Hepting v. AT&T (9th Cir. - Dec. 29, 2011)

The merits are interesting, and involve complex constitutional arguments about whether it was permissible for Congress and the Attorney General to immunize communication companies for assisting the United States in its massive eavesdropping (without a warrant) of e-mail and telephone traffic after 9/11.  The Ninth Circuit, like the district court, says "Yes."

But wholly apart from the merits, check out the caption.  Hard to find one that's longer.  Nearly 20 pages.

Lots of effort went into this one.  Lots.

Henry v. Red Hill Evangelical Lutheran Church (Cal. Ct. App. - Dec. 9, 2011)

Sara Henry gets hired to teach preschool kids.  It's at an evangelical Lutheran preschool -- I didn't even know those existed, to be honest -- but she's up for the job.  She does well.  Within six years, she's the director of the program.

She's not an evangelical Lutheran.  She's not even Lutheran.  She's Catholic.  But no biggie.  She's doing her job.

But then her employer learns that she's living with her boyfriend and they're raising a child together.  That's a biggie.  They fire her.

And while she tries, there's nothing she can do about it.

Robinson v. City of Chowchilla (Cal. Ct. App. - Dec. 23 & 27, 2011)

Christmas brings joy -- and disappointment -- to virtually everyone.  But apparently it doesn't necessarily end there.

On the Friday before Christmas, Justice Dawson issued this opinion.  Which affirmed the trial court.  To the chagrin, and yet happiness, of both of the litigants.  Defendants had filed the appeal.  But plaintiff filed a cross-appeal.  Both of them lose their appeal.  Which means that both of them somewhat win.  So no one's Christmas was entirely ruined.

But then, today -- the first business day after Christmas -- Justice Dawson issues this opinion.  Which involves plaintiff's separate appeal of the trial court's denial of his request for attorney's fees.  Surely both opinions were ready before Christmas.  But this one gets out only after the holidays.  And this one does not simply affirm.  Robinson instead obtains a reversal.  Victory!  Sweet victory.  A late Christmas present, to be sure.  But a happy one.

At least for Robinson.  The City of Chowchilla (and their lawyers) taste defeat.  But at least tasted holiday turkey first.

But fear not.  Justice Dawson has a present for them as well.  Robinson wins his appeal.  But that doesn't necessarily means Robinson actually gets a present.  The Court of Appeal simply remands.  Maybe he will be entitled to attorney's fees.  That's for the trial court to decide, in accordance with the Court of Appeal's holding.  And that holding has some portions that are favorable to Robinson, but others that favor the City of Chowchilla.

So, in the end, Justice Dawson spreads out both the rewards as well as the pain.  A little right before the holidays.  A little right after.

Merry Christmas.

Park v. First American Title Co. (Cal. Ct. App. - Dec. 16, 2011)

It's the day after Christmas, so neither the Ninth Circuit nor the California courts cranked anything out today.  But that doesn't mean that working stiffs like us have nothing to learn today.

For example, we can take advantage of Justice Fybel's recent decision to publish this opinion.  Which provides further evidence that title insurance is worth only slightly more than the paper upon which it is printed.

Which probably makes it only slightly less valuable than that ill-fitting sweater you may have received over the holidays.

Kumar v. Yu (Cal. Ct. App. - Dec. 16, 2011)

I'd have thought it was obvious that if a tenant breaches a lease for, say, $1500 a month, and after a month of vacancy, the lessor leases the property to another party for $1600 a month, the lessor's damages are reduced by $100 for each month during the defendant's original lease term.

But apparently that wasn't so clear.  At least until this opinion.

Seems right to me.

Drake v. Obama (9th Cir. - Dec. 22, 2011)

Let me make clear at the outset:  The Complaint here is frivolous.  President Obama was born in the United States.  It's absurd -- frivolous -- to assert otherwise.

So too are many of the legal claims asserted in the litigation.  The FOIA claims are silly.  The quo warranto claim obviously belongs (if anywhere) in a court in D.C.  Plaintiffs' failure to articulate RICO claims -- even though they alleged they had them -- because there are "so many complex rules" about RICO pleadings that are difficult to follow is simply pathetic.

The Ninth Circuit rightly dismisses all of these obviously deficient legal claims.  It also holds that none of the plaintiffs have standing, and hence dismisses their assertion that President Obama was born outside the U.S. and is accordingly ineligible to be President.  The closest they came was when they gathered together some of the minor candidates who ran against President Obama -- e.g., Alan Keyes -- and included these parties as plaintiffs.  That might potentially have worked, notwithstanding the fact that these individuals actually had no chance whatsoever of winning the election even if a lame chicken was running in place of the allegedly ineligible Democratic nominee.  But plaintiffs filed their complaint only after the inauguration.  Which means they lack standing.  File before the inauguration, dudes.  Yeah, you run into potential ripeness problems, but those aren't nearly as severe as the standing problems that you obviously should have foreseen.

There's only one interesting part of the Ninth Circuit's opinion about which I had a question.  Everything else seems obviously right.  Judge Pregerson holds that active military personnel don't have standing, even though they say that they're potentially disciplined if they refuse to follow the orders of a Commander-in-Chief who's ineligible for office.  Judge Pregerson says that they have an alternative:  Obey the orders.  Which seems true, and so I agree that the standing claim here is speculative.  But imagine that one of the plaintiffs had violated an order.  Standing?  I can definitely see an argument.  Then you're not just talking about a generalized issue you have in common with everyone else.

Nonetheless, the Ninth Circuit's clearly right here.  No standing.  So one more frivolous lawsuit bites the dust.

Just in time for the next election.

Retired Employees of Orange County v. County of Orange (9th Cir. - Dec. 19, 2011)

It's a testament to modesty and neutrality when the Ninth Circuit certifies a state law question to the state supreme court.  It's nice when the California Supreme Court answers that question fairly promptly.  And it's wonderful when, in light of the state court's answer, the Ninth Circuit remands the case and tells the district court to act quickly.  Especially when, as here, the case involves retirees, who subsist upon the benefits at issue and some of whom die throughout the pendency of the litigation.

Well done.

Romero-Mendoza v. Holder (9th Cir. - Dec. 19, 2011)

If your biological parents had stayed unmarried, you'd be free to stay in the United States.  Unfortunately for you, at some point after you were born, they got married.  Which means we're deporting you.

So much for family values, eh?

People v. Covarrubias (Cal. Ct. App. - Dec. 20, 2011)

I agree with Justice Aaron.  The decision to admit the testimony of ICE Agent Andrew Flood was erroneous.  But it was also likely harmless.  Covarrubias was pretty clearly guilty of smuggling 193 pounds of marijuana across the border, as his story had a ton of holes and was not particularly credible.  So letting Agent Flood testify about the structure of drug organizations etc. wasn't really the reason Covarrubias was convicted.

Justice Aaron discusses at length why Agent Flood's testimony should have been excluded, but doesn't really focus on the portion of that testimony that I find most problematic.  Covarrubias claimed that he was a "blind mule" -- that he did not know the drugs were in his car -- and Agent Flood testified that blind mules are "fictional" and don't really exist.  Stating that he had never come across anyone in his lengthy experience in law enforcement who was actually a blind mule, even though many of them claimed to be.

That seems obviously improper to me.  Let's just change the facts slightly.  How about this testimony:  "I've been involved in law enforcement for many years.  I've seen hundreds of defendants charged with murder.  Lots of them say that they didn't do it.  But that's simply untrue.  I've never met someone who actually didn't do it.  It's fictional.  They're all guilty."

People v. Lowery (Cal. Ct. App. - Dec. 19, 2011)

Eddie Lowery was in prison for allegedly stealing $250,000 from 88-year old Joseph Gorman, whose mobile home he and his wife occasionally cleaned.  Lowery was acquitted, but during his time in jail, he made a tape-recorded statement in which he told his wife (over the jailhouse phone):  "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman‟s house, maybe this week, and I'm gonna blow his fucken‟ head away."

Lowery says that he wasn't serious; that he was just blowing off steam to his wife, and so this wasn't a true "threat" -- but was instead protected by the First Amendment.  The California Supreme Court takes up the case and narrows the statute so that it's consistent with the First Amendment, and then remands the case to the Court of Appeal to apply the new test.  The issue is whether, on the facts of this case, the statement was really a threat.

The Court of Appeal holds that the trial court erred, but that the error was harmless.  Its core argument is that the evidence was pretty strong that Lowery was making an actual threat because he made these statements over the jailhouse telephone even though he knew -- and was repeatedly advised during the call -- that the call was monitored.

Which struck me as strange.  I'd have thought this argument went the other way.  That you know the authorities are listening seems to me to be evidence that you're not serious when you say you're going to kill someone.  As few people make such actionable threats when they're, say, right in front of a cop.

UMG Recordings v. Shelter Capital Partners (9th Cir. - Dec. 20, 2011)

Veoh lives.

People v. Eubanks (Cal. Supreme Ct. - Dec. 19, 2011)

It's always difficult to figure out who should live and who should die.  I imagine that even God finds the issue not all that easy, so we might rightly expect far-more-imperfect humans to do even worse at this task.

Take this case, for example.  Eubanks murdered multiple people.  There's a big strike in favor of the death penalty, right?  Eubanks is a woman.  Her first name is Susan. Which way (if any) does that cut?

The four people she murdered were her children, ages 14, seven, six and four.  Again:  Which way do those facts cut?  For or against killing her?

After she kills her children, she shoots herself as well.  Doesn't die, though.  Hence the issue.  Should we finish the job?  Does that realization -- that she thinks she deserve to die for what she did, and can't live with it -- mean we should be more or less willing to kill her?

She's clearly troubled.  Obviously.  No one kills their four children who's not.  I need not go into the exhaustive details, but suffice it to say that her past is not good.  At all.  She's got no criminal history whatsoever.  So that cuts against killing her, right?  And there's no real chance she's going to kill in prison, agreed?  Those facts surely cut against the death penalty.  Do we nonetheless off her?

Maybe we can gain insight into her mental state by looking at the numerous notes she leaves for others and she kills her children.  One was to her husband, who was the father of some (but not all) of the children she killed.  It read:  "You betrayed me. You kept a diary, and you and Rene Dodson conspired against me. . . . I've lost everyone I've ever loved. Now it's time for you to do the same."  Adding that he could use any money from her worker's disability case to "bury the kids and find your rainbow. Anna May, I'm sure."  That does not make Eubanks very sympathetic.  But she writes to the father of Brandon, one of the children she killed:  "I know you‟ll hate me forever, but I can't let [Brandon] live without his brothers, so I did what I did," adding that she'd been "strong for 25 years, and I'm tired of all the fight and hurt."  She writes to her niece and sister that "I know what I'm doing is going to hurt you tremendously, but I can't and have no desire to go on," and asks to be buried in the same casket as her four-year old child, Matthew, who was one of the victims.  How do those notes cut?  For or against death?

We choose a sample of the population who feels like showing up for jury duty, death-qualify them, allow both sides numerous peremptory challenges, and let both sides argue.  Then those twelve people decides who lives and who dies.

The jury decides that Susan Eubanks should die.  And the California Supreme Court unanimously affirms.

Plaza Auto Center v. NLRB (9th Cir. - Dec. 19, 2011)

Read the first half-dozen pages of this opinion.  Which will make you appreciate your current job.  No matter how terrible parts of it might be, it'll sound a whole lot better than working for Plaza Auto Center selling used cars in Yuma, Arizona.

The owners there sound like quality folks who treat their employees right.  I'll definitely be going there to buy my next automobile.

(Their motto is apparently "Honesty and Integrity is a MUST in ALL our Deals".  I'm not sure that their treatment of their employees makes me all that confident in the veracity of that claim.)

People v. Valdez (Cal. Ct. App. - Dec. 16, 2011)

You can tell this case took a long time to work its way through the criminal justice system because one of the principal issues on appeal is whether it was permissible to introduce the alleged gang member defendant's MySpace page at his trial.

I'm not thinking that there are many "original O.G.'s" with MySpace pages anymore.

Even fewer after this opinion.  Which says that, yes, your MySpace page can indeed be used against you at trial.

Crockett & Myers Ltd v. Napier, Fitzgerald & Kirby LLP (9th Cir. - Dec. 16, 2011)

You're really going to make us to this ourselves?

One law firm refers a medical malpractice case to another law firm expecting a one-third (or one-half) referral fee, which is the usual practice and/or the practice pursuant to an alleged agreement.  The prosecuting firm then obtains a half-million dollar fee in the case, but doesn't share.  At which point the referring fee sues.

Judge Pro decides that there was no binding agreement (so no 50/50 split), but that the referring firm should receive a quantum meruit recovery, which he sets at $33,000.  Back in 2009, the Ninth Circuit reverses, holding -- in a published opinion -- that, no, $33,000 isn't the right figure, and remanding so the district court can recalculate the award.

The case then goes back to Judge Pro.  Who responds to the Ninth Circuit's holding by recalculating the award and holding that the reasonable value was . . . $33,000.  The same award he had made before.

Yet another appeal to the Ninth Circuit.  Yet another reversal.  This time by a different panel, because the first panel is already tired of the case and doesn't feel like dealing with it anymore.

And which point the Ninth Circuit has three options.  Remand the csae to Judge Pro yet again, hoping that the third time's a charm.  Remand the case to a different judge, but that's somewhat insulting and burdens yet another judge with the dispute.

Or simply resolve the case themselves.  Which is what they do.

Sure, it requires some factual findings, which appellate courts are loathe to do.  But we want this case finished, gosh darn it.  So we're telling you the number.  One hundred thousand dollars.  We're done.  Go away.

Six judges on the Ninth Circuit is the most that we're willing to throw at a $100,000 referral dispute between lawyers.

Sessoms v. Runnels (9th Cir. - Dec. 15, 2011)

Judge Tallman writes a majority opinion.  He admits that it's a "close case," but nonetheless affirms the denial of habeas relief.  Judge Betty Fletcher dissents, arguing that it's not that close of a case, saying that "rarely has there been a case in which our obligation . . . was more clear than in this one."  Judge Tallman then includes some pretty harsh footnotes responding to the dissent, as I discussed when the opinions were first issued.

And the Ninth Circuit takes the case en banc.  Which is not especially surprising.  Nor inconsistent with the proposition that being mean to Judge Betty Fletcher -- indisputably one of the nicest judges on the Ninth Circuit (if not the nicest) -- may retard rather than advance your case.

People v. Murillo (Cal. Ct. App. - Dec. 15, 2011)

It's shocking -- yet perhaps not surprising at all -- how many opinions begin like this one.  In which the statement of facts commences by stating:  "On the day of the assault, Murillo and Vargas consumed about 20 beers each."

Come to think of it, very few positive stories begin with "After drinking around 20 beers, . . . ."

Voit v. Superior Court (Cal. Ct. App. - Dec. 14, 2011)

Clerk's Offices range from the sublime to the incompetent (and/or actively hostile).  As a broad stereotype, the Clerk's Office down in San Diego tends towards the former, and the one in Los Angeles the latter.

There's presumably similarly broad variation throughout the state.  And unless you have familiarity with and exposure to the various offices, you never know what you might find once you're forced to litigate in a new county.

Those attorneys who have ever been forced to confront a less-than-sublime Clerk's Office will appreciate this opinion by Justice Premo.  Which, in three short pages, totally slams the Clerk's Office in Santa Clara County.

Here's a snippet:

"The actions of the court clerk’s office are quite troubling. 'It is difficult enough to practice law without having the clerk’s office as an adversary." [Citation]Whether Voit’s motion has legal merit is a determination to be made by a judge, not the clerk’s office. No statute, rule of court, or case law gives the court clerk’s office the authority to demand that a petitioner cite or quote precedent before his motion will be filed.

If a document is presented to the clerk’s office for filing in a form that complies with the rules of court, the clerk’s office has a ministerial duty to file it. [Citation] Even if the document contains defects, the clerk’s office should file it and notify the party that the defect should be corrected. [Citation] Moreover, there actually is precedent allowing courts to appoint counsel for indigent inmates facing civil suits.  [Citation]  By unilaterally refusing to file Voit’s motion, the clerk’s office prevented the court from applying this precedent, or any other relevant law, to Voit’s particular circumstances. The clerk’s office’s actions violated Voit’s rights under both the federal and state Constitutions to access the courts."

Word.

In Re Kinney (Cal. Ct. App. - Dec. 8, 2011)

Whenever I start thinking fondly of the Bar, along comes a case like this.

It's not that I have a problem -- at all -- with the Court of Appeal.  I don't.  It does exactly what it should.  Good job, Justice Boren.

But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly.

The Bar's great about catching people who bounce trust fund checks.  The remainder of the disciplinary process is far from as efficient.

Kennedy v. Eldridge (Cal. Ct. App. - Dec. 13, 2011)

Can a grandfather represent his son in a child custody case in which the son seeks custody of the infrant grandchild?  What about if the grandfather previously represented the father of the adverse party (the grandchild's mother)?  What about if the grandfather is also a witness, with exhaustive knowledge of the underlying events?

Not surprisingly, the answer is no.

I get where the grandfather is coming from.  He wants to protect his child (and his grandchild).  He knows -- or at least thinks he knows -- that he can do that better than anyone else, and can give his son better representation than anyone else.  And he's certainly right that he can do so at a lower cost than any nonconflicted attorney.  Something that's especially important in family law cases, where the alternative is often no legal representation whatsoever.

But still, the Court of Appeal is right that the trial court acted well within its discretion here.  There are simply too many problems that might result from the representation to say that the trial court erred.

City of San Diego v. Board of Trustees of CSU (Cal. Ct. App. - Dec. 13, 2011)

The City of San Diego suing San Diego State University?!  Really?

Yes indeed.

I couldn't fathom how these two entities could possibly get into a tiff.  Until I read the opinion.  Then it all made sense.

Okay, all of it didn't make sense.  But at least I could fathom it.

The issue's about money.  Not surprisingly.  Basically, SDSU wants to expand, and has plans to do so.  Which, actually, is good.  I was surprised -- favorably -- that in this era of budget cuts and the like, SDSU actually plans on getting larger.  In a big way, even.  It's planning on adding an additional ten thousand students a year within fifteen years.  Which means hiring almost a thousand new faculty members, plus support staff.  Lots of new people in sunny, beautiful San Diego.

Which is a good thing.  Except for one tiny problem.  Traffic.  As a San Diego resident, I can attest that traffic around SDSU is already pretty bad.  Add another ten thousand students and it's going to get even worse.  So to alleviate these problems, as part of the environmental impact report, SDSU identified a lot of traffic improvements that will need to be made.  Bigger streets, better off ramps, etc.  And the EIR also identified the portion of those costs that should fairly be allocated to SDSU and for which it should pay.  Which added up to around $6.5 million.

But SDSU says:  "That's fine.  We'll pay you that money if the Legislature gives it to us.  But we have no way of making them give it to us, so if they don't, that's your problem, not ours."  At which point the City responded:  "No, that's still your problem.  You have to either promise the money or not get your environmental impact report certified."  To which SDSU responds:  "Stick it.  We'll pay if we/the Legislature wants, and won't if we won't."  So the City of San Diego then files a writ.

There are tons of disputes down below.  Eventually, the trial court finds in favor of SDSU, and discharges the writ.  The Court of Appeal reverses.

There are lots of interesting things about Justice McDonald's 83-page opinion, but I'll focus only on two components.

First, Justice McDonald is pretty bold here.  The City's best argument is a statement from the California Supreme Court in Marina, a very similar case arising from the expansion of Cal State Monterey.  In Marina, the California Supreme Court said, essentially, exactly what SDSU asserts here -- that since the Legislature is in control of the money, Cal State only has to ask for the money, and that's sufficient; if they don't get the money, that's the City's problem.  And it was on the basis of that statement that the trial court below dismissed the writ.

But Justice McDonald doesn't agree.  He agrees that the statement was made, of course.  And also agrees that it supports the trial court's ruling.  But he holds that it's dicta.

Which it is.  But the thing is, it's dicta from the California Supreme Court.  When they say jump, the Court of Appeal generally limits its response to an inquiry regarding height.  The Court of Appeal almost invariably follows even dicta.  Pragmatically, if you don't follow what they say, you're often very likely to get reversed.  Moreover, doctrinally, if your duty is to predict what the California Supreme Court would do (which is what California law "is"), what they say is pretty good evidence of what they'd do.

But the Court of Appeal nonetheless doesn't do that here.  Arguing that the relevant sentence was not only dicta, but not really explained either.  And, further, that it's wrong.  Holding -- and here's where Justice McDonald's pretty bold -- that if the California Supreme Court actually thought about the issue at length, they'd realize that what they said was not right, so would change it.  Hence we'll do it for them and not follow that portion of the opinion.

Now, let me be clear:  Justice McDonald may well be right on the merits.  To say it how we'd say it in academia, money is fungible.  SDSU already has lots of it, and they're only going to get more once they add another ten thousand students.  So SDSU will have the money to pay for the improvements even if the Legislature refuses to give them another $6.5 million.  It's only a question of whether they're willing to spend it.  Given those facts, you could see why Justice McDonald might be inclined to hold that it's insufficient to merely say in response to an EIR that you're willing to ask for more money.  At a bare minimum, SDSU will be getting more money from tuition, rent, parking, and the like if the expansion goes forward.  Given those facts, it seems not unreasonable to consider requiring them to allocate some of this money towards paying for the improvements that make the resulting monetary largess by SDSU possible.

But just because Justce McDonald may be correct doesn't make it any less bold (or unusual) for him to refuse to follow dicta from a higher tribunal.  It's still something that you don't usually see.  Especially when, as here, the dicta the Court of Appeal refuses to follow is fairly recent.  Which means that lots of the members of the Court who signed onto that dicta still possess the power to grant review and affirm that, yep, they meant what they said, and do not believe themselves to be as uninformed (or inattentive) as a lower court considered them to be.

So we'll see where it goes from here.

One other point.  Not about the opinion, but rather about the underlying dispute.  At issue here is $6.5 million.  Not a huge amount in the scheme of things, particularly when it concerns governments.  And we're not fighting about whetherlevel of government has to pay -- the Legislature or the City.

Look at how long this lawsuit has gone on (the writ was filed in 2006).  Look at the caption and see how many lawyers are involved at all levels of the dispute, both for the City, for SDSU, and for various governmental amici.  Imagine how much money has been spent on this dispute on both outside and governmental lawyers.  Not to mention how much we've spent on the judicial side.  All to figure out whether the State or City are obligated to pay a relatively trivial sum.  A sum that's quickly getting burnt in attorney's fees in any event.

Assume that governments are populated by entirely reasonable people.  (Counterfactually, I know.)  Wouldn't, in such a world, this lawsuit be settled?  In a heartbeat.

But this one wasn't.  And isn't.  And may well even take up additional time and resources once the case either continues on remand or goes up to the California Supreme Court.  Or both.

Yes, I know, in tight budgetary times, governments feel increasing pressure, and so may fight to reduce their expenditures.  But having everyone spend money on lawyers in order to simply pass the bill to another level of government -- with many of the same taxpayers, no less -- is largely to cut your nose off to spite your face.

It's silly.  It shouldn't happen.  And yet it does.

People v. Guzman (Cal. Ct. App. - Dec. 12, 2011)

I prefer that my doctor not fraudulently bill Medi-Cal.  I even more strongly prefer that, when inserting an IUD, the doctor use an actual FDA-approved IUD, rather than a cheaper non-FDA approved IUD manufactured in Mexico.  Particularly given the whole Dalkon Shield debacle.

The sentence of three years probation and ninety days of community service for doing otherwise seems pretty light.

San Francisco Opera Ass'n v. Flickinger (Cal Ct. App. - Dec. 9, 2011)

Two individuals die and leave the entirety of their assets to the San Francisco Opera.  Around a half million total.  The deaths are in 1996, a lawyer gets appointed for the estates (and paid), and by late 1998/early 1999, everything's finished, and the Opera's supposed to get the money.

But the lawyer never writes a check.  The Opera never follows up.  The money just sits there.  Waiting.  Waiting.  Waiting.  Nothing happens.

Six years later, the Opera looks into old bequests, and follows up.  The attorney says:  "Oh, I'm sure it's been paid out and just not recorded."  A year passes, and the Opera eventually says:  "Are you sure?"

Yet another year passes.  No money.  So the Opera hires a lawyer.  Another year passes.  And finally, in 2009, the lawyer sends a check for most of the money.  At which point the Opera files suit.  Saying that a partial payment in 2009 of money it should have gotten a decade earlier is hardly sufficient.  Wanting the full amount plus interest.

The trial court's willing to make the lawyer give 'em the full amount.  Not surprisingly.  But the lawyer can't find some of the money, which had probably escheated to California because the accounts were inactive for so long.  But that's the lawyer's problem, not the Opera's.  But as for interest -- a pretty penny at this point -- the trial court's not persuaded by the Opera's argument.  Sure, the lawyer messed up.  He was inattentive.  He was lazy.  But so were you.  You didn't effectively follow up on money you knew was due either.  We call that laches.  No interest.

The Court of Appeal affirms.

It's a half million dollars for a civic organization.  With utterly no reason not to distribute it.  You'd think -- and hope -- that everyone would be more organized than what was displayed here.

In Re Quantification Settlement Agreement (Cal. Ct. App. - Dec. 7, 2011)

If you still don't think that water rights are the next looming frontier of California jurisprudence (as well as other southwestern states), read this opinion.

It should change your mind.

This is an important field -- just look at the list of counsel on the appeal -- and is only going to get bigger.

U.S. v. Tapia (9th Cir. - Dec. 8, 2011)

The Ninth Circuit decides a criminal appeal, and Judge Reinhardt is on the panel.  The Supreme Court grants certiorari and unanimously reverses.  The case goes back down to the Ninth, and Judge Reinhardt writes the opinion.

Classic story, right?  So you obviously know what transpired.  That crazy Ninth Circuit panel gave relief to a criminal defendant, the Supreme Court reversed, and now Judge Reinhardt's try to save his leftie opinion by circumventing the Supreme Court's reversal.  Right?

Wrong.

Here, the Ninth Circuit denied relief.  The Supreme Court did indeed unanimously reverse.  Holding that the Ninth Circuit was wrong -- that the district court might well have erred.  And, on remand, Judge Reinhardt (and the rest of the panel) holds that, yep, there was error.  Thanks, Supreme Court.

This will, of course, show up on the statistics as yet another opinion by the Ninth Circuit reversed by the Supreme Court, as further purported proof that the liberal Ninth Circuit is out of step with the rest of the country (as well as the Supreme Court).  The truth, of course, is slightly more complicated.

P.S. - This is the second Tapia case the Ninth Circuit decided this week.  I discussed the earlier one here.

People v. Kovacich (Cal. Ct. App. - Dec. 7, 2011)

This would make a good case for Cold Case Files, or any one of the innumerable other police-murder shows.  Except it's real.  So you'd have to add a tearful confession or something like that.

But it's about a police officer who murdered his wife nearly thirty years ago, in 1982.  Her skull was found in 1995.  He was charged and convicted of murder only within the last couple of years.  Sentenced to 25 years to life in prison.

You can kill your wife.  You can sometimes get away with it.  But even when you think you're in the clear, even when you think you've successfully dumped the body, even when you think they can't convict you on circumstantial evidence, sometimes you're wrong.

As here.

Red Lion Hotels v. MAK, LLC (9th Cir. - Dec. 7, 2011)

It's a pretty big ego stroke when a Ninth Circuit opinion and dissent substantially revolve around what you meant when you wrote your law review article.

That's what Donald Chisum -- whose ego probably doesn't need any additional stroking, since he's already a big stud -- gets out of this opinion.

He writes a law review article in the Washington Law Review back in 1973 (he was a professor at U-Dub Law School at the time) that discussed whether the Washington franchise statute covered franchisees who were located out of state.  The Washington Legislature then amends the statute in 1991 to respond in part to Chisum's article.  And the question in 2011 then becomes what Chisum meant and what the Legislature did.

People sometimes say law review articles don't matter.  This case proves that they clearly do.  As long as they're written in the early 70s.

Kwong v. Holder (9th Cir. - Dec. 7, 2011)

How long does it take to write a unanimous, eleven-page panel opinion denying a petition for review in an immigration case.

Seven years.

Okay, so that's a slight exaggeration.  The petition was indeed filed in early 2004.  But it didn't get argued until early 2008.  So that's four years right there.  So one might say that it takes only three to four years for the panel to write those ten pages.

Though, even then, four years to get a case to oral argument seems mighty long itself.  Wholly apart from the three-plus years it then takes to write an opinion.

What took so long?  Looking at the docket, I can't explain the first four years.  Sure, there are the usual requests for extension of time.  Because goodness knows you can't prepare a brief in less than six months, right?  But the case is fully briefed in 2005.  And gets set for oral argument in 2006.  At which point Kwong asks to delay the oral argument, a request that's granted, and it takes another two years before the new oral argument date transpires.  Not exactly a rush to justice.

Then, as the panel opinion itself explains, the panel twice vacates the submission pending two different en banc matters.  There's your additional nearly-four years.  That eventually results in an opinion issued on the seventieth anniversary of Pearl Harbor.

The result.  Unanimously affirmed.

So Kwong's going to be deported.  But fear not.  It may have taken seven years to reject his Ninth Circuit appeal.  But the Ninth Circuit gave him a stay during this entire period.  So he's had seven additional years in the United States.  For a total of fourteen years since his 1997 conviction for an aggravated felony.

Not exactly speedy, eh?

Roberts v. El Cajon Motors (Cal. Ct. App. - Nov. 8, 2011)

Today's been a busy day.  But fortunately there's something easy, right in my back yard.  Because here, plaintiff was right.  Judge Prager (down here in San Diego) was right.  Justice Benke is right.

It's an easy case.

U.S. v. Grant (9th Cir. - Dec. 5, 2011)

A guy walks into a sushi bar . . . .

But the guy walking in is Grant's parole officer.  And Grant's not allowed to drink alcohol, but has ordered a large glass of sake.

So this joke ends with Grant getting two years in federal prison.

Grant ultimately gets a reversal from the Ninth Circuit, which was required due to the Supreme Court's recent decision in Tapia.  Plus he got bail on appeal, so things are breaking (reasonably) well for Mr. Grant.  Assuming he continues to avoid that particular sushi bar and his penchant for rule-breaking.

Plus, in footnote 35, he gets to see a quote from James Q. Wilson.  Which is a first for the Ninth Circuit, and only the third time that any federal appellate court has ever done so.  The last two times being over 15 years ago.

Which may tell you a little bit about the state of contemporary criminal law jurisprudence.

Joffe v. City of Huntington Park (Cal. Ct. App. - Dec. 2, 2011)

Totally right.

That's not inverse condemnation.  I would have been severely bummed if the Court of Appeal had held otherwise.

Glad they decided to publish it.

People v. Rivera (Cal. Ct. App. - Nov. 30, 2011)

Defendant admits he killed the victim, but in his first-degree murder trial, denies premeditation, and instead claims that he was in a rage.  There's no dispute about the killing.  But the prosecutor nonetheless asks the defendant at trial to reenact the murder for the jury by using the prosecutor as the victim -- essentially, to strangle the prosecutor like defendant admits he stranged the victim, Ted Neff.

The trial court says, no, we're not going to have the defendant pretend to strangle the prosecutor in front of the jury.  That's just silly (and prejudicial).  Go get a mannequin.  So the prosecutor does that.  And returns with a female mannequin wearing a blue dress, pink ribbon, and hat.  (The victim was an adult male.)  The defense objects to the "theatrics" of a simulated killing in front of the jury, especially since the killing is not disputed and the only issue at trial is whether defendant was in a rage or did it in cold blood.  To which the trial court responds by telling the prosecutor to take the dress and hat off the mannequin.

So the defendant is then compelled to strangle a naked female mannequin at his first-degree murder trial while the jury watches, according to the direction of the prosecutor, who tells him how to turn the dummy, where to put his hands, how to strangle her, etc.

The Court of Appeal doesn't exactly approve of this decision.  Here's what Justice Dondero (and the rest of the panel) has to say about it:

The minimal probative value of the evidence was diminished further by the absence of similarity of both the setting and circumstances of the demonstration. A courtroom is hardly the appropriate venue to attempt to recreate and prove the manner of commission of a murder by strangulation. The setting was entirely dissimilar, lacking in the dimensions, configuration and the furniture that was present in the victim‟s home. Further, the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor. The acts of the victim were not reproduced. The emotion associated with the strangling, which was an integral part of the defense, was entirely missing from the demonstration. But for the seriousness of the charge, the courtroom events were suggestive of a slapstick parody.

The Court of Appeal ultimately holds the error harmless, which seems right.  But that's no excuse for throttling an innocent dummy at trial.

One more thing.  The victim met the defendant through a Craigslist advertisement for sex, and defendant said in his ads that he'd meet people at their hotel room and provide a "session" for them for $140 (which is how the police picked him up).  Oh, and a few hours after defendant killed the victim, he was back online soliciting a female customer to join him and his wife in a threesome.

In short:  Find sex in places other than Craigslist.

Flynn v. Holder (9th Cir. - Dec. 1, 2011)

When I first started reading this case, I thought:  "Oh my God.  You're kidding me.  The Ninth Circuit's really going to do this?!"

I mean, I get it.  Lots of libertarian conservatives have jumped on the "You should be able to sell your organs" bandwagon.  It's consistent with at least one version of economic liberty and bodily integrity.  Plus there's an undeniable need out there.  People are dying.  Every single day.  Paying money for organs would presumably save these lives and benefit everyone.  So why shouldn't we allow such sales?

But just because you may have a potentially persuasive policy argument is one thing.  It doesn't mean you have a valid constitutional claim.  And, in this lawsuit, the plaintiffs are bringing an equal protection challenge to a federal statute that bars compensation for bone marrow donations.  That's rational basis review.  Totally lax.  Just gotta have a possible reason, and surely at least one (and probably more) exists.  The district court dismissed the claim on a 12(b)(6) motion.

But then I start reading Judge Kleinfeld's opinion.  And even though he's just "reciting" the facts, he's clearly reacting favorably to the plaintiffs' claim.  Saying all this stuff about the procedure and the need that's exactly what you'd write if you were going to reverse the district court's dismissal.

Sure, he's got his strong libertarian bent, and I'm sure his clerks do as well.  But surely he can't be ready to hold that there's an equal protection violation, right?!  That'd be radical.  Way radical.  I'm not saying it'd be indisputably wrong.  But wow.  A freaky holding.

So after two or three pages, I can't wait any longer.  Stop taunting me.  I do what I almost never do.  I flip to the end of the opinion to see how it comes out.  REVERSED.

Holy hand grenades!  Wow.  This is going to be revolutionary.  We're going to hold that there's potentially a constitutional right to get paid for your organs.  Amazing.

Will the Supreme Court really let this stand?  It seems crazy.  But there are libertarians there too.  And the liberals might realize, and be sympathetic with, the desperate need.  This will be fascinating.

So then I go back and keep reading.  And one of the things I learn is that bone marrow donation is not, at least according to Judge Kleinfeld, what I think it is.  I think of it -- and probably most people think of it -- as an incredibly painful process where they stick a huge needle into your spine.  That's indeed one way of doing it, and the traditional way.

But apparently there's a new way as well.  That basically just involves giving blood.  They spin the blood through a thingy and collect what you need.

Which I did not know.  Moreover, as a practical matter, it makes a huge difference to me.  Because even before I got to the "legal" part of the opinion, I had the following thought:  "I'm going to do this."  I should probably be willing to get a spinal tap to potentially save someone's life, but I'm flawed, so I don't.  I also don't give regular blood nearly as much as I should, on the (again, flawed) theory that there's not actually a monster shortage and my blood's not essential.

But even I can't rationalize not giving blood when I may be the only (or nearly only) person who might be a match for someone.  Having to sit in a chair for a couple hours isn't too much to ask to save a life.  So Judge Kleinfeld's opinion (and the underlying lawsuit) at least did this:  It convinced me that this is a procedure that I should do.  Maybe others who read the opinion will have the same reaction.  I certainly hope so.

But that's a practical and personal conclusion, not a legal one.  Moreover, I'm willing to do this wholly absent any payment.  That doesn't mean that I have a constitutional right to be paid for it.  And that's plaintiffs' claim.

Judge Kleinfeld eventually gets to the merits.  Starting with where I would have thought, before reading the opinion, he'd be forced to go.  He initially concludes that, as to the "spinal tap" way of getting blood marrow, there's indeed a rational basis.  That's painful.  That's grabbing an "organ".  Maybe one Congress might not think that's a big deal, and would allow you to be paid for it.  But our Congress thought that mattered, and a rational argument can be made in that regard.  Ergo it satisfies the Equal Protection Clause.

But you can also see where Judge Kleinfeld's going with this.  He just told you that one way -- the traditional way -- of grabbing blood marrow is okay under the Equal Protection Clause.  That's foreshadowing.  As one is reading along, you can already see the argument.  If it's true (as we must assume on a 12b6 motion) that it is possible to grab blood marrow just by taking blood, how's that any different than -- well -- giving blood, for which you can be paid.  Or giving sperm, or an egg; for which, again, you can be "compensated."  That's an equal protection argument with teeth.  Or at least potential teeth; once again, the test here is very lax, and we are loathe to strike down (especially) Congressional statutes for lack of a rational basis.

But it nonetheless looks like Judge Kleinfeld's indeed going to so hold.  Because remember that we know how the case is coming out.  Reversed.

So I'm still enthralled with the decision, and while the process has been a little different than I first expected when I started reading the opinion, it's still a fascinating outcome.

But then Judge Kleinfeld throws a curve.

He does indeed reinstate the complaint.  On the merits; not on some procedural technicality or the like.  But at the end of the opinion, he decides not to reach the equal protection argument as applied to the blood-like manner of collection.  Because while he's exclusively talked about the constitutional issue thus far, in the end, he interprets the federal statute to not cover bone marrow procedures if they just involve the new blood-collecting process.  Ergo making resolution of the constitutional claim unnecessary, and also reaching the same result.  Donors under that process can be paid.  (And, to assist the plaintiffs, also awards 'em costs, which in this case likely means attorney's fees.  So everyone gets paid.)

This statutory interpretation is surely defensible.  Less controversial, I might add, than reaching this same result on constitutional grounds.  And with the same practical consequences.  You can indeed sell your bone marrow.  But only if you can do it through the less painful means.  Which is probably what you would prefer anyway.

That's a change in the law.  You used to be not able to do this.  Now you can.  So feel free.  Whether for money or not.

Judge Kleinfeld convinces me it's a good idea.

Carlos Lezama-Garcia v. Holder (9th Cir. - Nov. 5, 2011)

Petitioner is from Nicaragua.  He's been in the United States since 1993.  He has no criminal history.  So under the Nicaraguan Adjustment and Central American Relief Act, he's entitled to become a permanent resident.  We have a special deal for people who came from (then-) Sandinista-controlled Nicaragua.  So he files the appropriate petition.

There's only one problem.  Petitioner lives in Long Beach.  In 2004, he was driving a company truck from Long Beach to San Diego.  He had never been to San Diego before, and got confused.  He was on the I-5, which is the main interstate from L.A. to San Diego, and was trying to find his exit in San Ysidro, which is on the border with Mexico.  He's trying to find the exit, and all of the sudden, time runs out; he's still searching for his exit on the I-5, when all of the sudden a big sign appears:  "Mexico".  He tries to find a place to turn around before heading into Mexico, but can't find one, and a police officer is telling traffic to keep moving.  So, having no alternative, he enters Mexico, and immediately turns around at the next exit to get back to the United States.

The problem, of course, is that he's not a resident of the United States.  He tries to explain that he just came from the United States in his company's truck, and is only there on accident.  But that doesn't matter; if you don't have a visa and aren't a citizen, we don't let you in.  He tries again several days later -- this time using a fake identification -- and that doesn't work either.  They detain him, and then move to kick him back to Nicaragua.

But his problems get worse.  Sure, he was categorically entitled to permanent residency, and had filed the relevant petition.  But a federal regulation says that if you file a pending petition, and then "depart" from the United States without permission, you're deemed to have abandoned that petition.  So the IJ holds that he's no longer eligible for relief because he left the U.S, and the BIA affirms.  Shouldn't have missed that exit, buddy.

The Ninth Circuit, in a split decision, reverses.  Judge Seabright, sitting by designation from Hawaii, writes an opinion (joined by Judge Goodwin) that holds that you haven't really "departed" the United States when you do it by accident and immediately turn around.  Judge Rawlinson dissents, arguing, inter alia, that yes, that counts as a departure, and that we should defer to the BIA on this point in any event.

I'll let the competition opinions speak for themselves.  Obviously the equities favor the petitioner (at least in my view), and the question is whether the statute permits us to do the right thing.  Assuming that his story is accurate, it seems pretty harsh to deport a guy from the country in which he's lived for the past 18 years -- and in which he is entitled to live -- merely because he missed an exit one fateful day.

I'll just add one personal observation.  I live in San Diego.  There is, in fact, a big sign (at least nowadays) that says "Last Exit in the United States" on the 1-5 as you approach that last exit, as well as a U-Turn lane right before the big "Mexico" sign that gives you one last chance to turn around if you've made a mistake.  So you might well think that Lezama-Garcia's story is facially incredible.

But the exact same thing happened to my friend Judybeth Tropp, who lives in San Diego, not that long ago.  She's driving along the I-5, heading to Chula Vista to a birthday party with her kids, gets confused, is trying to find her exit, and wham, suddenly she sees the big "Mexico" sign and can't find a way to get over to the U-Turn lane.  So there she is, in a minivan with two little kids, in Mexico.  Without, obviously, a passport or anything at all about the kids.  Desperately hoping that they'll let her back in.

Fortunately, they do.  Though I'm not sure they would after the recent heightened security on the border.  My only point is that it's quite, quite possible for people to accidentally end up in Mexico if they're driving on the I-5 and looking for an exit near the border.  Even if they've graduated from Smith College.

Lang v. Roche (Cal. Ct. App. - Nov. 29, 2011)

What's another way the judicial process can become a mess?  When neighbors repeatedly sue each other, abuse the legal system to advance their hate, and represent themselves pro per.

As in this 16-year -- and counting -- saga.

Yavapai-Apache Nation v. IIpay Nation (Cal. Ct. App. - Nov. 29, 2011)

Rarely do two sovereign nations sue each other in state court.  And when they do, it's a mess.

People v. Engstrom (Cal. Ct. App. - Nov. 28, 2011)

Doing a little math doesn't constitute jury misconduct.

People v. Dement (Cal. Supreme Ct. - Nov. 28, 2011)

The opinion took a long time to load, comes from the California Supreme Court, and has the word "People" in the caption.  Which suggested to me that it's likely (1) a death penalty case, (2) that's unanimously affirmed.

Right on both counts.

Some tangential points.  First, the defendant gets convicted of a death penalty murder offense.  As well as oral copulation in a detention facility.  Seems like the latter is piling on.

Second, the case provides yet another good reason why you don't want to go to jail.  For anything.  Ever.  Greg Andrews gets sent to jail and, as he and the other new inmates arrive, the defendant says to a nearby inmate (referring to Andrews):  "I hope they don't move him in my cell.  If they do, I'm going to do him."  "Do" as in "kill".  And, as (bad) luck has it, Andrews does indeed get assigned to the defendant's cell.  Defendant's upset because it's a three-bunk cell already occupied by three people, and there's allegedly only two people in a cell on a lower tier.  So defendant decides to invoke a self-help remedy to prison overcrowding.  So kills Andrews that night.

Argument Number One Thousand as to why you should stay out of jail.

Finally, what I just said apparently goes double for the Fresno County jail.  What could possibly be going on there?!  The murder of Andrews doesn't happen quickly.  It takes a long time.  Defendant drinks some pruno in his jail cell.  He starts slapping defendant in their cell (once everyone's locked down for the evening).  He interrogates him.  He rips off his boxer shorts.  He forces him to kiss his genitals.  He starts hitting him again.  He slams him against the cell lockers.  Andrews starts screaming.  Defendant starts choking him with a towel.  The cellmates pull defendant off, and another uses a call button to alert the officers to contact the cell.  Remember:  All this is happening right out in the open, in a jail cell, no less.

The officer dutifully gets on the speaker and asks what's up, at which point defendant asks him what time it is, and the officer tells him.  Inquiry finished.  So defendant then again wraps the towel around Andrews and starts choking him a second time.  The cellies again try to stop him.  Another pause and discussion.  Then defendant starts jumping on Andrews.  Starts choking him for a third time.  Finally killing him.

What are the jailhouse guards doing all of this?  Nothing.  Or at least nothing relevant.  No inquiry.  No looking at the cells.  No hearing the screams -- screams which other inmates hear (and so testify at the defendant's trial).  An hour or so after the murder, it's breakfast time.  At which point the guards open up the cells and everyone leaves.  You'd think at this point they'd at least notice the dead body.  Nope.  That happens only after the cellies return to the cell from breakfast call and use the contact button to say:  "There's a dead body in the cell."  Then the guards show up.

Defendant, by the way, is hardly an angel.  He beat his wife.  He murdered his brother.  He committed a variety of other offenses.  Thank goodness he's virtually unsupervised.  How shocking that the jury sentences him to death.  Apparently being unpersuaded that the rigors of prison will prevent him from killing in a detention facility yet again.

In the spirit of the season, I will now add to my prior refrain from Thursday the following:  "And I also give thanks that during this past year I did not find myself in a local jail.  Lord, if you are willing, please make that continue to be the case during the upcoming year as well."

Happy Thanksgiving.

People v. Crivello (Cal. Ct. App. - Nov. 1, 2011)

Justice Robie ends this opinion with:

"The record before us indicates that this latest effort to commit defendant is the fourth time in as many years that the board has determined defendant is an MDO and the People have sought his commitment based on his 2003 robbery conviction. Twice before the court has rejected that commitment based on the res judicata and collateral estoppel effect of the 2006 determination that defendant’s crime was not an aggravating or causative factor in his underlying offense. In the face of these determinations and existing legal authority, it is inexplicable why the board and the People continue to seek defendant’s commitment using this particular statutory scheme and underlying offense as the basis. They must know such a commitment cannot stand.
 
But, just in case, let us make this perfectly clear. The predicate basis for defendant to be committed as an MDO based on his 2003 robbery conviction does not exist. Because the court found in 2006 that defendant’s mental disorder was not a causative or aggravating factor in that 2003 robbery, defendant cannot now, or ever, be committed as an MDO under sections 2962 or 2970 based on that conviction. Continued attempts to commit defendant on this basis violate the principles of res judicata and collateral estoppel, and represent an enormous waste of resources.
 
The judgment ordering defendant committed is reversed. The circumstances of this case compel us to remind the parties of the availability of California Rules of Court, rule 8.272(c)(1) whereby the parties can stipulate to the immediate issuance of a remittitur."
 
Not very difficult to figure out where the Court of Appeal stands on this one, eh?
 
To its credit, the Attorney General's Office did concede error.  Though that doesn't explain why the People did what they did before, or excuse the conduct below.  As the Court of Appeal makes clear.

Linear Technology Corp. v. Tokyo Electron, Ltd. (Cal. Ct. App. - Nov. 22, 2011)

Well, geeze.  I just don't know.

The Court of Appeal's holding definitely has some appeal.  I unquestionably agree with the first part.  Linear lost its warranty lawsuit at trial.  The evidence supported the jury's verdict.  Linear's claim that it was entitled to a j.n.o.v. lacks merit.  Definitely right. 

The harder part is the attorney fee question.  The trial court granted $8 million-plus in attorney's fees against Linear pursuant to Section 1717, the reciprocal fee statute.  And there's indeed some basis for that.  Linear definitely asked for attorney's fees if it won.  So arguably the other side's entitled to them as well.  That's the whole point of reciprocity.

Linear argues that it waived its request for fees.  But it didn't.  Its counsel was being a typical attorney, and engaged in a tactical strategy that I'm sure seemed to made sense at the time.  Linear stipulated to a certain thing (involving a battle-of-the-forms) prior to trial, but as part of that stipulation -- one that, as a practical matter, would probably mean it couldn't recover attorney fees -- the attorney piped up and said that this stipulation was without prejudice to seeking fees if they prevailed.  In short, the attorney entered into a stipulation that effectively said his side couldn't get fees, but nonetheless said that he was not giving up the right to seek fees.  No harm "preserving your rights," right?

Wrong.  That's all fine if you win.  But when you instead lose, the other side then hoists you on your own petards.  Saying that since you still claimed to be entitled to fees, so are they.  And, in this case, getting them.  To the tune of over eight million dollars.  And the Court of Appeal affirms.

Like I said, that makes a certain intuitive sense.  You said you were entitled to fees, so the reciprocity provision means the other side's entitled to it as well.

But here's the problem.  It's almost certain, in my view, that Linear was not entitled to fees.  They may have said they were entitled to them, but the stipulation meant they weren't.  That's its effect, and even if you say that X doesn't do Y, if it does, then Y's the rule.  So Linear wasn't entitled to fees.

Given that fact, it seems bizarre to say that the reciprocity provision of Section 1717 means that the other side is entitled to fees when Linear isn't.  Sure, when one side is entitled to fees, the other side should be entitled to them as well (as a matter of fairness), even if that side doesn't have an attorney fees provision in its contract.  But when that side both doesn't have an attorney fee provision in its favor and the other side's attorney fee provision doesn't apply, how can fairness require that one side but not the other be entitled to attorney's fees pursuant to Section 1717, the entire purpose of which is to make things equal?  That just seems not only bizarre, but the exact opposite of what the statute is designed to accomplish.

Justice Elia says -- in a response that makes some sense -- that Linear shouldn't be allowed to claim that its own request for fees was meritless in order to get out of paying the other side's fees.  I surely understand that.  It seems somewhat wrong to let you attack your own case once you lose.  So I see the equities there.

But it's not like this is judicial estoppel or anything; none of the relevant prerequisites would be met.  And the consequence of the Court of Appeal's holding is, again, to let fees be nonreciprocal; Linear would have to prove its entitlement to fees -- which it couldn't do -- if it had won, but the other side here doesn't have to prove its entitlement to fees.  Which matters, since there's actually no applicable attorney fee provision.

As a doctrinal matter, this case seems no different than a garden-variety slip-and-fall case in which the plaintiff said, as part of a boilerplate complaint (as they often do), "I demand $50,000 plus attorney's fees," despite the fact that fees unquestionably aren't recoverable.  I'm quite confident that the Court of Appeal would not hold that a defendant in such cases was entitled to fees if it prevails, notwithstanding Section 1717, because the plaintiff was not, in fact, entitled to fees, even though she had indisputably requested them.  Why should there be a different result here?  After all, the slip-and-fall plaintiff would be "disputing his own request" just as much as Linear is doing here.

So, as I said at the outset, I'm in a bit of a quandary.  I understand the equities on both sides.  But I come to the problem with a belief that (1) it's the moving party's burden to prove that they're entitled to fees, (2) the mere fact that the other side asked for fees themselves isn't sufficient to establish (1), and (3) the reciprocity provision of Section 1717 should care -- deeply -- about whether one of the parties was in fact entitled to fees.  All those things seem to suggest that the Court of Appeal's holding here is erroneous.

At the same time, take a different case.  Plaintiff files suit claiming that Defendant signed Contract, which contains an attorney fee provision.  Plaintiff requests damages and attorney's fees.  Defendant alleges that the signature is a forgery, and that Contract was never signed, and prevails at trial.  I think that Defendant in that case is entitled to attorney's fees under Section 1717 even though Plaintiff was in fact not entitled to fees because the Contract was never signed.  Plaintiff would have been entitled to them had she prevailed, so Defendant is also entitled to them.  So the "reality" of whether the contract in fact entitles one side or the other to fees isn't always dispositive.

But this case is different, because unlike in the example above, here, even if Linear had prevailed -- even if the jury had agreed with its version of events -- Linear would still not have been entitled to attorney's fees.  In short, given the stipulation, there were no factual findings that would have given rise to a legitimate claim for attorney's fees.  Which means that the reciprocity provision shouldn't be used to change that already reciprocal state of affairs into something unequal.  Sure, Linear could have filed a motion for fees and had it denied.  So could Linear's opponent.  But the holding here changes that, and means what while one side isn't entitled to fees when it prevails, the other side is.

I have tried to fashion an alternative rule to the Court of Appeal's along the lines of "you get reciprocal attorney's fees under Section 1717 when the other side has a colorable entitlement to attorney's fees on their side" in order to alleviate both the problem I see with its holding as well as the legitimate problems with allowing a party to attack the validity of its own request for fees once it loses.  But I'm not sure I can come up with an intellectually consistent version of such a doctrine.  Maybe brighter minds can do better.

The one thing I know is that the Court of Appeal's holding here -- while I totally get it -- nonetheless seems troubling.  I'm just not sure you can do this.  Or at least can do this and be right.

Which I care about.

The practical lesson nonetheless remains to be careful asking for attorney's fees when you're not sure you're going to obtain them.  Because that can be profoundly counterproductive, and may -- as here -- even create a one-way ratchet.  Heads you don't win, tails you lose.  Which isn't good for you, and darn sure isn't good for your client.  Especially when all you thought you were doing, as here, was "preserving" your client's rights.

And getting bit in the behind for eight million dollars as a result.

Bullis Charter School v. Los Altos School Dist. (Cal. Ct. App. - Nov. 21, 2011)

The respondents' petition for rehearing cites 39 cases that it didn't cite in its underlying brief.  That's indeed some indication, as the Court of Appeal notes in denying the petition, that the arguments made therein might be new.  Not conclusive, mind you.  Maybe they're just bearing down at this point on a key issue raised by the earlier brief.  But still, some evidence.

The Court of Appeal might, however, want to change the third sentence of the new footnote, which currently reads:  "To the extent the petition raises new arguments and cites new authorities, it is an improper."  Either to delete the word "an" or to finish up the sentence.

But the point's nonetheless pretty clear.  You can your chance.  We're not going to let you make new arguments later.

Hopkins & Carley v. Gens (Cal. Ct. App. - Nov. 21, 2011)

This is why you have to be very, very careful about the clients you elect to represent.  Because sometimes you're judged, among other things, by the company you keep.  And when you represent someone who the lower court describes as a sleazeball, often, your attempts to represent that client and advance his interests will transfer that appellation onto you as well.

Here, for example, the trial court described the client as (essentially) a monstrously manipulative liar, saying that his claims that he "sold" his home any hence didn't receive notice of the underlying arbitration -- when the "sale" was to his wife for nothing -- were representatively bogus.  The trial court said that it could not recall "ever seeing more evidence indicating an attempt to avoid service of process by an individual than what I have seen in reviewing this file," and the Court of Appeal expressly agreed with this statement.  In short, the client was not sympathetic.  At all.

Which led, understandably, to the client being sanctioned.  And when the trial court extended those sanctions to the attorneys, the Court of Appeal was happy to affirm.  Stating, among other things, that "nothing short of a book could describe all the ways in which Gens and his attorneys have sought to distract and mislead the courts in this matter."  Ouch.

The attorneys for Gens are J. Michael Matthews and Andrea Kendrick, both from Chapman, Popik & White.  Both of whom undoubtedly regret having taken him on as a client at this point.  Because no matter how much Gens paid them, it's probably not worth getting the huge rebuke they received today by the Court of Appeal.

So be careful the company you keep.

Reliable Tree Experts v. Baker (Cal. Ct. App. - Nov. 7, 2011)

Here's an appeal about $6700 in which it couldn't be more clear that the plaintiff is wrong and the appeal accordingly meritless.

Not frivolous, mind you.  But meritless.

Over $6700.

What an efficient allocation of social resources.

Salehi v. Surfside III Condominium Owner's Ass'n (Cal. Ct. App. - Nov. 14, 2011)

This is why you should be very, very careful about filing suit against your homeowner's (or condo-owner's) association.  Even if you're a smart attorney.  Even if, in fact, you might be right.

Because the HOA has an incentive to fight the lawsuit, and may rack up a quarter million dollars in legal fees that you ultimately might be forced to pay.

That's what Ventura attorney Susan Salehi discovered this week.  As a result of an opinion by Justice Yegan that's unlikely to add him to Salehi's list of Christmas card recipients.

For what it's worth, I think this one could have been shorter, and perhaps a little less harsh to Salehi.  Salehi dismissed all but two of her causes of action without prejudice on the eve of trial.  I agree with Justice Yegan that before deciding whether the Association is the prevailing party (and hence entitled to costs), it should see what happens to the remaining causes of action.  Accordingly, I think it's probably enough to say that a party who dismisses her causes of action without prejudice right before trial may well end up being the loser, and that it was hence an abuse of discretion to categorically deny the Association its fees.  At least at this point.

That way we'd get the right result and perhaps slam Ms. Salehi a little less.

Perry v. Brown (Cal. Supreme Ct. - Nov. 17, 2011)

The California Supreme Court answers the Ninth Circuit's certified question -- fairly rapidly, even -- and holds that initiative proponents do indeed have standing under state law to defend that initiative.

The opinion is unanimous.  It's also correct.  The whole point of an initiative is to get around the regular representative process.  This would be frustrated if the executive could effectively invalidate an initiative by refusing to defend it in court.

The (much) harder question is whether, notwithstanding state law, there's Article III standing in federal court.  Because just because states might permit a defense doesn't mean that the Constitution allows such a defense in federal court.  My personal view is that (1) Article III standing should exist, but (2) under United States Supreme Court precedent, it probably doesn't.  To put it differently, if I were writing on a blank slate, I'd hold that there's federal Article III standing, but it nonetheless seems to me that such a position can't  be reasonably squared with the Supreme Court's decision in Arizonans for Official Language v. Arizona or the dismissal for lack of jurisdiction in Continental Illinois.  I might well not have signed onto those adjudications, but having been outvoted, I'd be compelled -- either as a lower court (precedent) and perhaps under stare decisis even in the Supreme Court -- to follow it.  Hence no standing.

Which will make it interesting to see what the Ninth Circuit -- and, potentially thereafter, the Supreme Court -- will do.  I think the Ninth Circuit did the right thing to certify the state law issue, and if it adopts a neutral adjudication, I think it should dismiss the appeal on Article III grounds, if what you're doing is deciding the case based upon existing precedent.  What else happens is less clear.  I'm not sure whether the Ninth Circuit will critique Arizonans for Official Language even though they accomplish the same result; I know I would.  And reasonable minds may differ about what an Article III dismissal means as a practical matter for the underlying case.  Though I don't think that either of these things changes the proper outcome.

What the Supreme Court would then do is even less clear.  Because, on the conservative side, you'll have a group of justices hostile to gay marriage who nonetheless agree with strict standing limitations and Arizonans for Official Language.  So they'll be inclined to want to find standing in this case only and for that reason to distinguish the case, but I don't think that's a reasonable interpretation of what the Court said in that case (or in the earlier dismissal).  Did they get it wrong in those prior cases?  Perhaps.  But when you say, as the Court did in Arizonans, that this Court has "[n]ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated," well, that seems a pretty good answer to whether initiative proponents are Article III-qualified defenders of the measures they advocated.  Including here.  Again, I think that's not the right rule, but the Court signed onto it (without dissent), and even if it's dicta and if the prior adjudications on Article III grounds were done in a summary fashion, that nonetheless tells you where the Court has previously stood.

I'm nonetheless quite confident at least some justices would adopt precisely such a view.  Sadly.  And on the liberal side, there are the exact opposite preferences:  not liking strict Article III limits but being pro-gay-marriage.  So they're in a quandry as well:  They might well like to overrule Arizonans for Official Language, but would rather not choose this case in which to do it.

So it'll be interesting to see what transpires.  But so far, things are going as they should.

People v. Mendoza (Cal. Supreme Ct. - Nov. 10, 2011)

Shoot a cop in the face -- for no reason -- and you're going to be sentenced to death.  And the California Supreme Court will unanimously affirm.

Even more so if the key witness tells the jury that the police officer was "really nice," and not like other officers who are mean or sarcastic.

Being a police officer is a tough job.  Massive periods of inaction occasionally interrupted by seconds of extreme danger.

Pomona Police Officer Daniel Fraembs had no idea that he was about to be killed.  He thought he was just stopping a couple of kids who were on the railroad tracks for a curfew violation or something.  He decided to frisk someone who had a knife sheath on his belt, and when he turned his back to the other youths to conduct the frisk, one of them pulled a gun and shot him in the head.  Because he was a felon in possession, knew he was likely to be the next one frisked, and would then have spent 18 months or so in prison.

So Fraembs dies.  As will Mendoza.

People v. Ruffin (Cal. Ct. App. - Nov. 4, 2011)

Here's one about which you should have an opinion.

On the one hand, the Court of Appeal has a darn good point.  It's profoundly silly to do what the Legislature has apparently done.  Maurice Ruffin was a prisoner, and a guard saw a female visitor with her head in his lap in the visiting area.  That's a crime.  No oral sex for prisoners while you're in prison.  Even if consensual.  He pleads guilty and gets sentenced to 16 months in prison.

That part's not silly.  Or at least not profoundly so.  We can legitimately say that one of the deprivations that you receive when you're in prison is that oral pleasure is out of bounds.  And punish you accordingly.

What's somewhat absurd, however, is that as a result of the conviction, Ruffin -- who's never before been convicted of a sex-related offense (he's simply a robber) -- is now subject to mandatory lifetime registration as a sex offender.  A penalty that's not only darn severe, but simply bizarre.  The theory behind registration, of course, is that we want to know where you are so we can make sure that you don't reoffend.  But remember:  What Ruffin did was not only consensual, but isn't illegal outside of prison.  So we're forcing him to register forever in order to make sure that he doesn't commit an offense that he's now perfectly entitled to commit.  Wacky.

But it gets worse.  Prison inmates who have consensual relations with anyone while in prison are subject to mandatory registration.  But prison guards who have consensual relations with an inmate aren't.  The latter's a crime, to be sure, and almost assuredly the more serious one -- after all, there are power differentials, the potential for abuse and/or quid pro quos, etc.  Yet we give it the lesser penalty, including no mandatory sex offender registration.  Crazy.

So on the one hand, I can't come up with a valid defense for this disparate treatment that makes sense.  None.  It's just silly.

But the difficult part is remembering that courts aren't the Legislature.  We don't take policy-oriented votes, or decide what's silly and what's not.  Judicial officers have a very circumscribed role. 

So when the Court of Appeal holds -- as it does here -- that the statute is an unconstitutional violation of the Equal Protection Clause, my eyebrows get raised.

Do I agree that the disparate treatment is unwarranted?  Yep.  Without a doubt.  But we're not talking about a suspect class here.  The only relevant inquiry under the Equal Protection Clause is rational basis review.  A review that doesn't require the Legislature to give a reason, that doesn't require the Legislature to get it right, and that doesn't require the Legislature to have a good argument for what it does.  Rather, we ask ourselves only whether there could possibly be some potential reason for the disparate treatment of the two classes:  a group of prison guards, singled out for lesser punishment, and a group of prisoners singled out for more.

And, on that score, I gotta say, yeah, there's an argument.  Personally, yes, I'd punish the guards more.  For all the reasons I identified above.  But a legislator with a different personality might do the exact opposite.  A legislator might think that guards are generally good people; that they operate under stress; that they generally do things for good (rather than bad) reasons; and that even when they make mistakes, they should generally be forgiven, or at least have the option of being forgiven.  Hence justifying no mandatory registration.  At the same time, that legislator might think that incarcerated criminals are already one-time losers; that they tend to do things for bad (rather than good) reasons; that the need for prison rules is critical; and that prisoners who offend while already in prison are the most likely to reoffend.  Such a legislator might also believe that while a guard who mistakenly has consensual contact with an inmate is generally unlikely to commit other sex crimes once caught and punished, an inmate who's so desperate for sex that he's willing to violate the sex rules while in prison might not only engage in similar conduct once released, but other sex-related statutes as well; e.g., sex with minors, with relatives, with unconsenting people, etc.  So such a legislator might well vote to make sex offender registration mandatory for prison inmates but not for guards.

And, in this regard, the standard of review is critical.  The question is not whether that legislator is right, and is not even whether that's why, in fact, the Legislature did what it did.  The issue is simply whether a person could legitimately hold such a view.  And since I'm quite positive that at least one (non-insane) member of the California Legislature does, in fact, hold such a view -- and probably several others as well -- that seems a strong argument in favor of the statute's validity.  As crazy and as silly as it undoubtedly is.

So, look, I like that the Court of Appeal takes these things seriously.  A lot.  But rational basis review can only do so much.  And I'm pretty darn skeptical that it can do the work that the Court of Appeal has it do here.

I could potentially see an argument that consensual sexual activities are fundamental rights, thereby subjecting the disparate treatment here to potentially intermediate review (or at least "rational basis with teeth" -- though that phrase seems somewhat ironic given the underlying context).  But even that's a difficult push, as we are talking about consensual sex relations in prison, and at that level of generality, we're probably no longer on the "fundamental right" grounds.

So while I'm sympathetic to the Court of Appeal's holding, I'm not sure I can agree with it.  It definitely makes for better law.  I just don't believe that the Equal Protection Clause, as currently construed, permits us to get there.

Ninth Circuit Goes For the Modern Record (9th Cir. - Nov. 11-15, 2011)

The Ninth Circuit issued no published opinions on Friday, which was not surprising, as it was Veteran's Day.  It then issued no published opinions the following Monday (yesterday).  Veteran's Day hangovers, most likely.  And today, it again issues no published opinions.  Must have been quite a bender.

That's pretty unusual.  Rarely does a day go by with no published Ninth Circuit opinions at all.  It happens around once a month.  It's very rare for this to happen on consecutive days.  Moreover, even then, it tends to occur later in the week.  Thursday and Friday, for example.  My guess being that the clerks and judges may crank out work over the weekend and as the week ends, but might occasionally fade as the weekdays progress.

There was a week back in 2009 which only saw published opinions on one of the five days that workweek:  October 13, 15 and 16 (Tuesday, Thursday and Friday) were blanks, and October 12 was Columbus  Day.  Similarly, just last month, October of 2011 saw another string of blanks, with no published opinions on October 6 and 7 (Thursday and Friday), and none on the following Monday (October 10) either.  October 10 being, yet again, Columbus Day.

So clearly there's something on with Colubus Day.  Lots of partying (and subseqeunt recovery) on that day in 2009, and apparently -- having learned their lesson two years previously -- there was a transition to tons of pre-partying instead this year.  And yeah, yeah, don't give me some cock-and-bull story about new law clerks replacing the old ones during the summer and that explaining the gaps in October arising from the lull between end-of-clerkship opinion issuance and the new clerks writing their new opinions.  We all know the judges do all the writing themselves.  Clearly what we've been seeing is entirely due to Columbus Day.

But that doesn't explain this week.  Maybe now Veteran's Day is the new (additional) Columbus Day.  Regardless, we've now seen three days in a row with no published opinions.  A blank tomorrow will set a new modern record.

Here's hoping the Ninth takes another day off.

POSTSCRIPT - On Wednesday morning, Judge Pregerson broke the streak by issuing a five-page published opinion.  The only one of the day.  But the streak is dead.  Long live the streak.

People v. Nelson (Cal. Ct. App. - Nov. 14, 2011)

This is the most important opinion in the history of California appellate jurisprudence.

Okay, so I exaggerate.  But I bet you that for the majority of Californians, this opinion has greater practical significance than 99.999% of anything else they'll read in the pages of the California Appellate Reporter.

The critical issue is this:  Can you use your cell phone at a red light?

The operative statute provides that you can't talk on a non-hands-free phone when you're "driving."  Carl Nelson's sitting at a stop light, flips up his cell phone, and starts making a call.  Not realizing that a motorcycle cop had pulled alongside him at the light, and so was sitting right outside his driver's side window.  Once Carl saw the cop, he closed the phone and put it down.  But the cop decided to give him a ticket anyway.  (And I know what half of you are now saying to yourselves:  "Jerk."  Though some of you are saying that about the police officer, while others are saying that about Cell Phone Carl.)

But Carl says he shouldn't get a ticket, because the light had never turned green.  So he wasn't talking on the phone while "driving," he says.  And he cites a case from the California Supreme Court that reversed a drunk driving when a dude was found sleeping in his car, with the engine and lights on, that holds that (in that case) a conviction for "driving" while intoxicated requires proof of volitional movement.  So Carl says he was not "driving" while on his cell phone because he wasn't moving.  The Attorney General's Office, by contrast, says that the legislative history of the statute reflects that anyone should be punished who is "operating" a motor vehicle while using a cell phone, and that Carl's ticket should be affirmed on that basis.

First, the holding.  Which you should definitely know.  Carl loses.  You can't use your cell phone at a stop light.  End of story.

I think the Court of Appeal is correct in that regard.  I think that Carl was "driving" even though he was at a stop light.  That counts.

But I say that even though I'm a lot more conflicted in that regard than the Court of Appeal.  And certainly more than the Attorney General's Office.  Carl's best argument, in my view, is his argument that the use of a cell phone is a transient act -- even more transient than driving while intoxicated.  You can use a cell phone at a stop light and not endanger anyone.  It's fine.  Perhaps even more persuasively, you can do lots of stuff at a red light.  Pick your nose.  Look in the glove compartment.  Take off your shirt.  Close your eyes and take a nap.  Do even stupider stuff.  Why would the Legislature allow you do do all these things -- things that are far more dangerous and distracting -- but not allow you to talk on a cell phone?  Doesn't make sense.

I agree with that.  At least in part.  But I still don't think that necessarily means you get to talk on a cell phone at a red light.  Because the Legislature doesn't have to make sense:  it's rational basis review, after all.  And I am pretty confident that the dangers of cell phones are more in the public consciousness than the dangers of nose picking.  That they choose to legislate about the former and not the latter just makes them inconsistent, but that's not fatal to a statute.  More importantly, I think the Legislature might well think that someone who starts talking on a cell phone at a red light might not always stop immediately once the light turns green.  It's harder to stop talking than it is to stop searching the glove box.  Because the former might be interpreted as rude.  So the Legislature could well think -- as I do -- that it makes sense as a prophylactic matter to not allow talking on cell phones, even at red lights, because doing so would advance public safety even though talking at a red light by itself might not be such a bad thing.

That said, I'm not willing to buy the Attorney General's argument that the correct interpretation of the statute is that anyone who's operating a motor vehicle can't use their cell phone.  I think that argument picks loose language from the legislative history to advance unjustified ends.  And I'm more than a little bummed that the Court of Appeal didn't specifically reject this argument.  Because you "operate" a motor vehicle in far more circumstances than just sitting at a red light.  For example, imagine that you want to make a cell phone call, and thus pull over to a parking space on the side of the road and make your call (but stay behind the wheel and leave your engine running).  Under the Attorney General's view, you're guilty of an infraction.

But I don't agree.  Talking on your cell phone while outside of driving lanes seems perfectly fine to me.  You're not "driving" at that point, even if you're "operating" your motor vehicle (as you clearly are).  It's one thing to say that, at a stop light, you're still "driving" even if not moving.  It's another thing to try to argue that even when you've pulled over, that cell phone's got to stay in your pocket.  I'm not on board for that.  And I wish the Court of Appeal had expressly said so as well.  Particularly since the Attorney General's Office was advancing an interpretation of the statute that I don't find plausible, and that might in fact deter people (if not expressly rejected) from doing socially beneficial things like pulling over if they want to make a call.

So know what the lay of the land is here.  And, at a minimum, get a hands-free device.  Or just stay off the phone entirely while driving.  Because even when you're not using your hands, the evidence about accident rates when you're talking on the phone while driving is shocking.  Truly amazing stuff.  It's like being drunk.  Even hands-free.  So don't do it.

But I know this last advice falls on deaf ears.  Such is life.  But at least my counsel about cell phones and red lights might be heeded.  Do it only if you're hands-free.  Otherwise Nelson's fate could well be yours.