People v. Bell (Cal. Ct. App. - Sept. 29, 2016)

Michael Bell committed a horrible crime.  Which the Court of Appeal describes in chilling detail.

He was nine days short of his 15th birthday at the time, and no one actually died, so he's got to have at least the possibility of getting out of prison.  So, after lots of procedural wrangling, he's sentenced to 43 years to life, making him eligible for parole when he's 55.  He appeals, but the Court of Appeal affirms.

On a minor note, one of the downsides of cranking out tons of opinions every year is that they're not all perfect.  Fortunately, you've got plenty of people -- both in and outside of chambers -- to review the thing before it gets published forever in the California Appellate Reports.

So Justice Rubin might want to take a quick look at the following sentence on page 7:

"Bell filed a habeas corpus petition with the trial court contending that his sentence of 54 years to file amounted to cruel and unusual punishment because it was a defector sentence of life without parole."

I'm pretty sure he means 54 years to life, not 54 years to file.  Spell check won't catch that one.  The computer also probably doesn't know Latin very well either.  So I think that by "defector sentence" he meant "de facto sentence".

Not one this helps Mr. Bell.  But at least we can get the words right.

Cameranesi v. US DOD (9th Cir. - Sept. 30, 2016)

Panel draws matter.

The issue here is whether the public should be permitted under FOIA to view the names of students at the School of the Americas (now called the Western Hemisphere Institute for Security Cooperation).

The majority says that they shouldn't, because even though some torturers and human rights abusers attend the school, or go on to commit such offenses after graduating, we should trust that the Army follows the law and effectively screens out such people, and there's a risk that disclosing the names of these students might put them at risk.

The dissent says that the public should be allowed access to this information, because the public has a legitimate interest in seeing whether the Army's screening process -- and the stuff it teaches in class -- is effective in protecting human rights, and there's no substantial support for the theory that anyone will be at risk if the names are disclosed (as they were for years previously).

The majority opinion is written by Judge Ikuta and joined by Judge Kleinfeld.

The dissent is written by Judge Watford.

I can think of dozens -- indeed,hundreds -- of alternate panel compositions in which I'm fairly confident the result would have come out the other way.

Coe v. City of San Diego (Cal. Ct. App. - Sept. 28, 2016)

R.I.P. Cheetah's San Diego.

Personally, I'm not into strip clubs.  For the obvious, traditional reasons and more.  As for the rules, in San Diego, you need a permit, and also can't serve alcohol if the dancers are "nude".  Plus there's a no-touching rule -- neither the patron nor the dancer can touch each other -- plus they have to stay at least six feet away from each other.  As a result, what transpires at this particular place is not exactly the same as you see in, say, The Sopranos.

At least in theory.

There are apparently a lot of dancers at this particular club.  A lot.  According to the Court of Appeal, "[b]etween 12 to 15 adult entertainers perform on a day shift and an average of 50 adult entertainers perform on an evening shift."  I wouldn't have thought that alcohol-free six-foot-away dancing would result in such high employment rates, but that shows you how much I know.

As for the actual practices in this club, I think we can all agree that neither the letter nor the spirit of the various San Diego rules was consistently followed.  Though, given the extent of the violations, I am surprised how long this club kept going -- as well as how slap-on-the-wrist most of the penalties were, at least until the end.

"In 2006, the City issued a 30-day suspension to Coe for multiple violations of the six-foot and no-touch rules occurring during overt and covert inspections between September 2005 and September 2006. Coe appealed the suspension. The parties subsequently settled the matter in January 2007 with Coe admitting to no-touch violations occurring between March and September 2006 and paying a $10,000 fine.

In July 2012 the City issued a 15-day suspension to Coe for multiple violations of the six-foot, no-touch, and no-fondling rules occurring between March 2011 and April 2012. Coe appealed the suspension. The parties settled the matter in February 2013 with Coe admitting the violations, agreeing to a three-day suspension, and paying a $20,000 civil penalty."

Man.  I wish I could settle all my cases on such favorable terms.

"At the end of April 2013 the City sent Coe a warning letter advising her of multiple violations of the no-touch and no-fondling rules by 14 adult entertainers. The violations occurred during covert inspections in late March and April 2013, after Coe and her staff had completed the mandatory training.

In May 2013 Coe and the business's managers met with police department representatives. The parties discussed the recent violations and what measures Coe might employ to reduce their occurrence. The police representatives warned Coe the next penalty for further violations would be a 15-day suspension. . . .

Nonetheless, violations continued to occur at Coe's business. In August 2013 the City sent Coe a warning letter advising her of multiple violations of the no-touch and nofondling rules by 10 adult entertainers occurring during covert inspections in May, June and July 2013. In October 2013 the City sent Coe a warning letter advising her of violations of the no-touch and no-fondling rules by one adult entertainer occurring during a covert inspection in September 2013. In February 2014 the City sent a warning letter to Coe advising her of multiple violations of the no-touch and no-fondling rules by nine adult entertainers occurring during overt and covert inspections in January and February 2014. In April 2014 the City sent Coe a warning letter advising her of multiple violations of the no-touch and no-fondling rules by three adult entertainers occurring during covert inspections in February 2014."

Notice that there are no actual penalties for any of this stuff.  So, on the one hand, it seems like San Diego was very aggressive in conducting covert surveillance at the strip club.  On the other hand, it seems like San Diego was simultaneously uninterested in actually doing anything about the violations.

I wonder why San Diego would send so many investigators to conduct "surveillance" inside a nude strip club so many times and yet never actually do anything about the observed violations?  Is there something enjoyable about just actually conducting the surveillance?  Nah.  Couldn't be.

Finally, the City decides to revoke the strip club's license.  Mind you, the place appeals, and as a result, gets multiple additional years to operate while the appeals take their course.  (Oh, yeah:  "[W]hile the administrative appeal was pending, the City sent Coe a warning letter advising her of multiple violations of the six-foot, no-touch, and no-fondling rules by 16 adult entertainers occurring during covert inspections in July and August 2014."  We're still very excited about the ability to send our officers into strip clubs on the clock, even after the permit's been revoked.)

But, in the end, the Court of Appeal affirms.  So that'll presumably be the end of the place.

But what a run, I guess.

The underlying problem, apparently, is one of incentives.  As well as human nature.  The patrons want to be touched.  The dancers are independent contractors who get paid via tips, and tips are higher -- I assume much higher -- when they satisfy their patron's desires.  And the security guards who are hired to monitor the dancers (and patrons) get tipped by the dancers, whom (as you'll recall) get higher tips when they violate the rules.

You can see the problem.  Even if the owners want dancers to stop touching -- and it's unclear that they even do (since presumably touching means more customers means more money) -- it's a hard practice to stop.  From the opinion:  "Over 40 separate nude entertainers committed the violations, which included rubbing breasts against faces; grinding breasts and buttocks against groins; and rubbing groins or hands against legs, chests, or groins."

A shorthand lesson in human nature.

M.C. v. Superior Court (Cal. Ct. App. - Sept. 29, 2016)

From today's opinion:

"The Del Norte County Department of Health and Human Services (Department) received a referral from law enforcement after officers searched Mother’s residence and found mushrooms, meth pipes, marijuana paraphernalia, concentrated cannabis, brass knuckles and butterfly knives."

Awesome.  Sounds like a wonderful place.  Perfect location for a five- and eleven-year old child.

"It also appeared the occupants were hoarders, as there were large piles of items. Some of the piles were over seven feet tall, presenting a hazard to the children."

Yikes.  And I thought it couldn't get any worse.

"Two days later, Mother tested positive for methamphetamine, benzodiazepines, and marijuana."

Not surprising.

"Mother continued to deny she had a substance abuse problem stating she 'only uses meth to do yard work.'"

Oh.  Okay.  No problem then.

People v. Windfield (Cal. Ct. App. - Sept. 28, 2016)

X goes to a gang party in Rialto.  Some members of the gang see X at the party and threaten him with guns and sucker punch him.  The person who had taken X to the party -- his close friend, M -- does nothing to protect or assist X.  Oh, the people who had assaulted X were M's cousins.

X isn't happy about that.  Some months later, X sees M near an apartment and expresses serious anger that X didn't help him in the Rialto fight.  X tells M that he wants to go over to Ramona and kill the people who assaulted him.

M tells X that he's drunk, and that, no, he's not going to help X kill his cousins, and that X should just mellow out.  At which point X -- still incredibly angry at M -- takes off his sweater and pulls out a gun.

A van then pulls up near X and M.  Coincidentally enough, in the van are members of the same gang that had previously assaulted X.  So X, with his gun already out, decides he's had enough.  X begins chasing two of these gang members, with his gun pointed at them, all the time taunting them as they try to run away from him.  X then puts his gun in the face of one of the occupants of the van.

Now, I know what you're thinking.  X pulls the trigger, and we're currently reviewing X's conviction for first-degree murder.

Nope.  Not here.  We're actually reviewing a conviction for the murder of X.  Because X did not, in fact, pull the trigger.  Instead, his conduct simply made M and the gang members he taunted really, really mad.  So later that evening, the gang members retaliate, and shoot X ten times, killing him.

It's truly the Wild West in some places, eh?

People v. Davis (Cal. Ct. App. - Sept. 27, 2016)

As I started to read this opinion earlier today, I found myself wondering why the authorities bothered to prosecute a guy for diverting the course of a stream under Fish & Game Code 1602 and petty theft of water under Section 488 of the Penal Code.  I mean, sure, it may be a crime, but do we really care all that much if a guy takes a little water that's flowing off of a big hill near some railroad tracks?  I couldn't figure why people were making such a big deal out of this whole thing; jury trial, appeal to the appellate division, onto the Court of Appeal, etc.  Why this big interest in prosecution?

Then I read more of the opinion.  Oh, now I understand.  The guy was diverting the water to irrigate his marijuana field.  They couldn't bust him for the marijuana because he was complying with the Compassionate Use Act.  So they busted him for the water.

Ultimately the Court of Appeal reverse the conviction for petty theft of water, holding that under the facts of this case, you can't be convicted to "stealing" water that doesn't belong to anyone.  Moreover, in doing so, Justice Butz waxes poetic, with fancy language that brought a smile to my face (and that hurt my brain).  A snippet:

"Water is a resource for which '[o]wnership . . . is vested [collectively] in the state’s residents.' . . . [A]t common law there could not be larceny of public resources because these are not anyone’s personal property. . . . Similar to Brady, the only larceny provision expressly premised on taking water involves theft of water as the captured product of a utility company, along with gas and electricity. . . . Consequently, this was an invalid legal theory on which to premise defendant’s larceny conviction. . . .

To get our metaphysics up and running, there is no ownership of water, gas, or oil on the land other than in usufruct.  Water in its natural state is categorized as a type of real property until severed from the realty 'and confined in portable receptacles,' at which point the water transmutes to personal property. Water that is diverted for purposes of irrigation, however, 'is not deemed severed and thus remains [realty]' (13 Witkin, supra, § 91, p. 113); 'In the case of water for irrigation, delivered in ditches or pipes, the severance does not take place at all'.

In a usually overlooked part of People v. Dillon (1983) 34 Cal.3d 441 (Dillon)—in contrast with the always distinguished holding that the imposition of life punishment on the defendant for first degree murder was constitutionally disproportionate under the facts of that case (id. at p. 489)—it discussed the evolution of severance of realty as a basis for larceny. Originally, in “a hypertechnical remnant of an archaic formalism that can no longer be seriously defended” (id. at p. 457), the common law limited larceny to personal property because land could not be asported. However, as the definition of real property broadened, it began to include “many items that can be more or less readily detached and removed from the land.” (Ibid.) Given a reluctance to expand the class of offenses then subject to capital punishment, courts “clung to the artificial distinction” between personalty and realty, and developed the principle that severed realty (which ordinarily would become personalty had the landowner accomplished it) asported in a single transaction with the severance never became the owner’s personalty, so a larceny did not take place. (Ibid.) “Thus, in a perverse and unintended application of the work ethic, thieves industrious enough to harvest what they stole and to carry it away without pause were guilty at most of trespass, while those who tarried [before returning to take it away] or enjoyed fruits [severed by others], faced the hangman’s noose.” (Id. at p. 458.)."

Neat stuff.

U.S. v. Martinez-Lopez (9th Cir. - Sept. 26, 2016)

Sometimes it's hard to figure out what's going on inside the Ninth Circuit.

Today the Ninth Circuit takes this case en banc.  But I didn't remember the published opinion at issue.

So I looked it up.

Nope.  No published opinion.

That's rare.  Apparently they decided to take up an unpublished disposition.

Nope.  No unpublished opinion either.

So I looked up whether the case has had oral argument already.  Yep, it did.

So I watched the oral argument.  Was there a big fight about an intracircuit split that the panel talked about at oral argument and made it clear that this case should be taken en banc?

Nope.  Just a regular old oral argument.  (Maybe made slightly different by the empty chair in the upper left of the video.)

Indeed, if anything, it was a somewhat tame argument.  Not many questions to the government at all.

So it might have just been that the panel decided, after writing its draft opinion, that this was a case that should be taken en banc.

Which is strange -- or at least unusual -- itself.  But made perhaps even stranger by the fact that the oral argument was in 2015, and here we are taking the case en banc in September 2016.

That's a long time.

Now, there are apparently other cases -- or at least one -- pending in the Ninth Circuit that raise similar issues.  So maybe they all get taken en banc.  But I'm just totally speculating at this point.

Sometimes you can figure out easily why a particular opinion gets taken up.  This case isn't one of 'em.  At least for me.

De Fontbrune v. Wofsy (9th Cir. - Sept. 26, 2016)

Did you wake up this morning and say:  "You know what?  I think I want to finally understand the French concept of astreinte.  I especially want to know whether it operates as a fine or penalty, or is it instead in the nature of a damage award?"

If so, coincidentally enough, you're in luck.  Here's ten single-spaced pages or so on the subject.

Truthfully, the opinion is worth reading even for the more pedestrian intellectuals amongst us.  For Judge McKeown also writes ten pages or so about whether a judge is allowed to examine expert declarations on what foreign law entails at the pleading stage; e.g., on a 12(b)(6) motion.

Foreshadowing alert:  The answer is "Yes."

Fancy-pants international legal stuff from the Ninth Circuit to begin the week.

In Re Sunnyslope Housing Ltd. Partnership (9th Cir. - Sept. 22, 2016)

I can often accurately predict which Ninth Circuit cases are likely to be taken en banc.

But I will forthrightly concede that I was totally blindsided by this one.

Sure, there was a dissent in the original panel opinion.  But Judge Paez didn't write anything that would be considered blistering.  And the majority consisted of Judges Clifton and Kozinski.  Not someone crazy and/or sitting by designation.

Moreover, Judge Paez's argument was largely that the majority simply misread a holding from a Supreme Court case, not that it created an intracircuit split or conflicted with the decision of a prior Ninth Circuit panel.  So you gotta figure that if the Supreme Court really thought its opinion was misinterpreted, it could take care of it itself.

Finally, the clincher:  This is a bankruptcy case.  Come on.  Who's going to take a bankruptcy case en banc?!

Apparently the Ninth Circuit.

Whodathunk?

City of San Diego v. San Diegans for Open Government (Cal. Ct. App. - Sept. 22, 2016)

San Diego attorney Cory Briggs loses a quarter million dollars in attorney's fees today because he elected to file an answer on behalf of a nonprofit corporation when his firm knew that corporation was suspended.  Plus, Justice Huffman's opinion, like the trial court, insults him for doing do.  Saying, among other things:

"The law is clear that SDOG lacked the capacity to appear in the Validation Action. A corporation that has had its powers suspended 'lacks the legal capacity to prosecute or defend a civil action during its suspension.' . . . Despite this clear authority, SDOG, represented by BLC [the Briggs Law Corporation], filed an answer in the Validation Action. Such conduct was clearly wrong. Additionally, BLC's explicit approval of SDOG's appearance and representation of SDOG was, as described by the superior court, unethical and perhaps criminal. . . .

We are perplexed by BLC's and SDOG's actions here. We do not understand why BLC would represent SDOG in the Validation Action and file a verified answer on behalf of SDOG when it knew, as did the corporation, that SDOG was suspended. In light of this clearly unethical and possibly criminal conduct, we expect some explanation of BLC's actions. BLC provides none. BLC does not explain why it felt compelled to violate the law and make an appearance on behalf of SDOG. BLC does not discuss any exigency in the matter that induced its improper actions. BLC does not clarify what value SDOG's presence in the action added, especially considering that the public interest was already being protected by Shapiro. There is no indication that SDOG obtained unique relief that Shapiro did not or could not achieve in the Validation Action. In other words, BLC offers absolutely no justification for its actions.

Further exacerbating BLC's illicit conduct here, BLC does not accept responsibility for its actions. Instead, it blames the City for failing to discover earlier that SDOG was a suspended corporation. . . . Such blame shifting and obfuscation does not carry the day."

Ouch.

A good day for the city of San Diego.  At least financially.  Not such a good day for the law firm.

In Re J.E. (Cal. Ct. App. - Sept. 21, 2016)

I talked early today about the typically depressing black cloud of human imperfection that I typically read in the pages of the California Appellate Reporter.

See what I mean?

From the same day as my earlier post this morning:

"On August 9, 2014, the then 14-year-old minor was taken into protective custody by the Oakland Police Department after running away from her mother’s home. Mother had refused to allow her to return home and asked that she be taken into the custody of Child Protective Services. . . . The petition alleged that mother was overwhelmed and unable to supervise minor due to minor’s behavioral challenges, which included fire-setting, chronically running away, and suicidal ideations.

According to the detention report prepared by the agency, minor had been residing in Oakland with her mother, her older sister (then age 18) and a younger sister (then age 8). Mother 'reported feeling very stressed and overwhelmed for some time because of [minor’s] behaviors.' Mother stated that minor 'is ‘manipulative’ and ‘lies a lot.’ Further [mother] is concerned about [minor’s] cutting behaviors, statements of suicidal ideation, an attempt to set her bedroom on fire, smoking marijuana, drinking alcohol, chronic running away, and an incident in November 2013 in which [minor] molested her younger sister. [Mother] believes that she is not able to meet [minor’s] needs at this time.' Minor reported to the agency that she ran away because she was beaten by her mother and also claimed that she had been molested by her older sister when they were younger."

Yep.  That's indeed the type of stuff I usually see.

*Sigh*

In Re: J.G. (Cal. Ct. App. - Sept. 20, 2016)

The typical day has me read a half dozen or so published opinions, every one of which contains depressing facts about the most marginalized participants in society.  You get to see the bad side of human nature every single day.

Then, once in a blue moon, you come across facts like these:

"Defendant was 17 years old in January 2011 when he committed a residential burglary. He was adjudged a ward of the juvenile court and placed in a youth rehabilitation center for nine months. Defendant was ordered to pay victim restitution of $2,100 and a restitution fine of $100.

Defendant arrived at the youth rehabilitation center in April 2011 and was granted early release in September 2011, graduating from the program in six months. In a later report to the court, a probation officer stated: “According to institutional records and staff, [defendant’s] adjustment to the program was very good. [He] abided by institutional rules; he adhered to staff directions; he interacted well with his peers; and he performed well in school. As part of his therapeutic treatment plan at the [center], [defendant] participated in anger management, impact of crime on victims, life skills, and substance abuse programs.”

Defendant returned home. It was reported at a December 2011 review hearing that defendant “has fully complied with the conditions of his probation. . . . [¶] Regarding his adjustment at home, his attitude and behavior have been good according to his mother. [She] reports that [defendant] had been following her rules, completing household chores, abiding by his curfew, and contributing to household expenses. Each time [the probation officer] has spoken to [defendant’s mother], she has related nothing but positive information regarding her son’s conduct at home. [¶] As to school, [defendant] has been participating in the GED program” and “hopes to take his GED examination within the next few months.” He has been working part time in a restaurant. “As to his other conditions of probation, [defendant] has been drug tested on a regular basis and has not tested positive for any illicit substances. [Defendant] has reported to probation as directed and he has been available for home visits. According to probation records, he has not committed any new law violations.” Defendant had not yet paid restitution but said he “expects to begin making payments in the near future.” The probation officer concluded by noting defendant’s “positive adjustment in the community.” As recommended by the probation department, the court ordered defendant’s parole “terminated successfully” and maintained his wardship. The order was issued on December 29, 2011, when defendant was age 18.

No further proceedings were had until a January 26, 2016 review hearing, when defendant was age 22. The probation department filed a report asking for termination of wardship because defendant’s age put him beyond the jurisdiction of the juvenile court. The report stated that defendant “perform[ed] well in the community” from the time of the 2011 review hearing to date. Defendant “continued to follow his parents’ rules at home, obtained his GED,” “obtained employment” at a restaurant, and was free of any law violations."

Hey!  How about that?!  It actually seemed to turn out okay.  Yes, the guy had problems when he was 17, and was put on probation.  But, at least for the next five years, it seems like he turned it around.  He found a job, obtained a GED, didn't commit any more crimes, seems like he has a good attitude, etc.  Well done.

So what's the case doing in the Court of Appeal?  Why this ray of sunshine in the otherwise nearly uniformly gloomy pages of the California Appellate Reporter?

Simple.  The trial court didn't think that it could declare that the juvenile had "successfully" completed probation because he hadn't yet fully paid the $2,100 in restitution he owed.  The trial court said that it would readily declare probation completed if he had paid the restitution (but he hadn't), or even if the trial court could enter a civil judgment for this amount -- which is generally what happens.  But since the former minor was now 22, the trial court didn't think that it had the authority to enter a civil judgment for the restitution amount, which the trial court thought expired once the minor turned 21.

On that basis, the trial court refused to find that the minor had successfully completed his probation.

Thankfully, the Court of Appeal recognizes a good thing for what it is, and reverses.

The minor has done well.  The trial court has the power to enter a civil judgment based on a restitution order even if the minor is now over 21, so long as the restitution order was entered (as it was here) when the minor was still a minor.  No problem.  And since the minor has done well, there's no need to remand the case for further factfinding.  The Court of Appeal orders that the minor be found to have successfully completed probation, which means that his juvenile records are sealed and he's able to get on with his new life.

Well done.

Estate of Barton v. ADT Security Services Pension Plan (9th Cir. - Sept. 20, 2016)

Most work product that you see when you teach at a law school is reasonably good.  Your students have graduated college; they've generally done well there; they scored highly on standardized tests; and typically they work fairly diligently on their projects.  As a result, the vast majority of the time, you're fairly pleased -- or at least satisfied -- with what you see.

But, sometimes, you come across work product that's terrible.  Just terrible.  Incredibly, stunningly, terrible.

At which point you have to make a decision.

The biggest part of you -- or at least of me -- wants to be honest.  Ruthlessly honest.  To tell them exactly what they've done wrong and why, as well as to explain exactly what the deficiencies are in their work and how serious, deeply serious, those deficiencies are.  That may mean telling them that their work product is bad.  Incredibly bad.  But you hope that this bad (but accurate) news will help them improve in the future, which is your exclusive goal.  It'll make them a better person for you to be blunt about where they have failed and by what magnitude.  Even if that news may cause them some short-term distress.  No one, after all, likes to be critiqued for their work.  Especially work on which they've spent a fair amount of time.  Nonetheless, you want to be honest, in an effort to make them better.  Seriously honest.

But another part of you often says:  "What's the point?"  They're not going to like being critiqued.  Especially if you're honest about the gravity of your critique.  They may well think that you're being overly -- wrongly -- judgmental.  That their work isn't nearly as bad as you say it is.  That your critique is just your opinion, and one not worth much weight at that, and probably doesn't in fact reflect the quality of their work product.  The author may think:  "Well, yeah, maybe my stuff wasn't awesome, but it was just fine; this guy's just being a jerk."  So they'll sit there and listen, but really they've tuned out and aren't hearing what you're saying.  Or at least not accepting it.  Because they won't believe it's actually that bad.

That's a natural response.  And it's much more common, I think, than someone taking a powerful -- blunt -- critique to heart.  Much of the time, all that being ruthlessly honest about incredibly poor work product only ends up in upsetting the author and/or making them tune out.

So what's the point?  You haven't actually accomplished your objective.  All you've done is to come off like a jerk yourself.

So you're inclined to sugar-coat your review.  Sure, you tell them the parts of their work product that are bad.  But you never accurately reflect your overall review of the piece.  Or -- and this is the downside -- reveal your belief that what they've written is really bad.  Unacceptably bad.  Which you want to say so they won't do it again.  But, instead, you tell them the bad parts, they come away thinking what they've done is okay but not great, and, yeah, they've (maybe) learned a bit, but there's still a darn high chance that the next project they do (or the one after that) will be just as intolerably bad as the thing you read.

But at least their feelings weren't hurt.

That's a struggle you occasional face as a teacher.  There are analogies to other areas of life, of course; child rearing comes to mind, for one.  Other things too.  How harsh -- or "honest" -- should you be when you see something that's profoundly subpar?  Especially when you know the author can do better?

Judge Smith authors a dissent from a denial of rehearing en banc in an ERISA case today, joined by Judges O'Scannlain, Tallman, Gould, Bybee, Callahan, Bea, and Ikuta.  Sometimes such dissents can serve as an especially powerful way to convince the Supreme Court to grant certiorari in the case.  Or, at a minimum, are fairly devastating indictments of the underlying panel opinion.

This is not, in my view, one of those types of dissents.

The dissent begins with a one-sentence paragraph; a sentence that simply quotes the underlying standard for en banc review.  "A party may petition for rehearing en banc when 'the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed . . . and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions.' Fed. R. App. P. 35(b)(1)(A)."

I don't think that's an especially powerful, or helpful, way to begin your dissent.  If only because pretty much everyone reading the thing already knows the relevant standard.

The second paragraph shifts to making conclusory representations about the panel's opinion that doesn't describe the particular issues at stake and could probably be inserted virtually verbatim into pretty much any dissent from a denial of rehearing en banc.  "In this case, the majority ignores United States Supreme Court precedent and our own Employee Retirement Income Security Act (“ERISA”) precedent and thus fails to maintain the uniformity of the courts’ decisions. Therefore, I must dissent from our court’s refusal to rehear this case en banc."  I'm not sure that really advances the ball very much.

You can read the rest of the dissent if you'd like, but in general, I was underwhelmed, and thought it could have been written a bit better.  It's not that anything that Judge Smith says is demonstrably wrong.  It's just not a very powerful, or even especially persuasive, submission.  Sometimes you've be more than happy to write a certiorari petition that simply quoted at length from a particular judge's dissent from the denial of rehearing en banc.  You definitely wouldn't do that here (or at least I wouldn't).  There's a lot missing, and you might even prefer to simply quote from Judge Ikuta's dissent in the underlying panel opinion instead.

The dissent concludes by articulating two rhetorical questions.  I'm not sure this is a generally great way to end a dissent.  Especially when, as here, those rhetorical questions -- like the introduction -- again are not targeted towards the particular issues in this case and could be used verbatim in pretty much every single dissent from a denial of rehearing en banc in the universe.  This conclusion reads:  "Why have the Supreme Court and our circuit mandate standards of review if judges can ignore them at any time they are so inclined? Our circuit has inexplicably turned its back on the principle of stare decisis in this case. From this time forward, can each panel decide the law on its own, provided enough active judges are willing to live with it?"

I don't think that legal briefs that end with similar rhetorical questions have much persuasive effect.  I feel the same way about the conclusion here.  It just doesn't especially move me.

I've seen better.

Again, it's not that Judge Smith says anything demonstrably wrong.  It's just that dissents from denials of rehearing en banc are often some of the most powerful, persuasive pieces that come out of the Ninth Circuit.

With respect, I don't think that this particular missive is in that particular category.

People v. White (Cal. Ct. App. - Sept. 19, 2016)

Today's opinion is another in a long series of SVP cases.  You get used to reading these things pretty much every week or so.  So maybe you get a little jaded.

Yet something about the first paragraph stuck out to me:

"The issue in this case is whether a defendant’s various mental conditions,1 including frotteuristic disorder, exhibitionist disorder, bipolar disorder, and anti-social disorder, which two experts opined would likely result in future acts of sexual battery, satisfy the requirement of the Sexually Violent Predator Act (SVPA) that a defendant 'will engage in sexually violent criminal behavior.'"

Hmmm.  "Frotteuristic disorder,"  Haven't heard that term before.  I know those other terms; I get what exhibitionism is, bipolar disorder, etc.  I even know some other terms you get used to in these SVP cases; pedophilia, etc.  But the old "frotteuristic disorder"?  Nope.  Don't know it.

So I looked it up.  Apparently it means that you really, really, really like rubbing up against a non-consenting person.  Generally with your penis.

Oh.  That!  Yeah, I'm familiar with the concept.  Just didn't know the term.

But now I do.

Let's hear it for education.

As it turns out, though, I didn't even need to look it up.  Because as you read the rest of the opinion, you inevitably discover -- via context -- what that term means.  Because if there ever was a guy who likes rubbing up against a non-consenting person with his penis, it's Mr. White.  And Justice Kreigler describes at length all the various times throughout history that Mr. White has indulged his apparent passion.

Let's just say, without elaboration, that it's a lot of disturbing touching.  A shocking, depressing, deeply disturbing amount.

And as for the dispositive issue of whether Mr. White is an SVP who's going to stay locked up -- very possibly for the rest of his life, notwithstanding his full service of his sentence -- let's just say you can figure out how the case comes out from the Court of Appeal's recitation of his history both in prison and in the hospital.  Wholly apart from all the "rubbing" he does when outside and in the real world (which, again, is a ton of rubbing):

"Defendant incurred 47 serious prison rules violations while incarcerated, including six sex offenses, three acts of physical aggression, three threatening acts, two instances of possessing weapons, and 11 instances of verbal aggression. The sexual incidents include asking to masturbate in front of a female intern, exposing his erect penis, and masturbating in front of female staff. Defendant was sent to Coalinga State Hospital in 2008 after a parole violation.

At Coalinga, defendant engaged in instances of indecent exposure, verbal sexual aggression, verbal non-sexual aggression, and property damage. Between April 2009 and June 2011, there were 13 indecent exposures, 11 acts of physical aggression, and 33 threats. Between July 2011 to November 2013, there were 12 exposures, 22 acts of physical aggression, 36 threats, 10 instances of verbal sexual aggression, 46 verbal nonsexual aggression, 39 property damage, and 14 instances of contraband possession. From December 2013 through July 2015, there were two exposures documented, one act of physical aggression, three threats, two acts of verbal sexual aggression, four acts of nonsexual verbal aggression, two property damage, and two instances of possession of contraband. There were additional acts of misconduct including frequent sexual comments to female staff, grabbing his clothed penis, and exposing himself to a female medical technician."

Yeah.  There's pretty much no doubt how this case is going to come out, now, is there?

Nope.  None whatsoever.

Rothstein v. Superior Court (Cal. Ct. App. - Sept. 16, 2016)

Justice Baker explains the relevant issue in the opening paragraph of this opinion:

"While a husband and wife were litigating their ongoing marriage dissolution case, a limited liability company run by the wife filed a civil action concerning a disputed debt at issue in the dissolution proceedings. The superior court deemed the two cases related and assigned the civil case to the already assigned judge. The question we decide is whether the limited liability company’s Code of Civil Procedure section 170.6 challenge in the related civil action requires transfer of both cases to a new judge."  (emphasis in original)

Justice Baker frames the question, but doesn't immediately answer it.  For that, you have to read all the way to page four of the opinion.

But from the mere framing of the question -- as well as the strategically placed emphasis on the word "both" -- you can probably already figure out the answer.

As page four says:

"We hold a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge. We explain why."

That's the rest of the opinion.

A.K.H. v. City of Tustin (9th Cir. - Sept. 17, 2016)

I'm a little confused about this one.

The question is whether a police officer used excessive force (and/or is entitled to qualified immunity) when he shot and killed an unarmed person walking on the street.  So the facts are important.

Judge Fletcher's opinion does a good job of explaining why, in fact, there was no qualified immunity here.  In large part because there was basically no real reason to shoot the victim.  He hadn't committed a big offense, wasn't a real threat to escape, wasn't armed or known to be armed, etc.

There's just one part that I don't quite understand.

Judge Fletcher says in the opening paragraph of the opinion that "Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."  That's a pretty big deal.  If you shoot someone who's not holding a weapon, and who you know isn't holding a weapon, you're already starting (in my view) in a huge hole in an excessive force suit.

Yet, later on in the opinion, Judge Fletcher says:  "Villareal immediately shouted, 'Get your hand out of your pocket.' Herrera removed his right hand from his sweatshirt pocket in an arcing motion over his head. Just as Herrera’s hand came out of his pocket, Villarreal fired two shots in rapid succession. . . .  Officer Villarreal testified in his deposition that he shot Herrera because he 'believe[ed] that he had a weapon and he was going to use that weapon on [him].'"

I'm honestly confused.

Maybe what the officer's saying is that, yeah, he didn't actually see a gun in Herrera's hand, but he thought the guy had a gun in his sweatshirt -- which is why he kept his hand in there -- and then when he removed his right hand from the sweatshirt in an arcing motion over his head, the officer thought (mistakenly) there was a gun in there, and that's why he shot.

If that's what the officer's saying, then I can at least understand why he fired.  (There's still the question of whether that's reasonable, but at least I can understand why everything went down as it did.)

But that seems inconsistent with what Judge Fletcher said at the outset of the opinion, when he says -- albeit not directly quoting from anything in the record -- that "Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."

The other way to view the record is to say that the testimony shows that the officer shot the guy because he "thought" he had a weapon in his sweatshirt, albeit not in his hand.  If that's indeed what the record reflects, well, duh, there's obviously no qualified immunity on these facts.  There's totally no reason to shoot a guy because he just pulled out an empty hand -- a hand you knew was empty -- just because tucked away in a sweatshirt somewhere there might potentially be a weapon that is totally no threat at the present moment.

That's how Judge Fletcher seems to view the record.  Or at least the impression I got from reading the facts set forth in this opinion.

Okay.  But I just can't fathom that that's actually what the officer said.

Maybe he did.  Maybe he honestly said that he didn't see anything in the hand, or think anything was in the hand, but he shot the guy anyway.  If so, I totally understand today's opinion.

But is that really an accurate recitation of the officer's story?  (Again:  Maybe.  I simply can't tell from the use of quotations in one area of the opinion but the non-quoted summary at the outset.)

Reading between the lines, is it possible that what the officer's saying was that (1) he didn't actually see a gun (which is what Judge Fletcher says), (2) he didn't actually think he actually saw a gun (which is, again, what Judge Fletcher says), but (3) he nonetheless thought the guy had a gun in his hand once he pulled it out of his pocket?

That last subjective mental state seems important to me.  But at least as far as I can tell, Judge Fletcher never discusses it anywhere in the opinion.  The best I can find is the factual summary at the outset in which Judge Fletcher says that the officer "does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."  One way to interpret that, I guess, is to say that the officer admitted that he didn't think there was a weapon in the hand.  But a different way to interpret that is to say the the officer admitted that he didn't think he saw a weapon in the hand, but nonetheless thought there was a weapon in the hand.   The hand that appears to be rapidly arcing towards him.

But I can't tell from the opinion which of these two things Judge Fletcher is saying.  Or that, critically, the actual record reflects.

Again, I'm not saying the shooting here was necessarily justified.  But it's a far different case, in my view, if you shoot someone who just whipped towards you what you know is an empty hand as opposed to if you shoot someone who just whipped towards you a hand that you think -- maybe reasonably, maybe not so reasonably -- holds a gun.

If a guy points his fingers in the shape of a gun towards you, but you knew they're fingers, you obviously can't shoot him.  But if a guy points his fingers in the shape of a gun towards you, and you think his fingers are a gun -- or holds his hand in a fist that you think holds a weapon, even though you can't "see" one -- well, that's an entirely different case, right?

I think that Judge Fletcher is saying that this case involves the former hypothetical.  But I can't tell for sure if that's indeed Judge Fletcher's understanding.  Or whether, his understanding or not, that's actually this case.

So I'd like to see the actual record on this point quoted.  'Cause it sure seems important to me, at least, whether the officer admitted that he didn't see or think he saw a weapon, versus whether he admitted that he didn't see or think there was a weapon in the victim's hand.

A pretty big distinction.

Freitas v. Shiomoto (Cal. Ct. App. - Sept. 14, 2016)

Impressive.  Or pathetic.  Depending on your take.

Joseph Freitas is drunk as a skunk.  Allegedly.  And driving.  He's weaving through lanes and going 65 mph in a 45 mph zone when he's pulled over.  He fails tons of field sobriety tests, and according to the blood test, his BAC is .23.

So, among other things, they pull ("administratively suspend") his license.  Which he challenges.

Apparently -- and I didn't know this -- blood tests are done via a gas chromatograph, which has a heated chamber containing two long, narrow, coiled columns.  I'll just quote the opinion to give the rest of the details about these two different columns:

"The inner surfaces of the columns are treated with chemical preparations, a different preparation in each column. A portion of the sample to be tested is introduced into each column in gaseous form. As a sample passes through a column, compounds in the sample react with the chemicals on the walls of the column. . . . The reason for using two differently prepared columns is that for any given single column, the retention time for alcohol is the same as the retention time for numerous other volatile organic compounds that can be present in a blood sample. Data from a single column consistent with the presence of alcohol would also be consistent with the presence of a different compound or alcohol plus another compound. A sample yielding a positive result from a single column thus might contain no alcohol or might contain less alcohol than the result indicates. Results from the second column, which are based on a different chemical principle, are necessary to confirm the presence and quantity of alcohol."

Hmmm.  Interesting.  And I get it.  The only thing I knew about this before was a brief reference to this stuff in My Cousin Vinny.  Now I actually understand the thing.  Neat.

But here's the weird thing.  In Kern County, apparently, even though there are two gas columns in a dual chromatograph, and even though there's a totally good reason for the two columns, the BAC reports they print out only list the result from one of these two columns.

So the (allgegedly) .23 drunk Mr. Frietas hires a lawyer, who hires an expert -- an expert who often gives testimony on this exact same issue -- and this is what the expert says:

“[Counsel]: Can you think of any reason, scientifically speaking, why dual column analysis would not be used as a confirmatory method when the entire system is already set up that way?

“[Arvizu]: I really can’t. And I can’t even imagine why they would set it up that way and then not use it. Even the instrument manufacturers, in their materials, indicate that dual column should be used for ethanol. To set it up with dual columns and then just ignore the second column is scientifically illogical.”

But the DMV doesn't care.  This is just a silly little DUI case.  It doesn't bother to put on an expert of its own.  It just says that the results are probably right; that it only has to prove a .08 anyway, and the testimony of the police officer and the field sobriety tests more than support the conclusion that Mr. Freitas was blitzed and driving with a BAC in excess of .08.

The administrative officer in the DMV hearing agreed.  So did the trial judge, who affirmed the suspension of Mr. Freitas' license.

The Court of Appeal reverses.

Justice Smith holds that since the expert's analysis was unrebutted, there's no substantial evidence to support the finding that Mr. Freitas was driving with a BAC of .08.  So he gets entirely off.

On the one hand, Justice Smith writes a very persuasive opinion.  Plus, I'm horrified to know that in Kern County -- and potentially elsewhere -- they're inexplicably reporting only one column from the deliberately-designed two-column device.  That's just crazy.  I'm certain -- or at least hope -- that this opinion corrects this practice.

Though, in the meantime, there are all these people, like Mr. Freitas, who are going to get out of the legitimate consequences of their driving while (way) intoxicated.  So that I don't like at all.

Plus, I'm not entirely certain that Justice Smith is correct.

Okay, I'll grant you, the expert's unrebutted testimony is fairly devastating.  I'm giving that a ton of weight.

Nonetheless, the dude was driving with an (alleged) .23.  That's way above a .08.  Plus, the police officer gave a plethora of evidence -- the weaving, the field sobriety tests, the admitted drinking, the strong smell of alcohol, etc. -- that would very strongly support that, in layman's terms, Mr. Freitas was indeed driving while way intoxicated.  Definitely -- or at least very likely -- in excess of .08.  A conclusion that I'd reach even without any blood test.  And the expert's testimony here, while really good, hardly in my mind means that I give no weight whatsoever to the test.  Yes, we're lacking the results from the "backup" column.  But nine times out of ten -- more, I'd wager -- I bet that other column isn't starkly different.  And even more rarely is does the difference drop down from .23 to below .08.

And the expert's failure to say anything to the contrary, or to deny my common-sense judgment with respect to this issue, furthers my conclusion in this regard.

Oh, and one more thing.  The second column was reported.  Just not during the trial.  They gave this information to Mr. Freitas, and his expert, during discovery.  So if that second column tended to show that the first column was, in fact, materially off, I'd definitely have expected the expert to have pointed this out.

But the guy didn't say Word One about that topic.

Put that all together, and to me, it's pretty darn certain that the guy was driving over .08.  Sure, it's possible for a guy to weave in and out of lanes and fail field sobriety tests with a .07.  Sure, it's at least possible for a .23 result in one column to really reflect a .06.  I'm sure it happens sometimes.

But the trial court here found that this wasn't the case here.  And I totally agree with it.  I'm not at all convinced that I could validly say, on a cold record, that the entirety of the record fails to provide any "substantial evidence" to support the trial court's finding that the guy here was driving with above a .08.

If for no reason than, if you ask me, I'd bet dollars to doughnuts -- indeed, lots of dollars to very few doughnuts -- that the guy was, in fact, driving with above a .08.

I think that you can validly convict a guy for driving with above a .08 even without a blood test at all, based solely on his conduct.  So, ipso facto, I think you can validly find that a guy was likely driving with above a .08 based on his conduct and an (admittedly partially flawed) test.

So I'm not sure it makes sense to give Mr. Freitas' license back.

Or the thousands of others who are just like him and who, after this opinion, will be smart enough to take similar advantage of the shoddy practices reflected here.

People v. Cortez (Cal. Ct. App. - Sept. 14, 2016)

"When a court recalls a felony sentence and imposes a misdemeanor sentence pursuant to Penal Code section 1170.18, subdivision (a) (Proposition 47), may the court revisit the sentence imposed on other misdemeanor counts, not subject to Proposition 47, and impose a harsher punishment? Yes, provided that the new aggregate sentence does not exceed the prior sentence."

Yep.  That's exactly what the opinion says.

Love it when the first paragraph of the opinion tells you pretty much everything you need to know.

(Except for the reasoning, of course.  Which sometimes I agree with, and sometimes not.)

Godoy v. Spearman (9th Cir. - Aug. 25, 2016)

Judge O'Scannlain authors the majority opinion, which Judge Bybee joins.  Judge Fisher dissents, the opening paragraph of which reads:

"When a sitting juror is alleged to have continuously texted a judge friend about the trial and relayed the judge’s information to the jury, the majority concludes the trial court need not investigate further – and the jury verdict would not violate due process. I disagree."

When you can write that type of concise summary of the majority opinion's holding, you're doing pretty well for yourself.

Expect to see an en banc vote.

Phillips v. Campbell (Cal. Ct. App. - Aug. 23, 2016)

If it looks like a duck and quacks like a duck, it's a duck.

Even if the parties may think (or may even say) they're not in a dating relationship, if that's what they're in fact in, the trial court may permissibly so find.

Kimzey v. Yelp! (9th Cir. - Sept. 12, 2016)

Left-leaning judges and commentators often decry the "Twiqbal" cases, which established heightened pleading standards that require the articulation of "plausible" claims at the pleading stages.

But that doesn't stop 'em from using those cases to reach a desirable result.  As Judge McKeown does this morning in affirm a the dismissal of a claim against Yelp! at the pleading stage when the plaintiff alleged that Yelp! "made up" the underlying reviews:

"We have no trouble in this case concluding that threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA. See Iqbal, 556 U.S. at 678 (holding that a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)))."

There's no doubt that the complaint in this lawsuit was meritless.  So I'm certainly not about to cry that Mr. Kimzey's lawsuit is dismissed.

And from what I read about his business from the one Yelp! review at issue, I'm not likely to use his services any time soon either.

Especially when combined with what I learned about his subsequent pro se litigation.

USPS v. Ester (9th Cir. - Sept. 9, 2016)

I'm rooting for the United States Postal Service.  Which, happily, wins.

The USPS has leased a branch post office in Bellevue, Washington for 50 years, pursuant to a lease that requires a specified amount of rent and an option for the USPS to buy the property -- at various diminishing prices over time -- at the end of the lease.

After the 50 years was up, the USPS elected to buy the property for the specified $300,000 purchase price.  At this point, the property was actually worth $20 million.  But, again, the USPS had paid rent for 50 years, and presumably the lower (and yearly-diminishing) purchase price was consideration for the rental payments over the past half century.

But the owners of the building, not surprisingly, want to get out of the lease.  So they sue, claiming that at various points during the 50 year history, the USPS had never "validly" renewed the lease.  All this despite the fact that during those same 50 years the owners kept cashing every single one of those rent checks and never previously argued that the lease had not, in fact, been validly renewed.

But I guess the prospect of a $20 million dollar payday was pretty attractive.

The district court grants summary judgment, finding that no reasonable person could find a genuine issue of material fact.  The Ninth Circuit affirms.

And I go into the weekend a slightly happier man.

Justice.  Awesome to see.

Minick v. City of Petaluma (Cal. Ct. App. - Sept. 2, 2016)

Sacramento attorney Joshua Watson obtains Section 473 relief for his client.  That's definitely a win.

But on the flip side, he also gets his own dirty laundry aired in a published opinion:

"Watson explained that he had been suffering from serious pulmonary and sleep disorders throughout 2013, and that his symptoms gradually worsened as the year progressed. He sought medical treatment and was put on a regimen of 12 different medications. In the course of treatment, he went to the emergency room four times, twice by ambulance; he consulted with five medical specialists in dozens of appointments; and he underwent radiological studies, lab studies, ultrasound studies, and sleep studies. Although Watson’s underlying pulmonary condition gradually improved, he claimed to have suffered side effects from the medications, including painful spasms, episodes of disorientation, and periods of uncharacteristically strong responses to stressors."

You can also read more in the opinion about Mr. Watson's opposition to the defendant's motion for summary judgment, which the trial court called (amongst other things) "ludicrous".

Nonetheless, Mr. Watson, and his client, prevail on appeal.  As do -- indirectly -- other California attorneys.  Who may perhaps be able to similarly claim that their own incompetence is subject to mandatory relief under Section 473.

So that's nice.

NewGen v. Safe Cig (9th Cir. - Sept. 7, 2016)

I gotta be honest with you:  When I first started reading this opinion this morning, I was super reluctant.

Are we really going to affirm a seven-figure default judgment in federal court when there was a fight about whether service was proper -- wholly apart from the subject matter jurisdiction problems -- and the defendant contacted the plaintiff the very same day the default was obtained and offered to respond to the complaint (and waive its objections to service) if it could have 60 days to answer?!

I mean, really?!

But you know what?  Judge McKeown's opinion ultimately persuades me.  And, to reiterate, I was super reluctant about whether it would really be just to let a huge default judgment stand under such circumstances.

That's the mark of a really good opinion, in my view:  the ability to persuade someone who has an initial take that's 180 degrees different than yours.

Well done.

Draper v. Rosario (9th Cir. - Sept. 7, 2016)

I agree with Judge Bea.

A prisoner files a lawsuit, alleging that a prison guard needlessly slammed him into a wall.  If that's true, then that's excessive force, and a violation of the Eighth Amendment.

The prison guard, by contrast, asserts the he didn't use any force on the inmate at all; instead, that as the guard reached for his radio, the inmate "placed his foot on the grill gate, and lunged his body back towards" the guard, who in turn stepped out of the way of this attempted assault and watched as the inmate fell to the ground.

The case goes to trial, since there's a genuine issue of material fact.  If the guard's telling the truth, the guard should win.  If the inmate's telling the truth, the inmate should win.

The jury finds for the guard.

As the prevailing party, the guard's normally entitled to costs.  So the district court awards the guard $3,018.35 in costs.

The inmate has nothing in his prison trust account, as well as unsatisfied restitution judgment, so in reality, there's no way the cost award actually matters.  Either way.

But the Ninth Circuit holds, in an opinion by Judge Paez (joined by Judge Wardlaw), that the award of costs constituted an abuse of discretion, since such an award against an impecunious inmate would chill excessive force claims.

Judge Bea dissents.

Here's my take:

I would have thought it well within the trial court's discretion to deny costs.  But it didn't do so.  It thought that the routine award of costs made sense.  That judge was on the ground.  He saw the entire trial.  This is precisely what we mean by "discretion," and I think we legitimately should defer to the district court's judgment here.  Particularly when, as here, the underlying rule says that costs should ordinarily be awarded.

That's Judge Bea's argument in dissent -- articulated slightly differently than the way he puts it -- and it seems right to me.

But I think an even bigger point (or at least a dispositive one) relies on something that neither the majority or the dissent mentions.  This case was all about credibility.  One of the two parties was lying.  Committing perjury, no less.  This wasn't a case where someone was confused.  The whole dispute revolved around whether the guard assaulted the inmate, and lied about it, or whether the inmate assaulted the guard (and lied about it).

The jury decided in favor of the guard.  The inmate was the one lying.

I have no problem holding that a trial court can legitimately impose a cost award against someone who (the jury finds) fabricated the entire a lawsuit.  That seems totally reasonable to me.  Indeed, it's even more than reasonable:  I think that costs should be awarded in such a setting.  At a bare minimum.  A made-up lawsuit imposes a ton of burdens on the other party, the least of which are the recoverable out-of-pocket costs described by the rule, so, yeah, when you lose such a claim, you should be forced to reimburse the other side for those costs.

Such an award would deter civil rights lawsuits with merit.  It would deter civil rights suits that are made up.  And I'm more than fine with that.

Now, yes, the trial court thought that the lawsuit was "hard fought".  The lawyers may well have been awesome; Wilmer Cutler, after all, represents the (losing) plaintiff on appeal.

But that doesn't mean that the trial judge disagreed with the jury's necessary finding that it was the guard who was telling the truth and the inmate who wasn't.  Again:  If the trial court had thought that it was a close credibility contest, or would have decided the case the other way, then, yes, I could vdry easily see the trial court deciding not to award costs.  But that's not what transpired here.  Rather, the trial judge -- who sat through the entire trial and saw the witnesses testify -- exercised its discretion and decided that the (apparently untruthful) inmate should bear the costs.

That's not an abuse of discretion.  At least on this record.  A trial judge could, in my view, easily conclude that such an award, in those circumstances, makes sense.

Might an award of costs against a plaintiff who commits perjury in a civil rights case (or in which a reasonable jury or district judge could easily so find) "chill" valid civil rights complaints?  Maybe.  I guess.  But it seems far more reasonable to conclude that they'd chill invalid complaints.  And, as I said, I'm okay with that.

It's true that, here, the district court judge didn't make an express finding of perjury.  But that's at least in part because you don't have to make any findings when you're entering the totally-routine award of costs.  Plus, the jury pretty much necessarily found that the inmate was lying and the guard telling the truth.  On a cold appellate record, I just don't see how you can find an abuse of discretion in such settings.

So Judge Bea gets my vote with respect to the cost issue.  While the district court, which sat through the trial, could well have refused to award costs, it wasn't an abuse of discretion to go the other way either.

Oregon Rest. & Lodging Ass'n v. Perez (9th Cir. - Sept. 6, 2016)

Whenever anyone asks you for the political composition of the Ninth Circuit, here's something you can cite.

It's a left-leaning FLSA opinion.  Ten judges disagree: "O’SCANNLAIN, Circuit Judge, with whom KOZINSKI, GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, IKUTA, N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:"

That's every judge appointed by a Republican president (except Judge Clifton) alongside Judges Gould and Tallman.

Ten judges, of course, is a fair piece removed from a majority of the 28 active judges currently on the Ninth Circuit.

U.S. v. JP Morgan Bank Account No. (9th Cir. - Sept. 1, 2016)

This morning's Ninth Circuit opinion refers to, among other provisions, Fed. R. Civ. P. G(8)(c)(ii)(B).

I'll be impressed -- darn impressed -- if anyone can state without looking what that rule provides.

Goodness knows I couldn't.  And I teach Civil Procedure.

P.S. - For the record, this is what it says.