Freedom Communications v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)

Talk about speedy justice.

Freedom Communications (i.e., the Orange County Register) is being sued in a wage-and-hour class action by its newspaper carriers. Ten days before the trial, counsel for plaintiffs seeks an ex parte order that precludes the O.C. Register from reporting about the trial or other things that might potentially influence jurors. The trial court denies the request, but sua sponte enters an order that, in the midst of precluding excluding witnesses from attending trial except during their own testimony, also prevents the O.C.R. from reporting on the trial testimony of witnesses during trial.

On Wednesday, September 24th, Freedom files a writ with the Court of Appeal. The next day, Thursday, the Court requests that an informal opposition (if any) be filed by noon on Friday. At 12:13 p.m. on Friday (!), plaintiffs do so. Within that same 48 hour period, Freedom has also got an amicus brief filed by the California Newspaper Publishers Association, which files its proposed brief (and application) on Friday.

During the afternoon on Monday, September 29th, the Court of Appeal (1) denies the application to file an amicus brief, and (2) issues a published per curiam opinion that elects to give plenary consideration to -- and grants -- the writ, holding that the court's order was an obviously invalid prior restraint.

That's not all. Late that same day -- though apparently published only the next morning -- the Court of Appeal realizes that they had forgotten to add a line in the opinion, and sua sponte adds the following to the end of the opinion: “The Register is entitled to its costs in this proceeding.”

Who says justice is invariably slow?

Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - Sept. 30, 2008)

When the Ninth Circuit grants a stay of the district court's order, that's often a hint as to what might happen on the merits.

As it was here.

Vaught v. Scottsdale Healthcare Corp. (9th Cir. - Sept. 29, 2008).

Here's another reason not to drive drunk. Because your health insurance company may well deny benefits to you, leaving you solely responsible for all of your (massive) hospitalization costs.

Didn't know they could (and did) do that. Good to know.

People v. Munoz (Cal. Ct. App. - Sept. 29, 2008)

Don't pass counterfeit bills. Don't pass and possess counterfeit bills each of which contains the same serial number. And, for goodness sake, don't pass counterfeit bills to pay your motel bill while you're still there, at least if there's stuff in the motel room you'd like to hide.

Because passing the counterfeit bills to pay for your room may eliminate your reasonable expectation of privacy and justifies a warrantless entry by the police.

P.S. - Here, that principle doesn't apply, since unwittingly passing a counterfeit bill (which is all the evidence here allegedly showed) isn't good enough, especially when the motel isn't actually trying to boot you for it. We all do that all the time. Still: Be forewarned. I want you to be the best counterfeiter you can be.

Perez v. City of Los Angeles (Cal. Ct. App. - Sept. 29, 2008)

This is not your usual police misconduct case.

My reaction to most of the opinions I read in which a police officer has been terminated (and then appeals his or her termination) involve negative reactions towards the officer and a feeling that the termination was more than justified. Abuse of power, corruption, etc. Nothing I'd like to see in an officer.

This one's different. First, for whatever it's worth, it initially struck me that we're talking about a female officer here, and I don't recall seeing many termination proceedings against similarly-situated individuals. Second, I have a keen sense here that what Officer Perez did was well-intended -- or at least partially well-intended -- and was designed to protect others rather than harm them. That's, again, different than your usual case.

Nonetheless, lots of what Justice Yegan says (in affirming the trial court's decision) rings true to me. You don't point a loaded weapon in someone else's face. Ever. Unless you intend to kill (or potentially kill) them, which was not the case here.

And definitely don't do it twice. Even if the second time you are just showing someone what you did.

Tough call as to the right result. But interesting facts. See what you think.

P.S. - Don't punch your partner or try to dissuade her, however gently, from ratting you out as well. But those are subsidiary points, and not really at issue in the appeal.

M.B. Financial Group v. USPS (9th Cir. - Sept. 25, 2008)

Want to know when (if ever) you can sue the United States Postal Service? Want to read a good statutory interpretation case? Want to see how a dissent might practically employ law and economics to advance a particular result?

If the answer to any of these three questions is "Yes," here's your assigned reading for the day.

Otherwise: Never mind.

P.S. - Judge Schroeder: Don't you mean "principal" in the sentence (at the top of page 13770) that currently reads: "Hence, negligent driving of postal trucks was a principle activity for which Congress wanted to create
liability when the FTCA waived sovereign immunity."?

Crawford v. Astrue (9th Cir. - Sept. 25, 2008)

This is a hard one. Make even harder by the fact that both the majority opinion (written by Judge Friedman, sitting by designation from the Federal Circuit, and joined by Judge Randy Smith) and the dissent (authored by Judge Betty Fletcher) make some pretty darn good points.

On the one hand, I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve.

One view, of course, might be that the free market works, and that we should just award these attorneys the statutory maximum that their clients agreed to pay. Perhaps especially when the lawyers, like those here, are no even piggish, and end up asking for only, say, $1000/hour (rather than $1700/hour). After all, they might not have won, so give 'em what they ask for.

On the other hand, even the modified requests here strike me as taking too much money out of the hands of a poor (and relatively helpless) client. Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.

Again, in the end, I'm not sure how I come out on this one. It's a tough case for someone like me, who feels a strong tug towards both sides.

I am certain, however, that if we really are paying $1500+ an hour for totally easy social security cases, other attorneys -- and better attorneys -- should start getting in on this racket.

DirecTV v. Webb (9th Cir. - Sept. 25, 2008)

You can occasionally obtain helpful life tips by reading Ninth Circuit opinions. Tips that will make your life go a little bit better, without the nasty bumps that events may otherwise sometimes bring.

So, for example, after reading this case, one might easily derive the following lesson: When you're stealing DirecTV by buying pirated access devices over the internet, make sure to tell your girlfriend.

Admittedly, disclosure of that fact might make you look a little cheap, and perhaps diminish your luster. But doing so will at least stop your girlfriend from calling DirecTV's customer service line when DirecTV employs electronic countermeasures on "Black Sunday" to knock out pirated devices. Because, my friend, once she calls, and once customer service rapidly determines that the caller isn't, in fact, paying for DirectTV, that's pretty good evidence that you're stealing the signal. And you'll be busted. And have to pay not only whatever statutory damages the court awards, but also a whole lot to your attorneys. An amount that, I assure you, is far beyond the $39.95 a month (or whatever) it costs for DirecTV.

So don't steal. Don't get caught stealing. And tell your girlfriend.

Bourgi v. West Covina Motors (Cal. Ct. App. - Sept. 24, 2008)

Remember that "new" car you purchased at the dealership? Are you sure it was really "new", as opposed to previously damaged, repaired, and then sold as "new"?

Think again.

Interesting stuff. Even if you don't happen to have purchased a "new" Hummer from Hummer of West Covina that, as it turns out, was one of the manny Hummers previously damaged by the Earth Liberation Front.

U.S. v. Gomez-Leon (9th Cir. - Sept. 24, 2008)

As anyone down here knows, the process is slow. But, eventually, if you commit enough crimes, and if you return after being deported again and again and again, they're eventually going to let you stay in the U.S. for a while. But you'll do so in prison.

Here's a glimpse into how border crimes have -- for better or worse -- historically been treated:

"[Gomez-Leon] entered the country illegally as early as 1994. In 1998, he came to the attention of immigration authorities when he was convicted for driving a vehicle under the influence of alcohol and without a license. That same year, he was removed to Mexico following a removal hearing before an immigration judge. Gomez then reentered the country illegally. In 1999, he was convicted of violating California Health & Safety Code section 11379(a), an offense involving controlled substances. He was removed to Mexico once again in 1999. Gomez again illegally reentered the country. He was convicted in 2000 of receiving stolen goods and of driving under the influence. He was removed to Mexico a third time in 2000. On November 4, 2003, he was convicted in California state court of vehicular manslaughter while intoxicated without gross negligence, Cal. Penal Code § 192(c)(3) (1998), for which he was sentenced to two years’ imprisonment. Following his release, Gomez was once again removed to Mexico in 2004. Six days later, Gomez was arrested at the Mexico-United States border and charged with the instant offense of attempted reentry. Following a non-jury trial, Gomez was found guilty and sentenced to 84 months’ imprisonment with three years of supervised release."

Not much time between the offenses and removal and reentry and reoffending, eh?

State of Alaska v. Federal Subsistence Board (9th Cir. - Sept. 23, 2008)

The lovely town of Wasilla, Alaska has gotten a fair amount of attention recently thanks to Sarah Pahlin. But Wasilla at least has several thousand residents.

More overlooked, however, is the even prettier town of Chistochina, Alaska. Which has a total population of 97 souls. And perhaps an even better view of Russia (from the top of Mount Sanford, anyway).

But no more. Chistochina has hit the big time.

So if you want to know about moose hunting by the 97 residents of Chistochina -- and what could possibly be more typically Alaskan -- have a read. And tell your friends that you know the "real" Alaska: the reality that is unknown to those fancy cityfolk of Wasilla.

In Re Shane G. (Cal. Ct. App. - Sept. 23, 2008)

I'm glad that Justice McConnell decided to publish this opinion. Not because it has any huge precedential significance. But rather because I learned something.

I'm the father of three small children, from age six to age one. But until I read this opinion, I didn't know what "enuresis" was. But since that word appears at the top of page four, I was forced to look it up.

So now I know.

I can't wait to work it into casual conversation.

Quinones v. Superior Court (Cal. Ct. App. - Sept. 22, 2008)

I don't care how big or strong you are. In San Diego, at least, if you get into a beef with another vehicle on the road, don't get out of your car and attempt to make even marginal hay. Nothing good will become of it. Either for the "winner" or "loser" of the resulting battle of wills.

Barrett v. Belleque (9th Cir. - Sept. 22, 2008)

Ah, the good old First Amendment. And the speech it protects. Including the right of a prisoner to send letters to his mother and grandmother (!) using vulgar and racist language to describe his captors.

Actually, the Ninth Circuit doesn't even hold that -- it merely holds that the complaint here survives a motion to dismiss. Whether you can be punished for insulting prison officials to your mother remains to be decided.

P.S. - On the merits, the holding here is clearly right, both as a procedural as well as constitutional matter. I'll only add that crafting a five-paragraph, per curiam opinion on this issue probably could have taken a little less than six months -- which is how long it took after oral argument here.

P.P.S. - Congrats to Leonard Feldman on this one, who represented the (formerly pro se) plaintiff. Leonard's at Heller (in Seattle), and was in my class at HLS and on the Ninth Circuit with me (albeit for a different judge). Nice win.

In Re Asencio (Cal. Ct. App. - Sept. 15, 2008)

Bad Fact No. 1: Your six-year old niece has gonorrhea.

Bad Fact No. 2: So do you.

Bad Fact No. 3: Your niece tells the police, while crying, and utterly credibly, that you improperly touched her.

Bad Fact No. 4: You admit to the police that you did indeed improperly touch her.

Bad Fact No. 5: Your story as to how the niece contracted gonorrhea is that you were innocently tickling her on the bed, she left, you promptly got an erection and began to masterbate, she came back in and started jumping on and tickling you, and then your penis somehow innocently "slipped" into her vagina during this process. Very credible. Happens all the time.

Icing on the Cake: You tell the police that your six-year old niece is constantly "coming onto you" and "purposely seducing you" by wearing loosely fitting clothes and climing so you can see up her skirt. In short, that your -- let me repeat, six-year old niece -- was "asking for it".

Are you really surprised as to where you'll stay for the next several decades?

Dumontier v. Schlumberger Technology Co. (9th Cir. - Sept. 11, 2008)

Defendant carelessly left some cesium-137 lying around, and you were exposed to it. You're freaked out, and would like to sue -- and at least get reimbursed for monitoring for cancer.

Tough luck. At least in the Ninth Circuit.

Sorry about that, Chief.

Cosa v. Mukasey (9th Cir. - Sept. 15, 2008)

It's amazing what you can learn by reading published opinions. For example, before this one, could I have told you what Millenism entails? Nope. No way. It's not even in Wikipedia, for goodness sake. (And, for you football fans, no, Millenism does not in fact involve the worship of Matt Millen.)

But now I sort of know. Which is cool.

Mind you, I still couldn't tell you the apparently complex relationship between Millenism and Russellism. (My only guess would be that the latter declare that the true Messiah is actually Nipsey Russell.) But neither could the petitioner here, and Judge McKeown rightly holds that this subtle intellectual deficiency is hardly a reason to find someone uncredible.

Anyway, read this one and mark yet another religion on your list of those about which you have only the slightest glimmer of understanding. Only several more thousand to go.

Carmona v. Carmona (9th Cir. - Sept. 17, 2008)

When you're reading a case about ERISA and the Rooker-Feldman doctrine (i.e., zzzzzzzz), you don't typically expect to see sentences like: "the dispute in this case only concerns wives number eight and nine. None of the previous seven wives are involved in the present litigation." (!)

But I guess one of the downsides of marrying nine different people, even if done successively, is that the distribution of your retirement assets might get a little confusing. Though I'm quite positive that this is the least of your problems. :-)

Wife No. Nine gets two years of loving before her hubby dies, and nine years (and counting) of litigation with Wife No. Eight. No fun all around.

Bromfield v. Mukasey (9th Cir. - Sept. 15, 2008)

We get up on our high horse sometimes.

Let's not forget that as recently as five years ago, some of the United States still retained criminal statutes that penalized homosexual sodomy with up to twenty years in prison. And that within the last twenty or so years, even our highest Court approved such prosecutions. And that private violence against homosexuals on account of their sexual orientation is hardly unknown in the United States.

So, yes, I totally agree -- totally -- that discrimination (and especially violence) based upon sexual orientation is utterly intolerable, and that state-sponsored sanctions are profoundly unjust. But let's just keep in mind our own history -- as well as the present -- when we start talking (as Judge Betty Fletcher writes here) about what happens in other countries. I'm not saying she's wrong; indeed, there's a lot here that merits truly profound consideration. But I might nonetheless temper what we say about Jamaica here -- and how the situation there is utterly intolerable -- with simultaneous recognition that, in truth, our own practices (at least towards those who Tell) are not nearly as far afield as one might otherwise perceive from reading this opinion.

Parenthetically, I can easily imagine Jamaica making the following response: "What a minute. You take this holier-than-thou attitude because we're not as 'enlightened' as you are about sporadic morals legislation? How about let's take a break and also talk about, oh, I don't know, your self-declared 'war' on those who commit the outrageous sin of trying to get closer to God. Let's pile up the bodies on each side and see who comes out more clean."

None of which, of course, says that Judge Fletcher is wrong. I was just somewhat surprised not to see as much self-reflection and (at least cultural) modesty -- or at least a brief glimpse of it -- from an opinion written by someone who, in my opinion, in fact possesses both qualities in spades.

People v. Love (Cal. Ct. App. - Sept. 16, 2008)

Watch out who you hire your receptionist. So, for example, don't hire someone who has four prior felony and two prior misdemeanor convictions for theft-related offenses.

Even if her name is (the cool-sounding) "Sumaria Love".

NRDC v. Winter (9th Cir. - Sept. 16, 2008)

I gotta agree with Judge Milan Smith in this one. Junior associates at Irell typically don't have "sufficiently distinctive skills" to justfiy an enhanced award under the EAJA. And I say that having known a lot of junior associates at Irell.

Which is not to say that these people are only worth the statutory cap of $125/hour. Far from it. But, right or wrong, that's what the statute pays.

P.S. - I also agree with Judge Smith that the senior partner at Irell, as well as the junior people at the NRDC, indeed had the requisite distinctive skills. All true.

U.S. v. Drake (9th Cir. - Sept. 15, 2008)

The criminal justice system in Guam doesn't come out smelling like a rose here.

From a dubious initial traffic stop to two years of delay to having to turn over charges in an utterly routine prosecution to the United States to an entirely deficient record, what transpired here hardly screams "excessive competence."

White v. Mayflower Transit (9th Cir. - Sept. 12, 2008)

Looking to get your first argument in the United States Supreme Court? Think you might get there by taking an utterly boring issue , but nonetheless one about which there's a fairly strong circuit split? Looking, in a perfect world, for a perfect vehicle in which you can easily take the matter over; for example, a case previously (and unsuccessfully) litigated by a pro se litigant who's got nothing to lose, and everything to gain, by letting you take over the case pro bono and file a pure "circuit split" certiorari petition?

Then here's your dream.

Kievernagel v. Kievernagel (Cal. Ct. App. - Sept. 12, 2008)

Who owns sperm? That may seem like a totally silly question. But it's not. And it matters.

Justice Morrison holds that the guy owns it, and that makes sense. Now, the guy can give the sperm away, of course. In a wide variety of ways. (And, no, I'm not going to provide a hyperlink for that last sentence.) And if he does, I assume whomever he gives the sperm to then has ownership rights, or at least partial ownership rights -- the complexities on that latter point are actually quite doctrinally interesting.

But let's take the facts here. The guy freezes the sperm because his wife desperately wants kids, and there's going to try IVF. The husband doesn't want kids -- the evidence about that is fairly clear -- but he's worried his wife will divorce him if he says no, so acquiesces. But when he fills out the form at the freezing place, a check is placed on the box that says that the sperm should be destroyed on husband's death, rather than the form that says the sperm should be given to the wife. The husband then unexpectedly dies in a helicopter crash. The wife then wants the sperm to have kids from her deceased husband, but the husband's parents say that both he and they don't want that. So who gets the sperm?

God. Destroyed. Because that was the husband's intent.

Even though I recognize that opinions may change over time, I'm pretty sure that Justice Morrison gets this one right. When you tell someone to freeze your sperm, but to whack it if and when you die, that's what you should get, absent anything else really compelling that proves you wanted something else. And there's none of that here.

So a death sentence for Joseph Kievernagel's sperm. But once that seems justified.

Rest in peace.

Hassan v. Chertoff (9th Cir. - Sept. 11, 2008)

Your last name is Hassan. You're from Pakistan. You've been living in the United States, and the DHS has treated you pretty shabbily (IMHO). You're trying to get back into the U.S. after being somewhat tricked into leaving (for Saudi Arabia), so you file an appeal. One more thing. You've been questioned about your ties to a group suspected of having links with terrorists.

You argue your appeal, wait a couple of months, and then discover that the court's opinion is published on . . . September 11.

Uh oh.

Winter v. Window Fashions Professionals (Cal. Ct. App. - Sept. 10, 2008)

Here's yet another reason not to include in any contract you draft a clause -- whether relating to arbitration or anything else -- that says "X, but X may not be valid in California."

At least if you personally would like X to be the case, just say X. Whether X is enforceable or not, leave that a question for another day (and another forum). Because otherwise, by saying the rule is X but maybe non-X, you definitely won't get X.

So just say X.

People v. Cross (Cal. Supreme Ct. - Aug. 28, 2008)

Getting pregnant counts as "great bodily injury".


Just so you know.

Truth v. Kent School District (9th Cir. - Sept. 9, 2008)

"We took over a year after oral argument to decide what would seem like a relatively straightforward case involving a student club. But at least we got it right, back in 2007, and unanimously affirmed."

"Oops. Did we say 'affirmed'? We meant, of course, 'reversed and remanded,' at least in part. Took us another ninth months to figure that one out and publish the revised opinion. But, again, at least we got it right."

"Oh. Really? Okay. Well, it's another half-year later, and we'll do what we can. But Judge Wallace wrote both of the earlier opinions, and he won't sign on to yet another change. So I guess it's up to both of the other panel members to write a lengthy concurrence at this point. Which means there's a majority opinion joined by all of us and then a 'concurrence' -- albeit one with precedential force -- signed by two of the three."

What a long, strange trip it's been.

Edwards v. Ayers (9th Cir. - Sept. 9, 2008)

I'm as insensitive as the next guy, especially when reading judicial opinions. Believe me.

Still. It's a death penalty case in which the defendant totally randomly shot two 12-year old girls at in the head with a rifle at a campground, killing one of them (Vanessa Iberri). Pretty gruesome, random, and scary. And I admit that the fact that he shot both girls in the head -- and Vanessa right between the eyes -- is, I guess, a little impressive.

Again: Still. I wouldn't start the opinion -- as Judge Schroeder does -- with the following sentence: "This is a death penalty appeal by California state prisoner, and crack marksman, Thomas Francis Edwards."

The "crack marksman" aside is too much. Even for me.

Showing Animals Kindness and Respect v. City of West Hollywood (Cal. Ct. App. - Sept. 9, 2008)

Think you know what "advertising" means? What an "advertisement" is?

Read this.

Still sure?

An interesting difference of opinion between Justice Rothschild and Justice Mallano.

P.S. - I like the 110-inch television screen concept. But I'd rather it display, say, sports -- rather than pictures of animals being killed (alongside their screams -- presumably in stereo). Especially at 11:45 p.m.

Call me crazy.

Center for Biological Diversity v. California Fish & Game Comm'n (Cal. Ct. App. - Sept. 2, 2008)

It's been a lazy Monday thus far. Nothing from the Court of Appeal (or the California Supreme Court, though that's no surprise), and only one published opinion from the Ninth Circuit (on a fairly routine asylum case).

So I thought I'd just quote a memorable line from one of last week's published opinions:

"The information in the administrative record shows the [tiger] salamander species does not breed prolifically, is vulnerable to several significant threats, has lost most of its original habitat, and has been displaced by a hybrid from a significant portion of its range."


And then tell you my reaction. Which was that same words could easily have described me during college.

I'll be teaching Week Two of my "Law of Love" class in 90 minutes, so we'll see what (if anything) comes out of the Court of Appeal this afternoon. Hopefully something juicy.

U.S. v. Nader (9th Cir. - Sept. 5, 2008)

Your prostition business may well be exclusively in-state. All of the phone calls that your customers make to you may well be in-state calls. But you can still be convicted of violating the federal Travel Act because your use of a telephone is a "facility" of interstate commerce. So holds Judge Clifton.

Pretty expansive view of the Interstate Commerce Clause, eh?

Prostitues in (as here) Montana, or other relatively isolated states (e.g., Alaksa and Hawaii), beware.

Rodriguez v. Smith (9th Cir. - Sept. 4, 2008)

Judge Rawlinson, joined by Judge Hug, says (in essence): "Five circuits have already decided this exact issue. Four of them have decided X. Only one of them has decided Y. We think that the four are more persuasive than the one, so that's the way we're going." Though says that in 15-plus single spaced pages.

Judge Rymer, by contrast, dissents, and essentially says: "Well, I like the one better, so that's the way I'm going." And does so quite concisely, in a way that I very much liked. Her dissent, in toto, reads as follows: "While I understand joining the parade of courts to decide this issue, I would reverse for the reasons stated in Muniz v. Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi’s well-reasoned dissent in Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006)."

I like that. No need to kill more trees or repeat the same arguments in your own words. If what you have to say has been said before well, a single sentence saying so will sometimes suffice. As here.

KRAI v. United States (9th Cir. - Sept. 4, 2008)

Sorry, KRAI. You don't own one of the (far-away) Hawaiian Islands. As fun as that'd be. Even if you did own it, the statute of limitation makes you SOL (s*** out of luck) on this one.

P.S. - The relevant "island" at issue -- Kingman Reef Atoll -- actually sounds pretty cool.

Cascade Health Solutions v. PeaceHealth (9th Cir. - Sept. 3, 2008)

"I know we certified a question to you, Oregon Supreme Court. But I've got good news. Never mind."

Good to know people can still get along.

People v. Warner (Cal. Ct. App. - Sept. 3, 2008)

"Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband, who later accused him of abusing the couple’s child. His arrest at his apartment in front of his friends infuriated him. The court dismissed the charges against him for lack of evidence, but he felt depressed and distraught at losing his chance to have his day in court. Weeks later, he killed her husband with a shotgun blast to the chest."

That's a pretty darn tight summary of Warner's affairs. And, as grim as that description may well be, is probably less grim than his next 100 years. In the pokey.

Affirmed.

P.S. - I do gotta say that, as far as sympathy for murderer goes -- and, as you can imagine, that's not a very high scale -- this one strikes my somewhat sympathetic. I mean, I wouldn't want anyone making allegations like that against me (or getting me arrested for it). Fortunately, however, I have no shotgun. And, I hope, at least a tiny bit more self-control.

Johanson v. C.I.R. (9th Cir. - Sept. 3, 2008)

As Judge Silverman put it this morning (in the midst of holding that the alimony payments at issue here were taxable to the recipient because they terminated upon death): "The fact that Weiler continues to pay spousal support after Johanson remarried does not constitute a written agreement regarding the status of payments in the event of Johanson’s death." (emphasis in original).

In other words, remarriage does not equal death. An enlightened view, to be sure.

Villegas v. Gilroy Garlic Festival Ass'n (9th Cir. - Sept. 3, 2008)

Come on. En banc draws don't really matter at all. They're all pretty representative, right? Nothing really rides on them.

Really?

Here's a 6-5 decision in a Section 1983 case. The six in the majority conclude there's no Section 1983 violation, and the five in dissent conclude otherwise. Who's on top? Two Reagan appointees (Kozinski and O'Scannlain), a Bush I appointee (Rymer), two Bush II appointees (Callahan and Randy Smith), and -- in a somewhat surprising swing vote capacity -- Judge McKeown. Who's on bottom? Five Clinton appointees.

I'll have (much) more to say about this one later. And my thoughts on the matter relate a fair piece to a conversation that Chief Judge Kozinski and I had in Little Italy a few months back.

But I'll just say this for now: Don't think that en banc draws don't matter. They sometimes do. A lot.

P.S. - Can I also just say how much I loved the opening line of the dissent by Judge Thomas, which states that "Gilroy holds itself out as the 'Garlic Capital of the World,' and no one seriously disputes the claim." Hilarious. To which I assumed the following was an unstated but intended inference: "Because who, after all, would ever even want to vie for such a title?"

Johnson v. Knowles (9th Cir. - Sept. 2, 2008)

"You've got an argument, Petitioner. An argument that admittedly finds some support. But that support comes from the bottom, not top, side of a 6-3 decision by the Supremes. And that's neither the side on which you want to be nor is it sufficient to allow your untimely habeas petition to go forward. Dismissal affirmed."

So sayeth Judge O'Scannlain, albeit more formally, in this opinion, which holds that unless you're actually innocent, the Schulp gateway ain't helping you much. Regardless of what Justices Stevens, Blackmun, and O'Connor said.

Salinas v. Martin (Cal. Ct. App. - Aug. 28, 2008)

Letting pit bulls run around your property can create liability.

Shocking, I know.

In Re Antonio B (Cal. Ct. App. - Aug. 28, 2008)

You're walking down the street with your buddy. He's smoking a doobie. There's just the two of you.

Three police officers come up to you guys and arrest your buddy. You don't try to fight, flee, or anything else, and haven't done anything wrong. Can they put you in cuffs?

No. Not in America, anyway.

The depressing thing about the opinion, however, is that it takes nine pages to explain why not.

Richards v. Richards (9th Cir. - Aug. 28, 2008)

Don't hire your lover to kill your spouse. Otherwise you'll get . . . pretty much away with it, but only $50,000 of his million dollar life insurance policy.

Well, I guess not getting the whole million is some disincentive, anyway.

Barba v. Perez (Cal. Ct. App. - Aug. 28, 2008)

As a person keenly interested in litigiation strategy, I very much enjoy it when the Court of Appeal not only issues opinions that generate opportunities for tactical behavior, but also goes ahead and gives tactical pointers. And when, on those rare occasions, there's a conflict between the justices, and each gives his or her own insight into the tactical move and countermoves that are generated by the court's holding, it's pure gold, IMHO.

Gold like this.

Justice Butz writes the majority opinion, and holds that a Section 998 offer tendered (as here) simultaneously with service of process may well generate cost-shifting. Justice Sims -- who, by the way, authors a sincerely respectful dissent -- not only disagrees on the merits, but says that such early offers may give rise to strategic abuse, since defendants at that stage of the litigation aren't typically able to conduct discovery and/or accurately assess the plaintiff's damages. Plus, Justice Sims argues, "[i]magine . . . the litigation frenzy that will be produced if defense counsel must also take the plaintiff’s deposition and obtain medical specials during this 30-day period. Not to mention the retention of experts and obtaining opinions from them. Why on earth do we want to do this?"

But Justice Butz responds that early settlement is precisely the goal of Section 998, and if that coincides with early discovery, so much the better. Justice Butz also gives tactical counsel to a defendant facing an early offer, counsel that's especially good advice as it comes from the Court of Appeal: "Even assuming a situation (unlike the one presented here) where a defendant has no information about the plaintiff’s damages when served with an early section 998 offer, defense counsel may request that plaintiff provide informal discovery on the damage issue and/or allow an extension of time to respond to the demand. If plaintiff’s counsel refused to accord the defendant these courtesies and unyieldingly insisted that defendant respond without information, such conduct could then be presented to the trial court when it considered whether to award special fees and costs. Undoubtedly, such obstinacy would be viewed as potent evidence that plaintiff’s offer was neither reasonable nor made in good faith." Thanks for the pointer! We'll definitely make such requests at this point, right? No reason not to.

But Justice Sims responds with a quasi-tactical point of his own, though I'm sure he's not really suggesting the resulting strategy as opposed to just identifying a problem with the solution that Justice Butz advances: "With respect, I do not think a defendant should be obligated to evaluate a $99,000 offer based on damages information supplied informally (not under oath) by a plaintiff or his attorney. Although plaintiffs’ attorneys are officers of the court, on rare occasions such attorneys have been known to inflate their client’s damages in demand letters written prior to discovery. In my view, a 998 offer approaching $100,000 can be reasonably evaluated only after basic discovery procedures (requiring responses under oath) have been used."

Darn good point. Which leaves me with only one question: Raise your hand if you think that Justice Sims was being deliberately sarcastic when he said that on "rare" occasions plaintiffs have been known to exaggerate their damages in pre-litigation communications. Awesome.

Anyway, a very interesting case. Both doctrinally as well as strategically. Know it. Use it. Be it.

Chimenti v. Weisz (Cal. Ct. App. - Aug. 27, 2008)

How do you think you'd feel if, upon your death, this is the way you were remembered in the everlasting pages of the California Reporter:

"At the time he executed his will, Joseph Clementi was living in Philadelphia, Pennsylvania. Richard E. Weisz was Clementi’s accountant, and apparently his only friend."

Sad, huh?

By contrast, you'd be a lot happier if you were the accountant. Who receives a six-figure bequest in the will and also becomes the trustee of a multimillion dollar charity upon Clementi's death.

Sweet.

People v. Bolton (Cal. Ct. App. - Aug. 27, 2008)

Here's an interesting case. From down here in San Diego, even. Concerning a defendant with a cool name -- "Exodus Bolton" -- but who I'd just as soon not meet on the trolley, thank you very much.

For those ethics junkies out there, it's a must read. Ditto for criminal defense lawyers. Because it's a very interesting case that provides firm support for the proposition (1) that attorneys can (and perhaps even must) present testimony from their client that they're pretty sure is false (as here, IMHO) so long as they don't "know" it's perjurious, and (2) that putting the client up on the stand without direct examination, and letting him give his perjurious testimony narratively, is a pretty good solution to the problem.

Both propositions are controversial. See if you think that Justice Aaron is correct.

In Re Bardzik (Cal. Ct. App. - Aug. 26, 2008)

This afternoon brings us this modification of this original opinion by Justice Sills. Who, apparently, has been watching the Food Network a fair piece lately, and adds (inter alia) the following soup analogy as a means of comparing and contrasting various cases:

"Where the evidentiary facts in the case before us make up a thin consommé indeed, in Mosley they were, as in Hinman VIII and La Bass & Munsee, thick as lentil stew."

I mentioned when the original opinion came out that I thought that the breezy opinion by Justice Sills worked pretty well, at least for me. This just adds to it.

Admittedly, that's coming from a person (me) who knows as little about lentil stew as he does about Regis Philbin. So feel free to take my thoughts (and your consommé) with a grain of salt.

Zhao v. Mukasey (9th Cir. - Aug. 26, 2008)

Some cases are fairly simple.

You're a married couple from China. You are practitioners of Falun Gong. You've got a good (and credible) story of religious persecution by Chinese authorities. And you filed an affirmative asylum claim within a year of coming to the United States (i.e., the DHS didn't catch you).

Plus you've got Judge Reinhardt on the panel, and he writes the opinion.

In such a setting, you're going to be granted asylum.

Dzyuba v. Mukaasey (9th Cir. - Aug. 25, 2008)

Let me offer some additional help -- beyond that provided by the Ninth Circuit earlier today -- to the BIA on remand.

As recent events should have made crystal clear, the former republics of the USSR aren't all the same country. Georgia isn't Russia. Georgia isn't the Ukraine. Georgia is Georgia.

Now, here, Mr. Dzyuba was a native of Georgia, but went to the Ukraine before coming to the United States. Now that we're kicking him out, we admittedly have to figure out where to kick him out to: say, Georgia or the Ukraine. This is a big deal, and I'm not pretending the answer is at all clear, since his internal movement at the time was all within a (then-) single country.

All I'm saying is that it matters. At least for now. Once Russia invades everyone else, well, maybe that'll moot the whole thing. But go ahead and make the effort at this point.

Personally, if the guy wants to go back to Georgia rather than the Ukraine, I'd let him. No big deal.

U.S. v. Easterday (9th Cir. - Aug. 22, 2008)

Normally, when everyone on the panel agrees that the defendant's conviction is just and proper, you simply affirm. Here's one of the exceptions to that rule.

The difficulty here is that there's circuit precedent that everyone on the panel agrees is both on point and also would require a reversal of the conviction, but everyone also agrees that this precedent is wrongly decided. So what do you do?

Judge Schroeder writes the majority opinion and says that this precedent has been undercut by subsequent Supreme Court authority, and hence that the panel is entitled to ignore/overrule it. Judge Randy Smith, by contrast, dissents, arguing that because the subsequent authority is far from clear, the panel has no authority to overrule circuit precedent.

It's an interesting -- and enlightening -- battle about both the normative and descriptive power of Ninth Circuit precedent. You definitely get two competing views here, and these views are especially helpful because both sides make their arguments forthrightly, with no hiding the ball or hidden agendas. So it's a good case.

Plus, as an aside, both authors make sure to include their own aphorisms. Judge Schroeder begins her opinion by saying: "This case illustrates the enduring truth of Ben Franklin’s sage observation that 'nothing is certain but death and taxes.'" While Judge Smith begins his dissent by saying: "In this case, I find myself between 'the proverbial rock and a hard place.'"

Let the battle of epigrams begin!

McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)

You see plenty of death penalty cases that take a long period of time. So, sure, the murder that gave rise to the death penalty at issue here took place in the 70s. That's right: The 70s. That's a long time ago, even when you consider that the death sentence wasn't imposed until 1981. We are still talking about 27 years just for the case to reach the Ninth Circuit. Again: That's a long, long time.

But not so weird that you haven't seen something like it before. But here's the wrinkle: the defendant who was sentenced to death here -- and whose death sentence is at issue before the Ninth Circuit -- is currently walking the streets. And has been since 2003.

And, no, we're not talking about someone who was released on the ground that he was actually innocent. Rather, he was released because there were serious questions about whether he was competent to stand trial (!), combined with the fact that after the district court granted a habeas petition and contemporaneously gave the state six months to retry the defendant, the Great State of Arizona forgot to ask for a stay (!!).

I haven't seen many death penalty cases in which the defendant has actually been released from prison while the appeal's pending. And I gotta say that the prospect that we would just pick up a guy who has been out walking the streets for five years, doing nothing wrong, and promptly kill him just seems, well, weird. I mean, sure, I get it; if you're sentenced to death, you're sentenced to death. But isn't it still a little strange.

Anyway, for better or worse, that's not going to be a problem here. Since the panel unanimously decides that, yep, the district court was right that the conviction and sentence can't stand. With McMurtrey getting not only Judge Pregerson (who writes the opinion) and Judge Willie Fletcher to sign on, but also Judge Bybee. Which tends to suggest that a reversal either en banc or by the Supreme's probably isn't in the cards.

Still, not the type of death penalty case you see every day.

In Re Shaputis & In Re Lawrence (Cal. Supreme Ct. - Aug. 21, 2008)

As I've often discussed, there's been a lot going on in the California Court of Appeal in response to the nearly uniform decisions of the last several Governors (Davis & Terminator) to reverse the recommended grant of parole to anyone convicted of murder. (See, for example, my last post on the subject, from March.) Eventually, of course, that sort of stuff has to be sorted out by the California Supreme Court, and it granted review in two cases in no small part to do so.

But the result in these cases -- Shaputis and Lawrence -- issued today hardly definitively resolve the resulting issues. Indeed, the split in those cases only demonstrates how wildly up in the air these things are.

In Lawrence, the Court affirms the Court of Appeal's reversal of the Governator's denial of parole. It's a 4-3, with George, Kennard, Werdegar, and Moreno on top. But in Shaputis, the Court reverses the Court of Appeal's reversal of the Governator's denial of parole. It's a (4-3), with the same four on top, with the three dissenters in Lawrence (of course) concurring in the judgment, but disagreeing with the relevant standard -- the standard articulated in Lawrence. Justice Moreno, by the way, specially concurs in Lawrence to explain why he comes out. And to highlight his potential role as the Justice Kennedy of the California Supreme Court, at least on this subject. (Though that role is already played by Chief Justice George on a wide variety of subjects. But you can never have enough Justice Kennedys, right?)

This won't be the last word on the subject from the California Supremes. Trust me on that one. But for now, there you have it.

Koninkluke Phillips Electronics v. KXD Technology (9th Cir. - Aug. 20, 2008)

Bad things can happen to you when you manufacture and sell counterfeit goods. Even before trial. For example, a civil contempt order awarding almost $1.3 million in lost royalties, $353,000+ in attorney's fees, and another $10,000 per day until you file reports that the district court ordered but that you decided -- in your infinite wisdom not to file. Oh, yeah. Plus that $2 million bond.

And when you try to appeal, tough luck. Rightly dismissed as an unappealable interlocutory order.

People v. Meneses (Cal. Ct. App. - Aug. 19, 2008)

Ah, the exciting life of a capper.

Pelton-Shepherd Industries v. Delta Packaging Products (Cal. Ct. App. - Aug. 19, 2008)

Here's a wonderful review of what can go wrong in discovery. Especially if you leave it until right before trial. As well as a fairly comprehensive review of the relevant provisions and deadlines for motions to compel.

You'll also view some fairly strong language by Justice Robie regarding the conduct of Judge Saiers (in San Joaquin County) as well as counsel for the parties below. (Kenneth Ruttenberg, a Loyola Law graduate, and Richard Archbold, a Hastings graduate, represented one side, and Charles Hastings, a Humphrey's College of Law graduate, represented the other, on appeal.) Here's the first line about Judge Saiers: "We conclude the trial court [Justice Robie then mentions Judge Saiers by name in a footnote] botched its responsibilities under the Civil Discovery Act and prejudicially abused its discretion in granting Pelton-Shepherd’s motion to compel after the discovery motion cutoff date . . . ." Strong words. You don't see "botched" used much to describe trial courts, do you?

And here's the money quote from Part B of the opinion: "[T]he discovery in this case is a classic example of how not to conduct discovery (on the part of the lawyers) or to manage discovery (on the part of the court)." So pretty much everyone gets savaged.

P.S. - This is far from the first time that the Third Appellate District has savaged Judge Saiers, with whom the justices appear far from fond. Though, in truth, the feeling is probably mutual as well.

With some justification, as I'm sure the counsel involved would admitm at least on their best days. The only defense of what transpired here is probably that it wasn't an especially high-value case -- the real amount in controversy was barely above the jurisdictional minimum for an unlimited case -- and hence counsel may not have done their absolute best. Still, the errors that were made are pretty obvious ones; e.g., missing deadlines and not making the correct motions.

As Justice Robie makes fairly clear, it was not an impressive performance by anyone involved.

Oltman v. Holland America (9th Cir. - Aug. 19, 2008)

Want to see the Ninth Circuit go out of its way to be nice to a civil litigant in order to prevent inequity? Then check this out. Especially Section B and -- in particular -- footnote 4.

I happen to agree with Judge Clifton's resolution. But I'm also certain that not every judge would be similarly inclined to adopt such a favorable approach. Either on the merits (equitable tolling) or in deciding whether to find for appellants on this issue, as Judge Clifton does, notwithstanding the fact that they never really articulated this argument on appeal.

Still, I like it when judges are nice, and reach an equitable result. As happens here.

U.S. v. Jaeger (9th Cir. - Aug. 18, 2008)

I agree with Judge Graber in this one. It's one thing for a judge to threaten a witness and intimidate him or her into not testifying. It's quite another to do what Judge Molloy (up in Montana) does here. Which I took as trying -- honestly and sincerely -- to protect and look out for the best interests of the witness.

The former's both wrong as well as legal error. The latter's not only proper, but an entirely nice thing to do.

U.S. v. Park (9th Cir. - Aug. 11, 2008)

Hmmm. At first, Judge McKeown had me totally convinced she was right. But then I thought: "Wait a minute, I'm not so sure." And that's still where I am.

Let me first just totally agree with Judge McKeown on the central point. Or at least on the point as Justice McKeown articulates it. Defendants have some property along the Clearwater River in Idaho an easement of which allows them to engage in "livestock farming." So clearly they can raise chickens, which surely are livestock. But what about dogs? Which is a relevant question, since that's what defendants are now doing (and what the United States files suit to enjoin).


Judge McKeown frames the question as follows: "In this appeal, we are asked to determine the unusual question whether dogs are 'livestock.'" And while the district court said that they weren't, and hence granted summary judgment to the United States, Judge McKeown disagrees. She holds: "Despite a gut inclination that the answer might be “no,” resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term “livestock” is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."


On that point, I agree with her. Especially after reading the opinion. Maybe dogs aren't livestock. But maybe they are. Context and intent are important. So I agree with her that summary judgment would not be proper on the ground that dogs categorically don't count as "livestock".


So that's where I was after I first finished reading the opinion. Totally, totally in agreement. With an opinion, quite frankly, that I thought (and still think) is incredibly well-written.


But then, for whatever reason, I read it again. Because, I think, in the back of my mind, something about it just didn't seem right. Even though, intellecually, I was (again) completely on board.


And then figured out what my problem was. A problem that I couldn't initially even articulate, but which I think my subconscious grasped well before my conscious brain was actually aware of the problem.


Here's the scoop. I agree with Judge McKeown that dogs might potentially be livestock. So the defendants are, in my view, potentially (though not certainly) entitled to raise them. Maybe that's indeed included within the scope of the easement for "livestock farming".


But, as I reread the case, I suddenly realized: that's not what the defendants are doing. And is potentially why the district court was correct to grant summary judgment.


Defendants aren't dog breeders; in other words, they're not raising dogs like you'd raise sheep or chickens or whatnot to sell. Rather, they're running a kennel (and an associated dog training service). Now, it may well be that dogs count as livestock. But the easement only allows "livestock farming". That may potentially cover a dog breeder, who raises and sells animals, but now that I look at it, I don't see how a dog kennel counts. That's not the raising and selling of livestock. It's not doing to animals what we do, on a regular farm, to plants. It's instead the taking care of animals. So even if those animals are livestock, that's still not livestock farming.


Take, for example, a veterinarian. They take care of animals too. But surely a veterinarian isn't engaged in "livestock farming", right? Even if they only work on cows; i.e., livestock.


So I think the appropriate focus is not only the one centrally addressed by Judge McKeown, which involves the word "livestock," but rather should focus on the whole phrase. Because the former point is one on which I think she's clearly correct. But the only thing that Judge McKeown says in the entire opinion with respect to the additional caveat that the plaintiffs must be engaged in lifestock farming is the following: "The word “farming,” which follows “livestock,” is unhelpful because “to farm” is simply defined as “to engage in raising
crops or animals.” But that seems wrong. Yes, it doesn't help us decide whether dogs count as livestock. But it does tell us whether the district court correctly granted summary judgment on the ground that defendants aren't engaged in livestock farming, right?


Admittedly, I haven't read the district court's opinion, so don't know whether it really (or clearly) focused on the phrase "livestock farming" as a whole rather than on the single word "livestock". But, at a minimum, I think that the "farming" limitation (1) is more significant than Judge McKeown's opinion first led me to believe, (2) may well provide, at worst, an alternative basis upon which the district court's grant of summary judgment could (and perhaps should) be affirmed, and (3) perhaps requires at least brief additional discourse, especially since one leaves Judge McKeown's opinion (or at least I did) with the belief that the case at this point gets to go to trial. But I don't think that's in fact the case. It may well be -- or at least I've persuaded myself -- that the district court's grant of summary judgment should probably be affirmed, albeit potentially (if the district court's opinion only relied on the word "livestock") on alternate grounds. Or, at a bare minimum, that the opinion should clearly state that it doesn't reach the issue of whether defendants were engaged in "livestock farming" as a whole, an opinion that's instead left for remand.


Those are my (extended) thoughts, anyway.

Lockerby v. Sierra (9th Cir. - Aug. 7, 2008)

Judge Hawkins is correct. The defendant here should indeed get a discharge. Even a deliberate breach of contract -- here, of a routine settlement agreement -- doesn't constitute a willful tort.

Nonetheless, anyone who's thinking of hiring Tucson, Arizona attorney Alexander L. Sierra to do anything on their behalf -- Sierra's the one filing for bankruptcy, who was previously sued for malpractice, and who deliberately decided to breach the settlement agreement -- should definitely read this case.

You're not going to hire Mr. Sierra as your attorney anyway, since he's been disbarred. But I wouldn't retain him for anything else either , honestly. He doesn't sound like the kind of person I'd especially like to have to deal with.

A discharge applies to debts, not reputation.

People v. Nelms (Cal. Ct. App. - Aug. 14, 2008)

It's an unusual case in which a convicted defendant will want to abandon his appeal and yet the Court of Appeal will refuse to allow him to do so. But it happens. Even in non-death penalty cases.

Can't think of an example. Here's one.

People v. Muniga and People v. Wallace (Cal. Supreme Ct. - Aug. 14, 2008)

Two death penalty opinions from the California Supreme Court this morning. With striking similarities.

Both involve a first-degree murder committed during a residential burglary. Both involve elderly women killed in their homes -- the first, Hazel Hamilton, was a 83-year old widow, and the second, Alma Franklin, was 73. Both murders were committed long ago -- Hamilton was killed in 1991, and Franklin was killed in 1994 -- and are only now (17 and 14 years, respectively, after the murders) adjudicated by the California Supreme Court. Both murders involved the fairly horrific beatings of the victims.

And the convictions and death sentences of both defendants -- Keone Wallace and John Mungia -- are unanimously affirmed by the California Supreme Court.

I think you get a sense of the Court's reaction to both cases from the following line of the opinion by Justice Kennard -- who's hardly a pro-death penalty fanatic -- in Wallace: "In the course of a residential burglary, defendant beat to death a frail, elderly woman who was particularly vulnerable because of her age and her poor physical condition. He also attempted to rob and sexually assault her. On these facts, the death sentence is not grossly disproportionate to defendant’s culpability."

Facts matter.

Christian Research Inst. v. Alnor (Cal. Ct. App. - Aug. 13, 2008)

Imagine that you're a lawyer with, say, Ross Dixon & Bell. Hypothetically, of course, say you're Kevin Kieffer,
Becki Kieffer, Jennifer Mathis, Jenece Solomon, or Michael Gower (full disclosure: Mike's a former student of mine). Or say you're Peter Eliasberg, who's with the ACLU Foundation of Southern California. You worked on a long, hard-fought SLAPP, in which you filed and won on appeal (in a divided vote) an anti-SLAPP motion against the plaintiff. You've now moved for an award of your attorney's fees. You ask for a quarter million dollars. You're feeling pretty good, eh?

Then two things happen. (1) The trial court denies your motion. Awarding you less than $25,000 -- in other words, less than 10% of what you ask for. Ouch.

But wait. There's more. You appeal. At which point (2) the Court of Appeal not only affirms, but includes a wide variety of things in the opinion that you'd probably prefer not to be written for posterity. Including but by no means limited to the following bot mots:

"The record suggests Alnor sought to transfer to the opposing parties the cost of every minute counsel expended on the case, whether or not anti-SLAPP work was involved. The fee request included, for example, billings for obtaining the docket at the inception of the case, obtaining unspecified but “numerous court documents,” and attending the trial court’s mandatory case management conference — all of which would have been incurred whether or not Alnor filed the motion to strike. Indeed, counsel even sought reimbursement for drafting the client retention agreement, which does not appear to have been limited to anti-SLAPP measures given the hours counsel billed for other work. Counsel’s willingness to flout the statutory restriction on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced view of the fee request."

Or this one: "Faced with a motion that involved little or no time spent on discovery, the trial court was justifiably puzzled at the size of the fee request. The trial court observed the matter was not particularly complicated for an anti-SLAPP motion, and nothing in counsel’s billing submission establishes otherwise. The attorneys’ legal research entries do not suggest the pertinent issues were difficult, since counsel spent almost as much time on mundane research concerning page-limit extensions and whether the trial court had discretion to delay the motion hearing beyond 30 days as on any particular substantive question. Indeed, the five attorneys Alnor deployed on the motion appear to have expended more time telephoning, conferencing, and e-mailing each other than on identifiable legal research for the motion, supporting the trial court’s conclusion the matter was overstaffed. In sum, based on the trial court’s own observations in managing the proceedings up to the hearing and on the billing record eventually submitted, the court could reasonably determine counsel’s fee request was unreasonably padded, vague, and worthy of little credence."

Or this last entry: "Given that precedent so amply established the controlling issue, the trial court was entitled to note, in assessing the reasonableness of more than 400 hours counsel logged on appeal, that counsel failed to uncover or cite the seminal cases applying the dispositive standard. . . . The trial court could reasonably conclude the inflated, noncredible, often vaguely documented hours claimed by counsel precluded turning Alnor’s contingent fee arrangement with counsel into a windfall."

I can't imagine that the attorneys here did anything other than cringe at every successive paragraph they read.

Winfred D. v. Michelin North America (Cal. Ct. App. - Aug. 8, 2008)

Bigamy? I'm not even sure that's a crime anymore.

But if you decide to introduce evidence of it to impeach the plaintiff in a closely-contested civil case, it nonetheless remains grounds for a reversal of the judgment in favor of the defendant.

Lesson: When you ask the Court to introduce inflammatory evidence, be careful what you wish for.

D'Lil v. Best Western Encina Lodge (9th Cir. - Aug. 12, 2008)

It's yet another case -- indeed, the second one today (the first one is here) -- involving a repeat ADA plaintiff. The district court thought that plaintiff wasn't credible. Neither do I.

Whether the particular record here is clear enough to so find is a matter of dispute between the majority opinion (written by Judge Reinhardt) and the partial dissent (written by Judge Rymer), and I think that both positions in this regard are reasonable.

But I'm nonetheelss left with a firm and definite belief -- rightly or wrongly -- that the plaintiff here will say whatever needs to be said in order to obtain damages and fees.

Do some social benefits result from ADA mills? Sure. Are there social costs as well? Definitely. Underlying the credibility dispute between the majority and dissent is, I believe, a similar dispute about whether the former outweighs the latter.

Read the opinion and decide for yourself whether you think plaintiff's telling the truth when she says she intends to go back to the Best Western Encina.

In Re James C. (Cal. Ct. App. - Aug. 11, 2008)

Some good news, some bad news.

Bad news first. Judge Francis Devaney -- down here in San Diego -- apparently has been applying a "consistent" policy in which he sentences juveniles in border cases to a year at Camp Barrett (a junvenile facility in Alpine) but suspending this sentence on the condition that the juvenile, as part of his probation, be banished from the United States. Even if they're a citizen.

Uh, I've got news for you, Judge Devaney. Your policy in this regard couldn't be more unconstitutional. As well as, quite frankly, offensive. We don't banish U.S. citizens. We just don't.

The good news. First, Justice Huffman (and the rest of the panel) knows this, and in a fairly brief opinion, says so. Second, that Attorney General's Office knows this as well. And while the AG's Office is willing to argue on appeal that in this particular case the defendant waived this issue (though he didn't), it also has the foresight and integrity to concede that what Judge Devaney has been doing is wrong. Which I like. Especially since the three most responsible attorneys in this regard -- Assistant AG Gary Schons and Deputy AGs Scott Taylor and
Marissa Bejarano -- are all USD Law graduates.

I like it when our alums do the right thing. Especially when other people -- including people in positions of power -- are doing the wrong thing.

People v. Hovarter (Cal. Supreme Ct. - Aug. 11, 2008)

I rarely have substantial doubt about the guilt of a defendant sentenced to death. Most of the time, I'm pretty darn confident -- even if based solely on the description of the evidence on appeal -- that the defendant did it. Sure, there are exceptions, but they're definitely the exception rather than the rule. At least in my mind.

So I was stunned when I read this case. In which the defendant -- Jackie Ray Hovarter -- is sentenced to death for killing Danna Elizabeth Walsh. And after the California Supreme Court was done recitiong the evidence that was admitted against Hovarter at trial, I literally said out oud: "That's it?!"

Look, I'm not saying the guy's definitely innocent. I have no doubt that he tried to kill a different woman -- "A.L." -- four months after Walsh's murder. And, look, I'm like everyone else in the world, and think that if you're willing to rape and kill one woman, if there's another woman who's been raped and killed in the same general geographic area (i.e., in the same town), there's a darn good chance you did that one to. But when there's no eyewitnesses, no link at all between the defendant and the victim, and no physical evidence of any type, for me, it's an incredible, incredible stretch to say that someone's clearly guilty beyond a reasonable doubt -- so much so, indeed, that we're willing to sentence him to death. And the fact that there's a jailhouse informant here who've even less credible than most jailhouse informants -- and that's saying a lot! -- hardly changes the picture. Sure, it means that there's legally sufficient evidence for a conviction, of course, because a jury could indeed decide to believe a total liar like the informant here. But, man, I gotta say, if there's ever a true case in which "lingering doubt" might let you put a person in prison for life and yet not be totally sure he should be irrevocably killed, this is it. And, to tell you the truth, I'm not sure that I've ever really seen one of those before -- one in which that residual doubt might actually have affected my own calculus.

Now, admittedly, there's part of me that doesn't especially care, since I'm confident that Hovarter in fact tried to kill another woman, so part of me says that he's only getting what's coming to him anyway. But, for good or bad, our system doesn't work like that. Or at least it shouldn't.

Nor -- and this is one of those very rare case in which the initial jury deadlocks in the penalty phase, the defendant chooses to be resentenced by the judge, and the judge then decides upon death -- does the system decide upon death versus life due to electoral or other pressures. But, at least in the trial court, do I have a lingering suspicion that that might have played a part as well; i.e., that an elected judge might decide to sentence a defendant who we all know is at least an attempted murderer to death due to potential backlash from the electorate to a contrary decision? Yeah. I do. Based upon nothing, of course. But when my reaction to the case is so different, I gotta wonder -- again, based on virtually nothing about this individual case or judge -- whether that played a role as well.

Anyway, read this one. See if you reaction is the same as mine. Maybe you totally believe the informant (though if you do, wow, we're definitely on different pages). Or maybe you're more persuaded than I am that it's okay to sentence someone to death when you're sure that the offender committed at least an attempted murder even if he might not have done this particular crime. Or maybe you just have a different take than me. But, on my end, I'm at least a little troubled by this one. And didn't expect to find a "lingering doubt" case on my (virtual) doorstep this morning.

Oh, yeah. The California Supreme Court unanimously affirms the conviction and sentence. Twenty years thereafter. No real surprise there. And I can't even say that, as a matter of law, they're wrong. My reaction here is much less doctrinal than equitable. Yes, the law seems like it was followed. But I'm still not sure that what happens is right.

Cachil Dehe Band v. State of California (9th Cir - Aug. 8, 2008)

It's a case about Indian gaming. You represent the Indian tribe, and want more slot machines. You've lost in the district court, and now appeal to the Ninth Circuit. You're waiting for the panel to be announced just prior to oral argument. Who's your dream -- absolute dream -- draw?

Right. Judge Canby.

Ca-ching!

I'm not saying he's wrong here (when he finds in favor of, you guessed it, the tribe). You'll not find a bigger -- or more interested -- expert on Indian law on the federal bench.

But talk about a great draw if you're the tribe. It's hitting a 16 against a 9 and getting a 5.

Jonathan L. v. Superior Court (Cal. Ct. App. - Aug. 8, 2008)

You've got to give Justice Croskey credit. It's rare enough that the Court of Appeal admits that it made a mistake. It's even rarer to go out of your way to admit your mistake. But that's exactly what happens here.

This is the homeschooling case, which I briefly discussed when it initially came out. The Court of Appeal's holding that (in the context of an allegedly abused child) California did not grant parents the right to homeschool one's child -- a conclusion that seemed to flow directly from the relevant statutory dictates -- resulted in a firestorm of controversy. And, as I predicted, after a petition for rehearing was filed, Justice Croskey promptly went to work on amending the opinion.

After the petition for rehearing was filed, he could have simply dismissed the appeal as moot, as the dependency proceedings here had by that time been dismissed. But he didn't do that. He could also have merely limited his holding to state that regardless of whether there was a right to homeschooling, that right doesn't preclude the state from ordering public schooling of an abused child. Which is a conclusion that he not only reaches, and that effectively resolves by itself the present case, but is also, in my mind, exactly right.

But he doesn't do that either. He instead confronts head on the central issue -- the one that had generated so much controversy -- and holds that, in fact, his prior opinion was wrong. That there is a right to homeschool one's child, at least as a matter of pratice (even if the statutes appear to go the other way). Contrary to what he had previously held. And goes to great lengths, in an opinion that explores the subject in great depth and sophistication, to explain why that's the case.

Now, you can take this reversal in one of two ways. First, you could view it as the product of a good faith change of mind in light of additional information that didn't exist when Justice Croskey wrote the initial opinion, combined with an ability and willingness to be forthright and honest in changing one's mind and admitting when you were initially wrong. Alternately, you could view it as a cynical attempt to reverse one's self in light of controversy -- including from the Governator himself -- and to pander to that controversy with a keen recognition that justices on the Court of Appeal are subject to periodic retention elections.

Personally, I'm strongly of the former view. But I gotta admit that even the most neutral and well-intentioned person is probably at least dimly aware of the realities of the latter.

Regardless, I think that this is an admirable opinion. And I applaud both Justice Croskey as well as the rest of the panel.

People v. Becerra (Cal. Ct. App. - Aug. 7, 2008)

This is why I love reading the California Appellate Reporter. Because even if you go to Urban Dictionary or google the term "nose dipping," you'll still have utterly no clue as to what that phrase could possibly mean. But Justice Ikola knows. Check out page 4. When someone tells you to "Keep that nose of yours clean; don't be nose dipping," that apparently means "Don't testify against me. Otherwise I'll have you killed."

Because nothing shows poor form like having someone threaten to kill you in street vernacular and having to respond: "Wait. What do you mean? Can you repeat that again in the Queen's English?"

GEC Capital Corp. v. Future Media Productions (9th Cir. - Aug. 7, 2008)

Sometimes you amend an opinion to respond to an argument in a petition for rehearing. Sometimes you amend to correct a factual error. And sometimes you amend to get your colleagues off your back.

Back in July, Judge Trott wrote an opinion in an otherwise fairly routine bankruptcy case involving default interest. The district court had applied -- and extended a bit -- the Ninth Circuit's holding back in 1988 in a case called Entz-White. But Judge Trott, as well as the rest of the panel, found that case distinguishable. Which, of course, is totally fine.

But in the midst of the opinion, in so holding, Judge Trott also inserted the following footnote (footnote two): "With the addition of the 1994 amendments, including § 1123(d), the continued validity of our holding Entz-White is questionable. We, however, do not reach that issue today as the facts presented in this appeal—grounded in a § 363 sale—are distinguishable from those in Entz-White."

Now, I'm admittedly just speculating, but my sense is that the claim that "the validity of our holding in Entz-White is questionable" didn't exactly go unnoticed. By either the parties or, more critically, the other members of the Ninth Circuit.

Whatever the reason -- and I don't think anywould be surprised if the words en banc were part of the threatened utterances -- here's the entirety of the Order that the panel issued earlier today: "The Opinion filed on July 3, 2008, is hereby amended as follows: on slip Opinion page 8112, delete footnote #2."

Controversy over. For now, anyway.

McMillan v. Shadow Ridge at Oak Park (Cal. Ct. App. - Aug. 4, 2008)

Please don't get me wrong, Justice Perren. I completely agree with you. You're totally right in this one. When a party in a civil action appears pro per, even with a "counsel on the side", there's no disqualification when the opposing party talks directly to the pro per litigant. That's totally permissible. You're also completely correct that a party shouldn't be able to frustrate the other side by making unclear whether they're represented by the "informal" counsel or pro per. Exactly right.

I also don't disagree with what you said when you began the opinion. The first sentence of which says: "Over 140 years ago, our Supreme Court stated, 'A party to an action may appear in his own proper person or by attorney, but he cannot do both.' (Board of Commissioners v. Younger (1865) 29 Cal. 147, 149.)" The Court did indeed say that. And it's generally true, as well as nicely applicable here.

That opening statement caught my eye, however, because, technically, I think it's not, in fact, accurate. In my mind, at least, a party to an action can simultaneously represent himself and be represented by an attorney -- a fact that, if true, disproves at least the universality of the California Supreme Court's categorical statement. When, you might ask, can they do so? When they're an attorney as well. So if, for example, the plaintiff is an attorney, and also formally associates another counsel, in my mind, both (or either) attorney can represent the plaintiff. And hence appear at hearings, enter into stipulations, argue motions, etc. The plaintiff in such a setting is "represented" by two attorneys -- himself (or herself) as well as the outside counsel.

Are there any cases on this precise point? Maybe. Both Scott v. Times-Mirror Co. (1919) 181 Cal. 345 and Conroy v. Waters (1901) 133 Cal. 211 at least come close, as both involved a party to was an attorney and who represented himself (alongside other counsel), and the Supreme Court in each refused to find reversible error notwithstanding the "can't be both pro per and have an attorney" language of Younger.

So I raise the point if only because (1) I hadn't seen the language that Justice Perren quoted ever before (it apparently comes up every couple of decades or so!); (2) it articulates an interesting categorical proposition, and one that even be practically relevant to members of the California Bar; and (3) may be misleading, or even untrue, at the margins.

Not, again, that you're wrong, Justice Perren. I'm with you. Totally. Especially since the plaintiff here was not, in fact, an attorney. Regardless, I just wanted to make a tangential -- and hopefully helpful -- point.

Garcia-Aguilar v. United States District Court (9th Cir. - Aug. 6, 2008)

Not a good day for the U.S. Attorney's office down here in San Diego. Which gets called out by Chief Judge Kozinski for (1) doing a bad job, and then (2) trying to get out the consequences of this (alleged) malfeasance by convincing -- successfully, I might add -- three district court judges down here (Judges Burns, Benitez, and Collins) to refuse to accept the unconditional guilty pleas of various criminal defendants.

No dice, he holds. And grants a writ of mandamus. In his inimitable fashion; e.g., the second sentence of the opinion is: "These consolidated cases show again why the ten most terrifying words in the English language may be, 'I’m from the government and I’m here to help you.'"

Chief Judge Kozinski: A funny guy. But, simultaneously, not at all shy about sticking it to you when he thinks you deserve it.

U.S. v. Flores-Villar (9th Cir. - Aug. 6, 2008)

You're an illegal alien from Mexico. You've previously been convicted of importing marijuana. You're now convicted of being a deported alien found in the United States. Your best chance for reversal is to make a constitutional equal protection argument and assert that, on that basis, you get to become a U.S. citizen.

You lose below, but appeal to the Ninth Circuit. And a week before oral argument, find out that the panel drawn for your appeal consists of . . . Judges Hall, Rymer and Kleinfeld.

You might as well start packing now.

People v. Manning (Cal. Ct. App. - July 31, 2008)

Think that admission of prior offenses doesn't matter? Think again.

Without the admission of the evidence regarding the prior offense, there's no way that the defendant here gets found guilty beyond a reasonable doubt. But with the admission of the prior offense -- notwithstanding the fact that the prior was fairly dissimilar to the current charge (forcibly assaulting a co-worker versus allegedly groping a sedated patient eight years later) -- he definitely gets convicted.

People v. Diaz (Cal. Ct. App. - July 30, 2008)

No opinions from the Ninth Circuit today. Guess they're all still sleeping off the Sun Valley conference. Plus no opinions from the California Court of Appeal yet either. Maybe they had a good time as well.

Regardless, I can still give some good advice, derived (as always) from counsel received from the good pages of the Federal and California Reporter. Today, here's my thought:

I know that there's a convenience aspect to the process that your customers undoubtedly appreciate. My strong recommendation is nonetheless that you should not let people buy Ecstacy from you through the admittedly expedient means of sending you a text message.

Here's one reason why.

Twardowski v. American Airlines (9th Cir. - July 30, 2008)

You know the panel thinks that this is a fairly easy case when (1) the opinion is per curiam; (2) the majority of the sections consist of a single paragraph, and (3) the caption takes up more pages than the opinion.

Ramirez v. Nelson (Cal. Supreme Ct. - Aug. 4, 2008)

The Court of Appeal has to follow precedent. The California Supreme Court has a little more flexibility. And, as a result, often does a little more "justice" than the lower courts.

So, for example, Justice Gilbert, reading a statute, feels contrained to say that a homeowner might well be liable per se for having a contractor electrocute himself when his polesaw hits an overhead high voltage line. A result that, as I mentioned here, seems profoundly unjust, and yet that seems to be the lay of the land.

But the California Supreme Court says, essentially: "Look, that's just too absurd and unfair. We don't like it." Which is exactly right. And, I imagine, was how Justice Gilbert may well have seen it as well. But when you're the California Supreme Court, on an issue of California law, you're the boss. There's no one higher than you. So you can do, essentially, what you want.

Which it does here.

I'm not especially complaining. I think the California Supreme Court's decision enhances justice. I just feel bad for Justice Gilbert. Or anyone else on the Court of Appeal that doesn't have a similar infallibility that arises from finality.

People v. Sutton (Cal. Ct. App. - July 30, 2008)

The holding here is itself important -- basically, that even if the defendant doesn't waive time (i.e., the right to be brought to trial within 60 days), appointed counsel's engagement in another trial constitutes "good cause" to continue the trial beyond that statutory period. That's an important -- and interesting -- holding, and does conflict a tiny bit (albeit in an arguably distinguishable way) with some other holdings.

But let me focus less on the doctrinal merits here than on a passage in the opinion that quotes some of the dialogue below. Dialogue that jumped out to me as not right -- as not the type of discourse that I especially like to see manifested by judges. Here's the exchange between the defendant and Superior Court Judge
Judith L. Champagne (up in Los Angeles):

“Defendant Sutton: I’m confused.
The court. What are you confused about, Mr. Sutton?
Defendant Sutton: I’m told you have 60 days to start trial. Sixty days was up yesterday, and we’ve not waived any time. The minute order –
The court: That’s excellent. And I found good cause to put your case over.
Defendant Sutton: What’s the good cause? What’s the good cause?
The court: The good cause is that one of the lawyers is engaged and can’t try two cases at one time. And if one of the lawyers is engaged on a case with two defendants, it’s good cause to put both over. Now, do you want a further explanation than that?
Defendant Sutton: Yeah, but the minute order show we never waived any time. I’m confused.
The court: You’re not confused. You just don’t like it.
Defendant Sutton: Well, that’s a fact.

The court: That’s a fact. And you know what my answer to you is? Too bad. See you on Monday.”

The sarcastic "that's excellent" comment is somewhat snarky, but I'm willing to let it go. But I thought the "too bad" comment somewhat crossed the line. The Court of Appeal doesn't mention anything about this exchange, but I'd have dropped a footnote that said we expect a little more circumspection, neutrality and restraint from our judges. Because the appearance of justice matters too.

People v. Phomphakdy (Cal. Ct. App. - July 31, 2008)

The theme of the past 36 hours of my life has been: "Drugs, drugs, and more drugs!!" And, no, I'm not talking about personally. I mean professionally.

Yesterday the Court of Appeal (correctly) affirmed the dismissal of a lawsuit brought by San Diego County to the identification card provisions of the Medical Marijuana Program Act, and I briefly talked about that decision here. Then, that afternoon, I took the bench as a pro tem and decided a couple of cases, in one of which drugs played at least a healthy role. At the end of the day, back at my office, I then commented upon a decision by the Court of Appeal that, inter alia, discussed a Los Angeles physician who's willing to say that consuming three to six pounds of marijuana a month seems about right. Which is definitely nice. At least if you're into that sort of thing.

Thereafter, in more drug-related news, this morning, I donned a DEA jacket (metaphysically, at least) and, surrounded by a dozen DEA agents, executed -- as a court-appointed special master -- a search warrant on a physician (the name of whom I shan't reveal) who allegedly diverted a fair amount of controlled substances. Getting hooked on Vicodin, it seems, is not a good life, and entails an extremely hard habit to control. Finally -- or at least finally for now -- I stumble across this case, in which the Court of Appeal holds that Medical Marijuana Program Act's typical limit of "no more than eight ounces of marijuana" and “no more than six mature or 12 immature marijuana plants" unconstitutionally amends the Compassionate Use Act. And also, for those in the Bay Area up north, mentions Hany Assad, who's another doctor (like the other one I discussed yesterday) who's more than willing to both prescribe marijuana and testify -- again, ultimately successfully, at least once the case gets to the Court of Appeal -- on behalf of the defendant. (Though I must warn you that the stuff here about Dr. Assad doesn't sound especially good.)

In short, for me, at least, the past 36 hours have been all about drugs. And that's not even counting the fact that Cheech and Chong just announced that they're getting back together.

Dude. Like, heavy.

In Re Matthew A. (Cal. Ct. App. - July 28, 2008)

"You're like a little kid. We tell you and tell you and tell you, but you never seem to listen. Time to ground you to your room, I guess."

Or, as Justice Flier -- the mother of three children and several grandchildren herself -- puts it here, "Courts utilizing this technique may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious. But, if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment."

So there.