People v. Murphy (Cal. Ct. App. - Dec. 28, 2009)

No opinions on New Year's Eve, of course. Nonetheless, as a public service, here's a timely reminder from an opinion earlier this week for those readers who might be inclined to tie one on tonight:

When you get drunk and smash your car, don't get a friend to drive you home and claim the car was stolen. Otherwise you might well end up spending 180 days in jail. Particularly when, as in this case, your story -- at least as far as I'm concerned -- is an obvious crock.

Better yet, of course, call a cab in the first place.

Have a wonderful remaining 2009, and may 2010 be even better.

- Shaun

Traschel v. Rogers Terminal & Shipping Corp. (9th Cir. - Dec. 30, 2009)

First -- and important -- principles first. Everyone's entitled to their day in court. In the trial court as well as on appeal. We all agree on that.

Bonus principle: Legal issues are important. They need to be resolved. Especially when they're relevant to multiple cases. I'm down with that too.

So David Traschel, a longshoreman in Portland, slips on a ship -- say that three times fast -- and hurts his shoulder. He has surgery and misses six weeks of work before coming back. So he's entitled to a compensation award (like worker's comp) under the Longshore and Harbor Workers’ Compensation Act (the "LHWCA"). Yep. We all agree on that.

The only lingering issue after the trial court's ruling is how precisely we calculate this award. Here's the issue on appeal:

"The LHWCA provides that Trachsel’s average daily wage, on which compensation is based, should be calculated by dividing his total annual salary in the year preceding his injury by the number of days he was employed in that year. 33 U.S.C. § 910(a). The ALJ included unworked paid holidays in the number of days Trachsel was employed, which resulted in a lower award than Trachsel would have received had those days not been included. The Benefits Review Board (“BRB”) affirmed and Trachsel petitions for review, arguing that the ALJ erred by including unworked paid holidays."

I can see why that's a difficult issue, and there are indeed arguments on both sides. One side says that paid holidays are essentially work days because you were paid. The other side says that paid holidays aren't work days because you didn't work. Fair enough.

The Ninth Circuit ultimately agrees with the ALJ. Seems entirely plausible and reasonable, and I've got no substantive objection on the merits.

But here's the thing. I knew from the Ninth Circuit's opinion what the legal issue was about, and presumably why it mattered, but I also had a keen sense that it didn't matter much. Traschel was only injured for six weeks, after all, and presumably was paid roughly (though not exactly) the same on paid holidays as on the days he actually worked. So how much are we talking about here?

You can't figure that out at all from the opinion, so I went and read all three briefs. Which also do not precisely tell you how much's at stake. But I can figure it out. 'Cause Traschel's lawyer says that the ALJ awarded $1365.75 a week with the paid holidays included, whereas everyone agrees that the actual number is $1427.00 a week if they're left out. And remember that we're only talking about six weeks of injury, with no disputes about permanent damages, etc.

So the difference is exactly $61.25 a week. Times six weeks. For a whopping $367.50.

That's what the whole appeal is about. $367.50.

Which is less than the filing fee for a Ninth Circuit appeal. Or the plane tickets for even one of the panel members (much less the attorneys) to Portland for the oral argument. Or even the cost to print the opinion in the pages of the Federal Appellate Reports!

Which made me think: Why is anyone doing this?! Why is Traschel filing the appeal (other than for principle, attorney fee, or other non-rational or socially deleterious reasons)? Why is Rogers Terminal opposing it (ditto)? Why even bother to resolve it?!

Yes, yes, I know, we can't just refuse to hear an issue just because there's virtually nothing at all at stake, or at least nothing that's not totally swamped by the transaction costs of the resolution. But we can't mediate these things? Split the freaking difference? It's Three Hundred And Sixty Seven Dollars (and Fifty Cents), for goodness sake. We can't find some way to work this out in a manner that doesn't involve two lawyers briefing the thing, multiple law clerks reading the thing, and three Article III judges participating in oral argument and writing an opinion? Really?!

Heck, I figure the time I spent even reading the thing resulted in an opportunity cost that was greater than the value of the whole case. Even at my absurdly low hourly rate.

There's got to be some way to do these things better. Though I admit that I can't come up with it at the outset. When only money is at stake, and the amount is, say, in two or three figures, it seems reasonable to me to say something like: "We'll totally hear your appeal, of course. But the side that ends up losing will have to pay triple costs, okay?" Seems to me like that would be a possible solution -- one that would either bring the parties to the table or result in the proper party paying for the deadweight social costs incurred by pretty darn marginal litigation.

Which is not to diminish the non-frivolous nature of the issue at hand. Again, both sides had a reasonable argument. But when you've got $367.50 at stake, I can't imagine that there's not a better way to resolve the dispute than by filing and resolving a full-blown appeal.

At a minimum, next time you've got a $300 case, and are thinking about filing an appeal with the Ninth Circuit, send me an e-mail. I might well just write you a check. If only to avoid wasting an hour of my time reading the opinion and whining about why your decision to appeal is far from the most rational social use of legal resources in the history of mankind.

U.S. v. No Runner (9th Cir. - Dec. 30, 2009)

Two quick points about this case.

First, it's ironic that the defendant, who's charged with stealing a sports utility vehicle and crashing it, killing someone (and hence an involuntary manslaughter charge), has the name "Journey Marie No Runner." She's have been in a lot better shape if her journey had been on foot, at any speed.

Second, I agree with Judge Fisher that a finding of competency to stand trial isn't immediately subject to appeal under the collateral order doctrine. It's not like double jeopardy or qualified immunity, the central purpose of which is to stop the trial in the first place, and there are indeed things that can happen later that arguably make a preliminary finding of competence non-final. So I'm on board for dismissing the appeal.

That said, there's a part of competency that is focused on not having the trial, and I wish that Judge Fisher would have recognized this point and at least discussed the option of treating the appeal as a writ of mandamus. Yes, if there's a conviction, we can always address competence later in an appeal of the conviction. But I think -- and I admit that maybe it's just me, and this was not facially apparent to me when I first read the opinion -- that there's a separate part of competence that doesn't get addressed by post-conviction review. Wholly apart from the fact that there's the stress (and expense of a trial), and the practical fact that you're not going to get bail on appeal, so you'll be rotting in prison for a couple of years, with competence issues, there's a somewhat unique issue of having to go through a trial that you don't understand. Criminal proceedings are bad enough even if you know what's going on. But if you don't, and if you are incompetent, and can't help, and (especially) if you know that fact, I can't imagine how terrible it would be to know that you're liberty's on the line and you can't do anything either to help or to make your case. Imagine, for example, that you were forced to watch the trial while bound and gagged; e.g., unable to communicate. Wouldn't that be worse? Incompetence is like that, or at least it might be in particular cases (but to one side people in a coma or whatever who would not even know or understand what was at stake). That's a part of competence that is like qualified immunity or double jeopardy -- after all, the latter can also be reviewed post-conviction, and yet we feel the need to automatically grant a right to appeal in order to prevent those consequences.

Again, it's not that I disagree with Judge Fisher on the merits, and I don't think this case would be a great example of one in which the ancillary interests protected by competence findings are especially high. But it would nonetheless have been nice to see an opinion that might have been a little more nuanced, and have recognized that there may be some interests that would justify an immediately appeal -- or at least the granting of a writ -- in an applicable case. At the end, I kept waiting for Judge Fisher to say something like that, or to say in Part II "We have discretion, of course, to treat the appeal as a writ of mandamus, but we decline to do so here because in this particular case, we're fine with post-conviction relief." But it never came.

Which is unfortunate, because I think that the reality here is a tiny, tiny bit more complicated -- or at least less categorical -- than the opinion makes it out to be.

Okay, so that second point was less than a "quick" one. Sorry about that.

Jasmine Networks v. Superior Court (Cal. Ct. App. - Dec. 29, 2009)

I like it when the Court of Appeal spells out crystal clearly at the outset of the opinion what we're talking about. Justice Rushing does a fantastic job of that in this opinion. Here are the first two paragraphs, which pretty much say it all. With 34 pages of subsequent elaboration, of course:

"Plaintiff Jasmine Networks, Inc. (Jasmine) brought this action charging Marvell Semiconductor, Inc. (Marvell) and others with violating the California Uniform Trade Secrets Act (Civ. Code, § 3426, et seq.) (CUTSA) by misappropriating certain trade secrets belonging to Jasmine. Not long after filing the action Jasmine went through bankruptcy proceedings, in the course of which it sold its rights in the alleged trade secrets, while reserving its rights of action for misappropriation commencing before the date of the transfer. As this lawsuit reached the verge of trial, Marvell moved to dismiss Jasmine’s complaint on the ground that by selling the alleged secrets, Jasmine had forfeited its “standing” to maintain an action for misappropriation. Marvell asserted the existence of a “current ownership rule,” under which a plaintiff can recover for misappropriation of a trade secret only if he owns the trade secret at the time of suit. The trial court found this argument persuasive, and dismissed Jasmine’s complaint.

Jasmine petitioned this court for a writ of mandate directing the trial court to set aside its order of dismissal and permit the matter to proceed to trial. We issued an order to show cause why the petition should not be granted. We will now grant the requested relief. Despite the impressive efforts by Marvell’s counsel to conjure up a “current ownership rule,” we find no support for such a rule in the text of the CUTSA, cases applying it, or legislative history. Nor do we find any evidence of such a rule in patent or copyright law, which defendants have cited by analogy. Defendants have offered no persuasive argument from policy for our adoption of such a rule. There may be situations where a suit by a former owner raises concerns about the rights of absent parties, or a risk of multiple or inconsistent liabilities on the part of parties before the court, but the remedy for such concerns lies in our liberal and highly flexible procedures for the permissive or compulsory joinder of parties. There is in short no substantial basis for the argument put forward by defendants, and the trial court erred by dismissing the complaint."

Beyond style, I also liked the somewhat nice words Justice Rushing said about the attorneys he was voting against. If you're going to lose in the Court of Appeal, I think this is how you want to lose. (Full Disclosure: One of the lawyers on the losing side, Jeffrey Kobrick, was an instructor of mine two decades ago at Harvard Law School, and I both very much liked his class and remember him well.)

People v. Pham (Cal. Ct. App. - Dec. 28, 2009)

Justice Bedsworth begins this opinion with the following opening line: "There appears to be no limit to the ability of our species to devise new and different bad things to do to each other."

Strong words. So I was anticipating a particularly vicious and unprecedented attack.

But it turns out that Pham, a chiropractor, gets convicted of tricking people into letting them touch them intimately in the guise of treating them.

Which is assuredly totally wrong. But something that's hardly novel, with a history going back at least centuries, and almost assuredly millennia. Indeed, for unrelated reasons, just last week I was reading several dozen cases in which the defendant did exactly what Pham did. Despicable? Yes. Novel? Hardly.

So while I agree with the sentiment, I gotta dissent from the surprise. New pony. Sadly, very old trick.

People v. Moret (Cal. Ct. App. - Dec. 28, 2009)

"What?! Just because I'm 19, was fired for embezzlement, and am carrying a loaded Smith & Wesson .38, you have the audacity to order that as a condition of probation, I can't smoke weed four times a week? Outrageous!!"

Or at least that's what Daryl Moret thought. Which prompts not one, not two, but three different opinions by the panel in the Court of Appeal.

Each one of 'em is worth reading. They are also all quite plausible. Personally, I think I'm most inclined to go with Justice Richman's concurring opinion -- though both Justice Kline's dissent as well as Justice Haerle's lead opinion have a fair piece going for them. I think I agree with it on the merits, but maybe I'm also tilting towards it because of the following paragraph, which I think is right:

"What I perceive happened here is that an experienced and conscientious trial judge had before him a young man who, as the court stated, had "potential." As the trial court also noted, defendant had no "serious" record, though agreeing to "restitution" for an "embezzlement" certainly smacks of "criminal conduct," the words actually used by defendant‘s counsel—which conduct apparently resulted in no "criminal record" only because of a benevolent district attorney. That young man, the trial court could also observe, was starting down, perhaps continuing down, a slippery slope, which may have begun with defendant‘s admitted marijuana—not medical marijuana—use at ages 16 and 17. Then came the embezzlement. Then, and most seriously, defendant is found with a loaded gun, stolen months before, and defendant‘s frankly preposterous story about how he found it. And then came the apparently recently obtained medical marijuana card for migraine headaches, headaches and medical marijuana utterly unmentioned by defendant‘s parents or their pastor in their letters seeking leniency. . . ."

You've got a guy going totally the wrong way. The last thing he needs is to get high every day. Particularly when you're toting a .38.

I also must say that I liked the frankness of the comments from the trial judge -- Judge Foor up in Solono County: "This statement of probation that he accepts responsibility for his actions, in this court's opinion, that's a joke. He hasn‘t accepted anything. He wasn‘t truthful with probation. . . . That is so unbelievable. I don't know who he thinks really expects to believe a story like this [that he 'found' the gun in the bushes but doesn't know where], but I don't. I don‘t accept any part of it, and there's obviously a reason he carries this gun. People don't do anything without reasons. The reason is to shoot somebody. That‘s why he had a loaded gun. So I have every justification, if I wish to put him in jail for a while. I don't really know that that would be the best solution here for this defendant. As I said, he‘s a young man. He obviously has made a mistake, and he's made a couple of mistakes here recently, this mistake, the embezzlement that he is involved in, but it's certainly not too late for him to get things turned around. He doesn't have a serious record. In my opinion, smoking dope isn't going to help any of this. Every person I have ever seen, that sits around smoking dope, goes nowhere. You can't function when you are loaded, and you know, there is a good reason why they call it dope. So if he wants to, you know, game the system, which I think is what's really going on here with this medical marijuana for a headache."

Okay, so maybe the line of "there is a good reason why they call it dope" was sort of lame. But the rest of it I thought was spot on. (Here's some more great stuff from the dissent's quotation of the trial court: "[A]ppellant "had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus." Refusing to "believe any part of this, 'I found it in the trash or in the bushes,' the court stated that '[t]his was a gun that was stolen less than a year ago out of Vacaville. He‘s got it. A handgun like this is good for one thing, and that's shooting somebody. So if he's in a situation where he needs to have a gun to shoot somebody, he's got real problems going on in his life, and smoking dope isn't helping him. That's the bottom line.")

I get Justice Kline's dissent, of course, which says that it's not okay to condition probation on giving up legitimate prescriptions. But given what I think of Moret's credibility, as well as the serious nature of the loaded gun possession, I think that the majority may have the better of the argument here. There may well be a case where giving up weed isn't a legitimate condition. But I'm not sure that under any stretch of the facts this is one of them.

Plus, I still think that pot is a different 'type' of medicine, if only because -- again -- it's still illegal, albeit only under federal law. It seems to me that a trial court might well be able to say that as a condition of probation, the defendant "shall not commit any crimes, state or federal." Which would include toking. There might be some extreme cases where such a position would be difficult to defend, but, in my heart of hearts, I don't see this as being one of 'em. Under any interpretation of any plausible record.

Bryan v. McPherson (9th Cir. - Dec. 28, 2009)

Ah, Southern California. The fun. The sun. The unnecessary tasering.

Judge Wardlaw writes this one like a novel, so all I have to do to tell the tale is to use her own words:

"Carl Bryan’s California Sunday was off to a bad start. The twenty-one year old, having stayed the night with his younger brother and some cousins in Camarillo, which is in Ventura County, planned to drive his brother back to his parents’ home in Coronado, which is in San Diego County. However, Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys to Los Angeles the previous day. Wearing the t-shirt and boxer shorts in which he had slept, Bryan rose early, traveled east with his cousins to Los Angeles, picked up his keys and returned to Camarillo to get his car and brother. He then began driving south towards his parents’ home. While traveling on the 405 highway, Bryan and his brother were stopped by a California Highway Patrolman who issued Bryan a speeding ticket. This upset him greatly. He began crying and moping, ultimately removing his t-shirt to wipe his face. Continuing south without further incident, the two finally crossed the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn for the worse. Bryan was stopped at an intersection when Officer McPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled to Bryan that he was not to proceed. Bryan immediately realized that he had mistakenly failed to buckle his seatbelt after his earlier encounter with the police. Officer McPherson approached the passenger window and asked Bryan whether he knew why he had been stopped. Bryan, knowing full well why and becoming increasingly angry at himself, simply stared straight ahead. Officer McPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car.

There is no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes. It is also undisputed that Bryan did not verbally threaten Officer McPherson and, according to Officer McPherson, was standing twenty to twenty-five feet away and not attempting to flee. Officer McPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear Officer McPherson tell him to do so. The one material dispute concerns whether Bryan made any movement toward the officer. Officer McPherson testified that Bryan took “one step” toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan’s upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions. Bryan’s morning ended with his arrest and yet another drive—this time by ambulance and to a hospital for treatment."

Not a fun Sunday morning indeed.

Bryan sues, claiming excessive force. McPherson moves for summary judgment on qualified immunity, and Judge Burns (down here in San Diego) denies the motion. McPherson appeals, and the Ninth Circuit affirms. If you view the evidence in the light most favorable to Bryan, it's excessive to taser a guy in his boxers who's 25 feet away from you, unarmed, and not trying to attack you or flee. He's just having a very, very bad day. No need to make it worse.

Two tangential points. First, I like the term "California Sunday." I've never heard it before, but it accurately brings to my mind a lazy, wonderful Sunday morning. Though I'm sure to others it also brings to mind a lazy, wonderful wake-and-bake.

Second, as an attorney, it's bad enough to lose an appeal the first working day after Christmas. But for Steven Boehmer -- a USD Law graduate (whom I've met) -- it's adding insult to injury when the Ninth Circuit misspells his name; in this case, by dropping the "h".

But at least he still has his teeth.

People v. Taylor (Cal. Ct. App. - Dec. 24, 2009)

I'm no sentimentalist. But the case has been pending since 1996, and it's now Christmas Eve. Can't the California Supreme Court wait a couple of days to tell Keith Taylor that he's going to die?

Seems pretty Grinch-like to lay the hammer down on Christmas Eve.

Can I also just say that I had no idea until today that you should never believe what the California Supreme Court says? Check out this docket sheet. In January 2004, the Public Defender asks for more time to file the brief (not surprisingly), and the California Supreme Court says "Yes," but also expressly says that -- at most -- it's only going to grant six more extensions, for a total of 315 days, so the brief has to be done by February 2005.

But then, in July 2004, after granting four extensions, the Supremes say: "Okay, I know we said no way we'd let the thing slide after February 2005, but we'll change that to May 2005."

Then, in January 2005, after granting seven extensions, it's: "Okay, make that July 2005. But that's it."

Then, in May 2005, after nine extensions, it's: "Now we're making it November 2005. But we totally mean it this time. No more. Really."

Then, in October 2005, a month before the brief is due, and after twelve extensions, it's: "We'll make it February 2006. But really, that's it. We're not granting any more."

Then, in February 2006, two days before the brief is due, in response to counsel's fourteenth extension request, the Supremes grant yet another extension. And the opening brief gets filed over a month later.

I need not go into similar detail regarding the responsive and reply briefs, except to say that the same type of thing happens again. The California Supreme Court says that a brief is due, tells counsel in no uncertain terms that no further extensions will be granted, and then does exactly what it said it wouldn't do.

"Death is different," I guess.

Park 100 Inv. Group v. Ryan (Cal. Ct. App. - Dec. 23, 2009)

There's not much selection on the last working day before Christmas. Nothing from the Ninth Circuit today, and slim pickings from the California Court of Appeal.

Nonetheless, here's an opinion with everything. If by "everything" you mean a mish-mash of doctrinal principles that reads like a law school hypothetical. It's got property, civil procedure, and California-specific SLAPP principles. Plus a California lawyers -- Gregory R. Ryan and Wayne Brosman -- getting sued.

Here's the upshot: "The defendants in this case are attorneys who, in the course of representing a real property owner in a prior lawsuit involving an easement dispute, filed a lis pendens on a dominant tenement. The owners of the dominant tenement turned around and, in the present case, sued the attorneys claiming the lis pendens was wrongfully recorded. The attorneys appeal from the denial of their anti-SLAPP motion . . . . [W]e hold that it is proper to record a notice of pendency of action, commonly called a lis pendens, on a dominant tenement when the litigation is an easement dispute. . . . [and] that the attorneys are not foreclosed by the doctrine of collateral estoppel from addressing the validity of the lis pendens."

So the attorneys get a Christmas present -- namely, a reversal by the Court of Appeal of the denial of their anti-SLAPP motion. So a dismissal plus fees.

I can think of no nicer holiday present. Congratulations.

People v. Franco (Cal. Ct. App. - Dec. 22, 2009)

All you apartment dwellers out there: Listen up. Let's say that your lease (like the one in this case) allows the landlord to inspect your place, and that they do so biannually. Presumably, at least pursuant to the generalized lease provisions I typically see, with 24 hours notice.

Here's what you should not leave sitting in plain view during one of these inspections: "On the bar in the kitchen area . . . two lines of cocaine cut for use and two rolled dollar bills [and] another line of cocaine and a rolled bill in a bedroom. . . . [Plus] (1) four sets of electronic scales, two with a white powdery residue consistent with cocaine; (2) inositol powder, commonly used as a cutting agent for cocaine; (3) clear plastic baggies, commonly used as a packaging medium for narcotics; (4) a methamphetamine pipe; (5) a clear plastic bag containing 107 grams of cocaine; (6) a black plastic bag, inside of which was a plastic bag containing 39.5 grams of methamphetamine, a plastic bag containing 26.8 grams of cocaine, and several small wrapped baggies containing a total of 8.19 grams of cocaine; (7) a nine millimeter semiautomatic handgun, in a holster, with 20 live rounds, including a loaded magazine inserted into the weapon, one round in the chamber, and a fully loaded secondary magazine; (8) $503 in cash in a bag hanging on a bedpost; and (9) $3,526 stuffed between the mattress and box spring of a bed."

Don't say you weren't warned. Think of your landlord as you did your parents. Hide your stash.

American Meat Institute v. Lehman (Cal. Ct. App. - Dec. 12, 2009)

Proposition 65 requires consumer warnings in California regarding various health risks. The American Meat Institute doesn't like 'em, or at least doesn't like 'em as applied to their product. So they sue, seeking a declaration that these warnings are pre-empted by federal law.

So who's representing the American Meat Institute? In an action opposed to Proposition 65?

MoFo.

Just proving that even do-gooder law firms have to eat. In this case, meat.

Hamazaspyan v. Holder (9th Cir. - Dec. 21, 2009)

Thank you, Judge Bea.

Sometimes you've got to explain things to the slow-witted. Like me.

This case involves an immigration petitioner who didn't receive notice and was deported in absentia. The relevant holding is, I'm sure, important to immigration practitioners, but I only want to talk about footnote three.

Hamazaspyan's permanent address -- the one he receives his mail at -- is at his grandparents, who live in Los Angeles, in Apartment H of a complex. But for some reason, some of the INS documents (including some critical ones) were sent to Apartment 4 (and some others sent to the address with no apartment number). Hence, I imagine, the problem.

Judge Bea can't exactly figure out why some of the documents say "H" instead of "4". After all, H isn't the fourth letter of the alphabet or anything. Not that it's important to appeal, but it's at least an interesting mystery.

The answer to which Judge Bea hints at by saying: "The number four can be written to look similar to the capital letter H." To which, in my head, I responded: "Really? How?"

And Judge Bea, anticipating precisely such intellectually slothful readers such as myself, immediately followed up this sentence with: "If this is difficult to imagine, simply erase the bottom left leg of the H."

A half-second of mental gymnastics later, my internal response: "Yep. Spot on. You da man."

Independent Living Center v. Maxwell-Jolly (9th Cir. - Dec. 21, 2009)

Judges Reinhardt, Willie Fletcher and Milan Smith are not exactly dummies. In the slightest. So when you say something to them that they know -- or strongly suspect -- is wrong, they're likely to call you out on it. As they do here.

It's a Medi-Cal reimbursement case, and the panel handed down its opinion (which was adverse to the California Attorney General's position) in July. Then, last month, the California AG's Office filed a motion to recall the mandate and vacate the opinion on the ground that the Ninth Circuit lacked jurisdiction to decide the appeal given the passage of a recent statute that allegedly made the case moot.

The panel disagreed, and said so. But then went on to say the following:

"While it is clear that this case was not moot at the time of our decision, we feel constrained to comment on the circumstances surrounding the Director’s bringing this “new” law to our attention. AB 1183 became effective on September 30, 2008, yet the Director waited more than a year to file the instant motion. Though we heard argument in Independent Living on February 18, 2009, just ten days before the new rate reductions were to end, the Director said nothing about the pending termination. The Director now “regrets” the delay in bringing this issue to our attention and asserts that counsel did not become aware of it until preparing a “potential” petition for certiorari in the United States Supreme Court. This explanation is belied by the record of proceedings in this case. On June 1, 2009, over a month before we issued our opinion in

this case, the Director filed his reply brief in the Supreme Court seeking a petition for certiorari respecting our earlier decision in Independent Living Center of S. Cal., Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008). We are particularly troubled by a footnote contained in that brief. It provides:

'The case is not moot. After the Ninth Circuit’s order on July 11, 2008, the district court enjoined some of the reductions mandated by AB 5. See Independent Living Ctr. of S. Cal. v. Shewry, No. CV 08-3315 CAS, 2008 WL 3891211 (C.D. Cal. Aug. 18, 2008). Petitioner’s appeal of the district court’s order is pending in the Ninth Circuit. As respondents note, a subsequent enactment (AB 1183) amended California Welfare and Institutions Code § 14105.19 to sunset the reductions on February 28, 2009, and enacted a new set of smaller reductions to take their place, see id. § 14105.191. While that makes respondents’ claim for injunctive relief moot, the appeal presents a live controversy because the injunction forced the state to pay providers hundreds of millions of dollars more in Medi-Cal reimbursements than the state would have had to pay had AB 5 remained in full force. The Ninth Circuit’s decision regarding the preliminary injunction will determine whether the state is entitled to recoup those extra payments. And a decision by this Court that respondents lacked a private cause of action would likewise mean that AB 5 was improperly enjoined, thereby entitling the state to recoup those monies the state was wrongly forced to pay.'

(emphasis added). Not only has the Director now taken the exact opposite position regarding mootness, he has feigned ignorance of precisely the facts described in the above footnote. The California Rules of Professional Conduct prohibit members of the bar from misleading the judiciary through any false statement of fact or law. CALIFORNIA RULES OF PROFESSIONAL CONDUCT R. 5-200 (2009). We find the Director’s representation through the Attorney General that he only recently became aware of, in his words, the “jurisdictional problem” created by AB 1183, to be a clear violation of Rule 5-200, and gives us pause about accepting the veracity of future pleadings filed by the Attorney General on behalf of the Director, if not more generally."

Ouch. Not exactly an early Christmas present for the California Attorney General's Office, eh?

People v. Hernandez (Cal. Ct. App. - Dec. 17, 2009)

The facts are five double-spaced pages. Read them. Decide (1) what you think the proper sentence should be, and (2) whether they influence at all your attidue towards drugs and/or legalization arguments.

There are no winners in this one.

People v. Saleem (Cal. Ct. App. - Dec. 17, 2009)

What's "body armor"?

California makes it illegal to wear body armor if you're a serious violent felon. Which makes sense to me. Ethan Saleem's previously been convicted of voluntary manslaughter. He's pulled over at 3:00 a.m. in Wilmington wearing a flak jacket, in circumstances that make me fairly confident that he was likely up to no good. You don't wear a 10-pound flak jacket for the fit.

He's convicted at trial and sentenced to eight years. The Court of Appeal reverses, with Justice Aldrich dissenting. Justice Klein holds that, at least as applied to this case, the statute is void for vagueness because it doesn't provide sufficient notice regarding what counts as "body armor". A reasonable person, Justice Klein argues, could not tell whether a flak jacket (which, here, was of a type typically used to repel IED shrapnel) qualified under the statute, which has quite technical requirements. Hence the conviction is reversed.

Two quick points. One, it's an interesting fight between the majority and the dissent. Two, as a result of this opinion, I wouldn't be surprised at all to see the Legislature amend -- and assuredly broaden -- the statute. After all, there aren't that many people out there who defend the Second Amendment right of murderers to wear body armor.

Walton v. Mueller (Cal. Ct. App. - Dec. 15, 2009)

I imagine that people will have varying reactions to this one.

Timothy J. Walton is an attorney here in California. He gets 40 different spam messages and sues (representing himself, of course), and gets a default judgment for $40,000 (plus some various injunctive relief).

Two years later, an attorney for the defendant (who's in Florida) contacts Walton and offers to pay $15,000 in installments to satisfy the judgment. Walton counters with $20,000, but also now realizes that the defendant apparently has some money. So he secretly starts actions to enforce the judgment, and ends up levying on defendant's bank account in Florida. He then tells counsel for defendant that if they want him to stop, they should send him a check for $15,000 now. Defendant doesn't do that, but eventually realizes that this probably wasn't a good choice, and tries to accept the offer and sends a copy of a cashier's check for $15,000, but not the check itself.

At this point, however, Walton figures he has defendant over a barrel. So he says: "Forget it. Now I demand $60,000 to settle my $40,000 judgment. Ha!"

Defendant runs into court to try to enforce an alleged settlement for $15,000 under CCP 664.6. But loses. A holding that's affirmed by the Court of Appeal, which holds that you can't file such motions after a judgment has become final because the lawsuit's over at that point and there's now no need for summary enforcement.

So now defendant's back to being in a tough spot. They could have settled the thing for $15,000. They now are faced with an attorney who represents himself and who's demanding quadruple that -- an amount 50% more than the face amount of the judgment. From a party who looks like he was sleeping on the judgment until defendant came up to him to try to resolve the thing.

You could take a variety of lessons from this one, I guess. "Don't wake a sleeping bear." "Don't get greedy." "Get greedy." "Don't send spam to lawyers." The maxims are legion.

Pelayo-Garcia v. Holder (9th Cir. - Dec. 14, 2009)

Here's an example of the problem with the categorical (and modified categorical approach), at least when applied to particular statutes when combined with inadequate records and/or lazy/overworked state officials.

Luis Antonio Pelayo-Garcia is from Mexico and is convicted in California of "unlawful sexual intercourse with a minor" under section 261.5(d) of the California Penal Code. As a result, the (then-) INS wants to deport him. Pelayo of course wants to stay, but he's ineligible if he's been convicted of an “aggravated felony” in 8 U.S.C. § 1101(a)(43)(A) -- which expressly includes “sexual abuse of a minor.” So we compare the elements.

Under federal law, you're guilty if you "knowingly engage[] in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging" -- in short, if you mess around with a young teenager and you're not. The California law says sometimes substantively identical, and to find you guilty, you've got to be a "person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age."

Pelayo did the latter. That seems to be a subset of the former, right? Since if you're 21+ and fool around with a sub-16 year old (California law) you're definitionally at least four years older since you're 21+ and the victim is sub-16. So Pelayo gets deported, right?

Not so fast. The federal law also says "knowingly" whereas the state law doesn't use that same word. Now, the big fight is whether you have to know the victim's (impermissible) age, and the federal courts have made clear you don't. But you still have to "knowingly" do the act (e.g., have sex).

I can't fathom that California wouldn't have the same rule, particularly since it -- unlike the tougher federal law -- actually allows a limited "mistaken age" defense. And yet the statute doesn't. Hence the Ninth Circuit holds that because it's at least possible that Pelayo might have been convicted under California law of having intercourse on accident -- like I'm just sure that's what really transpired: "I was just tying my shoes and tripped" -- the California conviction isn't a subset of the federal crime. And since the INS only has two slim pieces of paper, none of which describe in detail Pelayo's actual conduct, the modified categorical approach doesn't work either. So he avoids the immigration consequences of what I'm virtually certain he actually did.

I've got no real beef with Judge Ikuta's analysis. It seems right to me. But I do have a problem -- at least a practical one -- with the underlying approach she's obliged to follow. Which seems to result in untoward consequences in a number of cases. Including this one.

People v. Cason (Cal. Ct. App. - Dec. 7, 2009)

I've got no real problem with Justice Ramirez's opinion.

I recognize that there's a lingering question regarding whether California's anti-pimping statute really covers pimps who solicit existing prostitutes. After all, the statue says that you're guilty only if you cause someone "to become a prostitute." If you're already a prostitute, it seems plausible to me -- albeit not to Justice Ramirez -- that someone doesn't "become" a prostitute merely because they change pimps. I think that the text of the statute, and the rule of lenity, might come into play here in a way that's slightly different from the way Justice Ramirez pitches it.

That said, here, Michael Cason was a pimp, and he did encourage people to become a prostitute. Maybe not everyone. But some people. So he's not exactly the poster child for interpreting the statute narrowly.

But let me ask a question that's admittedly not raised by the opinion itself. What's the proper sentence for a pimp like Cason. Here's a flavor of the underlying facts:

"Q. was in debt and living with her parents in San Diego when, in June 2007, for the first time, she posted an Internet advertisement offering to provide time and companionship to persons who were willing to pay her. The day she posted the ad, defendant called and offered her employment as a prostitute. If she would work for him, he said, he would take care of her and pay her outstanding car and telephone bills. He would post advertisements and all she had to do was “take the calls” and “give him the money.” Defendant talked to Q. for about an hour.

On June 11, 2007, the day after he called her, Q. drove to Temecula to meet defendant. She agreed to work for him and stayed at his house that night. The next morning, D., who lived with defendant and also worked for him, accompanied Q. to the Comfort Inn in Temecula for her first day of work. The women both had cell phones defendant gave them and on which customers could call to make “dates.” Through his computer, defendant monitored their calls. If Q. missed any calls or stopped answering the phone, defendant would contact her and ask her why she was not answering the phone. Defendant posted Q.'s services at $200 for each half hour and gave her a daily quota of $1,000. Because she was 'just a prostitute,' she gave all the money she made, including tips, to defendant.

Q. did not like the work and tried to leave defendant's employ on several occasions. When she told him she wanted to go home, he refused to give her any money. Defendant told Q. she would never make it without him, that she “wasn't good enough” and “didn't have the looks” to be successful by herself. Nonetheless, Q. 'quit' five or six times, by turning in her phone and driving back to her parents' home in San Diego. When she again found herself in debt, she sometimes worked for a pimp in San Diego, “DK.” She returned to work for defendant because, unlike DK, he didn't hit her. . . .

D. was working as a clerk at Walgreen's in Hemet when she met defendant in 2005. Defendant told her she was beautiful and that he would like to take her and her two-year-old daughter to Disneyland. In the beginning, D. and defendant had a boyfriend-girlfriend relationship and talked about getting married. However, a few weeks after they began dating, defendant revealed that he ran an escort business and talked to D. about some of the girls who worked for him. Eventually, D. began working for defendant too. . . .

D. worked for defendant from July 2006 to August 2007. She stopped for four months between January and May 2007, hoping she could regain custody of her daughter, who had been taken by child protective services. In those four months, D. worked as a hostess at a restaurant. Defendant repeatedly called and came to the restaurant or to her apartment and tried to persuade her to return to work for him. To avoid him, D. sometimes would not answer the phone or the door. Eventually, because she needed money so badly, she returned to work for defendant. D. was afraid to leave lest, 'all this stuff he told me happened to the girls that told, would happen to me.'"

That's the basics. There are surely worse pimps. There are surely better ones. What's the appropriate sentence? Basically, Craigslist pimping.

Answer: Ten years, eight months.

Seem about right?

Mayfield v. United States (9th Cir. - Dec. 10, 2009)

You always think it couldn't possibly happen to you. Until it does. I'm sure that's what Brandon Mayfield thought, anyway. Check this out:

"On March 11, 2004, terrorists’ bombs exploded on commuter trains in Madrid, Spain, killing 191 people and injuring another 1600 people, including three U.S. citizens. Shortly after the bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the bombing site. On March 13, 2004, the SNP submitted digital photographs of the fingerprints to Interpol Madrid, which then transmitted them to the FBI in Quantico, Virginia.

The FBI searched fingerprints in its own computer system, attempting to match the prints received from Spain. On March 15, 2004, an FBI computer produced 20 candidates whose known prints had features in common with what was identified as Latent Finger Print #17 (“LFP #17”). The FBI performed background checks on each of the candidates, one of whom was Brandon Mayfield. Mayfield is a U.S. citizen, born in Oregon and brought up in Kansas. He lives with his wife and three children in Aloha, Oregon, a suburb of Portland. He is 43 years old, a former Army officer with an honorable discharge, and a practicing lawyer. Mayfield is also a Muslim with strong ties to the Muslim community in Portland.

On March 17, 2004, FBI Agent Green, a fingerprint specialist, concluded that Mayfield’s left index fingerprint matched LFP #17. Green then submitted the fingerprints for verification to Massey, a former FBI employee who continued to contract with the FBI to perform forensic analysis of fingerprints. Massey verified that Mayfield’s left index fingerprint matched LFP #17. The prints were then submitted to a senior FBI manager, Wieners, for additional verification.

Wieners also verified the match.

On March 20, 2004, the FBI issued a formal report matching Mayfield’s print to LFP #17. The next day, FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. The FBI also applied to the Foreign Intelligence Security Court (“FISC”) for authorization to place electronic listening devices in the “shared and intimate” rooms of the Mayfield family home; searched the home while nobody was there; obtained private and protected information about the Mayfields from third parties; searched Mayfield’s law offices; and placed wiretaps on his office and home phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.

In April 2004, the FBI sent Mayfield’s fingerprints to the Spanish government. The SNP examined the prints and the FBI’s report, and concluded that there were too many unexplained

dissimilarities between Mayfield’s prints and LFP #17 to verify the match. FBI agents then met with their Spanish counterparts in Madrid, who refuted the FBI’s conclusion that there was a match.

After the meeting with the SNP, the FBI submitted an affidavit to the district court, stating that experts considered LFP #17 a “100% positive identification” of Mayfield. The affidavit did not mention that the SNP had reached a different conclusion. The affidavit did include information about Mayfield’s religious practice and association with other Muslims. On May 4, 2004, the government named Brandon Mayfield as a material witness and filed an application for material

witness order. The district court appointed an independent fingerprint expert, Kenneth Moses, to analyze the prints in question. Mayfield and his defense attorneys approved the appointment. Moses concluded that LFP #17 was from Mayfield’s left index finger.

The district court issued several search warrants, which resulted in the search of Mayfield’s home and office, and the seizure of his computer and paper files, including his children’s

homework. On May 6, 2004, Mayfield was arrested and imprisoned for two weeks. His family was not told where he was being held, but was told that his fingerprints matched those of the Madrid train bomber, and that he was the prime suspect in a crime punishable by death. While Mayfield was detained, national and international headlines declared him to be linked to the Madrid bombings. On May 20, 2004, news reports revealed that Spain had matched LFP #17 with a man named Ouhane Daoud, an Algerian citizen. Mayfield was released from prison the following day."

That's pretty chilling stuff. To me, anyway. Since it could happen to anyone. Or at least any Muslim, I suspect. Even a lawyer and honorably discharged Army officer. Based simply on a fingerprint that potentially matches any one of twenty people. Including you.

Needless to say, Mayfield sued. And got a pretty payday. Two million dollars, plus an apology, plus some other stuff.

He tried to reserve in the settlement some specified claims about FISA warrants, but the Ninth Circuit holds today that in light of the settlement, he doesn't have standing anymore.

So he's going to have to be satisfied with the $2 million. Which, I'm sure, doesn't take away from the horror I'm positive he experienced. But you know what? It's a darn good start. That'll help you and your family replace a lot of bad memories with really good ones, I imagine.

Robinson v. Kramer (9th Cir. - Dec. 9, 2009)

Is this an unintentional reference to Seinfeld?

It's a California habeas case, so I'm pretty sure that the respondent in this one is Matthew Kramer, who's the warden of one of our fine prisons. But here's the caption on the Ninth Circuit's opinion:

LORENZO ROBINSON, Petitioner-Appellant,

v.

KRAMER, also known as People of the State of California,

Respondent-Appellee.

I'm pretty sure that "KRAMER" has a first name. Even on the series ("Cosmo"). And also that this one-word wonder is not a/k/a "People of the State of California".

People v. O'Neal (Cal. Ct. App. - Dec. 9, 2009)

Low level scams seem so boring nowadays. Or even low-level "investments," like the ones here, where you're getting five figures from people in your church to market a dubious product on the basis of exceptionally dubious representations.

Nonetheless, I mention this case for two reasons. First, I love the way Justice Croskey describes the product, for which defendant solicited "investors" so he could "market" it. "LadyCare is an alternative medical device, designed to reduce menstrual cramps and discomfort. Less charitably described, it is a magnet intended to be worn inside the underwear." Classic.

Second, unlike, say, the Madoff scheme, this one was hardly sophisticated. Here's how Justice Croskey describes the offering memorandum: "Cole, without the assistance of counsel, drafted a PIA to be executed by individuals investing in the LadyCare business. The document is largely unintelligible, but purports to be an agreement between Cole (as principal) and the investor." I loved the "largely unintelligible" part. Classic Part II.

McFarland v. Guardsmark (9th Cir. - Dec. 9, 2009)

Rarely can I quote an entire published opinion verbatim. But I can here. It reads:

"Johnny McFarland (“McFarland”) appeals from the district court’s decision denying his motion for partial summary judgment and granting partial summary judgment to Guardsmark, LLC in this dispute arising under Cal. Labor Code § 512. McFarland v. Guardsmark, LLC, 538 F. Supp. 2d 1209 (N.D. Cal. 2008). The district court dismissed the remaining claims upon stipulation of the parties. We affirm for the reasons set out in the district court’s thorough decision.

McFarland raises for the first time on appeal the factual issue of whether his signed employment agreement represents an actual agreement to take two on-duty meal periods in a single day. As McFarland did not raise this issue before the district court, see id., we do not consider it here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)."

Seems pretty easy. Don't you wish all cases could be so simply resolved.

Just one question. There was no oral argument. Which means the case was fully briefed around a year ago, and formally submitted on November 6th. How come two paragraphs took so long?

Not complaining, of course. I'm just surprised we can't crank out something like this even faster.

In Re S.C. (Cal. Ct. App. - Dec. 8, 2009)

Only two published opinions today, both by the California Court of Appeal. So a slow judicial news day.

I thought that I was going to violently disagree with this one. (Okay, so not truly "violently," but you know what I mean.) But in the end, I don't. At all. Though I do think that the opinion could have been written a bit more clearly at the outset, if only to upset the casual reader like me who tends to jump to conclusions.

Here's what the first paragraph of the opinion says:

"Appellant S.C. was found to be a ward of the court after police discovered a switchblade knife in his pocket during a search conducted at a private residence. Appellant contends he did not violate Penal Code section 653k (hereafter section 653k), the statute governing possession of a switchblade, because he was not in a 'public place or place open to the public' at the time the knife was found. Construing the language of section 653k, we conclude the statute is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs. We therefore affirm."

Okay, I guess I get that. But is the Court of Appeal really saying that a private residence is a "public place or place open to the public" under the statute? I admittedly could see an argument to that effect -- houses often have visitors, for example -- but that doesn't seem very persuasive to me, and seems instead belied by the distinction between public and nonpublic spaces that the statute expressly adopts.

And yet, as I'm reading the opinion, my sense was that this was exactly where Justice Margulies was going. Even when we get to the discussion section, the Court of Appeal is framing the debate this way: "Appellant contends he could not be found to have violated section 653k, which governs possession of switchblade knives, because he did not possess the knife in a 'public place or place open to the public.' The Attorney General argues the statute does not require possession in a public place and, alternatively, appellant entered a public place when he walked onto the porch."

It's only halfway through the opinion that Justice Margulies finally quotes the statute. Which reads: "Every person who possesses in the passenger's or driver's area of any motor vehicle in any public place or place open to the public, carries upon his or her person, and every person who sells, offers for sale, exposes for sale, loans, transfers, or gives to any other person a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor."

Well duh. Why didn't you say that in the first place? The statute itself could not be clearer. The "public place" clause only applies to automobiles. The "carries upon his or her person" section is different, and has no such modifier. Which, in the end, is exactly what Justice Margulies holds.

So I'd have quoted the statute at the outset of the opinion. Since, in my mind, that's pretty much all you've got to say. By quoting the thing halfway through the opinion, you get people like me all excited. Which, being in our 40s and all, and fairly sedentary, is not what we want.

In Re Marriage of Kacik (Cal. Ct. App. - Nov. 19, 2009)

You can't argue that Justice Sills isn't direct. He is. You know what he's saying, and he'll say it directly.

Some justices on the Court of Appeal, for example, "urge" the Legislature to "consider" various issues. But here's how Justice Sills does it in this case:

"III. Memo to the Legislature

Because of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly:

Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by “is in effect.” One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., § 473.)"

Pretty direct, eh? And darn clear.

People v. Ervine (Cal. Supreme Ct. - Dec. 7, 2009)

It's always fascinating to see who gets to live and who's ordered killed. Those of us in California get to read every one of the latter cases (at least state-sponsored ones) due to automatic review in the California Supreme Court.

Here, Dennis Ervine has a domestic dispute with his wife, and the next morning, the police come to his house to arrest him for it. He has barricaded himself in his house, and as the assembled team is encouraging him to leave, Ervine opens fire, shooting an officer in the head (from 187 feet away) and killing him. Ervine subsequently surrenders, and even though he has no prior criminal history, the jury sentences him to death rather than life without the possibility of parole.

It's very hard for me to figure out why Ervine gets picked out to die unless every cop killer gets the same sentence. But I may be an outlier on this one, at least on the California Supreme Court, which unanimously affirms Ervine's conviction and sentence.

Hard to say, also, that judicial elections categorically don't figure into cases like this one. It may well be that there was no error here and hence the California Supremes would have unanimously affirmed in any event. But let's assume otherwise for a moment. After Rose Bird, are you really going to be the justice who lets a cop-killer go free?

Lemoge v. United States (9th Cir. - Dec. 7, 2009)

I'm not an invariable hard-a**. But I wonder if the Ninth Circuit isn't being a little soft here.

I agree with everything the panel says in Section A. Judge Burns (down here in San Diego) should clearly have discussed all four factors -- not just three of them -- in deciding whether to grant the plaintiff's Rule 60(b) motion for relief from dismissal. That seems right. The factors are there for a reason. You gotta apply the right law, and to say why you held the way you did.

So if the opinion ended there, I'm definitely with 'em. But Judge Gould goes on in Section B to say that, as a matter of law, the failure to grant relief here would be an abuse of discretion.

Really?! The Lemoges, represented by counsel, filed suit against the United States. (1) They served the wrong person. (2) The U.S. expressly told them, in writing, that they served the wrong party, and also told 'em who the right person to serve (the U.S. Attorney) was. (3) Even after knowing all this, counsel for the Lemoges apparently still didn't even try to serve the right party. (4) The district court issued an OSC re: dismissal, and plaintiffs still didn't serve the right person, and didn't even respond to the OSC.

Counsel's explanation for his apparent total abandonment of his law practice (he had some leg surgeries) didn't really work for me. And, unlike the Ninth Circuit, I'm not sure that the U.S. -- which settled with Lemoge's worker's compensation insurer prior to the granting of the motion for relief (which was itself belatedly filed) -- didn't suffer some prejudice from the delay.

I think Judge Gould is correct that, in addition to the other Rule 60(b) factors, courts should also consider the effect on the plaintiff if the motion is denied. That seems reasonable. But I would just remind Judge Gould that the practical effect of this motion is not to protect the plaintiff, but rather plaintiff's lawyer. The plaintiff's likely going to get paid regardless of whether the motion is granted, either from the lawyer or the lawyer's malpractice carrier (or, potentially, the State Bar's Compensation Fund). Indeed, in some ways, relief is easier with a malpractice claim, even in the face of a case-within-a-case, since liability on the malpractice side is so clear.

So, really, we're asking whether a wrongdoing lawyer, who has very little explanation for the multiple -- fairly egregious -- errors should be granted relief. Sure, in no-asset-no-insurance cases, that may also have an effect on the plaintiff. But let's nonetheless be honest about what the practical effects are. And to hold that the lawyer is entitled as a matter of law to get relief here; well, that just doesn't seem all that persuasive to me.

And I say that even though I'm a bit of a softie on Rule 60 motions. Do I like defendants who avoid liability on total technicalities (particularly, as here, service)? Not really. But do I like the encouragement of malfeasance that directly results from excuse regimes that allow lawyers to avoid the consequences of their misconduct? Nope. Don't like that either.

Here, it seems to me that while a reasonable district court could indeed elect to grant relief, and I'd be on board for that. But it also seems that a reasonable district court could go the other way as well. For me, an appellate court sometimes needs to let a district court do even those things that we wouldn't ourselves choose. To me, this was one of those cases. So I'd have remanded to make sure the district court thought about everything it should have considered, and perhaps I might have even hinted as to what I'd personally have decided. But I'd have let the person who's closest to the matter -- the district judge -- decide.

So as to (A) I say yes. But (B) seems to me a stretch.

Gomez v. Superior Court (Cal. Ct. App. - Nov. 20, 2009)

It's not that I disagree with anything that Justice Scotland says in the first paragraph of this opinion. Which reads:

"State prison inmates are a litigious bunch when it comes to filing writ petitions challenging conditions of confinement or raising a multitude of other grievances. The plethora of paperwork has a disproportionate impact on trial courts in counties where state prisons are located--many of which are small county courts. For example, there are two separate prison facilities housing approximately 11,000 inmates in Lassen County, which has only two trial court judges."

Prisoners are indeed litigious. With much time on their hands (and, as I would hope everyone would recognize, occasionally with some meritorious claims). This means that rural counties in which large prisons are located (and that's often where we put them, in places out-of-the-way to everyone except those who live them) have to deal with a disproportionately heavy workload.

Though, if it were me, I'd say that the right thing to do in such a setting would be to appoint more judges in such areas. Rather than approve, through judicial fiat, a difficult and arguably unconstitutional regime in which commissioners basically decide all of the prisoner petitions that come before the court. A practice especially troubling, even beyond the history and importance of the Great Writ, given the requirement of Article VI of the California Constitution, which allows commissioners the power only to exercise "subordinate" judicial duties. Something that hardly seems to describe the dismissal of habeas claims on the merits.

Plus, a commissioner costs just about as much as a judge, right? Judge appoint more of the latter and replace fewer of the former. How tough is that.

Nonetheless, the Court of Appeal decides that dismissing habeas claims is indeed a "subordinate" judicial duty on a huge procedural technicality, holding that because the habeas claim isn't "filed" until it's been determined that it establishes a prima facie case, commissioners can indeed decide the merits of these petitions at the pleading stage. To which I'll add that under this same theory, commissioners also would be exercising "subordinate" judicial power if they simply took all of the habeas petitions and dumped them in the shredder. That'd be just fine too.

U.S. v. Kuo (9th Cir. - Dec. 3, 2009)

Want to see a case where I'd have probably been much harsher in imposing a sentence than the district court? Here you go.

It's a sex slave trafficking case, involving defendants who imprisoned women in American Samoa and forced them to engage in prostitution. The facts are pretty grisly. So much so that even though the case was about restitution, and not about the length of incarceration, I went back and looked it up.

Five years. Which, in my view, defendants were pretty darn lucky to get.

There are lots of crimes for which I have extremely little sympathy. Violating the Thirteenth Amendment is one of 'em.

U.S. v. Thompson (9th Cir. - Dec. 3, 2009)

How can you delay a fairly straightforward federal drug trial for almost four full years? Play with the rules regarding new lawyers and self-representation, and also feign incompetence.

Though that'll only work for so long. After several years, everyone will catch on, and you'll finally be forced to go to trial. At which point you'll be convicted. And the Ninth Circuit will rightly affirm.

You'll note, by the way, that Thompson was able not only to avoid trial, but also to stay out of custody for two of the four years as well. Pretty sweet. Until everyone caught on, anyway.

My sense is that you'll see a more sophisticated delay strategy in Switzerland by Roman Polanski's lawyers.

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

The police are hanging out at the Thunder Valley Casino at 4:00 a.m. looking to pick up whomever they can. They stop a vehicle because it doesn't have any license plates, but don't bother to look in the window to see if there was a red temporary sticker. (Defendant later testified that, yeah, there totally was a temporary tag there, which seems plausible.) Since the only basis for the stop was the alleged Vehicle Code violation, defendant argues the evidence from the stop has to be suppressed.

The trial court disagrees, Dotson is convicted, and appeals. On appeal, that Attorney General expressly agrees with the defendant and concedes that the vehicle stop was impermissible, and that the exclusionary rule thus required suppression.

But even though both sides agree, the Court of Appeal refuses to accept the concession. It holds that even though there's a California Supreme Court case seemingly on point granting the motion to suppress, that case is distinguishable because there the officer actually saw the temporary tag, whereas here the officer didn't bother to look. And on that basis the Court of Appeal refuses to suppress the evidence and affirms the convictions.

So the Court of Appeal says the Attorney General's Office is being way too soft on crime and pro-exclusionary rule. Who'da thunk?

In Re Marriage of Buie & Neighbors (Cal. Ct. App. - Dec. 1, 2009)

I have to mention this case. For two (admittedly trivial) reasons.

First, I like the caption. "In Re Marriage of Buie & Neighbors". No, it's not a case from Utah. The wife's name is Tatia Buie, and the husband's name is Walter Neighbors. Still. Funny.

Second, I like that the only thing the case is about is whether the husband owns the 2001 Porsche 996 outright, or whether half of it belongs to his ex-wife. No fights about kids, houses, alimony, etc. Nothing important like that. Down here in San Diego, we fight about a 9-year old Porsche.

The merits are actually worth mention as well. The car was bought with wife's separate funds and allegedly "given" to the husband shortly before his birthday. Well, gifts can be separate property, but they generally require a writing, which doesn't exist here. But the writing requirement does not apply "to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage" (emphasis mine). Since everyone agrees that husband used the Porche and the spouses were hugely wealthy, the only question is whether the car was a "tangible article of a personal nature."

So a straightforward issue of statutory interpretation. The trial court thought that the Porche qualified, since it was tangible (duh) and pretty personal. That's eminently reasonable, and a pretty good textual take. Plus it's supported by both the representative list as well as the policy of the statute, since I think one could readily view a Porche to be sort of like jewelry for dudes.

But the Court of Appeal reverses. Principally due to legislative history. And as far as that goes, the legislative history includes a pretty telling sentence from the source of the legislation -- the California Law Revision Commission -- that says: "the gift of an automobile, for example, would not create a presumption that the property is separate, since an automobile is not an article of a personal nature within the meaning of the [statute]."

So it's a classic modern day statutory interpretation battle. The text, read alone, suggests (in my view, strongly) X. But the legislative history even more strongly suggests Y. Which rules?

Personally, I might fall somewhere in the middle. Most cars might not be items of a personal nature, since in most marriages, they aren't treated that way. Personally, for example, although I have "my" car (a 2000 Nissan Maxima) and my wife has "hers" (a 2001 Nissan Altima), and we generally drive our own cars, there are definitely times we drive the other's, and I have no doubt that they're not items of a "personal" nature in our family.

But I can see at least the possibility that other families would be different. Particularly when a car is "special" like a Porsche, and perhaps of interest to only one of the spouses. So I might be of the opinion that the truth falls somewhere in between, and that perhaps neither the text nor the legislative history establishes an absolute principal.

But the Court of Appeals feels otherwise, and after all, the legislative history isn't as nuanced as my personal vision. So be it.

POSTSCRIPT - One of my readers (again, anonymity is always assured here at the California Appellate Report) had a great thought: What if the car had a manual transmission and only one of the spouses could knew how to drive a stick? That would seem powerful, powerful evidence that the car was indeed "personal" to one of the spouses.

Holbert v. Fremont Investment & Loan (Cal. Ct. App. - Nov. 30, 2009)

Want to know how the huge credit crisis -- or at least a large part of it (the housing part) -- got started? From stuff like this:

"[P]laintiff was more than 65 years old and lived in a home in Citrus Heights, California that she and her husband had purchased in 1999. Although plaintiff is certified as a notary, she was not employed as such and subsisted on social security benefits of $1,137 per month.

In 2003, plaintiff's husband died from a lengthy illness that “severely strained [plaintiff‟s] financial situation.” That year, plaintiff obtained a loan from Ameriquest in the amount of $144,500 secured by a deed of trust on her home in order to pay off various debts. After paying off the prior mortgage and about $5,000 in loan fees, plaintiff received approximately $18,000 in cash out of the Ameriquest loan.

In June 2004, plaintiff again refinanced her home mortgage, this time with a loan from World Savings in the amount of $153,750. After paying off the Ameriquest loan and loan fees of over $3,500, plaintiff received approximately $5,000 in cash.

In February 2005, plaintiff obtained a loan from New Century Mortgage in the amount of $204,000, secured by a deed of trust on her home. After paying off the World Savings loan and other debts and fees of over $9,000, plaintiff received $5,574 in cash out of the loan proceeds. At the time of this loan, plaintiff's home was appraised at $240,000. Plaintiff‟s initial payments on this new loan were $943.50.

In June 2005, after determining the payments on the New Century loan were more than she could afford, plaintiff entered into a listing agreement for the sale of her home.

On June 7, plaintiff received a call from an employee of California Real Estate Investments & Loans, Inc. (CREIL) about refinancing her home loan. At the time, plaintiff told the caller she was on a fixed income of $1,137 per month and said she was only interested in refinancing if she could reduce her payments while trying to sell the home. The caller said this could be done and CREIL would help plaintiff sell her home.

On July 1, 2005, plaintiff met with Samantha Pham, who informed plaintiff she was the owner of CREIL. Plaintiff told Pham she was living on a fixed income, could not afford her current payments, and needed a single payment that included an impound account for taxes and insurance. Pham directed plaintiff to sign some papers to begin the refinancing process and assured plaintiff she could obtain a loan that would reduce plaintiff's financial obligations. Pham also represented to plaintiff that the information in the loan documents was consistent with what plaintiff had earlier told CREIL. Plaintiff signed the loan application based on these assurances.

The loan application materials listed the value of plaintiff's property at $265,000. They also represented plaintiff‟s income as including $4,800 per month as a self-employed notary.

Pham submitted the loan application to Fremont. On July 20, Fremont sent plaintiff documentation listing estimated fees and costs associated with the new loan. This documentation listed total costs and fees of $17,969.32, which included $15,022.50 in broker fees to CREIL.

On July 25, plaintiff again met with Pham, who presented her with a “stack” of loan documents for a loan from Fremont in the amount of $265,000. These documents included revised estimates of fees and costs. Also included with the loan documents was a list of debts to be paid off from the loan proceeds, including a loan from Wells Fargo Bank in the amount of $4,299. The documentation further disclosed a payment of $4,528.80 as a penalty for prepayment of the New Century loan. Pham notarized plaintiff's signature on these documents, for which Pham was paid $300 out of the loan proceeds.

The initial monthly payment on the Fremont loan was $1,916.84, which did not include taxes and insurance. The Fremont loan included a prepayment penalty clause that applied during the first two years of the loan. After payoff of the New Century loan and the costs and fees of the Fremont loan, plaintiff received $31,361.73 in cash out of the loan proceeds.

On the day plaintiff signed the loan documents, Pham deposited $4,500 in plaintiff's bank account and later asked plaintiff for a bank receipt showing the balance in her account. Plaintiff provided the receipt on July 28. On August 2, Pham transferred the $4,500 back out of plaintiff's account.

Pham assured plaintiff she need not worry about the large loan payments, which were well beyond plaintiff's monthly income. Pham told plaintiff she could use the cash she received from the loan proceeds to make the loan payments while Pham helped plaintiff sell her home. However, Pham never assisted plaintiff in selling her home, and plaintiff used up most of the loan proceeds in making the loan payments to Fremont.

During 2006, plaintiff's attempts to sell her home were unavailing, because Fremont refused to consider doing a “short sale” and refused to waive the prepayment penalty on its loan."

There's not a person involved here, in my mind, who wasn't greedy and abusive. Some, of course, more than others -- particularly Pham, whose conduct seems outright criminal. But everyone gleefully went along with the process. In this case and in tens of millions of others.

Before the whole thing, of course, came crashing down. And we all paid for it.

P.S. - The Court of Appeal affirms the grant of summary judgment to Fremont, finding that it did nothing wrong.

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".

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.

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.

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.

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.

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.