinking (which violates the terms of her release).  Starts focusing way too much again on her allegedly messed up vagina.  Other stuff too.  ("Defendant missed a CONREP appointment in May 2009. Defendant called her therapist and said she went AWOL from the program in order to seek medical attention for the 'botched' vaginal surgery. Defendant traveled to Oregon “in search of a clinic to perform her desired CT-scan”—a vaginal arteriogram. While in Oregon, defendant hit or attempted to hit her ex-boyfriend’s girlfriend with a vehicle. Defendant was charged with recklessly endangering another person and was extradited back to California for absconding from CONREP.")

Back in to Patton she goes.

Two more years of treatment.  Fixed.  In December of 2011, the trial court finds that she's no longer a danger to herself or others.  It orders her released from Patton and tells CONREP to find (and let the court know) the best outpatient placement for her.  That's where we'll put her.  Because -- to repeat -- she's no danger to herself or others.

CONREP's supposed to do that, by statute, within 21 days.  That doesn't happen.  Instead, it takes six months or so.  During which time she stays in Patton.  Then CONREP tells the court that it disagrees with its decision.  She should stay in Patton and not be released.

You'll notice that's not what the court asked.  Or -- more accurately -- ordered.

But CONREP says that the usual places won't take her.  Keeps talking about her alleged problems; e.g., "My vagina is black! I have pictures."  Not the kind of person these places want.  So CONREP says that she should stay in.  If only because no one will take her.

At which point the trial court reverses itself and keeps her in.

There's a huge underlying problem here.  The trial court found that defendant was not a danger to herself or others and satisfied the criteria for being released.  CONREP is not the Court of Appeal.  It's not supposed to "review" the trial court's decision.  Even in the guise of saying "Oh, sorry, we can't follow your order because we think you're wrong and she is, in fact, still a danger to herself or others, ergo no one will take her."  Not supposed to be the way these things work.

Ultimately, though, the Court of Appeal affirms.  The trial court can change its mind.  And did so here based upon new evidence:  namely, the evidence that arose once CONREP engaged in the much-longer-than-21-day process to "find" her a placement.  One that it really never thought should have been ordered in the first place.

Curley v. City of North Las Vegas (9th Cir. - Dec. 2, 2014)

Judge Friedland was appointed to the Ninth Circuit in April.  Her first published opinion came out last week.  Her second was published this morning.

At least thus far, Judge Friedland's opinions definitely don't qualify as "hide the ball" dispositions.  You can be pretty sure from the way the facts are characterized how the thing's coming out.  This morning's opinion, for example, sets up the facts this way:

"Michael Curley appeals the district court’s grant of summary judgment in favor of the City of North Las Vegas on his claims alleging discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”). First, we consider whether a doctor’s finding that Curley did not pose a safety threat belies one of the City’s stated reasons for firing him—his long history of threatening coworkers. . . .

Curley received many oral and written reprimands during his employment with the City. His disciplinary record reflects that, over the course of several years, Curley had numerous verbal altercations with coworkers, made insensitive remarks about a fellow employee’s motorcycle accident, damaged City property, and made several threats of violence against coworkers. Curley’s disciplinary record also includes statements by coworkers regarding his constant complaints and negative remarks about his managers and the City. . . .

Shortly after his correspondence with the City regarding his second request for accommodation, Curley was involved in another incident with a coworker. The coworker asked Curley to remove his hearing protection so that the two of them could communicate about a work-related task. In response, Curley began swearing and asking the coworker whether he thought he was a doctor. The incident prompted the City to place Curley on administrative leave and to launch an investigation into his behavior.

As part of the investigation, the Human Resources Department interviewed City employees and asked about their interactions with Curley. The interviews revealed that Curley had repeatedly threatened his coworkers and their families. For example, he threatened to put a bomb under a car, insinuated that he had mafia connections, and talked about giving a “blanket party”—which would involve throwing a blanket over a person’s head and beating him. One coworker reported that Curley threatened to kick his teeth out if the coworker did not join a union. On another occasion, Curley threatened to shoot his supervisor’s children in the kneecaps.

The interviews also revealed details about Curley’s work habits. Multiple coworkers said that Curley regularly conducted personal business while at work, sometimes spending up to three hours on his cell phone. It also appears that Curley was operating an ADA consulting business. Many of the calls he made during work were about the business, and coworkers saw him approach disabled individuals to discuss potential lawsuits."

Hmmm.  I wonder which way this one's coming out?

Hernandez de Martinez v. Holder (9th Cir. - Oct. 24, 2014)

The commission of some crimes so serious that even if you otherwise qualify for asylum, we're not going to give you relief.  We just can't have people of your type in our country.  Regardless of the truly exceptional circumstances that would otherwise warrant the grant of asylum.

Those crimes include the offense of using someone else's social security number to get a job in the U.S. (because, without that number, it's illegal for the employer to hire you).

So holds the Ninth Circuit.

In Re M.D. (Cal. Ct. App. - Nov. 24, 2014)

Justice Pollak tells you in this opinion where to go in this opinion if you want to pick up a 16-year old prostitute in the Bay Area:  Laguna and Ellis Streets in Concord.

Why this particular location?  Justice Pollak explains why, as well as what to look for:  "[P]rostitutes frequent the area of Laguna and Ellis Streets in Concord because it is a safe area to work. The area is a couple of blocks from a BART station, and a majority of prostitutes come from outside the area. According to Robison, for the purposes of attracting men, prostitutes in the area of Laguna Street and Ellis Street will wear revealing clothing showing their midsections and low cut tops, tight shorts, or skirts. They choose that area because it is easy to get there by BART and it has a high population density so they can make a lot of money."

Okay, then.

I thought the concept of being a prostitute near a BART station was interesting, so I looked up the area.  Which revealed that, yes, there's a BART station two or three blocks away from where this particular 16-year old prostitute (and her adult pimp) were picked up.

So that's the upside of this particular location.

There is, however, one downside.  One that's not mentioned in Justice Pollak's opinion, but that's nonetheless very clear from a map of the area.  Guess what's directly in between the BART station and the high-prostitution intersection of Laguna and Ellis Streets in Concord?

The headquarters of the Concord Police Department.

Which somewhat explains why officers are willing to police this area.  An area a block or so away from their station.

Pretty bold to parade your underage prostitute around this area, no?

U.S. v. Prince (9th Cir. - Nov. 24, 2014)

The bad news for Byron Prince is that he accidentally shot himself with a revolver.  Oops.

The worse news for Mr. Prince is that, since he's a felon, once the United States realized (presumably at the hospital) that he accidentally shot himself, they convicted him of being a felon in possession of a firearm.

Welcome to fifteen years in prison.

Affirmed.

People v. Aleksanyan (Cal. App. Div. (LA) - Nov. 5, 2014)

Were I ever sentenced to probation, a lot of time, I think and take my lumps and just let it go.  Even if I thought the conviction was dubious in some way.

Because, yeah, I could appeal.  Because who wants a conviction on one's record?

But the downside of filing an appeal is that (1) you might lose, and (2) the appellate court might publish the opinion.  Thereby disseminating to everyone what you've (allegedly) done.

Admittedly, if I'd done a fairly routine thing, and/or had a common name like "John Smith," I might give it a shot anyway.  Good job figuring out which "John Smith" is the defendant.

But say, for example, that I've got a name like "Vahe Aleksanyan" and I'm in Los Angeles.  Now, it turns out that -- who knew -- there are a lot of Vahe Aleksanyan's.  In Armenia (and on Facebook), anyway.

But in the United States, apparently, there are only two.  So you're risking a lot if the thing gets published.

That said, maybe you're not embarrassed about the facts of the case.  You're happy to have it out there!  You're innocent, for goodness sakes!  That's why your appeal maintains that the evidence is insufficient to support your conviction.  Truth's on your side.

The only problem with that theory is that the Court of Appeal is going to recite the facts of the case.  Which will read something like this:

"Los Angeles Police Officer Tara Munjekovich testified that on January 10, 2013, she was working undercover posing as a street-walking prostitute. She wore a tank top, a jacket, shorts, leggings, and boots, and walked back and forth from one corner of Sepulveda Boulevard and Haynes Street to the other. At approximately 8:55 p.m., as Munjekovich stood at the northwest corner in front of a motel, defendant drove his car south on Sepulveda, slowed, and made eye contact with her. Defendant turned right on Haynes heading west, then right again going north on a frontage road parallel to Sepulveda. He stopped in the middle of the road, about 10 feet north of the intersection and five or six feet from where Munjekovich was standing. Defendant rolled down his driver‟s window, and Munjekovich walked up to the car.

Munjekovich said “Hi,” and defendant said “Hi” and asked if she was a “cop.” Munjekovich told him she was not, and defendant asked if she had “a place.” Munjekovich responded she had a room “right here,” pointing to the motel. Defendant asked if she wanted to get in his car; she told him again her room was “right there”; and he said, “Well, let‟s talk out of the street.” Munjekovich directed defendant to park in the motel parking lot, and he drove into the lot, got out of his car, and waited for her by the trunk of his car.

Munjekovich walked up to defendant, asked him “what are you looking for,” and he asked, “What are you good at.” She told him she was good at “everything,” and he told her he was “looking for everything.” Munjekovich responded, “We can do everything. However, I don‟t do anal,” referring to anal intercourse. Defendant said “No?” and she said, “No, I'll fuck you and I'll blow you . . . . But I don‟t do that.” Defendant said, “Okay, how about a facial,” a street term for a man ejaculating onto someone‟s face. Munjekovich told him he could do that to her, and he asked, “How much?” She told him “for something like that it was going to be a little bit more,” and they went back and forth a couple of times regarding how much money defendant had. He asked her to give him a price, and she responded, “For that, it‟s gonna [sic] be around $80.” Defendant said, “Okay, $80. How long can I go for $80?” Munjekovich testified defendant explained “he may be really fast the first time and want to go again, so how long could he get for the 80.” Munjekovich responded she would give him an hour, and defendant asked whether he “could record it on his phone.” Munjekovich told him he could record, he said “Okay,” she told him “Let‟s go into my room,” and he said “Okay.” Munjekovich and defendant then started walking toward a row of motel rooms; at that point, she gave a signal, and uniformed officers drove up and took defendant into custody."

Yikes.  Not something I'd want my mother to read about me.  Or my brother.  Or uncle.  Or pretty much anyone, quite frankly.

Plus, wholly beyond the facts of the offense, it doesn't make me look brilliant either.  First there's the "Are you a cop?" part.  Does anyone think that's actually a defense?  Does anyone think the vice cop is actually going to say "Yes?"  Seriously?

Then there's the fact that you're trying to do all this stuff for $80 bucks.  Multiple times, full service, recording it on the cell phone, etc.

There's an old saying:  If it sounds too good to be true, it probably is.  Doesn't just work at retail stores.  Ditto for prostitutes.

But at least Mr. Munjekovich has a choice.  I feel even worse for Officer Munjekovich.  She's got a very specific name as well.  Only one person in the entire U.S. with that name.  And you can find out so much.  Not just how she spends her time on vice, and what she wears on the job on Sepulveda, but also where she trains, how many sit-ups she can do, how fast she runs, her salary, her book, and so much more that I won't post.  All in less than a minute of looking.

I know it's part of the job.  More power to her, even.

Well done on the bust, Tara.  (Ditto for the promotion and being in such good shape.)

Laguna v. Coverall North America (9th Cir. - Nov. 20, 2014)

Is that pesky Ninth Circuit perhaps getting in the way of your cushy class action settlement and fee award?  Fear not.  They've got an app for that.

The settlement at issue in this case gives former franchisees $475 in cash and adds some ancillary relief.  The attorneys get nearly a million dollars.

The district court approved the settlement.  The Ninth Circuit panel did so as well, but Judge Chen, sitting by designation from the Northern District, dissented.  He wanted to know more -- much more -- about the settlement.  In particular, about how much it was actually worth in order to justify the nearly million dollars in fees.  Are the attorneys getting rich by negotiating relief that sounds good but that's really just a cover for an actual payout of almost nothing?  At least one inquiring mind wanted to know.

More than one, apparently.  Since a member of the Ninth Circuit sua sponte expressed interest in calling for en banc review.

But the parties weren't interested.  Sure, the objector had initially filed a petition for en banc review.  But then withdrew it.  You figure out why.

But that doesn't stop us, right?  Just like the parties may not be able to settle a class action, surely we can review a decision en banc if we'd like.  Even if the objector elects -- for whatever reason (good or bad) -- to withdraw the petition.

So, in August, the Ninth Circuit orders briefs.

Fear not, parties.  The parties settled.  The objector settled.  Everyone got paid (and/or the relief they wanted).

Today, the Ninth Circuit dismisses the appeal as moot, and vacates all the opinions.

So, crappy, unjust settlement or not, it works.

Helgestad v. Vargas (Cal. Ct. App. - Nov. 18, 2014)

Sometimes I lean towards not talking about opinions by a particular author because I don't want to sound like a homer.  You don't need me saying five dozen times that this justice writes especially well because, well, it's self-evident. And I've already said it two dozen times, so why beat an eloquent horse?

Nonetheless, for people like me, one great thing about Court of Appeal opinions is that they retain mystery longer than some other courts.  In the Ninth Circuit, for example, you see the author of the opinion right off the bat, immediately below the caption.  But in the Court of Appeal, you have to wait until the end -- or flip forward (if you can't stand the suspense) -- to see who you're reading.

I mention this only because sometimes, the writing is so clear and cogent and of a particular style that you don't have to guess.  Not because it's full of Kozinskisms or the like.  (Though those are fun too).  But rather because, as you're reading, you're simply thinking:  "I wish I could write like that."

This is one of those opinions.

Admittedly, the first sentence of the opinion demonstrates a writing style that's somewhat idiosyncratic, so that sort of gives it away.  But notice how the first three paragraphs of this opinion so clearly tell you, in a very concise manner, not only what the case is about, but where it's going and why.  It reads:

"Family law is not getting any easier. Consider this scenario: A couple live together and have two children. They do not marry. Then they separate. The couple agree to a paternity action judgment which establishes the father’s paternity, his right to visitation, and fixes a monthly monetary child support payment to be made to the mother who will have primary physical custody of the children. Later the couple attempt a reconciliation; the father moves into the residence of the children and the mother. After about nine months, the reconciliation fails, and the father moves out. Issue: Can the father obtain any credit for actual, in-the-home child support he afforded the children during the nine months he lived with them and the mother?

The question is one of first impression in California. (See Wright, Right to Credit on Child Support Arrearages for Time Parties Resided Together After Separation or Divorce (2002) 104 A.L.R.5th 605, 610-612 [absence of California cases] (hereinafter “ALR Annot., Credit for Time Resided”.) Had the original order been made in a marital – as distinct from paternity – action, and had the couple simply switched custody so that the children went to live with the father instead of attempting reconciliation, there seems to be no question that a line of California cases beginning with Jackson v. Jackson (1975) 51 Cal.App.3d 363 would allow such credit. In fact, family law has developed a shorthand term for credits. They’re called “Jackson credits,” after the first case to allow for them. But whether the same rules obtain in a paternity action as in a dissolution action has not previously been addressed.

The trial court concluded the father here, appellant George Vargas, was not eligible for any such Jackson credits, because this case did not fit the Jackson pattern of a child support order which originated in a divorce proceeding, and also because there wasn’t a total reversal of custody, but rather a period of cohabitation – shared custody – in the context of an attempted reconciliation. We reverse because we believe the same equitable considerations that apply to support orders arising out of marital cases should
also apply to support orders arising out of paternity cases. We see no reason to differentiate total changes of custody from periods of living together in the same household; actual support is actual support."

You can read the next twenty pages if you like.  But after that introduction, if you want, you can stop, and still know volumes about what the author's saying.

That's the very definition of a good introduction.

The author is Justice Bedsworth, of course.  You'd figure that out soon enough by the writing style -- or the multiple nine-point discursive footnotes (another trademark) -- if you hadn't already by the nature of the introduction.

Wholly apart from the writing style, which is outstanding, I've got a strong sense that this one's going to be memorable on the merits.  Indeed, I think it has generated a new legal term.  I'm just trying to figure out if, in the future, we're going to call them "Helgestad" credits or "Vargas" credits.

My money's on the latter.  Technically, because Vargas was the father and is the one getting the credits.  But realistically simply because his name is easier to pronounce.

Another incredibly well-crafted and -written opinion by Justice Bedsworth.  Which I imagine will get a new shorthand name in family law circles within the week.

Gwartz v. Weilert (Cal. Ct. App. - Nov. 18, 2014)

Today's published opinion from Justice Franson begins by saying:  "This appeal follows a highly publicized jury trial of a fraud claim arising from a $2.3 million sale of 15 acres of land that included a residence, riding arena and associated buildings, located on South Kings Canyon Road, Parlier, California. The plaintiffs who purchased the property obtained a judgment for $1,553,800, which included $850,000 in punitive damages."

Hmmm.  I had never heard of that "highly publicized" trial before.  Maybe I just forgot about it.  So I read the rest of the opinion to see if that would help.

Nope.  Still never heard about it.

I'm sure that's just my Southern California, big(gish) city bias.  I'm sure it was a huge story in the city of Parlier.  Population 14,494.  Five miles southeast of Selma, California.

I wish also there were more details.  Because I'm sure Justice Franson's right that it's a fascinating case.

As it is, the opinion merely deals with the appellate disentitlement doctrine.  Which is itself a neat thing.  The Court of Appeal dismisses defendant/appellant's appeal because they engaged in various machinations to try to avoid, circumvent, and hide from the judgment.

To tell the truth, I've seen worse.  Lots worse.

Not that that's a defense.  But if you ever want a case for the proposition that defendants can't try to hide from a judgment and simultaneously appeal it, here's a good one.

In Re Daniel B. (Cal. Ct. App. - Nov. 17, 2014)

Mom and Dad have a one-year old child together, and are living in a small two-bedroom home owned by Dad's parents.  Mom and Dad get into a fight.

Dad stabs Mom with a knife.  In the left shoulder.  Not good.

When Dad stabs Mom, Mom's pregnant with Mom and Dad's next child.  Twenty-nine weeks pregnant.  Makes things even worse.

The only dispute between the parties is whether, when Dad stabbed twenty-nine week pregnant Mom in the left shoulder, she was also holding their one-year old child in her arms at the time (as Mom said), or whether Dad's right that she had just given this infant to Dad's parents.

As one might already imagine, a lot doesn't ride on the resolution of this particular controversy.  You know that Dad's in trouble.  He's going to jail.  And, not surprisingly, there's a dependency action.

The dispute in the Court of Appeal is not about what you might expect.  Or, depressingly, maybe it is.

Dad has a restraining order against him at this point, is homeless and living out of his car, and he has a 13-year methamphetamine addiction.  Mom seems completely clean, as far as I can tell.  Her only deficiency is essentially her relationship with Dad.

Which she might perhaps want to one day continue.

The trial court tells her that if she has any contact whatsoever with Dad, it's going to take her kids away from her.  “You are hanging by a thread with these kids. If there is any contact with this man, I guarantee you somebody is going to tell the [DCFS], and, if that is the case, your kids are gone. Got it?”  Plus it orders her, as a condition of keeping her kids in the interim, that she's got to attend group therapy classes for victims of domestic violence.  For as long as the therapists want.  Mom objects, saying she doesn't want a group, but rather individual therapy, and wants to know how long this will take, rather than an open-ended order that says she's got to participate indefinitely.  The trial court's response:  "“Not a chance. She needs to be in a group. She needs to have other people saying to her, you let him back in and you let him back in and you let him back in. That doesn’t happen . . . with Family Preservation. They are very nice people. They will do individual. No, no, no. She needs to be in a group."  As for length:  "This is up to the domestic violence treatment program and the domestic violence counselors to say how long Mother needs to be in. They may say four weeks. . . . They may say a hundred. That is their call, but it’s got to be a group.”

Mom appeals, arguing that she's the victim, not the perpetrator, but the Court of Appeal affirms.

You can see why all of this transpires.  Though, at some point, one has to be worried about the long-term consequences of approaches like this one.  If victims of domestic violence are made to feel like victims in court, and (albeit for understandable reasons) have orders entered against them under penalty of losing their children, the incentive to report domestic violence in the first place may drop dramatically.  At some point, to potentially dangerous levels.

To solve this problem, we rely in large part on the public not knowing much about what goes on in this realm.  Mothers who are victims of domestic violence largely believe that when they report it, the consequences will entirely fall on the perpetrator, not on the victim.

But as more and more cases like this one arise, I wonder if that's an entirely stable dynamic.  At some point, the word may get out.  Changing the reporting dynamic.  Not necessarily for the better.

Yes, Mom needs counseling.  Yes, Mom needs to realize there's a serious problem here.  She likely already does, but perhaps we need to send that message even more strongly.

There's nonetheless, somewhere, a line here.  I'm just not sure at what point, systemically, it's crossed.

Overstock.com v. Goldman Sachs (Cal. Ct. App. - Nov. 13, 2014)

You think that your summary judgment motion was complicated?  Check out this one:

"[D]efendants moved for summary judgment on the remainder of plaintiffs’ causes of action . . . on multiple grounds. Plaintiffs’ opposition would eventually fill 38 banker’s boxes and included thousands of pages of discovery materials that had been designated “Confidential” or “Highly Confidential” pursuant to the protective order. . . . The trial court heard three days of argument on evidentiary objections to the materials filed in connection with the summary judgment motions and a full day of argument on the merits of the motions. "

Wow.

It also takes the Court of Appeal 63 pages just to resolve the resulting disputes about which of these materials should remained sealed and which should be open to the public.

But that's not all.  The Court of Appeal issues another published opinion, in the same case, on the same day, that addresses the merits.  It's 60 pages.  We're talking a lot of work by everyone involved.

Moreover, if you think the stock market is just a nice, easy place, and trading's pretty straightforward, and an individual investor really has all of the same advantages as an institutional insider, feel free to check out the first fifteen pages of that second opinion.  You'll get a tiny glimpse into what happens in the "back office" of trades.

And perhaps be horrified.

People v. Murillo (Cal. Ct. App. - Nov. 13, 2014)

The prosecution calls a witness at a criminal trial, but the witness refuses to answer any questions, saying at the very outset "I've got nothing to say."  What we do with the witness is another issue; he doesn't have a privilege claim, so we may well be holding him in contempt.  But it's likely he'd prefer that to getting shanked -- or worse -- for testifying.

Okay.  Since the witness clearly isn't going to testify, we presumably just move on to the next witness, right?

Not here.  No, instead, the trial court let's the prosecutor ask over a hundred leading questions to the nonresponsive witness.  Essentially testifying on his behalf.  Things like:  "[D]o you recall circling number four [Murillo] and putting your initials, the date, and the time on that document?; [D]o you recall writing a statement that says, 'Number four [Murillo] looks like him, but not completely sure. Kind of the same face structure'?"

Defense counsel objects like crazy, but the trial judge is totally fine with everything.  Let's the jury hear all of the witness' purported testimony from the prosecutor's mouth.  Admittedly telling the jury at the end that the prosecutor's questions "aren't evidence".  But nonetheless letting the prosecutor get all the "facts" he wants in front of the jury.

The Court of Appeal is not impressed.  It reverses.

Usually we assume that the jury followed a judge's instructions.  But in situations like this, when there's such manifestly inappropriate conduct, I agree that it makes total sense to reverse and remand for a trial in which the jury decides the case based upon the actual evidence, not the non-evidence out of the mouth of the prosecutor.

Garcia v. Google (9th Cir. - Nov. 12, 2014)

Let's just say that "Innocence of Muslims" is now in reruns.  Because this morning the Ninth Circuit took the case en banc.

This is not an especially surprising development.  As I mentioned when the opinion came out, it's a high-profile case that makes fairly new law.  So taking the case en banc was reasonable foreseeable.

I'll just make one comment you may not find elsewhere.  Chief Judge Kozinski wrote the majority opinion that's been taken en banc.  Moreover, as chief judge, under Ninth Circuit Rule 35-3, he's automatically on the en banc panel.  Which means that you likely already know one of the eleven votes.

With one wrinkle.  By my calculation, Judge Kozinski only has 18 more days -- and counting -- as chief judge.  So at the time of the actual argument (indeed, even at the brief submission date), he's not going to be the chief.

I'm not quite sure how Rule 35-5 gets applied in this setting.  I'm assuming that since he's the chief at the time the case is taken en banc, he gets to be on the en banc panel.  Even though that means that the en banc panel won't have the "chief" on it.  (Which somewhat highlights that there's totally no reason to have the chief automatically put on the en banc panel; something that I hope the Ninth Circuit will eventually change.)

A foresighted judge might have delayed the en banc call and/or vote just a few weeks to get a different judge on the en banc panel.  But maybe that'd be too obviously manipulative.  Conversely, maybe the Ninth Circuit will let the new chief sit on the panel.  (Instead of Kozinski?  In addition?)  Though I do not think that likely.  Seems to me that the best interpretation of the relevant (bad) rule is that the person who's the chief at the time the case gets taken en banc gets to sit.  Otherwise you've have to deal with situations like when the transition happens the day before oral argument, etc.

We'll see what happens.

POSTSCRIPT - Or maybe not!  An astute reader applied his substantial legal talents and looked for -- and found -- a precedent.  Seems that in the prior transition, back in 2007, the Ninth Circuit dealt with a similar issue.  A panel opinion got taken en banc on October 29, 2007.  Judge Schroeder was chief on that date.  But not for long; Judge Kozinski took over a month later.  Then the en banc case got argued in December.  Kozinski had been the chief for only two weeks or so.  Who was on the en banc panel?  Kozinski, not Schroeder.

So it looks like it should be Thomas, not Kozinski, on the panel on this one.  Unless, of course, the former chief is drawn by lot.  Which would make the whole thing moot.  (Except for the irrelevant but exciting fight about who gets "listed" as the chief when the en banc opinion comes out.)

Great stuff.

People v. Gonzalez (Cal. Supreme Ct. - Oct. 20, 2014)

No opinions from the Ninth Circuit this morning.  And nothing from the Court of Appeal.  Enjoy your Veterans Day.

But there's still some interesting reading from a little while ago.  For example, I'm not going to recite the facts that ultimately resulted in a case over which the California Supreme Court ultimately granted review.  If only because children might stumble across this blog.

But for the adults amongst us, go ahead and read the second paragraph of this opinion by the California Supreme Court, which briefly recite the underlying facts of the case.  It's a conviction that arises from an event that transpired during the early evening of June 25, 2010 on a public sidewalk in downtown San Diego.

And ask yourself:  What was the defendant possibly thinking when he did this?

Celebrate today's holiday in style.  But let's be careful out there.

John v. Superior Court (Cal. Ct. App. - Nov. 10, 2014)

A victory for vexatious litigants who represent themselves.  They can file initiate an appeal when they're the defendant.