Jones v. Catholic Healthcare West (Cal. Ct. App. - Jan. 31, 2007)

Who's breathing a huge, huge sign of relief today? Attorney Donald West of Stockton, that's who. Someone who should probably give Justice Cantil-Sakauye a huge hug the next time he sees her, I might add.

According to the trial court, Mr. West -- a Dartmouth man, I might add -- successfully turned a medical malpractice suit into a (likely) legal malpractice suit when he blew the statute of limitations. Because Mr. West allegedly blew the statute, the trial court granted summary judgment to the defendant. And the next step, almost certainly, was a legal malpractice claim against West.

But Justice Cantil-Sakauye reverses, holding that the telefaxed letter that West sent on February 2, 2004 effectively extended the limitations period and made the complaint timely.

Whew. Cut that one a bit close, didn't we?

Go Big Green.

McAllister v. County of Monterey (Cal. Ct. App. - Jan. 31, 2007)

Want to build a huge, 10,000+ square foot home on the coast at Highway 1 in Big Sur, but have a neighbor who's the chair of the World Wildlife Fund's Marine Leadership Committee? Not surprisingly, you've bought yourself a fight. A big one. As described in this 49-page opinion by Justice McAdams.

The "winner"of this battle is perhaps neither surprising nor clear. In the end, the rich owners get to build their huge house, albeit with slight modifications. But the neighbor successfully delays the project during the six-plus years the various objections and litigations are pending.

Who's the winner? You tell me. In a way, they both win. And they both lose.

People v. Flores (Cal. Ct. App. - Jan. 31, 2007)

Whoops. What happens when the judge forgets to instruct the jury about something so fundamental as the reasonable doubt standard? The conviction gets reversed.

Or at least it does here. There's an interesting doctrinal debate between Justice Huffman (who writes the majority opinion) and Justice McDonald (who writes separately) about whether such an error is subject to constitutional harmless error review or is instead structural error. My sense is that Justice McDonald, who argues the latter, probably has the better of the argument, but Justice Huffman articulates the contrary view fairly well. Still, to affirm a conviction in which the jury wasn't at all instructed about the reasonable doubt standard seems to expand harmless error review beyond its rational limits, and even purely as a matter of precedent, I think that Justice McDonald may better interpret the cases. (Plus, in truth, if harmless error was the appropriate standard, I think the prosecution would have a decent argument here. Justice Huffman does a great job of explaining why each of the various instructions given by the trial court didn't substitute for an actual reasonable doubt instruction. That said, I'm pretty darn positive that a jury -- and, in particular, this jury -- knows full well that a defendant in a criminal case can be convicted only when there's no reasonable doubt. That's pretty darn basic, and especially here, I can't fathom the jury not knowing that fact.)

Admittedly, here, it doesn't matter, since everyone on the panel agrees that defendant's conviction must be reversed under either standard. So, as applied here, it's a largely academic debate, albeit an important one whose conclusion may substantially affect other cases.

Parenthetically, how embarrassed must the trial court -- Judge Peter Deddeh (down here in San Diego) -- be about forgetting the reasonable doubt instruction. That's a pretty big mistake. And I'm sure one that he's not likely to repeat again anytime soon.

Safe Air for Everyone v. Environmental Protection Agency (9th Cir. - Jan. 30, 2007)

I always like it when there are opinions with captions like this one. I'm just waiting for "Kindhearted Helping Souls v. Evil Bastards" or the like. I wonder who'd win?

For what it's worth, in this one, Safe Air for Everyone prevails against the U.S. Environmental Protection Agency. In a case that might alternatively captioned "People in Idaho Who Want to Breathe Clean Air v. Farmers Who Want To Burn Their Fields." (Or, I guess, depending on your perspective, "Clueless Liberals v. People Who Want Less Expensive Food and the Preservation of Property Rights")

Anyway, objectively, appellants win.

In Re Malcolm M. (Cal. Ct. App. - Jan. 30, 2007)

Want to read about a wasted life? One that's not even nearly over, and yet already seems virtually destined to be a net negative for all involved? If so, read this case. Which can't help but depress.

Justice Ardaiz begins his opinion with the following line: "At age 10, appellant Malcolm M. joined several of his relatives in robbing and beating to death 69-year-old Alejandro Escareno." And goes downhill from there.

Read the whole thing if you want to see what happens to Malcolm thereafter. And why you probably don't want to ever meet him on the streets of Fresno.

Gilbert v. Sykes (Cal. Ct. App. - Jan. 26, 2007)

Loyal readers will know that I'm a big fan of Justice Butz. She generally writes excellent, erudite opinions, and ones that typically persuade me that she's totally right.

Except for this one. Mind you, this remains an excellent, erudite opinion, and at 30-plus pages, it's hardly an opinion that Justice Butz cranked out on a whim. Nonetheless, on the merits, I think it's pretty clearly wrong.

I'd have suggested the opinion as valuable reading wholly apart from my fundamental disagreement with its conclusion. For one thing, Justice Butz begins the opinion with the following eye-catching opening paragraph: "In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic. The number of people, especially women, who have had minimally invasive cosmetic surgery has grown exponentially in the past several years." That's not the usual opening gambit to something published in the California Reporter, so I liked the opinion from the outset.

The facts of the case are also interesting. It's about a plastic surgery that allegedly went bad, and a web site that the patient (Georgette Gilbert) subsequently created -- www.mysurgerynightmare.com -- that detailed, as the name of the site suggests, her experience with the process. This alongside a medical malpractice suit against the doctor who performed her plastic surgery, Dr. Jonathan Sykes. Ms. Gilbert also allegedly spent some real money and bought herself a sponsored link on Google so that whenever someone typed Dr. Sykes's name her web site came up -- a neat trick, and one that undoubtedly served to "bring home" the risks of the malpractice suit to Dr. Sykes. (By the way, when you type in his name now, Ms. Gilbert's web site remains the very first result you see on Google.)

Not surprisingly, Ms. Gilbert's web site hardly painted Dr. Sykes in a positive light, and was (and is) basically devoted to insulting the guy. (Read it if you don't believe me. The before and after photos are pretty telling -- we're not talking major mistakes here, but she puts up a very nice "before" photo and an overexposed "after" photo that indeed looks a fair piece worse.) The best part of the site, in my view, is when Ms. Gilbert includes a portion of Dr. Sykes's deposition in which he's asked if he's ever been a defendant to any other malpractice suits and to he responds "I think three others." To which Ms. Gilbert says (in 24-point, red, and all caps) that Dr. Sykes has in fact been involved in at least 11 medical malpractice suits, and then lists them. I thought that this basically encapsulated the dispute, since (1) these facts make Dr. Sykes look pretty bad, and likely justly so, since it casts a great deal of doubt about his credibility (which is pretty important when choosing a doctor to work on your face, no?), and (2) is deceiving -- even though it still has a point -- since around half of these 11 lawsuits were filed after he answered the question (and also included Ms. Gilbert's suit). In other words, it looks like both sides here aren't exactly being the most honest and forthright they could be.

So it's an interesting glimpse both into the world of plastic surgery as well as the inter- and intrapersonal dynamics that often attend a civil lawsuit.

All of which is worth reading, albeit irrelevant to the merits. As for the latter, this post is already too long, but it is probably sufficient to say briefly that I strongly disagree with Justice Butz's conclusion that Dr. Sykes is a limited purpose public figure. Dr. Sykes (as you might have gathered) filed a defamation counterclaim to Ms. Gilbert's malpractice action based upon the contents of her web site, to which Ms. Gilbert responded by filing an anti-SLAPP motion. The trial court denied the motion, but Justice Butz reverses.

The opinion properly holds, in my view, that the web site is an act covered by Section 425.16 as an act in furtherance of a person's right to free speech and in connection with an issue of public interest; e.g., the risks of plastic surgery. Dr. Sykes disagrees, but I think Justice Butz rightly dispenses with this objection. Where she gets it wrong, in my view, is on the merits -- on the probability of success. Justice Butz holds that because Dr. Sykes did numerous things to publicize his practice (e.g., advertising, appearing on local television shows, writing articles in medical journals), he's thereby become a limited purpose public figure on the issue -- and thus (unlike normal plaintiffs) must prove actual malice (by clear and convincing evidence, no less) in order to prevail on his defamation claim. Which he can't do. Hence, according to Justice Butz, Dr. Sykes loses the anti-SLAPP motion, and must pay all of Ms. Gilbert's costs and attorney's fees both below and on appeal.

I'm pretty convinced, however, that if Dr. Sykes is a limited purpose public figure on this basis than virtually everyone is -- or at least everyone worth suing. There was no showing that Dr. Sykes was actually prominent, only that he tried to become prominent by writing advertising and writing articles and the like. But of course he did that: that's part of his job, and is precisely how one advances (and gets business) in his field. If writing articles and advertising and/or being quoted by the media makes one a limited purpose public figure, then I know of around a hundred industries in which pretty much every single member has precisely such a status. Take the entertainment industry, or medicine, or (close to my heart) being a professor, or (perhaps close to yours) being a lawyer. You may well write articles, or be on television, or blog, or write newsletters. Under Justice Butz's view, this makes you a limited purpose public figure because you've deliberately attempted to interject yourself into a public debate. Which means that you can pretty much never be defamed, as you'll almost never be able to prove actual malice, much less with clear and convincing evidence. So get used to people calling you a liar or fraud or child molester or whatever, as you'll have no recourse. Moreover, if you try to file suit notwithstanding this counsel, get ready to pay the other side's attorney's fees, since you'll lose the anti-SLAPP motion that the other side will invariably file.

Yes, there are limited purpose public figures. But doing the types of routine, business-related activities that Dr. Sykes did here doesn't make him one. Much less is Dr. Sykes -- as Justice Butz asserts -- the "archtypical" example of a limited public figure. In my view, he's not one at all, and assuredly is not the classic example. Moreover, if he is, this involves a fairly expansive -- and radical -- interpretation of the doctrine.

So I agree with Part II of the opinion, as well as much of Part IV (in which Justice Butz goes line-by-line down the various defamation claims and finds no probability of success). But Part III just seems wrong to be, and wrong in a fairly serious way -- and one with widespread implications far beyond the reputation of Dr. Sykes.

Defamation and First Amendment stuff is hard, of course. Particularly amorphous and fact-dependent issues such as the public figure doctrine. Moreover, I have no doubt whatsoever that Justice Butz and the rest of the panel gave a great deal of thought to the issue, and that their constitutional views are well within the realm of the possible.

But I still think they're wrong. So, with all due respect to Justice Butz, you'll have to count me out on this one. I don't think that the First Amendment limited purpose public figure doctrine goes nearly this far.

Hall v. North American Van Lines (9th Cir. - Jan. 29, 2007)

It's only a complaint. Which, for 12(b)(6) purposes, we've got to assume is true, even if it's not.

Still, the next time you move, if you're thinking about using North American Van Lines, perhaps you should read the second page of this case and see what they allegedly did to Eva Hall. And then read the remainder of the opinion and see why Ms. Hall ends up recovering nothing. Plot-stealer: The 1906 Carmack Amendment to the Interstate Commerce Act of 1887 is often the moving company's best friend.

Williams v. Superior Court (Cal. Ct. App. - Jan. 26, 2007)

This opinion kicks butt.

It's by Justice Haller. It's incredibly good. Perhaps most impressive is that it deals fairly and equitably with a case (1) in which the overall sleaze factor is relatively high (e.g., lots and lots of Machiavellian manipulation of the rules and "gotcha" litigation tactics), and (2) in which it's extremely uncertain which side has the better of the argument, and in which the stakes are relatively high.

I thought that the opinion was worth reading even before I got to the discussion of the merits. The underlying factual circumstances are very interesting, and surround a lengthy -- and understantably important -- fight between the maternal grandmother and the father/paternal grandparents over who should be appointed as the guardian ad litem for minor daughters suing for their mother's death in an automobile accident. Father was in the midst of divorcing mother at the time of her death, and has his own separate claim against the defendant, so the maternal grandmother doesn't want him to control the litigation (in part because she fears he's more interested in money flowing his way than on behalf of the kids). But Father doesn't have a great relationship with Maternal Grandmother (he was, after all, in the midst of a divorce with mother), so Father would rather have his parents (Paternal Grandparents) represent the kids instead.

I'll not repeat all the procedural tricks and races-to-the-courthouse that each party used in an attempt to get their way. Suffice it to say that there was much going on here, and all of it was interesting. Even before I got to the discussion of the merits, I was also struck by how much all of the underlying judges involved -- Judge Kevin Enright and Judge Linda Quinn (both of whom are down here in San Diego) -- really made a hard core effort both to get things right and to do what's fair. Which, especially in this case, is no small task.

Justice Haller also does the same thing, and her opinion is also really impressive. So I was struck with both the situation as well as how, as I was reading Justice Haller's opinion, she ended up persuading me more and more on every page. Again, it's a hard issue. Rarely do I think that opinions on tough, close issues are really good. But this one is an exception. It's really good.

In the end, maybe I'm overly effusive both because (1) I thought that every participant in the process was trying their absolute best here -- and, in general, I'm not at all sure that's uniformly the case, so I'm very glad (and a little bit surprised) to see it, and (2) in the end, substantial justice was accomplished. So a good day. And a good way to end the work week.

U.S. v. Hector (9th Cir. - Jan. 25, 2007)

I agree with Judge McKeown here. Judge Pregerson -- up in L.A. -- (1) suppressed the results of a search because the officers didn't give the occupant a copy of the warrant, and (2) entered a post-trial judgment of acquittal on Count Two, which charged the defendant with possessing a firearm in furtherance of a drug crime, holding that the government had merely demonstrated possession of the weapon, not use in furtherance.

Judge McKeown, in a very well-written opinion, reverses on both issues. I think she's right.

The warrant issue seems controlled by the reasoning (if not the holding) of the Supreme Court's recent decision in Hudson, which held that suppression isn't proper for constitutional violations that fall short of being the unattenuated but-for cause of obtaining the disputed evidence. And although parsing out the many fact-specific cases on both sides of the acquittal issue isn't easy, I also think that the evidence was sufficient here to establish possession in furtherance -- or at least that a rational jury could so conclude.

The only thing I'd change about this opinion is the double-negative that Judge McKeown uses on page 1011. But, hey, I wouldn't have written nearly as good of an opinion as she did, so take my complaint in this regard as merely the whine that it is.

Temple City Redevelopment Agency v. Bayside Drive Ltd. Partnership (Cal. Ct. App. - Jan. 25, 2007)

I'm going to have to respectfully disagree with Justice Vogel here. Though I recognize that our disagreement may largely be a philosophical one, and one upon which reasonable minds can -- and surely do -- disagree.

Justice Vogel believes that when the words of a statute are clear, the courts should follow them, even when -- as here, in my view -- the result is absurd, and clearly one that the Legislature did not intend. So, here, CCP 1268.610(a)(1) says that a defendant is entitled to recover his litigation expenses (including attorney's fees) "whenever[ t]he proceeding is wholly or partly dismissed for any reason." Justice Vogel concludes that this statute means what is says. So that a defendant who gets dismissed from a lawsuit because he voluntarily sold the property subject to condemnation, thereby changing owners, during this suit is entitled to a windfall recovery of his entire attorneys' fees and costs in that suit. Even though the only reason he was dismissed is because he essentially gave up and sold the property to someone else. Which, by the way, was precisely what happened here, and the basis on which the defendant requests -- and Justice Vogel awards -- over $40,000 in costs and fees, in addition to other costs and fees on appeal.

I disagree. To me, the Legislature clearly did not intend such a result. Moreover, such an interpretation would lead to absurd results; for example, a defendant who died (or became incompetent) would be entitled to recover, or who sold the property and then repurchased it, or who sold the property to a relative -- all of these individuals would be entitled to drain tens of thousands of dollars from the public fisc even if the city ultimately won the lawsuit on the merits, since these changes would mean that the defendant was (at some point) dismissed from the lawsuit.

We see this sort of thing play out in various contexts: for example, in statutes that say "no less than 7 days" when the Legislature clearly and indisputably meant "no more than 7 days". Some judges say: Follow the law as written even if it's totally absurd. Others say: "The whole point of judges is to judge, not merely to be an automaton and apply the words of a statute as if they were a robot." I think that the case for judicial review and interpretation of a statute is greatest when, as here, there's no substantial reason whatsoever to believe that the Legislature intended the statutory language to cover this particular set of circumstances and in which an award to one side would be manifestly -- and uniformly -- viewed as unjust.

There's profound wisdom in a contrary view, of course, both in general and as applied to the facts of this case. But I'd still have come out the other way on this one.

See what you think.

U.S. v. Jernigan (9th Cir. - Jan. 23, 2007)

It's been an en banc bonanza in the last couple of days. The Ninth Circuit took two cases -- Castillo and Aukai -- en banc on Monday. And then they just took this one -- Jernigan -- en banc as well.

I'm not especially surprised to see this last one go up. I blogged about this one when it came out, and mentioned that Judge Betty Fletcher's dissent was pretty good. (Then again, so was Judge Thompson's opinion, in my view.) The case highlights starkly divergent judicial philosophies. And, in truth, I think that there may currently be more judges on the Ninth Circuit with Judge Fletcher's philosophy than with Judge Thompson's.

So it'll be worthwhile to see what the draw is for the en banc panel. But, barring something unusual, I'd be surprised if you didn't see the panel opinion get reversed en banc.

We'll see.

Manderville v. PC&S Group (Cal. Ct. App. - Jan. 24, 2007)

It's been a slow day today -- just one published opinion each from the Ninth Circuit and California Court of Appeal. One involving fish and the other involving real estate.

For what it's worth, I agree with the opinion today by Justice Nares, which reverses a grant of summary judgment by Judge Lim and holds that an exculpatory contract in a real estate purchase agreement that basically says "do your own investigation" doesn't necessarily absolve the seller from claims arising out of their alleged misrepresentations to the buyer that the lot could be subdivided when, it fact, it couldn't. Sure, I'm biased, both because Justice Nares is a USD alum as well as an incredibly nice fellow (I sat next to him at lunch on Friday and very much enjoyed talking with him). But I'd still be more than willing to slam him if I thought he got this one wrong. Fortunately, he didn't.

Except, by the way, for those crazy marks at the end of the first paragraph on page four. What the heck is "420:25-421:4)!" doing at the end of the sentence?! I mean, I can understand the partial parenthetical; my sense is that the law clerk forgot to delete this part -- undoubtedly a record citation -- when editing the draft opinion for publication. But the exclamation point?! Not something you usually see.

Get that mess out of there and the opinion will be fine.

POSTSCRIPT - My favorite CCoA gnome just sent me an e-mail letting me know -- and I love minutia such as this -- that the "!" comes from the macro the Court of Appeal uses in Microsoft Word. Apparently they put things like record citations between exclamation points [e.g., !(Andrew Deposition 10:12-14)!] and then run a macro to delete every such reference. Which works. Usually. Unless, as here, you forget to insert, or delete, the first exclamation point. Then it just looks silly.

My advice is to run the macro and then proofread, rather than vice-versa. Or just write a blog and don't worry about typos, misspellings, and the like. Either way works.

Valeriano v. Gonzales (9th Cir. - Jan. 23, 2007)

I'm fairly confident that Judge Kleinfeld gets this one right, and that Jose Valeriano -- a 34-year old Mexican national with three United States citizen children -- isn't entitled to equitable tolling, and hence can and will (and, legally, should) be deported to Mexico. Sure, Valeriano hasn't committed any criminal offenses here, and sure, he might perhaps have a defense to deportation on the merits. But his lawyer apparently filed the notice of appeal six days late (and then lied about it), and then waited too long to file a motion to reopen. So deported ye shall be.

All of which is how the law likely declares it should be. And hence, as a judge, you're largely obliged to make it so. The first three pages of the opinion nonetheless starkly highlight that, sometimes, people -- and their U.S. citizen children -- may well be deported from their homes and country based not upon the merits, but rather upon the (sometimes inexplicable) mistakes of their counsel. Which is sad.

Sure, technically, in this area, you're responsible for your counsel's errors. That's (basically) the law. Still, it doesn't seem very nice -- or, on occasion, very fair. Especially given the type of counsel that uneducated, poor illegal immigrants are generally able to afford. Which is to say: Not so good.

None of this is to claim that Valeriano shouldn't be deported. He probably should. But the first three pages nonetheless make you wonder. Or at least force you to recognize the occasional -- and stark -- injustice that must surely arise in at least some deportation proceedings.

People v. Coleman (Cal. Ct. App. - Jan. 23, 2007)

It's pretty rare for the Court of Appeal to buck precedent and reverse a conviction on insufficiency grounds. Especially for high-profile offenses like -- as here -- carjacking.

But that's what Justice Doi Todd does here. She concludes that existing precedent is wrong, and that what Chris Coleman did here entails merely robbery, not carjacking.

The argument in favor of Justice Doi Todd's position is that this is, assuredly, not your typical carjacking, and not what the Legislature had in mind when it codified the offense. Yes, Coleman took a car at gunpoint, but (1) he took it from someone sitting at an office desk, in a business, when the car was parked outside, and (2) it wasn't even her car -- it was the car of her boss, and she merely had access to his keys, which he had left in the office when he went to a job in another vehicle. So not really a classic carjacking when you shove a gun in the driver's face and throw her from the vehicle. On the flip side, however, the definition of a carjacking is pretty (and deliberately) broad, and the statutory text may well cover what transpired here.

It'll be interesting to see what happens with this one. For now, however, Coleman's convicted of robbery, not carjacking.

People v. Nguyen (Cal. Ct. App. - Jan. 22, 2007)

This case completes the trilogy. An Apprendi/Booker/Blakely opinion today by the Supreme Court. Then one from the Ninth Circuit. And, now, one from the California Court of Appeal.

This one's about prior juvenile convictions (technically, juvenile "adjudications") and whether it's permissible to use them to enhance an adult defendant's sentence even though there's no right to a jury trial in juvenile prosecutions. Justice McAdams, in a very scholarly and comprehensive opinions, says "No," holding that to do so would violate Apprendi and Blakely.

This is an opinion worth reading. Even if it may well not be around all that long: given the significant sea change in California sentencing that it presages, I wouldn't be surprised if the California Supreme Court grants review -- or, perhaps more likely, depublishes the opinion (a distinct possibility given that Justice McAdams ends up affirming the sentence below on the ground that this particular defendant admitted the prior juvenile offense).

Moreover, the timing was interesting: I doubt that Justice McAdams realized that it would be released on the same day as the U.S. Supreme Court's opinion in Cunningham. Admittedly, the opinion in Cunningham only bolsters Justice McAdams' view. But he might have written the opinion a bit differently -- if only to include additional support -- upon reading the Supreme Court's contemporary view of related objections to California's sentencing scheme. (For this reason, we might well see a modification of the opinion soon, if only to include a brief mention of Cunningham. On the flip side, the change in sentencing structure compelled by Cunningham to some degree makes the holding in Nguyen moot, since the contemporary enhancement regime in California now requires revision to satisfy Blakely not only in juvenile cases, but in all other cases as well.)

This nonetheless remains a substantial, and interesting, opinion. And for anyone who doubts the potential significance of student-written law review articles, the first dozen or so pages of the opinion should help put those doubts to rest. Justice McAdams cites quite a few of them to support his holding, and his analysis on the merits often mirrors many of the arguments raised in these student-written comments. So don't think those law review notes necessarily entail merely spilled ink. They can matter. Including the very first one cited by Justice McAdams: a 1995 student-written comment by a then-USD student, and current California attorney, Lise Forquer (now Lise Jacobson) in the San Diego Law Review.

Great job, Lise.

U.S. v. Mercado (9th Cir. - Jan. 22, 2007)

Today's a huge Booker/Blakely day.

Here's another opinion -- this one from the Ninth Circuit -- about what facts can permissibly be used in sentencing. The opinion by Judge Fernandez holds, consistent with the view of all of the other circuits that have considered the issue, that a judge may increase a sentence even based upon conduct for which the defendant has been acquitted at trial.

What's most interesting about the case is Judge Betty Fletcher's dissent. It takes a lot to get Judge Fletcher to dissent, and given the uniformity of the federal circuits on this issue, it may facially be surprising that she elects to dissent here. Nonetheless, the use of acquitted conduct in sentencing is sufficiently counterintutive -- at least to Judge Fletcher -- to compel a dissent.

Judge Fletcher's dissent has some pretty good lines, and uses Blackstone and others to highlight the significance of a jury's verdict and the dangers that arise from the rejection of that verdict in sentencing. She says, for example: "By considering acquitted conduct, a judge thwarts the express will of the jury . . . and imposes a punishment based on conduct for which the government tried, but failed, to get a conviction. Such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant’s equals and neighbors. . . . The fact that a jury has not authorized a particular punishment is never more clear than when the jury is asked for, yet specifically withholds, that authorization." Pretty powerful stuff.

In the end, I think that Judge Fernandez probably correctly predicts what the Supreme Court would hold; namely, that Watts survives Booker. But Judge Fletcher makes some darn good policy arguments to the contrary, and were Watts ever to be revisited, her dissent would be a good starting point. Especially in a case like this one, when the sentence that the defendants receive is based almost entirely on conduct for which they were acquitted.

Judge Fletcher says that "[w]hen a jury refuses to convict defendants of several counts, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants’ sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense." She's got a point there. Not one, I think, that's recognized by precedent. But a point nonetheless.

Cunningham v. California (U.S. Supreme Ct. - Jan. 22, 2007)

Time to revise California's entire sentencing scheme.

The U.S. Supreme Court held earlier today that California's determinate sentencing laws violate the Sixth Amendment (as incorporated by the Fourteenth) under Apprendi/Blakely/Booker by permitting enhanced sentences based upon judicial factfinding on the preponderance of the evidence standard. Most everyone I know who followed this case thought it was going to come out this way, and the Supreme Court refused to disappoint. The decision was 6-3, with Justice Alito joining the expected dissents of Justices Breyer and Kennedy.

So now the California Legislature has some real work to do. And quickly. Plus, prepare for an avalanche of post-Cunningham sentence appeals (and habeas petitions) in California. Everybody's job just got a little bit harder today.

Parenthetically, the decision in Cunningham is a victory for Justice Jones, who dissented in the Court of Appeal and has repeatedly argued that California's determinate sentencing laws are unconstitutional, and could not be distinguished from Blakely. It's also somewhat of a victory for Justice Kennard, who dissented in People v. Black on similar grounds. The Supreme Court's decision essentially proved both of them right. California's sentencing regime doesn't survive the Apprendi/Blakely/Booker trilogy, and the attempts to distinguish California's laws from those previously invalidated by the U.S. Supreme Court simply don't work.

P.S. - One final point. There are good reasons why the syllabus prepared by the Reporter of Decisions don't constitute part of the opinion by the Supreme Court. Check out the citation to People v. Black in the syllabus. It's wrong. It's 35 Cal. 4th 1238, not 35 Cal. 4th 1230.

Kurwa v. Harrington, Foxx, Dubrow & Canter LLP (Cal. Ct. App. - Jan. 11, 2007)

Representing yourself -- even if you're an attorney -- is often a bad idea. You won't obtain neutral, impartial advice. You'll often convince yourself that motions are meritorious when, in fact, they're utterly frivolous; or, at best, meritless.

Like here.

Admittedly, maybe attorney Dale Goldfarb (and his firm, Harrington, Fox, Dubrow & Canter) -- both of whom are defendants in the case -- are merely responding to the lawsuit with a scorched earth policy, and hence do not care whether the motions are likely to succeed. Still, I've rarely seen a more meritless anti-SLAPP motion than the one they filed here. It didn't persuade Judge Oki. It didn't persuade anyone on the Court of Appeal, either, and Justice Armstrong rightly affirms the trial court's denial of the motion.

The only relief that Mr. Goldfarb and Harrington, Fox end up with is a cost award against them. They're lucky, in my view, not to be sanctioned for a frivolous motion and/or appeal.

But, hey, if all of this was deliberate, and they totally knew that they were filing a motion and subsequent appeal that had virtually no shot in hell of being granted, and was merely designed to delay the action and frustrate the plaintiff: Great job. It worked. Congratulations on avoiding a fee award the other way!

Frunz v. City of Tacoma (9th Cir. - Jan. 16, 2007)

Don't mess with Judge Kozinski. Because if you do, you'll be the one burned, not him.

There's no better evidence of the truth of this aphorism than this order. Which, technically, is by the panel, and is unsigned. But since the underlying opinion is Judge Kozinski's, and given the tenor of the subsequent order, I've got a pretty good sense who wrote it.

The order is, essentially, eight straight single-spaced pages of devastating insults on counsel for the City of Tacoma. Judge Kozinski, in a footnote in the original opinion, had ordered defendants -- the City of Tacoma, the Tacoma Police Department, and various Tacoma police officers -- to show cause why they shouldn't be sanctioned for filing a frivolous appeal. Defendants responded to the order, and this order entails the panel's reaction to their response.

Let me give you a little hint as to how one should respond to Judge Kozinski, in particular, if he ever issues an order to show cause. Your mantra should be: "Mea culpa, mea culpa, oh, God, mea culpa. Please, oh Lord, oh please show mercy, in your infinite wisdom, on my prostrate and humble soul. I am unworthy. I deeply, and with reverence, aplogize for my transgressions."

Your mantra should definitely not be: "You're wrong. What I did was totally fine. You're mischaracterizing what I did and what I said. Get your act together." Because that's what the City of Tacoma did, at least in part, here. And, let me tell you, it did not have the desired effect.

It's not that Judge Kozinski gets especially nasty. But the panel's order is relentless, and pounds home both at length and in excruciating detail why the defendants are wrong, why their purported precedential distinctions are frivolous, and why the panel correctly assesed defendants' appeal as potentially frivolous. Moreover, one quickly gets a very keen sense from the order that, rather than make things better, the defendants' response to the order to show cause only made things worse -- and much worse at that. The response, which (according to the panel) merely continued to mischaracterize and misstate the record, only demonstrated that counsel was without remorse and still failed to recognize the impropriety of what has previously transpired. And so was in desperate, desperate need of a spanking. Which the panel was all-too-happy to administer.

Wholly beyond Judge Kozinski's particular personality traits, it's generally a bad idea to respond to an order to show cause from the Ninth Circuit with anything other than a profound mea culpa, especially in a case like this. Telling the panel "You're the one that's wrong, not me" isn't going to work, if only because (1) the judge, and -- perhaps even more importantly -- (2) his or her clerks will virtually uniformly defend, with gusto, their prior opinions and work product. Which is, in fact, precisely what you see in this order. And since the Ninth Circuit gets the last word -- after all, their opinion is published, and your response is not -- the panel has the ability to really publicly slam you, painfully, with little recourse on your part.

Everyone makes mistakes. Even big ones. And, at times, virtually everyone has been accused of something they don't think is right. I'm thus not surprised that the natural reaction of defendants (and their counsel) to the order to show cause was, at least initially, to be a bit defensive.

But you've got to let that go. If only for your own good. Otherwise you end up with an order like this one. Which ends not only by imposing sanctions, attorneys' fees, and double costs, but adds (for good measure) the following as its concluding sentence: "No later than 10 days from the date of this order, defense counsel shall serve a copy of this order, together with our opinion, on each member of the Tacoma City Council and on Eric A. Anderson, the Tacoma City Manager."

Not what you want to see -- or do -- if you're the attorney for Tacoma.

So memorize the words. Mea culpa. They may not do a world of good. But they're often a lot better than the alternative.

Fisher v. City of San Jose (9th Cir. - Jan. 16, 2007)

Sometimes you can't put a book down even after reading only the first page. For me, that was definitely the case with this opinion. Here's the second paragraph of Judge Berzon's opinion:

"On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events."

To paraphrase Dorothy Boyd in Jerry Maguire: You had me at "beer, baseball and guns."

Read the rest of the opinion to find out what happens. Let's just say that baseball figures less prominently in them than the other two.

P.S. - When you're surrounded by 60 cops, intoxicated, and heavily armed, the articulation of a rambling, drunken diatribe regarding your rights under the Second Amendment -- however valid -- may not be amongst the most prudent courses of action you could possibly take. Just a friendly reminder.

Alvarado v. Superior Court (Cal. Ct. App. - Jan. 16, 2007)

Life (and people) are weird sometimes.

Kevin Alvarado was a regular customer at the Texaco mini mart in Azusa, and knew the clerk there -- who also had the last name Alvarado, no relation -- pretty well. Listen to what the defendant did on May 27, 2006:

"On May 27th petitioner [Kevin Alvarado] was in the mini mart three times. Petitioner came in the first time around 2:30 p.m. with a friend and stayed for nearly an hour talking with Alvarado. An hour and a half later petitioner and his friend returned to the mini mart. Petitioner’s friend purchased some beer and the men visited with Alvarado for another 30 minutes or so before leaving.

Petitioner went to the mini mart again shortly after 7:00 p.m. . . . Alvarado came to the front of the store and saw petitioner standing near the beer cooler drinking a beer he held in his hand. Alvarado thought petitioner looked nervous. Alvarado asked petitioner “what was going on?” Petitioner did not respond. Alvarado saw some young men outside and asked petitioner if someone had been chasing him. Again, petitioner did not respond. After a moment petitioner told Alvarado, “I want you to call the police and stand outside of the door.” Alvarado did not take petitioner’s request seriously. Petitioner again asked Alvarado to call the police. Petitioner told Alvarado, “Don’t worry about it. I’m not going to hurt you. Just stay outside, because it’s going to get nasty right now when the police come, between me and the police.”

Alvarado thought petitioner’s comments were completely out of character for the person he knew. Alvarado did not believe petitioner and thought he was just joking or playing around. Alvarado kept asking petitioner, “Are you serious?”

Alvarado finally called police from inside the store. He then noticed a gun lying on top of a rack of candy approximately a foot away from where petitioner stood. The gun was approximately 18 inches long and was later identified as a Mossburg 18 gauge shotgun. From the way it lay on the rack the gun barrel was pointed in the general direction of the glass wall. Alvarado asked petitioner whether it was a BB gun. Petitioner shook his head, “No.” Petitioner told Alvarado not to worry, “I’m not going to hurt you. You’re a cool guy. But I’m on a suicide mission.”

Petitioner opened another beer and lit a cigarette. He told Alvarado to call the police again. At that moment two customers approached the store. Petitioner told Alvarado to go outside and keep the customers from entering the store. Petitioner said it would be best if Alvarado stayed outside as well.

Alvarado went outside to warn the customers off but came back inside to try to talk petitioner out of his plan. Eventually, Alvarado went back outside and called police on his cell phone. He told the 911 dispatcher there was a man inside the store with a gun. The dispatcher informed Alvarado police units were already on the scene. Alvarado turned around and saw a police cruiser at the intersection. Officer Rocky Wenrick spoke with petitioner from outside the store on a cell phone which belonged to petitioner’s brother. Petitioner told the officer “people were fucking with him,” he was on a suicide mission, he was “tired of life and wanted to end it
now.” The officer asked petitioner several times to come out of the store. Petitioner responded he wanted to drink his beer while he decided what to do. Petitioner asked to speak with a police officer inside the store. Officer Wenrick told petitioner “that wouldn’t happen.” Petitioner next asked to speak with a person he trusted at the Pacific Clinics.

After about five minutes of conversation, petitioner came out of the store unarmed. Another officer recovered the shotgun from the top of a potato chip/candy rack."

That's a pretty weird story. But let me ask you this: What crime do you think the defendant is charged with?

There are lots of potentials, obviously. Firearms offenses, etc. But, perhaps surprisingly, the answer is: Burglary. Which is a strange answer, though, doctrinally, burglary is a strange crime, so I think that's a proper charge. It's even weirder, though, when the state adds an enhancement allegation that defendant "used" a firearm in the commission of the burglary. Ultimately, Justice Johnson holds that he didn't, and grants his writ petition to strike the allegation. Which also makes sense to me.

Still, I'm left with the sense that neither law nor life is very intuitive sometimes.

Colon v. United States (9th Cir. - Jan. 16, 2007)

Another interesting civil procedure opinion from the Ninth Circuit today. Judge Tallman holds -- in a telling and important decision -- that the district court did not abuse its discretion in binding plaintiff to a set of case-conclusive admissions given the plaintiff's failure to timely respond to various RFAs.

One can learn a variety of lessons from the opinion. First, and most obviously: Respond to RFAs on time. Don't forget. Especially in federal court. Or, in the alternative, be prepared to lose your lawsuit. This is a seemingly facile message, but one that nonetheless bears repeating. The failure to respond happens more than one might think, sometimes -- as here -- with devastating consequences.

Second, at least in part, Judge Tallman's opinion shows a remarkable ability to close one's eyes as to what's really going on. The United States (which was the defendant in this FTCA case) propounded a couple-dozen RFAs to the (essentially pro se) plaintiff, who had already failed to attend a couple of settlement conferences.
Several of these RFAs were your classic "I hope you don't respond to these, since the only real point of them is to bind you to them if you forget" type. Which, of course, is precisely what transpired. See, e.g., Request #7 (“The U.S. Parole Commission’s issuance of the February 12, 1998 violator warrant was not caused by any negligent or wrongful act or omission of any employee of the United States”); Request #13 (“Your February 20, 1998 [sic] arrest was not caused by any negligent or wrongful act or omission of any employee of the United States”); and Request #26 (“No portion of your incarceration from February 20, 1998 [sic] to December 15, 1999 was caused by any negligent or wrongful act or omission of any employee of the United States.”)

Judge Tallman refuses to let plaintiff out of being bound to these admissions based upon his failure to respond to them in a timely fashion by saying -- as he pretty much has to, given prior precedent -- that the U.S. wasn't merely out to mess with the plaintiff by hoping he'd fail to respond. On page 643, Judge Tallman writes: "This is not a situation in which the United States used a request for admissions to gain an unfair tactical advantage. Cf. Perez, 297 F.3d at 1268 (stating that Perez used the rule “to harass the other side . . . with the wild-eyed hope that the other side w[ould] fail to answer and therefore admit essential elements”). But come on. That's precisely what these requests were for. And Justice Tallman -- who's a former DOJ attorney and AUSA himself -- surely knows this fact, as does anyone who's ever practiced for any substantial period of time. Can we come up with other reasons for these particular requests, which basically said: "Admit that you totally have no case and that we are entitled to summary judgment"? Sure. They'll make the plaintiff, once he denies them, state (alongside related interrogatories) the reasons for his denial and the evidence relevant thereto. But let's get real. The reason these are RFAs instead of straightforward interrogatories is precisely because we hope that the other side won't timely respond. And, with all due respect to Judge Tallman, that's exactly what -- in my view, at least -- transpired here.

None of this means that the plaintiff shouldn't potentially be bound, especially given his lack of diligence in responding. But let's not kid ourselves about what's going on here. We're basically giving the United States a huge windfall. Especially in a case where, as here, the U.S. might well be liable on the merits. Judge Tallman's opinion makes it sound like the United States would seriously be injured in trial preparation absent binding the plaintiff to these admissions. But that's only because we'd be taking away something that the U.S. obtained fortuitously, as a result of the other side's incompetence. Which may or may not be fair, but at least in this case, that's what we're doing.

There's another substantive aspect of the case as well, and civil litigators should definitely read -- or at least be aware -- of Part IV of the opinion. Which substantively changes the law in the Ninth Circuit and makes it much, much easier for district courts to bind parties to admissions for failure to timely respond even absent prejudice to the propounding party. That's a huge change, and makes it much more likely that a court would bind a party in such settings.

So definitely propound those case-dispositive RFAs. Especially now. Sure, gussy them up with other RFAs so it doesn't look like all you're doing is trying to win the case on a procedural trick. But, nonetheless, be sure to do precisely that. As the United States does here.

Efaw v. Williams (9th Cir. - Jan. 16, 2007)

I knew this was going to happen. It's the first day of the Spring semester, and I have two classes today. Plus grading to finish by the end of the week and edits of an article that the law review wants no later than the end of the day today. So, of course, the Ninth Circuit -- after the long weekend -- publishes ten different opinions. Let's hear it for starting your day with 200 pages of dense legal prose.

Okay, I'll stop complaining now. Actually, several of the Ninth Circuit opinions were pretty interesting. This one, for example, was something that I've never seen before -- indeed, that (to my knowledge) is the first of its kind ever. It's a rare case, and involves a lawsuit in which service of process was not made on the defendant at issue for a full seven years after the filing of the complaint. That's a long time; indeed, even after reading the facts of the case, I don't understand how the matter was left to languish for so long, especially in this era of fast track courts and pretty effective case management strategies. Regardless, apparently it happens, and in this case, the defendant moved to dismiss under Rule 4(m) given the seven-year delay, the district court denied the motion and gave the plaintiff another 30 days, plantiff successfully served, defendant lost at trial, and defendant appeals, claiming that the extension of the 120-day period for service of process under Rule 4(m) was an abuse of discretion.

And Judge Graber agrees. As far as I can tell, this is the first published federal appellate opinion ever in which an extension under Rule 4(m) has been held to be an abuse of discretion. Rarely do you see "firsts" nowadays, and I think this may well be one. So that's interesting.

The case is also worth mention because Judge Willie Fletcher's dissent is very -- and sincerely -- moderate and respectful. It begins with this line: "I respectfully dissent in this close case." Which is a nice way to begin, and the remainder of his dissent continues this refrain. Including this paragraph, which I think captures the calm and dispassionate nature of Judge Fletcher's dissent (as well as his views on the merits): "Further, although Williams was prejudiced by delay, and although seven years is an extraordinary delay, the most significant prejudice to Williams’ defense cannot be attributed to this delay’s extraordinary length. The greatest harm to Williams’ defense between 1996 and 2003 was the death of Williams’ co-defendant Kerr. Kerr’s testimony might have corroborated Williams’ account and convinced the jury to hold in her favor. We were told at argument that Kerr died in 1998, only two years into the delay. Two years’ delay in serving a defendant is not extraordinary. See, e.g., McGuire v. Turnbo, 137 F.3d 321, 323-24 (5th Cir. 1998) (service timely where plaintiff served defendant within court’s extended deadline, nearly two years after filing suit). Thus, the extraordinary length of the delay in this case contributed less to the prejudice to Williams than it might seem at first blush, and certainly contributed less than if Kerr had died in the seventh year (in which case I might have joined the majority)." Rarely do you read dissents that admit that the change of a single fact might well have changed the dissenter's vote.

Ironically enough, I'm going to talk about service of process today in my Pretrial Practice class. Which begins in 25 minutes, so I'll finish up for now. Suffice it to say that I enjoyed this opinion, and at eight pages, it isn't a long one at all. It's a nice, compact dispute -- and one worth reading even for those less obsessed than I am with procedural minutia.

Ochoa v. Fordel, Inc. (Cal. Ct. App. - Jan. 12, 2007)

I'd have thought that the plaintiff's law firm would have been disqualified in this one once they hired a partner from the law firm representing the defendant. Especially given that the partner they hired both had his office next door to the attorney litigating the case on behalf of the defendant and admitted to reviewing information about the case while he was with the firm. But Justice Vartabedian decides otherwise.

I'm not firmly convinced that Justice Vartabedian is wrong, and he writes a decent opinion that defends the refusal to disqualify. But the application of imputed disqualification principles here is not what I'm used to seeing from the California Court of Appeal, which is generally more protective of the potential for impropriety in situations such at this. Especially when the partner hired from the defendant's firm becomes the second person in a two-person firm representing the plaintiff.

Plaintiff's counsel is W.J. Smith & Associates (see their flashy web page here), counsel for the defendant was Jory, Peterson, Watkins, Ross & Woolman (see their equally flashy -- but very different -- web page here), and that partner hired from Jory Peterson to go to W.J. Smith was Shelley Bryant (a Davis graduate).

Interesting case.

U.S. v. Reynard (9th Cir. - Jan. 12, 2007)

Speedy adjudication this ain't.

I was initially struck by this case when I saw the caption and happened to notice that the district court docket number was from 1998 (CR-98-02402-IEG). That's pretty unusual. There aren't many direct appeals left from the 20th century. Then I noticed that even though it's now 2007, the appeal had been docketed in 2002 (No. 02-50476), five years ago. And this is no death penalty case, which sometimes entail substantial -- and often strategic -- delays. This is actually a pretty important opinion, and concerns the constitutional validity of the
DNA Analysis Backlog Elimination Act of 2000, which requires inmates (and those on supervised release) to provide a blood sample for analysis. Reynard, who had been convicted and sentenced prior to passage of the Act, argued that this statute (1) violates the Fourth Amendment, (2) is impermissibly retroactive, (3) violates the Ex Post Facto Clause, (4) violates the Commerce Clause, and (5) violates the Fifth Amendment.

These are pretty weighty challenges. And ones that concern a large number of different people. So having the case take five years until it gets decided isn't exactly optimal.

Eventually (and I think that at least some of the delay was perhaps justified), the Ninth Circuit rejects these challenges and upholds the validity of the Act. Even though Judge Pregerson dissents to part of the opinion and argues -- interestingly enough -- that the DNA Act survives all of these challenges except the Commerce Clause claim. Not something that you would intuitively expect from Judge Pregerson, who hardly started out his tenure with a keen sense of the limitations of Congress' power under the Commerce Clause.

Judge Pregerson's dissent also makes for an interesting lineup, which looks more like something we're used to seeing from the Supreme Court than in the Ninth Circuit: "PREGERSON, J., delivered the opinion of the Court as to Parts I through II(D), in which TASHIMA and CLIFTON, JJ., joined. CLIFTON, J., delivered the opinion of the Court as to Part II(E), in which TASHIMA, J., joined. PREGERSON, J., filed a dissenting opinion as to Part II(E) and dissents from the judgment." Which, of course, just means that Pregerson decided to write the opinion even though, in the end, he didn't have the votes to make the case come out the way he wanted.

An interesting case. And important. Worth a read on this blustery (at least for Southern California) Friday afternoon. Plus, even at 23 pages, it'll certainly take much less time to read than the five years it took to write.

U.S. v. Hicks (9th Cir. - Jan. 11, 2007)

Sur-reply or surreply? (Or, for that matter, sur reply.) Which one is it?

At the bottom of page 326 in this opinion today, Judge Betty Fletcher uses "sur-reply" when describing the response of the United States to the reply brief of the defendant. Mind you, I've never filed one. But I've always thought that, if I did, I'd call it by a single word: surreply. No hyphen.

I've seen the word spelled both ways, though I always thought "surreply" was more common. But seeing Judge Fletcher use the hypenated version got me wondering whether I was right or she was right. Or whether we both were. So I tried to look it up.

Only I still don't have a definitive answer. The term isn't in Black's Law Dictionary, so no help there. (And isn't it a sign of the times that when I went to look the word up, I immediately did so by trying to grab Black's online, not realizing that my hard copy of this book was less than two feet away from me.) And people seem to file briefs and write opinions using both spellings.

There are various writs that are described by putting the "sur" in a separate word (e.g., sur cui in vita and sur disclaimer), but those merely seem derived from the Latin "sur" and so are only marginally helpful. More analogous to what we're talking about, I think, are "surrebutter" and "surrejoinder," which are, respectively, the plaintiff's answer of fact to the defendant's rebutter and rejoinder. Both of which are spelled as one word.

So, in the end, I think it's probably surreply rather than sur-reply; or, at a minimum, that the former is probably preferred to the latter. At least until someone smarter tells me otherwise.

Delay v. Gordon (9th Cir. - Jan. 11, 2007)

Thinking about suing an agency of the United States? Even on a meritorious claim? Then read this case.

It's about William Delay's efforts to obtain -- and then collect upon -- a judgment against the agency of the United States government (the Pacific Northwest River Basins Commission) for which he previously worked. The Commission wrongfully terminated Delay's employment in 1978, and Delay promptly sued. The United States responded to this suit by making sure that it kept bouncing between the Oregon district court and the Claims Court, and did so by arguing, first, that Delay's contract was with the United States, and hence had to be heard in the Claims Court, and then, once the suit was in the Claims Court, arguing the exact opposite.

These (and other) procedural moves kept the case moving around until 1985, at which point Delay prevailed at trial and obtained a judgment of over $140,000 for wrongful termination. But, by this time, President Reagan had abolished the Commission, and most of its money had been disbursed. The Commission had $28,000 left, held by the OMB, but the OMB refused to release it, even though Delay was clearly entitled to it. Thereafter, when Delay tried to garnish this sum, the United States convinced the district court that sovereign immunity barred such an attempted garnishment. Delay worked hard and got a California Congressman to sponsor a private bill, but it failed to get out of committee. Then Delay filed a Rule 60(b)(6) motion to make the United States a party to the judgment as the real party in interest, but the district court denied the motion, and, in this case, Judge Gould affirms.

So basically plaintiff was illegally fired in 1978 -- twenty eight years ago -- and, after a jury trial, obtained a judgment over two decades ago. But has still been unable to collect a dime.

Oh, by the way, in the meantime, in 1998, the plaintiff died. And, in 2003, his wife died as well. So the only people who have survived the United States' consistent (and heartless) efforts to make sure that these people never collect upon their rightful judgment are plaintiff's children. And, at this point, barring a miracle, I highly doubt that the children will have any more success at obtaining justice than their deceased parents did.

Impressive.

One more thing. The name of the plaintiff is pretty ironic, huh? Delay.

U.S. v. Crapser (9th Cir. - Jan. 10, 2007)

Here's a quiz.

One of the judges on the Ninth Circuit begins his or her dissent in this case with the following line: "The majority opinion weakens our Fourth Amendment protections -- whatever is left of them."

You gotta love those last four, totally unnecessary, words. Classic. And totally indicative of their author.

Even without a hint, you might well be able to guess which of the fifty active and senior judges on the Ninth Circuit penned those words. In theory, you've only got a two percent chance of getting it right. But I bet that many, many observers could nonetheless identify the author on the first guess.

Want a hint? I'll tell you on the panel: Goodwin, Reinhardt, and Graber.

That should seal it.

Adams v. Speers (9th Cir. - Jan. 10, 2007)

When it rains it pours. The Ninth Circuit issued as many published opinions today as it has during the last twelve days. That's a lot.

But there are some good ones in there, and this opinion by Judge Noonan is one of them. For two reasons.

First, the opinion reminds us that the Ninth Circuit (and especially Judge Noonan) -- is a stickler for following the rules. Not just rules like page limits, citations, and the like, but substantive principles as well. Lest there be any doubt in that regard, the second paragraph of Judge Noonan's opinion should more than dissipate it. That paragraph contains some fairly blunt language, and I'm sure it caused counsel for appellant -- California Deputy A.G. Scott Wyckoff -- to cringe when he first read it:

"Preliminary to statement of the facts, we note that Officer Speers can make an interlocutory appeal from the ruling on immunity only if he accepts as undisputed the facts presented by the appellees. [Cite] As Speers’ briefs show, he is familiar with this maxim governing such appeals, but at times his briefs lapse into disputing the Adamses’ version of the facts and even into offering his own version of the facts. We regret these lapses and, as they are made by the Attorney General of the State of California defending Speers, we take this occasion to advise the Attorney General that such practice could jeopardize our jurisdiction to hear the interlocutory appeal."

Not something you want to hear at the outset of your qualified immunity appeal, eh? Nor, I'm sure, did Mr. Wyckoff like it when he got to the final paragraph of the opinion, in which Judge Noonan says (immediately prior to the word "AFFIRMED") that the result in this case is "obvious". Lesson of the day: Don't make Judge Noonan (or anyone else, for that matter) mad by appearing to play fast and loose with the facts. I guarantee you won't like the results.

Second, I won't attempt to summarize them, but it'll do one good to read the first three pages of the "Facts" section. Especially if you've ever been inclined not to stop when a police car tries to pull you over. Judge Noonan's description is, in a lot of ways, chilling. The way he wrote the opinion (and I'm pretty sure it was deliberately done this way), I definitely didn't see the part at the end of page 244 coming.

Admittedly, me telling you all this somewhat spoils the surprise. But read those three pages anyway. And don't try to run from the cops. Even on a lark. It's not a good idea. At all.

Schatz v. Allen Matkins (Cal. Ct. App. - Jan. 9, 2007)

It's fairly rare that you see the California Court of Appeal disagree with a justice on the California Supreme Court. But that's exactly what happens here.

Admittedly, the opinion by Justice McConnell merely says that the California Supreme Court's decision in Alternative Systems remains good law even after the Court's subsequent decision in Aguilar. That's not really a bench slap to the California Supreme Court or anything. Nonetheless, since Justice Chin exressly concurred in Aguilar to argue that the majority decision overruled Alternative Systems, and since Justice McConnell's opinon states flatly that Justice Chin was wrong, it's still pretty bold.

Justice McConnell's holding, by the way, is also fairly important on the merits. She essentially concludes that arbitration clauses in attorney fee agreements aren't effective because the client can still request nonbinding arbitration under the Mandatory Fee Arbitration Act and, subsequently, a trial de novo in front of a jury. The client will have to jump through a few hoops first, but that's nonetheless an effective way for the client (but, I might add, not the attorney) to get out of a mandatory arbitration clause. Those California attorneys who put arbitration clauses into their fee agreements might well want to keep that holding in mind.

At least as long as it lasts. My take is that the California Supreme Court should (and probably will) take the issue up at some point, perhaps even in this case. They gotta decide at some point whether Justice Chin is right that Aguilar overrules Alternative Systems. Might as well do it here. No time like the present, after all.

Wagner v. Columbia Pictures (Cal. Ct. App. - Jan. 8, 2007)

When you're representing Robert Wagner -- you know, the movie star -- and are suing Columbia Pictures (you know, the movie studio) for half of the profits to the Charlie's Angels movies, you're obviously (1) a very, very good attorney, and (2) are sufficiently motivated by the amount at stake -- the two movies grossed over $500 million worldwide -- to do a bangup job. Ditto, by the way, if you're representing Columbia Pictures.

So it's no surprise to anyone that on such an interesting and high-profile case, the attorneys write great briefs and are outstanding advocates. Of course, in the end, one side has to lose. And, in this case, it's the attorneys for Robert Wagner. Sure, Wagner entered into a contract in which he (and his wife, Natalie Wood) are entitled to 50 percent of the net profits from any ancillary rights associated with the Charlie's Angels television series. But according to Justice Johnson, that doesn't include the subsequent movies based on the series. Affirmed. (I did not know, by the way, that Charlie's Angels was the brainchild of Wagner and Wood. Neat.)

Read the opinion for more fascinating Hollywood details, as well as a review of how these deals are often structured (as well as what they mean). Make sure also not to skip footnote 1. Because, as I said, it comes as no surprise that the attorneys here are very good. But Justice Johnson includes in this footnote about as nice of a compliment to counsel -- and a self-effacing one, at that -- as I've ever read:

"This unusually complex case was well briefed and ably argued by counsel for both parties. Beyond the normal round of briefs and oral argument, counsel responded to two requests for letter briefs from the court and returned for a second oral argument. If we have erred in our resolution of the issues it was not for counsels’ lack of effort to set us straight."

Nice, huh? Given this statement, the attorneys definitely deserve mention by name: Samuel Pryor (a Yalie), Sally Liu (Boalt), and Matthew Belloni (USC) for Robert Wagner, and Martin Katz (Michigan), Lisa Stutz (ditto), and Jean-Paul Jassy (USC) for Columbia Pictures.

Way to go, all.

August Ent. v. Philadelphia Indem. Co. (Cal. Ct. App. - Jan. 8, 2007)

Nothing too fascinating today from the Ninth Circuit or the California appellate courts. Just a single opinion from the Ninth Circuit -- albeit on a somewhat interesting criminal discovery issue, with a dissent by Judge Willie Fletcher -- and similarly only one published opinion from the California Court of Appeal. We'll see if the latter cranks something fun out in the afternoon.

The only thing I wanted to say about this case -- the one from the Court of Appeal today -- is that it's a great example of how an opinion can sometimes be both incredibly concise and incredibly persuasive. The first two paragraphs of the opinion by Justice Mallano basically say it all. Sure, there are twenty-two subsequent pages, and they flesh out the details pretty well. But read these first two paragraphs and see if you don't agree that they pretty much alone persuade you that Justice Mallano is correct:

"This appeal raises issues concerning whether a directors and officers (D&O) liability policy covers a breach of contract claim where an officer entered into a contract without stating that he was acting on behalf of the corporation. The corporation subsequently disputed liability under the contract, and the other contracting party brought suit against the corporation and the officer, seeking to recover the contract price. The officer sought a defense from the D&O insurer, which denied the claim. The corporation and the officer settled the suit for the contract price.

In this action against the insurer for bad faith, the trial court entered judgment for the insurer after sustaining a demurrer without leave to amend. We affirm because the D&O policy did not cover the corporation’s contractual debt or the officer’s liability for breaching a contract. The breach of the contractual obligation asserted in this case did not give rise to a loss caused by a wrongful act within the meaning of the policy. Rather, the corporation was simply being required to pay an amount it voluntarily contracted to pay. To hold the insurer liable for the contract price would be tantamount to making it a business partner of the corporation and the officer, which was not the mutual intention of the insurer and the insured under the policy."

I wish that I could write something that's a tenth as concise and persuasive.

P.S. - On a more superficial level, maybe I'm still woozy from my run into work today, but is this an incredibly good-looking picture of Justice Mallano or what? Now I'm jealous on multiple levels.

Jen-Weld v. San Diego Sup. Ct. (Cal. Ct. App. - Jan. 4, 2007)

Sorry for the couple-day hiatus, but I was off skiing with my brother before he returns to the Commonwealth of Virginia. Though, honestly, I didn't miss much: The Ninth Circuit published nothing on Thursday and only a couple of cases on Friday, and on Friday the California appellate courts cranked out only a single published opinion. Regardless, I much preferred skiing.

That said, I did enjoy this case, so after watching some playoff football today, I thought I'd at least briefly mention it. It shows a keen understanding by Justice McIntyre of the realities of modern litigation, and is important given the increasing outside references made by California trial courts.

The underlying lawsuit was a complex multiparty construction defect case. Judge Styn wanted to get a lot of the lawsuit out of his court, as well as potentially resolved, so he appointed both an outside discovery referee as well as an mediator/settlement conference neutral, the latter to be paid for by the parties for a maximum of 100 hours at $500/hour. No small piece of change.

One of the defendants, Jen-Weld, objected, arguing that mandatory mediation (and some other stuff) was impermissible. Judge Styn disagreed, and when Jen-Weld refused to participate in the mediation, Judge Styn imposed sanctions and ordered them to attend. At which point Jen-Weld filed a writ.

The Court of Appeal granted the writ and reversed, holding that trial court's don't have authority to order parties in a complex civil action to attend and pay for private mediation. The opinion by Justice McIntyre is short (nine double-spaced pages), to the point, and persuasive. This was also a great vehicle in which to find that mandatory (party-paid) mediation was impermissible, as the costs of the mediation for Jen-Weld would have swamped any alleged liability. Since plaintiff's settlement demand to Jen-Weld was less than $2,800, you can easily see why it would be pretty crazy to make Jen-Weld pay to mediate a case it has probably no intention of paying money to settle and in which its mediation costs would exceed the existing settlement demand.

"While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation." This seems right to me. So I thought this one came out the correct way.

P.S. - Not that it made a difference to my assessment, but I did notice -- and was happy to learn -- that both of the attorneys for Jen-Weld were graduates of the University of San Diego School of Law: Jeff Harmeyer and Brett Norris. And as Mr. Norris was a student in my first-year Civil Procedure class at USD, I was especially happy to see him prevail in this civil procedure case. Great job, Brett!

Cruz v. Fagor America (Cal. Ct. App. - Jan. 3, 2007)

There are two different ways that an attorney can unjustly obtain a quarter-million dollars with very little work. This case exemplifies -- at least writ large -- both of them.

I'll first talk about the legal way one can get your hands on the cool quarter mill. Since that's both what the actual case is about as well as the better way.

Default judgments. Gotta love 'em. Here, Alan Cruz is a 16-year old kid whose parents bought a pressure cooker at the San Diego Fair, and a couple months later, he burned himself when he tried to take the lid off. Fagor America is the American distributor of the pressure cooker, so Cruz (and later Cruz's attorney) writes to try to get Fagor America to pay up. Fagor's insurer says they'll reimburse Cruz for his $5,000 in medical bills but nothing more. So Cruz sues.

At which point it gets interesting. Since Fagor America is an out-of-state corporation, Cruz's attorney does the easy thing and serves 'em via certified mail, return receipt requested, in an envelope addressed to the president (who's an officer, of course) of Fagor. Right. Fagor's a 13-person company, and, not surprisingly, someone other than the president signs for the process. Makes sense.

Then, inexplicably, Fagor does nothing. Doesn't answer. Doesn't respond to the first attempt by Cruz to enter a default. Doesn't respond to the second attempt either. So eventually Cruz succeeds, and obtains a default judgment of $259,000+. At which point another six months passes, during which Fagor again gets notices but continues to do nothing.

Eventually, Fagor America requests relief from the default judgment on a variety of grounds, and Judge Hayes (down here in San Diego) gives it to 'em, holding (among other things) that service of process was improper because the officer didn't personally sign for the mail (and there was no evidence that she ever personally received it) and that relief was also available for extrinsic mistake.

But Justice Aaron reverses. Service was proper, she said, and there was no basis for relief from the default judgment since Fagor America didn't (and apparently couldn't) explain why it sat on its butt until after the plaintiff filed notice of a lien. So back comes the $259,000+ judgment. Plus statutory interest and costs, of course.

So that's one way to make your money. Either as the plaintiff or as the attorney on a contingency fee for the plaintiff. Plus, it's legal!

Now let me tell you the other way. Which I mention only because I looked up the attorneys on the case and noticed that both of them -- Harold D. Thompson for the plaintiff and Kathleen McCormick for the defendant -- were graduates of the fine University of San Diego School of Law. Which led me to do a tiny bit of additional digging.

So the alternative way is: Forgery. Back in 1996, Mr. Thompson -- attorney for the plaintiff, you'll recall -- did a little digging of his own and noticed some unencumbered property in San Diego owned by a person named Jay Johnson. Which perhaps reminded Harold of the famous beer commercial jingle: "You can call me Ray, or you can call me Jay, but you doesn't have to call me Johnson." Except that Thompson said: "Hey, why not have everyone call me both Jay and Johnson?!" At which point he obtains false identification in the same of Jay Johnson, presents the identification to take out mortgages on the property, and cashes the loan checks to the tune of $200,000-plus.

Neat, huh? And would have worked, too, except for a suspicious teller at one of the banks at which Thompson (a/k/a Jay Johnson) deposits the checks, who sniffs the whole thing out, contacts police, and eventually leads to Thompson being convicted in both Riverside and San Francisco of forgery.

I'm a little more sympathetic towards Thompson than most people not only because I'm an institutional guy (he's a USD grad, after all), but also because he apparently suffered from severe depression at the time of the incident as well as made immediate restitution and cooperated with the Bar during the resulting disciplinary process. Plus, he served his sentence and also served his three-year suspension from the Bar, so you've got to give the guy a second chance, right?

I nonetheless found it somewhat ironic that a guy twice convicted of forgery is now making a fair piece of contingency fee money as the result of a default judgment from a particular signature on a return receipt. But, hey, that's the way the cookie crumbles. And at least it's an honest way to make a living. Or, at minimum, more honest than the apparent alternative.

U.S. v. Silva (9th Cir. - Jan. 3, 2007)

Since there are now a plethora of post-Booker sentencing remands, this case is fairly important. It concerns whether the defendant has a constitutional or statutory right to allocute -- i.e., to say something to the court -- before an Ameline sentencing review on remand. Judge O'Scannlain, not surprisingly, concludes "No."

But what a funny case in which this particular issue happens to arise. The defendant here -- Paul Silva, a resident of the great city of San Diego -- didn't want to allocute before to his initial sentencing anyway. And listen to the erudite bon mots he spontaneously utterred after the court announced his sentence: "No, way, man. Wait, I want to say something, dude. The maximum is five years, man.” Priceless.

I'll give you once guess, by the way, as to the crime for which the defendant was sentenced. You guessed it: importation of marijuana and possession with intent to distribute.

Lay off the bong, my fellow San Diegan. Too much definitely rots the brain.

North Kern Water Storage Dist. v. Kern Delta Water Dist. (Cal. Ct. App. - Jan. 2, 2007)

No such joy in Mudville. The Ninth Circuit's closed for Jerry Ford, and the California Court of Appeal eventually provided me with only three tidbits, two of which were merely amendments to prior opinions.

The only substantive published opinion of the day was this one. Which was mind-numbing even for someone used to slogging through a lot of stuff. I'll reprint the first paragraph of the opinion to give you a taste:

"North Kern Water Storage District (North Kern) appeals and Kern Delta Water District (Delta) cross-appeals from a judgment entered on retrial, after we reversed a prior judgment. The present judgment declared a forfeiture of certain previously appropriated waters of the Kern River. Plaintiff and appellant North Kern contends that the trial court erred in selecting the timeframes against which to measure nonuse of the water, that the court should have measured differently the nonuse of water by junior water rights holders, that the court erroneously precluded North Kern from asserting that senior rights holders’ use of water was unreasonable, and that the court should have awarded the forfeited water to North Kern instead of declaring it available for appropriation through the statutory permit procedure. Defendant and appellant Delta contends the court erred in precluding its defense of estoppel and in measuring the forfeiture against Delta’s full appropriation even when the river had insufficient water to provide the full appropriation. Respondent City of Bakersfield, holder of rights junior to some of Delta’s rights and senior to North Kern’s rights, generally supports the judgment entered on retrial."

Exciting, huh?! Water right forfeitures!! Junior versus senior users!! Cross-appeals!! You can imagine my joy as I read the subsequent thirty-six pages.

I'm positive that there are people who know and like this stuff, and it may well be a significant case as far as water rights -- an important topic -- are concerned. But it's still not an exciting way to begin the New Year.

Don't let me down tomorrow, all. Push hard tonight to get the interesting stuff out, okay? I want a whiz-bang January 3rd.

Where Did v. Everyone Go (Cal. Ct. App. - Jan. 2, 2007)

I enjoy the holiday break as much as anyone. But I'm hungry for new opinions, my friends, and the Ninth Circuit and California Court of Appeal aren't at all satiating my desires. Nothing whatsoever up on the web sites today. Not even the typical indication from the Ninth Circuit that there were no published opinions issued. And no even unpublished opinions from the California Court of Appeal.

So we begin 2007 in a lazy, hazy manner. Maybe we'll get in a "nooner" and something will come down later today worth reading. But, until then, my brother Chris is in town (visiting from Virginia), so off I'll go on an afternoon day hike. Hopefully to return to a king's ransom of exciting, intellectually stimulating opinions by our appellate friends.