Alvarado v. Superior Court (Cal. Ct. App. - Jan. 16, 2007)

Life (and people) are weird sometimes.

Kevin Alvarado was a regular customer at the Texaco mini mart in Azusa, and knew the clerk there -- who also had the last name Alvarado, no relation -- pretty well. Listen to what the defendant did on May 27, 2006:

"On May 27th petitioner [Kevin Alvarado] was in the mini mart three times. Petitioner came in the first time around 2:30 p.m. with a friend and stayed for nearly an hour talking with Alvarado. An hour and a half later petitioner and his friend returned to the mini mart. Petitioner’s friend purchased some beer and the men visited with Alvarado for another 30 minutes or so before leaving.

Petitioner went to the mini mart again shortly after 7:00 p.m. . . . Alvarado came to the front of the store and saw petitioner standing near the beer cooler drinking a beer he held in his hand. Alvarado thought petitioner looked nervous. Alvarado asked petitioner “what was going on?” Petitioner did not respond. Alvarado saw some young men outside and asked petitioner if someone had been chasing him. Again, petitioner did not respond. After a moment petitioner told Alvarado, “I want you to call the police and stand outside of the door.” Alvarado did not take petitioner’s request seriously. Petitioner again asked Alvarado to call the police. Petitioner told Alvarado, “Don’t worry about it. I’m not going to hurt you. Just stay outside, because it’s going to get nasty right now when the police come, between me and the police.”

Alvarado thought petitioner’s comments were completely out of character for the person he knew. Alvarado did not believe petitioner and thought he was just joking or playing around. Alvarado kept asking petitioner, “Are you serious?”

Alvarado finally called police from inside the store. He then noticed a gun lying on top of a rack of candy approximately a foot away from where petitioner stood. The gun was approximately 18 inches long and was later identified as a Mossburg 18 gauge shotgun. From the way it lay on the rack the gun barrel was pointed in the general direction of the glass wall. Alvarado asked petitioner whether it was a BB gun. Petitioner shook his head, “No.” Petitioner told Alvarado not to worry, “I’m not going to hurt you. You’re a cool guy. But I’m on a suicide mission.”

Petitioner opened another beer and lit a cigarette. He told Alvarado to call the police again. At that moment two customers approached the store. Petitioner told Alvarado to go outside and keep the customers from entering the store. Petitioner said it would be best if Alvarado stayed outside as well.

Alvarado went outside to warn the customers off but came back inside to try to talk petitioner out of his plan. Eventually, Alvarado went back outside and called police on his cell phone. He told the 911 dispatcher there was a man inside the store with a gun. The dispatcher informed Alvarado police units were already on the scene. Alvarado turned around and saw a police cruiser at the intersection. Officer Rocky Wenrick spoke with petitioner from outside the store on a cell phone which belonged to petitioner’s brother. Petitioner told the officer “people were fucking with him,” he was on a suicide mission, he was “tired of life and wanted to end it
now.” The officer asked petitioner several times to come out of the store. Petitioner responded he wanted to drink his beer while he decided what to do. Petitioner asked to speak with a police officer inside the store. Officer Wenrick told petitioner “that wouldn’t happen.” Petitioner next asked to speak with a person he trusted at the Pacific Clinics.

After about five minutes of conversation, petitioner came out of the store unarmed. Another officer recovered the shotgun from the top of a potato chip/candy rack."

That's a pretty weird story. But let me ask you this: What crime do you think the defendant is charged with?

There are lots of potentials, obviously. Firearms offenses, etc. But, perhaps surprisingly, the answer is: Burglary. Which is a strange answer, though, doctrinally, burglary is a strange crime, so I think that's a proper charge. It's even weirder, though, when the state adds an enhancement allegation that defendant "used" a firearm in the commission of the burglary. Ultimately, Justice Johnson holds that he didn't, and grants his writ petition to strike the allegation. Which also makes sense to me.

Still, I'm left with the sense that neither law nor life is very intuitive sometimes.

Colon v. United States (9th Cir. - Jan. 16, 2007)

Another interesting civil procedure opinion from the Ninth Circuit today. Judge Tallman holds -- in a telling and important decision -- that the district court did not abuse its discretion in binding plaintiff to a set of case-conclusive admissions given the plaintiff's failure to timely respond to various RFAs.

One can learn a variety of lessons from the opinion. First, and most obviously: Respond to RFAs on time. Don't forget. Especially in federal court. Or, in the alternative, be prepared to lose your lawsuit. This is a seemingly facile message, but one that nonetheless bears repeating. The failure to respond happens more than one might think, sometimes -- as here -- with devastating consequences.

Second, at least in part, Judge Tallman's opinion shows a remarkable ability to close one's eyes as to what's really going on. The United States (which was the defendant in this FTCA case) propounded a couple-dozen RFAs to the (essentially pro se) plaintiff, who had already failed to attend a couple of settlement conferences.
Several of these RFAs were your classic "I hope you don't respond to these, since the only real point of them is to bind you to them if you forget" type. Which, of course, is precisely what transpired. See, e.g., Request #7 (“The U.S. Parole Commission’s issuance of the February 12, 1998 violator warrant was not caused by any negligent or wrongful act or omission of any employee of the United States”); Request #13 (“Your February 20, 1998 [sic] arrest was not caused by any negligent or wrongful act or omission of any employee of the United States”); and Request #26 (“No portion of your incarceration from February 20, 1998 [sic] to December 15, 1999 was caused by any negligent or wrongful act or omission of any employee of the United States.”)

Judge Tallman refuses to let plaintiff out of being bound to these admissions based upon his failure to respond to them in a timely fashion by saying -- as he pretty much has to, given prior precedent -- that the U.S. wasn't merely out to mess with the plaintiff by hoping he'd fail to respond. On page 643, Judge Tallman writes: "This is not a situation in which the United States used a request for admissions to gain an unfair tactical advantage. Cf. Perez, 297 F.3d at 1268 (stating that Perez used the rule “to harass the other side . . . with the wild-eyed hope that the other side w[ould] fail to answer and therefore admit essential elements”). But come on. That's precisely what these requests were for. And Justice Tallman -- who's a former DOJ attorney and AUSA himself -- surely knows this fact, as does anyone who's ever practiced for any substantial period of time. Can we come up with other reasons for these particular requests, which basically said: "Admit that you totally have no case and that we are entitled to summary judgment"? Sure. They'll make the plaintiff, once he denies them, state (alongside related interrogatories) the reasons for his denial and the evidence relevant thereto. But let's get real. The reason these are RFAs instead of straightforward interrogatories is precisely because we hope that the other side won't timely respond. And, with all due respect to Judge Tallman, that's exactly what -- in my view, at least -- transpired here.

None of this means that the plaintiff shouldn't potentially be bound, especially given his lack of diligence in responding. But let's not kid ourselves about what's going on here. We're basically giving the United States a huge windfall. Especially in a case where, as here, the U.S. might well be liable on the merits. Judge Tallman's opinion makes it sound like the United States would seriously be injured in trial preparation absent binding the plaintiff to these admissions. But that's only because we'd be taking away something that the U.S. obtained fortuitously, as a result of the other side's incompetence. Which may or may not be fair, but at least in this case, that's what we're doing.

There's another substantive aspect of the case as well, and civil litigators should definitely read -- or at least be aware -- of Part IV of the opinion. Which substantively changes the law in the Ninth Circuit and makes it much, much easier for district courts to bind parties to admissions for failure to timely respond even absent prejudice to the propounding party. That's a huge change, and makes it much more likely that a court would bind a party in such settings.

So definitely propound those case-dispositive RFAs. Especially now. Sure, gussy them up with other RFAs so it doesn't look like all you're doing is trying to win the case on a procedural trick. But, nonetheless, be sure to do precisely that. As the United States does here.

Efaw v. Williams (9th Cir. - Jan. 16, 2007)

I knew this was going to happen. It's the first day of the Spring semester, and I have two classes today. Plus grading to finish by the end of the week and edits of an article that the law review wants no later than the end of the day today. So, of course, the Ninth Circuit -- after the long weekend -- publishes ten different opinions. Let's hear it for starting your day with 200 pages of dense legal prose.

Okay, I'll stop complaining now. Actually, several of the Ninth Circuit opinions were pretty interesting. This one, for example, was something that I've never seen before -- indeed, that (to my knowledge) is the first of its kind ever. It's a rare case, and involves a lawsuit in which service of process was not made on the defendant at issue for a full seven years after the filing of the complaint. That's a long time; indeed, even after reading the facts of the case, I don't understand how the matter was left to languish for so long, especially in this era of fast track courts and pretty effective case management strategies. Regardless, apparently it happens, and in this case, the defendant moved to dismiss under Rule 4(m) given the seven-year delay, the district court denied the motion and gave the plaintiff another 30 days, plantiff successfully served, defendant lost at trial, and defendant appeals, claiming that the extension of the 120-day period for service of process under Rule 4(m) was an abuse of discretion.

And Judge Graber agrees. As far as I can tell, this is the first published federal appellate opinion ever in which an extension under Rule 4(m) has been held to be an abuse of discretion. Rarely do you see "firsts" nowadays, and I think this may well be one. So that's interesting.

The case is also worth mention because Judge Willie Fletcher's dissent is very -- and sincerely -- moderate and respectful. It begins with this line: "I respectfully dissent in this close case." Which is a nice way to begin, and the remainder of his dissent continues this refrain. Including this paragraph, which I think captures the calm and dispassionate nature of Judge Fletcher's dissent (as well as his views on the merits): "Further, although Williams was prejudiced by delay, and although seven years is an extraordinary delay, the most significant prejudice to Williams’ defense cannot be attributed to this delay’s extraordinary length. The greatest harm to Williams’ defense between 1996 and 2003 was the death of Williams’ co-defendant Kerr. Kerr’s testimony might have corroborated Williams’ account and convinced the jury to hold in her favor. We were told at argument that Kerr died in 1998, only two years into the delay. Two years’ delay in serving a defendant is not extraordinary. See, e.g., McGuire v. Turnbo, 137 F.3d 321, 323-24 (5th Cir. 1998) (service timely where plaintiff served defendant within court’s extended deadline, nearly two years after filing suit). Thus, the extraordinary length of the delay in this case contributed less to the prejudice to Williams than it might seem at first blush, and certainly contributed less than if Kerr had died in the seventh year (in which case I might have joined the majority)." Rarely do you read dissents that admit that the change of a single fact might well have changed the dissenter's vote.

Ironically enough, I'm going to talk about service of process today in my Pretrial Practice class. Which begins in 25 minutes, so I'll finish up for now. Suffice it to say that I enjoyed this opinion, and at eight pages, it isn't a long one at all. It's a nice, compact dispute -- and one worth reading even for those less obsessed than I am with procedural minutia.

Ochoa v. Fordel, Inc. (Cal. Ct. App. - Jan. 12, 2007)

I'd have thought that the plaintiff's law firm would have been disqualified in this one once they hired a partner from the law firm representing the defendant. Especially given that the partner they hired both had his office next door to the attorney litigating the case on behalf of the defendant and admitted to reviewing information about the case while he was with the firm. But Justice Vartabedian decides otherwise.

I'm not firmly convinced that Justice Vartabedian is wrong, and he writes a decent opinion that defends the refusal to disqualify. But the application of imputed disqualification principles here is not what I'm used to seeing from the California Court of Appeal, which is generally more protective of the potential for impropriety in situations such at this. Especially when the partner hired from the defendant's firm becomes the second person in a two-person firm representing the plaintiff.

Plaintiff's counsel is W.J. Smith & Associates (see their flashy web page here), counsel for the defendant was Jory, Peterson, Watkins, Ross & Woolman (see their equally flashy -- but very different -- web page here), and that partner hired from Jory Peterson to go to W.J. Smith was Shelley Bryant (a Davis graduate).

Interesting case.

U.S. v. Reynard (9th Cir. - Jan. 12, 2007)

Speedy adjudication this ain't.

I was initially struck by this case when I saw the caption and happened to notice that the district court docket number was from 1998 (CR-98-02402-IEG). That's pretty unusual. There aren't many direct appeals left from the 20th century. Then I noticed that even though it's now 2007, the appeal had been docketed in 2002 (No. 02-50476), five years ago. And this is no death penalty case, which sometimes entail substantial -- and often strategic -- delays. This is actually a pretty important opinion, and concerns the constitutional validity of the
DNA Analysis Backlog Elimination Act of 2000, which requires inmates (and those on supervised release) to provide a blood sample for analysis. Reynard, who had been convicted and sentenced prior to passage of the Act, argued that this statute (1) violates the Fourth Amendment, (2) is impermissibly retroactive, (3) violates the Ex Post Facto Clause, (4) violates the Commerce Clause, and (5) violates the Fifth Amendment.

These are pretty weighty challenges. And ones that concern a large number of different people. So having the case take five years until it gets decided isn't exactly optimal.

Eventually (and I think that at least some of the delay was perhaps justified), the Ninth Circuit rejects these challenges and upholds the validity of the Act. Even though Judge Pregerson dissents to part of the opinion and argues -- interestingly enough -- that the DNA Act survives all of these challenges except the Commerce Clause claim. Not something that you would intuitively expect from Judge Pregerson, who hardly started out his tenure with a keen sense of the limitations of Congress' power under the Commerce Clause.

Judge Pregerson's dissent also makes for an interesting lineup, which looks more like something we're used to seeing from the Supreme Court than in the Ninth Circuit: "PREGERSON, J., delivered the opinion of the Court as to Parts I through II(D), in which TASHIMA and CLIFTON, JJ., joined. CLIFTON, J., delivered the opinion of the Court as to Part II(E), in which TASHIMA, J., joined. PREGERSON, J., filed a dissenting opinion as to Part II(E) and dissents from the judgment." Which, of course, just means that Pregerson decided to write the opinion even though, in the end, he didn't have the votes to make the case come out the way he wanted.

An interesting case. And important. Worth a read on this blustery (at least for Southern California) Friday afternoon. Plus, even at 23 pages, it'll certainly take much less time to read than the five years it took to write.

U.S. v. Hicks (9th Cir. - Jan. 11, 2007)

Sur-reply or surreply? (Or, for that matter, sur reply.) Which one is it?

At the bottom of page 326 in this opinion today, Judge Betty Fletcher uses "sur-reply" when describing the response of the United States to the reply brief of the defendant. Mind you, I've never filed one. But I've always thought that, if I did, I'd call it by a single word: surreply. No hyphen.

I've seen the word spelled both ways, though I always thought "surreply" was more common. But seeing Judge Fletcher use the hypenated version got me wondering whether I was right or she was right. Or whether we both were. So I tried to look it up.

Only I still don't have a definitive answer. The term isn't in Black's Law Dictionary, so no help there. (And isn't it a sign of the times that when I went to look the word up, I immediately did so by trying to grab Black's online, not realizing that my hard copy of this book was less than two feet away from me.) And people seem to file briefs and write opinions using both spellings.

There are various writs that are described by putting the "sur" in a separate word (e.g., sur cui in vita and sur disclaimer), but those merely seem derived from the Latin "sur" and so are only marginally helpful. More analogous to what we're talking about, I think, are "surrebutter" and "surrejoinder," which are, respectively, the plaintiff's answer of fact to the defendant's rebutter and rejoinder. Both of which are spelled as one word.

So, in the end, I think it's probably surreply rather than sur-reply; or, at a minimum, that the former is probably preferred to the latter. At least until someone smarter tells me otherwise.

Delay v. Gordon (9th Cir. - Jan. 11, 2007)

Thinking about suing an agency of the United States? Even on a meritorious claim? Then read this case.

It's about William Delay's efforts to obtain -- and then collect upon -- a judgment against the agency of the United States government (the Pacific Northwest River Basins Commission) for which he previously worked. The Commission wrongfully terminated Delay's employment in 1978, and Delay promptly sued. The United States responded to this suit by making sure that it kept bouncing between the Oregon district court and the Claims Court, and did so by arguing, first, that Delay's contract was with the United States, and hence had to be heard in the Claims Court, and then, once the suit was in the Claims Court, arguing the exact opposite.

These (and other) procedural moves kept the case moving around until 1985, at which point Delay prevailed at trial and obtained a judgment of over $140,000 for wrongful termination. But, by this time, President Reagan had abolished the Commission, and most of its money had been disbursed. The Commission had $28,000 left, held by the OMB, but the OMB refused to release it, even though Delay was clearly entitled to it. Thereafter, when Delay tried to garnish this sum, the United States convinced the district court that sovereign immunity barred such an attempted garnishment. Delay worked hard and got a California Congressman to sponsor a private bill, but it failed to get out of committee. Then Delay filed a Rule 60(b)(6) motion to make the United States a party to the judgment as the real party in interest, but the district court denied the motion, and, in this case, Judge Gould affirms.

So basically plaintiff was illegally fired in 1978 -- twenty eight years ago -- and, after a jury trial, obtained a judgment over two decades ago. But has still been unable to collect a dime.

Oh, by the way, in the meantime, in 1998, the plaintiff died. And, in 2003, his wife died as well. So the only people who have survived the United States' consistent (and heartless) efforts to make sure that these people never collect upon their rightful judgment are plaintiff's children. And, at this point, barring a miracle, I highly doubt that the children will have any more success at obtaining justice than their deceased parents did.

Impressive.

One more thing. The name of the plaintiff is pretty ironic, huh? Delay.

U.S. v. Crapser (9th Cir. - Jan. 10, 2007)

Here's a quiz.

One of the judges on the Ninth Circuit begins his or her dissent in this case with the following line: "The majority opinion weakens our Fourth Amendment protections -- whatever is left of them."

You gotta love those last four, totally unnecessary, words. Classic. And totally indicative of their author.

Even without a hint, you might well be able to guess which of the fifty active and senior judges on the Ninth Circuit penned those words. In theory, you've only got a two percent chance of getting it right. But I bet that many, many observers could nonetheless identify the author on the first guess.

Want a hint? I'll tell you on the panel: Goodwin, Reinhardt, and Graber.

That should seal it.

Adams v. Speers (9th Cir. - Jan. 10, 2007)

When it rains it pours. The Ninth Circuit issued as many published opinions today as it has during the last twelve days. That's a lot.

But there are some good ones in there, and this opinion by Judge Noonan is one of them. For two reasons.

First, the opinion reminds us that the Ninth Circuit (and especially Judge Noonan) -- is a stickler for following the rules. Not just rules like page limits, citations, and the like, but substantive principles as well. Lest there be any doubt in that regard, the second paragraph of Judge Noonan's opinion should more than dissipate it. That paragraph contains some fairly blunt language, and I'm sure it caused counsel for appellant -- California Deputy A.G. Scott Wyckoff -- to cringe when he first read it:

"Preliminary to statement of the facts, we note that Officer Speers can make an interlocutory appeal from the ruling on immunity only if he accepts as undisputed the facts presented by the appellees. [Cite] As Speers’ briefs show, he is familiar with this maxim governing such appeals, but at times his briefs lapse into disputing the Adamses’ version of the facts and even into offering his own version of the facts. We regret these lapses and, as they are made by the Attorney General of the State of California defending Speers, we take this occasion to advise the Attorney General that such practice could jeopardize our jurisdiction to hear the interlocutory appeal."

Not something you want to hear at the outset of your qualified immunity appeal, eh? Nor, I'm sure, did Mr. Wyckoff like it when he got to the final paragraph of the opinion, in which Judge Noonan says (immediately prior to the word "AFFIRMED") that the result in this case is "obvious". Lesson of the day: Don't make Judge Noonan (or anyone else, for that matter) mad by appearing to play fast and loose with the facts. I guarantee you won't like the results.

Second, I won't attempt to summarize them, but it'll do one good to read the first three pages of the "Facts" section. Especially if you've ever been inclined not to stop when a police car tries to pull you over. Judge Noonan's description is, in a lot of ways, chilling. The way he wrote the opinion (and I'm pretty sure it was deliberately done this way), I definitely didn't see the part at the end of page 244 coming.

Admittedly, me telling you all this somewhat spoils the surprise. But read those three pages anyway. And don't try to run from the cops. Even on a lark. It's not a good idea. At all.

Schatz v. Allen Matkins (Cal. Ct. App. - Jan. 9, 2007)

It's fairly rare that you see the California Court of Appeal disagree with a justice on the California Supreme Court. But that's exactly what happens here.

Admittedly, the opinion by Justice McConnell merely says that the California Supreme Court's decision in Alternative Systems remains good law even after the Court's subsequent decision in Aguilar. That's not really a bench slap to the California Supreme Court or anything. Nonetheless, since Justice Chin exressly concurred in Aguilar to argue that the majority decision overruled Alternative Systems, and since Justice McConnell's opinon states flatly that Justice Chin was wrong, it's still pretty bold.

Justice McConnell's holding, by the way, is also fairly important on the merits. She essentially concludes that arbitration clauses in attorney fee agreements aren't effective because the client can still request nonbinding arbitration under the Mandatory Fee Arbitration Act and, subsequently, a trial de novo in front of a jury. The client will have to jump through a few hoops first, but that's nonetheless an effective way for the client (but, I might add, not the attorney) to get out of a mandatory arbitration clause. Those California attorneys who put arbitration clauses into their fee agreements might well want to keep that holding in mind.

At least as long as it lasts. My take is that the California Supreme Court should (and probably will) take the issue up at some point, perhaps even in this case. They gotta decide at some point whether Justice Chin is right that Aguilar overrules Alternative Systems. Might as well do it here. No time like the present, after all.

Wagner v. Columbia Pictures (Cal. Ct. App. - Jan. 8, 2007)

When you're representing Robert Wagner -- you know, the movie star -- and are suing Columbia Pictures (you know, the movie studio) for half of the profits to the Charlie's Angels movies, you're obviously (1) a very, very good attorney, and (2) are sufficiently motivated by the amount at stake -- the two movies grossed over $500 million worldwide -- to do a bangup job. Ditto, by the way, if you're representing Columbia Pictures.

So it's no surprise to anyone that on such an interesting and high-profile case, the attorneys write great briefs and are outstanding advocates. Of course, in the end, one side has to lose. And, in this case, it's the attorneys for Robert Wagner. Sure, Wagner entered into a contract in which he (and his wife, Natalie Wood) are entitled to 50 percent of the net profits from any ancillary rights associated with the Charlie's Angels television series. But according to Justice Johnson, that doesn't include the subsequent movies based on the series. Affirmed. (I did not know, by the way, that Charlie's Angels was the brainchild of Wagner and Wood. Neat.)

Read the opinion for more fascinating Hollywood details, as well as a review of how these deals are often structured (as well as what they mean). Make sure also not to skip footnote 1. Because, as I said, it comes as no surprise that the attorneys here are very good. But Justice Johnson includes in this footnote about as nice of a compliment to counsel -- and a self-effacing one, at that -- as I've ever read:

"This unusually complex case was well briefed and ably argued by counsel for both parties. Beyond the normal round of briefs and oral argument, counsel responded to two requests for letter briefs from the court and returned for a second oral argument. If we have erred in our resolution of the issues it was not for counsels’ lack of effort to set us straight."

Nice, huh? Given this statement, the attorneys definitely deserve mention by name: Samuel Pryor (a Yalie), Sally Liu (Boalt), and Matthew Belloni (USC) for Robert Wagner, and Martin Katz (Michigan), Lisa Stutz (ditto), and Jean-Paul Jassy (USC) for Columbia Pictures.

Way to go, all.

August Ent. v. Philadelphia Indem. Co. (Cal. Ct. App. - Jan. 8, 2007)

Nothing too fascinating today from the Ninth Circuit or the California appellate courts. Just a single opinion from the Ninth Circuit -- albeit on a somewhat interesting criminal discovery issue, with a dissent by Judge Willie Fletcher -- and similarly only one published opinion from the California Court of Appeal. We'll see if the latter cranks something fun out in the afternoon.

The only thing I wanted to say about this case -- the one from the Court of Appeal today -- is that it's a great example of how an opinion can sometimes be both incredibly concise and incredibly persuasive. The first two paragraphs of the opinion by Justice Mallano basically say it all. Sure, there are twenty-two subsequent pages, and they flesh out the details pretty well. But read these first two paragraphs and see if you don't agree that they pretty much alone persuade you that Justice Mallano is correct:

"This appeal raises issues concerning whether a directors and officers (D&O) liability policy covers a breach of contract claim where an officer entered into a contract without stating that he was acting on behalf of the corporation. The corporation subsequently disputed liability under the contract, and the other contracting party brought suit against the corporation and the officer, seeking to recover the contract price. The officer sought a defense from the D&O insurer, which denied the claim. The corporation and the officer settled the suit for the contract price.

In this action against the insurer for bad faith, the trial court entered judgment for the insurer after sustaining a demurrer without leave to amend. We affirm because the D&O policy did not cover the corporation’s contractual debt or the officer’s liability for breaching a contract. The breach of the contractual obligation asserted in this case did not give rise to a loss caused by a wrongful act within the meaning of the policy. Rather, the corporation was simply being required to pay an amount it voluntarily contracted to pay. To hold the insurer liable for the contract price would be tantamount to making it a business partner of the corporation and the officer, which was not the mutual intention of the insurer and the insured under the policy."

I wish that I could write something that's a tenth as concise and persuasive.

P.S. - On a more superficial level, maybe I'm still woozy from my run into work today, but is this an incredibly good-looking picture of Justice Mallano or what? Now I'm jealous on multiple levels.

Jen-Weld v. San Diego Sup. Ct. (Cal. Ct. App. - Jan. 4, 2007)

Sorry for the couple-day hiatus, but I was off skiing with my brother before he returns to the Commonwealth of Virginia. Though, honestly, I didn't miss much: The Ninth Circuit published nothing on Thursday and only a couple of cases on Friday, and on Friday the California appellate courts cranked out only a single published opinion. Regardless, I much preferred skiing.

That said, I did enjoy this case, so after watching some playoff football today, I thought I'd at least briefly mention it. It shows a keen understanding by Justice McIntyre of the realities of modern litigation, and is important given the increasing outside references made by California trial courts.

The underlying lawsuit was a complex multiparty construction defect case. Judge Styn wanted to get a lot of the lawsuit out of his court, as well as potentially resolved, so he appointed both an outside discovery referee as well as an mediator/settlement conference neutral, the latter to be paid for by the parties for a maximum of 100 hours at $500/hour. No small piece of change.

One of the defendants, Jen-Weld, objected, arguing that mandatory mediation (and some other stuff) was impermissible. Judge Styn disagreed, and when Jen-Weld refused to participate in the mediation, Judge Styn imposed sanctions and ordered them to attend. At which point Jen-Weld filed a writ.

The Court of Appeal granted the writ and reversed, holding that trial court's don't have authority to order parties in a complex civil action to attend and pay for private mediation. The opinion by Justice McIntyre is short (nine double-spaced pages), to the point, and persuasive. This was also a great vehicle in which to find that mandatory (party-paid) mediation was impermissible, as the costs of the mediation for Jen-Weld would have swamped any alleged liability. Since plaintiff's settlement demand to Jen-Weld was less than $2,800, you can easily see why it would be pretty crazy to make Jen-Weld pay to mediate a case it has probably no intention of paying money to settle and in which its mediation costs would exceed the existing settlement demand.

"While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation." This seems right to me. So I thought this one came out the correct way.

P.S. - Not that it made a difference to my assessment, but I did notice -- and was happy to learn -- that both of the attorneys for Jen-Weld were graduates of the University of San Diego School of Law: Jeff Harmeyer and Brett Norris. And as Mr. Norris was a student in my first-year Civil Procedure class at USD, I was especially happy to see him prevail in this civil procedure case. Great job, Brett!

Cruz v. Fagor America (Cal. Ct. App. - Jan. 3, 2007)

There are two different ways that an attorney can unjustly obtain a quarter-million dollars with very little work. This case exemplifies -- at least writ large -- both of them.

I'll first talk about the legal way one can get your hands on the cool quarter mill. Since that's both what the actual case is about as well as the better way.

Default judgments. Gotta love 'em. Here, Alan Cruz is a 16-year old kid whose parents bought a pressure cooker at the San Diego Fair, and a couple months later, he burned himself when he tried to take the lid off. Fagor America is the American distributor of the pressure cooker, so Cruz (and later Cruz's attorney) writes to try to get Fagor America to pay up. Fagor's insurer says they'll reimburse Cruz for his $5,000 in medical bills but nothing more. So Cruz sues.

At which point it gets interesting. Since Fagor America is an out-of-state corporation, Cruz's attorney does the easy thing and serves 'em via certified mail, return receipt requested, in an envelope addressed to the president (who's an officer, of course) of Fagor. Right. Fagor's a 13-person company, and, not surprisingly, someone other than the president signs for the process. Makes sense.

Then, inexplicably, Fagor does nothing. Doesn't answer. Doesn't respond to the first attempt by Cruz to enter a default. Doesn't respond to the second attempt either. So eventually Cruz succeeds, and obtains a default judgment of $259,000+. At which point another six months passes, during which Fagor again gets notices but continues to do nothing.

Eventually, Fagor America requests relief from the default judgment on a variety of grounds, and Judge Hayes (down here in San Diego) gives it to 'em, holding (among other things) that service of process was improper because the officer didn't personally sign for the mail (and there was no evidence that she ever personally received it) and that relief was also available for extrinsic mistake.

But Justice Aaron reverses. Service was proper, she said, and there was no basis for relief from the default judgment since Fagor America didn't (and apparently couldn't) explain why it sat on its butt until after the plaintiff filed notice of a lien. So back comes the $259,000+ judgment. Plus statutory interest and costs, of course.

So that's one way to make your money. Either as the plaintiff or as the attorney on a contingency fee for the plaintiff. Plus, it's legal!

Now let me tell you the other way. Which I mention only because I looked up the attorneys on the case and noticed that both of them -- Harold D. Thompson for the plaintiff and Kathleen McCormick for the defendant -- were graduates of the fine University of San Diego School of Law. Which led me to do a tiny bit of additional digging.

So the alternative way is: Forgery. Back in 1996, Mr. Thompson -- attorney for the plaintiff, you'll recall -- did a little digging of his own and noticed some unencumbered property in San Diego owned by a person named Jay Johnson. Which perhaps reminded Harold of the famous beer commercial jingle: "You can call me Ray, or you can call me Jay, but you doesn't have to call me Johnson." Except that Thompson said: "Hey, why not have everyone call me both Jay and Johnson?!" At which point he obtains false identification in the same of Jay Johnson, presents the identification to take out mortgages on the property, and cashes the loan checks to the tune of $200,000-plus.

Neat, huh? And would have worked, too, except for a suspicious teller at one of the banks at which Thompson (a/k/a Jay Johnson) deposits the checks, who sniffs the whole thing out, contacts police, and eventually leads to Thompson being convicted in both Riverside and San Francisco of forgery.

I'm a little more sympathetic towards Thompson than most people not only because I'm an institutional guy (he's a USD grad, after all), but also because he apparently suffered from severe depression at the time of the incident as well as made immediate restitution and cooperated with the Bar during the resulting disciplinary process. Plus, he served his sentence and also served his three-year suspension from the Bar, so you've got to give the guy a second chance, right?

I nonetheless found it somewhat ironic that a guy twice convicted of forgery is now making a fair piece of contingency fee money as the result of a default judgment from a particular signature on a return receipt. But, hey, that's the way the cookie crumbles. And at least it's an honest way to make a living. Or, at minimum, more honest than the apparent alternative.

U.S. v. Silva (9th Cir. - Jan. 3, 2007)

Since there are now a plethora of post-Booker sentencing remands, this case is fairly important. It concerns whether the defendant has a constitutional or statutory right to allocute -- i.e., to say something to the court -- before an Ameline sentencing review on remand. Judge O'Scannlain, not surprisingly, concludes "No."

But what a funny case in which this particular issue happens to arise. The defendant here -- Paul Silva, a resident of the great city of San Diego -- didn't want to allocute before to his initial sentencing anyway. And listen to the erudite bon mots he spontaneously utterred after the court announced his sentence: "No, way, man. Wait, I want to say something, dude. The maximum is five years, man.” Priceless.

I'll give you once guess, by the way, as to the crime for which the defendant was sentenced. You guessed it: importation of marijuana and possession with intent to distribute.

Lay off the bong, my fellow San Diegan. Too much definitely rots the brain.

North Kern Water Storage Dist. v. Kern Delta Water Dist. (Cal. Ct. App. - Jan. 2, 2007)

No such joy in Mudville. The Ninth Circuit's closed for Jerry Ford, and the California Court of Appeal eventually provided me with only three tidbits, two of which were merely amendments to prior opinions.

The only substantive published opinion of the day was this one. Which was mind-numbing even for someone used to slogging through a lot of stuff. I'll reprint the first paragraph of the opinion to give you a taste:

"North Kern Water Storage District (North Kern) appeals and Kern Delta Water District (Delta) cross-appeals from a judgment entered on retrial, after we reversed a prior judgment. The present judgment declared a forfeiture of certain previously appropriated waters of the Kern River. Plaintiff and appellant North Kern contends that the trial court erred in selecting the timeframes against which to measure nonuse of the water, that the court should have measured differently the nonuse of water by junior water rights holders, that the court erroneously precluded North Kern from asserting that senior rights holders’ use of water was unreasonable, and that the court should have awarded the forfeited water to North Kern instead of declaring it available for appropriation through the statutory permit procedure. Defendant and appellant Delta contends the court erred in precluding its defense of estoppel and in measuring the forfeiture against Delta’s full appropriation even when the river had insufficient water to provide the full appropriation. Respondent City of Bakersfield, holder of rights junior to some of Delta’s rights and senior to North Kern’s rights, generally supports the judgment entered on retrial."

Exciting, huh?! Water right forfeitures!! Junior versus senior users!! Cross-appeals!! You can imagine my joy as I read the subsequent thirty-six pages.

I'm positive that there are people who know and like this stuff, and it may well be a significant case as far as water rights -- an important topic -- are concerned. But it's still not an exciting way to begin the New Year.

Don't let me down tomorrow, all. Push hard tonight to get the interesting stuff out, okay? I want a whiz-bang January 3rd.

Where Did v. Everyone Go (Cal. Ct. App. - Jan. 2, 2007)

I enjoy the holiday break as much as anyone. But I'm hungry for new opinions, my friends, and the Ninth Circuit and California Court of Appeal aren't at all satiating my desires. Nothing whatsoever up on the web sites today. Not even the typical indication from the Ninth Circuit that there were no published opinions issued. And no even unpublished opinions from the California Court of Appeal.

So we begin 2007 in a lazy, hazy manner. Maybe we'll get in a "nooner" and something will come down later today worth reading. But, until then, my brother Chris is in town (visiting from Virginia), so off I'll go on an afternoon day hike. Hopefully to return to a king's ransom of exciting, intellectually stimulating opinions by our appellate friends.

Ochoa-Amaya v. Gonzales (9th Cir. - Dec. 29, 2006)

Sometimes fraud only gets you into trouble, my friends.

Ochoa-Amaya illegally enters the United States (with his parents) in 1985, when he's 7 years old. Seven years later, in 1992, Ochoa-Amaya's father -- who's a lawful permanent resident -- files a visa petition on behalf of his wife and children, including Ochoa-Amaya. But five years later, in 1997, Ochoa-Amaya effectively terminates this petition (as applied to him, anyway) once he married a U.S. citizen. Since now he's entitled to adjustment of status on his own account, based upon his marriage to a U.S. citizen.

Sounds fine, right? Except for one thing. Do you find it just a tiny bit fishy that the bride chosen by Ochoa-Amaya -- who was 19 years old at the time -- was a spunky 74 year-old U.S. citizen? Perhaps true love knows no boundaries? Or maybe -- just maybe -- something else is at work here.

As it happens, a couple of months after he "marries" his 74 year-old bride, Ochoa-Amaya gets caught crossing the border illegally (after returning from Mexico from, sadly enough, his brother's funeral). This would be no problem, right, since he's married to a U.S. citizen. Except for one thing. One of the dangers of marrying a 74 year-old in order to obtain citizenship is the very real possibility that your spouse might die before the INS adjusts your status. Which, indeed, happens here. Which in turn means that Ochoa-Amaya is up (a smelly) creek without the proverbial paddle. He would have had his status adjusted due to his father's application if he hadn't gotten married; indeed, the rest of his siblings became lawful permanent residents in that way. But since he went the marriage route, his status as a child doesn't work anymore, and once his spouse dies, that route to lawful status doesn't work either. Which means that Ochoa-Amaya gets deported, and Judge Trott affirms.

There's another way to look at what transpired here, of course. Perhaps true love -- a love so strong that it both survived and flourished notwithstanding the flouting of social convention and intense public scorn -- between the 19-year old Ochoa-Amaya and his 74 year-old soulmate led, in the end, to tragedy, including the banishment of Ochoa-Amaya from country he's known and loved since he was 7 years old.

That's a possibility, obviously. And, if so, a tragic lesson. But, honestly, I think that the more likely lesson to be learned is that fraud doesn't pay. And that's one that makes me far less sad.

Comer v. Schriro (9th Cir. - Dec. 29, 2006)

Three months ago, when this opinion was published, I said that it wouldn't be around that long, and would be taken en banc shortly.

And, today, so it was.

It'll take a miracle draw for Judge Ferguson's opinion not to be reversed. And, even then, it would only last for as long as it took the Supreme Court to grant certiorari.

U.S. v. Sandoval-Mendoza (9th Cir. - Dec. 27, 2006)

These are some of the best lines that Judge Kleinfeld has written in a long time. And that's saying a lot, because he writes pretty darn well.

He's talking about an order by the district court (Judge Jensen, up in Oakland) that barred defendant's counsel from talking to his client during an overnight recess. Which was designed to avoid any influence on the defendant's testimony, but which nonetheless directly collided with the defendant's Sixth Amendment right to counsel. Here's what Judge Kleinfeld said regarding whether this order was constitutional:

"This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that 'the judge may instruct the lawyer not to coach his client' but may not prohibit discussion of the client’s testimony. But that is not a workable rule, because coaching is implicit in any discussion of a defendant’s testimony, even if the defendant’s lawyer tries his best to avoid coaching."

That seems exactly right to me. One might well be able to find fault with the rule that Judge Kleinfeld accordingly adopts -- which permits brief no-discussion orders (e.g., during recesses) but not overnight bans -- which, like any bright-line rule, is both over- and underinclusive. But his insight regarding the inevitable nature of coaching as inherent in virtually every meaningful attorney-client communication (particularly during trial) seems spot on.

I wrote an entire law review article in the Kentucky Law Journal ("Coaching Witnesses") with my colleague Fred Zacharias on this precise topic, and I don't think that anything that I wrote anywhere in the article is as good as the paragraph by Judge Kleinfeld. Great job, Andrew.

(Two other brief points. First, I'm only speaking for myself: Fred wrote much better stuff in the article than I did. Second, Judge Kleinfeld's opinion is great, but it did take him over a year and a half after the oral argument to write this 21-page missive. That's a lot of time. Even for a great, and somewhat difficult, opinion.)

U.S. v. Lee (9th Cir. - Dec. 27, 2006)

Sometimes one can figure out how an opinion's going to come out merely by reading the first sentence or paragraph -- by the way the author has deliberately framed the question.

So when one reads the first sentence of this opinion by Judge Trott, one might have a keen sense of how the rest of the opinion is going to go:

"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii ('District Court')."

So one might well think that, upon reading this sentence, the conviction is going to be reversed. But you'd be wrong. Remember: This is Judge Trott. And it's a criminal case. It's going to take a lot more than this to reverse. Sure, the crime was entirely committed in American Samoa, and had nothing whatsoever to do with Hawaii. But that's nonetheless where the federal government shipped Lee for trial -- 2300 miles away. Which makes it the proper venue.

P.S. - Lee is not a nice guy. At all. Feel free to read the opinion to learn about his sweatshop, and enslavement of foreign workers, and more.

U.S. v. Baldrich (9th Cir. - Dec. 27, 2006)

If memory (and very brief research) serves me well, this is the first published opinion by Judge Ikuta. It's also a pretty good one, and reads like she's been writing them for years.

Welcome to the Ninth Circuit, Sandra! We're glad to have you.

People v. Zachery (Cal. Ct. App. - Dec. 27, 2006)

You've got to read this one. To encourage you to do so, I'll not only note that it's less than 20 double-spaced pages, but also entice you with the contents of its first paragraph:

"In this case, we discuss the obligation of a trial court clerk to accurately record the sentence pronounced by the judge in a criminal proceeding. Here, the court clerk included in the minutes and the abstract of judgment some provisions that were not in the judge’s pronouncement of sentence. This was error, which was compounded by the fact the judge erroneously sentenced defendant on a count for which he was not convicted. We also shall address the judge’s remark, on the record and in open court, that this court is a 'kangaroo court.'"

Let's just say that Justice Sims is not too fond of what went on below. At all. Both substantively and as a matter of tone. Indeed, Justice Sims slams the trial judge -- Judge K. Peter Saiers of the San Joaquin Superior Court -- so hard, including a sentence that appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection ("The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars."), that Justice Hull concurs separately to say that while he agrees that Judge Saiers violated the California Code of Judicial Ethics, he can't sign onto the rest of the discussion.

Regardless, this is not a huge Christmas present for Judge Saiers. And demonstrates no love lost between the Third District and Judge Saiers. Either way.

There are some other really interesting things about the opinion as well that Justice Sims doesn't directly mention, including but by no means limited to the apparent frequency of (impermissible) post-sentence "additions" by the Clerk.

But the only additional issue that I wanted to mention at any length is the procedural history of the case and what it might say about the nature of criminal appeals as well as the quality of appointed criminal appellate counsel.

In the end, the Court of Appeal holds that there were numerous (indeed, egregious) errors below. But notice what has to transpire before we get there. Notwithstanding these plethora of errors, the counsel appointed to represent defendant on appeal -- William Davies -- filed a Wende brief, stating that he had reviewed the record and found no even arguable issues in favor of defendant on appeal. It was only the Court of Appeal who found these issues, and after receiving the Wende brief filed by Davies, asked him to file a supplemental brief on no less than eight separate issues; in essence, to do the job he'd be appointed (and paid) to do to begin with. And which, in the end, did indeed result in a substantial amount of relief for the defendant.

The upshot of this process depends upon whether you view the glass as half empty or half full. One way to view it is to say that this proves that the Court of Appeal takes its obligations seriously upon receipt of Wende brief s-- which they get all the time -- and often identifies issues that counsel has overlooked. But the other way to interpret what transpired here is to say that the Court of Appeal's particular interest in this case was probably purely derivative of the trial court's comment that the Court of Appeal was a "kangeroo court" and that the lesson to be learned is less that the Court of Appeal is incredibly diligent than that appointed criminal appellate lawyers often are not.

I could talk more about this case, but I've said more than enough at this point. Plus, I have to pick up my brother Chris from the airport in 15 minutes. Let me just close by quoting the transcript below in which the trial judge -- again, Judge Saiers -- talks to the defendant about whether to take the plea deal. The Court of Appeal doesn't reach the issue because it requires a habeas brief (since there was no certificate of probable cause granted by the trial court), but read what follows and decide whether you think that Judge Saiers was impermissibly coercive in convincing the defendant to take the plea. And whether comments like this by the trial (e.g., sentencing) judge prior to trial are a good thing:

"THE COURT: How are you doing today, Don?
THE DEFENDANT: Alive. Trying to do all right.
THE COURT: Don, you know what I’ve offered you in this case, don’t you? Low-term double, strike one strike. You’re facing 25 to life. The 245(C) isn’t that strong a count, but the 2800.2 is open and shut. You were going through red lights and stop signs, 50 miles an hour. I mean, there’s not a jury anywhere that’s not going to convict you.
Do you want to spend the rest of your life in prison?
THE DEFENDANT: No, not really, I mean --
THE COURT: Well, then, you should take the four year offer.
[Prosecutor]: Four, I thought it was six years.
THE COURT: It’s low-term, doubled. What’s low-term?
[Defense Counsel]: Well, low-term is three.
THE COURT: Then it is six years.
Six is still better than life. I mean, I think it’s a no[-]brainer.
[Discussion of work credits]
THE COURT: So, you’d have to do four years, eight months on a six-year sentence, Don. And you already have one and a half years in. You have a year of actual credit, half a year of good time credit.
So, what do you want to do, get out when you’re close to 70, or get out when you’re 51? That’s your choice. And on the 2800.2, you don’t have a defense, Don."

In the end, I'm happy to see what eventually transpired in the Court of Appeal. But am very displeased both by what transpired below as well as by what was necessary before justice prevailed above.

People v. Boudames (Cal. Ct. App. - Dec. 22, 2006)

Getting audited by the California Board of Equalization for underreporting the amount of sales tax you owe for your business? Here's how to make it better: Try to bribe the auditor.

Or maybe not.

Sangha v. La Barbara (Cal. Ct. App. - Dec. 26, 2006)

When I went into work this morning, I had no idea that it was a holiday. Which apparently explained why the University was deserted. Not that much work gets done there over the holiday break anyway, mind you. But, in light of the mass desertion, I did a couple of hours of work and then went home for some well-earned "vacation" time. If that's what you can call dealing with a five-year old, a three-year old, and a two-month old.

Apparently, however, the entire world didn't take a vacation, which explains at least in part this case. In which Justice Aronson holds that in order to establish a legal malpractice claim against your attorney in a criminal case, you have to show not only that you're actually innocent of the offense for which you were convicted, but also that you were innocent of every lesser included offense as well.

The underlying "actual innocence" requirement is manifestly a results-oriented departure from normal causation principles in the first place, so I'm not sure that Justice Aronson's holding is in any way incoherent. But let's realize what this means. Let's say, for example, that your terrible attorney -- really, really terrible -- performed so incompetently that you were convicted of first degree murder and sentenced to 250 years to life. Even though all that you really did was spit on a guy's shoe. Like I said, your attorney was really, really bad.

Sorry. No malpractice lawsuit. Even if you could prove, beyond a shadow of a doubt, that all you did was to spit on a guy's shoe, and that the reason that you were convicted was because your crappy attorney told you that spitting on a shoe counted as "murder" in Califonia. Tough luck for you. Because you're still guilty of spitting, which is technically battery, which is a lesser included offense of murder. So no malpractice claim.

The results can get even more absurd -- I was thinking, for example, of a scenario where you were convicted of murder but all you really did was to litter, and a court might well hold that leaving a dead body around was litter too, so you can't sue as long as you threw a popsicle stick on the ground. But whatever. It's a silly doctrine to begin with, and one need not go to the ends of the Earth to prove the point.

Just watch out the next time you litter or spit. And hire -- or be appointed -- an incompetent attorney at your peril.

P.S. - The criminal defense attorney who was allegedly incompetent here was Vincent La Barbera, who practices down here (or, from my perspective, up there) in Santa Ana. Who's got a much nicer head of hair than mine!

People v. Isom (Cal. Ct. App. - Dec. 21, 2006)

Once again, I must first go on record. I do not support touching little girls. It's bad. It's wrong. Don't do it.

Everyone clear on that? Good.

Now, with that in mind, take a look at this case. Which concerns Jeffrey Allen Isom. Who's definitely messed up in the head. On July 3, 2003 (the day before Independence Day), he's hanging out in a grocery store when he sees a 12-year old girl standing with her grandmother looking at birthday cards. So he walks past her and, while doing so, slides his hand across her bottom for a second, and then keeps on walking down the aisle. The girl promptly tells her grandmother that a man just accidentally touched her bottom, and that's that. Then, a short time later, he again walks by the same 12-year old girl and slides his hand across her bottom, and this time also adds a little pinch. During roughly the same time period, Isom sees a 10-year old girl who's with her own grandmother in a different aisle, and he goes up to the 10-year old and gives her a surreptitious pinch on her bottom as well.

Isom then promptly leaves the store, and is sitting in the parking lot when the two grandmothers -- having been told what just transpired by their granddaughters -- compare notes and call the police, who arrest Isom in the parking lot. Isom is subsequently convicted for his two butt-pinches and one butt-slide.

Which, I hasten to add, is precisely as it should be. That's the easy part. But let me ask you the harder query. What should Isom's sentence be? Sure, sure, I know. It depends on his priors, his mental state, the nature of the pinches, etc. etc. But based upon what you know, what would you do with the guy? Order treatment? Probation? 90 days in jail? A year in prison? Multiple years? What? Would it make a difference to your conclusion were you to know that if the girls had been over 14 years of age, the three touchings could only have been charged as misdemeanors? What's the appropriate result?

Do you have your answer? Good. Now let me tell you what Isom's actual sentence was. 115 years to life. Which Justice Hull affirms against multiple challenges on appeal.

There's a lot of good stuff in this case, including a very interesting discussion regarding whether certain (highly prejudicial) uncharged conduct was properly admitted. Don't forget to also read Justice Blease's dissent, which is excellent as well.

It's a great case to get you thinking. Regardless of the merits of the holding, I'm glad they decided to publish it.

People v. Rasmuson (Cal. Ct. App. - Dec. 21, 2006)

Wow. This one is close.

When I read the first paragraph of the opinion, which described the two molestation offenses for which the defendant (Kenneth Rasmuson) was incarcerated and declared a sexually violent predator (SVP), my strong reaction was: "No way I would let this dude out."

But then I read the subsequent dozen pages of the opinion, which described the treatment that Rasmuson had received, his reaction to taking Lupron (and its effects), the details of the CONREP program, and the testimony of the various psychiatrist at Atascadero State Hospital. At which point my reaction was: "If this dude doesn't qualify to be let out, then no one qualifies to be let out."

In the end, my feelings remain profoundly and deeply mixed. Read the opinion and see what you think. It seems like a very tough call to me.

People v. Dutra (Cal. Ct. App. - Dec. 20, 2006)

Sometimes you read an opinion and say: "Wow. I wish I could write nearly half as well as this." Which was my reaction to this opinion by Justice Morrison.

It's not that Justice Morrison said anything that was substantively entralling or doctrinally complex. It's just that he said it so well.

Excellent job, Fred. I'm impressed. And envious.

P.S. - I also thought that it was pretty subtle for Justice Morrison to say that the defendant, a young college student, was an accessory in the murder because she "fell under the spell" of the killer, who was the victim's wife). Rather than saying, as further reading suggests, that the defendant, Sarah Dutra, might well have been having a lesbian affair with her. I liked that. No reason to sensationalize things.

At least in the pages of the California Reporter. Blogs, of course, are different.

You can read more about the story in this medium-profile murder case if you'd like.

Boonyarit v. Payless Shoesource (Cal. Ct. App. - Dec. 19, 2006)

It's pretty rare that you see an appeal that exclusively concerns the entitlement to a whopping $585.75 in costs. If only because the attorneys' fees (and costs!) you spend in filing and perfecting an appeal are way, way more than the underlying cost award.

But this case nonetheless entails precisely such an appeal.

In the end, plaintiff prevails -- for hypertechnical reasons -- and succeeds in getting the cost award vacated. At least for now; as I read it, it's quite possible that defendant could cure the deficiency and obtain costs by filing a new request in the trial court. On the upside, plaintiff obtains her costs on appeal. So let's hope that the case now goes away. As we used to say, I can't believe that it's worth all the fussin' and fightin'.

On the merits, the opinion is actually somewhat important, and relates to when (and how) the defendant can file its request for costs when the plaintiff files an amended complaint that omits the defendant as a party. It's not as easy as one might think, and, as here, it's easy to mess it up.

Read the opinion for more. It's only seven (double-spaced) pages, and it's an easy read.

Levine v. Smith (Cal. Ct. App. - Dec. 18, 2006)

I generally comment, at least briefly, about any significant opinion that involves a successful malpractice suit against a California attorney. If only because they highlight the dangers associated with, for example, zoning out of your law practice and hiding in a cave. While the cases around you collapse.

Like here. Actually, this case involves a $2.5 million default judgment, so doesn't actually address the merits. But what I gather from the prior disciplinary record of the defendant, Lawrence G. Smith -- who's been disciplined three separate times in the past couple of years, who twice forgot or failed to pay his bar dues, and who's currently ineligible to practice law -- that's apparently what transpired.

Fortunately, for Mr. Smith, anyway, the default judgment against him was reversed by Justice Yegan on a procedural technicality. So that's one adverse consequence that will go away, at least for now. Hopefully he can get his life together.

Still, the case is a cautionary tale.

P.S. - One more thing. The caption and the opinion lists the defendant as "Lawrence G. Smith", but the counsel lists "Lawrence O. Smith" as appearing pro per. Let's change that.

In Re Burton (Cal. Supreme Ct. - Dec. 18, 2006)

It's been almost 24 years since the murder. And Andre Burton has just now finished exhausting his state remedies. And doesn't seem to hasn't even started the federal habeas process.

Two dozen years of litigation, with another dozen or so to go. Ah, death penalty jurisprudence. The high point of our judicial system.

People v. Brandon (Cal. Ct. App. - Dec. 15, 2006)

Want to know what being a pimp -- as well as a prostitute for a pimp -- is really like? Then read the first twenty pages of this opinion by Justice Turner.

My sense is that this is a pretty accurate account of both how pimping works as well as how young women -- sometimes very young -- get turned out. It's a very different story than the one churned out by Hollywood. Although the one thing that television and movies apparently get right is the role of Greyhound bus stations in the practice.

I once watched an excellent documentary on pimping a couple of years ago, which had extensive interviews of both pimps and their prostitutes, which was consistent with everything I read in Justice Turner's opinion. Let's just say it isn't a glamorous life. At all.

Wakefield v. Bohlin (Cal. Ct. App. - Dec. 15, 2006)

Call me nutty. Call me crazy. Call me absurd. Call me way, way too interested in civil procedure. But I think the California Supreme Court should take this case up.

The essential question -- among many in the case -- revolves around who's the prevailing party when plaintiff wins at trial but recovers zero due to setoffs from other settling defendants. Justice McAdams writes a very well written, well-structured, and lengthy (28-page) opinion that says it's plaintiff. Justice Mihara authors a dissent that's half the size and concludes it's the defendant. There's also some interesting stuff in there about whether the wife is a prevailing party when she wins at trial but her husband doesn't, and Justice McAdams concludes that she's not (necessarily).

This is an important issue. It happens all the time. It often involves, as here, a cost and fee award that's several times the amount of the underlying judgment.

It's important enough for the California Supreme Court to decide the issue.

People v. Johnson (Cal. Ct. App. - Dec. 14, 2006)

Here's one way to spend the rest of your life in prison. It's simultaneously kind of funny and yet deeply sad.

It starts out in a regular way. Eric Johnson is convicted in March 1993 of indecent exposure and sentenced to 16 months in prison. Fair enough. Keep it in your pants. If you don't, off to jail you go.

Then, when he's in prison, he just can't stop. Maybe the guy has watched too many prison porn movies -- who knows. For whatever reason, he and just can't keep his hands off himself. So, as a result of his subsequent repeated -- and relentless -- masturbation while incarcerated (and in front of other people), in October 1994, he's convicted of 17 additional counts of indecent exposure, and on that basis sentenced to an additional 12 years 4 months in prison. Yikes.

He's hardly finished, however. In October 2000, he's convicted of an additional eight counts based upon his public maturbation while incarcerated at Pelican Bay, and sentenced to another 5 years 4 months. And then in February 2004 he's convicted of another ten counts -- again for public masturbation in prison -- which adds another 4 years 8 months. Then in November 2005 he's busted yet again; apparently, they don't even bother to charge him with all the various times he's done it, and merely convict him of (and sentence him to) a single additional count even though the sole witness testifies to several additional times he's done it as well.

I mean, dude. KEEP YOUR HANDS OFF YOURSELF! Or, at a very minimum, turn off most of the lights, or cover yourself with a blanket, or do something other than spank in public. You were only sentenced to 16 months for what you did on the outside. But you're now looking at twenty-three plus years in prison solely based upon your inability to keep it to yourself while in your cell.

That's a freakishly long amount of time. Which made me think a couple of additional thoughts as well.

First, how screwed up is this guy? Answer(of course): A lot. Second, does anyone ever think or raise the fact that this guy may have -- and let me go out on a huge limb here -- deep psychological problems?! What about getting this guy some treatment? He's clearly not getting any better in prison, after all. You might even want to take a shot at pleading not guilty by reason of insanity, even though that's very hard to win. In my mind, there's no doubt whatsoever that the guy has something seriously, deeply wrong with him. It just doesn't make sense to do what he's doing. At all. Third, does anyone else have a sense that we're spending (indeed, largely wasting) a massive, massive amount of money on Mr. Can't Stop Touching This Thing? It costs over $35,000/year, after all, to keep a high security inmate like him in prison, so we're basically going to spend over a million dollars to -- and this seems ironic -- keep him in a precisely the place that consistently impels him to reoffend.

Couldn't we do something like pay $200,000 to give him a nice condo -- with really good blinds -- and spend $100/month to get him all the porn cable channels and high speed internet access? Then do something good with the extra $800,000? Yeah, yeah, I know: We can't actually do that, of a whole series of good reasons. Still, it just seems bizarre to me that we're spending a million dollars to keep a guy in prison just so he can, well, spank some more in prison, at which point we give him additional years in prison. Am I the only one who finds that a little strange?

Fourth, if you really are an "institution" man, this seems like a pretty good way to stay in prison, eh? No need to stick a knife to Heywood's throat like Brooks did in The Shawshank Redemption. That could actually hurt someone. Just play with yourself in public. That'll do the trick. Perhaps even be more fun.

Finally -- and I hesitate to say this -- but given his history and offenses, I had to laugh at the guy's last name. Apropos, no?

The only think funnier would have been if his first name was Richard.

People v. Garcia (Cal. Ct. App. - Dec. 14, 2006)

I like this opinion by Justice Yegan a lot. It's very short (six double-spaced pages). It has a tone that you don't usually see in judicial opinions, and one that I think is appropriate -- at least in cases like this one. I think that in parts Justice Yegan may be a tiny bit naive, but overall, I really liked what I read.

Take the time. The opinion is definitely worth the five minutes it takes to read.

U.S. v. Juvenile Male (9th Cir. - Dec. 14, 2006)

I always knew that forfeiture and in rem actions were captioned by the name of the property; for example, U.S. v. $23,865 (and the like). But, for people, I always thought we either used their initials or gave them a fictitious name; e.g., U.S. v. B.E, or U.S. v. John Doe. But then I read this case.

Which is fine. But I wonder where it stops? What's next? U.S. v. Slightly Overweight Man Who Really Needs a Shower and Can't Run a Seven Minute Mile?

Wells Fargo Bank v. BCBU (Cal. Ct. App. - Oct. 27, 2006)

Faculty meetings are amongst the worst part of this job. And today's rare mid-week faculty meeting has put me in an exhausted, sleep-deprived funk.

So I thought I'd harken back to this case. Which just proves that -- as in faculty meetings -- sometimes it's best to keep your mouth shut. Lest you be proven to be even more of a fool than everyone already thinks you are.

Here's the entirety of the amendment that Justice Bedsworth adds to his opinion. Undoubtedly to the chagrin of attorney Kevin Monson -- a double BYU graduate (with a prior public reproval) -- who filed the petition for rehearing and who likely wishes that he hadn't:

"In a late petition for rehearing, B.C.B.U. raises a new argument, that section 9403 does not apply because it became operative on July 1, 2001, after the December 2000 assignment to Wells Fargo. Unfortunately, like the petition for rehearing which raised it for the first time, it comes too late (the petition for rehearing was 7 days late). An argument may not be raised for the first time in a petition for rehearing. (See, e.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Moreover, section 9403 is based on former section 9206 (set out in footnote 6 above), and the former rule was the same as the present one, that is, a waiver of defenses against an assignee is enforceable save for defenses good against a holder in due course.”

Short, sweet, and to the point. And harsh, but in a nice(ish) way.

U.S. v. Luong (9th Cir. - Dec. 12, 2006)

Two interesting things about this case.

First, although the opinion only parenthetically refers to it, the facts of the case involve something that I don't recall having seen before: The "different sovereign" exception to the Double Jeopardy Clause being employed by the government to circumvent an adverse search and seizure ruling. Here, the defendant gets indicted in a California state court on a drug charge, but the state trial court court holds that the warrant wasn't supported by probable cause (and the good faith exception didn't apply), so suppresses the evidence, and the California Court of Appeal affirms. At which point the U.S. responds by indicting the defendant in federal court, on the basis of the same evidence that had been suppressed in state court, and asking the federal court to allow it in even though the state court hadn't. No privity, after all (or at least allegedly), so res judicata doesn't apply.

Neat trick, huh?

Second, Judge Tevrizian suppresses the evidence again, and the government appeals to the Ninth Circuit. At which point the panel -- which consists of Judges Fletcher, Ferguson, and Callahan -- has to decide whether to suppress. Remember, the state trial court, the state appellate court, and the district court have all held that the evidence was unlawfully seized. As, in the end, does the majority. But one judge dissents. Can you guess who it is?

I think you can. Not that s/he doesn't make some tolerable points. But I think that the majority -- and all the other judges -- are nonetheless correct.

Rarely do you see a judge on the Ninth Circuit be a fair piece more right-of-center than the California state court in a criminal case. But it happens here. So it's memorable.

U.S. v. Peters (9th Cir. - Dec. 12, 2006)

Check out the final paragraph of this (very short) per curiam opinion.

Can you really increase the sentence of a criminal defendant on appeal when the United States hasn't cross-appealed? I didn't think you could, and would have been pretty confident that I was right. Though that's precisely what the court -- without virtually any substantive analysis -- does here.

I'm pretty sure that increasing a criminal sentence on appeal is very different from the two cases the court cites in support of doing so. The first case reduced a criminal sentence on appeal by striking a conspiracy conviction that violated double jeopardy -- an issue that the defendant raised on appeal. That's worlds apart from unilaterally increasing a sentence when the U.S. doesn't appeal. The second involved a civil action in which the court again reduced a judgment, yet again on the basis of an argument raised by the defendant on appeal. That one's a galaxy apart from what the court does here.

Sure, it's only another week or two in prison for the defendant. But it's still weird (and, for Mr. Peters, not fun at all). I don't recall seeing something like this before. And it seems wrong to me.

POSTSCRIPT - I was interested enough in this case to look at it a bit more this afternoon. And, indeed, the Court of Appeals can't do this -- or at least I'm pretty darn sure it can't. So I don't think that last sentence will (or should) be around for long.

S.J. v. Issaquah School Dist. No. 411 (9th Cir. - Dec. 11, 2006)

Shucks. I spent all that time during the last week writing the final exam for my Civil Procedure class, which was given to the students at 8:30 a.m. this morning. And then, one hour later, the Ninth Circuit publishes a single opinion for the day: this one. Which, had they published it on Friday, would have saved me a ton of time. Since it's a great final examination in its own right, and concerns whether, in an action arising under federal law in which a federal court borrows the state statute of limitations, the court also borrows the state's time period for service of process as well.

Erie. Rules 3 and 4(m). Federal common law. All the good stuff. It would have been an excellent exam.

To make things even more interesting, it's an exam that Chief Judge Lasnik (up in the Western District of Washington) flunked. But Judge Rymer sets him right. And writes an opinion that gets an A.

Carson v. Billings (9th Cir. - Dec. 8, 2006)

Did you know that the reasonable rate for the typical, very experienced civil rights lawyer in Montana is a mere $150/hour? Indeed, that extremely experienced employment attorneys in Big Sky Country typically charge only $125, $130, and $140/hour? I definitely did not.

That's nonetheless what I learned from this case. Which affirmed a decision by the district court that rejected the effort by plaintiff's counsel to obtain a reasonable hourly fee of between $195-$205/hour after successful prosecution of a federal sex discrimination claim against the Billings, Montana Police Department.

I know many lawyers in Southern California who wouldn't take a dump for $150/hour. Much less for $125/hour. Indeed, I know several paralegals who are billed out at more.

Surprising. But I guess markets are markets. You learn something new every day.

Montana ain't California. 'Nuff said.

Citizens to Save California v. FPPC (Cal. Ct. App. - Dec. 8, 2006)

Citizens to Save California vs. The California Fair Political Practices Commission. With Governor Arnold Schwarzenegger intervening to join the battle against the FPPC.

Arnold and Citizens to Save California win. And Justice Raye affirms. Holding that the FPPC didn't have the statutory power to close a loophole that allowed candidates to circumvent the Political Reform Act by using "ballot measure" committees controlled by the candidate to amass election contributions.

California is saved. Let the celebration begin.

People v. Russell (Cal. Ct. App. - Nov. 21, 2006)

What a boring, lazy day. Not for me, mind you: I was busy as a beaver preparing my Civ Pro exam. Not as busy as my students who were studying for the exam, most likely, but still busy. But a boring, lazy day for the appellate judiciary in California. Only one published opinion by the Ninth Circuit and two published opinions by the California Court of Appeal. None of which are at all scintillating. Sadly.

So my mind wandered back to this case from a couple of weeks ago. Which is a rarity. Because it is exceptionally unusual for me to read an appellate opinion and think: "Hey, you know, I think that the defendant is actually innocent." Cold record. Viewed in the light most favorable to the prosecution. All that stuff. Plus the fact that I'm pretty sure that most of the people convicted by a jury are, in fact, guilty.

But -- and, believe me, this stunned me as much as anyone else -- I really did think when I read this opinion that Phillip Russell was, in fact, probably innocent of the offense. Or, at a minimum, that there was totally reasonable doubt as to whether he was guilty.

You'll have to read the entire opinion for yourself to see if I'm crazy. Which I admit is a distinct possibility. But basically the case involves a homeless guy (Phillip Russell) who stumbles across a broken-down, non-working motorcycle that's leaning against a chain link fence next to some trash cans at the back of a motorcycle repair shop. Russell figures the owner has abandoned it -- probably because the cost to fix the chopper is more than it's worth -- so he takes it; after all, the cycle is next to the trash cans, and the shop doesn't leave the motorcycles it's fixing out at night. Moreover, the motorcyle both doesn't work and has registration tags that have expired almost two years previously.

Three weeks later, cops doing a routine sweep of a homeless camp stumble upon the chopper (which, from checking the tags, they learn has been reported stolen) next to a tent. Russell enters the camp shortly thereafter, and one of the cops asks Russell whose bike it is, and Russel says "Mine." So after they cuff and Mirandize him, Russell -- who's eager to talk -- tells them the story about how he found the bike. He also says that, shortly after he got the bike, we was stopped by a cop for a traffic violation and told that earlier cop the whole story as well; at that point, the bike hadn't even been reported stolen. And the earlier cop pretty much confirms this testimony. Moreover, the day after being stopped, Russell -- who had now obtained the owner's registered address from the cop -- shows up at the apartment building listed on the registration to try to get the "owner" to sign over the pink slip for the "abandoned" chopper. But registered owner hasn't lived there for 18 months, so Russell strikes out. All of these events are confirmed by the testimony of the apartment manager, who talked to Russell that day and who was the one who told Russell that the owner didn't live there anymore.

That's basically it. So what do you think? To me, the stuff that Russell did -- finding the bike where and how he did, looking for the registered owner, fixing it up, etc. -- are totally consistent with his (entirely reasonable) story about thinking the bike was abandoned. But the court doesn't instruct on a reasonable "mistake of fact" (or "claim of right") defense, and so on the instructions that are given, Russell is found guilty of felony receipt of stolen property. Moreover, although he's given time served, at that point, he's already spent a year-plus in jail; because, as you might have figured, this homeless guy can't make bail.

So I really do think that this guy sounds totally innocent; or, at a minimum, that no reasonable jury could have found (on proper instructions) that there was no reasonable doubt. There is just way, way too much evidence corroborating Russell's (entirely reasonable) story. Parenthetically, not only do I think that an innocent man might well have spent over a year in prison, but I also find it somewhat appalling that the Attorney General argued that the error here was harmless because the evidence showed that Russell was clearly guilty beyond a reasonable doubt. What an utter crock. Justice McAdams properly rejects that argument, and reverses the conviction, but I would have been much harsher about this argument. Which I don't find at all plausible, or even the slightest bit funny.

So that was my take. As I said, I'm no softie, and don't usually think we're dealing with innocent people on appeal. But this case is different. See whether or not you agree.

Williams v. Costco Wholesale Corp. (9th Cir. - Dec. 6, 2006)

Three points about this case.

First, it proves how even fairly intelligent judges can make simple -- but critical -- mistakes even on largely straightforward civil procedure issues. Here, Williams files a state court class action against Costco, which removes based upon federal question jurisdiction. Williams then amends to drop the federal claims (and adds some additional state claims), but the amended complaint also makes clear that diversity jurisdiction exists. Williams moves to remand, and Judge Jones does so. Which, as the Ninth Circuit per curiam opinion rightly holds, constitutes error. You can't do that if there's diversity jurisdiction, even if the presence of such jurisdiction only became clear post-removal (i.e., as a result of the amended complaint). You don't make the defendant file two removals, including one when the case is already in federal court. The first removal is good enough, and the district court can't remand even after the federal claims are dropped because there's original (diversity) jurisdiction.

Exactly right.

Second, the case also proves (1) how long even easy federal civil appeals take in the Ninth Circuit, and (2) as a result of (1), how important it is for both judges and lawyers to get these things right in the first place. The suit here (judging from its state docket number) was filed in state court way back in 2002. The appeal was filed in 2003. It's now the very end of 2006. And only now is the case even getting back to federal court. So it will be 2007 before the lawsuit returns to the district court. And so even five years after the lawsuit was filed, we're essentially back to the first 30 days of the case as far as the federal system is concerned. For a totally simple appeal in which the panel basically writes: "This is easy. Totally wrong. Duh. Reversed."

Five years of delay based upon a simple procedural mistake. Which highlights (1) how long civil appeals take in the Ninth Circuit (even easy ones), as well as (2) the substantial benefit to lawyers -- and their clients -- of taking the time to think about and understand civil procedure issues at the outset of the litigation. The five-year delay here could almost certainly have been avoided had plaintiff either (1) gone ahead and figured out he was stuck in federal court to begin with, and been happy there, or, if possible, (2) left out the federal claims (and made sure that diversity jurisdiction didn't exist, perhaps by finding a different class representatives) at the outset. But that didn't happen. Hence the five years of wasted time, as well as lots of lost effort and money. A telling tale.

Finally, with all due respect to my friends on the Ninth Circuit, can we perhaps speed things up a bit? Sure, I know we're currently blaming the Clerk/workload/Congress/whatever for the three-year delay between filing the appeal and the oral argument. But what about the delay here post-oral argument? The appeal was, after all, totally easy; indeed, the panel not only wrote a per curiam opinion, but also (harshly) called the district court's interpretation "nonsensical". With such an easy case, should it really take four months -- from August 16 to December 6 -- to crank out the four paragraph opinion here? I mean, a month a paragraph: should it really take that long?

Sure, they were fine paragraphs. But I think that we could have probably finished this one a little faster.

Just trying to help.

Calvert v. County of Yuma (Cal. Ct. App. - Dec. 5, 2006)

I can't believe that I slogged through the 36-page opinion in this case even after I read the following opening paragraph:

"This appeal involves the Surface Mining and Reclamation Act of 1975. (SMARA; Pub. Resources Code, § 2710 et seq.) Our principal conclusion is that if an entity claims a vested right pursuant to SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine, that claim must be determined in a public adjudicatory hearing that meets procedural due process requirements of reasonable notice and an opportunity to be heard. We give this conclusion limited retroactive effect. We shall affirm the judgment with certain modifications."

But I did. And my brain still hurts.

There's 30 minutes of my life I'll never get back.

Doe v. Kamehameha Schools (9th Cir. - Dec. 5, 2006)

Sometimes the composition of the en banc court doesn't especially matter (see, e.g., here), or the votes aren't entirely predictable (see, e.g., here).

But then there are cases like this one. And, boy, what a case. The question is whether preferences for Native Hawaiian students discriminate on the basis of race in violation of 42 U.S.C. sect. 1981. Judge Bybee wrote a panel opinion (which I discuss here) concluding that they might, and to the shock of no one, the Ninth Circuit voted to take the case en banc.

At which point the en banc court votes 8-7 to uphold the preferences. In a series of opinions that spans 100-plus (single-spaced) pages and that contains a majority opinion, a concurrence, and four separate dissents.

Judge Graber writes the majority opinion, and does so both colorfully and with a distinct sense of history. And Judge Bybee -- who authored the very well-written panel opinion -- reprises this role in the principal dissent.

Everyone does a very good job here of articulating their distinct vision. In the end, however, it's a case where one need merely count the votes. And in which the draw made a huge difference. The eight-member majority consists entirely of Carter and Clinton appointees (interestingly, each of the three of the remaining active Carter appointees -- Schroeder, Pregerson, and Reinhardt -- were on the panel). By contrast, the seven dissenters were almost exclusively Republican appointees: both of the remaining active Reagan appointees (Kozinski and O'Scannlain) as well as both of the remaining active Bush I appointees (Rymer and Kleinfeld) were on the panel, and they were joined by a couple of Bush II appointees. So there was a sharp -- and very predictable -- ideological split here, with the only exception being Judge Tallman's decision to join the dissent.

So a very close 8-7 vote in which the draw made a huge difference.

Parenthetically, I very much agree with Judge Kozinski when he says, on page 109, that "the question is close and ours may not be the last word." I wouldn't at all be surprised to see the Supreme Court take this one up.

U.S. v. Tuff (9th Cir. - Dec. 4, 2006)

All of my friends with boatloads of valuable stock options -- and there are, surprisingly enough, an increasing number of them -- should read this opinion by Judge Goodwin. Which involves how the Ninth Circuit will tax nonqualified stock option compensation.

Be forewarned, however: You're not going to like the answer.

Oaks Management Corp. v. Superior Ct. (Cal. Ct. App. - Nov. 30, 2006)

There's no way in the universe I'm going to comment extensively upon this opinion. Yes, it's an interesting case involving the disqualification of a prominent San Diego law firm for conflict reasons. Yes, it's got some interesting facts, and players, and doctrine. Yes, it's significant, particularly for those of us who teach and opine -- not to mention care -- about professional responsibility issues.

But my own conflicts are simply too great. Not that I'm connected to (or had even heard about) this lawsuit, which involves a condo conversion project in Fallbrook. That's not the problem. It's instead that the matter (1) involves the diqualification of a law firm with huge USD ties (Thorsnes Bartolotta McGuire); (2) arises out of a $1,000,000-plus loan made by MTT Partners (which, I believe, is part of a substantial planned gift to USD) to the plaintiff; (3) concerns a disqualification motion won by two USD Law School graduates (Donald English and Christy Yee) against another USD Law School graduate (Daral Mazzarella); and (4) arose before a trial judge (Judge Enright) before whom I'm shortly scheduled to appear.

So I ain't gonna touch this one with a ten foot pole.

Except, perhaps, to say two brief things. First, I think that Justice McConnell's opinion adopts the right approach and attitude to disqualification motions; practical, reasonable, sensible, and balanced. That's something I definitely like. Second, the list of counsel includes a "Brendan E. Ozanne". However, doesn't Brandan's middle name actually begin with a "K"? I think it does.

In Re K.W. (Cal. Ct. App. - Nov. 21, 2006)

No published opinions by the California Court of Appeal today. Not a single published opinion by the Ninth Circuit either.

I didn't know that today was a three-day holiday weekend. Or has everyone in the judiciary just decided that the first day of December is a freebie?

The break nonetheless does allow me to go back and write about a couple of cases in the last couple of weeks that I had brief thoughts about but which nonetheless did not mention. Like this one.

You know there's utterly nothing good -- nothing at all -- that's going to come out of a fact pattern that includes this paragraph:

"In late February 2004 Tabitha, then 14 years old, gave birth to K.W. A day after the birth, Tabitha tested positive for marijuana metabolites. Tabitha was not responsive to the newborn; hospital staff had to wake up Tabitha to feed K.W., and once awakened, she soon went back to sleep even though the baby continued to cry. As a result, a nurse had to feed the baby."

A case from San Diego. How depressing.