Tuesday, May 31, 2005

Ingle v. Circuit City (9th Cir. - May 18, 2005)

Lesson for the day. When you argue an appeal before the Ninth Circuit and lose, be very, very cautious before you raise that exact same issue again in the same case. Very cautious. Very. That's true even if you somehow convince yourself that there has been some intervening precedent rendered after your prior loss that might arguably change things. Remember: the appeal will go to the same panel that slapped you down before. And they may not think that your "intervening precedent" is nearly as strong as you do. At which point they'll slap you down again. Only harder this time.

Which is exactly what happens to Circuit City and its counsel, Rex Berry, in this case. Back in 1999, plaintiff (Ingle) field a lawsuit against Circuit City, at which point Circuit City moved to compel arbitration based upon an arbitration agreement signed by Ingle as a condition of her employment. The district court down here (at the time, Judge Schwartz) denied the motion to compel arbitration, and Circuit City filed an appeal. And back in 2003, the Ninth Circuit unanimously affirmed, holding that the arbitration agreement was unconscionable under California law (and hence that the FAA didn't require its application). (You'll see why I italicize this word in a second.)

Circuit City files a petition for certiorari with the Supreme Court, but it's denied. Shocking, I know. So the case then goes back down to the Southern District of California. And, less than a month later, Circuit City again moves to compel arbitration. The exact same motion that the entire federal system just got finished adjudicating. But Circuit City alleges that the Ninth Circuit's en banc 2003 decision in EEOC v. Luce Forward means that the result should be different this time. But Luce Forward merely held that federal law (i.e., the Civil Rights Act of 1991) didn't preclude employees from agreeing to arbitration. It didn't say anything about the straightforward application of California law. Which was the basis for the Ninth Circuit's prior holding in this case.

Which doesn't escape Judge Whaley, who's replaced Judge Schwartz and who (like his predecessor) again denies the motion to compel arbitration. (Even though Judge Whaley is from the Eastern District of Washington, I have a vague recollection that he comes down here repeatedly on assignment for some reason. And why shouldn't he? Just ponder the weather differential.) So now Circuit City has lost three straight times -- four, if you count the denial of certiorari. So what does it do? Appeals yet again. Going for number four (or five)!

And gets it. Judge Pregerson -- who wrote the initial opinion back in 2003 -- spanks Circuit City down again, and briefly explains why a Ninth Circuit decision on federal law (Luce Forward) doesn't displace a holding that is expressly based upon state law (Ingle I). And then finds the appeal frivolous, and concludes by awarding double costs and attorney's fees to Ingle.

That's got to make Inge and her counsel, Michael Crosby, pretty happy. And simultaneously make Circuit City and Rex Berry pretty darn sad. (Parenthetically, Mr. Berry has certainly moved around a lot during this case. He was with Davis Grimm in Seattle during Ingle I in 2003, then is with Livingston & Mattesich in Sacramento during the briefing of Ingle II in 2004, and now practices in a three-attorney firm called Berry & Block. Here's Mr. Berry's own description of his practice. No mention of this case and result, however. Shockingly.)

Anyway, that's the lesson for today. Don't go overboard convincing yourself of the wonders of your own case. 'Cause when you do, you may well get repeatedly -- and increasingly -- bench-slapped. And, by the way, one last point. When you expressly represent yourself, as Mr. Berry does, on your web site as an "aggressive litigator" and an "accomplished appellate advocate" -- and one who gets results by "employ[ing] thorough and aggressive litigation tactics" -- and then get spanked down badly in a case like this, maybe you should rethink your approach. 'Cause I think that if the panel had read that (as I just did), they might not just have awarded double costs and fees, but might also have expressly found the appeal to be in bad faith as well. Which is just another way of saying that a little caution and tiny bit of humility about the strength of your arguments and prowess rarely hurts, and often helps.

Monday, May 30, 2005

Daar & Newman v. VRL Int'l (Cal. Ct. App. - May 16, 2005)

I would have thought that this one was a total no-brainer, since the correct resolution of the issue is so crystal clear. But apparently not, since the trial judge -- Judge Alan Buckner -- got it horribly wrong. But that's why we have the Court of Appeal. And Justice Hastings indeed rides to the rescue, and, in a fairly brief opinion, explains what (in my mind) should have been pretty darn obvious to Judge Buckner. Indeed, what should be pretty darn obvious to just about anyone.

Here's the issue. A California law firm (Daar & Newman) is hired to represent a defendant (VRL International) in a civil action in California. Defendant is incorporated in the Cayman Islands, has its principal place of business in the Bahamas, has virtually no contact whatsoever with California, and is being sued in California by a plaintiff who was injured in a jet ski accident in the Bahamas. Daar & Newman successfully move to quash the California action on the ground that there's no personal jurisdiction over the defendant in California, and this decision is affirmed on appeal. So no personal jurisdiction.

Then VRL International allegedly doesn't pay Daar & Newman for the legal work they did on its behalf in the California action. So Daar & Newman sue, in California. At which point VRL moves to quash on the ground that the court has already determined that VRL isn't subject to jurisdiction here. And -- stunningly -- Judge Buckner agrees, holding that the prior finding is binding as both res judicata and pursuant to the doctrine of judicial estoppel.

But that's just plain silly. And Justice Hastings cogently -- and briefly -- explains why. Mostly it's because the issue in Lawsuit #1 is different than that at issue in Lawsuit #2. Sure, there was no personal jurisdiction over VRL in California for an accident that transpired in the Bahamas. But that's a different issue than the one at issue in Lawsuit #2, and surely doesn't mean that there's automatically no personal jurisdiction over VRL based upon its retention of a California law firm in California to defend VRL in a California suit. The issues are utterly distinct. Hence no res judicata and no judicial estoppel.

Justice Hastings says the same thing, albeit in 11 pages rather than four paragraphs. And is clearly, without any doubt whatsoever, completely correct. I can't fathom how Judge Buckner could have been led astray on such a seemingly basic point. Or why the current counsel for VRL -- Arlene Berger and Patrick Kelly -- were of the belief that they could snooker the Court of Appeal just like they apparently snookered Judge Buckner. An unjust win is likely to be reversed, the net result being that you've just wasted your client's money on further fees. Sure, sometimes the Court of Appeal reaches an equally silly finding. But that's pretty rare, at least when the case is this utterly clear cut. I couldn't have argued the res judicata/judicial estoppel point on behalf of VRL with a straight face. I'd have busted out laughing if I'd have even tried.

Maybe that makes me a bad lawyer. Oh well. I'll live.

Friday, May 27, 2005

Ytuarte v. Superior Court (Cal. Ct. App. - May 11, 2005)

This case proves that it's not just law students that sometimes find it difficult to apply properly the amount in controversy requirement. Sometimes judges have similar problems. But, lurking in the backdrop, there's always a kind and studious professor -- or, in this case, a Court of Appeal -- to set the wayward student straight. Which is the role that Justice Woods plays here.

The trial court here reclassified the case (over plaintiff's objection) from an unlimited to a limited civil action on the ground that there was not $25,000 legitimately at stake. The trial court did so notwithstanding the fact that plaintiff claimed over $8500 in past medical expenses, over $10,000 in future medical expenses, and over $25,000 in lost earnings, and also (on the motion to reclassify) supported these claims with some evidence. The trial judge thought that it was exceptionally unlikely that plaintiff would in fact obtain a judgment in excess of $25,000, and on that basis reclassified the case.

Justice Woods (properly) reversed. The California standard for reclassification is, at least after the California Supreme Court's 1991 decision in Walker, very similar to the federal standard for determining the legitimate amount in controversy. As Justice Woods correctly explains, the dispositive inquiry is not whether the judge thinks that a judgment in excess of $25,000 is probable, but rather whether it appears "to a legal certainty" that plaintiff cannot recover more than $25,000. Just like the federal standard for a dismissal for failure to satisfy the $75,000 amount in controversy requirement in diversity cases -- only the number has changed. That's a tough standard. And it's not the one that the trial judge here applied. So Justice Woods reverses and remands.

Not a critical case. But a good discussion of the rule. And a reminder that judges sometimes make mistakes on even basic first-year principles.

Thursday, May 26, 2005

Santiago v. Rumsfeld (9th Cir. - May 13, 2005)

Emiliano Santiago enlists in the Army National Guard on June 28, 1996. His contract and his understanding is that his enlistment is for eight years. Which is, after all, what everyone else understands the enlistment period to be as well, since that's what the Army says it is. Then, eight years later, in June 2004, Santiago is told that he's not going to be let go: that the President has signed a "stop-loss" order that extends his contract. As a result, notwithstanding his eight-year contract, Santiago is told (in writing) that "[a]s a result of the unit alert, your [estimated termination of service] date was changed to 24 December 2031 and it is scheduled to remain so until [your] unit is removed from alert status or until demobilization is completed."

Santiago says: "But we had a deal!" The Army says: "Tough." And the Ninth Circuit agrees. Judge Canby holds that the Army is indeed bound to its contracts, but notes that there is a tiny clause in Santiago's contract that says the following: "Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed forces, REGARDLESS of the provisions of this enlistment/reenlistment document." As a result, Judge Canby concludes, the Army can do what it wants. Lawsuit dismissed.

I certainly understand Judge Canby's opinion. I only have two comments. First, I think that this result might well -- and perhaps should -- make people reluctant to join the armed forces in the first place. In the modern era, people join the armed forces for a variety of reasons, but nearly all of them expect the deal that they were promised. And the required length of service is -- especially nowadays -- a critical part of the deal. (If there's any doubt in this regard, just look at the Army's recent "15-month" active-duty enlistment offer, which is the shortest active-duty offer in the history of the service.) Since the fine print in Santiago's deal is the same fine print in everyone's deal, the Army's deal is, essentially, that the deal is whatever they say it is. Which should make people reluctant to join the armed forces if they're doing so in reliance upon a particular deal.

Second, the panel purports to be applying routine contract principles. But aren't they really doing something quite different? Do you really think this same rule would apply to any other type of contract? For example, if I signed up for Sprint and the fine print in the contract said "This contract can be changed by us at any time, in any way," and then Sprint thereafter told me that I had to stay with them until December 24, 2031, there's no doubt in my mind that the Ninth Circuit would apply routine contract principles to hold that this clause did not authorize Sprint to make such a change. Especially if, like the Army, Sprint had routinely gone around and told everyone that the deal was only for eight years, both in every single advertisement and in the office of every single Army/Sprint recruiter.

So we have a special rule for the Army. And perhaps that's legitimate. But if that's what we're doing, Judge Canby should be more forthright about it. Say something like this: "Every single recruit is hereby held to be on constructive notice that, once you sign up, you can be kept in for as long as they want you." Or, even more boldly, require the Army to actually tell potential enlistees of that fact -- either in the contract or beforehand -- rather than merely insert a meely-mouthed provision that in no way suffices to actually inform the recruit of their selected fate. Whichever way one might go in this regard would probably be better than Judge Canby's claim that this case can be decided based upon the same routine contract principles applicable to any other contract. I just don't think that's actually the case.

Chamber of Commerce v. Lockyer (9th Cir. - May 13, 2005)

You don't see this too often: a petition for panel rehearing that's granted (1) even though the initial opinion was unanimous, and (2) over a full year after the panel's opinion was published. The panel consists of Judge Beezer, Judge Fisher, and District Judge England. The original opinion is at 364 F.3d 1154, and was issued on April 20, 2004. Weird.

I guess we'll have to wait until the panel issues a revised opinion -- which it hasn't done yet, which is also weird, since the Ninth Circuit often withdraws and issues a revised opinion on the same day, especially when (as here) it doesn't allow additional briefing -- to see what's up.

Wednesday, May 25, 2005

Valencia v. Gonzales (9th Cir. - May 12, 2005)

Let me start out by reiterating -- yet again -- that I'm no fan of child molesters. Or a lot of other people, for that matter. And I say that even though this case apparently doesn't even involve a child molester. I just wanted to get out the caveat up front. Just so everything's clear.

Okay, that said, I think Judge Bea is right in this one. The question is whether a person who has sex with a person who is under 18 and who is three years older than his or her partner has automatically committed a "crime of violence" and hence subject to automatic deportation. And Judge Bea says: "Yes, under circuit precedent, s/he has, so deported ye shall be, but that's probably the wrong rule." And he's pretty darn convincing.

The result here means that anyone who just turned 21 and has sex with someone one day short of being 18 is automatically subject to deportation because such conduct necessarily entails "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." I just don't think that's necessarily the case: that such sexual interactions by definition include a risk of physical force against another. A large majority of men and women have had sex by the time they turn 18. I'm not of the belief that every sexual interaction between such individuals and a 21-year old necessarily involves the use (or risk of use) of force. There are plenty of people, after all, who are 21 and get married to someone just shy of their 18th birthday. Those don't necessarily involve the risk of physical force either.

It's a bad rule. It should be reversed. But as long as it's only applied (as it is here) to deport foreigners, and as long as those who critique the rule are labeled (as they are) as defending child molesters, it's difficult to find support -- even amongst life-tenured (but often ambitious) federal judges -- for reversing such a rule. Which is too bad.

Tuesday, May 24, 2005

Horton v. Mayle (9th Cir. - May 10, 2005)

I never totally understand decisions like this one. The slip describes an opinion by Judge Rymer, an opinion by Judge Paez, and a dissent by Judge Rymer. All in the same case. Which is just a fancy way of saying that Judge Rymer wrote the first six sections of the opinion and Judge Paez wrote the seventh, as to which Judge Rymer dissented.

Why not just have Judge Paez write the whole thing, and then include Judge Rymer's partial dissent? Sure, I'm confident that Judge Rymer's clerks wrote the bench memorandum, from which the first six sections were (perhaps verbatim) derived. But so what? Just let Judge Paez use it. Or let him have his clerks write the first six sections on their own. Why make the opinion unnecessarily more complicated than a simple majority and dissent?

I'm sure that there are super-sophisticated reasons for the practice that have nothing whatsoever to do with pride of authorship and that I'm just too witless to understand. C'est la vie.

Monday, May 23, 2005

In Re Reeves (Cal. Supreme Ct. - May 9, 2005)

Who says only King Solomon can split the baby? The California Supreme Court did precisely that here.

James Reeves is convicted of two offenses. One is a crime of violence, the other isn't. He's sentenced to five years on the violent offense and ten years on the nonviolent offense, to be served concurrently (i.e., at the same time). For nonviolent offenses, a prisoner can accrue worktime credits at a maximum rate of fifty percent (i.e., one day of credit for each day of work). But for nonviolent offenses, a prisoner can accrue worktime credits at a maximum rate of only fifteen percent.

So how much time does Reeves have to serve if he accrues worktime credits at the maximum rate? What are the options? 4.25 years? 5 years? 8.5 years? 10 years? Something else?

Reeves says 5 years, which is 50% of 10 years on the nonviolent offense (and in excess of 85% of 5 years for the violent offense). By contrast, California says 8.5 years, which 85% of 10 years (and assumes that the 15% rate is applied to the whole sentence, including the nonviolent offense). The California Supreme Court says, nah, it's 7.125 years. (Actually, they didn't say that at all -- I just calculated it out.)

Why 7.125 years? Because it's between 5 and 8.5, of course. And a little bit on the side of the California rather than the prisoner, lest the Justices be recalled. Nah. Just kidding. (Kind of.) It's because the Court splits the baby this way: the maximum rate is fifteen percent during the five years in which Reeves is doing time for the violent offense, and -- once that sentence is over (i.e., in 4.25 years, assuming maximum credits) -- then fifty percent during the subsequent 5.75 years in which he's doing time for the nonviolent offense. So 7.125.

The case highlights a bunch of things, including, inter alia, the utter irrelevance of the rule of lenity in the modern judicial era. But that's no real surprise. Nor is the fact that Justice Chin, Baxter, and Brown don't think that 7.125 is the correct figure. And if you can't correctly guess whether these three want a longer or shorter sentence for Reeves, you need to bone up on your knowledge of these Justices. Anyway, they lose, and in a 4-3 vote, the California Supreme Court splits the baby. Note also, by the way, that none of the seven Justices argue for the 5-year figure. Even though both the Superior Court and Court of Appeal below thought that this was the correct number.

Friday, May 20, 2005

Tillison v. San Diego (9th Cir. - May 9, 2005)

Here's a case with definite local flavor (and interest). John Tillison operates "West Coast Towing" here in San Diego but takes umbrage at California Vehicle Code sect. 22658(l)(1), which has the audacity to provide that when a company involuntarily tows a vehicle from private property, the property owner or one of its agents has to give written permission and be present at the tow.

So he sues the City of San Diego, contending that this statute is preempted by -- of all things -- the Federal Aviation Administration Authorization Act of 1994. Which, notwithstanding its name, does indeed preempt lots of state laws relating to towing (and, for that matter, lots of other laws relating to other motorized movers of personal property). So Tillison, apparently of view that lawyers here in San Diego ain't so hot, hires a guy named Michael McGovern to litigate the lawsuit. McGovern, by the way, apparently likes to specialize in class actions on behalf of towing companies in lawsuits against local officials. He's also a DC lobbyist who argues for deregulation of the towing industry. Oh yeah. My kind of lawyer. I definitely am rooting for you, dude.

Anyway, Tillison's attorney successfully convinces the district court down here, Judge Brewster (who's a bright jurist), that he's right, and obtains a permanent injunction against enforcement of the statute. Which may not be as hard as it sounds, given that there's already a 9th Circuit decision from 2000 (Tocher v. City of Santa Ana) that had already invalidated the statute as preempted.

But the Supreme Court decided a case in 2002 called City of Columbus v. Ours Garage that limited the scope of FAAAA preemption and that provided some new guidelines about when state statutes might relate to "safety" and hence not be preempted by the Act. And the California legislature is no dope either, and responded to this decision (and, perhaps, Tillison's lawsuit) in August 2003 by amending Section 22658 to expressly state that its intent was to enhance safety in certain specified ways. And that's where we stand once the case gets to the Ninth Circuit. At which point Chief Judge Schroeder and her panel colleagues (Judges Gould and Clifton)swoop in and, in this opinion, reverse Judge Brewster, holding that the statute is not preempted.

I'm rarely going to cry when a towing company loses in court. Plus, I thought that Schief Judge Schroeder (and, for that matter, the California legislature) could have supported the statute in an additional manner as well, by finding -- quite reasonably -- that requiring the written authorization and presence of the property owner (or his agent) would diminish the possibility of fights between the tow truck driver and someone who's car is about to be towed but who contends that the property owner hadn't authorized or requested the tow.

So Tilliman and his lawyer lose, and the injunction is vacated. Which means, here at USD, we'll still have the campus police (which we used to call the "Campus Po" at Dartmouth) come out and carefully watch -- as the agent of the property owner (USD) -- as your car gets towed away. And I say that from experience, as my car has been involuntarily towed from USD on more than one occasion. Ah, the memories.

A little research reveals that things apparently aren't going so well for Tilliman on the nonlegal front as well. His company, "San Diego West Coast Towing Services, a California corporation," has recently been suspended (as of February 1, 2005) the California Francise Tax Board. (Which is apparently why the caption indicates that he's suing under his own name and a d/b/a.) Plus, his old web address, www.westcoasttow.com, has been deleted and is now available to the public. And now a loss in the 9th Circuit. Shucks. I feel bad for you, John. About as bad as I felt when I went to the USD parking lot and saw that my car wasn't still there.

Three cheers for California Vehicle Code sect. 22658(l)(1). And many thanks also to the fine counsel for the City of San Diego for securing the revival of this statute on this appeal, both of whom are graduates of the USD School of Law (Richard Ostrow -- formerly with the San Diego City Attorney's office and now with Kimball Tirey & St. John -- and Grant Telfer). The local flavor just keeps on coming.

Thursday, May 19, 2005

California Scents v. Surco Products (9th Cir. - May 6, 2005)

Here's a good one for procedure-minded people, on a couple of different levels. The main issue first. Plaintiff files a federal action and doesn't request a jury trial. Defendant promptly files a counterclaim raising related issues (plaintiff's claim is for trade dress infringement and the counterclaim is for business defamation based upon the cease and desist letters that plaintiff sent) and asks for a jury trial "as to all counterclaims." Plaintiff doesn't amend its complaint; thereafter, defendant dismisses its counterclaims. Given these facts, is plaintiff entitled to a jury trial on its complaint?

The district court (Judge Taylor) says no. Judge Pregerson (and the rest of the panel) disagree and reverse, holding that the plaintiff reasonably relied on the jury demand contained in the counterclaims and that this request accordingly entitled plaintiff to a jury trial on the related claims in the complaint.

This is not the best opinion ever written by Judge Pregerson. The principal problem is that he stretches the cases he relies upon without even addressing the pretty good arguments that these cases are distinguishable. He says, for example, that the situation at issue is identical to those cases in which plaintiff initially files a jury demand and then amends the complaint (without filing another demand), or when a co-defendant requests a jury and, as a result, the other defendants don't. But these are clear cases of reliance; moreover, temporally, in most (if not all) of these cases the waiver of the jury came after the initial request for one. Here, however, plaintiff initially waived the jury absent any reliance upon the defendant, who hadn't even pled yet. If plaintiff is willing to proceed without a jury, and the defendant expressly (as permitted by Rule 38) limits the issues upon which they want a jury trial, it's hard to argue that this is an identical situation to the cases upon which Judge Pregerson relies.

That's not to say that the result he reaches isn't correct. It might well be. But he's got to do the work and make the argument as to why plaintiff shouldn't be stuck to its original decision. After all, when plaintiff filed its original complaint, it was willing -- indeed, apparently wanted -- to have a bench trial. Perhaps its desires changed once it saw that defendant was going to argue counterclaims to a jury. But once defendant dismissed those counterclaims, it's tough to see how it is categorically illegitimate to bind plaintiff to its expressed preference, and similarly hard to establish a clear-cut case of reliance.

One other (marginally related) interesting procedural point is worth mentioning, alongside a warning about the lesson that defendant may have (belatedly) learned. Attentive observers will notice that, here, defendant initially won on summary judgment, thereby resulting in the dismissal of the complaint, and on that basis was willing to dismiss its counterclaims with prejudice. This seems a reasonable approach, since we all know that these "business defamation based upon cease and desist letters" are typically a makeweight anyway. But then plaintiff appeals and gets the summary judgment reversed. Which now means that the counterclaims are gone but the complaint isn't. Which isn't what you wanted as the defendant (after all, if that's what you'd wanted, you'd have never have articulated the counterclaims in the first place).

So watch out before you dismiss counterclaims thinking that the case is basically over. You may not always be right.

Wednesday, May 18, 2005

Hypertouch v. Superior Court (Cal. Ct. App. - May 5, 2005)

Those interested in class actions would be well-advised to read this erudite opinion by Justice Klein, which holds that trial courts cannot require unnamed class members to "opt-in" -- as opposed employing typical opt-out procedures -- as a precondition to recovery. And I include in this category of informed readers not only learned counsel eager to expand their knowledge of complex litigation, but also those law students in my first-year civil procedure class, whose final examination is on Friday.

Justice Klein's opinion contains a great (and accurate) analysis of the Supreme Court's opinion in Shutts. His (entirely proper) reversal of the trial court's contrary interpretation of Shutts, which (erroneously) held that the utilization of opt-in procedures was constitutionally compelled, is not only important in its own right, but also demonstrates that even sophisticated judges (e.g., Judge Mittelsteadt here) are capable of misreading and misapplying Supreme Court precedent in this area. It's a tough field. You've got to read the relevant opinions slowly and carefully, and with an appreciation of the policy bases behind the court's holding. Which is exactly what Justice Klein does in the majority opinion. Not bad. For a Yalie.

The opinion is also interesting for a couple of other reasons. First, there's substantial interchange between Justice Klein and Justice Haerle, who writes a concurring and dissenting opinion. My view is that Justice Klein prevails in most (if not all) of these disputes. Regardless, it is interesting -- and enlightening -- to read the responses that Justice Klein makes to Justice Haerle, and vice-versa. Second, in footnote 15, Justice Klein gently slams both the counsel involved in the class action and, more severely, the treatment of this complex litigation by the San Mateo Superior Court, which assigned six different judges to the suit during its history. That ain't right, Justice Klein explains, and may well help explain (at least in part) why the case was so messed up. When you put a new judge in every couple of months, things get ugly. Particularly in difficult cases such as this one.

Counsel for the plaintiff -- who both wins and seems to have a pretty darn good case on the merits -- is John Fallat. (Who should promptly ask the Clerk to amend the opinion so that the name of his law office is spelled correctly.) Joseph Miller and Leslie Mann (both from Epstein Becker & Green), alongside Michigan attorney Daniel Cohen, have the tougher job of representing the defendant. Enjoy the continuing battle!

Tuesday, May 17, 2005

United States v. Weatherspoon (9th Cir. - May 6, 2005)

These opinions contain a lively (and interesting) debate amongst the members of the panel regarding both the general issue of prosecutorial vouching and the particular predelication towards this practice by members of the of United States Attorney's Office in Nevada. They're definitely worth a read. The majority opinion contains a pretty compelling -- and disturbing -- recitation of the prosecutor's argument here, alongside a history of this particular prosecutor that suggests pervasive continuing abuse. The dissent (by Judge Trott) articulates (particularly in the final section) a fairly personal -- and expansive -- contrary analysis, and one that insinuates both that the Ninth Circuit is uniquely out of control with respect to vouching issues and simultaneously that the U.S. Attorney's Office in Nevada is somewhat out of control for continuing its antics.

Both points of view are cogently argued here. They're valuable additions to the literature.

Monday, May 16, 2005

Oh v. Gonzales (9th Cir. - May 2, 2005)

This decision should hardly be surprising. Though I was admittedly pretty surprised at the need for the appeal in the first place.

The INS concludes that Oh is a removable alien on January 10, 2003, so she's got 30 days to appeal to the BIA. Counsel for Oh completes the paperwork and mails it via overnight mail (on Airborne Express) on February 5, 2003, which is both more than enough time to ensure timely delivery and is precisely how the BIA suggests that the documents be mailed. But even though the papers are sent via overnight mail, Airborne Express (now swallowed up by DHL) didn't deliver the documents until February 24, 2003, well beyond the 30-day deadline for Oh's appeal.

All of these facts are totally undisputed. Everyone concedes that the documents were indeed sent via next-day mail on February 5. But the BIA still says "tough luck," and dismisses Oh's appeal as untimely. The BIA's unpublished opinion holds that it has no discretion to extend the deadline. Notwithstanding the fact that the BIA's own Practice Manual says that the BIA can indeed excuse late filings "in rare circumstances," and even though the Ninth Circuit had previously stated (in Hernandez-Rivera) that "despite the note of finality sounded by [the deadline], it is not inflexible." Too bad, says the BIA. Appeal dismissed.

To which Judge Fisher rightly responds: "Too bad, BIA. Reversed." Which is precisely the kind of reasonable response you'd expect from this panel, which also included Judges Willie Fletcher and Dorothy Nelson. This is not England in the sixteenth century. This is America. We do not deprive people of their vital liberties -- or at least we shouldn't -- based upon hypertechnical defects that are not their fault. When people act reasonably, as Oh and her counsel did here, we do not say "Well, tough for you. We're deporting you anyway." Any more than we would (or should) deport people if they're walking to the courthouse to file their brief and are hit by a bus or swallowed up by an earthquake. Sure, they could have ridden in a tank or sent multiple copies through multiple independent means in order to ensure that they would meet the deadline notwithstanding various potential pitfalls. But we don't require this. It isn't your fault. We're not going to kick you out of the country when you missed a deadline entirely through the fault of someone else upon whom you reasonably relied. We just don't do that.

Of course, we would have done precisely that to Oh here, since -- after all -- that's what the BIA ordered. But that's the value of review by an independent judiciary. Remember that the next time someone slams courts, the Ninth Circuit, or "activist" judges like Dorothy, Ray and Willie. Sometimes you need the judiciary to get involved and to do what's right. Like here.

Friday, May 13, 2005

Romano v. Mercury Ins. Co. (Cal. Ct. App. - April 29, 2005)

This is another well-written opinion by Justice Sills. I previously commented on another opinion penned by Justice Sills, although I couldn't decide there whether his (excellent) majority opinion was correct or whether the (excellent) dissent by Justice Ikola was more persuasive. There's no similar problem here, however, both because there's no dissent and because Justice Sills' analysis here seems both right and reasonable. He holds that an insurance company is obligated to pay uninsured motorist coverage when plaintiff is in an accident with an individual who has insurance coverage but whose insurer (eventually) is declared insolvent.

It's not that the defendant insurance company doesn't have some good arguments that the policy language doesn't obligate it to pay. Indeed, its counsel makes some quality arguments in that regard. But Justice Sills is right when he rejects them. His opinion is a great example of textual analysis -- both statutory and contractual -- that's cogently informed by both structure and purpose. Good job.

People v. Dolly (Cal. Ct. App. - May 3, 2005)

I don't get it. The prosecution in this case exercises its peremptory challenges to strike every single African-American in the jury venire. The defense notes this fact and objects under Wheeler/Batson. But Justice Boren holds that it doesn't establish even a prima facie case of discrimination that the prosecution has struck every single African-American on the panel.

What? How exactly is this consistent with Batson, which expressly held: "For example, a 'pattern' of strikes against black jurors in included in the particular venire might give rise to an inference of discrimination"? Or the express holding in Wheeler that a prima facie case can be established by "show[ing] that his opponent has struck most or all of the members of the identified group from the venire," and further noting that that the defendant "may also demonstrate that the jurors in question share only this one characteristic," which seems to clearly indicate that showing both such facts is not required?

These quotes are nowhere to be found in Justice Boren's opinion. Nor is there any explanation as to why it makes sense to hold that the striking of every single African-American juror is inadequate to demonstrate even a prima facie case. Under this theory, if there are 150 members of the venire, and the prosecution uses 138 peremptory challenges to strike each of the 138 African-Americans on the jury, leaving an all-white jury, and the defense points out this fact, that's not enough to establish a prima facie case either. Silly.

Justice Boren was in a Deputy Attorney General in the Criminal Law Division from the date of his graduation from law school in 1973 until he was appointed a judge in 1984. Maybe someone with this background would prefer that prosecutors not have to explain at least a little bit of their reasoning when they strike every single minority from the jury. But that shouldn't be the law. Nor, under Wheeler and Batson, do I think it is.

Thursday, May 12, 2005

People v. Akins (Cal. Ct. App. - May 4, 2005)

Here's a stellar use of prosecutorial resources.

Akins is convicted of welfare fraud based upon her failure to disclose certain disability income and is sentenced to 90 days in jail and ordered to pay restitution for the amount she was overpaid. The district attorney thinks she should pay $10,158, but there's a Court of Appeal case on point (Hudson) that says that the method of calculation used by the district attorney is improper, as it does not apply the 20% earned income deduction to which the defendant would have been entitled had she disclosed this income (basically, because the food stamp program ignores 20% of your income anyway).

So the defendant, relying on Hudson, says that the true restitution amount should be $9,789. To which the district attorney responds that Hudson shouldn't be applied retroactively. Even though that's a totally silly argument, both in general and because that case came down before Akins' plea agreement, not after. And the trial court says so, calling the district attorney's argument "disingenuous" and concluding with this insight: "[O]ur job is to follow the law. And if our County is trying to make money off those convicted of crime more than they're entitled to, then I can't be a part of that and I don't want to be." So orders restitution of $9,789.

So what does the district attorney do? Appeals. Over $369. Over a tiny, insignificant amount of money that they're not going to get in future cases anyway given Hudson. Which prompts the appointment of appellate counsel for the defendant, full briefing (including a reply) and a 14-page opinion. All of this in addition to the compelled appointment of conflict counsel below after the district attorney insisted on the extra $369. And all of this paid for by the state. All over -- let me reiterate -- $369.

Justice Stein affirms, holding that the trial court got it right and that the County of Solano wasn't entitled to its extra $369. Which is both right and, in my mind, beside the point. The appeal should never have been filed in the first place. Which is perhaps -- and I admittedly speculate here -- why the Attorney General's office didn't represent the People of the State of California in this appeal, and instead insisted that the appeal be done (if at all) by the Solano County District Attorney. Who apparently happily did it. For 369 whole dollars.

Money down the toilet. You'd hope that our elected officials would be smarter -- and wiser -- than this. The counsel on the brief: the Solano County District Attorney (David Paulson), his Chief Deputy District Attorney (George Williamson), and Joel Coble (Deputy District Attorney). Great job, guys.

Morris v. Redwood Empire (Cal. Ct. App. - April 29, 2005)

This opinion by Justice Aronson is a bit troubling. The plaintiff signs up for a credit card service that helps to process credit card transactions and that costs something like $25/month. The service is for an indefinite term, but either party can terminate the service with 30 days notice. If the defendant terminates the service, nothing is due. But if the plaintiff terminates the service, she owes another monthly payment plus a separate $150 termination fee.

Plaintiff argues that this provision is an unreasonable liquidated damages provision and hence invalid under Civil Code sect. 1671. The Court of Appeal could potentially have said "Sure, it's a liquidated damages clause, but it's not unreasonable." If that was the approach, I wouldn't have a categorical problem with the opinion.

But that's not the approach that the Court of Appeal takes. Rather, Justice Aronson holds that the termination fee is not even a liquidated damages provision at all; instead, that it is "simply an alternative to performance." But that's true of every liquidated damages provision. The relevant clause says that you can breach (or terminate) the contract as long as you pay $X. That's precisely what liquidated damages provisions do. The basis for Justice Aronson's holding would mean that there's basically no such thing as a liquidated damages provision to which Section 1671 applies, since they're all alternatives to performance. So, for example, under Justice Aronson's view, I can write a contract that says "You agree to buy my house, but you're entitled not to buy it so long as you pay me $100,000." Under Morris, that's not a liquidated damages provision, but rather simply an alternative to performance. Which is wrong, and which I think everyone would recognize is wrong.

Sure, there are legitimate contracts that involve options. And the dividing line between true options and liquidated damages provisions is admittedly a bit fuzzy sometimes. Surely, for example, I could in some circumstances say that the buyer is obliged to pay me $100,000 for the right to buy my house at $X, and at some point, that's a legitimate options contract (rather than a liquidated damages provision). But that doesn't mean that every contract is an option, or that many contracts that say "If you don't buy my house, you owe me $100,000" aren't in fact invalid liquidated damages clauses. Plus, the contract at issue in Morris is clearly not an option contract; rather, it is a continuing contract with a separate (and one-sided) termination fee.

So I think that Justice Aronson messes up the law of liquidated damages here pretty severely.

P.S. - The mistake by Justice Aronson is particularly surprising since the counsel for the plaintiff were pretty good, and included both Jeffrey Wilens (a certified appellate law specialist) and an amicus brief on her behalf from the California Attorney General's Office. One random comment, though. One of the two attorneys listed for the plaintiff (and the first attorney listed on the docket sheet for her reply brief) is Kenneth Quat. But Mr. Quat doesn't appear to be a member of the California Bar (and instead appears to be a Massachusetts lawyer), nor does the docket sheet reflect his admission pro hac vice. Weird. (By the way, I don't mean to slight counsel for the defendant, who also appear to be pretty good and who, after all, won. They're John Hurlbut, Jr., Steven Goon, and Treg Julander, all from Rutan & Tucker.)

Wednesday, May 11, 2005

Deborah M. v. Superior Court (Cal. Ct. App. - April 29, 2005)

Here's a darn good opinion by Justice Nares. And I say that not (only) because Gil was a graduate of both USD ('64) and USD Law ('67), as well as selected as our Distinguished Alumnus (in '84). Rather, I say this because it really is a good opinion: a textbook example of proper statutory analysis and the correct use and application of legislative history. The trial court thought that it could order drug testing through the use of a hair follicle test, which (although the Court of Appeal doesn't mention it) is a lot harder to fake your way through than the more typical urine test. On first glance, that seems an entirely reasonable conclusion. But Justice Nares does an excellent job of parsing through the (admittedly) ambiguous statutory language to conclude that the only presently authorized form of testing is urinalysis.

He convinced me, even though I was initially skeptical. Which is precisely what a good opinion should do. A fine example of quality work.

Tuesday, May 10, 2005

Roman Catholic Bishop v. Superior Court (Cal. Ct. App. - April 28, 2005)

I noted in a previous post that the constitutionality of retroactive punitive damages under the ex post facto clause of the Constitution would make a good law review article, and noted that Justice Croskey had written a well-reasoned opinion (in the context of the revival of otherwise-barred insurance claims that arose out of the Northridge earthquake) concluding that such a revivor was constitutionally permissible. Well, it's still a good law review topic. And here's another case -- this one by Justice Rubin -- that reaches the same result, albeit in a different context (here, to validate the revivor of otherwise time-barred punitive damages claims for alleged sexual abuse of a minor by a priest who worked for the Bishop of Oakland).

Both are good opinions. But there are definitely counterarguments out there. Someone should pick up this gauntlet (and topic) and run with it. It's clearly going to reach the Supreme Court at some point.

Monday, May 09, 2005

Smalley v. Baty (Cal. Ct. App. - April 26, 2005)

I don't know about this one. Justice Sims holds that it is reversible error -- indeed, an abuse of discretion -- for the trial court to preclude plaintiff from introducing evidence that he personally paid the medical bills at issue (rather than his insurance company). I may agree with the trial court here. I don't see what it adds that the plaintiff personally paid the bills. How's that relevant? That the bills were paid is clearly relevant. But not who paid 'em.

Moreover, I'm quite sympathetic with the trial court's view that this evidence would be overly prejudicial even if you could come up with some argument as to why it's relevant. We all know that the jury is going to be more likely to award damages if plaintiff pays the bills himself. But we don't want that fact considered, just like the collateral source rule prevents the defendant from introducing the fact that the insurance company paid the bills. We just want the jury to pay what's right. That shouldn't depend upon who actually paid the bills. (For similar reasons, even if this was error, I don't know why it's reversible error, since this stuff shouldn't be relevant in the first place, much less should it be likely to legitimately result in a different verdict.)

Plus, there's a second level problem here. If this evidence is indeed admissible, the resulting rule means that every intelligent jury will be able to figure out that the plaintiff didn't actually pay the bills himself if there's no evidence that he directly paid them. Which frustrates the goal of the collateral source rule. This is the classic problems with one-way principles. If you can show X but the other side can't show Y, the jury will know that Y is true whenever you don't show X. Which defeats the point of the rule, a central function of which is to stop the jury from thinking about X and Y and focus on the evidence instead. Which is why -- wholly beyond the issue of relevance -- we should prefer a categorical rule that says that neither side can discuss the issue of who paid the bills.

I understand why Justice Sims comes out the way he does. But I think the resulting rule is a pernicious one.

Thursday, May 05, 2005

Temporary Respite

I'm on the East Coast until Saturday, with limited computer availability. I'll catch up on my posts on Monday. FYI.

Monday, May 02, 2005

People v. Roldan (Cal. Supreme Ct. - April 25, 2005)

I wouldn't advise reading the entire 119-page opinion in this case, in which the California Supreme Court -- as I know this will come as a huge surprise -- unanimously affirms the imposition of the death penalty. But anyone reading the case has got to feel for the defendant's counsel, who was compelled to represent him even though he had made (quite credible) death threats against him (and a lot of other people as well). The Supreme Court holds, correctly, that the resulting conflict was generated by the defendant in order to secure a continuance, so wasn't a basis for excusing the attorney. Still, it's got to be hard to defend someone who's threatening to kill you (and, parenthetically, also refuses to talk to you and instructs you not to talk to witnesses or any of his family in connection with the penalty phase).

My sympathy is only heightened when the opinion repeatedly describes how counsel, notwithstanding the death threats, consistently performed an "outstanding" job at the trial. Though, I gotta say -- because the Supreme Court doesn't -- he's not too outstanding, since once one reaches page 115, you realize that he failed to object to the prosecutor's blatantly impermissible references to the Bible in support of the death penalty. Obviously, no one's perfect, but you'd think that virtually anyone -- especially an experienced capital defense counsel -- would notice and object to such impropriety. (And, parenthetically, that no experienced capital prosecutor would be so sleazy and/or uninformed to employ such an obviously improper tactic.)