Monday, November 30, 2009

People v. Zarazuza (Cal. Ct. App. - Nov. 30, 2009)

I love the color of this opinion. Which the Court of Appeal published earlier today.

The good stuff is in the first page or so, which reads:

"We publish this order to put to rest a challenge to a procedure commonly used by defendants to perfect appeals from judgments in criminal cases.

After his trial attorney failed timely to file a notice of appeal, despite a request to do so, defendant Sergio Zarazua asked this court to deem his notice of appeal to be timely under the “constructive filing doctrine.” [Citation] The People now move for us to vacate and reconsider our order granting defendant's motion. They contend that a request for constructive filing of an appeal may be sought only by a petition for writ of habeas corpus filed first in the superior court. Alternatively, the People claim we should not have granted defendant's motion for constructive filing of his appeal without waiting until expiration of the 15-day period for the People to oppose the motion. . . .

For years, the common way in which the issue has been raised in the Third Appellate District has been by motion. And for years, the People have not objected to this procedure. Indeed, for years, the People have not opposed such motions of constructive filing of appeals, even when they have lacked merit. In light of the People's apparent lack of interest in weighing in on the issue in any case, this court began ruling on such motions before the 15-day period for opposition has run. For example, in this case we waited 15 days after the motion was served on the People, but not 15 days after it was filed. Only now, after years of silence, have the People objected to the process used by this court. Although we reject the People's claim that the constructive filing doctrine can be raised solely by petition for writ of habeas corpus filed first in the trial court, we agree that, while the People have heretofore shown no interest in opposing motions for constructive filing of appeal, we nonetheless must wait to decide such a motion only after at least 15 days have passed since the filing of the motion.

Having opposed the process in this case, the People mysteriously fail to make any meaningful effort to show that defendant's motion lacks merit. Since the People have demonstrated no prejudice from our premature ruling that defendant's appeal will be deemed timely under the constructive filing doctrine, we shall deny the People's “motion to vacate and reconsider” the order."

I like it. Judicialese for: "Are you serious?"

In Re Marriage of Tejada (Cal. Ct. App. - Nov. 25, 2009)

As Chevy Chase says to Tim Matheson (as Matheson's wife, played by Dana Wheeler-Nicholson, looks on) in Fletch: "Sally Ann and Alan were married eight years ago. Making Alan a bigamist. Even in Utah."

What Fletch doesn't discuss -- but what the Court of Appeal does here -- is what this means for the property that Matheson and his (second) "wife" acquired. Something I admittedly never thought about until today. Does this mean that the property is community property? Or separate? (This is actually an issue in Fletch, since Matheson's character is wealthy, but the property that's been acquired has largely been obtained with his "wife's" money.)

Justice McAdams writes a balanced and pretty good opinion here. Holding that (1) even if the marriage is invalid (which bigamist marriages are), the spouses are still "putative" spouses, since one of the parties didn't know about the coterminous marriage, and (2) even the wrongdoing party (here, the husband) who knew about the bigamy is a putative spouse and is thus entitled to his share of the community property under the putative spouse doctrine.

This is far from a clear-cut case, and one could go either way on it. But I think that Justice McAdams gets it right. The best argument, at least to me, is that there's no need to spank the wrongdoing party because splitting up the property as community assets is precisely what the innocent spouse would have expected anyway pursuant to a valid marriage. That seems right.

You've still got the indignity of thinking that you're married to a man for (here) thirty years that you're not really married to. But that is what it is.

P.S. - Here's Fletch's take on the contemporary health care debate and the fact that "there have been a lot of changes in the law".

Friday, November 27, 2009

People v. Scott (Cal. Ct. App. - Nov. 24, 2009)

No opinions today from anyone. But lest us working stiffs be deprived, here's something from a couple days ago. To get one's blood boiling notwithstanding turkey-induced sleepiness.

It's one thing to call another opinion by the Court of Appeal wrongly decided. You see that on occasion. People disagree about the merits sometime.

It's another thing -- and it happens less often -- to call another opinion confusing and poorly written. Which is what Justice Butz essentially says here about an earlier opinion by Justice Ashmann-Gerst.

Or at least that's how I read the second paragraph of the opinion, and well as the follow-on discussion in Section C.

Justice Butz says it more nicely than I have, of course. Calling the holding of Justice Ashmann-Gerst's opinion "difficult to discern." But particularly given what comes subsequently, I think it's not "difficult to discern" the full panoply of Justice Butz's views about the prior opinion.

Wednesday, November 25, 2009

Standard Microsystems Corp. v. Winbond Electronics Corp. (Cal. Ct. App. - Nov. 24, 2009)

Ever get the feeling that, sometimes, the justices might take things a little . . . personally?

Not overly so, mind you. Since they're talking about the law, after all. But check out this paragraph from Justice Rushing:

"On February 8 and 11, 2008, respectively, WIL and WEC filed separate motions to set aside the default and quash service of process. Although both notices of motion cited section 473(b), the only cogent legal argument offered by either was that service had been defective. That is, the argument was cogent as to WIL, which argued that the service on it “failed to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention") in serving the summons and complaint . . . .” The gist of the supporting argument was that the Hague Service Convention, to which Israel is a signatory, does not contemplate the service of process, as distinct from other materials, by mail. WIL acknowledged that one California decision had held otherwise, but dismissed that case as “not determinative” in view of contrary authority. In doing so it either overlooked or ignored the fact that the cited decision, Denlinger v. Chinadotcom Corp. (2003) 110 Cal.App.4th 1396, 1399-1400, came out of this court, which would have appellate jurisdiction over any ruling the trial court might make. Nor did it acknowledge that we had, in that decision, pointedly examined conflicting authorities and concluded that the “the better, and more modern, view” is that in the absence of specific objection by the adhering country, the convention allows service by mail. (Id. at pp. 1400-1405.) Instead defendants countered with a case decided shortly after Denlinger that, without citing it, acknowledged the conflicting lines of authority and declined to decide which to follow since the service there was defective under California law. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 853.)"

Too funny.

I also liked the last paragraph of the opinion. Which demonstrates, in my mind, a keen and insightful knowledge of both the realities of modern litigation as well as the benefits that flow from crafting the law in light of those realities:

"[I]f one carried plaintiff's rope-a-dope hypothesis as far as mere fancy will allow, one might suppose that having craftily suffered a default for purposes of delay, they were just as happy to take a fall on the first motion for relief and to endure a permanent injunction against them, all in the expectation of securing relief from it too when they finally acknowledged the role of attorney fault and invoked the mandatory provisions of section 473. But fancy affords no basis for adjudication. Perhaps it will someday occur that a defendant has so little to lose from a default judgment that he is willing to gamble on securing the mere purchase of delay that would come from suffering its entry and then seeking its vacation based upon a trumped-up claim of attorney fault. It is difficult to formulate a credible set of circumstances in which such a strategy would actually make sense, but we cannot rule it out in the abstract. It is sufficient to the present occasion to say that there is no evidence in this record on which to attribute such an intention to defendants or their attorney. Nor did the trial court appear to do so. It simply read Jerry’s more broadly than the governing statute will permit. So far as this record shows, defendants' attorney in fact believed, quite mistakenly, that his clients were not obligated to respond to the complaint as served on them, and incurred no great risks in failing to do so. He was grossly mistaken on both points. The resulting default and default judgment were unquestionably the product of attorney fault, and defendants were entitled to relief under the mandatory provisions of section 473(a)."

Makes sense to me.

Tuesday, November 24, 2009

People v. Archer (Cal. Ct. App. - Nov. 17, 2009)

I've known some pill poppers in my day. Still do. It's a scary -- and dangerous -- thing to get addicted to the stuff. And seemingly oh so easy.

I say that with no disrespect. Thankfully, I don't have to live with chronic pain. I can only imagine what that must be like. To infect every single moment of your life with persistent, unending pain.

With that (important) caveat, I would nonetheless like to say the following: If you're really using a pound of marijuana each month, that's gotta really -- really -- impact your life. Sure, I know that if you're chowing down on it you use about quadruple what you'd need if you were hitting the bong.

But a pound a month? Wow. I think I'd be pretty consistently out of it and unable to function if I were unfortunate enough to require an ounce a month. And that's with an academic job, no less. I can't even fathom how I'd function -- at all -- under such a "medicinal" regiment.

Maybe someone out there knows (or knew) a hardcore stoner who toked up a pound a month. But I definitely don't. That just seems like a lot to me. A whole lot.
Admittedly, with all of the in-laws coming over for the holidays, maybe my perspective on the appropriate volume of mind-altering substances will change over the next month or so. We'll see.

Monday, November 23, 2009

Boose v. Tri-County MTD (9th Cir. - Nov. 21, 2009)

Plaintiff was probably going to lose this one anyway. It's an ADA case, and the central arguments are technical and complicated. Once she saw the panel draw -- O'Scannlain, Randy White, and Ron Wyte (a Bush appointee sitting by designation from the Northern District), I don't think you'd have much hope if you're on the plaintiff's side.

Particularly when, as here, I don't think that the facts of the case are exactly those I'd want if I was litigating in the public interest. Which is precisely what's happening here, where there's a public interest group representing the plaintiff and lots of public interest amici support as well. (Lots of amici on the other side, too, I might add.)

The core (overly simplified) issue in the case is whether the ADA can regulate municipal public transportation systems through private litigation or whether the Secretary of Transportation is the sole authority who can do so. It's a tough call, and there are reasonable arguments on both sides.

But even when, as here, it's a pure question of statutory interpretation, I think that facts matter. And what facts do we have here? It's a disabled plaintiff, so that obviously creates sympathy as well as a desire to ensure that she has access to a full and complete life. But what precisely what relief does she want in the lawsuit? Well, the defendant here operates the bus and light rail system in Portland and its environs. For disabled individuals like plaintiff, it operates door-to-door service -- not merely station-to-station like for the non-disabled -- largely through a separate fleet of 225 buses that provide shared rides. Sometimes, though, those buses aren't readily available, so there are also 15 sedans, and when those aren't available, the defendant simply calls the plaintiff a taxi (and pays for it).

Plaintiff has a doctor's note that says that the bus rides cause her "trauma" and recommended that in the future she instead be provided with a sedan or taxi to "reduce her neurological and emotional stress." Which may be entirely accurate. But let me tell you how it can easily look to an outsider, particularly one who may not be sympathetic towards the ADA itself: That plaintiff would prefer to ride in a private taxi or sedan rather than a bus (and who wouldn't, after all?), and is using the ADA to argue that the defendants have to give her what she wants.

I think that the facts, combined with the law and the panel, are simply too overwhelming here. Sometimes you've got to take a 30,000 foot view of the case. Particularly when it's a public interest case, and perhaps especially when you're emotionally invested in the cause. Here, that 30,000 foot view isn't so favorable. Hence, at least in part, the result.

Friday, November 20, 2009

Reed v. Town of Gilbert, Arizona (9th Cir. - Nov. 20, 2009)

You know why, inter alia, my second- and first-grade children don't read the Federal Appellate Reporter? No pictures.

But that's all changing. Check out page 15399 of the slip opinion by Judge McKeown. Yay! A picture!

Sure, it's just a picture of a sign on some grass. But the case is about signs, after all. So that seems appropriate.

Which also reminded me of that famous 1970s Canadian group, Five Man Electrical Band. Who look like this now (from their official web site). Their most famous hit, of course, being the 1971 song: "Signs".

You remember it. "Signs, signs, everywhere a sign. . . ." If you don't remember it, here's a version -- with the added bonus of some awesome real-life signs in the background while the song's playing.

Too bad Judge McKeown couldn't work in the song to the opinion. 1970s bands from Canada need all the help they can get, after all.

Thursday, November 19, 2009

Galleria Plus v. Hanmi Bank (Cal. Ct. App. - Nov. 19, 2009)

I appreciate that this opinion is only three (double-spaced) pages long. That's nice.

I just wish I agreed with it.

I understand where Justice Epstein's coming from. I really do. But I just don't agree.

Were I on the Court of Appeal, I could write a dissent that would be even more concise than Justice Epstein's opinion. Here's what it'd say:

"I respectfully dissent. Everyone admits that respondent (1) wrote a separate notice of motion and motion for sanctions, (2) served it on appellant, (3) and gave appellant a 21-day safe harbor period before filing the motion so he could safely withdraw it. That's precisely what CCP 128.7 requires. The only alleged deficiency in these papers was that the 'Date' and 'Time' listed for the motion were left blank; or, more accurately, listed as 'AAA' and 'BBB'. But that's understandable. The motion hadn't been -- indeed, couldn't be -- filed yet. Indeed, it might well never be, which is the whole purpose of the safe harbor provisions in the first place, since we assume and/or hope that appellant will withdraw the frivolous pleading. As a result, respondent understandably did not reserve a particular hearing date until after the 21-day period expired. Only after appellant didn't do what it should have -- withdrawn the frivolous paper -- did respondent obtain from the court and tell appellant the particular hearing date and time. None of which came as a shock to appellant, who (1) was so notified in the initial papers, (2) timely opposed the motion, (3) showed up at the appointed time and date, and (4) was indeed sanctioned.

My esteemed colleagues nonetheless reverse the sanction award solely due to the blank date and time in the motion. I would not be so parsimonious. I fully agree that CCP 128.7 motions must be written and served as motions, but this one was. It provided notice, gave them 21 days, and made clear that absent withdrawal of the offending pleading the motion would be filed on a date to be thereafter specified. To me, that it all that CCP 128.7 requires.

Moreover, not only do I see no need for a party to reserve a hearing date for a CCP 128.7 motion in advance of actually filing the motion, but substantial reasons not to do so. Particularly in this era of budgetary shortfalls, there is a serious downside to my colleague's approach, will requires parties to reserve court dates for motions that may well not -- indeed, should not -- go forward. Motion dates reserved but abandoned are deadweight losses. I see no reason to encourage, much less require, such a wasteful practice. Nor do I believe it to be the intent of the Legislature (much less anywhere expressed in the statute) to require litigants to do so.

There was no harm whatsoever from the initially omitted dates. Appellants knew if they did not withdraw the allegedly frivolous pleading, the motion would be filed. It was. For a hearing on a date for which appellants were given timely notice and at which they appeared. For me, this is more than enough.

The law disregards trifles. The law respects form less than substance. When the reason of a rule ceases, so should the rule itself.

These three principles are not only relevant -- indeed, in my view, properly dispositive -- here, but also derive not merely from my own head. They are, respectively, Sections 3533, 3528 and 3510 of the California Civil Code.

To me, the blanks here are fine; indeed, may even be preferable. And I see nothing in Section 128.7 or legislative intent that convinces me of the contrary. If there was an error here, it was a trifle, and assuredly one of form rather than substance. If appellants filed a frivolous paper, we should not reverse their sanction on the basis of two insubstantial blanks that were rightly filled in later.

No harm, no foul. I dissent."

Perry v. Proposition 8 Official Proponents (9th Cir. - Nov. 19, 2009)Nov.

I teach it to my first-year students in civil procedure. But apparently the lesson hasn't filtered down to lawyers for the Liberty Counsel in Lynchburg, Virginia.

Here's the scoop: You can't intervene in a lawsuit if your only beef with an existing party is over litigation strategy. Especially when, as here, your strategic beefs are totally minor.

(And, I might unnecessarily add, completely stupid. Yeah, maybe the Liberty Counsel wouldn't stipulate to the fact that homosexuals have had a history of discrimination -- which is exactly one of their beefs here. But counsel for the Proposition 8 Official Proponents are willing to do so, even as part of a spirited defense of Proposition 8, because they're smart. Particularly when that stipulation (1) is not only indisputably true, but (2) there's already a Ninth Circuit case directly so holding.)

We say that intervention as a matter of right in such settings is unavailable because you are "adequately represented" by the existing parties. Which is clearly the case here.

Judge McKeown crushes on this one. It's not even close.

In Re Karen Golinski (9th Cir. - Nov. 18, 2009)

"Yesterday, my good buddy Steve entered this order that said that Brad was entitled to get benefits for his same sex husband. (Which Shaun dutifully mentioned here.) Today, I'm entering this order that says that Karen gets similar benefits for her same sex wife. And I'm just as serious -- perhaps even more serious -- about this as Steve. Steve gave money. I'm giving money and some serious injunctive relief. Stop messing around!"

I can't fathom that these orders weren't coordinated by the two chambers. Which makes it especially interesting to contrast the two (only slightly) different approaches. (To take a relatively trivial point, for example, the first order uses the petitioner's name without comment, while the second order drops a footnote to say that ordinarily names are confidential but that the opinion discloses it only because the petitioner consented.)

Plus, another signature. This time from Chief Judge Kozinski.

Funky stuff.

Wednesday, November 18, 2009

In Re Brad Levenson (9th Cir. - Nov. 18, 2009)

You don't see many Ninth Circuit orders/opinions that are actually signed by the author these days. It's typed, or there's a stamp, or whatever. So it's sort of cool to see an actual signature.

Plus, this is an interesting case. Brad Levenson is a deputy public defender, and he's had a same-sex partner for 15 years -- and has been married to him (in California) since 2008. After he got married to Tony, Brad tried to add him to his health insurance, but (predictably) was turned down by the feds, citing DOMA. So then Brad took the matter up with the plan, which -- in something that's not at all usual -- provides for resolution by a circuit judge. In this case, Judge Reinhardt.

Previously, Judge Reinhardt concluded (and still concludes) that Brad and Tony should get their benefits, but the federal government still refused. So now Judge Reinhardt says that he won't order the federal government to buy Tony benefits -- since that'd be forcing a contract on the federal government, which is indeed problematic -- but he will give Brad money to compensate him (and Tony) for what they've been forced to spend on Tony's insurance. Since there's a right here (equal protection) and there should be a remedy as well.

Which ends with Judge Reinhardt's signature. Alongside his statement that he's going to retain jurisdiction to see to it that Brad and Tony not only get their money now, but in the future also. The federal government can do what it wants. But Judge Reinhardt's going to do what he wants as well.

Tuesday, November 17, 2009

People v. Phu (Cal. Ct. App. - Nov. 17, 2009)

I bet this case comes out differently if it's a civil lawsuit as opposed to a criminal restitution order.

Which is interesting, because the standard of proof is supposed to be higher in criminal cases. But as far as setting criminal restitution goes, we're nonetheless a lot more willing to speculate than we permit juries (or judges) to do in a civil case.

U.S. v. Liera (9th Cir. - Nov. 4, 2009)

I'd have thought that it's okay to admit evidence from a taped interrogation when the audio tape from the first interrogation didn't work and so the government interrogated the suspect a second time -- and that that'd be the case even if the reiterrogation resulted in missing the arraignment calendar that'll happen in the next hour or so and hence delayed the arraignment another day.

But Judge Pregerson convinces me that, in federal court at least, I'd have been wrong.

There's a statute here. You've got to arraign them within six hours, with very few exceptions, and if you don't, the statute says you can't use their statement.

So be it.

Monday, November 16, 2009

Mangano v. Verity, Inc. (Cal. Ct. App. - Nov. 16, 2009)

You hear about "out of control" verdicts all the time. Then there are decisions like this one.

Thomas Mangano sues his employer, Verity, for disability discrimination. He loses on summary judgment. And, three weeks later, Verity fires him.

Verity appeals the trial court's ruling. When it fired him, Verity offered Mangano 17 weeks of severance pay in return for a release, but the release would even let Mangano continue to litigate the soon-to-be-on-appeal disability discrimination case. But Mangano tells Verity to stuff it, and rejects the 17 weeks.

The Court of Appeal then affirms. But in the meantime, Mangano has filed yet another lawsuit against Verity; this time, for retaliation -- i.e., for firing him allegedly in response to the initial lawsuit. And Mangano successfully avoids summary judgment on this one, and gets to trial.

But loses. The jury finds that, nope, that's not why he was fired. And Mangano again appeals. But this one fares no better than the first one. Affirmed.

So Mangano's 0-2 and doesn't have his four months of pay. Plus he's got four-plus years of litigation and aggravation.

In retrospect, probably a bad call. If litigation's indeed a lottery, in this one, Mangano gets what most everyone gets in the actual lottery. Nothing. (Or, given the adverse cost awards, less than nothing.)

Merrill Lynch v. Arelma, Inc. (9th Cir. - Nov. 13, 2009)

When the district court's way too perfunctory, the Ninth Circuit can be a bit perfunctory as well. Hence this six-page (double-spaced) order, which not only reverses the district court, but takes the case away from the district judge as well.

Friday, November 13, 2009

People v. McRoberts (Cal. Ct. App. - Nov. 2, 2009)

You can have one of two reactions to this fact pattern, which involves someone being committed (after their period of incarceration has ended) as a sexually violent predator for an indeterminate period. Indeed, you can have -- as I do -- both.

Here's the scoop about Daniel McRoberts. Who's clearly got a (big) problem. I'm giving you his whole story so you'll get a clear and unadulterated sense of the guy:

"The defendant, born in August 1983, committed his first offense in May 1998. A girl whom the defendant knew encountered him in her bedroom. He had items of her clothing, including a bra, in his backpack. The juvenile court placed defendant on probation for burglary. Five months later, defendant walked up to a nine-year-old girl on a playground, made a sexual remark, and penetrated her vagina with his finger. This time, the juvenile court found he had committed a sexual battery and ordered unspecified treatment.

In May 1999, defendant walked up to a 14-year-old girl whom he found attractive and brushed against her buttocks and vaginal area, leading to another finding that he had committed sexual battery. In September 1999, defendant was riding his bicycle on the way to a treatment session when he saw a 13-year-old girl standing near a soda machine on school grounds. He approached her and told her she was pretty, and then reached inside her shirt to fondle her breast. When he tried to do it a second time, she kicked or pushed him away. Calling her a bitch, he rode off. This time, the court found he had committed child molestation and ordered his placement in the (then-named) California Youth Authority (CYA), where he participated in “pretty intensive treatment” for sex offenders until his release in 2004.

Two months after his release on parole, defendant was driving down the street and pulled up to a woman and her young child. As he purported to ask for directions, the woman noticed that he was masturbating. Making a vague threat about kidnapping the child, he drove off, still masturbating. He served a two-month jail term for indecent exposure. Ten days after his release from jail, defendant drove up to an 11-year-old girl who had just gotten off the school bus near her driveway. He got out of the car and offered her money for her underwear. When she retreated into her yard, he grabbed her hand. She either kicked him or fell backward, at which point defendant released her and drove off. He admitted his actions to his therapist, who contacted investigators. A jury found him guilty of attempted kidnapping and child molestation, and the court sentenced him to state prison for the term he was serving at the time of the filing of the present petition."

So here are my reactions.

On the one hand, again, McRoberts has a big problem. He's clearly -- and pardon me for using complex medical terminology here -- what we call "messed up in the head." Some sex-related wiring in his brain obviously isn't oriented appropriately, and that's causing big problems. As a result, he's not someone we want out on the street. And by "we," I mean to especially include people (like me) with small children. Will he reoffend? Yeah. I think so. His problem persists.

So that's my initial reaction. But the counterpart is: Yeah, he's messed up, but it looks to me like he's always going to be messed up. He's was burglarizing bras and digitally penetrating 9-year olds in playgrounds when he was 15, after all. Not to mention what he did when he was 16. If that's how you're spending your teenage years -- and we're only talking about the stuff he did that we know about, mind you -- there's something really, really messed up there. Something that we may well be unable to fix. So, sure, now that he's 26, he's probably still broken. But he's probably always going to be broken (or cross-wired, or whatever). Do we really say to the guy: "Welcome to Atescadero. You'll be here for the rest of your life. Enjoy."

This, of course, is the perennial problem with preventative detention. But it strikes me as especially applicable here. Here we have a young guy who's profoundly screwed up even as a youngster. If he's not fixed at 26, when exactly is he supposed to be fixed (if ever)?

I guess the cheap way out is to say that he's "fixed" when he's spent a certain number of years (or decades) saying "Oh, I'm sorry. I've learned. I have a problem. I'll never do it again." And by "a certain number of years" we basically mean "however many years until professionals say he probably both really means it and is mentally capable of actually meaning it." But I'm not at all confident that fundamentally adds anything. Because the science here -- at least for people like this -- just ain't that good. Much less that exact. It seems to me like we're just taking a guy and saying that we're going to keep him in until he's 50 or something and then hope that he's at that point "learned his lesson". Or that, having been institutionalized for 30 years, his brain is so messed up (albeit in different ways) as a result of permanent institutionalization that the wrong-way sexual wiring just doesn't much matter anymore.

So I don't know. On the one hand, I don't want this guy out. On the other hand, I'm not all that happy about keeping him in forever on the basis of either (1) the stuff he did in his teens, or (2) the way he was born/developed in adolescence.

But it seems that, if we're honest with ourselves, we may well have to do one or the other. And that just doesn't seem right. Either way.

Thursday, November 12, 2009

Cassell v. Superior Court (Cal. Ct. App. - Nov. 12, 2009)

I'm going to have to go with Justice Jackson on this one, rather than Justice Perluss. Which makes the vote 3-1.

Yes, the statute says that mediation stuff is confidential and inadmissible. Yes, the statute broadly defines what I've called "stuff," and includes any "oral and written communications" made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation."

So I agree that technically covers even conversations between an attorney and client before the mediation; e.g., a conversation that the attorney and client had the day before the mediation that prepped the client for the mediation, or a letter doing the same thing. And Justice Perluss is right that, generally, we don't futz with what the Legislature has done; that's their job, not ours.

But come on. That's not at all why we have mediation confidentiality. The whole purpose of the statute is to protect communications amongst the participants, not to protect communications that are entirely internal to one side. For that, we have the attorney-client privilege, and it does a darn good job.

But it doesn't apply when, as here, the client sues his lawyer. When the client says "You forced me to sign a $1.25 million settlement agreement even though I told you I wanted more," both sides get to use privileged information to prove and defend their respective cases. According to Justice Perluss, however, if there's a letter from Client to Attorney the day before the mediation that says "Just so you know where I stand at the mediation, I'll accept anything in the seven figures, so consider that your marching orders," that's inadmissible. Since this was, after all, a communication the purpose of which was to prepare for the mediation.

I get the sentiment. I just don't agree with it. You interpret statutes with a guide to their purpose. The latter's helpful in interpreting or, in some cases, limiting the former. This is one of those cases. There's no reason to protect internal communications. For this reason, even in a more extreme case than the one here, I'd hold, for example, that mediation confidentiality does not cover what an attorney privately told his own client even in the mediation. And vice-versa. When the parties sit with their lawyers in their separate rooms, alone, there's no expectation (or even reason) to keep the communications therein confidential in the event of a dispute between these two parties. And every reason not to keep them confidential, if only for cases exactly like this one.

So I'm on board for the majority opinion here. Would it be better if the statute wasn't written so broadly? Sure. But I understand why it was. To me, that textual breadth still doesn't require us to do something that the Legislature didn't intend. And that would be inequitable to boot.

Just remember that there's a fight here the next time you head into mediation land. I think the case comes out the right way. But that doesn't mean they all will. Head's up.

Matsuo v. United States (9th Cir. - Nov. 12, 2009)

This morning, Chief Judge Kozinski writes one of his classically informally, perfunctory opinions. Full of contractions and the like, it basically says -- shortly and sweetly -- "You lose, and you lose because you lose. This is a sufficiently easy case that I don't even have to bother telling you why you lose in detail because it's so obvious."

Which is often distressing to the lawyers -- or at least those on the losing side -- because they've spent 50 or so pages arguing the various issues in detail. As a result, they often really want the court to at least respond to their arguments, rather than giving facile rejections, even if that's the way the case is going to end up.

For that reason, I'd probably be somewhat less inclined that the Chief is to write opinions like this one. Not because such opinions really need the extra language, since they somewhat don't. But I'd generally due so purely for respect and courtesy issues. The lawyers bothered to put in the time and make arguments. They at least deserve the courtesy of a explanatory rejection.

My reaction is the same, by the way, to exceptionally conclusory unpublished dispositions; e.g., ones that are merely one or two pages. Those often come out of the Ninth Circuit nowadays, and their frequency has only increased (for predictable reasons) after they changed the rules to allow unpublished dispositions to be cited.

All that said (and heartfelt), there are nonetheless some cases that may indeed merit largely conclusory resolution. And this might well be one of them.

In my mind, to state the question presented by this case is pretty much to answer it. Here's the first sentence of the opinion: "We decide whether the Federal Employees Pay Comparability Act of 1990, 5 U.S.C. § 5301 et seq., imposes an unconstitutional burden on the right to travel." Does it violate the Constitution to pay people in different states different amounts? Of course not! It's absurd to even argue the contrary. Could you come up with an argument? Sure, I guess. And I guess if you did so you might ground it on the right to interstate travel. But you'd lose. For sure. There'd be a zero percent chance of victory. And entirely rightly so.

In those cases, I'm admittedly more on board for basically not wasting my time. I don't doubt that the plaintiffs (and their counsel) here are heartfelt, and believe what they believe. But in that select group of cases in which someone else's reality is so radically different from the world (and Constitution) that's actually present, I might be persuaded to get a little conclusory as well. Since my sense of courtesy is somewhat diminished by the fact that I think the case is not only so easy, but that pretty much everyone else in the world who's rational should understand that it's an easy case as well.

Ultimately, I might have been a little less conclusory that Chief Judge Kozinski here. Perhaps out of mere respect for plaintiff being able to come up with an argument that doesn't make me fall out of my chair laughing. But only slightly.

Wednesday, November 11, 2009

Kaye v. Trustees of San Diego County Public Law Library (Cal. Ct. App. - Nov. 10, 2009)

Things were not happy at the San Diego County Public Law Library. Read the whole thing for a peek inside an office that was at least partially dysfunctional. Whether the result of one whacko staff member or a broader institutional problem is, of course, the genesis of the dispute.

Though I'll add that the individual employee -- Michael Kaye -- loses this case, on summary judgment at that, which may shed some light as to at least how some people see the thing.

More generally, this case is a concrete reminder that you should not -- I repeat, not -- send long, rambling e-mails to your work colleagues. Even about things that you think are deeply important and worthy of profound workplace discussion. Yes, it seems important at the time. Yes, you have really strong feelings on the topic, and really think that these issues need to be addressed. And trust me that I know it's so, so easy to just hit the "send" button.

But pause. Sleep on it. Take a fresh look at the proposed e-mail the next day. Ask a trusted friend to review it first. Make sure you really, really want to send it.

Doing that may well save your job. As I strongly suspect it would have saved Kaye's job here.

Tuesday, November 10, 2009

National Parks v. Kaiser Eagle Mountain (9th Cir. - Nov. 10, 2009)

Here's a quick quiz for the afternoon. It's an incredibly easy one, so if you fail it, you should give yourself a serious spanking, and study some more regarding who's who on the Ninth Circuit.

Judges Pregerson, Paez and Trott are drawn for an environmental law case. There's a majority opinion and a dissent. Judge Pregerson writes one of 'em, and Judge Trott write the other.

Who's the author of the following, which are in the first and final paragraphs of his opinion:

"What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting — if not impossible — such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the “due process” of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. . . .

I end with the Technical Advisory Panel’s evaluation: “the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.” Don’t hold your breath."

Does that sound like Judge Pregerson, or Judge Trott?

Read the entire 87 pages of this one to figure out the answer. Which, coincidentally, is an entirely appropriate punishment if you don't know enough already to figure out who's who.

POSTSCRIPT - I definitely can't take credit for the following, by the way, but a reader in black robes e-mailed me to mention that Ulysses wasn't on the Argo. And to chide me -- and rightly so -- for not catching it. My bad. Though, in retrospect, yeah, I totally knew this story (at least in vague terms), so wonder why I skipped over that. I even knew about the Sirens and the Cyclops (though had forgotten about Scylla and Charybdis). Also funny that Judge Trott knows all this stuff but still makes the error. I put that down to a temporary mental block, and am sure we'll see an amendment. (Which also leads me to wonder if Pregerson and Paez's chambers made the same oversight that I did, or whether they noticed the error in the dissent but decided not to mention it. Which would be totally harsh.)

In Re Matter of Smith (9th Cir. - Nov. 10, 2009)

For all those civil lawyers out there (and even you criminal folks), let me ask you this: How many hours do you think it would take you -- total -- to defend a complex multi-count fraud, money-laundering and conspiracy felony trial in federal court? Five hundred? A thousand? More?

Plus, ask yourself this: If a client came in and asked you to offer them a flat fee, what would you quote them? Assume, of course, that you had the expertise to do the case. Here's one more fact that might be relevant: The trial alone is going to take a full week.

I ask all this because this morning, Judge Tallman -- acting in his capacity as the Chief Judge's delegate in the Northern Administrative Unit for indigent defendant CJA fee issues -- reminds everyone what the actual federal compensation regime is. You get a maximum of $8600. At the princely rate of $110/hour.

Which makes me think about asking my students: "Do you really want to be an appointed private criminal defense attorney?" Or simply to remind everyone of the vast, vast disparity between compensation in the private versus public sector -- or civil versus criminal sector, or appointed versus retained, etc.

I'm not complaining about what Judge Tallman actually does here. The court's allowed to go over the $8600 cap if the case is especially "complex", and that's precisely what the court did here. Mind you, the attorney still makes only $110/hour. But you're at least allowed to spend more hours (or, more accurately, get paid for them) if, in retrospect, the court believes that the matter was complicated.

But Spokane attorney Gerald Smith still gets around half of his requested fees cut. He says in an interim fee request that he wants another $47,000, and he only gets approved for $27,000. At, again, $110/hour. So Smith complains. But Judge Tallman notes that Judge Quackenbush, who is the one to administered the haircut, was both at the trial and is extremely experienced in the assessment of how much work a criminal trial case. Plus, Smith didn't exactly help himself by giving a 10-minute opening statement and not putting on any witnesses. Even if you really did spend an extra 700 hours on the case -- which no one's doubting -- sometimes it's hard to pump your fees up even extra-beyond the statutory maximum when you've got very little to show for it. Either at trial or in the results (since your client was convicted on all counts).

But the larger point is that no one's getting rich on $110/hour and $8600 felony caps. Plus don't forget you've got to pay your overhead with that as well. Plus those $100,000+ in student loans.

Sort of makes you want to get an MBA or go into investment banking, huh?

Monday, November 09, 2009

People v. Hernandez (Cal. Ct. App. - Nov. 9, 2009)

I can count on one hand the number of times I've seen a petition for rehearing actually succeed in changing the result. It's generally one of the biggest wastes of time -- at least in terms of practical effect -- that you can do in the Court of Appeal.

Can it occasionally (and, even then, rarely) result in minor nonsubstantive changes? Sure. Can an exceptionally well-argued petition for rehearing even sometimes alter the court's legal reasoning? Yep. That very, very rarely happens as well.

But change the actual result? That's almost unheard of. If only because the Court of Appeal has already heard the appeal and decided it. They're busy. They're locked in. Your additional words generally aren't going to matter.

But for even the most ironclad judicial rule, there are exceptions. And here's the exception from earlier today that proves it.

I congratulate Justices Elia, Rushing and Premo. It's very, very easy to just stick with what you have already done. It's harder -- both practically and intellectually -- to devote real effort and think about a petition for rehearing and decide that, you know what, the losing party is actually right. And then change both your mind as well as the result of the appeal. But that's precisely what happens here.

Hernandez was convicted, and the Court of Appeal initially affirmed the conviction. It was, indeed, so easy and straightforward that this initial decision was unpublished. But then his counsel -- Marc Zilversmit (kudos to Marc as well) -- filed a petition for rehearing, basically arguing that what he had said all along was right. And the Court of Appeal agreed, and on that basis reversed the conviction and remanded for a new trial. This time, in a published opinion.

I'm impressed. Extremely, extremely impressed.

It's easy to get it right the first time. It's even easier to think -- or pretend -- you got it right the first time even if you start to doubt yourself.

It's much, much harder to do what the Court of Appeal does here. As well as exceptionally rare.

So when it happens, the Court of Appeal deserves a shout out.

So consider this precisely that.

U.S. v. Ruckes (9th Cir. - Nov. 6, 2009)

I feel like I shouldn't have to say this. Yet the same basic fact pattern -- with only slight variations -- comes up again and again.

Let's assume you have some crack cocaine and a loaded weapon with you in your vehicle. Is it really wise to go over 80 mph on the I-5? Remember: that's going to give the police probable cause to stop you. Can you really not limit yourself to 65 miles per hour regardless of the cost? You're really that itching to go to prison for the next decade or so?

Oh, yeah. Did I forget to mention that you're driving on a suspended license? Shouldn't hat maybe should factor into your equation too when you're thinking: "Hmm. 65 or 80? What's the best speed for me to choose on this one?" Right?

As for the crack itself, do you also think you could hide it a little better than spack dab in the center console of the car? I mean, come on. During a search the police are going to look there pretty much first thing. And find it. And arrest you. And send you to prison.

And even if the Ninth Circuit subsequently finds that, yeah, they technically shouldn't have searched (because you were already under arrest at the time of the search, and didn't have access to the car any longer), since the stuff was so freaking easy to find, they're still going to affirm. On the ground that the stuff would have been found in an inventory search anyway. Since, again, you made it totally easy.

To summarize. Don't carry crack. Especially alongside weapons. And if you do, don't speed. Or put the stuff virtually in plain sight.

Something to think about as we start our workweek.

Toal v. Tardif (Cal. Ct. App. - Oct. 30, 2009)

I thought I'd have a problem with this one. But in the end, I probably don't. At least with the end result.

The Toals buy a house from the Tardifs and have a beef with them, and end up suing. Two months after the Tardifs answer, attorneys for both parties say in court that they hope to arbitrate, and the next month the attorneys sign a stipulation to arbitrate. The clients don't personally sign, but the attorneys' signatures say they're "for" the clients.

Then the arbitration proceeds, with no one objecting. As you'd expect, at the arbitration, one of the parties (the Toals) prevails. They then attempt to confirm the award. At which point the Tardifs say: "Hey, we never agreed to arbitrate. Our attorney did that without our knowledge, and then during the arbitration called us a crybaby when we complained [not publicly, of course] about it."

Which, in my opinion, is utter crap, and not at all credible. So the trial court confirms the award. At which point Justice Ikola reverses.

Which, again, I thought I'd be irate about. Since (1) I think the Tardifs did indeed consent, (2) clients are generally bound to what their attorneys do, and (3) I'm sure the Tardifs would not have complained if they had won the arbitration. To me, (3) seems a pretty easy way to affirm. Your "secret" reservations aren't good enough. Call it waiver. Call it forfeiture. When you are willing to obtain the advantages of arbitration by remaining silent, you can't thereafter object if the proceeding doesn't come out your way.

I still think that's right, and would have liked to see someone make that point (and for Justice Ikola to respond to it if he thinks it's wrong). But while Justice Ikola reverses the confirmation, in the end, I think it'll be fine. Since rather than denying confirmation, he just holds that the trial court is required to hold an evidentiary hearing to see whether or not the Tardifs indeed granted their consent. And since I know (or at least think I know) how that one's coming out, I guess I'm okay with the end result. Even if I think a better -- and quicker -- resolution of the appeal might have been to hold that you're not allowed to sandbag your opponent and objecting to arbitration (on the grounds of alleged lack of consent) only after you lose.

Friday, November 06, 2009

Credit Suisse First Boston v. Danning, Gill, Diamond & Kollitz (Cal. Ct. App. - Nov. 3, 2009)

There are few areas of the law about which I know so strikingly little that I can't tell you in the slightest whether an opinion is totally wrong or totally right. But this is one of those areas.

Judgment debtor statutes, ORAP liens, etc. It's all Greek to me.

But I can say one thing. The opinion by Justice Flier totally sounds right. Even though it might as well be in a foreign language, the writing is so clear and concise that I feel like what she's saying is correct even as I am forced to admit that from sentence to sentence I'm not even sure what she's saying -- and hence, definitionally, shouldn't be able to form an opinion one way or another about whether what she's said is right or not.

That's pretty darn impressive. Good job, Justice Flier.

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

This was especially chilling to me. If only because I could only imagine what it feels like to be totally helpless, and under someone else's total control, when they stick a feeding-tube into your abdomen (rather than your stomach, where it belongs) and you slowly, slowly die over the next several days -- with your eyes wide open, helpless and in pain -- as food continues to pump in your gut and the people in control of your very life do nothing.

Here are the (fair warning: grisly) facts:

"Jeremiah Allen nearly drowned in a surfing accident in October 2003. He was rendered semi comatose and paraplegic. In January 2004, he was admitted to Care Meridian, a long-term care facility at which respondent Medlin was director of nursing and Monterroso was employed as an LVN. . . .

From the time of his accident, Allen had been fed with a size 20 gastrostomy tube, or "G-tube." . . . On June 2 at 3:00 a.m., Monterroso found Allen's G-tube lying beside him on the bed. She did not know how long it had been out. She noted in his chart that he had pulled it out forcibly, but she did not see that happen. She did not call Allen's physician or alert Medlin, and she did not check the standing orders. She had not recently been trained in G-tube placement.

Monterroso replaced the G-tube. She used two methods to try to verify that she had placed the tube in the stomach. First, she used a stethoscope to listen to air passing from a syringe into the stomach (auscultation) and heard a whooshing sound in the abdominal area. Next, she unsuccessfully attempted to aspirate (pull up) gastric fluids. From the absence of gastric fluid, she concluded Allen's stomach was empty.

Monterroso proceeded with Allen's scheduled feedings after 3:00 a.m. and again at 6:00 a.m. She reported in his chart that he tolerated his 3:00 a.m. feeding well, but in the medication check-out record she noted that at about 4:00 a.m. she gave Allen ibuprofen for "discomfort with G-tube removal" and Ativan for "G-tube reinserted, (increased) anxiety." She did not recall any problems with the 6:00 a.m. feeding.

After his 3:00 a.m. feeding, Monterroso noted that Allen was sweating, grimacing and groaning. She testified that she was not concerned because she had seen him sweat, grimace and groan before. She left her shift at 7:00 a.m. without notifying Allen's physician or Medlin of Allen's condition. She did inform the morning LVN, Patsy Carper, that she had replaced Allen's feeding tube. Before Monterroso left Allen appeared restful to her.

Carper observed that Allen was sweating and straining. She testified that he always sweated and strained before having a bowel movement. Carper had worked at the facility for two weeks and had not completed orientation. . . . At about 7:00 a.m., Certified Nursing Assistant, Lazara Lavano, took Allen's vital signs. She noticed that Allen was pale and felt that something was wrong. She had not seen him this way before. She had cared for Allen since his arrival at the facility six months earlier.

Medlin arrived at the facility sometime after 9:00 a.m. At about 10:00 a.m., Lavano and another staff member put Allen in a therapeutic standing frame. Lavano saw that he was breathing fast and perspiring. Allen's therapist saw that he was pale, sweating profusely and his eyes were wide open whereas they were usually closed. The therapist was new at the facility and had treated Allen only once before.

Staff returned Allen to his bed to rest before a scheduled therapy session. Lavano told LVN Carper what had happened. The therapist continued checking on Allen during the morning and Allen continued to sweat profusely.

Sometime between 11:00 a.m. and noon, Lavano took Allen's vitals. He had a fever over 101 degrees. She tried to take his blood pressure but could not hear anything. Another staff member tried and also could not hear anything. Lavano told the morning nurse that Allen had a fever, she could not get his blood pressure and he was pale and did not look good. Lavano used ice to try to cool Allen.

At about 11:00 a.m., Carper asked Medlin to check Allen because he was sweating. Medlin entered Allen's room. Carper told Medlin that Lavano could not hear Allen's blood pressure, but that it was fine because she, Carper, was able to get his blood pressure using palpitation. Medlin, who was sick with a cold, left the room and returned sometime before 1:00 p.m. When he returned, he said, "Oh, he's fine. He's probably competing with me."

Between 11:30 a.m. and noon, Medlin spoke by phone with Allen's treating physician about a routine meeting. Medlin did not mention Allen's condition.

By 1:30 p.m., Allen's temperature was 101.2. Carper reported this to Medlin. She gave Allen Ibuprofin.

Sometime during the afternoon a friend of Allen's came to visit. Allen's eyes were wide open and he looked desperate. Allen's eyes were usually closed. The friend had visited several times before for about an hour each time. He called for help and nurses came in and said, "[Y]ou have to leave now."

At about 1:00 p.m., Allen's physician received a message that Medlin was trying to report a change in Allen's condition. The physician called Medlin's cell phone between 1:00 p.m. and 1:15 p.m. Medlin told the physician that Allen's pulse was under 60 and his oxygen saturation levels had dropped dramatically. Medlin did not tell the physician that Allen's G-tube had been changed. The physician told Medlin that Allen needed to be sent to the emergency department.

Dispatch records showed that facility staff called an ambulance company about an hour later, at 3:21 p.m., requesting a routine transfer of a patient with fever. The call did not come through 911 and there was no dispatch note that transfer was urgent. Paramedics arrived within eight minutes at 3:29 and found Allen dead. They reported that he had rigor mortis in the jaw, his skin was cold and he had lividity. These signs indicated that he had been dead for at least half an hour. . . .

An autopsy determined that Allen's cause death was peritonitis: an infection of the lining of the abdominal cavity which can develop and cause death within hours. The G-tube was found in Allen's abdominal cavity, and the cavity was filled with all of the formula and water that he had been given in the 12 hours before death."

What a nightmare. A chilling, horrible nightmare.

Monterroso and Medlin were ultimately criminally charged with recklessly causing Allen's death, but were both acquitted by the jury. They then moved for a finding of actual innocence and the destruction of all their criminal records, which the trial court granted. But the Court of Appeal reversed, holding that there was legitimate probable cause and thus "objective factors justified official action" sufficient to preclude a finding of actual innocence.

A holding that may well have been motivated by the especially touching facts of the case. At least if the reaction of the panel was at all similar to mine.

Thursday, November 05, 2009

U.S. v. Hinkson (9th Cir. - Nov. 5, 2009)

Sometimes it helps to take things in chronological order, if only to see how things develop over time.

(1) On May 30th of last year, the panel issued this opinion. [Pardon me for the lack of links right now; I'm in DC using a Mac, and can't quite figure out how to get the links to work -- I'll figure it out soon enough.] Which reversed the district court and granted a new trial to a defendant who was convicted of, inter alia, hiring a hit man to take out a federal judge.

(2) That same day, I posted this. Which basically said: Wow. You had on the one hand a massive, detailed opinion by Judge Willy Fletcher. Strident, too. But you had an equally strident dissent. By Judge McKeown, no less. I pointed out that you don't see something like this that often. Two people who are generally sympatico nonetheless going at it in their respective opinions. With not a single hold barred.

(3) Later that year, the case then gets taken en banc. Your faithful reviewer then comments on that event, saying (among other things) that "I bet this one results in a split opinion" in the en banc court.

(4) Today the en banc court issues its opinion. Guess who wins as between Judges Fletcher and McKeown? I'll give you a hint. The dissent to the en banc opinion is written by . . . Judge Fletcher.

But let me say this as well. This is about as conservative an en banc panel as you're likely to draw in the Ninth Circuit. As well as a hard-core right/left split. Who's in the dissent? The four judges drawn for the en banc panel appointed by Democrats: Judges Fletcher, Pregerson, Wardlaw and Paez. Who's in the majority? Seven judges, each of whom was appointed by a Republican: Judges Kozinski, O'Scannlain, Kleinfeld, Callahan, Bea, Ikuta, and Randy Smith.

Mind you, a Clinton appointee -- Judge McKeown -- authored the panel dissent. I'm also quite positive -- even with no inside information -- that several Democratic appointees voted to take the case en banc, which suggests that they too may have been sympathetic to what ends up in the en banc court as the exclusive view of Republican appointees.

That said, this case shows you a couple of things. First, panel draws may well matter. Second, they can occasionally be unrepresentative of the court as a whole. Finally, as I mentioned to Chief Judge Kozinski at dinner one evening, there may well be practical, concrete consequences as a result of the Ninth Circuit's decision to go back to 11- (from the "experiment" with 15-) judge panels.

I'm not saying that the extra four would have all broken with the dissent on this one and thus turned a 7-4 into an 8-7 the other way, particularly given our knowledge of either certain or likely Democratic defections here. But it's definitely possible. And, both more importantly as well as more generally, the case assuredly raises an issue regarding the representativeness -- or lack thereof -- of limited en banc panels. Sometimes they mirror the court as a whole. Other times, not so much.

So, as I predicted, a split opinion. A split, as it turns out, in the most traditional manner. In a case that raises broad institutional questions equally important as the difficult doctrinal issues upon which both the majority and dissent rightly spill much ink.

Wednesday, November 04, 2009

People v. Reyes (Cal. Ct. App. - Oct. 30, 2009)

It's funny. As I was reading this case, which involves a kidnapping for ransom, I was thinking to myself the whole time: "I hope these guys get a huge amount of time in prison." Because what they did -- while not the worst kidnapping in the world (by far) -- still seemed totally brazen and wrong.

And yet despite that fact, when I got to the end of the opinion and discovered that the sentence was a mandatory one -- life in prison -- that seemed harsh to me. Especially since two of the four (equally culpable) kidnappers, as a result of a guilty plea, only got eight years, and another one of the kidnappers (who agreed to testify) only got one year in prison. That seems wrong on both ends; I'd have been happier if the co-conspirators had to spend more time in prison and this guy slightly less.

I say all this, by the way, even though I'm extremely -- and some might say overly -- concerned about the ease of kidnapping. It seems like a very lucrative (and relatively easy) crime, at least as compared to your traditional drug dealing, bank robbery, etc. Which is why you've started to see a huge rise in this stuff in other nations (e.g., Mexico). So I do think we need to be incredibly careful here, and also super-deter this stuff lest it become more common. And yet in a particular case, in which no one is truly injured, it looks like my sentiment in this regard becomes fuzzy and not very hard core. Interesting.

Parenthetically, I must admit that I thought the way they kidnapped the guy here was fairly creative. It first looks like the kidnappers are pulling the usual "black van" job (though here the van is white), which pulls up alongside the victim in a shopping mall parking lot and the kidnappers try to push him in it. But that doesn't work: the victim struggles and breaks free, screaming for assistance. At which point a silver Honda pulls alongside and offers the victim help, and the victim jumps into the car through an open back window, and the Honda speeds away. Escape!

Except the Honda's in on it. That's the second group of kidnappers. Oopsies.

Zhang v. Superior Court (Cal. Ct. App. - Oct. 29, 2009)

I like it.

Justice Richli authors an opinion that disagrees with another decision of the Court of Appeal and that explains this disagreement both extremely well and extremely concisely. That's not easy.

Personally, I have a tendency -- as readers likely well know -- to ramble on, especially when I disagree with something. Not Justice Richli. She doesn't say everything she can; instead, she says what she has to, and then moves on. Without leaving anything important out.

It's a talent. I'm envious. Great job.

Tuesday, November 03, 2009

Applied Medical Distribution Corp. v. Surgical Company B.V. (9th Cir. - Nov. 3, 2009)

A battle of the big law firms. It's Jones Day -- with 2300+ lawyers (represented here by svelte Brian Hoffstadt) -- on the side of the plaintiff-appellant, and Baker & McKenzie -- with 3800+ attorneys (represented here by the tanned, rested and ready Bruce Jackson) for the defendant-appellee.

Jones Day won most of what it was asking for below, but appealed on the one thing (an injunction against a pending suit in Belgium) that the district court didn't give 'em.

And the winner in the Ninth Circuit is . . . Jones Day. By a knockout.

So there you have it. Jones Day 2, Baker & McKensie 0.

(Don't get too excited, mind you. Jones Day had the better case on the merits. According to me as well as everyone who actually matters; e.g., Judges Fisher, Gould and England [the latter sitting by designation from the Eastern District of California].)

Norse v. City of Santa Cruz (9th Cir. - Nov. 3, 2009)

Giving a Nazi salute ain't exactly nice. It can also properly get you kicked out of a City Council meeting. Or so the Ninth Circuit holds today.

Judge Tashima dissents, arguing that the salute was silent and far from disruptive, and hence that the plaintiff's ejection might well have been in retaliation for his viewpoints.

Regardless, I must say that I strongly encourage everyone to keep Nazi salutes to a minimum. At City Council meetings, at anti-Obama rallies, and pretty much everywhere else for that matter. I have a vague sense that they're -- how can I put this -- in poor taste. Since analogy to six million dead is pretty much, well, a bit overstated, if you know what I mean.

Trust me on this one.

Monday, November 02, 2009

U.S. v. Garcia-Villalba (9th Cir. - Nov. 2, 2009)

Keeping with today's "light reading is good reading" theory, here's another opinion in which everything after the first couple of sentences is merely support for what you already know.

Though this one has a twist. Here, you aren't actually told how the opinion comes out at the outset.

Nonetheless, if you have even a little bit of knowledge, you still know where it's ending up. If only from the verbal and nonverbal clues.

I'll prove it. Here are the first two sentences of the opinion:

"We venture into the world of organized crime to evaluate the legality of a wiretap and a search of a stash house for illegal drugs. This case is about a wiretap that led to the takedown of a
sophisticated drug-trafficking organization. . . ."

So whatchathink? Are they reversing the conviction on the grounds of an illegal search? Or affirming?

I'll add one more sentence just in case you're unsure. A sentence that's not actually part of the formal opinion, but that nonetheless comes right before its text. Which reads:

"OPINION. O’SCANNLAIN, Circuit Judge:"

Any doubt which way this one ends up? I thought not.

Vivendi S.A. v. T-Mobile USA (9th Cir. - Nov. 2, 2009)

Here's another example of an opinion that really says virtually all that need be said in the first paragraph. Which reads:

This appeal concerns a French corporation’s allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation. The French corporation sought a remedy for these alleged wrongs in—of all places—the United States District Court for the Western District of Washington. [FN: The French corporation, Vivendi S.A., also has initiated litigation and arbitration proceedings in Poland, Austria, France, Germany, Switzerland, and the United Kingdom related to this same alleged fraud.] The district court dismissed the case on the ground of forum non conveniens. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

You could read the subsequent ten single-spaced pages if you'd like (as I did). But all you'd learn are additional details that demonstrate that, yep, the first paragraph is correct.

This one you could easily -- easily -- predict. Both in the district court and in the Ninth Circuit.

I hope that Orrick (which represented the plaintiff/appellant) got paid on an hourly, rather than contingent, basis. And fully expect that's the case as well.