Friday, June 30, 2006

Firestone v. Hoffman (Cal. Ct. App. - June 29, 2006)

Lawyers. Who doesn't love 'em?

Let's see what the lawyers do in this case. First, there's Peter Hoffman, a graduate of that august institution known as the Yale Law School. You'll have to read the entirety of the opinion to see what Hoffman does, both in the underlying transaction (he's the defendant) and as his pro per appellate counsel. Suffice it to say that Hoffman hardly comes out smelling like a rose. (Parenthetically, Justice Rothschild mentions in footnote 9 that Hoffman has a law degree from Yale, but says that Hoffman hadn't practiced law "for many years". That's true, since Hoffman has been suspended from the California Bar since 1994, and is not currently eligible to practice law. Notwithstanding this fact, Hoffman's co-counsel on appeal consists of various lawyers from the law firm of Gibson Hoffman & Pancione. Who's the "Hoffman" in GHP? You guessed it. None other than Peter Hoffman himself.) Justice Rothschild expresses a fair amount of displeasure with Hoffman in footnote 8, but doesn't go into it much, in large part because Justice Rothschild states that "Hoffman is not a member of the bar and hence is not subject to the Rules of Professional Conduct." But that's wrong: Hoffman is a member of the Bar, and is subject to the Rules, even though he's not currently entitled to practice law. He's a Member but not a Lawyer (to use the language of Rule 1-100). Maybe change the opinion on that one, Frances.

Then there's the counsel for the other side, led by Jeffrey S. Kravitz (formerly of Lord, Bissell & Brook, and now at Silver & Freedman) and Keith G. Wileman (at Lord Bissell). You'll have to read the final three pages of the opinion for the complete details regarding how Mr. Kravitz -- a three-time "Super Lawyer" in Los Angeles Magazine -- and Mr. Wileman (who is AV-rated and has "never lost a trial") are slammed. But slammed they are. Badly. Justice Rothschild writes three pages about how counsel repeatedly misstated the law as well as made material misrepresentations of fact. Not the kind of stuff you want on your permanent record, guys.

So nobody's coming out clean in this one. And the lawyers aren't looking good at all.

Thursday, June 29, 2006

Anthony v. Mazon (Cal. Ct. App. - June 27, 2006)

I don't usually talk about -- or even read -- the many, many unpublished opinions issued by the California Court of Appeal. It's hard enough to read all the published ones front to cover. Not to mention the Ninth Circuit as well.

But I'll depart from that typical practice today. Because a "longtime reader, first time e-mailer" sent me a copy of this opinion by Justice Moore. When the first paragraph of the opinion reads as follows, I'm clearly under a moral (if not legal) duty to reprint (and thereby disseminate) it:

"This case is somewhat akin to deciding a dispute between Darth Vader and the Borg, or if you prefer a classical metaphor, Scylla and Charybdis. There is no justice to be done here. The parties conspired in a despicable scheme to hide assets during marital dissolution and child support proceedings. The defendants retained those assets; the plaintiff sued to get them back. Both now rely on arguments relating to unclean hands, the sanctity of the judicial process, and public policy, all of which are laughable, considering the circumstances."

Classic. I love it. Read the rest of the opinion for the details. But the first paragraph alone is awesome.

Way to go, Justice Moore. You rock.

People v. Mason (Cal. Ct. App. - June 27, 2006)

This opinion by Justice Turner correctly disposes of an otherwise-routine carjacking case. It's one of many, many pedestrian criminal cases. Apart from one of the players, the only interesting thing about the case is the profound fortuity of the fact that a police car was driving down the street (and flagged down by a witness) at the precise time the carjacking was taking place. But for that fact, I have no doubt that not only would the perpetrators have gotten away with the carjacking, but that they might well have also seriously injured -- or even killed -- the victim.

That's the good news, especially for the victim. The bad news -- although it admittedly completely pales in comparison -- is that the opinion is published. The victim, Jackie Long, is an actor, a fact briefly mentioned in the opinion. Jackie has only been in the business around four years, and has played fairly minor roles in a half-dozen B- and C- movies and shorts, mostly straight-to-video or modern blaxploitation flicks. So he's not at all famous -- or even well-publicized -- for those roles. By contrast, now the whole world gets to read what Jackie (understandably) says when he's carjacked by multiple gun-wielding carjackers as he leaves a private party in Hollywood: "Ya’ll can take everything, help, help, help, ya’ll can take everything you want."

I'm sure that Mr. Long would rather be remembered for other lines. And, perhaps, he one day will be.

For what it's worth, I wouldn't have published this one. It's a pretty straightforward and unremarkable case, both factually and legally. And I'm sure that Mr. Long would be happy to see it fade into obscurity.

Wednesday, June 28, 2006

Quiroz v. Seventh Avenue Center (Cal. Ct. App. - June 27, 2006)

No kidding.

Justice Duffy says the following in the second sentence of this opinion: "While the underlying facts alleged in the lawsuit are heartrending in their human dimension, from a legal standpoint, the case is a procedural train wreck." If anything, that's an understatement. It takes Justice Duffy twenty pages to describe the procedural miasma that transpired in the trial court: a neverending process of mistake, confusion, and error on the part of the plaintiff -- and, sometimes, the trial court -- that ultimately resulted in the dismissal of a lawsuit under the Elder Abuse Act arising out of the death of Gilbert Quiroz. Which, as a result of these procedural errors, Justice Duffy (properly) affirms.

It's important not to mess up the procedural stuff. Really important. Really, really freaking important. If you don't know what you're doing, find someone who does. 'Cause it matters. A lot.

Lesson for the day.

U.S. v. Jernigan (9th Cir. - June 26, 2006)

This is a good opinion, on two different fronts.

First, the majority opinion (written by Judge Thompson) and the dissent (written by Judge Betty Fletcher) differ substantially regarding their confidence in eyewitness testimony. The majority holds that any Brady error would be harmless in light of the eyewitness identification of the defendant by several witnesses. This was essentially the only evidence at all against the defendant -- who was convicted of bank robbery -- but the majority is convinced that the defendant was clearly the perpetrator based upon this testimony. By contrast, Judge Fletcher is much less convinced of the accuracy of such testimony, particularly in light of the absence of any supporting evidence and the fact that someone else -- who looked a lot like the defendant -- had been convicted of nearby bank robberies, raising the distinct possibility of misidentification.

Judge Thompson and Judge Fletcher both do a good job of supporting their positions. It's a very, very good case in which to assess -- in a concrete fashion -- how much one believes in eyewitness testimony.

Second, there's also a more subtle difference in judicial approach. For Judge Fletcher, the possibility of an innocent person being incarcerated is an extremely big deal. So her approach is to say: "Grant a retrial and let the jury hear the evidence about the alternative perpetrator. If they convict, fine. At least we'll know that the jury had all the evidence. By contrast, the risk of having convicted an innocent person here is too great." By contrast, for Judge Thompson, efficiency concerns are paramount. His approach basically says: "Look, no trial is perfect, and I'm pretty convinced the defendant is guilty. No need to spend the time and money on a new trial that I think will come out the same way (or, worse still, if witnesses may have died or become stale, might result in an erroneous acquittal)."

Two very competing approaches. A nice, relatively short, and informative and significant set of opinions. Definitely worth reading.

Tuesday, June 27, 2006

In Re Baby Boy H. (Cal. Ct. App. - June 26, 2006)

In order to preserve the confidentiality of the parties, in family law cases, the Court of Appeal uniformly uses initials for last names. Which makes sense. Similarly, when referring to the parties, the Court of Appeal often refers to them by their first name, sometimes with a perfunctory footnote that explains that no disrespect is intended by the practice.

Which is all well and good. But something struck my eye in this case that I hadn't ever seen before. When you refer to people in this manner, sometimes the sentence you drafted can have more than one meaning. So, for example, check out this sentence, in the middle of page four of Justice Vogel's opinion:

"Jesus appeared at the November 3 hearing and a lawyer (Eric Wexler) was appointed to represent him."

Jesus appeared at the hearing?! Wow. That's gotta be a shock to the parties, huh? I mean, I've heard about "intervention" in civil lawsuits, but this really takes "intervention" to another level. Plus, since when does Jesus need an appointed lawyer? What's next: A guardian ad litem for God?

Oh, wait. I guess the meaning of the sentence depends a lot on how you pronounce the word. Jee-Zhus. Hey-sus. Now I get it. My bad.

Which, by the way, clarifies the meaning of some of the other sentences in the opinion as well. This sentence, for example: "There followed a debate about whether published notice to the 'identity unknown' father was sufficient notice to Jesus." Sort of an immaculate conception reference in an era of due process, no? Or this one: "[T]he court faulted Jesus for not visiting Baby V. Mr. Wexler explained that Jesus had wanted to visit but the Department would not permit it." A separation of chuch and state thing, no doubt.

Randomly enough, in the midst of a discussion of Jesus and his potential standing standing problems in the case, the trial court had the following insight: "You know, Casper the Friendly Ghost, identity unknown, does not have standing. We don't know who it is. There's no real person. This may be the gentleman; it may not be the gentleman." Pretty neat to compare the existence or non-existence of Casper the Friendly Ghost to a similar problem with Jesus, huh?

I won't belabor the point. There are lots of other unintended meanings as well, but I'll leave you to them. In the future, maybe keep using his "official" name -- Jesus H. -- thoughout the opinion. Though that still leaves us with the possibility that we're talking about, as my father used to say, "Jesus H. Christ".

Forget it. I guess we're stuck.

Ritchie v. United States (9th Cir. - June 26, 2006)

You get some crazy complaints filed in federal court. And, usually, they're utterly frivolous. So, for example, when I hear that a guy filed a lawsuit that says that the CIA drugged his drink, which made him go out and rob a bank, my general reaction is: "Cuckoo Alert." And, usually, I'd be totally and completely right.

That said, read this opinion by Judge Kozinski. Especially the (much-too-easily-overlooked) final sentence in footnote 11. I can't believe that I'm saying this, but, after reading the entire opinion, my sense is that it's quite possible that the plaintiff was indeed drugged by the CIA at a Christmas office party in 1957. Which is pretty shocking.

Mind you, I also agree with Judge Kozinski's decision to affirm the dismissal of the complaint. Even if I was of the view (and I am) that it's very possible that the plaintiff was involuntarily drugged by the CIA, the district court made a factual finding that plaintiff hadn't proven his case, and that finding isn't clearly erroneous. I am not confident at all that the district court got it right, but given the state of the evidence, I think that's a very plausible (and reasonable) finding.

Still, I feel legitimately bad for the plaintiff. And utterly stunned at our government. Don't skim this one. It's a must-read.

Monday, June 26, 2006

People v. Wells (Cal. Supreme Court - June 26, 2006)

It's not surprising that this one is close. The issue is whether an anonymous 911 tip that a particular car is weaving all over the highway is sufficient reasonable suspicion of DUI to permit the police to stop the car, even though the police don't themselves see anything wrong that would justify a stop. We know from the Supreme Court's opinion in Florida v. J.L. that an anonymous tip that a particular person at a bus stop is carrying a gun doesn't constitute reasonable suspicion for a stop. What about here?

It's an issue that has divided the various state and lower federal courts. And now the California Supreme Court weighs in. Holding, in a 4-3 opinion, that the anonymous tip is indeed sufficient to justify the search.

Justice Chin writes the majority opinion, which is joined by Chief Justice George, Justice Corrigan, and -- interestingly -- Justice Croskey (of the Court of Appeal, Second Appellate District), sitting by designation. Justice Werdegar writes the dissent, joined by Justices Kennard and Moreno.

It's not every day that you have the swing vote in the California Supreme Court sitting by designation. So that's something worth noting. Plus, it's also worth mention that, next time you want to get a friend (or an enemy) busted -- or merely harassed -- it'll be sufficient simply to call in an anonymous report that they're weaving all over the road. That's good enough for a stop.

A tough case.

Anderson v. Warner (9th Cir. - June 26, 2006)

We've come a long way since Rodney King, haven't we?

Charles Warner is with the Mendocino County Sheriff's Department (and is the jail commander). Warner is slowly driving his vintage pickup truck to the Redwood Valley Parade when the guy behind him, Thomas Anderson, is momentarily distracted and rear ends Warner's truck. At which point, allegedly, our esteemed law enforcement officer, Warner, promptly gets out of his truck, walks back to Anderson's car, opens the car door, and starts punching Anderson in the face. And to keep bystanders from interfering, Warner and his wife (again, allegedly) essentially tell the crowd: "Don't worry. He's a cop. He's punching this guy for good reason. Disperse and go your merry way." Which they pretty much do.

Anyway, after Warner's done beating the crap out of Anderson, and once the fire department starts to come, Warner allegedly tells Anderson: "I'm a police officer. Don't say anything. I'll fix it. I'll work it out."

Well, Anderson eventually sues Warner for violating his civil rights, and Judge Willie Fletcher (correctly) holds here that summary judgment was improperly entered in favor of Warner, who may well have acted under color of law by using his official position to ensure that the crowd didn't interfere with his assault. Judge Fletcher simultaneously (and also correctly) affirms the grant of summary judgment in favor of Mendacino County and the Sheriff's Office, who aren't properly held responsible for Warner's assault.

I really, really hope that Warner got busted for this. It sounds to me -- from what pretty much every one of the witnesses testified -- that Warner was completely out of control, and utterly at fault. He should have been criminally charged with assault and battery. And certainly fired from his job. I don't want a guy running my prison who starts hitting people in the face simply because they were momentarily distracted and hit a car. I want a guy who's much, much more calm than this. And, P.S., who doesn't -- pretty much ever -- hit innocent people in the face.

Friday, June 23, 2006

Marathon Entertainment v. Blasi (Cal. Ct. App. - June 23, 2006)

There's nothing particularly legally exciting about this case. But it does involve a quasi-celebrity -- Rosa Blasi (the star of the TV series "Strong Medicine," which I admit I had never even heard of before this appeal -- who's being sued by her personal manager. Which is something you don't see every day. So I thought I'd mention it. If only for the Hollywood types out there.

Personally, I don't really understand what personal managers do for their ten (or even, as here, fifteen) percent. Justice Rothschild explains it a little bit. But as far as I can tell, they're simply enablers, and do the stuff that people should do for themselves. Ten percent for that? Seems a bit high.

But what do I know. Anyway, there's some potential overlap between what a personal manager does for ten percent and what a talent agent does for fifteen percent, and since you have to have a license for the latter (but not the former), sometimes you have fights. Like here. Which only gets more complicated when you have difficult severability issues and disputes about whether particular unlicensed conduct by authorizes talent to terminate the manager's contract.

A Hollywood fight. In the end, Rosa ain't out of the woods yet, and the Court of Appeal reverses the grant of summary judgment on her behalf. So the fight goes on.

Thursday, June 22, 2006

CTC Real Estate Svcs v. Lepe (Cal. Ct. App. - June 21, 2006)

Steal my identity. PLEASE!

Listen to this one. Someone steals Aurora Lepe's identity and uses it to buy a house in her name. The thief gets a loan (again, in Lepe's name), but (not surprisingly) eventually defaults on the payments. So the bank forecloses.

Pretty typical, right? Except listen to this wrinkle: When the bank sells the house, due to rising property values, the proceeds of the foreclosure are more than -- a lot more than -- the total amount of the loans on the property. So everyone gets paid the full balance of their accounts, including their costs, and there's still over $50,000 remaining.

The trial court gives the excess proceeds to the Los Angeles County surplus fund. Aurora Lepe appeals, and asks Justice Mosk to give the $50,000 to her. And he does! As we used to say in the 70's: "Joker, Joker, JACKPOT!!"

Sure, identity theft is no fun. But lemme tell ya: $50,000-plus goes a long, long way towards easing the pain!

So if anyone wants to steal my identity and use it to buy appreciating property, please don't hesitate to do so. Indeed, send me an e-mail and I'll promptly send you my social security number and anything else you need. Serious inquiries only. :-)

People v. Misa (Cal. Ct. App. - June 21, 2006)

Vince Misa hits Kevin Hoock -- hard -- once with a golf club, striking his head (apparently because Hoock had allegedly stolen some of Misa's property after using methamphetamine with him). After Hoock falls to the ground, Misa softly pokes Hoock with the golf club several times, screaming things like "You don't steal from me or my old lady." And doesn't call 911 because he's worried -- entirely accurately -- that he'll get in trouble if he does. Around four or five hours later, after Misa leaves, Hoock eventually gets taken to the hospital.

That's the crime. For which Misa gets convicted of torture under Section 206 of the Penal Code. And, on that basis, sentenced to life in prison. A sentence which was then doubled under the Three Strikes Law. (So I guess Misa has to spend two lives in prison. Talk about bad karma.)

Justice McIntyre affirms. It's torture, he says. Torture. Not a result you'd necessarily intuit, eh?

Wednesday, June 21, 2006

U.S. v. Weber (9th Cir. - June 20, 2006)

How much do you want to know about penile plethysmography? This is a family blog, so I won't tell you -- even though I'm dying to -- precisely what the practice entails. Let's just say that if you're a man and we're interested in learning if you are sexually attracted to, say, little boys, we strip you down, put a measuring device on a certain part of your body, show you pictures of various things (including little boys), and then measure whether (and how much) a particular circumferance changes in response to various pictures. Get it? Hopefully I don't need to draw an actual picture. (I could insert a link here, but I ain't gonna do it.)

Anyway, if you're interested, this opinion by Judge Berzon is the definitive work on the subject. The case is about whether a defendant convicted of possession of kiddie porn can be ordered as a condition of supervised release to participate in penile plethysmography. Judge Berzon says: "Maybe". This may seem facile, but she does an outstanding job of both reviewing the practice and of assessing how the various (and very important) interests at stake should be weighed in deciding whether an order to participate in penile plethysmography is permissible. It's really a great, and comprehensive, opinion. And also interesting. At least to me. I never knew that there was such a well-established body of literature on the efficacy of putting little thingies about your thingie. Or how to fake out the thingie. And lots of other neat, sex-related stuff as well. But now I do. And so can you.

P.S. - Judge Noonan concurs to say that the answer should be "No" rather than "Maybe"; in other words, that an order compelling penile plethysmography should never be allowed. Which is plausible. But don't forget that Judge Noonan is super darn Catholic. (Like me, I might add. Except for the super part.) As a result, his attitude towards the practice is, I think, more than a little bit affected by his global attitude towards various related subjects. So it wasn't surprising at all to me that he wouldn't allow a thingie to be strapped to your thingie and shown various pictures to see (and measure) what transpires.

Which -- like Judge Berzon's view -- also seems entirely plausible to me; both positions seem very reasonable. But, sadly, this also leads Judge Noonan to include -- in his very short concurrence -- a line like this one: "The procedure violates a prisoner's moral integrity by requiring him to masterbate." I can see why that would be a big deal to Judge Noonan. But the predicate assumption is simply flatly wrong. Yes, the machine has to be calibrated. Which means, yes, you do have to get the defendant aroused. And, yes, one way of doing so is by tactile stimulation.

But there are other ways as well. The practice doesn't "require him to masterbate." Again, it's a family blog, so I ain't gonna list the alternatives. But let me just suggest that one of them -- at a minimum -- is to think sexy thoughts. Most of us can "calibrate the machine" -- if you know what I mean -- without the need to resort to the topic of the 1991 Divinyls song. At least I can; hopefully, until the day I die.

Anyway, a definite must-read for those interested in the measurement of the nether regions.

Brown v. Lambert (9th Cir. - June 19, 2006)

I complimented this opinion by Judge Kozinski -- effusively, I think -- when it first came out in December of 2005. To give you a taste, here's what I wrote in the first paragraph: "What a great opinion. Really, really impressive. The kind of opinion that I wish I could write, but totally can't. Short, persuasive, concise, to the point, and complete. And even a tiny bit funny. Wow."

You might think that, with such a predicate, the opinion couldn't get any better. I certainly did. But we'd both be wrong.

Someone (one of the conservatives) called for an en banc vote, since Judge Kozinski was reversing the death penalty. And didn't win the vote, but four of the "ayes" -- Judges Tallman, O'Scannlain, Kleinfeld, Callahan, and Bea -- dissent from the denial. And Judge Tallman writes the dissent.

And gets crushed by Judge Kozinski. Judge Kozinski amends his opinion to respond to the dissent. And an awesome opinion gets even more powerful. Read the footnotes in this one. To say that Judge Kozinski wins the resulting debate with Judge Tallman is a total understatement. It's like a boxing match between Mike Tyson and me. Ugly. Totally one-sided. A trainwreck of a crush. Avert ye eyes, lest ye be horrified. Yowza.

The only place where I think Judge Kozinski gets it wrong is in footnote 9. Based upon what Juror Z said, I'm pretty confident that he wasn't more pro-death penalty than your average juror. And virtually certain -- and I'd bet you $1000 on this, Alex -- that Judge Kozinski is simply wrong when he writes that "[D]efense counsel declined to object because he was glad to get rid of Juror Z. . . . Defense counsel must have thanked his lucky stars when the prosecutor bumped Z." Maybe -- and this is something different than what Judge Kozinski had in mind -- the failure to object was a case of sandbagging by the defendant. But I actually doubt it. Instead, I think defense counsel wanted Juror Z on the panel and at no time "thanked his lucky stars" due to a belief that the prosecutor had just bounced a pro-prosecution juror.

But, apart than this minor error (of judgment, not of law), this remains a stellar and uniformly fantastic opinion by Judge Kozinski. And one that only got better as a result of the response to the dissent.

Great job, Judge Kozinski. Simply outstanding.

P.S. - Indeed, I'm so proud of Judge Kozinski right now that I'm not going to reveal the various -- fascinating -- things he said to my pregnant wife last week during a reception in Canada. Way to go, my man.

Tuesday, June 20, 2006

Hart v. Parks (9th Cir. - June 19, 2006)

This opinion (by Judge O'Scannlain) is interesting if you love lawyers. Or, especially, if you hate them. For two different reasons.

First, I love how the attorney in the underlying transaction was involved therein. The case is about the (well-publicized) theft of Oscar statuettes back in early 2000. As you may recall, someone stole all of them from a truck as they were being shipped to Los Angeles, which prompted the Academy to go ballistic as well as to offer an ever-increasing award. The Academy eventually got the statuettes back, and, in the process, the police made a couple of arrests. One of the arrestees was Anthony Hart, who eventually pled to receiving stolen property, and who was potentially guilty of even more. And, showing chutzpah, he promptly sues the police for false arrest. Which in turn leads Judge O'Scannlain to issue this opinion, which affirms the district court's grant of summary judgment to the LAPD.

What's most interesting about this story -- a fascinating tale itself -- from the perspective of legal ethics is how Daniel Pearson (a sole practitioner in Glendora) fits into the picture. When the Academy offered a reward for the return of the statutes -- a reward that had only been publicized to the employees of the trucking company (the thought was that one of them was the thief) -- Pearson called the trucking company and said that he had a client who knew the location of the statuettes and wanted the $25,000 reward. The police -- no dummies -- figure that Pearson's client was the one who stole them, and is now looking to cash in. Which makes sense; after all, it's not like Oscars are easy to sell in a pawn shop, and even if you could, you're not going to get $25,000 for them. Which perhaps was one of the central points of the reward in the first place: to get the thief to turn over the goods for a healthy reward.

The thing is, Pearson thinks he's cagy in saying that a client has retained him and wants the reward; that way, they won't know who the client (and hence potential thief) is, right? Attorney-client privilege and stuff like that. Well, wholly apart from the privilege issue, that particular plan only works if you keep your client's identity a secret. Which Pearson does. Sort of. Except, if you're trying to keep your client's identity a secret, after you phone to get the reward on his behalf, let me give you a important tip: Don't promptly drive from your office to your "anonymous" client's home. Or, if you do, how about doing a little counter-surveillance, or at least some evasive driving. Because, Mr. Pearson -- and I know this will shock you -- the police are tailing you. See that car that keeps following you? That's the fuzz. Who -- again, shockingly -- figure that's how they'll find out who your client is. So, when you do indeed drive to your client's house; well, let's just say, the jig is utterly and completely up.

Oh, one more thing. Let's say you're Anthony Hart. You work at the trucking company from which the Oscars were stolen. You've got prior arrests and convictions for -- you guessed it -- theft. And the police have gotten tips that you were the thief. Notwithstanding all of this, let's say you want to retain an attorney to get the reward on your behalf without the police discovering your identity. Let's see: Who should you retain? Remember: It's very important that the police not figure out who you are. Pick someone out of the Yellow Pages? Sounds good. Walk into a random attorney's office off the street? Seems reasonable. Hey! I got it! Instead of doing either of those, why not use your brother-in-law! There's the one attorney in the universe who can easily be linked to you and your identity thereby discovered. Yeah, that's the ticket!

Needless to say, Hart chooses this last option. Brilliant. By both attorney and client.

Anyway, they bust Hart, the Academy gets the statuettes back, and everything is fine. Even for Pearson. who (as far as I can tell) never gets punished or disciplined for his role in the transaction. (Judge O'Scannlain's opinion makes Pearson sound a little sleazy -- as well as only marginally competent -- but that's about it.) There's an interesting question here whether you should represent your brother-in-law in attempting to get a reward for the return of stolen goods when there's a fair chance that (1) he was the one who stole them, (2) he might well be arrested for the offense, and/or (3) they can discover his identity as a result of your representation. My take on the issue: I wouldn't have done it. By a fair piece.

Judge O'Scannlain is actually fairly nice to Daniel Pearson. By contrast, you should definitely see what Judge O'Scannlain repeatedly says about Hart's counsel on appeal, the (in)famous Stephen Yagman. Let's just say it's nothing good. At all. I won't isolate any of the particular insults; they're simply too pervasive. You get a keen sense from virtually every page of the opinion that Judge O'Scannlain doesn't like Yagman. And potentially for quite good reason, not merely because their politics are (undeniably) divergent.

Two interesting lawyers here. None of whom come out smelling particularly like a rose.

Monday, June 19, 2006

Independent Energy Producers Ass'n v. McPherson (Cal. Supreme Ct. - June 19, 2006)

I like this. It's a nice intermediate solution to an alleged problem.

The California Supreme Court has, in recent years, increasingly been slammed (by some) for issuing overly long opinions. In response, the Court has, to a fair degree, cut down on length. This case is no exception to the contemporary trend, and the unanimous opinion here is 32 double-spaced pages. Not too long, though not perfunctory either.

But what the Court also does -- in part, perhaps, to make the opinon more readable, or even skippable -- is to start the opinion with a four-page summary of the contentions and arguments at issue in the appeal, as well as the Court's conclusion. So, basically, if you're intrigued, great; read on. If not, you've only done four pages of reading, and you're essentially hip as to what the Court decided and why.

Sort of a Cliffs Notes version of the opinion embedded in the opinion itself. And, since I'm incredibly lazy, I like that. Sure, I read the rest of the opinion as well, even in an only-marginally-interesting case like this. But I'm probably the exception rather than the rule. I bet a lot of people read the "Executive Summary" and move on. Which is fine. Better than reading nothing, eh?

P.S. - The actual case itself is about the validity of a pre-election challenge to a proposition (Proposition 80) that didn't pass anyway. The actual case is moot, but the Court -- rightly, in my mind -- decides to adjudicate the issue in order to assist future (similar) preelection challenges. And -- again, in my mind -- gets the case right on the merits.

So good job all around, as to both style as well as substance.

Thursday, June 15, 2006

WFS Financial v. Superior Court (Cal. Ct. App. - June 15, 2006)

I've been reminded today that I'm (allegedly) "a dork." And yet, notwithstanding both that fact and the issuance of five published opinions today by the California Court of Appeal (and two by the Ninth Circuit), I can't find a single thing especially interesting -- or worth talking about -- in any of those seven opinions.

This opinion by Justice Cantil-Sakauye is marginally representative of the lot. A 27-page opinion about whether particular disclosure requirements established by the Rees-Levering Automobile Sales Act, Cal. Civ. Code sects. 2981 et seq., are preempted as applied to loans made by federal savings associations, including a particular subsidiary of Western Financial Bank. Talk about exciting! I was trembling with anticipation as I turned page after page after page until I finally understood why the answer was indeed "Yes." The resulting enlightenment has left me spent. My life is now complete.

Oh, sure. You can read the other opinions issued today as well. Like this one by Judge Kozinski, which, in an even longer opinion than WFS, explains -- to use Judge Kozinski's words -- "why it's important for lawyers representing a bankruptcy debtor to turn square corners," and why for that reason summary judgment was improperly entered for the defendant in this particular adversary proceeding. Really?! Do tell! And spare no detail!

Anyway, a snoozer of a day on the appellate front, I'm sorry to say. At least out here on the Left Coast. Better to surf today rather than read opinions. Which is saying a lot. Because the waves stink today.

Wednesday, June 14, 2006

People v. Mayo (Cal. Ct. App. - June 14, 2006)

Oh, man. I feel totally, totally bad for Justice Johnson. He writes a very important, persuasive, and really thoughtful concurrence in this case. One that's only four (double-spaced) pages, and really worth reading. It's a touching, and very powerful, tribute to the presumption of innocence in a criminal case. An opinion that really comes from the heart, and one that I found exceptionally compelling.

Then there's the last sentence on page 3. Right after Justice Johnson says: "Both with groups of jurors and in querying individual jurors, the trial judge indeed did 'pound home' the concept the defendant entered the courtroom an innocent man. The court did the same with the concept the jurors were bound to acquit the defendant if they had a reasonable doubt of his guilt after hearing the evidence." All good. And then Justice Johnson immediately follows with: "During his voir dire, the defense counsel reinforced this lesson, one-on-one with at least 20 individual jurors and the prosecutor did so with at least three."

Great. Except for one thing. In that last sentence I quoted, Justice Johnson didn't actually use the word "lesson". He referred to the presumption of innocence instead as a "lesion", rather than as a "lesson". As he actually wrote the opinion, the sentence thus reads: "During his voir dire, the defense counsel reinforced this lesion, one-on-one with at least 20 individual jurors . . . ."

Oops! Sort of changes the whole meaning of the reference, eh?! "Lesson" versus "Lesion". Big difference.

Lessons for the Day: (1) Shepardize (see previous post). (2) Don't rely on your spellchecker.

Fail to learn either lesson at your peril. For undying shame assuredly awaits you.

Integrated Healthcare Holdings v. Fitzgibbons (Cal. Ct. App. - June 14, 2006)

I don't know much. But I do know this: When I'm representing the plaintiff (IIHS), and when the defendant has filed an anti-SLAPP motion, and when the appeal comes to Justice Aronson, I don't want him saying stuff like this about the arguments in my brief (much less do I want him saying it in a published opinion):

Citing Zhao v. Wong (1996) 48 Cal.App.4th 1114, IHHI contends the e-mail did not concern a public issue because it did not relate to “the exercise of democratic self-government.” (Id. at p. 1122.) IHHI’s reliance on Zhao is misplaced, however, because its discussion of the anti-SLAPP statute’s scope has been superseded by the 1997 amendments to section 425.16. (See Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226, 236.) [“the Senate Judiciary Committee expressly amended section 425.16 to mandate a broad interpretation of the statute in reaction to the over-narrow interpretation of Zhao v. Wong”].) Indeed, the California Supreme Court expressly disapproved Zhao on the very point for which IHHI cites it. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116 [“We agree . . . that ‘Zhao is incorrect in its assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government’”].)

Yikes. Argument 101 of 10,000 in favor of shepardizing the cases you cite.

A lesson hard learned by counsel for IIHI, Yolita Nowak Lecellier (a graduate of Western State Law School),
Jeff I. Braun (a graduate of McGeorge), and Deborah S. Tropp (another McGeorge graduate).

Tuesday, June 13, 2006

U.S. v. Faulkner (9th Cir. - June 13, 2006)

No, not that Faulkner. (Nor that -- much less well-known -- Faulkner either). Donald Faulkner. The man. The myth. The legend. The guy with an open container of beer in his car.

Here's the wacky thing about this opinion. Judge Reinhardt concurs. To express a view in a criminal case that's more conservative than the majority opinion.

Oh yeah. You see that every day. Not.

That fact alone makes this one worth reading. Even if you don't plan on boozing it up when you enter the BLM's Paradise Recreation Center in Three Rivers, California. But, if you do, FYI, at the booth at the entrance to the facility, you'll meet Chief Ranger Ed Ruth. Who'll make you pour out your beer before entering the BLM land. Or -- incredibly nicely, in my view -- he'll hold your booze for you until you leave.

What a guy!

Brierton v. DMV (Cal. Ct. App. - June 13, 2006)

John Briarton. 0-2 in the Court of Appeal. And, presumably, not a big fan of Justice Aaron.

I previously posted about his original drunk driving conviction -- in which he was busted by SDSU cops --here, in which Justice Aaron affirmed his conviction (notwithstanding some tolerable arguments to the contrary). He now appeals the subsequent two-year administrative suspension of his driver's license. Which, in this opinion, Justice Aaron also affirms.

Lesson for the day: Don't repeatedly drink and drive. Or, if you don't, don't repeatedly draw Justice Aaron, I guess!

Monday, June 12, 2006

Maharaj v. Gonzales (9th Cir. - June 9, 2006)

P.S. - It isn't like Judge O'Scannlain doesn't have friends. The same day the last opinion (Circu) was published, the court also issued this one. In which Judge O'Scannlain again gets outvoted, but this time it's 11-4. With his three voting buddies (in disssent) being Judges Kleinfeld, Rawlinson, & Callahan. All of whom were also on the en banc panel in Circu.

Circu v. Ashcroft (9th Cir. - June 9, 2006)

This has got to hurt. As well as, objectively, be embarrassing.

Back in 2004, the Ninth Circuit hears an immigration appeal. Judge O'Scannlain joins the majority opinion, written by Judge Siler (a senior judge on the Sixth Circuit), which denies relief. Judge Hawkins dissents.

Then the case gets taken en banc. The resulting panel's more leftie than rightie (typical of contemporary Ninth Circuit en bancs), but has its fair share of conservatives, including the two Bush I appointees (Judges Rymer & Kleinfeld) and a Bush II (Judge Callahan), as well as some pretty moderate Democrats.

So how does the en banc come out? Unanimously in favor of the petitioner. Not a single vote on O'Scannlain's side. Unanimous. Again: Votes on O'Scannlain's side? Zero. Votes on the other side? Eleven.


Friday, June 09, 2006

People v. Budwiser (Cal. Ct. App. - June 7, 2006)

A funny (and short) one out of Placer County. At a little over seven (double-spaced) pages, this ain't gonna take you too long to read. So give it a shot.

The caption alone intrigued me. I mean, I know "Budweiser", but "Budwiser"? Not a name you hear every day. And what's Philip Conrad Budwiser criminal offense? Felony possession of methamphetamine. I guess when you're named after a central nervous system depressant, you pehaps need a pick me up now and then. Sorry, Phil. Not in this country. Beer = Good. Meth = Bad. Get it?

Here's the best line from Justice Sims' opinion. (Which, unlike yours truly, never comments on the defendant's name.) Background: They revoked Phil's probation because three drug tests came up dirty and, another time, they found a Whizzinator -- basically a bottle of clean urine attached to a tube -- strapped to his phallus. In his appeal, Phil contends that the evidence didn't support the trial court's conclusion that Phil wasn't amenable to treatment, a finding required under Proposition 36 in order to revoke his drug-related probation.

But Justice Sims affirms the trial court's ruling, stating: "All in all, [Budwiser] has demonstrated that he has no intention of complying with a treatment program. 'Whiz' kids don't want drug treatment."

"Whiz kids". I love judicial humor. Especially in short opinions. You da man, Rick.

Thursday, June 08, 2006

People v. Sandoval (Cal. Ct. App. - June 7, 2006)

Darn blogger. It's been out of action most of yesterday and today. Almost enough to make one move to typepad.

Anyway, enough venting. Here's an outstanding -- simply outstanding -- opinion by Justice Aaron.

For anyone who thinks that trial courts never improperly coerce guilty pleas, this one is a must-read. Sure, the co-defendant -- who allegedly (indeed, pretty clearly) told the defendant "Plead guilty or I'll kill you" -- did more than the trial court in this regard. But what Judge Lasater (down here in San Diego) did and said was no good as well; indeed, almost certainly led the co-defendant to make that threat.

Anyway, read this opinion. It highlights -- exceedingly graphically -- the problem of involving the trial court in plea negotiations, especially those involving package deals. Even when (and if) the trial judge has the best of intentions. Justice Aaron's opinon in this regard is really top shelf. I found myself agreeing with every word she said, including but not limited to those on the last page of the opinion, in which she reassigns the case to a different judge on remand.

Great job, Cynthia. An opinion entirely befitting of an honors Harvard Law School graduate (Class of 1984) and adjunct law professor at the University of San Diego. Hats off to you on this one.

Tuesday, June 06, 2006

People v. Moniz (Cal. Ct. App. - June 6, 2006)

There haven't been that many particularly exciting cases lately, sadly. Maybe there's a type of "June gloom" in the California Court of Appeal and Ninth Circuit? Who knows.

But I did get a little laugh out of this case. Justice Raye starts the opinion in a manner that brought a smile to my face, if only because it sounded so funny. The first sentence reads like it's the beginning of a novel, rather than a judicial opinion. "Late one night, Deputy Dan Skaggs pulled over a car driven by Danielle Giampappas for sporting expired tags." The only way it could have been better is if it began: "It was a late, dark and stormy night, and the rugged, burly Deputy Dan Skaggs -- his bountiful chest heaving in the wind -- pulled over . . . ." Plus, how funny is it that the first sentence says that Deputy Skaggs pulled over the car for "sporting expired tags"? Sporting?! I love it. Not the type of language you're typically used to seeing in opinions. Oh, and I also smiled -- and felt like I was back in the early 1960s -- when Justice Raye repeatedly referred to the defendant as possessing a "marijuana cigarette". "Hey, dude, don't bogart that marijuana cigarette."

So I simply loved some of the language used by Justice Raye. Unfortunately, most of the 25 pages of the opinion are fairly plodding (and, quite frankly, boring), so this novella doesn't maintain its initial promise. Still, I loved the first line. Which I'll constantly remember -- accuracy be damned -- as: "It was a dark and stormy night . . . ."

Monday, June 05, 2006

In Re Shirley K. (Cal. Ct. App. - June 5, 2006)

Interesting. I've read (as you might imagine) many opinions about where children should be placed (natural parents, relatives, foster parents, etc.). They are often -- indeed, usually -- depressing stories. And this one is certainly no exception.

But this one is fairly unique in the level of appellate distrust of the underlying social worker. Be sure to check out the last several pages of this (fairly short) opinion. Usually you see a lot of deference to the conclusions of the social worker, both in the trial court and on appeal. Not here. At all. Indeed, Justice McIntyre discusses at length why he -- and the rest of the panel -- are deeply suspicious of this particular social worker. Not for any nefarious reasons, mind you. But, nonetheless, it's obvious that the panel doesn't trust the social worker's objectivity, and, largely on that basis, reverses the trial court's judgment.

A fairly unusual opinion.

Friday, June 02, 2006

U.S. v. 4,432 Mastercases of Cigarettes (9th Cir. - June 2, 2006)

I didn't know what a "mastercase" of cigarettes entailed. Nor did I know anything about gray market cigarettes, the benefits of and restrictions surrounding the reimportation of domestic cigarettes (or importation of domestic brands manufactured abroad), the purpose or function of Foreign Trade Zones -- a term I had never even heard of -- in the United States, or the various legal differences between ad valorem and excise property taxes as applied to products in a FTZ.

But, after reading this opinion, I now consider myself an expert. (As you can tell, it doesn't take much for me to come to that conclusion about myself.) Read it. You'll definitely learn at least a couple new things. You may also get an inkling into how places like obtain at least some (and perhaps most) of their discount wares. Which, again, was something that I didn't previously understand. But now I do.

Knowledge is awesome, eh?

Thursday, June 01, 2006

Haberbush v. Cummins (Cal. Ct. App. - May 31, 2006)

I don't have a strong feeling about whether this opinion is right or wrong. But I do have a fairly strong feeling about what should happen at this point: the California Supreme Court should review the case, and potentially the United States Supreme Court as well. Especially if the California Supreme Court affirms.

The underlying issue is one about which I know virtually nothing (not that this typically stops me): Whether an action to avoid and recover preferential transfers under state law -- in particular, Cal. Civ. Code sect. 1800 -- is preempted by the federal Bankruptcy Code. A fairly important issue. Early last year, the Ninth Circuit, in an opinion called Sherwood Partners v. Lycos, 394 F.3d 1198 (9th Cir. 2005 written by Judge Kozinksi -- over the dissent of Judge Dorothy Nelson -- answered "Yes," concluding that Section 1800 was indeed preempted. But, in this case, Justice Boland, joined by the rest of the panel, disagrees with Sherwood Partners, and holds that Section 1800 is not preempted.

As a result, at present, you have a square conflict between state and federal law, and on an issue that is case-dispositive. Federal courts in California won't permit Section 1800 claims, whereas state courts will. And the Ninth Circuit won't change its mind, since the request for a rehearing en banc was denied in early 2005, and certiorari denied in October.

This is precisely the type of federal-state conflict that cries out for resolution by the California (and perhaps United States) Supreme Court. You can't have resolution of a critical issue such as this one depend entirely upon the fortuity of the existence of either diversity or supplemental jurisdiction. The conflict should not be allowed to continue.

The California Supreme Court should take this one up.

P.S. - After writing this post, I recalled that I previously said that the California Supreme Court should take up a couple of other cases as well, and was interested in whether the Court agreed with me. So I looked the stuff up. I've said that the California Supreme Court should/would grant review in only two prior cases: O'Connell v. City of Stockton back in April 2005 (a taxpayer standing case) -- to which I said "[Y]ou're almost certainly looking at the California Supreme Court taking up the case." -- and Viva! v. Adidas in November 2004 (a case about potential preemption of state protections against using products from endangered animals), which prompted me to say "I definitely think the California Supreme Court should take this one up."

And, wouldn't you know it, the California Surpeme Court did indeed grant review in both cases: to O'Connell in September 2005 and to Viva! in March 2006. Let's here it for external validation!