U.S. v. Kilbride (9th Cir. - Oct. 28, 2009)

There's a lot about Judge Betty Fletcher's opinion in this case that's very good. Including a nice (and accurate) primer about how lower courts properly interpret and apply precedent from a fractured Supreme Court opinion in which there's no majority opinion. Plus a good application of those principles as applied to the present case, which involves (inter alia) obscenity convictions in an internet spam case in which there's a huge fight about what "community" a jury is supposed to use in applying "community standards" when the alleged obscenity is transmitted over the web to a gazillion people.

But what I especially liked, wholly beyond the doctrinal stuff, was the mere fact that these two spammers -- Jeffrey Kilbride and James Schaffer -- get sentenced to do real time (around five to six years each) for their conduct. The dudes sent out unsolicited porn to so many people that the FTC alone received 662,000 complaints. Do you realize how much spam you have to send out to get over half a million people off their butts to complain? Wow. That's a lot of spam.

My in box thanks you, United States. So does my wife. Two less worldwide spammers is a good start. As is the deterrent to others.

People v. Tuggles (Cal. Ct. App. - Oct. 29, 2009)

Read pages 4 through 12 of this opinion and see if you had the same reaction that I did.

My reaction was an immensely palpable sense that even though I'm on the same planet (indeed, in the same country and even the same state) as every one of the participants, I nonetheless live in a totally -- completely -- different world. What occupies their thoughts and minds and days is just radically different from mine.

For some reason, I was just especially struck by the fact that individuals from the same species and (rough) geographic areas can have such completely different lives. And, needless to say, felt like I have the much, much better end of things.

311 South Spring Street Co. v. Dep't of General Svcs. (Cal. Ct. App. - Oct. 28, 2009)

Here's a hypothetical. Tell me how you think it's should come out.

Landlord rents office space to Tenant. Tenant breaches the lease and stops paying, and Landlord sues. Landlord wins, and the trial court enters a judgment against Tenant for $5.4 million plus 12 percent per year postjudgment interest. Tenant never objects to that rate, but does appeal the merits, an appeal that Tenant loses in the Court of Appeal (in which, again, Tenant never objects to postjudgment interest). No petition for review is filed, the remittitur issues, and shortly thereafter, Tenant sends Landlord a check for the judgment. But not for the whole thing; Tenant unilaterally decides to limit the interest to 10 percent a year, deducting over $440,000. Landlord says: "No way. Where's my extra $400K+?" Tenant says: "The interest rate should have been legally limited to 10 percent under the California Constitution, and even though we never raised the issue, we're raising it now -- post-remittitur -- and refusing to pay." Landlord files (and the trial court grants) a motion compelling Tenant to satisfy the full amount of the judgment awarded by the Court. Tenant appeals, and attempts to collaterally attack the final judgment on the ground that the postjudgment interest rate should be 10 rather than 12 percent. Landlord opposes the appeal and asks for sanctions for a frivolous appeal.

Two questions. (A) Who wins: Landlord or Tenant? (B) Does Tenant get sanctioned?

Ponder that. My prediction, on this straightforward set of facts, would be that Landlord would win and that Tenant might well be sanctioned. Tenant had its appeal but never objected in any forum to the interest rate. That judgment's now final. It's got to pay.

But I'd have been wrong. At least if the case was before Justices Mallano, Rothschild and Johnson. The Court of Appeal holds that since the postjudgment interest rate was in excess of the court's "jurisdiction," it can be collaterally attacked even after the judgment is final.

I've fiddled with the facts a tiny bit; here, Tenant is a state agency (the Department of General Services) and the relevant interest rates are 7 and 10 percent rather than 10 and 12. But the holding here -- based on "jurisdiction" -- would be equally applicable to private parties as well.

Interestingly, I think that if the case had been a private party, the panel might have come out a different way. Indeed, might have sanctioned the Tenant. Because private litigation would have had a different "feel" to it even though the relevant jurisdictional principles are identical. But my sense is that the Court of Appeal's jurisdictional spidey-sense got all tingly when the issue was whether an agent of the state should be forced to pay what's pretty clearly more than they should. The rate should have been 7 percent.

But, of course, the State should have argued this below. Or on appeal. Or at any time before the decision became final. And didn't. There's a big freaking finality interest to judgments. One that is obviated by the Court of Appeal's holding here.

Now I readily concede that deciding what's "jurisdictional" (and hence potentially subject to a collateral attack) and what's not is freakishly hard. Academics have started to grapple with this issue in some depth in the last decade or so and it's an incredibly tough field even for those of us with plenty of time on our hands and who devote ourselves to the subject. It's even more tough for individuals (like Justice Mallano) who've got to decide hundreds of disparate cases a year.

That concession aside, I don't that, properly interpreted, the issue here is in fact jurisdictional in the sense of allowing a collateral attack. I think that Justice Mallano -- like many others -- gets slightly blinded by the fact that the 7 percent rate is a constitutional limitation, which (especially when combined with the fact that it's a limit) makes the thing sound mighty jurisdictional.

But that's not enough, nor does it authorize collateral attacks. There are lots of limits in the state constitution, for example, on judicial power, all of which are analogous to this one and all of which we'd easily recognize aren't jurisdictional. Article 6, Section 13, for example, says that courts can only set aside (or grant a new trial) a judgment for an instructional or evidentiary error when there's a been finding of a miscarriage of justice. Assume that, notwithstanding this provision, a trial court granted a new trial (or set aside a judgment) on some other grounds, without finding any miscarriage of justice, and the now-losing party filed an appeal that only raised other objections to what transpired below (e.g., the judge should have been disqualified, etc.), never mentioning the relevant deficiency. After losing in the Court of Appeal, years later, they refuse to pay the judgment and want to raise the new issue of the new trial grant, claiming that the trial court had no "jurisdiction" under Article 6 to do what it did. We'd all readily agree, I think, that this argument would lose; they had their chance to raise this issue, they didn't, and the trial court's alleged error didn't deprive it of jurisdiction or the judgment of legitimate finality. Doctrinally, however, this hypothetical is the same as the "jurisdictional" deficiency here -- both are limitations established by the state constitution on judicial acts, so if one's in the form of jurisdiction, so's the other.

Here's a briefer hypothetical about Article XV itself -- which concerns "usury" and is the precise constitutional provision that contains the 7 percent limitation at issue in the present case. That part of the California Constitution says that, generally, the rate of interest on a loan can only be 7 percent, with various exceptions. Imagine that Alpha loans Beta $100,000 for a year at a rate of 10 percent under a written contract, a year later Beta pays Alpha $107,000, and Alpha sues for the extra 3,000 owed. Beta never argues, either below or in the Court of Appeal, that none of the constitutional exceptions apply, but instead just says "I paid it" or "statute of limitations" or other meritless defenses, which the trial court rejects, a decision affirmed by the Court of Appeal, and the decision becomes final. I have no doubt that we wouldn't allow Beta an additional shot at avoiding this final $3000 judgment even if Beta said -- as the DGS did here -- that the $3000 award was in "excess of the court's jurisdiction" under Article XV. Yep, as here, Article XV did in fact say the $3000 was a no go. But you had your chance to so argue and didn't. It's final. The appeal to "jurisdiction" doesn't work even though this is, as here, (1) in the constitution, and (2) can in one sense be viewed -- in precisely the way the Court of Appeal views the present case -- as a "limitation" on judicial power to award above 7 percent interest.

There are indeed jurisdictional things that can properly be collaterally attacked. Subject matter jurisdiction is the classic example. But this ain't that. For reasons that might require legions of law review articles to fully and properly explain; and even then, one might rightly still be more than a bit uncertain about the distinction between "jurisdictional" (in the sense of permitting a collateral attack) and "non-jurisdictional" deficiencies. But even not being the world's expert in this incredibly difficult area, I think that the present case falls somewhat readily on one side of the line and not the other. And it's not on the side adopted by the Court of Appeal.

To reiterate: I'm not harshing on Justice Mallano. This is tough stuff. And I totally see why the Court of Appeal comes out the way it does as a descriptive matter. When something seems to be the kind of thing that involves judicial power, especially when it's part of the constitution, and to put the icing on the cake add the doctrinally irrelevant but nonetheless distracting complexity of potential sovereign immunity, I totally get why the Court of Appeal does what it does.

But that doesn't make it right. And while, as a taxpayer in California, I'm sort of happy we don't have to pay this particular landlord an extra $440,000, as a principled guy, I'm forced to admit that I think that's what we rightly owe. Not because we truly owe it -- the relevant cap is indeed seven percent. But because our lawyers were stupid and didn't argue it when they should have.

I've got another interesting piece of the opinion about which I'd ordinarily make a big deal that arises out of the third-to-last paragraph, in which the Court of Appeal somewhat boldly decides not to follow a holding of the California Supreme Court (on this exact point) on the ground that this 1944 decision was "incorrectly decided." But I've said way too much already. I'll leave that separate issue regarding the allocation of precedential responsibility (which is also complicated, and on which the Court of Appeal is much less wrong, if wrong at all) for another universe. One in which I've been far more concise than I've been in this one.

Cohen v. DIRECTV (Cal. Ct. App. - Oct. 28, 2009)

I'm glad that the Court of Appeal decided to publish this opinion. I guess. Because it clearly meets the standards for publication. Even if that's because its holding seems profoundly pernicious.

It's a class certification case. DIRECTV allegedly heavily advertised that the channels in its HD package "were in the . . . 1920x1080i standard and at 19.4 Mbps," but in an attempt to reduce bandwith racheted down to 6.6 Mbps and no longer met the 1920x1080i standard. So plaintiff brought a class action that alleged, inter alia, unfair competition. Which is all they could allege because, not surprisingly, there was nothing in the standard (DIRECTV-drafted) contract that obligated DIRECTV to do what it advertised.

You'd think this was a pretty straightforward class action. But the trial court denied the motion for class certification for lack of an ascertainable class (which the Court of Appeal correctly held wasn't the case) as well as failure to establish commonality. And Justice Bigelow's opinion says, yep, the claims aren't common enough for a class since there's no proof that everyone in the class relied on (or even saw) the advertising at issue, or even knows what the 1920x1080i standard is or what 19.4 Mbps means. (And DIRECTV helpfully submits affidavits from selected individuals in its tens of thousands of consumers that indeed prove that a lot of them are not very bright.)

What the Court of Appeal says is, of course, true. It's also true also for pretty much every single false advertising class action in the universe as well. You can never establish that everyone in a class of consumers saw or relied upon an advertisement. This apparently means that you can't have class actions involving such claims, since you'll never be able to establish commonality (and if you limit the class to only those who saw and relied upon such advertisements, you've now lost on ascertainability).

So apparently companies like DIRECTV entirely get off. Or, to put it more accurately, they take a hit from those one-in-a-million customers who bother to file a lawsuit for $39.95 or so, but it's totally worth it, since the savings are well-worth the expense. Why not, at this point, advertise "DIRECTV -- Super HD, In Three Dimensions, With Syrup and Free Chocolate Milk" despite the fact it's totally not true. You can't prove commonality there either, right? Because surely some customers didn't see the ad and/or don't like chocolate milk anyway.

I agree that causes of action that require reliance -- as most do -- create a problem of proof in class action cases. But I don't think that the solution is to simply refuse to certify the plethora of cases in which such allegations are made. The holding here seems to me to be wrong if only as a matter of policy (and since this is mostly common law stuff, that's saying a lot). It seems to me that for commonality, it's sufficient if there's proof -- perhaps from the nature and contents of the advertisement itself -- that much of the class would indeed have relied, at least in part, on the claims therein.

Now, does that exist here? Maybe, or maybe not. But it's too simplistic to say -- as Justice Bigelow does -- that there's no commonality because there's no proof that everyone saw or relied upon the particular practice at issue (or that reliance would be one issue among many that would have to be addressed at trial). Yep, that's an issue. But it shouldn't kill class actions. Especially in situations where a jury might rationally find reliance by viewing the advertisement itself, by using its common sense and experience as consumers, and by hearing from (say) thousands and thousands of potential witnesses that, yep, we indeed relied upon the thing and here's why it was important to us and others like us.

That seems to me class actions that we like. Especially when, as here, you're talking about small claims that we all know full well ain't gonna be litigated at all -- even if valid -- if you don't allow aggregation in a class setting.

Let the defendants move for summary judgment, or prove at trial that there probably wasn't widespread reliance. But don't boot the thing at the certification stage merely because it's surely the case that even if 99,000 relied upon Advertisement X, there are 1,000 others who didn't (and defendant has affidavits from 10 of the 1000).

So this one's unanimous. And now published. But I'd have at least been more nuanced, and may well perhaps have gone the other way.

P.S. - I feel a tiny bit bad about saying all this, since I don't think I've ever commented on an opinion by Justice Bigelow -- who was elevated only a little over a year ago -- and hate to start out this way. That said, I think what I think.

Law Offices of Andrew Ellis v. Yang (Cal. Ct. App. - Oct. 27, 2009)

Think that the other side's anti-SLAPP motion is going to prevail? Forgot (or were unable) even to file an opposition to the motion?

No matter. You may perhaps have to pay their attorney's fees and costs. But as long as the court hasn't yet issued a tentative, you can still dismiss the lawsuit without prejudice and file it again -- indeed, you have an absolute right to do so, and the court is thereafter without jurisdiction to decide the anti-SLAPP motion.

To be sure, this is far from an absolute victory on your part. But you do live to fight again.

Mohamed v. Jeppesen Dataplan (9th Cir. - Oct. 27, 2009)

Even beyond its mere presence (which is significant itself), there are two additional things worth mention about the Ninth Circuit's order this morning that took en banc the "private lawsuit against enhanced interrogation" opinion.

First, this shows both the upside as well as downside of getting a really good panel draw. As I mentioned when the opinion first came out, this was a very pro-plaintiff (i.e., left-of-center) panel. That's good for initially winning. But it has its downsides when it comes to the en banc vote, since it's not only people like me who can recognize a panel's particular tilt. Something that makes an en banc vote more likely, particularly (as here) in a high-profile, politicized case.

Second, the en banc order is exceptional for the number of judges recused. Some of the judges who recuse themselves do so for the typical reasons; e.g., Judge Reinhardt because the ACLU is counsel to the plaintiff (his wife is the executive director of the Southern California ACLU). But you've got others here that are case-specific; e.g., Judge Bybee, who's name by now is virtually synonymous with enhanced interrogation. Add to these two Judges McKeown, Gould, Milan Smith, and Ikuta and you're looking at 7 total recusals -- a really high number, and something you don't usually see.

So we'll see how this one comes out in the en banc process. It's bound to let a lot of attention.

People v. Munoz (Cal. Ct. App. - Oct. 13, 2009)

Here's a lesser known downside to performing a drive-by shooting: You may miss and end up accidentally shooting your own cousin in the chest.

You're not psyched about spending 58+ years in prison. You're even less psyched to be doing so for shooting someone you like and had no intention of harming.

Consider this argument 45 of 2300 against pulling a drive-by.

Myers v. Trendwest Resorts (Cal. Ct. App. - Oct. 26, 2009)

It's a tale of two cities. Or, here, a tale of two different versions, and two different takes.

On the one hand, we have plaintiff's factual recitations and arguments on appeal. Which assert that plaintiff was severely sexually harassed and that the trial court should thus have granted a JNOV notwithstanding the jury's finding of no liability. It is, according to plaintiff's counsel, an easy case.

On the other hand, we have the actual evidence at trial, alongside the applicable standard of review. Which together make it crystal clear that the motion for a JNOV was properly denied.

Which Justice Sims amply understands. He's also not very happy with plaintiff's counsel's inability to follow these principles. And tells them so. In spades.

So, for example, check out these quotes, all of which are directed at counsel for the plaintiffs, Stephan Williams and Daniel Bartley:

"[Plaintiff's] statement of facts gives the impression that little else occurred at trial other than her direct examination during her case-in-chief. . . . [W]e shall highlight a few of the most glaring omissions from [her] statement of facts. . . . [Justice Sims then goes on to write ten full pages of devastating comparisons between plaintiff's version of events and the contrary evidence at trial introduced by defendant.] . . . . Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings. . . . [Plaintiff's] opening and reply briefs fall far short of complying with the rules regarding statements and discussions of evidence adduced at trial."

Justice Sims then goes on to describe a litany of other sins of plaintiff's counsel. Arguing things that were waived/forfeited below. Failing to include citations to the record. Misrepresentations of evidence. Stuff like that. Stuff that you definitely don't want directed at you if you ever hope to do credible appellate work again.

Plus there's the discussion of some of the merits. Including plaintiff's novel assertion that once you admit, in connection with a summary judgment motion, that a fact is "undisputed" for the purposes of that motion (e.g., because you're the moving party and have to admit that the other side's evidence raises a certain fact), you all of the sudden have conclusively admitted that fact at trial. Absurd. As Justice Sims rightly holds.

Continuing the "tale of two cities" analogy, so you have this huge number of slams directed at the counsel for the plaintiffs. Then, in two different places, Justice Sims goes out of his way to throw compliments towards the trial judge. Including the final section of the opinion (Section X), which states in its entirety: "We commend the trial judge, the Honorable Brian R. Van Camp, for doing an exemplary job on a case presenting some difficult legal issues."

This, mind you, after Justice Sims (and the panel) had, two years ago, reversed the grant of summary judgment to the defendant by a different judge.

Given this history, Ms. Myers might well have thought that she'd have a sympathetic panel here. Perhaps also that Mr. Williams, who represented her in the prior appeal, would do equally well in the present case.

Not so. Indeed, far from it.

U.S. v. Rivera-Alonzo (9th Cir. - Oct. 26, 2009)

Sometimes judges write an opinion so that it seems obviously correct, while relegating the only relevant discussion -- an analysis of the losing side's best argument -- to a footnote. That's what happens this morning.

Check out footnote four. Judge Randy Smith writes a good opinion, and I'm not saying that it's necessarily wrong. But defendant's best argument that he's entitled to a lesser included offense instruction is based on a previous Ninth Circuit case called Arnt -- a case that's not too different from the present one, and in which the court held that a lesser included offense instruction was required. And Judge Smith confines his discussion of this central case to a single footnote.

For good reason, since his attempts to distinguish this case are fairly lame.

Judge Smith first says that "[u]nlike Arnt, the present case does not involve a killing. Therefore, the constitutional concerns arising from a capital case [which Judge Smith discussed in the previous footnote] are not present in this case." That's true. But Arnt wasn't a capital case either, and held that even without those concerns, a lesser included offense instruction was still required. Moreover, not only does a "killing versus nonkilling" distinction not exist in any lesser included offense doctrine, but such a distinction would also be manifestly silly. So this purported distinction of Arnt clearly doesn't work.

Judge Smith's only other attempt to distinguish Arnt in the footnote asserts that "the jury in this case was not forced to choose between convicting Rivera of one offense supported by the record and acquitting him of everything. The district court instructed the jury on felony assault on a federal officer using a deadly weapon and felony assault of a federal officer involving physical contact, which carried a significantly less severe sentence. Thus, the jury was not precluded from reaching a compromise verdict supported by the record by the lack of instruction on a still less serious offense not supported by the record." True again, as far as it goes.

But this again utterly fails to distinguish Arnt, since the same was true in that case as well. Here, Rivera-Alonzo's jury could have found him of X (a greater offense; here, assault with a deadly weapon) or Y (a slightly lesser offense; here, assault with physical contact), but Rivera-Alonzo wanted them to be instructed on Z, an even lesser lesser-included offense than Y. Judge Smith says that you're not entitled to be instructed on Z because the jury can already acquit you of the greater offense X and convict you on Y -- which is exactly what transpired here.

But that's exactly what transpired in Arnt too. There, Arnt was charged with murder (X, the greater offense) as well as voluntary manslaughter (Y, the lesser offense) and, as here, the jury acquitted on X but convicted on Y. But even though there were both X and Y, the Ninth Circuit still held that a lesser-included offense instruction was required on Z (involuntary manslaughter) in Arnt, for reasons that clearly belie Judge Smith's attempt to distinguish it.

That's it. That's what the footnote says. Two arguments that simply don't work.

Again, this is not to say that the present case is wrongly decided. It was indeed difficult to argue that a jury could rationally find Rivera-Alonzo guilty of simple assault but, on the facts presented at trial, acquit him of the greater offenses. But Judge Smith's purported distinctions of Arnt not only seem to me demonstrably wrong, but by relegating them to a footnote, it almost seems like Judge Smith knows they're wrong (or at least incredibly weak). And that the opinion will seem pretty clearly right as long as you respond to defendant's best argument in a part of the opinion that most people will skim over rather than respond to it directly.

This is also, I might add, how bad law gets created. By creating distinctions that make no sense (and that don't exist) in order to avoid doing the (admittedly hard) work necessary to rationalize precedent and come up with something coherent.

So the opinion sounds right. It sounds good. But there's something lurking here. Something that's not so good, that hurts more than helps, and that avoids doing the tough work which both the parties as well as precedent deserves.

In Re Ramon M. (Cal. Ct. App. - Oct. 22, 2009)

I've seen a lot of obscenities used in opinions published by the California Court of Appeal. Lots. They come from quotations, of course. Often by the defendant. When they say "f**k" in the transcript, for example, or to the police, we generally print the whole word.

But check out the top of page four of this opinion, which is authored by Justice Moore. In which Justice Moore says (and I'm copying the original): "When States asked why he had approached the African-American men, Ramon [the defendant] responded that he 'did not like [racial epithet] in his neighborhood.'"

So Justice Moore clearly deletes the n-word. Which made me wonder: "Why?"

Not that I'm necessarily complaining. I express no view regarding whether one should categorically refuse to use -- even purely as a description of what someone else said -- that particular word. Or any other word, for that matter. Some people, including appellate judges, print out the obscene word (or epithet). Others don't. It's a style issue.

But seeing what Justice Moore did made me wonder whether this was something unique to Justice Moore -- perhaps she's relatively prude (or formal, or careful; however you want to describe it), and hence does what she does as a typical practice.

But then I checked by looking at Justice Moore's prior opinions. Nope. It's not that. She's been historically willing to use all sorts of words. Earlier this year, for example, she quoted someone as using both the f- and b-words. (I personally abbreviate them, by the way, solely because I like to call this a "family blog," even though I strongly doubt there are very many minors who regularly peruse it.) Indeed, back in December, Justice Moore even authored an opinion that printed the same word at issue here -- the n-word -- plus the s-word to boot. And there are many, many others. Moreover, as far as I can tell, Justice Moore's never deleted the n-word and replaced it with "[racial epithet]" before this opinion.

So what changed? Arguably, those prior opinions of hers were unpublished, so maybe it's just she (and others like her) don't want to degrade the published pages of the California Appellate Reporter with various filth. But it could also be something about this particular word; there's a heightened sensitivity -- at least among some -- that this particular term should never be used, in any form, and perhaps that explains Justice Moore's decision. (She was, again, willing to use that same word 10 months ago, but perhaps she's a recent convert.)

Which then got me thinking beyond Justice Moore. What about everybody else in the California judiciary? Has there been a deliberate reduction in the number of times readers have seen the n-word used in judicial opinions?

So, because it's a lazy Friday, I checked it out. (Thank you, Lord, for being an academic for a living, and not having to bill these hours.) The n-word's been used by the California Supreme Court and California Supreme Court in 617 opinions (both published and unpublished) contained in Westlaw. Here's the breakdown for this year as well as the past five years:

2004: 52 times

2005: 66 times

2006: 52 times

2007: 68 times

2008: 41 times

2009: 49 times (thus far)

A couple of things stand out. First, there did indeed seem to be a noticeable dip in 2008 in how many times the n-word was used. My recollection is that this may perhaps have also been the peak of when people started to get very sensitive to even the recitation of this word and, maybe not entirely unrelated, was also the key year of Barack Obama. So maybe the dip in 2008 was a reflection of justices not using this word as much.

Of course, there might be other explanations as well. Maybe people in general weren't using this word as much in the several years prior to the opinion, so there was less of it to report. Though I doubt this is actually true, it's at least a possibility. Or maybe there were simply fewer opinions in general during the "down" years, though I doubt that as well. Or maybe it was just random. Though a 40% year-over-year drop seems a fair piece, and too coincidentally related to BHO, to be merely the result of chance.

Which brings me to my second observation. Notice the ebb and flow of what I readily concede is an admittedly incomplete data set. One year the number is high, the next year it's low, the next year it's high, and so on. It's as if there's an ongoing cycle here. Like you start using a word, get bored with (or jaded by) it, then (with prior disuse) use it more, then less, etc. Sort of like a kid who uses swear words because they're unusual and "jarring," but then gets bored, then back into them, etc. I wonder if there's a little bit of that going on as well? Or, again, whether it's instead that everything's simply random.

So I then looked at one last thing. What's the data everywhere? I used the ALLCASES data set in Westlaw (i.e., all state and federal cases) and looked at the use of this full-text word for each of the years above. Now, here, it may well be that data sets slightly change over time, unlike in the pure California example, as Westlaw gets more opinions in this database over various years. But with this caveat, here's the data:

2004: 291 times

2005: 352 times

2006: 459 times

2007: 454 times

2008: 422 times

2009: 391 times (so far)

So what we seem to see nationwide is a steady (noncyclical) rise since 2004, but then a drop in 2008 -- as in California, though not as pronounced. You then see, for 2009, a rise -- as we have seen in California, of the use of this word over the previous years, both absolutely (in CA) as well as in the entire nation. (While the 391 times thus far in 2009 nationwide is admittedly less than the 422 seen during 2008, don't forget that 2009 isn't finished, and the current figures suggest that the final national numbers for 2009 will bounce back up to around 455 -- this time in 2008, for example, there were only 362 references, less than this year's 391.)

So maybe there has been something going on, at least during the past two years. Maybe in 2008 we saw a heightened sensitivity to having this particular word in print, while in 2009 it seems we have either "gotten over it" or have had a backlash to the backlash.

So as we enter the weekend, these are my thoughts on the use of the n-word. Nothing from me that's normative. At least on this topic, I'll leave that to others. But purely descriptively, it looks to me like there's something going on here. Not only potentially with Justice Moore, but with a number of other folks as well.

U.S. v. Van Alstyne (9th Cir. - Oct. 22, 2009)

It's a sad commentary on recent financial debacles that my principal reaction to this case was: "What?! You ran a Ponzi scheme and only defrauded 450 (mostly elderly) investors of a measly $10 million?! Chump change."

Such small multi-million dollar Ponzi schemes were (as here) so 1990s.

Thank goodness for progress.

Parth v. Pomona Valley Hosp. Med. Center (9th Cir. - Oct. 22, 2009)

Here's another case -- and there are assuredly many -- that in my mind clearly disproves our Chief Justice's assertion that appellate judges properly merely "call balls and strikes."

It's a FLSA wage-and-hour case. Some nurses wanted 12-hour, rather than 8-hour, shifts. But the FLSA says that if you work more than 8 hours, you get paid time-and-a-half. So while the employer was willing to make the change, it was willing to do so only if the nurses got paid the same. So what the employer did was to proportionally reduce the hourly pay of any nurse who chose a 12-hour shift -- in the plaintiff's case, from $22.83 an hour to $19.57 an hour -- so that the numbers worked out the same regardless of whether the nurse had a 12 or 8 hour shift.

To which plaintiff responded by filing a class action, alleging that this violates the FLSA and that she's entitled to time-and-a-half on her "normal" pay, not the reduced pay she got when she said she wanted 12 hour shifts.

On the one hand, there's authority that permitted employers (and states) to reduce hourly pay during the transition period before FLSA applied to 'em in order to keep their wages constant, so there's a loose analogy there. On the other hand, there's (1) something inherently fishy -- or at least suspect -- about reducing hourly pay to circumvent FLSA's time-and-a-half rule, and (2) lower court precedent that has occasionally found schemes precisely like this one to violate the FLSA.

Ultimately, all that Judge Randy Smith can say -- and, I think, all that anyone could properly say -- is that this seems fine because it just seems fine. In other words, that it passes the smell test, and that while we can't totally explain why that's the case, we can at least give you some hints, as well as simply tell you our judgment. For one thing, it was the nurses who wanted it. Now, we're not willing to create a doctrine that says that's necessarily dispositive, because that would lead to a whole lot of adverse consequences as well as be doctrinally inconsistent with the unwaivability of FLSA's time-and-a-half provisions. But when you put everything together, this whole scheme nonetheless just seems fine. Not only to Judge Smith, the author of the opinion, but to the diverse set of appellate judges who were randomly drawn for the particular panel, which in this case include Judges Canby and Rawlinson. Sometimes, that's about all you can say.

Admittedly, I do wonder where we draw the line in this area. For example, I have no doubt that I'd find it impermissible for an employer to say: "Next week, you can work either 8 hours or 12 hours -- your call. But if you choose the latter, you get paid $19.57 an hour rather than $22.83." Maybe other judges would disagree. But to me, that's simply too much like an employer saying "You can work an extra 3 hours on Friday if you want -- it's totally up to you -- but since that'd be 43 hours for the week, you'd have to agree to make $20.00 an hour (rather than your usual $30.00 an hour) since we have to time-and-a-half it."

Given that concession, what's the difference here? Essentially, Judge Smith is saying that you can't employ the particular scheme described above for a single week, but you can for a whole series of weeks; i.e., as your "normal" deal. Which, again, results in difficult line-drawing -- an exercise that's perhaps not optimal, but something that nonetheless the law requires. Line-drawing that's required by judges exercising very little more than common sense and with an eye towards statutory purposes, structures, and goals, with very little external constraints.

I'm less freaked out about that fact than some others. To me, that's the nature of the beast, at least sometimes. Not all the time, to be sure. And not in every area. But sometimes, that's what we not only do in the appellate courts, but what we should do. As well as what we should expect.

Beyond this larger point, I did want to make one other particularized critique of Judge Smith's view -- or, perhaps more accurately, of the FLSA (depending on whether or not you think that Judge Smith's done the right thing here, which I think most people would).

Judge Smith's holding is based upon the intuition that since the nurses prefer this regime, and since it was done for their benefit, the FLSA time-and-a-half provisions shouldn't preclude the hourly reductions. But isn't this predicate somewhat belied by the FLSA itself? When I think about it more deeply, it seems to me that the FLSA essentially says that, as a matter of law (or at least legal principles), when you work more than 8 hours in a day, it is more burdensome, and as a result the employer must pay you more. Moreover, by making this provision unwaiveable, we're essentially saying that we demand -- for public policy or other reasons -- that your private contracts reflect this social recognition.

But if that's the case, then it seems like the hourly reduction here should indeed be struck down. Since it pays the nurses on 12 hour shifts the same as the nurse on an 8 hour shift even though we've legislatively declared that public policy requires the former to be paid more. (Or perhaps because we want to deter the former by requiring employers to make enhanced payments so it transpires only when truly necessary and economically beneficial.) Part of me thus thinks that the reasoning behind Judge Smith's holding -- as well as his intuition (which, again, I share) -- is simply inconsistent with the FLSA itself. With the statutory declaration that, yes, 12 hour days should generally be avoided and/or deterred, even if employees agree to them.

This whole topic is perhaps especially timely to be because I read earlier this morning that Utah government employees -- who've been put on a 4-day (10-hour) workweek -- seem to like the new three-day-weekend structure, which also provides a fair piece of savings to the state (which was why Utah enacted it in the first place). Which got me thinking: Is that a superior regime in general? Three-day-weekends in exchange for slightly longer workdays. Should we -- or do we intuitively -- socially prefer such a system? And, if so, shouldn't the FLSA reflect (or at least not deter) such a preference?

What's true for four-day, 10-hour workweeks is probably similarly true for, as in this case, 12-hour "seven days on every two weeks" structures. And if nurses (and presumably other types of employees) really do -- as they seem to here -- prefer such a structure, doesn't that tell us a valuable piece of information about the FLSA generally? As well as either (1) what we should do about the statute, or (2) what we should do about holdings like this one from the Ninth.

Of course, maybe I'm especially interested in all of this merely 'cause it's a Thursday. Because a four-day workweek would mean that Thursdays are the new Fridays. With all the joy and love that entails.

Crockett & Myers v. Napier (9th Cir. - Oct. 21, 2009)

There's a value to a referral to another attorney. That's self-evident. Lawyers will pay for a referral of a good case.

But even more importantly, the Ninth Circuit holds today that the value of this referral is recoverable in quantum meruit.

Admittedly, this was a good case in which to so hold. Moreover, the case is ostensibly limited to so holding under Nevada law -- though Judge Nelson's opinion isn't based on any peculiar content of that legal system and will likely be seen as extending more broadly.

So this is a very good holding for attorneys who do referrals. Yet more money for doing very little work.

U.S. v. $186,416 in Currency (9th Cir. - Oct. 20, 2009)

Here's a timely opinion. Particularly given the Obama administration's recent statement that it will generally no longer go after medical marijuana clinics as long as their activities are legal under state law. (Needless to say, the focal point of this exception is right here in California.)

The opinion by Judge Clifton highlights a variety of things; most particularly, the complexities that arise as a result of marijuana being legal (in certain settings) under state law but still illegal under federal law. As applied here, this creates for both doctrinal and practical difficulties in two settings: (1) in ascertaining the legality of searches, and (2) in assessing the validity of asset forfeitures.

Here, for example, the LAPD got a search warrant from a state court judge to raid a marijuana clinic in LA -- the United Medical Caregivers Clinic ("UMCC") on Wilshire. The problem being that in getting the warrant, the LAPD pitched the facility as just being a regular old place where you can buy pot, and didn't tell the judge any of the facts the LAPD knew that suggested that the place was providing weed legally under the Compassionate Use Act. So the state judge approved the warrant, but the district court (rightly) held that this warrant was invalid given the LAPD's deception, and hence the search was illegal under the Fourth Amendment.

So that solves any potential criminal liability. But what about the $186,000+ the LAPD seized from the place? UMCC wants it back, but the LAPD -- not surprisingly -- wants to keep it. It knows, however, that the warrant was no good, and also doesn't want to have to prove that the place was illegal under state law, since it probably wasn't.

So what does the LAPD do? It turns the money over to the feds. Who then file their own action to forfeit the cash under federal law, since -- remember -- marijuana's still illegal under federal law and hence the assets subject to forfeiture.

So UMCC seems like it's in trouble. But it responds: "I'm still entitled to my cash back because you got it -- and all the evidence against me -- from an illegal search." Which is true, of course. But the district court (Judge Wilson) says: "Not so, at least for forfeiture purposes. That UMCC may have been selling medical marijuana was admittedly relevant to whether a warrant for state law violations was proper, but clearly UMCC possessed chronic in violation of federal law. Given this fact, I don't think application of the exclusionary rule is proper." (There's some more stuff about some procedural complexities under Rule 41, but I'll leave this aside. You get the gist.)

UMCC then appeals to the Ninth Circuit. Which unanimously reverses. Judge Clifton authors the opinion and holds that, no, the exclusionary rule indeed applies here because even though there may have been a violation of state law, that's not what the warrant was based on: a state judge issues warrants for state violations, and for that, the warrant here was improper. Maybe a federal judge could have issued a warrant, but that didn't happen. So given that the warrant was improper and the search illegal, we're going to exclude the results of the search and give the cash back to UMCC.

Doctrinally, Judge Clifton's analysis makes sense. But he also makes a practical point that I found equally -- if not more -- compelling.

Recall who (effectively) lied to the state court judge in order to get the warrant. The LAPD. As well as who conducted the illegal search: The LAPD. Finally, who's likely to get the bulk of the proceeds from any permitted forfeiture? Yep, that same LAPD.

This matters. To Judge Clifton -- an eminently reasonable fellow -- as well as Judges Hawkins and Berzon, both of whom share Judge Clifton's keen (and important) understanding of the way the world actually works. Judge Clifton says:

"We are particularly concerned by the possibility that the LAPD might stand to profit from unlawful activity. It would be objectionable that any unit of government might profit from the LAPD’s actions, but even greater concern arises here from the suggestion in UMCC’s opening brief, not denied by the government, that the LAPD 'stands to receive up to 80% of any forfeiture obtained by the federal government in this case.' Although the record on appeal contains no indication of how any forfeiture proceeds might be divided between the federal government and the LAPD, we recognize the distinct and disturbing possibility that the LAPD could profit from its own illegal activity, were the government to prevail."

I hear ya. That'd matter to me as well. Generally, you shouldn't make money -- lots of it -- as a result of conducting an illegal search. Which is another reason, wholly beyond doctrine, why the illegality of the initial search should extend to the present forfeiture action.

So Judge Wilson gets reversed and UMCC gets its $186,000 back. Plus interest.

So there should be a good party on or around Wilshire Boulevard tonight.

Rehman v. DMV (Cal. Ct. App. - Oct. 20, 2009)

Feel pretty strongly about following the plain language of a statute? How do you think this one comes out:

Section 13353.2 of the Vehicle Code allows someone to have their license immediately suspended if they have a commercial license (e.g., are a truck driver) and have a blood alcohol content of 0.04 percent or more. But Section 13557 of that same Code requires evidence of a blood alcohol content of 0.08 percent or more to sustain the suspension of a driver’s license under section 13353.2.

So take Atiqur Rehman's case, where he's driving a truck and gets busted at a scale on the I-5 with a .04 or .05. His license gets confiscated by the officer and immediately suspended, which is okay under 13353.2 (since he's got a .04), but then he requests a hearing at which he says that they're not allowed to take his license permanently since he didn't have a .08 as required by 13557.

So what do you do?

Here's two ways you can go. You can either do something like this:

(A) "The plain language of the statute is dispositive. The statute permits initial revocation of a license at a .04 blood alcohol statute but requires its reinstatement unless the driver had a blood alcohol content of .08. Courts are not free to rewrite the statute to achieve our own policy goals. If the Legislature wishes to revise the statute, this is their responsibility, not ours. Moreover, we note that the requirement in Section 13557 of a .08 blood alcohol content before license revocation is not necessarily irrational nor inconsistent with the .04 requirement contained in Section 13353.2. With respect to commercial licenses, the Legislature might have intended the lower 0.04 percent standard to apply only to the immediate suspension in effect between arrest and the outcome of the administrative hearing, but intended the higher 0.08 percent standard to apply to the continuation of the suspension after the administrative hearing, since the driver’s livelihood is directly affected by the suspension. It is also possible that the continued suspension of a commercial driver’s license may be adequately handled by other Vehicle Code provisions; in particular, Section 15300(a), which provides for a one-year suspension of a commercial driver’s

license upon conviction of driving a commercial motor vehicle with a blood alcohol content of 0.04 percent or more. Regardless, these are questions for the Legislature, not for the judiciary. Section 13557 expressly requires a .08 percent blood alcohol content, which was indisputably not present here. The revocation of Rehman's licence is accordingly reversed."

Or, in the alternative, you can do something like this:

(B) "The 'plain meaning' of a statute does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The intent of a statute prevails over its words, and its words will, if possible, be read as to conform to the spirit of the act. This is one of the rare instances in which we must disregard the literal terms of a statute because they conflict with another statute and would compel an absurd result that the Legislature obviously did not intend. Section 13353.2 permits initial revocation of a commercial license based upon a .04 percent blood alcohol content. In practice, this revocation does not immediately suspend driving privileges, because the effective date of the suspension under the statute is either 30 days after the arresting officer or the department gives notice of the suspension or five days after the department gives written notice of its determination to sustain the suspension following the administrative hearing, and in the interim, the license holder continues to enjoy the privilege of driving (as Rehman did here) by virtue of a temporary license. Given this statutory scheme, the Legislature reasonably could not have contemplated using different levels of blood alcohol content for different parts of the suspension. We are therefore left with conflicting provisions that apply a higher blood alcohol content standard in the review of an order of suspension issued based on a lower blood alcohol content standard, which would lead to the absurd result of issuing orders of suspension that could never be effective and thus render Section 13353.2 nugatory in those cases in which the driver has a blood alcohol content of between .04 and .08 percent. Judicial recognition of what appears to be a legislative drafting oversight would conflict with the manifest structure and intent of the statute and lead to absurd results; accordingly, because Rehman does not dispute that he had a blood alcohol content of at least .04 percent, we affirm the revocation of his license."

Which one of these positions do you find more persuasive? (Here's Justice Robie's view, which I've lightly edited in either (A) or (B) above.)

People v. Smith (Cal. Ct. App. - Oct. 19, 2009)

Some opinions write themselves.

For example, here's all I need to tell you about this one. First, the appeal. Ronald Smith alleges that there was insufficient evidence to support his conviction for making criminal threats to his former cohabitant, S.J. He was, after all, in Texas when he made the threats -- without any job or income -- and the victim was in California. Given those facts, he could (and did) plausibly argue that his threats were no "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat" as required by California law to support a criminal threat conviction.

But then all I have to tell you are the background facts. At which point you'll easily figure out how this one ends up. Here you go:

"Defendant, an unemployed drug-user, abused S.J. every day for 19 years—except on the few days when he was unable to do so because he was incarcerated. There was testimony defendant: abused her verbally, yelled at her, calling her a “bitch” and a “slut” and a no good “piece of shit”; administered beatings which were severe and became worse over time; hit and kicked her; kicked her in the legs, the stomach, the back and “just anywhere”; kicked her when she was on the floor; slapped her in the head and the face; pulled her hair; and urinated on her. The testimony indicated: defendant beat S.J. when she was eight months pregnant; this resulted in the child's death; he kicked her in the head less than a month after she had brain surgery—surgery that was necessary because of repeated blunt force trauma; he repeatedly put a gun in her mouth and threatened to kill her; he told her to “suck his dick” in front of their three boys; he had sex with her when the children were present; he told the children he would cut her legs off with the machete he kept under the bed; and he tortured their dog and threw their cat out the car window while driving on the freeway."

I could say more if necessary. About the actual threats here and whatnot. But why bother? Given the history, you know how this one's coming out. And where he's indeed going to spend the next 56 months.

In Re Complaint of Judicial Misconduct (9th Cir. - Oct. 19, 2009)

Chief Judge Kozinski says: "You think I'm 'overwhelmed' with judicial miscondut complaints?! You couldn't be more wrong. They're easy. It only takes four paragraphs to dismiss 'em."

This is a pretty classic Kozinski resolution of a judicial misconduct complaint. To which I generally don't have an adverse reaction, in part because I agree that the vast majority of these claims are meritless and/or frivolous.

That said, having read all of these Kozinski resolutions for the past several years (thanks to his helpful decision to publish them all), I did have one brief thought I'd put out there. Which of the following is harder: (1) pleading a regular federal case under Iqbal and Twombly sufficient to avoid dismissal, or (2) pleading a judicial misconduct allegation for Chief Judge Kozinski sufficient to avoid dismissal?

The answer seems clearly to be (2), and given all the attention (and adverse reaction) that (1) has received, I wonder if I should be thinking a little more critically about (2) than I previously have. I mean, I have no doubt -- none whatsoever -- that there are bad federal judges in the Ninth Circuit. Really bad. I could even name you some. Like so bad its an embarrassment to the bench. Not many, admittedly. But they're there.

The question that I asked myself today is: What would it take to get Chief Judge Kozinski to actually do something -- or even open up an investigation -- into one of these judges? I think the answer is that it'd be virtually impossible, even if you weren't a disappointed litigant who's filed a million of these things. Short of an affirmative, on-the-record statement by the judge of bias, there seems little practical way for anyone to "prove" their allegations sufficient to satisfy the procedural hurdles that Chief Judge Kozinski routinely relies upon to dismiss existing judicial misconduct complaints. Which seems a problem. (The only other way I can think of that might satisfy these hurdles and cause a misconduct investigation is if the judge had a couple of softish-core pornography files on his home computer. But that situation seems more like Bush v. Gore; i.e., "good for this case only").

Am I objecting to the way Kozinski deals with these things? Not really. I'm sure I'd dismiss 'em as well.

But I do think we might be a little more sensitive to these things, and maybe be a little less hard core about imposing (and applying) high initial hurdles that might equally require dismissal of an (admittedly rare) meritorious complaint. We're pretty conscious of that tradeoff when we deal with standards of pleading and proof in regular civil cases. We -- and I include myself in this one -- should probably be equally conscious of it in dealing with misconduct complaints as well.

Such are my thoughts as we begin another wonderful week in beautiful California.

Jensen v. FTB (Cal. Ct. App. - Oct. 14, 2009)

Craig and Sally Jensen should be glad I'm not on the California Court of Appeal. Because I'd have likely sanctioned them.

The Jensens, alongside their lawyers (Jonathan Lappen and Kendrick Moxon), sued the FTB to recover some taxes they paid to California on the ground that Proposition 63 -- which imposed a one percent state income tax on incomes in excess of $1 million in order to pay for mental health services -- was unconstitutional because the wealthy are a "suspect class" and the statute was not narrowly tailored to benefit this class. I agree with everything that Justice Boren (nice sweater vest, by the way) says in this short opinion rejecting this claim. It's a benefit to be a million-dollar-a-year man, not a detriment. The wealthy aren't a suspect class. They're a powerful class, the exact opposite. And citing cases that say that the poor are a suspect class hardly proves that being the opposite is also suspect.

Is part of me sympathetic to the position that it's easy to tax a select minority -- the rich -- to pay for something for everyone? Sure. But that's totally fine. The rich have more. They can pay more. Both absolutely and relatively. Marginal utility of income. Basic stuff like that. To say that the Constitution prohibits this stuff is, well, simply absurd. Indeed, sanctionable.

There are admittedly some situations in which I wouldn't sanction the Jensens (as well as their lawyers) for making the contrary claim. For example, if they said in their briefs -- which I readily admit I haven't read -- something like "We concede that the rich aren't a suspect class under existing law, but we believe they should be," that's just fine. That's an argument in favor of changing the law, and I'd conclude it's a good faith one. One I totally don't buy, but I can see why someone might adopt that view, and they've got a right to have it heard in court without being spanked.

But if the Jensens instead said (as I imagine they probably did) that existing law supported their view, I'd have sanctioned them. And made them pay an even larger proportion of that million-dollar-plus a year income to the state to reimburse it for the attorney's fees it had to spend in response to their lawsuit.

POSTSCRIPT - One of the plaintiffs' attorneys I mentioned in the post sent me a relatively polite e-mail that attached the opening brief, the contents of which (as I said) were definitely relevant to whether I'd have thought that sanctions were warranted. So I read it. And my reaction is . . . the contents do indeed matter. Plaintiffs' counsel did a couple of things that I'd have definitely avoided; e.g., citing a minority opinion as the ruling of the California Supremes (though others have made that same mistake with this opinion). Moreover, the content of the brief definitely paints a clearly misleading picture of precedent, in addition to being clearly wrong on the merits. That said, however, while the brief comes definitely close to the line, in the end, I think that having now read it, I would indeed not have sanctioned anyone. It's a definite piece of advocacy -- indeed, a well-written and well-structured one -- and while it comes in many places perilously close to affirmatively misstating the law by entirely ignoring key distinctions, I think the thing is more properly viewed as being within the permissible (and very broad) bounds of proper advocacy. Perhaps my opinion would change (again!) if I read the reply brief, which the lawyer didn't send. But I somewhat doubt it. My overall sense is that the attorneys submitted a piece of legal advocacy that was on the bleeding edge of what you can do without being forced to admit that your arguments are wrong and that you're asking for a change in the law. That may perhaps be an indictment of the adversary system or the content of the relevant ethical rules. But, upon further review, I don't think it's an indictment of these lawyers. Or at least not a monetarily sanctionable indictment.

Nazir v. United Airlines (Cal. Ct. App. - Oct. 9, 2009)

If you haven't read this one already, you definitely should.

It's a damning indictment of a lot of things. Of Littler Mendelson. Of procedural complexity and obfuscation. Of summary judgment in employment cases. Of big-firm practice. At least as applied in a particular case.

Let me give you a taste. With the caveat that the 50-plus page original is really even much better:

"Plaintiff Iftikhar Nazir, a man of Pakistani ancestry, worked for United Airlines (United) for over 16 years, during which time he was called scurrilous names and was the victim of numerous other indignities. Plaintiff reached the level of mechanic supervisor, the only person of color to ever hold that position. He was terminated in 2005 by his supervisor Bernard Petersen, on the basis that plaintiff violated United's zero tolerance policy in an incident with a female employee of an outside service provider. Plaintiff sued United and Petersen (when referred to collectively, defendants) in a complaint that, save perhaps for two battery and fraud causes of action, asserted rather typical claims grounded on harassment, discrimination, and retaliation. What ensued was hardly typical.

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1056 pages.

Plaintiff‟s opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants' papers, not even those in reply, papers that defy description.

Defendants' reply included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants' Reply.” And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.

Five thousand, four hundred, fifteen pages of material were before the trial court . . . . [The trial court grant[ed] summary judgment [in an order] that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel. . . .

On August 30, 2007, defendants filed a “Motion for Summary Judgment or, in the Alternative, Summary Adjudication,” with moving papers totaling 1056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as “mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.”

Seemingly emboldened by this description, defendants' brief here begins this way: “As in Macbeth's soliloquy, Appellant's Opening Brief (AOB), like his summary judgment opposition below, is full of 'sound and fury, [but ultimately] signifying nothing.' Despite filing an 1894 page(!) opposition separate statement, which the trial court found . . . in a manner deliberately calculated to obfuscate whether any 'purportedly disputed facts were actually controverted by admissible evidence,' the trial court properly granted summary judgment in this case. As with Nazir's opposition statement, his AOB is 'mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.'"

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

As noted, the motion sought summary adjudication of 44 issues. As apt here, a defense-side motion for summary adjudication is appropriate if one or more “cause of action has no merit.” [Cite] Summary adjudication must completely dispose of the cause of action to which it is directed. [Cite] More than half of the 44 issues defendants sought to have summarily adjudicated fail to meet that burden, as they would not dispose of the claim. The effect of this misconduct is not insignificant, illustrated by the fact that many of the “issues” all repeat to some extent many claimed “undisputed material facts,” repetitive facts resulting in countless pages of utterly unnecessary—and necessarily unavailing—material.

The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” [Cite] The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” [Cite] That hardly describes defendants' separate statement here.

The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material . . . . The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of “Exhibits and Evidence in Support of Reply.” No such evidence is generally allowed. . . .

But neither the inappropriateness of defendants‟ papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced Superior Court judge has “intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered” in connection with summary judgment motions, at the very top of which are motions “that attempt to „hide‟ triable issues of material fact.” (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law 34, 37.) The article admonishes that a motion “should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact,” going on to cite two recent examples in that judge's court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third."

I could go on. And on and on and on. Suffice it to say that Justice Richman is relentless. Totally relentless. It's definitely worth a read.

He's right, too. Or at least mostly so, in my opinion. This is no fly-by analysis. He's poked his head into the tent and actually thought about what went on. So, for example, he gets his hands dirty and talks specifically about particular (totally silly) evidentiary objections:

"[T]here is no way that the trial court could properly have sustained 763 objections 'guided and controlled by fixed legal principles.' [Cite] There are many reasons why. Some of the sustained objections did not even assert any basis for the objection! Some of the sustained objections were to plaintiff's testimony about his dates of employment, his religion, his skin color, and his national origin. Over 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of court, rule 3.1354. Twenty-seven of the sustained objections were to plaintiff's brief, not his evidence. Beyond all this, many of the objections were frivolous. Two illustrations should suffice. First, plaintiff testified that “[s]ome of the names [he] was called by [his] co-workers . . . were 'sand nigger,' 'sand flea,' 'rag head,' and 'camel jockey.'" Defendants lodged four objections, two of which were lack of foundation and hearsay. No adjective is adequate to describe an objection that one who is called names lacks “foundation” to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth."

Good job. I like it when justices (and/or their clerks) go back to their first-year associate days and get their hands dirty with the objections. Not something you do every day on the Court of Appeal, and it's valuable.

So let's take a tally of who Justice Richman correctly excoriates:

(1) Littler Mendelson. Yep. They get killed. Utterly killed. For a firm that expressly pitches centers itself as an employment firm, this opinion is a killer. A total wipeout. In part because it's so harsh. And in part because it's so right. I'm sure Littler will spin the opinion as (a) wrong, and (b) just proof (even if right) that they work so aggressively and so hard that you should want to hire 'em, but that only gets you so far. And even less far when the Court of Appeal catches you and, as a result, reverses.

(2) Big firms. Justice Richman doesn't expressly slam 'em, but his indictment centers around them and how they (sometimes) litigate cases. Some of Justice Richman's indictments are a bit over the top; for example, in talking about the evidentiary objections, Justice Richman says in a footnote: "We sometimes “hear” that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to 'do the objections,' which was apparently done here. Perhaps a wiser practice would be have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections." Yeah. Like that's going to happen. As if this would make rational economic (or strategic) sense even if it were plausible. A big time partner does the objections and the first-year associate writes the brief. That's the best allocation of resources, I'm sure. And the one most likely to result in success on the merits. So I don't think Justice Richman is spot-on about some of his indictments. Nonetheless, on the whole, he's got a pretty good critique of biglaw practice in these tinier employment cases. One that's, in my experience, tolerably accurate and definitely worth review.

(3) The Trial Court. It's not that Justice Richman's slamming Judge Wiener (up in San Mateo) in particular. Moreover, he even admits that her job is tough when she's got to go through 5000 pages in order to decide the motion. Still, Justice Richman hardly treats her -- or others like her -- with kid gloves. He rightly slams her for getting the objections totally wrong, by being out of it on the merits, and basically for shorthanding the whole process. This seems right to me. This is done all the time. Trial judges too often look for time-saving simplicity to save them from tough choices and complexity. This is bad. It results in cases (and opinions) like this one. He's right on that front.

(4) Plaintiff's Lawyer. He doesn't actually get beaten up much at all; indeed, Justice Richman goes out of his way to basically excuse a lot of what the plaintiff did -- things that got slammed by the trial court -- as a necessary response to the misconduct of the defendant. Still, you don't leave with the impression that the plaintiff's lawyer did a stellar job. Maybe he did what he had to do. And if there's anyone who's relatively blameless in this affair, at least according to Justice Richman, it's the plaintiff. I think this is a bit simplistic, but I understand the take. And it's not that plaintiff entirely gets off. There's stuff in there, and he doesn't emerge entirely unscathed. But I'd rather be him than the rest of the field. By far.

So that's the score. An impressive score, I might add. Especially since Justice Richman's critiques are often spot on.

But let me add one additional insight. One that I think's important. There's one actor that the opinion doesn't critique at all. One that, in my view, is as equally responsible for the morass in this case as some of the actors Justice Richman isolates. And yet that the Court of Appeal does not critique in the slightest:

(5) The Court of Appeal. What Justice Richman doesn't say -- and I think it's a serious omission -- is that a lot of what transpired here results directly from the various holdings of the California Supreme Court and California Court of Appeal in cases exactly like this one. Why, for example, is the separate statement so long, so complexity, so protective and unnecessarily inclusive? Maybe it's because Littler wanted to bill more hours; you could at least have that theory. But in my view this is instead the direct result of California holdings that place so much emphasis on this (unneccesarily complex) procedural requirement: the "Golden Rule," the application of waiver principles, etc. That's why the thing is so long and convoluted: the direct -- totally foreseeable -- result of appellate holdings.

Ditto for the evidentiary objections. Why so many of 'em? And why'd the trial court shorthand the whole thing? Precisely because the Court of Appeal has itself created such incentives, by requiring the trial courts to make an express on-the-record ruling on every objection, by finding dispostive waiver in so many cases, etc. etc. Firms like Littler, and trial court judges, aren't just doing these things for fun. They're doing what they do in direct response to what the Court of Appeal has done in these cases for the past twenty years. It's made these cases procedurally complicated. It's created incentives for strategic behavior. It's forced trial courts to take on burdens -- like particularized on-the-record evidentiary objections -- that are often practically unworkable.

In short, cases like this are the way they are for a reason. And that reason starts at the top, not at the bottom. So Justice Richman's slams on the various participants is spot on. But he misses, in my view, part of the ship. An important part. A part that begins at the captain's chair. At a place that's not too far from where Justice Richman sits.

That's the only way I'd make Justice Richman's impressive -- and important -- analysis a bit more comprehensive. His insights are extremely valuable. So too, however, are his omissions.

There's more than enough blame here to go around.

People v. Henning (Cal. Ct. App. - Oct. 14, 2009)

Bored with the typical vacation? I got a new idea. First, stay awake for about a full week. Think that's going to be hard? Use crystal meth every day. Also spice in some ecstacy, crack, alcohol, and hallucinogenic mushrooms. That should get you going. Then, after you've been up for a week, play a 10-hour marathon of Grand Theft Auto: San Andreas. You know, the one where you're at the wheel, driving around, committing crimes and blasting everything in sight. Remember to keep taking your liberal doses of hallucinogenic drugs throughout.

Once you're done with the marathon, then think to yourself: "Hey, you know what'd be really fun? To actually do all that stuff in Grand Theft Auto in real life." So get into your car, put on a black ski mask, drive to a random business, pull out a sawed-off shotgun, and start acting crazy (or, more accurately, continue to act crazy). Talk about a good time! What could possibly go wrong?

This, at least, must have been Jaisen Henning's thought process at the time. Since he did all of the above. Except what went wrong was (1) real life isn't a video game, (2) the employees at the random business -- a Days Inn -- only had $2, (3) Henning forgot to set the parking brake on his car (another downside of hallucinogens), so in the middle of the robbery he saw his car rolling down the inclined driveway and ran outside to stop it, (4) at which point an off-duty detective driving his car on an errand saw Henning, complete with black ski mask and sawed-off shotgun, run outside of the lobby and after his car, and promptly gave case, and (5) unlike Grand Theft Auto, in the resulting high-speed police chase, as usual, the police -- not the robber -- win. And Henning gets convicted at trial. Which, again, is not a typical component of the video game, but which is a very real component of actual life. As is prison. For 17 years, four months.

Okay, on second thought, maybe that's not such a great vacation idea. So I guess it's Hawaii again. Plain old, boring Hawaii. But with a beach and no iron bars. Which is nice.

People v. Vasquez (Cal. Ct. App. - Oct. 13, 2009)

This is why you might want to think twice before pulling into a fast-food restaurant in Inglewood. Something to which I can personally attest, having been held up at gunpoint myself in that fine locale (albeit not at a fast food joint).

As far as I -- or anyone else -- can tell, Gilbert Vasquez and his fellow gang members killed Juan Lopez, without word or provocation, solely because they mistakenly thought he was a member of another gang. Oopsies. I agree with Justice Yegan that the shooting was for the benefit of a gang and that the enhancement was thus proper. That's why the dude was shot. That's why Vasquez will spend 50 to life in prison (or, more accurately, spend a long time, since he's not even eligible for parole for 15 years, and will be hard pressed to get out even then).

Parenthetically, I always knew that one way that you can mistakenly get shot in a gang area is by wearing the wrong colors -- e.g., red or blue -- or the wrong hat (e.g, an LA Dodgers cap). But I didn't know until today that another way you can get yourself shot is by wearing your hair the wrong way; for example, here, "in a style favored by [Vasquez's rival gang] as well as by his own." Interesting.

Fortunately, this is an area in which I've got very little to fear. Unless the Krazy Krowd 13 and 18th Street gangs tend to favor "short and balding" as the current style.

Esquivel v. WCAB (Cal. Ct. App. - Oct. 13, 2009)

With the Ninth Circuit taking several days off, the California Court of Appeal helpfully steps in today and cranks out some published opinions. Some of them -- like this one -- basically answer themselves, in my mind. Here are the facts:

"At the time this case arose, Tania Esquivel, a correctional officer receiving benefits under the Workers' Compensation Act (the Act), resided in the City of San Diego and was being treated for her industrial injuries by medical providers located within eight miles of her home. For reasons unrelated to her need for that treatment, Esquivel drove about 130 miles to her mother's home in Hesperia, in San Bernardino County. Esquivel suffered serious new injuries when she drove through a stop sign in Hesperia while en route from her mother's home to the San Diego offices of the medical providers. The workers' compensation judge (the WCJ) found that Esquivel's motor vehicle accident injuries were a compensable consequence of her existing industrial injuries and awarded her temporary disability indemnity and additional medical benefits. . . ."

To me, Justice Nares need say no more. No way. I'm surprised, quite frankly, that you get benefits in the first place pursuant to some sort of "coming-and-going" rule if you're normally injured on the way to your doctor. Sure, it's a but-for cause, but I'd have thought that the rule would be that this is your option since you could live right outside your doctor's door. That's a silly principle in practice, of course, but it's one that we routinely apply to, say, wage and hour rules and a variety of other accident situations.

But even if a coming and going rule applies, there's gotta be a limit to it. And if you drive 100+ miles for your own benefit/fun/whatever, that's on you. You're not covered by worker's comp whenever you're on a 3000 mile (or whatever) trip to the doctor 'cause you had a huge itch to see Arcadia National Park. That's on you, not your employer.

Justice Nares says it more doctrinally than I do, of course. His holding says: "The issue we must decide is whether there is a reasonable geographic limitation on an employer's risk of incurring compensability liability under the Act with respect to new injuries an employee suffers while en route to or from a medical appointment for examination or treatment of an existing industrial injury. We conclude there is and hold that the employer bears this risk while the employee is traveling a reasonable distance, within a reasonable geographic area, to or from the medical appointment. Under our holding, a new injury that an employee suffers while traveling a reasonable distance, within a reasonable geographic area, to or from a medical appointment for examination or treatment of his or her existing compensable injury is also compensable under the Act. In the absence of a specific statutory or regulatory test for determining both the boundaries of the applicable 'reasonable geographic area' limitation and what constitutes a 'reasonable distance,' we also hold that such determinations must be made on a case-by-case basis considering all relevant circumstances."

Which seems right. "Fairness" and "reasonability." Always good tests. And one that, here, means that the accident's on Esquivel, who drove through a stop sign, not her former employer. Which seems even more right to me.

(I say that even though Esquivel's attorney, Thomas Hampton, is a USD Law graduate, and presumably misses out on a fairly good payday as a result. Sorry, Tom. Good try. But you're in the wrong on this one.)

People v. Bleich (Cal. Ct. App. - Oct. 9, 2009)

It's Columbus Day today. Not that this matters much to most non-governmental employees, for whom today is like any other Monday. Or probably even to Christopher Columbus, may he rest in peace. It's a close call as to which of the following I'd prefer: (1) to be a famous guy in history, or (2) to be a famous guy in history for whom a disputed holiday is named and that results in my name being taken in vain by a significant fraction of the population every year. Though I admit that those who think it's better to be known than loved would prefer the latter.

One good thing about the alleged holiday is that it lets you reread some cases from the previous day. Like this one.

It's a case from down here in San Diego with a typical fact pattern, but with a twist. Basil Abdulahad worked at the pharmacy at CVS and received a profanity-laced voicemail at 3:18 a.m. on his cell phone that accused him of trying to sleep with the caller's girlfriend and that threatened to slit his throat and put him in a bodybag. The voice sounded exactly like Basil's supervisor at CVS, who (after the voicemail) started harassing Basil and cutting his hours. Two days after the voicemail, a visibly shaken Basil reported the voicemail to the El Cajon police, who listened to the tape and thought the caller was pretty clearly high or on prescription drugs when the call was made. They then made a copy of the tape and played it to the assistant manager at CVS, who -- like Basil and his mother -- identified the caller as Basil's supervisor. The assistant manager also not only confirmed that the supervisor had lately started retaliating against Basil, but also said that customers had been saying that the supervisor had been manipulating their prescriptions, stealing their narcotics, and yelling and cursing at them to boot. This seemed to be consistent with the theory that the drugged-out supervisor left the message, especially when the supervisor denied to the police ever threatening Basil -- even before they told the supervisor exactly what they were there for. So, of course, they arrested the supervisor.

Sounds pretty normal, right? Here are the two slight twists. First, the supervisor's a woman: Ida Bleich. Second, this isn't an appeal of Bleich's criminal conviction. It's an appeal of the trial court's denial of her petition to be declared factually innocent of the offense.

Justice Benke affirms, holding that even though the trial court rightly dismissed the criminal case for insufficient evidence to bind Bleich over, she still wasn't clearly innocent. I agree with the holding, but truthfully, I'm not even sure that the trial court rightly dismissed the criminal charges. To me, it seems like there was more than enough evidence to bind Bleich over. Sure, maybe the jury finds her not guilty. But even without listening to the tape, she sounds pretty guilty to me. And that she was eventually disciplined for failing to properly account for Vicodin, Xanax and Viagra -- in addition to other bizarre behavior discussed in Justice Benke's opinion -- only heightens my suspicion.

Given that fact, I thought it was extremely bold for Bleich to file the motion to declare herself factually innocent, and even bolder to appeal the denial. Which, in the end, merely resulted in a published opinion that identified Bleich by name and recounted the pretty substantial evidence against her alongside other facts that I can't imagine at all assist Bleich's stellar reputation.

You gotta let go sometimes. Declare victory and go home. This was one of those times.

Kinsey v. Union Pacific Railroad Co. (Cal. Ct. App. - Oct. 9, 2009)

It doesn't surprise me, I guess, to find out that the potential recovery of expert witness fees in FELA cases is governed by federal law. It's a substantive statute. It's got special rules. Those rules might be frustrated if state law was held to govern disputes regarding expert witness fees in state court. I can grok that.

But it nonetheless seems a little strange to say -- as Justice Nicholson does here -- that because FELA is a substantive statute with special rules, the applicable rule in state court is not a FELA-specific rule, but rather Rule 68. That's the plain old settlement offer rule, which applies equally to both FELA and non-FELA cases. It may well be that there's, say, a federal common law regarding expert witness fees in FELA cases; i.e., some federal interest advanced by the recovery or non-recovery of such fees that state courts are then bound to apply. But it's difficult for me to believe that Congress intended to incorporate regular old Rule 68 and require state courts to apply that rule (instead of their own) merely because FELA's a federal statute with some unique rules of its own (and yet, none that exist on this issue). That seems different to me.

This reverse Erie stuff is admittedly hard. I wonder, doctrinally, if Justice Nicholson -- as well as his predecessors (Justice Nicholson relies a lot for his holding on Miller, a California case from 2007) is thinking about this the right way. It seems to me to matter whether the procedural rule you're requiring state courts to apply is a generally applicable rule or rather one that's for a particular statute for particular purposes. I agree state courts have to apply federal law in the latter, but am not sure the same's true for the former.

Reverse Erie. That'll get your blood flowing for the weekend, huh?

Vinole v. Countrywide Home Loans (9th Cir. - July 7, 2009)

Nothing really special today. One published opinion from the Ninth, and one published opinion from the California Court of Appeal. Neither of which I'd recommend.

So I'll just make a practical (and hopefully helpful) suggestion from an opinion published a little bit ago. Don't assume you get to move for class certification on your own schedule. Smart defendants can move to deny class certification even before you move to certify.

Just a reminder that litigation -- like many other games -- is often about strategy. Use it wisely.

Los Altos El Grenada Investors v. City of Capitola (9th Cir. - Oct. 7, 2009)

It's been a very good couple of weeks for owners of mobile home parks in the Ninth Circuit. Last week the Ninth Circuit reversed the district court's dismissal of a takings claim that challenged Goleta's mobile home rent control ordinance. And today the Ninth Circuit reverses the district court's dismissal of a takings claim that challenged Capitola's mobile home rent control statute.

Which makes me think that I perhaps should invest lots of money into mobile home parks. Given the amount of money at stake, maybe this is the next dot com.

One of the big upsides for the mobile home park owners has, quite frankly, been the panel's they've drawn. Conservatives, as you know, are big "regulatory takings" fans, and are far from sympathetic towards old-style rent control ordinances (which are prevalent in the mobile home industry, which generally caters towards retired and/or very-low-income folks). For example, here, both opinions are written by Judge Bybee -- hardly someone who's going to go overboard about how great rent control statutes are.

So last week, for example, Judge Bybee held that even though the relevant rent control statute permitted park owners to make a healthy profit -- and one approximately equal to the returns that investors in real estate generally made over the same period -- the takings claim was still quite viable since park owners could have made even more (indeed, much more) absent controls on rent. He lost Judge Kleinfeld, who dissented, but was able to persuade Judge Goodwin. And today Judge Bybee holds -- in a case all about procedure and federal/state comity -- that a park owner has a cognizable takings claim even though they had litigated very similar state challenges in state court. A holding that persuaded both Judges Wallace and Thomas.

I'm fairly sympathetic towards today's holding, though think that last week's is quite a bit more iffy (if only for the reasons identified by Judge Kleinfeld). Regardless of the merits, however, it's beyond doubt that it's a good era to own mobile home parks in the Ninth Circuit. You make a bit of money -- a fair piece, actually -- on the rent. And you've got big-money takings claims that at least the conservatives like a lot that give you both (1) the possibility of millions of dollars in your pocket as damages, and (2) the potential ability, if you win, to double or triple your rents (and hence make massive future profits) as well.

So not a bad thing to get in on. Conversely, probably not a great time to own a mobile home in the Ninth. 'Cause the possibility that you're about to be hosed is assuredly non-trivial.