In Re Deffner (Cal. Ct. App. - Sept. 28, 2006)

This one is interesting, on several different levels.

You'll have to read the whole thing, since a summary doesn't exactly do it justice. (That said, the majority opinion is 25 pages, and the dissent is another 11. So be forewarned.) Basically you've got a 30-year marriage in which the wife, pursuant to a "stipulation", received only 20% of the marital assets and no spousal support, even though she was a homemaker with no job.

Which seems weird, as well as inequitable. But it gets weirder, since the attorney for the husband allegedly pretended to be the attorney for the wife in order to obtain the court's approval of this one-sided disposition. Which Justice Sills calls both "identity theft" and fraud, and is very nonplussed about. The majority opinion also contains several interesting, lengthy footnotes -- something that you usually don't see from the California Court of Appeal -- including footnote 1 (regarding his decision not to publish the name of the attorney who engaged in the alleged misconduct) and footnote 4 (about the special adjudicatory nature of family law proceedings and their routine resolution on written records). Finally, Justice Aronson's dissent is also interesting, and basically contends that the wife shouldn't be able to get relief because she was a deliberate wrongdoer in the "fraud" upon the court as well; i.e., in pretending that the husband's attorney was really hers.

Lots of good stuff here. Lots of interesting material in the trial court as well. Worth a look.

In Re Mason (9th Cir. - Sept. 28, 2006)

I bet the folks at Gonzaga Law School are really glad that Judge Tashima (belatedly) decided to publish this opinion, which was originally an unpublished memorandum disposition.

This opinion recounts the story of one of Gonzaga's typical law school graduates, Keith Mason. He gets his law degree from Gonzaga in 1999. And, armed with that diploma, he begins a string of exciting and remunerative adventures and occupations. His first job out of Gonzaga law school? A "process analyst" earning $26,000 a year. Wow. Exciting. He then takes the not-terribly-daunting Idaho Bar examination in 2000, but fails it. He then "upgrades" his job and, in 2000, becomes a "government contracts technician" earning all of $14/hour. A job he holds onto for two years, until 2002, at which point he's laid off. At which point he starts part-time work installing home siding. Making between $12,000 and $14,000 a year.

Remember, this guy is a graduate of Gonzaga Law School. And, yet, these are the best jobs he can get.

Needless to say, Keith is totally excited about racking up over $193,000 in loans in order to attend law school, and therefore earn a degree that adequately prepares him for his exciting future in the world of aluminum and vinyl siding installation. So, in a final (so far!) blow to his professional prestige, this 33-year old Gonzaga law school graduate declares bankruptcy.

Keith agrees to repay $64,000 to one student loan lender, and the district court grants Mr. Mason a partial discharge to the other, and requires him to repay only $32,400. But the Ninth Circuit reverses, finding that Keith has complied with every requirement for a discharge except for the requirement of good faith. Judge Tashima says that Keith should be trying harder to make money, and specifically faults him for not trying to take the bar exam again as well as for only working part-time (which Keith says he has to do in order to keep trying for a law job) rather than full-time. Keith's bad faith, Judge Tashima says, prohibits a discharge.

As a result, Keith is now back in the hole for the whole $200,000. Plus, by the way, all the court costs and attorneys' fees he's run up in the bankruptcy proceedings and in the trial court and on appeal. Nice.

Gonzaga Law School is, I'm sure, proud to have the "success" of this particular graduate highlighted forever in the annals of the Federal Reporter.

P.S. - On the front page of Gonzaga Law School's web page, it prominently highlights the school's mantra. Which is: "Expect Excellence". Hilarious.

POSTSCRIPT - Whenever I poke (even good-natured) fun at any institution or individual, I can always count on receiving some hate mail, and this post was no exception. Still, I don't think one can argue with the points I've mentioned, which are (1) that the working world isn't necessarily rosy for every (Gonzaga) law school graduate, (2) that Mr. Mason is probably pretty upset that he spent $200,000 getting his degree, and (3) that -- particularly given their motto -- Gonzaga Law School would have much preferred this opinion to remain unpublished. But, hey, feel free to disagree. And keep that hate mail coming. Just don't make the same mistake as one reader and forget the k in "f***head" and yet use two k's in the word "c***sucker". :-)

People v. Burton (Cal. Ct. App. - Sept. 27, 2006)

I've almost never seen a conviction for torture reversed by the California Court of Appeal. Virtually every single opinion concludes that the conduct in question indeed constitutes "torture" under California law.

Add this opinion to the list. Justice Davis concludes therein that it indeed constitutes "torture" for the defendant to punch the victim in the face three or four times and then immediately run away. The entire attack probably lasted 10 seconds or less. Justice Davis holds that this qualifies as "torture".

I guess "torture" ain't what it used to be.

Simmons v. Ghaderi (Cal. Ct. App. - Sept. 27, 2006)

This is an interesting problem.

Plaintiff files a medical malpractice lawsuit, and the parties (and defendant's insurer) attend a mediation. The insurance policy, as required by law, allows the defendant doctor to veto any proposed settlement. So before the mediation, the insurer gets the doctor to consent in writing to a settlement up to and including $125,000.

Eventually, during the mediation, the insurer offers the plaintiff $125,000 in settlement, and plaintiff accepts. At which point the case gets interesting. As the mediator starts to write up the agreement, the insurer walks over to the doctor to tell her that the case has settled for $125,000. At which point the doctor says: "Good, because I'm revoking my consent."

So now what do you do? The doctor leaves the mediation at that point, and the insurer says: "Well, we don't have the doctor's consent. Plus, she won't sign any agreement. What can we do?" At which point the plaintiff moves to bind the defendant to the settlement, but the defendant says: "I didn't sign anything. Plus, you can't even prove that an offer was made -- or that my (advance) consent was given -- since everything associated with a mediation is confidential. Gotcha!"

You can see how such conduct, if permitted, would countenance widespread tactical abuse. Doctors, and/or their insurers, could use this strategy to find out the plaintiff's bottom line settlement demand without being bound to the defendant's formal offers. And mediation would be a lot less effective if the defendant could get out of its own accepted settlement offers even if the doctor agreed in advance to settle the case.

Ultimately, the trial court bifurcates the proceedings and finds that the settlement agreement was binding notwithstanding mediation confidentiality, and Justice Croskey affirms. But Justice Aldrich writes a pretty powerful dissent that disagrees, arguing that the majority has unjustly invented an exception to mediation confidentiality in order to affirm the judgment here against the sleazy Dr. Ghaderi. Both the majority as well as the dissent make good points in this regard. It's an interesting -- and tough -- issue.

Let me add one more thing. If I were the trial court, I would have seriously considered doing something a little different here. I would have bifurcated the proceedings as well, and tried the breach of contract (i.e., settlement agreement) dispute separate from the underlying medical malpractice action. But unlike the trial court, I might have ordered that the medical malpractice action be tried first. Which would have basically told the "Gotcha" Dr. Ghaderi: "Okay, that's what you want? Fine. So we'll try the medical malpractice action first. And if you get spanked badly -- i.e., over $125,000 -- in that one, I'm quite positive that the plaintiff will drop the breach of contract/settlement agreement cause of action. And I'll likely hold you estopped to argue it yourself, since you're claiming you're not bound. By contrast, if you win the malpractice action, you're still looking at possibly losing the $125,000 settlement. So, given the order of the bifurcation, do you still want to argue that you're not bound to the settlement?"

Maybe that's not right. But I'd have definitely been inclined to do it.

P.S. - Legalities, and doctrine, aside, I'm certainly never going to use Dr. Lida Ghaderi, who practices in Lawndale. I prefer my doctors be assuredly non-sleazy, TYVM.

Alhusainy v. Superior Court (Cal. Ct. App. - Sept. 26, 2006)

Maybe I missed something here. Is this California in 1850? The wild, wild west? Did I accidentally travel back in time a century or so? Since when has it been okay for a judge to say to a defendant: "Okay, I won't sentence you, but only if you leave the state and don't come back."?

Not now, that's for sure. Which is what Justice Rylaarsdam holds here, in which he reverses a guilty plea in which the judge told the defendant that if he pled guilty and left the state, the judge would defer sentencing and issue a warrant that would only be good in California. In other words, as long as the defendant left town, he could get off scot free, but if he wanted to stay in the state, she'd sentence him to prison for four years.

Not cool, Justice Rylaarsdam (properly) holds. We don't banish people anymore. It's unconstitutional. And also stupid, as well as unfair to residents of other states. If a guy deserves prison, send him there. If not, don't simply run him out of town. It was moronic in the old days. It's equally unwise now.

Not only does Justice Rylaarsdam reverse the court below, but he also reassigns the case to a different judge on remand. For good reason. Reassignment is ordered partly due to the crazy -- and clearly unconstitutional -- nature of the banishment order. But it's also due in part to the fact that the judge -- Judge Pamela Iles --appears to be swept up in the circumstances of the crime, which (in turn) likely gave rise to the "inventive" decision to banish the defendant. For example, when the prosecution recommended a sentence of 180 days time served, the court rejected the offer, and was adamant that the defendant receive four years in prison if he ever came back to California.

This isn't the first time, by the way, that Justice Rylaarsdam has been somewhat upset with Judge Iles. Check out this post last year, in which I briefly discuss a case in which Justice Rylaarsdam expressly slammed Judge Iles a lot more that he does here.

The unifying theme seems to be that Judge Iles is perhaps a bit too tempermental sometimes. And that this reaction occasionally leads to some fairly clearly injudicious decisions.

Mellow out. Chant your mantra. Comply with the Constitution.

All good thoughts.

Cano v. Glover (Cal. Ct. App. - Sept. 25, 2006)

Here's another very short (five-page, single-spaced) opinion by Justice Yegan. Which holds -- in a ruling that should be pretty troubling for the "plain statutory meaning" folks out there -- that when Section 581 of the CCP states that "The court may dismiss the complaint as to that defendant, when . . . . (2) after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal," what it really means is that the court must dismiss the complaint.

Mind you, I think there's a pretty strong argument on Justice Yegan's side in this regard. But the language of the statute is pretty clearly discretionary, whereas Justice Yegan holds that it's actually mandatory instead. It's a result that seems right, but that is incredibly difficult to square with those who would hold -- and there are many of them out there -- that when statutory language is clear, the judiciary has no authority or ability to reform that statutory meaning.

So a good test case for hard core textualists.

P.S. - This hasn't been a good day for Justice Yegan on the publication front. On page three of the opinion, he spells "Judgment" as "JGudgment". Yikes. This one's a typo, unlike the other one. Let's fix this one up as well.

Corona Fruits & Vegetables Inc. v. Frozsun Foods (Cal. Ct. App. - Sept. 25, 2006)

Justice Yegan begins this short (five-page, single-spaced) opinion with the line: "Shakespeare asked, 'What's in a name?'" And then briefly explores priority in UCC-1 financing statements, holding that the last name must be spelled and listed correctly in order for the filer to have priority.

All well and good. But you gotta cringe at the grammar in the last sentence of the opening paragraph, which reads: "A subsequent creditor who loans money to a debtor with the same name is put on notice that it's lien is secondary."

"It's" lien? Yikes. I know they taught you better than that at UCSB, Ken.

Let's change that sentence before it gets published, shall we? Horrible grammar and spelling in a blog is one thing, after all. But in a published opinion? Nah. The former is cranked out in a half-hour (or less!). Whereas the latter is -- or at least should be -- a deliberative process over several drafts. And which, I might add, is -- or at least should be -- subject to more than cursory review by several chambers.

A common mistake. But one that should be fixed. When you open by quoting Shakespeare, it's always good not to butcher the English language two sentences later.

U.S. v. Castillo (9th Cir. - Sept. 22, 2006)

This case should go en banc. Not because it's necessarily wrong on the merits. And not because the en banc court would do anything different than the panel did. It probably wouldn't.

But Judge Bybee is correct that prior Ninth Circuit precedent -- though somewhat unclear -- holds that the United States can waive a waiver issue by failing to assert (as they fail to assert here) that the defendant pled guilty unconditionally, and hence cannot appeal. Whereas Judge Beezer, writing for the majority, finds those prior cases distinguishable, when in fact they're really not. Those prior holdings addressed the merits of an appeal notwithstanding an unconditional guilty plea and held that the government can "waive a waiver". That precedent is inconsistent with the majority's holding here that an unconditional guilty plea is a jurisdictional bar to adjudication of the merits.

It'll be interesting to see what happens to this case in future stages, especially since it's fairly clear what the outcome on the merits will be (since even Justice Bybee concludes that, but for prior precedent, the majority opinion is correct). On the one hand, technically, the case should go en banc since the opinion is fairly clearly inconsistent with prior precedent. But, on the other hand, who is really motivated to call (or vote) for en banc review? Sure, the defendant, who has nothing to lose, so technically, his counsel should file. But, from an institutional perspective, criminal defendants in general would perhaps be best served not to call for a vote en banc, since we're fairly sure what the outcome will be (a pro-government ruling). Regardless, assuming the defendant files (as I imagine he would), which judges votes which way? The principled ones should probably vote for en banc review since the panel decision is, in fact, inconsistent with prior Ninth Circuit precedent. To think that only rules and doctrine play into such votes, however, and that voting doesn't take into account the likely result, however, would seem incredibly naive. Some judges who agree with the panel decision on the merits wouldn't want en banc review because they'd want that opinion to stand. Some judges who disagreed with the panel decision on the merits wouldn't want en banc review because they figure that that the outcome of that process would just be to affirm the panel's decision on the merits ("Better a crappy panel decision than a more entrenched, and equally crappy, en banc decision."). Some judges who agreed with the panel decision would perceive this same effect, however, and thereby vote for en banc review precisely in order to entrench this result. And some judges who disagreed with the panel decision o the merits would vote for review if only because there's a non-zero chance of having the en banc court reverse ("The risk of a crappy en banc decision as opposed to a crappy panel decision is outweighed by the admittedly slim prospects of a good decision from the en banc court.").

Too bad we don't get to find out -- in any formal manner -- how each of the various judges voted on an en banc call. 'Cause this one will be interesting.

I, by the way, would vote "Yes". Not for results-oriented reasons. But rather because it's the right thing to do.

Warren v. Merrill (Cal. Ct. App. - Sept. 21, 2006)

Those readers who live in Los Angeles: Take Heed. Do not use Hildegard Merrill (d/b/a Calabassas Realty) -- the self-described "Condo Queen" of the San Fernando Valley-- as your real estate agent. Because, well, yikes.

To use Justice Johnson's (understated) words, the buyer, John Warren, "had all sorts of problems," including Tourette's syndrome, failing faculties, a failing business, a terrible credit rating, and a pending divorce. But he nonetheless wanted to buy a condo, and went to an open house where Ms. Merrill was the agent for the seller.

Ms. Merrill first persuaded him to buy the condo. Fair enough. She then persuaded him that he could not get a mortgage at a reasonable rate, and suggested that because her daughter had okay credit, he should list her as a co-borrower and "technically" buy the house with her, at which point the title would be transferred into Mr. Warren's sole name. Uh, that's fraud. But okay, I guess. If you say so.

But instead of using her daughter asa co-borrower, Ms. Merrill decides to list her as the sole borrower. And, when Ms. Merrill fills out the loan forms for her daughter . . . . well, let me have Justice Johnson tell the story:

Through Charmaine’s and Merrill’s testimony it became apparent Merrill misrepresented the facts when she filled out Charmaine’s loan application. For example, Merrill stated the source of the proposed $77,000 down payment was a combination of savings and gifts [when, in fact, most of it actually came from Warren, and the rest came from her mother] The application stated Charmaine then resided in a condominium at 5800 Kanan Road in Agoura Hills, conducted catering and shuttle businesses out of the residence on Kanan Road, and had been doing so since 2001, earning a monthly income of $7,500 from those businesses. In reality, Charmaine had resided for years in Aspen, Colorado and had never lived at or conducted a business out of the 5800 Kanan Road residence. Also, the businesses Charmaine purportedly conducted had shut down sometime in 1990. Charmaine was instead employed as a waitress in Aspen, Colorado and periodically conducted her shuttle business there. She otherwise relied on her mother for support. Although Merrill indicated on the loan application Charmaine intended the condominium to be her primary residence, the parties’ plan all along was for Warren to live in the condominium instead. As Merrill later conceded in her testimony, she would never have gotten the loan had she been truthful in the loan application. [Footnote]:
The trial court was so alarmed by Merrill’s testimony and her apparent lack of concern about admitting she had committed a form of fraud on the lender, the court recessed the proceedings to permit Merrill to consult with counsel regarding her Fifth Amendment right not to incriminate herself."

Wow. But that ain't all. Then Ms. Merrill bribes her daughter's boyfriend to serve as a middleman to launder the down payment, and has Mr. Warren pay him $2,000 for these services. Then Ms. Merrill steals $6,000 from Mr. Warren by failing to mention that the seller contributed $6,000 to closing costs. Then Ms. Merrill doesn't even put the property into Mr. Warren's name as promised, and instead convinces Mr. Warren to put the property solely in the daughter's name. Then, when Mr. Warren has substance abuse problems and has to go to the Betty Ford clinic, Ms. Merrill evicts him, rendering him homeless and sleeping in the streets. Oh, she also takes all his property in the condo and puts it either into storage or in her own garage, and won't give it back to him; indeed, may even have bought it herself at a "lien sale" in which she was the successful (and likely only) bidder!

Anyway, the trial is a bench trial, and the judge (Judge Kaplan) concludes that Ms. Merrill is a total liar and that there is clear and convincing evidence that she deliberately defrauded Mr. Warren. Judge Kaplan issues an award of $15,000 in noneconomic damages, orders the defendants to transfer the property to Mr. Warren, and imposes punitive damages of $50,000 against Ms. Merrill. (Ms. Merill subsequently stipulates to return Mr. Warren's personal property in return for a dismissal of his conversion and other claims relating to these items). Oh, one more thing. Judge Kaplan awards Mr. Warren his costs and attorney's fees as well.

Does Ms. Merrill sound like the real estate agent you want to have representing you? No, thank you. I'll stick with someone at least marginally reputable, thanks.

I can summarize the final dozen pages of the opinion very quickly. Ms. Merrill appeals. Justice Johnson -- entirely properly -- affirms. And awards Mr. Warren costs on appeal. End of story.

Oh, one last thing. Mr. John Warren? He's the grandson of Earl Warren, former Governor of California and Chief Justice of the United States Supreme Court.

Pretty freaky, eh?

Border Business Park, Inc. v. City of San Diego (Cal. Ct. App. - Sept. 19, 2006)

I'm conflicted about this one.

My conflict doesn't arise, as is typically the case, from an uncertain view of the merits. But, unusually, I'm conflicted about this one instead for utterly results-oriented reasons.

On the one hand, I'm a citizen of -- and, perhaps more importantly, a taxpayer in -- the City of San Diego. As a result, I've got to say that I'm pretty happy that Justice McKinster decided to reverse a huge judgment that the De La Fuente family obtained against the City of San Diego. Huge as in $65.3 million in compensatory damages, $26.4 million in prejudgment interest, and probably another $20 million or so in postjudgment interest. In other words, over $100 million. Plus Justice McKinster affirms the grant of a new trial regarding a related breach of contract claim in which the jury awarded the De La Fuente family another $29.2 million, which (again) would probably be $40 million-plus after interest.

The City has massive financial problems as it is. The last thing we need is to have to pay a $140 million+ judgment. Which it looked like we might well have to do; indeed, the City already offered to settle the case (alongside similar, related claims) for $50 million. But now those essentially all go away (or at least the meat of the cases) in light of Judge McKinster's holding that there was insufficient evidence to support a judgment, essentially holding that these sorts of claims are not cognizable. Whew!

On the other hand, at a different -- again, entirely personal -- level, I'm also a member of the faculty at the University of San Diego School of Law, which has a very tight connection to the counsel for plaintiff in this matter. Two of these attorneys -- Michael Fish and David Niddrie -- are graduates of USD Law School. And one of the (recently retired) named attorneys of the principal law firm for plaintiff -- Thorsnes, Bartolotta & McGuire -- is not only also a USD Law graduate, but is also a very strong (and admired) supporter of the institution.

The contingency fee on a $140 million+ judgment would have been a pretty penny. Even the fee on the $50 million+ settlement offer would have been darn nice. But then there's Justice McKinster's opinion. Darn it.

So there you have it. The City of San Diego is up $140 million+. Plaintiffs' attorneys whom I like are down $50 million+. For me, a mixed bag.

P.S. - One more tangential comment. With all due respect, California appeals are somewhat different. Counsel for plaintiff retained an incredibly smart consultant -- Professor Geoffrey Hazard of the University of Pennsylvania Law School -- to assist with the difficult civil procedure and other issues relevant to the appeal. Which is wise, especially for an appeal of this significance.

But, that said, legal disputes on appeal in Southern California are slightly different than what they may appear to be from the perspective of someone who resides in an ivory tower in Philadelphia. Not that there wasn't plenty of intellectual and local appellate firepower on the plaintiff's side already; after all, both Mr. Fish & Mr. Niddrie are certified appellate specialists. Still, in the end, hiring Professor Hazard -- at no small cost, I can assure you -- was money down the drain.

Sorry about that as well, guys. (At least you knew this was coming, since Division Two gives tentative rulings. Still, I'm sure it's a bummer to see it actually happen.)

People v. Matye (Cal. Ct. App. - Sept. 19, 2006)

I'm not as young as I once was. (That said, who is?) Accordingly, I don't always know the latest terminology.

Much less am I routinely cognizant of whatever hip street terms the kids are using these days. Though I can use the word "cognizant" in a sentence. Which has to count for something, right?

Regardless, I love learning new stuff in judicial opinions. They're a font of information, and often in areas you don't necessarily anticipate.

Like here. Until I read this opinion, for example, I didn't know what a "bag whore" was. It's just not a term with which I was familiar.

Fortunately, Justice Scotland helpfully explains that a "bag whore" is "a person involved in sex and drugs". (More accurately, I think, it's someone who trades -- formally or otherwise -- sex for drugs.) Which makes sense, once you think about it. I just had never heard the term used before. Now I have.

It turns out, by the way, that unlike many phrases, the term "bag whore" hasn't been used that often. At least in judicial opinions. So, for example, I could only find a single other case that has ever used the term. Justice Callahan used that phrase back in People v. Leonard in 2002. And Justice Callahan defined the phrase a bit less delicately -- and probably more accurately -- than Justice Scotland, and explained that a bag whore was someone who "was prostituting herself to make money for drugs."

But, other than that, no other references to bag whore. Contrast that discussion, by the way, to other -- more familiar -- euphemisms. So, for example, "motherf***er" appears 1317 times. Though that term is fairly self-explanatory, no? Or "crack whore", used 21 times. Or, more unusually, "gutter slut", used twice. (I especially liked the colorful use of that term in an opinion from the Supreme Court of Virginia, rendered just last week, in which the defendant wrote the prosecutor, among other things: "[F]**k you, you fat, c**ksucking, c*m guzzling, gutter slut. I guess I'll see your b*tch ass on Dec. 18 at trial because I'm not pleading to sh*t." Nice. )

But, unlike these terms, California has an exclusive patent on the term "bag whore". Only used twice, only in California, and only in the 21st century.

California. We lead the nation. In bag whores and in so, so many other things.

Klein v. San Diego County (9th Cir. - Sept. 18, 2006)

Sounds right to me.

I'm generally in favor of free speech. (Mighty big of me, eh?) So I'm hesitant to uphold statutes that limit it. Especially, as here, as regards core First Amendment speech in a public forum.

That said, Judge Pregerson's opinion convinced me that San Diego's ordinance that categorically bans targeted residential picketing within 300 feet of a residence is a constitutional time, place and manner restriction. Or, to put it more accurately, that this statute is not facially unconstitutional.

I admit that I was somewhat disinclined to adopt such a conclusion prior to reading his opinion. Moreover, wholly beyond my initial intuitive reaction, not only did the Supreme Court in Madsen strike down a similar 300 foot residential picketing rule (though that one was an injunction, not a statute, and was directed solely towards anti-abortion protesters), but several other courts have struck down more permissive statutes than San Diego's (for example, the Eighth Circuit struck down a 200 foot residential picketing statute in Kirkeby). So I wasn't the only one who might have initially viewed the San Diego statute with suspicion.

But that's just a testament to how powerfully Judge Pregerson writes. This opinion isn't bombastic, it's not polemic, and it's not distorted or one-sided. It's a very moderate, measured opinion, and that may well be (at least in part) why I found it so persuasive.

In the end, Judge Pregerson persuades me that my initial reaction was probably wrong. And, especially on sensitive constitutional issues such as these, that ain't a particularly easy thing to do.

A great opinion.

Comer v. Schriro (9th Cir. - Sept. 13, 2006)

This is a fascinating opinion. But it's also one that probably won't be around that long. So read it while you can -- or, at least, while it's still good law. Which may not give you that much time.

It's a death penalty case. It also involves a "volunteer"; in other words, an inmate who wants to die.

Normally, those appeals get dismissed and the sentence carried out. But the court here not only decides to adjudicate the merits, but also grants relief, and reverses the imposition of the death sentence on the merits.

Perhaps most interesting is why the court reverses the death sentence, as it does so on the ground that the circumstances of its imposition "shock the conscience" -- something that you definitely don't see every day. But, then again, neither do the facts, of which I'll give you only a brief taste: "We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted."

Sounds like something worth reading, huh? Here's another taste: "Comer was presented to the sentencing court not only in shackles, but nearly naked, with only a blanket covering his genitals, and slumped to one side in a wheelchair with blood oozing from his head wounds." Oooh!

The case is definitely unusual, which is, I think, in large part why the court reaches this (fairly unusual) result. You don't see these kinds of facts in a lot of cases.

Oh, yeah, maybe -- just maybe -- the composition of the panel might have had something to do with it as well. The panel consists of Judges Ferguson, Pregerson, and Rymer. If you can't figure out which one of these three dissents -- pretty darn strongly -- I'm sending you back to Ninth Circuit school. Immediately.

Anyway, as I said, for better or worse, I don't think this case has staying power. The majority may perhaps be right that, doctrinally, this case may be different than the previous volunteer cases. And, sure, on the merits, some of the facts of the case are both unique and bad. But, on the other hand, as for procedural bars, he's still a volunteer. And, on the merits, he was sentenced by a judge, not a jury, and we generally aren't as worried about prejudical effects on the former.

So, in the end, I think that either the Ninth Circuit will take this one up en banc or the Supreme Court will grant certiorari and reverse, either procedurally or on the merits (or, very potentially, both). Is the case worthy of certiorari? Probably not, particularly given its very unique factual and procedural setting. But, notwithstanding that fact, the opinion is a classic example of the "crazy" Ninth Circuit liberals running amok. And the Supremes don't like that. Trust me. They don't.

Still, a fascinating opinion while it lives.

Grassilli v. Barr (Cal. Ct. App. - Sept. 13, 2006)

Think that organized police harassment of and retailiation against private citizens doesn't happen? Especially in San Diego? Ever wonder what it would look like if it did?

If so, read the first eighteen pages of this opinion. It's a fairly chilling tale of the organized, five-year police harassment and abuse of Steven Grassilli, a resident of and small business owner in Santa Ysabel, by various members of the California Highway Patrol. It's a deeply disturbing story, and the fact that Mr. Grassilli ends up -- after five more years of litigation -- winning a lawsuit against the defendants for violating his civil rights only partially makes up for the wholesale abuse of govenmental police power in the first place.

Two other tangential points. First, interestingly, although she admits that the defendants' conduct was highly reprehensible, and also affirms the jury's actual (compensatory) damage awards that total $500,000, Justice Haller simultaneously reverses the jury's $4,000,000 punitive damages award as constitutionally excessive. Such an award, which involves an 8-1 ratio, would facially seem permissible. But not only does Justice Haller hold that it's constitutionally excessive, but further holds that the maximum permissible punitive damages award would total $55,000 -- in other words, that a ratio of appoximately 1-10 would be the most allowed by the Constitution!

This is a fairly novel holding. Although I appreciate (and agree with) her view that the salary of the individual defendant is relevant to the permissible amount of punitive damages, I'm not at all sure that I agree that when a defendant deliberately and repeatedly abuses his power to violate critical constitutional liberties (and also causes a half-million dollars in actual damages), the Constitution definitively says that the defendant can -- at the absolute extreme -- only be ordered to pay six months of his salary in punitive damages. That just strikes me as a bit wrong.

Less importantly, on page nine of the opinion, the word "citation" ends in an n. Let's catch those typos in published opinions, my friend.

An interesting opinion, to be sure.

Martinez v. Superior Court (Cal. Ct. App. - Sept. 12, 2006)

Ah, I love our political and democratic process. So pristine. So pure. So pretty.

On November 7, 2006, the voters of Los Angeles get to decide whether to adopt Measure R. Measure R does a number of different things (which is deliberate, in part in order to obscure its central function), but the most important -- and controversial -- portion of the measure is to increase from two to three the number of terms that a city councilmember may permissibly serve. So it basically waters down term limits by 50%.

Who passed this proposed amendment to the city charter for submission to the voters, you might ask? The city council, of course. So the've basically proposed to increase their own ability to get reelected.

Which is fine. If that's what the voters want, that's what they should get. No one disputes that fact.

The only issue in this case is how we're going to describe this measure on the official, nonpartisan ballot summary distributed to voters. You may then further inquire: Who's in charge of preparing this official summary, which is required by law to be neither false nor partisan to one side? You'll be happy to know that the answer is: the City Council.

So the L.A. City Council decides that the neutral way to summarize this measure, which (again) increase the length of the permissible term of city councilmen, is to describe it as follows: "COUNCIL MEMBER TERM LIMITS OF THREE TERMS. . . . Should the Charter be amended and ordinance adopted to [] change Councilmember term limits to three terms. . . ."

Now, that's pretty darn neutral, huh? There's no way anyone's going to read that and think that the measure imposes terms limits, right? Nah. That's not at all what the City Council is doing. They're really trying to be fair and impartial. They could have said: "LENGTHENING COUNCIL MEMBER TERM LIMITS. . . . Should the Charter be amended and ordinace adopted to [] lengthen Councilmember term limits to three terms." That'd be a ton, ton clearer, right?

But, nah, the City Council says: "I like it the way I wrote it. I like not mentioning that we're increasing the term limits; indeed, to instead imply that we're actually imposing term limits. That's totally neutral and nonpartisan. That's how I'd write it if I was totally disinterested in the outcome. I promise. It's a totally neutral description, as required by law."

When an interested voter files suit to change the official ballot summary, the trial court, Judge O'Brien, laughs off the City Council's purported justification and orders the ballot summary changed to the neutral language referred to above. But Justice Rubin, in this opinion, grants a writ and reverses the order, holding that the language adopted by the City Council is indeed neutral and nonpartisan as required by state law.

What a pretty picture. As exemplified by this case, I'm so, so pleased with our democratic process.

It's as pure as the driven slush.

Jorgelina E. v. Superior Court (Cal. Ct. App. - Sept. 12, 2006)

Listen to these facts from an opinion (and child's death) down here in San Diego:

"Jorgelina lived with her boyfriend, Enrique, their baby daughter, Stephanie, then age 10 months, and her son Jorge, then age 6 years. The household also included Jorgelina's sister, Alma V., and Alma's daughter, Dayanara, a 22-month old toddler. On the afternoon of December 14, 2005, Alma was home with Dayanara; Jorgelina was away from the home at work. At approximately 3:45 p.m., Alma left the home on an errand,
leaving Dayanara with Enrique, Jorge, and Stephanie. At 4:09 p.m. Enrique telephoned Alma on her cellular telephone and told her Dayanara had fallen off a bed and was hurt. Alma immediately returned home and found Dayanara limp and unresponsive. Alma and Enrique took her to the hospital.

When they arrived at Children's Hospital, Dayanara was in cardiac arrest. Doctors placed her on life support and determined she was suffering from a skull fracture, severe brain trauma, a ruptured pancreas, and extensive internal bleeding. She had a number of bruises on her body. On December 15, 2005, after a neurosurgical evaluation confirmed there was no hope for recovery, medical personnel removed life support systems and Dayanara died.

The medical examiner listed Dayanara's death as homicide caused by blunt force trauma to her head and abdomen. Police arrested Enrique and charged him with first degree murder, assault on a child causing great bodily injury and felony child abuse. Enrique denied hitting Dayanara but admitted she was injured while in his care. He said he disciplined the three children by placing hot chili peppers into their mouths and did the
same to Jorgelina and Alma when they objected to his treatment of the children. Enrique acknowledged he previously hit Dayanara with a small horsewhip and his bare hands and, at another time, placed her in a cold water bath until she turned blue. He admitted sexually abusing Alma."

Depressing, huh?

Plus, here's the lingering (and pending) question: What you do you do with the other kids at this point? Do you take them away from the mother? (The boyfriend is obviously out of the picture at this point, and will be in prison for an indefinite period.) Section 300(f) allows the court to take away the children if "the child's parent . . . caused the death of another child through abuse or neglect." The mother says -- and assume you believe her -- that she was (substantially) unaware of the ongoing abuse, but simultaneously admits that she knew about some of it (for example, after the boyfriend horsewhipped some of her children, she objected, and thereafter hid the horsewhip).

Does doing nothing (or little) to stop her boyfriend's abuse justify/authorize the court to take the children away from their mother? What are the best interests of the children? What rights does/should the mother have? Can you take away children because a parent has somewhat tried, but has been partially unsuccessful, in preventing their abuse, and that abuse and previously led to a child's death?

The trial court (Judge Kelty) takes the kids away. The Court of Appeal (Justice McDonald) reverses.

A tough case to read. And even tougher case, at least in my mind, to decide.

Wilson v. Merritt (Cal. Ct. App. - Sept. 12, 2006)

Listen to what Justice Moore says in this opinion regarding the defendant's claim, in this medical malpractice action, that the trial court properly granted summary judgment on the basis of causation because the plaintiff would (allegedly indisputably) have undergone the operation even had he been informed of the relevant risks:

"A jury reasonably could determine that an adult paraplegic who was suffering some problems with stiffness and flexibility, but was functional in his then current condition, who was seeing some improvement in his condition through physical therapy, who had suffered devastating damage from surgery in the past, and who was so concerned about the potential risks associated with the recommended procedure that he took his mother with him to question the medical doctor on the topic, would indeed turn down the opportunity for the procedure if informed that it could result in a loss of his remaining mobility due to a torn rotator cuff or a fractured bone. . . . [T]here is an order of magnitude in the difference in the quality of life of a paraplegic, who is at least able to get to the toilet by himself, and that of a functional quadriplegic, who cannot
even to that. We reverse and remand."

Sounds right to me.

Kesser v. Cambra (9th Cir. - Sept. 11, 2006)

The makeup, and result, of this en banc panel is darn interesting. It's one of the last 11-member en bancs, as the Ninth Circuit went to a 15-member panel starting January 1, 2006 (and this case was argued on December 15, 2005). (The Ninth Circuit will allegedly evaluate the 15-member composition after two years; however, I can already tell you now that there's no chance they'll go back.)

The panel draw was also statistically interesting. The Ninth Circuit, as you know, tilts 16-10 towards judges appointed by Democrats, and it was 16-8 -- two-third Democrats -- when this panel was drawn. However, the panel drawn for this criminal habeas case was a 7-4 Republican majority, and that's even after the automatic inclusion of the chief judge (the Carter-appointed Judge Schroeder). So the random draw pulled both Reagan appointees (Kozinski and O'Scannlain), both Bush I appointees (Rymer and Kleinfeld), and three-quarters of the existing Bush II appointees (Bea, Bybee and Callahan), while pulling none of the Carter appointees and only three of the thirteen Clinton appointees (Wardlaw, Paez, and Berzon). Statistically, that's both highly unlikely and very interesting. Moreover, from a practical perspective, if you're the defendants in this criminal habeas case -- which challenged the California prosecutor's allegedly race-based use of peremptory challenges -- you've got to be totally crying in your beer once you hear the panel. Meanwhile, in the California Attorney General's Office, the announcement of the panel had to have been cause for rousing cheers and multiple high-fives.

Finally, perhaps most interesting -- particularly in light of the above -- is the result. The defendant wins, and the panel reverses the murder convictions on a 6-5 vote. As probably expected, especially given the facts of the case, the defendants win all of the four Carter appointees. But they also win Judge Kozinski as well as, in a somewhat surprising outcome, Judge Bybee. The rest of the Republican appointees dissent.

What's perhaps most fascinating about this case is to ponder whether the panel composition actually made a difference -- if only at a low (and perhaps subconsious level) -- to Judges Kozinski and Bybee. Particularly in light of the swirling controversy about potentially splitting the Ninth Circuit. To my knowledge, there has never been a successful full-court en banc call. But had this case gone the other way -- had Judge Kozinski and/or Judge Bybee gone the other way -- I think there'd have been a serious possibility that this case would have been the first. Because I have no doubt how it would have come out had the entire court reviewed the matter.

Given those facts, I can't help wondering whether the result in this case wasn't altered on several different levels by the composition on the panel. It's a really intriguing case study, and so definitely worth mention.

People v. Smith (Cal. Ct. App. - Sept. 7, 2006)

Read the ten paragraphs that begin on page three of this opinion and see if you aren't happy that Curtis Smith will spend the next twenty-plus years in prison. His domestic assault on his spouse was truly a chilling and vicious crime.

Sure, Smith was clearly out of his mind at the time. But still. You gotta be put away -- for a long, long time -- when you do something like this.

Sass v. California Board of Prison Terms (9th Cir. - Aug. 31, 2006)

Slim, slim pickings today.

The Ninth Circuit published only two opinions today. The first, Feibusch, involves an incredibly fact- and contract-specific analysis of whether the disability benefits of a particular administrative assistant who allegedly was injured and could no longer type were properly terminated. Fascinating.

The second, Verizon California, consists of 29 single-spaced pages dedicated to the eye-poppingly boring issues surrounding whether, and to what degree, Verizon California is allowed under the Telecommunications Act of 1986 to collect call origination charges for internet-bound and pager calls (and calls that appear to the customer to be made within a local area code but in fact are not) as well as whether Pac-West is entitled to reciprocal compensation for "Virtual Local" or "VNXX" traffic. My goodness. I'm sure that someone cares, deeply, about these issues. But not me. I could barely keep my head off the desk as I struggled to avoid taking a nap and (mercifully!) reach the end of the opinion. ("Affirmed in part and reversed in part" was really all I needed to hear.)

Meanwhile, the California Court of Appeal has been utterly no help. They haven't published a single opinion today; moreover, the California Court of Appeal and the California Supreme Court have published a grand total of two opinions since September 1. As a reminder, it's now September 7. Let's pick up the pace, my friends.

So, in light of the foregoing, I decided that rather than remain silent today, I'd instead both (1) insult the various participants (done!), and (2) write briefly about an opinion on August 31st that I didn't previously have the opportunity to mention. And (2) is really just a shorthand for (3) insult my old boss.

Okay, so "insult" would be a strong term. How about "mildly disagree with"?

The underlying case is at least a tiny bit interesting, and is about whether Brian Sass should get out of prison on parole. He was convicted in California in 1988 of second degree murder because he killed someone when he was driving while intoxicated, and was sentenced to 15 years to life. So now his 15 years are up (and he even gets a fair amount of time off for good behavior) and he's trying to get parole. But the parole board keeps repeatedly denying him parole, and he files several habeas petitions alleging that's not right, arguing that he's no longer a danger to society nor was his offense unusually cruel. But the district court denies the petition and the majority opinion, written by Judge Goodwin, affirms.

What's most interesting about the case, however, is Judge Reinhardt's dissent. It's classic Judge Reinhardt, and is one of those cases that he's clearly very into -- indeed, that I'm quite confident he was more and more into with every one of the (very many!) drafts that I'm certain were prepared. It's one of those dissents that utterly slams the members of the majority opinion and that, while ostensibly doing so respectfully, is both ruthlessly hardhitting as well as very easy to take personally. It's worth reading the whole dissent, because this is a perfect example.

Alternately, if you're (somewhat) lazy, you can also get a brief glimmer of what I'm talking about from the last two sentences of the dissent. Which read as follows: "Regretfully, I conclude that what the majority has produced is a decision without a rational foundation or a legal justification. I firmly believe that one day my colleagues, who are both able jurists, will come to recognize and regret the erroneousness of their decision and the injustice it perpetuates."

The first sentence is an entirely accurate recitation of his beliefs, and he really does think that the opinion is utter crapola and doesn't even attempt to justify its findings. Whereas the second sentence is classic Judge Reinhardt.

With due respect to my former employer, I'm quite confident that Judges Goodwin and Hawkins will -- notwithstanding what Judge Reinhardt says -- never recognize the alleged errors of their ways and regret their decision. They think the decision is right. They continued to think it was write even after reading the dissent, and almost certainly always will. It's not that they lack compassion, or intelligence, or that they're temporarily confused and mistaken. They just disagree.

Sure, in a way, it's somewhat kind to say -- and really believe -- "I think you guys are great, and really do think that you'll come to see the error of your ways in this particular case eventually." But in another way, such an attitude can easily be taken as condescending.

See what you think. It's an opinion, and dissent, that's a lot more interesting than the snoozers that came out today!

U.S. v. Washington (9th Cir. - Sept. 6, 2006)

It's almost like a bad joke. Eric Washington gets convicted of bank robbery. He's got no priors as an adult, so (under the guidelines) he's looking at 41-51 months in prison. But the district court includes his juvie priors to increase his criminal history to category V, which results in a sentence of 77-96 months.

What are the juvenile convictions for, you might ask? Why does he get 3+ extra years in prison? Well, for, among other things, stealing candy from a baby. Or, more accurately, stealing candy from fellow children when Washington was nine years old.

Judge Hug, however, says: "Uh, I think not." If only because you don't have a right to a jury trial in juvenile court. So he remands for resentencing. (Plus, throwing someone in the clink for an extra three years because, among other things, they stole candy from children when they were nine years old seems totally harsh.)

Still. Stealing candy from a baby. It reads like an absurd law school hypothetical. And yet it's all too real.

In Re Tobacco II Cases (Cal. Ct. App. - Sept. 5, 2006)

Sorry, California smokers. You took it on the chin. Again.

Not surprising, I know. But in this opinion, Justice McConnell affirms the refusal to certify a class of California smokers who sought to bring class claims under the unfair competition law regarding allegedly misleading marketing and advertising activities by the defendants (e.g., "lights", "low tar", "all natural", and "no additives") in California.

Sorry, Justice McConnell says. She holds that Judge Praeger -- down here in San Diego -- correctly ruled that because Proposition 64 was retroactive, and hence required members of the class to show reliance upon the allegedly misleading statements, the common claims don't predominate over the individual claims, and hence class certification was inappropriate. So smokers can sue individually. Which means, of course, that -- in fact -- no one will sue at all.

As a random aside, especially in this season of law firm hiring, the composition of the attorneys are worth at least brief mention. Want to become an associates at a major law firm? Why not join Munger Tolles, which represents Phillip Morris? Or Jones Day, which represents Brown & Williamson. Or DLA Piper, which represents Lorillard. Or -- and this is my favorite -- Loeb & Loeb, which represents The Council for Tobacco Research.

Ah, my dream jobs. Damn me for leaving private practice.