People v. Queen (Cal. Ct. App. - July 25, 2006)

Want another reason why participation in the criminal justice system -- in any form -- sometimes totally sucks? Here's one, which derives from the opinion in this case:

"[D]efendant Allen D. Queen was found guilty of attempted murder of a public official . . . . In June 2003, defendant was in custody and on trial for felony charges of making criminal threats. When all but one of the jury’s verdicts were read, defendant attacked the prosecutor, Kenneth Puckett, in the courtroom with a shank, which he had constructed out of a plastic coat hanger. Defendant punched and stabbed Puckett in the chest, neck and head before he was subdued. In a letter to a reporter, defendant admitted he carried the shank in order to kill Puckett. During an interview with a police officer regarding the incident, defendant said to tell Puckett, 'Maybe next time.' At his trial on the matter, defendant testified he started making the shank more than a week before the attack and that he had brought it to court every day. Defendant said he made the weapon with the intent to stab one of the investigators who had worked on the case, but she was not present when the verdicts were read. Several weeks later, defendant again was found to be in possession of a shank, this one constructed of steel, which he held while resisting the efforts of six officers to remove him from his jail cell. Two officers were cut during the incident, and defendant admitted he tried to cut every one of the officers. Defendant was taken to a medical unit where he was placed in five-point restraints in an observation cell. Defendant escaped from the restraints and shattered a window with one of the leather belts."

Yikes! This is not -- I repeat, not -- a guy I want out on the streets. EVER.

Nor shall he be, since he was sentenced to an aggregate term of 259 years to life.

Thankfully.

Gabriel P. v. Suedi D. (Cal. Ct. App. - July 25, 2006)

Check out the first two factual paragraphs of this opinion, which describe the beginnings of some really beautiful relationships between intelligent, sophisticated parties and that -- stunningly -- leads to the eventual filing of a paternity action:

"Suedi and Gabriel first met at an entertainment club when Suedi was approximately 15 years old and Gabriel was approximately 20 years old. Gabriel then believed that Suedi was at least 21. [Yeah, right.] Both were unwed. Suedi and Gabriel began to have sexual relations, and at some point Seanna was conceived. During this period, Suedi also had sexual relations with Anthony O., who was then approximately 29 years old and also unwed. Suedi led each man to believe that he was Seanna’s father."

Believe it or not, eveything goes downhill from there.

In Re Andrade (Cal. Ct. App. - July 25, 2006)

Liber Andrade is a passenger in a car that nearly collides with another car. The driver of the other car gets out and screams at Andrade, and Andrade gets out of the car and starts to fight with him. At which point the guy pulls a knife and cuts Andrade in the neck. When the fight ends, the adversaries and bystanders generally dissipate. In the meantime, Andrade walks to his nearby apartment, grabs a shotgun, and returns to the scene of the fight. He aims the shotgun at a couple of guys at the scene, who scream "We're not in it, we're not in it!" But Andrade doesn't believe them, and fires three shots, killing one of the victims and injuring the other.

Turns out that the victims were right. They were just bystanders, one of whom just happened to be dressed similarly to the guy who cut Andrade in the fight. So Andrade blew away a dude who never even touched him. And will spend 15 to life in prison -- and, thereafter, be promptly deported to Mexico -- as a result.

Yet another reason not to shoot a guy with a shotgun.

Kreeger v. Wanland (Cal. Ct. App. - July 25, 2006)

Lawyers like lawsuits. Lawsuits like lawyers. Could there be a more accurate truism? This case is the latest demonstration of how lawyers and lawsuits sometimes get completely and utterly out of control.

The opinion filed today by Justice Hull is related to a previous opinion that he issued earlier this month. I commented on the earlier opinion here, noting that the underlying litigation started "with what would be universally recognized as the worst of all possible worlds -- an automobile accident between two lawyer-affiliated people." The present opinion is actually about Lawsuit #3. Lawsuit #1 was filed in 1999, as a result of an automobile accident between friends/spouses/employees of lawyers. Then Lawsuit #2 was filed in 2002 when the winner of Lawsuit #1 sued the loser (and their lawyers) for malicious prosecution. Lawsuit #2 gets dismissed on an anti-SLAPP motion, at which point Lawsuit #3 gets filed in 2004 by the winner of Lawsuit #2 (and loser of Lawsuit #1) for malicious prosecution against their adversaries (and their counsel) in Lawsuit #2.

To summarize: (1) Piddly automobile accident; (2) Malicious Prosecution lawsuit; (3) Malicious Prosecution lawsuit. Lawyers. Who doesn't love 'em.

Lawsuits #1 and #2 are now over, but Lawsuit #3 persists, as Justice Hull affirms the denial of an anti-SLAPP motion to strike Lawsuit #3. Holding -- if you can follow this one -- that plaintiffs in Lawsuit #3 might well be able to establish that the plaintiffs in Lawsuit #2 lacked probable cause to assert that the parties in Lawsuit #1 lacked probable cause.

I'll be so excited if there's a Lawsuit #4. Doesn't every little fender bender, after all, deserve seven-plus years of expensive, utterly out of control litigation?

Feel the love.

U.S. v. Romm (9th Cir. - July 24, 2006)

I'm a little disturbed about this case. Judge Bea holds that it's a permissible border search for the authorities to turn on your computer and look through it -- without probable cause -- for evidence of a crime.

This may go too far for me. This case is a good example of the resulting problem. When Romm crosses the border, the authorities turn on his computer in order to search for child pornography. After an extensive search, they discover some deleted pictures in his internet cache, and charge him with possession. The defendant contests the legality of the search, the trial court upholds it, and Judge Bea affirms.

I'm fine with routine border searches for drugs, weapons, and the like. That seems reasonable to me. But I'm less keen on searches of your papers (including those in your computer), which I think the Founders (rightly) thought should be more secure. Sure, they can turn on your computer to see if it's a bomb. But going through it to examine its actual contents seems different. And I find it even less reasonable for border authorities to conduct routine intrusive searches, without probable cause, for deleted files -- stuff that you're deliberately trying not to bring into the country.

There are some doctrinal complexities in this particular case that perhaps make it a bad vehicle in which to articulate the proper vision of a permissible border search; in addition, Judge Bea expressly doesn't address one of the legality issues raised by the defendant only in his reply. Still, I'm concerned about the flip manner in which Judge Bea upholds the validity of the search here, particularly the failure to recognize that a search at the border of information content, especially deleted content, is substantially and qualitatively different than the types of border search traditionally conducted and jurisprudentially accepted.

So whenever you leave the country, from now on, remember that the authorities can look at anything on your laptop. Anything. Even if you deleted it. Pretty scary, I think. Not my idea of a presumptively "reasonable" search.

In Re Marriage of Erickson & Simpson (Cal. Ct. App. - July 21, 2006)

I had no idea that it cost this much to get divorced in San Diego. Debra Erickson files for divorce from Dennis Simpson and hires Phillips, Lerner, Lauzon, & Jamra to represent her. They do less than six months of work for her before they're substituted out and then file a motion for fees. Guess how much they ask for?

Over $90,000. That's a heap of change for a partially-completed divorce, huh? Guess their fancy web page (among other things) costs a lot of client money to maintain.

Yet another reason to get along with your spouse.

Escamilla v. California Dept. of Corrections (Cal. Ct. App. - July 19, 2006)

Yes! Yes! Yes! Please spend my taxes this way, California Attorney General's Office! This is precisely why we all work so hard and yet are totally enthused about giving the government its fair share. I couldn't be more proud of the efficient, essential manner in which my appointed representatives litigated this case. Right on!

What happens, you might ask? Well, Carlos Escamilla is an inmate at the Calipatria State Prison. He's just bought $70 worth of stuff at the prison canteen and is in the exercise yard waiting to be returned to his cell when a riot breaks out in the yard. After the riot ends, Escamilla and his stuff are escorted by a correctional officer to an administrative segretation unit, at which point another officer informs Escamilla that he's going to the hole. Escamilla says "Okay, but can you put the stuff I'm wearing -- my Levis jeans, Reebok shoes, Nike sweatshirt, and Seiko watch -- with the stuff I just bought at the canteen." To which the officer responds: "No! That goes to the trash."

So Escamilla spends some time in the hole (in his boxers), and when he's released, he asks for his stuff back. But the prison can't find it. Presumably, it was either stolen or -- consistent with the officer's statement -- thrown in the trash. So he files a plethora of different administrative requests for the stuff, asking for either the return of the stuff that was taken from him or its value, $255. But the prison repeatedly tells him to go to hell. So he's forced to sue; again, asking for either the return of his stuff or its value.

The trial court, after a fair piece of litigation -- and a defense (at taxpayer expense) by the state -- orders the prison to give Escamilla $225. Seems reasonable to me. After all, they took and lost his property. Seems to me they should give it back. Plus, why the state elects to spend what is undoubtedly many, many thousands of dollars in defense- and judiciary-related time and salaries to defend a meritorious $255 lawsuit isn't easily apparent to me. But so be it.

But here's where it gets really good. The Attorney General appeals. Brilliant! And asserts a plethora of meritless arguments therein, primarily (1) Escamilla's alleged failure to exhaust administrative remedies, notwithstanding both contrary precedent and Escamilla's numerous administrative filings, and (2) alleged insufficiency of the evidence to support the $225 award, an argument that's simply absurd given the factual findings and deference to the trial court.

Regardless, let's see what we're spending just on the appeal of this $255 award. We've got the salaries of the various counsel in the Attorney General's office, who are writing briefs, supervising the appeal, and doing the oral argument. We've got the salaries of the three justices on the Court of Appeal, who are compelled to read the briefs, decide the appeal, and who end up writing a 27-page opinion. We've got the salaries of the support staffs at all of the various offices. And we've also got the salaries of the counsel for Escamilla who's appointed to represent him in the appeal. All over a meritorious award of a piddly $255!

Superb. Just what I want to see. That's definitely how I'd spend the money if it were mine. Glad to see such wise decisionmaking by our appointed officials. Simply excellent.

James Humes is the Chief Assistant AG on the brief, Francis Grudner is the Senior Assistant AG, and Heather Bushman (a Loyola Law graduate who forgot to pay her bar dues back in 1999) and Lora Martin (a Thomas Jefferson graduate with the same last name as, but unrelated to, yours truly) are the Deputy AGs.

I don't blame Heather and Lora, who are the grunts and likely don't have the ultimate say over whether to file the appeal. But I definitely blame their bosses. I haven't seen a more frivolous waste of taxpayer money by the AG's office in a while. Really impressive.

U.S. v. Lyons (9th Cir. - July 19, 2006)

This is the second Ninth Circuit opinion in three days involving a criminal defendant named Lyons. The first one was a telemarketer (discussed here). This one is a forger of celebrity signatures. This must be "Publish Opinions About Incarcerating Pests You Don't Like" Week in the Ninth Circuit.

That said, who knew that we were so aggressive in prosecuting people who forge celebrity signatures? The defendant here, O. Stephen Lyons, forged the signatures of, inter alia, Arnold Schwarzenegger, Jerry Garcia, Muhammad Ali, and Carmen Electra. The feds conduct a sting operation and bust him when he fakes the signature of Yul Brynner on a Villa Rides movie poster. (I loved, by the way, that Lyons called the informant to ask him whether Brynner had died before Sharpie pens were invented. Not something you want recounted at your trial for mail fraud, eh?)

So Lyons gets convicted, his conviction is (properly) affirmed by Judge Gould, and Lyons now gets to spend three years in prison. That seems like a lot, huh? For forging, inter alia, a Carmen Electra signature? Seems like it should be equally criminal to want one of those.

Franco-Rosendo v. Gonzales (9th Cir. - July 18, 2006)

Imagine that it's your birthday (as it might well be). You live in Reedly, California (outside of Fresno), and you've got four young children -- whose ages are seven, four, two, and a wee four months -- all of whom are United States citizens. You're from Mexico, and you're trying to avoid being deported. One more thing. The mother of these four young children is seriously ill, and if she's successfully deported to the rural, indiginous area of Mexico where she's from -- which is five hours from the nearest hospital -- things aren't going to go well for either her or her children.

You've been ordered to be deported. You've lost your appeal before the BIA. You've got one last shot, and you've filed an appeal before the Ninth Circuit. What would be your wish -- your fondest dream, your most precious hope?

Well, if you could, you'd wish for a reversal by the Ninth Circuit. But if your genie didn't allow you to demand a particular result, you should wish for the next best thing: That Judge Reinhardt not only be on your panel, but that he is the author of a published majority opinion.

Which happens here. Needless to say, Judge Reinhardt reverses and remands the deportation order.

Mind you, I'm not saying he's wrong. Judge Trott, after all, goes along with him, as does Judge Wardlaw. I'm just saying that when the equities are as they are here, if you're trying to avoid being deported, you've got no better judicial friend than Judge Reinhardt.

Happy birthday, Luis & Eulalia. Even if it isn't.

U.S. v. Lyons (9th Cir. - July 17, 2006)

Telemarketers. Who doesn't hate them? I know I do. With a deep and abiding passion. Perhaps I hate door-to-door solicitations more. But it's a close call. Neither of them are my favorites.

Like many people, I never buy from or give anything in response to any of these solicitations. And my pre-existing sentiment in this regard was only solidified after reading this opinion by Judge McKeown. Sure, you know intellectually that most of these telemarketer charity things have absurdly high expense ratios and/or are complete scams. But actually reading the details burns this reality into your soul. Check out the first half-dozen pages of the opinion and see where the millions of dollars in charitable contributions went, as well as just how deliberate and intentional (in my view) the scam was -- an attempt to do just pitifully enough to try to make it legal and stay out of jail. I really hope these people rot in prison.

Two other tangential points. First, I smiled at the first footnote. Always good to work in a Seinfeld dialogue in the first sentence. Second, conversely, I very much frowned at the last page; in particular, at what the district court judge -- Judge David O. Carter (of the Central District of California) -- said to the defendants and their counsel below. Sure, Judge Carter was mad. And, who knows, perhaps he was angry for good reason, as he had a sense -- and perhaps an accurate one -- that defendants' counsel was deliberately improperly objecting.

Still, you just don't say what Judge Carter did: "I'm warning you. [B]y the time they fish your client out of prison, if he's convicted -- and even if I'm overturned in terms of something I say in front of the jury, it will be years. So don't press me on it counsel." That just ain't right. You don't do (or say) something like that. It's an abuse of power. And a not-so-veiled threat.

So some interesting stuff in here. A nice opinion on a hot and muggy day in Southern California.

People/U.S. v. Estrada (9th Cir. & Cal. Ct. App. - July 14, 1006)

Here's something I haven't seen before. Both the Ninth Circuit and the California Court of appeal only issue one substantive published opinion today. They're both criminal cases. And they're both called "People/U.S. v. Estrada".

The Ninth Circuit case involves a conviction for possession of methamphetamine. The California case involves a conviction for petty theft. Estrada's first name is Mateo in the former and Frank in the latter.

They're both convicted. The convictions of both are affirmed on appeal.

Not a good day to be named Estrada.

FTC v. Cyberspace.com (9th Cir. - July 13, 2006)

Okay, okay. I'm going to stop calling the Ninth Circuit lazy. It issued five published opinions yesterday and four today, compared with one each day for the California Court of Appeal. So my new mantra is that the Ninth Circuit is the hardest working court in show business. Great job.

Plus, this is a darn good opinion by Judge O'Scannlain. Admittedly, I don't think it's that tough of a case. But he writes a fairly short (seven page) opinion that quickly and cogently disposes of appellant's arguments. The opinion is also interesting to read if only to learn what Cyberspace.com did, and also -- thankfully -- how the FTC actually got off its duff and did something about it.

This is another one of those "mail you a check and, when you cash it, you're automatically signed up and billed for some service you don't want, so you better be darn sure to read the fine print" solicitations. If you're at all like me, you get plenty of these in the mail. My own take is that it's sleazy to mail a solicitation in the guise of a check period, if only because we all know that this type of solicitation deliberately deceives the consumer into opening up the envelope in the first place (rather than throwing it away) because she thinks it might contain a real check. But it's even sleazier when, as here, the only substantive reference to the fact that by cashing the check you're signing up for a monthly $19.95 charge is in fine print on the back of the check.

Now, I gotta admit, my instinctive reaction to this case was: "I'd find this mailing deceptive, but I really do think that most of the people who signed the check knew what they were doing. After all, I can't fathom that someone would sign the back of a check and not read what was immediately above their signature, even if it was in somewhat small print." So my gut reaction was that most people knew what they were doing.

But that just shows you that I'm not very bright. (As if that comes as a shock to anyone.) Because I found the following fact both surprising and pretty significant: Of the 225,000 people and businesses who deposited the checks, only one percent actually logged into the internet service that they had (ostensibly) agreed to buy as a result of cashing the check. Leading to an inference that many -- indeed, most -- of the people either had no clue that they were buying anything or that they had to actual desire to purchase anything when they signed and cashed the check.

That's a pretty huge figure. And one that's available only because the underlying service was internet access -- for similarly deceptive check solicitations for "credit protection programs" or a magazines (or the like), we wouldn't be able to obtain such concrete evidence regarding who actually desired the service. It firms up my belief that these check solicitations really are fundamentally deceptive, and that they really do mislead a huge number of people into ordering things that they don't want.

Judge O'Scannlain affirms the trial court's order that Cyberspace.com refund over $17 million to consumers, as well holding one of the principals at Cyberspace.com personally liable for this amount. That's correct as a matter law. And it also makes me happy. Exactly what I want to see happen in situations like this. Let's hear it for justice. Yay!

Bridgeman v. McPherson (Cal. Ct. App. - July 11, 2006)

I'm not sure that you can do this, Justice Sims. It's superficially appealing, and I can understand why you might want to do it. But, upon reflection, I think the move is -- fairly clearly -- doctrinally illegitimate.

Here's the scoop. Sometimes overseas voters, who often get their ballots late, can't mail them back in time for them to be received (as required by California law) by election day. So California passes a law that says that a special absentee voter can fax their ballots back in lieu of mailing them. Fair enough. Unfortunately, because it all comes in one packet (the fax), unlike a ballot stuffed in an envelope, anyone who examines the fax will be able to see both the name of the voter and how they voted. Which means the ballot isn't secret.

Secret ballots are a pretty fundamental component of our democratic electoral system. But given the nature of the fax, California passes another statute, Elections Code 3103.5, that says that in order to return the ballot via telefax, the voter must sign an oath that says "that by returning my voted ballot by facsimile [(fax)] transmission I have waived my right to have my ballot kept secret.”

The thing is, that statute pretty flatly conflicts with the California Constitution, which expressly declares (in Article II, Section 7) that "[v]oting shall be secret." So some voters file a lawsuit.

Notwithstanding this clear conflict between the statute and the California Constitution, Justice Sims upholds the statute. Sure, he admits, the constitution trumps statutes. Justice Sims nevertheless holds that the law is valid because it's designed to enforce another critical constitutional right -- the right to vote -- and when two such constitutional provisions conflict, the Legislature can, as here, adopt a statute that seeks to effectuate the latter.

As I said, upon first reading the opinion, I thought that this doctrinal move had some facial appeal. Even though it conflicted with pretty much everything we're ever taught about constitutional supremacy. The more I thought about it, however, the more I realized that you can't do this. That a statute that conflicts with a provision of the constitution isn't constitutional even if it legitimately and in fact serves to protect another vital constitutional liberty.

I won't go through the complete analysis -- this is a blog, after all, not a law review article -- but let me just give you an example. Say the police are pretty darn sure that there's a serial killer sleeping peacefully in his home. In order to arrest him, rather than get a warrant, they decide to simply bust into his house. And, in order to convict him, maybe they also search his house, again without a warrant. Perhaps go even further. Maybe because they're darn sure that he's guilty, rather than risk letting some hotshot attorney get him off on a technicality, they also deprive him of his right to counsel at trial. Heck, let's go all the way. Rather than risk an adverse result from the right to "due process" and let this serial killer go free, after catching him, the police simply take him out in the backyard and fire a bullet into his brain.

All of this is utterly impermissible under the Constitution, right? We're super darn sure of that. Or at least I am.

But what if the police say: "Yeah, I know that stuff facially conflicts with the Fourth and Fifth and Sixth (and perhaps tons of other) Amendments. But we did all of it to protect other critical liberties. In particular, the critical constitutional rights of all of his future victims to vote, engage in free speech and free exercise, make contracts, breathe, etc." So, they say, what we did was categorically necessary to enforce other constitutional rights. Critical rights; moreover, rights for a number people rather than merely one.

I don't have any doubt whatsoever that we'd resoundingly laugh such an argument out of court. Even if it were true that the conduct of the police in fact had such a result; in other words, that each of these acts were indeed necessary. We wouldn't permit the police even to try to make such a showing in such a setting. And that's true even if they were acting pursuant to a state law that said "If the only way you can stop a future killing is to violate the constitution, go right ahead." We'd strike that puppy down.

The same is true here. You can't uphold a statute that conflicts with the constitution merely because it is designed to effectuate other constitutional rights. (I leave aside for now the difficult question of whether there's a potentially different result when constitutional provision X has an "effectuate" clause that might permit right X to be enforced at the expense of right Y pursuant to the constitutional provisions of X.)

So I think this one is wrong. It's a result that is understandable, and may make some superficial policy sense. But that's nonetheless inconsistent with the purposes and function of a constitution.

That's my take. Now I'm off to the courthouse to argue a far, far less important and theoretical case before the California Court of Appeal this afternoon. One that's interesting in its own right, mind you. But -- for some inexplicable reason -- people generally find the intricacies of civil procedure much less fascinating than constitutional law. Go figure.

California Court of Appeal vs. Ninth Circuit (July 12, 2006)

Yes, I've been somewhat mean to the Ninth Circuit lately. So mean, in fact, that a kind reader ---- indeed, someone from the "other team" -- recently e-mailed to let me know that the big party bash known as the Ninth Circuit Judicial Conference started on Sunday. Which may well explain why that institution has been taking a publication nap lately.

Of course, now I'll just insult the Ninth Circuit for being both lazy and on vacation -- and on the taxpayer dole, at that! (Oh, yeah. I'm sure the conference just had to be in Huntington Beach!)

Just kidding. You federal guys and gals have fun. We miss you!

Bougere v. County of Los Angeles (Cal. Ct. App. - July 11, 2006)

Much closer today. Published opinions issued by California Court of Appeal: 6. Published opinions issued by the Ninth Circuit: 1.

Impressive, Ninth Circuit. Might even get to double digits by the end of the week!

Speaking of effort, I got a late start on blogging (and work) today because I spent the morning arguing a case in the Court of Appeal. At least someone's working during the summer. (Got another one tomorrow, even.) Still, sorry about the late post.

Meanwhile, let's take a quiz. That was brought to my mind by this opinion by Justice Doi Todd.

Let's say you represent a prisoner who got the poop beat out of him while in the L.A. County jail and you want to sue L.A. County for civil rights violations under Section 1983. But there's a split of authority on whether the Sheriff, in doing what he did, was acting as a state actor (and hence is immune from Section 1983 liability). The California Supreme Court -- e.g., state court -- has recently held that the Sheriff is a state actor, and hence immune from suit. But the Ninth Circuit -- e.g., federal court -- has squarely gone the other way, holding that the Sheriff isn't a state actor and hence can be sued.

Remember, you represent the plaintiff. You're thinking about filing a federal question case; in other words, you could presumably be in either state or federal court here in California. Are you going to sue in (A) state court -- whose Supreme Court, remember, recently squarely held that the sole defendant you're planning to sue is immune, or (B) federal court, which has squarely held the contrary.

Hmmm. A toughie, huh? Go ahead. Take your time.

Needless to say, the attorney for plaintiff in this case chooses (A). (Counsel for plaintiff on appeal -- who I assume also represented the plaintiff in the trial court -- is Southwestern University School of Law graduate Barry Zelner.) As a result of this brilliant choice of forum, plaintiff promptly loses on a demurrer. Can you guess the grounds? Yep. Immunity.

Also needless to say, Justice Doi Todd affirms. Remember: There's a controlling California Supreme Court case out there. Think the California Court of Appeal is gonna follow it? Uh, yes.

Lesson for the day: Pay attention in civil procedure. And think -- and open up a law book or two -- before you file.

Jogani v. Jogani (Cal. Ct. App. - July 10, 2006)

Number of published opinions issued by the California Court of Appeal today: 9.

Number of published opinions issued by the Ninth Circuit today: 0.

Ah, those lazy July days. At least if you've got life tenure, I guess.

Anyway, this opinion by Justice Mallano is the best (and most interesting) of the bunch. It's admittedly a long one, topping out at 33 pages. But I still enjoyed reading it. It's about judicial estoppel, and is one of a long list of cases that holds that judicial estoppel doesn't apply because the first court didn't necessary accept or rely on the false statements. (Justice Mallano also published another opinion on the exact same topic -- Gottlieb v. Kest -- earlier today. And that one's 46 pages. So a big judicial estoppel day for Justice Mallano.)

It's an interesting doctrine and an interesting story here. You learn about a guy who, in 1979, had property worth $375 million (and $100 million net equity) in residential apartments in Los Angeles. And who, by the mid-1990s, had lost the $100 million in net equity and now had equity of negative $50 to $70 million. But, in an awesome display of two-way rachet we call leverage, by 2002 owned properties with a value in excess of $1 billion and net equity of $550 million. Quite a chunk of change.

You'll also learn about his brothers, who allegedly helped turn things around and was owed half -- in other words, $225 million -- of that equity. And, perhaps predictably, how brothers thereafter started suing brothers over the resulting largess. And, to make matters more interesting (and to bring judicial estoppel into play), how one of the brothers, who had been sued by many, many people during the downturn in real estate, had "allegedly" (i.e., pretty clearly, in my mind) lied under oath at a gazillion judgment debtor exams about how he wasn't involved in any partnerships and didn't have any assets. And how his brothers thereafter tried to use these statements against him to estop him from claiming to the contrary in his lawsuit against his family.

So a family fight, lots of lies, defrauded creditors, and a ton of money. Should keep it interesting, at least for a Monday. On the merits, Justice Mallano does a good job, and in the end, I agree with him, even though at points during the opinion he somewhat lost me. Still, in a way, that's perhaps the sign of a good opinion: the ability to convince the reader that you're right, even though the reader at various points is pretty darn skeptical.

I especially liked the last half-dozen or so pages, in which Justice Mallano explains why the judgment debtors may (with an emphasis on may) potentially have some relief against the liar. Still, I'd like to see DAs go after a lot more people for perjury in civil cases than they do. Perhaps even here. Some of this stuff is pretty darn egregious.

A nice 33-page diversion on a day in which my in-laws arrive from North Carolina to stay with us for a week. :-)

POST-SCRIPT: The California Court of Appeal cranked out another one at the end of the day to make it an even 10. Double digits versus zero. Even more impressive!

Wanland v. Mastagni, Holdstedt & Chiurazzi (Cal. Ct. App. - July 6, 2006)

Sometimes you gotta know when to quit. And, sometimes, you gotta realize that the nutjob attorney is none other than you.

This case proves the point. It starts with what would be universally recognized as the worst of all possible worlds -- an automobile accident between two lawyer-affiliated people. On the one side is Shannon Mello, who was a clerical employee at the law firm of Mastagni, Holstedt & Chiurazzi (which is now, I believe, Mastagni, Holstedt & Four Other People). On the other side is Georgia Wanland, who's husband is attorney Donald Wanland (with Wanland & Bernstein).

It seems like a fairly tiny accident; nonetheless, the parties saddle up their respective lawyer friends/spouses and sue. Mello hires one of the lawyers at the law firm she works for, Michael Kelly (who's no longer there), to sue Wanland and her husband. But since the folks at Mastagni might be witnesses, she substitutes Christopher Kreeger as her counsel. On the other side, the Wanlands. Things go tolerably for Mello when the matter goes to arbitration, and she's awarded $28,280.69. But a trial de novo is requested, and at trial, the Wanlands win a defense verdict on a 9-3 vote.

Seems pretty mundane, huh? That's the end of it, right? The jury has spoken. C'est la vie.

Not a chance. Don't forget: Attorneys are involved. The Wanlands, led by Donald Wanland, promptly file a malicious prosecution suit against Mastagni, Kelly and Kreeger. To which the defendants -- and I know this will come as a complete and total surprise -- file an anti-SLAPP motion to strike the complaint. Which, not at all surprisingly, they win, as the court finds that there was probable cause to file the lawsuit. (Which, after all, they won at the arbitration, and for which they got three votes at trial.) And, of course, the court awards the defendants their costs and fees.

Now, a rational attorney would say: "Damn. I screwed up. I shouldn't have filed the lawsuit. My bad. Now I'll have to pay." But not Wanland (who, parenthetically, was put on probation by the Bar back in 2002). Nope. Not at all.

First, he promptly files a Notice of Appeal. Then, to make matters worse, he spends three months trying to get a stay of the judgment. A process that prompts a ton of legal work, in part (as the trial court found) due to the Wanlands' "repeated failures to provide proper sureties, and by presenting a forged signature in one instance, and inadequate property descriptions in other cases.” Nice.

Needless to say, the Wanlands lose their appeal of the granting of the anti-SLAPP motion. Which, of course, means they're now liable for more fees; namely, the fees on appeal. So the case goes back down for the trial court to determine the amount of the post-trial fees. Does Wanland learn his lesson, and suck it up, at this point? No way. He promptly heavily litigates the amount of these fees, arguing that he shouldn't be required to pay for the fees that resulted from his lengthy efforts to stay the judgment.

But the trial court disagrees, and awards yet more fees. At which point Wanland yet again files an appeal. Which, in this opinion by Justice Hull, he promptly loses. Generating yet another award of appellate fees.

So let's see. The Wanlands originally had a defense verdict. But then they filed their lawsuit, and as a result, were down $19,518.00 -- not to mention their own time and money -- once the trial court struck the lawsuit and awarded fees. And thanks to their subsequent (brilliant) decisions, the Wanlands are now down an additional (1) $16,940 for litigating the adequacy of the undertakings, (2) $20,312.50 for the appeal and post-appellate motion to recover attorney's fees, and (3) an undetermined additional amount -- but undoubtedly yet another five-figure amount -- for the second appeal (and motion for fees).

Impressive. Needless to say, Donald Wanland represented himself (and his wife) in the appeal. Alongside a junior associate in his firm, Daniel McGee. Who's someone hardly in a position to tell his boss: "Cut it out, you moron. You're being an idiot." Advice that, if accepted, could have avoided a world of hurt.

Let's review the lessons we've learned. (1) Don't be a fool. (2) Get out when you can. (3) Don't represent yourself in a matter in which you're emotionally invested. (4) Don't mess with the SLAPP statute. (5) Don't throw good money after bad. (6) Try, try, try not to be a nutjob.

Good lessons all.

Dark v. Curry County (9th Cir. - July 6, 2006)

Judge O'Scannlain has written some pretty good opinions in his day. Like this one. And this one. And this one. And others. Mind you, he's written some pretty crappy opinions as well.

But this one falls into the former category. It is a analytical, well-reasoned, temperate, and persuasive opinion. Judge O'Scannlain decides that even though plaintiff's ADA claim (the plaintiff was allegedly terminated because he had epileptic seizures -- and, indeed, I think it's pretty clear he was) wasn't entirely cognizable on all fronts, it was nonetheless improper to enter summary judgment in favor of the defendant, since it was possible that a jury would find that at least some types of reasonable accommodation were possible.

This opinion really is "fair and balanced". I liked it.

Good job, Diarmuid.

Hoffman v. Arave (9th Cir. - July 5, 2006)

Oh, Judge Pregerson's law clerks (and Judge Pregerson). For shame. For shame.

Here's the first sentence of footnote 2: "At trial, Wages was one of the principle witnesses against Hoffman." Principle?! Oh my. Now, I'm terrible at spelling and grammar. But even I know that one's wrong. Principal.

Let's do a little more proofreading before we publish, shall we? What do you think the opinion is: a blog? :-)

U.S. v. Clark (9th Cir. - July 5, 2006)

Check out Judge Kozinski's concurrence in this one. The sole point of which -- over many pages -- is to insult counsel for the United States (Robert L. Ellman, from the Department of Justice), and to contend that he tried to mislead the court both in the briefs and at oral argument.

As my father used to say, "Don't p*** on me and tell me it's raining." That's basically what Judge Kozinski says over several pages.

Admittedly, Judge Kozinski is slightly more articulate than my father's saying. And uses bigger words, too. Like "perspicacious".

Still, the message is the same. Ditto for the attitude. Check it out.

In Re Janee W. (Cal. Ct. App. - June 30, 2006)

If you're going to invoke your right to counsel (or to remain silent), why do it the traditional, boring way, and simply say "I'm not going to talk until I see a lawyer." I much prefer the way that Janee W. does it here: "I will talk only to my lawyer and Jesus Christ."

Sort of has panache, huh? Plus, it somewhat throws down the gauntlet, no? You're not absolutely refusing to talk, after all. You're just saying: "Look, I'm happy to talk to you. Just produce Jesus Christ. Then I'll talk."

Seems reasonable to me.

Firestone v. Hoffman (Cal. Ct. App. - June 29, 2006)

Lawyers. Who doesn't love 'em?

Let's see what the lawyers do in this case. First, there's Peter Hoffman, a graduate of that august institution known as the Yale Law School. You'll have to read the entirety of the opinion to see what Hoffman does, both in the underlying transaction (he's the defendant) and as his pro per appellate counsel. Suffice it to say that Hoffman hardly comes out smelling like a rose. (Parenthetically, Justice Rothschild mentions in footnote 9 that Hoffman has a law degree from Yale, but says that Hoffman hadn't practiced law "for many years". That's true, since Hoffman has been suspended from the California Bar since 1994, and is not currently eligible to practice law. Notwithstanding this fact, Hoffman's co-counsel on appeal consists of various lawyers from the law firm of Gibson Hoffman & Pancione. Who's the "Hoffman" in GHP? You guessed it. None other than Peter Hoffman himself.) Justice Rothschild expresses a fair amount of displeasure with Hoffman in footnote 8, but doesn't go into it much, in large part because Justice Rothschild states that "Hoffman is not a member of the bar and hence is not subject to the Rules of Professional Conduct." But that's wrong: Hoffman is a member of the Bar, and is subject to the Rules, even though he's not currently entitled to practice law. He's a Member but not a Lawyer (to use the language of Rule 1-100). Maybe change the opinion on that one, Frances.

Then there's the counsel for the other side, led by Jeffrey S. Kravitz (formerly of Lord, Bissell & Brook, and now at Silver & Freedman) and Keith G. Wileman (at Lord Bissell). You'll have to read the final three pages of the opinion for the complete details regarding how Mr. Kravitz -- a three-time "Super Lawyer" in Los Angeles Magazine -- and Mr. Wileman (who is AV-rated and has "never lost a trial") are slammed. But slammed they are. Badly. Justice Rothschild writes three pages about how counsel repeatedly misstated the law as well as made material misrepresentations of fact. Not the kind of stuff you want on your permanent record, guys.

So nobody's coming out clean in this one. And the lawyers aren't looking good at all.

Anthony v. Mazon (Cal. Ct. App. - June 27, 2006)

I don't usually talk about -- or even read -- the many, many unpublished opinions issued by the California Court of Appeal. It's hard enough to read all the published ones front to cover. Not to mention the Ninth Circuit as well.

But I'll depart from that typical practice today. Because a "longtime reader, first time e-mailer" sent me a copy of this opinion by Justice Moore. When the first paragraph of the opinion reads as follows, I'm clearly under a moral (if not legal) duty to reprint (and thereby disseminate) it:

"This case is somewhat akin to deciding a dispute between Darth Vader and the Borg, or if you prefer a classical metaphor, Scylla and Charybdis. There is no justice to be done here. The parties conspired in a despicable scheme to hide assets during marital dissolution and child support proceedings. The defendants retained those assets; the plaintiff sued to get them back. Both now rely on arguments relating to unclean hands, the sanctity of the judicial process, and public policy, all of which are laughable, considering the circumstances."

Classic. I love it. Read the rest of the opinion for the details. But the first paragraph alone is awesome.

Way to go, Justice Moore. You rock.

People v. Mason (Cal. Ct. App. - June 27, 2006)

This opinion by Justice Turner correctly disposes of an otherwise-routine carjacking case. It's one of many, many pedestrian criminal cases. Apart from one of the players, the only interesting thing about the case is the profound fortuity of the fact that a police car was driving down the street (and flagged down by a witness) at the precise time the carjacking was taking place. But for that fact, I have no doubt that not only would the perpetrators have gotten away with the carjacking, but that they might well have also seriously injured -- or even killed -- the victim.

That's the good news, especially for the victim. The bad news -- although it admittedly completely pales in comparison -- is that the opinion is published. The victim, Jackie Long, is an actor, a fact briefly mentioned in the opinion. Jackie has only been in the business around four years, and has played fairly minor roles in a half-dozen B- and C- movies and shorts, mostly straight-to-video or modern blaxploitation flicks. So he's not at all famous -- or even well-publicized -- for those roles. By contrast, now the whole world gets to read what Jackie (understandably) says when he's carjacked by multiple gun-wielding carjackers as he leaves a private party in Hollywood: "Ya’ll can take everything, help, help, help, ya’ll can take everything you want."

I'm sure that Mr. Long would rather be remembered for other lines. And, perhaps, he one day will be.

For what it's worth, I wouldn't have published this one. It's a pretty straightforward and unremarkable case, both factually and legally. And I'm sure that Mr. Long would be happy to see it fade into obscurity.

Quiroz v. Seventh Avenue Center (Cal. Ct. App. - June 27, 2006)

No kidding.

Justice Duffy says the following in the second sentence of this opinion: "While the underlying facts alleged in the lawsuit are heartrending in their human dimension, from a legal standpoint, the case is a procedural train wreck." If anything, that's an understatement. It takes Justice Duffy twenty pages to describe the procedural miasma that transpired in the trial court: a neverending process of mistake, confusion, and error on the part of the plaintiff -- and, sometimes, the trial court -- that ultimately resulted in the dismissal of a lawsuit under the Elder Abuse Act arising out of the death of Gilbert Quiroz. Which, as a result of these procedural errors, Justice Duffy (properly) affirms.

It's important not to mess up the procedural stuff. Really important. Really, really freaking important. If you don't know what you're doing, find someone who does. 'Cause it matters. A lot.

Lesson for the day.

U.S. v. Jernigan (9th Cir. - June 26, 2006)

This is a good opinion, on two different fronts.

First, the majority opinion (written by Judge Thompson) and the dissent (written by Judge Betty Fletcher) differ substantially regarding their confidence in eyewitness testimony. The majority holds that any Brady error would be harmless in light of the eyewitness identification of the defendant by several witnesses. This was essentially the only evidence at all against the defendant -- who was convicted of bank robbery -- but the majority is convinced that the defendant was clearly the perpetrator based upon this testimony. By contrast, Judge Fletcher is much less convinced of the accuracy of such testimony, particularly in light of the absence of any supporting evidence and the fact that someone else -- who looked a lot like the defendant -- had been convicted of nearby bank robberies, raising the distinct possibility of misidentification.

Judge Thompson and Judge Fletcher both do a good job of supporting their positions. It's a very, very good case in which to assess -- in a concrete fashion -- how much one believes in eyewitness testimony.

Second, there's also a more subtle difference in judicial approach. For Judge Fletcher, the possibility of an innocent person being incarcerated is an extremely big deal. So her approach is to say: "Grant a retrial and let the jury hear the evidence about the alternative perpetrator. If they convict, fine. At least we'll know that the jury had all the evidence. By contrast, the risk of having convicted an innocent person here is too great." By contrast, for Judge Thompson, efficiency concerns are paramount. His approach basically says: "Look, no trial is perfect, and I'm pretty convinced the defendant is guilty. No need to spend the time and money on a new trial that I think will come out the same way (or, worse still, if witnesses may have died or become stale, might result in an erroneous acquittal)."

Two very competing approaches. A nice, relatively short, and informative and significant set of opinions. Definitely worth reading.

In Re Baby Boy H. (Cal. Ct. App. - June 26, 2006)

In order to preserve the confidentiality of the parties, in family law cases, the Court of Appeal uniformly uses initials for last names. Which makes sense. Similarly, when referring to the parties, the Court of Appeal often refers to them by their first name, sometimes with a perfunctory footnote that explains that no disrespect is intended by the practice.

Which is all well and good. But something struck my eye in this case that I hadn't ever seen before. When you refer to people in this manner, sometimes the sentence you drafted can have more than one meaning. So, for example, check out this sentence, in the middle of page four of Justice Vogel's opinion:

"Jesus appeared at the November 3 hearing and a lawyer (Eric Wexler) was appointed to represent him."

Jesus appeared at the hearing?! Wow. That's gotta be a shock to the parties, huh? I mean, I've heard about "intervention" in civil lawsuits, but this really takes "intervention" to another level. Plus, since when does Jesus need an appointed lawyer? What's next: A guardian ad litem for God?

Oh, wait. I guess the meaning of the sentence depends a lot on how you pronounce the word. Jee-Zhus. Hey-sus. Now I get it. My bad.

Which, by the way, clarifies the meaning of some of the other sentences in the opinion as well. This sentence, for example: "There followed a debate about whether published notice to the 'identity unknown' father was sufficient notice to Jesus." Sort of an immaculate conception reference in an era of due process, no? Or this one: "[T]he court faulted Jesus for not visiting Baby V. Mr. Wexler explained that Jesus had wanted to visit but the Department would not permit it." A separation of chuch and state thing, no doubt.

Randomly enough, in the midst of a discussion of Jesus and his potential standing standing problems in the case, the trial court had the following insight: "You know, Casper the Friendly Ghost, identity unknown, does not have standing. We don't know who it is. There's no real person. This may be the gentleman; it may not be the gentleman." Pretty neat to compare the existence or non-existence of Casper the Friendly Ghost to a similar problem with Jesus, huh?

I won't belabor the point. There are lots of other unintended meanings as well, but I'll leave you to them. In the future, maybe keep using his "official" name -- Jesus H. -- thoughout the opinion. Though that still leaves us with the possibility that we're talking about, as my father used to say, "Jesus H. Christ".

Forget it. I guess we're stuck.

Ritchie v. United States (9th Cir. - June 26, 2006)

You get some crazy complaints filed in federal court. And, usually, they're utterly frivolous. So, for example, when I hear that a guy filed a lawsuit that says that the CIA drugged his drink, which made him go out and rob a bank, my general reaction is: "Cuckoo Alert." And, usually, I'd be totally and completely right.

That said, read this opinion by Judge Kozinski. Especially the (much-too-easily-overlooked) final sentence in footnote 11. I can't believe that I'm saying this, but, after reading the entire opinion, my sense is that it's quite possible that the plaintiff was indeed drugged by the CIA at a Christmas office party in 1957. Which is pretty shocking.

Mind you, I also agree with Judge Kozinski's decision to affirm the dismissal of the complaint. Even if I was of the view (and I am) that it's very possible that the plaintiff was involuntarily drugged by the CIA, the district court made a factual finding that plaintiff hadn't proven his case, and that finding isn't clearly erroneous. I am not confident at all that the district court got it right, but given the state of the evidence, I think that's a very plausible (and reasonable) finding.

Still, I feel legitimately bad for the plaintiff. And utterly stunned at our government. Don't skim this one. It's a must-read.

People v. Wells (Cal. Supreme Court - June 26, 2006)

It's not surprising that this one is close. The issue is whether an anonymous 911 tip that a particular car is weaving all over the highway is sufficient reasonable suspicion of DUI to permit the police to stop the car, even though the police don't themselves see anything wrong that would justify a stop. We know from the Supreme Court's opinion in Florida v. J.L. that an anonymous tip that a particular person at a bus stop is carrying a gun doesn't constitute reasonable suspicion for a stop. What about here?

It's an issue that has divided the various state and lower federal courts. And now the California Supreme Court weighs in. Holding, in a 4-3 opinion, that the anonymous tip is indeed sufficient to justify the search.

Justice Chin writes the majority opinion, which is joined by Chief Justice George, Justice Corrigan, and -- interestingly -- Justice Croskey (of the Court of Appeal, Second Appellate District), sitting by designation. Justice Werdegar writes the dissent, joined by Justices Kennard and Moreno.

It's not every day that you have the swing vote in the California Supreme Court sitting by designation. So that's something worth noting. Plus, it's also worth mention that, next time you want to get a friend (or an enemy) busted -- or merely harassed -- it'll be sufficient simply to call in an anonymous report that they're weaving all over the road. That's good enough for a stop.

A tough case.

Anderson v. Warner (9th Cir. - June 26, 2006)

We've come a long way since Rodney King, haven't we?

Charles Warner is with the Mendocino County Sheriff's Department (and is the jail commander). Warner is slowly driving his vintage pickup truck to the Redwood Valley Parade when the guy behind him, Thomas Anderson, is momentarily distracted and rear ends Warner's truck. At which point, allegedly, our esteemed law enforcement officer, Warner, promptly gets out of his truck, walks back to Anderson's car, opens the car door, and starts punching Anderson in the face. And to keep bystanders from interfering, Warner and his wife (again, allegedly) essentially tell the crowd: "Don't worry. He's a cop. He's punching this guy for good reason. Disperse and go your merry way." Which they pretty much do.

Anyway, after Warner's done beating the crap out of Anderson, and once the fire department starts to come, Warner allegedly tells Anderson: "I'm a police officer. Don't say anything. I'll fix it. I'll work it out."

Well, Anderson eventually sues Warner for violating his civil rights, and Judge Willie Fletcher (correctly) holds here that summary judgment was improperly entered in favor of Warner, who may well have acted under color of law by using his official position to ensure that the crowd didn't interfere with his assault. Judge Fletcher simultaneously (and also correctly) affirms the grant of summary judgment in favor of Mendacino County and the Sheriff's Office, who aren't properly held responsible for Warner's assault.

I really, really hope that Warner got busted for this. It sounds to me -- from what pretty much every one of the witnesses testified -- that Warner was completely out of control, and utterly at fault. He should have been criminally charged with assault and battery. And certainly fired from his job. I don't want a guy running my prison who starts hitting people in the face simply because they were momentarily distracted and hit a car. I want a guy who's much, much more calm than this. And, P.S., who doesn't -- pretty much ever -- hit innocent people in the face.

Marathon Entertainment v. Blasi (Cal. Ct. App. - June 23, 2006)

There's nothing particularly legally exciting about this case. But it does involve a quasi-celebrity -- Rosa Blasi (the star of the TV series "Strong Medicine," which I admit I had never even heard of before this appeal -- who's being sued by her personal manager. Which is something you don't see every day. So I thought I'd mention it. If only for the Hollywood types out there.

Personally, I don't really understand what personal managers do for their ten (or even, as here, fifteen) percent. Justice Rothschild explains it a little bit. But as far as I can tell, they're simply enablers, and do the stuff that people should do for themselves. Ten percent for that? Seems a bit high.

But what do I know. Anyway, there's some potential overlap between what a personal manager does for ten percent and what a talent agent does for fifteen percent, and since you have to have a license for the latter (but not the former), sometimes you have fights. Like here. Which only gets more complicated when you have difficult severability issues and disputes about whether particular unlicensed conduct by authorizes talent to terminate the manager's contract.

A Hollywood fight. In the end, Rosa ain't out of the woods yet, and the Court of Appeal reverses the grant of summary judgment on her behalf. So the fight goes on.

CTC Real Estate Svcs v. Lepe (Cal. Ct. App. - June 21, 2006)

Steal my identity. PLEASE!

Listen to this one. Someone steals Aurora Lepe's identity and uses it to buy a house in her name. The thief gets a loan (again, in Lepe's name), but (not surprisingly) eventually defaults on the payments. So the bank forecloses.

Pretty typical, right? Except listen to this wrinkle: When the bank sells the house, due to rising property values, the proceeds of the foreclosure are more than -- a lot more than -- the total amount of the loans on the property. So everyone gets paid the full balance of their accounts, including their costs, and there's still over $50,000 remaining.

The trial court gives the excess proceeds to the Los Angeles County surplus fund. Aurora Lepe appeals, and asks Justice Mosk to give the $50,000 to her. And he does! As we used to say in the 70's: "Joker, Joker, JACKPOT!!"

Sure, identity theft is no fun. But lemme tell ya: $50,000-plus goes a long, long way towards easing the pain!

So if anyone wants to steal my identity and use it to buy appreciating property, please don't hesitate to do so. Indeed, send me an e-mail and I'll promptly send you my social security number and anything else you need. Serious inquiries only. :-)

People v. Misa (Cal. Ct. App. - June 21, 2006)

Vince Misa hits Kevin Hoock -- hard -- once with a golf club, striking his head (apparently because Hoock had allegedly stolen some of Misa's property after using methamphetamine with him). After Hoock falls to the ground, Misa softly pokes Hoock with the golf club several times, screaming things like "You don't steal from me or my old lady." And doesn't call 911 because he's worried -- entirely accurately -- that he'll get in trouble if he does. Around four or five hours later, after Misa leaves, Hoock eventually gets taken to the hospital.

That's the crime. For which Misa gets convicted of torture under Section 206 of the Penal Code. And, on that basis, sentenced to life in prison. A sentence which was then doubled under the Three Strikes Law. (So I guess Misa has to spend two lives in prison. Talk about bad karma.)

Justice McIntyre affirms. It's torture, he says. Torture. Not a result you'd necessarily intuit, eh?

U.S. v. Weber (9th Cir. - June 20, 2006)

How much do you want to know about penile plethysmography? This is a family blog, so I won't tell you -- even though I'm dying to -- precisely what the practice entails. Let's just say that if you're a man and we're interested in learning if you are sexually attracted to, say, little boys, we strip you down, put a measuring device on a certain part of your body, show you pictures of various things (including little boys), and then measure whether (and how much) a particular circumferance changes in response to various pictures. Get it? Hopefully I don't need to draw an actual picture. (I could insert a link here, but I ain't gonna do it.)

Anyway, if you're interested, this opinion by Judge Berzon is the definitive work on the subject. The case is about whether a defendant convicted of possession of kiddie porn can be ordered as a condition of supervised release to participate in penile plethysmography. Judge Berzon says: "Maybe". This may seem facile, but she does an outstanding job of both reviewing the practice and of assessing how the various (and very important) interests at stake should be weighed in deciding whether an order to participate in penile plethysmography is permissible. It's really a great, and comprehensive, opinion. And also interesting. At least to me. I never knew that there was such a well-established body of literature on the efficacy of putting little thingies about your thingie. Or how to fake out the thingie. And lots of other neat, sex-related stuff as well. But now I do. And so can you.

P.S. - Judge Noonan concurs to say that the answer should be "No" rather than "Maybe"; in other words, that an order compelling penile plethysmography should never be allowed. Which is plausible. But don't forget that Judge Noonan is super darn Catholic. (Like me, I might add. Except for the super part.) As a result, his attitude towards the practice is, I think, more than a little bit affected by his global attitude towards various related subjects. So it wasn't surprising at all to me that he wouldn't allow a thingie to be strapped to your thingie and shown various pictures to see (and measure) what transpires.

Which -- like Judge Berzon's view -- also seems entirely plausible to me; both positions seem very reasonable. But, sadly, this also leads Judge Noonan to include -- in his very short concurrence -- a line like this one: "The procedure violates a prisoner's moral integrity by requiring him to masterbate." I can see why that would be a big deal to Judge Noonan. But the predicate assumption is simply flatly wrong. Yes, the machine has to be calibrated. Which means, yes, you do have to get the defendant aroused. And, yes, one way of doing so is by tactile stimulation.

But there are other ways as well. The practice doesn't "require him to masterbate." Again, it's a family blog, so I ain't gonna list the alternatives. But let me just suggest that one of them -- at a minimum -- is to think sexy thoughts. Most of us can "calibrate the machine" -- if you know what I mean -- without the need to resort to the topic of the 1991 Divinyls song. At least I can; hopefully, until the day I die.

Anyway, a definite must-read for those interested in the measurement of the nether regions.

Brown v. Lambert (9th Cir. - June 19, 2006)

I complimented this opinion by Judge Kozinski -- effusively, I think -- when it first came out in December of 2005. To give you a taste, here's what I wrote in the first paragraph: "What a great opinion. Really, really impressive. The kind of opinion that I wish I could write, but totally can't. Short, persuasive, concise, to the point, and complete. And even a tiny bit funny. Wow."

You might think that, with such a predicate, the opinion couldn't get any better. I certainly did. But we'd both be wrong.

Someone (one of the conservatives) called for an en banc vote, since Judge Kozinski was reversing the death penalty. And didn't win the vote, but four of the "ayes" -- Judges Tallman, O'Scannlain, Kleinfeld, Callahan, and Bea -- dissent from the denial. And Judge Tallman writes the dissent.

And gets crushed by Judge Kozinski. Judge Kozinski amends his opinion to respond to the dissent. And an awesome opinion gets even more powerful. Read the footnotes in this one. To say that Judge Kozinski wins the resulting debate with Judge Tallman is a total understatement. It's like a boxing match between Mike Tyson and me. Ugly. Totally one-sided. A trainwreck of a crush. Avert ye eyes, lest ye be horrified. Yowza.

The only place where I think Judge Kozinski gets it wrong is in footnote 9. Based upon what Juror Z said, I'm pretty confident that he wasn't more pro-death penalty than your average juror. And virtually certain -- and I'd bet you $1000 on this, Alex -- that Judge Kozinski is simply wrong when he writes that "[D]efense counsel declined to object because he was glad to get rid of Juror Z. . . . Defense counsel must have thanked his lucky stars when the prosecutor bumped Z." Maybe -- and this is something different than what Judge Kozinski had in mind -- the failure to object was a case of sandbagging by the defendant. But I actually doubt it. Instead, I think defense counsel wanted Juror Z on the panel and at no time "thanked his lucky stars" due to a belief that the prosecutor had just bounced a pro-prosecution juror.

But, apart than this minor error (of judgment, not of law), this remains a stellar and uniformly fantastic opinion by Judge Kozinski. And one that only got better as a result of the response to the dissent.

Great job, Judge Kozinski. Simply outstanding.

P.S. - Indeed, I'm so proud of Judge Kozinski right now that I'm not going to reveal the various -- fascinating -- things he said to my pregnant wife last week during a reception in Canada. Way to go, my man.

Hart v. Parks (9th Cir. - June 19, 2006)

This opinion (by Judge O'Scannlain) is interesting if you love lawyers. Or, especially, if you hate them. For two different reasons.

First, I love how the attorney in the underlying transaction was involved therein. The case is about the (well-publicized) theft of Oscar statuettes back in early 2000. As you may recall, someone stole all of them from a truck as they were being shipped to Los Angeles, which prompted the Academy to go ballistic as well as to offer an ever-increasing award. The Academy eventually got the statuettes back, and, in the process, the police made a couple of arrests. One of the arrestees was Anthony Hart, who eventually pled to receiving stolen property, and who was potentially guilty of even more. And, showing chutzpah, he promptly sues the police for false arrest. Which in turn leads Judge O'Scannlain to issue this opinion, which affirms the district court's grant of summary judgment to the LAPD.

What's most interesting about this story -- a fascinating tale itself -- from the perspective of legal ethics is how Daniel Pearson (a sole practitioner in Glendora) fits into the picture. When the Academy offered a reward for the return of the statutes -- a reward that had only been publicized to the employees of the trucking company (the thought was that one of them was the thief) -- Pearson called the trucking company and said that he had a client who knew the location of the statuettes and wanted the $25,000 reward. The police -- no dummies -- figure that Pearson's client was the one who stole them, and is now looking to cash in. Which makes sense; after all, it's not like Oscars are easy to sell in a pawn shop, and even if you could, you're not going to get $25,000 for them. Which perhaps was one of the central points of the reward in the first place: to get the thief to turn over the goods for a healthy reward.

The thing is, Pearson thinks he's cagy in saying that a client has retained him and wants the reward; that way, they won't know who the client (and hence potential thief) is, right? Attorney-client privilege and stuff like that. Well, wholly apart from the privilege issue, that particular plan only works if you keep your client's identity a secret. Which Pearson does. Sort of. Except, if you're trying to keep your client's identity a secret, after you phone to get the reward on his behalf, let me give you a important tip: Don't promptly drive from your office to your "anonymous" client's home. Or, if you do, how about doing a little counter-surveillance, or at least some evasive driving. Because, Mr. Pearson -- and I know this will shock you -- the police are tailing you. See that car that keeps following you? That's the fuzz. Who -- again, shockingly -- figure that's how they'll find out who your client is. So, when you do indeed drive to your client's house; well, let's just say, the jig is utterly and completely up.

Oh, one more thing. Let's say you're Anthony Hart. You work at the trucking company from which the Oscars were stolen. You've got prior arrests and convictions for -- you guessed it -- theft. And the police have gotten tips that you were the thief. Notwithstanding all of this, let's say you want to retain an attorney to get the reward on your behalf without the police discovering your identity. Let's see: Who should you retain? Remember: It's very important that the police not figure out who you are. Pick someone out of the Yellow Pages? Sounds good. Walk into a random attorney's office off the street? Seems reasonable. Hey! I got it! Instead of doing either of those, why not use your brother-in-law! There's the one attorney in the universe who can easily be linked to you and your identity thereby discovered. Yeah, that's the ticket!

Needless to say, Hart chooses this last option. Brilliant. By both attorney and client.

Anyway, they bust Hart, the Academy gets the statuettes back, and everything is fine. Even for Pearson. who (as far as I can tell) never gets punished or disciplined for his role in the transaction. (Judge O'Scannlain's opinion makes Pearson sound a little sleazy -- as well as only marginally competent -- but that's about it.) There's an interesting question here whether you should represent your brother-in-law in attempting to get a reward for the return of stolen goods when there's a fair chance that (1) he was the one who stole them, (2) he might well be arrested for the offense, and/or (3) they can discover his identity as a result of your representation. My take on the issue: I wouldn't have done it. By a fair piece.

Judge O'Scannlain is actually fairly nice to Daniel Pearson. By contrast, you should definitely see what Judge O'Scannlain repeatedly says about Hart's counsel on appeal, the (in)famous Stephen Yagman. Let's just say it's nothing good. At all. I won't isolate any of the particular insults; they're simply too pervasive. You get a keen sense from virtually every page of the opinion that Judge O'Scannlain doesn't like Yagman. And potentially for quite good reason, not merely because their politics are (undeniably) divergent.

Two interesting lawyers here. None of whom come out smelling particularly like a rose.

Independent Energy Producers Ass'n v. McPherson (Cal. Supreme Ct. - June 19, 2006)

I like this. It's a nice intermediate solution to an alleged problem.

The California Supreme Court has, in recent years, increasingly been slammed (by some) for issuing overly long opinions. In response, the Court has, to a fair degree, cut down on length. This case is no exception to the contemporary trend, and the unanimous opinion here is 32 double-spaced pages. Not too long, though not perfunctory either.

But what the Court also does -- in part, perhaps, to make the opinon more readable, or even skippable -- is to start the opinion with a four-page summary of the contentions and arguments at issue in the appeal, as well as the Court's conclusion. So, basically, if you're intrigued, great; read on. If not, you've only done four pages of reading, and you're essentially hip as to what the Court decided and why.

Sort of a Cliffs Notes version of the opinion embedded in the opinion itself. And, since I'm incredibly lazy, I like that. Sure, I read the rest of the opinion as well, even in an only-marginally-interesting case like this. But I'm probably the exception rather than the rule. I bet a lot of people read the "Executive Summary" and move on. Which is fine. Better than reading nothing, eh?

P.S. - The actual case itself is about the validity of a pre-election challenge to a proposition (Proposition 80) that didn't pass anyway. The actual case is moot, but the Court -- rightly, in my mind -- decides to adjudicate the issue in order to assist future (similar) preelection challenges. And -- again, in my mind -- gets the case right on the merits.

So good job all around, as to both style as well as substance.

WFS Financial v. Superior Court (Cal. Ct. App. - June 15, 2006)

I've been reminded today that I'm (allegedly) "a dork." And yet, notwithstanding both that fact and the issuance of five published opinions today by the California Court of Appeal (and two by the Ninth Circuit), I can't find a single thing especially interesting -- or worth talking about -- in any of those seven opinions.

This opinion by Justice Cantil-Sakauye is marginally representative of the lot. A 27-page opinion about whether particular disclosure requirements established by the Rees-Levering Automobile Sales Act, Cal. Civ. Code sects. 2981 et seq., are preempted as applied to loans made by federal savings associations, including a particular subsidiary of Western Financial Bank. Talk about exciting! I was trembling with anticipation as I turned page after page after page until I finally understood why the answer was indeed "Yes." The resulting enlightenment has left me spent. My life is now complete.

Oh, sure. You can read the other opinions issued today as well. Like this one by Judge Kozinski, which, in an even longer opinion than WFS, explains -- to use Judge Kozinski's words -- "why it's important for lawyers representing a bankruptcy debtor to turn square corners," and why for that reason summary judgment was improperly entered for the defendant in this particular adversary proceeding. Really?! Do tell! And spare no detail!

Anyway, a snoozer of a day on the appellate front, I'm sorry to say. At least out here on the Left Coast. Better to surf today rather than read opinions. Which is saying a lot. Because the waves stink today.

People v. Mayo (Cal. Ct. App. - June 14, 2006)

Oh, man. I feel totally, totally bad for Justice Johnson. He writes a very important, persuasive, and really thoughtful concurrence in this case. One that's only four (double-spaced) pages, and really worth reading. It's a touching, and very powerful, tribute to the presumption of innocence in a criminal case. An opinion that really comes from the heart, and one that I found exceptionally compelling.

Then there's the last sentence on page 3. Right after Justice Johnson says: "Both with groups of jurors and in querying individual jurors, the trial judge indeed did 'pound home' the concept the defendant entered the courtroom an innocent man. The court did the same with the concept the jurors were bound to acquit the defendant if they had a reasonable doubt of his guilt after hearing the evidence." All good. And then Justice Johnson immediately follows with: "During his voir dire, the defense counsel reinforced this lesson, one-on-one with at least 20 individual jurors and the prosecutor did so with at least three."

Great. Except for one thing. In that last sentence I quoted, Justice Johnson didn't actually use the word "lesson". He referred to the presumption of innocence instead as a "lesion", rather than as a "lesson". As he actually wrote the opinion, the sentence thus reads: "During his voir dire, the defense counsel reinforced this lesion, one-on-one with at least 20 individual jurors . . . ."

Oops! Sort of changes the whole meaning of the reference, eh?! "Lesson" versus "Lesion". Big difference.

Lessons for the Day: (1) Shepardize (see previous post). (2) Don't rely on your spellchecker.

Fail to learn either lesson at your peril. For undying shame assuredly awaits you.

Integrated Healthcare Holdings v. Fitzgibbons (Cal. Ct. App. - June 14, 2006)

I don't know much. But I do know this: When I'm representing the plaintiff (IIHS), and when the defendant has filed an anti-SLAPP motion, and when the appeal comes to Justice Aronson, I don't want him saying stuff like this about the arguments in my brief (much less do I want him saying it in a published opinion):

Citing Zhao v. Wong (1996) 48 Cal.App.4th 1114, IHHI contends the e-mail did not concern a public issue because it did not relate to “the exercise of democratic self-government.” (Id. at p. 1122.) IHHI’s reliance on Zhao is misplaced, however, because its discussion of the anti-SLAPP statute’s scope has been superseded by the 1997 amendments to section 425.16. (See Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226, 236.) [“the Senate Judiciary Committee expressly amended section 425.16 to mandate a broad interpretation of the statute in reaction to the over-narrow interpretation of Zhao v. Wong”].) Indeed, the California Supreme Court expressly disapproved Zhao on the very point for which IHHI cites it. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116 [“We agree . . . that ‘Zhao is incorrect in its assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government’”].)

Yikes. Argument 101 of 10,000 in favor of shepardizing the cases you cite.

A lesson hard learned by counsel for IIHI, Yolita Nowak Lecellier (a graduate of Western State Law School),
Jeff I. Braun (a graduate of McGeorge), and Deborah S. Tropp (another McGeorge graduate).

U.S. v. Faulkner (9th Cir. - June 13, 2006)

No, not that Faulkner. (Nor that -- much less well-known -- Faulkner either). Donald Faulkner. The man. The myth. The legend. The guy with an open container of beer in his car.

Here's the wacky thing about this opinion. Judge Reinhardt concurs. To express a view in a criminal case that's more conservative than the majority opinion.

Oh yeah. You see that every day. Not.

That fact alone makes this one worth reading. Even if you don't plan on boozing it up when you enter the BLM's Paradise Recreation Center in Three Rivers, California. But, if you do, FYI, at the booth at the entrance to the facility, you'll meet Chief Ranger Ed Ruth. Who'll make you pour out your beer before entering the BLM land. Or -- incredibly nicely, in my view -- he'll hold your booze for you until you leave.

What a guy!

Brierton v. DMV (Cal. Ct. App. - June 13, 2006)

John Briarton. 0-2 in the Court of Appeal. And, presumably, not a big fan of Justice Aaron.

I previously posted about his original drunk driving conviction -- in which he was busted by SDSU cops --here, in which Justice Aaron affirmed his conviction (notwithstanding some tolerable arguments to the contrary). He now appeals the subsequent two-year administrative suspension of his driver's license. Which, in this opinion, Justice Aaron also affirms.

Lesson for the day: Don't repeatedly drink and drive. Or, if you don't, don't repeatedly draw Justice Aaron, I guess!

Maharaj v. Gonzales (9th Cir. - June 9, 2006)

P.S. - It isn't like Judge O'Scannlain doesn't have friends. The same day the last opinion (Circu) was published, the court also issued this one. In which Judge O'Scannlain again gets outvoted, but this time it's 11-4. With his three voting buddies (in disssent) being Judges Kleinfeld, Rawlinson, & Callahan. All of whom were also on the en banc panel in Circu.

Circu v. Ashcroft (9th Cir. - June 9, 2006)

This has got to hurt. As well as, objectively, be embarrassing.

Back in 2004, the Ninth Circuit hears an immigration appeal. Judge O'Scannlain joins the majority opinion, written by Judge Siler (a senior judge on the Sixth Circuit), which denies relief. Judge Hawkins dissents.

Then the case gets taken en banc. The resulting panel's more leftie than rightie (typical of contemporary Ninth Circuit en bancs), but has its fair share of conservatives, including the two Bush I appointees (Judges Rymer & Kleinfeld) and a Bush II (Judge Callahan), as well as some pretty moderate Democrats.

So how does the en banc come out? Unanimously in favor of the petitioner. Not a single vote on O'Scannlain's side. Unanimous. Again: Votes on O'Scannlain's side? Zero. Votes on the other side? Eleven.

Ouchie.

People v. Budwiser (Cal. Ct. App. - June 7, 2006)

A funny (and short) one out of Placer County. At a little over seven (double-spaced) pages, this ain't gonna take you too long to read. So give it a shot.

The caption alone intrigued me. I mean, I know "Budweiser", but "Budwiser"? Not a name you hear every day. And what's Philip Conrad Budwiser criminal offense? Felony possession of methamphetamine. I guess when you're named after a central nervous system depressant, you pehaps need a pick me up now and then. Sorry, Phil. Not in this country. Beer = Good. Meth = Bad. Get it?

Here's the best line from Justice Sims' opinion. (Which, unlike yours truly, never comments on the defendant's name.) Background: They revoked Phil's probation because three drug tests came up dirty and, another time, they found a Whizzinator -- basically a bottle of clean urine attached to a tube -- strapped to his phallus. In his appeal, Phil contends that the evidence didn't support the trial court's conclusion that Phil wasn't amenable to treatment, a finding required under Proposition 36 in order to revoke his drug-related probation.

But Justice Sims affirms the trial court's ruling, stating: "All in all, [Budwiser] has demonstrated that he has no intention of complying with a treatment program. 'Whiz' kids don't want drug treatment."

"Whiz kids". I love judicial humor. Especially in short opinions. You da man, Rick.

People v. Sandoval (Cal. Ct. App. - June 7, 2006)

Darn blogger. It's been out of action most of yesterday and today. Almost enough to make one move to typepad.

Anyway, enough venting. Here's an outstanding -- simply outstanding -- opinion by Justice Aaron.

For anyone who thinks that trial courts never improperly coerce guilty pleas, this one is a must-read. Sure, the co-defendant -- who allegedly (indeed, pretty clearly) told the defendant "Plead guilty or I'll kill you" -- did more than the trial court in this regard. But what Judge Lasater (down here in San Diego) did and said was no good as well; indeed, almost certainly led the co-defendant to make that threat.

Anyway, read this opinion. It highlights -- exceedingly graphically -- the problem of involving the trial court in plea negotiations, especially those involving package deals. Even when (and if) the trial judge has the best of intentions. Justice Aaron's opinon in this regard is really top shelf. I found myself agreeing with every word she said, including but not limited to those on the last page of the opinion, in which she reassigns the case to a different judge on remand.

Great job, Cynthia. An opinion entirely befitting of an honors Harvard Law School graduate (Class of 1984) and adjunct law professor at the University of San Diego. Hats off to you on this one.

People v. Moniz (Cal. Ct. App. - June 6, 2006)

There haven't been that many particularly exciting cases lately, sadly. Maybe there's a type of "June gloom" in the California Court of Appeal and Ninth Circuit? Who knows.

But I did get a little laugh out of this case. Justice Raye starts the opinion in a manner that brought a smile to my face, if only because it sounded so funny. The first sentence reads like it's the beginning of a novel, rather than a judicial opinion. "Late one night, Deputy Dan Skaggs pulled over a car driven by Danielle Giampappas for sporting expired tags." The only way it could have been better is if it began: "It was a late, dark and stormy night, and the rugged, burly Deputy Dan Skaggs -- his bountiful chest heaving in the wind -- pulled over . . . ." Plus, how funny is it that the first sentence says that Deputy Skaggs pulled over the car for "sporting expired tags"? Sporting?! I love it. Not the type of language you're typically used to seeing in opinions. Oh, and I also smiled -- and felt like I was back in the early 1960s -- when Justice Raye repeatedly referred to the defendant as possessing a "marijuana cigarette". "Hey, dude, don't bogart that marijuana cigarette."

So I simply loved some of the language used by Justice Raye. Unfortunately, most of the 25 pages of the opinion are fairly plodding (and, quite frankly, boring), so this novella doesn't maintain its initial promise. Still, I loved the first line. Which I'll constantly remember -- accuracy be damned -- as: "It was a dark and stormy night . . . ."

In Re Shirley K. (Cal. Ct. App. - June 5, 2006)

Interesting. I've read (as you might imagine) many opinions about where children should be placed (natural parents, relatives, foster parents, etc.). They are often -- indeed, usually -- depressing stories. And this one is certainly no exception.

But this one is fairly unique in the level of appellate distrust of the underlying social worker. Be sure to check out the last several pages of this (fairly short) opinion. Usually you see a lot of deference to the conclusions of the social worker, both in the trial court and on appeal. Not here. At all. Indeed, Justice McIntyre discusses at length why he -- and the rest of the panel -- are deeply suspicious of this particular social worker. Not for any nefarious reasons, mind you. But, nonetheless, it's obvious that the panel doesn't trust the social worker's objectivity, and, largely on that basis, reverses the trial court's judgment.

A fairly unusual opinion.

U.S. v. 4,432 Mastercases of Cigarettes (9th Cir. - June 2, 2006)

I didn't know what a "mastercase" of cigarettes entailed. Nor did I know anything about gray market cigarettes, the benefits of and restrictions surrounding the reimportation of domestic cigarettes (or importation of domestic brands manufactured abroad), the purpose or function of Foreign Trade Zones -- a term I had never even heard of -- in the United States, or the various legal differences between ad valorem and excise property taxes as applied to products in a FTZ.

But, after reading this opinion, I now consider myself an expert. (As you can tell, it doesn't take much for me to come to that conclusion about myself.) Read it. You'll definitely learn at least a couple new things. You may also get an inkling into how places like DirtCheapCigarettes.com obtain at least some (and perhaps most) of their discount wares. Which, again, was something that I didn't previously understand. But now I do.

Knowledge is awesome, eh?

Haberbush v. Cummins (Cal. Ct. App. - May 31, 2006)

I don't have a strong feeling about whether this opinion is right or wrong. But I do have a fairly strong feeling about what should happen at this point: the California Supreme Court should review the case, and potentially the United States Supreme Court as well. Especially if the California Supreme Court affirms.

The underlying issue is one about which I know virtually nothing (not that this typically stops me): Whether an action to avoid and recover preferential transfers under state law -- in particular, Cal. Civ. Code sect. 1800 -- is preempted by the federal Bankruptcy Code. A fairly important issue. Early last year, the Ninth Circuit, in an opinion called Sherwood Partners v. Lycos, 394 F.3d 1198 (9th Cir. 2005 written by Judge Kozinksi -- over the dissent of Judge Dorothy Nelson -- answered "Yes," concluding that Section 1800 was indeed preempted. But, in this case, Justice Boland, joined by the rest of the panel, disagrees with Sherwood Partners, and holds that Section 1800 is not preempted.

As a result, at present, you have a square conflict between state and federal law, and on an issue that is case-dispositive. Federal courts in California won't permit Section 1800 claims, whereas state courts will. And the Ninth Circuit won't change its mind, since the request for a rehearing en banc was denied in early 2005, and certiorari denied in October.

This is precisely the type of federal-state conflict that cries out for resolution by the California (and perhaps United States) Supreme Court. You can't have resolution of a critical issue such as this one depend entirely upon the fortuity of the existence of either diversity or supplemental jurisdiction. The conflict should not be allowed to continue.

The California Supreme Court should take this one up.

P.S. - After writing this post, I recalled that I previously said that the California Supreme Court should take up a couple of other cases as well, and was interested in whether the Court agreed with me. So I looked the stuff up. I've said that the California Supreme Court should/would grant review in only two prior cases: O'Connell v. City of Stockton back in April 2005 (a taxpayer standing case) -- to which I said "[Y]ou're almost certainly looking at the California Supreme Court taking up the case." -- and Viva! v. Adidas in November 2004 (a case about potential preemption of state protections against using products from endangered animals), which prompted me to say "I definitely think the California Supreme Court should take this one up."

And, wouldn't you know it, the California Surpeme Court did indeed grant review in both cases: to O'Connell in September 2005 and to Viva! in March 2006. Let's here it for external validation!