Rohit v. Holder (9th Cir. - Feb. 29, 2012)

This one's timely.  At least for me.

I probably agree with Judge Wallace's opinion as a matter of precedent.  Soliciting a prostitute is indeed a crime of moral turpitude.

But see if you agree with the following statement in the opinion:  "[S]ex between an adult and a minor may be prohibited, but it is not inherently morally turpitudinous. . . . Prostitution, on the other hand, and solicitation thereof, always involves sexual exploitation."  (Similarly:  "[S]olicitation of prostitution is always base, vile and depraved.")

I wonder if Judge Wallace thinks the same is true about visiting a strip club.  Or Anna Nicole Smith marrying J. Howard Marshall.  Or the numerous "sugar daddy" web sites.  Or visiting a Hooters.

Does trading sex (or other sexual/nonsexual conduct) for money always involve explotiation?  Is it never truly consensual?  Does it matter if you're trading sex as opposed to something else?

Maybe.  Now onto my 1:00 p.m. "Law of Love" class.  Which is all about precisely that.

U.S. v. White (9th Cir. - Feb. 29, 2012)

I guess there are problems with virtually every area of the law.  Whether it's long hours, ungrateful clients, miserable pay, or what have you.

Read this case to see what I mean.  And imagine being the (third) lawyer appointed to represent White at his trial.  Not fun.

Definitely makes me happy I'm in academia and can take -- or not take -- whatever cases I want.

P.S. - Notice also how long this criminal case took to work its way through the system.  The district court docket number begins with 03.  The Ninth Circuit number begins with 07.  So you're talking nine and five years, respectively, to deal with a relatively straightforward case.  Albeit one that involves someone who's incredibly disruptive.

Howard v. Omni Hotels (Cal. Ct. App. - Feb. 8, 2012)

Ron Howard Seriously Injured When He Slips In Tub in San Diego Omni!

That's what the People Magazine headline would be for this case.  Or, for you online folks, what TMZ would say.

But fear not, Opie fans.  It's not that Ron Howard.  His wife's name is Cheryl.  (To whom he's been married for over 40 years, I might add.  Great job, Ron & Cheryl.)  Whereas, according to the first footnote of this opinion, this Ron Howard's wife is named Lisa.  So it's a different Ron Howard in SoCal.  Though I certainly checked out the converse possibility.

This Ron Howard, unfortunately, has a worse track record than the more famous one.  He lost on summary judgment below, but got a break when the court granted a new trial motion as to one of the defendants and reversed his prior decision.  Both sides appealed, and this Ron Howard not only lost his appeal but also lost the appeal of defendant Omni.

So no money for this Ron.

Balsam v. Trancos (Cal. Ct. App. - Feb. 24, 2012)

I'm happy that the Court of Appeal affirms here.  Defendant's a spammer.  It sends out (at minimum) millions of e-mails a month.  Glad to see 'em found liable.  And, yes, this benefits an attorney who focuses on these type of cases and a representative plaintiff who isn't really injured.  But I'm okay with that.  We're paying 'em as private attorneys general so we don't have to enforce the statute ourselves.  It's enforcement on the cheap, at least as far as tax dollars go.  Plus, plaintiff and his counsel are hardly getting rich; the attorney obtains a fee award of less than $82,000 for a case that has to go to trial against a defendant who's constantly trying to hide his identity and location.  Seems more than fair to me.

I can also understand why the Court of Appeal doesn't hold the CEO personally liable.  But here I'm less psyched about the result.  The CEO runs numerous defendants who do nothing but send out a practically infinite amount of spam.  He knows enough to try desperately to hide what he's doing and his involvement.  I'm pretty confident he knows that he's doing something illegal and hiding behind shell companies while he does it.  The Court of Appeal nonetheless says "there's no evidence" that the CEO knew that what his companies were doing was illegal.  I guess that's true, if by "no evidence" we mean "no evidence that the CEO hasn't shredded, and as long as the CEO testifies he didn't know, we can't disprove his completely self-interested assertion."  Does the CEO have a story on why he sends out spam like it's going out of style and why his "security" concerns made him fake virtually everything associated with his businesses?  Sure.  But I don't buy it.  For a second.

This business thrives on not being found, and once it is, simply folding up shop and doing the exact same thing under a different name.  I know it.  You know it.  And I'm darn sure the CEO knows it.

So this case adds some value in marginally spanking the defendant.  But given the holding on individual liability, it's nonetheless not a serious advance.  No reason not to do it again if all that happens is that you have to spend $100 to reincorporate under a different name.

People v. Haraszewski (Cal. Ct. App. - Feb. 23, 2012)

If you're a serial child molester, and a registered sex offender, here are some things you might not want to do:  (1) bring a 12-year old boy who you're molesting to a nude beach; (2) take nude pictures of him; (3) leave your car in a park leading to the nude beach after it has closed; (4) have a big tub of Vaseline, a vibrator, a book on oral sex, and alcohol in the car; and (5) let the 12-year old drive your car.  Because when they stop you (shock!) for No. 5, they're going to find out the rest.  As well as many of the other kids you've molested.

Not really a problem for Mr. Haraszewski at this point.  He'll be spending the next 600 years to life -- whichever comes first -- in prison.  So not much opportunity to make the same mistakes again.

In Re Marriage of Falcone and Fyke (Cal. Ct. App. - Feb. 23, 2012)

My father was a small-town attorney who took almost everything that walked in the door in order to put food on the table for his five children.  Wills, real estate, litigation, tax returns; whatever.  But he refused to do divorce cases.  When I was a child, I didn't really understand why.  Those people needed lawyers, right?  They paid fees as well.  Why not take those cases?

As I got older, and especially once I became a practicing lawyer myself, I had more insight into his decision.  And cases like this one exemplify the types of cases with which my father feared he might potentially become embroiled if he ever took on a divorce matter.

In this particular case, in the end, it actually all turns out fine.  Yes, one of the parties frivolously mucks up the litigation and makes it a disaster.  But she gets sanctioned, ends up having to pay the attorney's fees of her former spouse, and gets declared a vexatious litigant.  There's still massive disruption and inefficiency, but it's not an unmitigated disaster.

But that's only because she has money.  If there weren't assets there, this would be a terrible case.  And, sadly, cases like this are both far too common as well as exceptional.  Common in that frivolous litigation in family law matters is pretty routine.  Exceptional in that, most of the time, the frivolous litigant doesn't have any substantial assets, and so there's very little that a court can do.

Which is a deadly combination.

One big upside of hiring a lawyer is that they tend to take an objective look at things.  Or at least more objectively than you might during a contentious divorce.  If you have the funds, hire a lawyer.  At least as compared with the alternative, it'll save you money, stress, and potential disaster.

And, for the record, I don't litigate divorce cases.

Like father, like son.

People v. Thomas (Cal. Supreme Ct. - Feb. 23, 2012)

If you kill two on-duty police officers, you're going to be sentenced to death.  The fact that you're also found guilty of a different murder is simply icing on the cake.

And it may take the California Supreme Court 83 pages and nearly 17 years to resolve your direct appeal.  But it'll unanimously affirm your death sentences for the two officers.

Joaquin v. City of Los Angeles (Cal. Ct. App. - Jan. 23, 2012)

It's been a pretty slow week thus far, with the three-day holiday and all.  No opinions by the Ninth Circuit today (and only a couple earlier in the week), and only one published opinion by the Court of Appeal thus far.

But the good thing about all that is that is encourages me to go back and reread cases that were a disaster.  Like this one.  Which was decided on the same day as another opinion that was amended today, so it led me to go back and reread it.  A case that's a huge clusterfart.

The opinion shows, in my mind, how these things can become a nightmare.  I won't attempt to defend my views on this one, and reasonable people can (and surely do) disagree.  I'll just give you my take.  A take that's admittedly based on an incomplete and cold appellate record.  But it's nonetheless my opinion.

I think the Internal Affairs department of the LAPD made a pretty coherent call when it concluded that the LAPD officer here fabricated a sexual harassment charge against another LAPD officer in order to avoid pending discipline against him.  I think the Board of Rights, which investigated this charge, similarly made a coherent call when it agreed and recommended that the complaining officer be terminated for fabricating the charge.

I didn't read the entire underlying opinion, but instead only the snippets of it quoted on appeal, but I must say that I was somewhat surprised to learn that the superior court reversed the termination on the grounds that it wasn't supported by substantial evidence.  The Board made a very specific and detailed credibility finding.  I would have thought this would have resulted in dispositive deference.  But apparently not.

So the officer gets reinstated.  Okay.  I guess I can live with that.  Not my preferred solution, but okay.

But then the officer sues, claiming retaliation.  And gets to proceed to trial.  And prevails.  To the tune of $2 million-plus.

That's something for which I'm not on board.

It's bad enough that a sworn peace officer may have fabricated a report against another officer to avoid discipline and then avoided discipline for this offense.  But the thought that such a person might become a multimillionaire by doing so is simply too much.  More critically, it seems to me that the LAPD did exactly what we should want them to do here.  It investigated a tough dispute.  It made a credibility call.  It tried to do the right thing.

Letting a huge jury verdict stand in such settings would deter organizations like the LAPD from doing exactly what we want them to do.  You don't want an organization's self-interest -- avoiding liability -- placing a huge thumb on the scale of its investigation.  Especially when it involves reputations and careers.

So I'm glad to see the Court of Appeal reverse the judgment here.  It's the right call.

I'm still sad the case had to go to trial; in my mind, it should have been dismissed on summary judgment or on a nonsuit.  But justice delayed is at least better than justice denied.

Mardesich v. Cate (9th Cir. - Feb. 21, 2012)

There are occasional hassles that attend the resolution of an with an 08- caption (which means it was filed in 2008) in 2012.  The first footnote of this opinion demonstrates one of them.  Each of the five defendants is no longer the proper party, so needs to be substituted out on appeal.

Rod Hickman's no longer the Secretary of the Department of Corrections.  So he's replaced by Matthew Cate.  Joe McGrath's the old Deputy.  Scott Kernan's the new one.  John Dovey was the Director, but he's out, and Terri McDonald's in.  Deborah Johnson is now the Warden at the central woman's prison, so she's the new defendant, replacing the old Deborah -- but with a different spelling -- Debra Jacquez.  Elections also happen.  Bill Lockyer has moved on as Attorney General.  Kamala Harris takes his place.  Both at the helm and as a defendant.

So it's a whole new cast of characters.  Except for the petitioner, Destinni Mardesich.  Who's destined -- yeah, I know -- to spend the next 26 years to life for helping to kill her baby daddy when she was 16 because she thought he try to get custody of his son.  A destiny that the Ninth Circuit refuses to change, as it affirms the district court's dismissal of her habeas petition.

It's somewhat ironic that it takes the Ninth Circuit until 2012 to resolve Dentinni's 2008 appeal given that the basis for this dismissal is that her petition is time-barred because it's eighteen months late.  But at least Judge Ikuta issued the opinion relatively quickly after oral argument -- around 70 days.  That way the thing doesn't continue until 2013.

But all this talk is of little import to Destinni.  Who's got nothing but time at this point.

Ibrahim v. Department of Homeland Security (9th Cir. - Feb. 8, 2012)

Imagine that the Department of Homeland Security erroneously placed you on the No-Fly List, and as a result, you were not allowed to take a flight, were detained for several hours in the airport, had your visa revoked, and were left outside the United States for years with no way to return.  Could you sue?

Maybe.  Maybe not.  But to even find out, it's going to take litigation with unprecedented magnitude.

Exemplified by this case.  Which started over six years ago.  And still isn't even past the pleading stage.  And has also been forced to be pending in multiple different Courts of Appeals.  So the plaintiff is probably looking at another five to ten years before the suit finally gets resolved.  Enjoy Malaysia in the meantime.

Don't think it could possibly happen to you?  Don't be so sure.  Read Judge Willie Fletcher's opinion.  The List is both expansive and far from perfect.  Maybe they couldn't revoke your visa if you're a U.S. citizen.  But enjoy driving or a week on the train if you ever need to go cross-country.  Oh, yeah, and good luck if you want to visit the Eiffel Tower.  I guess you could take a ship.  But you're more likely going to have to settle for the cheap knock-off in Las Vegas.

People v. Leavel (Cal. Ct. App. - Feb. 17, 2012)

What's up with a public defender who forgets that his client has pled not guilty by reason of insanity?

I understand that it took forever for this case to get to trial.  They catch the defendant in mid-2005 and in August 2005 he pleads not guilty.  The circumstances of his crime are more than a little bit nutty, so the case lingers, with numerous inquiries into the defendant's competence to stand trial, and in April 2007, appointed counsel for the defendant -- William Figueroa -- amends the plea to not guilty by reason of insanity.  The court appoints an expert to conduct an examination, and a couple months later, the expert writes a report that concludes that the defendant is sane.

Two and a half years later -- after the trial is continued "ad nauseum" -- the defendant finally goes to trial.  At which point the defendant's lawyer reenters a plea of not guilty by reason of insanity and asks the court to appoint an expert to evaluate the defendant's sanity.  But the next day, the court checks its records, and tells the defendant (and his counsel) that they already entered an insanity plea and got an expert report three years earlier.  At which point "Attorney Figueroa responded, 'Wow,' presumably having forgotten the matter," and withdraws the request for an expert.

Oops.

This isn't an especially serious offense (in the scheme of things), but it is a felony.  So you might think that the public defender was simply overworked and lost this one in the shuffle.  But it's a three strikes case.  One in which the defendant was sentenced to 102 years to life once the jury found him guilty and rejected his insanity plea.  So it's kinda a big deal to the defendant, who presumably wasn't happy once he realized that his attorney didn't even know what plea had been entered.

Which assumes that the defendant's keenly aware of what's actually going on.  Which isn't necessarily the case.

Regardless:  It's still not the San Bernardino County Public Defender's best day.

Marshall Naify Revocable Trust v. U.S. (9th Cir. - Feb. 15, 2012)

The really rich -- especially the really, really rich -- are indeed different than us.  They don't have to pay taxes the rest of us do.

Check it out.  Marshall Naify is about to get $660 million in capital gains, and doesn't feel like paying taxes on it in California (even though he lives there), so ostensibly "moves" the stock to Minnesota.  So doesn't pay any tax on this gain -- at all -- to Califonria.  But at the same time, he deducts on his federal taxes $62 million in purported state taxes that he "might" have to pay if his scheme to cheat California fails.  And does so even though California has never even gone after him for the $62 million.  Neat trick, eh?  Don't pay state taxes, but deduct 'em anyway.

And sure, after reading this opinion, you might be inclined to say:  But he lost his federal tax refund lawsuit.  The Ninth Circuit affirms.  So all's right in the world.  Justice was served.

Which is partially correct.  But don't forget what happens below.  Naify thought he'd owe California $62 million, but the FTB only went after $58 million.  And Naify settles that dispute on very favorable terms:  he ends up only having to pay $19 million of the $62 million he purportedly owes, plus $7 million in interest (as he's had the time value of money for that $19 million, which has since gotten a lot bigger).  So his scheme largely works.

And it works on the federal side as well, at least in part.  The IRS then allows Naify to deduct the entire $26 million it paid.  But Naify continues to say that he should be allowed to deduct even more than this amount -- on the grounds that his scheme had at least a two-thirds chance of failing, so even if he shouldn't be allowed to deduct the entire $62 million, he should still be allowed to deduct $47 million:  the "chance" that his plans would fail and he'd have to pay.  (Parenthetically, notice -- as the Ninth Circuit does, that two-thirds of $62 million is actually $41 million, not the $47 million deduction that Naify seeks.  "Oops," Naify's lawyers say.  "We must have done the math wrong."  Yeah.  Or simply asked for -- yet again -- a higher deduction than Naify could conceivably have been entitled to, hoping that the FTB wouldn't audit them.)

So, sure, the Ninth Circuit doesn't allow Naify to deduct more than he's actually paid.  And it only took years and years of litigation in the district court and Ninth Circuit to make that happen.  After the guy avoids paying tens of millions of dollars that he probably owes to California to begin with.

Yeah.  That's justice.  What a huge win.

Range Road Music v. East Coast Foods (9th Cir. - Feb. 16, 2012)

Did you allow a live band to cover some Coletrain songs at your jazz lounge?  Play a CD over the speaker in the lounge?

Well, then, you're going to have to pay $4500 in statutory copyright damages for each song.  As well as over $160,000 in costs and attorney's fees to the other side.  Not to mention your own costs and fees.

That'll teach you to mess with Hollywood.

People v. Brandao (Cal. Ct. App. - Feb. 8, 2012)

Here's a question for you.  One especially timely given that yesterday was Valentine's Day.  (Though hopefully the fact scenario below doesn't even come close to applying to your particular status.)
Which is worse:

(A) Having sex with a 16-year old girl?  Or

(B) Sending a text message to a 16-year old girl that says "I missing you"?

Assume that you're a 37 year old man.

The answer, of course, is (B).  Much worse.  At least according to California.  Which requires mandatory lifetime registration as a sex offender for the latter, but not the former.

And according to the Court of Appeal, this doesn't violate equal protection.  It's instead a statute with a rational basis.  Someone could reasonably conclude that the latter is more culpable.

In Re Michael G. (Cal. Ct. App. - Feb. 14, 2012)

Parents often say that they love all of their children equally.  Here's a case where the mother essentially concedes that she loves her other two children more than her middle child -- Michael.  If she indeed loves him at all.

Happy Valentine's Day, Michael.  You can now be adopted.  You're only seven years old, so probably don't fully know what that means yet.  But trust me, as well as the Court of Appeal.  It's in your best interests.

U.S. v. Polar Star (9th Cir. - Feb. 14, 2012)

Don't build houses for the U.S. military in Alaska.

It'll just be a mess.

Watison v. Carter (9th Cir. - Feb. 13, 2012)

I agree with the vast majority of what Judge Farris says in this opinion.

Indeed, I must say, I'm somewhat shocked at the decision by the district court -- Judge Reed, a senior judge from the District of Nevada -- did below.  It's a prisoner Section 1983 case, and as the Ninth Circuit rightly holds, it's fairly clear that the plaintiff has alleged a plethora of claims which, if true, state a claim.  Why Judge Reed thought it was okay to dismiss these claims is beyond me.

Let me just give one example.  Watison brings a half-dozen federal claims, and also around a dozen supplemental state law claims.  The state law claims certainly seem plausible; theft, assault(ish), etc.  But Judge Reed dismisses them without explanation and with prejudice.  Huh?  You've got to at least give a reason, right?  Plus, I agree with the Ninth Circuit that I presume that these claims were simply dismissed because they were supplemental state law claims (and the federal claims had just been dismissed), but if that's the case, the dismissal has to be without prejudice.  Which matters.  A lot.

The strong sense I got from reading the opinion is that Judge Reed was either doing a quick-and-dirty (or sloppy) job resolving the case or, perhaps more likely, had such a strong distaste for the plantiffs' claims that he wanted them out of court -- any court -- come hell or high water, doctrine be damned.  Personally, there's part of me that would understand such a reaction, as I'm not at all convinced that what plaintiff says occurred actually did occur.  But it's at the pleading stage.  If he's lying, that's something to deal with at a later point.  We don't deal with it now.  He says the guard rubbed his inner naked thigh while leering at him.  If true, that states a claim.  End of story.

For similar reasons, I also found Judge Noonan's partial dissent more persuasive on the Eighth Amendment point than the majority opinion.  Here's the allegation in the complaint (as Judge Farris describes it):  Watison "alleged that LaGier entered his (Watison’s) cell while Watison was on the toilet and began to search it, that Watison asked LaGier to leave the room, and that LaGier approached Watison while Watison was still on the toilet, rubbed his thigh against Watison’s thigh, 'began smiling in a sexual contact [sic],' and left the cell laughing."

Does that violate the Eighth Amendment?  Well, I could reason from first principles, but we also have cases on the issue, and since those are binding on us, we'd best start there.

On the one hand, we have an en banc Ninth Circuit case from 1993, which held -- as Judge Farris describes it -- "that the Eighth Amendment prohibited clothed body searches of female prisoners by male guards directed by a prison policy to 'push inward and upward when searching the crotch and upper thighs of the inmate,' to 'squeeze and knead' 'the leg and the crotch area,' and to 'search the breast area in a sweeping motion, so that the breasts will be ‘flattened.’"  So feeling up an opposite-sex, clothed inmate by physically touching her is prohibited.

On the other hand, we have a panel opinion from the Ninth Circuit from 1985 that holds -- again, as Judge Farris describes it -- that it isn't unconstitutional for a prison to "allow[] female guards to observe male inmates disrobing, showering, using the toilet, and being strip-searched, and allowing them to conduct pat-down searches including the groin area."

Judge Farris holds that the current case is more like the latter than the former.  I don't see it.  Seems to me like the holding of the earlier panel case might be severely undercut by the subsequent holding of the en banc court eight years later.  And even if the latter case did survive, it seems to me like the current case is more like the former anyway.  Here we have a someone sexually rubbing his own thigh against the naked thigh of someone else.  That seems even worse than what was at issue in the en banc case.  I know, because I had to undergo something very similar to what happened there at the hands of the TSA when I flew out of D.C. last weekend.  Which I was fine with; a little stroking and pants-pulling -- and, believe me, they were very thorough -- is a lot less severe than if someone starting rubbing my naked thigh with his thigh.

Nor am I sure that the way that Judge Farris distinguishes the cases works.  Judge Farris says that the en banc case involved female inmates, whereas "Watison is a male inmate."  With respect, I don't think that makes a difference.  There's no inherent gender difference in your reaction to unwanted sexual contact.

So although I like a lot of things Judge Farris says in this opinion, I'd have agreed with even more if he had also agreed with Judge Noonan.

Martinez v. Brownco Const. Co. (Cal. Ct. App. - Feb. 10, 2012)

The California Supreme Court should grant review in this case.

The traditional rule -- at least as articulated by the Court of Appeal -- during the past three decades is that a subsequent CCP 998 settlement offer effectively revokes the first.  So if, for example, plaintiff makes a 998 offer to settle for $100,000, then later makes a different 998 offer for $200,000, you pretend that the first offer doesn't exist.  So if plaintiff obtains a judgment for, say, $300,000, she only gets 998 costs after the second offer, even though this judgment is greater than the first offer as well.  Similarly, if plaintiff gets a judgment for $110,000, she gets no benefit under CCP 998; even though the judgment exceeds the first 998 offer, that one is deemed not to exist given the second offer.  Even if the second offer was months (or years) apart from the first.

That's the consistent rule.  But today, the Second District decides otherwise.  Disagreeing with this traditional rule and permitting plaintiff to recover her costs from the date of her first offer (in addition to her second).

I'm actually pretty sympathetic with what the Second District does here.  I think it's the right (or nearly right) rule.  For many of the reasons the Court of Appeal articulates here as well as some additional ones as well.

But the California Supreme Court should review the case regardless.  Section 998 offers are too common -- and too important -- for their import to depend on whatever draw you happen to get on appeal.  There has to be a set rule about successive offers:  either they effectively withdraw the first or they don't.  Lawyers as well as litigants have to know what the rule is, and if it's uncertain, settlement will be discouraged.

So the California Supreme Court should decide the issue once and for all.  So I'll be bummed -- exceedingly so -- if they don't take this case.  There's no reason not to.

In Re Mims (Cal. Ct. App. - Feb. 9, 2012)

On the one hand, you've got the fact that petitioner here -- who was convicted of murder -- killed her husband after claiming to be abused.  That tends to invoke sympathy.  Plus, she's 70 years old at this point. Not likely to be a danger.  Moreover, she's has been in prison for almost thirty years.  Where she has had an exemplary record.  These facts militate in favor of a grant of parole, right?  And she's got fancy (and likely pro bono) counsel, Nixon Peabody, to file her habeas petition.

On the other hand, she was a career call girl.  She's never really expressed sincere remorse for her crime.  The person she killed -- her husband -- was in a wheelchair.  Who was 69 at the time of the murder.  And who was thinking about divorcing her.  Oh, and he was her fifth husband.  Who died by being stabbed.  Not once.  Not twice.  Fifty one times.  A stabbing that occurred five months after they were married.  Plus, nine months after the murder of her fifth husband, she met and married Husband Number Six.  Whom she struck on the head with a hammer while she was on bail for the murder of Husband Number Five.  Marriage No. Six didn't last either.  But at least the husband lived through it.

The Board decided to deny parole.  The trial court reversed.  The Court of Appeal reverses and reinstates the Board's decision.

Save the Peaks Coalition v. USFS (9th Cir. - Feb. 9, 2012)

Judge Milan Smith begins this opinion with the following:  "This case represents a gross abuse of the judicial process."  It's similarly vitriolic throughout.  So if for that reason alone, it's worth a read.

I'll leave the merits -- it's an environmental case -- to Judge Smith.  Suffice it to say that he's not happy with the litigation that the Save the Peaks Coalition filed to stop artificial snowmaking on a ski resort in Arizona.

The one thing I'll say is that even though Judge Smith mentions the merits of res judicata only late in the opinion, in a single sentence in footnote four, that's really the proper focus of his doctrinal complaint.  He's not happy about successive litigation, especially when he thinks it gets in the way of jobs (pointedly noting that the ski resort "supports approximately 200 full-time jobs and $12.08 million in economic output"), and is not shy about saying so.  But it's not the laches or prejudice rules -- the ones at issue in the case -- that are the genesis of this problem.  It's the limited scope of nonparty preclusion (i.e., issue and claim preclusion).

So I'd have liked to see him talk about this more other than by dropping an unexplained footnote that says that nonparty preclusion doesn't exist here.  If everything he says is right, it seems like this would be a pretty strong case of virtual representation (same attorneys, involved parties, etc.), in which case we can easily get rid of the lawsuit on those grounds.  If virtual representation doesn't apply, I'd love to know why not:  are there additional facts that cut against the strength of his objections (and the potential applicability of virtual representation) that he's not revealing, and if so, what are they?  Moreover, given his strong language about the injustice here -- which I can understand -- what's the solution?  Res judicata is a common law doctrine for the most part.  Surely we can modify it if it indeed creates "a gross abuse of the judicial process," right?  What are Judge Smith's suggested changes?  And he's on the Ninth Circuit, with a sympathetic panel.  Why not go ahead and change the principles to which you object?  Or at least explain the reasons you can't do so and the countervailing rationales that support those principles?  I'd sincerely love to hear more.  Especially since I (and, I'm sure, others) could potentially get on board for a change in these principles if a persuasive case was made on the merits.

I think that might be more persuasive than an opinion that some people might well read as saying simply:  "Those damn environmentalists! Always getting in the way of progress!"  A sentiment that lots of people might agree with but with which lots of other people might not concur.  For those who are in the middle, or who care about the actual doctrine rather than the particular positions of the parties, I think an opinion that talked more about the underlying principles that gave rise to the problem that Judge Smith perceives might be more influential.  As well as potentially more persuasive.

P.S. - By a twist of fate, Judge Smith's opinion was also issued on the same day as this published Ninth Circuit opinion.  Which was also a case brought against the US Forest Service, was also in Arizona, was also somewhat strongly worded (though far less so), which also seems to have involved successive litigation and application of res judicata principles (at least according to footnote two), and which reversed the dismissal of plaintiff's claims.  I wonder what light that sheds, if any, on the propriety of res judicata as applied to these types of claims.

U.S. v. Kimsey (9th Cir. - Feb. 8, 2012)

I get why they wanted to charge James Kimsey with contempt for ghostwriting on behalf of purportedly pro se litigants.  Indeed, I'm happy they have it a shot.  Even though, as the Ninth Circuit holds, you can't do that.

They should have just charged Kimsey with the unauthorized practice of law.  But that's a state charge, so would require that the district attorney get motivated, rather than the U.S. Attorney.

Good luck with that.

People v. Latham (Cal. Ct. App. - Feb. 7, 2012)

I know that everyone wants to read the Ninth Circuit's gay marriage decision that came down today.  I know that because of the number of phone calls I've received and the fact that the Ninth Circuit's website has been swamped for the last couple of hours.

But I'll let the opinions in Perry speak for themselves.  They'll get a lot of commentary (and rightly so) even without me.

Meanwhile, if you want a break from the lofty constitutional discourse -- or simply the 128 pages of text -- in Perry, here's an opinion from the California Court of Appeal today that's worth reading.

Sure, sometimes you have evil parents who maliciously kill their infant children and get convicted of murder.  Rightly so.  But what you don't usually see is an opinion in which two parents are convicted of murder of a 17-year old child who died from diabetes.  Seventeen year olds are usually capable of largely caring for themselves (as well as their diabetes), and it's a rare case in which parents are charged with murder when they haven't smacked the kid around or simply left an infant to rot.  Plus, the evidence of malice here (if any) is very, very slim.  The parents definitely didn't act as I'd wish, and I too would have hoped that they'd have taken their daughter to the hospital several days earlier, but there's basically no evidence that they wanted her to die.

Nonetheless, their sentences are severe:  17 years to life for the father and 15 years to life for the mother.  I've seen gangland killings with lower sentences.

Read Justice Aaron's opinion and see what you think.  I think it's a much closer case than she makes it out to be, but at the same time, I can also read between the lines.  It's a case from Riverside County, and the father had pled guilty to using a minor to transport methamphetamine.  So you might have a sense of why the judge and jury -- who got a look at the defendants -- responded the way they did.

Lewow v. Surfside Owners Condo. Ass'n (Cal. Ct. App. - Feb. 2, 2012)

That's pretty nice.
Paul Lewow filed a lawsuit against his homeowners' association and lost.  The HOA filed a notice of entry of judgment, and was about to file a motion for attorney's fees seeking around $300,000.  So Mr. Lewow did what you might expect many people in such a situation to do:  He filed for bankruptcy.

At that point, the HOA couldn't file its motion for attorney's fees.  But Lewow wasn't safe.  His bankruptcy filing was dismissed around six months later, in July 2012.  And then, a little more than a month later, the HOA filed its motion for attorney's fees.

Fee motions are normally due within 60 days (i.e., within the time for filing an appeal), and the attorney for the HOA thought that the fee motion was tolled during Lewow's bankruptcy.  But, as the Court of Appeal notes, that's wrong.  The period isn't "tolled," but rather, you've got thirty days after the bankruptcy petition is dismissed to do whatever you need to do.  But the HOA waited until 32 days after the dismissal to file its motion.  Oops.

So the fee motion is pretty clearly untimely.  Nonetheless, while the Court of Appeal so holds, it also holds that the trial court had the discretion to extend this deadline -- even retroactively -- and that there was good cause here to do so since this was a difficult legal issue and even a reasonable attorney could be confused.  So it affirms the fee award.  To the joy of the HOA and the chagrin of Lewow.

Two lessons, though.  First, don't wait until the last day to do things.  Especially when things may be unclear.  If the HOA had just filed its fee motion a two days earlier, it would have avoided lots of pain and expense on appeal.  Second, while it might have been reasonable for the HOA's attorney in this particular case, since the law was unsettled, it's not unclear at this point.  You've got thirty days after the bankruptcy is over.  That's it.  And in the modern era, bankruptcy petitions are far from uncommon.  Especially for litigants facing a huge attorney fee award.

So file early.  Lest the result in your case be far different than the one here.

In Re Marriage of Wahl & Perkins (Cal. Ct. App. - Feb. 2, 2012)

Just because you're a doctor doesn't mean you're smart.  Just because you have tens of millions of dollars doesn't mean what you're doing isn't crazy.  Just because you think your arguments are wonderful doesn't mean they are.  And just because you're an otherwise reasonable attorney willing to cash the retainer checks of someone rich doesn't mean that you can represent a frivolous litigant and not get sanctioned.

All of these life lessons are appropriately learned in this case.  Which affirms a half-million-dollar-plus sanction award (!) in this family law case.  And which also sanctions on appeal both the appellant -- Dr. Loretta J. Wahl -- as well as her appellate lawyers, Kim Robinson and Richard Ducote.

I feel sorry for the respondent, Drew Perkins.  He's rich, yeah.  But he has to deal with an ex-wife who, well, let's just kindly say, has made some very bad choices.

P.S. - Sanity tip:  Whenever one of your lawsuits is against the Chief Justice of the California Supreme Court, maybe you should say to yourself:  "You know, I wonder if I'm way off the deep end here?"

People v. Brents (Cal. Supreme Ct. - Feb. 2, 2012)

Here's a death penalty case in the California Supreme Court.  There's a majority opinion, and a concurrence by Justice Liu and a partial dissent by Justice Werdegar.  So pretty routine, eh?

Except everyone on the Court agrees on the result.  Which is to reverse the death sentence.  And the only fight is about whether the evidence was sufficient to justify a retrial at the penalty phase.

Plus the opinions total less than 30 pages.

It's a brave new world.

This is admittedly a somewhat unique case.  The defendant's a really bad guy -- that's not unusual.  But the instructions at the penalty phase were definitely messed up, and the only special circumstance the jury found was that the defendant kidnapped the victim -- which he did, but largely (or exclusively) in order to murder her, which doesn't count.  The fight's about whether there was any evidence of a non-murder motive for the kidnapping:  the majority holds the evidence was "miminal" on this point but permits a retrial, whereas Justice Werdegar believes it's insufficient. 

So an unusual result.  But at least there's one thing that doesn't change.  The murder was committed in 1995 and defendant was caught almost instantly.  So that's 17 years just to conclude a single trial and appeal, and over a decade just for the resolution of the fairly straightforward appeal.

Death is different.  And not good.

P.S. - Don't think that this opinion indicates a wholesale change of heart.  Today also results in another -- more typical -- opinion by the California Supreme Court.  Which unanimously affirms the death penalty and spans 82 pages.  For a murder committed even longer ago; this time, in the 1980s.  So the more things change . . . .

Maxton v. Western States Metals (Cal. Ct. App. - Feb. 1, 2012)

Asbestos is asbestos, so you can be liable for distributing that raw material.  But metal is metal, so you can't be liable for distributing that raw material.