In Re Destiny S. (Cal. Ct. App. - Oct. 31, 2012)

You read lots of cases in which DCFS is way, way too late in taking a child away from abusive parents.

And then there are cases like this one.

The Court of Appeal gets this exactly right.  Destiny S. belongs with her mother.

Happy Halloween, Destiny.

Ayyad v. Sprint Spectrum LLP (Cal. Ct. App. - Oct. 29, 2012)

These are the best lawyers that Sprint can hire in a huge, multi-million dollar (and successful) class action case?  Seriously?  And those lawyers -- from McGuireWoods and Kelley Drye -- can't file a brief better than the the one they filed here?  Really?

The Court of Appeal finds it pretty stunning that Sprint's arguments (and briefs) are so bad.  So do I.  This was an appeal -- and argument -- with absolutely zero chance of success, that that pretty much completely ignored fundamental principles about jurisdiction on remand and law of the case.  How a bunch of sophisticated lawyers could overlook this stuff -- deliberately or not -- is beyond me.  Nor do I see why it benefits their client to file an appeal that has no chance of success and that only serves to increase the number of hours for which class counsel gets to recover once they file their attorney fee motion.  Particularly since -- if I had any say -- class counsel would highlight in any such motion the Court of Appeal's opinion here and its repeated reference to what a fundamentally silly appeal this one is.  It demonstrates concretely both that defendants have needlessly multiplied the litigation and that a multiplier on fees might well be appropriate.

Sometimes the wisest course as a lawyer is to decide what battles not to fight.  Here's a perfect example.

Tuolomne Jobs & Small Business Alliance v. Superior Ct. (Cal. Ct. App. - Oct. 30, 2012)

When you write an opinion that creates an express conflict with another opinion from the Court of Appeal, you'd better write a pretty good one.  Especially when, as here, it involves a fairly important issue, and hence one that the California Supreme Court's likely to take up after you create the split.

Justice Wiseman does exactly that.

I wouldn't at all be surprised to see the Cal Supremes take this one up and adopt Justice Wiseman's view.  Projects that are approved by the voters in a voter-sponsored initiative are exempt from having to prepare an environmental impact report.  But having fifteen percent of the voters sign an petition to get an initiative on the ballot, and then having the City Council adopt the initiative as a statute in lieu of an election, isn't the same thing.  That doesn't create an exemption.

Fink v. Shemtof (Cal. Ct. App. - Oct. 24, 2012)

I'm glad that Justice Fybel decided to publish this opinion.  I think it meets the definitely meets the standards for publication.

Despite the fact that I'm tentatively of the view that the Court of Appeal got it wrong.

I'm not sure that the statutes relevant to the issue are particularly controlling.  Instead, I think we're dealing with a classic common law issue:

Is it okay for an individual who is not an attorney (1) to buy a claim from someone, and (2) then litigate that claim in pro per?

Clearly step (1) is okay.  My students are often surprised when I tell them that most rights under a lawsuit can be bought and sold.  But it's true.  We commonly sell intangible rights -- contractual and otherwise -- so that we permit individuals to do the same as regards rights against a third party seems fine.

But step (2) is troubling, at least when combined with (1).  What you essentially have there -- and what, in truth, you have here -- is someone who's a nonattorney acting as an attorney.  X has a right, but doesn't want to (or can't afford to) enforce it in court.  Similarly, X doesn't want to (or can't afford to) hire an attorney, on contingency or otherwise, to enforce those rights.  So along comes Y.  Y's not an attorney, so can't enforce X's rights on X's own behalf.  So X and Y (in truth, Y, who's motivating all of this) come up with a practical expedient.  X sells his rights to Y, who then enforces them in pro per.  Bingo.  Problem solved.  Y gets to in essence act as X's attorney, but since Y's now acting on his "own" behalf, it's okay.  At least according to the Court of Appeal.

Again, I'm not sure that Justice Fybel reads the statutes the wrong way, but I think there's an easy solution to this problem, and one that the Court of Appeal decides not to follow.  Courts have an inherent power -- one that's embodied in the separation of powers -- to control litigants before them, including but not limited to the inherent power to control representative and pro per litigation.  I think it's a bad idea to allow litigants to get around the unauthorized practice of law statutes by permitting devices such as those employed here.  So I'd be inclined to hold -- contrary to what Justice Fybel does -- that even though an individual is entitled to buy intangible legal claims, that doesn't necessarily create a right to litigate those claims in pro per.  Get a lawyer and we'll allow you to litigate them.  Otherwise, even though the assignment is valid (and I'd so hold, for the same reasons that Justice Fybel does), that doesn't mean that you're inherently authorized to litigate by yourself.  The two are related issues, but subject to differential control.  We have inherent power to regulate participation before the judiciary.  And I'd utilize that power to deny the validity of pro per litigation over claims obtained in such a fashion.  Precisely for the reasons identified by the trial court.  Because we don't want nonattorneys -- e.g., disbarred attorneys, suspended attorneys, people who failed out of law school or who couldn't pass the bar -- getting around their disability through precisely the machinations demonstrated here.

Which is exactly what the Court of Appeal allows.  And that, after this opinion, should only be expected to increase exponentially.

So I'm glad Justice Fybel publishes the opinion.  The opinion indeed makes relevant -- and important -- law.

But if I were on the California Supreme Court, I'd grant review.  And reverse.

Laurel Park Community LLC v. City of Tumwater (9th Cir. - Oct. 29, 2012)

This may well be the most well-written opinion I've read this year.  (And I've read a lot.)

I'm not talking about substance.  Though that's good too.  I'm more focused on the writing.  The organization, the sentence structure, the way the introduction sets up the analysis, the flow:  all of these are accomplished masterfully.

I could not have written an opinion that was even a third as good.  Really:  Well done, Judge Graber and chambers.  An outstanding, outstanding job.

(The case, by the way, is about zoning mobile home parks and whether it's a taking.  I've read two or three dozen opinions about this topic over the years, and none have even approached the clarity or the persuasiveness of this one.  And I say that having no strong feelings either way about the merits.  The opinion is outstanding not because it reaffirms my preexisting prejudices, but rather because I can tell a well-written opinion when I read one, and this is definitely it.)

The one caveat I'll make -- if only because I'd otherwise be gushing -- is that the very end of the opinion (the portion about spot zoning) wasn't as good as the rest of the opinion.  That part seemed rushed and overly conclusory.

So nothing's perfect.  Not even this opinion.

But it comes darn close.

People v. Delgado (Cal. Ct. App. - Oct. 26, 2012)

Congratulations, Mr. Delgado.  The Court of Appeal rejected the Attorney General's argument that your appeal should be dismissed because you're not allowed to appeal the sole issue of custody credits when you haven't raised the issue below.  Huge victory.

Oh.  One more thing.  The Court then ruled against you on the merits.

In Re Maricela (Cal. Ct. App. - Oct. 25, 2012)

You think your daughter doesn't respect your authority and is occasionally "out of control"?  Compare her to Maricela H. to get a sense of just how worse it could be:


"Maricela was born in 1995 to mother and C.H. (father). . . . Mother had no control over Maricela, who would come and go as she pleased, without telling mother her plans.  Mother did not know what Maricela was doing.  Maricela associated with 'the wrong people,' as she put it, used drugs, drank, and fought.  She stopped going to school.  In 2010, when 15 years old, Maricela gave birth to a child.  Her relationship with the baby's father involved methamphetamine abuse and domestic violence.  Mother provided the baby with a home.

Mother tried to control Maricela by talking to her.  She enrolled Maricela in an independent study program and kept her at home.  However, Maricela frequently ran away for days at a time and continued engaging in risky, self-destructive behavior.  She chased after older men, had unprotected sex, and used drugs and alcohol.  Against her better judgment, mother gave permission to Maricela to go out with a girl, and Maricela did not return for two days.

When Maricela left home on September 16, 2011, mother filed a police report and called the Department of Children and Family Services (Department) because Maricela threatened to take the baby from mother‘s care.  The Department detained the baby and offered Maricela a voluntary placement and services plan.  Maricela was placed in a group home in Pasadena, was enrolled in school, and agreed to participate in counseling and a substance abuse program.

Maricela stated she wanted to change and follow her program, but she continued abusing drugs, fighting, disregarding rules, and running away.  On November 8, 2011, she ran away from the group home to the alleys of Los Angeles after she had assaulted two peers and a teacher."

Yikes.

Let's let CS&N deliver a more uplifting message.

People v. BNSF R.R. (Cal. Ct. App. - Oct. 16, 2012)

The California Public Utilities Commission passed an order that essentially says that railroads can't block an intersection for more than 20 10 minutes (!) without a good reason. You can see why.  It's a big hassle for automobiles/passengers/pedestrians to wait at a train crossing for a long, long time.  It may even be a safety issue.  Can you imagine how bummed you would be if you were in an ambulance on the way to the emergency room and had to spend a half hour or so at a train crossing?  Bummer.

But the Burlington Northern Santa Fee Railroad occasionally violates that rule.  Sometimes it blocks intersections for as long as two hours (!).  Fairly regularly, even.

Eventually, the City Attorney of Richmond got fed up, and filed a misdemeanor complaint against BNSF for violating the order.  BNSF was convicted and sentenced to pay a fine of $1000.  But BNSF wasn't done.  It filed an appeal.  Paying far more than $1000 on attorney's fees.  For the principle of the thing.  The principle of getting to block street traffic for hours at a time and not letting the state do anything about it.

The Court of Appeal agrees this is a valid principle.  Reversing BNSF's conviction on grounds of federal preemption.

Those pesky states.  Always getting in the way of progress.

People v. Jackson (Cal. Ct. App. - Oct. 24, 2012)

This makes total sense.

Just because your marijuana collective is huge -- here, 1600 people -- doesn't mean that it's not a legitimate collective.  The trial court's contrary holding gets it wrong.  So the Court of Appeal is required to reverse the conviction.

But Justice Benke's opinion is equally right that the size of the collective is relevant to whether it's a legitimate collective or instead merely operates to make money.  So a jury could legitimately find that the size of the collective made it more likely that it was designed for profit rather than merely to give a means for members of the collective to obtain access to their medicine.  As a result, a trial court should instruct the jury accordingly on remand.

I think that's exactly right.  A jury could decide that it's a fake based on the number of participants.  But a jury could reasonably go the other way as well.

(Ditto, by the way, for the presence/absence of financial records, corporate minutes, etc. All of this is relevant to whether it's a legitimate medicinal enterprise.)

In Re Marriage of Barth (Cal. Ct. App. - Oct. 22, 2012)

Jeffrey Barth gets divorced from his ex-wife, and she wants child support.  She files for divorce in Ohio, and Jeffrey litigates for years -- including a trip to the Ohio Supreme Court -- in his successful claim that Ohio doesn't have jurisdiction, and that the matter has to be litigated in California instead.

But once the case eventually gets to California, the California courts order child support payments that are way higher than those ordered by Ohio.  Way.

Because Justice Moore is slightly older -- and perhaps more sophisticated -- than I am, here is how she introduces her opinion in that case:

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it."  Dropping a footnote to a fable by Aesop from the sixth century, B.C.

Pretty fancy.

But younger readers might have even more readily understood a more contemporary reference.  They don't read Aesop.  They watch American Idol.  So they'll easily understand the following equally-apt reference, from Chris Daughtry's bestselling song Home:

Be careful what you wish for.
'Cause you just might get it all.
You just might get it all.
And then some you don't want.

I think that the Daughtry reference is especially applicable because he's talking about going home.  Which is precisely what Jeffrey wanted:  litigation in his home state.  Which he got.  And then something he definitely didn't want.  Including but not limited to the resulting opinion from the Court of Appeal.

Martinez v. Robledo (Cal. Ct. App. - Oct. 23, 2012)

Pets rule.  At least according to the Court of Appeal.

The traditional rule is that you determine a plaintiff's loss by the market value of the property.  As a result, when your pet -- the market value of which is often zero -- gets injured, you're simply out of luck.

But times are changing.  And they're not going back.

The Court of Appeal has now decided a couple of cases that hold that you can recover even tens of thousands of dollars in vet expenses if your animal is injured and actually incur those expenses, and can do so even if those expenses exceed the market value of the animal.

Because pets are different.

How far this will eventually go remains to be seen.  Right now we're just talking about out-of-pocket expenses being "reasonable" even though they exceed market value.  Whether, in the future, you can recover for emotional distress, loss of consortium or the like remains indeterminate.

But it's a big step just doing what the Court of Appeal is now willing to do.

Animal law.  Not just dog bite cases anymore.

Chesbro v. Best Buy (9th Cir. - Oct. 18, 2012)

From the "No Duh" files:

You can't get around the prohibition on commercial robo-calls by saying that you're calling your customers to "remind" them that their coupons or gift certificates may expire.  There's a reason you're calling them, and it's not simply because you're nice.  It's because you want them to buy stuff at your store.

That's covered.  No robo-calls.  Dismissal of complaint reversed.

Center for Biological Diversity v. BLM (9th Cir. - Oct. 22, 2012)

Freaking Ninth Circuit.  Don't they know that gasoline is five dollars a gallon!

A natural energy company wants to build a natural gas pipeline from Wyoming to Oregon.  Create jobs.  Supply energy.  Heat homes.  Yes, in the midst of its 678 miles, it's going to inevitably cross some rivers and streams.  Two hundred and nine of them, to be exact. 

And, yes, constructing the pipeline will inevitably cause some damage to the wildlife that calls those streams homes.  Especially to some crazy species I've never heard of before -- perhaps because they are so uncommon as to be threatened and/or endangered -- like the Lahontan cutthroat trout, the Warner and Lost River suckers, the Modoc sucker, etc.

But the federal government nonetheless approved the pipeline, holding -- after exhaustive review -- that the project wouldn't actually make any of these species extinct.  Sure, there would definitely be some incidental disruptions while they dug through the streams, and yes, a tiny number of late-born little ones would surely die.

But that's the price of progress.  Everything we do is going to kill something.  And need I remind you:  Gas is five dollars a gallon.  People need to heat their homes.  Electricity needs to be generated.  The pipeline makes sense, which is why it gets approved.

Of course, the inevitable muddle-headed tree-huggers file suit.  But the district court dismisses the action, finding that the federal government's approval was far from "arbitrary and capricious."  So the gas gets to flow.

At least until the Ninth Circuit gets involved.  Which, today, reverses and remands.  Stopping the pipeline in its tracks.

Shades of the Keystone Pipeline, eh?  Except now it's unelected judges instead of a president we can boot out of office.

All of the above is one way to look at the issue.  And assuredly is the way a large number of people will spin today's decision.

But let me suggest that Judge Berzon's opinion actually makes a fair amount of sense.

It's true that the federal government approved the project.  But it did so in light of a lot of promises by the owner of the pipeline that they'd do lots of stuff to mitigate (i.e., reduce) the impact of the project on wildlife.  Without those repeated promises, a lot more fish would die, and approval might well not have been forthcoming (and/or justified).

Those promises, however, were often written in classic lawyer-speak.  The builder promised to do X but only "in its sole discretion" and the like.  It promised to engage in Z but only if funds -- which it only agreed to partially pay -- were "forthcoming," and if not, would merely "consult" about what to do next.  Moreover, these promises were made, and the federal government could enforce them if it wanted to.  But if it didn't -- if it thought that energy was more important -- no one else could enforce them, because the conditions weren't enforceable under the Act; e.g., environmental groups could not sue if the builder failed to comply with its obligations and started killing endangered species willy-nilly as a result.

You can see why the Ninth Circuit -- even a non-"fuzzy headed" one -- might have a problem with that.  Were all the promises kept, it might well be that the project wouldn't have a big impact on the environment.  But there was insufficient proof that this would, in fact, be the case, and the approval impermissibly assumed that these non-enforceable conditions would invariably be performed.  When there is, in fact, a fair reason to believe they might not be.

One more thing.  The project will require using over a third of a billion gallons of water in order to keep down dust, test the pipeline, etc.  The federal government says that "might seem like a lot" to an unsophisticated person.  Especially in an area (like the one at issue here) that's not exactly teeming with excess water; e.g., is partially a desert.  But the government assures us that a third of a billion gallons ain't that much when you really think about it.  After all, the Pacific Ocean is 187 quintillion gallons.  What's a third of a billion between friends?

But Judge Berzon responds that a third of a billion still seems like a lot, even after she thinks about it.  To which the government responds:  But, you silly federal judge, you shouldn't worry about the impact of the project using up all that groundwater, because the project's using groundwater, not water from a stream, and fish only live in streams, not underground.

To which Judge Berzon responds:  "Duh.  I'm not an idiot."  Noting that even though fish don't live underground -- and thanks for that update, counsel for the government -- when you take water out of the ground, that may well affect the amount of water in a stream.  Because guess where some of that water in the stream comes from?  The ground, dude.  You know.  Seepage and stuff.  Or at least that's what we learned in third grade Earth Science, and I'm pretty sure is still true today.

Its for these reasons that the Ninth Circuit reverses and remands.  Holding not that the project cannot be approved, but rather, that such approval should be based on a rational assessment of the impact of the project on the environment.  And that an approval that -- as here -- operates under an erroneous assumption that numerous promises will invariably be followed (despite the absence of any means of private enforcement) and that groundwater won't affect streamwater doesn't qualify.  It's arbitrary and capricious.  So try again using accurate assumptions.  And if approval's again forthcoming, that's fine.  Just make it make sense.

So one way to view this case is yet another example of a hippy vegan Ninth Circuit siding with their similarly unkempt environmental brethren to stand in the way of progress.  But the reality, I'll submit, is actually quite different from the way many commentators will view and/or spin today's opinion.

Garfias-Rodriguez v. Holder (9th Cir. - Oct. 19, 2012)

Chief Judge Kozinski says that this en banc opinion -- which has six different authors articulating six different views -- fails the en banc court's duty "to bring clarity to our laws."  He says:  "By the time lawyers in this circuit get through reading all our opinions, they'll be thoroughly confused."

I can help.

Judge Bybee's opinion is joined by a majority of the judges on the court.  Right or wrong, it's now the law.  The result of a 6-1-1-1-1-1 decision is no more "confus[ing]" to lawyers than the result of a 6-5 opinion.  Guess which opinion matter?  The one with the six votes.  The others just speak to what the law arguably should be, not what it is.  The law's no more confusing in that case than it is when the en banc court votes 11-0 but there are five law review opinions criticizing the result.  Interesting, to be sure.  Fraught with competing perspectives, no doubt.  But hardly "confusing" to anyone who can count to six.

So I think that Judge Kozinski's critique is inapt.  As, by the way, is his (typically creative) manner of demoninating his concurring opinion as a new-fangled "Disagreeing With Everyone" rather than what it actually is:  a straightforward concurrence.  They're both articulted in classic Kozinski fashion.

But, upon closer examination, neither one of these statements is really accurate.

Or at least I can help.

In Re: Christina Adams and Jack A. (Cal. Ct. App. - Oct. 16, 2012)

Father and Mother have a child.  The child has Asperger's Syndrome, a high-functioning form of autism.  Father and Mother get divorced.

Father's a special education attorney and has a master's degree in psychology.  Mother has written a published book on autism, give lectures on the subject, and plans to write several more books on the subject in the future.  Father and Mother both care deeply about their son, but have diametrically opposing views about how best to deal with their child's disabilities.

What could possibly go wrong?

Everything.

I'll let you read the whole thing.  Two well-meaning parents.  But a total train wreck nonetheless.

Mother thinks that Father's an uncaring, selfish and profoundly dangerous parent who's letting the child view pornography, play with knives and potentially drown on a boat.  Father thinks that Mother is a nutjob who "has turned our son's disability into a cottage industry.  She spends her time researching treatment methodologies for autism that often have little or no proven validity.  For example, Mother has for several years fed [our son] camel's milk as a purported treatment for autism.  Mother stopped taking [our son] to his previous pediatrician of seven years because the pediatrician was critical of camel's milk as a treatment for autism . . . . [and now] takes [our son] to a 'naturopathic doctor."

Yikes all around.

Needless to say, the parents can't agree on what middle school their child can attend.  And can barely talk to each other at this point.  Prompting nuclear litigation that needs to be resolved by the Court of Appeal.

I'm not kidding when I say this is a train wreck.  You don't want to watch.  But you can't help yourself.

People v. Walker (Cal. Ct. App. - Oct. 18, 2012)

I'm confused.

Justice Duffy's opinion in this case seems to correctly analyze the facts.  Police officers detain Everett Walker -- who's riding a train in San Jose -- because he purportedly looks like a suspect who sexually assaulted a woman at the same train station a week earlier.  But we've got a description of the suspect, and there's indeed a similarity.  Both the suspect and Walker are black.

That's about it.  Everything else is markedly different.

So Justice Duffy doesn't say so, but essentially, Walker got detained for TWB (a lesser-known variant of DWB).  Training While Black.

That's not okay.  Not reasonable suspicion.  Not a basis for legitimately stopping Walker.  So the conviction gets reversed.

That I understand.  Here's the part I don't get:

The officer initially comes up to Walker and asks him for his train ticket; i.e., proof that he paid the fare.  Walker responds by giving him a copy of a student identification card with the name "Aalim Moor" on it and a valid VTA sticker attached.  That'd be valid fare payment if Walker was indeed Aalim Moor.  So the officer calls in a record check, finds out that the birthdates don't match (and that Walker's way, way shorter than the actual Aalim Moor), at which point the officer arrests Walker for providing false identification and, in a search incident to arrest, discovers the drugs.

I agree with Justice Duffy that all that goes away if the initial stop was impermissible.  And I also agree that you can't justify the stop on the basis that Walker purportedly looked like the suspects in the prior sexual assault.

But what about the ticket?

Officers can legitimately ask riders to produce their ticket.  That's permissible.  Indeed, the officer's duties in the present case included fare enforcement.  Sure, that's not why -- in fact -- he decided to pick out Walker as opposed to anyone else.  But we already know that subjective intent is irrelevant to the validity of a stop.  What matters is simply is whether the detention was authorized.  Which the request for the ticket was.

Justice Duffy says in a footnote that the Attorney General conceded at oral argument that the officer didn't have reasonable suspicion to believe (prior to stopping him) that Walker hadn't paid the fare.  I get that, and am certain that this concession is true.  But what I don't understand is the predicate; i.e., why the officer even needed reasonable suspicion.  You can ask people for their ticket even if you have no particular reason to believe they're not carrying one.  Train conductors and transit officers do it all the time.  That's not a violation.  No suspicion at all is required.

It's true that the officer didn't ask everyone for their ticket, only Walker.  But that doesn't make it a violation either.  You can ask some people for tickets and not others.  True, you can't do it on a basis that's constitutionally impermissible; e.g., you can't only ask black people to show their tickets but not whites.  But there's no evidence or discussion on that point at all.  Justice Duffy doesn't hold that the stop was race-based (and hence a violation of the Equal Protection Clause), but rather that it was conducted without reasonable suspicion and hence an unreasonable search.  But it can't be the latter if the officer was permitted to stop Walker -- amongst others -- to ask him (as he did) to show his ticket and to investigate whether the ticket that was produced was indeed his (as, again, the officer did).

So I'm truly in a quandary as to why this case comes out the way it does.  Even if I agree with every word that's said.

It may be (I admit) that there are additional facts of which I'm unaware.  For example, it seems that the officer may have stopped Walker shortly after he hopped off the train, rather than while he was still on it.  Maybe that matters.  Maybe at that point an officer needs reasonable suspicion, since the search is not longer "administrative" (or some such variant).  But the facts may also be otherwise; I am confident, for example, that many mass transit systems have a rule that says you have to have a ticket to even be at the station (e.g., at the immediate loading/unloading area), which is where Walker appears to have been stopped.  Plus, I'm not even sure it matters.  If Walker could be asked to show his ticket while still on the train, why not immediately once he got off?  Or does getting off the train mean there's now a heightened requirement before you can be demanded to show your ticket?  If so, next time I ride the train, I'm going to be sure to hop off promptly once I notice that there's an officer coming around who's actually checking tickets.  Problem solved.  Fare successfully evaded.

I concede that, at some point, reasonable suspicion is required.  I'm sure, for example, the officer could not follow Walker home and -- two feet from his doorstep and fifty minutes after he got off the train -- demand to see his ticket.  Reasonable suspicion seems applicable at that point.  But I'm not at all confident that the right dividing line between these two doctrinal fields is immediately at the door of the train.

So I wonder what the truth is here.  Either legally or factually.  Because it seems to me that the stop might well be justified.

People v. Mills (Cal. Supreme Ct. - Oct. 18, 2012)

Would you find the following defendant to be sane?  Would you agree with the defense that he was only guilty of manslaughter -- not murder -- because he acted with a subjective (but unreasonable) belief that he was threatened and hence acting in self-defense?

Here are the (sad) facts:

Shortly before 5:00 on the afternoon of April 21, 2005, Jason JacksonAndrade entered the Amtrak station in Emeryville.  Eyewitness testimony established the ensuing events.  As Jackson-Andrade sat on a bench on the platform, defendant approached him and launched a tirade of insults.  He told Jackson-Andrade, 'You ain‟t getting on that train.'  Jackson-Andrade went into the station, sat down, and asked a woman if she knew the man outside.  She said she did not.  Jackson-Andrade told her he had not done anything, but the man was 'cussing' at him and acting as though he wanted to kill him.

Defendant walked around on the platform for several minutes, bouncing on his toes, humming, and talking to himself.  He then began walking toward the station in a determined manner, saying, 'You got a gun, nigger?  You got a gun?  You got a gun?'  He entered the station, approached Jackson-Andrade, and twice said, 'Motherfucker, you want to kill me?'  He also asked, 'You got a gun?'  As Jackson-Andrade looked up at him, defendant said, 'Well, if you ain‟t got no motherfucking gun, I do,' and produced a revolver from his pocket.  Defendant shot Jackson-Andrade, who held up his hands and said, 'Please, don't shoot me again, don't shoot.'  Jackson-Andrade fell from his seat and began crawling away. 

Defendant shot him five more times in the back and once in the back of the thigh. When the police arrived, defendant lay on the ground, sliding his gun forward and assuming a prone position.  He told them he was the only shooter.  Jackson-Andrade died at the scene.

Defendant testified in his own defense.  He claimed that because of death threats from various individuals, he and his wife had left their home in Merced to live with his cousin Telitha in Rodeo.  He had been visiting another cousin in Sacramento in the days before the murder.  As he walked around Sacramento, he began to suspect that he was being followed.  On the morning of the murder, he stole a car at gunpoint and drove from Sacramento to Rodeo.  He had Telitha take him to the Amtrak station because he did not want the people following him to find her or his wife.  As he approached the station, he heard someone say, 'You're going to feel it today,' which he took to mean that he was going to be shot.

On the platform, defendant became suspicious of two men, one of whom looked at him and said into his cell phone, 'He looks scared.'  Defendant claimed that after these men left, Jackson-Andrade beckoned to him.  As defendant approached, Jackson-Andrade became angry and threatened to kill  him.  JacksonAndrade then got up and went into the station, pausing at the door to make a hand
gesture indicating that he had a gun.  Defendant was nervous, and had to go to the bathroom, so he entered the station.  When he saw Jackson-Andrade sitting inside talking to a lady, defendant 'jumped' and the contents of his backpack spilled onto the floor.  Jackson-Andrade got up and put his hand into his pocket.  Defendant thought he was reaching for a gun, so he shot him.

Andrade lay on the ground, defendant again thought he was reaching for a weapon, so defendant shot him again.  Defendant testified that he shot only twice, but on cross-examination admitted he had reloaded his gun and continued firing. Defendant‟s wife and cousin testified that he told them people were after him.  His wife said he thought radio commercials were speaking to him, that the FBI was in a FedEx truck, and that cars were following him."

I have no doubt that Mills was delusional.  Maybe also a trial, since his story doesn't make sense.  But there was utterly no reason to kill the victim.  Whether those delusions negated the required mental state for murder is another question.

The California Supreme Court holds that the trial court erred in instructing the jury at defendant's trial that he was conclusively presumed to be sane, but holds that this error was harmless.

People v. Brown (Cal. Ct. App. - Oct. 17, 2012)

Do you think a B.B. gun is a "deadly weapon"?

To be more precise:  Does a B.B. gun qualify as a "deadly weapon" pursuant to the definition of that term in California's statute relating to assaults with a deadly weapon, which say that an item qualifies if it is "any object, instrument or weapon that is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury"?

The Court of Appeal says yes.

Which is entirely consistent with the absurd way in which this statute has been interpreted by the California judiciary.  Brown shot a dude with a B.B. gun and hit him in the back, causing a welt.  Is it possible that the pellet would have accidentally hit the victim in the eye?  Sure.  Does that fact mean that the B.B. gun was "likely to produce death or great bodily injury?"  The Court of Appeal thinks so.  Which interprets the term "likely" in such a way to be unrecognizable to anyone who uses this same term in everyday language.

Are there a plethora of other California cases that do the same thing?  Sadly, yes.  So I'm not saying this one's an outlier.  The problem is instead that it's entirely mainstream.

Because, in my view, that's not what the words mean.  Not even close.

People v. Rutterschmidt (Cal. Supreme Ct. - Oct. 15, 2012)

Clearly it doesn't take a genius to defraud insurance companies out of millions of dollars.  Case in point.

Admittedly, as here, you may have to be willing to kill a couple of people.  But a small price to pay for living large, right?

Gorlach v. Sport Club (Cal. Ct. App. - Oct. 16, 2012)

Susan Gorlach should become a lawyer.  She's clearly got what it takes.

Susy Gorlach is the Human Resources Director at the Sports Club.  (She may now be playing a lot of golf at the Annandale Golf Club).  The Sports Club decides to add an arbitration clause to its existing employment agreements, and puts Susan in charge of getting all the employees to sign.  She's diligent about doing so.  She's making everyone sign.  She's giving weekly updates to everyone at corporate about the few individuals who haven't signed, and says that while there's a few individual stragglers (and identifies them by name), they're low level people, and they'll be signed up soon.  She says that everyone big -- e.g., everyone at corporate -- has already signed.

She deliberately leaves out one thing, however.  She hasn't signed.  A fact that she's careful to conceal.  Because, after this thing drags out for a while, she decides to quit.  And promptly sues.

Sports Club moves to arbitrate.  Claiming that she deliberately concealed the fact that she hadn't signed.  Maybe; indeed, that's what the trial court holds.  But she did not, in fact, sign.  So the trial court holds there's no arbitration agreement, so she can sue.  The Court of Appeal agrees.

Ex-Human Resources Director 1 - Former Employer 0.

Alcoa Inc. v. BPA (9th Cir. - Oct. 16, 2012)

This is the mess that can happen when a law clerk makes a mistake.

There are three different opinions in this case.  Two of them involve issues about what constitutes binding circuit dicta.  A panel of the Ninth Circuit in Miranda B. adopted a particular standard on this issue by quoting from a purported en banc opinion written by Chief Judge Kozinski, with a citation to "United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)."  The problem is that Chief Judge Kozinski didn't write the opinion for the court; rather, this was a concurring opinion that only garnered the support of three of the judges on the en banc court.  So it wasn't the law.  But once the pnael in Miranda B. adopted this language, it suddenly was the law of the circuit.  Oops.

You can't tell which chambers made this mistake because it's a per curiam opinion -- the members of the panel were Judges Fernandez, Fisher and O'Scannlain.  But just because it's unsigned doesn't mean it can't distort circuit precedent.  As it did here.

You might be wondering, by the way, why an appeal from an order of the Bonneville Power Administration results in three separate opinions, as well as the involvement of a couple of dozen lawyers.  It's not even an environmental case.  It's just about how much a particular factory owned by Alcoa has to pay for electricity.  How much could that matter?  How could it justify the expenditure of a huge amount of attorney's fees?

You'd spend a lot too.  If the amount at stake was -- as it is here -- around of a third of a billion dollars.  That's how much the petitioners say the government's going to lose to Alcoa if Alcoa gets to pay submarket electricity rates.

As indeed it does.

A good day for Alcoa.  (Reminding me, randomly, of those old commercials from the '70s.  "Alcoa Can't Wait!")

Dex Media West v. Seattle (9th Cir. - Oct. 15, 2012)

I can agree with most of this.  Except the last three paragraphs.

Seattle decides to save some trees.  Shocking, I know.  Every year, its citizens receive 1300 tons of printed phone books dropped off at their doorstep.  Many of which are promptly put in the trashcan promptly upon their receipt; indeed, given the internet, increasingly so.  Seattle decides that this is a needless waste.  Especially since Seattle itself ends up spending a couple of hundred thousand dollars a year just to deal with this rubbish.

So it passes a law that creates an "opt-out" list for phone directories, and requires that publishers of these products adhere to it.  Sort of like the "do not call" list for telemarketers.  If you don't want to participate in needless tree-killing, you can put yourself on the list and you won't get unwanted phone books delivered to your doorstep.  Problem solved.

You'd think that publishers of the Yellow Pages and the like would be happy with that.  After all, it reduces their cost to publish directories that are just going to be thrown away.

But you'd be wrong.  Instead, they sue.

Yellow Pages makes their money by selling advertisements, and want to tell advertisers that they get X number of eyeballs.  An effective opt-out list would make X -- and hence the publisher's profits -- smaller.  They don't like that.

So they insist they have a First Amendment right to drop off leaflets at the doorsteps of citizens who don't want them.  Even if the leaflets are -- like the 2010 Seattle Dex Metro business directory -- total a whopping 1,344 pages.  They say the First Amendment precludes Seattle from regulating this type of speech, even if the statute only creates an opt-out list.

Today, the Ninth Circuit agrees with them.  Reversing the district court.

The vast majority of Judge Clifton's opinion -- over 90% -- deals with whether the Yellow Pages (and its ilk) are pure "commercial speech" or not.  This is a difficult issue.  It's also one that I think Judge Clifton gets right.

You might think (like the district court) that the Yellow Pages clearly entail commercial speech because that's the whole point of the thing:  to make money.  But that's not the test; after all, most newspapers and magazines and publishing companies are for-profit entities, and that doesn't stop them from being subject to "regular" speech protection.  And, yes, I know, unlike the Washington Post or New York Times, it's not like the Yellow Pages have anything important to contribute to our nation's dialogue on important political issues.  But that too isn't how we judge whether or not a given publication is pure commercial speech.  Otherwise the National Enquirer -- with its stories of alien babies and/or Lindsay Lohan's latest adventure -- might not qualify either.  Nope, instead, we look to see whether there's something more than mere advertisements in the thing.  And the Yellow Pages do indeed have other things.  The majority of the contents therein are not advertisements, but instead are recitations of phone numbers.  That's classic "speech" and an (arguable) public service.  And, yes, I know:  in truth, the Yellow Pages are just a bunch of high-priced advertisements sandwiched between meaningless drivel that no one wants -- the "public speech" part of it is just an excuse to sell ads.  But the same might well be said for Vanity Fair.

So I agree with Judge Clifton that the Yellow Pages isn't pure commercial speech and hence subject to reduced First Amendment protection.  Mind you, I think that existing commercial speech doctrine is a hopeless morass, and fails to appreciate the critical difference between "core" and non-core speech (and ancillary concerns about the role of money and profits in this market) in a coherent fashion.  But that's not Judge Clifton's fault; it's the Supreme Court's.  He's tasked with applying those precedents to the case and hand, and he does so.  Correctly, in my view.

But where Judge Clifton falls off the rails, I think, is in how he then applies the relevant standards to the statute at issue here.

Since we're not dealing with solely commercial speech, the usual free speech rules apply.  But I think the statute here satisfies these admittedly stringent requirements.

The only argument that Judge Clifton makes on this last point -- after spending pages and pages on the commercial speech issue -- is a three-paragraph contention in which he says that the statute does not pass constitutional scrutiny because it's not narrowly tailored enough.  He says that since each of the companies has their own opt-out program, enforcement of those existing private regimes "could achieve precisely the same goals as the City's registry."

I disagree.  For the exact same reasons that I'd hold that the national do-not call list similarly does not violate the First Amendment.

Yes, in theory, it's possible for consumers to individually opt out of each and every unwanted Yellow Pages that come to their doorstep.  Just like it might well be possible for me and other consumers to individually contact each and every telemarketer instead of signing the national do-not-call registry.

But guess what?  People don't do that.  It's too much trouble.  It's not worth it.  It makes much more sense -- is undeniably much more effective -- to create a centralized program where you can sign out of any (or all) of the unwanted distributions by submitting a single form.  Want proof?  Look at the size of the national do-not-call list.  Much, much larger -- orders of magnitudes larger -- than the number of people who previously opted out pursuant to individual private company opt-out lists.  Or, for another metric, just look at the amount of money that the plaintiff here is spending on legal fees to challenge the program.  Think they're doing that because they're convinced that there will be no difference between the number of people who already opt-out on their private list will be the same as on the central Seattle list?  No way.  They know full well more people will opt out pursuant to a central registry.  Judge Clifton's assertion that enforcement of the existing private regime would solve the problem is, in my view, simply false, and ignores the reality of the marketplace and the behavior of individual consumers.  Especially since the private companies have an incentive to minimize opt-outs (e.g., by making it difficult or by not publicizing the option) whereas the statute has the exact opposite effect (e.g., by requiring that Yellow Pages publicize the opt-out on the front page).

One of these regimes will work.  The other won't.  The existence of the latter doesn't make the former insufficiently tailored and hence unconstitutional.

Plus, don't forget what we're talking about here.  Books that are indisputably not wanted; indeed, texts that will almost uniformly be immediately deposited in the trash.  I recognize, of course, that even speech that's unpopular may have some value; sometimes people need to have their opinions challenged, even if it's on a street corner.  But the speech here is not only unwanted, but is generally unheard as well; the books typically get dumped into the trash unopened, at least by the only group that's relevant here (i.e., the people who will opt out under the statute).  I'm just not at all sure there's a valid First Amendment principle that says that hundreds of thousands of trees have to die just so a consumer can be compelled to pick up 1,344 pages of trash in his driveway (i.e., a Yellow Pages) that we know in advance she doesn't want and move it to the trash can.  Nor am I persuaded that a city like Seattle can't have a valid, legitimate governmental concern about the consequences of such a practice on the environment, on consumers and on the cost (and operation) of the City's landfill.

So I'd have remanded this back to the district court for a second look rather than holding, as the Ninth Circuit does, that the statute "violates the First Amendment and cannot be sustained."  I think there's a strong analogy here to the national do-not-call list.  Moreover, the statute here not only accomplishes the same values as the latter, but also saves money and protects the environment as a bonus.

Those are all are laudable goals.  And goals that aren't accomplished by the alleged private alternative upon which Judge Clifton relies.

I think the statute's probably constitutional.  And I surely think that the district court, on a proper record, could so find.

So mark me down as dissenting from the contrary, unanimous opinion of the Ninth Circuit.

RJ Reynolds & Juan Rangel (9th Cir. - Oct. 15, 2012)

I'm always amazed -- despite the fact that it happens every single day -- when parties file a petition for rehearing and rehearing en banc in circumstances in which there's no chance (not even one in ten thousand) of it getting granted.  When any rational obersever would realize that, at best, the petition for rehearing will only cause the panel to slightly modify its opinion with nonsubstantive changes and that the petition for rehearing en banc will fail to garner even a single vote.

Like, today, here (with RJ Reynolds).  And here (with Juan Rangel).

Wasted time, money and effort.

Cleveland v. Johnson (Cal. Ct. App. - Oct. 11, 2012)

I've have spanked the defendant in this one too.

Sometimes you see cases that you don't think come out justly.  This one's the exact opposite.  Glad to see a multi-million dollar civil judgment against the defendants here.  Who totally hosed one of their early investors.

U.S. v. Jackson (9th Cir. - Oct. 11, 2012)

What's the appropriate sentence?  Here are the facts:

"Appellant James Albert Jackson (“Appellant”) met a 14-year-old minor, referred to as AK, on the streets of Seattle, Washington, where AK was engaged in prostitution and cocaine distribution. After giving AK alcohol and having sex with her multiple times, Appellant convinced AK to move with him to Portland, Oregon so the two could sell ecstacy.


Once in Portland, Appellant told AK that she would have to prostitute herself to pay for their motel room. Appellant beat and choked her during this first night in Portland. For the next three months, AK earned approximately $400-$600 per day as a prostitute and gave her earnings to Appellant. Appellant asked co-defendant Donnico Johnson and Johnson’s prostitute, Lisa Miles, to take and post photos of AK on an online advertisement on the website craigslist.com.


After AK was arrested twice for prostitution, she told the authorities about Appellant and co-defendant Johnson, who were then arrested."

So, essentially, Jackson met a 14-year old, who was already a drug dealer and prostitute, and had sex with her, and then took her elsewhere so he could become her pimp (which he did), and then beat her at least one time while he was her pimp.  How many years in prison?

Forty.

P.S. - For comparison:  The average sentence for defendants convicted in federal court of murder is twenty-three years.

U.S. v. Valencia-Riascos (9th Cir. - Oct. 11, 2012)

Okay.  Yes.  Judge Graber is correct.  I'd have ruled the same way.  There's no reversible error.

But doesn't it nonetheless seem unseemly to do what the district court does here?  First, it refuses to exclude the prosecution's main witness (indeed, pretty much the only one) from the courtroom during the testimony of the other witnesses, notwithanding Federal Rule of Evidence 615, which generally requires such an exclusion.  So the prosecution's principal witness gets to hear everyone else testify, and potentially alter his own testimony in response.

Plus, the district court doesn't make this witness go first, which would somewhat solve the resulting problem.  Moreover, the district court lets this witness -- a law enforcement officer -- sit at counsel's table throughout the entire trial.  A pretty prominent place.  A place that few victims (here, the charge was assault on this officer) get to sit.

To top it all off, the court finally refuses to give a standard instruction -- requested by the defendant -- that says that the testimony of law enforcement officers shouldn't be treated more favorably than the testimony of others.

Okay, you can address each point one-by-one and say, yes, no error, no reason to reverse.

But what about dropping a line that says that this isn't exactly an awesomely neutral way to run a criminal trial?

In Re Alonzo J. (Cal. Ct. App. - Oct. 10, 2012)

Parts of this seem clearly right.  Other parts seem troubling.  But I admit there's no clear answer.

On the one hand, I agree with Justice Butz that the trial court got it wrong.  Yes, the defendant -- a juvenile -- said he didn't commit the offense, but nonetheless wanted to plead guilty.  That's surely a problem, and one the trial court thought precluded a plea.  But the Court of Appeal correctly holds that the solution to this problem is for the juvenile to plead no contest.  There's enough evidence here to support the charges even without an admission by the juvenile, if only based upon hearsay (and yet likely admissible) statements by witnesses -- albeit now recanted.  So the trial court could enter a no contest plea even if the juvenile continued to insist he was innocent but wanted to plea.  Problem No. One Solved.

But that still leaves Problem No. Two.  Defendant wants to plead guilty.  Defendant's lawyer thinks that's a stupid call, so doesn't want to let him.

Now, if this was an adult case, Problem No. Two is no problem at all.  Defendants who are adults can do whatever they want.

But Alonzo isn't an adult.  He's thirteen.

The trial court thought that thirteen year olds couldn't plead without their lawyer's consent.  There's a statute that may facially seem to say exactly that.  Paternalism and all.  But the Court of Appeal holds that, yep, they get to plea just like adults.  Even if the lawyer opposes it.

I'm not sure that's wrong as a statutory matter.  Though I'm less that certain it's right; moreover, I'm not entirely confident that the Court of Appeal comes to grips with the central problem here.

The Court of Appeal puts a lot of stock in the fact that the trial court can reject the plea if it finds that the plea's not "knowing and voluntary."  Ergo you should defer to the defendant.  Unless.  But while I agree that unknowing/involuntary pleas shouldn't be accepted, as applied to 13-year olds, is that constraint really a sufficient safeguard?  What does that even really mean?

Take the present case, for example.  The reason the kid's lawyer doesn't want him to plead guilty is because the cops have no witnesses -- everyone's recanted -- and the plea deal makes him admit to a felony, which is a big deal.  Especially when it's very possible they can only prove a misdemeanor at best.  By contrast, why does the kid want to plea?  Because admitting the felony gets him back home in time for his sister's birthday.  Which he wants to attend.

Now, maybe a rational adult would make the same choice.  But the lawyer -- who's looking out for the kid -- definitely doesn't think so.  How is the trial court supposed to decide whether to accept the kid's plea as "knowing" and "voluntary"?  It's "knowing" in that the kid knows that he's pleading to a felony and knows (intellectually) what that means.  It's "voluntary" in that no one's forcing him to take it.  But does that really mean it's knowing and voluntary, and we should enforce it?

Imagine, for example, that the kid said that the reason he really wanted to get home for his sister's party is because he totally loves chocolate cake, and doesn't get any in prison.  So he's willing to plead to a felony -- which, again, he says he totally didn't do -- because that's the only way he can partake of that tasty treat.  The judge makes sure he understands that a felony's a big deal; yep, the kid says he understands that.  The judge says that, personally, she doesn't think any cake is worth a felony rap if it's untrue and that the kid might beat it anyway.  The kid says, sure, I understand, but I really want the cake, and for me, it's worth it.

Accept the plea?

The point is that thirteen year olds make some bad decisions.  Shockingly, shockingly bad ones.  Do we want a system that gives them autonomy in that realm?  Or are these things too important?

I can completely see both sides here.  But I'm not sure that saying "Don't worry; we'll make sure the decision's knowing and voluntary" doesn't just pass the same buck to a different test.  The real issue is whether the system should say, as a general rule, that kids aren't entitled to complete autonomy in this area.  That just like we give parents dispostive veto power over critical decisions (and, indeed, many non-critical ones), in this realm, we should give the kid's lawyer -- the kid's de facto parent as regards legal decisions -- similar power.  So the kid doesn't give up a felony for some cake.  Which we know some kids will do.  Whether the "cake" is literal or metaphorical.

I'm just not sure.  I'm truly torn.

One last point.  The Court of Appeal ends by granting the kid a remedy; since he would have clearly taken the plea deal (and that's right), his conviction gets reversed, and the prosecution has to offer the same deal.  UNLESS they want to simply retry him.  That's a huge caveat.  After all, at this point, the prosecution has not only tried the kid, but won.  They've got very little incentive to offer the kid the same deal at this point.  And the Court of Appeal doesn't make 'em.  So it's potentially a somewhat meaningless victory.  At least for this kid.

For for other kids, in the future, they get to take plea deals.  Even terrible ones.  Even when their lawyer -- and perhaps the judge -- knows they're bad ideas.  Because that's the price of autonomy.

True for 13-year olds.  And, presumably, 8-year (and 3-year) olds as well.  All depends on what we mean by "knowing and voluntary" as applied to those ages.

Mastick v. TD Ameritrade (Cal. Ct. App. - Oct. 9, 2012)

"The trial court's ruling is reasonable, fair, and consistent with common sense."

And gets reversed.

Western Watershed Projects v. Ellis (9th Cir. - Oct. 9, 2012)

The forest fire in Montana didn't just burn the grasslands.  It also torched your fee application.

Zintel Holdings v. McLean (Cal. Ct. App. - Sept. 18, 2012)

Through a variety of devices, Mark Huth gets to stay in his Beverly Hills apartment -- whose market value is around $2500/month -- by paying only $200.  I guess that's okay.

But I wouldn't rent to him (or have really any interactions with him whatsoever) based upon what I've seen here.  Seems like a guy who knows what he wants and knows how to get it.  For himself.

U.S. v. Elk Shoulder (9th Cir. - Oct. 5, 2012)

You'd think that after getting thrown back in prison twice for failing to keep up his sex offender registration, Mark Elk Shoulder would get it together to keep his registration current.

Nope.

Elk Shoulder back to prison again.

Rogovich v. Ryan (9th Cir. - Sept. 18, 2012)

How do you feel about putting this guy to death?

You can certainly see arguments -- strong arguments -- on both sides.

It might be a pretty good test for how one feels about the death penalty.

It's all academic.  He will, in fact, be executed.  Albeit over two decades later.

But, as an academic exercise, it may grant insight into one's personal views about the death penalty.

Detrich v. Ryan (9th Cir. - Oct. 3, 2012)

David Detrich (allegedly) killed someone, and Arizona sentenced him to death.  The Arizona courts affirmed, both on direct appeal and on state habeas, and his habeas petition didn't fare any better in federal district court in Arizona either.

But, in 2010, the Ninth Circuit reversed, and granted habeas relief.  Unanimously.  In an opinion written by Judge Paez and joined by Judges Pregerson and McKeown.

But just because you win in the Ninth Circuit doesn't mean you win.  Especially in a death penalty case.  But Supreme Court doesn't reverse the case, but they do GVR it.  So in 2011, they send it back to the same panel on the Ninth.

So the Ninth Circuit takes another look at it in light of the GVR.  Judge Paez again writes another opinion, and again grants habeas relief.  And Judge Pregerson again joins.  But they now lose Judge McKeown.  Who, in light of the Supreme Court's GVR and/or intervening decision, reconsiders her prior views and/or sees the handwriting on the wall.  So she now dissents.

So same result.

Only this time, it's not likely to even make it out of the Ninth.  Today the court takes the case en banc. 

So Detrich had a celebration in 2010, but as they say, it's not over until the fat lady -- in this case, the Supreme Court and the en banc Ninth Circuit -- sings.  Moreover, as is often the case in death penalty appeals, the panel's words are typically far from the final song.

But the big thing Detrich's got going for him is time.  The murder was all the way back in 1989.  Over two decades ago.

But that's water under the bridge.  My strong sense is that this one's taking another two to three years.  Tops.

Citibank v. Tabalon (Cal. App. Div. - Sept. 27, 2012)

This opinion could perhaps be right.  But let me suggest an alternative perspective as well.

The question is whether the denial of an anti-SLAPP motion is subject to an immediate appeal.  In most cases, the answer is clearly yes, because the statute expressly says so.

But what about cases filed as limited jurisdiction cases in Superior Court?  You'd think the answer would be the exact same, right?  Presumably the amount at stake doesn't matter; if it's subject to an immediate appeal in one case, it's likely subject to an immediate appeal in another.  Usually the same appellate rules apply to both limited and unlimited jurisdiction cases.  Plus, if we want an immediate appeal to stop people from suppressing free speech rights by filing lawsuits, we presumably don't care if the speech-suppressing lawsuit is for $24,999 or $25,001.  Same result, same appeal.

But the Appellate Division holds otherwise.  Relying largely on the plain language of the relevant statute.  Which the appellate division thinks is the first sentence of CCP 904.1, which states that "an appeal, other than in a limited civil case, is to the court of appeal," and which may be taken from an order denying a motion to strike.

But this isn't actually the relevant statutory language.  That sentence just indicates that appeals in limited civil cases don't go to the Court of Appeal (but instead go to the Appellate Division):  it doesn't necessarily say anything about whether an appeal is permissible or not.

The second sentence of the statute is actually the appropriate one to look at:  that's the one that says that "an appeal, other than in a limited civil case, may be taken from any of the following . . . . (13) From an order granting or denying a special motion to strike under Section 425.16."  That statutory authority for an appeal indeed applies only to unlimited cases; by contrast, the list of orders subject to immediate appeal in limited civil cases (in Section 904.2) is a more limited list, and doesn't include motions to strike.  So that section may well answer the question.

Now, I have a sense that this may be the result of Legislative oversight; that the statute was meant to authorize an appeal in both types of cases but just forgot to include motions to strike in the statutory section applicable to limited jurisdiction cases.  You could have an alternative view -- maybe no one cares about chilling free speech rights by forcing someone to hire a lawyer and go to trial in a lawsuit for $24,000 -- but I think the "oversight" explanation may facially be more plausible.  Still, that's what the statute says, so that's what we do.  So the result by the Appellate Division may make sense.

But the possibility that it's an oversight may also mean that, were I writing the opinion, I might have (1) explained the possible oversight and suggested that the Legislature take a look at it, and (2) in this particular case, perhaps treated the appeal as an alternative petition for mandamus -- as sometimes is permitted -- and potentially resolved it on that basis.

Again, maybe the result ends up the same.  But that way we're advancing the ball a little bit more than just saying that the statute says what it says and, right or wrong, we're just going to stop there.

So an alternative approach, even if not an alternative holding.

People v. Smith (Cal. Ct. App. - Oct. 1, 2012)

Weird But True:

Defendant gets sixteen months shaved off his sentence because he never stopped masturbating.

Don Johnson Productions v. Rysher Ent. (Cal. Ct. App. - Oct. 1, 2012)

Even Nash Bridges himself would be hard-pressed to find justice in this one.  It's instead a set of confused and conflicting equities perhaps requiring resolution by Nash's co-star, Cheech Marin.

Nash and Cheech come to mind because the case is about profits that allegedly are due to go to Don Johnson from the syndication of the television series Nash Bridges.  Of course, the profits don't go directly to Don Johnson himself -- to exploit various inequitable loopholes in the tax laws, the profits instead go to "Don Johnson Productions," which "loans out" its "talent" (e.g, Don Johnson) in return for money.  Which gets put into favorable tax havens, subjected to absurd depreciation regimes, etc.

But Don Johnson's not the only one abusing the system.  The studio only (allegedly) owes him 50%, so they -- consistent with the industry as a whole -- routinely manufacture a variety of Machiavellian deductions, sales, and manipulative transactions to make it look like even the most profitable series actually lost (rather than gained) money, thereby resulting in no profits due to the "talent" on the back end.  But Don's got his own series of legal moves in response, including hiring some very high-priced legal talent that comes up with a complex argument that insists that Johnson's actually entitled to fifty percent of any money received -- not just profits -- due to a conflict between the copyright and other provisions of the relevant contracts.  Because I'm sure that's what the parties intended.

But the studio's got plenty of high-priced legal talent of its own.  So it comes up with its own anti-equitable argument.  You see, back in 2002, Johnson's lawyer (Sam Pryor) wanted to continue to negotiate with the studio's lawyer (Frank Stewart) instead of filing a lawsuit, and the studio agreed, so the two sides entered into a formal agreement to toll the statute of limitations -- which was about to expire -- while they continued to talk.  Those talks took a long time, but ultimately failed, so Johnson filed suit in 2009.

At which point the studio says:  "Gotcha."  Because, yes, there's a binding agreement to toll the statute of limitations.  But, the studio says, CCP 360.5 requires that any such agreement be renewed every four years, and no one renewed it.  So it expired in 2006, even though the parties agreed in the contract otherwise, and so Johnson gets nothing.

In short, there's a story, and a resulting legal fight.  But, at least in my mind, no real protagonist.

But things get even worse.

At trial, Johnson wins.  The jury awards him $15 million.  It also awarded him an extra $8 million in prejudgment interest even though no one asked them the jury to do so.  And thereafter, Johnson files a motion to add prejudgment interest onto the entire $23 million judgment.  Because why be a $23 million hog when you can be a pig as well?  And the trial court grants Johnson's request, adding on an additional $29 million to the already-inflated award.

What to do?  What to do?

My sense is that the majority opinion does something that attempts to achieve some sort of rough justice.  Not that they deliberately ignore the law, of course.  Maybe they think that what they do is appropriate under the relevant legal rules.  But they're not willing to give Johnson nothing, so they find a way to reject the studio's hypertechnical (and unjust) argument about the limitations period, holding that Section 360.5 only applies to "waivers" of limitations periods not "tolling" agreements about such periods.  But they're also not willing to give Johnson the $50-plus million.  So they get rid of the jury's award of prejudgment interest on the grounds of juror misconduct -- a jury's not allowed to add an award that wasn't proper and that no one requested, and here, everyone concedes that's what they did -- and then get rid of the judge's award of prejudgment interest on the grounds of a procedural, hypertechnical error that the trial court made (not giving an express statement of reasons).

So the studio doesn't win on its hypertechnical argument to give Johnson nothing but the Court of Appeal does let them win on its hypertechnical argument to give Johnson only a piece.

Splitting the baby.  In sum, if not in substance.

Maybe this is an equitable result.  Maybe this is the best we can do in a case like this.

The only problem is that Justice Mosk authors a persuasive dissent.  One that presented itself to me even before I got to his opinion.  The problem is that the inequitable argument the studio makes about Section 360.5 is, as a matter of law, actually right.  Moreover, the majority's equally -- if not more -- hypertechnical distinction between "waiving" and "tolling" under Section 360.5 just doesn't work.

Justice Turner holds that the parties entered into an agreement to "toll" the statute of limitations while they talked.  That's right.  Justice Turner also says that Section 360.5 only requires that "waivers" of the limitations period be renewed every four years.  That's true too.  He also says that back when the statute was passed in 1951, no one really used the term "tolling," which is what transpired here.  All true.

But he concludes from this that the statute accordingly only applies to waivers, not to agreements to toll.  That's where he runs off the rails.

The reality is that the two mean the same thing, and so the statute applies to both.  Or, both more accurately and more dispositively, that the statute here manifestly applies to tolling agreements if only because it doesn't make any sense otherwise.

The point of the statute is to disallow infinite extensions of the statute of limitations.  Which is, in fact, precisely what the parties did here.  So the entire purpose of the statute is nullified if you hold, as the Court of Appeal does, that it doesn't apply to "tolling" agreements.

More centrally, the statute doesn't even make sense as applied to alleged "waivers" as opposed to "tolling" agreements.  If you "waive" the statute of limitations you waive it.  It's gone.  It makes no sense to require such "waivers" to be renewed.  There's nothing to renew or not renew.  To say that you've got to "renew" only "waivers" is to say something that doesn't make any sense.  By contrast, the only things that you renew are precisely what we today call tolling agreements.  Those are the things it makes sense to make the parties renew every four years.  Which is why the statute applies, by both its terms and by its fundamental central purpose, to tolling agreements.  Because when the Legislature said in 1951 that you have to renew "waivers" every four years what they meant is that you have to renew tolling agreements.  That didn't happen here.  So Johnson should lose.

Mind you, I think that statute's stupid.  At least as applied to situations like this one, in which very sophisticated parties represented by very sophisticated counsel entered in to an arms-length and very sensible agreement to toll the statute while they tried to work things out.  I think it's profoundly silly not to let parties do that, and to allow entities like the studio to play "gotcha" and, seven years later, say that they screwed you (yet again) because your lawyer was too stupid not to know that these sorts of agreements aren't enforceable unless they're renewed.

So it's a statute that's silly and that works, at least in this case, a huge injustice.

Nonetheless, that's what it says.  And, I think, pretty clearly.

But it's not just me.  Justice Mosk points out in his dissent that, right after Section 360.5 was passed, an editor of a then-upstart publication called the Stanford Law Review (my words) authored a law review article about that statute.  In which the student accurately -- and eerily presciently -- said that even though the statute uses the word "waiver," it surely applies to "waiver" regardless of how those waivers are made, including but not limited to tolling agreements.  So even observers at the time had an understanding that the word "waiver" in the statute included tolling agreements.  Justice Mosk can (and does) also cite a plethora of modern commentators who've said the same thing in practice guides and other treatises.  Q.E.D.

That's pretty darn persuasive to me.  As much as I hate -- hate -- it, the studios seem right.  And while I might apply doctrines like laches or waiver or anything like that if I could, if I couldn't, I'd have to hold (as Justice Mosk does) that the studios successfully screwed an actor out of his well-earned and justly rewarded funds.  Again.

Mind you, I think that the Court of Appeal is maybe overly hypertechnical (as opposed to, on the Section 360.5 issue, undertechnical) on the other side as well.  I agree with Justice Turner that, under California law, the jury's award of $8 million in prejudgment interest has to be reversed, because you can't let things like this stand.  But it's a stretch to say that the trial court's similar (albeit larger) award also has to be reversed.  Yes, the trial court didn't discuss at length why it was doing what it did.  But it's nonetheless clear.  To reverse an award on this basis seems to advance form over substance in a way that's perhaps equally as improper as advancing substance over form on the Section 360.5 issue.

Maybe the best defense of the majority's opinion is that, here, two wrongs make a right?  That this is the best we can do as between the competing alternatives of giving Johnson an unjust $50-million plus or unjustly giving him nothing?

Maybe.  Maybe as a result.  Though the process of getting there still doesn't feel right to me.  There's still something about making the law make sense that appeals to me.  Not just getting a result that we can all be happy with the next time we watch rerun of Nash Bridges on Channel 13.

One more thing.  The 1952 Stanford Law Review article that Justice Mosk cites -- and that, in a really cool fashion, is all about the issue that presented itself 60 years later -- is unsigned.  Which we do on a lot of law journals for student-written pieces, including the Harvard Law Review when I was on it back in the 80s and 90s.  (Which is why you can't tell whether I wrote any of the really good pieces during that era or one of the other ones; or, more accurately, the ones about sex and drugs.)

But that led me to wonder:  Who did write the thing?  So I walked over to the library to try to find out.

There were only a small number of people on the Stanford Law Review during that era, and their names are on the masthead.  There's no way to tell which one of them wrote the piece.  Many of the law review editors at the time went on to become district attorneys and the like in California, and if I was a little older, I might recognize a couple more names than I did.  (They all graduated from law school in the early 1950s, so are about 40 years older than I am.)

But two names nonetheless stood out.  They were the only two women on the Stanford Law Review at the time.  Either of them conceivably could have written the piece.  (Though it could easily have been someone else as well.)

The two women were friends and roommates.  One of them was named Catherine Lockridge, who married a doctor, moved to Rochester while he worked at the Mayo Clinic, and then moved back to Palo Alto for the remainder of her life, which sounds wonderful.  The other was named Sandra Day.  Who married a guy named O'Connor.

It'd be awesome if either of them wrote the piece that the Court of Appeal today decides was wrong.