Genethera v. Troy & Gould, PC (Cal. Ct. App. - Feb. 27, 2009)

I don't know what attorney was advising Genethera -- the plaintiff -- and told it that it'd be a good idea to file a lawsuit against a law firm (Troy & Gould) based upon a settlement offer the law firm made in an underlying civil action. But I can darn sure tell you that it wasn't, and wouldn't have been, me.

Settlement offers are privileged. When you file a lawsuit based upon 'em, you'll get SLAPPed. And not only will the California Court of Appeal assuredly affirm -- as indeed it does here -- but you'll lose even more money (both your own fees as well as the other sides costs and fees) for filing the appeal. Which, of course, is exactly what happens.

Sometimes the best counsel you can get from a lawyer is: "Look, what the other guys did was wrong, but let it go." And sometimes the best counsel you can receive from an appellate lawyer is: "Yes, you lost below, but it's time to move on." You may not like this advice. But it's better -- much better -- than the lawyer who tells you how unjust the lower court was and how much he's going to fight for you. Which may well be what you want to hear, and perhaps make you happy for a while, but trust me that this joy will be insubstantial compared to the feelings you'll have once you lose yet again.

Get a good lawyer. Listen to him or her. Two practical pieces of advice.

McCoy v. Progressive Ins. Co. (Cal. Ct. App. - Feb. 26, 2009)

Maybe the owner burned his own car up. Maybe he didn't, and it was indeed stolen as he claims.

When there's not every much evidence of the former, and you're the insurance company that insures the guy for theft, you'd better pay his claim. Otherwise you're going to be liable for, inter alia, punitive damages. As Progressive Insurance Company discovers -- to the tune of $100,000 -- here.

Nazari v. Ayrapetyan (Cal. Ct. App. - Feb. 26, 2009)

What partions of the following do you think come from a real case, and what parts come from an absurd law school hypothetical:

"On March 27, 2003, defendant invited plaintiff to his house for tea. In the backyard, defendant offered to pick an orange for plaintiff. Defendant stood on a stool to pick the fruit, but lost his balance while reaching too far and fell. Defendant landed on plaintiff, who was leaning over to serve himself tea. The force of defendant's 215 pounds pushed plaintiff's face into the tea service that defendant had placed on a rock. The fall pushed plaintiff's left eye and cheek into the cups and tray. Defendant acknowledged that he had lost his balance on the same stool a couple of times in the past. . . . After trial, the jury rendered a special verdict finding that defendant was negligent and that his negligence was a substantial factor in causing plaintiff's harm. The jury found plaintiff sustained a total of $75,802 in damages. . . . The jury also found that plaintiff was 30 percent negligent. After subtracting plaintiff's comparative negligence, the trial court awarded plaintiff $53,061.40. Plaintiff moved for a new trial. . . ."

Give up? It's all true. The oranges, the stool, the rock, the verdict, and even the 215 pounds.

People v. Hayes (Cal. Ct. App. - Feb. 25, 2009)

What does "sharp" mean? It's not just an epistomological, linguistic or abstract question. It matters. Like here.

The defendant here gets convicted of violating Section 4502(a) of Penal Code, which prohibits convicts from possessing a wide variety of things in the joint -- e.g., "a blackjack, slungshot, billy, sandclub,sandbag, or metal knuckles," etc. -- including "any dirk or dagger or sharp instrument." Defendant partially melted down a plastic CD case into something that was rounded but a bit pointy at the end. You could surely use a "pointy" thing as a means of hurting someone. But is it "sharp"?

I think that Justice Sims gets this one exactly right. Maybe the instrument here was sharp, or maybe it wasn't. But the instruction read to the jury here -- in a case in which the "sharpness" of the item was hotly disputed at trial -- merely said that "a sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession." Uh, no. That's not what a "sharp" instrument is. At all. That instruction would (as Justice Sims correctly notes) mean that even a blunt baseball bat was a "sharp instrument" under the statute. Which it ain't.

The error was compounded by the prosecutor, who said the following at closing argument: ""Now, this next [instruction] here is probably the critical definition in the case. A sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession. That tells you that is what a sharp instrument is. Let me just repeat that. A sharp instrument is an instrument that can be used to inflict injury, that's the first part, and that is not necessary for the inmate to have in his possession. That's the central definition in this case. That tells you what a sharp instrument is. If the evidence meets that definition, we've proved that there is a sharp instrument." Which accurately summarizees the instruction, of course. But also proves why we've got to reverse.

Which just goes to show that, sometimes, highlighting why you should win at the trial court level ain't such a great thing once the case goes up on appeal.

"That pointy thing is sharp." "You're looking sharp today." "You're quite a sharp character." Same word. Lots of (uncertain) meanings.

In short, linguistics ain't only for Noam Chomsky. We ordinary folk sometimes have to delve into it as well.

People v. Bunyard (Cal. Supreme Ct. - Feb. 23, 2009)

This is not the longest death penalty opinion by the California Supreme Court (by far), and tops out at only 33 double-spaced pages. But I can shorthand it for you even more concisely:

"Dude, you paid your drifter druggie friend to blow away your nine-months-pregnant wife with a shotgun so you wouldn't have to give her any money in a divorce and could successfully marry your mistress. That's not a sympathetic story. Sure, back in 1988, you got your death sentence reversed by the California Supremes because the court told the jury at your penalty phase that the Governor could commute a life sentence. But the state on remand, not surprisingly, gave it another shot, and you were again sentenced to death. And 2009 ain't 1988. This time we're unanimously affirming."

P.S. - This is not to say that Bunyard hasn't gotten something out of this whole process. He's already bought himself 30 years since the 1979 murder, and has probably got at least another decade or so more to go of state and federal habeas proceedings before he's realistically looking at execution of his sentence. At which point, you'll note, we'll be whacking a guy in his 60s or 70s for something for which he was convicted 40+ years ago. Plus, assuming good behavior, the guy who actually committed the murder may well be out by then, since he got 25 to life as part of his plea deal. None of which is something we should be especially proud of.

McKay v. Ingleson (9th Cir. - Feb. 23, 2009)

The Ninth Circuit has said it once, and they'll say it again (and again). You've got to pay your student loans. Even if you go bankrupt. And even if your creditor is the University itself, who (like Vanderbilt University here) gives you the loan essentially in the form of a credit card, and at an inflated, credit-card like interest rate.

You have to pay.

Soto-Olarte v. Holder (9th Cir. - Feb. 23, 2009)

Want to see how you "distinguish" (read: overrule) prior circuit holdings without an intervening Supreme Court decision? Here's how.

The panel here holds that the IJ didn't have a substantial basis for finding the petitioner to lack credibility. Fair enough. Now what?

Well, there are a couple of prior Ninth Circuit cases that fairly clearly state that in such an event, you remand with instructions to adjudicate the petition on the assumption that the petitioner is credible; for example, a 1994 case called Guo, which stated: "Where an appellate court has held
that an IJ’s or BIA’s adverse credibility finding is not supported by substantial evidence . . . the proper procedure is to remand the case to the BIA for further consideration and investigation in light of the ruling that the petitioner is credible.” Seems pretty straightforward, right?

But the panel here doesn't especially like that rule, and instead wants to remand to give the IJ a chance to come up with additional reasons (if any exist) to find the petitioner uncredible. So it holds (1) that the prior circuit cases really didn't state a "rule" -- even though it might totally seem like they did (see supra) -- so the panel is free to do what it wants, and (2) in a related manner, if those prior cases did attempt to articulate a rule, that would have conflicted with other Ninth Circuit cases. Hence, the panel here holds, it's free to do what it wants.

So if you're a panel, that's how you avoid adverse circuit precedent.

What's especially interesting about this one is that it's not the usual "conservatives-limiting-a-prior-liberal-holding" or vice-versa. To be sure, the prior circuit precedent is what might be (bluntly) called a "liberal" holding. But the panel here hardly consists of right-wingers, and consists of Judges Willie Fletcher and Gould -- both Clinton appointees -- as well as Judge Noonan (who's a Reagan appointee, but who isn't uniformly conservative in immigration cases). So it's an interesting makeup.

Plus, the two prior opinions that Judge Gould has to "distinguish" are a case called He and a case called Guo. Though Judge Gould doesn't mention it, guess who not only authored the former but was on the panel in the latter? None other than Judge Willie Fletcher, who's on the panel here!

Which might, of course, lead one to believe that of course the cases have to be distinguishable, since he voted to do one thing then and another thing now. Or may alternately demonstrate that judges don't invariably realize the full ramifications of an opinion which they author or to which they sign on.

It'll be interesting to see what happens to this one. The ultimate holding of the panel isn't at all irrational (though a contrary rule is plausible as well). The big problem is circuit precedent. But for the composition of the panel, you might have a huge en banc call. But given the composition of the panel, and the knowledge that you've presumably already lost Judge Gould and Fletcher on the call (as well as, if they're drawn, both them and Judge Noonan on the ultimate result), the probability of a successful en banc vote here -- even if there is a conflict in circuit precedent -- is lower than it would ordinarily be.

Stay tuned. And even if nothing happens, it's still an informative -- and significant -- case.

Video Software Dealers Ass'n v. Schwarzenegger (9th Cir. - Feb. 20, 2009)

Seventeen-year old lovers of violent video games such as Grand Theft Auto: Vice City and Death Nukem 3D can rest easy. You've got a constitutional right to purchase and play such games, notwithstanding the resulting (alleged) impact on your personality. So holds the Ninth Circuit today.

This case is a perfect example, by the way, of the fact that the panel draw doesn't always matter, even in high-profile cases. The opinion is written by Judge Callahan, and joined by Chief Judge Kozinski and Judge Thomas. One might think that a eclectic panel consisting of a Reagan, Clinton, and Bush II appointee might disagree a lot. But the opinion is unanimous, and is about as big of a win for the plaintiffs as one could imagine.

So shoot 'em up, my young friends.

Christler v. Express Messenger Systems (Cal. Ct. App. - Feb. 11, 2009)

Contrary to the perception of some, not every class action settles. They don't always prevail at trial either. Here's an example.

P.S. - Want to know how those blue and yellow "California Overnight" boxes get picked up? Check out the opinion for that as well. Since the case involves that company.

Calemine v. Samuelson (Cal. Ct. App. - Feb. 17, 2009)

Just some practical advice for the day. When you're selling a home, and there's been a lawsuit about alleged damage to the home, don't just disclose the damage. Also disclose the lawsuit. Or potentially face another lawsuit yourself.

People v. Murillo (Cal. Ct. App. - Feb. 18, 2009)

Here are some teasers to try to persuade you to read this case:

(1) It's about a 21 year old woman having sex with a 16 year old boy, a relationship that started a year previously. So it's, in a word, titillating.

(2) The woman seems sincerely remorseful. At least at this point.

(3) Perhaps not surprisingly, the woman has "issues". Take, for example, the following: "Defendant admitted having an extensive history of substance abuse that began at age 12 with daily use of alcohol and marijuana. At age 14, she was using methamphetamines and LSD daily, and her use continued until recently. At age 15, she started using PCP and ecstasy. She stopped using ecstasy after an overdose. At age 19, she started using cocaine, and at age 20, she experimented with mushrooms. She reported that marijuana is her drug of choice, and she considers herself to be an alcoholic. Defendant further explained that as a juvenile, 'she used to injure herself by cutting on her arms, the last occurrence when she was 17-years-old.'" Yikes.

(4) Justice Rushing's opinion largely concerns a probation condition in which the defendant was ordered to take any prescriptions ordered by her doctor. And Justice Rushing does a great job explaining why this condition is overbroad. It's a nuanced and balanced opinion that really takes the time to explain things and to make sure to do the right thing.

So I recommend the opinion. A fine way to get over the shortened mid-week hump.

P.S. - Just so you know I actually read this stuff. Page 11, first paragraph: "On its face, the language of the requirement is clear an unambiguous." Let's add a "d" after the "an".

David A. Karton, A Law Corporation v. Dougherty (Cal. Ct. App. - Feb. 17, 2009)

Here's a case that reminded me of the old saying: "Pigs get fat. Hogs get slaughtered."

It's a case involving a default judgment against a client who owed an attorney -- David Karton (a Beverly Hills divorce lawyer) -- around $65,000 in unpaid fees and costs. And even though Karlton was able to recover around $56,000 within several months of obtaining a default judgment, over the years, Karlton was able to successfully increase that judgment to over $1.3 million through repeated cost and fee awards associated with collecting the original amount.

All, at least, until Justice Rothschild steps in. And takes it all away. All of it. Moreover, at the end, awarding costs to the client.

There are obviously two sides to every story. Just remember the part about the pigs and the hogs next time you're thinking that you're kicking legal butt.

Affiliated FM Ins. v. LTK Consulting (9th Cir. - Feb. 17, 2009)

It's the Tuesday after a long weekend. What better day to sluff off some work?! Or, to use the lingo we employ in the federal judiciary, to certify questions to the state supreme courts.

Truthfully, I'm often in favor of certification. Still, I thought that the timing of the orders was worth at least a tiny (good-natured) jab. The Ninth Circuit certifies two questions today. The first, in this published order, sends a case to the Washington Supreme Court. The second, in this published order, not only sends another to the California Supreme Court, but also withdraws the earlier published opinion on the merits (e.g., that avoids a potential en banc call).

We'll see what the Washington and California courts say. But I'll make a bet with you. My guess is that we'll get a substantive answer from the former a lot sooner than we will from the latter.

Winterrowd v. American General Annuity Ins. Co. (9th Cir. - Feb. 17, 2009)

Ever litigate a case in a federal district court outside your state? Lots of us have. Ever consult and/or help another lawyer in one of those cases? Not so rare anymore. Judge Milan Smith has a fairly good quote in this regard that's both accurate and worth repeating: "Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an 'age of increased specialization and high mobility of the bar.' Spanos v. Skouras, 364 F.2d 161, 170 (2d Cir. 1966). But in 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no emails, and the only person who had a two-way wrist radio was cartoon character Dick Tracy."

Why does this matter? Because there's a big fight about whether lawyers who practice outside of their jurisdiction -- perhaps in the background -- without being admitted pro hac vice are engaged in the illegal practice of law. So here, the question is whether an Oregon attorney who assists a California lawyer in an ERISA action in the Central District of California can be awarded atttorney's fees even though he's not a California lawyer.

As you might gather from the rhetoric employed by Judge Smith (which includes the line "Current law does not compel us to be judicial Luddites"), the majority opinion here holds that the Oregon lawyer can, in fact, recover fees. A holding by the Ninth Circuit that's bound to be near and dear to many lawyers (and I'll forthrightly concede my self-interest on this point) who similarly assist other lawyers in out-of-district litigation.

Judge Rymer, however, dissents. And makes some darn good points, not the least of which being how easy it is to be admitted pro hac vice and hence surely entitled to fees (as well as subject to discipline). Given that reality, she argues, why let someone lurk in the background? Why not make 'em be forthrightly admitted? Judge Smith doesn't disagree with the ease of pro hac admission (indeed, uses this point affirmatively in his analysis), but does not agree that this is a necessary prerequisite to recovery of fees. Hence the fight.

I think that the realities of modern litigation, as well as efficiency, augur in favor of Judge Smith's position. There are a variety of legitimate reasons why in-state attorneys might want to obtain the benefits of outside counsel without getting their contributors formally admitted pro hac vice, and I think that the federal system is flexible enough to permit such a result. We could surely discourage such a practice by refusing fees or making it illegal, but I don't think the upside is worth it. Nor do I think that the federal system is bound to state law on this point, particularly when (as here) the underlying matter concerns a federal issue. Federal courts are able to apply their own procedural rules, and this seems one of them notwithstanding the fact that it involves the substantive entitlement to fees.

The federal system is often more flexible and modern than state systems. This is especially the case in areas, such as those here, in which parochial concerns (e.g., a desire to advance the use of purely local in-state counsel) often motivate the state response to an issue. So I think it's helpful to do what Judge Smith does here. It makes for better representation. And that's always a good idea.

U.S. v. Autery (9th Cir. - Feb. 13, 2009)

With all the relevant holidays, it's been fairly slow lately in the appellate world. Nonetheless, here's something to think about as the new week begins.

You're on the district court. You've got a person before you who's guilty of possessing child pornography. He's a former law enforcement officer. He's got no real criminal history. He seems different (to you) than the other child porn criminals you've seen.

The guidelines call for around four years in prison. What sentence do you pronounce?

Judge Jones (up in Oregon) gives the defendant five years of supervised probation, with tough conditions and a warning that if he violates 'em, he'll get the maximum. Judge Milan Smith, joined by Judge Thompson, affirms, holding that this sentence is permissible. Judge Tashima dissents, holding that it's not nearly enough and hence constitutes an abuse of discretion.

Whatcha think? Child porn? Four years? No prison time? Who's right?

Musladin v. Lamarque (9th Cir. - Feb. 12, 2009)

Let me put today's 35-page (single-spaced) opinion from the Ninth Circuit a slightly different way than Judge Berzon does:

"We previously granted relief to this habeas petitioner because some spectators at his trial had worn prominent inflammatory buttons. But the Supreme Court took the case up and although we had some marginal degree of support in some of the concurring opinions, none of the justices went our way. So if we can't get a single vote in the Supreme Court on what we thought was petitioner's strongest claims, we aren't going to be able to do much for you on your subsidiary claims either. Sorry. It's not for a lack of trying. The district court's denial of your habeas opinion is affirmed."

POSTSCRIPT - I wish I could say more today, but with only one actual opinion from the Ninth Circuit and with the state courts closed for Lincoln's Birthday, that'll do it. Hopefully everyone's merely bulking up for Friday. For anyone who still has a job, anyway, after today's law firm carnage.

Citizen of Humanity v. Costco (Cal. Ct. App. - Feb. 11, 2009)

Here's an example of an appellate court that has a great deal of common sense and, for this reason, the ability to peer through facially reasonable b***s**t to see what's really going on. And yet, simultaneously, both able and willing to follow the law and let a cognizable claim go forward even when it's a stalking horse for something different. Confident -- and hopefully accurately so -- that the trial court will do the right thing.

The case involves high-end Citizens of Humanity jeans. (If you want to see what they look like -- plus a whole lot of belly buttons -- here you go.) They're jeans that sell retail for $200 or so, so you can imagine how the manufacturer felt when it discovered that they were being sold in Costco. For a whole lot less.

So they did what any good company in America would do; they promptly sued. Alleging in part a fraud claim (which Justice Croskey rightly rejects) that Costco must have gotten the jeans, as I'm sure they did, from one or more third party retailers who purchased the products from plaintiff and then resold them to Costco. A third-party route that was necessary, no doubt, because no way would plaintiff sell its fancy pants to Costco directly. Plaintiff contends this was fraud because it was allegedly in violation of an implicit agreement that the retailer would only sell the jeans in their own stores. Nope. Not true. Plaintiff's just trying to get around the (beneficial) rule that manufacturers can't control downstream sales. Sorry. No dice.

Plaintiff also alleges that Costco must have gotten the jeans "off the back of a truck" -- i.e., that Costco is selling stolen property. Does plaintiff in fact believe this allegation? No. Not at all. At least in my view, no objective person would view the evidence and come to such a conclusion. But then why make the allegation if you can't prove it at trial (or on summary judgment)? Because, my good friends, that way you can get discovery from Costco about who the actual suppliers are. And then promptly retaliate against them (e.g., by cutting them off from future sales).

Justice Croskey sees all this, and does a wonderful job explaining what is likely going on here. In a way that's far more tactful than I've put it, but I think we see eye-to-eye on this one. The trial court probably saw it the same way too, and granted Costco's demurrer on that basis. But Justice Croskey, to his credit, reverses on this point. Holding that the plaintiff has, in fact, properly alleged a cause of action. At the pleading stage, anyway. What happens later is another story. But, for now, the lawsuit should continue.

I think that's right. But I also think that the trial court (1) should make sure to limit any discovery so that any untoward objectives of the plaintiff are not realized; i.e., by permitting inspection of the discovery only by a neutral special master, or by entering an order that any retaliation by plaintiff would constitute contempt of court; and (2) seriously consider sanctions if faced with a proper 128.7 motion, if in fact it turns out that (as I strongly suspect) no way was Costco actually buying huge volumes of stolen property. I think that either or both of these approaches would do justice while simultaneously following the law.

Of course, maybe I'm wrong. Maybe the plaintiff is correct that Costco is a huge front for stolen property. Sort of like a brick-and-mortars version of ebay. And that Costco's attorneys are aware of this fact but are simply hiding their client's actual conduct behind a smoke screen of alleged privilege.

Maybe. But I strongly doubt it.

Cotton v. Expo Power Systems (Cal. Ct. App. - Feb. 9, 2008)

Want to see a case where both sides might as well flush money down the toilet for all it accomplishes?

Here you go.

U.S. v. Cruz (9th Cir. - Feb. 10, 2009)

I like how Judge Reinhardt begins this one: "At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not 'an Indian.'" Because he's right that I wouldn't ordinarily have thought that criminal liability turns upon this issue. But, yep, it still matters. Here, dispositively. Since Judge Reinhardt reverses the defendant's conviction on the ground that he's not an Indian.

So it's an interesting case from that perspective. Plus it's even more fun since Chief Judge Kozinski writes a whithering dissent. Some selected quotes to give you the tenor: "Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes trying to explain why the district court erred at all, the majority concludes in a single opaque sentence that the error is 'plain.' Just how plain can this error be when the majority has to struggle so long and hard to find any error at all?" Wait a minute. Huffing and puffing?! Hefty and chubby? Are you calling me fat?!

Or the concluding paragraph: "The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction." Sweet.

With anyone else, one might conclude from this exchange that there's a ton of bitterness betweeen these two. But come on. It's Alex and Steve. They're peas in a pod, even when they disagree. More importantly, both of 'em have more than enough self-confidence and thick skin to take it as well as they dish it out. So where others might see merely vitriol, I see two chambers smiling at the slams they've hurled towards the other.

Jamgotchian v. Slender (Cal. Ct. App. - Feb. 9, 2009)

My wife and I used to live very close to the Del Mar race track, which we saw during our daily walk around the neighborhood. Notwithstanding that fact, I've never actually been there, and my proximity to the track didn't give me much information about the logistics of horse racing, including all of the details regarding what horse races when.

But thanks to Justice Kriegler, I know a lot more now than I did back then.

It's a fascinating case, and involves a horse that was (allegedly) forced to race when the owner was adamantly opposed to the horse racing and repeatedly tried to scratch him. What's the relationship between the trainer and an owner? How do tracks put together races? What are the formal and informal deadlines for scratching a horse from a race? Justice Kriegler explains all this and more.

So if you're interested in knowing how yet another tiny piece of our complicated world works, here's another good one for you. Read and learn.

Dawson v. Marshall (9th Cir. - Feb. 9, 2009)

In 2005, when he's a magistrate judge, Judge Larson reviews Dawson's habeas petition and recommends its denial. Dawson then objects and seeks review (as is his right) by an Article III district court judge. In 2006, who in the Central District is assigned to review the objections to Judge Larson's recommendation? Yes, Virginia. None other than Judge Larson, who's now been elevated to the district court. Who, shockingly, agrees with his own recommendation.

Judge O'Scannlain says that's not reversible error. I understand his reasoning, but don't think I'm persuaded. Sure, Dawson got an Article III judge to take a look and make findings. But it seems to me there's an implicit temporal element there that's not satisfied here.

Imagine, for example, that after Dawson filed his objections, the Clerk for the Central District said "You already had someone who's now an Article III judge look at this. Denied." Surely that would be reversible error, right? You're entitled to have someone look at it who's an Article III judge at the time, it seems to me. To take another (I hope) uncontroversial example, if Judge Larson had been elevated to the Ninth Circuit or Supreme Court, surely it wouldn't be okay to have Judge Larson merely say "Yes, I agree with what I said as a magistrate judge" and thereby satisfy the requirement of Article III review. Even though, yes, he was an Article III judge at the time of the review.

If I'm correct about those two examples, then it seems to me that the same may well be true here. Sure, Judge Larson arguably "re-reviewed" his own findings as a magistrate judge. But even if reviewing your own findings technically satisfies the requirement of de novo review in some formalist doctrinal sense (i.e., "I didn't give my prior factual findings any deference"), it hardly accomplishes what we're looking for here, which is review by a qualified Article III judge who lacks investment in the findings.

Surely it wouldn't be okay if Judge Larson had, say, written a brief opposing Dawson's habeas petition while he was a private lawyer and then adjudicated the habeas petition himself once he was appointed to the district court, right? Even if Judge Larson had written (as here) a final report that was somewhat different in form than what he had previously authored, we wouldn't find that permissible. Ditto if Judge Larson's decision was reviewed by the Ninth Circuit and the panel included Judge Larson, either sitting by designation or after being elevated. No good, even though you Dawson would technically have gotten a fully qualified Article III appellate judge.

So I think that Judge O'Scannlain views this problem too narrowly. It seems to me that there's more at stake here than simply formal review by somewhat who now has Article III capacity.

Separately, even if I'm wrong, I think that Judge O'Scannlain is far too tentative when he says that "in our supervisory capacity over the district courts of this Circuit, we suggest that district courts avoid assigning new district judges to cases they handled as magistrates." I appreciate (and obviously agree) with that sentiment, but why merely "suggest" it?! At a bare minimum, I'd change the word "suggest" to "direct." The district judge and the magistrate being reviewed should not be the same person. Period.

Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd (9th Cir. - Feb. 4, 2009)

A train derails in Tyrone, Oklahoma, resulting in alleged damage to the cargo. What law applies to any dispute (including the relevant choice of forum) arising therefrom?

Let's see. Train. Derailed. Oklahoma. Hmmm. Let's make an educated guess. . . .

Wrong. Not even close.

The correct answer: Admiralty law.

What?!

Now, admittedly, I could have given a couple more relevant facts to hint at the right answer, at least in this particular case. But regardless of the facts, if you've have told me that there was a train wreck in Oklahoma and asked me to guess what law applied, the word "admiralty" would have come out of my mouth, I imagine, on the ten thousanth or so guess.

So cool. You learn something new every day.

Dixon v. Superior Court (Cal. Ct. App. - Feb. 4, 2009)

There was something that just didn't look right about this case. I was surprised, for example, that a "reporter" filed a California Public Records Act case seeking autopsy results and yet prosecuted the petition pro per. Not something you usually see. Plus, I noticed that the petitioner was granted in forma pauperis status. Sure, real reporters don't make a ton, but IFP? Seems like you could at least afford the filing fee (if you told the truth, anyway).

So I did a little digging. Then it all made sense.

You wouldn't get this from reading the opinion, but it turns out that the petitioner, Kathryn Dixon, is a former attorney. I say former because she's been disbarred. And the "book" that she's allegedly planning to write will probably look a little like this.

So I don't think the world's missing much as a result of Justice Davis' ruling that she doesn't get a looksie.

P.S. - I didn't realize it when I originally wrote this, but apparently this is not Ms. Dixon's first foray into the litigation world. Or even the California Appellate Report. This is what I wrote about Ms. Dixon's work as an attorney a couple of years ago. Boy, I was really mean back in the old days.

In Ms. Dixon's defense, I thought the current petition was actually plausible. I nonetheless somehow got a "vibe" from the thing that just didn't feel right. Guess now I know why.

U.S. v. Al Nasser (9th Cir. - Feb. 4, 2009)

Judge Kleinfeld writes an incredibly sophisticated opinion here. Better than I would have thought possible, and certainly better than I could have written. It has much to recommend it. (Plus, I liked the forthrightness of the first footnote, which reads: "Judge Ferguson dissented in our earlier decision in this case . . . . After Judge Ferguson’s death, Judge N.R. Smith was drawn to replace him. Serious questions raised by the petition for rehearing, Judge Ferguson’s dissent, and our colleagues within the court persuaded us to withdraw our earlier opinion and replace it with this amended opinion.")

But let me bottom line the opinion for you. Which has the following result.

I'm walking down the street. Two armed police officers suddenly appear six feet in front of me, draw their weapons, point them directly at my face, and scream: "Shaun Patrick Martin: This is the police! Get the f*** on your knees!!" I'm stunned, since I've done utterly nothing. A half second later, they scream: "Do it now, Martin, or we'll blow your freaking face off!" I'm convinced I'm about to be executed, and drop to my knees in the face of this overpowering government authority.

That's not a Fourth Amendment seizure, apparently. I've not been detained at all. Because, unknown to me, there was another "Shaun Patrick Martin" three feet behind me. And that's who the police were screaming at. So I was never "seized" even though I fell to my knees in the face of what any reasonable observer in my shoes would undeniably perceive to be a governmental detention.

Thought you should know.

Ramirez-Altamirano v. Mukasey (9th Cir. - Feb. 4, 2009)

Far be it from me to make more of things than is due. But is there something going on here that I should know about?

Last week, Judges Wardlaw and Ikuta got into a huge bench slap, something about which I commented here. Don't get me wrong; I like a spirited and vigorous debate, especially among able judges (as are both here) who are convinced that they're right and the other side's wrong. No problem. Bring it on. That Judge Ikuta writes a dissent and Judge Wardlaw the (underlying) majority opinion is far from earth-shattering, regardless of the strong rhetoric on both sides.

But then, today, I read this opinion. Again authored by Judge Wardlaw. Again with a dissent by Judge Ikuta. And while the language on both sides is a fair piece milder than the exchange last week (from Judge Wardlaw here: "The dissent’s reliance on Ramirez-Castro is both misplaced and misleading" and "The dissent’s cramped reading of these cases is unpersuasive"), it still got me to thinking whether there these two former O'Melveny colleagues were, say, less than generally persuaded by the other.

So I went back and looked up some of the opinions decided by this same panel on the same week as this one; i.e., when Judge Fogel sat by designation with Judges Wardlaw and Ikuta in Pasadena in the first week of May 2008. A task, I might add, made much more time-consuming by the fact that (1) the transition to the Ninth Circuit's new web site seems to have deleted all the historical calendars, and (2) the "advanced search" feature on the oral argument screen works as well as a rusted '26 Ford.

What does one find? Well, for one thing, the panel has already issued at least two opinions from immigration cases that were argued on the same day (May 5, 2008) and to the same panel (Judges Wardlaw, Ikuta, and Fogel) as the present immigration case. What transpired, you ask? Well, here, of course, Judge Wardlaw was in the majority -- which issued an opinion favorable to the alien -- and Judge Ikuta dissented.

What about the other two cases? In the first, Felix-Corona v. Mukasey, Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented. Deja vu. And in the second (Ky Lay Luong v. Mukasey), guess what? Judge Wardlaw was in the majority, which issued an opinion favorable to the alien , and Judge Ikuta dissented.

Boy, I bet the conference after the oral arguments on May 5, 2008 was a lot of fun.

I'm not going to even mention what transpired in the immigration case before the same panel two days later (Leppind v. Mukasey). Okay, I will. Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented.

I could go on. But this post is already long enough. Let's just say that it's always a good time in the Ninth.

People v. Bayah (Cal. Ct. App. - Feb. 3, 2009)

It's remained a slow day, with only a couple of opinions from the Court of Appeal. But this opinion allows us to at least play one of our favorite games (and a reminder of law school exams): Fill in the blank.

How do you think this one comes out: "Two versions of the facts were presented at trial: one told by the deputies who arrested defendant, and the other told by defendant. We begin with the version told by the deputies, which was, for the most part, ______ed by the jury."

Accepted? Rejected? You make the call.

Can I also just make one more practical comment, for any of the more criminally-minded readers out there. When you're driving your Honda Accord in Compton -- at the corner of Atlantic and Compton, no less -- and you've got (1) a lot of cash on you, (2) a fair amount of cocaine in your pocket, and (3) 29 packages of cocaine base in your car, you might want to make really darn sure that your taillights are working.

I know it seems a bit picayune for a bigtime crack dealer such as yourself to worry about taillights. But there's this little thing called probable cause. And, shockingly, the police are marginally aware of it. So when they see you with a "busted taillight", sometimes they like to pull you over. Even if -- and this may stun you -- they are not all that desperately concerned about the welfare of your taillight. And are instead using it as a pretext to stop, question, and search you.

Just a little friendly reminder. A little prevention can go a long away. And save you, say, eight years in the pokey.

San Diego Unified School Dist. v. County of San Diego (Cal. Ct. App. - Jan. 20, 2009)

It's a lazy Tuesday thus far. No published opinions by the Ninth Circuit or California Supreme Court today, and none yet by the California Court of Appeal. We'll see what the afternoon brings.

Meanwhile, for something a little different, check out a county school district suing its own county. It happens right here in San Diego.

Toxic waste makes not only strange bedfellows, but also unusual enemies.

Tin Tin Corp. v. Pacific Rim Park (Cal. Ct. App. - Feb. 2, 2009)

I imagine that sometimes the California Court of Appeal might want to say: "This case is complicated but really doesn't involve that much money at all. Can't the taxpayers just pay you to go away?"

As in this one.

It involves the interpretation of a dozen complicated commercial lease agreements, and involves claims and counterclaims by all the parties. The trial court found against everyone, and then everyone appeals.

Justice Elia holds that the trial court was largely correct, but also concludes that the plaintiffs were correct on their argument that the landlord shouldn't have been charging them for a total of $32,153.92 in LLC fees that the landlord paid the Franchise Tax Board between 2001 and 2006. So plaintiffs get their $32,000 or so. In return for which everyone pays their lawyers much, much more than this, and the judiciary spents a healthy fraction of this amount on both the trial and appellate resolutions.

But at least we get a published opinion out of it that tells us how to read the particular leases at issue in this case. Which is nice.

Insyst v. Applied Materials (Cal. Ct. App. - Jan. 30, 2009)

Electronic service (e.g., e-mail) may perhaps be good for some things. And if there's an attachment, that may perhaps be a close call, and sometimes work.

But merely providing a link doesn't constitute proper service. At least under the existing statutes. (Which, I might add, still need to be updated to reflect the realities of the modern world.)

That's Justice Rushing's call.