Friday, March 30, 2007

Connecticut General Life Ins. Co. v. New Images (9th Cir. - March 30, 2007)

Attorney Roy Dickson of Yorba Linda: Prepare to be disbarred, or, at worst, suspended. Because, in my opinion, that's going to -- and should -- happen. At least after this case.

Even a snippet from Judge Kleinfeld's opinion amply reveals Mr. Dickson's cause for concern, as well as his underlying -- incredible -- conduct in prosecuting the appeal:

"The core of the appellants’ argument is yet another fraud on the court. The appellants’ brief states that 'Dr. Robinson was in Bankruptcy until July of 2000.' This is important because a bankruptcy stay would prevent the April 2000 order compelling discovery from applying to Dr. Robinson when it was issued. The appellants’s brief states as a fact that the order granting relief from the stay and permitting litigation against
Dr. Robinson to proceed, 'was not operative until July 10, 2000.'

To support this critical factual assertion, appellants cite to their excerpts of record, where the docket sheet is reproduced. The docket sheet as reproduced in the appellants’ excerpts of record shows the date for the order granting relief from the bankruptcy stay as '7/00.' That looks as though it means July 2000, supporting the brief.

But that is false. In fact, the order was entered March 17, 2000. Appellants made March look like July by photocopying the docket sheet so that part of the left side did not copy. Thus, '03/17/00' became '7/00.'

Appellees pointed this out in their brief. Yet when it was called to appellants’ attention in the opposition brief in this appeal, they did not confess error. They did not file a reply brief."

Yikes. I'll spare you the other details regarding Mr. Dickson's representation, which you can obtain (if you'd like) by reading the rest of the opinion. Suffice it to say that Judge Kleinfeld is entirely justified in ending the opinion with a footnote that says: "We are sending a copy of this decision to the California Bar for such action as it may deem appropriate regarding Mr. Dickson." And since even the briefest of digging reveals that Mr. Dickson has already been publicly discliplined by the Bar three separate times in the last decade, I have little doubt that Roy's looking at a suspension from the practice of law -- if not disbarment -- up the road. We tend not to like deliberate efforts to defraud the court, dontchaknow.

Winterrowd v. Nelson (9th Cir. - March 30, 2007)

This is a freakishly perfect opinion. Perfect. Both as a matter of style as well as a matter of substance.

I am incredibly impressed. And jealous. I wish that I could write half -- or even a tenth -- as well.

Colloquial. Reasonable. Breezy. Rational. Easy to read. Totally right on the merits. It's all of the above.

Hat's off to Judge Kozinski. Sometimes he writes great opinions. Sometimes he tries too hard. Sometimes he gets it wrong. But this one is utterly perfect. At least for a reader like me.


Paniagua v. Orange County Fire Authority (Cal. Ct. App. - March 29, 2007)

Justice Rylaarsdam begins the discussion section of his opinion in this case with a paragraph that includes the line: "Although the trial court based its decision on other grounds, we review the result, not its rational."

Whoops. That's the sort of stuff that the spell-checker doesn't catch. I believe that you meant "rationale".

Let's quickly amend to add the e.

Thursday, March 29, 2007

In Re Estate of Drummond (Cal. Ct. App. - March 29, 2007)

Mr. Drummond has died! Who gets his vast estate is a hotly contested dispute!

No, not that Mr. Drummond. And, no, he's not one of the beneficiaries. (So I guess he'll still have to do lame commercials for -- and get loans from -- hard money lenders such as CashCall. Sorry, Gary.)

People v. Baughman (Cal. Ct. App. - March 29, 2007)

Daddy commits repeated incest with his 14-year old daughter. Daddly lives -- surprise -- in a trailer.

How trite. How depressing.

Daddy now lives in prison for the next 9 years and 8 months.


Wednesday, March 28, 2007

Feduniak v. California Coastal Comm'n (Cal. Ct. App. - March 27, 2007)

Tough life.

Robert and Maureen Feduniak spend $13,000,000 to buy a house on a 1.67 acre parcel of property on the 17-Mile Drive in Pebble Beach that contains a private three-hole pitch-and-putt golf course (called "Fan Shell Greens") that surrounds the house. Not bad. Needless to say, the coolness factor of having your own private golf course in Pebble Beach is a key reason the house went for a cool 13 mill. And that was seven years ago.

Problem is, the surrounding golf course clearly violates the 1983 Coastal Commission permit that authorized the building of the house, since the permit expressly requires the surrounding land to be devoted to natural grasses and the like. A prior owner basically totally ignored the permit when he built the private golf course. And the Coastal Commission did utterly nothing about it. Impressive enforcement regime, huh?

The trial court found that the Coastal Commission was estopped to require the Feduniaks to restore the land to its natural condition (consistent with the permit) because everyone in the world knew that this prominent house had a private golf course on it. But Justice Rushing reverses. No more private pitch-and-putt for you, Mr. and Mrs. Feduniak. Looks like you should have looked up the permit before you shelled out $13 million. Time to sue everyone and their mother -- the seller, the title company, the brokers, etc. -- associated in any way with the transaction, eh?

So enjoy Fan Shell Greens while you can, my friends. It'll probably be native dune plants and grasses soon enough.

Tuesday, March 27, 2007

Reedy v. Bussell (Cal. Ct. App. - March 27, 2007)

I'm glad that Justice Bedsworth (belatedly) decided to publish this opinion. If only to tell the universe that large components of the Bussell family -- John Bussell, Letantia Bussell, and their son Todd Bussell -- appear to be total jerks, and the kind of people with whom one would prefer to have nothing to do. And that's saying a lot, since I was initially somewhat inclined to be sympathetic to the family, especially since John Bussell committed suicide in 2002.

You'll have to read the opinion to see just how pervasively abusive these family members seem to be. Their misconduct allegedly entailed not merely the underlying transactions -- basically the alleged theft of money from a trust, $20,000 of which was spent on European "study abroad" trips for the Bussell daughters and $200,000 paid to an attorney representing John and Letantia on criminal fraud and tax evasion charges -- but also their pervasive abuse and misconduct during the litigation process. Simply put, these individuals were the litigants from hell: the kind of people you hate litigating against.

Ultimately -- and totally justly -- the trial court grants terminating sanctions against Letantia and Todd. And Justice Bedsworth rightly affirms, and does so with an appropriate amount of derision towards the offending parties. So justice is eventually done.

The only thing that I wanted to add to the opinion, which is definitely worth reading, is to say that I had a tiny different reaction than Justice Bedsworth to the trial court (Judge Monarch). Justice Bedsworth explains that the trial court granted terminating sanctions only after bending over backwards towards Letantia and Todd in an attempt to assist them. The conclusion of Part III exemplifies Justice Bedsworth's approach towards the merits: "We find no abuse of the court's discretion. Indeed, we marvel at its forebearance."

I'd have potentially spelled that last word as "forbearance", but aside from that minor difference, I definitely agree with the underlying sentiment. The trial court was remarkably tolerant of Letantia and Todd -- much more than I would have been. It definitely granted terminating sanctions only after these parties had repeatedly demonstrated their utter contempt for the proper functioning of the civil judicial system, and I agree with Justice Bedsworth that far from abusing its discretion, the trial court showed remarkable restraint.

The one thing that I might add, however, is that exceptional restraint in this setting is not always a virtue. Justice Bedsworth's opinion casts the careful and deliberate nature of the trial court in a favorable light. I generally agree, but there are also real downsides here, and ones that I would have bothered to mention. When a party is, as here, utterly contemptuous, a trial court does not necessarily do justice by sitting back and, as I think Judge Monarch did here, intervening in the process only at the last possible minute. Abuse of this nature requires a more active approach: one that preserves and protects the rights of the non-abusive parties. My keen sense was that Judge Monarch basically allowed, with limited intervention, the discovery and other abuses here until the last possible moment, and only then did he effectively intervene.

Patience of this type has its virtues, but is a vice as well. Sometimes abusive parties need to be slapped down a lot quicker than they are. And, in my view, this case is a perfect example.

I'd have mentioned that fact. Yes, the trial court surely didn't abuse its discretion in granting terminating sanctions. But I'd have potentially painted the trial court a little less favorably than Justice Bedsworth does, and would surely have mentioned the need -- as well as the legitimacy -- of stepping in quickly, and in a very powerful fashion, when parties consistently engage in the type of conduct evidenced in this case.

It's nonetheless a good opinion. Read it. And be glad you weren't the lawyer who had to deal with these schmucks on the other side.

U.S. v. Howard (9th Cir. - March 27, 2007)

No. I mean, yes. Okay, I really mean it this time. Yes.

That's basically what Chief Judge Schroeder says in this long-running dispute regarding whether everyone who initially appears before a federal magistrate judge in Los Angeles will be shackled.

Judge Schroeder originally wrote an opinion -- back in November 2005 -- that held that the uniform shackling policy implemented in the Central District was impermissible, over the dissent of Judge Clifton. (For what it's worth, it took over a year after oral argument for this opinion -- in a case involving an interlocutory appeal -- to be published.) Then, a year later, in September 2006, the panel withdrew its original opinion and filed a new opinion that upheld the uniform shackling policy, albeit somewhat meekly.

Then, earlier today, the panel withdrew its amended opinion and filed a new -- and presumably final -- opinion that again upheld the uniform shackling policy, this time a little more strongly.

Third time's a charm?

Monday, March 26, 2007

People v. Zurinaga (Cal. Ct. App. - March 26, 2007)

I agree with Justice Perren that the prosecutor's extended reference to 9/11 in this case was error, and also thought that Justice Perren (rightly) took the underlying issue seriously.

That said, the opinion highlights the problem of prosecutorial misconduct and the wholesale inability -- or unwillingness -- of the judiciary to do much about it. Judge O'Neill not only didn't order a mistrial (or even instruct the jury to disregard the comments) when the prosecutor made the improper analogy to 9/11, but also permitted the prosecutor to continue with these improper comments even after defendants objected. Justice Perren, by contrast, correctly holds the comments to be prejudicial, but holds that the error was harmless because (1) we presume that jurys follow the traditional instruction that closing arguments aren't evidence and (2) the evidence against defendants here was allegedly overwhelming. But if (1) is true then prosecutorial misconduct during closing argument is never reversible error, and this seems an extremely poor case in which to argue (2) given that (as far as I can tell from the opinion) the only evidence against defendants consisted of (notoriously unreliable) eyewitness identifications given over a year after the crime. This is hardly what I would traditionaly call "overwhelming" evidence against the accused.

Ultimately, I'm happy that the perpetrators of this crime are (allegedly) off the street. And for a long time. But I'm nonetheless somewhat displeased with how even conscientious judges -- including the ones here -- address prosecutorial misconduct. I think that the misconduct during closing argument here was pretty egregious. And for it to go forward without any effective sanction seems untoward.

Friday, March 23, 2007

People v. Jenan (Cal. Ct. App. - March 23, 2007)

What exactly does it take before we call you a nut job? Or, in legalese, before we're convinced that you're insufficiently competent to handle or understand your own defense that we appoint someone to examine you?

Usually, I know the answer to that question, but after reading this case, I recognized that I'm not entirely sure what the actual answer is. In the typical case, the potentially "incompetent" defendant is too psychotic, drugged up, injured, or simply out of it to understand. But that's not the case here.

The defendants here are instead potentially "incompetent" because they're simply nutty: they are articulate and "smart" (in a way, I guess) and even know a lot about "the law" -- or at least the law in Bizzaroland. Their problem is that they're one of these group of (ever-increasing) nutballs who've been convinced (or who have convinced themselves) that they can defend themselves in court with any number of absurd legal theories (their own "sovereignty" or "abatement" or whatever) that simply bear no reference to what the actual law is anywhere on this planet. In other words, they're smart and articulate and intelligent enough to defend themselves, but the actual content of their legal beliefs gets in the way of their defense. And hence instead of actually saying anything that's helpful, they just say stupid stuff that makes utterly no sense.

Does that make a defendant incompetent? I don't know. Justice Gomes thinks it does; or, at least, that it requires a mental examination. But what's that gonna do? These guys aren't insane or incompetent in any way that I think comports with anything in the DSM. Rather, it's more like an otherwise intelligent person who currently believes -- for whatever reason -- that the law is X even though anyone (even a moron) with any sort of legal training would realize that the law is clearly not X and is instead Y.

For example, what if I -- an otherwise bright person -- were to suddenly become convinced that the 17th Amendment granted me ownership of every red Lexus in the United States. Sure, everyone else reads the 17th Amendment as merely concerned with the qualifications of Senators and the like. But I've got a legal theory that I'm totally excited to expound on why this means that I own all the red cars in California. But, shocker of shockers, no one else agrees with me. So when I'm criminally charged with stealing a red Lexus, and I can't find a lawyer who shares my nutso reading of the 17th Amendment, I represent myself and drone on about what the Framers really meant by "Senator" was an internal combustion engine, that "two" was in the old days when automobiles weren't that numerous, but in the modern era I'm entitled to all the red cars and not merely two, etc. etc. I'm talking English and citing cases and understand precedent and the like, so I am "competent" in a way. But the actual content of my "defense" and thoughts are utterly absurd.

Does that make me incompetent? In a way, I am incompetent -- I can't actually help myself, since my ideas are so stupid that my insisted articulation of them only hurts me. But how is that any different from someone who believes (absurdly) that the jury won't find them guilty even though every netural person would realize that the jury's indisputably going to convict?

So, in the end, I'm not really sure at all that I even know what it means to be incompetent. At least when, as here, the defendants seem to have intact mental processes and yet those processes lead to results that we all would clearly recognize as utterly irrational. And yet, clearly, while I'm hesitant to call say that someone is incompetent merely because I disagree with, say, their interpretation of legal precedent, at the same time I am utterly convinced that these defendants here are "incompetent" to defend themselves given their nutball beliefs about how best to do so. And I'm sufficiently worried about convicting innocent people that this is a problem for me.

Obviously one way to avoid this is simply not to let people defend themselves, and I think there's something to that -- even though there's a whole lot on the other side as well. But, in general, especially after reading this case, I'm still somewhat at a loss both as to the type of legal "competence" we require as well as how we should (and/or do) measure it. Any solution or definition I come up with seems like it's got problems.

In short, at least in dealing with nutballs, I guess I'm convinced that there are only hard questions, and for sure that there are no easy answers. Oh well. At least reading the first dozen pages of the case made me think: "However insane I ever become, hopefully I'll never be this insane." Or, more accurately, "However distorted my personal view of precedent, at least I'm not this big of a nutjob."

So I got that going for me. Which is nice.

Beecher v. C.I.R. (9th Cir. - March 23, 2007)

I can't fathom what appellants were trying to do in this case. Their appeal seems utterly irrational -- a matter that involves merely a financial dispute (here, a tax deficiency), not a lot of money (in the tens of thousands), and no probability of success in the appeal whatsoever.

I just don't see how anyone could possibly think it's worth spending time and effort and attorney's fees on an appeal that challenges a totally rational IRS regulation that says you can't use passive losses to offset money you pay yourself; moreover, a regulation that's already been upheld -- uniformly, no less -- by every federal appellate court that has considered the matter.

It just doesn't make sense to me. Rational sense, anyway.

Thursday, March 22, 2007

People v. Beames (Cal. Supreme Court - March 22, 2007)

Don't read the first six pages of this case if you have little kids. It's about a 15-month-old daughter allegedly killed -- via horrific child abuse -- at the hands of the defendant, who was sentenced to death. Chilling stuff.

Needless to say, the California Supreme Court unanimously affirms the sentence.

In Re Timothy Arnett (Cal. Ct. App. - March 15, 2007)

I had no idea that there were a plethora of special rules regarding the ability of an incarcerated prisoner to change his or her name. Apparently there are.

You learn something new every day.

Wednesday, March 21, 2007

Preschooler II v. Clark County School Board (9th Cir. - March 21, 2007)

You know it's an ugly and disturbing case when the lawsuit involves a four-year old disabled child and the final paragraph of the opinion reads: "AFFIRMED as to the denial of qualified immunity on the head beating and slamming claims; REVERSED as to the denial of qualified immunity on the unexplained bruises, scratches, and shoeless walks claims; and REMANDED for further proceedings."


U.S. v. Al Nassar (9th Cir. - March 20, 2007)

You'd think that this was a law school exam hypothetical if you didn't read it in the Federal Reporter. There's so many strange facts that make the proper resolution difficult that you'd think the professor had deliberately made them up:

"A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the
stretch of highway came over too.

Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and directed the driver to pull over with hand gestures. After the sedan
stopped, the agent took the keys, and determined that this second stop did indeed produce illegal aliens.

While the three law enforcement vehicles, with two light bars flashing, and the two stopped vehicles were still there, Al Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit, and again saw people hiding on the floor behind the front seat. He thought this car probably had illegal aliens in it, and said so to his colleague, but chose not to stop it because they already had their hands full. The Border Patrol agents were still busy processing the illegal aliens in the sedan, and the tribal officer was still processing the people with alcohol in the pickup truck.

But Al Nasser stopped anyway. It is understandable that he did, since there were now five vehicles pulled to the side of the road, two or three with flashing lights, more or less blocking the northbound lane. But no one told him or signaled him to stop. . . . The Border Patrol agents were just too busy for another carful of illegal aliens and were going to let this one go to avoid the safety problem of having to control so many people.

The Border Patrol agent spoke to Al Nasser in Spanish, assuming he was Mexican, but it turned out that Al Nasser was Iraqi and could not understand Spanish."

Some neat Fourth Amendment issues. That Judge Kleinfeld (over Judge Ferguson's dissent) resolves against Al Nasser.

Tuesday, March 20, 2007

Reiserer v. United States (9th Cir. - March 20, 2007)

An attorney (Kenneth Reiserer) who sold patently abusive offshore employee leasing tax avoidance schemes. An IRS subpoena on the attorney's account at Bank of America. A motion to quash. A dead attorney. A claim of privilege. Imposition of tax penalties on the dead attorney. An appeal.

Judge Schwarzer (sitting by designation) has the rest of the story. Affirmed.

P.S. - A little digging reveals that Mr. Reiserer (who practiced in California and then moved to Washington State in 1997) apparently fought in Vietnam and was awarded the Bronze Star. Too bad his final recognition arises from pitching abusive shelters.

Cascade Health Solutions v. PeaceHealth (9th Cir. - March 20, 2007)

Earlier this month I noted that the Ninth Circuit invited bored evidence students to submit amicus briefs on a FRE 804(a) issue. Okay, so they didn't just limit it to bored evidence students. But you know what I mean.

Time's running out on those letter briefs, though: They're due at the end of the month. So today the Ninth Circuit apparently decided to keep the assignments churning, and invites bored antitrust students to submit amicus briefs as well.

This is quite stunning: I don't remember another year with anything similar coming down from the Ninth Circuit, much less two such invitations in a given month. Plus it's even not the same panel; the only common thread to the two invitations is that Judge Gould is on both cases. I guess March is simply "Take Advice and Wisdom From Anyone Who Feels Like Dispensing It" Month.

An interesting development. Anyway, if you have -- or would like to have -- a keen sense about what sort of cost showings are required in bundled discount predatory pricing cases, the Ninth Circuit wants you. As do we all.

So get to work and submit your (second!) letter brief of March. (Though this one's not due until April 19th. Still, no time like the present!)

Monday, March 19, 2007

Berg v. Traylor (Cal. Ct. App. - March 19, 2007)

What a joy it must be to be a child actor. After all, they uniformly live charmed lives as adults, right?

Here's a little story about a child actor named Craig Lamar Traylor, who for the past six years has played Stevie Kenarbin -- the African-American kid in a wheelchair on "Malcolm in the Middle". Back in 1999, before Craig (who was then 10 years old) had any substantial acting experience, Craig -- through his mother -- hired Sharyn Berg as his personal manager in return for 15%. Then, in 2001, Craig landed his role on Malcom. And four months later, Craig purported to fire his manager in order to escape the 15%. Except the contract doesn't work that way, so the manager sued.

I'll spare you the neverending -- but somewhat interesting -- procedural and other details about the resulting arbitration proceedings and motions. Let's just say that Craig's mother -- Meshiel Cooper Traylor -- doesn't come out smelling like a rose, and Craig and his mother eventually go through four different sets of attorneys after the first three withdraw for things like not getting paid, not having their calls returned, and not having their advice followed. Eventually Berg gets a substantial judgment against both Traylors, who then appeal. And Justice Doi Todd reverses the judgment against Craig (the child) but affirms against Meshiel (the mother) on the ground that the former, as a minor, was permitted to disaffirm all of the relevant agreements but the latter was not.

There's actually an interesting underlying question in my mind about what sorts of contracts to which minors may be permissibly bound as a third party beneficiary. I definitely don't know the law here, but there doesn't seem to be a particularly good boundary between those types of obligations (to which a minor may be bound) and obligations as a principal which the minor may disaffirm.

Regardless, at least in this case, the child actor is off the hook, but his mother is not. One more thing. Justice Doi Todd is pretty shocked that no one below moved for a guardian ad litem. I'm less surprised. Sure, we all in retrospect might think that should obviously have transpired. But I don't think it's at all uncommon for people -- including litigants -- to naturally think that in civil litigation, a parent is a reasonable guardian who can effectively advance her child's best interests. So even if it was a mistake here (and I think it was), I can see why the mistake was made. Which doesn't justify it, obviously; nonetheless, my shock was somewhat less than Justice Doi Todd's.

Irons v. Carey (9th Cir. - March 6, 2007)

Do Judges Noonan and Reinhardt like the restrictions on habeas created by the AEDPA? No. Not at all. And they write to make that fact clear.

That said, they also know they're a minority on this one. So they simply write for the ages.

Friday, March 16, 2007

California Housing Finance Agency v. Hanover/California (Cal. Ct. App. - May 15, 2007)

Want to read about a California attorney who really did commit fraud? Then take a look at this.

It looks like the attorney, Robert McWhirk (a Davis graduate), had a darn good thing going there. Until he got caught.

On the upside, he apparently resigned his Bar membership before charges had been filed against him. Let's hope we don't see him representing clients again.

Thursday, March 15, 2007

In Re Sheena K. (Cal. Supreme Ct. - May 15, 2007)

"What?! I've already basically finished writing this 21-page opinion regarding the constitutional validity of various probation conditions, alongside some forfeiture issues, and have also gotten all of the other justices signed up. Do you really want me to rip the thing up just because the defendant is now dead (and hence the case moot)?! No way. I'm going to crank it out anyway. You can't stop me."

That's basically what Chief Justice George says here.

At least the opinion is a permanent post-death memorial to Sheena K., who was a ward of the court and who died shortly before her 20th birthday. From circumstances which, though unmentioned in the opinion, I feel quite confident were far from good. Not that dying at 19 is ever good, mind you.

For that reason, although the Court always seals the name of the relevant juvenile in such proceedings, and I don't ever publish them, I think an exception is appropriate here. The respondent's name was Sheena Latrice King. May you be in a better place, Sheena.

P.S. - This is also another downside of holding onto cases for years, California Supreme Court. The briefs were complete in 2004. It took you three years to write an opinion. Sometimes people die when it takes you years and years to adjudicate a case. Not to mention the fact that their legal status remains in limbo the whole time. Speed it up, my friends.

Comer v. Schriro (9th Cir. - March 15, 2007)

Rarely does the en banc court decide a case without oral argument. But the Ninth Circuit does so here.

The en banc court writes a fairly brief (especially for a death penalty case) per curiam opinion that reverses the panel opinion and affirms the district court's holding that Robert Comer was competent to become what we call a volunteer; e.g., someone who wants to die. The opinion is a 14-1. With only Judge Pregerson (who joined the prior panel opinion) dissenting.

It's also rare that an opinion includes an actual photograph. But check out the last page of the dissent. Which ends with a photograph of the naked defendant, wrapped in a towel and shackled to a wheelchair, which is how he was dragged out of his cell so he could be sentenced to death. The picture appears immediately after the final paragraph of Judge Pregerson's dissent, which says: "Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh."

Powerful stuff. But not powerful to get anyone else to vote Judge Pregerson's way.

In Re Napster Copyright Litigation (9th Cir. - March 14, 2007)

There's a fine line between good legal advice and fraud. Very fine.

Judge Willie Fletcher writes yet another excellent opinion in this matter; comprehensive, well-organized, and direct. I liked it. It's all about (1) what showing is required to prove the crime-fraud exception to the attorney-client privilege, and (2) whether such a showing was made here. Judge Fletcher holds (1) that it's preponderance of the evidence (and requires consideration of all the evidence from both sides) -- at least if ouright disclosure, as opposed to in camera review, is sought, and (2) No.

Granted, you could easily disagree with his conclusions. Reasonable minds could differ. And I'm sure do. But his opinion goes a long way towards convincing me that he's right.

I'm absolutely certain that the defendant here, Bertelsmann, deliberately employed its lawyers to structure the transaction so that it looked like a loan rather than equity, and further did so in a deliberate effort to avoid potential copyright infringement liability that might arise from infusion of equity. And I'm not too pleased with the admitted "side deal" that the parties (with the help of their counsel) deliberately decided not to write down -- a side deal that was probably in part an effort to hide this agreement and strengthen Bertelsmann's infringement defenses. It sounds sleazy; moreover, my sense is that the subsequent deposition testimony regarding this side deal is, shall we say, a little creative.

But Judge Fletcher convinces me in the end that there was no fraud. His thoughts on this matter somewhat mirrored my own as I read though the case, and the most persuasive argument to me was when Judge Fletcher says: "The strongest evidence that appellees have that Bertelsmann
sought to purchase an equity stake in Napster is the right of Bertelsmann to convert the loan to equity once the licensed music distribution system was launched. But that right, given by the express terms of the loan documents, could hardly have been fraudulently procured, given that it was stated expressly. Nor does it tend to prove that the entire loan was a sham. The only other evidence appellees have offered in support of this theory are documents showing that Bertelsmann’s counsel and executives attempted to structure its deal with Napster to
limit its potential liability. These documents do not prove fraud. If a party could establish the crime-fraud exception simply by showing that an opponent structured a business transaction to limit its liability, the attorney-client privilege would be worth little, for under this standard many commercial disputes could be recast as fraud on the court." That seems right to me.

Still, as I began this post, this appeal really did bring home to me the fact that there is truly a fine line between fraud and good lawyering. And a dangerous line, I think, that's far too easy to cross sometimes.

P.S. - One other interesting thing about the case. One reason that Bertelsmann probably wanted an undocumented side deal that allowed Napster to use $10 million of $50 million to defend itself in the pending copyright litigation was because one of the parties that was suing Napster (BMG) was a subsidiary of Bertelsmann. So, essentially, Bertelsmann was giving Napster $10 million to defend a suit that Bertelsmann had brought. Weird, huh? I'd never previously heard of a case (though I'm sure that one probably existed) in which a party was funding both the prosecution of the lawsuit as well as its defense. Not your usual deal.

Wednesday, March 14, 2007

U.S. v. Zolp (9th Cir. - March 13, 2007)

Judge Smith -- welcome to the Ninth Circuit, by the way -- writes a very nice opinion in this case. That also seems entirely right.

I'd have articulated the relevant rule somewhat differently, but I totally agree with him on the substance. When a defendant criminally pumps and dumps, and the underlying stock's not a total sham, the value of the loss (for purposes of the guidelines) is the difference between the true and the artificial market capitalization. And, again, if the stock's not a complete sham, the former isn't zero. Hence the entirely appropriate reversal here, as the district court's loss calculation was based on the erroneous assumption that the underlying stock had no value absent the pump when almost certainly it did.

On an personal level, I also had a hearty laugh when I read the following two sentences near the end of Judge Smith's opinion: "The government argues that the stock nevertheless remained 'worthless' because 'the trading volume is close to zero.' But close to zero is not zero, and the government therefore implicitly -- if unintentionally -- acknowledges that New Energy stock continued to have some value after the fraud came to light." Sure, that analysis is entirely correct, and basically encapsulates the district court's error. But Judge Smith's comment that "close to zero is not zero" reminded me of the analogous line "Like unbeatable is not unbeatable." To which Judge Klausner, on remand, might well offer his best impersonation of Nicolas Cage and respond: "I know that now!"

Sprint Telephony PCS v. City of San Diego (9th Cir. - March 13, 2007)

For a sharp contrast to the opinion by Judge Willie Fletcher that I lauded yesterday, read this opinion by Judge Bright (sitting by designation from the Eighth Circuit). Which is a 34-page snoozer that includes, inter alia, a full single-spaced page of clearly irrelevant historical details about who invented the radio (Marconi) and who invented the concept behind cell phones (Bell Labs scientist D.H. Ring).

It's not that I didn't like, at some level, reading this irrelevant stuff. I did. But it's definitely a different way of writing an opinion.

Anyway, the Telecommunications Act of 1996 can't be enforced though a Section 1983 action. Just thought you'd want to know. Oh, also, Felix Wankel invented the rotary engine. Not Barney Coopersmith.

Tuesday, March 13, 2007

Summers v. Schiro (9th Cir. - March 13, 2007)

Want to read a tight and incredibly well-argued opinion that's a perfect lesson in both (1) how to get out of being bound by adverse circuit precedent, and (2) how to write a great opinion without unnecessary fluff? Then read this one by Judge Willie Fletcher.

Impressive. It's written not at all like a law professor who's used to writing long, ponderous, and boring law review articles. It's short. Tight. To the point. And powerfully persuasive.

I like it. A lot. Both as to substance and style.

People v. Myers (Cal. Ct. App. - March 13, 2007)

You don't usually see the party who lost on appeal requesting publication. But it happens.

And for good reason. The defendant's conviction gets affirmed, but only because the error here -- admitting evidence of the defendant's prior violent conduct -- was harmless. So the public defender requests that the opinion be published in order to create precedent (and avoid similar errors) in the future. Smart.

Justice Ikola articulates a very brief -- and somewhat persuasive -- explanation for why the error here was harmless, and says:

"But although an Evidence Code section 1103 objection would have been meritorious, counsel’s failure to object caused no prejudice. (Strickland, supra, 466 U.S. at pp. 687, 693-694 [prejudice requires a “reasonable probability” that competent performance would have led to a different result].) This was not a close case. The jury deliberated for less than two hours before convicting defendant. It credited the officer’s testimony. Defendant destroyed his own credibility with his far fetched claim that the white-residue-encrusted glass pipe was for smoking tobacco. Any reasonable juror would have concluded defendant fought with the officer to hide his meth pipe. Objecting to the evidence of defendant’s violent character would not reasonably have resulted in a more favorable determination to defendant. (Ibid.)"

Lesson of the day: Don't fight with the cops. Particularly just to hide your meth pipe. Otherwise you'll spend six years in the pokey. Which is much more than you'd have spent otherwise. Duh.

Monday, March 12, 2007

Levitz v. The Warlocks (Cal. Ct. App. - March 12, 2007)

Yes. Totally right.

This is a great, brief, cogent, and entirely persuasive opinion. With no filler. Right to the point.

Justice Rubin needs only six (double-spaced) pages to explain why a court can't dismiss a lawsuit in response to an OSC when the parties say "Yes, we previously asked for an OSC re: dismissal when we thought we had a settlement, but it turns out we didn't (we couldn't hammer out the details), so please give us a trial date." The trial court can't simply say in response -- as Judge Treu did here -- "Too bad. You should have given me more details on why the tentative deal cratered. Lawsuit dismissed."

Nope. Reversed.

P.S. - Judge Treu doesn't come off sounding so great here.

P.P.S. - For those into the L.A. music scene, this appeal involves the lawsuit by former guitarist Jeff Levitz against The Warlocks as a result of his being kicked out of the band back in 2002. Here's an interview with the band back in the heady days when Jeff was still with 'em and the group invariably wore black. Opening line: "Q. Are you involved in the occult? A. Who isn't? If you are involved in rock and roll." Downhill from there.

U.S. v. Lopez (9th Cir. - March 12, 2007)

Sometimes people get footnote-happy when they write opinions. Like Judge Pollack, sitting by designation from the Eastern District of Pennsylvania, does here.

Hosvoldo Lopez helps to get a car that had been used in an assault out of a parking lot at a Fred Meyers store, and the issue is whether or not probable cause existed to subequently stop him. Do we really need to include a 50-word footnote (footnote 2) that explains -- complete with citation -- that Fred Meyers is a Northwestern chain of department stores that recently merged with Kroger?

If so, how about also dropping a footnote in the next paragraph that explains that a Ford Taurus is a mid-sized, front-wheel drive vehicle that was formerly a best seller in the U.S. but lost that status to the Toyota Camry in 1997? Or, in that same paragraph, that a Ford Focus is a vehicle in which you'd rather be caught dead.

Just the facts, sir.

Friday, March 09, 2007

People v. James (Cal. Ct. App. - March 8, 2007)

When it gets really sunny and nice in California -- in San Diego, in the 60s today, the 70s tomorrow, and the 80s on Sunday -- apparently everyone takes a three-day weekend. Not that I blame them. Still, that means nothing published thus far by the California Court of Appeal and only a tiny amendment (alongside a dissent from failure to take the case en banc) from the Ninth Circuit. So not much to write about today. Perhaps I too should start my three-day weekend?

No such luck, however. I've got class; or, more accurately, a class (to teach). Plus a faculty colloquium. So instead of writing about nothing today, I'll write about a case from yesterday that I didn't have a chance to comment on yet. A case which helps establish -- if one didn't know it already -- that the real world is very rarely identical to the movies.

For example, in many ways, the crime in this case is very similar to the one in Ocean's Eleven. As in Ocean's Eleven, the ringleader -- here, Gregory James -- and several accomplices got a ton of money from robbing a casino in a daring, sophisticated robbery. Okay, well, maybe it wasn't an actual casino, or in glamorous Las Vegas; instead, it was the Bingo Club in the much-less-exciting Hawaiian Gardens. And it also wasn't $150 million; instead, it was only $60,000. Still, that's a pretty good piece of change, and certainly much better than you'd typically do at a liquor store or a bank. Finally, I admit that it wasn't totally a sophisticated operation; still, it was at least a tiny bit more planned than your usual smash n' grab. Plus, James and his gang had done an identical robbery at the same place just six months previously, so it took at least a minimal amount of cajones to try to get away with the same thing again.

But Greg James is no George Clooney. And while George continues to live a blessed single life in L.A., Greg's dates for the foreseeable future are, shall be shall, less appealing. 'Cause George got away with it in the movies, but Greg gets convicted and sentenced to life in prison. Plus 10 more years for the gun.

Don't steal. Don't get caught stealing. And don't move anyone more than minimally during the robbery, otherwise -- as Justice Croskey holds -- it's kidnapping for robbery. And life in prison accordingly awaits.

Trustees v. Hartford Fire Ins. Co. (9th Cir. - March 8, 2007)

It's an avalanche of certification!

The Ninth Circuit has suddenly embarked upon an unprecedented wave of certification the likes of which I've rarely seen in the 15-plus years I've been watching this court.

On Monday it was the Oregon Supreme Court. On Wednesday it was the Washington Supreme Court. And now, on Thursday, it's the Nevada Supreme Court.

I think the Ninth Circuit's figured out that its job can be a whole lot easier if someone else does all the work. Another court or, sometimes, private parties.

Now if I could only figure out how to get someone else to write all my law review articles. . . .

Thursday, March 08, 2007

McConnell v. United States (9th Cir. - March 8, 2007)

I could easily make a list of 100+ Feres cases that seem unjust to me; where a member of the military has been severely injured -- or, as here, killed -- by the neligence of someone else and yet not allowed to recover even a penny due to his or her military status. Today's decision by the Ninth Circuit would surely be on that list.

Lt. Lawrence McConnell dies while waterskiing on a private lake. The boat that ran over (and killed him) -- and that indisputably had a serious defect -- had been rented from Luke Air Force Base. That's enough, the Ninth Circuit holds, to immunize the United States, which owned and rented the defective boat, from suit. A lawsuit that would allegedly "frustrate military discipline" and the like.

Which is, of course, a crock. And every member of the panel -- which affirms the dismissal of the lawsuit -- knows it; the majority applies Feres here "without relish", and Judge Gould's concurs to expressly note both the injustice of the result here as well as to (slightly) encourage potential review of the Feres doctrine up the appellate ladder.

But we've seen this many, many times before. And the Supreme Court nonetheless has consistently refused to review this nearly-universally critiqued doctrine.

Which really is unacceptable. This is a doctrine that Congress and/or the Supreme Court should change. Its contemporary scope makes no sense. It's repeatedly unjust.

But, sadly, no one -- or at least no one in power -- wants to do anything about it.

Not our most impressive jurisprudential doctrine. At all.

U.S. v. Lewellyn (9th Cir. - March 7, 2007)

Spitting in someone's face is indeed assault. Even when you pretty much only hit them with spittle. So holds Judge McKeown, in a comprehensive review of the various federal cases on spitting (!).

And, yes, we can indeed make a federal case out of it. At least when you spit in front of the VA hospital.

I'm sure that when defendant's counsel, Amy Rubin, was in law school at the University of Montana she was thinking: "You know what? I think I'm going to take that class on 'The Law of Spitting' next semester. I bet that'll come in handy some day."

Dyer v. Childress (Cal. Ct. App. - Feb. 26, 2007)


Finally, someone in the California judiciary who understands -- and who's not afraid to hold -- that not every movie filmed in La-La Land has such a profound message and importance that it thereby concerns an "issue of public importance" and hence is subject to an anti-SLAPP motion to strike in any litigation thereover. Even when, as here, the movie (Reality Bites) involves the most pressing public issue of our time: The various concerns of slacker rebels in Generation X.

Okay, okay. Truthfully, Justice Klein's holding is a little more narrow, and (entirely properly) holds that even if the film itself does address a public issue, the particular cause of action at issue in the litigation -- allegedly defaming Troy Dyer and portraying him in an actionable false light -- doesn't itself concern a public issue and hence doesn't give rise to an anti-SLAPP motion. True. And Justice Klein states as much in a sharp, succinct, and crisp opinion.

Good news for SLAPP jurisprudence. And also exciting news for Reality Bites fans. Apparently the character Troy Dyer in the movie is based on a real person. Except that the real Troy Dyer is apparently entirely opposite to the Troy Dyer depicted in the movie. Oops.

I'm not saying that Dyer's should win his lawsuit. In fact, I think he won't, and don't think that a jury's likely to be massively sympathetic with his claims.

But I also think that Justice Klein is entirely right that an anti-SLAPP motion is inapposite here. So even if Dyer probably won't prevail at trial, he shouldn't have to pay the other side's attorney fees either.

Wednesday, March 07, 2007

J & J Cellcom v. AT&T Wireless Svcs. (9th Cir. - March 7, 2007)

"Hey, Washington Supreme Court: Did you see how great the Oregon Supreme Court was just a couple of days ago when we certified a question to them? Here's your chance to show us you can do the same. Get this complex, difficult state law diversity case off our docket, will you? We'll love you if you do. And you don't want your competitive neighbor, the woodsy Oregon Supreme Court, to be better than you, do you?! So show us what you've got, baby!"

That's basically what the Ninth Circuit panel does here.

People v. Matye (Cal. Ct. App. - March 7, 2007)

Another great family.

Jean has a stroke. Her 37-year old son, Raif, starts to live with her in her trailer. At which point Raif starts having sex with his mother's 18-year old granddaughter, Heather. Jean doesn't especially approve, and tells Heather that she's a bag whore (i.e., someone who has sex for drugs). Which in turn causes Raif, in a weekend of violence, to repeatedly hit and abuse his grandmother. And get sentenced to quite a few years in prison for elder abuse as a result.


Hasso v. Hasso (Cal. Ct. App. - March 6, 2007)

Maybe it's that I'm in my 40s. Maybe it's that I have kids. Regardless, I thought that this was pathetic.

Norman Hasso dies at age 35. Sad enough. He establishes a trust (right before he dies) that, as is often the case, throws off all income to his wife/widow and leaves the principal to his two kids.

There's plenty of money to go around; millions (indeed, tens of millions) of dollars. You'd think that'd be enough. Nope.

After Daddy's dead, Mommy and Kids decide to litigate how various distributions from the Trust should be classified; income (to Mommy) or principal (to Kids). In short, in a fight over precisely how many millions each one gets, Mommy and Kids decide to sue each other.

Nice. I'm sure that's exactly what Daddy would have wanted after his death. At 35.

Tuesday, March 06, 2007

Welch v. Metropolitan Life Ins. Co. (9th Cir. - March 6, 2007)

Who here hasn't filed a motion for attorney's fees? Pretty much everyone has. So this case is helpful, if only to provide some quick reminders about various pitfalls that counsel and/or judges can hopefully avoid:

(1) For Judges: Don't cut hourly rates merely because you think they're excessive. You've got to have some evidence for what you've done. Judge Anderson thought that the $400/hour rate in an ERISA case was way too high and cut it to $250/hour. But Judge Fisher reverses. There's gotta be evidence to support reducing the hourly rate, especially when (as here) the plaintiff submitted evidence that $400/hour is normal. Usually we give district judges discretion, and value their experience and common sense. But apparently not here; or, at a minimum, when there's no actual evidence to support their view.

(2) For Lawyers: (a) As an (obviously) correlary of (1), introduce evidence. Declarations. Stuff like that. Both to support your claimed rates and to support a reduction. (b) Don't block bill. Judge Fisher affirms the 20% across-the-board fee reduction because counsel block-billed, and this case provides solid precedent for courts to do so in the future. Or at least don't block bill when you're asking for court-ordered fee awards. (c) Don't bill in 15-minute increments. Judge Fisher affirms another 20% reduction on this ground. (d) Don't cut-and-paste and pretend like it's all new stuff when you bill it out. Which, reading between the lines, seems like what transpired here with respect to the fees-on-fees stuff. It makes you look bad.

Important lessons all around.

California Statewide Communities Devel. Auth. v. All Persons Interested (Cal. Supreme Ct. - March 5, 2007)

Establishment cases make strange bedfellows.

Fairly rarely do you see a 4-3 in the California Supreme Court that lines up with Justice Kennard backed by Chief Justice George and Justices Baxter & Corrigan, on the one hand, versus Justice Chin backed by Justices Werdegar and Moreno. But that's precisely the case here.

The case is a big win for hugely religious schools, since the California Supreme Court holds that public entities can aid even pervasively sectarian establishments through tax-exempt bonds. That's huge. Huge.

Ultimately, I think that the U.S. Supreme Court has to step in on this one, particularly since many other courts -- especially federal courts -- have (and would) come out differently on this issue. But I'm not so sure that the current Court really wants to pick that fight. Which, as today's decision reveals, isn't at all an easy one. Regardless of which side you're on.

Monday, March 05, 2007

Lombardo v. Warner (9th Cir. - March 5, 2007)

Here's another advantage of certification.

The panel decided a tough First Amendment issue regarding the validity of an Oregon sign permitting regime. The Ninth Circuit subsequently took the case en banc. After oral argument, the en banc court decided to certify to the Oregon Supreme Court a couple of state law questions regarding the scope of the ordinance at issue. At which point the Oregon Supreme Court, after taking a couple of years to decide the issue, elected to hold that various provisions of the ordinance violated the Oregon Constitution, and decided to excise them from the statute.

And, with those provisions gone, the Ninth Circuit case became moot. So the en banc court unanimously dismisses the appeal on that basis.

See? Certification works! At least if you're willing to wait three years or so and are, thereafter, lucky enough to have your sister court do all of the actual work for you.

Still, I'm sure the en banc court calls this one a win. As, most likely, it should.

Flippin v. Los Angeles City Board (Cal. Ct. App. - March 1, 2007)

Kenneth Flippin drives a truck for the DWP. He also sleeps on the job. Indeed, one day, he rigged a hammock up and slept underneath his DWP truck on a public street while on duty. Someone saw him doing so and, not surprisingly, called the DWP and complained. At which point a DWP supervisor drove to where Flippin was sleeping, heard him snoring, took pictures, and called Flippin's name to wake him up. Flippin did so, and promptly -- consistent with his surname -- gave the supervisor the finger.

Shockingly, Flippin was fired. Boldly, Flippin challenged his termination, claiming that he shouldn't have been fired for sleeping in a hammock under his truck in public view while on duty. Or, for that matter, giving the supervisor the bird.

The Los Angeles City Board of Civil Service Commissioners upheld Flippin's dismissal. The trial court reversed. Thankfully, Justice Chavez reverses the trial court.

I really don't think we need public employees sleeping in a hammock under their truck while on duty. Or using their finger -- in public -- to make a point to their supervisor. Really, we don't.

U.S. v. Yida (9th Cir. - March 1, 2007)

Like evidence? Got some spare time in the next 30 days? Want to have input on an important legal rule? Then read this.

It's pretty rare for the Ninth Circuit to expressly invite amicus briefs. And, quite frankly, I like what they've done here. Why not take advantage of free legal help? There are a lot of freakishly bright people out there who might well be willing to put in the time to help identify the correct answer to these queries.

If I taught evidence, and was really mean, I might make this an assignment to my class. Fortunately for my students, only one of those two predicates is true.

Friday, March 02, 2007

The Lands Council v. Martin (9th Cir. - Mar. 2, 2007)

Stop making me look bad, Judge Graber.

When she first issued the opinion, I took time out to compliment her on dispensing justice fairly rapidly here. Good job cranking out the opinion fairly quickly, I said.

A bit too quickly, it turns out. She -- or, probably more accurately, her law clerk -- got confused, and thought that an expert hired by the Intervenors was actually hired by the Forest Service. And so had to go back after the opinion was published and change two sentences. Oops.

But a minor error. And at least she went ahead and 'fessed up -- and made the changes -- after getting a letter from one of the parties.

Plus, I'd rather that justice be dispensed quickly, with irrelevant errors, than slowly but with perfect grammar and text. An obvious call.

U.S. v. Seaton (9th Cir. - March 2, 2007)

It seems to me like Judge Beezer's got a point.

Guy Seaton was convicted of six counts of Medicare fraud way back in 2002. He was sentenced to 78 months in prison in April 2004. He got the district court to initially stay his sentence pending the various challenges to the sentencing guidelines, and then in 2005 got the Ninth Circuit to enter a stay after the district court said that Seaton had to surrender. Then in May 2006 Seaton loses his appeal before the Ninth Circuit, but gets the court to keep him out of prison until his petition for certiorari is denied. Which (of course) promptly happens in early January 2007.

Then Seaton writes a pro se petition saying (essentially) "Please let me keep staying out of prison because my wife is sick." But she's clearly been sick for a while; plus, he's been out of prison already for a long, long, time after his conviction.

Judge Beezer would put the guy in prison at this point. But the (unnamed) majority disagrees, and issued an unpublished order keeping him out yet again.

It seems to me like the 64-year old Seaton is just hoping he can stay out forever, or at least as long as he can. And, thus far, it's working.

I think that Judge Beezer's dissent is sufficiently compelling that I'd like to see the majority publish a response (which is what usually happens when one judge wants an unpublished disposition published). I'd very much like to see both what the equities are on the other side and how the majority balanced them.

Franklin Capital Corp. v. Wilson (Cal. Ct. App. - Feb. 28, 2007)

This opinion brought a smile to my face. It's breezy. It's light-hearted. It even contains jokes (though they're funny only in context). In short, it reads much more like a blog entry -- albeit a 36-page one -- than a judicial opinion. Not something that you usually see.

Mind you, I wouldn't like it if all opinions were like this; some of the structure and content was a little off-putting. But I definitely liked it as an occasional change of pace.

Plus, on the merits, Justice Sills does a pretty good job of distinguishing, rationalizing, and (dare I say it) pretending that a plethora of diffuse and varied cases all -- or almost all -- stand for a core unifying principle. That's helpful, and definitely advances the law. Even if he's wrong, and I liked the fact that Justice Sills even says as much himself, and quotes Henny Youngman to encourage the California Supreme Court to take up the case if an appropriate vehicle. Parenthetically, I also thought that Justice Aronson's brief concurrence was great as well.

So I definitely think this one is worth a read. It's also practically helpful as well, and does a great job explaining precisely -- or at least as precisely as presently possible -- when a party is allowed to avoid a dismissal with prejudice by voluntarily dismissing an action. For example, whether, as here, you can voluntarily dismiss the day before a hearing on an OSC re: dismissal; or, in other cases, voluntarily dismissing after the grant of a demurrer with leave to amend, pending motions for summary judgment, adverse tentative rulings, etc. Important stuff.

My only substantial departure from Justice Sills concerns footnote 1. Trial counsel for Franklin Capital sounds utterly incompetent. And, after reading the briefs, sounds even less capable. I'd have named him in the opinion. But, in footnote 1, Justice Sills decides otherwise, and gives some reasons why. Mind you, I don't find those reasons persuasive, but out of respect for Justice Sills, I'll do the same. But you can look it up if you want. It's hard, but not impossible, to find.

P.S. - You gotta figure that Justice Sills wrote this one himself, right? What extern or clerk would have the gonadular fortitude to write a first draft that looks like this? If I'm wrong, I'd love to meet the responsible party one day. And shake his/her hand.

Thursday, March 01, 2007

U.S. v. Kelley (9th Cir. - March 1, 2007)

I gotta agree with Judge Rymer on this one, and respectfully disagree with Judge Thomas.

Yes, it's true that there's a lot of spam out there, including pornographic spam. So it's possible -- possible -- that an individual might receive unsolicited e-mails that contain child pornography. I'm sure it happens. Indeed, I'm positive. For that reason, I wouldn't allow a search warrant that said simply "X received e-mails with child porn. Let me search his computer." Not good enough.

But, here, Kelley's has two different e-mail accounts, and multiple instances of the the same type of kiddie porn (young boys engaged in sex acts) sent as e-mail attachments to both accounts -- Kelley's "Gay1dude" account and his "Badatt178" account. These were often the same kiddie porn attachments seen in the e-mail accounts of a different pedophile (Herbert Mumenthaler) in Germany who had 450 incoming e-mails with kiddie porn and 25 outgoing e-mails with kiddie porn; in other words, someone who we're pretty positive deliberately collects and disseminates the stuff.

Is it possible that Kelley was just randomly spammed -- on both of his (sexually explicit) accounts -- with the same kiddie porn that was collected and distributed by Mumenthaler? Yes. It's definitely possible.

But we don't demand certainty before we issue a search warrant. All we ask is that there's a "fair probability" that there's illegality and evidence thereof. And I think that the evidence against Kelley in the warrant adequately demonstrated precisely that.

There was perhaps a fair probability that Kelley was spammed. But there was also, at minimum, a fair probability that he wasn't. That's enough.

So I agree with Judge Rymer. And, for that matter, Justice O'Connor, who sat by designation and joined the majority. Respectfully, I part company with Judge Thomas on this one.

Moran v. Murtaugh, Miller, Meyer & Nelson LLP (Cal. Supreme Ct. - Mar. 1, 2006)

When Justice Aronson wrote this opinion for the Court of Appeal over two years ago, I promptly posted that this decision "puts a fair amount of bite" back into the 'vexatious litigant' provisions of CCP 391.3 by allowing the judge to weigh the evidence when deciding whether to require the plaintiff to post security, and argued that the California Supreme Court should grant review to resolve the split in the Court of Appeal and decide whether Justice Aronson was right.

It did. He was.

The opinion by Justice Corrigan is almost as short. Seven double-spaced, totally concise pages. Wow.

Jet Source Charter v. Doherty (Cal. Ct. App. - Feb. 28, 2007)

Some of my disagreement with this opinion is founded upon a displeasure with the Supreme Court's opinion about punitive damages in Campbell. But, honestly, much of my disagreement with Justice Benke in this case rests not on an underlying policy choice, but rather the proper interpretation of precedent.

Justice Benke holds that, in this case, which involves clearly fraudulent conduct by the defendant, who was a broker-agent who flat out stole millions and millions of dollars from his principal, a ratio of punitive damages to compensatory damages in excess of 1:1 would be constitutionally excessive. And hence reverses the lower court's award of punitive damages in a 4:1 ratio.

I think that's wrong. Yes, the jury awarded substantial compensatory damages; essentially, $5 million, plus $1.5 million in prejudgment interest (awarded by the court). But that's only because the defendant stole $5 million. And, unlike Campbell, the damage award was all economic loss; there were no "emotional distress" or other damages that might arguably "overlap" with punitive damages -- and, in any event, would have been real damages anyway (even had they been incurred).

Justice Benke holds that because plaintiff was already rich (and hence not "especially vulnerable") and was fully compensated by the compensatory damages, the absolute most that the jury could award in punitive damages consistent with the Due Process clause was a 1:1 ratio. That, to me, both erroneously applies the Supreme Court's decision in Campbell and overly aggressively expands the Due Process Clause beyond its rational limits.

Juries can constitutionally -- indeed, should -- impose punitive damages in excess of 1:1 in a case, as here, involving deliberate theft by a fiduciary from his principal. That's reprehensible conduct, and deserves an exceptional amount of punishment. Including but not limited to the imposition of large punitive damages in order to deter similar types of misconduct in the future.

Under Justice Benke's maximum 1:1 ratio, a defendant should -- and will -- have a rational economic incentive to steal $5 million whenever the probability of getting caught is less than 33%. And that's way, way too often. After all, even if they get caught stealing the $5 million, the Due Process Clause allegedly ensures that they'll only be spanked for $10 million. A $5 million upside and a $10 million downside means that you take the risk whenever you think it's likely (>66.6%) that you won't get caught.

The law doesn't, and shouldn't, work that way. Nor should it be blind to the resulting incentive problem. Sure, my mathematical analysis ignores the risk of potential criminal penalties. But we all know that those penalties are incredibly unlikely in cases like this anyway. Plus, remember, I'm also ignoring the risks that (1) the defendant will be found not liable at trial, or (2) that the punishment imposed at trial would be less than the constitutional maximum.

I think that a jury could rationally, and constitutionally, find that the defendant's conduct here was totally reprehensible and that, in order to deter such misconduct, at 4:1 ratio of punitive damages was required. I don't see a jury here that was out of control or motivated by passion or prejudice. I see a jury that did its job, and did it well, and that appropriately responded to deliberate fraud. I surely don't think that what transpired here was a vioaltion of the Due Process Clause. It was, instead, justice. In my view, the jury's verdict should have been allowed to stand.

POSTSCRIPT - A much-more-mathematically inclined reader than me e-mailed to note -- entirely correctly -- that my math is a bit off; that since the only downside of getting caught is $5 million (sure, you have to pay $10 million, but $5 million of that you stole anyway, so you're only down $5 million net), under the 1:1 ratio, you have a rational economic incentive to steal whenever the probability of getting caught is less than 50%, not (as I said) 33%. So my point is right -- indeed, even more right than I thought -- even though I stink at even the easiest math.