When the SWAT team comes to get you, this is what you do not do. Otherwise you'll be spending the rest of your life in prison. Despite the fact that you had absolutely no shot whatsoever at either (1) escaping, or (2) actually hitting the officers with any of the bullets you sporadically fired towards them.
Not that actually hitting them would have done anything other than gotten you the death penalty. Because in this particular context, you were surrounded and were going down. Why David Virgo decided to "shoot his way out" -- or, more accurately, fire shots indiscriminately into the woods -- and then give up is beyond me.
Apart from the fact that he's probably seen too many movies. That he didn't realize were fake.
Monday, December 30, 2013
Federal Ins. Co. v. WCAB (Cal. Ct. App. - Dec. 3, 2013)
"The applicant for workers’ compensation was a professional basketball player who was not employed by a California team, has never resided in California, has played one professional game in California out of 34 games played during the 2003 season, and has suffered no specific injury in California. She seeks a workers’ compensation award in California against her former non-California team and its insurer for a disability based on a cumulative injury."
From that opening salvo, do you get a sense of where the Court of Appeal is going in this one?
Adrienne Johnson -- an OSU graduate who played in the WNBA for the Cleveland Rockers, Orlando Miracle/Connecticut Sun, and the Seattle Storm, and who has at various times resided in Florida, New Jersey, and Kentucky -- does not get to take advantage of California law.
However wonderful it might be.
From that opening salvo, do you get a sense of where the Court of Appeal is going in this one?
Adrienne Johnson -- an OSU graduate who played in the WNBA for the Cleveland Rockers, Orlando Miracle/Connecticut Sun, and the Seattle Storm, and who has at various times resided in Florida, New Jersey, and Kentucky -- does not get to take advantage of California law.
However wonderful it might be.
Friday, December 27, 2013
People v. Rios (Cal. Ct. App. - Dec. 27, 2013)
You read the first two pages of this opinion, which describe the basic facts of the case, and (if you're like me) you think to yourself: "Good. Couldn't be happier the guy is in prison, without the possibility of parole, for the rest of his life. Can't think of a more purely evil person."
Then you read the next half-dozen pages. Which describe the circumstances in more detail.
And what was depressing at first becomes even more so.
Then you read the next half-dozen pages. Which describe the circumstances in more detail.
And what was depressing at first becomes even more so.
Ross v. Roberts (Cal. Ct. App. - Dec. 23, 2013)
Even an old fogey such as myself knows who "Rick Ross" is. He's the latest incarnation of the rapper/drug dealer persona. With an emphasis on the accumulation of wealth through any means. He has a following that's particularly large and proud. So much so that even people like me have heard of him.
But what I didn't know -- until now -- is that "Rick Ross" isn't actually Rick Ross. His name's actually William Roberts. Or, were we to shorten it, "Billy Bob". Which makes me understand why he might prefer the name "Rick Ross."
Moreover, while "Rick Ross" portrays himself as a drug-dealing "gansta" livin' the life of crime, he's actually . . . a former prison guard. Not exactly something he's excited to tell his fans. So he tries to keep that fact -- as they say -- on the "down low".
All of which is interesting.
But what I also didn't know until now is that there's actually a Rick Ross. He's a real person. Moreover, he's also -- or at least was -- someone famous. So much so that there's substantial -- indeed, fairly huge -- evidence that the "current" Rick Ross took his name, and story, and the persona from this other (real) person. Someone who happens to be currently alive. Not only appropriating his life story and personality, but even some of his memorable "catch phrases".
The "real" Rick Ross was/is also knows as "Freeway Ricky" Ross. He was a huge cocaine dealer during the crack epidemic of the 80s and 90s. And boy do I mean huge. As in selling nearly a billion dollars of coke. A performance that achieved for himself some no small amount of renown. The type of renown that the later "Rick Ross" thought could be capitalized upon.
Apparently the real Rick Ross discovered that you could get really cheap cocaine from Nicaragua. So he undersold his competitors. And distributed it throughout the country through Crips and Bloods.
The words "Nicaragua" and "80s" may perhaps ring a bell for you. Maybe you vaguely recall something about the contras. No coincidence. There's lots of evidence that Rick Ross had contacts with the CIA and that the U.S. government was fully aware of the drug-dealing that simultaneously provided funds to the contras as well as permitted Ricky to make his living.
Ultimately Ricky got busted. But now he's out of prison. And he thought that since his life had been ripped off by the "new" Rick Ross, he'd sue. So he did.
The California Court of Appeal affirms the dismissal of the lawsuit filed by the "true" Rick Ross. Albeit on alternate grounds than those relied upon by the trial court. The Court of Appeal holds that the "fake" Rick Ross had a First Amendment right to appropriate the persona of the "true" Rick Ross because his use of that persona was "transformative." The "new" Rick Ross has a variety of attributes -- rapper, entertainer, etc. -- that the "old" Rick Ross didn't have. So that makes it a new expressive work. One that's protected by the First Amendment.
For me, it's a very difficult line to draw between "derivative" and "transformative" works. Even in general, and as applied to traditional works (e.g., books, movies, etc.). But that's especially the case here. When we're talking about appropriating the existence of someone else.
Everyone recognizes that you don't have a First Amendment right to conduct identity theft. Or go around dressing and singing like Mariah Carey and selling tickets while pretending to be her. That's taking away someone's right of publicity.
But what about tribute bands? Or people who are "sort of" like their doppelgangers? What's the correct line there? When do you have the right to "sort of" pretend to be another person? Which, in my mind, is pretty much transpiring here?
It's especially difficult in a case like this in which there's a nontrivial amount of time between the filing of the lawsuit and the "new" person's appropriation. Which is something I wish the Court of Appeal would have addressed in its opinion. The Court of Appeal strikes a resonant chord with me when it says that the new Rick Ross is sufficiently different from the "original" Rick Ross to make a difference. After all, the new Rick Ross does indeed do a lot of things nowadays that the old Rick Ross didn't do.
But what about when Billy Bob first started appropriating the life of Rick Ross? What about when Billy first started calling himself Rick Ross, and wasn't yet rich and famous? At that point, Billy wasn't all that he now is. He hadn't really done much -- if anything -- transformative. He hadn't expanded his franchise. He didn't have the abilities (or talents) he now has. It'd be hard to argue that what he was doing at that point was really transformative. He was simply trading off of someone else's fame and good name. If that's true, how can something that's initially wrong become right merely through the passage of time? Even if it's true that an ultimately transformative character was created, if the only thing that permitted such a transformation was the initially illegal acquisition of someone else's personality, how's that okay?
It might perhaps be that even the "initial" (new) Rick Ross was so radically dissimilar to the (original) Rick Ross that even that persona was transformative. But I strongly doubt it. If so, the case is especially tough. It then involves not only how you draw the relevant line, but when. Making things doubly difficult.
But at least for the meantime, (former) King of Cocaine Rick Ross loses to the (current) King of Cocaine Wanna Be Rick Ross.
And we all get a little more educated.
But what I didn't know -- until now -- is that "Rick Ross" isn't actually Rick Ross. His name's actually William Roberts. Or, were we to shorten it, "Billy Bob". Which makes me understand why he might prefer the name "Rick Ross."
Moreover, while "Rick Ross" portrays himself as a drug-dealing "gansta" livin' the life of crime, he's actually . . . a former prison guard. Not exactly something he's excited to tell his fans. So he tries to keep that fact -- as they say -- on the "down low".
All of which is interesting.
But what I also didn't know until now is that there's actually a Rick Ross. He's a real person. Moreover, he's also -- or at least was -- someone famous. So much so that there's substantial -- indeed, fairly huge -- evidence that the "current" Rick Ross took his name, and story, and the persona from this other (real) person. Someone who happens to be currently alive. Not only appropriating his life story and personality, but even some of his memorable "catch phrases".
The "real" Rick Ross was/is also knows as "Freeway Ricky" Ross. He was a huge cocaine dealer during the crack epidemic of the 80s and 90s. And boy do I mean huge. As in selling nearly a billion dollars of coke. A performance that achieved for himself some no small amount of renown. The type of renown that the later "Rick Ross" thought could be capitalized upon.
Apparently the real Rick Ross discovered that you could get really cheap cocaine from Nicaragua. So he undersold his competitors. And distributed it throughout the country through Crips and Bloods.
The words "Nicaragua" and "80s" may perhaps ring a bell for you. Maybe you vaguely recall something about the contras. No coincidence. There's lots of evidence that Rick Ross had contacts with the CIA and that the U.S. government was fully aware of the drug-dealing that simultaneously provided funds to the contras as well as permitted Ricky to make his living.
Ultimately Ricky got busted. But now he's out of prison. And he thought that since his life had been ripped off by the "new" Rick Ross, he'd sue. So he did.
The California Court of Appeal affirms the dismissal of the lawsuit filed by the "true" Rick Ross. Albeit on alternate grounds than those relied upon by the trial court. The Court of Appeal holds that the "fake" Rick Ross had a First Amendment right to appropriate the persona of the "true" Rick Ross because his use of that persona was "transformative." The "new" Rick Ross has a variety of attributes -- rapper, entertainer, etc. -- that the "old" Rick Ross didn't have. So that makes it a new expressive work. One that's protected by the First Amendment.
For me, it's a very difficult line to draw between "derivative" and "transformative" works. Even in general, and as applied to traditional works (e.g., books, movies, etc.). But that's especially the case here. When we're talking about appropriating the existence of someone else.
Everyone recognizes that you don't have a First Amendment right to conduct identity theft. Or go around dressing and singing like Mariah Carey and selling tickets while pretending to be her. That's taking away someone's right of publicity.
But what about tribute bands? Or people who are "sort of" like their doppelgangers? What's the correct line there? When do you have the right to "sort of" pretend to be another person? Which, in my mind, is pretty much transpiring here?
It's especially difficult in a case like this in which there's a nontrivial amount of time between the filing of the lawsuit and the "new" person's appropriation. Which is something I wish the Court of Appeal would have addressed in its opinion. The Court of Appeal strikes a resonant chord with me when it says that the new Rick Ross is sufficiently different from the "original" Rick Ross to make a difference. After all, the new Rick Ross does indeed do a lot of things nowadays that the old Rick Ross didn't do.
But what about when Billy Bob first started appropriating the life of Rick Ross? What about when Billy first started calling himself Rick Ross, and wasn't yet rich and famous? At that point, Billy wasn't all that he now is. He hadn't really done much -- if anything -- transformative. He hadn't expanded his franchise. He didn't have the abilities (or talents) he now has. It'd be hard to argue that what he was doing at that point was really transformative. He was simply trading off of someone else's fame and good name. If that's true, how can something that's initially wrong become right merely through the passage of time? Even if it's true that an ultimately transformative character was created, if the only thing that permitted such a transformation was the initially illegal acquisition of someone else's personality, how's that okay?
It might perhaps be that even the "initial" (new) Rick Ross was so radically dissimilar to the (original) Rick Ross that even that persona was transformative. But I strongly doubt it. If so, the case is especially tough. It then involves not only how you draw the relevant line, but when. Making things doubly difficult.
But at least for the meantime, (former) King of Cocaine Rick Ross loses to the (current) King of Cocaine Wanna Be Rick Ross.
And we all get a little more educated.
Thursday, December 26, 2013
Alto v. Black (9th Cir. - Dec. 26, 2013)
Usually when you're an adopted child, you're a child. All the benefits (and liabilities) arising thereto.
With one big exception. Indian children.
Sometimes the tribe may care -- deeply -- about not giving you (or your descendants) a share of gaming revenue. And the resulting dispute may be litigated in so many different ways, and in so many venues, that it'll be hard to even keep track of them all.
But it all ends here.
Happy Boxing Day.
With one big exception. Indian children.
Sometimes the tribe may care -- deeply -- about not giving you (or your descendants) a share of gaming revenue. And the resulting dispute may be litigated in so many different ways, and in so many venues, that it'll be hard to even keep track of them all.
But it all ends here.
Happy Boxing Day.
Monday, December 23, 2013
Lexin v. City of San Diego (Cal. Ct. App. - Dec. 23, 2013)
Just what the City of San Diego needs: More multi-million dollar expenses arising out of the whole pension debacle. This time it's on the hook for paying the criminal defense costs for various members of the board of directors of the San Diego City Employees' Retirement System.
No chump change, either. Over $1.7 million for Cathy Lexin. Over a million bucks for Webster. Nearly another million for Vattimo, over three quarters of a million for Saathoff, and nearly a half-million each for Torres and Wilkinson.
Merry Christmas.
No chump change, either. Over $1.7 million for Cathy Lexin. Over a million bucks for Webster. Nearly another million for Vattimo, over three quarters of a million for Saathoff, and nearly a half-million each for Torres and Wilkinson.
Merry Christmas.
Friday, December 20, 2013
U.S. v. Shorty (9th Cir. - Dec. 20, 2013)
Judge Reinhardt's right.
Personally, I think the defendant knew full well what she was getting into. She (and her lawyer) wanted a bench trial, and after a brief colloquy with the trial court, she expressly waived her right to a jury trial. So if nothing was at issue other than the ability of a person -- albeit one with an indisputably low i.q. -- to waive her right to a jury trial, I think the right result here would be to uphold the waiver.
But there's another thing at stake. An actual rule. Federal Rule of Criminal Procedure 23. Which expressly states that "If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves."
There's no doubt that the waiver here wasn't in writing. So the first part isn't satisfied. For a textualist, that should be the end of the story. Period.
But precedent hasn't entirely been written by textualists. Which -- notwithstanding the clear dictates of the rule -- permits oral waivers as long as there's a detailed colloquy with the trial court in which the defendant is told that (1) the jury's twelve people, (2) the defendant gets to help select the jury, (3) the verdict must be unanimous, and (4) at a bench trial, only the judge decides guilt. The district court here only disclosed two of those four facts. That, plus the fact that the defendant is learning disabled, results in reversal.
I also agree with Judge Reinhardt on the sufficiency of the evidence issue. There's enough evidence of guilt. So on remand, a jury gets to either convict or acquit. At its leisure.
It's also interesting to see who gets reversed here. The district court judge who conducted the trial and who found the defendant guilty -- the judge who does not get reversed -- is Judge Snow. The district court judge who conducted the jury-waiver colloquy -- the judge who does get reversed -- is Judge Murguia.
Who's now on the Ninth Circuit.
Personally, I think the defendant knew full well what she was getting into. She (and her lawyer) wanted a bench trial, and after a brief colloquy with the trial court, she expressly waived her right to a jury trial. So if nothing was at issue other than the ability of a person -- albeit one with an indisputably low i.q. -- to waive her right to a jury trial, I think the right result here would be to uphold the waiver.
But there's another thing at stake. An actual rule. Federal Rule of Criminal Procedure 23. Which expressly states that "If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves."
There's no doubt that the waiver here wasn't in writing. So the first part isn't satisfied. For a textualist, that should be the end of the story. Period.
But precedent hasn't entirely been written by textualists. Which -- notwithstanding the clear dictates of the rule -- permits oral waivers as long as there's a detailed colloquy with the trial court in which the defendant is told that (1) the jury's twelve people, (2) the defendant gets to help select the jury, (3) the verdict must be unanimous, and (4) at a bench trial, only the judge decides guilt. The district court here only disclosed two of those four facts. That, plus the fact that the defendant is learning disabled, results in reversal.
I also agree with Judge Reinhardt on the sufficiency of the evidence issue. There's enough evidence of guilt. So on remand, a jury gets to either convict or acquit. At its leisure.
It's also interesting to see who gets reversed here. The district court judge who conducted the trial and who found the defendant guilty -- the judge who does not get reversed -- is Judge Snow. The district court judge who conducted the jury-waiver colloquy -- the judge who does get reversed -- is Judge Murguia.
Who's now on the Ninth Circuit.
People v. Rios (Cal. Ct. App. - December 20, 2013)
I don't think I fully understood just how dominant gangs are in prison until I read this opinion.
Did I know they're pretty central? Yes. Did I know that members of rival gangs get separated? Of course. No one -- neither the prisoners nor prison officials -- want mortal enemies sharing a cell.
But I didn't realize the full extent of it.
For example, here, in Monterey County, there are separate portions of the jail -- separate dorms -- for (1) people who do not associate with gangs (i.e., people like you and me); (2) Norteno gang members and associates; (3) Sureno gang members and associates (the Norteno and Sureno gangs are the largest in California, and are enemies); and (4) gang members who are associated with "lesser" gangs (e.g., Bulldogs from Fresno or Hell's Angels).
So you get placed with your "type". Your friends. Your buddies. Or at least not your enemies.
To accomplish this mission, officials get information from the prisoners. They ask 'em what gangs they're associated with. They try to make sure they're not "dropouts" from the gang -- people who left the gang, since that means they'll be attacked if they're housed with members of the gang. Stuff like that.
But this isn't totally easy. Because if the prisoner admits he's part of a gang, that can be used against him at trial, and might lead to a pretty serious gang enhancement. So jailers sometimes have a tough time making sure they segregate the prisoners like they want.
So here's what they do. They have the prisoner fill out an inmate screening questionnaire (ISQ). They then take the inmate into the relevant gang dormitory -- in other words, they put the inmate into the "gang" they believe he belongs. Jail officials then put the prisoner on a second-tier bunk and make him fill out paperwork under guard.
During that time, the existing gang prisoners check out the new arrival. They decide -- under the watchful eye of the jailers -- whether the dude is in good standing with the gang. If he's not, "within seconds," they "roll him up"; i.e., assault him or otherwise turn him away. If he is, they leave him be. Either way, the guards then leave. They now know the scoop. If the guy's been attacked, they know he belongs somewhere else. If not, they know they've chosen wisely, and leave him there.
Ever see red ants and black ants placed together? Maybe as a kid? Or ants that might be from a different colony? Same thing.
Only in prison. With humans. Under the bureaucratic gaze and implementation of state officials.
One more thing. If the prisoner is not attacked, the state gets to use that fact at the defendant's trial. To prove that they guy was, in fact, a gang member, and hence may be subject to a gang enhancement.
I can only imagine what a visitor from another planet would think of all this stuff.
Did I know they're pretty central? Yes. Did I know that members of rival gangs get separated? Of course. No one -- neither the prisoners nor prison officials -- want mortal enemies sharing a cell.
But I didn't realize the full extent of it.
For example, here, in Monterey County, there are separate portions of the jail -- separate dorms -- for (1) people who do not associate with gangs (i.e., people like you and me); (2) Norteno gang members and associates; (3) Sureno gang members and associates (the Norteno and Sureno gangs are the largest in California, and are enemies); and (4) gang members who are associated with "lesser" gangs (e.g., Bulldogs from Fresno or Hell's Angels).
So you get placed with your "type". Your friends. Your buddies. Or at least not your enemies.
To accomplish this mission, officials get information from the prisoners. They ask 'em what gangs they're associated with. They try to make sure they're not "dropouts" from the gang -- people who left the gang, since that means they'll be attacked if they're housed with members of the gang. Stuff like that.
But this isn't totally easy. Because if the prisoner admits he's part of a gang, that can be used against him at trial, and might lead to a pretty serious gang enhancement. So jailers sometimes have a tough time making sure they segregate the prisoners like they want.
So here's what they do. They have the prisoner fill out an inmate screening questionnaire (ISQ). They then take the inmate into the relevant gang dormitory -- in other words, they put the inmate into the "gang" they believe he belongs. Jail officials then put the prisoner on a second-tier bunk and make him fill out paperwork under guard.
During that time, the existing gang prisoners check out the new arrival. They decide -- under the watchful eye of the jailers -- whether the dude is in good standing with the gang. If he's not, "within seconds," they "roll him up"; i.e., assault him or otherwise turn him away. If he is, they leave him be. Either way, the guards then leave. They now know the scoop. If the guy's been attacked, they know he belongs somewhere else. If not, they know they've chosen wisely, and leave him there.
Ever see red ants and black ants placed together? Maybe as a kid? Or ants that might be from a different colony? Same thing.
Only in prison. With humans. Under the bureaucratic gaze and implementation of state officials.
One more thing. If the prisoner is not attacked, the state gets to use that fact at the defendant's trial. To prove that they guy was, in fact, a gang member, and hence may be subject to a gang enhancement.
I can only imagine what a visitor from another planet would think of all this stuff.
Thursday, December 19, 2013
People v. Williams (Cal. Supreme Ct. - December 19, 2013)
Merry Christmas, Robert Williams. We're going to kill you. Notwithstanding your 17-year old daughter's plea at your sentencing at we spare your life.
Not that you should be particularly surprised, Mr. Williams. One of the dangers I learned from reading this opinion is that when you knock off banks, although the police might not know who you are, others in your neighborhood might. Which in turn occasionally leads to entrepreneurs like Mr. Williams coming up to you and saying: "I know you niggers out there getting licks and I want my share of the money." "Licks," I now know, meaning "robberies."
Which in turn leads Gary and Scott to hit a credit union. In part to get money for themselves and in part to get money to pay Mr. Williams. Apparently it's not just organized crime that effectively encourages crime.
Scott, unfortunately, was captured by the police during a high-speed chase after the robbery. Whereas Gary fled in a different car and escaped.
Ironically, Scott was the lucky one.
Mr. Williams and two of his confederates subsequently show up at Gary's house. After returning from dinner, Gary's there with his girlfriend, and Gary's father -- Roscoe -- temporarily leaves for the store. Williams and his buddies display guns. They're wearing gloves but no masks.
Uh-oh. When you're wearing gloves but no masks, that means you don't want to leave any evidence. But you're not worried about witnesses. Which is definitely bad news for the witnesses.
Defendants grab up all the available jewelry and money. They tie up the girlfriend and threaten to rape and kill her if the occupants don't tell them the location of additional money they suspect is in the house. Gary's father returns to the house, and defendant tells his confederate to "snatch his ass in the house," which the confederate does. Gary reveals the location of additional money in a cologne bag in the bathroom, but Mr. Williams is unsatisfied, saying: "“That ain’t all the money . . . . Gary just hit two banks back to back.”
It's not a good sign when the person robbing you knows the details of your robberies.
Williams sexually assaults the girlfriend in a bathroom. He then tells his confederate -- chillingly -- to "Do his old man in front of him." Referring to Gary's father.
I shan't describe what transpires next. Suffice it to say it involves a brown trash bag placed over a head and various knives sliced across throats.
By a miraculous series of events, the girlfriend survives. Having jumped naked from the waist down out a window, already covered in blood (with additional amounts gurgling out her throat).
Ugly. That the jury votes for the death penalty is not a surprise.
Riverside (Moreno Valley). 1995. The scene of some pretty dark stuff.
Not that you should be particularly surprised, Mr. Williams. One of the dangers I learned from reading this opinion is that when you knock off banks, although the police might not know who you are, others in your neighborhood might. Which in turn occasionally leads to entrepreneurs like Mr. Williams coming up to you and saying: "I know you niggers out there getting licks and I want my share of the money." "Licks," I now know, meaning "robberies."
Which in turn leads Gary and Scott to hit a credit union. In part to get money for themselves and in part to get money to pay Mr. Williams. Apparently it's not just organized crime that effectively encourages crime.
Scott, unfortunately, was captured by the police during a high-speed chase after the robbery. Whereas Gary fled in a different car and escaped.
Ironically, Scott was the lucky one.
Mr. Williams and two of his confederates subsequently show up at Gary's house. After returning from dinner, Gary's there with his girlfriend, and Gary's father -- Roscoe -- temporarily leaves for the store. Williams and his buddies display guns. They're wearing gloves but no masks.
Uh-oh. When you're wearing gloves but no masks, that means you don't want to leave any evidence. But you're not worried about witnesses. Which is definitely bad news for the witnesses.
Defendants grab up all the available jewelry and money. They tie up the girlfriend and threaten to rape and kill her if the occupants don't tell them the location of additional money they suspect is in the house. Gary's father returns to the house, and defendant tells his confederate to "snatch his ass in the house," which the confederate does. Gary reveals the location of additional money in a cologne bag in the bathroom, but Mr. Williams is unsatisfied, saying: "“That ain’t all the money . . . . Gary just hit two banks back to back.”
It's not a good sign when the person robbing you knows the details of your robberies.
Williams sexually assaults the girlfriend in a bathroom. He then tells his confederate -- chillingly -- to "Do his old man in front of him." Referring to Gary's father.
I shan't describe what transpires next. Suffice it to say it involves a brown trash bag placed over a head and various knives sliced across throats.
By a miraculous series of events, the girlfriend survives. Having jumped naked from the waist down out a window, already covered in blood (with additional amounts gurgling out her throat).
Ugly. That the jury votes for the death penalty is not a surprise.
Riverside (Moreno Valley). 1995. The scene of some pretty dark stuff.
U.S. v. Anderson (9th Cir. - Dec. 19, 2013)
Roosevelt Anderson sells 350 copies of fake Adobe software and makes around $70,000 as a result. The federal court sentences him to two years in prison.
I presume I need not mention what you have to do to be sentenced to two years of prison in state court. Suffice it to say that it's a lot -- lot -- more severe than lamely selling some counterfeit software.
I presume I need not mention what you have to do to be sentenced to two years of prison in state court. Suffice it to say that it's a lot -- lot -- more severe than lamely selling some counterfeit software.
Wednesday, December 18, 2013
Los Angeles USD v. Garcia (Cal. Supreme Ct. - Dec. 12, 2013)
Despite my general approval of certifying state law questions, as I said a while back, I'd have elected to decline to answer this question certified by the Ninth Circuit.
But one needs no reminder to recall that my vote counts for absolutely nothing. The California Supreme Court decides to answer the question. Doing so in a unanimous opinion.
The certification process took approximately two years from the date the question was certified to the date it was answered.
Imagine how long it might take if the question was a hard one.
But one needs no reminder to recall that my vote counts for absolutely nothing. The California Supreme Court decides to answer the question. Doing so in a unanimous opinion.
The certification process took approximately two years from the date the question was certified to the date it was answered.
Imagine how long it might take if the question was a hard one.
Tuesday, December 17, 2013
Long Angeles DCFS v. Superior Court (Cal. Ct. App. - Dec. 17, 2013)
Read the first two sentences of this opinion and tell me if you can guess which way the Court of Appeal is going to come out:
"The Department of Children and Family Services (Department) seeks a writ of mandate to reverse respondent court's order dismissing a petition filed under [Cite]. Respondent court dismissed the petition, finding that a two-year-old male, S.G., was not at substantial risk of sexual abuse by S.G., Sr. (father), even though father was convicted of sexually assaulting young boys on two separate occasions, was civilly committed as a sexually violent predator (SVP) for almost 13 years after his 7-year prison term, and discontinued any sex offender treatment after his release in 2009."
Yeah. You guessed it. Father isn't going to win this one.
Which means he doesn't get to live with his child.
P.S. - There are a ton of sex offender/SVP/dependency cases in the Court of Appeal. But it's memorable -- because it's rare -- that you see the words "Muslim" and "sex offender" in the same opinion. Here, one of the reasons the father got out of prison (after serving his time and then another dozen additional years for his "civil" commitment) was because he adhered to the Muslim faith while in prison. And one of the reasons the Court of Appeal expressly mentioned as a basis for taking his son away from him was because the father no longer practiced the Muslim faith. Pretty unusual stuff.
"The Department of Children and Family Services (Department) seeks a writ of mandate to reverse respondent court's order dismissing a petition filed under [Cite]. Respondent court dismissed the petition, finding that a two-year-old male, S.G., was not at substantial risk of sexual abuse by S.G., Sr. (father), even though father was convicted of sexually assaulting young boys on two separate occasions, was civilly committed as a sexually violent predator (SVP) for almost 13 years after his 7-year prison term, and discontinued any sex offender treatment after his release in 2009."
Yeah. You guessed it. Father isn't going to win this one.
Which means he doesn't get to live with his child.
P.S. - There are a ton of sex offender/SVP/dependency cases in the Court of Appeal. But it's memorable -- because it's rare -- that you see the words "Muslim" and "sex offender" in the same opinion. Here, one of the reasons the father got out of prison (after serving his time and then another dozen additional years for his "civil" commitment) was because he adhered to the Muslim faith while in prison. And one of the reasons the Court of Appeal expressly mentioned as a basis for taking his son away from him was because the father no longer practiced the Muslim faith. Pretty unusual stuff.
People v. Nguyen (Cal. Ct. App. - Dec. 17, 2013)
Perhaps you zoned out during your first-year criminal law class. No matter. You went into civil law anyway. Or you dealt with more substantive offenses. No loss on your end.
The Court of Appeal, unfortunately, does not have an equivalent luxury. They have to go into excruciating detail about the subtle distinction between "larceny by trick" and "theft by false pretenses". A distinction that may be material in terms of punishment and instruction, but that is otherwise a remnant of history that really doesn't matter in the slightest. Law professors pouring over the development of common law crimes in the seventeen century may be fascinated. Everybody else just has to deal.
For what it's worth, here's the answer.
The Court of Appeal, unfortunately, does not have an equivalent luxury. They have to go into excruciating detail about the subtle distinction between "larceny by trick" and "theft by false pretenses". A distinction that may be material in terms of punishment and instruction, but that is otherwise a remnant of history that really doesn't matter in the slightest. Law professors pouring over the development of common law crimes in the seventeen century may be fascinated. Everybody else just has to deal.
For what it's worth, here's the answer.
Monday, December 16, 2013
Palagin v. Paniagua Construction, Inc. (Cal. Ct. App. - Dec. 16, 2013)
Cases are hard when the statutory language conflicts with legislative history. Or the text conflicts with the purposes of the statute. Or the legislative history conflicts with public policy. There's lots of stuff that goes into statutory interpretation, and sometimes sorting out what's dispositive isn't easy.
But I don't think I've ever seen a case in which the right result was as clear as it is here. The statutory text is totally unambiguous. It says that "As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award.” There's no doubt that you've got to file a bond first, and that it's a precondition to filing the appeal.
The Legislative history is similarly transparent. Under a prior version of the statute, which was unclear about when a bond needed to be posted, the Court of Appeal held that the trial court had discretion to extend the deadline for filing a bond. In response, the Legislature expressly changed the statute -- stating that the Court of Appeal's decision was "contrary to the purposes" of the statute -- with the express goal of overruling that decision and squarely requiring a bond in all circumstances prior to the filing of an appeal.
Public policy is similarly served by such a rule. As the Legislature noted when it amended the statute, were an employer allowed to delay filing a bond after it files an appeal, that might result in the employer using that time to wind down its business so there's no money left to pay the employee. Which was (1) exactly what had transpired after the Court of Appeal's ruling, and (2) was why the Legislature amended the statute: to stop that potential abuse.
In short, the right result is crystal clear.
Notwithstanding all of the above, the trial court thought it was totally okay to allow an appeal to go forward as long as it eventually posted a bond.
Fortunately, the Court of Appeal saw things the right way.
It's so easy to write an opinion when things are this easy.
Lee v. Intelius, Inc. (9th Cir. - Dec. 16, 2013)
It's amazing to me that an attorney -- or anyone else -- can argue with a straight face that the consumers in this class action case actually knew what they were buying. As opposed to what I'm infinitely confident is in fact the case: A clever strategy designed to confuse consumers into accidentally buying something and yet making enough easily overlooked disclosures so that the contract "appears" legal and will thus be enforced.
The Ninth Circuit and the district court take the right approach. This is just a decision on whether the consumers are compelled to arbitrate. But I feel pretty good about how this case is ending up on the merits as well.
The Ninth Circuit and the district court take the right approach. This is just a decision on whether the consumers are compelled to arbitrate. But I feel pretty good about how this case is ending up on the merits as well.
Friday, December 13, 2013
Rollins v. MERS (9th Cir. - Dec. 12, 2013)
MDL cases are often a mess. The whole MERS (Mortgage Electronic Registration System) stuff is also a mess. So it's perhaps not surprising that when the two come together, it's a total mess.
That's especially the case when, as here, the MDL court splits up causes of action, changes its mind, makes confusing (and/or arbitrary) distinctions, and the like. Ugh.
For these reasons, I can see why the panel here is somewhat uncertain as to whether it has appellate jurisdiction, and hence remands for more details.
But, to be honest, it's not actually confusing in the slightest.
There was absolutely no way the MDL court was trying to make a Rule 54(b) finding -- and hence permit appellate review -- when it dismissed the causes of action at issue here. That would require it to expressly state that there was no just reason for delaying appellate review. That's a basic requirement of Rule 54(b). Even (smart) first-year law students know it. The fact that the MDL court didn't even try indicates that it wasn't trying to follow Rule 54(b) in the slightest.
So the Ninth Circuit shouldn't be "confused" about whether the MDL court "intended" to invoke Rule 54(b). It didn't.
Now, what the Ninth Circuit may really be saying is that it thinks that there's no just reason for delay, and that the not-entirely-on-top-of-it MDL court should have realized that it could (and needed to) invoke Rule 54(b) in order to permit appellate review of this otherwise interlocutory dismissal. Hence the Ninth Circuit's going to effectively remind the MDL court of that fact -- and give it an opportunity (once again) to invoke Rule 54(b) -- in the guise of seeking "clarification".
If that's what the Ninth Circuit's doing, well, shucks, I totally understand that.
Though that's not what the Ninth Circuit says it's doing. Not surprisingly. Because that's not the way the system's supposed to work.
So I don't think this case is confusing at all. Seems pretty clear to me. Both on the surface as well as under it.
That's especially the case when, as here, the MDL court splits up causes of action, changes its mind, makes confusing (and/or arbitrary) distinctions, and the like. Ugh.
For these reasons, I can see why the panel here is somewhat uncertain as to whether it has appellate jurisdiction, and hence remands for more details.
But, to be honest, it's not actually confusing in the slightest.
There was absolutely no way the MDL court was trying to make a Rule 54(b) finding -- and hence permit appellate review -- when it dismissed the causes of action at issue here. That would require it to expressly state that there was no just reason for delaying appellate review. That's a basic requirement of Rule 54(b). Even (smart) first-year law students know it. The fact that the MDL court didn't even try indicates that it wasn't trying to follow Rule 54(b) in the slightest.
So the Ninth Circuit shouldn't be "confused" about whether the MDL court "intended" to invoke Rule 54(b). It didn't.
Now, what the Ninth Circuit may really be saying is that it thinks that there's no just reason for delay, and that the not-entirely-on-top-of-it MDL court should have realized that it could (and needed to) invoke Rule 54(b) in order to permit appellate review of this otherwise interlocutory dismissal. Hence the Ninth Circuit's going to effectively remind the MDL court of that fact -- and give it an opportunity (once again) to invoke Rule 54(b) -- in the guise of seeking "clarification".
If that's what the Ninth Circuit's doing, well, shucks, I totally understand that.
Though that's not what the Ninth Circuit says it's doing. Not surprisingly. Because that's not the way the system's supposed to work.
So I don't think this case is confusing at all. Seems pretty clear to me. Both on the surface as well as under it.
People v. Freidt (Cal. Ct. App. - Dec. 12, 2013)
Yeah. I agree with the Court of Appeal. The process of infinitely "revoking" probation for people who are making agreed-upon payments of their restitution order ain't right. Regardless of how routine this apparently is in some courtrooms.
Thursday, December 12, 2013
People v. Contreras (Cal. Supreme Ct. - Dec. 12, 2013)
Maybe the jury would have sentenced you to death anyway. Despite your relative lack of criminal history. You shot a store clerk, after all.
But here's the thing I think that solidified the needle: When, after shooting the clerk once, you approached him as he was prostrate the ground and said: "“I told you I was going to kill you.” And then kicked him and shot him a second time. In the back. With a shotgun. With a smile on your face.
Conviction and death sentence unanimously affirmed.
But here's the thing I think that solidified the needle: When, after shooting the clerk once, you approached him as he was prostrate the ground and said: "“I told you I was going to kill you.” And then kicked him and shot him a second time. In the back. With a shotgun. With a smile on your face.
Conviction and death sentence unanimously affirmed.
Dzakula v. McHugh (9th Cir. - Dec. 11, 2013)
I got so excited when I read this opinion by Judge Graber. It's the latest installment of a two-part series about what you do when a person who files for bankruptcy wrongfully fails to disclose on their bankruptcy schedules a pending lawsuit (which is an asset of the estate). Do you dismiss the lawsuit on judicial estoppel grounds? Or do you let it go forward?
What I loved about this dispute was that, earlier this year, I had written an extremely long post about this exact issue. Prompted by the issuance of the Ninth Circuit's first opinion on this issue (back in July). Among other things, my post anticipated the present holding, and argued that distinguishing the earlier case (in an appropriate factual setting) would be a good idea. Which is exactly what Judge Graber does here.
Or so I thought.
When I went back to read (and link to) my earlier post, I discovered what has become all-too-common in my busy-but-way-fun career. Had I written nearly 1000 words or so on the topic? Yes. Did that make it overly long? Certainly. Yet I was still not finished. Tired. But still not finished. So I left the post in "draft" form. To be finished and posted another day.
A day that never came.
So I was a tiny bit disappointed in that. Because I had spent so much time on the thing, and thought that I had some tolerably decent points. Yet it was all for naught, since I never actually finished the thing.
Though, to be honest, I'm not nearly as bummed as one might initially think. For one thing, the most recent opinion did the right thing, so as far as "advancing the law" goes, no blood, no foul. Plus, were I to be totally honest, the most fun part for me about writing these things is figuring the stuff out for myself. Lots of this stuff is incredibly complicated. It's often a challenge to figure out what the right rule is. Especially since (as faithful readers well understand) the fact that a court has decided X in no way conclusively determines -- to me, at least -- that X is right and Y is not. The interesting part is thinking about whether X or Y is right, not (to me, anyway) necessarily trying to convince others. The law's a puzzle. Trying to figure out the puzzle is the part that's the most fun. Taking a picture of the finished puzzle and showing it to others is a bonus, to be sure. But when time and other constraints don't allow that to happen, so be it.
Still, I'd by lying if I said that a part of me wished I had completed the thing. Because the underlying debate (in the first case) between Judge Graber -- who wrote the majority opinion -- and Judge Bybee (who wrote the dissent) was, and remains, awesome. Both sides made (and make) great points. It's the battle of two very bright people mutually articulating eminently reasonable arguments. Yet coming out opposite ways.
Ironically enough, in the present opinion, it's Judge Graber -- the author of the current opinion -- who cuts back on the scope of Judge Graber's earlier (split) opinion. Not in a way that's results-oriented or that makes no sense. But rather in a way that's both principled as well as designed to achieve some of the same objectives discussed in Judge Bybee's earlier dissent.
Which I love. Especially since I found several of those points pretty powerful. Even at the time
Seeing how law develops is sometimes like watching sausage being made.
Other times, it's a beautiful thing.
Like here.
What I loved about this dispute was that, earlier this year, I had written an extremely long post about this exact issue. Prompted by the issuance of the Ninth Circuit's first opinion on this issue (back in July). Among other things, my post anticipated the present holding, and argued that distinguishing the earlier case (in an appropriate factual setting) would be a good idea. Which is exactly what Judge Graber does here.
Or so I thought.
When I went back to read (and link to) my earlier post, I discovered what has become all-too-common in my busy-but-way-fun career. Had I written nearly 1000 words or so on the topic? Yes. Did that make it overly long? Certainly. Yet I was still not finished. Tired. But still not finished. So I left the post in "draft" form. To be finished and posted another day.
A day that never came.
So I was a tiny bit disappointed in that. Because I had spent so much time on the thing, and thought that I had some tolerably decent points. Yet it was all for naught, since I never actually finished the thing.
Though, to be honest, I'm not nearly as bummed as one might initially think. For one thing, the most recent opinion did the right thing, so as far as "advancing the law" goes, no blood, no foul. Plus, were I to be totally honest, the most fun part for me about writing these things is figuring the stuff out for myself. Lots of this stuff is incredibly complicated. It's often a challenge to figure out what the right rule is. Especially since (as faithful readers well understand) the fact that a court has decided X in no way conclusively determines -- to me, at least -- that X is right and Y is not. The interesting part is thinking about whether X or Y is right, not (to me, anyway) necessarily trying to convince others. The law's a puzzle. Trying to figure out the puzzle is the part that's the most fun. Taking a picture of the finished puzzle and showing it to others is a bonus, to be sure. But when time and other constraints don't allow that to happen, so be it.
Still, I'd by lying if I said that a part of me wished I had completed the thing. Because the underlying debate (in the first case) between Judge Graber -- who wrote the majority opinion -- and Judge Bybee (who wrote the dissent) was, and remains, awesome. Both sides made (and make) great points. It's the battle of two very bright people mutually articulating eminently reasonable arguments. Yet coming out opposite ways.
Ironically enough, in the present opinion, it's Judge Graber -- the author of the current opinion -- who cuts back on the scope of Judge Graber's earlier (split) opinion. Not in a way that's results-oriented or that makes no sense. But rather in a way that's both principled as well as designed to achieve some of the same objectives discussed in Judge Bybee's earlier dissent.
Which I love. Especially since I found several of those points pretty powerful. Even at the time
Seeing how law develops is sometimes like watching sausage being made.
Other times, it's a beautiful thing.
Like here.
Wednesday, December 11, 2013
Hunter v. CBS Broadcasting (Cal. Ct. App. - Dec. 11, 2013)
I'm glad that the Court of Appeal decided to publish this opinion.
Because it's often good to get erroneous holdings out in the open. Including this one.
I understand where the Court of Appeal is coming from. But I think the decision is nonetheless clearly wrong. Both doctrinally and as a matter of policy.
It's a straightforward issue: Does the anti-SLAPP statute apply when CBS allegedly discriminates against an old, not-very-attractive white guy by refusing to hire him as an on-air weather news anchor because it instead wanted young, quite-attractive women?
Let me just say at the outset that I find it immensely plausible that a news station would, in fact, refuse to hire old, fat white guys in favor of young, hot women for this particular job. I'm, indeed, exceptionally confident that this happens. Pretext notwithstanding.
But the issue is whether such alleged discrimination is an act in furtherance of the new station's right to free speech. The Court of Appeal thinks it is. Hence the old guy's got to prove his discrimination case at the outset, and is liable for attorney's fees if he fails.
I think that's clearly wrong.
Just because you're running a news station doesn't mean that everything you do -- including discriminating (allegedly) against various protected groups -- entails conduct "in furtherance" of your right to free speech. The present case is a perfect example. There's no reason why you need a hot young woman in order to get your message across about whether it's going to rain tomorrow. The fact that you're engaged in corporate speech doesn't mean that everything you do is somehow immunized and protected by either the Constitution or the anti-SLAPP statute. The usual rules instead apply.
Were I on the California Supreme Court, I'd take this one up. It's pure error correction, to be sure. But it's sufficiently wrong -- and sufficiently pernicious -- that it's worth correcting the Court of Appeal.
It's a forthright, and sensibly motivated, opinion. But it's nonetheless still wrong.
Because it's often good to get erroneous holdings out in the open. Including this one.
I understand where the Court of Appeal is coming from. But I think the decision is nonetheless clearly wrong. Both doctrinally and as a matter of policy.
It's a straightforward issue: Does the anti-SLAPP statute apply when CBS allegedly discriminates against an old, not-very-attractive white guy by refusing to hire him as an on-air weather news anchor because it instead wanted young, quite-attractive women?
Let me just say at the outset that I find it immensely plausible that a news station would, in fact, refuse to hire old, fat white guys in favor of young, hot women for this particular job. I'm, indeed, exceptionally confident that this happens. Pretext notwithstanding.
But the issue is whether such alleged discrimination is an act in furtherance of the new station's right to free speech. The Court of Appeal thinks it is. Hence the old guy's got to prove his discrimination case at the outset, and is liable for attorney's fees if he fails.
I think that's clearly wrong.
Just because you're running a news station doesn't mean that everything you do -- including discriminating (allegedly) against various protected groups -- entails conduct "in furtherance" of your right to free speech. The present case is a perfect example. There's no reason why you need a hot young woman in order to get your message across about whether it's going to rain tomorrow. The fact that you're engaged in corporate speech doesn't mean that everything you do is somehow immunized and protected by either the Constitution or the anti-SLAPP statute. The usual rules instead apply.
Were I on the California Supreme Court, I'd take this one up. It's pure error correction, to be sure. But it's sufficiently wrong -- and sufficiently pernicious -- that it's worth correcting the Court of Appeal.
It's a forthright, and sensibly motivated, opinion. But it's nonetheless still wrong.
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