Thursday, May 31, 2012

Sefton v. Sefton (Cal. Ct. App. - May 31, 2012)

It's neat to see a case that involves a family bank that was opened way back in 1889 and involves a fight about who currently gets to have control of the bank pursuant to a series of wills from people with the last name of Sefton.  It's even cooler when the bank in question is in your home town:  here, the San Diego Trust & Savings Bank.

It's undisputed that the Seftons get the bank, but the question is which Seftons and how much.  It's a big ticket dispute:  the shares that Grandpa Sefton owned are currently worth hundreds of millions of dollars.

Read the opinion to find out which Sefton prevails in the Court of Appeal.

Carijano v. Occidental Petroleum Corp. (9th Cir. - May 31, 2012)

This is a great way to end the month.

Chief Judge Kozinski writes a dissent from the denial of a petition for rehearing en banc (i.e., for him, a "dissental") that's classic Alex.  Strongly worded.  Powerful.  Relatively persuasive.

But Judge Wardlaw -- joined by the rest of the panel that issued the underlying opinion -- writes a fairly responsive concurrence in the denial.  She even adopts Judge Kozinski's informal tone.

Check out how her concurrence begins:

"Whoa!!! The Chief has put the proverbial cart before the horse. The district court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel’s disposition. Nor did we or the district court invoke the doctrine of 'hypothetical jurisdiction' in an effort to reach the merits, quite contrary to the dissent’s assertion. Rather, based on the record before the district court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, 'a non-merits ground for dismissal.'"

Referring to him as "The Chief."  Using phrases like "cart before the horse."  Exclamation points (two, even!!).  Contractions.  All she'd have to do to make you think that Judge Kozinski himself wrote the thing is to number the sections.

It's a neat little debate.  If you're a huge procedure/appeals/standing nerd, anyway.  Judge Kozinski says you have to resolve standing first unless you're affirming a dismissal on forum non conveniens grounds.  But Judge Wardlaw says that it's not a one-way ratchet:  that just like you're not required to reach standing first before affirming a forum non conveniens dismissal you're not required to reach it first before reversing a dismissal on those grounds either.  Especially when the district court hasn't yet reached that issue.

Both sides have arguments.  For me, I'd have been interested to have Judge Kozinski tell me if there's a similar one-way ratchet in any other area of appellate review.  Are there any other issues that a Court of Appeals is required to reach only if they reverse a dismissal, but may ignore if they affirm?

Maybe there are.  Qualified immunity, perhaps?  (Though even there, if the district court dismissed the complaint only on the "not a violation" prong, you could surely affirm on that basis alone, but I'm not sure the Court of Appeals would be obligated to reach the "clearly established" part if it reversed.  I'm not sure about this, though:  I'd have to think about it more.)  It's surely not the case with "regular" standing or subject matter jurisdiction issues:  Those you've got to reach regardless of whether you're affirming or reversing.  Does standing fall somewhere in the middle?  I'd like to hear a reason why:  Why you have to reach it as an appellate tribunal only in cases in which you're reversing.

But the substance -- while fascinating -- takes a back seat to style in this one.  To see who can out-Kozinski Alex.

Wednesday, May 30, 2012

Bowers v. Raymond Lucia Cos. (Cal. Ct. App. - May 30, 2012)

This opinion is absolutely right.

The parties were represented by sophisticated lawyers.  They reached a settlement agreement that they put on the record.  Justice McConnell quotes the transcript and analyzes the record, and she's exactly right.  The settlement's binding and unambiguous.

It's true that the parties agreed to a somewhat unusual -- but hardly unprecedented -- arrangement to settle the remaining portions of the case.  The arbitrator called it "med/arb baseball high/low," which accurately describes the deal.  They agreed to mediate.  If, at the end of the day, the parties failed to agree, they'd each make their final offer, and the mediator would choose between one of these two figures, and that'd be entered as the final judgment.  That's the deal they struck.  The record's crystal clear.  Both to me and the Court of Appeal.

What the defendant -- the Raymond Lucia Companies (you've probably heard their advertisements, and maybe listened to the radio show -- apparently doesn't like is how the process eventually turned out.  The agreed-upon baseball range was $10,000 to $5 million.  Plaintiff took an aggressive position and made a final offer of $5 million.  Defendant took an equally aggressive position and made a final offer of $10,000.  That's fine.  Pick the extreme ranges.  But one of you is going to lose really big.  Here, that was the defendant.  You makes your picks and you takes your chances.  You lost.

Defendant gets new lawyers and argues on appeal that they didn't really agree to that process and that the agreement was invalid anyway.  Wrong.  The trial court rejected this position, and so does the Court of Appeal.  Rightly so.

Be careful what you wish for.  'Cause sometimes you'll get it.

Tuesday, May 29, 2012

Thomas v. Stenberg (Cal. Ct. App. - May 29, 2012)

Here's an appeal involving a motorcyclist who was hit by a cow on a private road and sued.  In which county do you think the accident transpired?

You're amazing if you guessed "Marin."  Because I certainly didn't.  It's not an area that immediately comes to mind when I think of wandering bovines.  Cougars, maybe.  But not cows.

Justice Dondero's opinion contains a wealth of information, including which cows are more docile than others.  Beef cattle more aggressive than dairy cattle.  Herefords more docile than Angus.  (And the Red Angus more docile than the Black.)  Don't mess with Brahman cattle.  Lots of good stuff.

Since the opinion involves a cow who attacked a human (rather than simply being run into), it seems appropriate after our long Memorial Day weekend.  If only because most of us likely feasted at least a little upon roasted cattle.

A good reminder that they're capable of evening things up a bit if they're given a chance.

Thursday, May 24, 2012

Landeros v. Torres (Cal. Ct. App. - My 24, 2012)

I'm not saying that this opinion is wrong.  Indeed, it probably seems right to me.  At least pursuant to existing law.

But if it's right -- and, again, I think it is -- this seems a fairly easy way around Proposition 213.  One that, in this case alone, is worth $22 million.  Plus additional millions for other unlicensed drivers as well.

It doesn't matter if the driver doesn't even have a license.  Just have someone buy the car for him/her -- like the father did here -- and keep it in his name.  Boom.  You're effectively insured as a "permissive" driver of the vehicle.  So when you're hit, the fact that you don't have insurance -- indeed, are not even permitted to buy insurance (since you don't have a license) -- is irrelevant.  Your damages aren't capped under Proposition 213.  Collect everything to which you'd normally be entitled.

P.S. - Want to see lawyers who hate each other?  Who amply reveal that fact to the jury, as well as make repeated personal attacks on each other during closing argument?  Check out the last dozen pages of the opinion.  Wow.  I can't believe the trial court permitted things to get this out of control.

Nitschke & Fenenbock v. Their Wardens (9th Cir. - May 24, 2012)

There are only two published opinions from the Ninth Circuit this morning.  Both involve federal habeas petitions, one from a guy named Nitcheke and the other from a guy named Fenenbock

Both involve someone convicted of killing someone else.  Both involve claims that the trial court (and the state appellate courts) erred.  Both panels consist of a majority of judges appointed by presidents who were Democrats.

The Ninth Circuit affirms the dismissal of both habeas claims.  Unanimously.

Those crazy liberals on the Ninth Circuit.

Wednesday, May 23, 2012

City of Palmdale v. State Bd. of Equalization (Cal. Ct. App. - May 23, 2012)

One the one hand, I get it, and understand why Justice Mallano does what he does here.  It's one thing to settle a case, and this sounds like a good case to settle.  But it's another thing to condition the settlement on the Court of Appeal's willingness to vacate the trial court's judgment.  Parties can't necessarily toy with a judgment for their own benefit, even if they both agree.  There's a decision here.  The State Board of Equalization was rightly slammed in that decision for doing stuff it shouldn't have done (and not doing stuff it should have done).  Why not let it stand?  Why let the parties vacate it?

On the other hand, the Court of Appeal's holding that it's "contrary to the public interest" to vacate the lower court's judgment seems a bit silly.  Justice Mallano says that to do so "would not only imply the agency acted properly, it would also undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal."  Not really true.  As to the first point, a decision to vacate a judgment in light of a settlement doesn't at all imply that the lower court's view was wrong.  It expresses no view whatsoever on the merits.  The only thing it really implies is that the parties settled their dispute.  End of story.

As to the second point, it's really hard to argue that vacating an unpublished decision of a trial court would "undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal."  No one reads those decisions.  And even if they did, that "exposure" still exists even after the decision is vacated.  The trial court still said it.  The Court of Appeal didn't review or reverse it on the merits.  It is what it is.

I'm just not sure that it makes sense to disapprove a valuable settlement "as a reminder to the agency that it must comply with the laws that restrict its decisionmaking authority."  That reminder exists by virtue of the trial court's expression of its opinion.  Moreover, that reminder is presumably reflected in a very concrete sense in the terms of the settlement.  That's actually meaningful.  Whether an opinion of a trial court that no one reads is vacated pursuant to a settlement, by contrast, seems largely a mere formality.

Justice Mallano's view that there's something like a "permanent record" for state agencies out there reminds me a little bit of parties who insist that settlement agreements include a provision that says that by settling, no party admits or denies liability.  Uh, duh.  No joke.  There's no reason to include such a provision.  There's no "record" out there.  A settlement agreement merely means that you've settled.  Nothing more, nothing less.  So too here.

The best that can be said for the Court of Appeal's decision-- and I think it might make sense on this level -- is to say something slightly different:  to merely say "You haven't shown why you need the lower court's decision to be vacated, since all it did was to remand, so I'm not going to comply with your request to vacate a decision based solely on what looks like vanity."  If there's no reason shown to vacate a decision, okay, why not let it stand?

That said, I'm not sure that's really the standard, and in going beyond this, I'm not sure the Court of Appeal's really right that the "public interest" cares one iota about whether the trial court's "rebuke" formally persists.  Plus, if it really is important to the parties to vacate this decision, I'd hate to tube a completely valuable settlement -- which, again, this one appears to be -- because of some amorphous "public interest" that nowhere near justifies the expenditure of hundreds of thousands of dollars in taxes going to lawyers so that various counties can fight over their respective shares to a pot of money only slightly larger than their fees.  Just let 'em split it up how they want.  Not worth the money (at least collectively) to fight about it.

Hopefully it'll all work out fine, and the parties will simply delete that provision of the agreement and settle anyway.  Let's hope.  For everyone's sake.

Gillis v. Dental Board (Cal. Ct. App. - May 23, 2012)

I know it sounds like a bad joke, but yes, you can get a root canal at Sears (Dental), and yes, this is what can happen.

Golinski v. OPM (9th Cir. - May 22, 2012)

Chief Judge Kozinski said "Jump" in early 2009 in an internal (Ninth Circuit) same-sex partner benefits case.  Rather than say "How high?" the Office of Personnel Management said "No thanks. We don't feel like it."  Leading Judge Kozinski to say later that year:  "No.  I'm serious.  Jump."

Fast forward three years, and there's still a dispute about jumping.  Here's the latest installment.  OPM still doesn't feel like jumping, and filed an appeal of Judge Kozinski's order.  After briefing (and intervention by a component of the House of Representatives), there was a request to take the case en banc even before a panel heard it.

No dice.  Not a single judge agreed.  Which is not surprising at all.

So the case will get argued in the usual schedule; here, in San Francisco in September.  Lovely time and place for it, I might add.

Tuesday, May 22, 2012

Kerner v. Superior Ct. (Cal. Ct. App. - May 22, 2012)

You think you have problems?  Check this out.

Imagine you're a partner in a big law firm in Los Angeles.  A name partner, even.  Big office on Wilshire.  Offices in LA, SF, SD, OC, Sacramento, Fresno, lots of others. You're making tons of money.  You've got respect.  You like your colleagues and work.  You even marry one of them.  Things are going peachy.  You're wife's even a Vice President of the Firm.

(This is no hypothetical.  I've just described the life of Richard M. Widom.)

So then:

"Widom was a member of the Stockwell firm for many years. [Lisa] Kerner also worked as an attorney for the firm. Widom and Kerner married in 2005 and separated in March 2009 after a physical altercation between them. Kerner filed a petition for marital dissolution in March 2009 and obtained a temporary restraining order against Widom based on allegations of domestic violence.

The Stockwell firm notified Widom on April 22, 2009, that his employment was terminated effective that day based on Kerner's claims against him and other claims of misconduct. . . .

The Stockwell firm filed a cross-complaint against Widom and Law Offices of Richard M. Widom, LLP, in January 2010. It filed a second amended cross-complaint against those same cross-defendants in October 2010 alleging that Widom had diverted the firm's money for his own purposes, induced the firm's attorneys to work for his competing law firm and solicited clients away while he was still a shareholder and director of the Stockwell firm, and had exposed the Stockwell firm to liability 'by assaulting and battering Lisa Kerner' and by mistreating another employee. . . .

Kerner filed a complaint against Widom on September 14, 2009 and filed a first amended complaint on September 30, 2009, alleging counts for assault and battery and intentional infliction of emotional distress and seeking money damages. Kerner alleged that Widom had threatened and attacked her during their marriage, culminating in a physical attack on March 1, 2009.

The Los Angeles City Attorney filed a criminal complaint against Widom in November 2009."

Oh my.  Things are going wrong.  Very, very wrong.

You might well think:  "Awesome.  Couldn't happen to a more deserving person.  Couldn't ever be me, that's for sure.  I couldn't empathize less."  I'd certainly understand that.

See if any of this affects your calculus:

"On February 3, 2010, a jury found him not guilty of spousal abuse, spousal battery, simple assault and simple battery. On Widom's motion, the trial court determined that he was factually innocent of the charges and entered an order declaring him factually innocent on March 18, 2010.

The trial court in the family law proceeding conducted a hearing over several days on Kerner's application for a permanent restraining order against Widom. The court stated in its oral ruling on January 26, 2010, that Kerner need only prove by a preponderance of the evidence that a single act of domestic violence had occurred. The court stated that Kerner's testimony about the events of March 1, 2009, lacked credibility and that her actions on that date and thereafter were inconsistent with her claim that she feared for her safety. The court also stated that Kerner's description of the events had changed over time and seemed exaggerated. The court found that Kerner had suffered injuries in the course of her altercation with Widom on March 1, 2009, but noted that she had admitted slapping him and previously had described the altercation as a pushing match.

The trial court in the family law proceeding concluded:

'My own finding is that Ms. Kerner is not a credible witness and that her testimony as to these events is not believed by the court. I choose to believe Mr. Widom's version of the facts, which is not to say that there is foolproof evidence that the events occurred in the fashion that he says, but on balance, I find his testimony to be more credible.

In fact, some of Ms. Kerner's testimony is among the most incredible testimony I have heard in a very brief period on the bench, but in 40-plus years as a trial lawyer, including most specifically her testimony about why she returned to the home because of concern over her cats and stayed there for four days in the face of what she thought was her imminent demise at the hands of Mr. Widom.'"

I'll not regale you further with additional details of this sad case.  Read the opinion for the plethora of complex privilege, issue preclusion, and other sophisticated legal principles that get thrown into the mix in a case like this litigated by self-interested heavy legal hitters on all sides.

In short:  A nightmare.

U.S. v. Carpenter (9th Cir. - May 22, 2012)

If I were Judge Kozinski, I wouldn't admit to authoring this opinion either.  I wouldn't even join it.

It's a child pornography case where the defendant's frustrated at his lawyer and wants to represent himself.  I completely agree with the per curiam opinion that the request for self-representation was untimely since it came at the end of two days of trial and after the prosecution has rested.  That's all that need be said on the matter.  Affirmed.

But the opinion goes on and says that the request for self-representation was independently flawed because it was equivocal and unclear.  Here's a complete statement of what what said by the defendant's lawyer on this issue:

"Your Honor, Mr. Carpenter [the defendant] tells me he wants to represent himself."

What the flock is equivocal about that?!  There's no "maybe" or "perhaps" or "is thinking about it" or anything like that.  It's as crystal clear as it gets.  The opinion says it's equivocal because the lawyer said it rather than the client.  So what?  That's the way trials work -- indeed, how they're supposed to work.  You get a lawyer so he'll do the talking for you.  That's the whole point.  Indeed, when represented defendants speak without being asked a question, they are out of order and routinely told to shut up.  Rightly so.  The words of your attorney come from you.  His questions.  Her answers.  His statements.  Her objections.  What the lawyer says is what you say.  It matters not in the slightest that the defendant here followed procedure and had his lawyer do the talking.  There's absolutely nothing equivocal about that statement.  The claim that a statement is uncertain because it comes from a lawyer doesn't pass a smell test.

Now, sometimes, when a lawyer says something that we think's especially important, we bother to ask the client directly whether s/he agrees.  So, for example, when a judge asks "How does the defendant plead?" and the lawyer answers "Guilty," we go ahead and ask the defendant to confirm that fact.  Not because it is unclear what "Guilty" means or that statement's equivocal.  Rather, we simply want to make sure that that's what the defendant really wants.  So we ask him.  And then he responds.

But that didn't happen here because the district court didn't even think it worth inquiring whether defendant really meant what his lawyer crystal clearly said.  Again, in this particular case, I'm okay with that, because the request was untimely.  But the holding here means that this statement would be "equivocal" and unworthy of credence even if made in a timely fashion well before trial.  That's just wrong.

I get that the panel thinks that Mr. Carpenter's decision arose from frustration and that his lawyer wasn't psyched about it. (And what lawyer is?)  But that a statement arises from frustration doesn't mean that it's equivocal.  Even if Mr. Carpenter's decision was rash -- imagine that he had instead interrupted the proceedings and said "I want to represent myself!" -- that's not equivocal.  It may be unwise.  It may be a decision worthy of inquiry.  It may be a decision that, after some discussion, the defendant is willing to change.

But it's not equivocal.  And the fact that this statement came from a lawyer, as it's supposed to, doesn't make it equivocal either.  (Similarly, the fact that Carpenter didn't reraise this issue later in the proceedings, after the judge had refused to do anything about the request, is irrelevant.  You're not supposed to reraise issues that you already raised before.  Moreover, the fact that, later in the proceedings, Carpenter may perhaps have cooled down doesn't mean that the trial judge was right to ignore the earlier request for self-representation:  statements don't become "equivocal" retroactively.)

There's no reason to put in this unnecessary alternative holding given that Carpenter's request was untimely.  And there's ample reason to omit it, because it's wrong both descriptively (as no case so holds) as well as normatively (because it'd be a terrible rule).

Sometimes when you pound out a per curiam opinion without oral argument and days after submission it's not your best work.  This is one of those times.

Monday, May 21, 2012

Campbell v. Ford Motor Co. (Cal. Ct. App. - May 21, 2012)

I'm not a torts professor.  So I know only a little bit about duty.  Though I understand the basics.

I also understand the problems with imposing unlimited duties.  You want to confine torts to some degree.  I get it.

But I think a visionary might decide this case a different way.  Maybe even if you had only a little bit of vision.  Or, perhaps, an admittedly clouded one (like mine).

The Court of Appeal holds that Ford Motor Company can't be sued for giving Mary Campbell mesothelioma because she never visited or worked in Ford's plant.  So no duty.

I get it.  You can see where the Court of Appeal is coming from.

But I think this is the perfect case to make a contrary holding.  At least on these types of facts:

(1)  There's virtually no doubt what caused Ms. Campbell's illness (and ultimate death).  None.  She contracted mesothelioma, which you pretty much only get from asbestos exposure.  How'd she get exposed if she never worked in the plant herself?  From when she was a little girl, she did the laundry for her family.  Her father worked as . . . as asbestos insulator.  Her brother worked as . . . as asbestos insultator.  It's crystal clear to be that she inhaled tons of asbestos when she flapped off the dust from her family's clothing -- remember, this is back in the 1940s, so it's not like you just throw everything into the washer/dryer -- and hence got mesothelioma.  That's what the jury found, and it was right.

(2)  So asbestos caused her death.  Causation's clear.  Nor is this a case of an out-of-control verdict.  The jury only found Ford five percent liable.  Which means Ms. Campell gets an award of $40,000.  That's relative chump change.  We're not talking about a jury that went crazy.

So the question is simply:  Should a business that indisputably caused someone's death by having toxic materials present, knowing that they are toxic, be liable for that death?  Don't forget that what's true for a five percent liable entity is equally true for an entity that's one hundred percent liable.  Does an entity that kills someone get off scot free if the person killed has never walked on their property?

If this were a criminal case, the answer would be clear.  We order restitution for damages in cases far more attenuated than this one.

If this were a different types of torts case, we'd again say that a "duty" (or at least damages -- which are practically the same thing) exists.  Imagine that Ms. Campbell's father was killed in front of her.  Boom.  Damages for Ms. Campbell.  Emotional distress.  A duty.  Loss of consortium.  Ditto.

We thus impose liability in all sorts of settings in which there's an intervening actor.  Ford (as well as others) put the asbestos on the clothes that Ms. Campbell washed.  It doesn't seem to me too far to say that they should be liable for doing so.  At least if they knew, which the jury found they did.

Might I impose a higher standard of proof in cases like these?  Maybe.  I could definitely be persuaded to do so.  Maybe in such situations you've got to prove damages by clear and convincing evidence.  (A pretty easy showing here).  Maybe I'll also limit liability to grossly negligent -- or reckless -- activities in which the defendant knows that what it's doing might cause damage.  But, again, that won't negate Ford's liability here.

By contrast, it seems to me that saying categorically that there's no duty whatsoever -- none -- isn't the right (or necessary) way to go.  When someone shoots a gun at X and hits Y, there's liability.  When an entity dumps chemicals on X and hits Y, it seems to me that there can be liability there as well.

I think that thirty years ago, this case would have been decided a different way.  For the better, I think.

Friday, May 18, 2012

Lopez v. Brewer (9th Cir. - May 18, 2012)

The Ninth Circuit denies a stay of execution.  I'm going to quote large portions of what Judge Kozinski has to say about the matter:

"There is profound irony in Lopez’s insistence that his death be painless. This is a description of his crimes, as related by the Arizona Supreme Court:

'Overturned and broken furnishings in the blood-splattered apartment indicated that a tremendous struggle took place prior to the murder. A scarf had been stuffed into the victim’s mouth, and she had been blindfolded with her pajama pants. An autopsy revealed that her throat had been slashed, and she had been stabbed twenty-three times in her left breast and upper chest and three times in her abdomen. Seminal fluid was found in both her vagina and anus.

When the officers arrived at the victim’s residence, the apartment’s condition evinced that a bloody battle had raged throughout every room in the apartment. Blood was splattered throughout the apartment and there were blood drops on the bathroom and kitchen floors.  A concentration of blood drops in the kitchen, as well as the stream of dried blood down the victim’s body and onto her bloodstained feet, indicated the victim stood for some time while being stabbed. The victim had three lacerations on her scalp and a stab wound to the left cheek. These injuries, although not fatal, caused a considerable amount of bleeding. The victim had lacerations on her right arm and bruises and cuts on her left hand, all of which were characteristic of defensive wounds.' . . . .

The panel delicately omits these facts, as did our previous opinion, which merely referred to the crime as “brutal,” Lopez v. Ryan, 630 F.3d 1198, 1201 n.1 (9th Cir. 2011), but common decency surely calls on us to acknowledge that Lopez is not the victim here, and whatever pain he may suffer incident to his execution pales in comparison to the agony and terror he inflicted on a defenseless woman whose body he used to sate his lust. Judge Berzon’s dissent and Judges Pregerson’s and Reinhardt’s dissentals obsess about the discomfort Lopez might suffer during his execution, but say not a word about the incomparable suffering the victim endured during the last desperate minutes of her life. . . .

Towery’s discomfort, even if it were replicated in Lopez’s case, comes nowhere near true suffering, such as that endured by Estafana Holmes, who died more than a quarter-century ago after twenty-six knife wounds and multiple lacerations; being beaten, raped, sodomized and degraded; and shedding liters of blood as she struggled in vain to save her life. See Lopez, 857 P.2d at 1265. Estafana had no chance to call her lawyer; there were no witnesses to her agony; she did not get to say farewell to her loved ones; she was allowed no last meal or final statement; no Article III judges agonized over her ordeal. “The death-by-injection which [my colleagues] describe[] looks pretty desirable next to that.” Callins v. Collins, 510 U.S. 1141, 1142 (1994) (Scalia, J., wisely concurring in the denial of certiorari). . . .

Lopez has presented no evidence that his execution will involve 'an objectively intolerable risk of serious harm.' Id. (internal quotation marks omitted). Absent such evidence, I don’t see where he has raised a viable Eighth Amendment claim or any basis for enjoining his long delayed and richly deserved execution."

This is characteristically powerful (and flowing) stuff from Judge Kozinski.  So I'll only briefly comment on his characterization of Lopez using Holmes' body to "sate his lust," reminding everyone that rape -- especially, rape and murder -- isn't about lust at all, but is instead about power.

Beyond that, I just wanted to mention two overall reactions to what Judge Kozinski says.  First:  Wow.  Very powerful stuff.  Well done.  Second:  To me, there's a huge element of bloodlust here.  Something you don't usually see in judicial opinions.  Or at least not to this degree.  Sure, there's an element of retribution involved in imposing the death penalty (rightly or wrongly).  So I have no doubt that one can perhaps be glad that a sentence is finally imposed, which might lead one to end a concurrence by describing someone's death (as Judge Kozinski does) as "richly deserved."

There's another way one could write an opinion.  One that describes the death of any human as unfortunate, even if necessary.  But Judge Kozinski doesn't take that route.

I'm reminded of different ways one characterizes wars.  These events also involve the death (and killing) of humans.  They may also be necessary.  And we can also describe (often accurately) killing individual soldiers as justified; think, for example, the killing of Germans in World War II.

One could describe wars like these -- as we often did (and do) -- as glorious events that we should celebrate with flowery prose.  Or one could describe them as terrible things that we nonetheless do because they are right and just.

I got the feeling from Judge Kozinski's opinion that, at the moment he wrote it, he was in the former frame of mind.  I think it's generally better to be in the latter.

Death is bad.  Even in the service of good.  We shouldn't celebrate it.  Even as we hasten its arrival.

People v. Fulton (Cal. Ct. App. - May 18, 2012)

You've got to read this one.

Here's the teaser:  It's about whether the police can swab your penis without a warrant.

Get your attention?

Read both the majority opinion as well as the dissent, and see which you think has the better of the argument.  (I'll forwarn you that they agree on the merits but disagree as to the application of the rule here.)  To me, when I read the case, I thought the DNA evidence was pretty damning.  But the majority has a point as well.  See which one you find more persuasive.

I'm generally not into people touching my junk.  Swab or no swab.  That said, I did just get on a plane earlier this week, and so the inevitable happened during my pat-down.  So maybe I should just get used to it.

In Re Hunter (Cal. Ct. App. - May 18, 2012)


It's another murder case in which the petitioner has been denied parole after spending several decades in prison.  The Court of Appeal concludes that there's no evidence to support the denial of parole, and hence reverses and remands.

Maybe that's right.  It's certainly possible.  It's not like the California Board of Parole Hearings is very inmate-friendly, after all.  Especially in murder cases.

But in this particular case, I don't know.  I have a sense that the Board might well have been right.

Admittedly, I can't see the guy.  (Though neither can the Court of Appeal.)  Maybe if I'd have seen how he testified and how he handled himself, I'd be persuaded that he really has changed from the person who was heavily freebasing cocaine in the early 80s and who stabbed an eight-month pregnant woman to death to try to get some more cocaine.  He's been in prison for 27 years now, and I'm sure that's changed him.  For the better, most likely.  At around 50, your penchant for senseless killing has probably decreased.  And perhaps your appetite for cocaine as well.

But still.  It's possible that's not the case.  It's possible that once he gets out of prison, he'll go back to hitting the pipe.  And worse.

I like that he's been largely discipline-free while in prison.  I'm not worried about his ability to handle a structured environment.  It's an unstructured one that concerns me.  Plus, I'm profoundly troubled by his refusal to report to work -- and subsequent discipline -- in 2008.  Maybe his story is right and he was worried about violence.  But it's also possible that this isn't the real reason, and he just decided that he was able to decide for himself what's wrong and what's right.  Like his two write-ups twenty years earlier for similar refusals to comply with orders.  Someone who thinks like that reminds me of the person who twenty five years ago decided that he was able to decide for himself whether a pregnant woman and her fetus deserved to live.  The fact that his description of the crime may also continue to be a bit shady heightens these concerns.

So this may be one of those cases where actually looking at someone matters.  Potentially a lot.  And makes me more likely to defer.

On the other hand, the fact that he won't be eligible for another parole hearing for seven years -- when he's 60 or so -- starts to lean me the other way.  That seems too long.  There are, in fact, real reasons to think that he has changed.  Leaving him in prison for nearly another decade without even the possibility of letting him make his case seems unjust.

This may be a case where the harshness of a procedural rule makes one less likely to defer to a harsh result.  Even if the latter might perhaps be justified.

In the end, I don't know.  I just don't know.  Probably he'll be totally fine once let out.  Probably.

Which is a big caveat.

Thursday, May 17, 2012

POM Wonderful LLC v. Coca-Cola Co. (9th Cir. - May 17, 2012)

You apparently can't sue someone -- even if you hire a fancy lawyer -- when they deceptively mislabel their juice product.  That's what the Ninth Circuit holds today.

Okay.  But I'm still not going to drink Minute Maid's "Pomegranate Blueberry" drink.  Which I now know actually contains virtually no pomegranate or blueberry juice, but instead is filled with cheaper apple and grape juice.

Caveat emptor.

Wednesday, May 16, 2012

In Re Green (Cal. Ct. App. - May 16, 2012)

This seems reasonable to me.  But perhaps that's because it's almost definitionally reasonable, as what the Court of Appeal does is to remand to the trial court to do what seems right.  Though I still think that's the correct call.

It's a thorny question with reasonable positions on both sides.  A couple gets married and then divorced.  Prior to the marriage Husband served in the Air Force for four years, and during the marriage served as a firefighter.  For military folks, CalPERS (the state retirement system) lets you "buy in" extra years of service, so during the marriage, the couple used community property to start "buying in" (through installments) an extra four years of service.  That's a good deal, because you "buy in" at a rate corresponding to your current pay but get benefits when you retire at your future (presumably higher) rate of pay.  Makes financial sense.

The problem comes -- as many do -- once you get divorced.  Husband says the extra years are his separate property because they came from his pre-marriage years of service in the military.  He admits that he needs to reimburse his ex-wife for the community money spent buying in (plus interest), but that's it.  The trial court agrees.  But Wife says, no, it's community property, because those extra years were bought during the marriage and you can't transform community property to separate property just by paying back the money.

To its credit, the Court of Appeal realizes that this isn't an easy issue, so it invites the American Academy of Matrimonial Lawyers to file an amicus brief.  Nicely done.  I don't know that I would have thought of that, and I like it.

That doesn't necessarily mean you'll get a uniform answer, of course.  Because, like I said, this is a tough issue.  And indeed that's the case.  The AAML can't agree on the answer, so it files a brief that articulates both sides.  One part says "Yes, it's separate property," and makes the relevant arguments, and the other part says "No, it's community community property," and makes those arguments.  The upside being that you have all the arguments laid out on an issue that affects lots of people -- not just the parties here -- and the downside being that only one of these parts is correct.

The Court of Appeal ultimately holds that the trial court was wrong in characterizing the property as separate, and I tend to agree.  So it remands.  At the same time, the Court of Appeal realizes that the allocation of this property might well be complicated, and so allows the trial court to exercise discretion.  That seems entirely right to me as well.

It's not like the husband doesn't have a good argument.  He does.  His basic take is that (1) he earned the military credits before the marriage, and (2) sure, he "cashed in" those credits during the marriage, but that's essentially circumstance -- he could easily have "cashed in" those credits after separation and obtained the same benefit, so it's not right to call the property entirely community property.  There's some power to that argument.  Even in an area as necessarily artificial and form-bound as this one.

The Court of Appeal responds that the property was necessarily transformed; that once you've rung the bell and transformed your separate property into community property, you can't unring it.  And that's true.  But it doesn't necessarily respond to his point that he didn't really "ring" the bell because his pre-marriage service was always his separate property, even after he activated it with community funds.  All that that requires, he says, is reimbursing the community.

The Court of Appeal has an answer to that, and it's one that's pretty persuasive (as well as backed by precedent).  Justice Sepulveda says that the military credits weren't really "vested" -- thus remaining the owner's separate property forever -- because those credits could have gone away after the marriage.  Maybe Husband would be fired as a firefighter.  Maybe CalPERS would change the retirement plan and no longer allow buy-ins.  Lots of things could happen.  As a result, Husband didn't have a vested contractual right to his purported separate property, so he indeed transformed it during the marriage -- he exercised a "contingent" benefit and thereby made it vested during the marriage, and ergo, it's community property.

There's a lot to that analysis.  It makes a ton of sense.  It supports the Court of Appeal's holding.  And it's especially persuasive in the economic climate in which we live.  Goverment employees are being laid off.  Retirement plans -- especially state pensions -- are being limited.  So, yeah, Husband's benefit was indeed contingent.  So once it became vested during the marriage, yep, community property.

But notwithstanding the power of this doctrinal argument, the proto-economist in me slightly rebels at this conclusion.  It might be overly facile.

Husband essentially had an option:  a financial benefit that he was contractually permitted to exercise.  That option was his separate property prior to the marriage, and it had a certain value -- a value associated with the expected return of an investment that would "buy" years of credit and obtain a future pension return.

That value would not be exactly equivalent in an actuarial sense to the expected return, for precisely the reasons the Court of Appeal articulated.  Husband might be fired.  CalPERS might change the plan.  But despite these potential events, this separate property still had value.  An arms-length buyer would be willing to pay value for these contingent benefits.  Value that would have gone exclusively to Husband.

In that regard, the buy-in rights were no different than any other financial derivative.  Perhaps someone has an option to purchase 100 shares of IBM at $100 until Date X, and acquired this option prior to marriage.  That option has value.  Sure, IBM might never reach $100.  It might even go bankrupt.  Or Date X might pass.  Or the universe might explode.  Things can happen.  But that option nonetheless has value.

Now, with a regular option like this, we give the Husband as his "separate" property the value of the option prior to marriage, and any appreciation in the option during the marriage we split as community property.  An approach that makes sense.

But here, the value of Husband's CalPERS option doesn't really appreciate much during the marriage.  Sure, he exercises the option -- he actually transforms it into a purchase, and thereby obtains contractual rights -- rights that have some value (e.g., avoids the possibility that CalPERS will change the plan, since it now can't do so, at least as to him).  So a willing buyer would now be willing to pay slightly more for these benefits, as they're now more certain.  But that benefit -- that "appreciation" -- is pretty marginal.  And certainly does not equate to the entire value of the option itself, which is what gets split once you call the option itself (the four years of service) community property.  Which is what the Court of Appeal essentially does.

Husband could have exercised the option the day after his separation.  If he'd have done so, he'd have obtained the same benefit at retirement and wouldn't have had to split it with his wife.  Moreover, he was entitled to this option because of activities he performed prior to the marriage.  So you can see the good argument that this separate property didn't really appreciate during the marriage -- at least much -- and thus that it largely belongs to Husband (subject, of course, to a return to the community of any property spent on the actual exercise of the option).

Go back to the IBM option.  Imagine that Husband owns this option when IBM is at $110.  He then gets married, IBM's stock price never changes during the marriage, he exercises his option by buying 100 shares of IBM stock (which are worth $110 each) at his option price of  $100 -- thereby obtaining a $1000 return -- and then separates.  Surely we don't split the $1000 benefit in this example, right?  Even if community funds were used to purchase the underlying 100 shares.  Sure, the community gets reimbursed, but the "option benefit" -- the difference between $100/share and $110/share -- predated the marriage, so is entirely Husband's.  Notwithstanding the fact that IBM stock might have gone down below $100/share, making the option worthless.

That's the best argument, in my view, for Husband's position.  Not that Husband, or the AAML, or the Court of Appeal, puts it that way.  But that's the argument.

I think it's a sufficiently strong argument such that the trial court should have discretion to take that into account when it decides how to apportion the property.  And I see nothing in the Court of Appeal's opinion that would prevent such an approach.  Even though I'm sure the Court of Appeal isn't exactly thinking about the issue this way.  Yes, there's a benefit to exercising an option.  Yes, that turns a contingent event into a certain event.  But the value of that benefit is not equivalent to the value of the underlying transaction.  You have to subtract the value of the preexisting option.

So that's a slightly different approach to this opinion.  One that I also think has merit.  And which parties, and courts, might want to consider.

Because it might make sense economically as well as be equitable.  At least if you're an economist, and maybe even if you're not.

Tuesday, May 15, 2012

In Re B.C. (Cal. Ct. App. - May 14, 2012)

That's right.

R.P. comes forward (after being found) and says that while he doesn't remember the mother of B.C., if paternity testing says he's B.C.'s father, he's willing to do the right thing for the child.  Good for him.

The trial court says:  "Okay, I'll do paternity testing, but you (R.P.) have to pay for it."  Nope.  That's not how it works.  Good job pointing that out by the Court of Appeal.

Let me just say one more thing.  B.C. was eight years old when he was taken from his mother.  She failed to do what she was required to do, and her parental rights were terminated.  So be it.

B.C. is now almost twelve years old.  His mother's out of the picture.  He's never known R.P.  The only father figure in his life is Mr. F, a middle school teacher who's been taking care of B.C. for the past several years and who's willing to adopt B.C. but wants to cut through the red tape.  Indeed, at an earlier point, Mr. F. decided he was no longer interested in adopting B.C. because it was taking too long.  But he's changed his mind, and is interested in giving B.C. a permanent home.

Let's do it already.  We know how this is going to end up.  We know how this should end up.

Let's make it happen.  Sooner rather than later.

People v. E*Poly Star (Cal. Ct. App. - May 14, 2012)

I completely agree with this.

It's a short enough opinion -- around fifteen pages -- that you can read the whole thing for yourself.  Plus it's not even that complicated.  Suffice it to say that when you sell various products to various different entities (including government entities) deceptively you're not immunized from liability under the UCL merely because you've been doing it for a long time.  Even if one governmental entity knew that you were being sleazy many years ago, that doesn't mean that a lawsuit about your sales within the past four years (which is the UCL's limitations period) is barred by the statute of limitations.  Sorry.  Just doesn't work that way.

I also largely agree -- and this seems an obvious point -- that you can't rely upon and cite Court of Appeal cases in which review has been granted.  Why not?  Because there's a rule that says so.  A crystal clear one.  One that neither the appellee nor the trial court seemed to be able to follow.  Something for which the Court of Appeal rightly took them to task.

That said, it's probably permissible to mention an unpublished opinion as "shorthand" for the arguments that are contained therein.  Or at least I don't see the problem with it.  If an opinion mentions Arguments X and Y and Z, and spends 22 pages articulating them, I guess you could simply retype every single word.  (Though maybe that'd be plagiarism!)  But why kill trees without a good reason?  Why not say:  "I know it's not precedent, but I like the arguments at ________."  Whether the blank is filled in by an out-of-state case, a law review article, or a case that's now up in the California Supreme Court.

Similarly, I can understand why a trial court might refer to those arguments as shorthand by referring to the now-unpublished case.  "I agree with X" -- when X articulated Arguments 1 through 20 -- seems a lot faster than saying "I agree with Arguments 1, 2, 3 . . . and 20."  Perhaps that violates the rule.  A rule that in many ways treats various opinions as taboo.  We know they're there.  We all know what they say.  We've all read them and have our take.  But we're not allowed to say.  We just talk around the issue using code words.  Like a crazy aunt at Thanksgiving.

Regardless, the Court of Appeal gets this one right.  And I like the opinion.  A lot.

Monday, May 14, 2012

In Re Bratton (Cal. Ct. App. - Jan. 24, 2012)

This is exactly what people mean when they talk about procedure getting in the way of substance.

Henry Bratton committed a murder when he was 18.  That was in 1974.  He's now 56 years old, having been in prison for nearly four decades.  He obtained parole in 2008, but the Governor reversed the grant.  The judiciary ultimately reversed the Governor's decision as based on insufficient evidence, so Bratton was released.  But not before spending an extra two years in prison based on the Governor's erroneous decision.

So Bratton says that because he served an extra two years in prison, those two years should count against his three-year parole term.  Leaving him only one year left.  After all, he was pretty supervised for those first two years, since he was in prison.

Now, I gotta tell you, I'm not all that inclined towards this argument.  Sure, he's got a claim, and I don't like that he had to spend the extra couple of years in prison just because the Governor feared that any murderer might result in the next Willie Horton advertisement.  At the same time, I have a bad feeling about a dude who committed murder and who's itching to get off parole ASAP.  Have something in mind?  Especially for individuals, like Mr. Bratton, originally sentenced to death.  Makes me nervous.  And more generally, I think there's a reason for a three-year parole term outside of prison.  Because we want to make sure you're okay for a while even when you're largely on your own.

But my facial lack of sympathy with the merits doesn't extend to attempts to ensure that the merits of this position never get resolved.  Which is exactly what happens here.  Bratton files a petition once he's out saying that he's should get credit for his two years, resulting in a one year term rather than three.  That's done promptly, which you'd think was admirable.  But the Court of Appeal holds, nope, that means the action has to be dismissed, because he filed too early.  He admitted that he was validly on parole for a year, and he was still on it when he first filed.  So not actionable.  Even though you know the action was going to take more than a year -- as indeed it did -- and that by the time it actually got resolved, that first year would have expired.  As, indeed, it had.  Sorry.  Filed too early.  Mind you, had you actually filed at the right time, at the end of the first year, your action would probably be moot by the time the Court of Appeal got around to it, since the three years would then have expired, so we'd dismiss it on that alternate ground as well.  Can you say "Catch-22"?  I thought you could.

But not willing to rely entirely on that, the Court of Appeal also says that Bratton failed to exhaust his administrative remedies in any event.  Never mind that we know to a legal certainty what the Parole Board would have said about Bratton's claim that he was entitled to credit for two years.  They'd have said no.  Just like the Attorney General says on appeal.  Tough.  We demand that you do it.  Because you can't "prove" that they'd say no.  Never mind that we all know it.  What, you say?  But that'd simply add even more time to the process, and make even more certain that the three years would have expired by the time the case got resolved in the Court of Appeal?  Tough again.  That whole -22 thing.

It's not that I don't understand the reasons because the exhaustion and ripeness requirements.  I do.  Truly.  They're valuable in many settings.  But they also occasionally impede rather than advance justice.  In settings precisely like this one.

And I wish the Court of Appeal would at least recognize that fact more than they sometimes do.  Even -- and perhaps especially -- when it doesn't change the ultimate result.

Friday, May 11, 2012

People v. Smith (Cal. Sup. Ct. App. Div. - May 2, 2012)

Let's test your knowledge.  You know what a "wobbler" is, right?  What's a "wobblette"?

You can probably figure it out from the context.  A wobbler is an offense that can either be a felony or a misdemeanor.  A wobblette is an offense that can either be a misdemeanor or an infraction.

I didn't know until today that the latter existed.  But apparently it does.

The interesting thing about a wobblette is that the decision regarding how it's charged is up to the defendant, not the prosecutor or the court.  At least in part.  Generally, being charged with an infraction -- colloquially, a "ticket" -- is better for the defendant.  No jail time.  Less exposure.  Happiness.  But it also means that you give up certain rights; for example, the right to a jury trial.  There are circumstances in which you might not want to do that.

For that reason, the Appellate Division rightly holds that a defendant has the right to be informed at his hearing that he has the right to have the offense heard as a misdemeanor if he wants.  He's giving up constitutional rights if the case proceeds as an infraction, after all.  He might well be fine with that.  But he's entitled to be told that he has options.  And not be told, as here, that he affirmatively does not have the right to a jury trial.  That's right as far as it goes.  But he's also got the contrary right to have a jury trial if he wants to go the misdemeanor route.

Didn't know about wobblettes.  Happy to hear about 'em.  Happy that the Appellate Division rightly decides the appeal.

Thursday, May 10, 2012

In Re Collins & Flowers (Cal. Ct. App. - May 10, 2012)

This is obviously going to be a nightmare to resolve:

In 1993, Karen Brockmann deeded the house to Vicky Craig and James Powe, and about a month later they deeded the property to "Elijah Flowers, an unmarried man and, [¶] Joseph J. Flowers, an unmarried man as tenant and [¶] Karen Brockmann, an unmarried woman as tenant." The next day, Brockmann gave her interest to Elijah "an unmarried man" and Joseph "an unmarried man as tenant."

In 1995, Joseph and Tamara Flowers (Elijah‟s wife) signed quitclaim deeds to "Eligah [sic] Flowers, a married man, and Agustus [
sic] Collins, an unmarried man" and those deeds were later recorded.
In 1996, a deed of trust was recorded in favor of a federal court, covering the instant property, from "Eligah [sic] Flowers and Agustus [sic] Collins," and two other properties from "Eligah" and Tamara Flowers.

Andre testified that after Elijah died in 1997, no probate was opened because the family assumed the house belonged to Augustus, and that when Augustus died in 2003, "I don‟t know what his estate did." Before Augustus died, he became unable to care for the house and Andre discussed acquiring it from him. In his deposition, Andre conceded he realized that the failure to probate Elijah‟s estate earlier complicated matters.

A forged grant deed recorded on May 3, 2004, purported to transfer the house from "Agustus [sic] Collins, unmarried man, and Elijha [sic] Flowers unmarried man" to McIntyre.

Andre testified he had never heard of McIntyre until he received a utility bill or tax statement with her name. On June 23, 2004, not long after McIntyre‟s deed was recorded, Andre recorded a verified mechanic‟s lien on the property, for $75,000. The lien was defective because Andre did not have a contractor‟s license and had not served a preliminary notice of lien, despite his false declaration to the contrary. Further, Andre listed only Augustus as the owner--omitting Elijah--and failed to mention that both owners had already died.

On August 16, 2004, Andre and Hennessy Flowers (Andre‟s half brother), represented by attorney Robert Enos, filed a complaint to quiet title in them,
in part alleging the deed to McIntyre was forged. Andre verified the complaint. On November 17, 2005, the case was dismissed by a minute order stating "Attorney of record/party failed to appear[.]" Andre states he failed to appear due to his incarceration but there is no explanation why Hennessy did not appear, although Hennessy had been named as a coplaintiff "just in case anything was to happen to" Andre.

Andre denied that he rented the house to the Bovets and testified a rental agreement dated August 1, 2006, bore his forged signature. The agreement called for a $1,400 deposit and monthly rent of $1,200. However, the trial court found Andre did sign that agreement.

A deed from McIntyre to defendant Dancy was recorded on September 21, 2006. Andre testified he had never heard of Dancy until Dancy requested access to the house for a loan appraisal. Dancy gained entry with the aid of the police, and then tried to evict Andre.3 The house was later damaged by fire.

Andre did not seek appointment as administrator until after Wachovia loaned Dancy over $175,000 in January 2007. Andre claims he first learned the loan went through when he saw a June 25, 2007 filing in Dancy's eviction action, and "took swift action" by filing the instant probate petition on July 13, 2007."

You couldn't screw things up more royally if you tried.

The opinion is all about unclean hands, and applies it neatly.  Check it out.  It's a case where equity actually makes sense rather than simply confusing things.

U.S. v. Dorsey (9th Cir. - April 30, 2012)

When you're going to shoot into someone's apartment to try to dissuade them from testifying against you, don't try to manufacture an alibi by conveniently calling a police detective at the exact time of the shooting telling him that you're somewhere else.  It'll just sound fishy.  It won't work.

But if you ignore my advice and do it anyway, definitely don't use your cell phone to do it.  Because they have these things called cell phone towers that know roughly where you called from.  And if you claim to be located at X but you're in fact at Y, we'll know you're lying.  And if Y, as here, just so happens to be very near the scene of the shooting -- well, you'll have many additional years in prison to think about doing a better job covering your tracks next time.

Wednesday, May 09, 2012

Sulla v. Board of Registered Nursing (Cal. Ct. App. - May 5, 2012)

I agree with Justice Needham that it's not this case.  As to this case, I'd probably sign onto what Justice Needham has to say.  Though I'd probably be somewhat less strident and more openly cogizant of the deficiencies -- and potential irrationality -- of the underlying disciplinary regime.

So in this case what happens here seems okay.  The nurse (Anuncio Sulla) gets put on three years of probation, with revocation of his license stayed, for having hitting a median while DUI.  It sounds like Mr. Sulla is a wonderful nurse with no real alcohol problem, but nonetheless made a bad decision.  He should pay for that decision, and he's doing so.  Three years of probation on his nursing license.  Which matches the three years of probation he got for pleading guilty to the DUI.  Makes sense.  You want to both deter such misconduct as well as keep an eye on the offender to make sure there aren't other problems.

But while the present case might have turned out fine, I think that Mr. Sulla's counsel does make some very good points about the underlying disciplinary regime itself.  For example, a nurse can have his license taken away for any criminal misconduct involving alcohol even if it has nothing whatsoever to do with his abilities or performance on the job; e.g., you can lose your ability to ply your occupation forever if you have an open wine bottle in your car.  That doesn't seem right.  Similarly, nurses can lose their license on the very first such offense, but doctors can only lose their license on their second offense.  That seems flatly wrong.  Justice Needham says that doctors and nurses may not be similarly situated, and I somewhat agree, but not in the same direction:  it seems like we have a much greater concern when doctors might have an alcohol problem, so the harsher penalties for nurses does indeed present real problems for me.  So I think the equal protection concerns, despite the fact that (as Justice Needham holds) they're not really presented here, are real, as well as worthy of profound consideration in an appropriate case.

But here, what the ALJ did was an appropriate resolution.  So I'm on board.

Tuesday, May 08, 2012

Aleksik v. 7-Eleven (Cal. Ct. App. - May 8, 2012)

I get what Justice McConnell is saying here.  Yes, the employees worked at 7-11, and yes, all franchises were required by 7-11 to use 7-11's payroll system.  But that doesn't mean that 7-11 is liable for errors in the payroll process.  Even systemic errors.  If there's a problem, maybe you can sue your employer.  But not 7-11.

That's an understandable point.

It's also colored, I imagine, by the underlying substantive claim.  Which lots of people would find trivial.

Plaintiffs contend that 7-11's payroll system shorts its workers.  That's a serious charge.  It's also totally correct; indeed, essentially undisputed.  Employees have to "clock in" at 7-11 electronically, and 7-11 then calculates the number of hours they've worked.  That's all fine.

But 7-11 ignores all hours after two decimal places.  So if you work 7.353 hours, you only get paid for 7.35.  You lose the .003.

So that's wrong.  But not much.  For example, 7-11 hired an economist to pull 158 random employees, and found out that only 348 pay periods were truncated.  Still, that's 348, right?  But of those 348, 336 involved no difference in pay even after truncation.  (That's the benefit, I imagine, of paying almost all of your people minimum wage and having them work part-time.)

That leaves, however, eight employees who were shorted for twelve total time periods.  How much pay did they lose?  An average of 4 cents per week.  With the largest loss in the sample of less than fifty cents.

So you can see why the trial court and the Court of Appeal probably aren't that excited about the case.  Who cares?!

That said, I must admit that I'm baffled as to why 7-11 elects to truncate the decimals rather than round them.  Sure, you could say that it's administrative ease.  But it's all computers.  You can round just as easily as truncating; indeed, probably more so.  And I'll bet dollars to Slurpees that 7-11 makes sure to round lots and lots of figures -- including the amounts it charges customers at the gas pump -- rather than truncate the numbers.  A penny here and a penny there, after all, adds up.

So I must say that I'm sympathetic with the plaintiff here.  And think that maybe claims like this are precisely why we have class actions.  Maybe there's only $1000 (or $10,000, or whatever) at stake.  But if people are getting ripped off for that amount, and its easy to do the right thing (as it is here), that seems like something we'd want to remedy.

The Court of Appeal holds that maybe plaintiffs can go after the individual employers -- the franchises.  Okay. 

Mind you, at that point, we're talking about maybe $10 per store, so I'm not sure it's economical.  But that's apparently what the law requires.  Which means that there's no remedy.

Which I'm not too sad about.  If 7-11 changes its policy.  But I gotta say that if, even after this action, 7-11 kept calculating pay this way, I'd be more than willing to slam them.

Because it's wrong.  Even if it's only a quarter.

Monday, May 07, 2012

People v. Dunn (Cal. Ct. App. - May 7, 2012)

If you give an eight-year old syphilis, you may well go to jail for 25 years to life.  At least down here in San Diego.

I won't comment much on syphilis counting as "great bodily injury" notwithstanding the fact that we're no longer in the seventeenth century and accordingly can successfully treat it relatively easily.  The term "great bodily injury" essentially means "any bodily injury" here in California; so much so that defendant does not even contest the point.  Words can sometimes mean the exact opposite of what normal people think they might mean.  Such is the case here.

The only reason the case is worthy of mention -- other than serving as a valuable reminder not to molest children -- is because the defendant's principal contention on appeal is that a mistrial should have been declared because his retained expert witness, Dr. Lynne Ticson, didn't show up for the trial.  What kind of expert witness accepts a case and then says "Oh, well, sorry, I'm not going to be able to make it; I'm on vacation that day?"  Especially in a case in which the defendant faces exposure of 25 to life?  Seriously?

Plus, I get that Dr. Ticson allegedly gave defense counsel the runaround (not answering the phone, etc.), but what kind of defense lawyer refuses to respond to these events by (1) not serving a subpoena on the expert, and/or (2) asking for a continuance from the trial court?  Seems to me like these are two fairly obvious solutions.

I agree with the Court of Appeal that there's no reason to reverse the conviction here.  But that doesn't mean that what transpired below wasn't -- let's put it nicely -- suboptimal.  Because it was.

To reiterate:  Don't molest children.  Don't give them syphilis.  Understood?

Maldanado v. Superior Court (Cal. Supreme Ct. - April 23, 2012)

Check out Justice Liu's concurrence (joined by Justice Werdegar) in this case.  And you'll see an example of why conservatives didn't want him on the Ninth Circuit.

Friday, May 04, 2012

People v. Myles v. Livingston (Cal. Supreme Ct. - April 26, 2012)

Two different murder cases.  Two different death penalties.  Two different direct appeals to the California Supreme Court.

Decided on the same day.  Same result.  Convictions and death sentences unanimously affirmed in both cases.

So it's a race to see whether John Myles gets to die first or whether David Livingston will beat him to the needle.

Assuming, of course, that California voters don't vote in November to repeal the death penalty and replace it with LWOP.

Thursday, May 03, 2012

People v. Thomas (Cal. Supreme Ct. - May 3, 2012)

What sorts of things do you keep in your storage locker at Derrel's Mini Storage?  Just keepsakes and momentos.

A backpack.  My high school diploma.  Some cash -- okay, $13,000 -- in the backpack.

Oh, yeah.  And 2.3 pounds of cocaine.

You know.  Just the essentials.

Estate of Morgens v. CIR (9th Cir. - May 3, 2012)

"This case presents the question whether gift taxes paid by the donee trustees of a Qualifying Terminable Interest in Property (QTIP) trust, based on a 26 U.S.C. § 2519 deemed inter vivos transfer of the QTIP property within three years of the donor’s death, must be included in the transferor’s gross estate under the so-called “gross-up rule” of § 2035(b)."

Duh!  Who doesn't know the answer to that question?!

Hello?!  It's a QTIP.  (No, not the ones that go in your ear.)  It's 2519 and 2035(b).  The gross-up rules, silly!  It's so simple, maybe you need a refresher course.

The answer, of course, is yes.  Obviously.

Who has these problems?  Just your ordinary 26-year old.  To be more precise, your ordinary 26-year old who marries the former president and CEO of Proctor & Gamble from 1957 to 1974, once he dies of a heart attack at age 89.

And I know what you're thinking.  "Gold-digger!"  Because Judge Bea's opinion mentions that Anne Morgens married Howard when she was 26, but doesn't mention the date they were married.

Which is relatively easy to find out.  The two were married for . . . 65 years.

Plus, it's not really the former 26-year old's problem anyway.  She died two years after he died.  Which which what caused these tax "planning" (read: avoidance) issues in the first place.

The Ninth Circuit gets this one right.  You can't do some tricks on your death bed in order to decrease your estate tax.  Sorry about that.  But Congress knows the scoop.  So do judges.  And now, so do we.  Even if the words QTIP and gross-up continue to mean something different to tax practitioners than they do to normal people.

Wednesday, May 02, 2012

Husain v. McDonald's Corp. (Cal. Ct. App. - April 30, 2012)

If you've ever eaten at a McDonald's in Marin County -- and I express no judgment on this issue -- and wanted to know more about the franchise at which you dined, here's an opinion for you.

Who knew that these things were so complicated (and expensive)?

Lewis v. Fletcher Jones Motor Cars (Cal. Ct. App. - April 25, 2012)

I feel pretty confident that Fletcher Jones Motor Cars is going to win the underlying case.  Despite the fact that they lost their motion to compel arbitration below, as well as the resulting appeal from that ruling.

It also sounds like their lawyers are going to continue to scorch some earth during the process.  As they have already.

Notwithstanding my predictions of victory, their counsel don't come out smelling very pretty.  Not only do they lose (twice) and run up legal fees (on both sides), but their arguments on appeal are -- to be frank -- super weak.  Lame, even.
I'm also not the only one who noticed it.  Justice Aronson writes an opinion that makes pretty clear the many deficiencies of Fletcher Jones' arguments.  And misreadings of cases.  And silliness.

No shrinking violet, that one.

Tuesday, May 01, 2012

Ginsberg v. Gamson (Cal. Ct. App. - April 30, 2012)

Here's a multiple choice question for you:

Parties enter into a lease for a commercial retain premises.  The initial lease term is for five years, but an addendum to the lease also gives the tenant the option (if there's no default) to "extend the Term of this Lease for 5 (FIVE) YEARS additional FIVE year periods upon the same terms and conditions herein contained."  Note the "s" at the end of the word "periods".  This provision also refers to "each option term" -- presumably meaning there may be more than one.

The rent payable for any additional term(s) under the lease is to be calculated by using the consumer price index for 1996 over the CPI for 2001 times $3,000, and then next to this equation the word "(etc.)" appears -- presumably meaning that future terms will have an adjustment of 2001 over 2006, etc.

The parties renewed the lease for one five-year term, and then the tenant tried to renew for another five-year term, but the landlord refused.

Which of the following is the correct interpretation of the lease:

(A)  The lease only permitted one extension of five years.
(B)  The lease permitted multiple five-year extensions (subject to a statutory cap of 99 total years).
(C)  It is unclear whether the lease permitted multiple five-year extensions; the lease did not "by express terms or clearly by implication" permit multiple extensions.

The Court of Appeal concludes that the correct answer is (C) -- reversing the trial court's contrary ruling at a bench trial -- and that accordingly, the result is (A).


People v. Cornett (Cal. Supreme Ct. - April 30, 2012)

English is a funny thing.

Let me start by saying that I think I know what it means to be "18 or older."  It means you're either age 18 or older.  In short, that you've had your eighteenth birthday.  We can all probably agree on that.

But what about when it's the reverse?  I still think I generally know, but it's harder.  Imagine that you can't do something if you are "age 18 or younger."  Well, I think that means that if you're 18, or 17, or 16, etc., you can't do it.  You've got to have had your nineteenth birthday.

But what if it's slightly different:  What if a statute applies only if someone is "18 years of age or younger?"  That might well mean the same thing.  But it might potentially mean something slightly different.  One might read such wording to mean that once you hit 18, you're free:  in other words, that you're only exactly "18 years of age" on your birthday, and so the statute only applies if it's on that day or before then.

Context may thus matter a lot.  At least when we're using conjunctive or disjunctive language.

Let's then talk about an actual case.  This one.  One in the California Supreme Court.  What does it mean when a statute says that a defendant gets punished more severely if the victim is "a child who is ten years of age or younger?"  If the kid's ten-and-a-half, does the statute apply?

The Califronia Supreme Court unanimously reverses the Court of Appeal and holds that, yeah, ten-and-a-half is ten years of age or younger.  It adopts a very simple interpretation of the words.  To phrase it differently than the court did (but equally accurately), the term "ten years of age or younger" is simply disjunctive.  You can be ten or younger.  We commonly call ten-and-a-half year olds "ten".  Simple.  End of story.  Staute applies.

That version has a lot of truth to it.  To be honest, when I read the words, that's what they mean to me too.  If a ride at Disneyland says to need to be "ten yeas of age or younger" to ride it -- think, Teacups -- then I'd be pissed if they didn't let my ten-year old daughter (let's call her "Sierra") ride it.  I'd think she was entitled to ride.

But I'm not sure that's entirely dispositive of the matter.  Let's go into a little bit more detail.

Because, as I said, context matters.

The California Supreme Court understood that the statute was ambiguous, so looked at the legislative history.  Several pieces of which said, essentially, that the victim had to be nine years old or younger.  Exactly what the defendant said.  But the California Supremes said that this language isn't dispositive, and that the context that matters instead was the fact that this was anti-molestation language and hence was probably intended broadly.

I agree with the former but not the latter.

I agree that the legislative history isn't conclusive.  Yes, some people said the victim had to be nine or younger.  But they could easily have been talking loosely.  Staffers often aren't precise.  Legislators often use shorthand.  We shouldn't be overly distracted by what they say when we have a sense -- as I do here -- that they may be subject to these imperfections.

At the same time, I think the court here puts far too much weight on the anti-molestation context in which the statute was passed.  Did I think the Legislature wanted to protect child molesters?  Uh, no.  Duh.  But that doesn't necessarily mean they intended the most anti-defendant version of words that we can imagine.  They might still have meant that a line be drawn in one place rather than another.  The fact that they -- like the court -- doesn't have a soft spot for child molesters doesn't answer the question.  Doesn't even necessarily shed much light on it.

So what context do I think might matter?  One that the court never mentions.  The fact that the number the Legislature chose was ten.

Why ten?  Why are you punished more when the child is "ten" or younger?  We're not talking about an age we're all used to -- sixteen for driving, eighteen for voting, twenty-one for drinking.  Indeed, ten is not even the age we typically refer to when we talk about a kid hitting puberty or being a "kid".  That's generally twelve -- the last age in which you're not a "teenager".  If the Legislature said (as it does in many statutes) that you can't do X if you're "twelve years of age or younger," I find it very plausible to think that what they meant is that you should only be able to do it once you're a teenager.

So what's so special about ten?  Easy.  It's the first number with double digits.

The Legislature wanted to really slam child molesters who touched really small kids.  Where should we draw the line?  Thirteen?  Twelve?  Eleven?  When is it really, really bad?

You can't answer that question precisely.  So we use shorthand.  And here's an easy one:  It's really, really bad when the kid doesn't even have double digits in his age.  If he's six.  Eight.  Nine.  Wow.  You get to spend forever in prison.  Whereas if he's eleven or she's thirteen or whatever, sure, you get to spend forever in prison too, but not forever and a day.

So it seems plausible to me that in this context, that's what the Legislature meant by "age 10 or younger."  What they really meant is that the statute doesn't apply after the victim has hit double digits.  But the Legislature being the Legislature, they used imprecise language, and we're left to figure out what they meant.  And what they might well have meant is to punish extra hard people who molest people younger than ten.  Victims with single digit ages.

Am I certain that I'm right?  Of course not.  But it does explain the year they chose.  Indeed, may well explains it better than any alternative explanation.  Under the interpretation adopted by the court here, the Legislature essentially set the cutoff date at 11:  lesser penalties once the victim has her eleventh birthday.  That seems a weird age, huh?  Eleven is not an age we usually choose.  Or which we view as a "dividing line" in any meaningful way.  Either in statutes or elsewhere.

So what should you do?  One way to resolve ambiguities like this is to apply the rule of lenity.  To resolve the interpretation in favor of the defendant.  But get real.  We're not going to do that when the beneficiary is a child molester.  Or, truth be told, virtually any criminal defendant.  So we almost never find this principle dispositive.  And the California Supreme Court certainly isn't going to start doing otherwise here.  And doesn't.

Let me reiterate for the nth time that molesting kids is bad.  Let me also remind everyone that I have four kids of my own.  At least three of whom are "age ten or younger" -- four, if you adopt the court's definition here.  So I'm sympathetic to what the court's done here.  In addition to the fact that, on first glance, I gotta admit that I thought they were probably right.

But I've thought more about it now.  And the more I think, the less sure I am.

Sometimes first impressions lead one astray.  I wonder if that's the case here.