Filomena Rivera v. Mukasey (9th Cir. - Dec. 7, 2007)

Ah, the holidays. The flights. The crowds. The utterly unnecessary flight cancellations because your pilot "unexpectedly" maxed out the number of hours he could fly in a month in the middle of your trip. The joy!

So here your honorable blogger is. Stranded in a Holiday Inn in Cincinnati for 24 hours until the next flight leaves for San Diego. Alongside his three lovely -- and very excited -- children, 6, 4, and 1. Triple joy!

Oh, wait. Did I say "Cincinnati"? I meant Erianger, Kentucky, of course. Which is the true location of the "Cincinnati" airport. And let me tell you, there's TONS to do in Erianger. Whoa, Nellie. Especially with three little kids. Especially without a car or other transportation. And especially on New Year's Eve.

But fear not. I got a $7 meal voucher. And the prospect of spending it on the rockingest of New Year's Eves. I'm figuring I'll put the kids to bed at, oh, say, 6:00 p.m. And promptly join them. So an early 2008 to all!

Meanwhile, in the legal world, there's (of course) nothing new today. Undoubtedly because the judicial system caps out at the end of the month as well. (Actually, I'd like that system: "Sure, I'd love to write another published opinion if I could, PJ/Kozinski. But I've already written my maximum for the month, sadly. Off to Hawaii. See you on the first of the month!").

But the resulting extra time allowed me to read this case, which came out earlier this month, to end the year on a happy note. And, further, for the very first time, put the plaintiff's first name in the caption of the post.

Because it brought a smile to my face. As well as because it happens to be -- and I looked this up -- the first published opinion in the history of the Ninth Circuit in which a lead party has had the first name "Filomena".

Which reminds me -- as it should everyone -- of My Blue Heaven. Set in San Diego -- the city of my home, and the city that I have been unable to reach today -- no less. A movie that's a lighthearted Steve Martin and Nora Ephron classic. And surprisingly related to Goodfellas, of all movies.

The classic line: "Filomena!" And her response, after some Italian, "I thought Wankel invented the rotary engine?"

Funny, funny stuff.

Okay. Maybe you had to be there.

Regardless. Enjoy what little's left of 2007. And have a happy, wonderful, and joyful 2008, all.

Williams v. Alameida (9th Cir. - Dec. 28, 2007)

Keith Lee Williams: Come out, come out, wherever you are. 'Cause, if you do, you might just win your appeal. Otherwise: Not so much.

So sayeth the Ninth Circuit.

Gadda v. State Bar (9th Cir. - Dec. 27, 2007)

You're suing the State Bar of California, as well as a variety of its employees. You're appearing pro se. And, in the third paragraph of your latest appeal, Judge Beezer describes your status for the reader with the following language:

"Gadda has now been disbarred by the State of California, the BIA, the United States District Court for Northern District of California and the Ninth Circuit Court of Appeals. See Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (recounting Gadda’s professional misdeeds and ordering him disbarred from the practice of law before the Ninth Circuit)."

Needless to say, at that point, your case ain't looking so good. And, indeed, you're not going to win. At all.

Aguilera v. Baca (9th Cir. - Dec. 27, 2007)

Well, now. You don't see this every day. Police officers making a Fourth Amendment unlawful seizure claim. And claiming that their Fourteenth Amendment rights were violated by illegally coercive questioning. Did I wake up this morning in a mirror judicial universe?

The underlying facts -- and resulting lawsuit -- read very much like a scene from The Shield. Absent the gratuitous nudity.

Interesting case.

City of San Bernardino v. Walsh (Cal. Ct. App. - Dec. 27, 2007)

Just a reminder that officials of California municipalities are hardly uniformly honorable. Some, indeed, are massively corrupt. And some of the corruption involves -- surprise, surprise -- the contracts for solid waste disposal. I know. Stunning. Who'd have thunk?

At least we can file civil suits against 'em. And get the resulting judgments affirmed.

Take a gander at the opinion to view the nature of the fraud. Sounds like San Bernardino was a pretty footlose place back in the 90s. And a good place to get rich if you were a public official to boot.

Crestmar Owners Ass'n v. Stapakis (Cal. Ct. App. - Dec. 13, 2007)

A litigation, trial, and fully briefed appeal. Over the ownership of two parking spaces in a condo complex.

I can't think of a more productive or efficient use of judicial -- or social -- resources.

America. We rock.

Engle v. Copenbarger & Copenbarger (Cal. Ct. App. - Dec. 24, 2007)

It's been -- to be honest -- a fairly poor holiday season for yours truly. But, on the upside, this event made my day.

Read the last paragraph of this opinion (which was published on November 26th). Then read my comments (which were posted later that afternoon). And, finally, read this change in the opinion (which was published on December 24th). The last of which was made, as far as I can tell from the docket sheet, utterly absent the filing of a petition for rehearing or request for modification from any of the parties.

Strike another blow for the marketplace of ideas, huh? As well for a positive view of the integrity and commitment of some of our judicial officers.

I'm impressed. Truly and sincerely.

Fashion Valley Mall v. NLRB (Cal. Supreme Ct. - Dec. 24, 2007)

There was once an era in which the California Supreme Court led the nation in progressive legal thought. Exemplified, at least in part, by its decision in Pruneyard -- the case that extended free speech rights to private shopping malls. An opinion that's read by nearly every first-year law student throughout the country. It's that famous.

For better or worse, times have definitely changed. A lot. Now the best that the California Supreme Court can do is to refrain from overruling this twenty-eight year old precedent. With a single vote to spare.

Justices Chin, Baxter, and Corrigan vote to overrule Pruneyard. But Justices Moreno, Kennard, and Werdeger -- joined by Chief Justice George -- go the other way.

Regardless. The times, they are a-changin'.

Hailey v. California Physicians' Service (Cal. Ct. App. - Dec. 24, 2007)

Rust never sleeps. And neither, apparently, does the California Court of Appeal. Which issued no less than seven published opinions on the day before Christmas.

Not bad. And in sharp contrast to yours truly, who has been on the East Coast without internet access for the past week. As well as in sharp contrast to the Ninth Circuit, for whom yesterday was a holiday.

Which got me thinking: Do you think that the Court of Appeal at all considers timing issues in its decision to publish? Take, for example, this case. Which, on the merits, concerns the interesting issue of "postclaims underwriting" -- the practice of health insurers not to worry too much about the accuracy of your application at the outset, and to happily take your premiums, but then, once you make a heavy number of claims, to scrutinize your application in an attempt to find a misrepresentation upon which to rescind your policy. Of course, the problem goes both ways, since I'm sure there's also the dynamic of people deliberately misrepresenting their health status as well, which raises premiums for everyone. So the question then becomes: How should (or does) the law treat this issue? Do you let the insurance company sit back and only start its investigative process once people become sick? Or do you put the burden on the insurer to do more at the outset? Where do you draw the line, and with what consequences?

An interesting intellectual issue. Which, of course, also involves real people. With real problems and issues. As here, in which Blue Shield is trying to rescind a health insurance policy that it issued to Cindy and Steve Hailey. Who, Blue Shield alleges, misrepresented their health status when they applied for insurance. (Steve weighed a hefty 285, and Cindy listed him as 240 -- as well as omitted any of his prior medical problems, most of which seem to have arisen from his weight -- when she applied for the policy.) But the Haileys insist that any misrepresentations were inadvertent, and, in any event, if Blue Shield had rescinded the policy at the outset, Cindy could easily have gotten insurance through her work. Do you allow recission? Does it matter that the bulk of the Hailey's health insurance claims seem to have resulted from a car accident that permanently disabled Steve after the insurance issued? How would you decide the case?

Read the opinion for the full details. I can summarize at least the result by saying that the Court of Appeal reverses the grant of summary judgment to the insurer, holding that there are triable issues of material fact (e.g., whether the misrepresentations were deliberate). But the Court of Appeal also does a fair piece of work on the law as well, and does so in a manner that definitely won't make health insurance plans totally happy.

So here's my Christmas-related query: Would the Court of Appeal have issued this opinion on Christmas Eve even if they had gone the other way? I mean, the Haileys are potentially looking at a lifetime of having no health insurance for a permanently disabled family member. What if the Court of Appeal had gone the other way and said, yep, no insurance for you, tough luck? Do you really publish that opinion on Christmas Eve? On the one hand, human compassion says, no, no one's that harsh. On the other hand, human bureaucracy says, hey, the relevant justices got done with their input into the opinion a fair piece ago, and the precising timing of an opinion may vary due to delays in the various pipeline (when the other justices sign on, circumstances in the Clerk's Office, etc.). And hence that no one individual may be totally in a position to hold up the opinion for a day or two in order to demonstrate compassion. Or, some might argue, such a policy would be inappropriate anyway. After all, there's always someone who loses whenever a decision is rendered. Why protect one of the parties at the expense of another? Unless you're going to hold off on all opinions shortly before the holidays, the argument could go, you might as well just crank them out whenever they're ready.

Mind you, I think this argument is pretty weak as applied to the present case, in which the loser is a large health insurance company. I mean, sure, I bet they're bummed. But it's hardly going to ruin anyone's Christmas. Or at least not ruin it with the impending prospect of a lifetime of pain and penury.

So what do you think? Think there should be a tiny little stamp that says "Don't Release This One Until After Christmas"? Or, more accurately, an informal understanding in chambers that some opinions can be delayed a couple of days in the interests of compassion for the parties? Or should we just let the chips fall where they may?

And, on a related note, what do you think the actual policies are in this regard? I know from my (very long-ago) clerking days that we would have been bright (and sensitive) enough never to issue, say, an affirmance of a death penalty over Christmas. (Not, mind you, that such a thing ever occurred -- or would likely ever occur -- in the particular chambers in which I worked.) But I'm not so sure about other cases. We might not have even thought about it much.

What do you think?

Mitri v. Arnel Management Co. (Cal. Ct. App. - Dec. 12, 2007)

Client: "One of our employees just sued us for harassment and discrimination."

Lawyer: "Gotcha. But you make all your employees sign arbitration clauses, right?"
Client: "Yep. We're no fools. It's even in the employee handbook; everyone signs an arbitration agreement."

Lawyer: "Great. Just fax me over a copy of this employee's signed arbitration agreement and we'll move to compel arbitration."

Client: "Uh, well, that may be a tiny bit of a problem. I mean, we're sure this employee signed a copy of an arbitration agreement, because everyone does. But we can't find his. For some unknown reason, it's just not in the file."

Lawyer: "No problem. We'll just have you testify that everyone signs one, that his just must have been lost, refer to what's in the employee handbook (which confirms that everyone signs), and we'll get the thing to arbitration."

Justice Fybel: "No you won't."

Lesson: Keep those documents in the file. They're important. Duh.

People v. Jones (Cal. Ct. App. - Dec. 17, 2007)

Turf battles. You see them all the time. But usually they're not over who's entitled to sleep under a particular off-ramp of the Hollywood Freeway. But sometimes they are.

For what it's worth, I thought that Robert Brown had the better of the argument. Brown's living under the underpass and Tommy Lee Jones -- no, not that 0ne -- and some of his buddies pitch a tent on the other side of the underpass and start to live there. At which point Brown tells Jones that the police will roust him if he has a tent. Apparently, there's an informal "no tent" rule re: police enforcement, which is interesting on its own. But Jones doesn't listen. And, sure enough, a couple of days later, the police roust the tent-weilding crew and force them to move.

At which point Jones promptly moves his tent over to Brown's side of the underpass and pitches it again. Which causes Brown to say: "Hey, I've been living here for six months. Don't pitch a tent near me. Because the police will roust everyone in the group, including me, if you do." But, again, Jones doesn't listen. So up goes the tent.

Brown, frustrated, then panhandles a bit on the off-ramp. Jones shows up later, and the two start arguing again about the whole tent situation. At which point Jones tells Brown "I'm not the one who's leaving, you're the one who's leaving." And goes to his tent to get something. And uses that thing -- a shank -- to stab Brown.

So massive injuries, but still. A shanking over a tent and an underpass. Hardly worthwhile, no?

U.S. v. Biagon (9th Cir. - Dec. 17, 2007)

Judge Kleinfeld concurs and says: "Judges read newspapers, look at blogs, and notice crowds in the spectator
seats, so they have some sense of what cases have attracted public interest."

Judges read blogs?! :-)

United States v. Betts (9th Cir. - Dec. 14, 2007)

I never even thought about offering a bribe to the various credit reporting agencies (or their employees) as a quick and easy way of improving my credit score.

I guess I should have.

Schweitzer v. Westminster Investments (Cal. Ct. App. - Dec. 13, 2007)

Guess who represented the appellant in this case, in which Justice McDonald reverses the judgment below and holds that the bond provisions of the Home Equity Sales Contracts Act (Cal. Civ. Code, § 1695 et seq.) are void for vagueness and hence unconstitutional under the Due Process Clause?

None other than Mark Maasch, a double U. Wisconsin graduate (BS '78, JD '81) who left the cold environs of Madison to practice down here in San Diego. Oh, yeah. And this guy.

Congratulations, Mark. It's always fun to brief and argue a constitutional law issue on appeal. Great job.

Richardson-Tunnell v. School Insurance Program (Cal. Ct. App. - Dec. 10, 2007)

You can be secretly videotaped at your wedding and wedding reception by a crasher who pretends to be invited. At least if you're alleged to be faking your disability claim. Or at least if the person who's doing it is entitled to governmental immunity.

So holds Justice Coffee. In an opinion that, to me, seems right.

P.S. - I wasn't involved in this case, which is out of San Luis Obispo, but I was involved in a different case -- on a different subject matter -- that was (1) also in San Luis Obispo, (2) before the same judge in this case (Martin Tangeman), (3) in which the attorney for the plaintiff here (Daniel O'Neill) was also counsel for the plaintiff there, and (4) in which the attorney for the defendant here (David Cumberland) was also counsel for one of the main defendants there. Small world. (Or at least small San Luis Obispo!)

In Re C.J. (Cal. Ct. App. - Dec. 11, 2007)

"Mother was born in August 1979. She began using drugs at age 16. She has given birth to seven children in 12 years by three men. Her first child, M.F., was born in 1993 when she was 14 and had been molested by her stepfather. Her next two children, D.K. and C.K., were fathered by her foster brother and born in March and November 1997."

You can pretty much figure out the rest. Nothing good becomes of anything.

Later in the opinion, by the way: "Witnesses stated the parents had neglected the children, left them unattended in the bathtub, and allowed C.P., the two year old, to cook food in the microwave."

Nice parenting. (This is a dependency case with meth-addicted parents, as you might well have guessed. When you've got egregious facts like this, it's almost always meth.)

People v. Colbert (Cal. Ct. App. - Dec. 11, 2007)

Got one of those ubiquitous tree-shaped air fresheners hanging from the rear view mirror in your car? Then read this case. Since it holds that this object (or pretty much anything else) provides the police with a proper pretext to stop your car.

It's an interesting opinion for another reason as well. There's a First District case that's directly on point that holds that those tree-shaped things are too small to block your vision out of the front windshield and thus don't provide a legitimate basis for a police seizure. The First District discussed the facts (and testimony) in that case at length to support its view that the tree-shaped things are legal. Rather than just disagree with the holding of that case (which he's entitled to do, of course), Justice Mihara finds that case "distinguishable" because, here, the police officer simply testified that, in his experience, those tree-shaped things sometimes block the driver's view. In other words, that the First District's holding is easily circumvented as long as you have a police officer -- the same officer who admittedly stopped the defendant in a pretextual search -- testify that, yeah, in his view, the stop was legitimate.

I don't find that argument persuasive. I'd have preferred Justice Mihara to simply disagree with the other case. Or, alternately, address the merits and decide one way or the other whether those tree-shaped things are legal or not. They either do or do not illegally block a driver's view. Sure, maybe it's technically okay to simply say "Well, the police officer said X, so what do I care what the true facts are?" -- though I even have my doubts on that point, at least when the facts are objectively verifiable. But even if that's legitimate, I think a better approach would be to address the merits.

Anyway, for now: Take those air fresheners out. Unless you want to be stopped.

In Re McSherry (Cal. Ct. App. - Nov. 28, 2007)

Don't play with yourself in your car while watching third-graders play tetherball. Because if you do, you may well spend 25 years to life in prison. Even if the kids don't see you.

Just ask Leonard McSherry.

U.S. v. Corona-Verbera (9th Cir. - Dec. 7, 2007)

Does the second sentence of Part I of Judge Trott's opinion really describe Angel Martinez-Martinez as one of the "top aids" of the leader of the Sinaloa Cartel?

And, no, that's not one of my (plethora of) typos. "Top aids," huh?

Neighbors in Support v. County of Tuolumne (Cal. Ct. App. - Dec. 7, 2007)

Justice Wiseman typically writes -- and hence knows -- better than to begin an opinion with the following sentence: "We begin by stating the question presented in this case."

Just state the question. Or conclusion. Or anything else, for that matter.

Don't introduce your opinion by saying "There is a question presented by this case. Wait for a sentence and I'll tell you what it is. Then I'll answer it." We sort of figured that much out even before we began reading.

I know that Justice Wiseman can write better than this. As I said, e.g., here. (P.S. - Was I right or what about People v. Castro? Review of which was granted by the California Supreme Court last year.)