Slim pickings today.
Two published opinions from each tribunal. One Ninth Circuit opinion about dolphin-safe tuna and a dispute regarding exactly how safe we're talking. One opinion from the Ninth Circuit about a three-strikes habeas case that reads a little weirdly -- in particular, like the opinion is written by a senior district court judge from Connecticut. Which it is. Different lingo. Then one (belatedly published) opinion by Justice Rothschild that affirms the grant of summary judgment against a firefighter who lost part of his leg in a work-related injury and then alleged that he was discriminated against on the basis of his injury.
The unifying theme of all the cases today is sadness. Dying dolphins. A firefighter who lost his lower leg. An 82-year old man sentenced to 25 years in prison under the Three Strikes law for shoplifting $100 worth of tools from Home Depot.
And then, in this case, a dot-com winner -- David Hayden -- who founded an e-mail ISP (Critical Path), went public, rode the bubble, had shares worth $200+ million, and then saw the shebang pop when he lost his money, his wife, and ultimately incurred a $28 million+ judgment brought by his former brokerage firm. That's now affirmed by the Court of Appeal.
I guess if you want an uplifting story, neither the evening news nor the advance sheets are the place to go.
Friday, April 27, 2007
Thursday, April 26, 2007
Troppman v. Valverde (Cal. Supreme Ct. - April 26, 2007)
Yet another reason not to drink and drive. Or even drink and pass out (or sleep) in your car thereafter.
Wednesday, April 25, 2007
People v. Perrusquia (Cal. Ct. App. - April 25, 2007)
Hmmm. I admit that this one is close. But I think that I agree with Justice Bedsworth's dissent more than I do with Justice Moore's majority opinion (even as supported by Justice O'Leary's concurrence).
My dissent probably wouldn't be filled with as much rhetoric as the first couple of pages of Justice Bedsworth's dissent. Not only because my writing style is a bit different than Justice Bedsworth's -- mind you, as I've often said, I like many of his opinions, and his style often appeals to me -- but also because, in my mind, this isn't the case to go off the deep end about how we need to give the police free reign. It's a close case. This may well be an unconstitutional seizure. It's not a setting in which I would want to wax poetic about how critical it is that we allow the police to grab up every 30-something Hispanic that they sense might possibly be thinking about committing some sort of crime.
That said, on the merits, the police saw Perrusquia sitting in his idling car, crouched low in the driver's seat, around midnight in front of a 7-11 in a high-crime area in Anaheim. Earlier that day, at roll call, the police had been briefed about a series of six armed robberies at 7-11 stores in Anaheim. Perrusquia sat in his idling car for a minute or so -- which is a little weird -- crouched down, and he had parked his car not in the spots nearest to the 7-11 (and plenty of them were empty), but rather in the spot closest to the exit. Finally, when the police officers eventually started to approach the car, they heard "some sort of fumbling" noises and then heard something drop to the floor of the car with a "thud". And then Perrusquia immediately got out of the car once he saw the police and "aggressively and quickly" tried to pass the officers.
Given all of that, I think there was sufficient reasonable suspicion to conduct a Terry stop. At which point, by the way, they found a loaded 9 millimeter in Perrusquia's waistband. And, thereafter, a loaded .22 in the same waistband, plus some meth in his pocket. P.S. - Perrusquia's a prior felon as well.
Close. But, to me, the circumstances, as a whole, were enough to justify a brief patdown. I'd call it good police work. I wouldn't have suppressed.
My dissent probably wouldn't be filled with as much rhetoric as the first couple of pages of Justice Bedsworth's dissent. Not only because my writing style is a bit different than Justice Bedsworth's -- mind you, as I've often said, I like many of his opinions, and his style often appeals to me -- but also because, in my mind, this isn't the case to go off the deep end about how we need to give the police free reign. It's a close case. This may well be an unconstitutional seizure. It's not a setting in which I would want to wax poetic about how critical it is that we allow the police to grab up every 30-something Hispanic that they sense might possibly be thinking about committing some sort of crime.
That said, on the merits, the police saw Perrusquia sitting in his idling car, crouched low in the driver's seat, around midnight in front of a 7-11 in a high-crime area in Anaheim. Earlier that day, at roll call, the police had been briefed about a series of six armed robberies at 7-11 stores in Anaheim. Perrusquia sat in his idling car for a minute or so -- which is a little weird -- crouched down, and he had parked his car not in the spots nearest to the 7-11 (and plenty of them were empty), but rather in the spot closest to the exit. Finally, when the police officers eventually started to approach the car, they heard "some sort of fumbling" noises and then heard something drop to the floor of the car with a "thud". And then Perrusquia immediately got out of the car once he saw the police and "aggressively and quickly" tried to pass the officers.
Given all of that, I think there was sufficient reasonable suspicion to conduct a Terry stop. At which point, by the way, they found a loaded 9 millimeter in Perrusquia's waistband. And, thereafter, a loaded .22 in the same waistband, plus some meth in his pocket. P.S. - Perrusquia's a prior felon as well.
Close. But, to me, the circumstances, as a whole, were enough to justify a brief patdown. I'd call it good police work. I wouldn't have suppressed.
Fladeboe v. American Izuzu Motors (Cal. Ct. App. - April 25, 2007)
Sometimes amendments make a difference. For example, this one, which reads in its substantive entirety:
On page 19, in the first full paragraph beginning “The record demonstrates,” in the second sentence, insert the word “not” between the words “does” and “show.”
Oops!
On page 19, in the first full paragraph beginning “The record demonstrates,” in the second sentence, insert the word “not” between the words “does” and “show.”
Oops!
In Re Harbin (9th Cir. - April 25, 2007)
I think the Ninth Circuit comes out looking good on this one.
It's a bankruptcy case, and the question is whether the bankruptcy court should have approved the debtor's plan of reorganization. The case is particularly interesting because the debtor here is an attorney: John Allen Harbin (of Torrance). Moreover, the potential sticking part in Harbin's bankruptcy is the interesting fact that Harbin had been previously sued by another attorney, Jeffrey Adam Sherman (formerly of Beverly Hills), for breach of contract arising out of Harbin's 1996 purchase of Sherman's law practice; in particular, Sherman's "Tax Consulting Group". Harbin stopped paying Sherman, Sherman sued Harbin, Harbin defended the suit on grounds (inter alia) that Harbin wasn't personally liable for the judgment, Harbin lost, and a judgment of over $400,000 was entered against Harbin. At which point Harbin filed for bankruptcy.
Thereafter, however, the trial court vacated the judgment against Harbin, and Sherman appealed. And since there wasn't a judgment, Harbin proposes to pay off all his creditors with his assets and discharge the "debt" to Sherman (which, remember, is zero at this point, but subject to appeal) by paying nothing. Sherman says this isn't permissible because he'll get diddley if the plan is approved and he subsequently prevails on appeal. But the bankruptcy court approves the plan, holding (1) that the court had no discretion or ability to consider the pending appeal because the current value was zero, (2) the Rooker-Feldman doctrine would probhit the court from considering the merits of the pending appeal, and (3) that Sherman can always move to reconsider the approval of the plan in the event he prevails on appeal.
Shortly thereafter, the California Court of Appeal reinstates the judgment against Hardin personally. And the district court then vacates the bankruptcy court's approval of the plan. Hardin then appeals.
The Ninth Circuit, however, affirms. Correctly, in my mind. Judge Ikuta writes an opinion that makes very good sense to me. And even though Judge Cudahy, sitting by designation from the Seventh Circuit, partially dissents, I think that Judge Ikuta pens much better arguments than Judge Cudahy.
So Ninth Circuit 1, Seventh Circuit 0. At least for today.
P.S. -- There's lots of other interesting stuff about the participants in this lawsuit that Judge Ikuta leaves out of her opinion. To give but one example, the fact that Jeffrey Sherman has been repeatedly suspended from the California Bar, resigned from the Bar with charges pending, and not only pled guilty to conspiracy to commit bankruptcy fraud and tax evasion, but was sentenced to 32 months in prison as a result. Nice.
It's a bankruptcy case, and the question is whether the bankruptcy court should have approved the debtor's plan of reorganization. The case is particularly interesting because the debtor here is an attorney: John Allen Harbin (of Torrance). Moreover, the potential sticking part in Harbin's bankruptcy is the interesting fact that Harbin had been previously sued by another attorney, Jeffrey Adam Sherman (formerly of Beverly Hills), for breach of contract arising out of Harbin's 1996 purchase of Sherman's law practice; in particular, Sherman's "Tax Consulting Group". Harbin stopped paying Sherman, Sherman sued Harbin, Harbin defended the suit on grounds (inter alia) that Harbin wasn't personally liable for the judgment, Harbin lost, and a judgment of over $400,000 was entered against Harbin. At which point Harbin filed for bankruptcy.
Thereafter, however, the trial court vacated the judgment against Harbin, and Sherman appealed. And since there wasn't a judgment, Harbin proposes to pay off all his creditors with his assets and discharge the "debt" to Sherman (which, remember, is zero at this point, but subject to appeal) by paying nothing. Sherman says this isn't permissible because he'll get diddley if the plan is approved and he subsequently prevails on appeal. But the bankruptcy court approves the plan, holding (1) that the court had no discretion or ability to consider the pending appeal because the current value was zero, (2) the Rooker-Feldman doctrine would probhit the court from considering the merits of the pending appeal, and (3) that Sherman can always move to reconsider the approval of the plan in the event he prevails on appeal.
Shortly thereafter, the California Court of Appeal reinstates the judgment against Hardin personally. And the district court then vacates the bankruptcy court's approval of the plan. Hardin then appeals.
The Ninth Circuit, however, affirms. Correctly, in my mind. Judge Ikuta writes an opinion that makes very good sense to me. And even though Judge Cudahy, sitting by designation from the Seventh Circuit, partially dissents, I think that Judge Ikuta pens much better arguments than Judge Cudahy.
So Ninth Circuit 1, Seventh Circuit 0. At least for today.
P.S. -- There's lots of other interesting stuff about the participants in this lawsuit that Judge Ikuta leaves out of her opinion. To give but one example, the fact that Jeffrey Sherman has been repeatedly suspended from the California Bar, resigned from the Bar with charges pending, and not only pled guilty to conspiracy to commit bankruptcy fraud and tax evasion, but was sentenced to 32 months in prison as a result. Nice.
Tuesday, April 24, 2007
People v. Shadden (Cal. Ct. App. - April 24, 2007)
How can you not want to read this case? It's fun and interesting on so many different levels.
First, the sentence. Tom Shadden is angry at the mother of his children. Real angry. Not angry enough to do her personal harm. But, still, angry enough to do the equivalent of punching a wall. But instead of punching a wall, he takes out a gun and shoots her unoccupied car (and takes an ice pick to one of the tires).
N0t a good thing, obviously. What sentence would you impose? He's not shooting at anyone, mind you. Just whacking the car. Which, parenthetically, he and the mother jointly own. So he's basically whacking his (and his s.o.'s) own car. What the appropriate sentence?
Answer: 16 years in prison. Interesting, eh? Was that your call as well? Read the opinion for more. (Thomas obviously has an anger management problem, by the way. Duh.)
Second, the doctrine. Thomas gets convicted of, inter alia, violating Penal Code sect. 247(b), which penalizes a person from shooting at an unoccupied motor vehicle (or house). But Section 247(b) by its terms "does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner.” Thomas argues that since he's the co-owner of the vehicle, Section 247(b) does not apply, and that he can no more be convicted of shooting up his own vehicle under Section 247(b) than he can be convicted of burglarizing his own home.
I thought that this was an interesting argument. Ultimately, Justice Wiseman rejects this contention, and her analysis in this regard is fairly good. But, honestly, from what Justice Wiseman said in the opinion, it also sounded like counsel for Shadden (Laura Gordon, a U. Conn. Law graduate down here in Escondido) didn't do the greatest job in the world of briefing this point, and I'd have liked so see the issue explored a bit more.
Third, the transcript. Look, I occasionally drop the f-bomb myself. But I try hard to do so no more than, say, two or three times a sentence. By contrast, here's a partial transcript of what Shadden said -- as he was being tape recorded on the telephone in prison -- to the mother of his child as he attempted to encourage her to try to get the charges dropped: "You need to f***in call. I don’t give a f*** if you call right now. First thing in the f***in morning. . . . You got mad cause you heard I was there and I broke that f***in baby thing [] and you f***in went out and you f***ing had your f***in friend do it." And, a few minutes later: "“Tell ‘em you were f***in’ mad 'cause I was there half hour previous and you heard I smashed the f***ing thing like I did, you know, I was going to f***in lie, I broke the baby’s (inaudible) f*** it. Dang, you f***in had your friend shoot it up hey.”
I think the f-words were a nice touch, don't you? I mean, I was initially totally unclear as to what he was saying. But then once he said the f-word so many times, I totally understood. "What baby thing?", I initially asked myself. "Oh, yeah. The f***in baby thing! Now I understand! And I take it by your reference I'm to call the first thing in the f***ing morning. That's a little bit before the regular morning, no?"
Yep, that word adds a lot. I'm gonna try to use it a lot more than I do. Oh, yeah. And I'm also going to make sure that all of my attempts to feloniously dissuade a witness from testifying are made on a recorded phone line from prison. Notwithstanding all those huge signs that say "NOTICE: ALL TELEPHONE CALLS FROM THIS LINE MAY BE RECORDED." Yep. Definitely a good plan.
First, the sentence. Tom Shadden is angry at the mother of his children. Real angry. Not angry enough to do her personal harm. But, still, angry enough to do the equivalent of punching a wall. But instead of punching a wall, he takes out a gun and shoots her unoccupied car (and takes an ice pick to one of the tires).
N0t a good thing, obviously. What sentence would you impose? He's not shooting at anyone, mind you. Just whacking the car. Which, parenthetically, he and the mother jointly own. So he's basically whacking his (and his s.o.'s) own car. What the appropriate sentence?
Answer: 16 years in prison. Interesting, eh? Was that your call as well? Read the opinion for more. (Thomas obviously has an anger management problem, by the way. Duh.)
Second, the doctrine. Thomas gets convicted of, inter alia, violating Penal Code sect. 247(b), which penalizes a person from shooting at an unoccupied motor vehicle (or house). But Section 247(b) by its terms "does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner.” Thomas argues that since he's the co-owner of the vehicle, Section 247(b) does not apply, and that he can no more be convicted of shooting up his own vehicle under Section 247(b) than he can be convicted of burglarizing his own home.
I thought that this was an interesting argument. Ultimately, Justice Wiseman rejects this contention, and her analysis in this regard is fairly good. But, honestly, from what Justice Wiseman said in the opinion, it also sounded like counsel for Shadden (Laura Gordon, a U. Conn. Law graduate down here in Escondido) didn't do the greatest job in the world of briefing this point, and I'd have liked so see the issue explored a bit more.
Third, the transcript. Look, I occasionally drop the f-bomb myself. But I try hard to do so no more than, say, two or three times a sentence. By contrast, here's a partial transcript of what Shadden said -- as he was being tape recorded on the telephone in prison -- to the mother of his child as he attempted to encourage her to try to get the charges dropped: "You need to f***in call. I don’t give a f*** if you call right now. First thing in the f***in morning. . . . You got mad cause you heard I was there and I broke that f***in baby thing [] and you f***in went out and you f***ing had your f***in friend do it." And, a few minutes later: "“Tell ‘em you were f***in’ mad 'cause I was there half hour previous and you heard I smashed the f***ing thing like I did, you know, I was going to f***in lie, I broke the baby’s (inaudible) f*** it. Dang, you f***in had your friend shoot it up hey.”
I think the f-words were a nice touch, don't you? I mean, I was initially totally unclear as to what he was saying. But then once he said the f-word so many times, I totally understood. "What baby thing?", I initially asked myself. "Oh, yeah. The f***in baby thing! Now I understand! And I take it by your reference I'm to call the first thing in the f***ing morning. That's a little bit before the regular morning, no?"
Yep, that word adds a lot. I'm gonna try to use it a lot more than I do. Oh, yeah. And I'm also going to make sure that all of my attempts to feloniously dissuade a witness from testifying are made on a recorded phone line from prison. Notwithstanding all those huge signs that say "NOTICE: ALL TELEPHONE CALLS FROM THIS LINE MAY BE RECORDED." Yep. Definitely a good plan.
People v. Schnabel (Cal. Ct. App. - April 24, 2007)
Want to die in prison? Molest three little girls.
John Gary Schnabel did. And was sentenced to 375 years in prison. Oh, yeah. He's 71 years old.
Affirmed. And rightly so.
John Gary Schnabel did. And was sentenced to 375 years in prison. Oh, yeah. He's 71 years old.
Affirmed. And rightly so.
In Re Helen W. (Cal. Ct. App. - April 24, 2007)
Sometimes you can tell the result of a case from the first few words of an opinion. Even if they consist of a straightforward, and neutral, statement of the facts.
So, for example, take this case. Where (after the introduction) the first three sentences read as follows:
"Helen was almost three years old and her little brother Matthew was two months old when they were detained in March 2004. The police found Helen eating cigarettes and Matthew lying face down on a dirty blanket; the apartment had dirty laundry piled in every room and numerous lighters within reach of the children. The mother was arrested for being under the influence of methamphetamine."
Given this predicate, it's hardly a devastating surprise that the first and final sentences of the opinion are: "Jamie W. appeals from the termination of parental rights to her children. . . . The judgment terminating parental rights is affirmed."
So, for example, take this case. Where (after the introduction) the first three sentences read as follows:
"Helen was almost three years old and her little brother Matthew was two months old when they were detained in March 2004. The police found Helen eating cigarettes and Matthew lying face down on a dirty blanket; the apartment had dirty laundry piled in every room and numerous lighters within reach of the children. The mother was arrested for being under the influence of methamphetamine."
Given this predicate, it's hardly a devastating surprise that the first and final sentences of the opinion are: "Jamie W. appeals from the termination of parental rights to her children. . . . The judgment terminating parental rights is affirmed."
Monday, April 23, 2007
Seastrom v. Neways, Inc. (Cal. Ct. App. - April 23, 2007)
This afternoon was slightly more interesting than this morning. Or at least more active. Which is simply to say that some opinions were actually published.
That said, with all due respect to the trio of USD Law alums (Darren Quinn, Alexander Papaefthimiou, and Aubrey Boyd) who represented the plaintiff/appellant in this matter, I have to agree with Justice McConnell on this one. Which I can briefly summarize as standing for the following proposition: A person near the top of a pyramid scheme involving the sale of Product X isn't an adequate or proper representative of a putative class of purchasers of Product X, if for no other reason than that person is also a (virtually certain) defendant.
Sure, I can hypothosize exceptions to this rule. I'm a law professor, after all. But not here.
Sorry, my friends. Better luck next time.
That said, with all due respect to the trio of USD Law alums (Darren Quinn, Alexander Papaefthimiou, and Aubrey Boyd) who represented the plaintiff/appellant in this matter, I have to agree with Justice McConnell on this one. Which I can briefly summarize as standing for the following proposition: A person near the top of a pyramid scheme involving the sale of Product X isn't an adequate or proper representative of a putative class of purchasers of Product X, if for no other reason than that person is also a (virtually certain) defendant.
Sure, I can hypothosize exceptions to this rule. I'm a law professor, after all. But not here.
Sorry, my friends. Better luck next time.
Harper v. Poway Unified School Dist. (9th Cir. - April 23, 2007)
What a thrilling and fun-filled day. Only one published opinion, in total, from the California Court of Appeal and the Ninth Circuit. And that opinion, in its entirety, consists of the following:
"Pursuant to the instructions of the Supreme Court, plaintiff Tyler Chase Harper’s appeal is dismissed as moot."
Thrilling!
We'll see what the afternoon brings from the CCoA.
"Pursuant to the instructions of the Supreme Court, plaintiff Tyler Chase Harper’s appeal is dismissed as moot."
Thrilling!
We'll see what the afternoon brings from the CCoA.
Friday, April 20, 2007
Gonzalez v. Yes on 200 (9th Cir. - April 20, 2007)
This is a continuation of the challenge to Arizona's requirement that voters prove that they're a citizen (by presenting identification) before they're allowed to vote.
There were a lot of proceedings immediately prior to the November 2006 election; e.g., the district court's denial of a preliminary injunction, reversal by the Ninth Circuit, reversal again by the Supreme Court. The Ninth Circuit basically continues the lawsuit yet again by saying that the record should be developed further and that this process can effectively be done in time for the 2008 elections, and on that basis basically says that it doesn't matter whether the court grants or denies the preliminary injunction at this point, since a full record can be developed to decide whether to grant a final injunction.
I hated the first nine pages of the opinion, which was how long it took to print the caption. I thought that the next six pages were pretty reasonable, in which Chief Judge Schroeder basically articulated the "not deciding might be the best approach" argument and suggested that that's basically what she was doing.
And then I disliked the next four pages, which basically decided -- or at least put a definite spin on -- the issues at hand even though the opinion continued to insist that it wasn't really deciding them. Sure, you've allegedly got to decide the propriety of the denial of the injunction. But if you really want to do that without advancing one side or the other of the merits, you don't do what Chief Judge Schroeder does here. Sure, she leaves some real wiggle room on remand, and the development of a more replete record. But she's doing more than simply letting the case go forward without an adjudication of the merits. Much more.
Finally, I couldn't help thinking, as I read the case, about those famous words by Rush lyricist Neal Pert. Or, as might better be recalled by the more literate amongst us, the argument that "You can't be a neutral on a moving train." Which goes to the heart of the effort to be purportedly indecisive in the first place.
An interesting resolution.
There were a lot of proceedings immediately prior to the November 2006 election; e.g., the district court's denial of a preliminary injunction, reversal by the Ninth Circuit, reversal again by the Supreme Court. The Ninth Circuit basically continues the lawsuit yet again by saying that the record should be developed further and that this process can effectively be done in time for the 2008 elections, and on that basis basically says that it doesn't matter whether the court grants or denies the preliminary injunction at this point, since a full record can be developed to decide whether to grant a final injunction.
I hated the first nine pages of the opinion, which was how long it took to print the caption. I thought that the next six pages were pretty reasonable, in which Chief Judge Schroeder basically articulated the "not deciding might be the best approach" argument and suggested that that's basically what she was doing.
And then I disliked the next four pages, which basically decided -- or at least put a definite spin on -- the issues at hand even though the opinion continued to insist that it wasn't really deciding them. Sure, you've allegedly got to decide the propriety of the denial of the injunction. But if you really want to do that without advancing one side or the other of the merits, you don't do what Chief Judge Schroeder does here. Sure, she leaves some real wiggle room on remand, and the development of a more replete record. But she's doing more than simply letting the case go forward without an adjudication of the merits. Much more.
Finally, I couldn't help thinking, as I read the case, about those famous words by Rush lyricist Neal Pert. Or, as might better be recalled by the more literate amongst us, the argument that "You can't be a neutral on a moving train." Which goes to the heart of the effort to be purportedly indecisive in the first place.
An interesting resolution.
Thursday, April 19, 2007
Andersen v. WCAB (Cal. Ct. App. - April 19, 2007)
Sometimes it isn't hard to read between the lines. As amply revealed by the first three paragraphs of this opinion by Justice Coffee:
"John Andersen sustained industrial injuries while working for respondent City of Santa Barbara (City). Andersen filed a workers' compensation claim contending that City discriminated against him by forcing him to use vacation time rather than sick leave to obtain medical care for those injuries. (Lab. Code,1 § 132a.). . . .
On April 6, 2006, Board concluded that City did not violate the anti-discrimination provisions of section 132a, and therefore, Andersen is not entitled to restoration of the vacation time he used for such medical appointments.
Andersen petitioned this court for a writ of review. We summarily denied this petition and Andersen sought review in our Supreme Court. His petition to the Supreme Court raised only the issue of whether City violated section 132a. The Supreme Court granted the petition, and transferred the matter back to this court with directions to vacate our summary denial and issue a writ of review to be heard on calendar. We have done so.
We now conclude that City violated section 132a by requiring Andersen to use his earned vacation time rather than sick leave to attend medical appointments to care for his industrial injuries. We also conclude that Board properly applied SB 899, and substantial evidence supports the apportionment opinion of the AME."
In other words: "Oh, I'm sorry. Did I say that we summarily deny the writ? I meant, of course, that we grant the writ. Thanks for the head's up, California Supreme Court. Message heard and received."
"John Andersen sustained industrial injuries while working for respondent City of Santa Barbara (City). Andersen filed a workers' compensation claim contending that City discriminated against him by forcing him to use vacation time rather than sick leave to obtain medical care for those injuries. (Lab. Code,1 § 132a.). . . .
On April 6, 2006, Board concluded that City did not violate the anti-discrimination provisions of section 132a, and therefore, Andersen is not entitled to restoration of the vacation time he used for such medical appointments.
Andersen petitioned this court for a writ of review. We summarily denied this petition and Andersen sought review in our Supreme Court. His petition to the Supreme Court raised only the issue of whether City violated section 132a. The Supreme Court granted the petition, and transferred the matter back to this court with directions to vacate our summary denial and issue a writ of review to be heard on calendar. We have done so.
We now conclude that City violated section 132a by requiring Andersen to use his earned vacation time rather than sick leave to attend medical appointments to care for his industrial injuries. We also conclude that Board properly applied SB 899, and substantial evidence supports the apportionment opinion of the AME."
In other words: "Oh, I'm sorry. Did I say that we summarily deny the writ? I meant, of course, that we grant the writ. Thanks for the head's up, California Supreme Court. Message heard and received."
Rossco Holdings v. Bank of America (Cal. Ct. App. - April 19, 2007)
Want to see an example of doing equity? Then look at this opinion.
I like what Justice Croskey does here. And it takes a lot of work -- at least doctrinally -- to get there.
You could easily argue that Justice Croskey gets it wrong; that the arbitration proceeding is void because the order that sent it there was void (because the judge that sent it there was disqualified). There'd definitely be a lot of precedent and doctrine on your side.
But I nonetheless prefer, and find legitimate, Justice Croskey's view that the order is void, but not necessarily the result of the arbitration proceedings, so long as another (non-disqualified) judge subsequently finds that the matter should indeed have been ordered to arbitration. This result makes sense not only for efficiency and finality reasons, but (and, in my mind, more importantly) in order to prevent what Justice Croskey calls "gamesmanship"; e.g., avoiding an adverse result only after the result is clear, and on the basis of an objection that predated the proceeding and that did not substantially affect its results.
I'm a fan of doing equity, at least in certain situations. And I think this is one of them. Even though I know that reasonable minds might well disagree.
P.S. - I caught this right before I hit the publish button. I gotta apologize to Justice Croskey for previously calling him "Justice Crosky". I've done that before, and I was about to do it again. Sorry. My bad. No more errors in that regard by me. (My only defense, by the way, is that I'm far from the only one to have made that particular error. Indeed, the list of people who have misspelled Justice Croskey's name as "Justice Crosky" is a virtual who's who list. Senator Leahy did it in the Senate Judiciary Committee. The California Supreme Court did it in its official minutes. The Court of Appeal has itself done it; indeed, repeatedly. And at least I didn't misspell his name as "Crosskey". Unlike some. Still. Sorry about that. Won't happen again. Much.
I like what Justice Croskey does here. And it takes a lot of work -- at least doctrinally -- to get there.
You could easily argue that Justice Croskey gets it wrong; that the arbitration proceeding is void because the order that sent it there was void (because the judge that sent it there was disqualified). There'd definitely be a lot of precedent and doctrine on your side.
But I nonetheless prefer, and find legitimate, Justice Croskey's view that the order is void, but not necessarily the result of the arbitration proceedings, so long as another (non-disqualified) judge subsequently finds that the matter should indeed have been ordered to arbitration. This result makes sense not only for efficiency and finality reasons, but (and, in my mind, more importantly) in order to prevent what Justice Croskey calls "gamesmanship"; e.g., avoiding an adverse result only after the result is clear, and on the basis of an objection that predated the proceeding and that did not substantially affect its results.
I'm a fan of doing equity, at least in certain situations. And I think this is one of them. Even though I know that reasonable minds might well disagree.
P.S. - I caught this right before I hit the publish button. I gotta apologize to Justice Croskey for previously calling him "Justice Crosky". I've done that before, and I was about to do it again. Sorry. My bad. No more errors in that regard by me. (My only defense, by the way, is that I'm far from the only one to have made that particular error. Indeed, the list of people who have misspelled Justice Croskey's name as "Justice Crosky" is a virtual who's who list. Senator Leahy did it in the Senate Judiciary Committee. The California Supreme Court did it in its official minutes. The Court of Appeal has itself done it; indeed, repeatedly. And at least I didn't misspell his name as "Crosskey". Unlike some. Still. Sorry about that. Won't happen again. Much.
Wednesday, April 18, 2007
People v. Imram Q. (Cal. Ct. App. - April 18, 2007)
Yesterday I noted that the California Court of Appeal had amended a plethora of its opinions that day, and slightly complimented them for doing so -- or, at least, for being willing to amend.
Today, apparently emboldened, read -- in its entirety -- the following amendment by Justice Rubin:
"GOOD CAUSE appearing the opinion filed in the above entitled matter on April 9, 2007, is modified as follows:
On page 3, the amount of '$17,958.13' in the first full sentence shall be replaced with '$17,958';
On page 3, insert a new footnote at the end of the second to the last sentence in the first paragraph which shall now read:
The court therefore ordered appellant to pay Iaquinto $17,958.13 in additional restitution.3
Footnote 3 shall read as follows:
During the hearing, the parties sometimes discussed amounts of money in round figures, and sometimes to the exact penny. From those discussions, we cannot immediately discern the court’s reason for adding 13 cents, but we accept that addition because the court incorporated it into its final order.
(end of modification)
There is no change in judgment."
Wow. All that for 13 cents. And not even for 13 cents, since the judgment remains the same.
Next time, just call me. I'll pay the 13 cents and save the trees chopped down to publish the amendment.
Today, apparently emboldened, read -- in its entirety -- the following amendment by Justice Rubin:
"GOOD CAUSE appearing the opinion filed in the above entitled matter on April 9, 2007, is modified as follows:
On page 3, the amount of '$17,958.13' in the first full sentence shall be replaced with '$17,958';
On page 3, insert a new footnote at the end of the second to the last sentence in the first paragraph which shall now read:
The court therefore ordered appellant to pay Iaquinto $17,958.13 in additional restitution.3
Footnote 3 shall read as follows:
During the hearing, the parties sometimes discussed amounts of money in round figures, and sometimes to the exact penny. From those discussions, we cannot immediately discern the court’s reason for adding 13 cents, but we accept that addition because the court incorporated it into its final order.
(end of modification)
There is no change in judgment."
Wow. All that for 13 cents. And not even for 13 cents, since the judgment remains the same.
Next time, just call me. I'll pay the 13 cents and save the trees chopped down to publish the amendment.
People v. Montoya (Cal. Ct. App. - April 18, 2007)
Maybe we need to do a little more Westlaw training (or, perhaps, careful wordsmithing).
Footnote 8 of this opinion by Justice Benke says "Appellant concedes that the term taint hearing does not occur in Westlaw's databases, current California case law, California statutes or Witkin's California Criminal Law treatise." Except that I'm pretty sure that the term "taint hearing" -- a phase that's used all the time by various practitioners (e.g., in criminal wiretap and child abuse cases) -- does indeed appear in Westlaw's databases, including over 200 times in the ALLCASES file. Plus, the Supreme Court has used the term before (in the electronic surveillance context) and the Ninth Circuit has done so repeatedly, in both the child abuse and wiretap areas, in both published and unpublished cases.
So I might delete the reference to Westlaw in the footnote. (Though the rest, as far as I can tell, is correct. We apparently don't use that term as much here in California as elsewhere, even though many many other states use it, and it also appears in CJS as well as in a wide variety of other treatises.)
Regardless, the term's now been used in a California case, right? Thanks, Justice Benke. Even though, in truth, I'm not all that fond of the term "taint".
Footnote 8 of this opinion by Justice Benke says "Appellant concedes that the term taint hearing does not occur in Westlaw's databases, current California case law, California statutes or Witkin's California Criminal Law treatise." Except that I'm pretty sure that the term "taint hearing" -- a phase that's used all the time by various practitioners (e.g., in criminal wiretap and child abuse cases) -- does indeed appear in Westlaw's databases, including over 200 times in the ALLCASES file. Plus, the Supreme Court has used the term before (in the electronic surveillance context) and the Ninth Circuit has done so repeatedly, in both the child abuse and wiretap areas, in both published and unpublished cases.
So I might delete the reference to Westlaw in the footnote. (Though the rest, as far as I can tell, is correct. We apparently don't use that term as much here in California as elsewhere, even though many many other states use it, and it also appears in CJS as well as in a wide variety of other treatises.)
Regardless, the term's now been used in a California case, right? Thanks, Justice Benke. Even though, in truth, I'm not all that fond of the term "taint".
U.S. v. Murphy (9th Cir. - April 18, 2007)
I always find it fascinating how the judiciary deals with loopholes; e.g., methods that attempt to circumvent what are otherwise clear rules.
For example, take this case. Federal Rule of Civil Procedure 31 doesn't allow you to waive the right to a unanimous jury. It doesn't matter if you're fine with an 11-1 verdict; presumably, because you believe that the 11 are on your side and the 1 against. You still can't stipulate to it. Society wants (and has an interest) in unanimity, and hence demands it. You can't stipulate to it at trial (or during deliberations) and you can't stipulate to it beforehand. You just can't do it.
Federal Rule of Civil Procedure 23(b), however, does permit you to stipulate to a jury of less than 12. So, for example, you can clearly start the case with, say, 11 jurors. And if they decide, unanimously, one way or the other, the verdict is valid.
So those are the rules. Which brings us to the issue at hand.
Say that -- and, as you might imagine, this is not merely a hypothetical -- the jury sends out a note that says they're deadlocked at 11-1. You can't stipulate to accept that verdict, since that would clearly violate Rule 31. But can you nonetheless stipulate to dismiss the one juror, and then promptly accept the resulting 11-0 verdict, pursant to Rule 23? To put it another way, can you accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31?
I'll leave you in suspense as to the proper answer. I think that Judge Clifton (who writes the majority opinion) does a good job of articulating his view, and that Judge Gibson -- who's sitting by designation from the Eighth Circuit and who dissents -- does a fairly mediocre job of articulating the contrary view.
Regardless, I like the query. I'm a guy who very much likes legal puzzles and creative legal thinking and the like, and who enjoys (and appreciates) both "playing the game" as well as figuring out ways around seemingly insurmountable obstacles. Nonetheless, as a policy -- and textual -- matter, that doesn't mean that I believe that the judiciary should let me get away with my attempts to do so. So I think this is a pretty good test case for how one should respond to the use of "loopholes" of this type.
It's a neat little puzzle. I like it.
For example, take this case. Federal Rule of Civil Procedure 31 doesn't allow you to waive the right to a unanimous jury. It doesn't matter if you're fine with an 11-1 verdict; presumably, because you believe that the 11 are on your side and the 1 against. You still can't stipulate to it. Society wants (and has an interest) in unanimity, and hence demands it. You can't stipulate to it at trial (or during deliberations) and you can't stipulate to it beforehand. You just can't do it.
Federal Rule of Civil Procedure 23(b), however, does permit you to stipulate to a jury of less than 12. So, for example, you can clearly start the case with, say, 11 jurors. And if they decide, unanimously, one way or the other, the verdict is valid.
So those are the rules. Which brings us to the issue at hand.
Say that -- and, as you might imagine, this is not merely a hypothetical -- the jury sends out a note that says they're deadlocked at 11-1. You can't stipulate to accept that verdict, since that would clearly violate Rule 31. But can you nonetheless stipulate to dismiss the one juror, and then promptly accept the resulting 11-0 verdict, pursant to Rule 23? To put it another way, can you accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31?
I'll leave you in suspense as to the proper answer. I think that Judge Clifton (who writes the majority opinion) does a good job of articulating his view, and that Judge Gibson -- who's sitting by designation from the Eighth Circuit and who dissents -- does a fairly mediocre job of articulating the contrary view.
Regardless, I like the query. I'm a guy who very much likes legal puzzles and creative legal thinking and the like, and who enjoys (and appreciates) both "playing the game" as well as figuring out ways around seemingly insurmountable obstacles. Nonetheless, as a policy -- and textual -- matter, that doesn't mean that I believe that the judiciary should let me get away with my attempts to do so. So I think this is a pretty good test case for how one should respond to the use of "loopholes" of this type.
It's a neat little puzzle. I like it.
Tuesday, April 17, 2007
People v. Kaplan (Cal. Ct. App. - April 17, 2007)
One good thing about the California Court of Appeal is that it's generally willing to amend its opinions in order to respond to arguments contained in petitions for rehearing. The Ninth Circuit generally does the same thing, but some days, there are lots and lots of California Court of Appeal opinions that do nothing except slightly modify the previous opinion.
Like today. First, after dropping the bombshell on Mayor Villaraigosa, the Court of Appeal modified this opinion. Then, this afternoon, it modified this one. Then this one.
Then, around quitting time, it modified this one. And then, in its final act of the day, it modified this one.
Five amendments in five separate opinions day. Not something you see every day. I guess today was "respond to rehearing petitions" day as well as (belated) Tax Day.
P.S. - Mine got mailed. Promptly at 9:45 p.m.
Like today. First, after dropping the bombshell on Mayor Villaraigosa, the Court of Appeal modified this opinion. Then, this afternoon, it modified this one. Then this one.
Then, around quitting time, it modified this one. And then, in its final act of the day, it modified this one.
Five amendments in five separate opinions day. Not something you see every day. I guess today was "respond to rehearing petitions" day as well as (belated) Tax Day.
P.S. - Mine got mailed. Promptly at 9:45 p.m.
Murphy v. Kenneth Cole Productions (Cal. Supreme Court - April 16, 2007)
Yet another good reason to have live-client, robust civil clinics. Because sometimes you get to argue the case in front of the California Supreme Court.
Congratulations to Donna Ryu (who's on the adjunct clinical faculty at Hastings) for both taking the case and for prevailing in the California Supremes.
P.S. - Arguing in the California Supremes is much more fun than doing my taxes, which I've yet to finish. Yikes.
Congratulations to Donna Ryu (who's on the adjunct clinical faculty at Hastings) for both taking the case and for prevailing in the California Supremes.
P.S. - Arguing in the California Supremes is much more fun than doing my taxes, which I've yet to finish. Yikes.
Monday, April 16, 2007
Sanchez v. County of San Diego (9th Cir. - April 16, 2007)
Time for a quiz. Two questions. One hard. One easy. The former's multiple choice. The latter's fill in the blank.
Easy one first:
(1) Which of the following groups wrote and signed on to the snippet that follows, which is the first paragraph of a dissent from the denial of rehearing en banc:
"I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wyman to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance."
(A) Judge Pregerson, joined by Judges Reinhardt, Wardlaw, W. Fletcher, Fisher, Paez, and Berzon. Or
(B) Judge O'Scannlain, joined by Judges Rymer, Clifton, Bybee, Callahan, and Bea.
You should feel shame -- serious shame -- if you get that one wrong. Oh, by the way, here's the final paragraph of that dissent:
"This case is nothing less than an attack on the poor. San Diego’s program strips these individuals of their rights of privacy. These people who are already suffering from disabilities, loss of work, and other hardships must then suffer humiliation and further assaults on their dignity. This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving
subsidies. They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government benefits are not the poor, and yet this is the group we require to sacrifice their dignity and their right to privacy. This situation is shameful. This case should have been considered by the en banc court, and it should have been reversed."
Got it now?
Here's a tougher one, and the true test of your Ninth Circuit prowess:
Fill in the blank. Someone wrote the following separate dissent from the denial of rehearing en banc, which, in its entirety, reads as follows: "I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent." That someone is Judge ______.
Hint: Trenchant.
Here are the answers.
Interesting case. Very.
Easy one first:
(1) Which of the following groups wrote and signed on to the snippet that follows, which is the first paragraph of a dissent from the denial of rehearing en banc:
"I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wyman to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance."
(A) Judge Pregerson, joined by Judges Reinhardt, Wardlaw, W. Fletcher, Fisher, Paez, and Berzon. Or
(B) Judge O'Scannlain, joined by Judges Rymer, Clifton, Bybee, Callahan, and Bea.
You should feel shame -- serious shame -- if you get that one wrong. Oh, by the way, here's the final paragraph of that dissent:
"This case is nothing less than an attack on the poor. San Diego’s program strips these individuals of their rights of privacy. These people who are already suffering from disabilities, loss of work, and other hardships must then suffer humiliation and further assaults on their dignity. This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving
subsidies. They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government benefits are not the poor, and yet this is the group we require to sacrifice their dignity and their right to privacy. This situation is shameful. This case should have been considered by the en banc court, and it should have been reversed."
Got it now?
Here's a tougher one, and the true test of your Ninth Circuit prowess:
Fill in the blank. Someone wrote the following separate dissent from the denial of rehearing en banc, which, in its entirety, reads as follows: "I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent." That someone is Judge ______.
Hint: Trenchant.
Here are the answers.
Interesting case. Very.
Sea Hawk Seafoods v. Exxon Corp. (9th Cir. - April 16, 2007)
Yet another case arising out of the Exxon Valdez tragedy. This lawsuit, however, is largely over at this point, and the only issue relates to the appropriate rate of prejudgment interest.
(You gotta love it, by the way, if you're the plaintiff and the case is so huge that a one percent dispute over prejudgment interest is worth an entire appeal.)
Not only does plaintiff win the appeal, but Judge Graber has a funny paragraph that lightly jabs the defendants and made me chuckle a little:
"Defendants also assert that the doctrine of judicial estoppel bars Plaintiff from seeking to apply state law on appeal because, before the district court, Plaintiff argued solely for the application of federal law. [Citation omitted] The record contradicts Defendants’ premise. Plaintiff did ask that the district court set an interest rate of 29.32%, 18.34%, or 9.20% using its discretion under federal law. But Plaintiff also argued, in the alternative, for an interest rate of 29.32% or 10.5% pursuant to Alaska law. Arguing in the alternative does not invoke judicial estoppel—it is good lawyering."
Congrats to the plaintiffs' attorneys (all of whom are in Washington), who prevail over a couple of folks at O'Melveny. Which just goes to show -- to the chagrin of the Martin family -- that just because you're from Harvard Law School (like me and Victor Yim from O'Melveny) and are paired up with someone from Yale Law School (like John Daum, from O'Melveny, and my lovely wife) doesn't mean that you're going to win them all.
Though you will have wonderful children.
(You gotta love it, by the way, if you're the plaintiff and the case is so huge that a one percent dispute over prejudgment interest is worth an entire appeal.)
Not only does plaintiff win the appeal, but Judge Graber has a funny paragraph that lightly jabs the defendants and made me chuckle a little:
"Defendants also assert that the doctrine of judicial estoppel bars Plaintiff from seeking to apply state law on appeal because, before the district court, Plaintiff argued solely for the application of federal law. [Citation omitted] The record contradicts Defendants’ premise. Plaintiff did ask that the district court set an interest rate of 29.32%, 18.34%, or 9.20% using its discretion under federal law. But Plaintiff also argued, in the alternative, for an interest rate of 29.32% or 10.5% pursuant to Alaska law. Arguing in the alternative does not invoke judicial estoppel—it is good lawyering."
Congrats to the plaintiffs' attorneys (all of whom are in Washington), who prevail over a couple of folks at O'Melveny. Which just goes to show -- to the chagrin of the Martin family -- that just because you're from Harvard Law School (like me and Victor Yim from O'Melveny) and are paired up with someone from Yale Law School (like John Daum, from O'Melveny, and my lovely wife) doesn't mean that you're going to win them all.
Though you will have wonderful children.
Friday, April 13, 2007
L&B Real Estate v. Housing Authority (Cal. Ct. App. - April 13, 2007)
Thinking about buying property at tax sales? There are lots of dangers out there.
Including this one.
Including this one.
People v. Gastello (Cal. Ct. App. - April 13, 2007)
You're busted by the cops. You've got meth in your pocket. They search you but don't find it. You're then arrested and taken directly to jail for being under the influence. At which place you're instructed to empty your pockets, and do so, at which point you reveal that you've got a baggie of meth.
You're obviously guilty of possession. But are you also guilty of the (much bigger) felony offense of bringing drugs into jail in violation of Penal Code sect. 4573, which states that “Except when otherwise authorized . . . any person who, knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison . . . or into any county . . . jail . . . any controlled substance . . . is guilty of a felony. . . .”? After all, you "knowingly" brought the drugs into the jail, since you knew you had 'em on you and that you were going to the jail. Both the plain language of the statute and policy concerns (after all, you could use or sell the drugs to or with other prisoners) mean that you're guilty, right?
Nope. At least according to this opinion by Justice Wiseman.
Others might disagree, but I thought that Justice Wiseman's opinion was both well-written and well-reasoned. It made sense to me, if only as a matter of common sense. Perhaps the drugs were "brought" into jail, but they really weren't "brought" by you; rather, you were brought into prision, and the drugs were merely with you. If all you did was remain silent, and didn't actively intend to bring them in, you're not guilty. Seems right to me.
I thought that Justice Wiseman might also have added that it'd be a little strange -- and perhaps implicate Fifth Amendment concerns -- if, in that setting, you indeed had an obligation to reveal the drugs in your possession under penalty of a huge felony violation if you remained silent. It seems like such a statute would effectively compel self-incrimination (e.g., the admission of your possession of drugs), which would be another reason to interpret the statute in the manner suggested by Justice Wiseman -- to avoid doubts about the constitutional validity of that statute.
But even without that additional argument, Justice Wiseman's opinion seems to comport with both doctrine as well as common sense. So I liked it.
You're obviously guilty of possession. But are you also guilty of the (much bigger) felony offense of bringing drugs into jail in violation of Penal Code sect. 4573, which states that “Except when otherwise authorized . . . any person who, knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison . . . or into any county . . . jail . . . any controlled substance . . . is guilty of a felony. . . .”? After all, you "knowingly" brought the drugs into the jail, since you knew you had 'em on you and that you were going to the jail. Both the plain language of the statute and policy concerns (after all, you could use or sell the drugs to or with other prisoners) mean that you're guilty, right?
Nope. At least according to this opinion by Justice Wiseman.
Others might disagree, but I thought that Justice Wiseman's opinion was both well-written and well-reasoned. It made sense to me, if only as a matter of common sense. Perhaps the drugs were "brought" into jail, but they really weren't "brought" by you; rather, you were brought into prision, and the drugs were merely with you. If all you did was remain silent, and didn't actively intend to bring them in, you're not guilty. Seems right to me.
I thought that Justice Wiseman might also have added that it'd be a little strange -- and perhaps implicate Fifth Amendment concerns -- if, in that setting, you indeed had an obligation to reveal the drugs in your possession under penalty of a huge felony violation if you remained silent. It seems like such a statute would effectively compel self-incrimination (e.g., the admission of your possession of drugs), which would be another reason to interpret the statute in the manner suggested by Justice Wiseman -- to avoid doubts about the constitutional validity of that statute.
But even without that additional argument, Justice Wiseman's opinion seems to comport with both doctrine as well as common sense. So I liked it.
Thursday, April 12, 2007
In Re Olson (Cal. Ct. App. - April 12, 2007)
I'm sure that this case will get a fair amount of play in blogs and in the press. Not because of its substantive content, which concerns rather unusual (at least nowadays) procedural questions regarding how one should calculate and apply sentences under the old Indeterminate Sentence Law (for crimes prior to 1976) in light of the new(er) Uniform Determinate Sentencing Law of 1976, which sometimes authorizes an earlier release date than the old ISL. This used to be a big deal during the changeover, but that was over 30 years ago. It doesn't happen much nowadays, since we're talking about very, very old crimes.
Nonetheless, the case will get play because it involves the appeal of Sara Jane Olson; in her old life, Kathleen Soliah. Who was a member of the Symbionese Liberation Army (SLA) in the 1970s who went underground, only to be captured decades later, after she had become a respectable citizen. So even though I'm not sure anyone will much care about the underlying merits, the matter will probably be at least mentioned in various places, if only for the identity of the petitioner.
But, for me, the most fun part of the case was footnote 10 of the opinion. Ultimately, Justice Doi Todd holds that Olson is at least partially right -- albeit on procedural grounds -- and that the matter requires a remand since the trial court didn't issue an OSC or writ. The net result of which will be more delay, since the Court of Appeal accordingly can't reach the merits. Which is a result that doesn't exactly please Olson and her counsel, since the whole point of the appeal was to get her out of prison earlier.
To which Justice Doi Todd responds, in footnote 10: "During oral argument, counsel commented on undue delay. Counsel should consider that the issues in the petition are relatively complex and that it appears that all the participants in the matter, not just the superior court and the Board, are struggling to reach a proper resolution. Olson, as well as appellant, had the opportunity to raise the Romero issue in the superior court, and neither party objected so as to avoid a futile appeal. Furthermore, Olson’s belated apprehension has contributed in large part to the delay as the Board no longer has the expertise it once had in calculating the terms for nonlife ISL prisoners."
In other words: "You have a point, but stop whining. This stuff is tough. We haven't done it for 30 years, and we're trying our best. P.S. - This wouldn't be an problem, by the way, if you had objected below. Or, more to the point, if your client hadn't gone underground for 20 years. So mellow out, and cut us some slack."
Nonetheless, the case will get play because it involves the appeal of Sara Jane Olson; in her old life, Kathleen Soliah. Who was a member of the Symbionese Liberation Army (SLA) in the 1970s who went underground, only to be captured decades later, after she had become a respectable citizen. So even though I'm not sure anyone will much care about the underlying merits, the matter will probably be at least mentioned in various places, if only for the identity of the petitioner.
But, for me, the most fun part of the case was footnote 10 of the opinion. Ultimately, Justice Doi Todd holds that Olson is at least partially right -- albeit on procedural grounds -- and that the matter requires a remand since the trial court didn't issue an OSC or writ. The net result of which will be more delay, since the Court of Appeal accordingly can't reach the merits. Which is a result that doesn't exactly please Olson and her counsel, since the whole point of the appeal was to get her out of prison earlier.
To which Justice Doi Todd responds, in footnote 10: "During oral argument, counsel commented on undue delay. Counsel should consider that the issues in the petition are relatively complex and that it appears that all the participants in the matter, not just the superior court and the Board, are struggling to reach a proper resolution. Olson, as well as appellant, had the opportunity to raise the Romero issue in the superior court, and neither party objected so as to avoid a futile appeal. Furthermore, Olson’s belated apprehension has contributed in large part to the delay as the Board no longer has the expertise it once had in calculating the terms for nonlife ISL prisoners."
In other words: "You have a point, but stop whining. This stuff is tough. We haven't done it for 30 years, and we're trying our best. P.S. - This wouldn't be an problem, by the way, if you had objected below. Or, more to the point, if your client hadn't gone underground for 20 years. So mellow out, and cut us some slack."
Wednesday, April 11, 2007
In Re Arthur M. (Cal. Ct. App. - April 10, 2007)
This is a nightmare.
The question is whether the father gets any say in whether the mother can give up their child for adoption. About the only thing that's undisputed is that the biological father is a 17-year old high school senior who had intercourse once with the mother, a 16-year old from another high school.
You read the first seven pages of Justice Ikola's opinon and you come away with the conclusion that the father -- who's name is Paul -- is not only a bunghole, but an epic and unprecedented bunghole. Every paragraph is literally worse than the last. And there are a dozen of them.
Here's the first paragraph, which gives you a tenor of how Paul -- according to the mother -- dealt with the pregnancy:
"Meghan testified that in mid-May, after she had twice missed her menstrual period, she took a home pregnancy test, with a positive result. She called Paul before the end of May and told him about the pregnancy. Paul remained silent during the phone conversation as Meghan said she would have the baby and give it up for adoption. He did not deny paternity, nor did he ask Meghan if she needed anything. He did not offer to take her to the doctor. He did not offer to pay for medical care or otherwise help out financially. At the end of the phone call, he told Meghan, 'Well, good luck with that.'"
Wow. But, remember. Each paragraph is worse than the last. Here's the next one:
"Meghan said she and Paul did not speak again for a few weeks, although at some point, Paul left a message on Meghan’s cell phone, asking her to have an abortion. Then, according to Meghan’s testimony, on June 17, 2005, Paul came to her house, grabbed her by arm when she answered the door, and tried to pull her outside. She resisted, but agreed to speak to him, and they went to the back patio of the house, where Paul confronted her gruffly when she refused to have an abortion. Meghan explained 'due to personal convictions that I had that I did not feel comfortable with [abortion] and it was not a decision that I wanted to make,' and Paul then 'went on a little tirade,' sprinkled with profanities, inter alia, calling Meghan a bitch and a slut and using the 'f' word. He did not ask Meghan about how the pregnancy was going, although she
volunteered to him that she had been 'extremely nauseous and . . . vomiting excessively.' He did not ask her whether she needed help of any kind. The conversation ended when Paul left, saying, 'Get an abortion or else.'"
Wow. And, again, remember, it gets even worse. For ten more paragraphs. It's the same sort of stuff, but you've got to read it to believe it. Two words. Epic. Bunghole.
But then read the subsequent five pages. And you get a totally different story; i.e., Paul's. He tells a story that's so radically dissimilar that it's hard to believe; and, yet, there's at least some evidence to support it, and it's internally consistent (and plausible), so you can't totally discount it as the obvious fabrication of someone who we've already decided is an E.B. Plus, remember, the whole point of the project -- of the $67,000-plus this 17-year old has spent on litigation -- is so that he can have visitation and some contact with his biological child. Which is consistent with his current testimony that he wanted the child (and hence that his version of the story is at least plausible).
In the end, I leave the case not having much of an idea at all at who to believe; and, regardless, thinking that there's a real risk that whichever way the case gets decided, there's a distinct and very real possibility that the court has done a monstrous injustice against an innocent party. It is the type of case that makes for incredibly difficult decisions; or, at least, when reading a cold record on appeal, where it's extremely difficult -- for me, anyway -- to figure out on which side "justice" lies.
Not, of course, that "justice" is always dispositive; often, there's law that compels you to do one thing or another, and that's sometimes the easy way out. But, here, there was surely leeway to grant the father what he wanted or, conversely, to grant the mother what she wanted. And to a large degree it depends upon who one believes.
Fortunately (maybe, anyway), Justice Ikola has an easy way out, and is able to say that there's at least substantial evidence to support the trial court's view (and surely there is), and on that basis affirms. Which seems right; again, the law sometimes allows one to not have to make an extremely difficult call on the merits.
Nonetheless, cases like this worry me. Two radically different -- but supported -- versions of the facts. Something critical that stands in the balance. The very real risk that, whichever way the decision goes, you've taken critical parental rights out of the hands of those to whom they rightfully belong -- and given them instead to the more persuasive perjurer.
Not something that allows one to sleep especially well at night, I imagine. At least if you've got a sense of your own, human, fallability. Sure, someone's got to make the call, and it might as well be a neutral and concerned party like yourself. Still. You could be wrong. Even with your best and most conscientious efforts. And you're probably not doing your job correctly if that doesn't concern you even the tiniest bit.
The question is whether the father gets any say in whether the mother can give up their child for adoption. About the only thing that's undisputed is that the biological father is a 17-year old high school senior who had intercourse once with the mother, a 16-year old from another high school.
You read the first seven pages of Justice Ikola's opinon and you come away with the conclusion that the father -- who's name is Paul -- is not only a bunghole, but an epic and unprecedented bunghole. Every paragraph is literally worse than the last. And there are a dozen of them.
Here's the first paragraph, which gives you a tenor of how Paul -- according to the mother -- dealt with the pregnancy:
"Meghan testified that in mid-May, after she had twice missed her menstrual period, she took a home pregnancy test, with a positive result. She called Paul before the end of May and told him about the pregnancy. Paul remained silent during the phone conversation as Meghan said she would have the baby and give it up for adoption. He did not deny paternity, nor did he ask Meghan if she needed anything. He did not offer to take her to the doctor. He did not offer to pay for medical care or otherwise help out financially. At the end of the phone call, he told Meghan, 'Well, good luck with that.'"
Wow. But, remember. Each paragraph is worse than the last. Here's the next one:
"Meghan said she and Paul did not speak again for a few weeks, although at some point, Paul left a message on Meghan’s cell phone, asking her to have an abortion. Then, according to Meghan’s testimony, on June 17, 2005, Paul came to her house, grabbed her by arm when she answered the door, and tried to pull her outside. She resisted, but agreed to speak to him, and they went to the back patio of the house, where Paul confronted her gruffly when she refused to have an abortion. Meghan explained 'due to personal convictions that I had that I did not feel comfortable with [abortion] and it was not a decision that I wanted to make,' and Paul then 'went on a little tirade,' sprinkled with profanities, inter alia, calling Meghan a bitch and a slut and using the 'f' word. He did not ask Meghan about how the pregnancy was going, although she
volunteered to him that she had been 'extremely nauseous and . . . vomiting excessively.' He did not ask her whether she needed help of any kind. The conversation ended when Paul left, saying, 'Get an abortion or else.'"
Wow. And, again, remember, it gets even worse. For ten more paragraphs. It's the same sort of stuff, but you've got to read it to believe it. Two words. Epic. Bunghole.
But then read the subsequent five pages. And you get a totally different story; i.e., Paul's. He tells a story that's so radically dissimilar that it's hard to believe; and, yet, there's at least some evidence to support it, and it's internally consistent (and plausible), so you can't totally discount it as the obvious fabrication of someone who we've already decided is an E.B. Plus, remember, the whole point of the project -- of the $67,000-plus this 17-year old has spent on litigation -- is so that he can have visitation and some contact with his biological child. Which is consistent with his current testimony that he wanted the child (and hence that his version of the story is at least plausible).
In the end, I leave the case not having much of an idea at all at who to believe; and, regardless, thinking that there's a real risk that whichever way the case gets decided, there's a distinct and very real possibility that the court has done a monstrous injustice against an innocent party. It is the type of case that makes for incredibly difficult decisions; or, at least, when reading a cold record on appeal, where it's extremely difficult -- for me, anyway -- to figure out on which side "justice" lies.
Not, of course, that "justice" is always dispositive; often, there's law that compels you to do one thing or another, and that's sometimes the easy way out. But, here, there was surely leeway to grant the father what he wanted or, conversely, to grant the mother what she wanted. And to a large degree it depends upon who one believes.
Fortunately (maybe, anyway), Justice Ikola has an easy way out, and is able to say that there's at least substantial evidence to support the trial court's view (and surely there is), and on that basis affirms. Which seems right; again, the law sometimes allows one to not have to make an extremely difficult call on the merits.
Nonetheless, cases like this worry me. Two radically different -- but supported -- versions of the facts. Something critical that stands in the balance. The very real risk that, whichever way the decision goes, you've taken critical parental rights out of the hands of those to whom they rightfully belong -- and given them instead to the more persuasive perjurer.
Not something that allows one to sleep especially well at night, I imagine. At least if you've got a sense of your own, human, fallability. Sure, someone's got to make the call, and it might as well be a neutral and concerned party like yourself. Still. You could be wrong. Even with your best and most conscientious efforts. And you're probably not doing your job correctly if that doesn't concern you even the tiniest bit.
Tuesday, April 10, 2007
Simon Marketing v. Gulf Ins. Co. (Cal. Ct. App. - April 10, 2007)
No wonder I never win those McDonald's monopoly games. Someone's stealing all the good prizes.
People v. Bradus (Cal. Ct. App. - April 10, 2007)
I like Justice Huffman's opinion in this case. More for its style rather than its substance (though I think the latter is fine as well).
But, as to the former, I like it how Justice Huffman slams -- fairly forcefully -- the various arguments of "the People" (e.g., the deputy AG's) on appeal in a manner that makes it clear that he expects more from the AG's office than existed here and yet avoids being offensive. I think that both prongs of that duality are important. I think that the judiciary can and should expect the assertion of only fair and intellectually honest arguments from government lawyers on appeal, rather than simply the assertion of whatever "kitchen sink" contentions that might pass the test of frivolousness.
I know that some might disagree, but I personally feel pretty strongly in this regard. The AG's duty is not to win, but to do justice. I don't think it serves justice to try to reach a result -- especially, here, one that's of no substantial importance -- through the assertion of arguments that are clearly wrong, even if not frivolous. I expect more from "the People", and I think that Justice Huffman -- in his much more subtle way -- does so as well.
P.S. - I was also happy to see that, even though this case is from San Diego, neither of the two lowest names on the briefs (and hence the ones presumptively most responsible for it) from the AG's office were from USD, and were instead Marvin Mizell (from Davis) and Maxine Cutler (from Golden Gate).
But, as to the former, I like it how Justice Huffman slams -- fairly forcefully -- the various arguments of "the People" (e.g., the deputy AG's) on appeal in a manner that makes it clear that he expects more from the AG's office than existed here and yet avoids being offensive. I think that both prongs of that duality are important. I think that the judiciary can and should expect the assertion of only fair and intellectually honest arguments from government lawyers on appeal, rather than simply the assertion of whatever "kitchen sink" contentions that might pass the test of frivolousness.
I know that some might disagree, but I personally feel pretty strongly in this regard. The AG's duty is not to win, but to do justice. I don't think it serves justice to try to reach a result -- especially, here, one that's of no substantial importance -- through the assertion of arguments that are clearly wrong, even if not frivolous. I expect more from "the People", and I think that Justice Huffman -- in his much more subtle way -- does so as well.
P.S. - I was also happy to see that, even though this case is from San Diego, neither of the two lowest names on the briefs (and hence the ones presumptively most responsible for it) from the AG's office were from USD, and were instead Marvin Mizell (from Davis) and Maxine Cutler (from Golden Gate).
Monday, April 09, 2007
Mansour v. Degas (Cal. Ct. App. - April 9, 2007)
Weird.
Rarely do you see the Court of Appeal depublish its own opinion. Especially when, as here, nothing happened in the interim -- no intervening decision, no petition for rehearing, no request for depublication. Nothing.
Admittedly, when I read the original opinion, I didn't think that it was anything special, or paticularly worthy of publication. But that's hardly unusual.
I wonder -- and admittedly I'm just speculating here -- whether there wasn't a clerical error involved; e.g., that Justice Boland originally intended the opinion to be unpublished, but that someone made a mistake and that it accordingly ended up getting published. And that, when Justice Boland found out, he corrected the error. Or that, perhaps, the agreement of the justices at conference allowed a unanimous opinion, and in the form circulated prior to oral argument, but only if it was unpublished.
The alternative just seems silly -- that, upon receipt of nothing, the justices concluded, sua sponte, "Hey, you remember that opinion we circulated last week. I was sitting in bed last night and realized that it really didn't merit publication. Everyone agree? Good."
Maybe that happens. And, if it does, great. Go ahead and depublish. It just seems implausible.
Rarely do you see the Court of Appeal depublish its own opinion. Especially when, as here, nothing happened in the interim -- no intervening decision, no petition for rehearing, no request for depublication. Nothing.
Admittedly, when I read the original opinion, I didn't think that it was anything special, or paticularly worthy of publication. But that's hardly unusual.
I wonder -- and admittedly I'm just speculating here -- whether there wasn't a clerical error involved; e.g., that Justice Boland originally intended the opinion to be unpublished, but that someone made a mistake and that it accordingly ended up getting published. And that, when Justice Boland found out, he corrected the error. Or that, perhaps, the agreement of the justices at conference allowed a unanimous opinion, and in the form circulated prior to oral argument, but only if it was unpublished.
The alternative just seems silly -- that, upon receipt of nothing, the justices concluded, sua sponte, "Hey, you remember that opinion we circulated last week. I was sitting in bed last night and realized that it really didn't merit publication. Everyone agree? Good."
Maybe that happens. And, if it does, great. Go ahead and depublish. It just seems implausible.
Demps v. San Francisco Housing Auth. (Cal. Ct. App. - April 9, 2007)
I am generally pretty darn impressed when a court admits that it was wrong. That takes a lot of guts. And modesty. It's also -- perhaps for those two reasons -- fairly rare.
So I smiled when I read the first two paragraphs written by Justice Richman in this case. Which read as follows:
"Paraphrasing Alexander Pope, a court 'should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday.' (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) Vol. I, p. 340.)
We write today to 'own' that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that “ ‘I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.’ ” (Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review."
Nice. Though two quick caveats. First, it's a little less impressive to admit your error when it's been pointed out for 15-plus years by every published appellate decision to address the issue. (As an aside, I've never seen as many red flags as when I keycited Biljac -- there must be over 100 of them, and one is attached to virtually every case that has ever cited Biljac.) One's natural tendency is to say: "Great, you admit your error. Took you look enough, eh?" Second, while I admire the way Justice Richman admits the mistake, let's not forget that Justice Richman is not admitting that he was wrong. Rather, Justice Richman's admitting that the opinion by Justice Smith was wrong -- an opinion written for a court back in 1990 on which Justice Richman wasn't a member. (Justice Richman was, in fact, only appointed to the Court of Appeal last year.) Admittedly, Justice Kline -- who's on the current panel -- was on the court back in 1990, and Division Two of the First Appellate District has never heretofore repudiated Biljac. Still, having Justices Richman, Klein and Haerle admit that Justice Smith was wrong back in 1990 is hardly a severe personal mea culpa.
Still, I liked reading what I read here. I agree that Biljac was wrong. I'm glad that Justice Richman agrees, and that we've now cleaned up the law here. Even if it was 17 years in the making. (Something that's assuredly not Justice Richman's fault!)
So I smiled when I read the first two paragraphs written by Justice Richman in this case. Which read as follows:
"Paraphrasing Alexander Pope, a court 'should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday.' (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) Vol. I, p. 340.)
We write today to 'own' that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that “ ‘I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.’ ” (Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review."
Nice. Though two quick caveats. First, it's a little less impressive to admit your error when it's been pointed out for 15-plus years by every published appellate decision to address the issue. (As an aside, I've never seen as many red flags as when I keycited Biljac -- there must be over 100 of them, and one is attached to virtually every case that has ever cited Biljac.) One's natural tendency is to say: "Great, you admit your error. Took you look enough, eh?" Second, while I admire the way Justice Richman admits the mistake, let's not forget that Justice Richman is not admitting that he was wrong. Rather, Justice Richman's admitting that the opinion by Justice Smith was wrong -- an opinion written for a court back in 1990 on which Justice Richman wasn't a member. (Justice Richman was, in fact, only appointed to the Court of Appeal last year.) Admittedly, Justice Kline -- who's on the current panel -- was on the court back in 1990, and Division Two of the First Appellate District has never heretofore repudiated Biljac. Still, having Justices Richman, Klein and Haerle admit that Justice Smith was wrong back in 1990 is hardly a severe personal mea culpa.
Still, I liked reading what I read here. I agree that Biljac was wrong. I'm glad that Justice Richman agrees, and that we've now cleaned up the law here. Even if it was 17 years in the making. (Something that's assuredly not Justice Richman's fault!)
Parlour Enterprises, Inc. v. Kirin Group (Cal. Ct. App. - April 6, 2007)
We used to have a Farrell's Ice Cream Parlour in nearby Springfield Mall when I was a kid growing up in Virginia. It was one of those places built and designed largely to entice kids -- an early Chuck-E-Cheese (without the games) or our local Corvette Diner -- but with a family atmosphere. Alongside Shakey's Pizza, which my family went to far more often, the nearby Farrell's was the dream place to eat.
I always wondered what happened to the Farrell's, since I see them no longer. But, thanks to this opinion, I now know. In exquisite detail. Ironically, the only Farrell's that were left are in Southern California -- one in San Diego and one in Santa Clarita -- and only the latter currently remains. I guess kids in the modern era are simply not into the "pig out on ice cream" concept. At least in public.
Actually, the jury in the underlying case thought otherwise, and awarded the plaintiff in this case $6.7 million in damages, including $6.5 million in lost profits, because defendants allegedly wrongfully terminated the right of plaintiff to develop and subfranchise Farrell's in Southern California. But Justice Rylaarsdam reverses the award of lost profits, and permits plaintiff to recover only $200,000, on the ground that the award of lost profits was speculative as a matter of law.
The opinion contains a decent discussion of what it takes for lost profits of a new business to be recoverable, so it's a helpful opinion on that score. It also demonstrates, albeit implicitly, how important it is for plaintiffs to retain competent experts on the damages side. Here, for example, I think that plaintiff would've been able to recover the extra $6.5 million had their expert -- Robert Wunderlich -- done a decent (or at least more complete) job. You've got to read the whole opinion to see the (extermely superficial) content of the expert testimony and why it was insufficient. But, for example, look at what Justice Ryllarsdam says -- basically in its entirety -- about one part of Wunderlich's expert testimony:
"Wunderlich used the projections only as a starting point for his calculations. He also considered market data about 'a couple of dozen ice cream parlors,' plus a publicly-traded restaurant chain called Friendly’s, which he claimed was 'relatively similar to the Farrell’s concept.' The only evidence of similarity, however, is Wunderlich’s testimony that it 'is a chain of about 300 or so restaurants, which is similar to Farrell’s in that it has both the ice cream end and the food end.' But many restaurants serve both ice cream and food; that alone does not make them sufficiently similar to Farrell’s for purposes of proving lost prospective profits. (Kids’ Universe, supra, 95 Cal.App.4th at p. 884.) Although one way to prove prospective profits is through the experience of similar businesses, Wunderlich’s cursory description of Friendly’s business model failed to establish its profit and loss experience is sufficiently similar to Farrell’s to be relevant to the question of plaintiffs’ alleged lost profits."
Which is funny, since even I could testify that Friendly's and Farrell's are pretty darn similar. But the expert didn't, and hence the $6.5 million disappears.
I always wondered what happened to the Farrell's, since I see them no longer. But, thanks to this opinion, I now know. In exquisite detail. Ironically, the only Farrell's that were left are in Southern California -- one in San Diego and one in Santa Clarita -- and only the latter currently remains. I guess kids in the modern era are simply not into the "pig out on ice cream" concept. At least in public.
Actually, the jury in the underlying case thought otherwise, and awarded the plaintiff in this case $6.7 million in damages, including $6.5 million in lost profits, because defendants allegedly wrongfully terminated the right of plaintiff to develop and subfranchise Farrell's in Southern California. But Justice Rylaarsdam reverses the award of lost profits, and permits plaintiff to recover only $200,000, on the ground that the award of lost profits was speculative as a matter of law.
The opinion contains a decent discussion of what it takes for lost profits of a new business to be recoverable, so it's a helpful opinion on that score. It also demonstrates, albeit implicitly, how important it is for plaintiffs to retain competent experts on the damages side. Here, for example, I think that plaintiff would've been able to recover the extra $6.5 million had their expert -- Robert Wunderlich -- done a decent (or at least more complete) job. You've got to read the whole opinion to see the (extermely superficial) content of the expert testimony and why it was insufficient. But, for example, look at what Justice Ryllarsdam says -- basically in its entirety -- about one part of Wunderlich's expert testimony:
"Wunderlich used the projections only as a starting point for his calculations. He also considered market data about 'a couple of dozen ice cream parlors,' plus a publicly-traded restaurant chain called Friendly’s, which he claimed was 'relatively similar to the Farrell’s concept.' The only evidence of similarity, however, is Wunderlich’s testimony that it 'is a chain of about 300 or so restaurants, which is similar to Farrell’s in that it has both the ice cream end and the food end.' But many restaurants serve both ice cream and food; that alone does not make them sufficiently similar to Farrell’s for purposes of proving lost prospective profits. (Kids’ Universe, supra, 95 Cal.App.4th at p. 884.) Although one way to prove prospective profits is through the experience of similar businesses, Wunderlich’s cursory description of Friendly’s business model failed to establish its profit and loss experience is sufficiently similar to Farrell’s to be relevant to the question of plaintiffs’ alleged lost profits."
Which is funny, since even I could testify that Friendly's and Farrell's are pretty darn similar. But the expert didn't, and hence the $6.5 million disappears.
Friday, April 06, 2007
Boucher v. Shaw (9th Cir. - April 6, 2007)
It looks like April might well be similar to March, a period in which I noted an unprecedented "avalanche of certifications" by the Ninth Circuit to state supreme courts.
In early March it was the Oregon Surpeme Court on one day, the Washington Supreme Court later that week, and then the week finished with a certification to the Nevada Supreme Court. But, in April, who was once last shall be first, and Judge McKeown certifies a question in this employee wage case to the Nevada Supreme Court.
What about Hawaii, Alaska, California, Arizona, and the other fun state supreme courts in the Ninth Circuit? Can't they help out as well? No fair double-dipping with Nevada until you've finished the rounds.
In early March it was the Oregon Surpeme Court on one day, the Washington Supreme Court later that week, and then the week finished with a certification to the Nevada Supreme Court. But, in April, who was once last shall be first, and Judge McKeown certifies a question in this employee wage case to the Nevada Supreme Court.
What about Hawaii, Alaska, California, Arizona, and the other fun state supreme courts in the Ninth Circuit? Can't they help out as well? No fair double-dipping with Nevada until you've finished the rounds.
Thursday, April 05, 2007
Parker v. Walters Kluwer (Cal. Ct. App. - April 3, 2007)
Litigating against pro se litigants is always interesting. Since they're often whacko, and to their substantial detriment. Like here.
Sheer entertainment value was also provided by Part I of Justice Johnson's opinion. The pro se litigant, Leonard Parker, also represented himself on appeal. As ably as you might expect from someone who lost the lawsuit below when terminating sanctions were entered against him. On appeal, rather than cut-and-paste the arguments and authorities he cited below -- an easy task, I might add, in the modern computer era -- Parker simply filed a brief that said that he "incorporated by reference" those arguments.
Funny. And clearly improper. For this reason, all that Justice Johnson really had to say in response to these contentions was precisely what he said in the first paragraph of Part I: "Throughout his brief on appeal Parker alludes to arguments he made in the trial court and purports to incorporate these arguments by reference in his appellate brief. It is well-established, however, this practice does not comply with rule 8.204(a)(1)(B)3 of the California Rules of Court which requires an appellate brief 'support each point by argument and, if possible, by citation of authority.'" (footnotes and citations omitted). Yep. Exactly right.
Nonetheless, even though this is clearly enough, I thought that it was neat that Justice Johnson then went on for around a full page to explain why that rule makes sense; in particular, why it makes ecological sense:
"While incorporation by reference might seem to make sense ecologically, by reducing the amount of paper used in appellate briefs, the actual result would be to increase the amount of paper used in an appeal. The rules require an original and four copies of the appellate brief. The original brief stays with the record on appeal. Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court. The fourth copy remains in the clerk’s office for public inspection. Only one copy of the trial court record is filed in the appellate court, however. If all three justices had to share this single record in order to review, research and evaluate a party’s arguments the time it would take for the court to decide the appeal would considerably increase. This would work a hardship on the parties to that appeal and to the parties in other appeals awaiting their turn for consideration and decision. Alternatively, four copies of the trial court record would have to be filed with the Court of Appeal. Because these records often consist of thousands of pages it is easy to see how the amount of paper used in the appeal would increase significantly."
And the trees rejoice! Anyway, I thought it was funny that Justice Johnson thought it necessary to go on at length about the justification for this particular rule.
I'm not going to even talk about the irony that arises out of the fact that Justice Johnson's unnecessary policy defense of a rule that allegedly results in killing fewer trees actually ends up killing a lot of trees since it takes up a page or so of a published opinion, a page subsequently replicated in thousands of advance sheets, paper copies, and pages of the California Appellate Reporter.
And the oaks just shake their heads.
Sheer entertainment value was also provided by Part I of Justice Johnson's opinion. The pro se litigant, Leonard Parker, also represented himself on appeal. As ably as you might expect from someone who lost the lawsuit below when terminating sanctions were entered against him. On appeal, rather than cut-and-paste the arguments and authorities he cited below -- an easy task, I might add, in the modern computer era -- Parker simply filed a brief that said that he "incorporated by reference" those arguments.
Funny. And clearly improper. For this reason, all that Justice Johnson really had to say in response to these contentions was precisely what he said in the first paragraph of Part I: "Throughout his brief on appeal Parker alludes to arguments he made in the trial court and purports to incorporate these arguments by reference in his appellate brief. It is well-established, however, this practice does not comply with rule 8.204(a)(1)(B)3 of the California Rules of Court which requires an appellate brief 'support each point by argument and, if possible, by citation of authority.'" (footnotes and citations omitted). Yep. Exactly right.
Nonetheless, even though this is clearly enough, I thought that it was neat that Justice Johnson then went on for around a full page to explain why that rule makes sense; in particular, why it makes ecological sense:
"While incorporation by reference might seem to make sense ecologically, by reducing the amount of paper used in appellate briefs, the actual result would be to increase the amount of paper used in an appeal. The rules require an original and four copies of the appellate brief. The original brief stays with the record on appeal. Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court. The fourth copy remains in the clerk’s office for public inspection. Only one copy of the trial court record is filed in the appellate court, however. If all three justices had to share this single record in order to review, research and evaluate a party’s arguments the time it would take for the court to decide the appeal would considerably increase. This would work a hardship on the parties to that appeal and to the parties in other appeals awaiting their turn for consideration and decision. Alternatively, four copies of the trial court record would have to be filed with the Court of Appeal. Because these records often consist of thousands of pages it is easy to see how the amount of paper used in the appeal would increase significantly."
And the trees rejoice! Anyway, I thought it was funny that Justice Johnson thought it necessary to go on at length about the justification for this particular rule.
I'm not going to even talk about the irony that arises out of the fact that Justice Johnson's unnecessary policy defense of a rule that allegedly results in killing fewer trees actually ends up killing a lot of trees since it takes up a page or so of a published opinion, a page subsequently replicated in thousands of advance sheets, paper copies, and pages of the California Appellate Reporter.
And the oaks just shake their heads.
Chevron Stations v. ABC Appeals Board (Cal. Ct. App. - March 29, 2007)
Okay, I agree with Justice Sims that Chevron's liquor license was improperly suspended here. But can I nonetheless say that it struck me as a little weird that they sell beer and wine at the Chevron station? Where you get your gasoline.
I'm not teetotaler or anything. But it just seems strange to me to sell alcohol at a gas station. It just sparks images of a guy pulling into the station and saying: "Fill 'er up. Oh, yeah, and gimme a shot and a beer too."
I guess I'm just behind the times.
I'm not teetotaler or anything. But it just seems strange to me to sell alcohol at a gas station. It just sparks images of a guy pulling into the station and saying: "Fill 'er up. Oh, yeah, and gimme a shot and a beer too."
I guess I'm just behind the times.
Wednesday, April 04, 2007
In Re Amanda B. (Cal. Ct. App.- April 4, 2007)
Oh, also. Don't be 42 years old, schizophrenic, diabetic, morbidly obese, and homeless. That's no fun either.
(Even in sunny San Diego. Even if you think your husband is Keifer Sutherland, that you were a nun in France in 1927, and that you had previously appeared in "Sister Act" with Whoopi Goldberg.)
(Even in sunny San Diego. Even if you think your husband is Keifer Sutherland, that you were a nun in France in 1927, and that you had previously appeared in "Sister Act" with Whoopi Goldberg.)
People v. Gonzalez (Cal. Ct. App. - April 3, 2007)
Don't be a registered sex offender and be homeless. Otherwise you're almost assuredly going to be busted for felony failure to register every 30 days.
U.S. v. Martinek (9th Cir. - April 4, 2007)
When will the Ninth Circuit become friendly again? Today, just like yesterday, all of the published opinions by the Ninth Circuit contain a dissent (or its equivalent).
Admittedly, today, the Ninth Circuit only issued one published opinion. About the value of some unpatented gold-mining claims in Alaska that the United States took when it expanded the boundaries of Denali Park. This time, it's Judge Leavy dissenting from a majority opinion written by Judge Farris.
Four different panels. Four straight dissents. Perhaps April's gonna be an ugly month for the Ninth.
Admittedly, today, the Ninth Circuit only issued one published opinion. About the value of some unpatented gold-mining claims in Alaska that the United States took when it expanded the boundaries of Denali Park. This time, it's Judge Leavy dissenting from a majority opinion written by Judge Farris.
Four different panels. Four straight dissents. Perhaps April's gonna be an ugly month for the Ninth.
Tuesday, April 03, 2007
Hoschler v. Sacramento City Unified School District (Cal. Ct. App - April 3, 2007)
The failure to spend $60 or so on a messenger/process server -- and using a $1.25 certified mail letter instead -- means that the Sacramento City Unified School District is required to rehire a teacher it wants to terminate for another year. So sayeth Justice Butz.
As Robert Burton (and, later, Benjamin Franklin) used to say: Penny wise, pound foolish.
The opinion is actually a bit interesting for due process scholars, and concerns whether certified mail on Day X is sufficient to meet a deadline of notification by Day X, or whether personal notice is actually required. As a matter of statutory interpretation, Justice Butz concludes the latter. Arcane, but nonetheless interesting, stuff.
So hire a process server. They need the work anyway.
As Robert Burton (and, later, Benjamin Franklin) used to say: Penny wise, pound foolish.
The opinion is actually a bit interesting for due process scholars, and concerns whether certified mail on Day X is sufficient to meet a deadline of notification by Day X, or whether personal notice is actually required. As a matter of statutory interpretation, Justice Butz concludes the latter. Arcane, but nonetheless interesting, stuff.
So hire a process server. They need the work anyway.
Judges v. Judges (9th Cir. - April 3, 2007)
Today's a big day for disagreements on the Ninth Circuit. Every single published opinion had either a dissent or a special concurrence. Judge Rymer dissented from Judge Berzon in this bankruptcy case. Then Judge Hawkins disagrees with Judge Ferguson's opinion in this case -- about whether minute orders are sufficient to prove prior crimes of violence -- and departs from an important part of Judge Ferguson's holding as well as suggests a way around that ruling in some cases. Technically, Judge Hawkins concurs, but it's still a major disagreement. Then, making it three for three for the day, Judge Ferguson dissents from Judge Fisher's opinion in this IDEA case.
Can't we all just get along?
Can't we all just get along?
Monday, April 02, 2007
U.S. v. Heredia (9th Cir. - April 2, 2007)
This is a great case. The majority opinion by Judge Kozinski has an excellent and flowing analysis of the value of stare decisis that's itself valuable. That this precedential analysis persuades the en banc court to overrule a dozen or so prior Ninth Circuit cases is even more impressive. It's a very well-written piece.
The lineup of the judges is also interesting. The majority votes to reaffirm (and extend) Jewell and thus allows criminal convictions in a wide variety of situations in which the defendant might be said to deliberately "stay stupid" and not inquire further even though s/he suspects that s/he's may be carrying drugs. Because that's the holding, it's not surprising that all of the Reagan (1) and Bush II (3) appointees on the en banc panel sign on to the majority opinion. But so do four Clinton appointees (McKeown, Hawkins, Silverman and Tallman) and a Carter appointee (Schroeder). Alongside a Bush I appointee (Rymer) that makes 10.
I find it very interesting that the Carter and Clinton appointees who join the majority are all in border crime locations -- Schroeder, Hawkins and Silverman are in Phoenix, McKeown is in San Diego, and Tallman is in Seattle. Given the Jewell instructions are most often used in drug and immigrant smuggling cases, I can't help wonder whether that fact played a role in the lineup.
Also interesting -- and more proof that you can't always count the votes based upon who appointed the judge -- is that Judge Kleinfeld basically joins the dissent, although he formally concurs since he doesn't think that in the present case the error was plain (since the defendant didn't object). Judge Kleinfeld's opinion also raises some very good points: one of his best lines (though you gotta read the opinion to understand the context) is his argument that "someone driving his mother, a child of the sixties, to Thanksgiving weekend, and putting her suitcase in the trunk, should not have to open it and go through her clothes" in order to avoid being guilty of possession. Classic.
There's a lot here. And a lot that's important. So it's definitely worth a read. Especially if you're planning on crossing the border in a car that's not your own anytime soon.
The lineup of the judges is also interesting. The majority votes to reaffirm (and extend) Jewell and thus allows criminal convictions in a wide variety of situations in which the defendant might be said to deliberately "stay stupid" and not inquire further even though s/he suspects that s/he's may be carrying drugs. Because that's the holding, it's not surprising that all of the Reagan (1) and Bush II (3) appointees on the en banc panel sign on to the majority opinion. But so do four Clinton appointees (McKeown, Hawkins, Silverman and Tallman) and a Carter appointee (Schroeder). Alongside a Bush I appointee (Rymer) that makes 10.
I find it very interesting that the Carter and Clinton appointees who join the majority are all in border crime locations -- Schroeder, Hawkins and Silverman are in Phoenix, McKeown is in San Diego, and Tallman is in Seattle. Given the Jewell instructions are most often used in drug and immigrant smuggling cases, I can't help wonder whether that fact played a role in the lineup.
Also interesting -- and more proof that you can't always count the votes based upon who appointed the judge -- is that Judge Kleinfeld basically joins the dissent, although he formally concurs since he doesn't think that in the present case the error was plain (since the defendant didn't object). Judge Kleinfeld's opinion also raises some very good points: one of his best lines (though you gotta read the opinion to understand the context) is his argument that "someone driving his mother, a child of the sixties, to Thanksgiving weekend, and putting her suitcase in the trunk, should not have to open it and go through her clothes" in order to avoid being guilty of possession. Classic.
There's a lot here. And a lot that's important. So it's definitely worth a read. Especially if you're planning on crossing the border in a car that's not your own anytime soon.
Friday, March 30, 2007
Connecticut General Life Ins. Co. v. New Images (9th Cir. - March 30, 2007)
Attorney Roy Dickson of Yorba Linda: Prepare to be disbarred, or, at worst, suspended. Because, in my opinion, that's going to -- and should -- happen. At least after this case.
Even a snippet from Judge Kleinfeld's opinion amply reveals Mr. Dickson's cause for concern, as well as his underlying -- incredible -- conduct in prosecuting the appeal:
"The core of the appellants’ argument is yet another fraud on the court. The appellants’ brief states that 'Dr. Robinson was in Bankruptcy until July of 2000.' This is important because a bankruptcy stay would prevent the April 2000 order compelling discovery from applying to Dr. Robinson when it was issued. The appellants’s brief states as a fact that the order granting relief from the stay and permitting litigation against
Dr. Robinson to proceed, 'was not operative until July 10, 2000.'
To support this critical factual assertion, appellants cite to their excerpts of record, where the docket sheet is reproduced. The docket sheet as reproduced in the appellants’ excerpts of record shows the date for the order granting relief from the bankruptcy stay as '7/00.' That looks as though it means July 2000, supporting the brief.
But that is false. In fact, the order was entered March 17, 2000. Appellants made March look like July by photocopying the docket sheet so that part of the left side did not copy. Thus, '03/17/00' became '7/00.'
Appellees pointed this out in their brief. Yet when it was called to appellants’ attention in the opposition brief in this appeal, they did not confess error. They did not file a reply brief."
Yikes. I'll spare you the other details regarding Mr. Dickson's representation, which you can obtain (if you'd like) by reading the rest of the opinion. Suffice it to say that Judge Kleinfeld is entirely justified in ending the opinion with a footnote that says: "We are sending a copy of this decision to the California Bar for such action as it may deem appropriate regarding Mr. Dickson." And since even the briefest of digging reveals that Mr. Dickson has already been publicly discliplined by the Bar three separate times in the last decade, I have little doubt that Roy's looking at a suspension from the practice of law -- if not disbarment -- up the road. We tend not to like deliberate efforts to defraud the court, dontchaknow.
Even a snippet from Judge Kleinfeld's opinion amply reveals Mr. Dickson's cause for concern, as well as his underlying -- incredible -- conduct in prosecuting the appeal:
"The core of the appellants’ argument is yet another fraud on the court. The appellants’ brief states that 'Dr. Robinson was in Bankruptcy until July of 2000.' This is important because a bankruptcy stay would prevent the April 2000 order compelling discovery from applying to Dr. Robinson when it was issued. The appellants’s brief states as a fact that the order granting relief from the stay and permitting litigation against
Dr. Robinson to proceed, 'was not operative until July 10, 2000.'
To support this critical factual assertion, appellants cite to their excerpts of record, where the docket sheet is reproduced. The docket sheet as reproduced in the appellants’ excerpts of record shows the date for the order granting relief from the bankruptcy stay as '7/00.' That looks as though it means July 2000, supporting the brief.
But that is false. In fact, the order was entered March 17, 2000. Appellants made March look like July by photocopying the docket sheet so that part of the left side did not copy. Thus, '03/17/00' became '7/00.'
Appellees pointed this out in their brief. Yet when it was called to appellants’ attention in the opposition brief in this appeal, they did not confess error. They did not file a reply brief."
Yikes. I'll spare you the other details regarding Mr. Dickson's representation, which you can obtain (if you'd like) by reading the rest of the opinion. Suffice it to say that Judge Kleinfeld is entirely justified in ending the opinion with a footnote that says: "We are sending a copy of this decision to the California Bar for such action as it may deem appropriate regarding Mr. Dickson." And since even the briefest of digging reveals that Mr. Dickson has already been publicly discliplined by the Bar three separate times in the last decade, I have little doubt that Roy's looking at a suspension from the practice of law -- if not disbarment -- up the road. We tend not to like deliberate efforts to defraud the court, dontchaknow.
Winterrowd v. Nelson (9th Cir. - March 30, 2007)
This is a freakishly perfect opinion. Perfect. Both as a matter of style as well as a matter of substance.
I am incredibly impressed. And jealous. I wish that I could write half -- or even a tenth -- as well.
Colloquial. Reasonable. Breezy. Rational. Easy to read. Totally right on the merits. It's all of the above.
Hat's off to Judge Kozinski. Sometimes he writes great opinions. Sometimes he tries too hard. Sometimes he gets it wrong. But this one is utterly perfect. At least for a reader like me.
Wow.
I am incredibly impressed. And jealous. I wish that I could write half -- or even a tenth -- as well.
Colloquial. Reasonable. Breezy. Rational. Easy to read. Totally right on the merits. It's all of the above.
Hat's off to Judge Kozinski. Sometimes he writes great opinions. Sometimes he tries too hard. Sometimes he gets it wrong. But this one is utterly perfect. At least for a reader like me.
Wow.
Paniagua v. Orange County Fire Authority (Cal. Ct. App. - March 29, 2007)
Justice Rylaarsdam begins the discussion section of his opinion in this case with a paragraph that includes the line: "Although the trial court based its decision on other grounds, we review the result, not its rational."
Whoops. That's the sort of stuff that the spell-checker doesn't catch. I believe that you meant "rationale".
Let's quickly amend to add the e.
Whoops. That's the sort of stuff that the spell-checker doesn't catch. I believe that you meant "rationale".
Let's quickly amend to add the e.
Thursday, March 29, 2007
In Re Estate of Drummond (Cal. Ct. App. - March 29, 2007)
Mr. Drummond has died! Who gets his vast estate is a hotly contested dispute!
No, not that Mr. Drummond. And, no, he's not one of the beneficiaries. (So I guess he'll still have to do lame commercials for -- and get loans from -- hard money lenders such as CashCall. Sorry, Gary.)
No, not that Mr. Drummond. And, no, he's not one of the beneficiaries. (So I guess he'll still have to do lame commercials for -- and get loans from -- hard money lenders such as CashCall. Sorry, Gary.)
People v. Baughman (Cal. Ct. App. - March 29, 2007)
Daddy commits repeated incest with his 14-year old daughter. Daddly lives -- surprise -- in a trailer.
How trite. How depressing.
Daddy now lives in prison for the next 9 years and 8 months.
Affirmed.
How trite. How depressing.
Daddy now lives in prison for the next 9 years and 8 months.
Affirmed.
Wednesday, March 28, 2007
Feduniak v. California Coastal Comm'n (Cal. Ct. App. - March 27, 2007)
Tough life.
Robert and Maureen Feduniak spend $13,000,000 to buy a house on a 1.67 acre parcel of property on the 17-Mile Drive in Pebble Beach that contains a private three-hole pitch-and-putt golf course (called "Fan Shell Greens") that surrounds the house. Not bad. Needless to say, the coolness factor of having your own private golf course in Pebble Beach is a key reason the house went for a cool 13 mill. And that was seven years ago.
Problem is, the surrounding golf course clearly violates the 1983 Coastal Commission permit that authorized the building of the house, since the permit expressly requires the surrounding land to be devoted to natural grasses and the like. A prior owner basically totally ignored the permit when he built the private golf course. And the Coastal Commission did utterly nothing about it. Impressive enforcement regime, huh?
The trial court found that the Coastal Commission was estopped to require the Feduniaks to restore the land to its natural condition (consistent with the permit) because everyone in the world knew that this prominent house had a private golf course on it. But Justice Rushing reverses. No more private pitch-and-putt for you, Mr. and Mrs. Feduniak. Looks like you should have looked up the permit before you shelled out $13 million. Time to sue everyone and their mother -- the seller, the title company, the brokers, etc. -- associated in any way with the transaction, eh?
So enjoy Fan Shell Greens while you can, my friends. It'll probably be native dune plants and grasses soon enough.
Robert and Maureen Feduniak spend $13,000,000 to buy a house on a 1.67 acre parcel of property on the 17-Mile Drive in Pebble Beach that contains a private three-hole pitch-and-putt golf course (called "Fan Shell Greens") that surrounds the house. Not bad. Needless to say, the coolness factor of having your own private golf course in Pebble Beach is a key reason the house went for a cool 13 mill. And that was seven years ago.
Problem is, the surrounding golf course clearly violates the 1983 Coastal Commission permit that authorized the building of the house, since the permit expressly requires the surrounding land to be devoted to natural grasses and the like. A prior owner basically totally ignored the permit when he built the private golf course. And the Coastal Commission did utterly nothing about it. Impressive enforcement regime, huh?
The trial court found that the Coastal Commission was estopped to require the Feduniaks to restore the land to its natural condition (consistent with the permit) because everyone in the world knew that this prominent house had a private golf course on it. But Justice Rushing reverses. No more private pitch-and-putt for you, Mr. and Mrs. Feduniak. Looks like you should have looked up the permit before you shelled out $13 million. Time to sue everyone and their mother -- the seller, the title company, the brokers, etc. -- associated in any way with the transaction, eh?
So enjoy Fan Shell Greens while you can, my friends. It'll probably be native dune plants and grasses soon enough.
Tuesday, March 27, 2007
Reedy v. Bussell (Cal. Ct. App. - March 27, 2007)
I'm glad that Justice Bedsworth (belatedly) decided to publish this opinion. If only to tell the universe that large components of the Bussell family -- John Bussell, Letantia Bussell, and their son Todd Bussell -- appear to be total jerks, and the kind of people with whom one would prefer to have nothing to do. And that's saying a lot, since I was initially somewhat inclined to be sympathetic to the family, especially since John Bussell committed suicide in 2002.
You'll have to read the opinion to see just how pervasively abusive these family members seem to be. Their misconduct allegedly entailed not merely the underlying transactions -- basically the alleged theft of money from a trust, $20,000 of which was spent on European "study abroad" trips for the Bussell daughters and $200,000 paid to an attorney representing John and Letantia on criminal fraud and tax evasion charges -- but also their pervasive abuse and misconduct during the litigation process. Simply put, these individuals were the litigants from hell: the kind of people you hate litigating against.
Ultimately -- and totally justly -- the trial court grants terminating sanctions against Letantia and Todd. And Justice Bedsworth rightly affirms, and does so with an appropriate amount of derision towards the offending parties. So justice is eventually done.
The only thing that I wanted to add to the opinion, which is definitely worth reading, is to say that I had a tiny different reaction than Justice Bedsworth to the trial court (Judge Monarch). Justice Bedsworth explains that the trial court granted terminating sanctions only after bending over backwards towards Letantia and Todd in an attempt to assist them. The conclusion of Part III exemplifies Justice Bedsworth's approach towards the merits: "We find no abuse of the court's discretion. Indeed, we marvel at its forebearance."
I'd have potentially spelled that last word as "forbearance", but aside from that minor difference, I definitely agree with the underlying sentiment. The trial court was remarkably tolerant of Letantia and Todd -- much more than I would have been. It definitely granted terminating sanctions only after these parties had repeatedly demonstrated their utter contempt for the proper functioning of the civil judicial system, and I agree with Justice Bedsworth that far from abusing its discretion, the trial court showed remarkable restraint.
The one thing that I might add, however, is that exceptional restraint in this setting is not always a virtue. Justice Bedsworth's opinion casts the careful and deliberate nature of the trial court in a favorable light. I generally agree, but there are also real downsides here, and ones that I would have bothered to mention. When a party is, as here, utterly contemptuous, a trial court does not necessarily do justice by sitting back and, as I think Judge Monarch did here, intervening in the process only at the last possible minute. Abuse of this nature requires a more active approach: one that preserves and protects the rights of the non-abusive parties. My keen sense was that Judge Monarch basically allowed, with limited intervention, the discovery and other abuses here until the last possible moment, and only then did he effectively intervene.
Patience of this type has its virtues, but is a vice as well. Sometimes abusive parties need to be slapped down a lot quicker than they are. And, in my view, this case is a perfect example.
I'd have mentioned that fact. Yes, the trial court surely didn't abuse its discretion in granting terminating sanctions. But I'd have potentially painted the trial court a little less favorably than Justice Bedsworth does, and would surely have mentioned the need -- as well as the legitimacy -- of stepping in quickly, and in a very powerful fashion, when parties consistently engage in the type of conduct evidenced in this case.
It's nonetheless a good opinion. Read it. And be glad you weren't the lawyer who had to deal with these schmucks on the other side.
You'll have to read the opinion to see just how pervasively abusive these family members seem to be. Their misconduct allegedly entailed not merely the underlying transactions -- basically the alleged theft of money from a trust, $20,000 of which was spent on European "study abroad" trips for the Bussell daughters and $200,000 paid to an attorney representing John and Letantia on criminal fraud and tax evasion charges -- but also their pervasive abuse and misconduct during the litigation process. Simply put, these individuals were the litigants from hell: the kind of people you hate litigating against.
Ultimately -- and totally justly -- the trial court grants terminating sanctions against Letantia and Todd. And Justice Bedsworth rightly affirms, and does so with an appropriate amount of derision towards the offending parties. So justice is eventually done.
The only thing that I wanted to add to the opinion, which is definitely worth reading, is to say that I had a tiny different reaction than Justice Bedsworth to the trial court (Judge Monarch). Justice Bedsworth explains that the trial court granted terminating sanctions only after bending over backwards towards Letantia and Todd in an attempt to assist them. The conclusion of Part III exemplifies Justice Bedsworth's approach towards the merits: "We find no abuse of the court's discretion. Indeed, we marvel at its forebearance."
I'd have potentially spelled that last word as "forbearance", but aside from that minor difference, I definitely agree with the underlying sentiment. The trial court was remarkably tolerant of Letantia and Todd -- much more than I would have been. It definitely granted terminating sanctions only after these parties had repeatedly demonstrated their utter contempt for the proper functioning of the civil judicial system, and I agree with Justice Bedsworth that far from abusing its discretion, the trial court showed remarkable restraint.
The one thing that I might add, however, is that exceptional restraint in this setting is not always a virtue. Justice Bedsworth's opinion casts the careful and deliberate nature of the trial court in a favorable light. I generally agree, but there are also real downsides here, and ones that I would have bothered to mention. When a party is, as here, utterly contemptuous, a trial court does not necessarily do justice by sitting back and, as I think Judge Monarch did here, intervening in the process only at the last possible minute. Abuse of this nature requires a more active approach: one that preserves and protects the rights of the non-abusive parties. My keen sense was that Judge Monarch basically allowed, with limited intervention, the discovery and other abuses here until the last possible moment, and only then did he effectively intervene.
Patience of this type has its virtues, but is a vice as well. Sometimes abusive parties need to be slapped down a lot quicker than they are. And, in my view, this case is a perfect example.
I'd have mentioned that fact. Yes, the trial court surely didn't abuse its discretion in granting terminating sanctions. But I'd have potentially painted the trial court a little less favorably than Justice Bedsworth does, and would surely have mentioned the need -- as well as the legitimacy -- of stepping in quickly, and in a very powerful fashion, when parties consistently engage in the type of conduct evidenced in this case.
It's nonetheless a good opinion. Read it. And be glad you weren't the lawyer who had to deal with these schmucks on the other side.
U.S. v. Howard (9th Cir. - March 27, 2007)
No. I mean, yes. Okay, I really mean it this time. Yes.
That's basically what Chief Judge Schroeder says in this long-running dispute regarding whether everyone who initially appears before a federal magistrate judge in Los Angeles will be shackled.
Judge Schroeder originally wrote an opinion -- back in November 2005 -- that held that the uniform shackling policy implemented in the Central District was impermissible, over the dissent of Judge Clifton. (For what it's worth, it took over a year after oral argument for this opinion -- in a case involving an interlocutory appeal -- to be published.) Then, a year later, in September 2006, the panel withdrew its original opinion and filed a new opinion that upheld the uniform shackling policy, albeit somewhat meekly.
Then, earlier today, the panel withdrew its amended opinion and filed a new -- and presumably final -- opinion that again upheld the uniform shackling policy, this time a little more strongly.
Third time's a charm?
That's basically what Chief Judge Schroeder says in this long-running dispute regarding whether everyone who initially appears before a federal magistrate judge in Los Angeles will be shackled.
Judge Schroeder originally wrote an opinion -- back in November 2005 -- that held that the uniform shackling policy implemented in the Central District was impermissible, over the dissent of Judge Clifton. (For what it's worth, it took over a year after oral argument for this opinion -- in a case involving an interlocutory appeal -- to be published.) Then, a year later, in September 2006, the panel withdrew its original opinion and filed a new opinion that upheld the uniform shackling policy, albeit somewhat meekly.
Then, earlier today, the panel withdrew its amended opinion and filed a new -- and presumably final -- opinion that again upheld the uniform shackling policy, this time a little more strongly.
Third time's a charm?
Monday, March 26, 2007
People v. Zurinaga (Cal. Ct. App. - March 26, 2007)
I agree with Justice Perren that the prosecutor's extended reference to 9/11 in this case was error, and also thought that Justice Perren (rightly) took the underlying issue seriously.
That said, the opinion highlights the problem of prosecutorial misconduct and the wholesale inability -- or unwillingness -- of the judiciary to do much about it. Judge O'Neill not only didn't order a mistrial (or even instruct the jury to disregard the comments) when the prosecutor made the improper analogy to 9/11, but also permitted the prosecutor to continue with these improper comments even after defendants objected. Justice Perren, by contrast, correctly holds the comments to be prejudicial, but holds that the error was harmless because (1) we presume that jurys follow the traditional instruction that closing arguments aren't evidence and (2) the evidence against defendants here was allegedly overwhelming. But if (1) is true then prosecutorial misconduct during closing argument is never reversible error, and this seems an extremely poor case in which to argue (2) given that (as far as I can tell from the opinion) the only evidence against defendants consisted of (notoriously unreliable) eyewitness identifications given over a year after the crime. This is hardly what I would traditionaly call "overwhelming" evidence against the accused.
Ultimately, I'm happy that the perpetrators of this crime are (allegedly) off the street. And for a long time. But I'm nonetheless somewhat displeased with how even conscientious judges -- including the ones here -- address prosecutorial misconduct. I think that the misconduct during closing argument here was pretty egregious. And for it to go forward without any effective sanction seems untoward.
That said, the opinion highlights the problem of prosecutorial misconduct and the wholesale inability -- or unwillingness -- of the judiciary to do much about it. Judge O'Neill not only didn't order a mistrial (or even instruct the jury to disregard the comments) when the prosecutor made the improper analogy to 9/11, but also permitted the prosecutor to continue with these improper comments even after defendants objected. Justice Perren, by contrast, correctly holds the comments to be prejudicial, but holds that the error was harmless because (1) we presume that jurys follow the traditional instruction that closing arguments aren't evidence and (2) the evidence against defendants here was allegedly overwhelming. But if (1) is true then prosecutorial misconduct during closing argument is never reversible error, and this seems an extremely poor case in which to argue (2) given that (as far as I can tell from the opinion) the only evidence against defendants consisted of (notoriously unreliable) eyewitness identifications given over a year after the crime. This is hardly what I would traditionaly call "overwhelming" evidence against the accused.
Ultimately, I'm happy that the perpetrators of this crime are (allegedly) off the street. And for a long time. But I'm nonetheless somewhat displeased with how even conscientious judges -- including the ones here -- address prosecutorial misconduct. I think that the misconduct during closing argument here was pretty egregious. And for it to go forward without any effective sanction seems untoward.
Friday, March 23, 2007
People v. Jenan (Cal. Ct. App. - March 23, 2007)
What exactly does it take before we call you a nut job? Or, in legalese, before we're convinced that you're insufficiently competent to handle or understand your own defense that we appoint someone to examine you?
Usually, I know the answer to that question, but after reading this case, I recognized that I'm not entirely sure what the actual answer is. In the typical case, the potentially "incompetent" defendant is too psychotic, drugged up, injured, or simply out of it to understand. But that's not the case here.
The defendants here are instead potentially "incompetent" because they're simply nutty: they are articulate and "smart" (in a way, I guess) and even know a lot about "the law" -- or at least the law in Bizzaroland. Their problem is that they're one of these group of (ever-increasing) nutballs who've been convinced (or who have convinced themselves) that they can defend themselves in court with any number of absurd legal theories (their own "sovereignty" or "abatement" or whatever) that simply bear no reference to what the actual law is anywhere on this planet. In other words, they're smart and articulate and intelligent enough to defend themselves, but the actual content of their legal beliefs gets in the way of their defense. And hence instead of actually saying anything that's helpful, they just say stupid stuff that makes utterly no sense.
Does that make a defendant incompetent? I don't know. Justice Gomes thinks it does; or, at least, that it requires a mental examination. But what's that gonna do? These guys aren't insane or incompetent in any way that I think comports with anything in the DSM. Rather, it's more like an otherwise intelligent person who currently believes -- for whatever reason -- that the law is X even though anyone (even a moron) with any sort of legal training would realize that the law is clearly not X and is instead Y.
For example, what if I -- an otherwise bright person -- were to suddenly become convinced that the 17th Amendment granted me ownership of every red Lexus in the United States. Sure, everyone else reads the 17th Amendment as merely concerned with the qualifications of Senators and the like. But I've got a legal theory that I'm totally excited to expound on why this means that I own all the red cars in California. But, shocker of shockers, no one else agrees with me. So when I'm criminally charged with stealing a red Lexus, and I can't find a lawyer who shares my nutso reading of the 17th Amendment, I represent myself and drone on about what the Framers really meant by "Senator" was an internal combustion engine, that "two" was in the old days when automobiles weren't that numerous, but in the modern era I'm entitled to all the red cars and not merely two, etc. etc. I'm talking English and citing cases and understand precedent and the like, so I am "competent" in a way. But the actual content of my "defense" and thoughts are utterly absurd.
Does that make me incompetent? In a way, I am incompetent -- I can't actually help myself, since my ideas are so stupid that my insisted articulation of them only hurts me. But how is that any different from someone who believes (absurdly) that the jury won't find them guilty even though every netural person would realize that the jury's indisputably going to convict?
So, in the end, I'm not really sure at all that I even know what it means to be incompetent. At least when, as here, the defendants seem to have intact mental processes and yet those processes lead to results that we all would clearly recognize as utterly irrational. And yet, clearly, while I'm hesitant to call say that someone is incompetent merely because I disagree with, say, their interpretation of legal precedent, at the same time I am utterly convinced that these defendants here are "incompetent" to defend themselves given their nutball beliefs about how best to do so. And I'm sufficiently worried about convicting innocent people that this is a problem for me.
Obviously one way to avoid this is simply not to let people defend themselves, and I think there's something to that -- even though there's a whole lot on the other side as well. But, in general, especially after reading this case, I'm still somewhat at a loss both as to the type of legal "competence" we require as well as how we should (and/or do) measure it. Any solution or definition I come up with seems like it's got problems.
In short, at least in dealing with nutballs, I guess I'm convinced that there are only hard questions, and for sure that there are no easy answers. Oh well. At least reading the first dozen pages of the case made me think: "However insane I ever become, hopefully I'll never be this insane." Or, more accurately, "However distorted my personal view of precedent, at least I'm not this big of a nutjob."
So I got that going for me. Which is nice.
Usually, I know the answer to that question, but after reading this case, I recognized that I'm not entirely sure what the actual answer is. In the typical case, the potentially "incompetent" defendant is too psychotic, drugged up, injured, or simply out of it to understand. But that's not the case here.
The defendants here are instead potentially "incompetent" because they're simply nutty: they are articulate and "smart" (in a way, I guess) and even know a lot about "the law" -- or at least the law in Bizzaroland. Their problem is that they're one of these group of (ever-increasing) nutballs who've been convinced (or who have convinced themselves) that they can defend themselves in court with any number of absurd legal theories (their own "sovereignty" or "abatement" or whatever) that simply bear no reference to what the actual law is anywhere on this planet. In other words, they're smart and articulate and intelligent enough to defend themselves, but the actual content of their legal beliefs gets in the way of their defense. And hence instead of actually saying anything that's helpful, they just say stupid stuff that makes utterly no sense.
Does that make a defendant incompetent? I don't know. Justice Gomes thinks it does; or, at least, that it requires a mental examination. But what's that gonna do? These guys aren't insane or incompetent in any way that I think comports with anything in the DSM. Rather, it's more like an otherwise intelligent person who currently believes -- for whatever reason -- that the law is X even though anyone (even a moron) with any sort of legal training would realize that the law is clearly not X and is instead Y.
For example, what if I -- an otherwise bright person -- were to suddenly become convinced that the 17th Amendment granted me ownership of every red Lexus in the United States. Sure, everyone else reads the 17th Amendment as merely concerned with the qualifications of Senators and the like. But I've got a legal theory that I'm totally excited to expound on why this means that I own all the red cars in California. But, shocker of shockers, no one else agrees with me. So when I'm criminally charged with stealing a red Lexus, and I can't find a lawyer who shares my nutso reading of the 17th Amendment, I represent myself and drone on about what the Framers really meant by "Senator" was an internal combustion engine, that "two" was in the old days when automobiles weren't that numerous, but in the modern era I'm entitled to all the red cars and not merely two, etc. etc. I'm talking English and citing cases and understand precedent and the like, so I am "competent" in a way. But the actual content of my "defense" and thoughts are utterly absurd.
Does that make me incompetent? In a way, I am incompetent -- I can't actually help myself, since my ideas are so stupid that my insisted articulation of them only hurts me. But how is that any different from someone who believes (absurdly) that the jury won't find them guilty even though every netural person would realize that the jury's indisputably going to convict?
So, in the end, I'm not really sure at all that I even know what it means to be incompetent. At least when, as here, the defendants seem to have intact mental processes and yet those processes lead to results that we all would clearly recognize as utterly irrational. And yet, clearly, while I'm hesitant to call say that someone is incompetent merely because I disagree with, say, their interpretation of legal precedent, at the same time I am utterly convinced that these defendants here are "incompetent" to defend themselves given their nutball beliefs about how best to do so. And I'm sufficiently worried about convicting innocent people that this is a problem for me.
Obviously one way to avoid this is simply not to let people defend themselves, and I think there's something to that -- even though there's a whole lot on the other side as well. But, in general, especially after reading this case, I'm still somewhat at a loss both as to the type of legal "competence" we require as well as how we should (and/or do) measure it. Any solution or definition I come up with seems like it's got problems.
In short, at least in dealing with nutballs, I guess I'm convinced that there are only hard questions, and for sure that there are no easy answers. Oh well. At least reading the first dozen pages of the case made me think: "However insane I ever become, hopefully I'll never be this insane." Or, more accurately, "However distorted my personal view of precedent, at least I'm not this big of a nutjob."
So I got that going for me. Which is nice.
Beecher v. C.I.R. (9th Cir. - March 23, 2007)
I can't fathom what appellants were trying to do in this case. Their appeal seems utterly irrational -- a matter that involves merely a financial dispute (here, a tax deficiency), not a lot of money (in the tens of thousands), and no probability of success in the appeal whatsoever.
I just don't see how anyone could possibly think it's worth spending time and effort and attorney's fees on an appeal that challenges a totally rational IRS regulation that says you can't use passive losses to offset money you pay yourself; moreover, a regulation that's already been upheld -- uniformly, no less -- by every federal appellate court that has considered the matter.
It just doesn't make sense to me. Rational sense, anyway.
I just don't see how anyone could possibly think it's worth spending time and effort and attorney's fees on an appeal that challenges a totally rational IRS regulation that says you can't use passive losses to offset money you pay yourself; moreover, a regulation that's already been upheld -- uniformly, no less -- by every federal appellate court that has considered the matter.
It just doesn't make sense to me. Rational sense, anyway.
Thursday, March 22, 2007
People v. Beames (Cal. Supreme Court - March 22, 2007)
Don't read the first six pages of this case if you have little kids. It's about a 15-month-old daughter allegedly killed -- via horrific child abuse -- at the hands of the defendant, who was sentenced to death. Chilling stuff.
Needless to say, the California Supreme Court unanimously affirms the sentence.
Needless to say, the California Supreme Court unanimously affirms the sentence.
In Re Timothy Arnett (Cal. Ct. App. - March 15, 2007)
I had no idea that there were a plethora of special rules regarding the ability of an incarcerated prisoner to change his or her name. Apparently there are.
You learn something new every day.
You learn something new every day.
Wednesday, March 21, 2007
Preschooler II v. Clark County School Board (9th Cir. - March 21, 2007)
You know it's an ugly and disturbing case when the lawsuit involves a four-year old disabled child and the final paragraph of the opinion reads: "AFFIRMED as to the denial of qualified immunity on the head beating and slamming claims; REVERSED as to the denial of qualified immunity on the unexplained bruises, scratches, and shoeless walks claims; and REMANDED for further proceedings."
Yikes.
Yikes.
U.S. v. Al Nassar (9th Cir. - March 20, 2007)
You'd think that this was a law school exam hypothetical if you didn't read it in the Federal Reporter. There's so many strange facts that make the proper resolution difficult that you'd think the professor had deliberately made them up:
"A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the
stretch of highway came over too.
Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and directed the driver to pull over with hand gestures. After the sedan
stopped, the agent took the keys, and determined that this second stop did indeed produce illegal aliens.
While the three law enforcement vehicles, with two light bars flashing, and the two stopped vehicles were still there, Al Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit, and again saw people hiding on the floor behind the front seat. He thought this car probably had illegal aliens in it, and said so to his colleague, but chose not to stop it because they already had their hands full. The Border Patrol agents were still busy processing the illegal aliens in the sedan, and the tribal officer was still processing the people with alcohol in the pickup truck.
But Al Nasser stopped anyway. It is understandable that he did, since there were now five vehicles pulled to the side of the road, two or three with flashing lights, more or less blocking the northbound lane. But no one told him or signaled him to stop. . . . The Border Patrol agents were just too busy for another carful of illegal aliens and were going to let this one go to avoid the safety problem of having to control so many people.
The Border Patrol agent spoke to Al Nasser in Spanish, assuming he was Mexican, but it turned out that Al Nasser was Iraqi and could not understand Spanish."
Some neat Fourth Amendment issues. That Judge Kleinfeld (over Judge Ferguson's dissent) resolves against Al Nasser.
"A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the
stretch of highway came over too.
Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and directed the driver to pull over with hand gestures. After the sedan
stopped, the agent took the keys, and determined that this second stop did indeed produce illegal aliens.
While the three law enforcement vehicles, with two light bars flashing, and the two stopped vehicles were still there, Al Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit, and again saw people hiding on the floor behind the front seat. He thought this car probably had illegal aliens in it, and said so to his colleague, but chose not to stop it because they already had their hands full. The Border Patrol agents were still busy processing the illegal aliens in the sedan, and the tribal officer was still processing the people with alcohol in the pickup truck.
But Al Nasser stopped anyway. It is understandable that he did, since there were now five vehicles pulled to the side of the road, two or three with flashing lights, more or less blocking the northbound lane. But no one told him or signaled him to stop. . . . The Border Patrol agents were just too busy for another carful of illegal aliens and were going to let this one go to avoid the safety problem of having to control so many people.
The Border Patrol agent spoke to Al Nasser in Spanish, assuming he was Mexican, but it turned out that Al Nasser was Iraqi and could not understand Spanish."
Some neat Fourth Amendment issues. That Judge Kleinfeld (over Judge Ferguson's dissent) resolves against Al Nasser.
Tuesday, March 20, 2007
Reiserer v. United States (9th Cir. - March 20, 2007)
An attorney (Kenneth Reiserer) who sold patently abusive offshore employee leasing tax avoidance schemes. An IRS subpoena on the attorney's account at Bank of America. A motion to quash. A dead attorney. A claim of privilege. Imposition of tax penalties on the dead attorney. An appeal.
Judge Schwarzer (sitting by designation) has the rest of the story. Affirmed.
P.S. - A little digging reveals that Mr. Reiserer (who practiced in California and then moved to Washington State in 1997) apparently fought in Vietnam and was awarded the Bronze Star. Too bad his final recognition arises from pitching abusive shelters.
Judge Schwarzer (sitting by designation) has the rest of the story. Affirmed.
P.S. - A little digging reveals that Mr. Reiserer (who practiced in California and then moved to Washington State in 1997) apparently fought in Vietnam and was awarded the Bronze Star. Too bad his final recognition arises from pitching abusive shelters.
Cascade Health Solutions v. PeaceHealth (9th Cir. - March 20, 2007)
Earlier this month I noted that the Ninth Circuit invited bored evidence students to submit amicus briefs on a FRE 804(a) issue. Okay, so they didn't just limit it to bored evidence students. But you know what I mean.
Time's running out on those letter briefs, though: They're due at the end of the month. So today the Ninth Circuit apparently decided to keep the assignments churning, and invites bored antitrust students to submit amicus briefs as well.
This is quite stunning: I don't remember another year with anything similar coming down from the Ninth Circuit, much less two such invitations in a given month. Plus it's even not the same panel; the only common thread to the two invitations is that Judge Gould is on both cases. I guess March is simply "Take Advice and Wisdom From Anyone Who Feels Like Dispensing It" Month.
An interesting development. Anyway, if you have -- or would like to have -- a keen sense about what sort of cost showings are required in bundled discount predatory pricing cases, the Ninth Circuit wants you. As do we all.
So get to work and submit your (second!) letter brief of March. (Though this one's not due until April 19th. Still, no time like the present!)
Time's running out on those letter briefs, though: They're due at the end of the month. So today the Ninth Circuit apparently decided to keep the assignments churning, and invites bored antitrust students to submit amicus briefs as well.
This is quite stunning: I don't remember another year with anything similar coming down from the Ninth Circuit, much less two such invitations in a given month. Plus it's even not the same panel; the only common thread to the two invitations is that Judge Gould is on both cases. I guess March is simply "Take Advice and Wisdom From Anyone Who Feels Like Dispensing It" Month.
An interesting development. Anyway, if you have -- or would like to have -- a keen sense about what sort of cost showings are required in bundled discount predatory pricing cases, the Ninth Circuit wants you. As do we all.
So get to work and submit your (second!) letter brief of March. (Though this one's not due until April 19th. Still, no time like the present!)
Monday, March 19, 2007
Berg v. Traylor (Cal. Ct. App. - March 19, 2007)
What a joy it must be to be a child actor. After all, they uniformly live charmed lives as adults, right?
Here's a little story about a child actor named Craig Lamar Traylor, who for the past six years has played Stevie Kenarbin -- the African-American kid in a wheelchair on "Malcolm in the Middle". Back in 1999, before Craig (who was then 10 years old) had any substantial acting experience, Craig -- through his mother -- hired Sharyn Berg as his personal manager in return for 15%. Then, in 2001, Craig landed his role on Malcom. And four months later, Craig purported to fire his manager in order to escape the 15%. Except the contract doesn't work that way, so the manager sued.
I'll spare you the neverending -- but somewhat interesting -- procedural and other details about the resulting arbitration proceedings and motions. Let's just say that Craig's mother -- Meshiel Cooper Traylor -- doesn't come out smelling like a rose, and Craig and his mother eventually go through four different sets of attorneys after the first three withdraw for things like not getting paid, not having their calls returned, and not having their advice followed. Eventually Berg gets a substantial judgment against both Traylors, who then appeal. And Justice Doi Todd reverses the judgment against Craig (the child) but affirms against Meshiel (the mother) on the ground that the former, as a minor, was permitted to disaffirm all of the relevant agreements but the latter was not.
There's actually an interesting underlying question in my mind about what sorts of contracts to which minors may be permissibly bound as a third party beneficiary. I definitely don't know the law here, but there doesn't seem to be a particularly good boundary between those types of obligations (to which a minor may be bound) and obligations as a principal which the minor may disaffirm.
Regardless, at least in this case, the child actor is off the hook, but his mother is not. One more thing. Justice Doi Todd is pretty shocked that no one below moved for a guardian ad litem. I'm less surprised. Sure, we all in retrospect might think that should obviously have transpired. But I don't think it's at all uncommon for people -- including litigants -- to naturally think that in civil litigation, a parent is a reasonable guardian who can effectively advance her child's best interests. So even if it was a mistake here (and I think it was), I can see why the mistake was made. Which doesn't justify it, obviously; nonetheless, my shock was somewhat less than Justice Doi Todd's.
Here's a little story about a child actor named Craig Lamar Traylor, who for the past six years has played Stevie Kenarbin -- the African-American kid in a wheelchair on "Malcolm in the Middle". Back in 1999, before Craig (who was then 10 years old) had any substantial acting experience, Craig -- through his mother -- hired Sharyn Berg as his personal manager in return for 15%. Then, in 2001, Craig landed his role on Malcom. And four months later, Craig purported to fire his manager in order to escape the 15%. Except the contract doesn't work that way, so the manager sued.
I'll spare you the neverending -- but somewhat interesting -- procedural and other details about the resulting arbitration proceedings and motions. Let's just say that Craig's mother -- Meshiel Cooper Traylor -- doesn't come out smelling like a rose, and Craig and his mother eventually go through four different sets of attorneys after the first three withdraw for things like not getting paid, not having their calls returned, and not having their advice followed. Eventually Berg gets a substantial judgment against both Traylors, who then appeal. And Justice Doi Todd reverses the judgment against Craig (the child) but affirms against Meshiel (the mother) on the ground that the former, as a minor, was permitted to disaffirm all of the relevant agreements but the latter was not.
There's actually an interesting underlying question in my mind about what sorts of contracts to which minors may be permissibly bound as a third party beneficiary. I definitely don't know the law here, but there doesn't seem to be a particularly good boundary between those types of obligations (to which a minor may be bound) and obligations as a principal which the minor may disaffirm.
Regardless, at least in this case, the child actor is off the hook, but his mother is not. One more thing. Justice Doi Todd is pretty shocked that no one below moved for a guardian ad litem. I'm less surprised. Sure, we all in retrospect might think that should obviously have transpired. But I don't think it's at all uncommon for people -- including litigants -- to naturally think that in civil litigation, a parent is a reasonable guardian who can effectively advance her child's best interests. So even if it was a mistake here (and I think it was), I can see why the mistake was made. Which doesn't justify it, obviously; nonetheless, my shock was somewhat less than Justice Doi Todd's.
Irons v. Carey (9th Cir. - March 6, 2007)
Do Judges Noonan and Reinhardt like the restrictions on habeas created by the AEDPA? No. Not at all. And they write to make that fact clear.
That said, they also know they're a minority on this one. So they simply write for the ages.
That said, they also know they're a minority on this one. So they simply write for the ages.
Friday, March 16, 2007
California Housing Finance Agency v. Hanover/California (Cal. Ct. App. - May 15, 2007)
Want to read about a California attorney who really did commit fraud? Then take a look at this.
It looks like the attorney, Robert McWhirk (a Davis graduate), had a darn good thing going there. Until he got caught.
On the upside, he apparently resigned his Bar membership before charges had been filed against him. Let's hope we don't see him representing clients again.
It looks like the attorney, Robert McWhirk (a Davis graduate), had a darn good thing going there. Until he got caught.
On the upside, he apparently resigned his Bar membership before charges had been filed against him. Let's hope we don't see him representing clients again.
Thursday, March 15, 2007
In Re Sheena K. (Cal. Supreme Ct. - May 15, 2007)
"What?! I've already basically finished writing this 21-page opinion regarding the constitutional validity of various probation conditions, alongside some forfeiture issues, and have also gotten all of the other justices signed up. Do you really want me to rip the thing up just because the defendant is now dead (and hence the case moot)?! No way. I'm going to crank it out anyway. You can't stop me."
That's basically what Chief Justice George says here.
At least the opinion is a permanent post-death memorial to Sheena K., who was a ward of the court and who died shortly before her 20th birthday. From circumstances which, though unmentioned in the opinion, I feel quite confident were far from good. Not that dying at 19 is ever good, mind you.
For that reason, although the Court always seals the name of the relevant juvenile in such proceedings, and I don't ever publish them, I think an exception is appropriate here. The respondent's name was Sheena Latrice King. May you be in a better place, Sheena.
P.S. - This is also another downside of holding onto cases for years, California Supreme Court. The briefs were complete in 2004. It took you three years to write an opinion. Sometimes people die when it takes you years and years to adjudicate a case. Not to mention the fact that their legal status remains in limbo the whole time. Speed it up, my friends.
That's basically what Chief Justice George says here.
At least the opinion is a permanent post-death memorial to Sheena K., who was a ward of the court and who died shortly before her 20th birthday. From circumstances which, though unmentioned in the opinion, I feel quite confident were far from good. Not that dying at 19 is ever good, mind you.
For that reason, although the Court always seals the name of the relevant juvenile in such proceedings, and I don't ever publish them, I think an exception is appropriate here. The respondent's name was Sheena Latrice King. May you be in a better place, Sheena.
P.S. - This is also another downside of holding onto cases for years, California Supreme Court. The briefs were complete in 2004. It took you three years to write an opinion. Sometimes people die when it takes you years and years to adjudicate a case. Not to mention the fact that their legal status remains in limbo the whole time. Speed it up, my friends.
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