U.S. v. Hernandez-Estrada (9th Cir. - April 30, 2014)

One problem with en banc proceedings is that it's sometimes impossible to create a majority coalition in support of any particular approach.

Which sometimes leads to opinions like these.

The majority is absolutely right that the "absolute disparity" approach to juror representation claims is fundamentally flawed.  For this reason, there's no way I could agree with Judge Milan Smith (joined by Judges Silverman and Bea), who would retain this approach as circuit precedent.  Virtually no one who cares about this stuff supports such a model.  Precisely for the reasons the majority articulates.

At the same time, I think that Judge Milan Smith -- as well as Judge Randy Smith -- are exactly right that the majority does a profound disservice by rejecting the absolute disparity approach, surveying the various competing approaches, and then adopting none of them.  The majority essentially says:  "We overrule circuit precedent adopting X approach.  The competing approaches are A, B, C, D and E.  So there you have it.  Good luck, district courts."

I understand as a political matter why one might perhaps be constrained to do that.  You've only got a 7-member majority.  Maybe two judges want A, two others want C, one wants a combination of B and E, and so on.  Articulating a rule may accordingly be practically impossible.

But, in my view, you've got to try.  Essentially what the majority is saying is that it's too hard for them to agree on an approach, so they boot it downstream.  District court judges -- since they're solo -- will not have "coalition" problems.  And, as a practical matter, these challenges are likely to fail anyway.  If only because it's too burdensome and expensive for a single defendant to make the rigorous statistical showing that's required in these cases.  Even more so once the Court of Appeals has decline to create a controlling standard, so you're practically required to survey all of 'em.

And, even if those burdens can be overcome, look what happens here.  The Court of Appeals unanimously affirms the conviction.  Because in this particular case, regardless of the approach, the substantive requirements -- whatever they might be -- aren't satisfied.  So too in future cases.

So good luck blowing scarce resources on a challenge that's wildly expensive and also almost certain to fail.

I understand the practical realities here.  But I nonetheless can't help thinking that it's just not okay to punt like this.  There super smart people on the Ninth Circuit.  No one else is in a better position to figure out what the right rule should be.  There may well be disagreement.

But you gotta try.

In Re A.B. (Cal. Ct. App. - April 30, 2014)

"On October 15, 2012, DCFS received a referral that [two-year old] A.B. was developmentally delayed, appeared unhealthy, and was primarily cared for by her maternal grandmother Maria B. (maternal grandmother), who appeared to have mental health issues. An emergency response social worker immediately investigated but could not locate A.B. The social worker spoke with mother, who denied the allegations and refused to cooperate with DCFS. The next day, the social worker contacted father and learned that A.B. could not yet walk and was behind on her immunizations. The social worker also gained access to mother’s apartment, which was cluttered with thirty boxes filled with paper and trash. A mattress and a mattress pad were on the floor, but no baby crib or any other furniture was found in the apartment. . . .

[O]n December 27, 2012, University of Kentucky police officers found A.B. with maternal grandmother, who was wandering around outside on the university’s Lexington campus. The temperature was below freezing and it was windy, but A.B. had no pants, shirt, shoes, sweater, jacket or gloves. A.B. was examined by a doctor in Kentucky, who determined she met the criteria for Failure to Thrive based on her low weight and delayed physical development. Kentucky police discovered mother had wired money to maternal grandmother multiple times while A.B. was purportedly missing.
 A.B. was returned to California and placed in foster care. Her weight was below the fifth percentile for her age, and her body mass index was only sixteen percent. She was developmentally delayed and could not yet walk or talk due to social deprivation."

Cases like these make me more than happy that I'm not appointed counsel for parents.

Frost v. Van Boening (9th Cir. - April 29, 2014)

Think that en banc panel draws don't matter much?  Think it's irrelevant that the Chief Judge gets to be automatically put on the panel?

Think again.

It's a 6-5 opinion.  The lineup is pretty much how you'd expect:  left-leaning judges together and right-leaning judges on the other side in this criminal case.  The swing vote is Chief Judge Kozinski.  Who joins the left and gets 'em to six.

Draws will matter less -- at least for a while -- now that the Ninth Circuit has only nine Republican active appointees (really, ten if you count Judge Tallman, as one should) versus 19 Democratic appointees.  That'll be even more the case once Judge Thomas becomes the chief later this year, since they'll then be an automatic left-of-center addition to the panel (as contrasted to the right-leaning, and yet wonderfully idiosyncratic, Chief Judge Kozinski).

But since we're back to 11-member panels, it'll still matter in some cases.  As it does here.

In Re Marriage of Boswell (Cal. Ct. App. - April 28, 2014)

Part of me just wants to cut-and-paste this entire opinion.  It's only six pages.  And it's fascinating.

Justice Yegan's opinion is as concise as it is expressive.  He doesn't at all mind telling the reader how he feels.  The author sets the tone of the opinion with its very first line:  "This is another frivolous family law appeal."  And then the opinion really lets loose.

On the merits, Justice Yegan seems exactly right.  His truncated opinion doesn't give much factual color.  But he accurately summarizes the case in a way that makes pretty clear why the opinion comes out the way it does:

"The family law court is a court of equity and fairness. Here the trial court, exercising its broad equitable discretion, refused to enforce a 25 year old judgment for child support arrearages because appellant (mother) concealed the children for 15 years. It specifically ruled that doing so would be "inequitable," that the request was "untimely," "unjust" and "[t]his is just a terribly egregious situation." The trial court did not credit mother’s factual explanation. It did credit respondent's (father’s) factual explanation, i.e. he did not visit the children or pay child support because mother did conceal the children."

Seems right to me.  Father was ordered to pay $70/month in child support, but Mother then took the kids, changed their names, left California, didn't tell Father where she (or the kids) were, and -- after "giving back" one of the kids when he turned 16 -- sued Father for "overdue child support" (to the tune of $92,000+) when the kids were . . . in their 30s.

Yeah.  You're not going to win that one.  In the trial court or in the Court of Appeal.  Equity.  Unclean hands.  Not going to happen.  Can't hide your kids and then, decades later, sue your ex-spouse for not paying child support for the kids you've hidden.  Pretty simple.

Especially when, as described by Justice Yegan: "These are some of the dirtiest hands we have seen."

I nonetheless found one part of the opinion somewhat strange.

Justice Yegan devotes around a fourth of his opinion to a section he entitles "A Digression on The Use of the Word, 'Holding'".  His basic point therein is the claim that many people use the word "holding" erroneously.  That term, he says, properly identifies the legal rules applied by the appellate court to resolve the appeal.  By contrast, it's not properly used as a synonym for "conclude".  As in, "We hold that the trial court's ruling was erroneous."  That's wrong, he says.

I'm not going to talk about linguistic theory in depth.  Suffice it to say on this point that I'm somewhat sympathetic to the evolutionary force of common parlance.  If people start using a term to mean X, it may well -- almost by definition -- indeed mean X.  Even if it originally meant Y.  So if everyone uses the term "hold" to essentially mean "conclude" -- and I agree with Justice Yegan that that's precisely as many people use it -- then I'm not at all sure that's "wrong".

True, in a particular context, we might want to identify a more limited application of the term.  For example, when deciding between binding precedent and dicta.  But that doesn't necessarily mean that it's "wrong" to say that you "hold" certain things.

Plus, even if linguistic meaning is entirely fixed, I'm not entirely persuaded that Justice Yegan has it right.  I agree that we traditionally use "holding" to mean something like the ratio decidendi of a case.  As contrasted with obiter dicta.  What's the basis for the court's holding?  Why does it come out the way it does?  That's what we generally describe as its "holding".

Justice Yegan argues that this is essentially synonymous with precedent.  Because, after all, a holding of an appellate court is binding precedent, whereas dicta isn't.  For this reason, Justice Yegan says that "[s]ince a trial court cannot create 'binding precedent,' it cannot 'hold' anything."

I disagree.  Trial courts can "hold" things in the same way that other courts can "hold" things.  It's true that such a "holding" may not bind anyone else.  But that doesn't mean that the rule they've applied isn't a rule.  It's still the ratio decidendi.  The mere fact that others need not follow it doesn't matter.

Imagine, for example, a jurisprudential system that didn't have precedent.  Say, when the 51st state of Shaunlandia is admitted to the Union.  In that jurisdiction, the decisions of the Shaunlandia Supreme Court may well be persuasive authority, but aren't categorically binding on lower courts.  Would we really say that such a court has no "holdings" at all?  That there's no ratio decidendi at all?  Nonsense.

Ditto for trial courts.  They've got "holdings" too.  They just aren't binding.  (Oh, and, by the way, it might still make sense to distinguish holdings versus dicta even for nonprecedential opinions.  Because we might well -- indeed, should -- presumptively give more persuasive weight to holdings upon which the case was decided than upon dicta that was not necessary for the adjudication.)

That's not only a pretty descriptively accurate recitation (IMHO) of how we use the term, but it's also consistent with even traditional legal authorities.  Take Black's Law, for instance.  It defines the term "holding" as "to adjudge or decide, spoken of a court".  So when a court "concludes" something, it so "holds".  Admittedly, that term -- as Black's reflects --  is "particularly [used] to declare the conclusion of law reached by the court as to the legal effect of the facts disclosed."  But trial courts do that too.

Just as I can "hold" a belief that extraterrestrial life exists, so too can a trial court "hold" that a statute of limitations is tolled during a plaintiff's minority.  That term has meaning.  And it's not the more limited one to which Justice Yegan appears to subscribe.

So I can get behind the resolution of the present case.  I can maybe even get behind Justice Yegan's decision not to sanction appellant and her counsel (San Francisco attorney Ross Spector) by the skin of his teeth.  (Though I'm not entirely sure why the fact that the trial court was wrong on one of the two bases for its decision immunizes counsel for his decision to appeal a judgment that was indisputably correct.  Seems to me you're still subject to sanction for your frivolous arguments that the trial court erroneously judged your client not credible.)

But the whole "holding" thing?  Which is, ironically enough, dicta?  That part seems misguided.

NBC Universal v. Superior Court (Cal. Ct. App. - April 28, 2014)

Don't let anyone ever tell you that there's a zero chance that the Court of Appeal will hear your writ claiming that the trial court improperly denied your summary judgment motion.

Even when it's a routine, run-of-the-mill denial, you can always dream.  And, sometimes, dreams become reality.

Bisno v. Kahn (Cal. Ct. App. - April 25, 2014)

Want to get around California's usury laws?  I've got a solution for you.

Say you want to loan X $500,000.  But you want to collect an illegal interest rate:  say, 50% a year.  If you try to do this in a straightforward fashion, not only will your usurious loan mean that you don't get any interest, but you'll probably be liable for treble damages as well.

But X is desperate, and you're out to make a buck.  So here's what you do.

Loan X the $500,000.  Make the interest rate low (and legal); say, 5% a year.  But also make the term incredibly short:  say, a week.  Have X agree to a stipulated judgment if he doesn't pay the loan when it's due.  After a week goes by, make the demand, X won't pay, and then enter the stipulated judgment.

Now, normally, all that would get you is a judgment for $500,000 that accrues postjudgment interest at 10% (noncompounded) a year.

But here's where the solution comes in.  Now that you have a judgment, enter into a "forebearance" agreement.  Have X agree that in return for you not immediately enforcing the judgment, he'll pay you a specified amount as a "forebearance fee".  Say, $20,000 a month.  Which -- oh-so-coincidentally -- turns out to be an interest rate of around 50%.

You couldn't have charged 50% up front.  That'd be illegal.  But if you do what I just described, that's not illegal.  According to today's holding from the Court of Appeal.  Even though it has the exact same effect.

I've changed the facts of the case around, but what I've described is doctrinally identical to what the Court of Appeal approves in this case.  Justice McGuiness adds a caveat at the end of the opinion that says that forebearance fees don't get added to the judgment itself (and are instead a separate contract between the parties), and that it's possible that such a contract could perhaps be unconscionable.  But, in truth, those limitations will likely be relatively meaningless.  The fact that the fees are a contract will not detain anyone, since that's no different than any other (usurious or non-usurious) loan.  And, yeah, you could argue unconscionability, but good luck with that.  It doesn't work against pawn shops, it doesn't work against payday loans, and as long as the disclosures are pretty clear, it's not going to work against pretty much anyone.

So there you have it.  A relatively easy way to negate Article 15 of the California Constitution.

You're welcome.

In Re Marriage of Haugh (Cal. Ct. App. - April 24, 2014)

Maybe this will only interest (if at all) procedure or family law people.  But it's a toughie in my book, so I thought I'd share it.

The issue is child custody and support orders.  Imagine that Mother, Father and Child are all in one state (make it California) and Mother and Father get divorced therein.  So there's a California custody and support order at the end of all this.  Mother has custody X% of the time, Father pays $Y support for Child, etc.

Of course, those things are modifiable over time, if either side wants to so request.  And here's the rule with respect to jurisdiction -- overly simplified, but nonetheless good enough for our purposes -- that pretty much every single state has enacted:  if any of the three (Mother, Father or Child) are still in California, then the California court has (1) exclusive, and (2) continuing jurisdiction over its orders.

So if either Mother or Father wants to try to modify the California order, as long as any of the relevant people are still in California, absent a stipulation by everyone to file the motion to modify elsewhere, the motion must be filed in California.  Even if Child now resides in Texas, even if Mother now lives in Arizona, etc.  So long as one relevant person is still in California, the California court is the only one with jurisdiction to modify its order.

So take that as a given.

Here's the question:

What's the right rule for when everyone has left California?  For example, assume Child now resides in Texas, Mother's in Arizona, and Father's in Nevada.  One of the parties (say, Father) wants to move to change his child support amount because he's lost his job.  Where must/can Father file this motion?

Here are the choices:

(A)  California (where the Order was entered)

(B)  Texas (where Child resides)

(C)  Arizona (where Mother resides)

(D)  Nevada (where Father resides)

(E)  (A) or (B), at Father's option.

(F)  (A) or (C), at Father's option.

(G)  (A) or (D), at Father's option.

(H)  (A), (B) or (C), at Father's option.

(I)  (A), (B) or (D), at Father's option.

(J)  (A), (B), (C) or (D), at Father's option.

(K)  (B) or (C), at Father's option.

(L)  (B) or (D), at Father's option.

etc. etc etc.

You're making policy for California.  Assume there's no statute on point, and that this is a matter for common law development.  Or that the statute's hopelessly unclear, and you're trying to figure out what the right rule should be in order to evaluate the strength of the various positions.

What should the rule be, reasoning from first principles?

My sense is that proceduralists (like me) would tend to take as a default view that since the action was first-filed in California and since we're talking about a California order, that California probably has at least continuing -- and perhaps exclusive -- jurisdiction to modify it.  Similarly, family law people might be concerned that if you allow Father or Mother or Parent With Child to leave California and thereby divest the tribunal of jurisdiction (assuming the other parent has already left for another state; say, for work or whatever), you might give people an incentive to forum shop in an attempt to get away from the initial tribunal and modify the order.  And/or that you might be faced with a problem of one of the two parents having a "race to the courthouse" (if jurisdiction wasn't exclusive somewhere) in an attempt to make sure that any motion to modify would heard be in their state rather than the state of the other parent; e.g., to make it maximally easy for you and burdensome for the other side.

Those are the arguments for California having at least concurrent jurisdiction to modify its orders.

On the other side of the equation, however, is the stark reality that no one currently lives in that state.  So why should it care?  Hence why should it have jurisdiction?

Today's opinion by Justice McDonald discusses at great length the underlying statute.  I agree with him that the relevant statute doesn't create "continuing and exclusive" jurisdiction in California.  Even though Minnesota disagrees, I think that the Court of Appeal's right with respect to the statutory interpretation issue on this point.  So I agree that the statute doesn't answer the question.  That's what literally 95% of Justice McDonald's opinion is about.  So that part I understand.

But the opinion reads as if the Court of Appeal thinks that the fact that California doesn't have statutory "exclusive and continuing" jurisdiction answers the question as to whether California retains jurisdiction to modify its own order.  But that's not, in fact, the case.  I agree that the statute doesn't grant the state "exclusive and continuing" jurisdiction.

But what about simply continuing (but not exclusive) jurisdiction?  That's the dispositive issue in the case, which is simply about whether the California court here had jurisdiction to modify its order.  So it seems to me we're getting way too bogged down in whether California has "exclusive and continuing" jurisdiction despite the fact that we only care about the latter.  (True, we've got to answer the former question, since if California has both exclusive and continuing jurisdiction, then obviously it has the latter.  But that's nonetheless only half -- if that -- of the equation.)

It's only in the last couple of pages of the opinion that Justice McDonald talks about whether California has (merely) "continuing" jurisdiction.  And, to be honest, I don't understand what he's saying there.  I agree with him that state courts generally have jurisdiction over child custody and support proceedings.  And that as a general matter, once a court enters an order, it has continuing jurisdiction to modify it.  I get all that.

But if all that's true, then why does the Court of Appeal hold that those general rules don't apply here?  It seems to me like Justice McDonald is saying something about that -- since he has to in order to hold (as he does) that California doesn't have continuing jurisdiction -- but I just don't understand it.

Maybe that's because I'm not a family law practitioner.  Maybe someone in the field would look at this and say "Oh, dude, Justice McDonald is obviously right.  Shaun:  You simply don't understand the XY Doctrine, or the YZ Statute."  That's entirely possible.

But I'd have hoped that, if that's the case, that Justice McDonald's opinion could have made that clear to me.  Since I've tried to read the relevant opinion a couple of times and still can't understand it on this point.

More generally, I'm just not sure what the right rule should be.  Assuming that we're doing a common law thing here (and it seems like we are), I don't know what the law should be.  I can see an argument for continuing jurisdiction in California.  I can see an argument against it.  None of these policy claims are fleshed out in the opinion.  So I'm left somewhat at sea as to how the case should be decided.  Or whether the law -- if it's indeed clear -- makes the right choice.

My initial reaction when I read the opinion was that maybe California should possess continuing jurisdiction (1) pursuant to the usual rules, and (2) to stop forum-shopping/races to the courthouse.  But when I raised this issue to a group of four other law professors at lunch today -- that's one of the advantages of being an idle academic when classes have just ended for the semester -- they seemed to be of the (admittedly weak) opinion that the "best" rule would be one that reposed exclusive jurisdiction in whatever state the Child resides.  So not California.

But every one of them knows as little about family law as I do.  Which is to say:  Virtually nothing.

So maybe the Court of Appeal's holding here is right.  Or maybe it's wrong.  Or maybe it's right on the law but wrong on policy.  Or vice-versa.

I'm just not sure.

Hernandez v. Holland (9th Cir. - April 24, 2014)

One of the great things about reading appellate opinions is that you often see things you've never, ever seen before.

Like in this one.

I've read plenty of cases involving custodial (as well as non-custodial) interrogations.  There are legions of opinions that involve defendants making incriminating statements to the police.

But I've never seen a situation like the one here:  where the defendant allegedly makes an incriminating statement to the bailiff at his trial.

Probably because most defendants have the good sense not to do so.  What's next?  Volunteering some incriminating information directly to the prosecutor?

As a result, on habeas, the Ninth Circuit has do deal with whether or not the statements to the bailiff here were the result of "custodial" interrogation.  It holds that they weren't.

It's an interesting situation.  There's definitely a real potential for abuse if you allow bailiffs to initiate conversations with defendants during their trial -- as the bailiff here admits he did -- and then testify about what the defendant says in response.  At the same time, in the present case, the particular facts surrounding this particular conversation make it exceptionally likely that we're dealing here with simply an overly chatty bailiff (and defendant), not one looking to circumvent Miranda.  Plus, it's a habeas case, so we've got mandatory AEDPA deference.  Given those realities, it's not at all surprising that the Ninth Circuit denies relief.

But, still, an interesting topic.  Just how far can a bailiff go in talking to the defendant without violating Miranda?

People v. Prock (Cal. Ct. App. - April 23, 2014)

If I ever drafted an opinion like this one, I would hope that someone would talk me out of publishing it.

Matthew Prock gets convicted of second-degree murder (but acquitted of first-degree murder) for stabbing a person at a gas station.  The California Court of Appeal affirms in an unpublished opinion.  Prock then files a federal habeas opinion, which the federal court grants (on the basis of an erroneous instruction).  Happens.

Prock then gets retried.  Convicted again.  The California Court of Appeal again affirms.

Nothing unusual there.  The case worked its way through the system exactly as it should.

As it happens, even though the first California appeal was resolved in 2002, the exact same panel -- the same three California justices -- resolve the 2014 appeal.  I'm sure that Prock isn't particularly happy about that, since he lost his first appeal in front of these same judges.  But it is what it is.  Nothing untoward about it.  A panel sticking around for a dozen years is a good thing.

As for the 2014 opinion itself, as I read the first twenty pages, I'm not overawed by the legal analysis.  But it's nonetheless a fairly standard Court of Appeal opinion.  Going down each of the defendant's arguments and quickly rejecting them on multiple grounds.

But then it gets interesting.

At the end of the opinion, Justice Yegan says that he has "an obligation to respond" to the federal opinion that previously granted Prock's habeas opinion.  Which he proceeds to do.  In spades.  Taking the next several pages to slam the federal court's decision as not only erroneous, but also "implausible," an "affront to the judges of this state," and effectively the "work [of] a judicial repeal of the Antiterrorism and Effective Death Penalty Act of 1996."

Whoa.

Let's take this response in pieces.

As for the Court of Appeal's assertion that it has a "duty" to respond to the federal issuance of habeas, that's just silly.  There's no such "obligation".  Yeah, I get it.  You may well not like the federal decision.  This is a feeling not unfamiliar to me.  I don't like a wide variety of federal decisions as well.  But the fact that a judge is reversed -- on habeas or otherwise -- in no way, shape or form obligates a judge to respond.  Even if the federal decision is erroneous, absurd, insulting, written in crayon, or whatever.  It is what it is.  If it's wrong, there's a remedy for that.  A higher court.  They can decide whether it's right.  There's no need for the court that's reversed to give its take on whether its reversal was justified.  Much less is the lower court "obligated" to do so.

Moreover, if there was any such obligation to "protect the integrity" of the reversed court, then it arose in 2007, when the federal court issued its decision.  If the Court of Appeal was obligated to complain, it was obliged then.  Write an op-ed.  Take out an advertisement.  Insult the federal district court in the very next opinion you write.  Why does your "obligation" exist only if (1) there's a retrial, (2) at which the defendant is again convicted, (3) and there's an appeal, (4) that comes to you?  Surely that can't be right.  Surely a court isn't obligated to protect its integrity only when those four things happen to transpire.

Indeed, there are many reasons not to speak only in such a setting.  Not the least of which being the fact that taking advantage of such an opportunity may well make something think that you're affirmatively interested in making (4) happen.  If the only time you feel free to insult the court that's reversed you is if the case comes back to you on retrial, you've got an incentive to make that happen -- by making sure to retain jurisdiction or otherwise grab the case even if that doesn't involve any efficiencies.  Which isn't good for anyone.

What's worse, one might easily think that the fact that the panel may well be frustrated (even understandably) by being reversed could well color the panel's disposition of the present appeal.  After all, the panel's pissed.  So pissed that they're going to go out of their way to slam the federal court that reversed them.  Plus, there's the little matter of the fact that the panel thinks that this defendant should already be in prison.  That he was properly convicted of this exact same offense twelve years previously.  Indeed, that setting the guy free like the federal court did was an "affront to the judges of this state."  Couldn't someone perhaps reasonably think that a panel that headed into the disposition of an appeal with this attitude wasn't exactly itching to resolve the present appeal in the defendant's favor?  Especially since the panel couldn't nearly as effectively attack the federal court's opinion if the panel held (on the merits) that the guy wasn't properly convicted at the second trial either.

It'd be a natural human feeling to want to affirm this guy's conviction because you think that he was rightly convicted before and is only free as the result of an absurd and improper act of a federal court -- an act that you're chomping at the bit to insult.  What better way to do so than to affirm and then to end the opinion by saying (as Justice Yegan does) that this case is a "good example of why the criminal justice system is so often criticized for failing to achieve certainty and finality in its judgments" -- since you've now had to resolve two appeals (rather than simply one) against him in order to keep him in prison.  Only by resolving the current appeal against the defendant can you powerfully end your opinion -- again, as Justice Yegan does -- by saying:  "Appellant was fairly tried and convicted; both times."  That's certainly a lot stronger than ending your slam on the federal court by saying that "Appellant was fairly tried and convicted the first time, but the federal court wrongly reversed us, but this time, we agree that the result of his second trial was improper and hence that his conviction should be reversed."  Doesn't really have the same punch, does it?

Which is why I'd want someone to talk me out writing the opinion the way the Court of Appeal does here.

It's not that I don't empathize with what Justice Yegan and the rest of the panel feel.  I do.  Truly.  No one likes to be reversed.  Especially if (as is often the case) the reversal is thought by those reversed to be both erroneous and overly dismissive.  I get it.  Really.  It doesn't exactly bring a smile to my face either when those in a higher position disagree with what I say -- publicly or otherwise -- and do so tersely or (IMHO) without sufficient analysis or understanding.  No one likes it when others rudely disagree with the expression by an author of a sincerely-held view.

But it comes with the territory.  You've got to have a thick skin.  That's true for a law professor who's writing law review articles and/or a blawg with respect to which -- trust me on this one -- not everyone agrees with every single word.  It's equally, if not more, true for appellate justices.  It's crystal clear to me that you don't have a "duty" to respond to opinions you don't like and/or that reverse you.  It's also pretty clear to me that it's a good practical idea to refrain from doing so as well.  Particularly when, as here, the analytical validity of the reversal of the first trial has nothing whatsoever to do with the proper resolution of the current appeal.

It doesn't help.  It only hurts. Notwithstanding the fact that I have no doubt whatsoever that it will feel oh so good to vent your frustration at the district court that reversed you.

I'll add only one more thing.  As I've said, I get it that the panel's pissed.  It thinks -- as it says at length -- that its opinion was right and that the federal court was really, really, really wrong to grant habeas.  That the federal opinion was a manifest violation of AEDPA and totally absurd.

But that perhaps that feeling -- that frustration -- might be properly tempered by the realization that it wasn't just an absurdly incompetent federal district judge that granted habeas.  The habeas grant resulted from the report and recommendation of a federal magistrate judge.  S/he thought it was the right call.  A call that was confirmed by a federal district court judge as well.  A call that, apparently, the California Attorney General didn't even bother to appeal to the Ninth Circuit.  Presumably because s/he thought that three judges on that court would also agree with the disposition.

Admittedly, maybe the lesson that one could draw from this set of facts is that "they're all in on it".  That the magistrate judge was completely out of it.  That the district judge was similarly insane. That the Ninth Circuit is equally absurd.  That every single one of them is entirely worthy of the critique that the California Court of Appeal goes out of its way to level here.

But maybe -- just maybe -- the fact that all of these people seem to agree that it was the Court of Appeal's original unpublished opinion that was the relevant mistake says something.  Maybe -- just maybe -- it was that opinion that's the one that's not so great.  That maybe (again, just maybe) that that opinion was indeed justifiably reversed.  Even if the authors of that opinion, even upon reflection, (not surprisingly) disagree.

Or that, at a minimum, maybe the uniformity of the federal response might reflect that this is one of those situations in which reasonable minds, acting reasonably, could (and do) reasonably disagree.  Which would tend to negate the need-slash-obligation to respond to a federal opinion the validity of which everyone agrees has nothing to do with the contemporary appeal.

Sometimes people disagree.  Sometimes those disagreements are expressed inartfully, or with perceived insufficient deference.

And sometimes, even though you really, really want to respond, you've just got to let it go.

In Re Ashley F. (Cal. Ct. App. - April 22, 2014)

We all know that parenting in California in the modern era is not like parenting elsewhere in the "old days."  Particularly when it comes to the physical discipline of children.  There's no doubt that there's a variety of practices that were permissible and accepted in an earlier era that aren't similarly viewed today.

At the same time, although a number of people might say that even "spanking" children is no longer okay in California, that's simply not true.  Sure, there are a lot of people (myself included) who take a fairly dim view of physical discipline, and who don't practice it.  But, for better or worse, that's not the law.  You don't get your kids taken away merely because you spank them.

There's admittedly a fine line between what's legally "acceptable" physical discipline and what's not.  A line I can't precisely define.  Even after reading hundreds of these cases.  But there's nonetheless a line.  Or at least a spectrum.

I think that this opinion is a pretty good example of this contemporary reality.

Mother allegedly spanks-slash-hits her kids.  With a belt.  With a coat hanger.  With an extension cord.  DCFS investigates.  You can read the opinion for the type of pain/injuries that the kids incur.  It's not by any means the most extreme abuse imaginable.  But it's somewhat more -- at least if the mother's story is disbelieved -- than you usual "light spanking".

So what to do?

DCFS wants the kids taken out of the home.  The trial court agrees, and removes them.

The Court of Appeal reverses.  You can't just remove kids from their parents simply because they've been inappropriately disciplined.  At some level, the degree of abuse is sufficiently severe to permit removal.  But not here.  Or at least not on this record.

At the same time that it reverses, however, Justice Rothschild makes sure to conclude by saying that "nothing in this opinion should be construed as condoning Mother's physical abuse" of her kids.  A degree of abuse that almost undeniably would have not been labeled "abuse" in an earlier era.  Or, perhaps, even in the contemporary era in various communities (e.g., outside California).

Law and mores evolve.  We see that happen all the time.  Nowhere is it more clear to me than in the area of physical discipline of children.

This opinion is, to me, a definite product of its times.  It would be viewed very differently 50 years previously.  I bet it'll be viewed differently 50 years hence as well.

People v. Garcia (Cal. Ct. App. - Feb. 13, 2014)

Here's something you don't see every day.

It's a murder case.  In which defendant was convicted 35 years after he committed the murder.  We don't have many cases bouncing around the system any more for events that transpired a couple of months after the nation's bicentennial.  (Which I remember well, as I was 10 at the time.  Lots of pretty fireworks.)

It's also a case in which there were no fewer than three trials.  The first one deadlocked 9-3.  In favor of acquittal.  Pretty unusual.

That's also the only one in which the critical witness against the defendant actually testified.  After that, the police sent the witness back to Mexico.  He kept in contact with the authorities for a while and then disappeared forever.  At the second trial, the witness was unavailable, so the jury was permitted to read the transcript of his prior testimony, but was not able to actually see the guy.  That jury deadlocked 8-4.  In favor of conviction.

Third time was a charm.  But not for Garcia.  Witness still wasn't available, transcript was read again, and this time, the jury convicts.  And Garcia gets life plus five years.

Garcia's as successful in the Court of Appeal as he was in the third trial.  Which is to say:  Pretty much not at all.

Garcia still has the possibility of federal habeas relief.  But it's a longshot.  For now, he's spending the rest of his life in prison.  For charges that were filed, and a crime that occurred, in 1976.

In Re Marriage of Metzger (Cal. Ct. App. - March 25, 2014)

I'm not sure who's at fault in this divorce case:  Tammy, Raphael, or both.  But it's long, expensive and seemingly full of vitriol.

Did I mention that Raphael's an attorney?  Who's representing himself?  Well, he is.

The parties end up having to pay $100,000 (!) -- with Raphael advancing the entire sum, and half charged to each party's share of community property -- in order to have another attorney (Eve Lopez) appointed as the attorney for their daughter.  Which, by coincidence, means that one Southwestern Law graduate ends up having to pay a ton of money to a more recent Southwestern Law graduate to represent his kid.

Divorce involving lawyers:  Unfortunately, not often pretty.

Sheehan v. City and County of San Francisco (9th Cir. - Feb. 21, 2014)

It's not a good sign for the viability of a majority opinion when you can't even get Judge Graber to agree that the civil rights claim alleged by the plaintiff is viable.

I can see where Judge Fisher (joined by Judge Noonan) is coming from.  What the police did here was almost indisputably moronic.  They were called by a social worker to transport a woman in her mid-50s who was severely mentally disabled and in a group home for a 72-hour psychiatric hold.  When the officers entered this woman's room (without a warrant), the woman reacted violently, grabbed a knife, and forced the officers to retreat to the hallway.  At which point the door to the woman's room closed (it's unclear from the opinion if the officers did that or the woman did).  And the officers called for backup.

So far, that seems exactly the right thing to do.  Deescalate the situation.  Get backup.  Maybe get an expert to calm her down.  Maybe wait her out (there's no means of escape; she's stuck in her room).  Maybe get some shields or pepper spray or the like.  Worst that happens is that you get a lot of cops and some paramedics and tase her.

However, the officers then decided (1) not to wait for the backup they'd called, (2) to open the door, reenter the room and confront the knife-wielding woman, and then (3) to shoot her five or six times.  Nearly killing her.

Remember:  The sole reason the police were called was to transport this woman for a 72-hour hold.  A woman who they decided to shoot.

Not an awesome decision.  At all.

The majority holds that the officers' conduct may potentially have violated the woman's rights.  Judge Fisher holds that while the initial entry was proper, the officers' decision to reenter the room may well have violated the Fourth Amendment as a result of their use of excessive force.

Judge Graber can't get on board for this.  She partially dissents.  Agreeing with the rest of the opinion (on some subsidiary claims), but dissenting from the Fourth Amendment holding.

I have little doubt -- exceptionally little -- where the Supreme Court would come out on this.  And if Judge Graber can't agree with the majority's excessive force analysis, I think that's a pretty good indication of where a majority of the Ninth Circuit probably would come out.

Which means that even though this is a very fact-specific case, there's a pretty good chance of this opinion not persisting.  Rehearing.  Rehearing en banc.  Certiorari.  More likely than not, one of those three (if not more than one) is where this one's headed.

NRDC v. Jewell (9th Cir. - April 16, 2014)

Back in July of 2012, the Ninth Circuit decided an environmental case involving the delta smelt.  Judge Hug wrote the majority opinion, and Judge Paez dissented.

The dispute was over standing.  Judge Paez began by saying "I respectfully dissent."  Judge Hug affirmed the decision of the district court.  No vitriol.  No nasty names.  Surely reasonable minds can differ, right?

Perhaps.  But the Ninth Circuit took the case en banc.  And today, it issued its opinion.

11-0.  Reversing the district court.

Sometimes the panel simply gets it wrong.

Hopkins v. Kedzierski (Cal. Ct. App. - April 16, 2014)

What do you think about this one?

Plaintiff gets injured at work.  She files a worker's compensation claim against her employer and receives benefits.  Later, she files an application for additional worker's compensation benefits.

She subsequently files a lawsuit against her employer, but only after the statute of limitation for such a suit has expired.

Was the limitations period tolled while she applied for (or received) worker's compensation benefits?

On the one hand, it's generally true that a pending action can toll the limitations period.  After all, once the defendant knows you're suing them, they've got notice, so can adequately defend a subsequent action.

On the other hand, equitable tolling of this nature generally consists of an unsuccessful earlier suit.  So, in the typical case, plaintiff filed X lawsuit, it got dismissed (e.g., for jurisdictional reasons), and then plaintiff files a different suit.  By contrast, here, plaintiff won.  She got benefits.  So why toll the limitations period?

Plus, with worker's compensation claims, the payment of benefits -- or (as here) a request for additional benefits -- can happen over a decade or more.  Does the limitations period really get tolled during this entire period?

The Court of Appeal says it might.  Justice Aaron concludes that equitable tolling may apply even to a successful claim for worker's compensation benefits, and that while a virtually limitless tolling period might indeed exist, the fact that the defendant might suffer potential prejudice provides an inherent constraint on such a result.

I'm not completely persuaded.  There still seems to me the potential for lengthy tolling.  Plus, I'm just not sure why tolling exists in the first place.  The employer might not, for example, even care that (or object to) the employee receiving worker's compensation benefits.  So why should the filing for such benefits extend the period for filing suit?  It seems to me a distinction without a difference.  X gets injured at work and applies for benefits, which the employer is happy to provide.  Y gets injured at work and simply sues.  They sue on the same date.  Why does X's lawsuit go forward but Y's lawsuit is dismissed?  Especially when the need to compensate such parties somewhat conflicts with this result (since X has already been partially compensated by Y -- whose lawsuit is dismissed -- is not).

I understand the desire to extend limitations periods.  But I'm not sure that the application of traditional tolling principles applied to the filing of lawsuits really works as applied to the filing of applications for worker's compensation benefits.  We may be talking about apples and oranges here.  And saying -- as Justice Aaron does -- that some of the other limitations on equitable tolling might apply in particular cases doesn't entirely persuade me that we should nonetheless treat apples and oranges the same way.

Interesting case.  Important.  Potentially wrong.

Gallardo v. United States (9th Cir. - April 15, 2014)

What should you do with a Marine Corps sergeant who's court-martialed for allegedly assaulting three female members of the Corps?

I admit I'm not exactly sure.  But here's what I do know:  You should not simply transfer the person to a recruiting detail at a middle school.

Otherwise you get cases like these.

Whenever an opinion starts out with a Marine Corps sergeant allegedly asking a middle school student for her MySpace address, you know it's not going to turn out well.

In Re J.D. (Cal. Ct. App. - April 15, 2014)

Wait a minute.  Am I really reading this correctly?  A campus security officer at Richmond High School checks a student's backpack and finds a sawed-off shotgun?!

Yes.  Yes indeed.

There's a fight about whether the search of the locker in which the student's backpack was found was legal; that's the primary thrust of the appeal.  But you can probably figure out which way the Court of Appeal goes on this issue by the mere fact that the opinion by Justice Dondero contains references to Columbine, Sandy Hook, and Virginia Tech.

Sawed-off shotguns in high schools.  What a world.

U.S. v. Morris (9th Cir. - March 13, 2014)

Future historians wondering how we possibly could have gotten ourselves into the 2008 recession, sparked by the housing bubble, need look no further than the facts of this case.

Because here's what you were able to do back in the day:

"In 2007, Peter Morris applied for three loans from three financial institutions (Washington Mutual, Lehman Brothers, and Bank of America) to purchase three properties, all located at “Sonic Court” in Riverside, California. In the loan applications, Morris claimed securities and assets that he did not own, employment he did not have, and income he did not earn. He falsely stated that he was unmarried, was in the process of selling a different house, and was not obligated to pay child support. He supplied the three banks with false documents to substantiate these false statements. He also withheld information—for example, he did not tell any of the banks that he was applying for loans from the other two. All three banks approved Morris’s loan applications, and Morris purchased the three properties shortly afterward. When Morris made only one mortgage payment, two of the three banks foreclosed on their loans and sold the properties at a loss. Morris sold the remaining property in a short sale, at a loss to the third bank."

Yep.  That's what you're able to do when it's totally easy as a Bank to bundle and securitize the loans you make.  What the borrower's doing is a crime, of course.  But like you care.  That's someone else's problem.  You're making money at the outset.

Just remember:  Capital markets are ruthlessly efficient.  No imperfections.  No irrationality.

(*Sarcasm Alert*)

Global Hawk Ins. Co. v. Le (Cal. Ct. App. - April 14, 2014)

Jerry Le gets his Class A license and becomes a truck driver.  He goes to V&H Trucking which agrees to use him for "spot" jobs.  No benefits, no taxes, no social security -- just a 1099 and a lump sum for each job.

In late 2010, V&H uses Le for a job.  He's supposed to drive with a co-driver hauling goods from LA to New York, then to Georgia, then back to New York, then back to LA.  It'll take 10 days.  For which Le will be paid the princely sum of $1100.  Le takes the job.

Le and his co-driver do all the things.  Drive stuff from LA to New York.  Drive more stuff from NY to GA.  Drive additional stuff from GA back to NY.  They're now on the last leg of their journey, with a final load from NY back to LA.

At which point Le's co-driver crashes the truck.  Le's sleeping in the cab at the time.  Le's ejected from the vehicle and suffers serious injuries, including but not limited to a broken neck.  Vomiting blood, etc.  Not good.

Le eventually asks about getting paid for the trip, and maybe getting reimbursed for his medical care through worker's comp.  At which point V&H tells him to pound sand.  They say they're not paying for medical care because he's not an employee and so isn't eligible for worker's comp.

Oh, yeah,  V&H also refuses to pay him the $1100 for the trip.  Because he never "finished" the job once his co-worker crashed on the final leg and broke Le's neck.

Classy.

Fortunately for Le, the Court of Appeal is more sympathetic to his plight than was V&H.  Justice Richman reverses the grant of summary judgment for V&H's insurance company against Le.

Jin v. Holder (9th Cir. - April 14, 2014)

It's the Ninth Circuit.  Which means it's impossible to lose an asylum case based upon the applicant's poor demeanor and lack of credibility.  Right?

Nope.

Flores v. California Department of Corrections and Rehabilitation (Cal. Ct. App. - Feb. 27, 2014)

Guards find a "floater" in plaintiff's cell.  No, a "floater" is not what you might think.  It's a piece of property in cell that doesn't have a serial number that ties it to a particular cell.  So they confiscate it.

The prisoner files a writ.  Saying, essentially, "I want my [M]TV."  Because they took his television and will not give it back.

The Court of Appeal says that's not a proper use of a writ.  You've got to file a civil suit.

No floater for you.  At least for now.

U.S. v. Villalobos (9th Cir. - April 11, 2014)

Look at the mess that constitutes the disciplinary record of L.A. attorney Alfred Villalobos.  Ugly.

Today's Ninth Circuit opinion doesn't make him look any better.  Every member of the panel agrees that Villalobos was properly convicted of extortion and attempted obstruction of justice.  They just disagree as to why he's guilty.

But guilty he is.

For a guy admitted to the Bar on the last day of 1997, Villalobos has certainly had a colorful legal career.  Few of us can claim to have gotten into anything near as much trouble during our first 15 years of practice.

Drescher v. Gross (Cal. Ct. App. - April 11, 2014)

There's often something interesting when two attorneys fight out a divorce case in the Court of Appeal.  In this one, fortunately, there's not (seemingly) utter rancor.  But there is a dispute.  Thirteen years ago, when they divorced, the parties agreed to split the cost of college for their three kids.  Fair enough.

It's now time for their daughter to attend college.  She's going to the University of Missouri.  Prompting fights on both sides about (1) whether the agreement only requires Daddy to pay half of what it would cost for his daughter to enroll in a California school (not Mizzou), and (2) whether Mommy can get out of the deal by showing that she makes a lot less nowadays than Daddy.

I'll let you read the opinion itself to figure out how this particular case works out.  But I'll nonetheless note the resulting legal rule:  (1) parties can, if they want, structure a "college support" deal during dissolution disputes that's not subject to subsequent modification by the trial court for "changed circumstances" (unlike support for a minor child), but (2) they better be pretty careful about how they write this agreement, otherwise it'll be subject to modification.

P.S. - There are actually a lot of related attorneys involved in this case.  Mother is (former) attorney Lenore Drescher.  Represented by L.A. attorney Robert Drescher.  (Note the last names.)  Father is L.A. attorney Mark P. Gross.  Who, according to his firm bio, "has over 20 years family law experience," as well as a ton of accolades in the area.  But even he didn't write his own agreement in a way that would preclude trial court modification for changed circumstances.  Oops.  He's represented by the law firm of Brot & Gross.  (Note the last name.)

Lawyers, lawyers everywhere.

Only time will tell whether their daughter majors in prelaw at Mizzou.  Though my money's on her looking to some other professional field.

Montague v. AMN Healthcare (Cal. Ct. App. - Feb. 21, 2014)

"AMN Healthcare . . . is a staffing company that provides prescreened nurses and medical personnel to hospitals and other facilities. Nursefinders hired Theresa Drummond as a medical assistant. It later assigned Drummond to work at a Kaiser facility as a medical assistant. Plaintiff Sara Montague was also a medical assistant at Kaiser. At some point, Drummond and Montague had a disagreement at work regarding how rooms were to be stocked. At the end of the discussion Montague walked away. Montague did not consider the argument serious enough to report to a supervisor or anyone else. They also had a discussion regarding misplaced lab slips where Drummond raised her voice. A few weeks after that discussion, Montague left her water bottle at work. Montague later drank from her water bottle. Her tongue and throat started to burn and she vomited. Drummond admitted that she poured carbolic acid found in a Kaiser examination room into Montague's water bottle."

Yikes!

Lesson of the day:  Be nice to co-workers who have access to poison at the office.

Horath v. Hess (Cal. Ct. App. - April 10, 2014)

Justice McDonald is right.  When parties agree to arbitrate with a "high-low" award (with no disclosure to the arbitrator), and the arbitrator awards a sum above the "high" range, the losing party doesn't need to move to "correct" the award within 100 days because there's nothing to "correct".  You simply pay the high amount.

The arbitrator didn't do anything wrong.  S/he deliberately wasn't informed that the parties had capped defendant's exposure to the "high" amount (in return for agreeing to a minimum "low").  But the parties have agreed that the "high" is the high.  So the proper remedy is simply to pay this amount.  At which point, pursuant to the agreement of the parties, the award has been satisfied.  Nothing more, nothing less.

The trial court (Judge Prager) gets it wrong.  The Court of Appeal does not.

I might add that I'd be interested to know whether counsel for the "winning" party below -- San Diego attorneys James McCabe, Robert Hamparyan and Jon R. Williams -- were also counsel for that same party below.  Because were I to have entered into an express high-low agreement with counsel for the other side, and then after the award was made, that attorney were to refuse to follow this agreement and accept payment of the stipulated high, I'd be pissed.  As well as exceptionally hesitant to trust the word of those attorneys in the future.

Even after I beat that attorney in the Court of Appeal.

As for the merits, know that you can simply pay an arbitration award even if it's outside of the high-low range.  Though, to avoid complexity, maybe just do it quickly.  No need to give the other side an opportunity to try to get more by falling outside the 100-day "correction" window and require you to go to the Court of Appeal.  Even if you're right.

Horiike v. Coldwell Banker (Cal. Ct. App. - April 9, 2014)

I'm not sure how the trial court could make such a basic error.  Everyone with even a rudimentary knowledge of real estate law knows that a broker owes fiduciary duties to his client.  So when a real estate broker serves as a dual agent for the buyer and seller -- even when a different salesperson with the broker represents each party -- that doesn't diminish the duty.  The broker owes the duty and each salesperson with the broker owes the duty.

How the trial court couldn't figure that one out is beyond me.  Regardless, it's not beyond the Court of Appeal.  Which reverses and remands.

The trial court granted a nonsuit on the ground that the broker couldn't be liable for the acts of the "seller's" salesperson that violated its fiduciary duty to the buyer, and gave similar jury instructions.  Not so.  To repeat:  Everyone's got a duty.

Sometimes your successful persuasion of the trial court simply imperils your subsequent victory in front of the jury.  That's exactly what happens here.

Gray1 CPB LLC v. SCC Acquisitions, Inc. (Cal. Ct. App. - April 9, 2014)

I love this opinion.  Love it.  Both because I can use it to give practical, concrete advise to attorneys and also because portions of that advice seem to bizarre.

First, the straightforward advice.  When you're seeking to enforce a judgment, and you're entitled to recover attorney's fees in enforcing that judgment, don't wait until the very end to request your fees.  Otherwise what transpired here may well happen to you.

Here, Judgment Creditor incurred over $3 million in fees trying to enforce a $13 million judgment against Judgment Debtor that the latter was going to great lengths not to pay.  Rather than requesting recovery of those fees as they were incurred, Creditor did what many attorneys do -- waited until the end of enforcement efforts to so move.  But the Court of Appeal hold here that's too late.  Once the judgment debtor fully pays the amount due, your fee request is untimely.  So you're out of luck.

So don't make the same mistake.  Occasionally file a motion to enforce your accrued enforcement costs.  A hassle, I know.  But essential in order to avoid getting zeroed out.

Second, the weird advice.  The Debtor here paid the $13 million due with a cashier's check.  Creditor held on to that check for several days and, in the interim, filed its motion to recover fees.  That doesn't work.  Too late.  Motion for fees untimely.  Even though you haven't yet cashed the check.

But here's what would work:  Reject the check.  Demand cash.

Even though the cashier's check was clearly valid, the Creditor was entitled under California law to reject the check and demand payment of the full $13 million in cash.  Despite the fact that this amount is absurdly large, and no way would demanding cash make sense.  Once it rejected the cashier's check, then Creditor could have filed its motion for fees (presumably during the period in which Debtor was trying to amass and arrange for delivery of $13 million in cash).  Then it'd have been timely.  And the creditor would have recovered another $3 million in fees.

Neat little trick.  Works, too.

So, weirdly, next time someone tries to give you a cashier's check for $13 million, think deeply about saying to them:  "No thanks.  I'd rather have cash."  Those simple words might get you several million additional dollars as well.

Huang v. Holder (9th Cir. - March 12, 2014)

It's true that the Ninth Circuit is a pretty favorable forum for those who seek asylum.  But the next time someone tells you that immigration judges can never get their adverse credibility findings affirmed by this tribunal, show 'em this opinion.

There wasn't much upon which to base an adverse credibility finding.  Not much at all.  But the panel unanimously finds the record here sufficient.

I'm sure other judges on the Ninth Circuit would disagree.  But it doesn't matter.  They're not on the panel.

So don't be thinking that the Ninth Circuit is uniformly one way or the other.  It's not.  Yes, you've got some cases where the Ninth Circuit makes it very tough on immigration judges.

And then you've got cases like this one.

Rosen v. LegacyQuest (Cal. Ct. App. - April 8, 2014)

When your refusal to pay a judgment is so crystal clearly wrong, you better be really, really right on the law.

Which the defendant isn't here.

I'd be looking -- actively looking -- for ways to make the surety here pay.  It's been eight years since the plaintiffs here got their judgment.  I have no problem whatsoever with tacking on some attorney's fees in light of the surety's intransigence.

Which is exactly what the Court of Appeal does.  In a decision that's both consistent with the law as well as entirely equitable.

IMHO.

San Luis & Delta-Mendota Water v. NRDC (9th Cir. - March 13, 2014)

Bored?  Interested in reading an 168-page, single-spaced opinion on the saga of the Central Valley and State Water Projects and their impact on the delta smelt and its habitat?  Complete with the dissenting views of Judge Arnold (sitting by designation from the Eighth Circuit) from Parts III, IV.A., IV.B, IV.E, and V.B. of the majority opinion, as well as the dissenting views of Judge Rawlinson from Part V.C.2?

Here you go.

I'm impressed that the Ninth Circuit -- including but not limited to the relevant law clerks (especially in Judge Bybee's chambers) -- was able to crank out this tome six months after oral argument.  That's impressive.  It's essentially a book.

Though I'm also impressed with myself.  Admittedly slightly less so.  For simply getting through the thing.

We clearly got our money's worth out of chambers in this one.

Imburgia v. DirecTV (Cal. Ct. App. - April 7, 2014)

You won't typically find the California Court of Appeal refusing to follow the Ninth Circuit in a civil case on the exact same issue.

But it happens.

Here's evidence that state courts are sometimes more hostile to (or at least less pro-) arbitration than their federal counterparts.

It's not a holding that's critically important to anyone other than individuals who subscribed to DirecTV.  But it's nonetheless an interesting divergence of opinion.

U.S. v. French (9th Cir. - April 7, 2014)

I certainly understand Judge Noonan's point.  It's indeed strange to let a husband essentially act as his wife's "lawyer" when the former's not an attorney.  So when the trial court suggested that the husband ask his wife questions on direct -- after the two had decided to represent themselves -- rather than having the wife do so herself, yeah, that's a little strange, and potentially improper.

At the same time, I totally understand Judge Nguyen's point as well.  It's not like the procedure actually had an effect on the trial.  Since the husband's questions (and his defense) was pretty much identical to that of his wife's.  At least at trial.  So it's unclear how this process really constitutes reversible error.

Ultimately, Judge Nguyen gets Judge Fisher's vote.  So the wife doesn't get a reversal of all her convictions.

Which I'm pretty much fine with.  The wife (alongside her husband) defrauded people on eBay of $1.6 million by deliberately "selling" high-end appliances that they had no intent or ability to deliver, then lied to customers repeatedly -- as well as setting up a system where customers wouldn't actually be buying through eBay (and hence protected).  The district court departed downward substantially and sentenced the wife to only two years in prison.  Whereas I might well have found her much, much more culpable.

Beware buying high-end stuff online.  If it sounds too good to be true, it probably is.

In Re K.L. (Cal. Ct. App. - March 20, 2014)

What you do in these situations is pretty much beyond me:

"K.J. was born in July 1995. In May 2008, when he was 12 years old, he molested his five-year-old brother. K.J. said that he had been molested by his father, and did not realize that his father’s conduct was wrong. . . . In August 2008, K.J. admitted a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)), was adjudged a ward, and was put on probation in the custody of his grandparents. In October 2008, his grandparents reported that they could not control him, and he was placed in the Martin’s Achievement Place. In June 2010, after sexual activity at Martin’s, he was placed at Gateway Residential Programs. In February 2012, after sexual activity at Gateway, he was placed at Teen Triumph, a third residential juvenile sex offender program, where he again engaged in sexual conduct. In August 2012, he was detained in juvenile hall. In October 2012, he admitted violating probation at Teen Triumph.

The case proceeded to a contested disposition. The probation department recommended that K.J. be committed to the DJF [SPM - Juvenile Hall]. He had “proven himself to be not amenable to treatment in placement,” and appeared to be “a serial predatory sex offender.” He had “progressed from intimidating a younger resident at Martin’s Achievement Place to engage in sexual conduct to . . . more recent incidents of . . ‘persuading’ younger . . . vulnerable residents to engage in sexual conduct.” Gateway advised that it would not readmit K.J. because “we can not guarantee the safety of our more vulnerable clients if [he] were to return.” The department opined that K.J. needed “a long-term juvenile sex offender program in a custodial setting with the [DJF].”

Ugh.

In Re D.B. (Cal. Supreme Ct. - April 3, 2014)

I've critiqued the California Supreme Court for occasionally writing overly lengthy, discursive tomes that read like warmed-over bench memoranda.  So when it issues an opinion that's exactly the opposite, it's definitely something I notice.

Justice Corrigan publishes this opinion today that's incredibly concise -- seven (double-spaced) pages of text -- and yet both entirely complete and persuasive.  She addresses in eleven paragraphs of legal analysis every single thought and issue that popped into my head when I considered the dispute.

It's really a masterpiece.  I'm sincerely impressed.

Bock v. Hansen (Cal. Ct. App. - April 2, 2014)

I'm going to give a quiz.  As well as forthrightly admit that, until today, I would have only gotten the first of these two questions right.

Fact Pattern:  An opinion by the Court of Appeal recites an argument that one of the parties makes on appeal and begins its response thereto with the following sentence:  "We are nonplussed."

Question No. 1:  Did that party win or lose the appeal?

Question No. 2:  Who wrote the opinion?

The answer to the first question is pretty obvious.  When the Court of Appeal is directing phrases like "We are nonplussed" in your direction -- whether the opinion's published (as here) or not -- you can be pretty sure that you're going to end up losing.  As Respondent indeed does here.  It's also an indication that your counsel may not have done a successful job putting a sympathetic face on the appeal and/or argument at issue.  The use of the term "nonplussed" suggests a degree of frustration.  That's not your goal.

The answer to the second question will be obvious only those on the Court of Appeal and/or intimately familiar with it.  The Court of Appeal has used that phrase in only five opinions.  Every single one of which was authored by the same jurist:  Justice Richman.  Moreover, its seems that only recently has be begun losing his plusses.  Justice Richman joined the Court of Appeal over eight years ago, but the first time he used that phrase was two years ago -- in two different opinions -- and then used it again last year and, thus far, has used it again in two different opinions in 2014.

The latest people to nonpluss Justice Richman are insurance adjuster Craig Hansen and his attorneys at Horvitz & Levy ("Appeals Are What We Do") and Weston & McElvain ("Building a Reputation").  They lose the appeal and get a bit of sass directed their way as a bonus.

So let's work on getting James "Nonplussed" Richman his mojo back, people.  Make him happy.  Make arguments that make sense.  Or at least aren't (actually and/or perceived to be) silly.

Arroyo v. Plosay (Cal. Ct. App. - April 2, 2014)

Maria Arroyo dies, and when the mortuary comes to pick up her body, her face is all bashed in, which the mortuary can't fix.  Since Arroyo simply died of a heart attack -- not something that usually bashes a face -- everyone assumes that someone in the hospital must have futzed with (or mutilated) the body. So in 2011, Arroyo's survivors sue the hospital for disfiguring the body, which is indeed a tort.

But plaintiffs end up dismissing the case without prejudice after the trial court grants various summary judgment motions.  Oh well.  That's the way the cookie crumbles sometimes.

But then Arroyo's survivors figure out what really went down.  How did Maria's face get bashed in? Well, after she was pronounced dead by the medical staff at the hospital, she was taken to the morgue and put in a compartment in the hospital's freezer.  Presumably one of those drawer-like things that you see on television.

But when the mortuary workers found her, Arroyo was face down.  With her nose broken and with lacerations and contusions all over her face.

How'd she get that way?  You guessed it.  The survivors' expert says that Maria was still alive when the hospital declared her dead and put her in the freezer.  And that, later, she woke up, bashed her face and head against the compartment in a vain attempt to escape, and ultimately just froze to death.

YIKES!!

There's a whole big statute of limitations problem.  Which, as the Court of Appeal holds, is more fatal to one cause of action than some of the others.

But boy.  I would not want to be defending this one.  Because unless you've got a good way to explain to a jury how Maria ended up face down with her nose broken, the alternative -- that she was put in the morgue alive only to freeze to death -- is . . . well, chilling.  To say the least.

Too bad it's the day after April Fool's Day rather than the day before Halloween.  Because this one's freaky.

Hale v. Superior Court (Cal. Ct. App. - April 2, 2014)

As I read this opinion, I initially thought that it concerned an issue that should probably be reviewed by the California Supreme Court.  You've got multiple different Court of Appeal opinions that conflict with each other -- and this latest missive deepens the split -- and that relate to an issue that arises frequently (e.g., when a drunk driver kills or injures others).  There's no sign that the issue's going away, and the result shouldn't vary simply depending upon which panel the defendant happens to draw.

Which generally means that the California Supreme Court should grant review.  Even if the opinion here is correct on the merits.

But as I reached the end of the opinion, I reconsidered that position.

I realized that the Legislature can easily solve this problem by amending the underlying statute.  It's not a constitutional case, so a statutory fix would work.  The Legislature also has a large incentive to do so since today's opinion is pro-defendant, and it's not like drunk drivers are the most popular constituency in the universe.  If there's a problem, there's every reason to think that the Legislature is more than able to fix it.  Plus there are dozens of district attorneys (plus the California Attorney General) aware of the problem and with access to the sympathetic ear of state legislators.

Given this fact, I decided that it's probably best to simply let this one sit.  Faster, easier and clearer for the Legislature to solve this problem than it is for the California Supreme Court to wade in.

U.S. v. I.M.M. (9th Cir. - March 31, 2014)

With all due respect to Judge Reinhardt and the rest of the panel, when I read this opinion, my reaction was:  "Miranda, Schmiranda."

Which is just a (totally un-)fancy way of saying that I care very little about whether the child here was given his Miranda rights, because in my mind, his "confession" was completely involuntary anyway.

You've got to read the opinion to believe it.  To set the scene:  there's a five-year old girl and her four-year old brother and a twelve-year old male cousin outside, with a grandmother and grandfather inside a trailer on a reservation in Arizona.  The grandmother and grandfather radically disagree on what the other did and said -- a dispute that creates yet more controversy in this case -- but the underlying issue is simply whether the twelve-year old (who's on trial) touched the five-year old.  There's no evidence at all with respect to this issue other than the testimony of the children:  no physical evidence, nothing.

I'll not go into what the various children say at trial, though lots of this is in Judge Reinhardt's opinion, and it's fascinating stuff.  Particularly look at the problems with the four-year old's testimony.  Which is about as helpful as testimony from . . . a four-year old.

Clearly, the most damning evidence against the defendant is his confession.  That's why there's this whole fight about whether this twelve-year old kid was in "custody" and was given his Miranda rights etc.  Because absent that confession, it's unambiguously a whole different ballgame.

I'm not saying that there's anything at all in Judge Reinhardt's opinion with which I disagree.  Because there's lots of good stuff in there.

I just take a slightly different approach.

Put me -- an untrained civilian -- alone with a twelve-year old boy in a small, six-by-six foot room in a police station, and let me see if I can get a "confession" out of him.  Let's have the kid -- as here -- be a twelve-year old who's in special education classes and who reads at a second grad level.  Let me kick the mother out of the room, shut the door, and "talk" to the kid, especially after he denies that he did anything wrong.  Let me tell him that what he's done "isn't really a big thing" but will become a "big thing if you're not going to be honest."  Let me tell the kid -- a kid who doesn't even know his own address -- everything he needs to say to get out of here if he'll just confess.  Let me especially work this kid if he's incredibly troubled and emotionally vulnerable; for example, if he's been abused himself and, especially, if he's witnessed his father try to kill his mother.  All of which are true here.

Oh, one other thing will help too.  Let me lie.  Let me tell the kid that his grandfather -- the only stable role model in his life, the person who he calls "Dad" -- has sworn that he saw the kid molest his cousin.  Let me repeatedly hammer this home to the kid:  Let me repeatedly tell him that by denying the offense he's calling his grandfather a liar, remind him that he's admitted that his grandfather doesn't lie, and use every conceivable machination to point out to the kid that the only way he can tell a story that doesn't make his grandfather into a liar is to say he touched his cousin.  Never mind that none of this is true:  that the grandfather never said anything at all even approaching what I'm telling the kid.  It's the only way out of the tiny room.  Especially since the kid's already admitted that anything the grandfather says is the truth.

I'll get that twelve-year old to confess.  Truly I will.  Even if, unlike the officer here, I don't have a gun at my side.  Because I can play on the mind of a child -- especially a child like this -- even a fraction as well as the officer here did, and I can get a confession.  Even more so if, like the officer here, this isn't my first interrogation rodeo.  And I can maybe even do it with a clean conscience if I testify -- as the officer does here -- that he's never even heard of a false confession.

Here's an empirical test for you.  You take 10 adults and beat them with a hose.  I'll take 10 children and interrogate 'em like the officer did here.  We'll both try to get 'em to confess to a crime we know they didn't commit.

I bet I win that competition every single time.

Confessions are -- and should be -- excluded when they're involuntary.  That's Due Process.  Sure, we've got the "prophylactic" Miranda rule, and maybe that was violated here.  But there a core Due Process problem as well.  And when you've got a "confession" obtained in circumstances like this one, I'm not sure if it's not better to go right to it.  Because if there's ever a case in which I really, really do not like the tactics that the officer elected to employ -- because they may well result in convicting an innocent child -- this one's a perfect example.

And that has very little to do with whether I read the kid what's on a tiny index card; rather, it has to do with psychologically manipulating the child into saying whatever I want him to say.

That's my slightly different perspective on the case.

Peabody Coal Co. v. Director, OWCP (9th Cir. - April 1, 2014)

We don't get that many Black Lung Benefits Act cases out here in the Ninth Circuit.  Compared to, say, the Third or Fourth Circuits.  But when we get 'em, we have to decide them.

Robert Opp worked as a coal miner for 39 years.  He was also around a pack-a-day smoker during this period.  He developed chronic obstructive pulmonary disease -- COPD.  He applied for benefits under the Black Lung Benefits Act, claiming that his COPD was caused or aggravated by his employment in the coal mines.  Peabody Coal opposed his application, contending that Opp's COPD was solely due to smoking.

The Administrative Law Judge gave Opp benefits.  The Benefits Review Board affirmed the ALJ's decision.  Peabody Coal appealed to the Ninth Circuit.  Which didn't feel a need for oral argument to resolve the case.  (Though the Ninth Circuit did inexplicably require nearly nine months after the submission date to finish its opinion.)

As for how the Ninth Circuit came out, see if you can guess.  With the hints that:  (1) it's the Ninth Circuit, and (2) the author of the opinion is Judge Pregerson.

Yep.  You're right.

No April Foolin'.

Gonzalez v. City of Anaheim (9th Cir. - March 31, 2014)

There are lots I could say about this en banc opinion.  You can read the majority and the dissent in this qualified immunity/excessive force case and see which one you find more persuasive.

But I'll stick to two basic points.  Which I'll try to articulate without much elaboration.

(1)  The dissenters -- principally, Judges Kozinski and Trott -- both say that it doesn't matter to them one iota how fast the car was going.  They say that no reasonable juror could possibly care how fast the car was going because the officer was indisputably trapped inside it and so did what he had to do.

Okay.  I understand that you and I might not see the world in invariably the same way.  Maybe I have a perspective that's so absurd to you that you'd find me (and my conclusions) patently unreasonable, and the fact that 11 citizens bereft of black robes unanimously agreed with me wouldn't change your mind.  I get that.

But, for whatever it's worth, let me tell you my personal perspective.

To me, it absolutely matters how fast the car was going.

Yes, the minivan was weaving in lanes, so I get the officers conducted a traffic stop.  And yes, after stopping, the driver was uncooperative, and tried to swallow a baggie of something, so one cop started grabbing and beating the guy through the driver's side window, while the other cop eventually jumped inside the passenger side door and started punching the driver in the head.  And, yes, the driver acted improperly, and pushed the stick shift into gear and jammed on the accelerator, causing the vehicle to move.

Yes, that put the officer who entered the car in a tough position.  The car was moving.  The door had shut.  He was inside.  He quickly tried shifting the car into neutral or turning off the ignition, but that didn't work.  So the officer had to make a call.  I get that.

But to me, for what happens next, it matters how fast the car is going.  Very much so.

If -- as the officer testified -- the car was going fifty miles per hour, that's one thing.  Speeding car, speeding officer, trapped, no way out.  I get it.

But if, as everyone admits may in fact be the case, the car had in fact only gone 50 feet, and in fact was only going 3.4 miles per hour, to me, that's an entirely different situation.  And even if you're an officer and are "trapped" on the passenger side of a vehicle, to me, it is not reasonable to put a gun six inches from the driver's temple and pull the trigger, killing him.

Judges Trott and Kozinski both write opinions that expressly say that what the officer here did was totally okay even if the car was going 3.4 miles an hour.  No need to simply open the door and walk out.  No need to try pepper spray, or retry the ignition, or continue to try nonlethal force.  To put it the way Judge Kozinski does in his succinct dissent, even if the car was going three miles an hour, "no sane officer in [the officer's] situation would have acted any differently, and no reasonable jury will hold him liable."

With all due respect to Judge Kozinski, we see the world differently.  I can't speak with certainty to your former point, having never been a police officer, but I nonetheless think that there are plenty of "sane" officers who would not deliberately kill a man at point blank range if they found themselves in the passenger side of a vehicle traveling at three miles per hour.  And, in any event, I can definitely speak to your latter point.  If I'm on a jury, and an officer kills a man in these circumstances while going three miles per hour, I may well hold him liable.  As may eleven others.  You may perhaps call the twelve of us "unreasonable".  But with respect, perhaps a little deference to the common man is in order here.  Perhaps it is your perspective that is unreasonable.  Or perhaps both of our approaches are within the range of reason.  One important part of being a judge is recognizing that the Founders were pretty confident that there might well be a divergence in what judges thought and what jurors might think on identical facts.  And enshrined in the Constitution the Seventh Amendment as an important constraint on what we should do in situations like that.  I think that's pretty important.  Not always.  But at least where reasonable minds can disagree.

And I understand that you might think that I, and everyone else like me, is unreasonable.  All I can say is that I bet the number of such "absurd" conclusions is nontrivial.  And sincerely felt.  Even by those who might be as approximately as informed and as sophisticated as you are on these topics.

So maybe just give that some thought.  Because whether it's three miles per hour or fifty really does matter to people like me.  Again:  For whatever that's worth.

(2)  Second, a doctrinal point.  One of my first-year students in Civil Procedure asked me just last week in class why a judge would grant a JML motion -- a "directed verdict" -- if they had previously denied a summary judgment motion.  This case is a perfect example.  The evidence on a summary judgment motion is limited to what the parties submit.  Here, the officer's testimony had real problems, and the moving party's summary judgment papers didn't clear those problems up.  The officer said the car was going 50 miles per hour, but also said that the car went 50 feet in five to ten seconds.  Those two figures don't add up.  As the majority opinion amply demonstrates.  Fifty feet in ten seconds is more like three miles per hour.

Now, maybe, in fact, the car went more than 50 feet.  There may well be demonstrable evidence to prove this point -- incident reports, photographs, etc.  But the moving party didn't introduce any such evidence.  It didn't explain the inconsistency.  Ergo a reasonable jury could, in fact, conclude, viewing all reasonable inferences in favor of the nonmoving party, that the car was only going around three or so miles an hour.  Which may well make a difference.

At trial, this error may well be remedied.  There may well -- indeed, probably will -- be photographs and complete reports introduced into evidence.  Evidence that may well demonstrate that the car went well over fifty feet.  Which would explain the officer's error and, perhaps, lead to a directed verdict.

But that's not the evidence here.  When lawyers make mistakes, or don't anticipate problems, you can get results like the one here.

Which is what I essentially told my students.  Without a concrete example.  Explaining just in general how the evidence on a summary judgment motion might be different than that introduced at trial, and hence lead to different results even though the underlying substantive standard (whether a genuine issue of material fact exists) is identical.

Now I've got a case to use as an example.

P.S. - One tangential point.  Unrelated to the merits.  Check out footnote 10 of Judge Trott's dissent (at page 44).  I cannot tell you how thrilled I am to see that unmarked sarcasm has now made its way to a published Ninth Circuit opinion.  Judge Trott doesn't even add *Sarcasm Alert* to the footnote.  He simply says what he says and let's the reader decide if he's kidding or not.  Totally awesome.