Belmontes v. Ayers (9th Cir. - Dec. 30, 2008)

You should read this one if only to read the concurrence of Judge Reinhardt (joined by Judge Paez) from the denial of the petition for rehearing en banc. Basically, Judge Callahan dissents from the denial in this death penalty case, and begins her dissent by noting that the underlying opinion was the third time the panel in the case had reversed the death sentence. Judges Reinhardt and Paez -- who were the majority of the panel -- do not like the implication. And respond in a classic (and exceptionally well-written) Judge Reinhardt fashion.

You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.

I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.

Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), and Idaho (N.R. Smith) joined the dissent. Add to that a judge from Oregon (O'Scannlain), a judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.

Think about that the next time people talk about splitting the circuit.

People v. Bradford (Cal. Ct. App. - Dec. 29, 2008)

People admittedly watch a lot of television. Including -- and increasingly -- cop shows. So there's no doubt that many suspects already know their Miranda rights if only as a cultural reference point.

Nonetheless, Miranda warnings are not designed to be a game show. Instead of simply reading the rights off the card (for from memory) -- a simple enough task -- the police here instead basically asked the suspect (often rhetorically) which rights he already knew about from television shows. Which I guess is fine (?), so long as he names all four of the relevant warnings. But, like some game shows, if you miss one of the answers, there's no proper Miranda warning, and thus a reversal of any resulting convicion. Which is exactly what happens here.

Let's not get to tricky in the future, okay? Just read 'em their rights. It's really not all that difficult.

People v. Olguin (Cal. Supreme Ct. - Dec. 29, 2008)

Anyone get a pet over the holidays? If so, make sure to tell your probation officer. Because the California Supreme Court holds that it's a permissible condition of probation for a DUI offense (!) to impose a continuing obligation to tell your probation officer of any pets you might have. That condition is "reasonably related to continuing criminality."

Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.

Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.

But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).

Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.

For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.

And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.

So let's all agree to at least take away fish and guinea pigs, shall we?

People v. Roscoe (Cal. Ct. App. - Dec. 26, 2008)

The day after Christmas. A time for family. For shopping. For rest. And for thinking about hopping on that treadmill. Surely not a day for issuing public opinions, right?

That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right. The Ninth Circuit's web site doesn't even contain its usual "No Opinions Filed Today" notation for the 26th. We see instead only something posted yesterday, December 25th (!), that says something different: "None Filed Today." Perhaps posted remotely. After a little too much eggnog.

But, like rust, the California Court of Appeal never sleeps. And dutifully published a single opinion this morning. It's a decision that affirms a multi-million dollar civil penalty against corporate officials under the responsible corporate officer doctrine. And that reminds me never to own a gas station. Ever.

Hope you had a good Christmas, John F. & Ned F. Roscoe. 'Cause the day after sucked for you. You may have hired some fancy lawyers (including Gibson Dunn) to try to help. But to no avail.

Here's hoping that 2009 is better than 2008 for you. And that you saved the receipts from the presents. Since you may well need the cash.

McGuire v. United States (9th Cir. - Dec. 24, 2008)

Show me the money.

Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action.

Unfortunately for this particular Jerry McGuire, litigating against the government is even more complicated than negotiating with the Arizona Cardinals. Yes, he initially won in the bankruptcy court. But the district court reversed, holding that his claims weren't ripe. And while the Ninth Circuit disagreed with that point, McGuire's win was only temporary, as the next section of the opinion held that his action was only cognizable in the Court of Claims. So remanded and transferred ye shall be.

So it's a mixed bag for our Jerry. Does he get his seven figures? Nope. Does his loss get affirmed? No, not that either. It's a remand for you, my friend. Enjoy the next season of litigation.

In Re H.E. (Cal. Ct. App. - Dec. 23, 2008)

In the spirit of the holidays, be thankful that the mother of your children is not like the mother here.

I only know what I read, of course. But I get far from a positive vibe about her. Far.

Salazar-Luviano v. Mukasey (9th Cir. - Dec. 23, 2008)

Let's read the first paragraph in the fact section of the opinion and see where we think this one is going. You can basically tell not only what the case is probably about, but also where the panel is likely headed. Here goes:

"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren."

Hmmm. Let's see. An immigration case, right? Yep. The U.S. is trying to deport him, correct? Yep. What equities did the court just introduce us to? He's elderly. He's been here a long time. He's been married for over thirty years. He's got lots of U.S. citizen children and grandchildren. I bet they're saying all this just so we feel really good when the court holds that we're forcing the guy out of the country, right?

Oh, wait. One more hint about how it comes out. It's two days before Christmas.

Yeah. This one's not too tough.

Patel v. Liebermensch (Cal. Supreme Ct. - Dec. 22, 2008)

Back in August 2007, the Court of Appeal down here in San Diego issued an opinion in a fact-specific contract case written by Justice Huffman over the very strong dissent of Justice McIntyre. The question was basically whether this particular contract was specific enough to enforce, with the majority thinking it wasn't and the dissent thinking it was.

Later that same day, I mentioned both the massive USD Law School connections of the participants, as well as the fact that I agreed with Justice McIntyre's dissent. Though noted that my opinion "with $3.50, will get you a cup of coffee at Starbucks."

But while my opinion may not matter much, the California Supreme Court's does. And, today, it unanimously agreed with Justice McIntyre (and me). In nine-page (double-spaced) opinion remarkable for its brevity. As if to say "Sorry, Justice Huffman, but this one's pretty easy. Those other guys got it right."

Somes, in extreme cases, the California Supreme Court will indeed get in the error-correcting business. This is one of those cases, IMHO. And I'd have done the same.

Carver v. Lehman (9th Cir. - Dec. 22, 2008)

Yes, I know that it's the holiday season. So, yes, you're busy. We all are. Nonetheless, you've got to read this one. It's an instant classic.

The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.

Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.

I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)

Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.

Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.

I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."

From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)

Great stuff. Simply wonderful. Read the whole thing and see what you think.

My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.

I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.

Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.

I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.

But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.

Anyway, a great -- and interesting -- debate. Check it out.

In Re R.C. (Cal. Ct. App. - Dec. 19, 2008)

Sometimes parental termination cases are difficult to even read (at least for me), as you're left with the firm -- and utterly depressing -- conclusion that none of the participants even have a whiff of a shot , and that the child both never had and currently has almost no shot whatsoever at a reasonable existence. And you don't know what to do betweenthe two available alternatives, both of which are terrible: leaving the child in a horrible foster care situation or giving the child back to an unstable and potentially harmful parent

Not here.

This is one of those cases where I have little doubt that Justice Irion (as well as Judge Isackson, down here in San Diego) got it exactly right. It's not that the mother here is horrible; I've seen far, far worse. But the child has a real shot here. It couldn't be clearer that his best interests are to be adopted, and he totally can be. He's a bright, cute, healthy, and completely lovable 11-month old child. He should stay where he is.

A ray of sunshine on a cold(ish) but beautiful Friday morning.

Van Horn v. Watson (Cal. Supreme Ct. - Dec. 18, 2008)

See someone stuck in a car crash and worried that the car might catch fire or explode? Don't pull 'em out. Or at least don't pull 'em out if you don't want to potentially get sued. 'Cause you can be.

I'm not saying that the 4-3 decision here is right or wrong. It's a statutory interpretation matter, and there are reasonable arguments on both sides.

I'm just telling you what the law is. There's no immunity, at least in California, for pulling someone out of a burning car. Giving 'em CPR? Yep. Immunity. Ditto for giving trying your hand at a tracheotomy with some scissors and a bic pen.

But trying to save someone's life in a different ("non-medical") way? Nope. No immunity. Not now, anyway.

People v. Mentch (Cal. Supreme Ct. - Dec. 17, 2008)

This may be surprising for those who know me as a relentless cynic, but I'm affirmatively proud -- yes, proud -- that I reside in California. There's a part of me that identifies with this Great State. I like it. I want to make it better. And I'm happy, and proud, when it does something good. (The flip side, of course, is that it makes me extraordinarily sad when it does something bad, but that's another story.)

Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion sua sponte in the way it did. Bravo.

A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. Not good enough, the Court said. Which made sense.

But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care before you start providing the pot. I thought that this part of the opinion was wrong, and explained why a couple of hours after the opinion came out. As I'm wont to do.

Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.

So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also sua sponte amends the opinion to add the following footnote: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."

Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.

I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.

So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.

People v. Yarbrough (Cal. Ct. App. - Dec. 17, 2008)

Sorry, my gun-loving friends. There's no right to carry a concealed weapon under Heller. At least in California.

This is not a surprise for anyone familiar with the Supreme Court's holding. The right to possess a gun in one's home for self-defense is a bit different from the right to possess a concealed weapon in public. But this is the first post-Heller appellate case in the California Court of Appeal to so hold. So I thought it was worth at least brief mention.

So, if you've got 'em, keep those weapons at home. Or out in the open.

Aguilera-Montero v. Mukasey (9th Cir. - Dec. 1, 2008)

You've been granted a full and unconditional pardon for your possession offense. But we're still going to deport you based upon that conviction.

Sarei v. Rio Tinto PLC (9th Cir. - Dec. 16, 2008)

Want to see how fractured an en banc opinion can be? Take a look.

It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.

You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.

People v. Martinez (Cal. Ct. App. - Dec. 16, 2008)

I spent a summer after high school living with my then-girlfriend at her parent's house in Canoga Park. It was both fun and memorable, especially for an unworldly kid from Virginia, and especially for one who had never before been to Southern California.

That said, I have somewhat detailed memories of Canoga Park. Which was not probably the abolute highlight of the experience. And, among other things, recall seeing the Canoga Park Wienerschnitzel -- a chain, among others, of which this East Coast boy had never heard a peep.

Based upon this (admittedly long-ago) experience, I can say fairly confidently that it surprised me not in the least that there were multiple gang-related murders at this establishment.

Check out the opinion for a fairly good discussion (by both the majority and the dissent) of the nature of gangs in the modern era as well as the legal implications of routine gang-on-gang confrontations. It's an interesting tale. Even for those who've never been to this particular Wienerschnitzel.

Lewis v. Superior Court (Cal. Ct. App. - Dec. 15, 2008)

Let me get this straight. A dude with the last name of "Lewis" is convicted of oral copulation with a minor under the age of 18. What's his first name?

Philander.

You can't make this stuff up. And I didn't.

Sklar v. CIR (9th Cir. - Dec. 12, 2008)

There's a difference between Orthodox Jews and Scientologists.

Or, to put it even more concretely, there's a difference between paying private school tuition to send your kid to a Hebrew Academy and paying whatever charges adult Scientologists pay for their "training" in Scientology.

The latter may be partially deductable as a charitable contribution. That former definitely ain't.

I'm sufficiently clear on these points to not need the Ninth Circuit to inform me of these facts. But it's good to know it doesn't disagree.

Seattle Affilliate v. City of Seattle (9th Cir. - Dec. 12, 2008)

I think that Judge Fisher beats Judge Ikuta in this one.

People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions. So, for example, sometimes you can close off the streets and let demonstrators walk a particular path, and other times -- for example, with very tiny protests -- you can make them use the sidewalks. That seems fine.

But the City of Seattle vests unlimited discretion in the Chief of Police to decide when a particular protest is relegated to the sidewalk and when they can use the streets. And that discretion has been utilized -- as one might expect with unlimited government discretion -- in a potentially abusive manner: namely, the Chief of Police has been much more likely to put greater restrictions on political marches (e.g., to limit them to the sidewalk ) than other types of marches (e.g., sports gatherings). So, for example, the Chief of Police has been more likely to say to political marchers "You've got to have at least 200 people show up to be able to march on the street" than to non-political marchers. And when the annual march against police brutality transpired in Seattle, guess what? Yep. Relegated to the sidewalk.

Judge Fisher says that statutory structure doesn't comply with the First Amendment. I agree. Judge Ikuta dissents, but I think undervalues the danger of unlimited governmental discretion in this critical area. I'd have little problem with a statute that says, for example, "Any march under 200 people must normally stay on the sidewalk, whereas any march with over 200 people may normally march on the street," and that provides for particularized exceptions for particular reasons. But I have a big problem with a statute that essentially says "Any march the Chief of Police likes can march on the streets, but any march the Chief of Police doesn't like has to stay on the sidewalk."

So, like Judge Gould, I'd have to vote with Judge Fisher on this one.

People v. Rodriguez (Cal. Ct. App. - Nov. 26, 2008)

Perhaps this case struck me harder than usual becuase my wife's a UNC fan (and graduate). Or maybe also because I know that, as a white guy, it wouldn't happen to me.

But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap.

The thought that you can be killed for utterly no reason other than that you're Hispanic and wearing the wrong color baseball cap seems even more profoundly wrong than the legions of other senseless killings I read about every day in the annals of the California Reporter.

A depressing, and telling, tale.

In Re Complaint of Judicial Misconduct (9th Cir. - Dec. 10, 2008)

There's more than one way to get your name in the Federal Reporter. For example, you can be an attorney and file a frivolous complaint of judicial misconduct. To which the Ninth Circuit will respond by (1) expressly admonishing you in a public forum, and (2) entering a prefiling order against you.

In short, if you waste our time -- the time of ten judges, I might add -- we'll make you look bad. Or at least we'll let everyone know how bad you look, Joseph Nascimento.

P.S. - Oh, yeah. We'll also alert the State Bar of Montana.

P.P.S. - A little research reveals that Mr. Nascimento may not be as adversely affected by the publicity as I might have initially thought, since he's (1) already pretty public about his (somewhat paranoid) allegations, and (2) is already indefinitely suspended from the practice of law.

Davies v. Sallie Mae (Cal. Ct. App. - Dec. 1, 2008)

If I was a law school graduate (which I am), and if I had gotten seven straight years of economic hardship deferments while I was working as an attorney (which I didn't), I wouldn't have filed a lawsuit against Sallie Mae when it boldly demanded that I actually start paying my loans.

But, then again, I'm not Eureka attorney Stephen Davies.

Regardless, even had I filed such a lawsuit, let me promise you that upon losing said action, I would not have filed an appeal. Lest the result be a published opinion that (a) affirms, (b) lets everyone in the world know that I not only lost, and (c) tells everyone that I didn't even repay my student loans. Which is hardly what a would-be client probably looks for in an attorney.

Yet that's exactly what happens here.

Societe Civil Succession Richard Guino v. Renoir (9th Cir. - Dec. 9, 2008)

Copyrights are not perpetual. So it's pretty darn rare, in this day and age, to see a copyright claim involving a series of sculptures created by Pierre-Auguste Renoir. Yes, that Renoir -- the French impressionist who made, inter alia, several $70 million-plus artworks.

After all, Renoir was born in 1841, and died almost a century ago. Surely there can't be any lingering copyright claims about his stuff, can there?

Yes. There can. And is.

It's actually an interesting IP puzzle. Which you should, in any event, read while you can. 'Cause litigation involving the copyright ownership of Renoirs ain't gonna be around indefinitely.

Hakopian v. Mukasey (9th Cir. - Nov. 19, 2008)

"I've got some good news and some bad news. Good news first. The United States was totally and completely wrong about your asylum application being time-barred. As was the immigration judge and the BIA below. So we're going to publish an opinion that not only makes that fact crystal clear, but that also preserves your name forever in the annals of the Federal Reporter.

Now for the bad news. We're also issuing an unpublished memorandum disposition. Which ships you back to Iran."

Sorry about that.

Marley v. United States (9th Cir. - Dec. 8, 2008)

It's always interesting to see the myriad of ways attorneys trick pro se litigants into losing their case. Like here.

Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U.S. writes plaintiff and asks him whether he'd like to dismiss the case "without prejudice," and included a proposed stipulation. After that tactic didn't initially work -- plaintiff didn't even respond -- the AUSA tried again, and this time, plaintiff returned the stipulation.

When plaintiff, now represented by counsel, subsequently refiled, the U.S. responded: "Sorry. The dismissal was without prejudice, sure. Like we promised. But you missed that as a result of the dismissal, you're now time-barred. And the statute of limitations is jurisdictional, so don't even try arguing equitable estoppel based upon our misleading you. Ha! We win."

And the Ninth Circuit agrees.

Fooling the unwary. Especially fun when the plaintiff has complications (allegedly caused by you) from prostate cancer.

People v. Zavala (Cal. Ct. App. - Nov. 24, 2008)

Sometimes it takes a subtle legal mind to evaluate the complex doctrinal and policy implications of a particular legal principle on appeal in order to assess whether or not the Court of Appeal will reverse.

Sometimes, not so much.

Here's the opening paragraph of the opinion. Knowing nothing at all about the appeal other than this first paragraph, and (even then) knowing absolutely nothing at all about the relevant legal principles at issue, see if you nonetheless can accurately fill in the blank:

"Eric Jones was punched, knocked out, and tied by his hands and feet, and he was beaten beyond recognition, stripped of his clothing, and shocked with electricity, and he was sodomized with a tool handle, put into the trunk of a car, and driven to a remote area, and he was dragged into a field and shot 10 times at close range, and he bled to death. Gerardo Zavala admitted to a detective his involvement in some, but not all, of the acts of abuse. . . . [and] a [] jury found him guilty of second degree murder, torture, and kidnapping and found two firearm allegations true. The trial court sentenced him to 18 years to life. We will ______ the judgment."

Tough one, eh?

Robinson v. Woods (Cal. Ct. App. - Dec. 4, 2008)

I like the strategy here.

Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause).

Plaintiff waits the full period to respond (rather than moving ex parte to take the motion off calendar) and then raises purely procedural/notice objections, and does not respond on the merits. At the scheduled hearing, the trial court concedes (as it must) that the mandatory notice wasn't given, so gives plaintiffs an extra four days to respond, on the theory that the 76 days they got plus the extra 4 then gives 'em 75 plus 5. And also finds "good cause" for a shortly-before-trial hearing date. Plaintiff again objects, and doesn't file an opposition on the merits. The trial court then grants summary judgment.

Plaintiff then appeals, raising (again) only the procedural points. And wins. Rightfully so. You can't do what the trial court did. Sorry, but you can't. It's mandatory 75 (+5) notice. Defendant didn't get it. Ergo the case gets reversed.

Now, mind you, you're still going to have to eventually oppose the summary judgment motion, since on remand, defendant will simply refile it, and give you the right amount of notice this time. So my first reaction was: why spend all the time (and money) to file procedural objections, and then have to file an appeal? What's the point? Aren't you being penny-wise and pound foolish?

Maybe. Indeed, here, that may well be the case. Since I get a sense that this is a tinier case with not that much money (or attorney's fees) able to be thrown at it.

But, in a different case (and perhaps even here), I can indeed see a legitimate reason for such a move. If you respond on the merits, of course, you risk the trial court saying -- as it surely would have here -- that you had 76 of the 80 necessary days, so can't so prejudice, and hence your objections are overruled. By contrast, if you limit yourself to the timing objection, sure, you may have to appeal, and thereafter have to respond to the merits upon remand.

So what do you gain besides (1) wasting your (and the other side's) time and money, and (2) just generally being a pain? What's the point?

Strategic answer: A new judge. Since you get to bounce the existing judge after the case comes back down from the Court of Appeal.

Again, I don't have a sense that this was actually motivating the parties here. (The fact that the defendant didn't even file a brief on appeal suggests, again, that what's really motivating these particular parties are economic constraints.) Nor does the Court of Appeal discuss what really may be going on. But procedural "sandbagging" in such a manner may nonetheless both be effective as well as worth it in a given case.

As Paul McGuire of the Bay Area post-hardcore band Karate High School famously proclaims: "Sometimes when you lose, you win."

Ekstrom v. Marquesa at Monarch Beach HOA (Cal. Ct. App. - Dec. 1, 2008)

I concede that I'm somewhat personally invested in this decision, since I own an ocean-view home and the case involves whether or not homeowners can enforce a CC&R that requires neighbors to trim any trees -- here, palm trees -- that exceed the height of the home and thereby obstruct the views of other homeowners. (That said, I both don't own one of these homes nor do I have any relevant CC&R's in my community. Plus, it'd be hard to obstruct my particular view with trees unless they somehow grew in the ocean itself.)

Regardless of my personal interest, however, I think that both Justice O'Leary and the trial court (Judge Margines in Orange County) got it exactly right. The CC&Rs here affirmatively require a homeowner to trim trees that grow above the house and obstruct views. Yes, fully developed palm trees look nice. And, yes, you can't actually trim them, because when you cut the tops off they die. So that's a bummer.

But that doesn't mean the HOA can simply refuse to enforce the CC&Rs by categorically exempting palm trees. Homeowners may permissibly rely upon the written CC&Rs when they buy a view home, and can assume that when the CC&Rs say that the view from their home won't ever be blocked by trees above other houses, that will in fact be the case, and those CC&Rs will be enforced -- either by the HOA or (as allowed by the CC&Rs here) through private litigation. Nor does the HOA get any deference when interpreting a straightforward and unambiguous CC&R. If it clearly says X, the HOA can't interpret it to mean "X except for Y". Sorry. Doesn't work.

I take no view on whether the palm trees in the area make the place generally look nicer. Regardless, when a covenant says you can rely on X, you can rely on X, even if X is a bad idea. (In that regard, can I mention that my home has a wide variety of totally absurd CC&Rs. Many of which expired in the early 1940s, but some of will operate forever to preclude me from, inter alia, brewing alcohol on the premises -- in short, from a wide variety of socially beneficial practices. I may or may not like 'em. But they're part of the deal.)

Andrzejewski v. FAA (9th Cir. - Dec. 3, 2008)

Melissa Andrzejewski may only be 22 years old (actually, 24 or 25 now), but she's a better pilot than you are. (Cuter, too, apparently.) Moreover, at least in a high-performance Zivco Edge 540, she may well be a better pilot than the people who watched her take off from the Butler County Airport in 2006. Two of whom thought she was hot-dogging it on takeoff, and the FAA on that basis revoked her license.

The ALJ reinstated the license, the NTSB reversed, and the Ninth Circuit reverses the reversal. In a decision that seems entirely right, and gives appropriate deference to the ALJ.

Mind you, do I think she was hot-dogging it? Honestly, probably yes. She was showing off her new high-performance aircraft to her family. Based purely upon what I've read, and upon what I might reasonably intuit about 22-year old pilots who perform in air shows and competitions and who are showing off a new airplane, I think it highly likely that she indeed did a couple of "wing wags" to her parents. Sure, she was able to muster a lot of friends and acrobatic pilots to testify "Well, no, in high-performance aircraft, what you thought you saw might actually be normal. You pedestrian plebes are simply not used to our fancy planes." But come on. I think I know full well what you did.

Still, I admit it seems harsh to revoke your license, albeit for a technically dangerous maneuver on takeoff. More importantly, Judge Bea is entirely right that you gotta give deference to the ALJ, who decided that the witnesses for Melissa were more persuasive than those of the FAA.

That's what factfinding is all about. Even when we think it's wrong, we defer. Maybe in particular cases that results in error, but that's the price of an otherwise good system.

So I agree with the reversal here. Though I hope Melissa is, at this point, a bit more circumspect. At least outside of air shows.

P.S. - Hot financee too!

P.P.S. - On a whim, I read the briefs. Which mention, inter alia, Melissa's prior license revocation (the year before this incident) for an illegal low-level flyby at a friend's wedding, the undisputed fact that she deployed air show smoke for her grandmother during the relevant events here, the testimony about the 80 degree (!) banking of the aircraft and rapid 45 degree ascention, etc. Sure, I read how Melissa's friends testified too. But oh my. (Again; nonetheless, Judge Bea gets it right.)

Java Oil Ltd. v. Sullivan (Cal. Ct. App. - Dec. 2, 2008)

December 2nd was a bad day for several people: (1) California attorney Andrew Dimitriou (see yesterday's post); (2) non-California attorney John Brown (albeit in 1859); and (3) California quasi-attorney Harold Sullivan.

The last of these three had a $3.1 million foreign judgment against him (issued by the Supreme Court of Gibraltar, no less) affirmed by the California Court of Appeal. Rightfully so, I might add.

And I say "quasi-attorney" not because Mr. Sullivan hasn't passed the bar -- he did, long ago -- but rather because he's not currently entitled to practice law in California. As his increasingly-colorful disciplinary record amply reveals.

Which, wholly apart from the merits (the issue in the CoA was simply whether the foreign judgment was entitled to recognition) makes you think that the Supreme Court of Gibraltar might not have been entirely wrong to enter the $3.1 million judgment against him in the first place.

Huschke v. Slater (Cal. Ct. App. - Dec. 2, 2008)

Oh, sure. Make me look bad, California Court of Appeal. Immediately after I take umbrage at nothing being published today by either you or the Ninth Circuit, go ahead and publish five different opinions. Geeze.

At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though. Who's the principal subject of one of the published opinions today. Something that hardly made his day. Or week. Or probably year.

The problem is this: Dimitriou was the counsel for appellant in a tiny little appeal involving discovery sanctions of $6,382. Dimitriou filed the appeal and briefed the case, and since the case wasn't worth briefing, respondents elected not to respond. All of which is fine.

So the Court of Appeal asks if anyone wants oral argument, Dimitriou says he does, so it gets set for oral argument on September 16, 2008. Again, all okay.

The day before the oral argument, however, an associate for Dimitriou faxes the Court of Appeal a letter that says the parties settled the case back in 2007.

Oops. What about Rule 8.244, which requires the appellant to promptly let the court know if the case has settled? Or the reminder of that rule in the oral argument request the Court sent out?

The Court of Appeal wants answers to these questions as well. To which the parties respond in a manner that's worth reading about at length, but to summarize, the Court of Appeal is seriously -- seriously (and, IMHO, rightly) -- dubious of Dimitriou's veracity, and even if everything that Dimitriou says is correct, what he did was still a violation of the rules.

So spank him we shall. To the tune of $6,000 in sanctions, payable to the Court of Appeal. Plus reporting the thing to the State Bar. And, to boot, a published opinion.

Why? Because you violated the rules. And, on a personal level, because we don't want ourselves and/or our clerks to write complete opinions (ready-to-go at oral argument) for cases that settled long ago.

So more lessons for the day: When the case settles, tell the Court of Appeal. Like, immediately.

Or suffer the fate of Andrew Dimitriou.

P.S. - Check out the (ironic) last paragraph of his three-paragraph self-description on his web site. Which begins with the sentence "He has lectured extensively on legal ethics . . . ." My sense is that those many invitations to lecture on legal ethics may dry up a little bit at this point.

Lee v. An (Cal. Ct. App. - Nov. 19, 2008)

No published opinions today (at least thus far). What's the occasion? I know it's not Nevada Day. No opinions due to Special Education Day? Or the International Day for Abolition of Slavery? Or maybe we're celebrating the 185th anniversary of the enunciation of the Monroe Doctrine. Or the first controlled atomic reaction (in 1942)? The list is endless.

Regardless, even if everyone important is off doing other things, the rest of us can still obtain knowledge. So here's something worth remembering:

Don't blow off a case management conference.

Or, at a minimum, don't wait two years to complain about the consequences of blowing it off.

Lesson learned.

People v. Rubin (Cal. Ct. App. - Dec. 1, 2008)

Dude, I know you like weed. A lot. Really a lot.

You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.

However, my friend, attention begets attention. In this case, from the LAPD. So when you open the aptly-named "Temple 420" in Hollywood, please tell me that you were not surprised when an undercover cop came in to purchase some weed. A facility in which you (boldy) planned to sell marijuana, inter alia, in vending machines. An idea that I'm sure sounded really good when you were totally high.

Unfortunately, reality has a dangerous way of intruding sometimes. So you were busted. And your effort to claim that you were immune from prosecution under RFRA totally -- and predictably -- failed. Regardless of whether you have a personal religious right to use, you can't sell the stuff. Even if you sincerely believe that everyone would perhaps be a lot closer to God if they were thoroughly baked.

Sorry about that. Affirmed.

Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)

It's a random point, but I just wanted to share how much I appreciated footnote 3.

The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.

Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).

What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."

You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.

But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?

More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?

Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.

So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.

A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.

P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.

U.S. v. Murillo (9th Cir. - Dec. 1, 2008)

You want to know how you can tell when the Ninth Circuit doesn't like you? When it, inter alia, starts issuing published opinions that (1) reverse your judgments, (2) without the need for oral argument, (3) in two brief paragraphs, and (4) that further remand the case to a different judge.

Such is the fate of Judge Real.

Yet again: Feel the love.