Wednesday, July 31, 2013

In Re Maria B. (Cal. Ct. App. - July 31, 2013)

Look, I understand our nation's troubling history with sterilization of the mentally disabled as much as anyone.  It's a sordid tale.

But enough already.

Maria B. is a 25-year old woman.  She has cerebral palsy.  She's mentally disabled.  She has hydrocephalus, an accumulation of excess fluid in the brain.  She's got surgically implanted shunts that drain excess fluid from her brain to her abdominal cavity.

In short, she's got serious medical problems.

Add to all of this the fact that she's got serious problems with her menses.

Maria started having her period at 11, and it's gotten worse ever since.  She has increasingly irregular cycles. She has excessive bleeding.  Often 26 days a month (!).  She often can't stand up without bleeding through her sanitary napkins and clothes.  Plus she's got low iron, chronic fatigue, bloating and abdominal cramps.

Plus migraines like you wouldn't believe.  Often causing her to collapse in pain, several that required trips to the emergency room, and six or seven hospitalizations.

In short, it's a nightmare.

Doctors have tried everything for Maria's menstrual problems and resulting symptoms.  A neuroloigist tried numerous pills and narcotics to stop the pain.  Didn't work.  Neurosurgeons performed several surgeries to adjust her shunts to try to relieve the migraines.  No luck.  An obstetrician and gynecologist put Maria on birth control pills to regularize and control her periods.  Unsuccessful.  They did a D&C to reduce the lining in her uterus to try to reduce the bleeding.  Worked for a little bit, but then back to normal.  Tried another birth control regiment.  No joy.

Then tried Depo Provera shots.  Those worked for a a couple months.  Yay!  But you can only get those shots every 90 days.  So during the last month or so, the migraines returned, and Maria had to repeatedly visit the ER and endure the pain until the next shot.  Plus you can only do the shots for two years anyway because they destroy your bone density.  So not a solution.

Essentially, they've tried everything.  Clearly regulating Maria's menses significantly helps with her pain.  But nothing's worked.

So Maria's limited conservator -- her mother -- decides, upon the advice of Maria's physicians, to take out Maria's uterus and ovaries.  That will prevent Maria from ever having children.  But it's also got a very good shot and relieving her pain.  Plus it'll avoid the need for numerous shunt surgeries, taking medication that may well destroy her liver, having continuing CT scans that irradiate Maria's brain and cause cancer, etc.

Maria's totally on board.  She tells the doctors she definitely wants the surgery.  Doesn't need to have kids. Knows the consequences.  Wants the devastating headaches to finally stop.  Do it.

Not so fast.

Before you sterilize someone in a conservatorship, you've got to go to court.  Which in turn requires a very heavy demonstration of need.  So we have a trial.  A two-day bench trial.  In which Maria, Maria's mother, Maria's doctors, and everyone else testifies.  Plus we appoint a public defender to "represent" Maria and to oppose (?!) the procedure she's expressly requested.  Then, when the trial court approves the procedure as demonstrably and clearly in Maria's best interests, we have the public defender file an appeal.  All the while requiring Maria to continue to endure the excruciating pain.

To its credit, the Court of Appeal affirms the trial court.  Moreover, to their credit, it looks like everyone involved in the case expedited things as quickly as they could.  Including stipulating to make the Court of Appeal's decision final ten days after the opinion is issued.  So Maria can get relief as quickly as possible.

But that still takes over a year.  A year of contested judicial proceedings before we can give someone the relief to which they're clearly entitled.

Crime victims in federal court are entitled to testify at sentencing proceedings, and if they have to file a writ or appeal to do so, the Court of Appeals has to decide these things within 72 hours.  I wonder whether people like Maria shouldn't be granted analogous rights.  Their burden seems even more severe.  And their relief is demonstrably much less timely.

Good result here.  I just wish it could have happened more quickly. 

People v. Hanna (Cal. Ct. App. - July 31, 2013)

When you troll MySpace and try to set up sex with 13-year old girls, apparently you don't merely have to worry about being set up by the police.

Tuesday, July 30, 2013

Renewable Resources v. Pebble Mines (Cal. Ct. App. - July 30, 2013)

I understand Justice Klein's holding in this morning's opinion.  Defendants can't file an anti-SLAPP motion to a lawsuit that claims that one of them solicited (and the other happily paid) a $50,000 bribe in order to obtain confidential documents belonging to the plaintiff.  If that's what the defendants did, it's illegal.  You can't sell a client's documents to its adversary -- or threaten to do so -- merely to get your client to pay you (or to make a fast buck).  That plaintiff allegedly did some sleazy and/or illegal stuff as well, or that some of the damages arising from the bribery involved an election fundraising proceeding, doesn't matter.  Paying someone a bribe to breach their fiduciary duties isn't "free speech" subject to an anti-SLAPP motion.

That part I understand.

What I don't understand is why Justice Klein begins the first full paragraph of page six of the opinion with the following:  "On April 4, 2011, a mere 24 days after the commencement of the action, [] defendants filed a special [anti-SLAPP] motion to strike. . . ." (emphasis in original).  Not only does Justice Klein emphasize this fact, but he repeats it again later in the opinion.  Defendants apparently had the audacity to file a motion dismiss the complaint 24 days after it was filed!  Can you believe it?!

I'm honestly confused.  What's so bad -- or unusual -- about that fact that it bears repeatedly emphasis?

Justice Klein correctly notes that anti-SLAPP motions are required to be filed within 60 days.  Defendants filed in the middle of this statutory period.  What's weird about that?  Sophisticated lawyers can presumably crank out an anti-SLAPP motion in three full weeks.  Especially if they're working on it full time.  No shock there.  Sophisticated lawyers also often don't wait until the very last day to file something.  No real surprise on that front either.

So what's the big deal?  That defendants filed the motion when they did seems totally routine to me.  Not even worthy of mention.  Much less repeated emphasis.

So I can understand the holding.  I could even (maybe) understand the point about the "24 days" if the issue in the opinion whether the trial court erred in awarding only $30,000 in attorney's fees rather than the nearly $170,000 (!) requested by the defendants.

But it's not.  The only issue is whether the anti-SLAPP motion was properly granted.  Which it wasn't.  So that defendants filed it 24 days after the complaint was filed seems totally irrelevant.  (Indeed, if anything, it should be a point of pride:  "We filed a losing motion, but at least we filed it promptly!")

So neat opinion.  One worth reading.

But maybe skip the part about the 24 days.

Monday, July 29, 2013

U.S. v. Spencer (9th Cir. - July 29, 2013)

I'm learning more and more about the details of Hawaii criminal law.

Before this opinion, I wouldn't have thought that a conviction in Hawaii for "criminal property damage in the first degree" was anything near as dangerous as "burglary of a dwelling, arson or extortion" or a crime that "involves the use of explosives."  But Judge Bybee persuades me that, yeah, maybe it is.

I have a lingering, sneaking suspicion that the issue may be closer than Judge Bybee makes it out to be.  That he may have written an opinion that's not totally "fair and balanced," as it were.

But I'm not sure where that sense comes from.  And certainly can't find demonstrable holes in the opinion. 

I would have liked to have seen a more scientific (and perhaps nuanced) review of the types of offenses in Hawaii that result in a first-degree property damage charge.  But I nonetheless understand that a case brings only the evidence that it happens to bring.  Judge Bybee persuades me that there are lots of cases of first-degree property damage that indeed involve a lot of harm (or risk thereof).  The question at issue involves whether those are the "usual" cases.  Reading Judge Bybee's opinion, I can't say that they're not.

I wouldn't have thought that by the title of the offense.  I would have thought that "criminal property damage in the first degree" was a lot less dangerous than arson, extortion or explosives.

Just goes to show you potentially how little I know.

Friday, July 26, 2013

Schwirse v. OCWP (9th Cir. - July 26, 2013)

Longshoremen don't get compensated for injuries on the job if the injuries result "solely by [their] intoxication."  Which seems reasonable.

Gary Schwirse was a longshoreman.  For whatever reason, he thought that a breakfast of two beers was a good idea.  So before going to work, that's what he did.  Certainly not to be recommended.  But there you have it.

Which nonetheless might have been fine.  But the same reasoning that suggested to him that two beers before 8:00 a.m. was a good idea also suggested that another three beers before lunch would be a good addition.  So he drank those too.

Five beers before noon.  I'm not exactly sure what Schwirse was doing as a longshoreman, but that seems risky.  Maybe not for someone working in an office.  But for a guy working on the docks?  Dangerous.  Not to mention troubling.

But now it's lunchtime.  Which means more beers.  Four to five, to be exact.

Seriously, Gary?!  This is not a college frat party.  This is your job.

Schwirse apparently gets that fact.  So after lunch, he switches to whiskey.  Drinking more than half a pint before work his work day ended at 4:00 p.m.


What happens now?  Well, among other things, Gary's got to pee.  Hmmm.  Let's see.  Where should he go?  In the statutorily required bathroom provided by his employer, perhaps?

That'd be rational.  But did I mention how much Gary's been drinking?

So consistent with his earlier decisionmaking, Schwirse decides that it'd be much preferable to take a whiz near the bull rail on the dock.  Which bull rail, you might ask?  You know:  The one that's on the edge of a six-foot drop to a steel and concrete ledge below.


You can guess what happens next.  The intoxicated Schwirse falls over, injuring himself.  The hospital diagnoses him with acute alcohol ingestion -- his BAC is .25.  Oh, yeah.  And cannibis ingestion as well.  Because nothing says "Fun At The Docks" like the buzz of ten beers and a half pint of whiskey combining with the effects of weed.

He then seeks compensation benefits for his injury.  Proof positive that although his head was injured in the fall, his gonads are working full-time.

The ALJ actually grants the guy relief.  But the Benefits Review Board says "No way."  A finding that the Ninth Circuit affirms.

Thankfully.  Because if we're paying someone benefits for stuff like this, I'm not going to be happy.  I'm not sure what employment structure permits a guy to get totally wasted on the job without any apparent detection.  But when it happens, it seems like concepts of personal responsibility and the like should get in the way of giving the guy money.

Whatever.  Today I learned that the docks in Oregon may be an even more of a rough-and-tumble place than I initially thought.  (Though I also thought the longshoremen thereupon would uniformly be a lot, lot smarter than Schwirse was here.)

Thursday, July 25, 2013

People v. Rogers (Cal. Supreme Court - July 25, 2013)

How many votes do you think serial killer Glen Rogers gets in his bid to overturn his death sentence?

If you guessed "None," give yourself a pat on the back.  If you made any other guess, reread a history book.

There is, however, a separate concurrence.  From Justice Chin.  Articulating his belief that the trial court had been too generous to Rogers.

So that's something, I guess.

Not that I am feeling especially bad for Rogers.  Who seems a truly evil sort.

Sometimes I talk about how a case doesn't seem all that different from other cases that do not result in the death penalty.  This is not one of them.

People v. Davis (Cal. Supreme Court - July 25, 2013)

Here's another case where a criminal goes free due to a very simple mistake made by the prosecutor.

A big win for a participant at a 2009 New Year's Eve rave party in L.A.

Wednesday, July 24, 2013

Farmers Ins. v. Superior Court (Cal. Ct. App. - July 23, 2013)

My initial reaction to the question "Does the depublication of a case by the California Supreme Court constitute a 'change in law?'" was "No.  It just keeps the law as it was, and expresses no opinion on the merits."

But after I read this opinion, I realized that my first instinct was indeed erroneous.  It does change the law.  It eliminates legal authority that controls a trial court.

For this reason, when a trial court relies exclusively on Case X, and then X gets depublished, a party can move for reconsideration outside of the normal 10-day window under CCP 1008.  Perhaps even more importantly, in a truly unusual case -- like here -- it would be an abuse of discretion to deny the motion for reconsideration in light of the depublication.

Definitely worth knowing.

Fox Broadcasting v. Dish Network (9th. Cir. - July 24, 2013)

Good news this morning for Dish Network subscribers who want to skip over commercials.  Which is pretty much every single one of them, I imagine.  They still can.

I'll leave the Ninth Circuit's copyright discussion to those more expert in this constantly-evolving field.  Except to say that it seems right to me that the technology here is pretty similar to a DVR, so what Dish does isn't illegal.  Fair enough, and I am more than happy with such a result.

But as for whether it's a breach of Dish's contract with Fox -- well, I gotta say, it seems to me like it pretty much is.

You can read the provisions of the various contracts in the opinion.  Suffice it to say that Fox has -- perhaps not surprisingly -- successfully insisted on a variety of provisions in its contracts with its partners (including Dish) that expressly preclude them from helping consumers skip commercials.  Dish itself distributes the AutoHop technology and creates and gives to its customers copies of Fox's prime time broadcasts with the commercials deleted.  That seems exactly the sort of thing prohibited by the contract.  If it is not, what is the point of these provisions?

Reading between the lines, I think the Ninth Circuit also believes that the contract was breached.  But nonetheless affirms the district court's contrary holding (and resulting refusal to grant a preliminary injunction) as not reflecting "clear error."

Maybe that's right.  Maybe.

Though I'm pretty much persuaded that it's error.  And it seems pretty clear.

Nonetheless, for now, enjoy skipping those commercials.  For now.

Tuesday, July 23, 2013

Bassene v. Holder (9th Cir. - July 23, 2013)

It is a published immigration opinion by Judge Pregerson, with Judge Fletcher a district court judge sitting by designation on the panel.  So you pretty much know up front how the case is coming out.

But go ahead and read it anyway.  It's a pretty persuasive opinion that makes you seriously question what's going on in immigration court, and the attitude displayed by at least one IJ.  Seems like a fairly clear case.

Monday, July 22, 2013

Three Cases (Cal. App. Cts. - July 22, 2013)

Let's see what the California appellate courts have for us as we begin this fresh new week.

Three published opinions so far.  One is from the Court of Appeal and concerns the child of a child:  who's entitled to custody of someone who was born to his 14-year old mother who subsequently became homeless, pregnant again, and then incarcerated for strong arm robbery and motor vehicle theft.  The American Dream.

The second is from the California Supreme Court and addresses whether the trial of someone accused of molesting his eight-year old niece (for four years) can include evidence that the defendant allegedly previously molested his five-year old sister when he was thirteen.  The third is equally uplifting, and involves whether a defendant accused if molesting his girlfriend's six- and seven-year old sisters can introduce evidence that the victims were (1) both allegedly molested by other people previously, and (2) caught engaging in various age-inappropriate sexual conduct; e.g., masturbating with a toothbrush as a five-year old.

The background soundtrack to today's opinions would accordingly be this Whitney Houston song.

U.S. v. Board of Directors of Truckee-Carson (9th Cir. - July 22, 2013)

Pretty neat that the panel corrects an error that it forthrightly admits it made several years ago.  Notwithstanding the fact the mandate has long since issued.

Friday, July 19, 2013

Natalie D. v. State Dep't of Health Care Svcs. (Cal. Ct. App. - July 18, 2013)

I had never heard of "hippotherapy" before I read this opinion.  I suppose that even with my limited knowledge of Latin roots, I should have been able to figure out what it was before the third page of the opinion.  But I didn't.

I know now, though.  The clue being that it is not a type of physical therapy that involves putting the patient on a hippopotamus.

I also now know that California doesn't pay for it.  Just regular old PT.

POSTSCRIPT - A reader with an ancient tongue notes that "hippo" is actually a Greek root, not Latin.  My ignorance seems so much more justified!

Thursday, July 18, 2013

Baughman v. Walt Disney World, Inc. (Cal. Ct. App. - July 18, 2013)

The saga regarding Segways at Disneyland continues.

Suffice it to say that the California Court of Appeal is not nearly as fond of the machine as the Ninth Circuit.

Today's opinion is published a year after the Ninth Circuit's opinion.  To the day.

Coincidentally enough.

U.S. v. Aguilar-Reyes (9th Cir. - July 18, 2013)

Everyone agrees that Aguilar-Reyes is entitled to resentencing.  The problem is that he has already been deported, so that cannot happen, since he's entitled to be there personally.  So whatchagonnado?

The Ninth Circuit decides to affirm the (improper) sentence "without prejudice to a later request by him" to be resentenced.  I am all for equity, and this seems about right.

But the proceduralist in me worries that there is no such thing as a "request" in federal court.  Especially in criminal cases.  There are habeas petitions.  There are motions to vacate.  There are various other procedures as well.  Each with their own preconditions.  I'm not sure where the Ninth Circuit's proposed "request" fits into this structure.  Or how it satisfies the underlying procedural requirements.

It should.  There should be some way to accomplish what the Ninth Circuit wants.  But I am by now quite familiar with the fact that federal criminal law often refuses to find a way to do what's right, and repeatedly places procedural roadblocks in the way that prevent such relief.  Especially when, as here, an appellate court has "affirmed" a sentence and it is thus final.

So I wonder precisely what procedure Judge O'Scannlain is thinking about here.  Other than saying simply "you can do it because we say you can."  Something that is clearly not good enough in other contexts.

Strong v. Valdez Fine Foods (9th Cir. - July 18, 2013)

Judge Silverman has a point.

Wednesday, July 17, 2013

Woods v. Cary (9th Cir. - July 17, 2013)

Judge Reinhardt writes an opinion holding that a statute that caps recoverable prisoner attorney fees at 150% of a monetary judgment does not apply to attorney fees on appeal.  Judge Murguia dissents.

Judge Reinhardt articulates lots of persuasive policy reasons why the cap should not apply on appeal. I think he's right.

But I think that the Congress that passed the statute would disagree.  And would be less nuanced than Judge Reinhardt in its distaste for lawsuits brought by prisoners.

I think that's also true of the Supreme Court.  Which I could easily see stepping in with an old-style summary per curium disposition that is the final word on this circuit split.  Putting -- for some of the justices -- Judge Reinhardt in his place.  Again.

That's a descriptive, not normative, judgment.  We'll see where this one goes.

Fortner v. Superior Court (Cal. Ct. Appp. - July 17, 2013)

You would think it would be fairly obvious that you cannot charge someone in California for a spontaneous assault that transpired in Hawaii.  But apparently it takes an opinion in the Court of Appeal.

For civil procedure folks, this result seems self-evident.  Surely you could not sue someone for this offense in California based merely on the fact that the assault might have an effect in California.

Criminal and civil jurisdiction are not the same.  (Though, ironically, it is only criminal venue that is expressly circumscribed in the Constitution.). But the result here is the same.

There are crimes that take place in multiple jurisdictions.  But this is not one of them.

Tuesday, July 16, 2013

Malin v. Singer (Cal. Ct. App. - July 16, 2013)


Legal "pitbull" Marty Singer writes a demand letter to a restaurant owner on behalf of his client (a partner of the would-be defendant) and encloses a draft complaint.  Singer claims that the owner has been diverting funds from the restaurant, to the detriment of the client.  So far, a routine and entirely proper demand letter.

But then Singer ups the ante.

The demand letter (and draft complaint) then alleges that the defendant used some of the ill-gotten booty "to arrange sexual liaisons with older men, including Judge (X) a/k/a "Dad" (see enclosed photo)."

Hmmm.  I wonder why Singer included that part?  I don't recall that being an element of the tort.  Is it possible that portion of the letter and draft complaint was included for some other purpose?  Does the word "blackmail" (or the more technical legal word, "extortion") come to anyone's mind?

It certainly came to the mind of the defendant.  Which sued Singer, claiming precisely that.  (As well as illegally accessing his computer files and illegal wire tapping.)

By the way, to the degree it might help one judge Singer's intent, his letter also expressly says that while the draft complaint included blanks for the names of defendant's same-sex partners, "when the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading."  Oh, and the draft complaint also alleges that the defendant liked to "live out fetish role play fantasies, while playing out (his) versions of a father/son and uncle/nephew relationship."  Another element of the crime of embezzlement, presumably.

Singer files an anti-SLAPP motion, which the trial court denies, holding that the letter constituted unprotected extortion under California Supreme Court precedent.

The Court of Appeal reverses.

Justice Suzukawa argues that there was nothing extortionate about threatening to reveal defendant's private sexual antics -- including a photo (!) of one of his partners -- unless he paid a substantial sum of money.  The Court of Appeal further claims that the exposure of these alleged incest fetishes would not "subject (defendant) to any more disgrace than the claim (by a business partner) that he was an embezzler."  Finally, the Court of Appeal holds that not only was the purported extortion protected by the anti-SLAPP statute, but is also immune from suit under the litigation privilege.


Blackmail is an admittedly difficult doctrinal concept, and innumerable smart people have tried in vain to figure out why people can (1) demand money, and (2) voluntarily reveal private facts, and yet cannot do both simultaneously.  Nonetheless, the Court of Appeal's failure to see through the thin veneer here is fairly striking.  If this is protected speech, I'm going to make my own demand letters a LOT more vivid going forward.  Including whatever slim links to the defendant's sexual practices when my creative mind can come up with.

Singer's still potentially on the hook for wiretapping, which isn't protected.  But the alleged extortion gets a categorical pass.  As well as an award of attorney's fees.

Monday, July 15, 2013

Abers v. Rohrs (Cal. Ct. App. - July 15, 2013)

Some condo owners and the property owner get into a fight about how much rent is owed.  There's an initial declaratory relief action and then the case goes to arbitration.

After the arbitration is over -- with an award in favor of the property owners -- everyone knows there will be a fight about whether the award should be confirmed.  So the property owners run into court and file an ex parte request (in the technically "pending" declaratory relief action) asking the court to require that any confirmation fights be filed under a new case number.  The condo owners oppose the request, and the trial court says it doesn't feel like resolving this issue until someone actually files.

The condo owners indeed want to fight the arbitration award.  Rather than squander scare resources on the somewhat meaningless issue of whether such a petition should be filed under the "old" or a "new" case number, they decide to do it the way the property owners wanted, and file it under a new case number.  As the opposing party (the property owners) wanted.  They then serve the petition by mail on opposing counsel.

But there's an 100-day deadline to vacate an arbitration award.  And after the deadline expires, the other side then says:  "Sorry.  You filed it under a different case number.  Which means you can't serve things by mail.  That would have been fine under the old case number.  But since you did it the way we wanted -- by filing under a new number -- you had to serve us personally.  Which you didn't do within 100 days of the arbitration award.  So now you lose.  Gotcha!"

The Court of Appeal agrees.

Deadlines are harsh.  I'm sympathetic to the Court of Appeal's view that in a case like this, in which the condo owners are represented by counsel, a failure to understand how something has to get served within a particular deadline isn't something that gets a party relief.  The deadline's the deadline, and it was blown.  You can potentially sue your attorney, but you can't resurrect the deadline that's passed.

The one thing I'm not as confident about is the Court of Appeal's argument in response to the condo owner's (understandable) focus on equity.  The condo owners say it would be inequitable to allow the property owners to sleaze them.  The Court of Appeal, however, responds that equity is categorically inapplicable whenever a party makes "deliberate" strategic decisions; e.g., the decision to file under a new case number here in order to avoid resulting disputes.  Having made a "deliberate" decision, the party is purportedly precluding from obtaining equitable relief.

That doesn't seem right.  Equity grants relief for lots of deliberate decisions. Indeed, I'd imagine that most affirmative decisions in equity involve deliberate decisions, in one form or another, on the part of the requesting party.  The fact that a decision is deliberate and/or "strategic" may well be a factor in whether to grant equity.  But I don't think that equity categorically excludes relief for a deliberate act.  Particularly, when, as here, that act seems well-motivated; e.g., to avoid unnecessary cost to both sides (as well as the judiciary).

Again, here, the result nonetheless seems defensible.  Counsel should have known better.

But the Court of Appeal's dicta might perhaps be less categorical as well.

Friday, July 12, 2013

In Re Marriage of Ficke (Cal. Ct. App. - July 11, 2013)

Let's reset the stage.  A former spouse can easily make a hefty (mid-six-figure year) salary, but decides to be minimally employed instead.  The other former spouse makes five figures.

Normally, in calculating support ("alimony"), the high-earner pays the lower-earner.  Even if the former elects not to work.  We "impute" the income the high-earner could earn.

The individuals here have a teenage child.  The first (high-earner) spouse has custody, so the low-earning spouse pays child support.  Should the low-earner get support/alimony from the high-earner, or should we instead refuse to impute income to the high-earner, and leave the parties as they are (with the low-earner paying the high-earner)?

The trial court imputed income.  The Court of Appeal reversed.  Holding that you're only allowed to impute income if it's affirmatively in the "best interests" of the child.

Yours truly supported an alternative rule.  Arguing that the low-earner should receive support as long as it wasn't inconsistent with the interests of the children.  Claiming that the transfer of wealth from a custodial parent to a non-custodial parent never benefits a child -- since it always reduces the amount of money that a custodial parent might potentially otherwise spend on the child --  but is nonetheless fair.

The Court of Appeal then modified its opinion.  Adding a footnote that says (in relevant part):  "Obviously, to reduce the amount of money a custodial parent receives will never be 'consistent with' the best interests of the children, all else being equal.  Accordingly, imputation to a custodial parent requires some offsetting benefit to the children, which can often be found in the benefit of the noncustodial parent being able to spend more time with the children."

I appreciate the caveat.  It makes the Court of Appeal's rule slightly better.  It also made me recognize that it was an overstatement when I said that imputation would "never" help children.  The Court of Appeal rightly articulates a potential exception to this purportedly categorical result.

But I still think my rule is better than the Court of Appeal's.

I should have said that almost never will imputation help the children.  Yes, in a small number of cases, it's possible that giving the low-earning spouse support will enhance her ability to spend time with the kids.  Maybe permit her to ditch a second job, or buy another plane ticket to visit the kids.  I can imagine such situations.

But they're rare.  Exceedingly rare.

The overwhelming majority of cases are exactly like the one here.  Keeping the poorer parent poor doesn't mean s/he'll spend less time with the kids.  It just means s/he'll be unfairly disadvantaged by the richer parent's unilateral decision to be underemployed.  Ergo the result here.  No support from the six-figure parent to the five-figure parent.  Even when paying such support wouldn't impact the two teenage kids here even in the slightest.

So I like the footnote.  But still prefer my alternative.

Shearin v. Brown (Cal. Ct. App. - July 11, 2013)

I'm sometimes a bit dubious about the creative ways that appellate courts occasionally come up with to justify the refusal to certify a class.

But not here.

California occasionally makes mistakes in calculating the release date of its prisoners.  This results in some individuals being incarcerated when they should be free.  (It also results in the erroneous early release of some inmates who should remain incarcerated.)

That's wrong.  Those adversely affected deserve a remedy.  California calculates that there are 594 such people.  My strong sense is that few of them are both aware of the error as well as able to navigate the relevant claim process.  As a result, many -- probably nearly all -- of them do not receive what they deserve.

Class actions are designed, in part, to solve this problem.

Class treatment is nonetheless not warranted here.  As the trial court and Court of Appeal held.  There are a variety of reasons -- a variety of different mistakes -- that result in erroneous calculations of the release date of individual prisoners.  The results may be the same:  erroneous incarceration.  But there is no uniform process that leads to this result.  The common questions do not predominate, and class treatment is not superior to individual actions.

Thursday, July 11, 2013

In Re D.B. (Cal. Ct. App. - July 11, 2013)

I've never seen a child's gastrointestinal tract play as much of a role in child welfare determinations as it did in this case.

Here's a snippet.  With the warning that it's somewhat messy (as well as lengthy):

"Father and mother are the parents of six children together, with their three youngest, all boys, being the subject of this appeal. Father and mother also have two children each from other relationships. The case began when the Agency filed a dependency petition regarding all of the children in June 2008. In October 2008, the children were adjudged dependents of the court. In support of its order, the juvenile court made a number of findings, including the following: the parents had a relationship characterized by domestic violence that was witnessed and imitated by the children; a female child reported sexual abuse by her half brother; the children reported that the parents used excessive physical discipline; mother had mental health problems requiring therapy; father had a possible drinking problem requiring assessment; father physically abused his children from another relationship; and several children of one or both parents were former dependents of the court.

A reunification period of over a year and a half followed, and during it the boys were placed together in three different foster homes. Status reports filed during this time described worrisome behaviors by the boys. The younger brother suffered possible developmental delays, which may have been due to brain bleeding at birth. The middle brother showed aggression when he was two years old and engaged in 'head banging.' The older brother, according to his foster parents, 'play[ed] with his feces all the time' when he was first placed in their care but stopped by early 2009. . . .

The juvenile court renewed the boys' dependency status at post-permanency review hearings on January 13 and August 9, 2011, and on January 10, 2012, following the filing of status review reports describing the boys‟ progress in their aunt's care. According to these reports, the boys displayed a good deal of aggression when they were

first placed with their aunt, but they became less aggressive over time. The social worker reported at one point that the older brother had shown great improvement in his behavior and emotional regulation, although his preschool continued to work with him on his physical behaviors and socialization skills, and he still at times screamed uncontrollably and acted out sexually. The middle brother suffered from severe diarrhea early on in the placement that was attributed to anxiety. He was asked to leave his preschool because of violent behavior, and he was disruptive at a second preschool placement, where he hit and bit students and teachers. He was 'severely delayed' in his speech, scored 'very low' on an early childhood screening test, and suffered 'severe behavioral and emotional issues' related to anxiety and posttraumatic-stress disorder. The younger brother's behavior was reportedly normal, although he continued to experience developmental delays.

Mother was generally consistent in visiting the boys, but the boys were at times overwhelmed by the visits and experienced 'episodes [of] emotional dysregulation' when they were with mother and were hard to control. Father satisfied the court-imposed conditions to begin visitation. He visited with the boys in November 2010, and in January, February, and March 2011, but then did not visit with them again until August 2011. The two older brothers reacted negatively when father's visits resumed. The older brother (then about five-and-a-half years old) had a bowel movement in his pants during the first resumed visit, had one a few days later at school even though he was not ill, and acted defiantly at home. The middle brother (then about four-and-a-half years old and fully toilet trained) suffered diarrhea for three weeks following the visit. . . .

A new social worker was assigned to the case in early September 2011. Based on discussions she had with the boys' aunt, teachers, and therapists, the social worker became 'extremely concerned' about the boys' behavior and 'the constant re-exposure to the biological parents with whom they experienced extreme violence and neglect,' which led to a 'spike' in 'problematic behaviors,' including aggression, biting, and scratching. The older brother appeared to react the strongest to visits with his parents. He acted out aggressively after a visit with father in late August 2011, and as of late September (a few months shy of his sixth birthday, when he was otherwise a fully toilet-trained kindergartener), he had had a bowel movement in his pants three out of four visits with father. The middle brother reportedly had less ability to focus at school after visits with his parents and became more emotional and aggressive, while the younger brother's behavior could 'escalate very quickly at times.'

The new social worker consulted with the director of the early trauma treatment center at San Francisco General Hospital, who had served as a consultant for the Agency for 27 years and had conferred with a previous social worker assigned to the case. The consultant recommended that all visits between the boys and their parents be terminated. The consultant stated that the boys' behavior showed 'the classic characteristics of children whose brain development and emotional health has been derailed by their early experiences as they show emotional dysregulation, for example, in the form of the inability to control feces when under stress; severe aggression; lack of tolerance for frustration; fear of separation; chronic sleep problems and night terrors; violence towards teachers and peers; and food hoarding.' She believed that visits with the parents were 'a reminder of the traumatic experiences that they experienced when in their care,' and that 'their behaviors represent the trauma they suffered though they cannot articulate their pain.'

In late October 2011, the aunt reported that the older brother had a bowel movement during a visit (apparently with mother) that was so bad his clothes had to be thrown away. He was able to avoid an accident during a different visit (this one with father), but he then had diarrhea for the two days following it. The younger brother, who was almost four years old and fully toilet trained, also soiled his pants two days in a row after visits with father. The middle brother appeared withdrawn at school the day after an October visit with mother, and he pointed to 'angry and sad faces' when his therapist asked him to describe how he felt after the visit. Because of his behavior at preschool, he was on the verge of being expelled just three months after starting there. According to the social worker, all three boys acted out following parental visits, and this pattern continued through early 2012."

I'm no expert on this stuff.  I'm not saying anything about the merits.  But I've read a lot of these opinions.  Lots of different kinds of trauma.  But never before have I seen a case in which there was so much discussion of the kids' poo.

Wednesday, July 10, 2013

Elim Church of God v. Harris (9th Cir. - July 10, 2013)

The first sentence of this opinion by Judge Thomas -- which holds that the expiration of a regulatory time period was dispositive -- contains the quote "Time is the fire in which we burn."

It's a neat reference.  Even if that sentence also geekily refers to a Star Trek character who uttered the line.

Too bad the opinion wasn't published three months ago.  Since the line comes from Delmore Schwartz's poem, "Calmly We Walk Though This April Day."

Coincidentally enough, however, the opinion gets published on July 10.  The last full day of Schwartz's life.

Tuesday, July 09, 2013

Action Recycling, Inc. v. IRS (9th Cir. - July 9, 2013)

This is one of those opinions where I don't really see the other side.

It's not that I don't understand how one could argue the other way.  But that side nonetheless seems so obviously wrong that it seems weird that a party would find it beneficial to argue (and appeal) the point.

For example, here, there's an underlying -- understandable -- premise that the IRS can't undertake "unnecessary" audits.  Backed up by a statute that says so.  Fair.

Similarly, one might normally think that it's irrational for the IRS to examine the exact same set of records when it's auditing a company.  True enough.

But here, the IRS examined a set of company back records, and took some notes, but didn't copy the actual records.  Later, the IRS examiner who took the notes left the IRS.  So the later examiner had a desire to see the records the earlier one had already seen.  But the company refused.  So the IRS had to get a summons.

All this makes sense.  At least to me.  As well as to Judge McKeown.  Who writes a tight, nine-page opinion explaining why all this is proper.  And doesn't even require oral argument.

Exactly right.

Yes, it would have been "nice" (I guess) if the first IRS agent had copied the records rather than merely taking notes.  But that he did the latter doesn't mean that the IRS is categorically unable to reexamine the records.  They're allowed to.  End of appeal.

Monday, July 08, 2013

Nivo I LLC v. Antunez (Cal. App. Div. - July 8, 2013)

I remember back in my younger -- renting -- days routinely seeing (and signing) lease provisions that facially required me to have renter's insurance.  Which I never bought.

I understood at a general level why a landlord might want a tenant to have insurance.  Generally it benefits the renter; for example, if their stuff is stolen, there's some reimbursement.  But that might also marginally help the landlord.  It might make a lawsuit for inadequate security on the premises less likely, might mean the renter can still pay their rent, etc.

However, I also thought that the landlord's interest in this regard was incredibly low.  The real reason these provisions were in there, I thought, was simply because the landlord could insist upon them and the tenant wouldn't really object.  Instead, they'd simply sign and refrain from buying.  As I did.  The landlord wouldn't care at all, unless the tenant became a problem.  At which point the landlord might then seek to evict them on the basis of the alleged "breach" of the insurance provision.

My sense in this regard was heightened by the fact that no landlord of mine ever sought to verify that I had renter's insurance.  If they cared, they would have cared.  And they didn't.

The Appellate Division apparently has a similar sense.  Holding that the failure to procure renter's insurance isn't a "material" breach of the lease.

I can see situations in which the converse might be true; for example, when the insurance is broad and when the landlord uniformly checks to make sure the tenant maintains it.  But that's not the case here.  And, I imagine, it's not the case nearly anywhere else either.

Friday, July 05, 2013

John v. Alaska Fish & Wildlife Conservation Fund (9th Cir. - July 5, 2013)

There are lots of things I'm thinking about on July 5th.  Most of these thoughts, however, do not relate to the details of how one goes about subsistence living on federal land in Alaska.

But for those who have elected such a life, this opinion certainly gives their claims fair treatment.  It's super long.  Sixty-six single-spaced pages.  Describing at length the various rules that apply to how and to what extent the federal government allows rural subsistence existence in Alaska.

I think it'd take a major psychological break for me to ditch everything and live alone in the often-freezing depths of rural Alaska.  But were I to do so, Judge Kleinfeld tells me how it'd work.


P.S. - Am I mistaken, or are a large fraction of the big "Alaska" cases written by Judge Kleinfeld?  I know that panel assignments are supposedly (largely) random.  I would also not be surprised if Judge Kleinfeld wanted to take -- and write substantial opinions in -- big-ticket Alaska cases, and the other panel members were generally willing to let him to do.  So that may explain a big part of it.  But I swear that at least three-quarters of the Alaska-centric opinions that I recall offhand have Kleinfeld as the author. 

The guy has definitely made his impact on the state.

Wednesday, July 03, 2013

U.S. v. Huizar-Velazquez (9th Cir. - July 3, 2013)

It's another federal criminal case out of San Diego.  Arturo Huizar-Velazquez was a smuggler who slipped his ill-gotten booty across the border.

Drugs?  Immigrants?

Nope.  Coat hangers.

I know.  I was surprised as you.  Who smuggles coat hangers into the United States?!

It was actually fairly brilliant, I think.  As well as totally straightforward.

Apparently China was dumping wire hangers, so the U.S. hit 'em with retaliatory tariffs of 187.25 percent.  At which point Huizar-Velazquez bought a bunch of wire hangers from China, imported them into Mexico, put 'em into boxes labeled "Made in Mexico," and shipped them to the United States.  Making millions and millions of dollars in the process.  Easy peasy.  (The actual details were slightly more complex, and involved initially shipping them into the U.S. for resale in Mexico, then shipping them there and putting 'em into the "Made in Mexico" boxes and shipping them back.  But the basic principle was the same.)

Until, of course, he got caught.

Surprisingly, there were neat little sentencing issues that came up.  Which the Ninth Circuit persuades me that the district court in fact got wrong.  So the case gets remanded for resentencing.

None of which detracts from the fact that there are lots of things I might think about smuggling across the border.  Wire hangers were way at the bottom of the list.

Williams v. Johnson (9th Cir. - July 3, 2013)

Here's a case where a Ninth Circuit panel whose prior opinion was summarily reversed by the Supreme Court says it'd be just fine were the Court to do so again.

I was actually thinking last week about what a generally frivolous waste it is for litigants to file rehearing petitions in the United States Supreme Court.  Reading the Ninth Circuit's post-remand opinions here, however, it looks like this may well be one of those cases is which the Supreme Court did indeed get supremely sloppy.

Tuesday, July 02, 2013

U.S. v. Stoltz (9th Cir. - June 27, 2013)

Lots of Double Jeopardy Clause jurisprudence seems downright silly.  Including but limited to the whole "dual sovereign" thing that allows multiple prosecutions for the exact same offense.  Crazy.

So when I saw that this opinion was about someone who'd been prosecuted by the U.S. military, and then by the United States, I thought:  "Oh.  Is this going to be some absurd rule that says that's okay?"  And sure enough, that's what the Ninth Circuit holds.

But you know what?  It's right.

Judge Fisher gracefully points out that the defendant here wasn't subjected to a court martial by the U.S. Coast Guard.  If he had been, then, yes, the Double Jeopardy Clause would have barred his subsequent criminal prosecution by the United States for the same offense.

Defendant instead was subjected to something in the military called "nonjudicial punishment" -- NJP.  Something that's for "minor offenses" and in which the punishment is capped at 30 days confined to quarters (or in the brig), reduction in rank, loss of a month's of pay, and the like (e.g., KP duty).  For a non-military guy like me, it sounds sort of like a misdemeanor.  Or in military speak, like the sort of stuff your commanding officer can do to you when s/he thinks you've totally sucked.  Not as serious or judicial as a full-blown court martial, with a trial and all.  Just a way your superior can spank you when you're out of line.

So that's what happened to Chris Stoltz.  He gets busted when one of his crew mates sees him watching kiddie porn on the ship.  When it was docked in Nome, Alaska.  (I'll omit the various things I might say at this point.)  This is a big deal, so they wait to see if Stoltz gets prosecuted.  But when nothing happens for months, the captain of the ship thinks it's important for the rest of the crew to see that Stoltz hasn't just gotten off scot-free.  So they hold a Captain's Mast, Stoltz admits the offense, and he gets spanked with a one-step loss in rank, some extra duty and lost pay.  Stoltz is eventually discharged from the Coast Guard (not surprisingly), though I was somewhat surprised that it wasn't a dishonorable discharge, but instead a "General Under Honorable Conditions" separation.  (Seriously?!  "Under Honorable Conditions"?)

Three years later Stoltz gets charged criminally for this same offense.  Why'd it take so long?  Not a clue.  Seems crazy.  But there you have it.  At which point Stoltz raises his defense under the Double Jeopardy Clause.  Which the district court guys, dismissing the indictment on that basis.

But the Ninth Circuit reverses.  Yes, Stoltz could have been court martialed.  But he wasn't.  And, yes, Stoltz could have insisted upon a court martial rather than NJP (or, more accurately, could have rejected the NJP and forced the military to go the court martial route if it wanted to, since no one can make the military court martial you).  But he didn't.  That Stoltz could have essentially been charged criminally doesn't make a Double Jeopardy Clause violation when that's not what in fact transpired.  Seems right to me.  (Ditto for Judge Fisher's analysis about it not being a constitutional violation requiring dismissal of the indictment when the military neglected to inform Stoltz of his right to force the court martial route if he wanted.  Similar deal.)

So in the end, notwithstanding the fact that I'm constantly suspicious of double jeopardy cases, I think this is the right outcome.  Stoltz gets a criminal trial.

Mind you, as a non- (or only partially-) legal matter, I will note the sharp contrast between the type of punishment the military thought was appropriate and what Stoltz is facing in federal court.  He's facing years and years in federal prison -- a long time -- for an offense the military only gave him a loss of one rank and an honorable discharge.  The divergence between the two is pretty striking.

Which is not to say that one's right and the other's not.  Perhaps the truth (or "justice") lies in the middle.

Though that's not likely what Stoltz will actually receive.  It's a binary choice here.  We've come a ways in recent years with respect to kiddie porn sentences.  But there's still a monster difference between the slap on the wrist Stoltz received from the military and what he's looking at in federal court.


Monday, July 01, 2013

SFPP, LP v. PUC (Cal. Ct. App. - July 1, 2013)

What?!  You mean to tell me that utility companies have created an incredibly complicated system of limited partnerships and the Public Utilities Commission had the audacity to (1) not reimburse them for taxes their downstream owners may or may not pay, and (2) only granted them a return on equity of 12.61% instead of the 15.86% the utilities wanted?!

Cry me a river.

M.J. v. USA (9th Cir. - July 1, 2013)

I had never really thought deeply before about the difficulties of law enforcement in incredibly rural communities.  When I think of "rural" places, I generally think of locations in central Nebraska and the like.  You've got a very small police force, to be sure, and perhaps it's located dozens of miles (or even more) away.  But I'm still thinking Andy Griffith.  The general structure still works.

But we're in the Ninth Circuit.  Which includes Alaska.  What do you do when the rural community of 650 or so is located really far from the next communityHundreds of miles.  With no roads to even get there.  How do you conduct law enforcement?

It gets even more complicated when the rural community is essentially coextensive with an Indian tribe.  Then difficult jurisdictional stuff makes it especially complex.

There's no easy answer.  As this case demonstrates.

Alaska has a special attraction to many in the Lower 48.  "The Last Frontier" and all.  The prospect of lawlessness and lack of medical care may perhaps may it less so.  Though, at the same time, the need to rely on one's community perhaps simultaneously makes the place all the more special.

It's a different place, Alaska.  Especially in the bush.