In Re Antonio B (Cal. Ct. App. - Aug. 28, 2008)

You're walking down the street with your buddy. He's smoking a doobie. There's just the two of you.

Three police officers come up to you guys and arrest your buddy. You don't try to fight, flee, or anything else, and haven't done anything wrong. Can they put you in cuffs?

No. Not in America, anyway.

The depressing thing about the opinion, however, is that it takes nine pages to explain why not.

Richards v. Richards (9th Cir. - Aug. 28, 2008)

Don't hire your lover to kill your spouse. Otherwise you'll get . . . pretty much away with it, but only $50,000 of his million dollar life insurance policy.

Well, I guess not getting the whole million is some disincentive, anyway.

Barba v. Perez (Cal. Ct. App. - Aug. 28, 2008)

As a person keenly interested in litigiation strategy, I very much enjoy it when the Court of Appeal not only issues opinions that generate opportunities for tactical behavior, but also goes ahead and gives tactical pointers. And when, on those rare occasions, there's a conflict between the justices, and each gives his or her own insight into the tactical move and countermoves that are generated by the court's holding, it's pure gold, IMHO.

Gold like this.

Justice Butz writes the majority opinion, and holds that a Section 998 offer tendered (as here) simultaneously with service of process may well generate cost-shifting. Justice Sims -- who, by the way, authors a sincerely respectful dissent -- not only disagrees on the merits, but says that such early offers may give rise to strategic abuse, since defendants at that stage of the litigation aren't typically able to conduct discovery and/or accurately assess the plaintiff's damages. Plus, Justice Sims argues, "[i]magine . . . the litigation frenzy that will be produced if defense counsel must also take the plaintiff’s deposition and obtain medical specials during this 30-day period. Not to mention the retention of experts and obtaining opinions from them. Why on earth do we want to do this?"

But Justice Butz responds that early settlement is precisely the goal of Section 998, and if that coincides with early discovery, so much the better. Justice Butz also gives tactical counsel to a defendant facing an early offer, counsel that's especially good advice as it comes from the Court of Appeal: "Even assuming a situation (unlike the one presented here) where a defendant has no information about the plaintiff’s damages when served with an early section 998 offer, defense counsel may request that plaintiff provide informal discovery on the damage issue and/or allow an extension of time to respond to the demand. If plaintiff’s counsel refused to accord the defendant these courtesies and unyieldingly insisted that defendant respond without information, such conduct could then be presented to the trial court when it considered whether to award special fees and costs. Undoubtedly, such obstinacy would be viewed as potent evidence that plaintiff’s offer was neither reasonable nor made in good faith." Thanks for the pointer! We'll definitely make such requests at this point, right? No reason not to.

But Justice Sims responds with a quasi-tactical point of his own, though I'm sure he's not really suggesting the resulting strategy as opposed to just identifying a problem with the solution that Justice Butz advances: "With respect, I do not think a defendant should be obligated to evaluate a $99,000 offer based on damages information supplied informally (not under oath) by a plaintiff or his attorney. Although plaintiffs’ attorneys are officers of the court, on rare occasions such attorneys have been known to inflate their client’s damages in demand letters written prior to discovery. In my view, a 998 offer approaching $100,000 can be reasonably evaluated only after basic discovery procedures (requiring responses under oath) have been used."

Darn good point. Which leaves me with only one question: Raise your hand if you think that Justice Sims was being deliberately sarcastic when he said that on "rare" occasions plaintiffs have been known to exaggerate their damages in pre-litigation communications. Awesome.

Anyway, a very interesting case. Both doctrinally as well as strategically. Know it. Use it. Be it.

Chimenti v. Weisz (Cal. Ct. App. - Aug. 27, 2008)

How do you think you'd feel if, upon your death, this is the way you were remembered in the everlasting pages of the California Reporter:

"At the time he executed his will, Joseph Clementi was living in Philadelphia, Pennsylvania. Richard E. Weisz was Clementi’s accountant, and apparently his only friend."

Sad, huh?

By contrast, you'd be a lot happier if you were the accountant. Who receives a six-figure bequest in the will and also becomes the trustee of a multimillion dollar charity upon Clementi's death.

Sweet.

People v. Bolton (Cal. Ct. App. - Aug. 27, 2008)

Here's an interesting case. From down here in San Diego, even. Concerning a defendant with a cool name -- "Exodus Bolton" -- but who I'd just as soon not meet on the trolley, thank you very much.

For those ethics junkies out there, it's a must read. Ditto for criminal defense lawyers. Because it's a very interesting case that provides firm support for the proposition (1) that attorneys can (and perhaps even must) present testimony from their client that they're pretty sure is false (as here, IMHO) so long as they don't "know" it's perjurious, and (2) that putting the client up on the stand without direct examination, and letting him give his perjurious testimony narratively, is a pretty good solution to the problem.

Both propositions are controversial. See if you think that Justice Aaron is correct.

In Re Bardzik (Cal. Ct. App. - Aug. 26, 2008)

This afternoon brings us this modification of this original opinion by Justice Sills. Who, apparently, has been watching the Food Network a fair piece lately, and adds (inter alia) the following soup analogy as a means of comparing and contrasting various cases:

"Where the evidentiary facts in the case before us make up a thin consommé indeed, in Mosley they were, as in Hinman VIII and La Bass & Munsee, thick as lentil stew."

I mentioned when the original opinion came out that I thought that the breezy opinion by Justice Sills worked pretty well, at least for me. This just adds to it.

Admittedly, that's coming from a person (me) who knows as little about lentil stew as he does about Regis Philbin. So feel free to take my thoughts (and your consommé) with a grain of salt.

Zhao v. Mukasey (9th Cir. - Aug. 26, 2008)

Some cases are fairly simple.

You're a married couple from China. You are practitioners of Falun Gong. You've got a good (and credible) story of religious persecution by Chinese authorities. And you filed an affirmative asylum claim within a year of coming to the United States (i.e., the DHS didn't catch you).

Plus you've got Judge Reinhardt on the panel, and he writes the opinion.

In such a setting, you're going to be granted asylum.

Dzyuba v. Mukaasey (9th Cir. - Aug. 25, 2008)

Let me offer some additional help -- beyond that provided by the Ninth Circuit earlier today -- to the BIA on remand.

As recent events should have made crystal clear, the former republics of the USSR aren't all the same country. Georgia isn't Russia. Georgia isn't the Ukraine. Georgia is Georgia.

Now, here, Mr. Dzyuba was a native of Georgia, but went to the Ukraine before coming to the United States. Now that we're kicking him out, we admittedly have to figure out where to kick him out to: say, Georgia or the Ukraine. This is a big deal, and I'm not pretending the answer is at all clear, since his internal movement at the time was all within a (then-) single country.

All I'm saying is that it matters. At least for now. Once Russia invades everyone else, well, maybe that'll moot the whole thing. But go ahead and make the effort at this point.

Personally, if the guy wants to go back to Georgia rather than the Ukraine, I'd let him. No big deal.

U.S. v. Easterday (9th Cir. - Aug. 22, 2008)

Normally, when everyone on the panel agrees that the defendant's conviction is just and proper, you simply affirm. Here's one of the exceptions to that rule.

The difficulty here is that there's circuit precedent that everyone on the panel agrees is both on point and also would require a reversal of the conviction, but everyone also agrees that this precedent is wrongly decided. So what do you do?

Judge Schroeder writes the majority opinion and says that this precedent has been undercut by subsequent Supreme Court authority, and hence that the panel is entitled to ignore/overrule it. Judge Randy Smith, by contrast, dissents, arguing that because the subsequent authority is far from clear, the panel has no authority to overrule circuit precedent.

It's an interesting -- and enlightening -- battle about both the normative and descriptive power of Ninth Circuit precedent. You definitely get two competing views here, and these views are especially helpful because both sides make their arguments forthrightly, with no hiding the ball or hidden agendas. So it's a good case.

Plus, as an aside, both authors make sure to include their own aphorisms. Judge Schroeder begins her opinion by saying: "This case illustrates the enduring truth of Ben Franklin’s sage observation that 'nothing is certain but death and taxes.'" While Judge Smith begins his dissent by saying: "In this case, I find myself between 'the proverbial rock and a hard place.'"

Let the battle of epigrams begin!

McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)

You see plenty of death penalty cases that take a long period of time. So, sure, the murder that gave rise to the death penalty at issue here took place in the 70s. That's right: The 70s. That's a long time ago, even when you consider that the death sentence wasn't imposed until 1981. We are still talking about 27 years just for the case to reach the Ninth Circuit. Again: That's a long, long time.

But not so weird that you haven't seen something like it before. But here's the wrinkle: the defendant who was sentenced to death here -- and whose death sentence is at issue before the Ninth Circuit -- is currently walking the streets. And has been since 2003.

And, no, we're not talking about someone who was released on the ground that he was actually innocent. Rather, he was released because there were serious questions about whether he was competent to stand trial (!), combined with the fact that after the district court granted a habeas petition and contemporaneously gave the state six months to retry the defendant, the Great State of Arizona forgot to ask for a stay (!!).

I haven't seen many death penalty cases in which the defendant has actually been released from prison while the appeal's pending. And I gotta say that the prospect that we would just pick up a guy who has been out walking the streets for five years, doing nothing wrong, and promptly kill him just seems, well, weird. I mean, sure, I get it; if you're sentenced to death, you're sentenced to death. But isn't it still a little strange.

Anyway, for better or worse, that's not going to be a problem here. Since the panel unanimously decides that, yep, the district court was right that the conviction and sentence can't stand. With McMurtrey getting not only Judge Pregerson (who writes the opinion) and Judge Willie Fletcher to sign on, but also Judge Bybee. Which tends to suggest that a reversal either en banc or by the Supreme's probably isn't in the cards.

Still, not the type of death penalty case you see every day.

In Re Shaputis & In Re Lawrence (Cal. Supreme Ct. - Aug. 21, 2008)

As I've often discussed, there's been a lot going on in the California Court of Appeal in response to the nearly uniform decisions of the last several Governors (Davis & Terminator) to reverse the recommended grant of parole to anyone convicted of murder. (See, for example, my last post on the subject, from March.) Eventually, of course, that sort of stuff has to be sorted out by the California Supreme Court, and it granted review in two cases in no small part to do so.

But the result in these cases -- Shaputis and Lawrence -- issued today hardly definitively resolve the resulting issues. Indeed, the split in those cases only demonstrates how wildly up in the air these things are.

In Lawrence, the Court affirms the Court of Appeal's reversal of the Governator's denial of parole. It's a 4-3, with George, Kennard, Werdegar, and Moreno on top. But in Shaputis, the Court reverses the Court of Appeal's reversal of the Governator's denial of parole. It's a (4-3), with the same four on top, with the three dissenters in Lawrence (of course) concurring in the judgment, but disagreeing with the relevant standard -- the standard articulated in Lawrence. Justice Moreno, by the way, specially concurs in Lawrence to explain why he comes out. And to highlight his potential role as the Justice Kennedy of the California Supreme Court, at least on this subject. (Though that role is already played by Chief Justice George on a wide variety of subjects. But you can never have enough Justice Kennedys, right?)

This won't be the last word on the subject from the California Supremes. Trust me on that one. But for now, there you have it.

Koninkluke Phillips Electronics v. KXD Technology (9th Cir. - Aug. 20, 2008)

Bad things can happen to you when you manufacture and sell counterfeit goods. Even before trial. For example, a civil contempt order awarding almost $1.3 million in lost royalties, $353,000+ in attorney's fees, and another $10,000 per day until you file reports that the district court ordered but that you decided -- in your infinite wisdom not to file. Oh, yeah. Plus that $2 million bond.

And when you try to appeal, tough luck. Rightly dismissed as an unappealable interlocutory order.

People v. Meneses (Cal. Ct. App. - Aug. 19, 2008)

Ah, the exciting life of a capper.

Pelton-Shepherd Industries v. Delta Packaging Products (Cal. Ct. App. - Aug. 19, 2008)

Here's a wonderful review of what can go wrong in discovery. Especially if you leave it until right before trial. As well as a fairly comprehensive review of the relevant provisions and deadlines for motions to compel.

You'll also view some fairly strong language by Justice Robie regarding the conduct of Judge Saiers (in San Joaquin County) as well as counsel for the parties below. (Kenneth Ruttenberg, a Loyola Law graduate, and Richard Archbold, a Hastings graduate, represented one side, and Charles Hastings, a Humphrey's College of Law graduate, represented the other, on appeal.) Here's the first line about Judge Saiers: "We conclude the trial court [Justice Robie then mentions Judge Saiers by name in a footnote] botched its responsibilities under the Civil Discovery Act and prejudicially abused its discretion in granting Pelton-Shepherd’s motion to compel after the discovery motion cutoff date . . . ." Strong words. You don't see "botched" used much to describe trial courts, do you?

And here's the money quote from Part B of the opinion: "[T]he discovery in this case is a classic example of how not to conduct discovery (on the part of the lawyers) or to manage discovery (on the part of the court)." So pretty much everyone gets savaged.

P.S. - This is far from the first time that the Third Appellate District has savaged Judge Saiers, with whom the justices appear far from fond. Though, in truth, the feeling is probably mutual as well.

With some justification, as I'm sure the counsel involved would admitm at least on their best days. The only defense of what transpired here is probably that it wasn't an especially high-value case -- the real amount in controversy was barely above the jurisdictional minimum for an unlimited case -- and hence counsel may not have done their absolute best. Still, the errors that were made are pretty obvious ones; e.g., missing deadlines and not making the correct motions.

As Justice Robie makes fairly clear, it was not an impressive performance by anyone involved.

Oltman v. Holland America (9th Cir. - Aug. 19, 2008)

Want to see the Ninth Circuit go out of its way to be nice to a civil litigant in order to prevent inequity? Then check this out. Especially Section B and -- in particular -- footnote 4.

I happen to agree with Judge Clifton's resolution. But I'm also certain that not every judge would be similarly inclined to adopt such a favorable approach. Either on the merits (equitable tolling) or in deciding whether to find for appellants on this issue, as Judge Clifton does, notwithstanding the fact that they never really articulated this argument on appeal.

Still, I like it when judges are nice, and reach an equitable result. As happens here.

U.S. v. Jaeger (9th Cir. - Aug. 18, 2008)

I agree with Judge Graber in this one. It's one thing for a judge to threaten a witness and intimidate him or her into not testifying. It's quite another to do what Judge Molloy (up in Montana) does here. Which I took as trying -- honestly and sincerely -- to protect and look out for the best interests of the witness.

The former's both wrong as well as legal error. The latter's not only proper, but an entirely nice thing to do.

U.S. v. Park (9th Cir. - Aug. 11, 2008)

Hmmm. At first, Judge McKeown had me totally convinced she was right. But then I thought: "Wait a minute, I'm not so sure." And that's still where I am.

Let me first just totally agree with Judge McKeown on the central point. Or at least on the point as Justice McKeown articulates it. Defendants have some property along the Clearwater River in Idaho an easement of which allows them to engage in "livestock farming." So clearly they can raise chickens, which surely are livestock. But what about dogs? Which is a relevant question, since that's what defendants are now doing (and what the United States files suit to enjoin).


Judge McKeown frames the question as follows: "In this appeal, we are asked to determine the unusual question whether dogs are 'livestock.'" And while the district court said that they weren't, and hence granted summary judgment to the United States, Judge McKeown disagrees. She holds: "Despite a gut inclination that the answer might be “no,” resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term “livestock” is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."


On that point, I agree with her. Especially after reading the opinion. Maybe dogs aren't livestock. But maybe they are. Context and intent are important. So I agree with her that summary judgment would not be proper on the ground that dogs categorically don't count as "livestock".


So that's where I was after I first finished reading the opinion. Totally, totally in agreement. With an opinion, quite frankly, that I thought (and still think) is incredibly well-written.


But then, for whatever reason, I read it again. Because, I think, in the back of my mind, something about it just didn't seem right. Even though, intellecually, I was (again) completely on board.


And then figured out what my problem was. A problem that I couldn't initially even articulate, but which I think my subconscious grasped well before my conscious brain was actually aware of the problem.


Here's the scoop. I agree with Judge McKeown that dogs might potentially be livestock. So the defendants are, in my view, potentially (though not certainly) entitled to raise them. Maybe that's indeed included within the scope of the easement for "livestock farming".


But, as I reread the case, I suddenly realized: that's not what the defendants are doing. And is potentially why the district court was correct to grant summary judgment.


Defendants aren't dog breeders; in other words, they're not raising dogs like you'd raise sheep or chickens or whatnot to sell. Rather, they're running a kennel (and an associated dog training service). Now, it may well be that dogs count as livestock. But the easement only allows "livestock farming". That may potentially cover a dog breeder, who raises and sells animals, but now that I look at it, I don't see how a dog kennel counts. That's not the raising and selling of livestock. It's not doing to animals what we do, on a regular farm, to plants. It's instead the taking care of animals. So even if those animals are livestock, that's still not livestock farming.


Take, for example, a veterinarian. They take care of animals too. But surely a veterinarian isn't engaged in "livestock farming", right? Even if they only work on cows; i.e., livestock.


So I think the appropriate focus is not only the one centrally addressed by Judge McKeown, which involves the word "livestock," but rather should focus on the whole phrase. Because the former point is one on which I think she's clearly correct. But the only thing that Judge McKeown says in the entire opinion with respect to the additional caveat that the plaintiffs must be engaged in lifestock farming is the following: "The word “farming,” which follows “livestock,” is unhelpful because “to farm” is simply defined as “to engage in raising
crops or animals.” But that seems wrong. Yes, it doesn't help us decide whether dogs count as livestock. But it does tell us whether the district court correctly granted summary judgment on the ground that defendants aren't engaged in livestock farming, right?


Admittedly, I haven't read the district court's opinion, so don't know whether it really (or clearly) focused on the phrase "livestock farming" as a whole rather than on the single word "livestock". But, at a minimum, I think that the "farming" limitation (1) is more significant than Judge McKeown's opinion first led me to believe, (2) may well provide, at worst, an alternative basis upon which the district court's grant of summary judgment could (and perhaps should) be affirmed, and (3) perhaps requires at least brief additional discourse, especially since one leaves Judge McKeown's opinion (or at least I did) with the belief that the case at this point gets to go to trial. But I don't think that's in fact the case. It may well be -- or at least I've persuaded myself -- that the district court's grant of summary judgment should probably be affirmed, albeit potentially (if the district court's opinion only relied on the word "livestock") on alternate grounds. Or, at a bare minimum, that the opinion should clearly state that it doesn't reach the issue of whether defendants were engaged in "livestock farming" as a whole, an opinion that's instead left for remand.


Those are my (extended) thoughts, anyway.

Lockerby v. Sierra (9th Cir. - Aug. 7, 2008)

Judge Hawkins is correct. The defendant here should indeed get a discharge. Even a deliberate breach of contract -- here, of a routine settlement agreement -- doesn't constitute a willful tort.

Nonetheless, anyone who's thinking of hiring Tucson, Arizona attorney Alexander L. Sierra to do anything on their behalf -- Sierra's the one filing for bankruptcy, who was previously sued for malpractice, and who deliberately decided to breach the settlement agreement -- should definitely read this case.

You're not going to hire Mr. Sierra as your attorney anyway, since he's been disbarred. But I wouldn't retain him for anything else either , honestly. He doesn't sound like the kind of person I'd especially like to have to deal with.

A discharge applies to debts, not reputation.

People v. Nelms (Cal. Ct. App. - Aug. 14, 2008)

It's an unusual case in which a convicted defendant will want to abandon his appeal and yet the Court of Appeal will refuse to allow him to do so. But it happens. Even in non-death penalty cases.

Can't think of an example. Here's one.

People v. Muniga and People v. Wallace (Cal. Supreme Ct. - Aug. 14, 2008)

Two death penalty opinions from the California Supreme Court this morning. With striking similarities.

Both involve a first-degree murder committed during a residential burglary. Both involve elderly women killed in their homes -- the first, Hazel Hamilton, was a 83-year old widow, and the second, Alma Franklin, was 73. Both murders were committed long ago -- Hamilton was killed in 1991, and Franklin was killed in 1994 -- and are only now (17 and 14 years, respectively, after the murders) adjudicated by the California Supreme Court. Both murders involved the fairly horrific beatings of the victims.

And the convictions and death sentences of both defendants -- Keone Wallace and John Mungia -- are unanimously affirmed by the California Supreme Court.

I think you get a sense of the Court's reaction to both cases from the following line of the opinion by Justice Kennard -- who's hardly a pro-death penalty fanatic -- in Wallace: "In the course of a residential burglary, defendant beat to death a frail, elderly woman who was particularly vulnerable because of her age and her poor physical condition. He also attempted to rob and sexually assault her. On these facts, the death sentence is not grossly disproportionate to defendant’s culpability."

Facts matter.

Christian Research Inst. v. Alnor (Cal. Ct. App. - Aug. 13, 2008)

Imagine that you're a lawyer with, say, Ross Dixon & Bell. Hypothetically, of course, say you're Kevin Kieffer,
Becki Kieffer, Jennifer Mathis, Jenece Solomon, or Michael Gower (full disclosure: Mike's a former student of mine). Or say you're Peter Eliasberg, who's with the ACLU Foundation of Southern California. You worked on a long, hard-fought SLAPP, in which you filed and won on appeal (in a divided vote) an anti-SLAPP motion against the plaintiff. You've now moved for an award of your attorney's fees. You ask for a quarter million dollars. You're feeling pretty good, eh?

Then two things happen. (1) The trial court denies your motion. Awarding you less than $25,000 -- in other words, less than 10% of what you ask for. Ouch.

But wait. There's more. You appeal. At which point (2) the Court of Appeal not only affirms, but includes a wide variety of things in the opinion that you'd probably prefer not to be written for posterity. Including but by no means limited to the following bot mots:

"The record suggests Alnor sought to transfer to the opposing parties the cost of every minute counsel expended on the case, whether or not anti-SLAPP work was involved. The fee request included, for example, billings for obtaining the docket at the inception of the case, obtaining unspecified but “numerous court documents,” and attending the trial court’s mandatory case management conference — all of which would have been incurred whether or not Alnor filed the motion to strike. Indeed, counsel even sought reimbursement for drafting the client retention agreement, which does not appear to have been limited to anti-SLAPP measures given the hours counsel billed for other work. Counsel’s willingness to flout the statutory restriction on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced view of the fee request."

Or this one: "Faced with a motion that involved little or no time spent on discovery, the trial court was justifiably puzzled at the size of the fee request. The trial court observed the matter was not particularly complicated for an anti-SLAPP motion, and nothing in counsel’s billing submission establishes otherwise. The attorneys’ legal research entries do not suggest the pertinent issues were difficult, since counsel spent almost as much time on mundane research concerning page-limit extensions and whether the trial court had discretion to delay the motion hearing beyond 30 days as on any particular substantive question. Indeed, the five attorneys Alnor deployed on the motion appear to have expended more time telephoning, conferencing, and e-mailing each other than on identifiable legal research for the motion, supporting the trial court’s conclusion the matter was overstaffed. In sum, based on the trial court’s own observations in managing the proceedings up to the hearing and on the billing record eventually submitted, the court could reasonably determine counsel’s fee request was unreasonably padded, vague, and worthy of little credence."

Or this last entry: "Given that precedent so amply established the controlling issue, the trial court was entitled to note, in assessing the reasonableness of more than 400 hours counsel logged on appeal, that counsel failed to uncover or cite the seminal cases applying the dispositive standard. . . . The trial court could reasonably conclude the inflated, noncredible, often vaguely documented hours claimed by counsel precluded turning Alnor’s contingent fee arrangement with counsel into a windfall."

I can't imagine that the attorneys here did anything other than cringe at every successive paragraph they read.

Winfred D. v. Michelin North America (Cal. Ct. App. - Aug. 8, 2008)

Bigamy? I'm not even sure that's a crime anymore.

But if you decide to introduce evidence of it to impeach the plaintiff in a closely-contested civil case, it nonetheless remains grounds for a reversal of the judgment in favor of the defendant.

Lesson: When you ask the Court to introduce inflammatory evidence, be careful what you wish for.

D'Lil v. Best Western Encina Lodge (9th Cir. - Aug. 12, 2008)

It's yet another case -- indeed, the second one today (the first one is here) -- involving a repeat ADA plaintiff. The district court thought that plaintiff wasn't credible. Neither do I.

Whether the particular record here is clear enough to so find is a matter of dispute between the majority opinion (written by Judge Reinhardt) and the partial dissent (written by Judge Rymer), and I think that both positions in this regard are reasonable.

But I'm nonetheelss left with a firm and definite belief -- rightly or wrongly -- that the plaintiff here will say whatever needs to be said in order to obtain damages and fees.

Do some social benefits result from ADA mills? Sure. Are there social costs as well? Definitely. Underlying the credibility dispute between the majority and dissent is, I believe, a similar dispute about whether the former outweighs the latter.

Read the opinion and decide for yourself whether you think plaintiff's telling the truth when she says she intends to go back to the Best Western Encina.

In Re James C. (Cal. Ct. App. - Aug. 11, 2008)

Some good news, some bad news.

Bad news first. Judge Francis Devaney -- down here in San Diego -- apparently has been applying a "consistent" policy in which he sentences juveniles in border cases to a year at Camp Barrett (a junvenile facility in Alpine) but suspending this sentence on the condition that the juvenile, as part of his probation, be banished from the United States. Even if they're a citizen.

Uh, I've got news for you, Judge Devaney. Your policy in this regard couldn't be more unconstitutional. As well as, quite frankly, offensive. We don't banish U.S. citizens. We just don't.

The good news. First, Justice Huffman (and the rest of the panel) knows this, and in a fairly brief opinion, says so. Second, that Attorney General's Office knows this as well. And while the AG's Office is willing to argue on appeal that in this particular case the defendant waived this issue (though he didn't), it also has the foresight and integrity to concede that what Judge Devaney has been doing is wrong. Which I like. Especially since the three most responsible attorneys in this regard -- Assistant AG Gary Schons and Deputy AGs Scott Taylor and
Marissa Bejarano -- are all USD Law graduates.

I like it when our alums do the right thing. Especially when other people -- including people in positions of power -- are doing the wrong thing.

People v. Hovarter (Cal. Supreme Ct. - Aug. 11, 2008)

I rarely have substantial doubt about the guilt of a defendant sentenced to death. Most of the time, I'm pretty darn confident -- even if based solely on the description of the evidence on appeal -- that the defendant did it. Sure, there are exceptions, but they're definitely the exception rather than the rule. At least in my mind.

So I was stunned when I read this case. In which the defendant -- Jackie Ray Hovarter -- is sentenced to death for killing Danna Elizabeth Walsh. And after the California Supreme Court was done recitiong the evidence that was admitted against Hovarter at trial, I literally said out oud: "That's it?!"

Look, I'm not saying the guy's definitely innocent. I have no doubt that he tried to kill a different woman -- "A.L." -- four months after Walsh's murder. And, look, I'm like everyone else in the world, and think that if you're willing to rape and kill one woman, if there's another woman who's been raped and killed in the same general geographic area (i.e., in the same town), there's a darn good chance you did that one to. But when there's no eyewitnesses, no link at all between the defendant and the victim, and no physical evidence of any type, for me, it's an incredible, incredible stretch to say that someone's clearly guilty beyond a reasonable doubt -- so much so, indeed, that we're willing to sentence him to death. And the fact that there's a jailhouse informant here who've even less credible than most jailhouse informants -- and that's saying a lot! -- hardly changes the picture. Sure, it means that there's legally sufficient evidence for a conviction, of course, because a jury could indeed decide to believe a total liar like the informant here. But, man, I gotta say, if there's ever a true case in which "lingering doubt" might let you put a person in prison for life and yet not be totally sure he should be irrevocably killed, this is it. And, to tell you the truth, I'm not sure that I've ever really seen one of those before -- one in which that residual doubt might actually have affected my own calculus.

Now, admittedly, there's part of me that doesn't especially care, since I'm confident that Hovarter in fact tried to kill another woman, so part of me says that he's only getting what's coming to him anyway. But, for good or bad, our system doesn't work like that. Or at least it shouldn't.

Nor -- and this is one of those very rare case in which the initial jury deadlocks in the penalty phase, the defendant chooses to be resentenced by the judge, and the judge then decides upon death -- does the system decide upon death versus life due to electoral or other pressures. But, at least in the trial court, do I have a lingering suspicion that that might have played a part as well; i.e., that an elected judge might decide to sentence a defendant who we all know is at least an attempted murderer to death due to potential backlash from the electorate to a contrary decision? Yeah. I do. Based upon nothing, of course. But when my reaction to the case is so different, I gotta wonder -- again, based on virtually nothing about this individual case or judge -- whether that played a role as well.

Anyway, read this one. See if you reaction is the same as mine. Maybe you totally believe the informant (though if you do, wow, we're definitely on different pages). Or maybe you're more persuaded than I am that it's okay to sentence someone to death when you're sure that the offender committed at least an attempted murder even if he might not have done this particular crime. Or maybe you just have a different take than me. But, on my end, I'm at least a little troubled by this one. And didn't expect to find a "lingering doubt" case on my (virtual) doorstep this morning.

Oh, yeah. The California Supreme Court unanimously affirms the conviction and sentence. Twenty years thereafter. No real surprise there. And I can't even say that, as a matter of law, they're wrong. My reaction here is much less doctrinal than equitable. Yes, the law seems like it was followed. But I'm still not sure that what happens is right.

Cachil Dehe Band v. State of California (9th Cir - Aug. 8, 2008)

It's a case about Indian gaming. You represent the Indian tribe, and want more slot machines. You've lost in the district court, and now appeal to the Ninth Circuit. You're waiting for the panel to be announced just prior to oral argument. Who's your dream -- absolute dream -- draw?

Right. Judge Canby.

Ca-ching!

I'm not saying he's wrong here (when he finds in favor of, you guessed it, the tribe). You'll not find a bigger -- or more interested -- expert on Indian law on the federal bench.

But talk about a great draw if you're the tribe. It's hitting a 16 against a 9 and getting a 5.

Jonathan L. v. Superior Court (Cal. Ct. App. - Aug. 8, 2008)

You've got to give Justice Croskey credit. It's rare enough that the Court of Appeal admits that it made a mistake. It's even rarer to go out of your way to admit your mistake. But that's exactly what happens here.

This is the homeschooling case, which I briefly discussed when it initially came out. The Court of Appeal's holding that (in the context of an allegedly abused child) California did not grant parents the right to homeschool one's child -- a conclusion that seemed to flow directly from the relevant statutory dictates -- resulted in a firestorm of controversy. And, as I predicted, after a petition for rehearing was filed, Justice Croskey promptly went to work on amending the opinion.

After the petition for rehearing was filed, he could have simply dismissed the appeal as moot, as the dependency proceedings here had by that time been dismissed. But he didn't do that. He could also have merely limited his holding to state that regardless of whether there was a right to homeschooling, that right doesn't preclude the state from ordering public schooling of an abused child. Which is a conclusion that he not only reaches, and that effectively resolves by itself the present case, but is also, in my mind, exactly right.

But he doesn't do that either. He instead confronts head on the central issue -- the one that had generated so much controversy -- and holds that, in fact, his prior opinion was wrong. That there is a right to homeschool one's child, at least as a matter of pratice (even if the statutes appear to go the other way). Contrary to what he had previously held. And goes to great lengths, in an opinion that explores the subject in great depth and sophistication, to explain why that's the case.

Now, you can take this reversal in one of two ways. First, you could view it as the product of a good faith change of mind in light of additional information that didn't exist when Justice Croskey wrote the initial opinion, combined with an ability and willingness to be forthright and honest in changing one's mind and admitting when you were initially wrong. Alternately, you could view it as a cynical attempt to reverse one's self in light of controversy -- including from the Governator himself -- and to pander to that controversy with a keen recognition that justices on the Court of Appeal are subject to periodic retention elections.

Personally, I'm strongly of the former view. But I gotta admit that even the most neutral and well-intentioned person is probably at least dimly aware of the realities of the latter.

Regardless, I think that this is an admirable opinion. And I applaud both Justice Croskey as well as the rest of the panel.

People v. Becerra (Cal. Ct. App. - Aug. 7, 2008)

This is why I love reading the California Appellate Reporter. Because even if you go to Urban Dictionary or google the term "nose dipping," you'll still have utterly no clue as to what that phrase could possibly mean. But Justice Ikola knows. Check out page 4. When someone tells you to "Keep that nose of yours clean; don't be nose dipping," that apparently means "Don't testify against me. Otherwise I'll have you killed."

Because nothing shows poor form like having someone threaten to kill you in street vernacular and having to respond: "Wait. What do you mean? Can you repeat that again in the Queen's English?"

GEC Capital Corp. v. Future Media Productions (9th Cir. - Aug. 7, 2008)

Sometimes you amend an opinion to respond to an argument in a petition for rehearing. Sometimes you amend to correct a factual error. And sometimes you amend to get your colleagues off your back.

Back in July, Judge Trott wrote an opinion in an otherwise fairly routine bankruptcy case involving default interest. The district court had applied -- and extended a bit -- the Ninth Circuit's holding back in 1988 in a case called Entz-White. But Judge Trott, as well as the rest of the panel, found that case distinguishable. Which, of course, is totally fine.

But in the midst of the opinion, in so holding, Judge Trott also inserted the following footnote (footnote two): "With the addition of the 1994 amendments, including § 1123(d), the continued validity of our holding Entz-White is questionable. We, however, do not reach that issue today as the facts presented in this appeal—grounded in a § 363 sale—are distinguishable from those in Entz-White."

Now, I'm admittedly just speculating, but my sense is that the claim that "the validity of our holding in Entz-White is questionable" didn't exactly go unnoticed. By either the parties or, more critically, the other members of the Ninth Circuit.

Whatever the reason -- and I don't think anywould be surprised if the words en banc were part of the threatened utterances -- here's the entirety of the Order that the panel issued earlier today: "The Opinion filed on July 3, 2008, is hereby amended as follows: on slip Opinion page 8112, delete footnote #2."

Controversy over. For now, anyway.

McMillan v. Shadow Ridge at Oak Park (Cal. Ct. App. - Aug. 4, 2008)

Please don't get me wrong, Justice Perren. I completely agree with you. You're totally right in this one. When a party in a civil action appears pro per, even with a "counsel on the side", there's no disqualification when the opposing party talks directly to the pro per litigant. That's totally permissible. You're also completely correct that a party shouldn't be able to frustrate the other side by making unclear whether they're represented by the "informal" counsel or pro per. Exactly right.

I also don't disagree with what you said when you began the opinion. The first sentence of which says: "Over 140 years ago, our Supreme Court stated, 'A party to an action may appear in his own proper person or by attorney, but he cannot do both.' (Board of Commissioners v. Younger (1865) 29 Cal. 147, 149.)" The Court did indeed say that. And it's generally true, as well as nicely applicable here.

That opening statement caught my eye, however, because, technically, I think it's not, in fact, accurate. In my mind, at least, a party to an action can simultaneously represent himself and be represented by an attorney -- a fact that, if true, disproves at least the universality of the California Supreme Court's categorical statement. When, you might ask, can they do so? When they're an attorney as well. So if, for example, the plaintiff is an attorney, and also formally associates another counsel, in my mind, both (or either) attorney can represent the plaintiff. And hence appear at hearings, enter into stipulations, argue motions, etc. The plaintiff in such a setting is "represented" by two attorneys -- himself (or herself) as well as the outside counsel.

Are there any cases on this precise point? Maybe. Both Scott v. Times-Mirror Co. (1919) 181 Cal. 345 and Conroy v. Waters (1901) 133 Cal. 211 at least come close, as both involved a party to was an attorney and who represented himself (alongside other counsel), and the Supreme Court in each refused to find reversible error notwithstanding the "can't be both pro per and have an attorney" language of Younger.

So I raise the point if only because (1) I hadn't seen the language that Justice Perren quoted ever before (it apparently comes up every couple of decades or so!); (2) it articulates an interesting categorical proposition, and one that even be practically relevant to members of the California Bar; and (3) may be misleading, or even untrue, at the margins.

Not, again, that you're wrong, Justice Perren. I'm with you. Totally. Especially since the plaintiff here was not, in fact, an attorney. Regardless, I just wanted to make a tangential -- and hopefully helpful -- point.

Garcia-Aguilar v. United States District Court (9th Cir. - Aug. 6, 2008)

Not a good day for the U.S. Attorney's office down here in San Diego. Which gets called out by Chief Judge Kozinski for (1) doing a bad job, and then (2) trying to get out the consequences of this (alleged) malfeasance by convincing -- successfully, I might add -- three district court judges down here (Judges Burns, Benitez, and Collins) to refuse to accept the unconditional guilty pleas of various criminal defendants.

No dice, he holds. And grants a writ of mandamus. In his inimitable fashion; e.g., the second sentence of the opinion is: "These consolidated cases show again why the ten most terrifying words in the English language may be, 'I’m from the government and I’m here to help you.'"

Chief Judge Kozinski: A funny guy. But, simultaneously, not at all shy about sticking it to you when he thinks you deserve it.

U.S. v. Flores-Villar (9th Cir. - Aug. 6, 2008)

You're an illegal alien from Mexico. You've previously been convicted of importing marijuana. You're now convicted of being a deported alien found in the United States. Your best chance for reversal is to make a constitutional equal protection argument and assert that, on that basis, you get to become a U.S. citizen.

You lose below, but appeal to the Ninth Circuit. And a week before oral argument, find out that the panel drawn for your appeal consists of . . . Judges Hall, Rymer and Kleinfeld.

You might as well start packing now.

People v. Manning (Cal. Ct. App. - July 31, 2008)

Think that admission of prior offenses doesn't matter? Think again.

Without the admission of the evidence regarding the prior offense, there's no way that the defendant here gets found guilty beyond a reasonable doubt. But with the admission of the prior offense -- notwithstanding the fact that the prior was fairly dissimilar to the current charge (forcibly assaulting a co-worker versus allegedly groping a sedated patient eight years later) -- he definitely gets convicted.

People v. Diaz (Cal. Ct. App. - July 30, 2008)

No opinions from the Ninth Circuit today. Guess they're all still sleeping off the Sun Valley conference. Plus no opinions from the California Court of Appeal yet either. Maybe they had a good time as well.

Regardless, I can still give some good advice, derived (as always) from counsel received from the good pages of the Federal and California Reporter. Today, here's my thought:

I know that there's a convenience aspect to the process that your customers undoubtedly appreciate. My strong recommendation is nonetheless that you should not let people buy Ecstacy from you through the admittedly expedient means of sending you a text message.

Here's one reason why.

Twardowski v. American Airlines (9th Cir. - July 30, 2008)

You know the panel thinks that this is a fairly easy case when (1) the opinion is per curiam; (2) the majority of the sections consist of a single paragraph, and (3) the caption takes up more pages than the opinion.

Ramirez v. Nelson (Cal. Supreme Ct. - Aug. 4, 2008)

The Court of Appeal has to follow precedent. The California Supreme Court has a little more flexibility. And, as a result, often does a little more "justice" than the lower courts.

So, for example, Justice Gilbert, reading a statute, feels contrained to say that a homeowner might well be liable per se for having a contractor electrocute himself when his polesaw hits an overhead high voltage line. A result that, as I mentioned here, seems profoundly unjust, and yet that seems to be the lay of the land.

But the California Supreme Court says, essentially: "Look, that's just too absurd and unfair. We don't like it." Which is exactly right. And, I imagine, was how Justice Gilbert may well have seen it as well. But when you're the California Supreme Court, on an issue of California law, you're the boss. There's no one higher than you. So you can do, essentially, what you want.

Which it does here.

I'm not especially complaining. I think the California Supreme Court's decision enhances justice. I just feel bad for Justice Gilbert. Or anyone else on the Court of Appeal that doesn't have a similar infallibility that arises from finality.

People v. Sutton (Cal. Ct. App. - July 30, 2008)

The holding here is itself important -- basically, that even if the defendant doesn't waive time (i.e., the right to be brought to trial within 60 days), appointed counsel's engagement in another trial constitutes "good cause" to continue the trial beyond that statutory period. That's an important -- and interesting -- holding, and does conflict a tiny bit (albeit in an arguably distinguishable way) with some other holdings.

But let me focus less on the doctrinal merits here than on a passage in the opinion that quotes some of the dialogue below. Dialogue that jumped out to me as not right -- as not the type of discourse that I especially like to see manifested by judges. Here's the exchange between the defendant and Superior Court Judge
Judith L. Champagne (up in Los Angeles):

“Defendant Sutton: I’m confused.
The court. What are you confused about, Mr. Sutton?
Defendant Sutton: I’m told you have 60 days to start trial. Sixty days was up yesterday, and we’ve not waived any time. The minute order –
The court: That’s excellent. And I found good cause to put your case over.
Defendant Sutton: What’s the good cause? What’s the good cause?
The court: The good cause is that one of the lawyers is engaged and can’t try two cases at one time. And if one of the lawyers is engaged on a case with two defendants, it’s good cause to put both over. Now, do you want a further explanation than that?
Defendant Sutton: Yeah, but the minute order show we never waived any time. I’m confused.
The court: You’re not confused. You just don’t like it.
Defendant Sutton: Well, that’s a fact.

The court: That’s a fact. And you know what my answer to you is? Too bad. See you on Monday.”

The sarcastic "that's excellent" comment is somewhat snarky, but I'm willing to let it go. But I thought the "too bad" comment somewhat crossed the line. The Court of Appeal doesn't mention anything about this exchange, but I'd have dropped a footnote that said we expect a little more circumspection, neutrality and restraint from our judges. Because the appearance of justice matters too.

People v. Phomphakdy (Cal. Ct. App. - July 31, 2008)

The theme of the past 36 hours of my life has been: "Drugs, drugs, and more drugs!!" And, no, I'm not talking about personally. I mean professionally.

Yesterday the Court of Appeal (correctly) affirmed the dismissal of a lawsuit brought by San Diego County to the identification card provisions of the Medical Marijuana Program Act, and I briefly talked about that decision here. Then, that afternoon, I took the bench as a pro tem and decided a couple of cases, in one of which drugs played at least a healthy role. At the end of the day, back at my office, I then commented upon a decision by the Court of Appeal that, inter alia, discussed a Los Angeles physician who's willing to say that consuming three to six pounds of marijuana a month seems about right. Which is definitely nice. At least if you're into that sort of thing.

Thereafter, in more drug-related news, this morning, I donned a DEA jacket (metaphysically, at least) and, surrounded by a dozen DEA agents, executed -- as a court-appointed special master -- a search warrant on a physician (the name of whom I shan't reveal) who allegedly diverted a fair amount of controlled substances. Getting hooked on Vicodin, it seems, is not a good life, and entails an extremely hard habit to control. Finally -- or at least finally for now -- I stumble across this case, in which the Court of Appeal holds that Medical Marijuana Program Act's typical limit of "no more than eight ounces of marijuana" and “no more than six mature or 12 immature marijuana plants" unconstitutionally amends the Compassionate Use Act. And also, for those in the Bay Area up north, mentions Hany Assad, who's another doctor (like the other one I discussed yesterday) who's more than willing to both prescribe marijuana and testify -- again, ultimately successfully, at least once the case gets to the Court of Appeal -- on behalf of the defendant. (Though I must warn you that the stuff here about Dr. Assad doesn't sound especially good.)

In short, for me, at least, the past 36 hours have been all about drugs. And that's not even counting the fact that Cheech and Chong just announced that they're getting back together.

Dude. Like, heavy.

In Re Matthew A. (Cal. Ct. App. - July 28, 2008)

"You're like a little kid. We tell you and tell you and tell you, but you never seem to listen. Time to ground you to your room, I guess."

Or, as Justice Flier -- the mother of three children and several grandchildren herself -- puts it here, "Courts utilizing this technique may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious. But, if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment."

So there.