People v. Cross (Cal. Ct. App. - Nov. 28, 2005)

Let's say -- hypothetically, of course -- you have an opinion that begins as follows: "Appellant was tried for sexual misconduct with his 13-year old stepdaughter who became pregnant and had an abortion." Sounds neutral, right? Any doubt about how the opinion is going to come out?

Nope. None whatsoever. Conviction affirmed.

Two points about this not-so-hypothetical opinion beyond its opening sentence and result. First, Justice Elia holds that the abortion itself can constitute "personal infliction of great bodily injury." Second, he also holds that it's okay to sentence Cross -- who has no criminal history, who was "in love" with his stepdaughter, and whom the jury acquitted of all charges of threats and force -- to 15 years to life. Not cruel or unusual.

Not that he's necessarily wrong. But still. Interesting. Certainly worth reading.

Judges v. Turkey (9th Cir. - Nov. 19-29, 2005)

Here's a quiz. Guess how many published opinions the 9th Circuit has issued during the last eleven days, from November 19 to today (November 29), inclusive?

Twenty? Fifteen? Thirty? Somewhere in between?

Well, here's a hint. The California Court of Appeal has rendered thirty-one published opinions during this period. Does that help?

Unfortunately, no. Because the answer is this: Two. Two published opinions in 11 days. Two.

31 to 2. Impressive, eh? Guess the 9th Circuit was really busy preparing that turkey dinner. And then digesting it.

Get cranking, federal dudes and dudettes. Thar's work to be done.

In Re Koven (Cal. Ct. App. - Nov. 22, 2005)

Okay, everyone. Mellow out. Say your mantra. Assume the lotus pose. Breathe in. Breathe out. Relax.

That's my overall reaction to this case. For everyone involved. From the relevant attorney who's conduct was at issue -- Debra Koven -- to the relevant Justices on the Court of Appeal (Justices Gilbert, Yegan, and Perren).

Ms. Koven first. That part's easy. Whoa, Nelly. You just gotta read the opinion, which recites at length the various things she said in her brief. To say that Ms. Koven insults the court is an understatement. A big, big, big understatement. There's about a dozen pages of superfun stuff in the opinion that's a fun fun read. The overall reaction to which has got to be: "What were you thinking?!" Accusing the Court of Appeals of having the "fix" in?! Goodness sakes. And you've got to read 'em yourself to believe the twenty or so other allegations she makes. Oh boy.

Anyway, the Court of Appeal holds her in contempt. Even though Debra apologizes and basically throws herself on the mercy of the court. Now, they don't punish her much: They fine her a couple of grand, and refer the matter to the State Bar. But they also publish the opinion. Which -- particularly when combined with the other penalties -- is certainly punishment enough. Not undue punishment, mind you. But enough.

Just one more thing, though. The Court of Appeal itself has got to mellow out as well. I'm not referring to the punishment they impose, which seems reasonable (even though an argument could well be made that there was no reason to affirmatively find Ms. Koven in actual contempt in light of her apology). Rather, my view is that the language that the Justices employ in their opinion is way too defensive, a bit excessive, and way too touchy. So Koven calls you incompetent and thinks the fix is in? Big deal. It's not the end of the world. We're all adults here. They're just words. Sticks and stones, remember?

My strong sense is that I would have had much, much thicker skin than is demonstrated by Justices Gilbert, Yegan, and Perren, who jointly author the opinion. Just because you wear black robes doesn't mean that you are immune from critique. Sure, the particular language here was contemptuous, and rightly punished. But let's not get too high and mighty. People -- even attorneys -- get excited, and use words they shouldn't. We'll punish them for that. But when we do so, we should perhaps also remember that the attacks on us probably get our gander up as well. So perhaps we should mellow out as well. Which is my -- very slight -- critique of the opinion here.

Take a look at it and see if you agree.

P.S. - Debra Koven is a Western State graduate who joined the Bar in 1990. Here's her registered address, which is in Brentwood. I feel a bit bad for her. But she surely brought it upon herself. Sorry about that, Debra.

Viva! v. Adidas (Cal. Ct. App. - Nov. 21, 2005)

I'm not a vegetarian. I'm eating a chicken -- okay, a chicken burrito -- for lunch today, and might also have a leather belt or two. (Or might not; honestly, I don't know.) In short, I'm not a black-and-white animal rights person.

That said, I was fairly surprised to see this opinion. If only to learn that Adidas is actively selling sneakers made of -- get this -- kangaroos.

Uh, dude. I do not need my shoes to be made of kangaroo. Maybe leather is fine; or maybe it's not. But kangaroo leather?! That just seems wholly unnecessary. I'd have the same reaction to panda leather, polar bear leather, baby elephant leather, etc. I just don't get it. Do we really need shoes made out of a kangaroo?

Well, if the market's always right -- which of course it is (yay capitalism!) -- I guess we do have a desperate need to wear kangaroos on our feet. And thank you, Adidas, for bringing this burning need to our attention. Still, I was darn surprised to see that we apparently needed to kill kangaroos because our regular sneakers just aren't good enough. I can see the upcoming Adidas ads now. "Phi Slamma Jamma. You too can jump as high as a kangaroo. 'Cause you're wearing one on your feet. Adidas." Can't wait.

You'll be happy to know that California -- and I love ya, baby, I really do -- prohibits importation of products made from, inter alia, dead kangaroos. So sayeth Penal Code Section 653o. Ditto for whales, leopards, tigers, cheetahs, cobras, sea turtles, dolphins, sea otters, and a wide variety of other animals that, quite frankly, I don't particularly want to see killed just because they might look cool on my sneakers. But Justice Marchiano holds that this statute is preempted by federal law. Notwithstanding a fairly broad saving provision in the Endangered Species Act that expressly allows state regulation in this area.

Maybe Justice Marchiano is right. But I definitely think the California Supreme Court should take this one up. It's an important issue. And Justice Marchiano may also, in fact, be wrong.

U.S. v. Howard (9th. Cir. - Nov. 15, 2005)

This is one is a toughie. As everyone involved -- both the majority and the dissent -- seem to recognize.

The issue is whether criminal defendants can uniformly be forced to appear before the magistrate in shackles. That's what the U.S. Marshal's Office in the Central District decided to do; as a result, in their first appearance before the magistrate, everyone's in leg shackles -- regardless of their crime and without an individualized determination (by anyone) regarding whether it's necessary.

Judge Schroeder holds that this policy is unconstitutional. At least under this -- virtually nonexistent -- record. But expressly leaves open the possibility that it would be okay if the Marshal's Office attempted to actually justify the policy beyond basically some speculation from a single source that the policy might be a good idea. Whereas Judge Clifton -- who's also somewhat disturbed by the lack of a real record here -- dissents, and would uphold the practice, his central argument being that there's no real harm to leg shackles in front of a neutral magistrate, who (unlike a jury) won't be swayed by their presence.

It's a tough call, I think. Both sides make pretty darn good points. I could definitely see reasonable people going either way.

Christoff v. Union Pacific (Cal. Ct. App. - Nov. 21, 2005)

Just last week, my colleage and friend, Michael Rappaport, came by my office and said that he thought that virtually every class in law school could credibly be taught by exclusively reading those cases that involve railroads. And although Mike is both a certifiable crank and right-wing nut job -- and his general credibility thus exceptionally low -- I found this particular comment to be both insightful and potentially true. There are indeed a lot of those cases. Indeed, at least one purpose of creating federal diversity jurisdiction was to help protect railroads from state liability. So there's indeed a large number of cases in this area.

Or at least there were. You don't see nearly as many of them nowadays. Not like, as Michael would say, "back in the Good Old Days" like the 1800's. (Why one would think that the 1800's were the "Good Old Days" remains unclear to me -- for, inter alia, reasons you might well imagine -- but I digress.)

So when I ran across this opinion, I had to at least mention it. A railroad liability case. In November 2005. Which answers the following question: When you walk on a pedestrian walkway that crosses a railroad bridge, and when a train blows by you at 50 miles per hour and either hits you or blows you down, can you survive summary judgment in your lawsuit claiming that the railroad had a duty to warn you not to use the walkway?

The answer, you ask? Well, according to Justice Sims, it's "No." Summary judgment for the railroad affirmed.

Why this case meets the standard for publication is beyond me, since the analysis is both very fact- and case-specific as well as doctrinally superficial. But, hey, it's a railroad case. So let's publish it and hence give Mike one more case with which to work. Enjoy!

Martinez Barroso v. Gonzales (9th Cir. - Nov. 18, 2005)

What joy it must be to steal from illegal immigrants by pretending to be a lawyer. What fun it must be to do such an incompetent job that they're almost invariably deported. And what a pill it must be to be a lawyer who works alongside such an unethical practice.

Judge Reinhardt describes in this opinion the business ethics of various notarios in federal immigration proceedings who pretend to be attorneys and prey on legally unsophisticated immigrants. He also describes what a bang-up job one of them -- Abad "Nork" Cabrera -- did here, as well as the various actual attorneys who worked alongside (and were seemingly employed by) Cabrera. Who, for the record, were Xavier Vega, a Santa Clara law grad who works out of a tiny office on Sixth Street in Los Angeles, Ronald Peake, a University of West Los Angeles grad who holds forth two blocks from the ocean on Catalina Street in Redondo Beach, and Ramin Ghashghaesi, another U. W.L.A. grad and who's office is in mid-Wilshire.

Worth reading are some of the not-very-nice things said in the opinion about both Cabrera and various of the actual lawyers in the case. Interestingly, although the opinion doesn't mention it, it's a reasonable inference that the involvement of Mr. Peake alongsides Mr. Ghashghaesi may not be coincidental, since they graduated from the same law school and were admitted to the Bar on the same day, and hence may well know each other and work on various cases together. Which I'm obviously fine with. But they really need to stop working for a notario like Cabrera. And also probably do a better job than they did here. As this opinion is not how I'd like to see my name in print.

Chaffee v. San Francisco Public Library Comm'n (Cal. Ct. App. - Nov. 21, 2005)

Here's a quick quiz for the statutory interpretation crowd.

A statute (here, a municipal ordinance) that allows public participation during proceedings of governmental bodies (here, the San Francisco Public Library Commission) provides that "each person wishing to speak on an item before the body at a regular or special meeting shall be permitted to be heard once for up to three minutes." Question: Can the governmental body, consistent with this statute, permit each public speaker to be heard for only two minutes, rather than three?

Follow-up Question: Does your answer to the previous question change if the predecessor statute to this one stated that each person who wished to speak on an item be heard "for not less than three minutes"? What if an early draft of the current statute contained this same language? Which way (if any) does that cut?

So what's your answer? Is it permissible under the statute to give everyone two minutes, rather than three?

Needless to say, this isn't a hypothetical. And Justice Rivera (a Smith College graduate, like my friends and Smith alums Judybeth Tropp and Piper Kerman) says . . . . It's fine. Agree?

Yount v. City of Sacramento (Cal. Ct. App. - Nov. 9, 2005)

Look, I'm no cheerleader. Of course, I say that precisely because I'm defensive, particularly in light of what I'm about to say. Since I'm going to compliment Justice Butz again. As I did here and here. My only defense is that I've also said that I didn't think that one of her opinions was all that impressive. Still, I'm a fan. At least thus far.

Why, you might ask? Because of opinions like this one. Which is really good, and which cogently engages in a sophisticated and persausive synthesis of various competing lines of federal and state precedent. It's the type of opinion that never fails to impress. And it's definitely worth a read.

Among other things, this case is about an important issue: When can a plaintiff file a Section 1983 suit based upon conduct that transpired during the course of an arrest which he was convicted of resisting? As you can imagine, such lawsuits are filed somewhat frequently. As a result, there's a large body of precedent about when such suits are cognizable. Particularly after Heck, in which the Supreme Court held that Section 1983 claims can't be brought when doing so would essentially constitute a collateral attack upon the validity of an underlying criminal conviction. So, for example, you can't file a Section 1983 claim asserting that the police set you up in order to convict you; absent first vacating the conviction, you're boned. ("Boned" -- of course -- being a formal legal term for a particular typical of res judicata.)

The basic rule in this regard makes total sense. The problem is that lower courts have sometimes been a bit aggressive -- in part relying upon fairly broad language articulated in footnote 6 of Justice Scalia's opinion in Heck -- in their application of that case. For example, courts routinely apply Heck to bounce Section 1983 claims alleging excessive force during an arrest. The theory being that if you were convicted of (or pled guilty to), say, resisting arrest, you can't bring a Section 1983 claim against the police, since your claim that the police used excessive force is inconsistent with your conviction, since if they used excessive force, you were entitled to resist. Which we know you weren't, since you were convicted.

This is a facially appealing argument, and in some cases, is totally correct. However, in the real world, this theory often doesn't work. For example, imagine that the sequence of events transpires this way: (1) you resist arrest, (2) they handcuff you and put you in a patrol car, and (3) then, while you're restrained, the police beat the crap out of you. The fact that you're convicted of (1) is no way inconsistent with a Section 1983 claim for (3). But lower courts often misread Heck to preclude Section 1983 claims in precisely such cases. Moreover, in practice, the categorical rule articulated by Heck is hard to apply because (1) and (3) are often close in time; moreover, the actual events that underlie your conviction for resisting are often unclear, particularly in cases involving a guilty plea.

The great thing about Justice Butz is that she -- unlike many lower courts -- can tell the difference between these competing concepts. She does a great job explaining why certain cases make sense, why others don't, and how the various competing principles are properly resolved and applied. Mind you, the rationale that I've articulated above is my own, and she explains the theory a little differently. But they're two sides of the same coin. Plus, as a bonus, she also explains and agrees with Smith v. Hemet, a Ninth Circuit case which I discussed here and in which I also agreed with the majority (rather than the dissent). So I'm totally on board with everything that Justice Butz says.

Finally -- and I know this post is already a bit long -- this particular case also exemplifies precisely why the collateral estoppel principles articulated in Heck can't be categorically applied, regardless of what Justice Scalia inartfully said in footnote 6. Here, the plaintiff resisted arrest, and (in an attempt to subdue him) was subsequently tasered, handcuffed, and put in restraints by the police. So far so good. But then, after he was restrained, he started to struggle a bit more. So one of the police officers grabbed for his taser in an attempt to stun him once more. And pulled the trigger. One problem: instead of grabbing his taser, he accidentally grabbed his gun. And hence shot the plaintiff with his nine millimeter. Oops!

Plaintiff's conviction for resisting arrest is obviously not inconsistent with a claim for excessive force based upon such events. And yet, relying on Heck and other authorities, the trial court entered judgment for the defendants on that basis. Justice Butz knows that this is wrong, and cogently explains why. A good opinion.

P.S. - Memo to all police officers: Please make sure that's actually a taser in your hand before squeezing the trigger. It's not a difficult task. And definitely worth the effort. Plaintiff wasn't killed here. The next time we might not be so lucky.

The Santa Anita Companies v. Westfield Corp. (Cal. Ct. App. - Nov. 17, 2005)

Hilarious. You have to read the first eight pages of this opinion. Which explain, at length, how even high-priced legal talent in Los Angeles -- in particular, O'Melveny & Myers -- can totally screw up a relatively straightforward real estate transaction by making a boneheaded error that resulted in an extremely valuable 2.36 acre parcel of land adjacent to the Santa Anita Racetrack being mistakenly transferred to the wrong party. And how no one noticed this fact for several years. Until a paralegal -- a paralegal -- from Gibson Dunn caught the mistake.

Of course, the mistake was caught only after the statute of limitations had run. But no matter. Justice Mosk holds the statute was tolled. Becasue O'Melveny acted competently -- and in a same manner as other major Los Angeles law firms -- when it made a totally stupid mistake that even a paralegal could (and did) catch. Yep. Definitely.

Osman v. Superior Court (Cal. Ct. App. - Nov. 16, 2005)

THIS counts as a waiver?! Wow.

The prosecution messes up a criminal complaint and the court grants defendant's demurrer. Section 1007 of the Penal Code says that in such settings, the court can grant the prosecution a maximum of 10 days to amend the complaint, and Section 1008 states that if no such amendment is made within this period, the complaint must be dismissed.

So, here, the court grants the demurrer, but its order -- contrary to Section 1007 -- granted the prosecution 33 days in which to amend. So when no amendment was made within 10 days, pursuant to Section 1008, the defendant moved for mandatory dismissal of the complaint.

But Justice Mallano holds here that no such dismissal was required, because defendant "by her silence" waived the protections of Section 1007. What?! Remember, defendant properly and timely requested dismissal. Her only "silence" was her failure to jump up and down at the hearing itself and scream that the court's order violated Section 1007. But since when does that count as a waiver? Is it a waiver when the trial court grants a summary judgment motion and I don't say "Hey, that's wrong" at the conclusion of the hearing? Is it waiver when the court improperly sets a trial to be heard in Santa Clara County if you don't orally object immediately after the court orally issues its order? Since when?

Yes, it's waiver when you don't make a timely objection. But, before this case, we didn't require an objection at the actual hearing itself -- an objection that you'd not even necessarily know to make, as it might well be an error (as here) that you didn't anticipate and the legal invalidity of which you were unaware. Add to all of this the fact that Sections 1007 and 1008 are mandatory provisions anyway, and hence ones which might well be incapable of being waived.

In any event, at a minimum, we shouldn't stretch to find waiver. Which, with all due respect, Justice Mallano does here.

P.S. - Full disclosure. I personally know the defendant, Randa Osman. She's a partner at the law firm at which both my wife and I once worked, and was a co-worker for a time. And I also like and respect her. But -- and I'm being totally honest here -- I didn't even realize that this was her case until after I was halfway through writing this post. My reactions have nothing to do with the fact that it's Randa. They're instead my honest reactions to the Court of Appeal's holding.

People v. Sanborn (Cal. Ct. App. - Nov. 9, 2005)

There are two interesting things about this opinion. First, it's yet another in an infinitely long line of cases in which the defendant gets sentenced to (in essence) death in prison for molesting children. Infinitely. Long. Line. Sanborn is 34, and is sentenced to a determinate term of 24 years plus two consecutive terms of 12 years. So enjoy dying behind bars. Oh, by the way. They love child molesters in there. It'll be a great series of decades. If you somehow manage to survive them. Opinions will vary on whether that's the appropriate punishment. But it's definitely common.

Second, there's actually a double jeopardy claim here of a type I've never seen before. The jury begins to deliberate, and these deliberations last a long time. The jury eventually reaches a verdict on some (but not all) of the counts, but then there's a death in the family of one of the jurors, and she's excused. At which point the judge instructs the jury to rip up the verdict forms they've already completed and start anew. Which they do, and then convict the defendant on a ton of counts. In response to which the defendant argues that this procedure (in which he acquiesced) violates double jeopardy, since once the jury reached a verdict on the counts on which they agreed, jeopardy attached. So the post-ripping-up verdicts were impermissible.

Justice Hollenhorst rejects this claim, which seems right, though I might have articulated different reasons than his. Which actually puts it favorably, since I think that he doesn't really have any actual reasons, but instead merely discusses and distinguishes precedent, rather than expressing any actual policy or doctrinal arguments. My sense is that the verdicts are final only once they're accepted by the judge, or at least read in court, and hence the ripped-up verdict sheets don't count. Still, it's an interesting double jeopardy argument. And if the jury had indeed found the defendant not guilty in these initial verdict sheets, I'd have a tough time arguing that double jeopardy didn't attach, even though that still seems the right result. This case, however, doesn't present such a pristine and difficult case. Still, it's an interesting -- and novel -- issue. One I hadn't even thought about before, much less confronted in the real world.

One other thing. Does anyone really believe -- honestly -- that juries even pretend to follow instructions to begin deliberations anew once an alternate is seated? Come on. You know that it's pretty much a total fiction that they start deliberations all over. And if you didn't know it before this case, definitely go ahead and check out what happens here. The jury deliberates for eight full days without reaching a verdict, asking for some testimonial readbacks and the like. Then the alternate comes in and the jury instructed to deliberate anew. At which point the jury takes all of three and a half hours to reach a verdict on ten-plus counts. Oh yeah. I'm really sure they totally started over. Definitely. But Justice Hollenhorst doesn't care. It's a black box. Which means we just pretend that they follow our instructions. Even when we know that's a total lie.

Anyway. Enjoy prison, Mr. Sanborn. Good luck on your eventual habeas petition. Assuming, of course, you can find someone to do it for you. Without screwing it up. And without getting iced in prison first.

In Re Rains (9th Cir. - Nov. 8, 2005)

Crickey. Sure, we're toughening up on the ability of debtors to file for bankruptcy. But I never knew that it would be this tough.

Omar Rains was (indeed, according to the State Bar, still is) a California attorney. Things apparently do not go well for him, so he decides to go BK. There's an adversary bankruptcy proceeding that goes to mediation, and that process lasts all day. It's a tough negotiation, but eventually, at the end of the day, the parties enter into a settlement agreement. The contract requires Rains to pay $250,000 -- no small amount -- to the trustee, but Rains agrees to do so, and signs the settlement agreement.

Which sucks for Rains, of course. But things are going to get much, much worse for him. Because immediately after the mediation, Rains -- whose head is pounding -- drives himself to the emergency room, at which point he's promptly admitted to the hospital and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemmorage, and stoke. Yikes. He undergoes surgery the very next day and is in the ICU for a month before eventually being discharged. Guess he should have skipped the mediation, eh?

Thereafter, Rains tries to get out of the settlement agreement. Claiming -- quite plausibly, in my view -- that he was actively having a stroke during the negotiation and execution of this agreement. And he backs up this claim with the testimony of various medical professionals that, given what was medically going on in his head at the time, Rains would have been "without the mental capacity to engage in business affairs on September 23, 2002 [the date of the mediation] . . . and for a number of days on each side of that date." Which, again, I find fairly plausible. Let me say, for the record, that if I'm ever having a stroke, I hope to God that I'm not doing so during a day-long mediation, much less one at the end of which I'm going to agree to spend a quarter million bucks. This may come as a shock, but I may not be thinking entirely clearly during such a process.

What I think, of course, doesn't matter. Because the bankruptcy court concludes that Rains had the mental capacity to understand and enter into the settlement agreement notwithstanding his stroke, the district court agrees, and the Ninth Circuit -- probably rightly -- concludes that such a factual finding is not "clear error".

Still. What a crappy day for Rains. Makes my own very worst days sound like an utter cakewalk.

U.S. v. Norris (9th Cir. - Nov. 10, 2005)

So, I ask myself, exactly what have the Ninth Circuit and California appellate courts been up to during my sojourn on the East Coast? No good, no doubt. Heartless bastards.

Just kidding. Actually, the more I think about it, the more I'm pretty sure that, in my absence, these courts simply continued to churn out published opinions that -- maybe 90 percent of the time -- I agree with, and even more unpublished opinions that I'd agree with as well if I could somehow find the time to read them all. Sure, maybe the opinions could occasionally reason things out a bit better, or be written more persuasively. But, honestly, I probably find myself smiling and nodding my head in agreement much, much more than I find myself screaming at the computer screen at what I'm reading. It's just that the ten percent or so of cases in which I think someone's made a horrible error -- or the five percent of cases that are really impressive -- make for more interesting reading than the remainder. So those are the ones about which I generally post.

Then there are cases like this one, which are really neither bad nor good, but merely interesting. The panel is Wallace, Rawlinson, and Bybee. Not exactly a dream panel if you're a criminal defendant, eh? No. Not at all. But the first paragraph of Judge Rawlinson's opinion quickly summarizes the panel's decision, which reverses one of the defendant's convictions on the ground that his confession was insufficiently cooberated.

What?! A panel like this reversing a criminal conviction on insufficiency grounds?! When there's been a confession?! You might well ask: What sort of apostasy has suddenly overcome these members of the panel? Since when do they reverse on such grounds? Is the conviction in this case really so egregiously wrong that even these three can unanimously agree to reverse on insufficiency grounds?

Well, maybe. Perhaps. Though the panel also upholds the defendant's other two convictions, and also does so in a manner that slyly (and, honestly, with a fairly lame amount of differentiation from precedent) undercuts Miranda. Check out, for example, how quickly and obliquely the panel talks about the "polygraph" issue -- the central argument in the case, in my view -- at the end of Section A. Plus, I don't think that I'm overly cynical to think that the panel is perhaps more willing to reverse one of the defendant's three convictions here in light of the underlying sentence issued by the district court: concurrent 15-year terms (for child molestation) on each of the three counts. Which means that even with one of the convictions gone, on remand, the panel can be pretty sure that the defendant is likely to receive the exact same -- very long -- sentence. That helps, eh?

P.S. - What took so long on this one?! The opinion deliberately reads like it's a very simple case, and one with obvious answers. And it's a fairly short one: only 13 pages. But the oral argument in this case was all the way back on February 7, 2005, and the opinion issued over nine months later, on November 10, 2005. Not what you typically see in cases like this. Don't see why the opinion took longer to gestate than an entire person.

Welcome back.

Brief Sojourn

I'm in D.C. during the first part of this week, with very limited internet access. And even if I had it, all of my time here is going to be spent preparing for the oral argument in front of the Supreme Court on Wednesday. As a result, I shan't post anything until Thursday. But rest assured that I shall be back later this week. With bells on.

Parkview Villas Ass'n v. State Farm (Cal. Ct. App. - Nov. 2, 2005)

I like it. Justice Perluss does a good job in this opinion, in my humble estimation, of finding a middle ground in the continuing disputes regarding the contours of the "Golden Rule" of summary judgment in California: that anything not contained in the separate statement of undisputed facts "does not exist" for purposes of the motion. Justice Perluss -- with substantial input from amici -- holds that, yeah, that rule is the rule, but that this rule isn't really as harsh as it might otherwise appear. As applied to this case, Justice Perluss finds that the trial court shouldn't have granted summary judgment against a party who prepared a separate statement of material facts in opposition to the motion and who included in its separate statement a list of the evidence upon which it relied but whose citations therein to this evidence was, shall we say, somewhat vague (e.g., did not cite particular lines of particular paragraphs). Sure, if they hadn't done any separate statement, or had not cited any evidence therein, maybe we would grant summary judgment against them on the grounds that their alleged evidence "didn't exist". And, yes, if their citations were so vague that we couldn't even get a hint as to the evidence to which they were referring, then, yeah, it's not the court's duty to pour through all of the voluminous papers to find the relevant evidence.

But Justice Perluss is right, in my view, that this wasn't the case here. And, as a result, that a remedy less than granting summary judgment was appropriate. The trial court could have granted a continuance and made the nonmoving party refile a proper separate statement. It could even have sanctioned the party as well. But we have (rightly) come a long way (, baby) from the type of procedural pitfalls that proved fatal in the 1800s. We prefer adjudication on the merits. When we can solve pleading or motion or related problems with judicial remedies shorter than civil death, we should generally prefer them. So I found Justice Perluss' decision in this case particularly persusasive and reasonable.

It's an important case on an important and recurring topic, and also a good example of the kind of common sense judicial reasoning that I increasingly appreciate. Just what you'd expect from any former member of the Harvard Law Review, eh? (*wink*)

Daniels v. Woodford (9th Cir. - Nov. 2, 2005)

Sometimes you can tell how a case is going to come out by how the matter is characterized in the very first sentence of the opinion. Even when that sentence is incredibly short. Here's the first line of this one: "Jackson Chambers Daniels, Jr. is a sixty-six year old parapalegic on California's death row." That's a pretty strong clue regarding what the opinion is eventually going to decide, no? Especially when the panel consists of Judges Pregerson, Ferguson, and Betty Fletcher.

Anyway, as you might imagine, after this opinion, Jackson Daniels is no longer on death row. Indeed, this is a somewhat unusual case because the lower court had made the traditional anti-death penalty move -- affirming the conviction but reversing the death sentence -- but the Ninth Circuit here does something different (and more rare), and both affirms the reversal of the death sentence as well as reverses the underlying conviction. Not something that you see every day. Even from this panel. Especially in a case involving the murder of two police officers. So, for only for those reasons, the opinion is worth reading.