Friday, April 30, 2010

Arizona v. Harkins Amusement Enterprises (9th Cir. - April 30, 2010)

I completely agree with Judge Hug on this one.

Does the ADA require movie theaters to help blind or deaf people watch movies? They could do so, after all. For deaf people, you could require "open captions," which is the text you see at the bottom of movies or on televisions in bars (i.e., "subtitles"). You could alternatively require "closed captions," which essentially are open captions projected at the back of a movie theater and mirror-like things provided to individual patrons who want to have these captions appear superimposed on the screen for them (and them alone). And for blind people, you could have "narration," which is where a soundtrack essentially describes (for them) what's happening on the screen.

Plaintiff files a lawsuit claiming that the ADA requires all three. The district court dismisses the suit at the pleading stage. The Ninth Circuit affirms in part and reverses in part. Exactly rightly, in my view.

The ADA requires "auxiliary aids" for deaf and blind people, which federal regulations further expressly define as including interpreters, open and closed captioning, etc. So clearly what the plaintiffs are asking for isn't categorically out of bounds.

But as for open captioning, there's a preamble to another federal regulation that expressly says that that's not required for movie theaters. For good reason, in my view. Open captioning has the result of changing the movie experience for everyone, since everyone sees the captions, and some people (including me) don't like that. So I'm on board for dismissing this claim. Even at the pleading stage. That's not required.

But I also agree with the Ninth Circuit that you can't dismiss the rest. Closed captions and narration aren't mentioned in the commentary; moreover, they only affect patrons who choose to elect them. So it's a different deal.

Admittedly, maybe providing closed captioning and narration would be overly expensive or burdensome for the theater, in which case they're not reasonable accommodations under the ADA and hence not required. But you don't decide that at the pleading stage. 'Cause maybe they're not overly burdensome. That's why we have discovery, summary judgment, and (if necessary) a trial.

So the Ninth Circuit gets this one right. If it's not that burdensome for hearing- or visually-impaired persons to be able to watch movies with everyone else, they should be granted that right, and the ADA provides exactly that. Whether that's the case requires more than simply a judgment at the pleading stage.

Spot on.

Thursday, April 29, 2010

Silvaco Data Systems v. Intel (Cal. Ct. App. - April 29, 2010)

I wasn't particularly interested in the underlying merits of this opinion, which is what it is. But I did find interesting Justice Rushing's comments about (of all things) the appendix. Not something we generally discuss at length in an appellate opinion.

Check it out (with citations deleted):

"Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little. We see three causes for this wretched excess. The first is the inclusion of hundreds of pages of printouts of legal authorities retrieved from online sources. The rules require that, for the convenience of trial judges, some such materials be 'lodged' in the superior court when cited. There is no requirement that they be included in the record on appeal, and ordinarily they have no place in it. This court can more easily retrieve authorities through its own resources than it can find them—or anything else—in an 8000-page appendix.

A second cause of overkill is that each of the appendix's 27 volumes includes an index to the entire appendix. This would be a welcome convenience if not for the fact that the index is 103 pages long—a bulk that, replicated 27 times, consumes more than one-third of the appendix. This remarkable feat is achieved by listing not only every distinct filing, but every exhibit or attachment to each filing. We are thus called upon to thumb through page after page of references to exhibit titles, including lodged authorities (see preceding paragraph). This level of detail exceeds the requirements of the rules, and when it enlarges the index to the present extent, largely defeats the index's purpose.

The third source of unnecessary length is the duplicative inclusion of multiple copies of documents that were filed repeatedly in the superior court. We assume these duplicate filing were intended as a convenience to the trial court, but when they inflate a record to the present proportions they are hardly a convenience to us.

There are of course cases in which records this size, and many times this size, are unavoidable. But as the sheer size of the record increases, it become increasingly important for appellate counsel to take an active role in ensuring that the record is no larger, and no less easily navigated, than accuracy and necessity dictate. The present case appears to be one of those rare instances when, contrary to the maxim, superfluity does vitiate. (See Civ. Code, § 3537.)"

I particularly loved the obscure Section 3537 reference. Nice.

Wednesday, April 28, 2010

People v. Escudero (Cal. Ct. App. - March 30, 2010)

Here's another one that I'll let speak for itself.

Defendant's charged with molesting a 7-year old. Is it unfairly prejudicial to introduce evidence that he allegedly assaulted two adult women in their 30s after they got drunk and fell asleep?

Nope. Not according to the Court of Appeal. Molesting a 7-year old and assaulting an intoxicated adult are sufficiently "similar" and do not unfairly prejudice the defendant.

Oasis West Realty v. Goldman (Cal. Ct. App. - March 3, 2010)

Lawyers can speak and vote and petition with respect to public issues. Even if those views are directly contrary to the interests of a current (or former) client.

And when they're sued for doing so, they can file an anti-SLAPP motion, get the lawsuit dismissed, and recover their fees.

Tuesday, April 27, 2010

Estate of Kraus (Cal. Ct. App. - April 27, 2010)

Janice Kraus was unmarried and had no children, and created a will that left most of her money to the Make-A-Wish Foundation and the Regents of the University of California. She had a brother, David, whom she specifically disinherited, since (1) he had a temper, (2) she was afraid of him, and (3) he had previously pimped $160,000 from her. She even put a clause in her will directing that her estate get back the missing $160,000. In short, her brother was to get nothing, and charities were to get the rest.

In October 2006, Janice had cancer, was dying, and was in hospice care. On the 22nd, while she was semi-comatose, David came in to the hospice with a "General Power of Attorney" form and had someone hold Janice's hand to write an "X" on the form. David then immediately used the form to raid Janice's bank accounts, grabbing four CDs from California National Bank collectively worth around $140,000, another $15,000 from Janice's Washington Mutual Bank account, and over $9,000 from a joint checking account that Janice had with her 91-year old mother. Janice died at 7:50 a.m. the next day.

The trustee sues David to recover the money and statutory penalties, and prevails. David appeals, but the California Court of Appeal affirms.

IMHO, far from being upset about the result, David should be happy he's not in jail.

Monday, April 26, 2010

Plummer v. Day/Eisenberg (Cal. Ct. App. - April 26, 2010)

That's a neat trick.

Once a case settles, a check is made out to X, Y and Z. X and Z are law firms, but Z is former counsel. There's a dispute about fee allocation, and Z won't sign the settlement check unless Z gets paid what Z says Z's owed.

So X signs the check, and transmits it to Z to cash, and instead of just one person signing on behalf of X, one person from X signs legibly and another person from X signs in a scrawl. That way, when Z signs, it looks like there are three signatures -- of X, Y and Z -- even though Y never signed.

Still, I like the creativity!

People v. Navarrete (Cal. Ct. App. - Feb. 1, 2010)

I like this. Basically, all of it. The opinion, written by Justice Rubin. What the trial court, Judge Patrick Meyers (in LA), did. What the trial D.A., Robert Britton, did. Essentially what everyone did. With the exception of Detective Andrew Serrata. Who seems to me to be everything we do not want our police officers to be.

I won't get that much into the case, in large part because the entire opinion's worth reading, and is also sufficiently short that one can do so fairly easily. I will say that my sense is that while I agree with Justice Rubin that Navarrete isn't totally obviously guilty, I do think he's in deep trouble, and may well have committed the offenses for which he was charged. For which I might also have given him even more than six years.

But I also agree that his conviction should be reversed. First, I'm quite confident -- especially given what subsequently transpired -- that the trial court properly found the police officers not credible when they said they gave the suspect his Miranda rights. Usually trial courts are very hesitant to call "testilying" by police even when they see it, but here, the trial court did so, and I was happy to see that. Though even here, notice (in footnote 2 of the opinion) how wary the trial court was to even do that.

At which point the officer blatantly violates the motion to suppress, and does so wilfully. The facts of this one are pretty striking; I'd say it was a made-for-television movie, except the way these things happen (and the details discovered) are more plausible. Anyway, I like how the trial court addressed the problem, and liked what the Court of Appeal did as well. Am I totally persuaded that the error wasn't harmless? No, not totally. But it might have had an effect on the trial. And the misconduct by the officer was so deliberate and wilful that even if I had any lingering doubts, they'd go against the conviction -- indeed, what transpired here might even amount to outrageous governmental conduct, albeit by only a single state actor.

In the end, though, the system got this one right. And I hope both that Detective Serrata does not hear the end of this one, as well as that the other people involved in this controversy know they did the right thing and would do it again.

Friday, April 23, 2010

Fulton v. Medical Board (Cal. Ct. App. - April 23, 2010)

It's bad enough when you lose an appeal in a published opinion. It's public, it's got your name in it, and it's forever.

But when your appeal is about your allegation that the California Medical Board shouldn't make public the information about your discipline (you resigned your medical license) and the events that led up to it (discipline by other states, malpractice judgment, etc.), because that's "harming your reputation" and hurting your business (you run a quasi-medical business and sign things "Dr." and "M.D."), the last thing you want is for the Court of Appeal to report in its published opinion all the things you're trying to keep hidden.

But that's exactly what the Court of Appeal does.

Call it irony. Call it justice. Call it whatever you'd like.

Regardless, that's got to be something that Dr. James E. Fulton isn't likely to appreciate.

Something to think about the next time you're thinking about filing one of these appeals. An appeal that says "You should keep X secret" may not only lose, but be itself counterproductive as well.

Thursday, April 22, 2010

People v. Mathers (Cal. Ct. App. - April 22, 2010)

Sometimes I don't get what people are thinking.

Okay, so you deliberately wrote some bad checks. You opened up a checking account with $50, never made any more deposits, and wrote multiple bad checks on the account. That's fraud, but I understand it. You're a criminal. I get it.

I even understand it when, three months later, after the bank closes the account, you print a couple of new (bad) checks on this account off your computer and go to the Food Maxx store in Redding to try to get $482.63. Granted, this isn't the brightest thing in the world; obviously the store is going to run the thing and see the account is closed. But maybe the manager's lazy, so worth a shot. Again, I get it. Plus, even if they catch you -- which (here) they did -- maybe the manager thinks you're confused, or whatever, and doesn't call the cops.

Here's the thing I don't get. Why, later that night, do you go back to the same store with the same fake check and try to cash it again?! You're just begging the manager to call the cops this time. Which, not surprisingly, is what he does.

There's no other place in the universe you can try?! Or even in Redding?

Something that Robert Mathers gets to think about for the next nine years. And which the rest of us can think about for nine seconds.

Bad checks. Not rocket science. Those that pass them: Not rocket scientists.

Hammad v. Holder (9th Cir. - April 22, 2010)

There's a downside to paying someone to marry you so you can get your green card. Not only is it criminal, but if you're caught, the next time you marry a U.S. citizen -- even if for real this time -- you're going to find it difficult to stay in the United States.

Wednesday, April 21, 2010

Union Steel Union v. Shell Oil (9th Cir. - April 21, 2010)

Some cases are pretty clear when you just remember some basic principles. So much so that it's somewhat surprising that any court could come out the other way.

Let's take a case in which a plaintiff files a putative (uncertified) class action that's removed to federal court under the Class Action Fairness Act -- i.e., because there's minimal diversity and $5 million-plus at stake. The district court thereafter refuses to certify the class. Does jurisdiction still exist in federal court, or does the lawsuit get remanded?

There's a very simple foundational principle that answers that question: As long as jurisdiction exists at the outset, it persists. You can muck that central principle up with a variety of complex arguments, but that's basically the rule.

So the Ninth Circuit gets this one right, and properly recognizes that the district court got it wrong. Even after a refusal to certify, the case gets to remain in federal court.

There are additional policy and other reasons why this result should follow as well, but you don't even need to get to 'em. Sometimes the most straightforward part of a cases provides a pretty good answer itself.

Tuesday, April 20, 2010

Rincon Band v. Schwarzenegger (9th Cir. - April 20, 2010)

The analogy between watching sausage be made and watching how California strikes deals with Indian tribes over casino expansions and profits isn't a stretch.

Pokorny v. Quixtar (9th Cir. - April 20, 2010)

What?! You mean to tell me that a multi-level marketing scheme would really manipulate its contract of adhesion so much that its arbitration clause was both procedurally and substantively unconscionable?

Monday, April 19, 2010

People v. Superior Court (Cal. Ct. App. - April 6, 2010)

Was in New York for a long weekend. But that shouldn't stop the dissemination of knowledge:

Driving a truck down a steep hill when you should know that you're brakes might not work can lead to a conviction for murder.

So sayeth the California Court of Appeal, which reverses the dismissal of an indictment.

Thursday, April 15, 2010

People v. Taylor (Cal. Supreme Ct. - April 15, 2010)

On this very special Tax Day, the California Supreme Court wants to remind you that you get a lot of value for your tax dollars. So it issues a 113-page opinion that unanimously affirms a sentence of death.

It's a somewhat unusual case, in that you rarely see such a pathologically calm perpetrator or such an incredible laydown on the fact that the defendant was pretty much clearly guilty. Here are the surprisingly pedestrian -- and yet simultaneously grisly -- facts:

"Around 9:30 p.m. on June 23, 1995, 80-year-old Rosa Mae Dixon sat in the living room of her San Diego home conversing with her sister Betty Hayes, who was visiting from Kansas. The women were startled and 'scared to death' when they looked up and saw defendant calmly standing in the room staring at them. Defendant, who was 22 years old at the time and lived nearby, apparently had entered the house from the back after tearing a hole through a mesh screen.

After mumbling something that might have been his name, defendant closed the front door over the security screen and sat down on the couch between the two women. When Dixon rose and asked defendant what he wanted, he grabbed the front of her nightgown. At Dixon's direction, Hayes went into the front bedroom to call 911, but when she picked up the telephone, defendant chased after her, jerked the receiver out of her hand, and pulled the cord from the wall. Defendant then grabbed Hayes by her clothing, took hold of Dixon in the same manner, and pushed the two women down the hall to a bedroom in the back of the house.

At some point before defendant forced Dixon and Hayes to the back bedroom, one of the women came outside onto the front porch, yelled for help, and then ran back into the house. Dixon's next-door neighbor, Erik Kirkpatrick, heard the cry and came to investigate. Receiving no response to his knock on the front door, Kirkpatrick went to the side of the house, looked through a window, and saw defendant on his knees hunched over Dixon. After hearing a male voice mumble something like, 'I don't want to have to hurt you,' and a female voice respond, 'Okay, just don't hurt me,' Kirkpatrick quickly returned to his own house to call 911 and waited for police to arrive.

Kirkpatrick's momentary look through the side window occurred just as events in the back bedroom had started to unfold. Defendant first pushed Dixon to the floor at the foot of the bed, removed her panties and pulled down his shorts. His first attempt to penetrate her was unsuccessful. He then picked up Dixon and slammed her onto the floor near the side of the bed, banging her head and knocking Hayes to her knees in the process. With more room to maneuver in the new location, defendant managed repeatedly to penetrate Dixon's vagina with his penis. Meanwhile, Dixon started breathing hard and gasping for air. At one point, defendant withdrew his penis, raised Dixon's head and attempted to place his penis inside her mouth. She resisted, turning her head to the side and saying, 'No,' while still struggling to breathe. When defendant released Dixon's head and let it drop to the floor a short time later, she was ashen and no longer breathing or moving.

Defendant then turned his attention to Hayes, swinging around to face her with his penis in his hand and asking if she 'wanted it.' When he did so, Hayes noticed there was semen on the tip of his penis. Defendant pulled up his shorts and started out of the room, passing Hayes's purse, which was sitting open on a table. He dug through it, complaining about finding only a few dollar bills until he discovered and pocketed about $65. Defendant continued on through the kitchen and out the back door.

Defendant got only as far as the back fence before being apprehended by Officers Gassmann and Caropreso, who, along with several other officers, had responded within minutes to Kirkpatrick's 911 call reporting a burglary in progress. When the officers asked defendant why he was in the yard, he first replied he thought the house was vacant. Defendant then offered that a White male named John Hall, who had left before the officers' arrival, 'just raped an old woman inside the house.' [Yeah, good alibi. That's definitely going to throw 'em off your scent.] A third officer retraced defendant's route back to the Dixon residence but found no evidence of a second assailant. Less than one hour later, the officers conducted a curbside lineup in the alley behind Dixon's house, and both Hayes and Kirkpatrick identified defendant.

Meanwhile, other officers had discovered Dixon lying on the floor of the back bedroom with her nightgown bunched up around her waist. There was blood on her leg and underneath her pelvic area, and she was unresponsive and not breathing. Rescue efforts, including cardiopulmonary resuscitation (CPR) and emergency heart medications, restored Dixon's pulse, and she was taken to the intensive care unit of a nearby hospital. But she soon suffered seizures and kidney failure and never regained consciousness. The following evening, after being declared brain dead, she was removed from life support."

Needless to say, in addition to being conclusively identified by eyewitnesses and basically caught in the act, there was also totally persuasive DNA evidence. Since Taylor killed an 80-year old woman for no reason -- admittedly, almost assuredly not intentionally -- and since it was a San Diego jury, the outcome wasn't much in doubt. Death penalty.

Nor was the result of the appeal. But the California Supreme Court nonetheless makes it official.

Wednesday, April 14, 2010

People v. Shafrir (Cal. Ct. App. - April 14, 2010)

Sometimes I feel like I'm saying things that are totally obvious. And yet seemingly daily, there appear new cases that prove that the message needs repeating.

This morning, I said: "Don't drink and drive." Plus some other stuff. Fair enough.

But apparently I'll have to add: "If you drink, don't drive. And especially don't drive 110 mph." At 3:40 a.m., no less.

But it gets worse. Apparently I'll have to also add: "Particularly when you have three huge bags of weed in the car. Plus a paper bag with $50,000 in cash."


People v. Stacy (Cal. Ct. App. - April 14, 2010)

When you're arrested for drunk driving, don't make it worse by giving the officer the name of your cousin. They'll catch you. Pretty soon, usually; fingerprints, DMV photos, and all. And that'll add some additional time to your sentence.

Word to the wise. Of course, better not to drive drunk in the first place. Far better.

Tuesday, April 13, 2010

In Re Judicial Misconduct Complaint (9th Cir. - April 13, 2010)

There are certain things in life that are a virtual certainty. Death. Taxes. Stuff like that.

Here's one more to add to the list: When you make a judicial misconduct complaint, it's much, much more likely that you'll be found to have engaged in misconduct -- and sanctioned -- for making the complaint than that the judge is sanctioned. Because pretty much always, the nutjob isn't the one on the bench, but rather the guy staring at you in the mirror.

Now it's time for my noontime public debate (with my colleague Miranda McGowan) about whether it's constitutional to ban vibrators. Ah, academia.

Holley v. CDC (9th Cir. - April 5, 2010)

"Holley is an inmate at the California Medical Facility in Vacaville, California. He has, at various times, identified himself as a Christian, a Satan worshiper, and a Nazarite, and has attended Muslim services. Holley has stated that no established religion adequately describes his religious beliefs."

'Cause being a Christian and a Satan worshiper are so closely related. It's so hard to distinguish between the two; sort of like the difference between Methodists and Baptists. Really subtle.

Christ/Satan. Satan/Christ. Really hard to figure out who to root for.

Monday, April 12, 2010

Hein v. Sullivan (9th Cir. - April 12, 2010)

Just because you have Erwin Chemerinsky representing you doesn't mean that you're going to win your habeas appeal. Even in the Ninth Circuit.

Notice, by the way, that Erwin's listed as from "Durham, North Carolina". Which I'm sure will come as news to the students and faculty at UCI.

Which shows how long federal appellate cases sometimes take to brief and resolve.

Thursday, April 08, 2010

U.S. v. Maggi (9th Cir. - March 16, 2010)

No one really said that race doesn't matter anymore in the 21st century. But in case you thought otherwise, here's a case that proves that it still matters. Sometimes, dispositively.

Admittedly, this is about whether someone's an "Indian," which is a particular type of race. And a fact that clearly matters for purposes of the Major Crimes Act, which provides federal jurisdiction for certain crimes committed by Indians in Indian country. So I understand why it matters -- and why we have to examine -- whether Shane Maggi (as well as Gordon Mann) are "Indians."

Still, my mind couldn't help but draw the analogy between this opinion and those earlier cases about who's "really" black. One drop of blood? "Recognized" by the state as a mulatto? Those cases leave a strong taste in one's mind. And it's not a good one. So to see a modern case that makes an (even loosely) analogous inquiry is a little disturbing.

Again, we're talking about Indians here, and at least a little about sovereignty, so perhaps the more accurate analogy might be to determinations about who's really "French" or "German". But however accurate, that's not where my mind first went.

None of which is to insult the opinion. The inquiry is, again, doctrinally required. But even that says something. Or at least reminds us.

Wednesday, April 07, 2010

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - April 7, 2010)

Usually I comment on (or critique) opinions. Sometimes I make snide comments. But sometimes -- albeit rarely -- all I really want to do is to let people know about an opinion because it's important and of practical interest.

It's about imputed disqualification and whether screening (f/k/a "Chinese Walls") works in California. Here's the Court of Appeal's conclusion, which helpfully comes in the first paragraph:

"When an attorney obtains confidential information from a client, that attorney is prohibited from accepting a representation adverse to the client in a matter to which the confidential information would be material. In this case, we are not concerned with the issue of disqualifying the attorney possessing the material client confidences from representing an adverse party; it is conceded that the attorney is disqualified from doing so. Instead, we are concerned with the issue of the vicarious disqualification of the attorney's entire law firm. We conclude that, under the circumstances of this case, automatic vicarious disqualification is not required, and that, instead, there is a rebuttable presumption that the attorney's knowledge of client confidences is imputed to the firm, which can be refuted by evidence that the law firm adequately screened the attorney from the others at the firm representing the adverse party. In addition, as the disqualified attorney has left the firm, the trial court's examination of the screen's adequacy should be on a retrospective, not prospective, basis."

Important stuff.

The opinion, which comes in at 55 pages, is pretty darn comprehensive. So all I'll add is one quasi-snide comment. The amicus brief on behalf of appellants is signed by a gazillion people, and might accurately be titled "Amicus Brief of Most of the Huge Law Firms In California, All of Whom Are Jonesing For PPP and None of Whom Want to Be Conflicted Out." The actual title, of course, is slightly different. Slightly.

U.S. v. Tello (9th Cir. - April 7, 2010)

I'm thinking of starting a new blog. One that's devoted exclusively to talking about opinions in which a guy on the internet "seduces" an FBI agent who's posing as a teenage girl. Content's no problem: there's tons of those cases.

I wrote about one from the California Court of Appeal on Monday. Today brings yet another opinion.

I'm joking about the blog, of course. Though I've probably already written about a dozen or so of these over the years. But the lesson remains: Don't try to seduce a "teenager" over the internet. It's not who you think. Really.

There's also a more subtle point, I think, and one which I hadn't thought about until today. My admittedly unscientific impression is that these internet sting cases result in published opinions at a much, much higher rate than ordinary criminal appeals. Or at least, given their numbers, I think that's gotta be the case, unless everyone and his mother's being convicted of this stuff.

I wonder why that's the case (if indeed it is)? I assume that part of the reason is that these cases have an unusually high rate of going to trial -- rather than plea out -- due to the relatively high sentences and the fact that the defendants are often not your "usual" criminals who understand that a stint in the joint is the price you must occasionally pay for your profession. But that can't be all of it. Maybe these cases are more interesting to clerks and/or judges. Maybe the relative wealth of the offenders enables and encourages them to hire higher-priced defense and appellate attorneys who come up with creative, novel or difficult appellate issues, thereby resulting in more published opinions. Or maybe the historically novel setting of the internet itself results in difficult jurisdictional and other issues that require an era of publication before the resolution of internet sex stings on appeal become as routinized as, say, bank robbery is now.

Something interesting to think about.

Anyway, for now, here's yet another case where an older guy (this one from Arizona) talks to a "thirteen year old" from the FBI and travels over state lines (to L.A.) to allegedly have sex with "her" but in fact to be busted.

Word to the wise. Screen names like (here) "Cutelagrl93" (i.e., Cute LA Girl Born in 1993) are more accurately "FBIDude67". Ignore at your peril.

U.S. v. Andrews (9th Cir. - April 7, 2010)

I understand pride of authorship. I also know that judges may occasionally change their votes after reading a draft opinion.

Those understandings aside, I always find it funny when I read an opinion by a three-judge panel in which the panel has to explain who's writing what and in which the "opinion for the court" is also authored by a dissenter.

So in this morning's case, for example, Judge Alarcon authors the opinion for the court on one issue, but dissents as to another. Which is sometimes efficient (though a hassle to follow), at least with larger panels.

But here, Judges Clifton and Fernandez both agree on every issue, and so Judge Clifton writes a "concurring" opinion that Judge Fernandez joins. Given this fact, it'd be a lot easier to follow if the majority opinion was authored by Judge Clifton (potentially just dupe-and-revising a draft and/or bench memo by Judge Alarcon) with a simple "partial dissent" by Judge Alarcon. Rather than having Judge Alarcon write the majority opinion in part and a dissent in part.

No biggie. You can still follow the opinion if you try. But easier is often better.

Tuesday, April 06, 2010

People v. Milosavljevic (Cal. Ct. App. - April 6, 2010)

Let's keep the Serbian names straight. Slobodan Milosevic was worse; he committed genocide.

But Peter Milosavljevic is far from a peach. He was sentenced to 965 years to life when found guilty of 38 counts of "forcible rape, forcible sodomy, forcible oral copulation, forcible penetration by a foreign object, false imprisonment, administering an intoxicating agent with intent to commit a felony, assault by means of force likely to produce great bodily injury, and other related offenses involving 10 victims." A dude I'm happy to see locked away.

Just a snippet of what he did, involving a single victim: "During the six-month period during which she lived with Milosavljevic, he raped her 20 to 35 times. When she refused to have sex with him, he reminded her of his threat to her family and that he knew their addresses and telephone numbers. On the five to seven occasions when she refused to have anal sex and tried to fight him off, he strangled her until she became unconscious. He also forced her to orally copulate him on many occasions, which she disliked because his penis had a bug spray taste to it."

Not only does Milosavljevic have to spend 965 years to life in prison, but he also has to endure the indignity of seeing the harshest thing I've ever read about someone printed forever in the pages of the California Appellate Reporter -- a publication, mind you, to which his cohorts in the penitentiary have access. "His penis had a bug spray taste to it." Oh my.

P.S. - Also don't confuse Milosavljevic with Milorad "Rod" Blagojevich. Who's also not a peach, but who's far better than either Milosavljevic or Milosevic. And who, as far as I know, also has no personal "Dude, your d**k tastes like bug spray" issue. Thankfully.

CRS Recovery v. Laxton (9th Cir. - April 6, 2010)

Here's an $85,000 diversity lawsuit that only a true aficionado of both IP and conflict-of-law doctrines could love.

I'm sure that includes at least three people in the universe. Maybe even four.

Monday, April 05, 2010

Shalant v. Girardi (Cal. Ct. App. - April 5, 2010)

It's a good day for disbarred California attorney Joseph Shalant, who not only learned today that the Court of Appeal reversed a (substantial) judgment against him for insufficient evidence, but who also sees the Court of Appeal reverse the dismissal of his own lawsuit against the adverse party.

But he shouldn't celebrate too soon. It may perhaps be that the reversal of the judgment against Shalant will stand, since -- like the Court of Appeal -- I don't see any precedent for the position that a suspended and/or disbarred attorney is required to advise his clients precisely why he's ditching a case. Should he? Yeah. Does the law require it? I doubt it.

But the reinstatement of Shalant's own lawsuit is another question. There's a split in the Court of Appeal here, with the current panel holding that Shalant's lawsuit couldn't be dismissed even though Shalant is a vexatious litigant who was litigating pro per because the lawsuit was initially filed by an attorney. That may, or may not, be right. But given the importance of the question, as well as the split below, I wouldn't be at all surprised to see the California Supreme Court grant review on that issue. As, indeed, it should. IMHO.

So a likely victory for Shalant, but part of which may not necessarily last forever.

People v. Nakai (Cal. Ct. App. - April 2, 2010)

When will people learn?

She's not 12. I don't care what she says online. She's a man. She's 35. She's working on private time (here, as a member of "Perverted Justice") to find online predators.

The ratio of actual 12-year olds willing to have sex with you (either actual or cyber) to the number of people pretending to be 12-year olds willing to have sex is probably 100 to 1. Thankfully, I might add.

Talk to people your own age. Attempt to seduce people your own age. At least roughly. And stay away from children, either actual or ostensible.

N.D. v. Hawaii Dep't of Education (9th Cir. - April 5, 2010)

Let me slightly critique this opinion by Judge Farris.

It's an interesting case, and a challenge I wouldn't have thought about on my own. Hawai'i (like many other states) is facing a downturn in tax revenue, and has decided to make up the shortfall by shutting down public schools on seventeen Fridays during the 2009-10 school year. One can debate the wisdom of this policy, but as a legal matter, as long as that policy is okay with the union (which has a CBA), that seems generally okay. Sure, the kids get 10 percent less education, but that's a policy dispute, not a legal one.

Plaintiffs, however, bring a creative lawsuit, and one which facially has some potential merit. The plaintiffs are parents of disabled kids, who are covered by an IEP pursuant to the IDEA. That plan for each kid essentially says that s/he is to receive X instruction -- a plan based upon Y number of school days -- and so shutting down the schools arguably violates both the plans as well as the "stay put" provisions of the IDEA, which generally provides that you can't change a plan once it's been approved.

So a good legal theory. Plaintiffs move for a preliminary injunction, but the district court denies it, holding that the public schools were making the best of a bad situation. The Ninth Circuit, on appeal, affirms, holding that the decision below was not an abuse of discretion because while the public interest factors on both sides were strong, the balance tipped in favor of the defendants because plaintiffs were not likely to win on the merits. "Generally applicable changes in policy" like the one at issue here, the panel concludes, are not governed by the "stay put" provisions of the IDEA.

A reasonable jurist could go either way, I think, as to the validity of this proposition. Particularly when the opinion concludes, in its final paragraph, with this important caveat: "Nor does our conclusion leave the parents of disabled children with no means of redress. N.D.’s claim is more properly characterized as a 'material failure to implement the IEP.' Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007). A school district’s failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP. The agency is required to address such a claim with a due process hearing, and full judicial review is available." That seems reasonable. Sure, that's a harder claim. But if such relief is available, I'm a fair piece more inclined to allow at least certain generalized changes past the stay put provisions than if no alternative avenue of attack was available.

The paragraph before this one, however, contains what I think is the weakest part of the opinion. That's where Judge Farris says: "Finally, plaintiffs argue that because their current IEPs are
their current educational placement and assume a five day school week, the reduction of the school week constitutes a change in the general educational program of the student. While they certainly assume some five day weeks, the IEPs also assume that there are some four day weeks when there are federal and state holidays. Those four day weeks are not mentioned explicitly in the IEPs. The four day weeks created by the furloughs are no different and do not constitute changes in N.D.’s educational program."

To me, that seems an incredibly specious response. After all, I'm sure the IEPs also assume and do not explicitly mention spring break and Christmas vacations either. So under the Ninth Circuit's theory, the plaintiffs' educational plan also wouldn't be changed if Hawai'i closed down the entire school system by declaring every week to be spring break -- or Christmas vacation to last eight months -- either. That just seems silly, and obviously wrong. The mere fact that X exists to a degree now doesn't mean that expanding X categorically isn't a change in a plan. It requires a qualitative judgment, perhaps. But that's different than what the opinion says, and in making short shrift of plaintiff's argument here, the opinion fails to offer a coherent response. At least in my view.

So an interesting case to start off the week.

Friday, April 02, 2010

Purifoy v. Howell (Cal. Ct. App. - March 26, 2010)

Want to practice pet law, but wondering how one goes about it? Here you go.

It's a neat little case, and one in the public interest. Basically about how long shelters have to keep animals before they whack 'em.

It's a straightforward statutory interpretation case, so not doctrinally all that interesting. Plus, the right result, I think, is a matter of common sense -- and one that Justice Jenkins (and the rest of the panel) get exactly right. "Business days" don't include Saturdays, even if a shelter is open. At least in this context. And the owners of pets get three days exclusivity to redeem the animal, and then additional days thereafter of nonexclusive redemption rights.

So good job by the Court of Appeal. As opposed to the trial courts here, which shuttled the matter to multiple judges with multiple (contradictory) rulings, ultimately resulting a (just) reversal.

Thursday, April 01, 2010

Freedman v. Brutzkus (Cal. Ct. App. - March 11, 2010)

I love it when opinions are (1) concise, (2) well-reasoned, (3) of interest to the legal community, and (4) tells you everything a casual reader needs to know in the first several paragraphs.

Since that means I can convey the important information with a simple cut-and-paste.

As I can with this opinion. Here's what it says:

"The signature block on a contract bears an attorney signature under the legend 'approved as to form and content.' Does that signature amount to an actionable representation to an opposing party's attorney? We conclude that it does not. . . . We hold that this recital indicates that an attorney has advised or is advising his or her own client of the attorney's approval of the document's form and content, and does not, by itself, operate as a representation to an opposing party's attorney that can provide a basis for tort liability."

See how easy that is?