Ladd v. Warner Bros. Entertainment (Cal. Ct. App. - May 25, 2010)

Two lessons.

First, if you're a filmmaker, studios sc**w you. Admittedly, I know nothing about the "industry," but the result of this case strikes me as entirely right. Here, Alan Ladd develops (and has "points") in Blade Runner, Body Heat, Night Shift, Tequila Sunrise, Outland, Chariots of Fire, and Police Academy 1-6. In short, some good movies, some crappy movies, and some downright bad movies, but lots of movies people have heard of. Warner Brothers distributes these films and numerous others, and sells a huge block of films -- including Ladd's -- to cable companies for a set fee in the hundreds of millions of dollars.

Some of the movies in that block -- including Ladd's -- were popular. Others are total "filler" and/or complete unknowns, including many films owned entirely by Warner Brothers. Warner Brothers internally labels films As, Bs and Cs. Say you get $900 million for selling 900 films, some of which are well-known and hence valuable (As) and some of which are otherwise (Cs). How should the $900 million be allocated for purpose of paying people, like Ladd, with points? On a straight-line method, with each film worth $1 million? Or by actual value; say, with As worth three times as much as Cs?

Needless to say, Warner Brothers uses the straight-line method. Ladd sues. And wins at trial.

Maybe Warner Brothers really did use this method for "convenience". But something tells me that the true motivation may be otherwise. And I have a feeling that the jury may have felt the same way.

So that's one lesson. Don't produce movies.

Second, a lesson for us lawyers. Be careful when you go for broke.

After Warner Brothers loses, its lawyers file a motion for new trial and a JNOV. But then they deliberately "go for broke" by withdrawing the new trial motion. Leaving the trial judge with an option only of entering a judgment in its favor or upholding the verdict. No new trial.

Gutsy. But wrong. At the hearing, the trial judge recognizes that Warner Brothers makes some good arguments about the jury's verdict and the evidence at trial. But states that while these deficiencies might well justify a new trial, Warner Brothers withdrew that motion, and there's technically enough evidence to support the verdict, so denies the JNOV motion and upholds the verdict.

And the Court of Appeal affirms.

Oops.

Chino Commercial Bank v. Peters (Cal. Ct. App. - May 25, 2010)

Tell me what you'd do in this hypothetical.

In June 2010, a new client (from Hong Kong) contacts you and wants you to do some work for them. They're being acquired. Or sued. Or thinking about litigating. Whatever. Something fairly big, and that will surely involve a lot of attorney's fees. They propose to give you a $500,000 retainer against your anticipated fees, which you can draw down upon monthly as you send your bills. Sounds good to you. You sign them up.

So on July 1, 2010, the client sends you a check for $500,000, and you deposit it in your trust account. Ca-ching! On July 8th, you confirm with your bank that the check has cleared. On July 10th, the client tells you that the merger may be in danger, or they may be rethinking their decision to sue, that the anticipated legal problem may be clearing up on its own, etc. Again, whatever. On July 12th, they tell you, yep, the problem's been solved without you. Thanks for your work, but we don't have need for your services any longer. You're of course free to bill us for whatever work you've performed over the past several weeks -- though please don't make this figure too big -- and deduct it from the retainer. But we need what's left of the $500,000 back.

Seems fair, right? Especially since they're willing to pay your accrued fees, for which you can show absolutely no actual written work product. So an easy ten or twenty grand for talking on the phone, sending some e-mails, and maybe doing some research.

Predictably, the client wants the remaining amount in the trust account back quickly, because they'll need it for other things, so they ask you to wire the funds immediately. After all, you've been fired, and it's their money.

You nonetheless diddle around for a while, getting your bill together, doing other work, etc. On July 19th, the client sends you another e-mail. It's been a week. Where's our money? We need it.

So you check with the bank on July 20th. Yep, the $500,000 is still in your trust account. The client wants the money now. Do you wire them the remaining $480,000?

Presumably your answer is "Yes". Indeed, you might legitimately fear being sued if you delayed even longer, since we're talking about a fair piece of change (and imputed interest) that you have no reason to hold onto any longer.

So do you wire the client the $480,000? Or hold onto it even longer after you've indisputably been fired?

That's the hypothetical I came up with after I read this case. Which is not an attorney trust fund case, but nonetheless got me thinking about how the facts therein might be effectively employed even against careful, non-greedy people. Including lawyers trying to do the totally right thing.

Sure, my scheme requires a little more work than sending mass unsolicited e-mails about an allegedly deceased relative and looking for your "help". But not that much more.

And I bet I'd get more than one attorney to send me the $480,000. Several more. Indeed, perhaps even some readers of the California Appellate Report.

Maybe I should look into accommodations in Nigeria.

Lunbery v. Hornbeak (9th Cir. - May 25, 2010)

Her husband was killed by a single blow to the head. She had no real alibi. She confessed to the murder.

Surely she's guilty, right? Especially after the jury so finds. Even more so after the California appellate courts deny her appeal. Obvious, right?

Think again.

There's some part of me that thought, as I read the case, that she might be guilty. But other parts of the opinion made me think, nope, she's probably factually innocent. Plus it's darn hard for me to say she's guilty beyond a reasonable doubt. Though, of course, the jury so found.

Take a look and see what you think. Yep, she confessed. But this may well be someone who confessed to a murder she didn't commit.

People v. Ligons (Cal. Ct. App. - May 13, 2010)

I know you want to get out of your jail cell. It's no fun. Never is. I get it.

But it's not going to help for you to try to forcefully push your way out of your jail cell. The officers you're pushing aren't going to like it. The judge isn't going to like it. Neither is the jury. The result potentially being that you have four more years in which to complain about your surroundings.

You might want to have thought about that same principle, by the way, when you refused to leave your home after it was foreclosed upon. Which is what put you in jail to begin with.

Chant your mantra. Mellow. Visualize world peace. Anything other than what you did.

P.S. - It really takes "20-30 minutes" of constant fighting with an inmate in a jail cell before other officers at the jail respond, even after you repeatedly call for "immediate assistance" in a fight?! Wow.

In Re Amber M. (Cal. Ct. App. - May 24, 2010)

Here's a story you hear every day.

It's a dependency case. Mother and Father are in a long-term relationship (six years) and have two kids together -- a one-year old and a two-year old -- but never marry. Father's in the Navy, and has been there for 13 years. He's deployed to Iraq in 2009.

Before he's deployed, there's domestic violence. One parent says the relationship's over, and the blows commence. Then, a month later, in an argument over moving expenses, one parent pours coffee over the head of the other. In front of the two-year old, no less. At which point the parent gets arrested for spousal abuse, and the victim gets a restraining order, etc.

The victim, of course, is Father.

Anthoine v. North Central Counties Consortium (9th Cir. - May 24, 2010)

In this retaliation case, the Ninth Circuit says: "During the seventeen years Anthoine worked at NCCC, he was hardly a model employee." There's an understatement.

For a general tenor of Anthoine's work attitude, I'll merely relay one fact: When his supervisor gave him a verbal warning in 2005, Anthoine submitted a 207-page (!) document in response. No wonder the supervisor responded (in an e-mail to her supervisor): "Here's another whirl on Mr. Toad's wild ride." And no wonder Anthoine was (eventually) terminated.

But the Ninth Circuit nonetheless reverses the grant of summary judgment. Let's just hope that the defendants prevail at trial. Otherwise I'm not going to have a great amount of faith in the jury.

People v. Roberts (Cal. Ct. App. - May 21, 2010)

Google better watch out. There are some things you can only learn in the pages of the California Appellate Reporter.

Because I read a lot of cases, I'm fairly hip on modern lingo. (I use the terms "hip" and "lingo" to prove that I'm in fact totally not hip on modern lingo.) So I know, for example, what it means when someone asks if you want to "lay him down". Or at least when a member of a gang says that. Not that you couldn't figure that one out from context, of course. And "thing-thing" and "hizzy". Those are guns. People use those words just in case their cell phones are intercepted or they're subject to a tap. Not tough to figure out. It's like a story my father used to tell about a criminal defendant caught on a wiretap ordering "two and a half bunnies." Those are kilos. And not of bunnies.

But until I read this case, I had no idea what a "credible head" was. And the dudes are using it in their communications repeatedly. Like in the following wiretap:

"[A] You got, you got any plans, any ideas about, you know, some Sams? [B] What's crackin' with them? [A] Some credible heads, you know? You know what I mean? [B] Yeah. [A] I'm just fuckin' with credible heads, you know what I mean? [B] Yeah."

No, I do not "know what you mean". What the heck are you talking about?! "Credible heads"?

"You know what I mean? But credible heads, man. That's what I'm talkin' about credible heads. Everybody else, I'm not, I'm not doin' it. It's all good if it goes down, but I want heads. You know [what] I mean?"

Okay, I sort of know what you mean now. At least the "heads" part? But "credible"? What?!

So I google the term. Useless. Comes up with nothing at all helpful. Urban Dictionary? A blank.

Only in the published opinion itself do I learn what this term means. "'Credible head' is a reference to someone who has significant status within the set whose demise would impact and demoralize the set if taken out."

Makes sense. I get it.

P.S. - While we're on the subject of Google, I think that today may be the least productive Friday of the entire year. Not because it's a national holiday or anything, which (to my knowledge) it's not. But rather because Google's celebrating the 30th anniversary of Pac-Man by not only doing it's usual logo thing, but also making the Pac-Man-shaped logo work. For example, just because I was inquisitive, I hit the "Insert Coin" button. Which started the game. And although I have played Pac-Man maybe four times in my life (as a child), sure enough, I played it. Ten minutes of my life I'll never get back. Multiply that by 50 million other workers in the U.S. today and you'll know why that guy never got back to your voicemail today.

Arthur v. DMV (Cal. Ct. App. - May 21, 2010)

The Arizona anti-immigration law has gotten a lot of media play. One of the themes of the opponents of the law is that it's a bad idea to allow the government to stop people without suspicion to demand: "Papers, please." Something that reminds us of some other governments throughout history that we'd rather not emulate.

But as I read this case, I was reminded that we do precisely that already. With judicial approval, no less. At sobriety checkpoints.

One could, of course, maintain that both types of stops are perfectly fine. Or one could insist that neither are okay. Those are surely consistent positions.

It's get a little tougher for those who'd maintain that immigration stops aren't okay but sobriety checkpoints are. You could argue, I'm sure, that drunk driving causes greater social harm than illegal immigration, but it seems to me that a legislature could reasonably disagree. There is, of course, the separate problem of racial targeting in immigration stops that doesn't arise in drunk driving checkpoints, but that wouldn't apply to a law that required the police to check everyone for immigration violations, as I understand at least parts of the Arizona law dictate.

Or one could argue that drunk driving stops are less burdensome than sobriety checkpoints, but I'm not sure that's empirically true. The checkpoint at issue here, for example, was on Mission Bay Drive in San Diego. Coincidentally enough, my family and I went through one of those one night at the exact same spot. It took us an hour and a half to get through the checkpoint. With multiple exhausted kids sitting in the minivan begging to get home. Pretty big burden.

None of this, of course, says that either checkpoint or immigration stops should be permissible or impermissible. Both topics entail an extensive debate. I was just reminded as I read this case of the reality that random, suspicionless stops are routinely approved in some settings. So thought I'd share.

Lockton v. O'Rourke (Cal. Ct. App. - May 20, 2010)

You can learn four lessons from this opinion:

(1) Be careful what you say in a verified complaint. It can come back to bite you. Even if you figure out later that you should have said something else and amend the complaint.

(2) If you're an attorney or law firm, make sure your fee agreement has a clause that says that the prevailing party gets its attorney's fees, including the value of any time spent by the law firm and its lawyers defending itself. That'll get you fees notwithstanding the typical rule that lawyers can't get fees if they represent themselves.

(3) When you're sued for malpractice, and win in an unpublished decision, get it published. And:

(4) Don't mess with the Mighty Quinn.

Rodriguez v. Maricopa County Comm. College (9th Cir. - May 20, 2010)

If you're, say, the Chief Judge of the Ninth Circuit, and are very dubious about speech restrictions in the workplace in the name of preventing sexual or racial harassment, you couldn't make up a better case in which to articulate your vision than this one. And if you wanted to really dream the dream, you'd not only have Judge Ikuta on the panel, but you'd have a Supreme Court justice on your panel as well.

Wait. It's not a dream. It's reality.

How could it get any better? Well, I guess in a perfect world the case could totally set up a citation to one of your former law clerks. Saying something like: "We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek. See Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1849-55 (1992)."

But come on. That'd be too perfect. Could never happen.

POSTSCRIPT - Here'd be absolute Nirvana: If the cited law clerk also clerked for the Justice in question, as did the third member of the panel, who also clerked for the Chief Judge on the panel. But clearly we're talking about something in the realm of fantasy. (I'll not take credit for this realization. But I love it.)

Grove v. Wells Fargo (9th Cir. - May 20, 2010)

Two things.

First, how could Judge Percy Anderson (in the C.D. Cal.) get this one wrong? Prevailing parties can recover costs. They can also recover (in an appropriate case) attorney's fees. And that latter item includes otherwise non-recoverable costs; e.g., copying, travel, etc.

That's long been the law. And is a pretty easy rule. This isn't Medicare: there's no "donut hole" in cost awards. Rightly so.

Second, as the above probably reflects, I don't agree with Judge Rymer, who's skeptical of circuit precedent and who's looking for ways to create a donut hole; e.g., by arguing that "every statute is different" and that some may well reflect Congressional intent to award fees and yet deny costs.

I do agree with her, however, that non-recoverable costs are recoverable as fees "only when it is the prevailing practice in a given community for lawyers to bill those costs separately from their hourly rates." But I'd add to that principle a very practical, real-world presumption: these costs are virtually always billed separately. So, unlike Judge Rymer, I wouldn't place the burden on the moving party to satisfy this hypertechnical requirement; rather, I'd place the burden on the opposing party to present evidence that the standard practice in an area is a flat- or all-inclusive fee. The moving party would still have the burden of proof, but let's get real -- and have our decision reflect reality -- and not look for procedural ways to unjustly bounce meritorious cost and fee applications. Costs are routinely billed separately from fees, and our doctrinal burdens should reflect that fact.

Edwards v. Wells Fargo (9th Cir. - May 19, 2010)

Some authors of appellate opinions like to try make things sound easy -- and crystal clear -- even though they're anything but.

That's not my preference. When things are tough, and when reasonable minds can differ, I like it when an opinion addresses both sides and seriously confronts (and admits) the complexity of the issues. Sometimes an issue is close, and when it is, I see no harm in saying so.

So I smiled when, in this morning's opinion, Judge Kleinfeld takes that approach a step further. With a neat little line at the end of the opinion that says: "Without much confidence, we conclude . . . ."

The exact opposite of pretending that everything's totally easy.

People v. Vang (Cal. Ct. App. - May 17, 2010)

Rarely do I come across a new drug. Sure, every day I read cases about cocaine, marijuana, methamphetamine, heroin, esctasy, etc. Then there are the occasional cases about less commonly used drugs: LSD, GHB, psilocybin, oxycodone and fentanyl, etc. Then there's the rare case about the truly unusual drugs: ibogaine, peyote, STP and the like.

Read about 'em. Know 'em. That's a side benefit of reading published appellate decisions.

But until I read this case, I had never before heard mention -- much less seen anyone busted -- for possession of thebaine.

Which apparently is sort of like morphine and codeine, but a stimulant rather than a depressant.

Learn something new every day.

People v. Otubuah (Cal. Ct. App. - May 6, 2010)

The Court of Appeal publishes this originally-unpublished opinion. Which is fine.

But let's be careful when we do so. Page three, second paragraph: "At sentencing, count 1 was set as the principle count."

I think you mean something slightly different.

Laclette v. Galindo (Cal. Ct. App. - May 17, 2010)

Here's a good reason why, after settling a case on behalf of a client, you should make sure to send your client a letter that expressly says that the representation is over and that you'll do no further work on their behalf.

Otherwise, even if you do absolutely nothing during the next several years . . . .

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - May 6, 2010)

I didn't catch it when the first opinion came out. It seemed possible, after all.

But I like the amendment to the opinion. Which states, in its entirety:

"On page 5, line five, delete the words 'hundreds of,' and replace them with the word 'multiple.' As modified, the sentence beginning at the end of line four reads: 'The First American team defended multiple depositions and reviewed hundreds of thousands of pages of documents.'"

Yes, "hundreds" of depositions would indeed be a lot. Even in state court.

People v. Contreras (Cal. Ct. App. - May 10, 2010)

When they're trying to keep you locked up as a "mentally disordered offender," here are some things you definitely do not want the staff psychologist to say about you:

"Mohapatra testified Contreras's schizophrenia manifested in his refusal to eat because he believed he was not going to be able to swallow, his thoughts that the hospital staff was going to break his penis, and his thoughts that his arms and leg were going to fall off because of his tattoos. In addition, Contreras talked about being lobotomized with an ice pick and hearing echoes through the hole in his head. He complained about hearing voices that commanded him to hurt himself or others and of seeing spirits or ghosts. During several instances at the hospital, Contreras was seen talking to unseen others and laughing inappropriately.

Some of Contreras's inappropriate behaviors that contributed to Mohapatra's diagnosis were laughter when someone talked about a family member being killed, pronouncing 'guns can solve problems that words cannot,' and threatening his roommate. He threatened a fellow patient saying he had friends on the outside that could 'get' the fellow patient. He also joined in an assault on a fellow patient who was being beaten up by several other patients. When confronted, he said he did it for fun and for the exercise it provided."

Yeah. They're not going to let you out. Surprise, surprise.

FTC v. Neovi (9th Cir. - May 14, 2010)

Scams are a lot easier to pull when ostensibly legitimate companies are totally willing to help out.

Fortunately, after six years of continuous operations, and over 150,000 bad checks that totaled over four hundred million dollars, the FTC finally stepped in.

Whew. Caught it early.

Valladolid v. Pacific Operations Offshore (9th Cir. - May 13, 2010)

Roustabout.

I didn't have a very good sense of what that word means. But it definitely had a slightly negative connotation to me. If I were to use it in a sentence, it'd have been "That damn roustabout!"

A floater. A transient. A rabble-rouser (if I had to use r-words). Something like that.

Maybe I got this sense from a vague cultural memory of the Elvis Presley film, where he plays a leather-jacketed biker who's fired from a singing gig after he gets into a fight with some college toughs. Or maybe it's just how I've heard the word used. Pejoratively.

But, as I learned from this opinion earlier today, I was off. At least a bit.

The term is often sometimes used to describe traveling circus workers. People who are hardly held in high esteem. So maybe that's where I got my vague understanding.

But the term is also a legitimate occupational classification for certain workers on oil rigs. Which is why Judge Selna (sitting by designation) uses it in this opinion. Since that's exactly what Juan Valladolid was. At least until getting crushed to death by a forklift.

Now, in my defense, my understanding wasn't completely off. The term is generally used to describe unskilled labor, whether in a circus or on an oil rig. Juan's duties as a roustabout, for example, "primarily consisted of cleaning and maintenance duties: picking up litter, emptying trash cans, washing decks, painting, fixing equipment, and helping load and unload the platform crane." So, again, not work held in high esteem.

Moreover, the Wall Street Journal earlier this year listed being a roustabout as . . . drum roll please . . . the absolute worst job you can possibly have. Think shoveling elephant poop. Or, as Juan discovered, getting crushed to death. Yikes.

What you're hoping as a roustabout -- at least on an oil rig -- is that you'll move up the corporate ladder. What's next? Roughneck. Them oil workers got all the cool names.

So let's hear it for the roustabouts of this world.

Emery v. Clark (9th Cir. - May 13, 2010)

I think the California Supreme Court may well say "No." Indeed, perhaps should.

The Ninth Circuit's certification request here makes facial sense. California law on the issue is indeed unclear. Reasonable minds might differ. Comity, and modesty, thus counsel in favor of certifying the questions.

But there's a minor twist. The California Supreme Court has already granted review of a case (Albillar) that raises very similar questions to those that the Ninth Circuit certifies. The panel argues that the questions are slightly different (and presented in a unique way) and certification thus appropriate notwithstanding the pending case. Maybe. But I could easily see the California Supreme Court declining the certification on the theory that its answers in Albillar are (or will be) "close enough". So that's one way the Ninth Circuit might hear a "No" from its brethren.

But there's also a major twist, and one that I think raises policy (not merely practical) issues. The certified question here arises in a habeas case. That's different. Way different. Federal courts typically certify state law issues when they're presented on direct appeal and in settings in which the state courts have had no opportunity to opine on the particular issue. But that's not at all true in habeas cases, in which the matter began in the state court and in which the state judiciary has already expressed its opinion; namely in affirming the conviction. Moreover, since we require habeas claims to be exhausted, you already have a state court decision on the merits. Further, since we require complete exhaustion, we also have -- as here -- a state supreme court that has already refused to answer the certified questions when it decided to deny review when the case was on direct appeal.

It seems to me that the comity and other concerns that motivate certification might be very, very different in such a case than in the usual case in which the state courts have never had jurisdiction over the case. Moreover, I could imagine at least colorable arguments that federal courts shouldn't certify such cases. After all, if the state's highest court has already denied review, having found the issues unworthy of its time, why should they be again bothered. It might even be viewed as anti-comity for a federal court to essentially say: "Hey, you thought this case wasn't worthy of your time, but we disagree, and want you to hear it."

Moreover, it seems to me that there may be a real downside to giving the state courts two shots at answering a question -- the first on direct appeal and the second on habeas. Practically, when a federal court certifies a question, that's a pretty good indication that the federal court may be thinking about granting relief (e.g., that reasonable minds on the panel might disagree). Were a federal court to certify such a case, it's basically telling the state court: "You decided X, and affirmed the conviction, but we're thinking about reversing you and granting habeas. Do you want to revisit X, or decide Y, to avoid a reversal?" That seems a bit unseemly to me. Especially when the state court might have an understandable interest in the finality of its result and thus have an incentive to answer the certified question in a way that will affirm the validity of its own prior judgment.

You don't have these issues arise in the usual certification cases, which is why I'm generally in favor of that process. But in habeas cases, I don't know. This seems different. In a way that may require a bit more examination. Both from the panel as well as the California Supremes.

So it's an interesting case. As well as an interesting topic: Certification in habeas cases. An issue that I readily concede I hadn't at all thought about before today's opinion.

Ron Burns Const. Co. v. Moore (Cal. Ct. App. - May 11, 2010)

How many times have you relied on the promise of an opposing counsel; in particular, for an extension of time?

Plaintiff did so here, agreeing with defendant (through counsel) to extend the time to file a motion for attorney's fees on appeal while the parties tried to resolve the matter informally. Sure, there's a rule that says that you have to file a stipulation to that effect, but you can trust the promise of your brothers and sisters in the Bar, right?

Wrong.

The parties can't agree, plaintiff files a motion for fees, and the defendant objects on timeliness grounds. Defendant's lawyer doesn't deny granting the extension, but argues that since it wasn't filed, it doesn't matter. The trial court agrees.

The Court of Appeal reverses. That's a legitimate basis for a CCP 473 motion. "Excusable neglect" includes relying on the promise of the other side's lawyer. At least here.

Good to know. Plus, on the merits, I agree.

Still, let me give you this advice. File the stipulation anyway. It's lots easier than going through CCP 473 motions. Lots.

People v. Douangpayna (Cal. Ct. App. - May 11, 2010)

I'd have done this one differently.

A guy (Bansa Douangpayna) hits a guy over the head with a beer bottle in a bar fight. That's cool in the movies, but in the real world, we call that "assault with a deadly weapon." Defendant testifies at trial, but he's got two felony priors, so we can impeach him with those. Fair enough. So after he testifies, the prosecutor asks the defendant: "You were convicted in 2003 of a felony involving moral turpitude, right?" (and again in 2005), and the defendant responds: "Yes."

All this is good, and exactly as it should be. We don't allow the details of the particular priors because that would be unduly prejudicial. All we want to let the jury know is that the defendant has previously been convicted and that our judgment is that people with those priors may tend to perjure themselves as well -- or that a jury could at least reasonably take that into account. That's exactly what happens. So far so good.

But after they retire to deliberate, the juror sends a note that asks for a definition of "moral turpitude". Fair enough. The prosecutor used a term and the jury didn't know what it meant. That's fine too. So the judge looks up a case that defines the term, and tells the jury (over the defendant's objection): "The term 'moral turpitude' refers to a crime that reflects a readiness to do evil."

Hold up. I don't dispute that's what the case says. 'Cause it does.

But just because something's true doesn't mean you tell it to the jury. Some things are more prejudicial than helpful. And saying that the defendant is someone who has "a readiness to do evil" -- well, that's pretty darn prejudicial. Particularly in a case about a bar fight.

Were I the trial court, I'd have done the following. Rather than respond to the question, I'd have told the jury: "I appreciate your request. However, you need not speculate on the nature of the defendant's criminal convictions, or on what 'moral turpitude' entails. You need only consider that the defendant has previously been convicted of a felony, and, as I instructed you, that 'In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony [and] among the factors you may consider are: . . . . Has the witness been convicted of a felony?.' I remind you that, as I instructed you, 'If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness' testimony. The fact of a conviction does not necessarily destroy or impair a witness' credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.'" In my mind, that's all that need -- or should -- be said.

Similarly, if I were on the Court of Appeal, I wouldn't have done what Justice Robie did here, and conclude that there was no error. Rather, I'd have said precisely what I said above, and then affirmed the conviction on the ground of harmless error, since while calling the defendant "evil" is pretty bad, given the testimony at trial, I'm pretty sure he'd be convicted anyway. But what I don't want is an opinion that might encourage trial courts to answer similar questions the same way in the future; or, worse, give this definition during the instructions. And yet I fear that this opinion will accomplish precisely those effects.

So, as I said, I'd have done this a different way.

People v. Branch (Cal. Ct. App. - May 5, 2010)

You've been arrested for pimping a 15-year old. This is not going to be good for you.

But you know how you can make it worse? Call your mother from jail and say, on a recorded line: "“I don't give a f**k how much time they give me, when I get up out of here, something happening to that b***h. Watch. As soon as I get up out of here."

Oh yeah. That's going to play well.

Think about that for the next 10 years and 8 months.

Next time, make sure to read the huge signs in jail that say that your conversations can be monitored and recorded.

They're not joking.

People v. Lam (Cal. Ct. App. - May 10, 2010)

(1) Don't gamble more than you can easily afford to lose. E.g., $20,000.

(2) If you forget (1), do not steal the $20,000 from your wife to pay off your losses.

(3) If you forget (1) and (2), and drunk and despondent about your plight, the solution is not to take off your necktie and strangle your wife. This will not help. Finally:

(4) Don't bury bodies in your backyard.

Even fleeing overseas won't help. You'll get caught and do serious time.

Remember all this the next time you feel the joy of winning a pot on the river. Yes, it's fun. But not that much fun.

Broney v. Calif. Comm. on Teacher Credentialing (Cal. Ct. App. - May 6, 2010)

Does three DUI's justify revoking a teacher's license?

What if the teacher is, by all accounts, really, really good? And the DUIs are in 1987, 1997 and 2001? And are all on the weekend, with no evidence -- whatsoever -- that she ever, ever drinks on the job or is hungover or the like.

I'm conflicted. On the one hand, multiple DUIs are incredibly bad. It shows a real lack of judgment. Huge. Especially when at your last DUI you're blowing a .25.

On the other hand, you've been punished for that. And by all accounts, this hasn't affected your work in the slightest. Plus it seems like you've learned from all of this, and at least say all of the right things -- about how you'll never do this again, etc. (Of course, I hope you'd have said the same things after the first, or at least the second, time as well. But maybe this time you really, really mean it.)

So I'm torn. As are other people, apparently, as the lower tribunals go this way and that. Some saying it's a permissible basis for revoking a credential and some saying it's not.

In the end, the Court of Appeal holds that you can discipline the teacher. Even for totally off-campus DUIs.

There's a part of me that's okay with that holding for totally and admittedly illegitimate reasons; namely, that the actual discipline imposed here is not all that bad, and may be in everyone's best interest. They didn't actually revoke her credentials, but rather suspended them for 60 days, a suspension stayed subject to her successful completion of a three-year probationary period in which she seeks therapy, etc. Which I have no doubt that she can successfully do, and would probably be beneficial. Is it a hassle? Sure. But probably less of a hassle than a fourth DUI.

So the teacher here loses the appeal. Which, ironically, results in a published decision that reveals her name (Shirley Broney) and convictions even though heretofore only two people at the school -- a fellow teacher and the principal -- knew about 'em. But now they're out there for everyone.

Let's hope that Ms. Broney gets it together. She sounds like a very good teacher. Just one who needs to keep it a little more under control when she goes out with her friends on the weekend.

Cuellar v. Joyce (9th Cir. - May 7, 2010)

"After Richard Joyce abducted his and Leyda Cuellar’s child from Panama, by way of Australia, Cuellar tracked him down in America and petitioned for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. We ordered the child returned, and Cuellar now petitions for an award of attorneys’ fees and other costs incurred on appeal [as expressly provided by the Hague convention]. . . . As we noted in our opinion, this is not a difficult case; it 'falls squarely within the heartland of the Hague Convention.' The only reason the case took as long as it did, and consumed so many valuable resources, was Joyce’s dogged refusal to give up custody of the child as required by the Hague Convention. Joyce’s litigation tactics were largely intended to 'manipulate judicial process for purpose of delay.' That delay proved expensive, both for Joyce and for the law firm that represented Cuellar. Having caused that expense, Joyce may not turn it to his own advantage to avoid the mandatory fee-shifting provision of section 11607(b)(3). If Joyce didn’t want to bear the cost of delay, he shouldn’t have caused it. Better yet, he shouldn’t have abducted the child in the first place."

Word.

U.S. v. Mousavi (9th Cir. - May 5, 2010)

Don't do business with Iran. Or, if you do, definitely don't do it for a piddly $50,000.

It's not worth it. At all.

Gonzalez v. Holder (9th Cir. - Feb. 8, 2010)

I guess this opinion is worth publishing.

It's only two paragraphs. The first of which says that the petitioner, Nahum Gonzalez, had filed a petition asking that he not be deported, presumably because he didn't want to be sent away from his U.S. citizen wife and child. And then noting that, while the appeal was pending, Gonzalez died.

The second paragraph then says exactly what you'd expect it to say. That since the only person the deportation would affect is Gonzalez (since everyone else is already a citizen), who's currently dead, the appeal is moot.

Yep. That's right.

But thanks for the published confirmation.

People v. Traugott (Cal. Ct. App. - May 6, 2010)

The defendant's not there. The defendant's lawyer isn't there. Indeed, one of the jurors isn't even there, having bailed for an interview. All you have are 11 jurors and stand-in lawyers.

Do I really need to tell you that you can't take a verdict in that setting? Really?!

Apparently so.

This is what happens when a court strongarms someone into waiving their rights in order to "expedite" things. A reversal. With the associated costs of an appeal and a retrial.

You gotta be more careful. Even in Riverside.

People v. Delgado (Cal. Ct. App. - April 29, 2010)

I'm certain that Gloria Delgado was a pain in the hospital's butt. Her son was paralyzed and at St. John's hospital on ventilator. She didn't like the care her son was given. She wanted him moved to a different hospital.

She occasionally got overly excited. She sometimes yelled. She once or twice used very poorly chosen words. All that's 100% true.

But four years in prison for that? Really?!

People v. Norton (Cal. Ct. App. - May 5, 2010)

I think this is right.

M.D. calls the police and says her boyfriend is vandalizing her car. The police arrive five minutes later and knock on M.D.'s door, at which point (after five or six knocks) the boyfriend opens the door and says to the police "What the f**k do you want?" Hmmm.

The police call into the apartment for M.D., but she doesn't answer. The boyfriend, who's increasingly agitated, says she's asleep. But that seems totally fishy to me. She just called the cops five minutes ago. About her boyfriend vandalizing her car, and now the boyfriend is in her apartment. Angry. Somehow, I don't think she's asleep. And she's not answering the police.

So the police enter the apartment. Admittedly without consent or a warrant. And find M.D. in a rear bedroom, crouching behind the bed where her young children are sleeping, with bruises all over her legs and clearly frightened of her boyfriend.

Which, I'm sure, is exactly what the police expected. Though probably also feared that she might be dead, so were undoubtedly happy she wasn't.

The boyfriend -- Jeff Norton -- alleges that the warrantless search was impermissible. But I agree with Justice Jenkins that it's okay under the "emergency aid" exception. Mind you, I am of the view that courts often expand this exception way beyond its proper limits. But not here. Here, it's reasonable to assume that there's something fishy going on, and that M.D. might well be in trouble. So the police can legitimately check. Even without a warrant.

So I'm down with this one. Seems right to me.

Franklin Mint v. Manatt Phelps & Phillips (Cal. Ct. App. - May 3, 2010)

It's not every day that the California Court of Appeal reverses the dismissal of a malicious prosecution action against an attorney. It's even less common when the reversal involves a claim of malicious prosecution against a big California law firm; here, Manatt Phelps. It's less common still for the Court of Appeal to hold that no reasonable attorney could have found tenable two of the claims brought by that large law firm and its high profile litigator, Mark Lee.

Yet that's precisely what the California Court of Appeal holds here.

Justice Mosk dissents. Still. Not something you want on your resume if you're Manatt and/or Lee.

U.S. v. Struckman (9th Cir. - May 4, 2010)

There's a fine line between reasonable suspicion and probable cause, and when you throw in concepts like curtilege and exigent circumstances, things get even more complicated.

So today the Ninth Circuit reverses a criminal conviction on Fourth Amendment grounds. But it's an opinion that the Supreme Court might well take up and reverse. Notwithstanding the fact that it's fact-specific and without dissent.

The central problem is that while Judge Berzon does a good job of explaining why a reversal is required, the police here did precisely what a lot of justices on the Court (and others) would want them to do. A neighbor dials 911 to report that someone just jumped over the fence of a house and that the owners are at work. So she (and the police) are thinking: Burglary. So they go to the house and, yep, there's exactly the dude the witness describes. So they confront the guy (with guns drawn) by entering the back yard, at which point they find a weapon. Busting the guy for being a felon in possession and getting a 17 year sentence.

Now, it turns out that the guy did indeed live there. And Judge Berzon's undoubtedly right that there were plenty of things the police could have done before busting the guy; e.g., asked him or the witness some questions, etc. But I doubt the Supreme Court's going to see it the same way, or be inclined to "require police officers to speculate in the heat of the moment about what hypothetical alternatives a federal court might prefer." (My language, but along the lines of what I think the Court might say.)

So I totally understand where the panel's coming from, since I too have occasionally jumped the fence of my house and tried to get inside. And I'd indeed have been bummed had one of my neighbors seen me and called the police and thus subject me to an arrest at gunpoint.

But I think the Court would say (1) that's pretty rare, (2) especially compared to the number of times the arrested person would turn out to be an actual burglar, and (3) worth it.

So we'll see where this one goes. And, regardless, don't jump over your own fence if you're high on methamphetamine and a felon in possession. Bad idea.

Plata v. Schwarzenegger (9th Cir. - April 30, 2010)

Ah, prison. The freedom. The quality colleagues. The tasty food. The wonderful medical care.

Let's just take a brief look at some of the findings mentioned by the Ninth Circuit, in an opinion that affirms putting the California Department of Corrections and Rehabilitation into receivership with respect to medical care for California inmates:

"This class action was brought by California prisoners to challenge deficiencies in prison medical care that allegedly violated the Eighth Amendment and the Americans with Disabilities Act. . . . In January 2002, after almost three years of informal negotiations . . . . the State agreed to implement specific remedial procedures to ensure the provision of constitutionally adequate medical care in prisons statewide. . . . Three years after entering into the consent decree, not a single prison had successfully implemented the remedial procedures, despite the fact that a 'significant number' of inmates had died as a direct result of substandard medical care -- a fact

the State openly acknowledges. . . . Numerous experts testified as to the 'incompetence and indifference' of prison physicians and medical staff and described an 'abysmal' medical delivery system where 'medical care too often sinks below gross negligence to outright cruelty.' Despite such damning revelations, the State let the reports and testimony of those experts go, in the words of the court, 'essentially uncontested.'"

Just a quick reference to the last clause of the preamble to the Swiss Constitution: "[T]he strength of a people is measured by the well-being of it's weakest members."

Something to think about.

U.S. v. Stever (9th Cir. - May 4, 2010)

It's rare to see an opinion that reverses a criminal conviction based upon the failure of the U.S. to provide discovery. But it happens.

I must say that, in this case, I thank that Stever is probably guilty, and will be found as much even after the discovery is produced. But, like the panel, I'm not sure about that. Yeah, it looks like the big marijuana grow on his property had something to do with him. But it's at least worth considering that it was the product of someone else. And since the district court's ruling really did prevent Stever from arguing that it was someone else, that seems like reversible error to me.

Admittedly, I think that there may be some "strategery" going on here, and have a weak sense (though may be totally making this up) that the defense requested the discovery at issue not only because it might use it at trial, but also because producing it would be a big hassle for the government and thus incline them to plea the case out. But that's the nature of the beast.

Sometimes strategery works. As it does here.

Khatib v. County of Orange (9th Cir. - May 5, 2010)

The federal Religious Land Use and Institutionalized Persons Act basically says that the state can't burden religious practices for people in an "institution" -- e.g., a prison. Souhair Khatib is a Muslim woman who was placed in a holding cell adjacent to the Orange County courthouse and ordered to remove her hijab (her headscarf). Does that violate the statute?

It first depends on whether the holding cell was an "institution" under the statute. The district court held it's not, and this morning, the Ninth Circuit affirms.

It's a meaningful case on its own right, but made even more so by Chief Judge Kozinski's dissent. Which is classic Kozinski. Virtually every paragraph includes a tongue-in-cheek reference. I'll share just some of them, with the caveat that they're better in context:

(1) The first paragraph: "Freud is reported to have said that sometimes a cigar is justa cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions—defined to include both correctional facilities (such as prisons and jails) and pretrial

detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me. Everything below is unnecessary and you could easily skip it."

(2) The self-reference: "[T]he [majority] opinion overlooks the fact that the statute here has

its own rules of construction, codified at 42 U.S.C. § 2000cc-3. Among those rules is the following: “This chapter [meaning RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. at § 2000cc-3(g) (emphasis added). Not every law that Congress passes has such a handy guide to interpretation; in fact, very few do. It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as “broad protection” and “the maximum extent permitted,” we need to pay close attention and do as Congress commands. The Supreme Court routinely relies on such express instructions. [Cited Quotation] And some of our nation’s hottest jurists have called for their more frequent use. See, e.g., Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, 819 (1998) (“[O]ne would hope that Congress would do the next best thing: instruct the courts how to resolve the close cases. This would not usurp the judicial function in any way; it would merely give judges instructions how to go about discovering the statute’s fine nuances.”)

(3) The cultural references: "Nor am I moved by the majority’s ex cathedra disquisition

about courthouse holding cells generally being “stark, barren, hard, and distinctly utilitarian.” Maj. at 6592. I suppose they’re quite different from your ordinary jail cell, which comes equipped with flat-screen TVs, mini-bars, iPod docking stations and Frette linens."

Let me add two other idiosyncratic points. First, if you've ever been in (or seen) the holding facility in O.C. at issue, I think you'd find Judge Kozinski's dissent even more persuasive. It's huge. Essentially like a mini-prison. This is no two-cell drunk tank. It's massive.

Second, the lineup is interesting. Judge Trott writes the majority opinion. Judge Kozinski dissents. And who joins Judge Trott? Judge Wardlaw.

Not what you might expect.

Arizona v. Harkins Amusement Enterprises (9th Cir. - April 30, 2010)

I completely agree with Judge Hug on this one.

Does the ADA require movie theaters to help blind or deaf people watch movies? They could do so, after all. For deaf people, you could require "open captions," which is the text you see at the bottom of movies or on televisions in bars (i.e., "subtitles"). You could alternatively require "closed captions," which essentially are open captions projected at the back of a movie theater and mirror-like things provided to individual patrons who want to have these captions appear superimposed on the screen for them (and them alone). And for blind people, you could have "narration," which is where a soundtrack essentially describes (for them) what's happening on the screen.

Plaintiff files a lawsuit claiming that the ADA requires all three. The district court dismisses the suit at the pleading stage. The Ninth Circuit affirms in part and reverses in part. Exactly rightly, in my view.

The ADA requires "auxiliary aids" for deaf and blind people, which federal regulations further expressly define as including interpreters, open and closed captioning, etc. So clearly what the plaintiffs are asking for isn't categorically out of bounds.

But as for open captioning, there's a preamble to another federal regulation that expressly says that that's not required for movie theaters. For good reason, in my view. Open captioning has the result of changing the movie experience for everyone, since everyone sees the captions, and some people (including me) don't like that. So I'm on board for dismissing this claim. Even at the pleading stage. That's not required.

But I also agree with the Ninth Circuit that you can't dismiss the rest. Closed captions and narration aren't mentioned in the commentary; moreover, they only affect patrons who choose to elect them. So it's a different deal.

Admittedly, maybe providing closed captioning and narration would be overly expensive or burdensome for the theater, in which case they're not reasonable accommodations under the ADA and hence not required. But you don't decide that at the pleading stage. 'Cause maybe they're not overly burdensome. That's why we have discovery, summary judgment, and (if necessary) a trial.

So the Ninth Circuit gets this one right. If it's not that burdensome for hearing- or visually-impaired persons to be able to watch movies with everyone else, they should be granted that right, and the ADA provides exactly that. Whether that's the case requires more than simply a judgment at the pleading stage.

Spot on.

Silvaco Data Systems v. Intel (Cal. Ct. App. - April 29, 2010)

I wasn't particularly interested in the underlying merits of this opinion, which is what it is. But I did find interesting Justice Rushing's comments about (of all things) the appendix. Not something we generally discuss at length in an appellate opinion.

Check it out (with citations deleted):

"Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little. We see three causes for this wretched excess. The first is the inclusion of hundreds of pages of printouts of legal authorities retrieved from online sources. The rules require that, for the convenience of trial judges, some such materials be 'lodged' in the superior court when cited. There is no requirement that they be included in the record on appeal, and ordinarily they have no place in it. This court can more easily retrieve authorities through its own resources than it can find them—or anything else—in an 8000-page appendix.

A second cause of overkill is that each of the appendix's 27 volumes includes an index to the entire appendix. This would be a welcome convenience if not for the fact that the index is 103 pages long—a bulk that, replicated 27 times, consumes more than one-third of the appendix. This remarkable feat is achieved by listing not only every distinct filing, but every exhibit or attachment to each filing. We are thus called upon to thumb through page after page of references to exhibit titles, including lodged authorities (see preceding paragraph). This level of detail exceeds the requirements of the rules, and when it enlarges the index to the present extent, largely defeats the index's purpose.

The third source of unnecessary length is the duplicative inclusion of multiple copies of documents that were filed repeatedly in the superior court. We assume these duplicate filing were intended as a convenience to the trial court, but when they inflate a record to the present proportions they are hardly a convenience to us.

There are of course cases in which records this size, and many times this size, are unavoidable. But as the sheer size of the record increases, it become increasingly important for appellate counsel to take an active role in ensuring that the record is no larger, and no less easily navigated, than accuracy and necessity dictate. The present case appears to be one of those rare instances when, contrary to the maxim, superfluity does vitiate. (See Civ. Code, § 3537.)"

I particularly loved the obscure Section 3537 reference. Nice.

People v. Escudero (Cal. Ct. App. - March 30, 2010)

Here's another one that I'll let speak for itself.

Defendant's charged with molesting a 7-year old. Is it unfairly prejudicial to introduce evidence that he allegedly assaulted two adult women in their 30s after they got drunk and fell asleep?

Nope. Not according to the Court of Appeal. Molesting a 7-year old and assaulting an intoxicated adult are sufficiently "similar" and do not unfairly prejudice the defendant.

Oasis West Realty v. Goldman (Cal. Ct. App. - March 3, 2010)

Lawyers can speak and vote and petition with respect to public issues. Even if those views are directly contrary to the interests of a current (or former) client.

And when they're sued for doing so, they can file an anti-SLAPP motion, get the lawsuit dismissed, and recover their fees.

So holds the Court of Appeal.

Estate of Kraus (Cal. Ct. App. - April 27, 2010)

Janice Kraus was unmarried and had no children, and created a will that left most of her money to the Make-A-Wish Foundation and the Regents of the University of California. She had a brother, David, whom she specifically disinherited, since (1) he had a temper, (2) she was afraid of him, and (3) he had previously pimped $160,000 from her. She even put a clause in her will directing that her estate get back the missing $160,000. In short, her brother was to get nothing, and charities were to get the rest.

In October 2006, Janice had cancer, was dying, and was in hospice care. On the 22nd, while she was semi-comatose, David came in to the hospice with a "General Power of Attorney" form and had someone hold Janice's hand to write an "X" on the form. David then immediately used the form to raid Janice's bank accounts, grabbing four CDs from California National Bank collectively worth around $140,000, another $15,000 from Janice's Washington Mutual Bank account, and over $9,000 from a joint checking account that Janice had with her 91-year old mother. Janice died at 7:50 a.m. the next day.

The trustee sues David to recover the money and statutory penalties, and prevails. David appeals, but the California Court of Appeal affirms.

IMHO, far from being upset about the result, David should be happy he's not in jail.

Plummer v. Day/Eisenberg (Cal. Ct. App. - April 26, 2010)

That's a neat trick.

Once a case settles, a check is made out to X, Y and Z. X and Z are law firms, but Z is former counsel. There's a dispute about fee allocation, and Z won't sign the settlement check unless Z gets paid what Z says Z's owed.

So X signs the check, and transmits it to Z to cash, and instead of just one person signing on behalf of X, one person from X signs legibly and another person from X signs in a scrawl. That way, when Z signs, it looks like there are three signatures -- of X, Y and Z -- even though Y never signed.

It's a good trick. But it also states a claim for conversion.

Still, I like the creativity!

People v. Navarrete (Cal. Ct. App. - Feb. 1, 2010)

I like this. Basically, all of it. The opinion, written by Justice Rubin. What the trial court, Judge Patrick Meyers (in LA), did. What the trial D.A., Robert Britton, did. Essentially what everyone did. With the exception of Detective Andrew Serrata. Who seems to me to be everything we do not want our police officers to be.

I won't get that much into the case, in large part because the entire opinion's worth reading, and is also sufficiently short that one can do so fairly easily. I will say that my sense is that while I agree with Justice Rubin that Navarrete isn't totally obviously guilty, I do think he's in deep trouble, and may well have committed the offenses for which he was charged. For which I might also have given him even more than six years.

But I also agree that his conviction should be reversed. First, I'm quite confident -- especially given what subsequently transpired -- that the trial court properly found the police officers not credible when they said they gave the suspect his Miranda rights. Usually trial courts are very hesitant to call "testilying" by police even when they see it, but here, the trial court did so, and I was happy to see that. Though even here, notice (in footnote 2 of the opinion) how wary the trial court was to even do that.

At which point the officer blatantly violates the motion to suppress, and does so wilfully. The facts of this one are pretty striking; I'd say it was a made-for-television movie, except the way these things happen (and the details discovered) are more plausible. Anyway, I like how the trial court addressed the problem, and liked what the Court of Appeal did as well. Am I totally persuaded that the error wasn't harmless? No, not totally. But it might have had an effect on the trial. And the misconduct by the officer was so deliberate and wilful that even if I had any lingering doubts, they'd go against the conviction -- indeed, what transpired here might even amount to outrageous governmental conduct, albeit by only a single state actor.

In the end, though, the system got this one right. And I hope both that Detective Serrata does not hear the end of this one, as well as that the other people involved in this controversy know they did the right thing and would do it again.

Fulton v. Medical Board (Cal. Ct. App. - April 23, 2010)

It's bad enough when you lose an appeal in a published opinion. It's public, it's got your name in it, and it's forever.

But when your appeal is about your allegation that the California Medical Board shouldn't make public the information about your discipline (you resigned your medical license) and the events that led up to it (discipline by other states, malpractice judgment, etc.), because that's "harming your reputation" and hurting your business (you run a quasi-medical business and sign things "Dr." and "M.D."), the last thing you want is for the Court of Appeal to report in its published opinion all the things you're trying to keep hidden.

But that's exactly what the Court of Appeal does.

Call it irony. Call it justice. Call it whatever you'd like.

Regardless, that's got to be something that Dr. James E. Fulton isn't likely to appreciate.

Something to think about the next time you're thinking about filing one of these appeals. An appeal that says "You should keep X secret" may not only lose, but be itself counterproductive as well.

People v. Mathers (Cal. Ct. App. - April 22, 2010)

Sometimes I don't get what people are thinking.

Okay, so you deliberately wrote some bad checks. You opened up a checking account with $50, never made any more deposits, and wrote multiple bad checks on the account. That's fraud, but I understand it. You're a criminal. I get it.

I even understand it when, three months later, after the bank closes the account, you print a couple of new (bad) checks on this account off your computer and go to the Food Maxx store in Redding to try to get $482.63. Granted, this isn't the brightest thing in the world; obviously the store is going to run the thing and see the account is closed. But maybe the manager's lazy, so worth a shot. Again, I get it. Plus, even if they catch you -- which (here) they did -- maybe the manager thinks you're confused, or whatever, and doesn't call the cops.

Here's the thing I don't get. Why, later that night, do you go back to the same store with the same fake check and try to cash it again?! You're just begging the manager to call the cops this time. Which, not surprisingly, is what he does.

There's no other place in the universe you can try?! Or even in Redding?

Something that Robert Mathers gets to think about for the next nine years. And which the rest of us can think about for nine seconds.

Bad checks. Not rocket science. Those that pass them: Not rocket scientists.

Hammad v. Holder (9th Cir. - April 22, 2010)

There's a downside to paying someone to marry you so you can get your green card. Not only is it criminal, but if you're caught, the next time you marry a U.S. citizen -- even if for real this time -- you're going to find it difficult to stay in the United States.

And even the Ninth Circuit isn't going to be too upset about kicking you out.

Union Steel Union v. Shell Oil (9th Cir. - April 21, 2010)

Some cases are pretty clear when you just remember some basic principles. So much so that it's somewhat surprising that any court could come out the other way.

Let's take a case in which a plaintiff files a putative (uncertified) class action that's removed to federal court under the Class Action Fairness Act -- i.e., because there's minimal diversity and $5 million-plus at stake. The district court thereafter refuses to certify the class. Does jurisdiction still exist in federal court, or does the lawsuit get remanded?

There's a very simple foundational principle that answers that question: As long as jurisdiction exists at the outset, it persists. You can muck that central principle up with a variety of complex arguments, but that's basically the rule.

So the Ninth Circuit gets this one right, and properly recognizes that the district court got it wrong. Even after a refusal to certify, the case gets to remain in federal court.

There are additional policy and other reasons why this result should follow as well, but you don't even need to get to 'em. Sometimes the most straightforward part of a cases provides a pretty good answer itself.

Rincon Band v. Schwarzenegger (9th Cir. - April 20, 2010)

The analogy between watching sausage be made and watching how California strikes deals with Indian tribes over casino expansions and profits isn't a stretch.

Pokorny v. Quixtar (9th Cir. - April 20, 2010)

What?! You mean to tell me that a multi-level marketing scheme would really manipulate its contract of adhesion so much that its arbitration clause was both procedurally and substantively unconscionable?

Who'd have thunk?

People v. Superior Court (Cal. Ct. App. - April 6, 2010)

Was in New York for a long weekend. But that shouldn't stop the dissemination of knowledge:

Driving a truck down a steep hill when you should know that you're brakes might not work can lead to a conviction for murder.

So sayeth the California Court of Appeal, which reverses the dismissal of an indictment.

People v. Taylor (Cal. Supreme Ct. - April 15, 2010)

On this very special Tax Day, the California Supreme Court wants to remind you that you get a lot of value for your tax dollars. So it issues a 113-page opinion that unanimously affirms a sentence of death.

It's a somewhat unusual case, in that you rarely see such a pathologically calm perpetrator or such an incredible laydown on the fact that the defendant was pretty much clearly guilty. Here are the surprisingly pedestrian -- and yet simultaneously grisly -- facts:

"Around 9:30 p.m. on June 23, 1995, 80-year-old Rosa Mae Dixon sat in the living room of her San Diego home conversing with her sister Betty Hayes, who was visiting from Kansas. The women were startled and 'scared to death' when they looked up and saw defendant calmly standing in the room staring at them. Defendant, who was 22 years old at the time and lived nearby, apparently had entered the house from the back after tearing a hole through a mesh screen.

After mumbling something that might have been his name, defendant closed the front door over the security screen and sat down on the couch between the two women. When Dixon rose and asked defendant what he wanted, he grabbed the front of her nightgown. At Dixon's direction, Hayes went into the front bedroom to call 911, but when she picked up the telephone, defendant chased after her, jerked the receiver out of her hand, and pulled the cord from the wall. Defendant then grabbed Hayes by her clothing, took hold of Dixon in the same manner, and pushed the two women down the hall to a bedroom in the back of the house.

At some point before defendant forced Dixon and Hayes to the back bedroom, one of the women came outside onto the front porch, yelled for help, and then ran back into the house. Dixon's next-door neighbor, Erik Kirkpatrick, heard the cry and came to investigate. Receiving no response to his knock on the front door, Kirkpatrick went to the side of the house, looked through a window, and saw defendant on his knees hunched over Dixon. After hearing a male voice mumble something like, 'I don't want to have to hurt you,' and a female voice respond, 'Okay, just don't hurt me,' Kirkpatrick quickly returned to his own house to call 911 and waited for police to arrive.

Kirkpatrick's momentary look through the side window occurred just as events in the back bedroom had started to unfold. Defendant first pushed Dixon to the floor at the foot of the bed, removed her panties and pulled down his shorts. His first attempt to penetrate her was unsuccessful. He then picked up Dixon and slammed her onto the floor near the side of the bed, banging her head and knocking Hayes to her knees in the process. With more room to maneuver in the new location, defendant managed repeatedly to penetrate Dixon's vagina with his penis. Meanwhile, Dixon started breathing hard and gasping for air. At one point, defendant withdrew his penis, raised Dixon's head and attempted to place his penis inside her mouth. She resisted, turning her head to the side and saying, 'No,' while still struggling to breathe. When defendant released Dixon's head and let it drop to the floor a short time later, she was ashen and no longer breathing or moving.

Defendant then turned his attention to Hayes, swinging around to face her with his penis in his hand and asking if she 'wanted it.' When he did so, Hayes noticed there was semen on the tip of his penis. Defendant pulled up his shorts and started out of the room, passing Hayes's purse, which was sitting open on a table. He dug through it, complaining about finding only a few dollar bills until he discovered and pocketed about $65. Defendant continued on through the kitchen and out the back door.

Defendant got only as far as the back fence before being apprehended by Officers Gassmann and Caropreso, who, along with several other officers, had responded within minutes to Kirkpatrick's 911 call reporting a burglary in progress. When the officers asked defendant why he was in the yard, he first replied he thought the house was vacant. Defendant then offered that a White male named John Hall, who had left before the officers' arrival, 'just raped an old woman inside the house.' [Yeah, good alibi. That's definitely going to throw 'em off your scent.] A third officer retraced defendant's route back to the Dixon residence but found no evidence of a second assailant. Less than one hour later, the officers conducted a curbside lineup in the alley behind Dixon's house, and both Hayes and Kirkpatrick identified defendant.

Meanwhile, other officers had discovered Dixon lying on the floor of the back bedroom with her nightgown bunched up around her waist. There was blood on her leg and underneath her pelvic area, and she was unresponsive and not breathing. Rescue efforts, including cardiopulmonary resuscitation (CPR) and emergency heart medications, restored Dixon's pulse, and she was taken to the intensive care unit of a nearby hospital. But she soon suffered seizures and kidney failure and never regained consciousness. The following evening, after being declared brain dead, she was removed from life support."

Needless to say, in addition to being conclusively identified by eyewitnesses and basically caught in the act, there was also totally persuasive DNA evidence. Since Taylor killed an 80-year old woman for no reason -- admittedly, almost assuredly not intentionally -- and since it was a San Diego jury, the outcome wasn't much in doubt. Death penalty.

Nor was the result of the appeal. But the California Supreme Court nonetheless makes it official.

People v. Shafrir (Cal. Ct. App. - April 14, 2010)

Sometimes I feel like I'm saying things that are totally obvious. And yet seemingly daily, there appear new cases that prove that the message needs repeating.

Take this afternoon's opinion.

This morning, I said: "Don't drink and drive." Plus some other stuff. Fair enough.

But apparently I'll have to add: "If you drink, don't drive. And especially don't drive 110 mph." At 3:40 a.m., no less.

But it gets worse. Apparently I'll have to also add: "Particularly when you have three huge bags of weed in the car. Plus a paper bag with $50,000 in cash."

Yikes.

People v. Stacy (Cal. Ct. App. - April 14, 2010)

When you're arrested for drunk driving, don't make it worse by giving the officer the name of your cousin. They'll catch you. Pretty soon, usually; fingerprints, DMV photos, and all. And that'll add some additional time to your sentence.

Word to the wise. Of course, better not to drive drunk in the first place. Far better.

In Re Judicial Misconduct Complaint (9th Cir. - April 13, 2010)

There are certain things in life that are a virtual certainty. Death. Taxes. Stuff like that.

Here's one more to add to the list: When you make a judicial misconduct complaint, it's much, much more likely that you'll be found to have engaged in misconduct -- and sanctioned -- for making the complaint than that the judge is sanctioned. Because pretty much always, the nutjob isn't the one on the bench, but rather the guy staring at you in the mirror.

Now it's time for my noontime public debate (with my colleague Miranda McGowan) about whether it's constitutional to ban vibrators. Ah, academia.

Holley v. CDC (9th Cir. - April 5, 2010)

"Holley is an inmate at the California Medical Facility in Vacaville, California. He has, at various times, identified himself as a Christian, a Satan worshiper, and a Nazarite, and has attended Muslim services. Holley has stated that no established religion adequately describes his religious beliefs."

I'll bet.

'Cause being a Christian and a Satan worshiper are so closely related. It's so hard to distinguish between the two; sort of like the difference between Methodists and Baptists. Really subtle.

Christ/Satan. Satan/Christ. Really hard to figure out who to root for.

Hein v. Sullivan (9th Cir. - April 12, 2010)

Just because you have Erwin Chemerinsky representing you doesn't mean that you're going to win your habeas appeal. Even in the Ninth Circuit.

Notice, by the way, that Erwin's listed as from "Durham, North Carolina". Which I'm sure will come as news to the students and faculty at UCI.

Which shows how long federal appellate cases sometimes take to brief and resolve.

U.S. v. Maggi (9th Cir. - March 16, 2010)

No one really said that race doesn't matter anymore in the 21st century. But in case you thought otherwise, here's a case that proves that it still matters. Sometimes, dispositively.

Admittedly, this is about whether someone's an "Indian," which is a particular type of race. And a fact that clearly matters for purposes of the Major Crimes Act, which provides federal jurisdiction for certain crimes committed by Indians in Indian country. So I understand why it matters -- and why we have to examine -- whether Shane Maggi (as well as Gordon Mann) are "Indians."

Still, my mind couldn't help but draw the analogy between this opinion and those earlier cases about who's "really" black. One drop of blood? "Recognized" by the state as a mulatto? Those cases leave a strong taste in one's mind. And it's not a good one. So to see a modern case that makes an (even loosely) analogous inquiry is a little disturbing.

Again, we're talking about Indians here, and at least a little about sovereignty, so perhaps the more accurate analogy might be to determinations about who's really "French" or "German". But however accurate, that's not where my mind first went.

None of which is to insult the opinion. The inquiry is, again, doctrinally required. But even that says something. Or at least reminds us.

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - April 7, 2010)

Usually I comment on (or critique) opinions. Sometimes I make snide comments. But sometimes -- albeit rarely -- all I really want to do is to let people know about an opinion because it's important and of practical interest.

This is one of those times.

It's about imputed disqualification and whether screening (f/k/a "Chinese Walls") works in California. Here's the Court of Appeal's conclusion, which helpfully comes in the first paragraph:

"When an attorney obtains confidential information from a client, that attorney is prohibited from accepting a representation adverse to the client in a matter to which the confidential information would be material. In this case, we are not concerned with the issue of disqualifying the attorney possessing the material client confidences from representing an adverse party; it is conceded that the attorney is disqualified from doing so. Instead, we are concerned with the issue of the vicarious disqualification of the attorney's entire law firm. We conclude that, under the circumstances of this case, automatic vicarious disqualification is not required, and that, instead, there is a rebuttable presumption that the attorney's knowledge of client confidences is imputed to the firm, which can be refuted by evidence that the law firm adequately screened the attorney from the others at the firm representing the adverse party. In addition, as the disqualified attorney has left the firm, the trial court's examination of the screen's adequacy should be on a retrospective, not prospective, basis."

Important stuff.

The opinion, which comes in at 55 pages, is pretty darn comprehensive. So all I'll add is one quasi-snide comment. The amicus brief on behalf of appellants is signed by a gazillion people, and might accurately be titled "Amicus Brief of Most of the Huge Law Firms In California, All of Whom Are Jonesing For PPP and None of Whom Want to Be Conflicted Out." The actual title, of course, is slightly different. Slightly.

U.S. v. Tello (9th Cir. - April 7, 2010)

I'm thinking of starting a new blog. One that's devoted exclusively to talking about opinions in which a guy on the internet "seduces" an FBI agent who's posing as a teenage girl. Content's no problem: there's tons of those cases.

I wrote about one from the California Court of Appeal on Monday. Today brings yet another opinion.

I'm joking about the blog, of course. Though I've probably already written about a dozen or so of these over the years. But the lesson remains: Don't try to seduce a "teenager" over the internet. It's not who you think. Really.

There's also a more subtle point, I think, and one which I hadn't thought about until today. My admittedly unscientific impression is that these internet sting cases result in published opinions at a much, much higher rate than ordinary criminal appeals. Or at least, given their numbers, I think that's gotta be the case, unless everyone and his mother's being convicted of this stuff.

I wonder why that's the case (if indeed it is)? I assume that part of the reason is that these cases have an unusually high rate of going to trial -- rather than plea out -- due to the relatively high sentences and the fact that the defendants are often not your "usual" criminals who understand that a stint in the joint is the price you must occasionally pay for your profession. But that can't be all of it. Maybe these cases are more interesting to clerks and/or judges. Maybe the relative wealth of the offenders enables and encourages them to hire higher-priced defense and appellate attorneys who come up with creative, novel or difficult appellate issues, thereby resulting in more published opinions. Or maybe the historically novel setting of the internet itself results in difficult jurisdictional and other issues that require an era of publication before the resolution of internet sex stings on appeal become as routinized as, say, bank robbery is now.

Something interesting to think about.

Anyway, for now, here's yet another case where an older guy (this one from Arizona) talks to a "thirteen year old" from the FBI and travels over state lines (to L.A.) to allegedly have sex with "her" but in fact to be busted.

Word to the wise. Screen names like (here) "Cutelagrl93" (i.e., Cute LA Girl Born in 1993) are more accurately "FBIDude67". Ignore at your peril.

U.S. v. Andrews (9th Cir. - April 7, 2010)

I understand pride of authorship. I also know that judges may occasionally change their votes after reading a draft opinion.

Those understandings aside, I always find it funny when I read an opinion by a three-judge panel in which the panel has to explain who's writing what and in which the "opinion for the court" is also authored by a dissenter.

So in this morning's case, for example, Judge Alarcon authors the opinion for the court on one issue, but dissents as to another. Which is sometimes efficient (though a hassle to follow), at least with larger panels.

But here, Judges Clifton and Fernandez both agree on every issue, and so Judge Clifton writes a "concurring" opinion that Judge Fernandez joins. Given this fact, it'd be a lot easier to follow if the majority opinion was authored by Judge Clifton (potentially just dupe-and-revising a draft and/or bench memo by Judge Alarcon) with a simple "partial dissent" by Judge Alarcon. Rather than having Judge Alarcon write the majority opinion in part and a dissent in part.

No biggie. You can still follow the opinion if you try. But easier is often better.

People v. Milosavljevic (Cal. Ct. App. - April 6, 2010)

Let's keep the Serbian names straight. Slobodan Milosevic was worse; he committed genocide.

But Peter Milosavljevic is far from a peach. He was sentenced to 965 years to life when found guilty of 38 counts of "forcible rape, forcible sodomy, forcible oral copulation, forcible penetration by a foreign object, false imprisonment, administering an intoxicating agent with intent to commit a felony, assault by means of force likely to produce great bodily injury, and other related offenses involving 10 victims." A dude I'm happy to see locked away.

Just a snippet of what he did, involving a single victim: "During the six-month period during which she lived with Milosavljevic, he raped her 20 to 35 times. When she refused to have sex with him, he reminded her of his threat to her family and that he knew their addresses and telephone numbers. On the five to seven occasions when she refused to have anal sex and tried to fight him off, he strangled her until she became unconscious. He also forced her to orally copulate him on many occasions, which she disliked because his penis had a bug spray taste to it."

Not only does Milosavljevic have to spend 965 years to life in prison, but he also has to endure the indignity of seeing the harshest thing I've ever read about someone printed forever in the pages of the California Appellate Reporter -- a publication, mind you, to which his cohorts in the penitentiary have access. "His penis had a bug spray taste to it." Oh my.

P.S. - Also don't confuse Milosavljevic with Milorad "Rod" Blagojevich. Who's also not a peach, but who's far better than either Milosavljevic or Milosevic. And who, as far as I know, also has no personal "Dude, your d**k tastes like bug spray" issue. Thankfully.

CRS Recovery v. Laxton (9th Cir. - April 6, 2010)

Here's an $85,000 diversity lawsuit that only a true aficionado of both IP and conflict-of-law doctrines could love.

I'm sure that includes at least three people in the universe. Maybe even four.

Shalant v. Girardi (Cal. Ct. App. - April 5, 2010)

It's a good day for disbarred California attorney Joseph Shalant, who not only learned today that the Court of Appeal reversed a (substantial) judgment against him for insufficient evidence, but who also sees the Court of Appeal reverse the dismissal of his own lawsuit against the adverse party.

But he shouldn't celebrate too soon. It may perhaps be that the reversal of the judgment against Shalant will stand, since -- like the Court of Appeal -- I don't see any precedent for the position that a suspended and/or disbarred attorney is required to advise his clients precisely why he's ditching a case. Should he? Yeah. Does the law require it? I doubt it.

But the reinstatement of Shalant's own lawsuit is another question. There's a split in the Court of Appeal here, with the current panel holding that Shalant's lawsuit couldn't be dismissed even though Shalant is a vexatious litigant who was litigating pro per because the lawsuit was initially filed by an attorney. That may, or may not, be right. But given the importance of the question, as well as the split below, I wouldn't be at all surprised to see the California Supreme Court grant review on that issue. As, indeed, it should. IMHO.

So a likely victory for Shalant, but part of which may not necessarily last forever.

People v. Nakai (Cal. Ct. App. - April 2, 2010)

When will people learn?

She's not 12. I don't care what she says online. She's a man. She's 35. She's working on private time (here, as a member of "Perverted Justice") to find online predators.

The ratio of actual 12-year olds willing to have sex with you (either actual or cyber) to the number of people pretending to be 12-year olds willing to have sex is probably 100 to 1. Thankfully, I might add.

Talk to people your own age. Attempt to seduce people your own age. At least roughly. And stay away from children, either actual or ostensible.

N.D. v. Hawaii Dep't of Education (9th Cir. - April 5, 2010)

Let me slightly critique this opinion by Judge Farris.

It's an interesting case, and a challenge I wouldn't have thought about on my own. Hawai'i (like many other states) is facing a downturn in tax revenue, and has decided to make up the shortfall by shutting down public schools on seventeen Fridays during the 2009-10 school year. One can debate the wisdom of this policy, but as a legal matter, as long as that policy is okay with the union (which has a CBA), that seems generally okay. Sure, the kids get 10 percent less education, but that's a policy dispute, not a legal one.

Plaintiffs, however, bring a creative lawsuit, and one which facially has some potential merit. The plaintiffs are parents of disabled kids, who are covered by an IEP pursuant to the IDEA. That plan for each kid essentially says that s/he is to receive X instruction -- a plan based upon Y number of school days -- and so shutting down the schools arguably violates both the plans as well as the "stay put" provisions of the IDEA, which generally provides that you can't change a plan once it's been approved.

So a good legal theory. Plaintiffs move for a preliminary injunction, but the district court denies it, holding that the public schools were making the best of a bad situation. The Ninth Circuit, on appeal, affirms, holding that the decision below was not an abuse of discretion because while the public interest factors on both sides were strong, the balance tipped in favor of the defendants because plaintiffs were not likely to win on the merits. "Generally applicable changes in policy" like the one at issue here, the panel concludes, are not governed by the "stay put" provisions of the IDEA.

A reasonable jurist could go either way, I think, as to the validity of this proposition. Particularly when the opinion concludes, in its final paragraph, with this important caveat: "Nor does our conclusion leave the parents of disabled children with no means of redress. N.D.’s claim is more properly characterized as a 'material failure to implement the IEP.' Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007). A school district’s failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP. The agency is required to address such a claim with a due process hearing, and full judicial review is available." That seems reasonable. Sure, that's a harder claim. But if such relief is available, I'm a fair piece more inclined to allow at least certain generalized changes past the stay put provisions than if no alternative avenue of attack was available.

The paragraph before this one, however, contains what I think is the weakest part of the opinion. That's where Judge Farris says: "Finally, plaintiffs argue that because their current IEPs are

their current educational placement and assume a five day school week, the reduction of the school week constitutes a change in the general educational program of the student. While they certainly assume some five day weeks, the IEPs also assume that there are some four day weeks when there are federal and state holidays. Those four day weeks are not mentioned explicitly in the IEPs. The four day weeks created by the furloughs are no different and do not constitute changes in N.D.’s educational program."

To me, that seems an incredibly specious response. After all, I'm sure the IEPs also assume and do not explicitly mention spring break and Christmas vacations either. So under the Ninth Circuit's theory, the plaintiffs' educational plan also wouldn't be changed if Hawai'i closed down the entire school system by declaring every week to be spring break -- or Christmas vacation to last eight months -- either. That just seems silly, and obviously wrong. The mere fact that X exists to a degree now doesn't mean that expanding X categorically isn't a change in a plan. It requires a qualitative judgment, perhaps. But that's different than what the opinion says, and in making short shrift of plaintiff's argument here, the opinion fails to offer a coherent response. At least in my view.

So an interesting case to start off the week.

Purifoy v. Howell (Cal. Ct. App. - March 26, 2010)

Want to practice pet law, but wondering how one goes about it? Here you go.

It's a neat little case, and one in the public interest. Basically about how long shelters have to keep animals before they whack 'em.

It's a straightforward statutory interpretation case, so not doctrinally all that interesting. Plus, the right result, I think, is a matter of common sense -- and one that Justice Jenkins (and the rest of the panel) get exactly right. "Business days" don't include Saturdays, even if a shelter is open. At least in this context. And the owners of pets get three days exclusivity to redeem the animal, and then additional days thereafter of nonexclusive redemption rights.

So good job by the Court of Appeal. As opposed to the trial courts here, which shuttled the matter to multiple judges with multiple (contradictory) rulings, ultimately resulting a (just) reversal.

Freedman v. Brutzkus (Cal. Ct. App. - March 11, 2010)

I love it when opinions are (1) concise, (2) well-reasoned, (3) of interest to the legal community, and (4) tells you everything a casual reader needs to know in the first several paragraphs.

Since that means I can convey the important information with a simple cut-and-paste.

As I can with this opinion. Here's what it says:

"The signature block on a contract bears an attorney signature under the legend 'approved as to form and content.' Does that signature amount to an actionable representation to an opposing party's attorney? We conclude that it does not. . . . We hold that this recital indicates that an attorney has advised or is advising his or her own client of the attorney's approval of the document's form and content, and does not, by itself, operate as a representation to an opposing party's attorney that can provide a basis for tort liability."

See how easy that is?