Monday, May 31, 2010

Haight Ashbury Free Clinics v. Happening House Ventures (Cal. Ct. App. - May 26, 2010)

It's Memorial Day. A holiday for everyone in the judiciary. But not necessarily for those in private practice.

So let's look back in a different realm. One that's closer to what most of us do.

As you can tell even from the caption on the complaint, it ain't the 60s anymore. Even in the Haight.

Nowadays, the "Summer of Love" is more likely to be the "Fall, Winter, Spring and Summer of Litigation."

The times, they are a changin'.

Friday, May 28, 2010

Scalzo v. American Express (Cal. Ct. App. - May 28, 2010)

This seems an easy one to me. Notwithstanding a contrary ruling by the trial court below, which granted the defendant's anti-SLAPP motion and awarded attorney's fees to the moving party.

You can't call American Express to get credit card information on someone else's account. Even if you're in litigation with them. That's not covered by the "litigation privilege".

If you want that stuff, we have a legal way for you to get it. It's called a "subpoena." Not a "telephone."

Thursday, May 27, 2010

Carver v. Holder (9th Cir. - May 27, 2010)

You don't see AUSA's, of all people, typically sue for age discrimination. Much less prevail.

Mind you, John Carver doesn't like the way the DOJ has calculated his back pay, and on that issue, loses in the Ninth Circuit. But he still gets an order that requires that the DOJ hire him as well as over a quarter million bucks. Plus he gets to keep his buyout money from when he originally left DOJ.

So not bad.

Wednesday, May 26, 2010

Ladd v. Warner Bros. Entertainment (Cal. Ct. App. - May 25, 2010)

Two lessons.

First, if you're a filmmaker, studios sc**w you. Admittedly, I know nothing about the "industry," but the result of this case strikes me as entirely right. Here, Alan Ladd develops (and has "points") in Blade Runner, Body Heat, Night Shift, Tequila Sunrise, Outland, Chariots of Fire, and Police Academy 1-6. In short, some good movies, some crappy movies, and some downright bad movies, but lots of movies people have heard of. Warner Brothers distributes these films and numerous others, and sells a huge block of films -- including Ladd's -- to cable companies for a set fee in the hundreds of millions of dollars.

Some of the movies in that block -- including Ladd's -- were popular. Others are total "filler" and/or complete unknowns, including many films owned entirely by Warner Brothers. Warner Brothers internally labels films As, Bs and Cs. Say you get $900 million for selling 900 films, some of which are well-known and hence valuable (As) and some of which are otherwise (Cs). How should the $900 million be allocated for purpose of paying people, like Ladd, with points? On a straight-line method, with each film worth $1 million? Or by actual value; say, with As worth three times as much as Cs?

Needless to say, Warner Brothers uses the straight-line method. Ladd sues. And wins at trial.

Maybe Warner Brothers really did use this method for "convenience". But something tells me that the true motivation may be otherwise. And I have a feeling that the jury may have felt the same way.

So that's one lesson. Don't produce movies.

Second, a lesson for us lawyers. Be careful when you go for broke.

After Warner Brothers loses, its lawyers file a motion for new trial and a JNOV. But then they deliberately "go for broke" by withdrawing the new trial motion. Leaving the trial judge with an option only of entering a judgment in its favor or upholding the verdict. No new trial.

Gutsy. But wrong. At the hearing, the trial judge recognizes that Warner Brothers makes some good arguments about the jury's verdict and the evidence at trial. But states that while these deficiencies might well justify a new trial, Warner Brothers withdrew that motion, and there's technically enough evidence to support the verdict, so denies the JNOV motion and upholds the verdict.


Chino Commercial Bank v. Peters (Cal. Ct. App. - May 25, 2010)

Tell me what you'd do in this hypothetical.

In June 2010, a new client (from Hong Kong) contacts you and wants you to do some work for them. They're being acquired. Or sued. Or thinking about litigating. Whatever. Something fairly big, and that will surely involve a lot of attorney's fees. They propose to give you a $500,000 retainer against your anticipated fees, which you can draw down upon monthly as you send your bills. Sounds good to you. You sign them up.

So on July 1, 2010, the client sends you a check for $500,000, and you deposit it in your trust account. Ca-ching! On July 8th, you confirm with your bank that the check has cleared. On July 10th, the client tells you that the merger may be in danger, or they may be rethinking their decision to sue, that the anticipated legal problem may be clearing up on its own, etc. Again, whatever. On July 12th, they tell you, yep, the problem's been solved without you. Thanks for your work, but we don't have need for your services any longer. You're of course free to bill us for whatever work you've performed over the past several weeks -- though please don't make this figure too big -- and deduct it from the retainer. But we need what's left of the $500,000 back.

Seems fair, right? Especially since they're willing to pay your accrued fees, for which you can show absolutely no actual written work product. So an easy ten or twenty grand for talking on the phone, sending some e-mails, and maybe doing some research.

Predictably, the client wants the remaining amount in the trust account back quickly, because they'll need it for other things, so they ask you to wire the funds immediately. After all, you've been fired, and it's their money.

You nonetheless diddle around for a while, getting your bill together, doing other work, etc. On July 19th, the client sends you another e-mail. It's been a week. Where's our money? We need it.

So you check with the bank on July 20th. Yep, the $500,000 is still in your trust account. The client wants the money now. Do you wire them the remaining $480,000?

Presumably your answer is "Yes". Indeed, you might legitimately fear being sued if you delayed even longer, since we're talking about a fair piece of change (and imputed interest) that you have no reason to hold onto any longer.

So do you wire the client the $480,000? Or hold onto it even longer after you've indisputably been fired?

That's the hypothetical I came up with after I read this case. Which is not an attorney trust fund case, but nonetheless got me thinking about how the facts therein might be effectively employed even against careful, non-greedy people. Including lawyers trying to do the totally right thing.

Sure, my scheme requires a little more work than sending mass unsolicited e-mails about an allegedly deceased relative and looking for your "help". But not that much more.

And I bet I'd get more than one attorney to send me the $480,000. Several more. Indeed, perhaps even some readers of the California Appellate Report.

Maybe I should look into accommodations in Nigeria.

Tuesday, May 25, 2010

Lunbery v. Hornbeak (9th Cir. - May 25, 2010)

Her husband was killed by a single blow to the head. She had no real alibi. She confessed to the murder.

Surely she's guilty, right? Especially after the jury so finds. Even more so after the California appellate courts deny her appeal. Obvious, right?

There's some part of me that thought, as I read the case, that she might be guilty. But other parts of the opinion made me think, nope, she's probably factually innocent. Plus it's darn hard for me to say she's guilty beyond a reasonable doubt. Though, of course, the jury so found.

Take a look and see what you think. Yep, she confessed. But this may well be someone who confessed to a murder she didn't commit.

People v. Ligons (Cal. Ct. App. - May 13, 2010)

I know you want to get out of your jail cell. It's no fun. Never is. I get it.

But it's not going to help for you to try to forcefully push your way out of your jail cell. The officers you're pushing aren't going to like it. The judge isn't going to like it. Neither is the jury. The result potentially being that you have four more years in which to complain about your surroundings.

You might want to have thought about that same principle, by the way, when you refused to leave your home after it was foreclosed upon. Which is what put you in jail to begin with.

Chant your mantra. Mellow. Visualize world peace. Anything other than what you did.

P.S. - It really takes "20-30 minutes" of constant fighting with an inmate in a jail cell before other officers at the jail respond, even after you repeatedly call for "immediate assistance" in a fight?! Wow.

Monday, May 24, 2010

In Re Amber M. (Cal. Ct. App. - May 24, 2010)

Here's a story you hear every day.

It's a dependency case. Mother and Father are in a long-term relationship (six years) and have two kids together -- a one-year old and a two-year old -- but never marry. Father's in the Navy, and has been there for 13 years. He's deployed to Iraq in 2009.

Before he's deployed, there's domestic violence. One parent says the relationship's over, and the blows commence. Then, a month later, in an argument over moving expenses, one parent pours coffee over the head of the other. In front of the two-year old, no less. At which point the parent gets arrested for spousal abuse, and the victim gets a restraining order, etc.

The victim, of course, is Father.

Anthoine v. North Central Counties Consortium (9th Cir. - May 24, 2010)

In this retaliation case, the Ninth Circuit says: "During the seventeen years Anthoine worked at NCCC, he was hardly a model employee." There's an understatement.

For a general tenor of Anthoine's work attitude, I'll merely relay one fact: When his supervisor gave him a verbal warning in 2005, Anthoine submitted a 207-page (!) document in response. No wonder the supervisor responded (in an e-mail to her supervisor): "Here's another whirl on Mr. Toad's wild ride." And no wonder Anthoine was (eventually) terminated.

But the Ninth Circuit nonetheless reverses the grant of summary judgment. Let's just hope that the defendants prevail at trial. Otherwise I'm not going to have a great amount of faith in the jury.

Friday, May 21, 2010

People v. Roberts (Cal. Ct. App. - May 21, 2010)

Google better watch out. There are some things you can only learn in the pages of the California Appellate Reporter.

Because I read a lot of cases, I'm fairly hip on modern lingo. (I use the terms "hip" and "lingo" to prove that I'm in fact totally not hip on modern lingo.) So I know, for example, what it means when someone asks if you want to "lay him down". Or at least when a member of a gang says that. Not that you couldn't figure that one out from context, of course. And "thing-thing" and "hizzy". Those are guns. People use those words just in case their cell phones are intercepted or they're subject to a tap. Not tough to figure out. It's like a story my father used to tell about a criminal defendant caught on a wiretap ordering "two and a half bunnies." Those are kilos. And not of bunnies.

But until I read this case, I had no idea what a "credible head" was. And the dudes are using it in their communications repeatedly. Like in the following wiretap:

"[A] You got, you got any plans, any ideas about, you know, some Sams? [B] What's crackin' with them? [A] Some credible heads, you know? You know what I mean? [B] Yeah. [A] I'm just fuckin' with credible heads, you know what I mean? [B] Yeah."

No, I do not "know what you mean". What the heck are you talking about?! "Credible heads"?

"You know what I mean? But credible heads, man. That's what I'm talkin' about credible heads. Everybody else, I'm not, I'm not doin' it. It's all good if it goes down, but I want heads. You know [what] I mean?"

Okay, I sort of know what you mean now. At least the "heads" part? But "credible"? What?!

So I google the term. Useless. Comes up with nothing at all helpful. Urban Dictionary? A blank.

Only in the published opinion itself do I learn what this term means. "'Credible head' is a reference to someone who has significant status within the set whose demise would impact and demoralize the set if taken out."

Makes sense. I get it.

P.S. - While we're on the subject of Google, I think that today may be the least productive Friday of the entire year. Not because it's a national holiday or anything, which (to my knowledge) it's not. But rather because Google's celebrating the 30th anniversary of Pac-Man by not only doing it's usual logo thing, but also making the Pac-Man-shaped logo work. For example, just because I was inquisitive, I hit the "Insert Coin" button. Which started the game. And although I have played Pac-Man maybe four times in my life (as a child), sure enough, I played it. Ten minutes of my life I'll never get back. Multiply that by 50 million other workers in the U.S. today and you'll know why that guy never got back to your voicemail today.

Arthur v. DMV (Cal. Ct. App. - May 21, 2010)

The Arizona anti-immigration law has gotten a lot of media play. One of the themes of the opponents of the law is that it's a bad idea to allow the government to stop people without suspicion to demand: "Papers, please." Something that reminds us of some other governments throughout history that we'd rather not emulate.

But as I read this case, I was reminded that we do precisely that already. With judicial approval, no less. At sobriety checkpoints.

One could, of course, maintain that both types of stops are perfectly fine. Or one could insist that neither are okay. Those are surely consistent positions.

It's get a little tougher for those who'd maintain that immigration stops aren't okay but sobriety checkpoints are. You could argue, I'm sure, that drunk driving causes greater social harm than illegal immigration, but it seems to me that a legislature could reasonably disagree. There is, of course, the separate problem of racial targeting in immigration stops that doesn't arise in drunk driving checkpoints, but that wouldn't apply to a law that required the police to check everyone for immigration violations, as I understand at least parts of the Arizona law dictate.

Or one could argue that drunk driving stops are less burdensome than sobriety checkpoints, but I'm not sure that's empirically true. The checkpoint at issue here, for example, was on Mission Bay Drive in San Diego. Coincidentally enough, my family and I went through one of those one night at the exact same spot. It took us an hour and a half to get through the checkpoint. With multiple exhausted kids sitting in the minivan begging to get home. Pretty big burden.

None of this, of course, says that either checkpoint or immigration stops should be permissible or impermissible. Both topics entail an extensive debate. I was just reminded as I read this case of the reality that random, suspicionless stops are routinely approved in some settings. So thought I'd share.

Thursday, May 20, 2010

Lockton v. O'Rourke (Cal. Ct. App. - May 20, 2010)

You can learn four lessons from this opinion:

(1) Be careful what you say in a verified complaint. It can come back to bite you. Even if you figure out later that you should have said something else and amend the complaint.

(2) If you're an attorney or law firm, make sure your fee agreement has a clause that says that the prevailing party gets its attorney's fees, including the value of any time spent by the law firm and its lawyers defending itself. That'll get you fees notwithstanding the typical rule that lawyers can't get fees if they represent themselves.

(3) When you're sued for malpractice, and win in an unpublished decision, get it published. And:

(4) Don't mess with the Mighty Quinn.

Rodriguez v. Maricopa County Comm. College (9th Cir. - May 20, 2010)

If you're, say, the Chief Judge of the Ninth Circuit, and are very dubious about speech restrictions in the workplace in the name of preventing sexual or racial harassment, you couldn't make up a better case in which to articulate your vision than this one. And if you wanted to really dream the dream, you'd not only have Judge Ikuta on the panel, but you'd have a Supreme Court justice on your panel as well.

Wait. It's not a dream. It's reality.

How could it get any better? Well, I guess in a perfect world the case could totally set up a citation to one of your former law clerks. Saying something like: "We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek. See Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1849-55 (1992)."

But come on. That'd be too perfect. Could never happen.

POSTSCRIPT - Here'd be absolute Nirvana: If the cited law clerk also clerked for the Justice in question, as did the third member of the panel, who also clerked for the Chief Judge on the panel. But clearly we're talking about something in the realm of fantasy. (I'll not take credit for this realization. But I love it.)

Grove v. Wells Fargo (9th Cir. - May 20, 2010)

Two things.

First, how could Judge Percy Anderson (in the C.D. Cal.) get this one wrong? Prevailing parties can recover costs. They can also recover (in an appropriate case) attorney's fees. And that latter item includes otherwise non-recoverable costs; e.g., copying, travel, etc.

That's long been the law. And is a pretty easy rule. This isn't Medicare: there's no "donut hole" in cost awards. Rightly so.

Second, as the above probably reflects, I don't agree with Judge Rymer, who's skeptical of circuit precedent and who's looking for ways to create a donut hole; e.g., by arguing that "every statute is different" and that some may well reflect Congressional intent to award fees and yet deny costs.

I do agree with her, however, that non-recoverable costs are recoverable as fees "only when it is the prevailing practice in a given community for lawyers to bill those costs separately from their hourly rates." But I'd add to that principle a very practical, real-world presumption: these costs are virtually always billed separately. So, unlike Judge Rymer, I wouldn't place the burden on the moving party to satisfy this hypertechnical requirement; rather, I'd place the burden on the opposing party to present evidence that the standard practice in an area is a flat- or all-inclusive fee. The moving party would still have the burden of proof, but let's get real -- and have our decision reflect reality -- and not look for procedural ways to unjustly bounce meritorious cost and fee applications. Costs are routinely billed separately from fees, and our doctrinal burdens should reflect that fact.

Wednesday, May 19, 2010

Edwards v. Wells Fargo (9th Cir. - May 19, 2010)

Some authors of appellate opinions like to try make things sound easy -- and crystal clear -- even though they're anything but.

That's not my preference. When things are tough, and when reasonable minds can differ, I like it when an opinion addresses both sides and seriously confronts (and admits) the complexity of the issues. Sometimes an issue is close, and when it is, I see no harm in saying so.

So I smiled when, in this morning's opinion, Judge Kleinfeld takes that approach a step further. With a neat little line at the end of the opinion that says: "Without much confidence, we conclude . . . ."

The exact opposite of pretending that everything's totally easy.

Tuesday, May 18, 2010

People v. Vang (Cal. Ct. App. - May 17, 2010)

Rarely do I come across a new drug. Sure, every day I read cases about cocaine, marijuana, methamphetamine, heroin, esctasy, etc. Then there are the occasional cases about less commonly used drugs: LSD, GHB, psilocybin, oxycodone and fentanyl, etc. Then there's the rare case about the truly unusual drugs: ibogaine, peyote, STP and the like.

Read about 'em. Know 'em. That's a side benefit of reading published appellate decisions.

But until I read this case, I had never before heard mention -- much less seen anyone busted -- for possession of thebaine.

Which apparently is sort of like morphine and codeine, but a stimulant rather than a depressant.

Learn something new every day.

People v. Otubuah (Cal. Ct. App. - May 6, 2010)

The Court of Appeal publishes this originally-unpublished opinion. Which is fine.

But let's be careful when we do so. Page three, second paragraph: "At sentencing, count 1 was set as the principle count."

I think you mean something slightly different.

Monday, May 17, 2010

Laclette v. Galindo (Cal. Ct. App. - May 17, 2010)

Here's a good reason why, after settling a case on behalf of a client, you should make sure to send your client a letter that expressly says that the representation is over and that you'll do no further work on their behalf.

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - May 6, 2010)

I didn't catch it when the first opinion came out. It seemed possible, after all.

But I like the amendment to the opinion. Which states, in its entirety:

"On page 5, line five, delete the words 'hundreds of,' and replace them with the word 'multiple.' As modified, the sentence beginning at the end of line four reads: 'The First American team defended multiple depositions and reviewed hundreds of thousands of pages of documents.'"

Yes, "hundreds" of depositions would indeed be a lot. Even in state court.

People v. Contreras (Cal. Ct. App. - May 10, 2010)

When they're trying to keep you locked up as a "mentally disordered offender," here are some things you definitely do not want the staff psychologist to say about you:

"Mohapatra testified Contreras's schizophrenia manifested in his refusal to eat because he believed he was not going to be able to swallow, his thoughts that the hospital staff was going to break his penis, and his thoughts that his arms and leg were going to fall off because of his tattoos. In addition, Contreras talked about being lobotomized with an ice pick and hearing echoes through the hole in his head. He complained about hearing voices that commanded him to hurt himself or others and of seeing spirits or ghosts. During several instances at the hospital, Contreras was seen talking to unseen others and laughing inappropriately.

Some of Contreras's inappropriate behaviors that contributed to Mohapatra's diagnosis were laughter when someone talked about a family member being killed, pronouncing 'guns can solve problems that words cannot,' and threatening his roommate. He threatened a fellow patient saying he had friends on the outside that could 'get' the fellow patient. He also joined in an assault on a fellow patient who was being beaten up by several other patients. When confronted, he said he did it for fun and for the exercise it provided."

Yeah. They're not going to let you out. Surprise, surprise.

Friday, May 14, 2010

FTC v. Neovi (9th Cir. - May 14, 2010)

Scams are a lot easier to pull when ostensibly legitimate companies are totally willing to help out.

Fortunately, after six years of continuous operations, and over 150,000 bad checks that totaled over four hundred million dollars, the FTC finally stepped in.

Whew. Caught it early.

Thursday, May 13, 2010

Valladolid v. Pacific Operations Offshore (9th Cir. - May 13, 2010)


I didn't have a very good sense of what that word means. But it definitely had a slightly negative connotation to me. If I were to use it in a sentence, it'd have been "That damn roustabout!"

A floater. A transient. A rabble-rouser (if I had to use r-words). Something like that.

Maybe I got this sense from a vague cultural memory of the Elvis Presley film, where he plays a leather-jacketed biker who's fired from a singing gig after he gets into a fight with some college toughs. Or maybe it's just how I've heard the word used. Pejoratively.

But, as I learned from this opinion earlier today, I was off. At least a bit.

The term is often sometimes used to describe traveling circus workers. People who are hardly held in high esteem. So maybe that's where I got my vague understanding.

But the term is also a legitimate occupational classification for certain workers on oil rigs. Which is why Judge Selna (sitting by designation) uses it in this opinion. Since that's exactly what Juan Valladolid was. At least until getting crushed to death by a forklift.

Now, in my defense, my understanding wasn't completely off. The term is generally used to describe unskilled labor, whether in a circus or on an oil rig. Juan's duties as a roustabout, for example, "primarily consisted of cleaning and maintenance duties: picking up litter, emptying trash cans, washing decks, painting, fixing equipment, and helping load and unload the platform crane." So, again, not work held in high esteem.

Moreover, the Wall Street Journal earlier this year listed being a roustabout as . . . drum roll please . . . the absolute worst job you can possibly have. Think shoveling elephant poop. Or, as Juan discovered, getting crushed to death. Yikes.

What you're hoping as a roustabout -- at least on an oil rig -- is that you'll move up the corporate ladder. What's next? Roughneck. Them oil workers got all the cool names.

So let's hear it for the roustabouts of this world.

Emery v. Clark (9th Cir. - May 13, 2010)

I think the California Supreme Court may well say "No." Indeed, perhaps should.

The Ninth Circuit's certification request here makes facial sense. California law on the issue is indeed unclear. Reasonable minds might differ. Comity, and modesty, thus counsel in favor of certifying the questions.

But there's a minor twist. The California Supreme Court has already granted review of a case (Albillar) that raises very similar questions to those that the Ninth Circuit certifies. The panel argues that the questions are slightly different (and presented in a unique way) and certification thus appropriate notwithstanding the pending case. Maybe. But I could easily see the California Supreme Court declining the certification on the theory that its answers in Albillar are (or will be) "close enough". So that's one way the Ninth Circuit might hear a "No" from its brethren.

But there's also a major twist, and one that I think raises policy (not merely practical) issues. The certified question here arises in a habeas case. That's different. Way different. Federal courts typically certify state law issues when they're presented on direct appeal and in settings in which the state courts have had no opportunity to opine on the particular issue. But that's not at all true in habeas cases, in which the matter began in the state court and in which the state judiciary has already expressed its opinion; namely in affirming the conviction. Moreover, since we require habeas claims to be exhausted, you already have a state court decision on the merits. Further, since we require complete exhaustion, we also have -- as here -- a state supreme court that has already refused to answer the certified questions when it decided to deny review when the case was on direct appeal.

It seems to me that the comity and other concerns that motivate certification might be very, very different in such a case than in the usual case in which the state courts have never had jurisdiction over the case. Moreover, I could imagine at least colorable arguments that federal courts shouldn't certify such cases. After all, if the state's highest court has already denied review, having found the issues unworthy of its time, why should they be again bothered. It might even be viewed as anti-comity for a federal court to essentially say: "Hey, you thought this case wasn't worthy of your time, but we disagree, and want you to hear it."

Moreover, it seems to me that there may be a real downside to giving the state courts two shots at answering a question -- the first on direct appeal and the second on habeas. Practically, when a federal court certifies a question, that's a pretty good indication that the federal court may be thinking about granting relief (e.g., that reasonable minds on the panel might disagree). Were a federal court to certify such a case, it's basically telling the state court: "You decided X, and affirmed the conviction, but we're thinking about reversing you and granting habeas. Do you want to revisit X, or decide Y, to avoid a reversal?" That seems a bit unseemly to me. Especially when the state court might have an understandable interest in the finality of its result and thus have an incentive to answer the certified question in a way that will affirm the validity of its own prior judgment.

You don't have these issues arise in the usual certification cases, which is why I'm generally in favor of that process. But in habeas cases, I don't know. This seems different. In a way that may require a bit more examination. Both from the panel as well as the California Supremes.

So it's an interesting case. As well as an interesting topic: Certification in habeas cases. An issue that I readily concede I hadn't at all thought about before today's opinion.

Wednesday, May 12, 2010

Ron Burns Const. Co. v. Moore (Cal. Ct. App. - May 11, 2010)

How many times have you relied on the promise of an opposing counsel; in particular, for an extension of time?

Plaintiff did so here, agreeing with defendant (through counsel) to extend the time to file a motion for attorney's fees on appeal while the parties tried to resolve the matter informally. Sure, there's a rule that says that you have to file a stipulation to that effect, but you can trust the promise of your brothers and sisters in the Bar, right?


The parties can't agree, plaintiff files a motion for fees, and the defendant objects on timeliness grounds. Defendant's lawyer doesn't deny granting the extension, but argues that since it wasn't filed, it doesn't matter. The trial court agrees.

The Court of Appeal reverses. That's a legitimate basis for a CCP 473 motion. "Excusable neglect" includes relying on the promise of the other side's lawyer. At least here.

Good to know. Plus, on the merits, I agree.

Still, let me give you this advice. File the stipulation anyway. It's lots easier than going through CCP 473 motions. Lots.

Tuesday, May 11, 2010

People v. Douangpayna (Cal. Ct. App. - May 11, 2010)

A guy (Bansa Douangpayna) hits a guy over the head with a beer bottle in a bar fight. That's cool in the movies, but in the real world, we call that "assault with a deadly weapon." Defendant testifies at trial, but he's got two felony priors, so we can impeach him with those. Fair enough. So after he testifies, the prosecutor asks the defendant: "You were convicted in 2003 of a felony involving moral turpitude, right?" (and again in 2005), and the defendant responds: "Yes."

All this is good, and exactly as it should be. We don't allow the details of the particular priors because that would be unduly prejudicial. All we want to let the jury know is that the defendant has previously been convicted and that our judgment is that people with those priors may tend to perjure themselves as well -- or that a jury could at least reasonably take that into account. That's exactly what happens. So far so good.

But after they retire to deliberate, the juror sends a note that asks for a definition of "moral turpitude". Fair enough. The prosecutor used a term and the jury didn't know what it meant. That's fine too. So the judge looks up a case that defines the term, and tells the jury (over the defendant's objection): "The term 'moral turpitude' refers to a crime that reflects a readiness to do evil."

Hold up. I don't dispute that's what the case says. 'Cause it does.

But just because something's true doesn't mean you tell it to the jury. Some things are more prejudicial than helpful. And saying that the defendant is someone who has "a readiness to do evil" -- well, that's pretty darn prejudicial. Particularly in a case about a bar fight.

Were I the trial court, I'd have done the following. Rather than respond to the question, I'd have told the jury: "I appreciate your request. However, you need not speculate on the nature of the defendant's criminal convictions, or on what 'moral turpitude' entails. You need only consider that the defendant has previously been convicted of a felony, and, as I instructed you, that 'In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony [and] among the factors you may consider are: . . . . Has the witness been convicted of a felony?.' I remind you that, as I instructed you, 'If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness' testimony. The fact of a conviction does not necessarily destroy or impair a witness' credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.'" In my mind, that's all that need -- or should -- be said.

Similarly, if I were on the Court of Appeal, I wouldn't have done what Justice Robie did here, and conclude that there was no error. Rather, I'd have said precisely what I said above, and then affirmed the conviction on the ground of harmless error, since while calling the defendant "evil" is pretty bad, given the testimony at trial, I'm pretty sure he'd be convicted anyway. But what I don't want is an opinion that might encourage trial courts to answer similar questions the same way in the future; or, worse, give this definition during the instructions. And yet I fear that this opinion will accomplish precisely those effects.

So, as I said, I'd have done this a different way.

People v. Branch (Cal. Ct. App. - May 5, 2010)

You've been arrested for pimping a 15-year old. This is not going to be good for you.

But you know how you can make it worse? Call your mother from jail and say, on a recorded line: "“I don't give a f**k how much time they give me, when I get up out of here, something happening to that b***h. Watch. As soon as I get up out of here."

Oh yeah. That's going to play well.

Next time, make sure to read the huge signs in jail that say that your conversations can be monitored and recorded.

They're not joking.

Monday, May 10, 2010

People v. Lam (Cal. Ct. App. - May 10, 2010)

(1) Don't gamble more than you can easily afford to lose. E.g., $20,000.

(2) If you forget (1), do not steal the $20,000 from your wife to pay off your losses.

(3) If you forget (1) and (2), and drunk and despondent about your plight, the solution is not to take off your necktie and strangle your wife. This will not help. Finally:

(4) Don't bury bodies in your backyard.

Even fleeing overseas won't help. You'll get caught and do serious time.

Remember all this the next time you feel the joy of winning a pot on the river. Yes, it's fun. But not that much fun.

Broney v. Calif. Comm. on Teacher Credentialing (Cal. Ct. App. - May 6, 2010)

Does three DUI's justify revoking a teacher's license?

What if the teacher is, by all accounts, really, really good? And the DUIs are in 1987, 1997 and 2001? And are all on the weekend, with no evidence -- whatsoever -- that she ever, ever drinks on the job or is hungover or the like.

I'm conflicted. On the one hand, multiple DUIs are incredibly bad. It shows a real lack of judgment. Huge. Especially when at your last DUI you're blowing a .25.

On the other hand, you've been punished for that. And by all accounts, this hasn't affected your work in the slightest. Plus it seems like you've learned from all of this, and at least say all of the right things -- about how you'll never do this again, etc. (Of course, I hope you'd have said the same things after the first, or at least the second, time as well. But maybe this time you really, really mean it.)

So I'm torn. As are other people, apparently, as the lower tribunals go this way and that. Some saying it's a permissible basis for revoking a credential and some saying it's not.

In the end, the Court of Appeal holds that you can discipline the teacher. Even for totally off-campus DUIs.

There's a part of me that's okay with that holding for totally and admittedly illegitimate reasons; namely, that the actual discipline imposed here is not all that bad, and may be in everyone's best interest. They didn't actually revoke her credentials, but rather suspended them for 60 days, a suspension stayed subject to her successful completion of a three-year probationary period in which she seeks therapy, etc. Which I have no doubt that she can successfully do, and would probably be beneficial. Is it a hassle? Sure. But probably less of a hassle than a fourth DUI.

So the teacher here loses the appeal. Which, ironically, results in a published decision that reveals her name (Shirley Broney) and convictions even though heretofore only two people at the school -- a fellow teacher and the principal -- knew about 'em. But now they're out there for everyone.

Let's hope that Ms. Broney gets it together. She sounds like a very good teacher. Just one who needs to keep it a little more under control when she goes out with her friends on the weekend.

Friday, May 07, 2010

Cuellar v. Joyce (9th Cir. - May 7, 2010)

"After Richard Joyce abducted his and Leyda Cuellar’s child from Panama, by way of Australia, Cuellar tracked him down in America and petitioned for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. We ordered the child returned, and Cuellar now petitions for an award of attorneys’ fees and other costs incurred on appeal [as expressly provided by the Hague convention]. . . . As we noted in our opinion, this is not a difficult case; it 'falls squarely within the heartland of the Hague Convention.' The only reason the case took as long as it did, and consumed so many valuable resources, was Joyce’s dogged refusal to give up custody of the child as required by the Hague Convention. Joyce’s litigation tactics were largely intended to 'manipulate judicial process for purpose of delay.' That delay proved expensive, both for Joyce and for the law firm that represented Cuellar. Having caused that expense, Joyce may not turn it to his own advantage to avoid the mandatory fee-shifting provision of section 11607(b)(3). If Joyce didn’t want to bear the cost of delay, he shouldn’t have caused it. Better yet, he shouldn’t have abducted the child in the first place."

U.S. v. Mousavi (9th Cir. - May 5, 2010)

Don't do business with Iran. Or, if you do, definitely don't do it for a piddly $50,000.

It's not worth it. At all.

Gonzalez v. Holder (9th Cir. - Feb. 8, 2010)

I guess this opinion is worth publishing.

It's only two paragraphs. The first of which says that the petitioner, Nahum Gonzalez, had filed a petition asking that he not be deported, presumably because he didn't want to be sent away from his U.S. citizen wife and child. And then noting that, while the appeal was pending, Gonzalez died.

The second paragraph then says exactly what you'd expect it to say. That since the only person the deportation would affect is Gonzalez (since everyone else is already a citizen), who's currently dead, the appeal is moot.

Yep. That's right.

But thanks for the published confirmation.

Thursday, May 06, 2010

People v. Traugott (Cal. Ct. App. - May 6, 2010)

The defendant's not there. The defendant's lawyer isn't there. Indeed, one of the jurors isn't even there, having bailed for an interview. All you have are 11 jurors and stand-in lawyers.

Do I really need to tell you that you can't take a verdict in that setting? Really?!

This is what happens when a court strongarms someone into waiving their rights in order to "expedite" things. A reversal. With the associated costs of an appeal and a retrial.

You gotta be more careful. Even in Riverside.

People v. Delgado (Cal. Ct. App. - April 29, 2010)

I'm certain that Gloria Delgado was a pain in the hospital's butt. Her son was paralyzed and at St. John's hospital on ventilator. She didn't like the care her son was given. She wanted him moved to a different hospital.

She occasionally got overly excited. She sometimes yelled. She once or twice used very poorly chosen words. All that's 100% true.

Wednesday, May 05, 2010

People v. Norton (Cal. Ct. App. - May 5, 2010)

I think this is right.

M.D. calls the police and says her boyfriend is vandalizing her car. The police arrive five minutes later and knock on M.D.'s door, at which point (after five or six knocks) the boyfriend opens the door and says to the police "What the f**k do you want?" Hmmm.

The police call into the apartment for M.D., but she doesn't answer. The boyfriend, who's increasingly agitated, says she's asleep. But that seems totally fishy to me. She just called the cops five minutes ago. About her boyfriend vandalizing her car, and now the boyfriend is in her apartment. Angry. Somehow, I don't think she's asleep. And she's not answering the police.

So the police enter the apartment. Admittedly without consent or a warrant. And find M.D. in a rear bedroom, crouching behind the bed where her young children are sleeping, with bruises all over her legs and clearly frightened of her boyfriend.

Which, I'm sure, is exactly what the police expected. Though probably also feared that she might be dead, so were undoubtedly happy she wasn't.

The boyfriend -- Jeff Norton -- alleges that the warrantless search was impermissible. But I agree with Justice Jenkins that it's okay under the "emergency aid" exception. Mind you, I am of the view that courts often expand this exception way beyond its proper limits. But not here. Here, it's reasonable to assume that there's something fishy going on, and that M.D. might well be in trouble. So the police can legitimately check. Even without a warrant.

So I'm down with this one. Seems right to me.

Tuesday, May 04, 2010

Franklin Mint v. Manatt Phelps & Phillips (Cal. Ct. App. - May 3, 2010)

It's not every day that the California Court of Appeal reverses the dismissal of a malicious prosecution action against an attorney. It's even less common when the reversal involves a claim of malicious prosecution against a big California law firm; here, Manatt Phelps. It's less common still for the Court of Appeal to hold that no reasonable attorney could have found tenable two of the claims brought by that large law firm and its high profile litigator, Mark Lee.

Justice Mosk dissents. Still. Not something you want on your resume if you're Manatt and/or Lee.

U.S. v. Struckman (9th Cir. - May 4, 2010)

There's a fine line between reasonable suspicion and probable cause, and when you throw in concepts like curtilege and exigent circumstances, things get even more complicated.

So today the Ninth Circuit reverses a criminal conviction on Fourth Amendment grounds. But it's an opinion that the Supreme Court might well take up and reverse. Notwithstanding the fact that it's fact-specific and without dissent.

The central problem is that while Judge Berzon does a good job of explaining why a reversal is required, the police here did precisely what a lot of justices on the Court (and others) would want them to do. A neighbor dials 911 to report that someone just jumped over the fence of a house and that the owners are at work. So she (and the police) are thinking: Burglary. So they go to the house and, yep, there's exactly the dude the witness describes. So they confront the guy (with guns drawn) by entering the back yard, at which point they find a weapon. Busting the guy for being a felon in possession and getting a 17 year sentence.

Now, it turns out that the guy did indeed live there. And Judge Berzon's undoubtedly right that there were plenty of things the police could have done before busting the guy; e.g., asked him or the witness some questions, etc. But I doubt the Supreme Court's going to see it the same way, or be inclined to "require police officers to speculate in the heat of the moment about what hypothetical alternatives a federal court might prefer." (My language, but along the lines of what I think the Court might say.)

So I totally understand where the panel's coming from, since I too have occasionally jumped the fence of my house and tried to get inside. And I'd indeed have been bummed had one of my neighbors seen me and called the police and thus subject me to an arrest at gunpoint.

But I think the Court would say (1) that's pretty rare, (2) especially compared to the number of times the arrested person would turn out to be an actual burglar, and (3) worth it.

So we'll see where this one goes. And, regardless, don't jump over your own fence if you're high on methamphetamine and a felon in possession. Bad idea.

Plata v. Schwarzenegger (9th Cir. - April 30, 2010)

Ah, prison. The freedom. The quality colleagues. The tasty food. The wonderful medical care.

Let's just take a brief look at some of the findings mentioned by the Ninth Circuit, in an opinion that affirms putting the California Department of Corrections and Rehabilitation into receivership with respect to medical care for California inmates:

"This class action was brought by California prisoners to challenge deficiencies in prison medical care that allegedly violated the Eighth Amendment and the Americans with Disabilities Act. . . . In January 2002, after almost three years of informal negotiations . . . . the State agreed to implement specific remedial procedures to ensure the provision of constitutionally adequate medical care in prisons statewide. . . . Three years after entering into the consent decree, not a single prison had successfully implemented the remedial procedures, despite the fact that a 'significant number' of inmates had died as a direct result of substandard medical care -- a fact
the State openly acknowledges. . . . Numerous experts testified as to the 'incompetence and indifference' of prison physicians and medical staff and described an 'abysmal' medical delivery system where 'medical care too often sinks below gross negligence to outright cruelty.' Despite such damning revelations, the State let the reports and testimony of those experts go, in the words of the court, 'essentially uncontested.'"

Just a quick reference to the last clause of the preamble to the Swiss Constitution: "[T]he strength of a people is measured by the well-being of it's weakest members."

Something to think about.

U.S. v. Stever (9th Cir. - May 4, 2010)

It's rare to see an opinion that reverses a criminal conviction based upon the failure of the U.S. to provide discovery. But it happens.

I must say that, in this case, I thank that Stever is probably guilty, and will be found as much even after the discovery is produced. But, like the panel, I'm not sure about that. Yeah, it looks like the big marijuana grow on his property had something to do with him. But it's at least worth considering that it was the product of someone else. And since the district court's ruling really did prevent Stever from arguing that it was someone else, that seems like reversible error to me.

Admittedly, I think that there may be some "strategery" going on here, and have a weak sense (though may be totally making this up) that the defense requested the discovery at issue not only because it might use it at trial, but also because producing it would be a big hassle for the government and thus incline them to plea the case out. But that's the nature of the beast.

Sometimes strategery works. As it does here.

Monday, May 03, 2010

Khatib v. County of Orange (9th Cir. - May 5, 2010)

The federal Religious Land Use and Institutionalized Persons Act basically says that the state can't burden religious practices for people in an "institution" -- e.g., a prison. Souhair Khatib is a Muslim woman who was placed in a holding cell adjacent to the Orange County courthouse and ordered to remove her hijab (her headscarf). Does that violate the statute?

It first depends on whether the holding cell was an "institution" under the statute. The district court held it's not, and this morning, the Ninth Circuit affirms.

It's a meaningful case on its own right, but made even more so by Chief Judge Kozinski's dissent. Which is classic Kozinski. Virtually every paragraph includes a tongue-in-cheek reference. I'll share just some of them, with the caveat that they're better in context:

(1) The first paragraph: "Freud is reported to have said that sometimes a cigar is justa cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions—defined to include both correctional facilities (such as prisons and jails) and pretrial
detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me. Everything below is unnecessary and you could easily skip it."

(2) The self-reference: "[T]he [majority] opinion overlooks the fact that the statute here has
its own rules of construction, codified at 42 U.S.C. § 2000cc-3. Among those rules is the following: “This chapter [meaning RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. at § 2000cc-3(g) (emphasis added). Not every law that Congress passes has such a handy guide to interpretation; in fact, very few do. It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as “broad protection” and “the maximum extent permitted,” we need to pay close attention and do as Congress commands. The Supreme Court routinely relies on such express instructions. [Cited Quotation] And some of our nation’s hottest jurists have called for their more frequent use. See, e.g., Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, 819 (1998) (“[O]ne would hope that Congress would do the next best thing: instruct the courts how to resolve the close cases. This would not usurp the judicial function in any way; it would merely give judges instructions how to go about discovering the statute’s fine nuances.”)

(3) The cultural references: "Nor am I moved by the majority’s ex cathedra disquisition
about courthouse holding cells generally being “stark, barren, hard, and distinctly utilitarian.” Maj. at 6592. I suppose they’re quite different from your ordinary jail cell, which comes equipped with flat-screen TVs, mini-bars, iPod docking stations and Frette linens."

Let me add two other idiosyncratic points. First, if you've ever been in (or seen) the holding facility in O.C. at issue, I think you'd find Judge Kozinski's dissent even more persuasive. It's huge. Essentially like a mini-prison. This is no two-cell drunk tank. It's massive.

Second, the lineup is interesting. Judge Trott writes the majority opinion. Judge Kozinski dissents. And who joins Judge Trott? Judge Wardlaw.

Not what you might expect.