Friday, October 31, 2008

Apollo v. Gyammi (Cal. Ct. App. - Oct. 31, 2008)

Three straight days now with no published opinions from the Ninth Circuit. But, again, the California Court of Appeal takes up the slack. Including this opinion, which is definitely worth a read. Not because it establishes any critical precedent. But rather because it's an interesting set of facts. As well as gives one a keen sense of the displeasure that courts sometimes take towards pro se litigation. Particularly when filed by prisoners.

You don't usually have a prisoner who (1) seems fairly diligent, (2) confronts a seemingly hostile and overly penurious judge, and (3) actually has a potentially meritorious case. Sure, you'll get one of these, and perhaps even two of them, on occasion. But all three? Rare. But, here, I think Justice Jenkins was surprised -- as I was -- to find the trifecta.

So take a gander at it. It reaches the right result. And, for what it's worth, doesn't make Judge Beeman (up in Solana County), look especially great.

P.S. - I welcomed Justice Needham for his first mention in the California Appellate Report yesterday, and today similarly welcome Justice Jenkins (who, as you may know, come over earlier this year from the federal bench). Enjoy.

Thursday, October 30, 2008

Turner v. Association of American Medical Colleges (Cal. Ct. App. - Oct. 30, 2008)

For anyone who wants to take the MCAT, this is an important case. It's also important, by analogy, to those of us in the legal field. Especially those of us in the academy. Since what's good for the MCAT is almost certainly good for the LSAT as well. And, potentially, for law school exams as well.

It's a disability accommodations case, and concerns whether California law (the Unruh Act) requires the MCAT to give test takers more time (or additional accommodations) beyond those required (if at all) by the ADA. Justice Needham says "No." And, in so holding, reverses not only the judgment of the trial court below, but also the attorney fee award of approximately $4 million.

For good or bad, there are a lot more testing accommodations nowadays -- in all fields -- than there were a decade ago, or a decade before that. And, almost assuredly, for anyone not involved in this area, a lot more than you think.

So it's an important case. Particularly for those of us in California. Read it at your leisure.

P.S. - And welcome to the California Appellate Report, Justice Needham. Your first mention in what will, with luck, be a long line of (at least mostly) positive and glowingly effusive praise.

In Re Charllisse C. (Cal. Supreme Ct. - Oct. 30, 2008)

The Ninth Circuit has taken the last couple of days off, at least as far as published opinions go. Fortunately, there's no rest for the weary in the California appellate courts.

Today the California Supreme Court gives the following lesson about how to avoid dissent. It's a tough conflict of interest issue that involves the validity of screening by the Children's Center of Los Angeles through the creation of different internal "units" so that it can avoid disqualification in dependency cases. But the Court resolves the dispute unanimously; by contrast, the decision below had generated three different opinions.

How does the California Supreme Court achieve unanimity on this difficult issue? By merely holding that the Court of Appeal applied the wrong legal standard (since this is a concurrent, rather than successive, conflict of interest case), and then remanding the case alongside relentless reminders that the Court isn't even trying to decide the merits.

That works. Though merely defers the day of reckoning.

Wednesday, October 29, 2008

People v. Newby (Cal. Ct. App. - Oct. 29, 2008)

A woman named Julie tells her fiancee that she's breaking off the engagement and leaving him. The fiancee (William Newby) responds by "grab[bing] Julie by the throat and punch her in the face several times with his fist. Eventually falling to the floor, drifting in and out of consciousness, Julie watched as defendant continued the attack by kicking her in the face with his steel-toe boots. Throughout the attack, defendant repeated: “[Y]ou are fucking dead, you are fucking dead, you bitch, you are fucking dead.” When defendant was finished, he took Julie’s engagement ring and departed. Defendant beat Julie so severely that her nose was pushed into her nasal cavity. Several facial bones, including those supporting the nose and those surrounding the eyes, were shattered. Fragments of these bones were strewn throughout her nasal cavity, causing air from her sinuses to get into the fat tissue around the eyes. One of her front teeth was also broken off at the root."

Notwithstanding the horrible attack, Julie clearly made the right call, and correctly saw Newby for what he was. And now Newby gets to spend the rest of his life in prison. And look therein for a new fiancee. Over the internet or otherwise.

Tuesday, October 28, 2008

U.S. v. Snellenberger (9th Cir. - Oct. 28, 2008)

I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.

It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam. Judge Milan Smith writes a dissent, joined by three other judges. And Judge Graber (joined by others) writes a concurrence to respond to the dissent (which argues that the court should reach an issue not raised by the opening brief regarding whether a recent en banc decision of the Ninth Circuit counsels reversal of the judgment below as plain error)

What makes this otherwise straightforward outcome slightly weird is that Judge Graber is joined by no less than five of her colleagues. In other words, the concurrence is joined by a majority of the court, and responds to a dissent joined by four judges. In short, it's a 7-4 decision, and 6 of the 7 want to say X as well, and yet the majority opinion does not contain the argument of the 6. As I presaged at the outset, the only judge not part of the 6 or the 4 is Judge Fletcher, who's vote on the point mathematically matters not.

Traditionally, you'd see the 6 judges write a majority opinion, the 4 judges write a dissent, and the one judge left out write a separate concurrence that says "I agree with the majority, but not with X." And yet, here, it's inverted, with the one judge (essentially) writing the majority opinion [though my sense from the writing is that Judge Fletcher wasn't the actual author] and a majority of the court writing a "concurrence". Weird.

The lineup is also not what you'd usually expect. It's a criminal case, so you've got your traditional splits, and yet here's who's on the defendant's side: Kozinski, Reinhardt, Thomas and Milan Smith. Now, the first two are occasional buddies both on and off the court, though typically more in civil liberties matters. But the latter two joining this mix; well, if there's ever been an en banc decision with only these four on one side, I certainly haven't seen it. A Carter, a Reagan, a Clinton, and a Bush II. Strange bedfellows. Especially when on the other side you've got the two remaining Bush I appointees and five Clintons. I don't remember such an ususual split in a non-snoozer sort of case (ERISA, state contract law, etc.) in a long time. Only adds to the weirdness.

As for the merits, you can read the relevant opinions. But I think Judge Smith does a fairly decent job of presenting the respective positions -- as well as advancing his own -- in the penultimate paragraph of the dissent:

"I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result."

So there you have it. An interesting case for sure.

Monday, October 27, 2008

People v. Conception (Cal. Supreme Ct. - Oct. 27, 2008)

Here's yet another reason not to attempt to escape from custody once your trial has started. Not only will they give the jury an adverse instruction about flight, but they'll also keep your trial going in your absence. Even if you're promptly caught.

And the California Supreme Court says that's just fine.

Citizens for Civic Accountability v. Town of Danville (Cal. Ct. App. - Oct. 27, 2008)

Yes, we live in an electronic era. But that doesn't mean that California statutes are necessarily in the 21st century.

So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means. E-mail doesn't count. And that's true even if there's a standing order (as there is in Contra Costa County) that says e-mail counts and that we don't use snail mail to send out judgments.

Especially given the unreliability of e-mail at the University of San Diego, I couldn't agree more.

Friday, October 24, 2008

U.S. v. Hinkson (9th Cir. - Oct. 20, 2008)

When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.

So the vitriol -- from the panel opinion, at least -- won't be cited as precedent. We'll see how the en banc court sorts this one out. I'd be stunned if the result doesn't turn out to be split.

Stay tuned.

Thursday, October 23, 2008

U.S. v. Fiander (9th Cir. - Oct. 23, 2008)

Contraband cigarette trafficking. It still exists. And while we can't charge members of the Yakima tribe (up in Washington) with substantive violations of the Contraband Cigarette Trafficking Act for not getting shipments approved in advance, we can, the Ninth Circuit held, charge them with a RICO conspiracy. At least when they conspire with people who aren't members of the Yakima Nation.

Interesting stuff. Both factually as well as legally.

Styers v. Schriro (9th Cir. - Oct. 23, 2008)

One may perhaps take umbrage that it has taken 18 years for this death penalty case to work its way through the Arizona state system and finally get to the Ninth Circuit (after every court below denied relief). But you can't make the claim that the Ninth Circuit has inexcusably added to any such delay, as the oral argument was on August 20th, and the per curiam opinion was published today, two months later.

Pretty speedy.

Wednesday, October 22, 2008

Mangano v. Verity (Cal. Ct. App. - Oct. 22, 2008)

I agree with Justice Mihara that the defendant employer here was entitled to summary judgment in its favor, as well as an award of post-998 offer costs (but not attorney fees). So I have no complaints about the merits.

Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr. Mangano "Rainman" in front of everyone at the company -- and even gave him a plaque to that effect -- in light of the subsequent discovery that Mr. Mangano had Asperger's Syndrome. Yikes.

Fortunately, the offending party immediately stopped using this nickname once Mr. Mangano requested that he do so. Still. Maybe we can all learn the following lesson, if only as a matter of civility: Don't tease someone about a perceived disability that they may, in fact, have. Whether you (or they) know it or not. And whether the disability you're teasing them about is exactly the disability they have or merely something close.

Agreed? Good.

El Dorado County Dep't of CSS v. Nutt (Cal. Ct. App. - Oct. 21, 2008)

I can't think of a more important use of social resources than for the government to bring and defend on appeal a child support action against a penniless three-strike prisoner who's in prison, not able to work, and eligible for parole as early as 2045. Just in case.

Definitely not better to bring that action when and only in the one-in-a-billion parallel universe in which the prisoner actually wins the lottery (without buying a ticket). Nope. Bring it now. Especially since the best you can possibly hope for, since the prisoner is penniless, is a judgment that says that no child support is awarded but the court "reserves jurisdiction" in case things ever change.

Anyway, great victory, El Dorado Department of Child Support Services. Huge win.

Tuesday, October 21, 2008

New v. Kroeger (Cal. Ct. App. - Oct. 21, 2008)

The Episcopal Church has had a lot of defections recently as a result of its decision to ordain an openly gay bishop (just like, several decades ago, they had a lot of defections when they decided to ordain women). As a result, there have been several fights in secular courtrooms about who "owns" the property of a particular defecting church. Including a case from down here in Fallbrook (in San Diego county) involving St. John's Episcopal Church.

Justice Nares writes an outstanding opinion here, and gets it exactly right (reversing the trial court, Judge Stern). When I started reading the case, I was concerned that the civil courts might potentially overstep their boundaries by intervening in a doctrinal religious dispute. But halfway through the opinion, Justice Nares totally persuaded me that not only was intervention permissible, but that a civil court was also required to defer to the decision of a heirarchical church regarding these matters. And that, for this reason and others, the higher-ups in the Episcopal Church were indeed entitled to keep control of the religious corporation here notwithstanding the efforts of the defectors (and contrary judgment by the trial court).

So good job, Justice Nares. This was not an easy case. At all. But, in my mind, at least, you got it exactly right.

Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)

Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.

P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right. Here, Justice Perluss notes that there isn't waiver, but rather asserts estoppel. In non-estoppel contexts, what we often call "waiver" is actually "forfeiture". So, for example, we traditionally say that you "waive" personal jurisdiction by not specially appearing (California) or asserting it in your answer or 12(b)(2) motion (federal court), but what we will often really mean is that you've "forfeited" this defense by neglecting to assert it. I mention this only because (1) I'm as guilty as anyone of this misuse of terminology, and I teach civil procedure for a living, and hence am certain that other people misuse the terms as well, and (2) there is a burgeoning trend in the judiciary, I think, to try to make these distinctions clear. So I thought I'd pass along the message.

Monday, October 20, 2008

Porter v. Osborn (9th Cir. - Oct. 20, 2008)

Don't pull off on the side of the road in Alaska. You may well be killed. And it might be by the police.

The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.

Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)

A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out. This decision was unanimous, joined by Judges Hug and McKeown.

Last year, the Ninth Circuit addressed this same issue, and on the basis of this recently decided precedent, voted to deny the petition. But Judge Thomas (joined by district judge Leighton) concurred, arguing that the prior precedent was wrongly decided (albeit binding).

You can guess where this is going. Today, the en banc court reverses the panel and overrules the prior (two-year old) precedent. Holding that, yes, it's a crime, but that at least when the victim is 16 or 17, it doesn't constitute felony sexual abuse of a minor categorically sufficient to justify deportation. On an extremely close vote of 11-0.

Such was the short life of Afridi.

Friday, October 17, 2008

Cundiff v. Verizon Wireless (Cal. Ct. App. - Oct. 16, 2008)

You're killing me. The second straight day of no published opinions from the Ninth Circuit. And from the California appellate courts, here -- in toto -- is the entirety of what's been published today: "It is ordered that the opinion filed herein on September 30, 2008, be modified as follows: 'On page 8, the last sentence of the opinion is modified to read: “Respondents to receive costs on appeal.”'" Not much to wax poetic about, eh?

Late yesterday the First District did issue this opinion, which involves whether uncashed settlement checks (obtained after claim forms were filed) reverted to the defendant -- here, Verizon -- or instead get distributed to charities pursuant to CCP 384. I think that the plaintiffs have the better of the argument here, which is what Justice Klein also concludes.

But let me say that I also had the reaction that this dispute may also reflect a partial problem with the adversary system here. Because as I was reading the case, my intuitive reaction was -- and somewhat remains (albeit without much research) -- that neither party may be entirely correct here. Verizon argued that it got to keep the uncashed checks and plaintiffs wanted them to go to charity, but my sense was instead that they remained -- or at least should remain -- the property of the individuals to whom these checks were sent, and that the property should thus revert to the state under the unclaimed property laws and remain there until the relevant individual requests them (which they can do forever, and the Controller is under a statutory duty to find and notify them). That seems not only required by the California unclaimed property statute, but would also, I think, be preferable as a policy matter to simply giving the funds -- which, again, were claimed by the individual class members -- to charity.

Justice Klein doesn't talk about this possibility, I imagine, because neither of the parties here had an incentive to raise the issue -- and they didn't (I checked out their briefs). It seems to me that if you have a reasonable shot at getting the half-million here to the rightful owners, that should be preferred to simply letting a charity cash their checks and deprive them forever of this cash. So I understand why Justice Klein -- as well as Section 384 -- might prefer giving the cash to charity rather than reverting back to Verizon. But given the ambiguous nature of Section 384, as well as the statutory text and policy bases behind the unclaimed property laws, I might add a sentence to the opinion that says (at a minimum) that the Court of Appeal expresses no opinion as to whether Section 384 trumps the unclaimed property laws, and would hope that on remand, the trial court would interpret these statutes to give the money to its rightful recipients.

I think there's a difference between an "unclaimed residue" in a fluid recovery class action or otherwise and checks that are affirmatively requested by a class member who files a claim form and who merely fails to cash (or doesn't timely receive) the resulting check. I agree that Section 384 sends the residue to charity in the former case, but I think that the recipients get to continue to receive the funds as unclaimed property in the latter.

That's my take from the outside, anyway.

Thursday, October 16, 2008

Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)

Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?

Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment. At the end, Justice Richman says that the opinion doesn't stand for the proposition that every "defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff’s attorney must warn a defendant’s attorney before taking a default." But the perceived need to include those two sentences is fairly instructive. It's a very pro-warning, anti-default opinion. Not wrongly so, IMHO: I always prefer adjudication on the merits. But, still, it's a very powerful piece.

There are also a couple of random things in here that make the opinion especially worth reading, including but by no means limited to its style as well as the relative reverence accorded to the views of the Rutter Group. I also think it's interesting that the opinion easily equates professionalism and courtesy with ethics (e.g., that an unprofessional or discourteous act, like not warning counsel that you may take their default, is necessarily an unethical act as well). I'm not entirely persuaded that's true: It depends on what we mean by "unethical," and that word may perhaps have different connotations for different people.

So there's a lot in here to feast upon. As well as to use if your client ever pulls a "whoopsie" and incurs a default judgment against it.

Wednesday, October 15, 2008

O'Leary v. Aubrey (Cal. Ct. App. - Oct. 7, 2008)

Desert. Very little today. Nothing at all from the California Court of Appeal. From the Ninth Circuit, only a guidelines case, a standard of review case, and a "how much interest does one particular guy get on unclaimed property held for him by California" opinion. The latter of which is marginally interesting, and important to the participants, but about which I could add very little. And, sadly, I've got to go to a meeting, so can't wait for the afternoon cases (if any) from the California Court of Appeal.

So let me just briefly reference this recent unpublished opinion by the Court of Appeal down here in San Diego. Which seems right on the merits. But definitely confirms the suspicion that jurors -- well, they're not wonderful at interpreting jury instructions. At all.

Don't look in the factory if you don't want to know what goes into the sausage.

Tuesday, October 14, 2008

Hoffman v. Citibank (9th Cir. - Oct. 14, 2008)

The Ninth Circuit remands -- "respectfully" (though I think they actually mean it this time) -- so the district court can apply the correct law in a more rigorous fashion than it did previously. Judge Trott concurs to basically slam the California Court of Appeals for not getting on the same page. A snippet of the latter, including the final paragraph:

"California law is far from settled. . . . [Judge Trott then describes three competing opinions from the First, Second, and Fourth Appellate Districts.] The good news, if there is any good news in all of this, is that the California Supreme Court vacated and remanded the [last of these cases] for further proceedings in light of its decision in Gentry . . . . There it is. Mixed signals from the California courts. One hopes on remand in this case that the legal dust will soon settle and that our district court will have some reliable authority upon which to base its decision."

Personally, given that the first two Court of Appeal cases reach conflicting results, I don't see how the third case can possibly "settle" this dispute anytime soon, which could only be definitively resolved if the California Supreme Court had granted review. But maybe Judge Trott is just more of an optimist than I am.

So the Ninth Circuit says: "Get your act together, California Court of Appeal. Help us out on this one." Which I'm sure will happen really, really soon. (Read this last sentence sarcastically.)

Monday, October 13, 2008

In Re Christopher Columbus (All Courts - Oct. 13, 2008)

It's Colubus Day. Which means very little to us working stiffs, but to the California Court of Appeal and the Ninth Circuit, it means a holiday. So no opinions today.

Given the dearth (indeed, total absence) of opinions today, I thought I'd briefly make a random comment. While judicial opinions are my usual recreational reading -- and more than keep me busy -- on occasion, I'm compelled to read something else. Typically, those other works are also nonfiction, and are usually read in order to get my children to sleep.

For example, when my daughter Sierra (who's now seven) was born, for the first couple of years, she would occasionally refuse to go to sleep until an hour or so of reading. And she didn't care at all about the content -- she just wanted to hear the sound of your voice. Admittedly, I could have chosen to read "Goodnight Moon" a thousand times in a single night, but while that book is just fine every other day or so, I think I'd go bonkers if I was compelled to read it over an over again on a single night. So one day I grabbed a random nonfiction book off a nearby shelf and read it out loud, at which point Sierra fell promptly to sleep. So, of course, on the theory that one should never argue with success, I kept up that tradition, with outstanding results. Hence my young daughter heard, cover to cover, Thorstein Veblen's "The Theory of the Leisure Class" not just once, but twice. Which seems an outstanding -- if somewhat unusual -- introduction to the world.

I mention this only because, yesterday, I had a similar need with respect to my two-year old (as of three days ago) son Charlie. And, again, randomly pulled out a book from the shelf. This time it was Hunter Thompson's "Fear and Loathing on the Campaign Trail '72". Which, I gotta tell you, is an nice piece, especially the second time around and particularly given the contemporary campaign. The contrast between what transpired then and modern presidential campaigns is very interesting -- in large part, what's radically different, and yet at the same time those things that have changed only slightly, having become more sophisticated in their execution and yet with the same central purpose and function. Plus, it's interesting to revisit that era, which was (in my view) a very different time than what we presently confront.

So I recommend these pieces. They're oldies but goodies. Even if you're reading them for yourself rather than to send a child into la-la land.


Friday, October 10, 2008

Sturgeon v. County of Los Angeles (Cal. Ct. App. - Oct. 10, 2008)

It's bad enough that your investments are plummeting, your house is worth only a fraction of what you paid for it, and your retirement accounts are completely tanking. But, in the midst of all of this, the Court of Appeal wants to make your weekend even worse. So this afternoon, it publishes this opinion. Which reverses the trial court and threatens to take away a large amount of money from state court judges not only in Los Angeles, but across the state as well. Basically, all their benefits.

Wow. The timing couldn't be worse.

Mind you, on the merits, I think that Justice Benke is right. And she writes an outstanding opinion that I really think addresses the issues quite well. Moreover, as a practical matter, at the end of the day, I think it very likely that state court judges don't have much to worry about from this one, since there's footnote 11 as well as -- in my mind -- a strong likelihood that, if nothing else, the Legislature will step in to clean this problem up and make sure that judges get their benefits.

Still. If you are a state court judge, you've had better weeks.

California Coastal Comm'n v. Allen (Cal. Ct. App. - Oct. 1, 2008)

There are lots of ways to lose your home, especially in the contemporary financial market. Here's another.

Even multi-million dollar Malibu homes are not immune.

Thursday, October 09, 2008

People v. Briones (Cal. Ct. App. - Oct. 9, 2008)

I don't know why the Court of Appeal decided not to publish Part I of this opinion. It's an important issue, and one that I imagine arises with some frequency; indeed, introducing testimony like this may well arise from an outline that a wide variety of prosecutors use when examining witnesses who have made a deal.

If Part I is right, I'd publish it. That portion of the opinion is far more significant, in my opinion, than the portion (Part II) that the panel decided to publish.

Pacific Sunwear v. Oleas Enterprises (Cal. Ct. App. - Oct. 9, 2008)

The things I don't know about the UCC could fill a book. A book roughly the size of, say, the UCC.

I know a decent amount about intellectual property (though much less than my wife), but did not realize until this morning that the UCC -- including California's version of it -- has a fairly strong default value that the seller warrants that the products are delivered free of any infringement claims.

And, in this opinion, Justice Irion makes this default warranty even more significant, holding that it extends even to unsuccessful claims of infringement -- indeed, even ones disposed on summary judgment. As long as there's a "nonfrivolous claim of infringement that has any significant and adverse effect on the buyer's ability to make use of the purchased goods" (e.g., will result in significant costs to defend a lawsuit), you're in trouble.

So beware.

Wednesday, October 08, 2008

Stillwell v. The Salvation Army (Cal. Ct. App. - Oct. 6, 2008)

There's not much today. Just a couple of opinions from the Ninth Circuit and one from the California Court of Appeal. For some reason, the beginning of October seems to be fairly slow. I blame professional football and the MLB playoffs.

There is one opinion from a couple days ago that I went back and reread this morning. It's a case from down here in San Diego in which the plaintiff, Arthur Stillwell, sued his longtime employer, The Salvation Army, for terminating him notwithstanding an alleged agreement to do so only for good cause. My initial reaction was that you could definitely think of less sympathetic defendants than The Salvation Army, and I thought that a conservative San Diego jury would be hard pressed to find in favor of the plaintiff. But they in fact did so.

There was no out of control award by the jury -- they gave Stilwell a little over $150,000. But that's still a fair piece, especially for a public interest defendant in a conservative jurisdiction and a fairly amorphous claim of an implied good cause agreement.

So the result itself was interesting. At least to me. Also interesting were the details of the jury's verdict and what transpired thereafter. First, the jury verdict was internally inconsistent -- it was a special verdict, and the jury found that the parties had an integrated written agreement, but nonetheless awarded damages based upon an implied contract that was inconsistent with the terms of the written contract. That doesn't fly. But this is in part due to the structure of the special verdict (not the jury's fault), which directed them to answer the relevant questions (and award damages) notwithstanding the finding on the integrated contract. Still, it's inconsistent. A topic about which I know (and have published) a little bit, in addition to having litigated in the Ninth Circuit.

Also interesting, however, is what the trial court -- Judge Meyer down here in San Diego -- does. He enters a JNOV for the defendant based upon the jury's finding about the written agreement, holding that this finding as a matter of law precludes any recovery for the plaintiff. But as Justice Aaron correctly notes, you can't do that. When there are two inconsistent jury decisions, you can't enter judgment merely by picking one of them. Just like you couldn't enter a contrary judgment by picking the other. At this point, you're looking at a new trial. Which is precisely what Justice Aaron orders.

Parenthetically, this is why you identify and raise these issues before the jury is dismissed. Because one side (here, probably the plaintiff) would probably have wanted the jury to be ordered to redeliberate and resolve the inconsistency, and it might well be that Judge Meyer would have do so upon request. But you can't do that once the jury departs.

So stay on your toes after the jury returns a verdict. There's still some work -- and thinking on your feet -- to be done. Because this is far, far from the first inconsistent verdict ever returned by a jury.

Tuesday, October 07, 2008

U.S. v. Delgado (9th Cir. - Oct. 7, 2008)

I guess I could have figured it out by reasoning from first principles. But I'll admit my ignorance, and that I did not know -- until this morning -- that the police can conduct warrantless seizures/stops of commercial trucks for with no probable cause (or even reasonable suspicion) whatsoever.

But apparently that's the case.

I understand the reasoning. Just add this to the list of areas (border searches, aerial surveillance, etc.) in which you are subject to being searched and/or seized for any, or no, reason.

Monday, October 06, 2008

Alaska Independence Party v. State of Alaska (9th Cir. - Oct. 6, 2008)

The Alaska Independence Party got more than its typical share of press after the discovery of the Palins' connections thereto. So we may collectively know a little more about its substantive views than we did previously; nonetheless, for insight into the manner in which the AIP nominates its candidates during the primaries, and for insight into how it wishes it could nominate its candidates, check out this opinion.

I think that Judge Fisher's opinion is exceptionally good. I didn't have a strong preexisting feeling on the merits of the dispute, but in the end, I was entirely persuaded that Judge Fisher was right. Political parties have associational rights. But those rights don't extend to only allowing "approved" party members to be the party nominee. At least in contexts similar to those that exist here.

I'm on board for this one.

Slovik v. Yates (9th Cir. - Oct. 6, 2008)

Want to know how coin-operated pool tables know how to send the cue ball back to you? Judge Bybee helps out in footnote 2. In the midst of reversing a conviction for throwing pool balls during a bar fight. Down here in San Diego, no less.

Or you can read this.

Either way, your knowledge expands.

P.S. - Ninth Circuit webmaster: On the Friday published opinions, you input the date as "10/3/08" instead of "10/03/08", which means they'll always be listed on top of October. Might want to change that.

Friday, October 03, 2008

Caldwell v. Caldwell (9th Cir. - Oct. 3, 2008)

How things can change. When I first started reading this opinion (by Judge Rymer), my initial reaction was that (1) the plaintiff had standing to bring the action, but (2) the merits of the lawsuit were incredibly weak. But as to the first point, Judge Rymer -- as well as Judge Betty Fletcher's concurrence -- persuaded me that plaintiff probably didn't have standing. Even under the fairly aggressive view of taxpayer standing applied in Establishment Clause cases.

The opinion doesn't address the second point, but my reaction to that one changed as well. It's a somewhat unique Establishment Clause claim, as it's a claim brought by a fundamentalist Christian against a government website that's pro-evolution. My initial reaction was: "That's absurd. Of course the government can create a secular website explaining evolution. This is totally frivolous." But then I read what at least a portion of the site contains, the most troubling portion of which consists of an attempt to explain how evolution is consistent with various religious beliefs. Upon reflection, I'm less than entirely persuaded that the government can make express religious arguments or claims, or attempt to interpret a religion (and express that interpretation with public funds). I'm still not sure how I'd come out on the merits, but I didn't think that the challenge was nearly as frivolous as I initially suspected it to be.

First reactions aren't always correct. At least if you're willing to rethink things. Which one totally should be.

So this one raises a lot of interesting questions. It's a good way to start your mind working on a lazy Friday morning.

Thursday, October 02, 2008

Castaneda v. United States (9th Cir. - Oct. 2, 2008)

Let me preface this with the following: Read at your own risk. Remember, I'm just quoting. But for the squeamish amongst you -- especially you men -- maybe you should just skip this one. (By contrast, for a glimmer of the nature of the beast, you can just read the sentences I've underlined):

"Francisco Castaneda was imprisoned by the State of California following a December 6, 2005 criminal conviction and held in the custody of the California Department of Corrections (DOC) until his early release date, March 26, 2006. Several times during his approximately three-and-a-half-month incarceration, Castaneda met with DOC medical personnel regarding a white-and-yellow raised lesion, then measuring approximately two centimeters square, on the foreskin of his penis. Twice, in late December and late February, DOC medical providers recommended that Castaneda be referred to a urologist, and that he undergo a biopsy to rule out the possibility of squamous cell cancer. This referral never occurred during Castaneda’s detention by DOC, and on March 27, Castaneda was transferred to the custody of Immigration
and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF).

Immediately upon his transfer, Castaneda brought his condition to the attention of the SDCF medical personnel, members of the Division of Immigration Health Services (DIHS). By this time, the lesion on his penis had become painful, growing in size, bleeding, and exuding discharge. Castaneda met with PHS physician’s assistant Lieutenant Anthony Walker, who recommended a urology consult and a biopsy
“ASAP,” noting both Castaneda’s history of genital warts and his family history of cancer (his mother died at age 39 of pancreatic cancer). That consultation with an outside urologist, John R. Wilkinson, M.D., did not occur until June 7, 2006. Dr. Wilkinson “agree[d] that” Castaneda’s symptoms “require[d] urgent urologic assessment of biopsy and definitive treatment,” citing the potential for “considerable morbidity from even benign lesions which are not promptly and appropriately treated.” Although Dr. Wilkinson’s notes indicate that he “offered to admit [Castaneda] for a urologic consultation and biopsy,” DIHS physicians indicated their “wish to pursue outpatient biopsy which would be more cost effective.” That biopsy, however, did not occur. Instead, Plaintiffs allege that DIHS officials deemed the biopsy, a standard diagnostic procedure to detect a life-threatening disease, to be an “elective outpatient procedure” and declined to approve it.

Castaneda’s symptoms grew worse and worse. On June 12, he filed a grievance report, asking for the surgery recommended by Dr. Wilkinson and stating that he was “in a considerable amount of pain and . . . in desperate need of medical attention.” On June 23, he reported to Lt. Walker that his lesion was emitting a foul odor, continued to leak pus, and had increased in size, pressing further on his penis and increasing his discomfort. He complained of increased swelling, bleeding from the foreskin, and difficulty in urination. On July 13, instead of scheduling a biopsy, ICE brought Castaneda to the emergency room at Scripps Mercy Chula Vista.
The emergency room physician noted the fungating lesion on Castaneda’s penis and referred Castaneda to urologist Daniel Hunting, M.D., who, following a brief examination, determined that the lesion was “probably condyloma,” or genital warts. Dr. Hunting referred Castaneda back to his “primary treating urologist” at DIHS. Four days later, Lt. Walker noted that the lesion continued to grow. On July 26, another physician’s assistant explained to Castaneda that “while a surgical procedure might be recommended long-term, that does not imply that the federal government is obligated to provide that surgery if the condition is not threatening to life, limb or eyesight.”

On August 22, Castaneda saw another urologist, Robert Masters, M.D. Dr. Masters concluded that Castaneda had genital warts and was in need of circumcision, which would both relieve the “ongoing medical side effects of the lesion including infection and bleeding” and provide a biopsy for further analysis. This treatment was again denied as “elective in nature.” The following month, Lt. Walker noticed “another condyloma type lesion [ ] forming and foul odor emitting from uncircumcised area with mushroomed wart.” On November 14, DIHS noted that Castaneda’s “symptoms have worsened. States he feels a constant pinching pain, especially at night. States he constantly has blood and discharge on his shorts . . . . Also complains of a swollen rectum which he
states makes bowel movements hard.” Castaneda was prescribed laxatives. The following day, Castaneda complained that the lesion was growing, that he could not stand and urinate because the urine “sprays everywhere,” and that the lesion continued to leak blood and pus, continually staining his sheets and underwear. DHIS responded by increasing Castaneda’s weekly allotment of boxer shorts. [!!] . . . .

Castaneda was sent to yet another urologist, Lawrence S. Greenberg, M.D, on December 14. Dr. Greenberg
described Castaneda’s penis as a “mess,”
and stated that he required surgery. The ACLU continued to demand treatment, to no apparent avail. Forty-one days later, January 25, 2007, Castaneda was seen by Asghar Askari, M.D., who diagnosed a fungating penile lesion that was “most likely penile cancer” and, once again, ordered a biopsy. On February 5, rather than provide the biopsy prescribed by Doctors Wilkinson, Masters, Greenberg, and Askari, ICE instead released Castaneda, who then proceeded on his own to the emergency room of Harbor-UCLA Hospital in Los Angeles. He was scheduled for a biopsy on February 12, which confirmed that Castaneda was suffering from squamous cell carcinoma of the penis. On February 14, Castaneda’s penis was amputated, leaving only a two-centimeter stump.

The amputation did not occur in time to save Castaneda’s life. In addition to creating a 4.5 centimeter-deep tumor in his penis, the cancer had metastasized to his lymph nodes and throughout his body. Castaneda received chemotherapy throughout 2007, but the treatment was ultimately unsuccessful. Francisco Castaneda died February 16, 2008. He was thirty-six years old."

All I have to say is this: Wow.

McFarland v. Kempthorne (9th Cir. - Oct. 2, 2008)

You may well own two-plus acres of land in the middle of the "Big Prairie" in Glacier National Park (in Montana). And we have let you get to your property in the past by driving on Glacier Route 7.

But, at this point forward, if you want to get to your land -- at least during the winter -- you're going to have to walk.

And have fun with that.

Wednesday, October 01, 2008

M.V. v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)

We spent all day Monday in my "Law of Love" class talking about statutory rape. The typical offender, of course, is male. But just as obvious is the fact that there are numerous exceptions to this general rule.

The next day (yesterday), Justice Ikola graciously publishes this opinion, which involves an Orange County woman who was (1) arrested for consensual sexual intercourse with a 15-year old boy, (2) had her two-year old son taken away from her (and put into protective custody) based upon her arrest and incarceration; (3) spent four months in county jail as a result of the charge; (4) was promptly deported to Mexico; and (5) then reunification services terminated (and a hearing set on permanent termination of her parental rights) due to the fact that her incarceration and subsequent deportation precluded her from spending a lot of time with her two-year old boy (who remained in protective custoday in the United States).

The Court of Appeal grants the mother's current writ petition -- and, parenthetically, justice in Division Three here is again (relatively) speedy, with only three months or so between the order below and the published resolution -- on the ground that the trial court applied the wrong legal standard at the six-month review hearing. So that's a win. Nonetheless, things still look far from perfect for the mother, and the loss of her two-year old son a distinct possibility.

Anyway, another timely opinion. And another reminder that not only may "15 get you 20," but also that statutory rape charges are also brought against women, and that their consequences extend even beyond incarceration.

Freedom Communications v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)

Talk about speedy justice.

Freedom Communications (i.e., the Orange County Register) is being sued in a wage-and-hour class action by its newspaper carriers. Ten days before the trial, counsel for plaintiffs seeks an ex parte order that precludes the O.C. Register from reporting about the trial or other things that might potentially influence jurors. The trial court denies the request, but sua sponte enters an order that, in the midst of precluding excluding witnesses from attending trial except during their own testimony, also prevents the O.C.R. from reporting on the trial testimony of witnesses during trial.

On Wednesday, September 24th, Freedom files a writ with the Court of Appeal. The next day, Thursday, the Court requests that an informal opposition (if any) be filed by noon on Friday. At 12:13 p.m. on Friday (!), plaintiffs do so. Within that same 48 hour period, Freedom has also got an amicus brief filed by the California Newspaper Publishers Association, which files its proposed brief (and application) on Friday.

During the afternoon on Monday, September 29th, the Court of Appeal (1) denies the application to file an amicus brief, and (2) issues a published per curiam opinion that elects to give plenary consideration to -- and grants -- the writ, holding that the court's order was an obviously invalid prior restraint.

That's not all. Late that same day -- though apparently published only the next morning -- the Court of Appeal realizes that they had forgotten to add a line in the opinion, and sua sponte adds the following to the end of the opinion: “The Register is entitled to its costs in this proceeding.”

Who says justice is invariably slow?