Filomena Rivera v. Mukasey (9th Cir. - Dec. 7, 2007)

Ah, the holidays. The flights. The crowds. The utterly unnecessary flight cancellations because your pilot "unexpectedly" maxed out the number of hours he could fly in a month in the middle of your trip. The joy!

So here your honorable blogger is. Stranded in a Holiday Inn in Cincinnati for 24 hours until the next flight leaves for San Diego. Alongside his three lovely -- and very excited -- children, 6, 4, and 1. Triple joy!

Oh, wait. Did I say "Cincinnati"? I meant Erianger, Kentucky, of course. Which is the true location of the "Cincinnati" airport. And let me tell you, there's TONS to do in Erianger. Whoa, Nellie. Especially with three little kids. Especially without a car or other transportation. And especially on New Year's Eve.

But fear not. I got a $7 meal voucher. And the prospect of spending it on the rockingest of New Year's Eves. I'm figuring I'll put the kids to bed at, oh, say, 6:00 p.m. And promptly join them. So an early 2008 to all!

Meanwhile, in the legal world, there's (of course) nothing new today. Undoubtedly because the judicial system caps out at the end of the month as well. (Actually, I'd like that system: "Sure, I'd love to write another published opinion if I could, PJ/Kozinski. But I've already written my maximum for the month, sadly. Off to Hawaii. See you on the first of the month!").

But the resulting extra time allowed me to read this case, which came out earlier this month, to end the year on a happy note. And, further, for the very first time, put the plaintiff's first name in the caption of the post.

Because it brought a smile to my face. As well as because it happens to be -- and I looked this up -- the first published opinion in the history of the Ninth Circuit in which a lead party has had the first name "Filomena".

Which reminds me -- as it should everyone -- of My Blue Heaven. Set in San Diego -- the city of my home, and the city that I have been unable to reach today -- no less. A movie that's a lighthearted Steve Martin and Nora Ephron classic. And surprisingly related to Goodfellas, of all movies.

The classic line: "Filomena!" And her response, after some Italian, "I thought Wankel invented the rotary engine?"

Funny, funny stuff.

Okay. Maybe you had to be there.

Regardless. Enjoy what little's left of 2007. And have a happy, wonderful, and joyful 2008, all.

Williams v. Alameida (9th Cir. - Dec. 28, 2007)

Keith Lee Williams: Come out, come out, wherever you are. 'Cause, if you do, you might just win your appeal. Otherwise: Not so much.

So sayeth the Ninth Circuit.

Gadda v. State Bar (9th Cir. - Dec. 27, 2007)

You're suing the State Bar of California, as well as a variety of its employees. You're appearing pro se. And, in the third paragraph of your latest appeal, Judge Beezer describes your status for the reader with the following language:

"Gadda has now been disbarred by the State of California, the BIA, the United States District Court for Northern District of California and the Ninth Circuit Court of Appeals. See Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (recounting Gadda’s professional misdeeds and ordering him disbarred from the practice of law before the Ninth Circuit)."

Needless to say, at that point, your case ain't looking so good. And, indeed, you're not going to win. At all.

Aguilera v. Baca (9th Cir. - Dec. 27, 2007)

Well, now. You don't see this every day. Police officers making a Fourth Amendment unlawful seizure claim. And claiming that their Fourteenth Amendment rights were violated by illegally coercive questioning. Did I wake up this morning in a mirror judicial universe?

The underlying facts -- and resulting lawsuit -- read very much like a scene from The Shield. Absent the gratuitous nudity.

Interesting case.

City of San Bernardino v. Walsh (Cal. Ct. App. - Dec. 27, 2007)

Just a reminder that officials of California municipalities are hardly uniformly honorable. Some, indeed, are massively corrupt. And some of the corruption involves -- surprise, surprise -- the contracts for solid waste disposal. I know. Stunning. Who'd have thunk?

At least we can file civil suits against 'em. And get the resulting judgments affirmed.

Take a gander at the opinion to view the nature of the fraud. Sounds like San Bernardino was a pretty footlose place back in the 90s. And a good place to get rich if you were a public official to boot.

Crestmar Owners Ass'n v. Stapakis (Cal. Ct. App. - Dec. 13, 2007)

A litigation, trial, and fully briefed appeal. Over the ownership of two parking spaces in a condo complex.

I can't think of a more productive or efficient use of judicial -- or social -- resources.

America. We rock.

Engle v. Copenbarger & Copenbarger (Cal. Ct. App. - Dec. 24, 2007)

It's been -- to be honest -- a fairly poor holiday season for yours truly. But, on the upside, this event made my day.

Read the last paragraph of this opinion (which was published on November 26th). Then read my comments (which were posted later that afternoon). And, finally, read this change in the opinion (which was published on December 24th). The last of which was made, as far as I can tell from the docket sheet, utterly absent the filing of a petition for rehearing or request for modification from any of the parties.

Strike another blow for the marketplace of ideas, huh? As well for a positive view of the integrity and commitment of some of our judicial officers.

I'm impressed. Truly and sincerely.

Fashion Valley Mall v. NLRB (Cal. Supreme Ct. - Dec. 24, 2007)

There was once an era in which the California Supreme Court led the nation in progressive legal thought. Exemplified, at least in part, by its decision in Pruneyard -- the case that extended free speech rights to private shopping malls. An opinion that's read by nearly every first-year law student throughout the country. It's that famous.

For better or worse, times have definitely changed. A lot. Now the best that the California Supreme Court can do is to refrain from overruling this twenty-eight year old precedent. With a single vote to spare.

Justices Chin, Baxter, and Corrigan vote to overrule Pruneyard. But Justices Moreno, Kennard, and Werdeger -- joined by Chief Justice George -- go the other way.

Regardless. The times, they are a-changin'.

Hailey v. California Physicians' Service (Cal. Ct. App. - Dec. 24, 2007)

Rust never sleeps. And neither, apparently, does the California Court of Appeal. Which issued no less than seven published opinions on the day before Christmas.

Not bad. And in sharp contrast to yours truly, who has been on the East Coast without internet access for the past week. As well as in sharp contrast to the Ninth Circuit, for whom yesterday was a holiday.

Which got me thinking: Do you think that the Court of Appeal at all considers timing issues in its decision to publish? Take, for example, this case. Which, on the merits, concerns the interesting issue of "postclaims underwriting" -- the practice of health insurers not to worry too much about the accuracy of your application at the outset, and to happily take your premiums, but then, once you make a heavy number of claims, to scrutinize your application in an attempt to find a misrepresentation upon which to rescind your policy. Of course, the problem goes both ways, since I'm sure there's also the dynamic of people deliberately misrepresenting their health status as well, which raises premiums for everyone. So the question then becomes: How should (or does) the law treat this issue? Do you let the insurance company sit back and only start its investigative process once people become sick? Or do you put the burden on the insurer to do more at the outset? Where do you draw the line, and with what consequences?

An interesting intellectual issue. Which, of course, also involves real people. With real problems and issues. As here, in which Blue Shield is trying to rescind a health insurance policy that it issued to Cindy and Steve Hailey. Who, Blue Shield alleges, misrepresented their health status when they applied for insurance. (Steve weighed a hefty 285, and Cindy listed him as 240 -- as well as omitted any of his prior medical problems, most of which seem to have arisen from his weight -- when she applied for the policy.) But the Haileys insist that any misrepresentations were inadvertent, and, in any event, if Blue Shield had rescinded the policy at the outset, Cindy could easily have gotten insurance through her work. Do you allow recission? Does it matter that the bulk of the Hailey's health insurance claims seem to have resulted from a car accident that permanently disabled Steve after the insurance issued? How would you decide the case?

Read the opinion for the full details. I can summarize at least the result by saying that the Court of Appeal reverses the grant of summary judgment to the insurer, holding that there are triable issues of material fact (e.g., whether the misrepresentations were deliberate). But the Court of Appeal also does a fair piece of work on the law as well, and does so in a manner that definitely won't make health insurance plans totally happy.

So here's my Christmas-related query: Would the Court of Appeal have issued this opinion on Christmas Eve even if they had gone the other way? I mean, the Haileys are potentially looking at a lifetime of having no health insurance for a permanently disabled family member. What if the Court of Appeal had gone the other way and said, yep, no insurance for you, tough luck? Do you really publish that opinion on Christmas Eve? On the one hand, human compassion says, no, no one's that harsh. On the other hand, human bureaucracy says, hey, the relevant justices got done with their input into the opinion a fair piece ago, and the precising timing of an opinion may vary due to delays in the various pipeline (when the other justices sign on, circumstances in the Clerk's Office, etc.). And hence that no one individual may be totally in a position to hold up the opinion for a day or two in order to demonstrate compassion. Or, some might argue, such a policy would be inappropriate anyway. After all, there's always someone who loses whenever a decision is rendered. Why protect one of the parties at the expense of another? Unless you're going to hold off on all opinions shortly before the holidays, the argument could go, you might as well just crank them out whenever they're ready.

Mind you, I think this argument is pretty weak as applied to the present case, in which the loser is a large health insurance company. I mean, sure, I bet they're bummed. But it's hardly going to ruin anyone's Christmas. Or at least not ruin it with the impending prospect of a lifetime of pain and penury.

So what do you think? Think there should be a tiny little stamp that says "Don't Release This One Until After Christmas"? Or, more accurately, an informal understanding in chambers that some opinions can be delayed a couple of days in the interests of compassion for the parties? Or should we just let the chips fall where they may?

And, on a related note, what do you think the actual policies are in this regard? I know from my (very long-ago) clerking days that we would have been bright (and sensitive) enough never to issue, say, an affirmance of a death penalty over Christmas. (Not, mind you, that such a thing ever occurred -- or would likely ever occur -- in the particular chambers in which I worked.) But I'm not so sure about other cases. We might not have even thought about it much.

What do you think?

Mitri v. Arnel Management Co. (Cal. Ct. App. - Dec. 12, 2007)

Client: "One of our employees just sued us for harassment and discrimination."

Lawyer: "Gotcha. But you make all your employees sign arbitration clauses, right?"
Client: "Yep. We're no fools. It's even in the employee handbook; everyone signs an arbitration agreement."

Lawyer: "Great. Just fax me over a copy of this employee's signed arbitration agreement and we'll move to compel arbitration."

Client: "Uh, well, that may be a tiny bit of a problem. I mean, we're sure this employee signed a copy of an arbitration agreement, because everyone does. But we can't find his. For some unknown reason, it's just not in the file."

Lawyer: "No problem. We'll just have you testify that everyone signs one, that his just must have been lost, refer to what's in the employee handbook (which confirms that everyone signs), and we'll get the thing to arbitration."

Justice Fybel: "No you won't."

Lesson: Keep those documents in the file. They're important. Duh.

People v. Jones (Cal. Ct. App. - Dec. 17, 2007)

Turf battles. You see them all the time. But usually they're not over who's entitled to sleep under a particular off-ramp of the Hollywood Freeway. But sometimes they are.

For what it's worth, I thought that Robert Brown had the better of the argument. Brown's living under the underpass and Tommy Lee Jones -- no, not that 0ne -- and some of his buddies pitch a tent on the other side of the underpass and start to live there. At which point Brown tells Jones that the police will roust him if he has a tent. Apparently, there's an informal "no tent" rule re: police enforcement, which is interesting on its own. But Jones doesn't listen. And, sure enough, a couple of days later, the police roust the tent-weilding crew and force them to move.

At which point Jones promptly moves his tent over to Brown's side of the underpass and pitches it again. Which causes Brown to say: "Hey, I've been living here for six months. Don't pitch a tent near me. Because the police will roust everyone in the group, including me, if you do." But, again, Jones doesn't listen. So up goes the tent.

Brown, frustrated, then panhandles a bit on the off-ramp. Jones shows up later, and the two start arguing again about the whole tent situation. At which point Jones tells Brown "I'm not the one who's leaving, you're the one who's leaving." And goes to his tent to get something. And uses that thing -- a shank -- to stab Brown.

So massive injuries, but still. A shanking over a tent and an underpass. Hardly worthwhile, no?

U.S. v. Biagon (9th Cir. - Dec. 17, 2007)

Judge Kleinfeld concurs and says: "Judges read newspapers, look at blogs, and notice crowds in the spectator
seats, so they have some sense of what cases have attracted public interest."

Judges read blogs?! :-)

United States v. Betts (9th Cir. - Dec. 14, 2007)

I never even thought about offering a bribe to the various credit reporting agencies (or their employees) as a quick and easy way of improving my credit score.

I guess I should have.

Schweitzer v. Westminster Investments (Cal. Ct. App. - Dec. 13, 2007)

Guess who represented the appellant in this case, in which Justice McDonald reverses the judgment below and holds that the bond provisions of the Home Equity Sales Contracts Act (Cal. Civ. Code, § 1695 et seq.) are void for vagueness and hence unconstitutional under the Due Process Clause?

None other than Mark Maasch, a double U. Wisconsin graduate (BS '78, JD '81) who left the cold environs of Madison to practice down here in San Diego. Oh, yeah. And this guy.

Congratulations, Mark. It's always fun to brief and argue a constitutional law issue on appeal. Great job.

Richardson-Tunnell v. School Insurance Program (Cal. Ct. App. - Dec. 10, 2007)

You can be secretly videotaped at your wedding and wedding reception by a crasher who pretends to be invited. At least if you're alleged to be faking your disability claim. Or at least if the person who's doing it is entitled to governmental immunity.

So holds Justice Coffee. In an opinion that, to me, seems right.

P.S. - I wasn't involved in this case, which is out of San Luis Obispo, but I was involved in a different case -- on a different subject matter -- that was (1) also in San Luis Obispo, (2) before the same judge in this case (Martin Tangeman), (3) in which the attorney for the plaintiff here (Daniel O'Neill) was also counsel for the plaintiff there, and (4) in which the attorney for the defendant here (David Cumberland) was also counsel for one of the main defendants there. Small world. (Or at least small San Luis Obispo!)

In Re C.J. (Cal. Ct. App. - Dec. 11, 2007)

"Mother was born in August 1979. She began using drugs at age 16. She has given birth to seven children in 12 years by three men. Her first child, M.F., was born in 1993 when she was 14 and had been molested by her stepfather. Her next two children, D.K. and C.K., were fathered by her foster brother and born in March and November 1997."

You can pretty much figure out the rest. Nothing good becomes of anything.

Later in the opinion, by the way: "Witnesses stated the parents had neglected the children, left them unattended in the bathtub, and allowed C.P., the two year old, to cook food in the microwave."

Nice parenting. (This is a dependency case with meth-addicted parents, as you might well have guessed. When you've got egregious facts like this, it's almost always meth.)

People v. Colbert (Cal. Ct. App. - Dec. 11, 2007)

Got one of those ubiquitous tree-shaped air fresheners hanging from the rear view mirror in your car? Then read this case. Since it holds that this object (or pretty much anything else) provides the police with a proper pretext to stop your car.

It's an interesting opinion for another reason as well. There's a First District case that's directly on point that holds that those tree-shaped things are too small to block your vision out of the front windshield and thus don't provide a legitimate basis for a police seizure. The First District discussed the facts (and testimony) in that case at length to support its view that the tree-shaped things are legal. Rather than just disagree with the holding of that case (which he's entitled to do, of course), Justice Mihara finds that case "distinguishable" because, here, the police officer simply testified that, in his experience, those tree-shaped things sometimes block the driver's view. In other words, that the First District's holding is easily circumvented as long as you have a police officer -- the same officer who admittedly stopped the defendant in a pretextual search -- testify that, yeah, in his view, the stop was legitimate.

I don't find that argument persuasive. I'd have preferred Justice Mihara to simply disagree with the other case. Or, alternately, address the merits and decide one way or the other whether those tree-shaped things are legal or not. They either do or do not illegally block a driver's view. Sure, maybe it's technically okay to simply say "Well, the police officer said X, so what do I care what the true facts are?" -- though I even have my doubts on that point, at least when the facts are objectively verifiable. But even if that's legitimate, I think a better approach would be to address the merits.

Anyway, for now: Take those air fresheners out. Unless you want to be stopped.

In Re McSherry (Cal. Ct. App. - Nov. 28, 2007)

Don't play with yourself in your car while watching third-graders play tetherball. Because if you do, you may well spend 25 years to life in prison. Even if the kids don't see you.

Just ask Leonard McSherry.

U.S. v. Corona-Verbera (9th Cir. - Dec. 7, 2007)

Does the second sentence of Part I of Judge Trott's opinion really describe Angel Martinez-Martinez as one of the "top aids" of the leader of the Sinaloa Cartel?

And, no, that's not one of my (plethora of) typos. "Top aids," huh?

Neighbors in Support v. County of Tuolumne (Cal. Ct. App. - Dec. 7, 2007)

Justice Wiseman typically writes -- and hence knows -- better than to begin an opinion with the following sentence: "We begin by stating the question presented in this case."

Just state the question. Or conclusion. Or anything else, for that matter.

Don't introduce your opinion by saying "There is a question presented by this case. Wait for a sentence and I'll tell you what it is. Then I'll answer it." We sort of figured that much out even before we began reading.

I know that Justice Wiseman can write better than this. As I said, e.g., here. (P.S. - Was I right or what about People v. Castro? Review of which was granted by the California Supreme Court last year.)

Sierra Club v. Bosworth (9th Cir. - Dec. 5, 2007)

I love Judge Kleinfeld's concurrence in this one. You've gotta slog through a thirty-page majority opinion before you get to it, mind you. But when you do, it's two incredibly short -- and neat -- paragraphs. That basically say:

"I'm from Alaska, damn it. And conservative too boot. So it may not come as a total surprise to you that I really, really don't think it's that big of a deal at all to cut brush or do controlled burns on 1,000- or 4,000-acre plots of land if the Forest Service feels like that's what it needs to do. Four thousand acres isn't that much to me, honestly. And it seems like it's for a good reason. But, to my eternal chagrin, the Forest Service filed a brief that totally fails to cite to anything in the record to support my strong -- strong -- belief that this isn't a big deal at all. 'Cause if they did, I promise you, I ain't voting in favor of the Sierra Club in this one. But they didn't. So I can't. And I won't. Hence I join the majority."

My description reads between the lines a little bit, perhaps. But I think it's pretty accurate.

In Re Gong & Kwong (Cal. Ct. App. - Dec. 6, 2007)

I don't care how bad your day at the office was today. Trust me: Mattaniah Eytan (a U. Chicago Law graduate practicing in Corte Madera) and Eric Schenk (a Boalt graduate who practices with Eytan) had it worse today. Much, much worse.

You don't see many opinions in which the Court of Appeal sanctions the lawyers for filing a frivolous appeal. Much less opinions in which the Court not only does so, but also goes out of its way to repeatedly identify the lawyers by name. As well as relentlessly slam them.

But that's precisely what Justice Stein does here.

It hurts. So, so badly. Especially since, yes, the arguments that these lawyers made in the appeal were both hypertechnical and clearly wrong. But I can see how someone might potentially "convince" themselves that these arguments were at least short of frivolous. It's not a case where the attorneys were just clearly, clearly, and totally clearly out of control. Rather, they made arguments that you might -- in some hypothetical world -- come to convince yourself were true. At least if you were getting paid to make them.

Not that Justice Stein is wrong to sanction the lawyers. Since I'm quite positive that the client -- who was sanctioned alongside the attorneys -- did in fact file the appeal purely to continue to harass and frustrate his former spouse. And the attorneys should have known better. Much better.

So be forewarned. And realize that you day as a lawyer today could have been much worse. Especially if you were in the shoes of the lawyers here. Who not only get spanked -- hard -- monetarily, but who also now have to see their names forever emblazoned in the pages of the California Appellate Reporter. In a way that you'd rather forget.

Plus, trust me, the press will get a hold of this one as well. Not to mention the State Bar. (For a subtle feel of how Justice Stein treats the lawyers, here's the penultimate sentence of the opinion: "Attorneys Mattaniah Eytan and Eric Schenk and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur." (emphasis in original))

Ouchie.

People v. Kelly (Cal. Supreme Ct. - Dec. 6, 2007)

I admit that when I read the first dozen or so pages of this death penalty case, it's hard to care at all what happens to the defendant. At all.

I did not know, however, that at the penalty phase of a criminal trial, when you're deciding on the life and death of a criminal defendant, you can properly admit a 20-minute videotape -- set to Enya songs, no less -- that consists entirely of a lengthy ceremonial tribute to the victim. I mean, at a funeral, yes, obviously, that's entirely proper and appropriate. But at a criminal trial?

But, apparently, that's okay. (Justice Moreno's brief concurrence on this point is worth reading, by the way.)

U.S. v. Holt (9th Cir. - Dec. 5, 2007)

Let me just make this clear. "Horneygirl14" -- or any other similar screen name -- doesn't describe an actual 14-year old girl on the other end of the internet. It's a 34-year old man. Or the FBI. Understand?

So let's say that you're, oh, I don't know, a 45-year old podiatrist. Let me give you a list of things not to do: (1) Have sexually provocative chats with an alleged 13-year old over the internet over a six-month period; (2) Eventually reveal your true age (after pretending to be a 19-year old "stud") and identity to the unknown person on the other end of the line; (3) Transmit video footage of yourself masterbating to said alleged 13-year old; (4) Travel for planned sex with said (needless to say, fictional) 13-year old. Because -- and this will SHOCK you -- you're going to get arrested. Even if you don't cross state lines. Even if winters in Montana are cold.

Because, my friend, 10 years in prison is a lot colder. And that's what you're going to get.

Especially if -- and, of course, why wouldn't this be the case -- once they arrest you, they search your home computer and find (surprise, surprise) child pornography. Oops.

Weird sex stuff leads people to make irrational decisions sometimes, huh? Like here.

Smith v. Patrick (9th Cir. - Dec. 4, 2007)

"I'm sorry, Supreme Court. I understand that you GVR'd this case. But, with all due respect, your latest opinion bears not in the slightest upon our holding. So we reiterate it."

Judges Pregerson, Canby, and Edward Reed (from Nevada) seven-page per curiam opinion goes on a little longer. But basically, that's all it says.

People v. Mendoza (Cal. Supreme Ct. - Nov. 29, 2007)

The first eight pages of this opinion describe a chilling scene.

It's a death penalty case. It involves children. It's a case where you can understand the verdict. As well as the decision, if only based solely on the facts of the offense, to unanimously affirm.

U.S. v. Brooks (9th Cir. - Nov. 29, 2007)

Here's a good way to write an opinion that (1) does some good, and advises district courts (and prosecutors) to follow the law, but (2) refrains from reversing a conviction. Often times, the effort to accomplish (2) will utterly swamp the token effort at (1). But not here.

It's a well-written piece by Judge Guilford. Who's sitting by designation from the Central District.

Good job.

People v. Cobb (Cal. Ct. App. - Nov. 28, 2007)

You were ordered committed -- in an ostensibly civil proceeding -- to a state hospital for a year based upon your then-existing psychiatric state. Your commitment ends on May 27, 2006.

For what it's worth, pursuant to a state statute, if the state wants to try to recommit you for another year, the trial has to start at least 30 days before your scheduled commitment ends (unless there's good cause). Regardless, remember, you were only ordered committed for a year.

The state wants to recommit you. Trial's scheduled for April 24th, which is 30+ days from your May 27th release date. So far, so good. But on April 24th, the state asks for more time on the ground that the particular prosecutor assigned to your case is on vacation. You object, but the court delays the trial until May 2nd. Within the 30 day deadline, but whatever. That's a state law issue.

On May 2nd, the court orders the case trailed because it's doing a different case. And on May 4th the state asks (over your objection) and the court orders the trial delayed until June 9th because one of the state's experts was allegedly unavailable.

Now, I'm not at all sure that these things in fact count as "good cause" for delaying the trial. There are other prosecutors. And other experts. And the state's gotta get it together, in my mind, and realize that state law requires the trial 30 days before the release date. So if that means getting a different prosecutor or expert (unless there's a sudden illness, or similarly unanticipated problems, none of which appears to exist here), so be it.

But, again, these are state law issues. And ones on which reasonable minds might disagree.

But let me ask you one more question. It's now May 27th. Your release date. You were only ordered committed for a year. Can the state keep you in the hospital against your will, without a hearing, while it waits to conduct the recommitment trial? You say, essentially, "Hey, I was committed for only a year, and that time is up. Let me go. You can recommit me if you want to try, but you can't keep me in here for longer than my 'sentence'. I'm free in the meantime, and you gotta give me a hearing before you hold me once my 1-year sentence is up. I deserve to be free at least on the same basis as a prisoner whose sentence is up. Give me a hearing or let me go." Are you right? Do you have a right -- indeed, inter alia, a federal constitutional right -- to have at least a hearing on the merits before you're detained after you've done your year? And do you have a right to be free from the state's custody after the order that permitted you to be held as expired?

Answer: No. At least according to Justice Richli.

People v. Norman (Cal. Ct. App. - Nov. 30, 2007)

I like this case. For so many different reasons. On the merits, even though I initially thought the lack of a jury unanimity instruction was harmless error, Justice Sims convinces me that it wasn't. So it's pretty persuasive. As a matter of appellate direction, since the failure to give a jury unanimity instruction is apparently an error that's pretty pervasive, I appreciate how Justice Sims not only publishes the opinion, but also gives concrete -- and practical -- instruction to trial courts. As in the final sentence of the opinion, which says: "So we have this advice for trial judges: in a criminal case, put CALCRIM No. 3500 on your list of standard instructions to give, then ask yourself: 'Is there some reason not to give this instruction in this case?'" Cool. I like it.

Plus, wholly apart from the merits, I like the cops in this one. They get a report of a bunch of people stealing some mail in an apartment complex, but can't find the guys. But they happen to notice a car that's parked a bit away from the complex that (1) they realize (after running the plates) is stolen, and (2) has car stereos and large quantities of loose mail inside it. So what do the police officers do? They pop the hood, pull the battery cable, and hide in the bushes. Thirty minutes later, the dudes who were stealing the mail hop back in the car, try to start it, and the police bust 'em. Sweet!

Because of the instructional error, the convictions here are reversed. But I'm pretty darn sure they'll be convicted on remand. They seem pretty darn guilty to me. We just gotta make sure. By having a properly instructed jury say so. Which seems like it's definitely going to happen.

Anyway, a cool case. On a rainy day in San Diego.

People v. Sun (Cal. Ct. App. - Nov. 28, 2007)

It's two days after Christmas. Your wife has said she wants a divorce. You've tried to reconcile, but over dinner at your place, she tells you that her "heart has died". You've drank too much Chinese wine. You have tears in your eyes. You can't find a reason to live.

Okay. I understand. But don't promptly shoot and kill your mother-in-law, who's standing in the next room. And even less so attempt to kill your future ex-wife.

Not cool. Your first jury might acquit you of first degree murder and deadlock on the other charges. But your second jury will convict you of second degree and attempted murder. And you'll get 72 years to life.

Then, to add insult to injury, the Court of Appeal will hold -- correctly, I'm sure, but still: ouch -- that you don't get credit for the 20 days you spent in the hospital after you attempted suicide right after shooting your mother-in-law and wife. Because, yeah, they were totally guarding your hospital room, and you were clearly going down. But, technically, they didn't actually "arrest" you until you were discharged. So no credit for pretrial custody.

I'm sure you'll think about that next time you're deciding what life choices to make.

Sekiya v. Gates (9th Cir. - Nov. 29, 2007)

Imagine that you're Venetia K. Carpenter-Asui. Happily practicing law in Honolulu. Nice life, right?

Maybe, in truth, you're not such a great lawyer. Maybe you're mediocre. Maybe a little worse. Of course, my impression in that regard is based upon a quick Google and Westlaw search. Still. Just imagine it's true.

You file an appeal of one of your (many) losses. You don't even get an oral argument. Instead, three weeks after the case is submitted, you receive a published, per curiam opinion from the Ninth Circuit that's short and to the point, but -- for you, at least -- not-so-sweet at all. The upshot of which readily appears from the following lines of the opinion:

"Sekiya claims that her supervisor discriminated against her on the basis of her disability, in violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq. We strike Sekiya’s opening brief in its entirety pursuant to Ninth
Circuit Rule 28-1 and dismiss the appeal. We publish this opinion as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated. . . .

Sekiya’s opening brief is so deficient that we are compelled to strike it in its entirety and dismiss the appeal. Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135, 1137 (9th Cir. 2002). The brief fails to provide the applicable standard of review, Fed. R. App. P. 28(a)(9)(B), and makes virtually no legal arguments, Fed. R. App. P. 28(a)(9)(A). Furthermore, it lacks a table of contents, Fed. R. App. P. 28(a)(2), a table of authorities, Fed. R. App. P. 28(a)(3), citations to authority, Fed. R. App. P. 28(a)(9)(A), and accurate citations to the record, Fed. R. App. P. 28(a)(9)(A) & (e)."

The opinion goes on. But you get the point.

Not the reaction by the Ninth Circuit you were looking for, I imagine.

U.S. v. Kriesel (9th Cir. - Nov. 29, 2007)

I've got a game for you. You've got five guesses as to the author of this dissent. Which begins as follows:

"The majority holds, with an air of shrugging inevitability, that without a warrant, without probable cause, indeed without any suspicion whatsoever, the federal government may seize and repeatedly search the DNA of all federal felons on supervised release, regardless of their offense or their likelihood to re-offend. They sanction the inclusion of that DNA in a massive and permanent computer database, the sole purpose of which is to aid generalized criminal investigation. This offends not only the Fourth Amendment but our precedents."

From the tone and substance of the dissent, you'd think that you could guess who the author is, right? Especially with five guesses.

My prediction, however, is that you can't. Give it a shot.

Write those five predictions down. Then check your guesses against the answer.

How'd you do?

City of Garden Grove v. Superior Court (Cal. Ct. App. - Nov. 28, 2007)

I'm sure this one's going to get a lot of press. So I won't talk about it much. No need to spill a lot of ink -- okay, virtual ink -- over something that's likely to be discussed by the usual mainstream players.

Still, I gotta at least mention it. I had thought about just posting six short words:

"Give me my pot back." "Okay."

Which basically summarizes the 41-page opinion. Or at least its conclusion.

But read the whole thing anyway. It's definitely interesting.

P.S. - It's bit a big marijuana week already for Justice Bedsworth. Maybe now I realize why he was so keen on referring to Reefer Madness on Monday.

Kashmiri v. Regents of the Univ. of California (Cal. Ct. App. - Nov. 28, 2007)

I mentioned this opinion earlier this month, in a post that was incredibly short and yet perhaps the one with the most interest ever to a select group for former UCLA and Boalt Law graduates. Because, as they say, no honey is better than money.

But, today, Justice Haerle (the acting presiding judge) amends Justice Lambden's opinion. Not to do anything that affects the merits, thankfully. But that instead serves only to add a paragraph that's gotta be a blow to the ego of the attorneys for the Regents -- Howard Rice lawyers Jerome Falk, Ethan Schulman, and Keith Kessler. The amendment (in part) adds the following to the end of footnote 12:

“In its petition for rehearing the University claims that it did make this argument in the lower court and it points to the pages in the record where this argument was raised. We note, however, that the University did not cite to these pages in the record when arguing this issue in its opening brief before this court. The University also never addressed in its reply brief respondents’ argument that it had waived this issue because it had failed to raise it below. We cannot be expected to comb through more than 1550 pages in the record to determine whether the University did in fact raise this argument. By failing to address respondents’ argument of waiver, the University forfeited this issue.”

Ouchie. I mean, it's one thing to lose a high-profile, multi-million dollar class action lawsuit. Which Howard Rice did. It's another thing to have the Court of Appeal then add to the defeat by responding to your petition for rehearing by telling everyone that both your opening and reply briefs were substantively inadequate.

That's not what you want on your firm's recruiting pamphlet for the upcoming year, I imagine. Or what you want clients to see when they're thinking about retaining you for future appellate work.

I bet the Regent's counsel wished -- in retrospect -- that they hadn't filed that petition. Ouch.

UFO Chuting v. Smith (9th Cir. - Nov. 28, 2007)

Sometimes when you win, you only think you win. The rotund woman needs to finish her aria. And you need to cash the check. Otherwise, that celebratory party you're having may come to an unexpected -- and totally crashing -- halt. Especially when you are litigating against a state.

Why do I say these things? Well, first, because they're true. And, second, because this case definitely brings these lessons home.

You can't parasail on Maui -- anywhere -- for five months. Between December 15th through May 15th. Why? Because humpback whales are, well, humping. As well as caring for the resulting calves. So Hawaii passed a law to protect them by saying that no one gets to parasail around Maui (or the Big Island) for fear that a motor boat right disturb -- or ram -- them. Makes sense, I guess.

But not, of course, to the parasailing companies. Who sue. Claiming that the Hawaii law is preempted by the federal Marine Mammal Protection Act. As to which, parenthetically, they're right. Or so held the district court. Which granted summary judgment to the plaintiffs. And also entered a final, permanent injuction that blocked enforcement of the Hawaii law.

Yay for the parasailers! Huge party! Booze cruise! Whoopee! Right? Oh, yeah, one more thing. Move for attorney's fees as the prevailing party. Icing on the cake!!

Yeah. Normally. But not so fast. Because Hawaii has a little thing called clout. And a couple of senators to boot. So, right after the district court's decision in favor of the parasailers, there's a tiny little clause put into the 1995 Omnibus Appropriations Bill. That basically says: "Nothing in federal law shall be deemed to preempt any Hawaii law relating to the regulation of parasailing on behalf of humpback whales." Hmmmm. Wonder how that got in there?

As a hint, the day after President Bush signs this bill, Hawaii moves to vacate the permanent injunction and Rule 60 the judgment on the basis of the new law. And the district court agrees.

Party over. The parasailers try a couple of additional rounds in the district court (Commerce Clause, etc.), but get crushed. And try again in the Ninth Circuit, but the same thing happens. Sorry, Charlie. That's what happens when the law just so "happens" to change in the meantime. You lose.

Oh, one more thing. You know all those attorney's fees you were entitled to as the prevailing party. Yeah. None of that anymore. Sure, you "won". But then you lost. So that means you lost. No parasailing. And now no money either. Sucks to be you.

So that's the story about why you can't parasail the next time you take that Christmas vacation in Maui. As well as the larger litigation story to be learned about fighting a political entity. When push comes to shove, my friend, they got a lot of different ways to win. Even when you're totally right on the merits.

In Re Xavier G. (Cal. Ct. App. - Nov. 27, 2007)

Wait a minute. Let me get this straight. You (1) are mentally ill, (2) are a methamphetamine addict, and (3) deliberately and repeatedly place your two-year old child on the trolley tracks in order to make the trolley come to an emergency stop. And you're complaning that we're taking your kids away from you?!

Oh yeah. You're definitely going to win. For sure. Totally. Especially down here in San Diego.

Affirmed.

People v. Scott (Cal. Ct. App. - Nov. 27, 2007)

There may -- perhaps -- be good test cases in which you might argue that a state prohibition against incest violates the Due Process Clause. Take, for example, a hypothetical 54-year old man who sleeps with his infertile 56-year old sister, whom he has never seen until two years ago (since they were both adopted at birth), after a lengthy relationship that first began when neither knew that the two were related. That's a good case. I can see at least an argument there.

But a drunk father climbing into bed with his just-turned-18-year-old daughter who puts his finger inside her and then has sex with her as she's "quietly crying and scared" of him? That ain't gonna fly. I don't care how a legal theory might be articulated in a good test case. You ain't it. So you're going to lose.

As indeed you do. As Justice King affirms both your conviction and sentence of six years in the pokey.

City of Los Angeles v. WCAB (Cal. Ct. App. - Nov. 27, 2007)

This is a (somewhat) fact-specific opinion. So ordinarily I wouldn't mention it. Even though it does concern a somewhat important issue for the working public (including attorneys). Namely: What happens when you get killed (or injured) when you're getting some off-the-job training (e.g., MCLE, etc.)? Are you eligible for, say, worker's compensation benefits? How related does the "training" have to really be to your employment?

For example, here, the decedent was an accountant with the City of LA and was attending MCLE-like stuff for CPAs when he slipped, fell, and died. Worker's comp, or not?

The WCAB held, in a split decision, that his training was work-related, and hence that plaintiff was entitled to benefits. But the Court of Appeal unanimously reverses.

I wonder, however, if the result in the Court of Appeal might have been different with a single change in the facts. A fact that is totally legally irrelevant, but which nonetheless -- in my view -- may have provided color to the underlying dispute and pushed the panel to decide that the training wasn't work-related. That single irrelevant fact being the location of the "training" conference:

Atlantic City, New Jersey.

Oh, yeah. I'm sure that was totally business-related. 100%. No way to get that training any place closer than Los Angeles, I'm sure.

Engle v. Copenbarger & Copenbarger (Cal. Ct. App. - Nov. 26, 2007)

Two points. One on style, and one on the merits.

First, even before I looked at either the rendering court or author, I totally knew who penned this opinion. Which begins as follows:

"Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception."

Yes, him. Who else is going to start out the opinion so (seemingly) randomly? Or with such flourish. Plus the reference to Reefer Madness. Nice. (Though I gotta say that a person more, uh, "knowledgeable" about the subject matter might know that the actual -- i.e., original -- title of that movie by Louis Gasnier is "Tell Your Children". But I can see why a California jurist might admit only familiarity with the reissued title. At best. And might proclaim utter lack of knowledge whatsoever about the subject area. Notwithstanding being at, say, Boalt during the late 60s and early 70s.)

Mind you, to me, this introduction seemed a tiny bit forced. I've liked other flourishes a lot more. But, hey, you ain't gonna hit every time.

That said, the actual opinion (apart from the introduction) was incredibly tight. And I very much liked that style. There aren't many appellate opinions that I think can do a totally persuasive job in six double-spaced pages. At least without sounding superficial and somewhat lacking. This one, however, is the exception. So as to the style articulated in the section on the merits, I'm on board.

As for the substance itself, quite frankly, I think that the author gets it totally right. Almost. The opinion holds that when a Section 998 offer is (essentially) silent on costs and fees, you can still get 'em if you're the prevailing party on the offer. Yep. Totally true.

Which is why you gotta take the time out to write these things carefully. And, FYI, an incredibly broad "release" provision, without reference to costs or fees, isn't going to cut it. If you want to exclude costs and fees, you gotta say so expressly in the offer. Which, by the way, is not hard. And if you're not experienced or knowledgeable in this area; well, I hope you've paid your malpractice premiums. Your bad.

So I pretty much agree -- 100% -- with every single word in the opinion. Except for the last page or so. The Court of Appeal gets it right, in my view, that there's probably an entitlement to costs given the silence of the CCP offer on the point. Since, under CCP 1032(b), you're entitled to costs as a matter of right when you're the prevailing party. Which, after the acceptance of the offer, plaintiff was. (There's a contrary argument on this point, but I'll overlook it for now.)

But, as to fees, we're not talking about an entitlement under CCP 1032. The only basis for an award there is (in this sex discrimination and harassment case) Government Code 12965(b). Which makes an award of fees not an entitlement of the prevailing party, but rather something that the court "in its discretion, may award to the prevailing party." The Court of Appeal expressly holds in the last page of the opinion that plaintiff is entitled to fees since she clearly "prevailed" on these causes of action through acceptance of the $35,000 offer. The latter is true, but the former isn't. Yes, she prevailed. But even totally prevailing parties are not entitled to fees; even for discrimination/harassment that's proven at trial, much less for causes of action that are settled. It's still subject to the court's discretion under 12965(b). You can get $1 at trial and be denied fees. You can get $1,000,000 and trial and still be denied fees. There's lots of (deliberate) discretion there. And so for the Court of Appeal to conclude by holding that "[s]ince Engle accepted a section 998 offer to compromise that was silent on costs and fees, and she prevailed on statutory causes of action for which fees may be recovered, she was entitled to costs and fees" (emphasis added), and to state that it was (as a matter of law) an abuse of discretion to deny fees, is wrong.

As well as bad law. Courts can -- and should -- have discretion to deny a fee award even to prevailing parties. So, for example, a plaintiff who has unclean hands might be denied fees. Or a plaintiff who was awarded only nominal damages for unextraordinary conduct. Or -- perhaps as here -- a plaintiff who obtained only a "cost of defense" settlement (e.g., $35,000) which, entirely by accident, omitted a reference to costs and fees. The trial court might well conclude that this was, in actuality, a meritless case, and that the settlement was purely one of extortion or the like. If that was the Court's conclusion -- and I'm not saying (at all) that it was -- I have no doubt that the court should have discretion to deny fees. But under the holding of the last page of this opinion, the court would be obliged to award fees upon acceptance of a 998 offer in such settings. Which I am pretty heartily convinced both misapplies the relevant statutes as well as makes for a darn bad result as a matter of policy.

So I'd take out that part. As well as the last sentence, which instructs the trial court to award fees on remand. I think the trial court should have the discretion to decide, on the facts, whether a fee award is appropriate in this setting. I agree that it can't deny fees on the basis relied upon below; namely, that the offer excluded fees or the like. But it still gets to exercise discretion.

So that's my beef for the evening. Smart opinion. Interesting. And only the tiniest bit -- albeit an important part -- wrong. IMHO.

Howard v. Thane Int'l (9th Cir. - Nov. 26, 2007)

The Ninth Circuit, California appellate courts, and I are all back today after a long -- and well-deserved -- break. And a nice way to return is to read an opinion that is interesting, well-written, and seems right.

Like this one.

I think that Judge Wardlaw does a very good job here. It's the rare sitaution, in my view, when you're going to find a material misstatement in a public stock prospectus. It's even rarer when you're going to hold that there's liability notwithstanding the fact that those material statements are entirely accurate. And it borders on the inconceivable that you're going to conclude that the district court's finding that these literally true statements are not actionable is clearly erroneous.

But all of these things come together in this one.

It's an opinion worth reading, and is pretty darn succinct as well. I'll keep you in suspense regarding the exact nature of the statements here, since I think it helps to read them in context. Suffice it to say that I agree with Judge Wardlaw that there should be liability here, and would have -- respectfully -- reversed the district court as well.

I also agreed with her, by the way, that the loss causation issue should have been remanded, rather than adjudicated on appeal as an alternative basis to affirm. I think that loss causation is a tough issue here, and one on which plaintiffs might perhaps lose. Or at least fail to recover big (as opposed to little) money.

But that's a different issue. As to core liability, I do believe that there was an actionable material misstatement. Mind you, I understand why these misstatements were made. My strong sense is that they weren't deliberately misleading, and were instead the result of (terrible) strategic errors. But that still creates liability. So I agree with Judge Wardlaw.

Nascimento v. Dummer (9th Cir. - Nov. 21, 2007)

Here's a very nice and tight opinion by Judge Gould. It's crisp. It's clean. It's succinct without being conclusory. It's an excellent piece of writing.

On the merits, the case is a reminder that the district court isn't divested of jurisdiction when a party files an appeal (or writ of mandamus) over a nonappealable order. Yes, actual appeals -- even unmeritorious ones -- divest the district court of jurisdiction. But, still, you can't, as Judge Gould so artfully puts it, "throw a monkey wrench into the machinery of our justice system" by making improper interlocutory appeals and then ignoring the district court's contemporaneous orders by arguing that it doesn't have jurisdiction.

Doesn't work. Exactly right. Great job.

People v. King (Cal. Ct. App. - Nov. 20, 2007)

This is amongst the plethora of reasons why it's so nice to read an opinion by Justice Bedsworth. Because he adds thoughts like these, which are technically irrelevant to the proper disposition of the case but that help the less sophisticated reader -- including yours truly, I must admit -- understand what's going on:

"The jury returned a verdict of guilty on all three crimes. The court subsequently sentenced King to terms of 25 years to life on the murder count; three years, to be served concurrently on the robbery count; and four years, to be served concurrently, on the burglary count. . . . King’s sole contention on appeal is that the court erred in imposing separate sentences for his convictions on the robbery and burglary counts, in addition to the sentence imposed for the murder conviction.

At first blush, this asserted error might appear to be a mere technicality under the circumstances of this case, since the robbery and burglary sentences King challenges are shorter than, and run concurrently with, the sentence imposed for his murder conviction – a conviction and sentence which he does not separately challenge. Thus, he will serve the same amount of time in prison on these charges whether or not he
prevails here.

However, there are real consequences stemming from the separate sentences. Penal Code section 667.5 requires the court to impose sentence enhancements for any future felonies King might commit, based upon the number of 'prior separate prison terms' he has served for past felonies. . . . Consequently, if King technically 'serves' the three distinct sentences imposed in this case, they would each mandate a separate sentencing enhancement in the event he is convicted of another felony in the future. It is therefore important to ensure the multiple sentences were properly imposed."

Which, apparently, they weren't. And the consequences of which I readily admit I didn't understand before reading Justice Bedsworth's helpful comments.

Thanks for helping out!

Harrington-Wisely v. State of California (Cal. Ct. App. - Nov. 20, 2007)

I always thought that those "X-Ray Specs" you saw advertised on the back of comic books were fake. But as technology marches forward, apparently not so much anymore.

Admittedly, you probably can't wear a Secure 1000 on your head. But listen to what this machine can do. And, according to Justice Perluss, what it did do to anyone who wanted to visit inmates at various California prisons between 1999 and 2001:

"The Secure 1000 discharged low-level backscatter X-rays that penetrated a few centimeters into a person’s skin, producing a spectral-like computer image of the body, including an outline of breasts, genitalia and folds of skin. If an image showed a gray or darkened area that could not be conclusively identified, visitors were required to undergo an unclothed visual inspection. Darkened areas were found to include feminine hygiene products, breast implants, brassiere underwire and diapers."

I mean, sure, if I enter a prison, and am carrying a package, you can x-ray my package. But x-raying -- and looking at the shape and size -- of my package?! Crikey!

Though, on the upside, I guess this is a potential solution to the age-old -- and seemingly impossible -- problem of preserving critical historical legacies. Though, to be honest, I'd rather have Cythia Albritton perform this task than the State of California.

But barely.

Gardner v. MEGA Life & Health Ins. Co. (9th Cir. - Nov. 19, 2007)

Yep. Seems like the defendants here did indeed have an objectively reasonable -- albeit erroneous -- basis for removal. So shouldn't have been slammed for costs and fees by the district court.

A nice, short, and persuasive opinion by Judge Rawlinson.

Sprint Assets PCS v. City of Palos Verdes (9th Cir. - Nov. 16, 12007)

Ninth Circuit (on May 8th): "Hey, this is a tough state law issue. Help us out on it, California Supreme Court. Here's our question for you: . . . ."

California Supreme Court (on August 7th): "Ugh. Do you really have to bother us? Didn't you guys answer that question for yourself -- in another case involving a different panel -- back in March and June?"

Ninth Circuit (today): "Uh, no. That was a federal law case. This is a state law issue. That's a pretty simple distinction. Get it? Now, seriously: Please answer our question."

We'll see how this scintillating dialogue continues over the next year or so.

In Re Bell (Cal. Supreme Ct. - Nov. 15, 2007)

Want to see how you can spend nearly thirty years in state habeas proceedings in a death penalty case? With another decade or so to go before your federal habeas round gets resolved and you're actually at risk of being executed.

Here you go.

I'm not saying that there might not be meritorious claims here. But I don't think I recall the state rounds of habeas ever taking nearly this long in a case in which they were uniformly unsuccessful on the merits. Sure, sometimes a decade or two goes by, what with reversals, retrials, and the like. But the state habeas round for a 1978 murder taking until 2007 (and, in reality, 2008 at this point)? Wow.

I don't know how old the defendant, Ronald Lee Bell, was at the time of the offense. I do know, from the opinion, that even before the present 1978 murder for which he was sentenced to death, he had allegedly killed someone else -- and had been sentenced to manslaughter for that offense -- 10 years earlier. So I assume he was no spring chicken upon his present conviction. And so, both for that reason and because of the massive delay engendered by the state habeas round, the chances of him actually being executed (rather than simply dying in prison) are pretty darn low.

Amazing. I never recall seeing a state habeas round take this long.

Scheehle v. Justices of the Supreme Court of Arizona (9th Cir. - Nov. 15, 2007)

This is a very good opinion by Judge Callahan. Well-written. Well-argued. Tight. Persuasive. Complete.

It also concerns an interesting subject. Or at least something near and dear to our own hearts. The question is whether it's a "taking" for the Maricopa (Arizona) Superior Court to require all experienced attorneys who reside in the county to serve as (essentially) volunteer arbitrators once or twice a year. Which in turn is a constitutional law perspective on an ethical issue that we often talk about in professional responsibility classes: whether aspirational, or mandatory, pro bono obligations for attorneys are legitimate.

On the constitutional law side, my own view is that Judge Callahan is clearly right, and that this doesn't involve a compensable taking. And, on the ethical side, my view tends to similarly be that it's legitimate for the state to require pro bono efforts by counsel. Whether such a requirement is wise, of course, may be a different issue. But on the ethical and constitutional side, at a minimum, I think that the obligees (lawyers) so massively benefit from the state-created, artificial monopoly granted to attorneys (e.g., through the UPL statutes) that they can't permissibly complain if one aspect of that state-created right is the obligation to provide a fraction of that benefit back in pro bono services. Especially when, as here, you join this profession with full knowledge of that requirement in advance.

Even those with a different view, however, might find Judge Callahan's opinion -- as well as the underlying dispute -- worth considering. It's a great issue. And one that hits close to home.

People v. McCoy (Cal. Ct. App. - Nov. 15, 2007)

Sometimes I don't especially relish my job. Or, more accurately, my self-assigned mission to read every single one of the opinions published by the California Court of Appeal, California Supreme Court, Ninth Circuit, and U.S. Supreme Court. Because, to be honest, some of these opinions -- mostly, if truth be told, in the first category -- seem of incredibly minor importance. Sure, they are important in the aggregate. Sure, they resolve important issues of law. Sure, they may even be well-written, cogently argued, and reveal a wide variety of things about which I knew nothing before.

Still. Some days you're busy. And, like today, perhaps a little sleepy from that burrito you ate at lunch. You'd really just like to take a nap. But, instead, you read this opinion, published by Justice Turner this afternoon. Which, as its very first paragraph amply reveals, is exclusively about whether the particular criminal defendant here is required to pay the $15 state court construction penalty and the $10 state court surcharge. And -- to make matters worse -- the first paragraph ends with the following: "It bears emphasis we are only addressing a felony sentence imposed in Los Angeles County. As will be noted, in other counties, the result may be different." (emphasis in original).

Do I really gotta slog through this one? Can't I just pay the stinking $25 myself and skip over to the next case? *Sigh*

It gets worse, by the way, once you are actually reading the thing. Mind you, it's sort of an interesting issue once you're into it. Akin to the fascination you'd probably get in the fifth or sixth hour of watching paint dry. I mean, at some point, you're probably like: "Hey, I just noticed that the upper section of the fence differentially dries faster, probably due to the higher humidity at the bottom of the fence. Cool!!" Which is to say that once you're actually into any project, it can become somewhat interesting, on its own terms. Even though, from the outside, oh my God, what a nightmare.

And then, even inside the opinion, you run across paragraphs like these: "Two words of caution are in order. This case involves a felony sentence imposed in Los Angeles County. Section 76000, subdivision (e) makes clear that most counties allocate only $2 of the $7 penalty assessment on each fine to the section 76100 local courthouse construction fund. But other counties allocate different amounts to the local courthouse construction fund. (§ 76000, subd. (e).) Further, any county board of supervisors remains free to adopt a new resolution modifying the allocation to courthouse construction. If that happens, the amount deducted from the section 70372, subdivision (a) state court construction penalty will likewise change."

In other words, even though you've now invested the time to learn the answer to the $25 question here, that answer may well (1) not apply elsewhere, and (2) not apply in the future anyway. Awesome. I'm so glad I invested the time here.

Okay, I'll stop venting.

Often times, I say: "This is a must read opinion." Well, my friends: This ain't one of them. It's good. It's persuasive. It seems totally right to me. But, for recreational reading, it's a snoozer. Skip it. Move on. Or take a nap. You've got better things to do. Trust me.

California Pro-Life Council v. Randolf (9th Cir. - Nov. 15, 2007)

This isn't the most well-written opinion in the universe. Which is not to say anything about the substance. Just the writing part.

Lots of one- or two-sentence paragraphs. Similarly stilted one-paragraph support for various headings, subheadings, and sub-subheadings. The opinion gets better near the end. But the first two-thirds is a good example of how you can get so bogged down in "organization" that the end product is choppy, disjointed, and simply reads pretty poorly.

Which ain't to say I'm the best writer in the universe. Far from it. But even I know what not to do -- at least on occasion -- when I see it in others.

Like here.

People v. Hebert (Cal. Ct. App. - Nov. 13, 2007)

Justice Raye ultimately reverses the sentence in this case. So, at least for now, Joseph Hebert doesn't have to serve several years in the pokey.

There's nonetheless a definite lesson to be learned from the case for all would-be criminal defendants. One that, yet again, I've said before, but that bears repeating:

Don't represent yourself. Do. Not. Represent. Yourself. You weren't very good at your (alleged) crime. Why would you possibly think you'll do better navigating the procedural minutia of criminal procedure?

Sometimes, your mistakes will even be totally moronic. Like here. Hebert wants to get out of jail now because he either (1) is facing an eviction -- which is what he tells the trial court, and what Justice Raye accepts is the actual case, or -- something that's not mentioned at all in the opinion, but I nonetheless think is eminently plausible -- (2) wants to get high now, probably because he's jonesing (he's got a bigtime meth and coke problem). So he represents himself at the plea stage and wants to make a Cruz-like deal that will let him plea out now and be sentenced later in return for a big spanking at the sentencing stage if he doesn't show up.

Which the prosecutor and the court both seem okay with. So the Court says, summarizing the deal: "If I release you, following your entry of plea, I would require what is referred to as a Cruz waiver, and then goes on to say "In other words, I would let you out, if you agree that at sentencing, if you failed to show up, then you go to prison for sixteen months." Sixteen months being a pretty long time for this particular offense, but that's the whole point of the deal. And, again, everyone's happy with that.

So a smart, and represented, defendant would simply say: "Yes. I agree. Sixteen months if I don't show up." Because, remember, everyone's on board for that. So just take the deal.

But how does the pro per Hebert respond instead? He says: "Absolutely, Your Honor. I would -- I was going to say the high term. I would be willing to take the high term." Which then prompts the court to say: "All right. We’ll call it three years if you’re willing to accept the high term." At which Hebert says: "Okay. Absolutely, Your Honor."

In other words, Hebert was offered a sentence of sixteen months, and promptly proposed instead to take a sentence of more than double that. Wise? I think not.

Because -- shockingly -- the meth- and coke-addled Hebert ultimately does not, in fact, show up for his sentencing. So your glorious "negotiating" -- and be sure to note the quotation marks -- ends up buying you double-plus time in the slammer. Which ain't fun. Because, sure, there's meth and coke there as well. But not nearly as much. Plus, it costs more. And its "cost" ain't exclusively limited to money.

Ultimately, Hebert avoids the three years 'cause Justice Raye finds (and rightly so) that this isn't actually a proper Cruz waiver situation. Still. Learn the lesson. Don't risk the same -- or much worse -- fate.

Don't represent yourself.

Calderon v. IBEW Local 47 (9th Cir. - Nov. 13, 2007)

I keep telling everyone -- not that it needs repeating -- that the Ninth Circuit thinks that Judge Real (in the Central District) is inept/lazy/incompetent. And worthy of, at a minimum, repeated dissing.

Yet more evidence of that fact here. In which the Ninth Circuit again goes out of its way to slam -- and, in this case, expressly admonish -- Judge Real in the final paragraph of the opinion:

"The district judge’s unseemly haste in dismissing this case, and his failure to heed the perfectly plausible (and meritorious) explanation proffered by plaintiff in his motion for reconsideration, has cost the parties significant money and delay in pursuing this wholly unnecessary appeal. Justice suffers when judges act in such an arbitrary fashion. We apologize to the parties and admonish the district judge to exercise more care and patience in the future."

Like Judge Real is really going to listen.

State of Alaska v. EEOC (9th Cir. - Nov. 8, 2007)

Judge Wallace begins his concurrence by stating that Judge Paez's dissent "reads like a law review outline of relevant law." Which might perhaps sound like a compliment to some ears. But definitely isn't.

Regardless, this is an important -- albeit obscure and limited -- case, and revolves around whether the 11th Amendment bars EEOC actions against a state that allegedly discriminated against high-level state officials. The majority decides that it does, which essentially invalidates as unconstitutional a provision of the Goverment Employees Rights Act enacted in 1991.

Don't be surprised -- at all -- if this one's taken en banc. And reversed.

Further, although certiorari in any case is a longshot, I wouldn't at all be surprised to see this go to the Supremes. In which, by the way, I think you'd be looking at a 5-4.

That's my crystal ball for the day.

In Re B.D. (Cal. Ct. App. - Nov. 7, 2007)

Vicious cycle:

"B.D. [the child the court's taking away from the mother] was born on May 17, 2004, to mother, G., herself a dependent child at the time. On May 19, 2004, the Department of Health and Human Services (DHHS) filed a section 300 petition alleging mother had emotional problems which had resulted in her hospitalization. The detention report indicated mother had had several 'psychiatric hospitalizations in 2002 for suicidal ideation, depression, self-mutilation, hearing voices, and hallucinations. Furthermore, the minor mother fails to follow through with taking psychotropic medications. Additionally, the minor mother expresses anger by breaking windows, throwing food and plates against the wall, and assaulting the maternal grandparents.' Part of mother’s history included an arrest for battery against a school employee in 2002. Mother’s father informed the social worker that mother was abusive towards himself and his wife, she destroyed things and 'curses people out.' Neither parent wanted mother to return to their home. Mother had a history of hitting other people, including her father and a teacher."

Sad.

In Re Montgomery (Cal. Ct. App. - Nov. 7, 2007)

Once you've read enough of these -- and there's quite a few -- my sense is that one of two things must be going on:

(1) The various governors of California don't want to risk a potential political hit for granting parole to pretty much anyone convicted of any degree of murder, so they just overturn every recommendation of parole by the Board as a matter of course, even when they know that this decision will almost surely be reversed by the Court of Appeal. They don't care; that way, the courts take on the potential political hit, not the Governor's Office. So there's cover if the offender reoffends, someone responds negatively, etc.

(2) Alternately, these decisions might be explained were the people writing the parole decisions for the Governor's Office in these cases to be less than perfectly competent. Because it doesn't take a brain surgeon -- or even a very good lawyer, quite frankly -- to figure out that the denial of parole in cases like these is going to be reversed. Unless, that is, you draw one of the totally hard core panels, and they do all the work for you. Which, I guess, is perhaps the hope.

Regardless, you see a lot of these types of cases within the last several years. Especially as the Court of Appeal has caught on to the game.

And I'm sure you'll see more.

People v. Cogswell (Cal. Ct. App. - Oct. 31, 2007)

It's rare that I'm surprised at a result. Typically, you can tell where the case is headed after a paragraph or two. And certainly after three or four pages. Sure, the Court of Appeal may not have actually said anything of substance yet. But, usually, merely by reference to how they've framed the case, you can tell which way it's coming out.

But not here.

Indeed, I was sufficiently surprised at the outcome that I wonder whether the draft opinion before oral argument had the case coming out the other way. 'Cause Justice Benke's opinion definitely reads as if she's zigging. Even though she ends up zagging.

Interesting stuff. Read it and see what you think.

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

Sad when you dissent from a case, call for en banc, lose the vote, and can only get one of your 26 colleagues to agree with your dissent from the denial.

Truong v. Nguyen (Cal. Ct. App. - Nov. 5, 2007)

Die on a jet ski? Tough luck. Doesn't matter if you're a driver, passenger, or whatever. Doesn't matter how negligent the defendant was. Primary assumption of the risk means you get nothing.

Those things go pretty darn fast. Remember the legal backdrop next time you climb on board.

Perfumebay.com Inc. v. Ebay, Inc. (9th Cir. - Nov. 5, 2007)

A trademark case. That pits a company with the "perfumebay.com" site against a company with the "ebay.com" site.

The winner? The one you'd totally expect.

Hint: One of those web sites ain't gonna be around for much longer.

Hanna v. Keisler (9th Cir. - Nov. 5, 2007)

Most of this opinion is fact-specific, and relates solely to the particular allegations made by this particular petitioner. I nonetheless mention it, briefly, for two (admittedly idiosyncratic) reasons. First, it relates to the plight of Chaldean Catholics in Iraq, a minority group about which I knew very little five years ago but now know a fair piece. Second, it's a successful immigration appeal by two USD Law alums, Douglas Nelson and Alejandro Campillo. Always nice to see local folk prevail.

Kashmiri v. Regents of UC (Cal. Ct. App. - Nov. 2, 2007)

Go to a UC law (or other graduate) school during 2003 or 2004? UCLA Law, let's say? Davis? Boalt?

You've got $ coming!

Skaff v. Meridian North America Beverly Hills (9th Cir. - Nov. 1, 2007)

Sometimes even a single line in the middle of a lengthy opinion can stand out and strike me as obviously -- and dangerously -- wrong.

Like here.

The per curiam opinion (joined only by Judges Ferris and Gould) says a lot of things I agree with. And many of the sentiments that it articulates make sense.

But, on page 14345, after a lengthy review of the principle of de minimus non curat lex ("the law cares not for trifles"), the panel concludes that a mere trifle -- e.g., here, an hour-long delay for diability accomodations -- "is too trifling of an injury to support constitutional standing."

Wrong. Clearly wrong. At least in my view.

I agree that the law doesn't provide a remedy for trifles. And I might even agree that, in an appropriate case, an injury that was merely a trifle might not be sufficient for prudential standing.

But I stridently disagree that an alleged "trifle" is insufficient to support constitutional standing. If Congress wants to make a 1-hour delay cognizable, it can clearly do so under Article III. Even if individual members of the judiciary may perhaps view such a delay as minimal. This is true for a plethora of different reasons, none of which require full explication. Just trust me on this one instead. De minimus non curat lex isn't an Article III principle. It's a doctrine about common law remedies. It doesn't divest a court of constitutional standing. (Judge Duffy, sitting by designation, makes a similar mistake in his dissent, but it's both less obvious and less relevant to his basic point.)

So please, please, please, Judges Ferris and Gould. I know the opinion doesn't have your name expressly on it. But please take that one word out. It'll be an infinitely better opinion as a result.

Medley v. Runnels (9th Cir. - Nov. 1, 2007)

Judge Ikuta stakes out some ground today. By being on the bottom side of a 14-1 en banc decision. In which she wants to show everyone that she's more conservative -- at least in habeas cases -- than the rest of the en banc court. Which says a lot. Especially since this particular panel includes, among others, Judges Clifton, Callahan, Bybee, etc.

For what it's worth, I don't think that Judge Ikuta comes off very good in this one. Her arguments seem fairly weak, and especially in places, a fair piece of a results-oriented stretch to find as many procedural obstacles to relief as possible.

Admittedly, Judge Ikuta does a decent job at the end of her dissent of making her position seem somewhat moderate, stating that "[a]ll this is not to say that the majority’s view is unreasonable." But you sort of have to say that when you're on the wrong side of a 14-1, right? So while that concession is right, and reasonable, I still don't think this is the best opinion -- or even dissent -- she's written. Though if the point is merely to point out to conservatives how right-leaning you are ("Elevate me, baby!"), writing this dissent -- a year into your tenure, no less -- is a pretty good way to do it.

People v. Recio (Cal. Ct. App. - Oct. 31, 2007)

The California Supreme Court should grant review in this one.

Not because it's a critical issue. Though it happens more times than you might imagine. The question is what happens when a jury improperly convicts a defendant (because it's not told not to) of both theft as well as of receiving stolen property. Which conviction should be reversed? Whichever offense is the lesser offense? Or the receiving offense, since the theft offense is necessarily preclusive.

Division Three of the Fourth District, in this opinion by Justice Ikola, holds that the latter is the proper remedy. But Division One of the Fourth District went the other way, in an opinion by Justice Huffman (over the dissent of Justice McDonald), less than a month ago.

Sometimes intradistrict splits are okay. But not here. The California Supremes should take both cases up.

Principal Life Ins. Co. v. Peterson (Cal. Ct. App. - Oct. 31, 2007)

We know that Scott Peterson shouldn't be entitled to the proceeds of the $250,000 life insurance policy held by his wife. Whom he killed. So the result in this case is hardly surprising.

What's interesting, however, is how much work it takes to get there. Especially given the -- somewhat questionable, in my view -- strategic choices made by the parties below.

To begin with, there was the decision made by counsel for the Estate of Laci Peterson to move for summary judgment on the fact that Peterson killed his wife based solely on the record of his criminal conviction. But, as Justice Ardaiz rightly explains, since that verdict's on appeal -- an appeal will take quite a while, I might add -- it's not a "final judgment" entitled to res judicata. And whether, for the same reason, it's even admissible evidence in the first place is a close question, though Justice Ardaiz ultimately holds that it is. Regardless, since there's ample evidence submitted by the prosecution in the criminal trial just waiting to be introduced, why not slap some or all of that stuff in as well? Seems pretty easy. And avoids the very real risk that the fact of the still-on-appeal criminal conviction won't be good enough to obtain summary judgment.

Then there was the decision by Matthew Geragos, who's representing Scott Peterson, to resist summary judgment solely through a declaration that says that the criminal conviction is on appeal. Sure, Scott didn't testify at trial, so there's perhaps reason for him to remain silent. Though a simple "I didn't do it" declaration would be enough to survive summary judgment, and then potentially seek a stay of the civil action during the pendency of the criminal appeal (or submit other evidence already admitted at trial to create a genuine issue of material fact, which ain't tough). It just seems fairly lame to resist summary judgment, and to spend money on an appeal as well, with such minimal support, especially when all the evidence at trial is just sitting there waiting to be produced -- and create a genuine issue of material fact.

No one's crying about the result, obviously. Still. I think the attorneys in this one could have done a bit better.

U.S. v. Preciado (9th Cir. - Oct. 31, 2007)

Clearly correct.

Don't bring your kids along when you smuggle drugs across the border. Or you'll get a little extra prison time. And rightly so.

Med-Trans Corp. v. City of California City (Cal. Ct. App. - Oct. 30, 2007)

It's always neat to see an opinion about a California attorney, especially when it contains a lengthy recitation of the facts.

Here's one about attorney Thomas Anton, up in Bakersfield. Who got disqualified from a case in Kern County and persuaded the Fifth District to reverse.

A good day for the Bakersfield plaintiff's bar.

P.S. - Get that web site fully up, Tom.

People v. Stevens (Cal. Ct. App. - Oct. 29, 2007)

I was in DC on Monday, so missed this opinion when it first came out. But it's not one that should be overlooked. There's a great debate between Justice Reardon (who writes the majority opinion) and Justice Ruvolo (who authors the dissent) about whether, in a jury trial, having a uniformed, armed deputy sheriff sitting immediately beside the defendant during his testimony -- and no one else's -- is impermissible. It's obviously okay when there's a history of violence or the like, but is it okay when, as here, there's nothing out of the ordinary that would justify such a practice.

I'll leave you in suspense as to which side wins out, as I want you to read the respective opinions. One of them, I think, is fairly superficial. The other one -- the one I agree with, not surprisingly -- seems far more cogent and persuasive.

See what you think.

People v. Cole (Cal. Ct. App. - Oct. 26, 2007)

It's been a very slow week for the Ninth Circuit. Only four published opinions during that entire period. But, thankfully, the California Court of Appeal has been picking up the slack.

Including this 96-page missive by Justice Haller. Which, thankfully, is largely unpublished, since the vast majority of it concerns totally case-specific recitations. No reason to kill massive numbers of trees, I figure.

Indeed, besides its sheer (and unusual) length, the only reason to mention the opinion is because it's a case from San Diego and involves a white collar defendant named Kevin Cole. A name that, I can assure you, down here belongs exclusively to notorious felons.

U.S. v. Banks (9th Cir. - Oct. 25, 2007)

Wait a minute. I'm confused.

A's girlfriend calls B a "crab". Which -- and I am not at all embarassed to admit that I did not know this until now -- is apparently an incredibly mean thing to call a Crip. At which point B, who has overheard the insult, tells A to -- and pardon my language on this one -- "check your bitch" (i.e., "control your woman").

At which point A responds -- and I think this is an entirely reasonable reply, by the way -- that "my baby's mama ain't no bitch." B then challenges A to fight. Chivalry, apparently, not being nearly as dead as might occasionally be reported. But A refuses.

All that I'm clear on. But tell me this: When B thereafter repeatedly attempts to murder A, you mean that's still a crime?! I mean, come on!!

But I guess you learn something new every day. As did B, who was sentenced to 37.5 years in federal prison. And didn't even get the joy of actually killing A.

Amazing. As an esteemed legal scholar once said: "'Attempted murder'. Now, honestly, what is that? Do they give a Nobel Prize for attempted chemistry? Do they?"

Well put.

People v. Thomas (Cal. Ct. App. - Oct. 22, 2007)

Imagine that you (or a loved one) were being tried for a criminal offense, and you thought that you (or your loved one) were legally insane at the at time of the crime. You might not always have been insane; after all, even the most nutty of people tend to have periods of lucidity. But you thought that, at the relevant time, the perpetrator of the charged offense was incapable of telling right from wrong, and hence was legally insane.

Not imagine further that the trial court gave the jury the following jury instruction, which comes from CALCRIM No. 3450: "If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime." How would you feel about that? An accurate instruction? Don't forget, by the way, that the defendant has the burden of proving insanity. Doesn't this instruction tell the jury that as long as the defendant was ever legally sane, they gotta find him guilty; e.g., that they "must assume that he was legally sane when he committed the crime"?

Justice Hull concludes that the instruction is potentially misleading, but nonetheless doesn't require reversal because no reasonable juror would be misled by it. I agree with the former conclusion. In spades.

People v. Hertzig (Cal. Ct. App. - Oct. 24, 2007)

Rarely do you see the Court of Appeal describe an impressive performance at trial by a criminal defendant who elected to represent himself. That's because pro per litigants are usually terrible. Awful. Horrible. Couldn't be worse.

But Justice Raye says many nice things about the defendant's performance in this opinion. Mind you, he doesn't say glowing things about the defendant himself, who displayed "a disturbing pattern of [] sexual exploitation of young girls" and who was convicted of molesting his 6-year old daughter, having sex with (and impregnating) his 15-year old sister, and possessing child pornography. But even profoundly disturbed individuals are -- apparently -- capable of being good attorneys. And Justice Raye describes defendant's performance at trial thusly:

"[T]he record of the ensuing proceedings attests to his effectiveness. His cross-examination of witnesses was appropriately gentle when confronting his young daughter and appropriately searing when confronting his ex-wife, who he asserted was the mastermind behind the false charges. His argument was cogent. He highlighted the weaknesses in the prosecution’s case, challenged the veracity of the prosecution’s witnesses, and offered a viable alternative to the prosecution’s theory. Even before trial began and he had the opportunity to demonstrate his legal prowess, the court had absolutely no reason to doubt his ability to defend himself. In sum, the court was presented with a bright, articulate, and competent defendant . . . ."

That's not a description you see every day. Admittedly, Justice Raye is saying all that not to be nice, but rather to justify the refusal to vacate defendant's convictions. So maybe one should somewhat take all those nice words with a grain of salt.

Regardless, I don't care how good you are: Don't represent yourself. Just don't do it. Even that public defender whom you hate will do a much, much better job than you will. Even if, as here, you aren't terrible. Trust me.

People v. Lake (Cal. Ct. App. - Sept. 13, 2007)

This one wouldn't have received nearly as much attention had it been published prior to the Larry Craig scandal. But if you're desperate to know what happens when you get caught with your zipper down in a public restroom in California and are charged with disorderly conduct -- and who isn't? -- check it out.

Ventura County Public Health Officer v. Adalberto M. (Cal. Ct. App. - Oct. 22, 2007)

Depressing. On multiple levels:

"In early August 2006, Adalberto M., a 37-year old homeless man with a history of heroin and methamphetamine use, was admitted to the Ventura County Medical Center (VCMC) after testing positive for tuberculosis (TB). TB is a highly contagious and potentially fatal disease. The next day, the director of Ventura County's tuberculosis program, Dr. Kurt Cook, issued an Order of Isolation directing appellant to stay in a motel room the county provided for him while he completed taking a course of medication. Appellant agreed to, and signed, the isolation order. Public health staff took him to a motel and stocked the room with food, drinks, a refrigerator and a microwave oven. Appellant stayed there for about six days at the county's expense. Then, he checked out, forsaking his free room, board, and medicine. He did so to purchase illegal drugs."