Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)

It's a random point, but I just wanted to share how much I appreciated footnote 3.

The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.

Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).

What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."

You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.

But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?

More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?

Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.

So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.

A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.

P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.

U.S. v. Murillo (9th Cir. - Dec. 1, 2008)

You want to know how you can tell when the Ninth Circuit doesn't like you? When it, inter alia, starts issuing published opinions that (1) reverse your judgments, (2) without the need for oral argument, (3) in two brief paragraphs, and (4) that further remand the case to a different judge.

Such is the fate of Judge Real.

Yet again: Feel the love.

U.S. v. Weyhrauch (9th Cir. - Nov. 26, 2008)

Here's a pre-holiday case that's interesting on a lot of levels.

First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?

Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion. It was an unusual situation; nonetheless, you'd have thought the government could have gotten it together at least a little earlier. Plus, Judge Fisher's reaction to all of this is priceless. He's (relatively) nice about the whole thing, but doesn't pull any punches either.

Third, down here in San Diego, we have a long-running criminal case against our own city officials, and this holding by the Ninth Circuit is certainly not a great pre-Thanksgiving present any of those defendants. Basically, Judge Fisher holds that, contrary to the views of several other circuits, an "honest services" mail fraud charge against public officials need not be based upon an underlying state law violation. That doesn't help the defendants (at all) either in the San Diego case or in this Alaska prosecution.

I'd ordinarily think that the importance of the case and the creation of a circuit split would make this a pretty good candidate for Supreme Court review. But the unique procedural complexity in this case -- while arguably providing yet another basis for a grant of certiorari -- on balance may lead the Court to let the matter percolate one more time, and in a slightly more straightforward vehicle, before taking the matter up. (Plus, this one's an interlocutory appeal, so no need for the Supreme Court to get involved now rather than after a final judgment.)

So some interesting reading from the Ninth Circuit -- which has been a bit sleepy over the past week -- right before the break. Enjoy.

In Re Cannon (Cal. Ct. App. - Nov. 25, 2008)

Prison inmates may well have a right to be served two hot meals a day pursuant to Section 5058 of the Penal Code and Section 3050(a)(2) of Title 15 of the California Code of Regulations, the latter of which provides that inmates in state prisons shall be "provided three meals each day, two of which shall be served hot."

But the Court of Appeal holds that (wholly apart from procedural problems with using habeas to challenge the alleged deprivation of this entitlement), by "served hot," the regulations really mean "were hot at some point." Here, that as long as a prison at one point makes the meal hot, the mere fact that it regularly takes the prison 60 or so minutes to actually serve the food to an inmate -- at which point the meal is totally cold -- does not matter. It's still a "served hot" meal. So you got what you're entitled to. Enjoy your "hot" soup or whatever.

Let's hear it for Chevron and prison deference, eh?

Ventimiglia v. Board of Behavioral Science (Cal. Ct. App. - Nov. 17, 2008)

You're a licensed marriage and family therapist. You're treating an unstable client. Do I really have to say it?

Don't have sex with her. Not once. And definitely not for 16 months.

Human interactions are complicated. Plus, things are often more complex than they appear. There are also difficult-to-explain equities and particulars of any given relationship.

Still. Just don't do it.

Even if you win -- temporarily or permanently -- in the Court of Appeal, as here, it's still not worth it. By a longshot.

And I'm quite confident that even Gary Ventimiglia, the petitioner here, would agree.

People v. Mentch (Cal. Supreme Ct. - Nov. 24, 2008)

The California Supreme Court held today that you're not a "primary caregiver" under the Compassionate Use Act merely because you're the one in charge of getting someone's pot. That's giving someone care, to be sure. But it doesn't mean that you're their "primary" caregiver.

Given that "primary caregiver" is defined in the stuate as "the individual . . . who has consistently assumed responsibility for the housing, health, or safety of that person,” this holding isn't all that surprising. Providing weed doesn't necessarily mean that you've undertaken the responsibility for a person's "housing, health, or safety," much less that you've done so on a consistent basis.

That holding is all that the California Supreme Court needed to say to decide this case. But it went further, and unanimously held that not only does a "primary caregiver" under the Compassionate Use Act have to be what we might traditionally call a primary caregiver, but further held that this relationship must also have been commenced at or before the provision of medical marijuana. The Court stated: "[W]e conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."

That ostensible holding (actually, dicta) in #3 is clearly wrong. There may well be caregivers who are true primary caregivers protected by the CUA even though they undertook this status only after the provision of medical marijuana.

Take the following hypothetical. Mary is an occasional pot smoker, and meets Jim, who has cancer and is undergoing chemotherapy. Jim asks Mary for some weed, and Mary agrees, and they smoke pot together around once a month, with Mary initially providing Jim no further services other than the occasional pain-reducing and hunger-enhancing spliff. Plus, at this point, Jim can take care of himself, and does not need a primary caregiver. Six months later, however, Mary and Jim fall in love, Jim's condition takes a turn for the worse, and Mary moves in with him, and for the next year, provides him with every element essential to his survival, including food (Jim can no longer feed himself), shelter (Jim's illness has left him penniless and unable to pay the rent), and all the rest (Jim can no longer clothe, bathe, move, or go to the bathroom by himself). During this period, until Jim's death a year later, Mary continues to provide Jim with medical marijuana.

The California Supreme Court's statement would mean that because Mary provided Jim with marijuana prior to becoming his primary caregiver, she is not immunized by the CUA for the subsequent provision of weed to him during the one-year period prior to his death. After all, as the Court says, "a defendant asserting primary caregiver status must prove at a minimum that he or she [] consistently provided caregiving . . . at or before the time he or she assumed responsibility for assisting with medical marijuana," and Mary can't do that, since she also provided him pot beforehand."

But that's clearly wrong. Even if Mary's not covered by the CUA during the initial six months, during which she's a medical marijuana provider but not a primary caregiver, she's unambiguously covered during the following year, in which she's both.

I understand the Court's sentiment that someone shouldn't be able to retroactively immunize prosecution, but the temporal limits established by the Court go further than that, and destructively (and wrongly) so. Just as a the Court recognizes that a true caregiver may provide marijuana at the outset of the caregiving relationship, so too may a true caregiver initially provide marijuana prior to the onset of this relationship. And the fact that the caregiver did something illegally at the outset does not mean that her subsequent conduct, which is clearly immunized by the CUA, somehow categorically loses protection.

So, in our hypothetical, Jim does not have to ditch Mary and fall in love with someone else as the only way to permissibly obtain medical marijuana. She's his primary caregiver. She can legally give him pot.

I'm all for making broad -- and even potentially unnecessary -- holdings sometimes. But on occasion, when a particular statement is unnecessary to the resolution of the case before it, the Court errs, and fails to consider accurately the implications of its holding. In my view, this is clearly one of those times.

People v. Cox (Cal. Ct. App. - Nov. 21, 2008)

We're heading into Thanksgiving Week. So how better to end the previous week than with an interesting Friday afternoon opinion by Justice Robie.

I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district. I didn't know that; indeed, I'd have intuited the contrary if you'd have asked me what the law probably was. Moreover, the municipal codes of several cities facially prevent such conduct, and Justice Robie concludes -- correctly, I'm sure -- that such ordinances are preempted.

Which is cool. I may celebrate this weekend by walking down the middle of the road. If only to see what happens. (Were this blog suddenly to cease publication after today, you in turn could probably intuit the likely result.)

What I like about this holding is twofold. First, what's the interaction between this holding and jaywalking statutes? Is it okay to walk in the middle of the road, but not to cross the road except on the corner? This seems strange, but if that's what the law says, okay, I guess.

Second, the holding deepens the mystery behind the age-old question, first posed by the Beatles in the White Album in 1968: to wit, "Why don't we do it in the road?" After all, as the Fab Four noted, "no one will be watching us in the road" -- a dubious proposition, but assuming it's true, why not? Especially since Justice Roie has now concluded that "doing it" in the road is even legal -- at least in some settings (and under certain definitions of "it"). So why don't we? Why don't we do it in the road?

On a slightly different tack, I also found the opinion interesting, at a much deeper doctrinal level, because Justice Robie concludes that even though the detention by the police in this case was totally illegal (since, again, you can do it in the road), defendant can still get convicted of subsequently resisting this illegal detention -- that, as far as the exclusionary rule goes, the subsequent resisting "removed" the taint of the initial illegal detention.

As far as that holding goes, I gotta tell you that my civil libertarian rankles initially reacted negatively to such a holding, and to a degree still very much do. There's a large part of me that says that if I'm free to walk along a street, and the police abuse their authority and ask me to stop, I can say "Screw you" and keep on walking. We all agree on that, right? And if they then grab my hand, and forcibly try -- again, illegally -- to stop me, there's part of me that says I can pull my hand away, and keep walking. Can I shoot them? No. Of course not. Can I punch them? No. Though if, after I pull my hand away, they then wrestle me to the ground -- again, all of this illegally -- am I really just compelled to sit there and take it?

Something very similar to all this transpired here, so it's not just a hypothetical. At the common law, anyway, you had a right to resist unlawful authority. We were, after all, a nation of revolutionaries, unhappy with our experience with the King and very much unwilling to subject ourselves to the resulting tyranny -- or to allow a similar thing to transpire in our new nation. But, in a progression well known to historians (and in ways that have only intensified in the last generation), a nation that initially structures itself around a central fear of governmental abuse and power nonetheless, as it ages, becomes more and more convinced that its exercise of governmental power isn't so bad, and that citizens need to accept (or at least submit) to such power lest there be untoward consequences. And in the modern era, judicial doctrine has changed alongside this alternation in political perception. So that while you once had the right to resist the police in the event they attempted to act unlawfully, nowadays, the judiciary has increasingly held that you have to submit. Upon penalty of prison for resisting arrest, even if you can prove -- as here -- that you were merely resisting the assertion of unlawful conduct.

Now, in a democracy, is there at least a good argument for such a proposition? Sure. One could reasonably hold, I imagine, that you're obliged to submit because non-self-help remedies are superior. That rather than resist, you should submit and, thereafter, sue. That that'd be better for everyone.

But two things. First, given qualified immunity and all the other contemporary protections for governmental officials, what we may very well be saying as a result of such a holding is that you've got to submit and hence do effectively nothing in the face of the unlawful assertion of government power. (Remember, for example, that you can't even sue for injunctive relief given the standing requirement of Lyons and related procedural obstacles.) Which, again, strikes me as unjust. And even if you could sue -- and I'm assuming here that you could afford a lawyer or effectively represent yourself, dubious propositions at best -- even if all that's true, why can't you alternately just go about your way acting lawfully when you are confronted by a governmental attempt to illegally restrain you. Sure, if you're wrong about them acting illegally, you go to jail. But going to prison even when you're right? For doing what you have a critical federal (as well as state) constitutional right to do? At some level, that just seems remarkably harsh. And potentially profoundly unjust.

I know that, here, only the exclusionary rule issue is raised, likely (I imagine) because the comtemporary California jurisprudence on the right to resist is so unfavorable. And, again, I can see why the law might be as Justice Robie concludes it to be.

Still. There's part of me that says that I should be able to walk down the street, and continue to walk down that street, even if the police illegally tell me to stop. And that if the police then compound their illegal conduct by placing their hands on me, I can push their hands away, and if they tackle me, I can run. That far from being an offense on my part, it's an offense on their part, and I can resist it just as I could resist similarly illegal acts of private individuals much less powerful than the government.

So I'm torn. I've got more thoughts here, but it's time for a faculty meeting. Which I wish I could say would be a hundredth as interesting as Justice Robie's opinion.

Doody v. Schriro (9th Cir. - Nov. 20, 2008)

Rarely -- and I mean, rarely -- do you have a court find that a confession was constitutionally involuntary. It's even more rare to make such a finding on federal habeas review, especially post-AEDPA. And it's rarer still for such a finding to be made in an extremely high-profile murder case.

But it all happens here.

Ahmed v. Mukasey (9th Cir. - Nov. 19, 2008)

There are not-very-competent attorneys in every field, of course. But my sense is that immigration law is one of those fields in which there are a higher proportion of attorneys who do extremely little -- or poor (or both) -- work without their client's knowledge. This is perhaps to be expected whenever you're dealing with one-shot clients unfamiliar with the legal system and desperate for assistance. My sense is that the reality of this field -- while far, far from uniform -- amply reflects this theoretical problem.

Clients unfortunately have very little access to information in choosing their counsel, which again enhances the possibility of abuse. In this regard, I have often thought it'd be helpful if there was some clearinghouse -- either online or otherwise -- that listed maybe some of the most obvious cases in which a particular attorney was held to be seriously deficient. Would this entirely solve the problem? Of course not. Would it be difficult to ensure that any particular opinion accurately reflected either the full set of facts or the attorney's typical performance? Again, no. But it'd at least be a start.

With that in mind, for whatever it's worth, I'd just like to mention that the performance of two California immigration lawyers -- Yemi Getachew (up in San Jose) and Olumide Obayemi (in San Leandro) -- are at issue in this opinion. And that, at least based upon what the Ninth Circuit found, neither of them come out smelling like a rose.

Take a look.

People v. Connors (Cal. Ct. App. - Nov. 19, 2008)

I'm on board for what Justice Cooper says here. It's not the most heinous set of crimes ever, but, still, I'll be happy for the defendant to spend some time in the big house.

I mention the case only because it doesn't make the probation department -- at least in L.A. -- look good. At all. Especially check out the footnotes.

Ass'n of Irritated Residents v. San Joaquin Valley UPCD (Cal. Ct. App. - Nov. 19, 2008)

Animal pee and poop causes air pollution. So you need to talk about it more.

That's a holding that even -- and perhaps especially -- my tiny children can understand.

Aguilar v. Aguilar (Cal. Ct. App. - Nov. 6, 2008)

Sometimes you read an opinion and think to yourself: "This is so clearly and obviously right. How could the other side even argue to the contrary? And -- worse -- how could the trial court have gotten it so obviously wrong? Both legally as well as equitably?"

This is such an opinion.


Maybe Justice Moore simply wrote an opinion that's blindsided me to the equities on the other side. If so, congratulations. Nonetheless, I'm entirely persuaded. She seems pretty much indisputably correct to me.

Kachlon v. Markowitz (Cal. Ct. App. - Nov. 17, 2008)

Donald and Debra Markowitz buy a house from Mordechai and and Monica Kachlon, and include as part of this transaction a $53,000 second mortgage in favor of the sellers. Plus, thereafter, Mordechai does contractor home improvement work for the Markowitz's on the house. And Debra, who's an attorney, provides legal work to Mordechai.

So there's lots of "services" floating around on both sides. Including, to make matters even more messy, some important non-business "services" as well. Namely, Debra starts having an affair with Mordechai. Eventually leading Donald to initiate divorce proceedings against Debra. Oh, yeah. Mordachai's also driving Donald's Jaguar, but Donald's still making the payments.

You can figure out what happens. Except it's even messier than you might imagine. Mordachai sues for alleged nonpayment of various home improvement projects and personal loans. Then the Markowitz's sue the Kachlons for allegedly initiating foreclosure proceedings on the house. Then Mordachai sues Debra for alleged legal malpractice and breach of fiduciary duty.

Needless to say, a tangled web. And you've only heard half of it. All of which Justice Willhite has to sort out. Which takes over 70 pages. Yikes.

Read the whole thing if you'd like. But I can shorthand the message for you as well. Keep business business and personal personal. And the more interrelated your interactions, the more of a nightmare it will be in the event that things eventually get ugly.

Which they do here. In spades.

Manco Contracting Co. v. Bezdikian (Cal. Supreme Ct. - Nov. 17, 2008)

When does California consider a judgment from Qatar "final" under the UFMJRA? What about Korea?

Here's some insight into the answers to those scintillating questions from the California Supreme Court.

Cook v. Avi Casino Enterprises (9th Cir. - Nov. 14, 2008)

There's some very good stuff in here about diversity jurisdiction as applied to corporations created by Indian tribes. It's a neat little issue -- at least for those of us fascinated by procedure -- and a matter on which there's both a dearth of authority and reasonable grounds for dispute. As evidenced by the fact that the majority opinion on this issue, written by Judge Gould, doesn't obtain the asset of Judge Fernandez, who dissents.

But there's an even larger, and more practically important, lesson to be learned as well. Which is this:

Drive extra carefully around Indian casinos. Because even if they were grossly negligent and served clearly intoxicated casino employees, you can't sue.

Judge Gould concurs to expressly mention that he's not happy about this result. But it's nonetheless the law.

Let's be careful out there.

Finnerty v. Board of Registered Nursing (Cal. Ct. App. - Nov. 13, 2008)

I knew that there were disputes at the margin about the chain of command in, say, the military. You can't just uniformly say you were "following orders" and be in the clear; there's a degree of professional judgment (albeit circumscribed) involved as well. Until I read this case, I was less informed about the "chain of command" at a hospital; or, at least, the relative roles of doctors and nurses. But now I know a bit more.

Moreover, given that your life and welfare is much more likely to be at stake in a hospital than in the hands of the military (at least nowadays), practically speaking, this is a good topic to understand. The question here is whether a particular nurse (Ellen Finnerty) should have her license taken away for countermanding orders of a doctor. Basically, you had a very sick patient with very labored breathing, but when the doctor ordered immediate intubation (in the hospital room), the nurse disagreed, and whisked the patient off to the ICU for intubation therein instead.

My reaction to the case varied a little bit page-by-page. Initially, I thought that the nurse was totally and completely in the wrong. And my intuition was definitely that the doctor -- not the nurse -- should clearly be in charge. But then, after reading various paragraphs, I thought there might actually have been good reason for the nurse's decision; namely, that intubation might have been a lot safer in the ICU, and she argued that the intubation would actually have taken place faster there since the room didn't have the staff or equipment to do the intubation within the 5 minutes it would take to roll the patient to the ICU and intubate there. If that was indeed the case, then I could see why the nurse might have acted the way she did. And presume -- and I've been around hospitals a lot lately -- that nurses generally don't countermand the express orders of a doctor on a whim, and that when they do so, they typically feel like they've got a darn good reason for doing so.

But, in the end, I think that Justice Cooper gets in right. On both the facts as well as the law. Yes, nurses have the power to countermand clearly dangerous orders. But this one wasn't. The intubation originally ordered by the doctor could indeed have taken place more rapidly in the room. And hence, especially when giving the decision below deference, the decision to revoke the nurse's license was justified. You can refuse to follow the orders of those superior to you. But if you do, you'd better be right. And here, the nurse wasn't. And the fact that the patient died a mere hours after the delayed intubation -- even if (as the Court of Appeals recognizes) the delay had nothing to do with the death -- surely doesn't help the nurse's position.

This stuff matters. Part of me profoundly respects a nurse for putting her own booty on the line if she does so in a sincere attempt to advance the welfare of the patient. That's an incredible, incredible thing. On the other hand, if the nurse countermands an important order merely because (as at least alleged here) she thought that an immediate in-room intubation would be a hassle to the staff and patients at shift-change time, well, in that event, I'm not at all bummed that you lose your license.

In the end, I agree with Justice Cooper. The casual reader, or justice on the Court of Appeal, can't tell for sure which version of the facts is right. Both versions have some support. So, right or wrong, you affirm.

Yep.

Hecht v. Paul Revere Life Ins. Co. (Cal. Ct. App. - Nov. 5, 2008)

I'm pretty impressed by anyone who can fully explain and adjudicate a case in nine short paragraphs. I think that's a rare talent, and not something that can be done (1) in most cases, or (2) by most people. And, to make clear, I include myself in the category of individuals in whom that talent does not reside. Typically, extremely short opinions are pretty incomplete, and often, I think, inadequate to the task.

Here's the exception to the rule.

Hat's off to Justice Yegan. I'm sure that one could have written more. But I agree that more is unnecessary. Short, to the point, and yet complete and fully analytical. Well done.

Hoopes v. Dolan (Cal. Ct. App. - Nov. 12, 2008)

It's always informative when California does something differently than the federal system. It's especially interesting when the difference involves something (as here) in which the divergence may be explained at least in part by the differential treatment of a historical relic. Which, in the present case, involves the time-honored -- and yet largely (but not entirely) abandoned -- distinction between law and equity.

I admit that I've always been interested in the lingering consequences of this historical difference, as I grew up (as most of us did) in the modern era, in which separate law and equity courts were (thankfully) merely a thing of the past. The distinction is still relevant, of course, in a number of different areas, the most important of which is whether you're entitled to a jury trial, but for the most part, you can go through life just fine with only a dim appreciation for the complexities occasionally engendered by the difference between law and equity (and, by implication, legal and equitable claims).

But sometimes, you gotta know more. And getting the answer right isn't easy. Like here.

When equitable issues are intertwined with a legal dispute (for example, when there are equitable defenses to a legal claim -- as there often are), it's an interesting issue as to which claims should be resolved first, as the first claims resolved may be preclusive of the other. California has a strong preference for resolving the equitable claims first; i.e., for having the judge adjudicate those things. The theory being that resolution of these judge-decided issues may obviate the need for a trial. By contrast, the federal system has a strong preference for resolving the legal claims first; i.e., for having the jury decide. The theory being that the right to a jury trial is important -- indeed, of constitutional magnitude -- and shouldn't generally be taken away by a judge. These two systems correctly identify and understand the interests at stake, but nonetheless come to competing conclusions. Which is always fun.

It gets especially interesting when, as here, the law/equity distinction intertwines with other relatively complex judicial doctrines; here, issue preclusion (a.k.a. collateral estoppel). Justice Sepulveda does a very good job explaining the resulting difficulties in a way that even non-procedure junkies can understand. Which is no small feat. And it's an important contribution as well, since even from reading this single case, one can garner the strong impression that one or more of the parties might have done things a bit differently had they fully understood the implications of what the initial jury instructions/findings might have on the subsequent disputes on the equitable defenses.

So for anyone who doesn't fully grasp what the judiciary does (or should do) in the relatively common cases in which both legal and equitable claims are raised, this is a very good opinion to read. I have a strong suspicion that virtually anyone who reads it will learn something. And can think of no higher praise for an opinion.

Williams v. Russ (Cal. Ct. App. - Oct. 27, 2008)

Feel free to sue your lawyer. And to demand your client file, as is your right under the ethical rules. But don't then forget to pay the storage fees and let the files be destroyed. Otherwise we will dismiss your malpractice action as a sanction. And the Court of Appeal will affirm.

People v. Anderson (Cal. Ct. App. - Nov. 10, 2008)

Justice Duffy decides to publish this opinion today in an effort, I'm sure, to remind everyone not to touch your babysitter. Especially if she's 14 or 15. And even if your touching is only over her jeans and on her inner thigh (with, at most, touching the rim of her underwear).

Because it's six months in prison and a lifetime of registration as a sex offender if you do. Even if it's your first offense and even if all your other babysitters love you.

A salutory lesson.

To slightly reprise a line from Risky Business: "Get off the babysitter." Indeed, don't get on her in the first place.

Southern Union Co. v. Irvin (9th Cir. - Nov. 7, 2008)

The jury initially awarded Southen Union Company (a corporate plaintiff) around $400,000 in compensatory damages against the not-very-nice chairman of the Arizona Corporation Commission, and also awarded $60 million in punitive damages. That's a ratio of over 150 to 1, which, not surprisingly, didn't stand, and the Ninth Circuit reversed back in 2005.

On remand, the district court gave Southern Union the option of accepting $4 million in punitives -- a ratio of around 10 to 1 -- and Southern Union (wisely, IMHO) accepted. Another appeal. This time, though, the panel is split.

The majority (Judges Reinhardt and Fernandez) conclude: Sorry, still too high. We admit that defendant is a very bad man. Who has done very bad things. Nonetheless, three to one is all that we're willing to allow here. So $1.2 million (plus postjudgment interest, of course).

Judge Reinhardt concurs to say that he's particularly influenced by the fact that we're talking about a rich (and hardly vulnerable) plaintiff here and a hardly rich defendant. "So don't get me wrong. I'm not capping out at a 3-1 ratio in the much more typical case involving a vulnerable plaintiff and wrongdoing wealthy corporation. Let me make that crystal clear." (I'm paraphrasing, obviously, but I read that as his central -- and important -- point.)

Judge Noonan dissents. "The defendant's a bad person. The district court was in the best position to judge things. Ten to one seems fine to me. I'm more than happy to defer to that." (Again, I'm totally summarizing.)


A neat little fight, with a not-so-typical lineup, about punitive damages ratios. Worth at least a quick read.

U.S. v. Williams (9th Cir. - Nov. 6, 2008)

Sometimes you're reversing the district court based upon an error it has committed and you sort of feel good about that. But sometimes you're reversing the district court and feel bad about it -- or at least feel bad if you make the district judge feel bad. No one likes to be reversed, after all.

So the Ninth Circuit reverses Judge Gonzalez (down here in San Diego) today, based upon an Allen charge that she gave that the Ninth Circuit found to be improper, but goes out of its way to try to make Judge Gonzalez feel okay about it. After reversing the conviction, Judge Bybee adds the following footnote to the opinion:

"In reaching this conclusion, we are aware of the conscientious effort that the district court made to avoid a mistrial after a lengthy trial, and we commend the district court for that effort. In this circumstance, as our opinion today makes clear, nothing could have prevented a mistrial."

So you get to redo a very lengthy trial, but don't feel bad about it. Not your fault.

Rogers v. Royal Carribean Cruise Lines (9th Cir. - Nov. 6, 2008)

Seamen, wages, and arbitration. Read all about it.

P.S. - I'm sure this will be an additional entry into Force and Norris's aptly titled (but firmly tounge-in-cheek) multivolume work, "The Law of Seamen".

E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc. (9th Cir. - Nov. 5, 2008)

I've read a lot -- and I mean, a lot -- of opinions by Judge O'Scannlain. And I've seen a lot of good ones.

But this one, in my view, is the most well-written of any of his opinions over past fifteen or so years. Concise. Funny. Insightful. Pithy. Irreverant. Wonderful.

Mind you, there's lots to play with here. It's a case in which an East L.A. strip club filed a trademark suit against the makers of Grand Theft Auto. You can't dream up better, or more interesting facts. At least to a certain crowd. So Judge O'Scannlain gets to say a ton of fun things that are both relevant and simultaneously humorous.

I'm not going to ruin any of the lines for you. Or even provide you with a sample. I'll instead make you read the whole thing. Trust me: As long as you're marginally culturally aware, even if (like me) you have never played -- or even seen -- single game of Grand Theft Auto, the time spent reading the opinion will be worth it, and will bring a smile to your face.

There's a lot there on the law as well, wholly apart from the fun. And I somewhat sympathize with the strip club owners: after all, I too wouldn't want my strip club characterized in a best-selling game -- as it is here -- as the prototypical incredibly seedy tittie bar. Even if (as it may well be here) that characterization could not be more accurate. I wouldn't like it, and would might well be inclined to bring a trademark claim. Though, as an attorney, I could also easily see why the judiciary might well reject such a claim.

I'd especially be upset -- were I a hypothetical strip club owner -- if the name of my place was the "Play Pen" but the makers of Grand Theft Auto, in the game, called it the "Pig Pen". Ouch. Talk about adding insult to injury.

Read the opinion. It's less than ten pages. It's a fun romp. You'll be glad you did.

People v. Stier (Cal. Ct. App. - Nov. 5, 2008)

It should probably go without saying. But it's nonetheless worth expressly holding. As well as publishing (albeit somewhat belatedly).

The police can't handcuff someone just because he's 6'6". If he's cooperative, and there's no real reason to believe he's a threat, you can detain him, but can't handcuff him.

Good to know. Even for those of us, like me, who are a full half-foot-plus shorter than 6'6".

Payne v. Rader (Cal. Ct. App. - Nov. 4, 2008)

It's an appeal. The deadlines are jurisdictional. So a single day matters. A lot.

People v. Garcia (Cal. Ct. App. - Nov. 4, 2008)

I read a lot of cases. But I don't think my eyes have ever glazed over as much as when I read this opinion.

Maybe it was all that food I had at the lunchtime faculty meeting. Or the excitement of the election. Or, just maybe, the incredibly dry and complicated topic of the opinion, which involved a fact-specific calculation of the defendant's proper sentence.

But, whatever the reason, I can honestly say that I found myself occasionally thinking: "I can barely even follow what the scoop is here." Maybe in part because it was very hard for me to deeply care about the result, since it's a defendant who was convicted of nine different counts (basically, some armed robberies and armed carjackings, with priors), on some or all of which he was pretty clearly guilty, and was sentenced to 154 years to life. And, as far as I can tell, the whole appeal is about whether the sentence should really be 154 years to life or something like 125 years to life or 114 years to life or whatever. In other words, a monster difference. Oh, yeah. And whether he should have been ordered to pay an additional $20 per count in costs as well. In short, potentially significant legal issues, but, practically, not much at stake.

Plus, it's just all really confusing. Here's, for example, what the trial court stated in its tentative ruling: "The three possibilities are term, three times the traditional sentence for the current crime, a term of 25 years of a traditional sentence, which includes enhancements, the greatest minimum term must be selected. Enhancements are not included and enhancements are not triple. Count 4 and count 7, exempt for those the greatest is 25 years for carjacking determines the upper term is nine years, three times nine is 27. This is ption one. Option 2 is 25 to life. Option 3 is the traditional sentence, which in this matter would be the high term of nine years, plus 10 years for the firearm, plus 10 years for the two prior convictions, and three years for the priors under P.C. 667.5, subsection (b). But since two of these are used under P.C. 667, subsection (a), they will not be used again under 667(a). Thus the total is nine, plus 10, plus 10, plus three, for a total of 32-to-life on count 4. Since the court is required to set the greatest term, option 3 is selected. Therefore, the base term on count 4 is 32 years-to-life. As to count 7, since the status enhancement under Penal Code 667(a) and 667.5(b) can only be used once for the sentence, the sentence is 25-to-life, plus 10 years for the firearm, for a total on count 7 of 35 years to life. As to count 1, second degree robbery, violation of Penal Code section 211, the minimum sentence is 25 years to life, plus 10-year enhancement for the use of the firearm, for a total of 35-to-life. Same sentence on count 2. As to count 3, a violation of 12021, subsection (a)(1), the sentence is 25 years to life. As to count 5, grand theft of an auto, violation of 487(d)(1), sentence is 25 years to life, plus 10 years for firearm, so 35 years to life on count 5. However, count 5 is stayed pursuant to 654. As to count 6, unlawful driving of a car in violation of [Vehicle Code] section 10851(a), sentence is 25 years to life, plus the 10, total sentence on that count is 35-to-life. That, as well, is stayed pursuant to 654. Count 8, grand theft auto, P.C. 487(d)(1), 25-to-life, plus 10 years, so 35-to-life on that count, stayed, as well, pursuant to 654. As to count 9, unlawful driving of a car, pursuant to 10851, subsection (a), 25-to-life, plus 10 years, so 35-to-life,
stayed pursuant to 654. The total sentence in this case for all the counts is 162 years to life.”

And then here's the sentence (and explanation therefor) the trial court ultimately pronounced: "[B]ased on the case I came up with the same calculations for count 1, exact same. And for count 2, the 211, would be 25 to life, plus 10 for the gun, plus 10 for the two priors pursuant to 667, same goal, 45-to-life. Third count, even though [the prosecutor] has argued it should be concurrent, the number will come up differently because we have a 12021(a)(1), 25-to-life, 10 for the 667, which makes it 35-to-life. For 4, the 215, it would be nine, which is the highest term, 10 for the gun case, 10 for the two priors, three for the 667 prior prison, 32-to-life. 5 would be the same, 25-tolife, 10 for the gun, 10 for two priors, 45 to life. 6 would be 10 for the gun, 10 for the
priors. 5 and 6 remain stayed. [Seven], for 215, once again, is the same as count 4. Count 8 is 25-to-life, plus 10 for the gun, plus 10 for priors, 45-to-life. [Nine], the 10851(a), and we have to remember that, pursuant to, I think it was both 1170.12 and 667, any felony where a gun is used is a straight 25-to-life with the priors. So it’s 25-tolife, 10 for the gun, and 10 for the priors, 45-to-life. Counts 8 and 9, again, are stayed. . . . . [So] Count 1, 45-to-life. Count 2, 45-to-life. [Three], 35-to-life. [Four], 32-to-life. Count 5, 45. Count 6, 45. [Seven], 32.
Count 8, 45. Count 9, 45-to-life. Counts 5, 6, 8 and 9 are stayed pursuant to P.C. 654. And because [the prosecutor] has agreed and there’s no dispute that count 3 should run concurrent pursuant to [defense counsel’s] request, that now makes it 189-to-life. It’s 154-to-life."

I mean, I understand all the words that are being used. But can I really follow, intellectually, what's going on? Honestly, no. Not really.

Admittedly, Justice Turner's opinion helps out, and as I read all thirty-plus pages of it, I at least began to comprehend the basic scoop, as well as the potential problems. Still, on occasion, I found myself lost. Like I was reading stereo instructions. "Place the red coaxial into the right audio out input of the video component subwoofer?! What?"

Fortunately, in the end, I understood what was going on. Or at least I think I did. Kind of. Most importantly, I obtained solace in the fact that Justice Turner (1) explained the results, count-by-count, in the end, and (even more important, to me), (2) said, in the end, "We have asked the parties to calculate the sentence for each count. The calculation of the current sentences are quite complex and the trial court and the parties have quite understandably struggled with the issues; as have we." Whew. Thank goodness. Glad to know I'm not alone. 'Cause I gotta tell you that for a while there, I was feeling like a liberal arts major at a NASA engineering convention.

Auerbach v. Assessment Appeals Board (Cal. Ct. App. - Oct. 30, 2008)

So the Ninth Circuit closes out October by not issuing any published opinions for three straight days, and then today, what does it come up with? Only this order (in a FERC case on remand from the Supreme Court that the Ninth Circuit simply remands back to the district court in a single paragraph) and this opinion (an immigration case in which submission was deferred pending an opinion in an earlier-submitted case and, at least as held by the majority, is on all fours with the Ninth Circuit precedent subsequently published in that case earlier this year). Meanwhile, nothing at all from the California Court of Appeal or California Supreme Court. Or at least nothing before my afternoon class begins at 1:00. *Sigh*

So I'll make a catty comment derived from a case late last week. And lament the difficult life of a Carls, Jr. (i.e., CKE Enterprises) executive. You buy a $19 million-plus Gulfstream jet to whisk you around in private luxury -- on the shareholder's dime, of course -- and the L.A. Assessor actually wants you to pay tax on the thing as well. The horror.

Fear not. You win in the Court of Appeal. A victory that I'm certain -- just certain -- will trickle down to consumers to reduce the price of a hamburger at Hardee's.


P.S. - What an incredibly diverse management team.

Apollo v. Gyammi (Cal. Ct. App. - Oct. 31, 2008)

Three straight days now with no published opinions from the Ninth Circuit. But, again, the California Court of Appeal takes up the slack. Including this opinion, which is definitely worth a read. Not because it establishes any critical precedent. But rather because it's an interesting set of facts. As well as gives one a keen sense of the displeasure that courts sometimes take towards pro se litigation. Particularly when filed by prisoners.

You don't usually have a prisoner who (1) seems fairly diligent, (2) confronts a seemingly hostile and overly penurious judge, and (3) actually has a potentially meritorious case. Sure, you'll get one of these, and perhaps even two of them, on occasion. But all three? Rare. But, here, I think Justice Jenkins was surprised -- as I was -- to find the trifecta.

So take a gander at it. It reaches the right result. And, for what it's worth, doesn't make Judge Beeman (up in Solana County), look especially great.

P.S. - I welcomed Justice Needham for his first mention in the California Appellate Report yesterday, and today similarly welcome Justice Jenkins (who, as you may know, come over earlier this year from the federal bench). Enjoy.

Turner v. Association of American Medical Colleges (Cal. Ct. App. - Oct. 30, 2008)

For anyone who wants to take the MCAT, this is an important case. It's also important, by analogy, to those of us in the legal field. Especially those of us in the academy. Since what's good for the MCAT is almost certainly good for the LSAT as well. And, potentially, for law school exams as well.

It's a disability accommodations case, and concerns whether California law (the Unruh Act) requires the MCAT to give test takers more time (or additional accommodations) beyond those required (if at all) by the ADA. Justice Needham says "No." And, in so holding, reverses not only the judgment of the trial court below, but also the attorney fee award of approximately $4 million.

For good or bad, there are a lot more testing accommodations nowadays -- in all fields -- than there were a decade ago, or a decade before that. And, almost assuredly, for anyone not involved in this area, a lot more than you think.

So it's an important case. Particularly for those of us in California. Read it at your leisure.

P.S. - And welcome to the California Appellate Report, Justice Needham. Your first mention in what will, with luck, be a long line of (at least mostly) positive and glowingly effusive praise.

In Re Charllisse C. (Cal. Supreme Ct. - Oct. 30, 2008)

The Ninth Circuit has taken the last couple of days off, at least as far as published opinions go. Fortunately, there's no rest for the weary in the California appellate courts.

Today the California Supreme Court gives the following lesson about how to avoid dissent. It's a tough conflict of interest issue that involves the validity of screening by the Children's Center of Los Angeles through the creation of different internal "units" so that it can avoid disqualification in dependency cases. But the Court resolves the dispute unanimously; by contrast, the decision below had generated three different opinions.

How does the California Supreme Court achieve unanimity on this difficult issue? By merely holding that the Court of Appeal applied the wrong legal standard (since this is a concurrent, rather than successive, conflict of interest case), and then remanding the case alongside relentless reminders that the Court isn't even trying to decide the merits.

That works. Though merely defers the day of reckoning.

People v. Newby (Cal. Ct. App. - Oct. 29, 2008)

A woman named Julie tells her fiancee that she's breaking off the engagement and leaving him. The fiancee (William Newby) responds by "grab[bing] Julie by the throat and punch her in the face several times with his fist. Eventually falling to the floor, drifting in and out of consciousness, Julie watched as defendant continued the attack by kicking her in the face with his steel-toe boots. Throughout the attack, defendant repeated: “[Y]ou are fucking dead, you are fucking dead, you bitch, you are fucking dead.” When defendant was finished, he took Julie’s engagement ring and departed. Defendant beat Julie so severely that her nose was pushed into her nasal cavity. Several facial bones, including those supporting the nose and those surrounding the eyes, were shattered. Fragments of these bones were strewn throughout her nasal cavity, causing air from her sinuses to get into the fat tissue around the eyes. One of her front teeth was also broken off at the root."

Notwithstanding the horrible attack, Julie clearly made the right call, and correctly saw Newby for what he was. And now Newby gets to spend the rest of his life in prison. And look therein for a new fiancee. Over the internet or otherwise.

U.S. v. Snellenberger (9th Cir. - Oct. 28, 2008)

I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.

It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam. Judge Milan Smith writes a dissent, joined by three other judges. And Judge Graber (joined by others) writes a concurrence to respond to the dissent (which argues that the court should reach an issue not raised by the opening brief regarding whether a recent en banc decision of the Ninth Circuit counsels reversal of the judgment below as plain error)

What makes this otherwise straightforward outcome slightly weird is that Judge Graber is joined by no less than five of her colleagues. In other words, the concurrence is joined by a majority of the court, and responds to a dissent joined by four judges. In short, it's a 7-4 decision, and 6 of the 7 want to say X as well, and yet the majority opinion does not contain the argument of the 6. As I presaged at the outset, the only judge not part of the 6 or the 4 is Judge Fletcher, who's vote on the point mathematically matters not.

Traditionally, you'd see the 6 judges write a majority opinion, the 4 judges write a dissent, and the one judge left out write a separate concurrence that says "I agree with the majority, but not with X." And yet, here, it's inverted, with the one judge (essentially) writing the majority opinion [though my sense from the writing is that Judge Fletcher wasn't the actual author] and a majority of the court writing a "concurrence". Weird.

The lineup is also not what you'd usually expect. It's a criminal case, so you've got your traditional splits, and yet here's who's on the defendant's side: Kozinski, Reinhardt, Thomas and Milan Smith. Now, the first two are occasional buddies both on and off the court, though typically more in civil liberties matters. But the latter two joining this mix; well, if there's ever been an en banc decision with only these four on one side, I certainly haven't seen it. A Carter, a Reagan, a Clinton, and a Bush II. Strange bedfellows. Especially when on the other side you've got the two remaining Bush I appointees and five Clintons. I don't remember such an ususual split in a non-snoozer sort of case (ERISA, state contract law, etc.) in a long time. Only adds to the weirdness.

As for the merits, you can read the relevant opinions. But I think Judge Smith does a fairly decent job of presenting the respective positions -- as well as advancing his own -- in the penultimate paragraph of the dissent:

"I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result."

So there you have it. An interesting case for sure.

People v. Conception (Cal. Supreme Ct. - Oct. 27, 2008)

Here's yet another reason not to attempt to escape from custody once your trial has started. Not only will they give the jury an adverse instruction about flight, but they'll also keep your trial going in your absence. Even if you're promptly caught.

And the California Supreme Court says that's just fine.

Citizens for Civic Accountability v. Town of Danville (Cal. Ct. App. - Oct. 27, 2008)

Yes, we live in an electronic era. But that doesn't mean that California statutes are necessarily in the 21st century.

So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means. E-mail doesn't count. And that's true even if there's a standing order (as there is in Contra Costa County) that says e-mail counts and that we don't use snail mail to send out judgments.

Especially given the unreliability of e-mail at the University of San Diego, I couldn't agree more.

U.S. v. Hinkson (9th Cir. - Oct. 20, 2008)

When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.

So the vitriol -- from the panel opinion, at least -- won't be cited as precedent. We'll see how the en banc court sorts this one out. I'd be stunned if the result doesn't turn out to be split.

Stay tuned.

U.S. v. Fiander (9th Cir. - Oct. 23, 2008)

Contraband cigarette trafficking. It still exists. And while we can't charge members of the Yakima tribe (up in Washington) with substantive violations of the Contraband Cigarette Trafficking Act for not getting shipments approved in advance, we can, the Ninth Circuit held, charge them with a RICO conspiracy. At least when they conspire with people who aren't members of the Yakima Nation.

Interesting stuff. Both factually as well as legally.

Styers v. Schriro (9th Cir. - Oct. 23, 2008)

One may perhaps take umbrage that it has taken 18 years for this death penalty case to work its way through the Arizona state system and finally get to the Ninth Circuit (after every court below denied relief). But you can't make the claim that the Ninth Circuit has inexcusably added to any such delay, as the oral argument was on August 20th, and the per curiam opinion was published today, two months later.

Pretty speedy.

Mangano v. Verity (Cal. Ct. App. - Oct. 22, 2008)

I agree with Justice Mihara that the defendant employer here was entitled to summary judgment in its favor, as well as an award of post-998 offer costs (but not attorney fees). So I have no complaints about the merits.

Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr. Mangano "Rainman" in front of everyone at the company -- and even gave him a plaque to that effect -- in light of the subsequent discovery that Mr. Mangano had Asperger's Syndrome. Yikes.

Fortunately, the offending party immediately stopped using this nickname once Mr. Mangano requested that he do so. Still. Maybe we can all learn the following lesson, if only as a matter of civility: Don't tease someone about a perceived disability that they may, in fact, have. Whether you (or they) know it or not. And whether the disability you're teasing them about is exactly the disability they have or merely something close.

Agreed? Good.

El Dorado County Dep't of CSS v. Nutt (Cal. Ct. App. - Oct. 21, 2008)

I can't think of a more important use of social resources than for the government to bring and defend on appeal a child support action against a penniless three-strike prisoner who's in prison, not able to work, and eligible for parole as early as 2045. Just in case.

Definitely not better to bring that action when and only in the one-in-a-billion parallel universe in which the prisoner actually wins the lottery (without buying a ticket). Nope. Bring it now. Especially since the best you can possibly hope for, since the prisoner is penniless, is a judgment that says that no child support is awarded but the court "reserves jurisdiction" in case things ever change.

Anyway, great victory, El Dorado Department of Child Support Services. Huge win.

New v. Kroeger (Cal. Ct. App. - Oct. 21, 2008)

The Episcopal Church has had a lot of defections recently as a result of its decision to ordain an openly gay bishop (just like, several decades ago, they had a lot of defections when they decided to ordain women). As a result, there have been several fights in secular courtrooms about who "owns" the property of a particular defecting church. Including a case from down here in Fallbrook (in San Diego county) involving St. John's Episcopal Church.

Justice Nares writes an outstanding opinion here, and gets it exactly right (reversing the trial court, Judge Stern). When I started reading the case, I was concerned that the civil courts might potentially overstep their boundaries by intervening in a doctrinal religious dispute. But halfway through the opinion, Justice Nares totally persuaded me that not only was intervention permissible, but that a civil court was also required to defer to the decision of a heirarchical church regarding these matters. And that, for this reason and others, the higher-ups in the Episcopal Church were indeed entitled to keep control of the religious corporation here notwithstanding the efforts of the defectors (and contrary judgment by the trial court).

So good job, Justice Nares. This was not an easy case. At all. But, in my mind, at least, you got it exactly right.

Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)

Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.

P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right. Here, Justice Perluss notes that there isn't waiver, but rather asserts estoppel. In non-estoppel contexts, what we often call "waiver" is actually "forfeiture". So, for example, we traditionally say that you "waive" personal jurisdiction by not specially appearing (California) or asserting it in your answer or 12(b)(2) motion (federal court), but what we will often really mean is that you've "forfeited" this defense by neglecting to assert it. I mention this only because (1) I'm as guilty as anyone of this misuse of terminology, and I teach civil procedure for a living, and hence am certain that other people misuse the terms as well, and (2) there is a burgeoning trend in the judiciary, I think, to try to make these distinctions clear. So I thought I'd pass along the message.

Porter v. Osborn (9th Cir. - Oct. 20, 2008)

Don't pull off on the side of the road in Alaska. You may well be killed. And it might be by the police.

The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.

Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)

A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out. This decision was unanimous, joined by Judges Hug and McKeown.

Last year, the Ninth Circuit addressed this same issue, and on the basis of this recently decided precedent, voted to deny the petition. But Judge Thomas (joined by district judge Leighton) concurred, arguing that the prior precedent was wrongly decided (albeit binding).

You can guess where this is going. Today, the en banc court reverses the panel and overrules the prior (two-year old) precedent. Holding that, yes, it's a crime, but that at least when the victim is 16 or 17, it doesn't constitute felony sexual abuse of a minor categorically sufficient to justify deportation. On an extremely close vote of 11-0.

Such was the short life of Afridi.

Cundiff v. Verizon Wireless (Cal. Ct. App. - Oct. 16, 2008)

You're killing me. The second straight day of no published opinions from the Ninth Circuit. And from the California appellate courts, here -- in toto -- is the entirety of what's been published today: "It is ordered that the opinion filed herein on September 30, 2008, be modified as follows: 'On page 8, the last sentence of the opinion is modified to read: “Respondents to receive costs on appeal.”'" Not much to wax poetic about, eh?

Late yesterday the First District did issue this opinion, which involves whether uncashed settlement checks (obtained after claim forms were filed) reverted to the defendant -- here, Verizon -- or instead get distributed to charities pursuant to CCP 384. I think that the plaintiffs have the better of the argument here, which is what Justice Klein also concludes.

But let me say that I also had the reaction that this dispute may also reflect a partial problem with the adversary system here. Because as I was reading the case, my intuitive reaction was -- and somewhat remains (albeit without much research) -- that neither party may be entirely correct here. Verizon argued that it got to keep the uncashed checks and plaintiffs wanted them to go to charity, but my sense was instead that they remained -- or at least should remain -- the property of the individuals to whom these checks were sent, and that the property should thus revert to the state under the unclaimed property laws and remain there until the relevant individual requests them (which they can do forever, and the Controller is under a statutory duty to find and notify them). That seems not only required by the California unclaimed property statute, but would also, I think, be preferable as a policy matter to simply giving the funds -- which, again, were claimed by the individual class members -- to charity.

Justice Klein doesn't talk about this possibility, I imagine, because neither of the parties here had an incentive to raise the issue -- and they didn't (I checked out their briefs). It seems to me that if you have a reasonable shot at getting the half-million here to the rightful owners, that should be preferred to simply letting a charity cash their checks and deprive them forever of this cash. So I understand why Justice Klein -- as well as Section 384 -- might prefer giving the cash to charity rather than reverting back to Verizon. But given the ambiguous nature of Section 384, as well as the statutory text and policy bases behind the unclaimed property laws, I might add a sentence to the opinion that says (at a minimum) that the Court of Appeal expresses no opinion as to whether Section 384 trumps the unclaimed property laws, and would hope that on remand, the trial court would interpret these statutes to give the money to its rightful recipients.

I think there's a difference between an "unclaimed residue" in a fluid recovery class action or otherwise and checks that are affirmatively requested by a class member who files a claim form and who merely fails to cash (or doesn't timely receive) the resulting check. I agree that Section 384 sends the residue to charity in the former case, but I think that the recipients get to continue to receive the funds as unclaimed property in the latter.

That's my take from the outside, anyway.

Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)

Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?

Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment. At the end, Justice Richman says that the opinion doesn't stand for the proposition that every "defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff’s attorney must warn a defendant’s attorney before taking a default." But the perceived need to include those two sentences is fairly instructive. It's a very pro-warning, anti-default opinion. Not wrongly so, IMHO: I always prefer adjudication on the merits. But, still, it's a very powerful piece.

There are also a couple of random things in here that make the opinion especially worth reading, including but by no means limited to its style as well as the relative reverence accorded to the views of the Rutter Group. I also think it's interesting that the opinion easily equates professionalism and courtesy with ethics (e.g., that an unprofessional or discourteous act, like not warning counsel that you may take their default, is necessarily an unethical act as well). I'm not entirely persuaded that's true: It depends on what we mean by "unethical," and that word may perhaps have different connotations for different people.

So there's a lot in here to feast upon. As well as to use if your client ever pulls a "whoopsie" and incurs a default judgment against it.

O'Leary v. Aubrey (Cal. Ct. App. - Oct. 7, 2008)

Desert. Very little today. Nothing at all from the California Court of Appeal. From the Ninth Circuit, only a guidelines case, a standard of review case, and a "how much interest does one particular guy get on unclaimed property held for him by California" opinion. The latter of which is marginally interesting, and important to the participants, but about which I could add very little. And, sadly, I've got to go to a meeting, so can't wait for the afternoon cases (if any) from the California Court of Appeal.

So let me just briefly reference this recent unpublished opinion by the Court of Appeal down here in San Diego. Which seems right on the merits. But definitely confirms the suspicion that jurors -- well, they're not wonderful at interpreting jury instructions. At all.

Don't look in the factory if you don't want to know what goes into the sausage.

Hoffman v. Citibank (9th Cir. - Oct. 14, 2008)

The Ninth Circuit remands -- "respectfully" (though I think they actually mean it this time) -- so the district court can apply the correct law in a more rigorous fashion than it did previously. Judge Trott concurs to basically slam the California Court of Appeals for not getting on the same page. A snippet of the latter, including the final paragraph:

"California law is far from settled. . . . [Judge Trott then describes three competing opinions from the First, Second, and Fourth Appellate Districts.] The good news, if there is any good news in all of this, is that the California Supreme Court vacated and remanded the [last of these cases] for further proceedings in light of its decision in Gentry . . . . There it is. Mixed signals from the California courts. One hopes on remand in this case that the legal dust will soon settle and that our district court will have some reliable authority upon which to base its decision."

Personally, given that the first two Court of Appeal cases reach conflicting results, I don't see how the third case can possibly "settle" this dispute anytime soon, which could only be definitively resolved if the California Supreme Court had granted review. But maybe Judge Trott is just more of an optimist than I am.

So the Ninth Circuit says: "Get your act together, California Court of Appeal. Help us out on this one." Which I'm sure will happen really, really soon. (Read this last sentence sarcastically.)

In Re Christopher Columbus (All Courts - Oct. 13, 2008)

It's Colubus Day. Which means very little to us working stiffs, but to the California Court of Appeal and the Ninth Circuit, it means a holiday. So no opinions today.

Given the dearth (indeed, total absence) of opinions today, I thought I'd briefly make a random comment. While judicial opinions are my usual recreational reading -- and more than keep me busy -- on occasion, I'm compelled to read something else. Typically, those other works are also nonfiction, and are usually read in order to get my children to sleep.

For example, when my daughter Sierra (who's now seven) was born, for the first couple of years, she would occasionally refuse to go to sleep until an hour or so of reading. And she didn't care at all about the content -- she just wanted to hear the sound of your voice. Admittedly, I could have chosen to read "Goodnight Moon" a thousand times in a single night, but while that book is just fine every other day or so, I think I'd go bonkers if I was compelled to read it over an over again on a single night. So one day I grabbed a random nonfiction book off a nearby shelf and read it out loud, at which point Sierra fell promptly to sleep. So, of course, on the theory that one should never argue with success, I kept up that tradition, with outstanding results. Hence my young daughter heard, cover to cover, Thorstein Veblen's "The Theory of the Leisure Class" not just once, but twice. Which seems an outstanding -- if somewhat unusual -- introduction to the world.

I mention this only because, yesterday, I had a similar need with respect to my two-year old (as of three days ago) son Charlie. And, again, randomly pulled out a book from the shelf. This time it was Hunter Thompson's "Fear and Loathing on the Campaign Trail '72". Which, I gotta tell you, is an nice piece, especially the second time around and particularly given the contemporary campaign. The contrast between what transpired then and modern presidential campaigns is very interesting -- in large part, what's radically different, and yet at the same time those things that have changed only slightly, having become more sophisticated in their execution and yet with the same central purpose and function. Plus, it's interesting to revisit that era, which was (in my view) a very different time than what we presently confront.

So I recommend these pieces. They're oldies but goodies. Even if you're reading them for yourself rather than to send a child into la-la land.

Enjoy.

Sturgeon v. County of Los Angeles (Cal. Ct. App. - Oct. 10, 2008)

It's bad enough that your investments are plummeting, your house is worth only a fraction of what you paid for it, and your retirement accounts are completely tanking. But, in the midst of all of this, the Court of Appeal wants to make your weekend even worse. So this afternoon, it publishes this opinion. Which reverses the trial court and threatens to take away a large amount of money from state court judges not only in Los Angeles, but across the state as well. Basically, all their benefits.

Wow. The timing couldn't be worse.

Mind you, on the merits, I think that Justice Benke is right. And she writes an outstanding opinion that I really think addresses the issues quite well. Moreover, as a practical matter, at the end of the day, I think it very likely that state court judges don't have much to worry about from this one, since there's footnote 11 as well as -- in my mind -- a strong likelihood that, if nothing else, the Legislature will step in to clean this problem up and make sure that judges get their benefits.

Still. If you are a state court judge, you've had better weeks.

California Coastal Comm'n v. Allen (Cal. Ct. App. - Oct. 1, 2008)

There are lots of ways to lose your home, especially in the contemporary financial market. Here's another.

Even multi-million dollar Malibu homes are not immune.

People v. Briones (Cal. Ct. App. - Oct. 9, 2008)

I don't know why the Court of Appeal decided not to publish Part I of this opinion. It's an important issue, and one that I imagine arises with some frequency; indeed, introducing testimony like this may well arise from an outline that a wide variety of prosecutors use when examining witnesses who have made a deal.

If Part I is right, I'd publish it. That portion of the opinion is far more significant, in my opinion, than the portion (Part II) that the panel decided to publish.

Pacific Sunwear v. Oleas Enterprises (Cal. Ct. App. - Oct. 9, 2008)

The things I don't know about the UCC could fill a book. A book roughly the size of, say, the UCC.

I know a decent amount about intellectual property (though much less than my wife), but did not realize until this morning that the UCC -- including California's version of it -- has a fairly strong default value that the seller warrants that the products are delivered free of any infringement claims.

And, in this opinion, Justice Irion makes this default warranty even more significant, holding that it extends even to unsuccessful claims of infringement -- indeed, even ones disposed on summary judgment. As long as there's a "nonfrivolous claim of infringement that has any significant and adverse effect on the buyer's ability to make use of the purchased goods" (e.g., will result in significant costs to defend a lawsuit), you're in trouble.

So beware.

Stillwell v. The Salvation Army (Cal. Ct. App. - Oct. 6, 2008)

There's not much today. Just a couple of opinions from the Ninth Circuit and one from the California Court of Appeal. For some reason, the beginning of October seems to be fairly slow. I blame professional football and the MLB playoffs.

There is one opinion from a couple days ago that I went back and reread this morning. It's a case from down here in San Diego in which the plaintiff, Arthur Stillwell, sued his longtime employer, The Salvation Army, for terminating him notwithstanding an alleged agreement to do so only for good cause. My initial reaction was that you could definitely think of less sympathetic defendants than The Salvation Army, and I thought that a conservative San Diego jury would be hard pressed to find in favor of the plaintiff. But they in fact did so.

There was no out of control award by the jury -- they gave Stilwell a little over $150,000. But that's still a fair piece, especially for a public interest defendant in a conservative jurisdiction and a fairly amorphous claim of an implied good cause agreement.

So the result itself was interesting. At least to me. Also interesting were the details of the jury's verdict and what transpired thereafter. First, the jury verdict was internally inconsistent -- it was a special verdict, and the jury found that the parties had an integrated written agreement, but nonetheless awarded damages based upon an implied contract that was inconsistent with the terms of the written contract. That doesn't fly. But this is in part due to the structure of the special verdict (not the jury's fault), which directed them to answer the relevant questions (and award damages) notwithstanding the finding on the integrated contract. Still, it's inconsistent. A topic about which I know (and have published) a little bit, in addition to having litigated in the Ninth Circuit.

Also interesting, however, is what the trial court -- Judge Meyer down here in San Diego -- does. He enters a JNOV for the defendant based upon the jury's finding about the written agreement, holding that this finding as a matter of law precludes any recovery for the plaintiff. But as Justice Aaron correctly notes, you can't do that. When there are two inconsistent jury decisions, you can't enter judgment merely by picking one of them. Just like you couldn't enter a contrary judgment by picking the other. At this point, you're looking at a new trial. Which is precisely what Justice Aaron orders.

Parenthetically, this is why you identify and raise these issues before the jury is dismissed. Because one side (here, probably the plaintiff) would probably have wanted the jury to be ordered to redeliberate and resolve the inconsistency, and it might well be that Judge Meyer would have do so upon request. But you can't do that once the jury departs.

So stay on your toes after the jury returns a verdict. There's still some work -- and thinking on your feet -- to be done. Because this is far, far from the first inconsistent verdict ever returned by a jury.

U.S. v. Delgado (9th Cir. - Oct. 7, 2008)

I guess I could have figured it out by reasoning from first principles. But I'll admit my ignorance, and that I did not know -- until this morning -- that the police can conduct warrantless seizures/stops of commercial trucks for with no probable cause (or even reasonable suspicion) whatsoever.

But apparently that's the case.

I understand the reasoning. Just add this to the list of areas (border searches, aerial surveillance, etc.) in which you are subject to being searched and/or seized for any, or no, reason.

Alaska Independence Party v. State of Alaska (9th Cir. - Oct. 6, 2008)

The Alaska Independence Party got more than its typical share of press after the discovery of the Palins' connections thereto. So we may collectively know a little more about its substantive views than we did previously; nonetheless, for insight into the manner in which the AIP nominates its candidates during the primaries, and for insight into how it wishes it could nominate its candidates, check out this opinion.

I think that Judge Fisher's opinion is exceptionally good. I didn't have a strong preexisting feeling on the merits of the dispute, but in the end, I was entirely persuaded that Judge Fisher was right. Political parties have associational rights. But those rights don't extend to only allowing "approved" party members to be the party nominee. At least in contexts similar to those that exist here.

I'm on board for this one.

Slovik v. Yates (9th Cir. - Oct. 6, 2008)

Want to know how coin-operated pool tables know how to send the cue ball back to you? Judge Bybee helps out in footnote 2. In the midst of reversing a conviction for throwing pool balls during a bar fight. Down here in San Diego, no less.

Or you can read this.

Either way, your knowledge expands.

P.S. - Ninth Circuit webmaster: On the Friday published opinions, you input the date as "10/3/08" instead of "10/03/08", which means they'll always be listed on top of October. Might want to change that.

Caldwell v. Caldwell (9th Cir. - Oct. 3, 2008)

How things can change. When I first started reading this opinion (by Judge Rymer), my initial reaction was that (1) the plaintiff had standing to bring the action, but (2) the merits of the lawsuit were incredibly weak. But as to the first point, Judge Rymer -- as well as Judge Betty Fletcher's concurrence -- persuaded me that plaintiff probably didn't have standing. Even under the fairly aggressive view of taxpayer standing applied in Establishment Clause cases.

The opinion doesn't address the second point, but my reaction to that one changed as well. It's a somewhat unique Establishment Clause claim, as it's a claim brought by a fundamentalist Christian against a government website that's pro-evolution. My initial reaction was: "That's absurd. Of course the government can create a secular website explaining evolution. This is totally frivolous." But then I read what at least a portion of the site contains, the most troubling portion of which consists of an attempt to explain how evolution is consistent with various religious beliefs. Upon reflection, I'm less than entirely persuaded that the government can make express religious arguments or claims, or attempt to interpret a religion (and express that interpretation with public funds). I'm still not sure how I'd come out on the merits, but I didn't think that the challenge was nearly as frivolous as I initially suspected it to be.

First reactions aren't always correct. At least if you're willing to rethink things. Which one totally should be.

So this one raises a lot of interesting questions. It's a good way to start your mind working on a lazy Friday morning.

Castaneda v. United States (9th Cir. - Oct. 2, 2008)

Let me preface this with the following: Read at your own risk. Remember, I'm just quoting. But for the squeamish amongst you -- especially you men -- maybe you should just skip this one. (By contrast, for a glimmer of the nature of the beast, you can just read the sentences I've underlined):

"Francisco Castaneda was imprisoned by the State of California following a December 6, 2005 criminal conviction and held in the custody of the California Department of Corrections (DOC) until his early release date, March 26, 2006. Several times during his approximately three-and-a-half-month incarceration, Castaneda met with DOC medical personnel regarding a white-and-yellow raised lesion, then measuring approximately two centimeters square, on the foreskin of his penis. Twice, in late December and late February, DOC medical providers recommended that Castaneda be referred to a urologist, and that he undergo a biopsy to rule out the possibility of squamous cell cancer. This referral never occurred during Castaneda’s detention by DOC, and on March 27, Castaneda was transferred to the custody of Immigration
and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF).

Immediately upon his transfer, Castaneda brought his condition to the attention of the SDCF medical personnel, members of the Division of Immigration Health Services (DIHS). By this time, the lesion on his penis had become painful, growing in size, bleeding, and exuding discharge. Castaneda met with PHS physician’s assistant Lieutenant Anthony Walker, who recommended a urology consult and a biopsy
“ASAP,” noting both Castaneda’s history of genital warts and his family history of cancer (his mother died at age 39 of pancreatic cancer). That consultation with an outside urologist, John R. Wilkinson, M.D., did not occur until June 7, 2006. Dr. Wilkinson “agree[d] that” Castaneda’s symptoms “require[d] urgent urologic assessment of biopsy and definitive treatment,” citing the potential for “considerable morbidity from even benign lesions which are not promptly and appropriately treated.” Although Dr. Wilkinson’s notes indicate that he “offered to admit [Castaneda] for a urologic consultation and biopsy,” DIHS physicians indicated their “wish to pursue outpatient biopsy which would be more cost effective.” That biopsy, however, did not occur. Instead, Plaintiffs allege that DIHS officials deemed the biopsy, a standard diagnostic procedure to detect a life-threatening disease, to be an “elective outpatient procedure” and declined to approve it.

Castaneda’s symptoms grew worse and worse. On June 12, he filed a grievance report, asking for the surgery recommended by Dr. Wilkinson and stating that he was “in a considerable amount of pain and . . . in desperate need of medical attention.” On June 23, he reported to Lt. Walker that his lesion was emitting a foul odor, continued to leak pus, and had increased in size, pressing further on his penis and increasing his discomfort. He complained of increased swelling, bleeding from the foreskin, and difficulty in urination. On July 13, instead of scheduling a biopsy, ICE brought Castaneda to the emergency room at Scripps Mercy Chula Vista.
The emergency room physician noted the fungating lesion on Castaneda’s penis and referred Castaneda to urologist Daniel Hunting, M.D., who, following a brief examination, determined that the lesion was “probably condyloma,” or genital warts. Dr. Hunting referred Castaneda back to his “primary treating urologist” at DIHS. Four days later, Lt. Walker noted that the lesion continued to grow. On July 26, another physician’s assistant explained to Castaneda that “while a surgical procedure might be recommended long-term, that does not imply that the federal government is obligated to provide that surgery if the condition is not threatening to life, limb or eyesight.”

On August 22, Castaneda saw another urologist, Robert Masters, M.D. Dr. Masters concluded that Castaneda had genital warts and was in need of circumcision, which would both relieve the “ongoing medical side effects of the lesion including infection and bleeding” and provide a biopsy for further analysis. This treatment was again denied as “elective in nature.” The following month, Lt. Walker noticed “another condyloma type lesion [ ] forming and foul odor emitting from uncircumcised area with mushroomed wart.” On November 14, DIHS noted that Castaneda’s “symptoms have worsened. States he feels a constant pinching pain, especially at night. States he constantly has blood and discharge on his shorts . . . . Also complains of a swollen rectum which he
states makes bowel movements hard.” Castaneda was prescribed laxatives. The following day, Castaneda complained that the lesion was growing, that he could not stand and urinate because the urine “sprays everywhere,” and that the lesion continued to leak blood and pus, continually staining his sheets and underwear. DHIS responded by increasing Castaneda’s weekly allotment of boxer shorts. [!!] . . . .

Castaneda was sent to yet another urologist, Lawrence S. Greenberg, M.D, on December 14. Dr. Greenberg
described Castaneda’s penis as a “mess,” and stated that he required surgery. The ACLU continued to demand treatment, to no apparent avail. Forty-one days later, January 25, 2007, Castaneda was seen by Asghar Askari, M.D., who diagnosed a fungating penile lesion that was “most likely penile cancer” and, once again, ordered a biopsy. On February 5, rather than provide the biopsy prescribed by Doctors Wilkinson, Masters, Greenberg, and Askari, ICE instead released Castaneda, who then proceeded on his own to the emergency room of Harbor-UCLA Hospital in Los Angeles. He was scheduled for a biopsy on February 12, which confirmed that Castaneda was suffering from squamous cell carcinoma of the penis. On February 14, Castaneda’s penis was amputated, leaving only a two-centimeter stump.

The amputation did not occur in time to save Castaneda’s life. In addition to creating a 4.5 centimeter-deep tumor in his penis, the cancer had metastasized to his lymph nodes and throughout his body. Castaneda received chemotherapy throughout 2007, but the treatment was ultimately unsuccessful. Francisco Castaneda died February 16, 2008. He was thirty-six years old."

All I have to say is this: Wow.

McFarland v. Kempthorne (9th Cir. - Oct. 2, 2008)

You may well own two-plus acres of land in the middle of the "Big Prairie" in Glacier National Park (in Montana). And we have let you get to your property in the past by driving on Glacier Route 7.

But, at this point forward, if you want to get to your land -- at least during the winter -- you're going to have to walk.

And have fun with that.

M.V. v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)

We spent all day Monday in my "Law of Love" class talking about statutory rape. The typical offender, of course, is male. But just as obvious is the fact that there are numerous exceptions to this general rule.

The next day (yesterday), Justice Ikola graciously publishes this opinion, which involves an Orange County woman who was (1) arrested for consensual sexual intercourse with a 15-year old boy, (2) had her two-year old son taken away from her (and put into protective custody) based upon her arrest and incarceration; (3) spent four months in county jail as a result of the charge; (4) was promptly deported to Mexico; and (5) then reunification services terminated (and a hearing set on permanent termination of her parental rights) due to the fact that her incarceration and subsequent deportation precluded her from spending a lot of time with her two-year old boy (who remained in protective custoday in the United States).

The Court of Appeal grants the mother's current writ petition -- and, parenthetically, justice in Division Three here is again (relatively) speedy, with only three months or so between the order below and the published resolution -- on the ground that the trial court applied the wrong legal standard at the six-month review hearing. So that's a win. Nonetheless, things still look far from perfect for the mother, and the loss of her two-year old son a distinct possibility.

Anyway, another timely opinion. And another reminder that not only may "15 get you 20," but also that statutory rape charges are also brought against women, and that their consequences extend even beyond incarceration.

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?