People v. Knightbent (Cal. Ct. App. - July 19, 2010)

I occasionally make fun of various appeals that concern trivial sums, particularly when the transaction costs of litigating the matter completely swamp what's at stake.

I'm glad to see the Court of Appeal make a similar mention.

Justice Raye begins the opinion by saying: "In this case, the services of an appointed counsel and a deputy attorney general, together with three justices and staff of this court, are applied to the resolution of a single issue: whether the court's order imposing a $34 fine on defendant was proper under Penal Code section 1202.5[]. Defendant argues the court erred and the fine must be reduced to $10."

I like it. Twenty four American dollars at stake. Almost enough to buy Manhattan. Definitely worth the investment of social resources.

Though I'll also mention that the Court of Appeal itself spends a lot more than $24 by deciding to publish the opinion. That's some trees, even for an 11-pager. Plus suggests that perhaps the appeal apparently concerns something that's at issue in a large number of cases and hence worthy of publication and social attention.

VISA Int'l v. JSL Corp. (9th Cir. - June 28, 2010)

The web site "evisa.com" illegally dilutes VISA's trademark, the Ninth Circuit holds in an opinion written by Chief Judge Kozinski. An opinion that, characteristically, is both well-written and makes sure to include a plethora of cultural and brand references.

Which is great. Now I'm just hoping they take down the State Department's evisa web site too.

La Serena Properties v. Weisbach (Cal. Ct. App. - July 15, 2010)

I agree with the Court of Appeal here. You can't sue an arbitrator for failing to disclose conflicts. Even if the failure to disclose as allegedly "corrupt" or part of a "conspiracy."

Your proper remedy is limited to vacating the arbitration award. Which is precisely what in fact transpired here.

That said -- and that's all that need be said to resolve the case -- I think that if you're a proposed arbitrator and your girlfriend is the sister of defendant's lawyers, you need to say more than just: “[Defendant's lawyer] is a personal friend. While I do not believe that our relationship would prejudice my hearing of this matter, this relationship does present a potential conflict."

How about: "I am in an ongoing romantic relationship with the sister of defendant's lawyer, and also know counsel personally. Let me know if you would like to select a different arbitrator." Or, even better: "I unfortunately cannot accept the appointment, as my relationships might create at least the appearance of impropriety."

People v. Alexander (Cal. Supreme Ct. - July 15, 2010)

There's virtually no physical evidence at all. The eyewitness identifications are shaky. The crime was unsolved for over a decade. It was a random shooting for inexplicable reasons.

But the person shot and killed was a Secret Service agent. On duty. And a woman. When you're convicted, you're going to be sentenced to death. And the California Supreme Court will affirm in a unanimous (and 130-page) opinion.

The discussion on pages 98 to 106 seems the most troubling issue to me. A juror says during jury deliberations that s/he's not willing to vote guilty because there's no positive identification of the defendant or physical evidence at the scene. But the other 11 jurors want a guilty verdict.

So the foreman writes the court a note, and tells the judge that the one juror said: "If we could positively identify him, I would fry his ass just like the rest of you. But without a positive i.d., I . . . cannot vote for guilty." The court then pulls the jury back in expressly instructs them about circumstantial evidence being okay and the like -- instructions clearly targeted at the holdout juror.

Those are proper instructions, of course. But the process used seems a pretty powerful way to deliver a specific message. So a specific juror who's vote you know and want to change.

Oh, yeah. When, at the penalty phase, you do the exact same thing again -- albeit in a different context -- it seems only worse. There, the foreman writes another note: "We have a split eleven to one + the holdout will not listen to any reason. Please let us know how to continue. The holdout is based on the children." So the judge calls the jury in and tells them that their decision can't be based on sympathy for a third party; e.g., the defendant's children. Thirty-five minutes of deliberations later, the jury unanimously comes back with a verdict of death.

At some point the judge risks becoming a participant in an interactive process with the jurors during deliberations. That's not right. Or at least it's not our system. Even though what the judge told the jurors was totally correct as a matter of law, the process employed here seems troubling to me.

Something that I'm sure will hear more about -- in another decade or so -- when the federal habeas proceedings reach the Ninth Circuit.

(At which point Alexander will be around 40 years older than when he committed the offense. If he lives that long.)

P.S. - For a sharp contrast to Alexander, take a look at Solomon, decided the same morning by the same court and with the same unanimous result. Solomon's unquestionably guilty, and the trial's not infected with any error. The result in Solomon is easy. The two cases are night and day.

Rhodes v. Henry (9th Cir. - July 15, 2010)

Paul Rhodes is charged with and convicted for the capital crime of first degree murder of -- as well as the kidnapping, robbery, and rape of -- Susan Michelbacher. He's sentenced to death.

Seems to me like also convicting the guy for "the infamous crime against nature" is sort of piling on, no?

Plus, maybe Idaho could make it's criminal code a little more "hip" -- as well as constitutional -- by changing the statute. Which currently reads: "Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the sate prison [for] not less than five years."

I think we can handle the word "sodomy" in 2010. As well as allow it consensually. And maybe not punish all of it with a mandatory minimum of five years (to life).

I'm just sayin'.

POSTSCRIPT - Speaking of the infamous crime against nature, someone who did NOT testify before Congress recently pointed me in the direction of this unintentionally funny case (Lason), uncertain whether the case "is as well known to your generation." Let the diffusion of knowledge commence.

U.S. v. Hinkson (9th Cir. - July 14, 2010)

Rare.

Judges usually don't change their mind. Especially in a high-profile en banc case.

But here's what Chief Judge Kozinski says this morning, in a case that I've talked about on several occasions (here, here and here), and that -- as I've mentioned -- has been unusual from the outset:

"I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud. My change of heart came about after I read the Supreme Court’s summary reversal in Porter v. McCollum,

130 S. Ct. 447 (2009), and the amicus brief of William Mac Swain filed in our case. Without Swisher, the government had no case. I’m now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full."

Equally unusual as a change of heart is to single out an amicus brief as a motivating factor. Mac Swain, by the way, is the President of the Korean War Veteran's Association, and his brief was prepared by John Keker.

Impressive.

People v. Mesa (Cal. Ct. App. - July 13, 2010)

The opening paragraph of this opinion reads:

"In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and later was found in possession of the gun and several rounds of ammunition. Mesa was convicted of two counts of assault with a firearm, three counts of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang."

Which reminded me of a great line from NYPD Blue, in which Andy Sipowicz tells a suspect, from whom they've just retrieved a murder weapon during a search of his apartment:

"Always a right move tossing the piece, Rick. Though, at the time, it may seem wasteful."

Helpful counsel.

In Re Girardi (9th Cir. - July 13, 2010)

Here's another spanking.

Thomas Girardi and Walter Lack are high-profile California lawyers. Amongst their other legal pursuits, they (and their firms) attempted to enforce a $489 million default judgment allegedly entered by a court in Nicaragua against Dole Food and Shell Chemical based upon the effects of a particular pesticide upon banana plantation workers. The problem, however, was that the default judgment was expressly entered against non-existent entities called "Dole Food Corporation" (not Dole Food Company) and "Shell Oil Company" (not Shell Chemical Company), and the reason the default was entered in the first place was because the Nicaraguan court didn't allow the real companies to prevent the defaults because it wasn't against them.

Which obviously makes it a challenge to thereafter attempt to enforce the foreign judgments in the United States against the real defendants. But Girardi and Lack (and their firms) attempt to get around this problem by using a Spanish "translation" of the judgment that helpfully uses the words "Dole Food Company" and "Shell Oil Company" when they file suit in California. But the district court dismisses the suit, saying these aren't the right entities.

Undeterred, Girardi and Lack appeal, and continue to say that the default judgment's against the right entities, even though it's not. After the defendants file their opposition, the young associate (less than two years out of law school) [!] who's writing the briefs essentially says: "Hey, are you sure about this? Looks to me like we're totally wrong here, and may be sanctioned." But Lack and others direct the thing forward, so the associate submits a reply that reiterates the same story the firms have been repeatedly telling the courts about the judgment being against the right parties.

Thereafter, while the case is pending, in a different suit, the defendants got the original copy of the judgment, which plaintiffs had strenuously resisted turning over. And, once they looked at it, filed a bevy of motions in the Ninth Circuit to dismiss the appeal, to impose sanctions, etc. based on the fact that the judgment was clearly against non-existent entities and contradicted all of the things the plaintiffs had been telling the courts for years.

Finally, a week before oral argument, Howard B. Miller, who's with the Girardi firm and who's to argue the appeal (and who's also the President of the California Bar, I might add), looks at the whole thing and says: "Holy crap." Plaintiffs thus dismiss the appeal.

Which gets 'em out of oral argument, but not the subsequent OSC, investigation, formal reports, etc. etc. After a trial of the OSC, Judge Tashima proposes to sanction the Girardi and Lack firms $390,000. Which they're cool with. But there's also the question of discipline, which is what this morning's opinion is all about.

Ultimately, the Ninth Circuit decides (1) to formally reprimand Thomas Girardi, (2) to suspend Walter Lack and Paul Traina from practice in the Ninth Circuit for six months, and (3) to privately reprimand (and not name) the young associate, primarily because he wrote the memo warning about sanctions (but then was told to go forward). [I say "he" because while I -- like the Ninth Circuit -- won't use his name in print, it's easy to discover.]

Three thoughts. First, having looked at the post-appeal briefs, I might have taken a different approach than plaintiffs did. The first paragraph of their opening brief ends with: "Neither ethical zeal nor moral outrage animates the prosecution: these proceedings are about leverage and dominance over those who would dare to sue Dole and the chemical giants that supplied DBCP [the underlying pesticide]." I have no doubt plaintiffs believe that. But sometimes you have to restrain your own outrage. This is one of those times. Stuff like that doesn't help.

Second, I thought it was interesting that plaintiffs hired Professors Hazard (at Hastings) and Vairo (at Loyola) to opine that they shouldn't be sanctioned, that they both did so, and that Judge Tashima rejected this sage counsel. I'll say no more.

Finally, it's telling that the lawyers are eventually willing to suck up the $390,000 sanction but are fighting the discipline. For most of us, the money would matter more than a suspension or public rebuke, especially since you can just have someone else sign the briefs. That says a lot about the value of publicity in high-profile practices.

The whole thing is fascinating. And there's a lot more here than meets the eye. But I'll leave the matter for now. The affair's nonetheless definitely something worth considering.

Clayworth v. Pfizer (Cal. Supreme Ct. - July 12, 2010)

You don't see many state antitrust decisions, much less on big-ticket items like whether there's a pass-through defense (which we settled in the federal context with Hanover Shoe) and how you allocate damages in indirect purchaser litigation (which we don't allow in federal court pursuant to Illinois Brick). Antitrust was the intellectual property of the 1970s and 80s -- everyone wanted to do it -- so if we were in that era, this case would get major play. But that era is now bygone, albeit allegedly on a comeback. I nonetheless mention the case because for the antitrust players that remain, it's a biggie.

The California Supreme Court unanimously concludes there's no pass-through defense. Which seems entirely right. That's what we do in the federal system, and it's certainly what the pro-antitrust litigation California legislature intended when it passed the relevant amendments. Yes, that rule makes damage assessments somewhat difficult, since we may be punishing a defendant twice: first by allowing direct purchasers to sue, with no pass-on defense, and then also allowing indirect purchasers to sue. But the problem isn't insurmountable, and in any event, that's what the Legislature probably wanted.

So California's a good place to bring state antitrust claims. No shocker there.

Reeves v. MV Transportation (Cal. Ct. App. - July 9, 2010)

Which one of these is the better applicant?

The Job: "National public transportation company, with its corporate offices in Fairfield, California seeks an experienced attorney in traditional labor law and employment litigation to report to the General Counsel/Chief Legal Officer. [¶] We offer an excellent opportunity to join a growing Legal Department and to work with Operations[] and Human Resources as a productive member of the Corporate Office. [¶] . . . [¶] Requirements: Qualified candidates should demonstrate substantial experience representing management in labor/management issues; practice before the NLRB; grievance and arbitration under CBAs; collective bargaining and/or counseling of clients with CBA/labor dispute issues, and proven employment litigation experience, including responding to administrative agency civil rights actions (EEOC, etc.)."

Candidate A: After college, "worked worked four years as a company Human Resources Manager, where among other things she revised and implemented personnel policies and assisted with the negotiation of the company's first union contract. She then went to law school at UC Davis, where she graduated in the top five percent of her class and as a member of the Order of the Coif. She became a member of the New York and California Bar Associations, and clerked three years for a judge of the United States District Court for the Eastern District of California. She joined the law firm of Foley & Lardner in 1997, and was working there as a Senior Counsel in labor and employment litigation when she applied for the position with defendant. In her practice she had been called upon to: “[c]ounsel employers regarding all aspects of labor and employment law”; “[m]anage all phases of labor and employment/commercial litigation in state and federal courts”; “[r]epresent employers before state and federal administrative agencies”; “[r]epresent management in labor grievance and arbitration proceedings”; and “[d]evelop and conduct labor and employment law training for clients.”

Candidate B: Worked "as a Field Attorney for the National Labor Relations Board from 1973 to 1975. He worked for Kaiser Industries and Kaiser Steel Corporation from 1975 to 1985, where among other things he had “”[s]erved as management representative in final stage of grievance procedure,” and “[s]uccessfully represented Company in $18 million arbitration involving issue of Supplemental Unemployment Benefit Plan continuance post-contract expiration.” As an attorney at Sempra Energy, a “[n]ational energy provider with 12,000 employees,” from 1985 to 2002 he had among other things “[g]uided . . . Sempra‟s largest subsidiary, through difficult and contentious collective bargaining negotiations,” “[s]uccessfully defended 'pay-per-route' method of compensation for meter readers against challenges by federal class action and state agency, thereby generating millions in annual savings”; “[o]btained state appellate court decision preempting most of Company's operations from reach of Cal-OSHA”; and “[p]rovided preventative law advice to client on daily and proactive basis, including downsizings” . . . [and then] resumed work as an NLRB Field Attorney in 2003 [to date]."

On just that paper record, which one's better?

Would your opinion change if Candidate B sent his application for the position from his work e-mail address (at the NLRB)? What if Candidate B sent a follow-up e-mail that said: "Frankly, I doubt that any other candidate could be as qualified and experienced for this position as I am. I doubt that any other candidate meets your stated requirements for the position as closely as I do."

Would your opinion change if Candidate A was "recommended by Pat Riley, an attorney [you] knew and respected who was of counsel at the Foley firm. Riley had not worked with Blanchard-Saiger, but he knew that she was applying for defendant‟s position, and he told Biard that she was leaving the firm voluntarily and had not been asked to leave?"

Candidate A, who was 40, was interviewed and hired. Candidate B, who was 56, was not, and sued, claiming age discrimination. The trial court granted summary judgment to defendant, and the Court of Appeal affirms, calling the case "not close."

I agree. There's additional stuff in the opinion beyond mere qualifications, but it supports rather than detracts from summary judgment. An employer could easily conclude that A was better then B, even if (and this is indeed an "if") others might disagree. That B is 56 and A is 40 shouldn't give rise to a lawsuit. Or, if it does, that action should be dismissed on summary judgment. And affirmed.

Toyota Motor Sales v. Tabari (9th Cir. - July 8, 2010)

There's such a thing as being too bright by half.

Toyota wins an injunction in a trademark case against an online auto broker who's representing himself. The case goes up to the Ninth Circuit. The panel consists of Judges Kozinski, Fernandez and Randy Smith. Hardly the intellectual slouches of the federal bench.

So the judges (and their clerks) are going to do some independent work to make sure they get this one right. If only because it's an IP case, and all the clerks want jobs in IP, right? Accordingly, the advantage that Toyota has of opposing a pro se litigant isn't nearly as high on appeal as it was in the district court.

Nor is this a meaningless difference. Which Toyota learns when it discovers, as it did this morning, that the Ninth Circuit reversed the judgment in favor of Toyota and gave the pro se litigant much of what he wanted.

But that's not all. The Ninth Circuit's opinion is written by Chief Judge Kozinski. Which means on some occasions that you get lots of pop culture references, and on other occasions -- as here -- means that you get an opinion that's sometimes fairly harsh. Particularly when Alex thinks you're trying to pull a fast one. So listen to what he says about Toyota's lawyers (from Greines Martin):

"Toyota artfully maneuvered to obscure this factual overlap before trial and again on appeal. Toyota argued in favor of bifurcation on the grounds that even 'a cursory review' would show 'that there are no common issues of fact between any of these original claims and the counterclaims.' This was technically correct: The overlap was between the Tabaris’ defenses and counterclaims, not Toyota’s 'original claims' and the Tabaris’ counterclaims. Toyota evidently hoped that the district court would not notice the careful parsing of its language, and that the Tabaris (who are defending this case pro se) would not call it to the court’s attention.

Toyota is playing the same game on appeal: It states that bifurcation was proper because '[t]here was no factual overlap between Toyota’s trademark claims and Fast Imports’ interference claims.' But Toyota is only telling half the story by talking about only half of the relevant claims; Toyota admitted as much in its motion for summary judgment. Such selective memory exceeds the bounds of zealous advocacy."

Not something you want said about you in a published opinion. Plus, Chief Judge Kozinski doesn't stop with just the slam. It sufficiently matters to him that, in something fairly creative, he actually wants to level the playing field on remand. He concludes the opinion by saying:

"Many of the district court’s errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that the Tabaris appeared pro se. See,

e.g., [the quote I retyped above]. To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis."

Getting slammed is bad enough. Getting your client potentially harmed as a result adds injury to insult.

Judge Fernandez writes a concurring opinion that distances himself from some of the classic Kozinski contents. For example, Judge Fernandez doesn't like the off-the-record assumptions that are sprinkled throughout Judge Kozinski's opinion; e.g., that “[c]onsumers who use the internet for shopping are generally quite sophisticated" or that such people “would arrive at the Tabaris’ site agnostic as to what they would find." He also doesn't like the stuff about Toyota's lawyers, and concludes his brief concurrence by saying:

"Second, I am unable to join the gratuitous slap at counsel for Toyota in the majority opinion, which I see as entirely unnecessary to our decision or even to the upholding of the marmoreal surface of the law.

Finally, I do not join the final textual paragraph, which nudges the district court to find pro bono counsel for the Tabaris, who have neither chosen to retain their own counsel nor demonstrated that they cannot do so. To the extent that the majority sees their activities as especially socially worthy and above reproach, I do not agree."

So Judge Kozinski is harsher than Judge Fernandez, and more willing to use social assumptions, while Judge Fernandez is more willing to use big words (e.g., "marmoreal"). No surprises there.

In short, smart is good. But too smart is not.

U.S. v. Graf (9th Cir. - July 7, 2010)

Here's why you shouldn't talk to the attorney for your employer. At least if you're not totally, one hundred percent squeaky-clean.

Parenthetically, it's also why you shouldn't set up a fraudulent health insurance company. 'Cause 25 years in prison isn't anything to sneeze at.

Though the former's probably more likely to present itself than the latter.

Betz v. Trainer Wortham & Co. (9th Cir. - July 7, 2010)

Judge Gould writes a majority opinion that concludes by saying (in the process of remanding to the district court): "[W]e do not see how it can ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court’s decision and to remand for further proceedings in the light of the pertinent Supreme Court decision."

To which I might respond: "Depends on what you mean by 'incorrect'."

If he means "procedurally improper" or "precluded as a matter of law," I largely agree. Remand is permissible, and no one (including the party opposing remand here) argues otherwise.

But if Judge Gould means something more meaningful -- as in "we do not see how it can ever be wrong" to remand -- then I'll respectfully disagree. Imagine a case in which the district court entered a judgment in favor of X on two independent grounds. The loser appeals, and the Court of Appeals affirms on Ground 1, and does not reach Ground 2. The loser obtains certiorari in the Supreme Court, which reverses Ground 1, and remands to the Court of Appeal for proceedings consistent with its opinion. Neither the Supreme Court nor the Court of Appeals has ever made any decision relevant to Ground 2, which is wholly separate from Ground 1.

In that situation, it'd be "incorrect," in my view, for the Court of Appeal to remand. We already know the district court's decision on that issue. Remand would be both unnecessary and a waste of time. It'd normally be "wrong".

This is a not-unusual situation. You can also add additional (not-unusual) facts, if you'd like, that would make it even more "wrong" to remand. The winning party is elderly, and may not survive the delay in the district court. Or is losing their home and needs a decision quickly. Or the loser wants remand because the district court judge who initially decided the case has left the bench, and the loser thinks her replacement may be more sympathetic.

In short, there are lots of situations in which the Court of Appeals should not remand a case to the district court after a decision and remand by the Supreme Court. So I'd replace the broad and potentially misunderstood word "incorrect" in the opinion with "procedurally barred." A phrase that's simultaneously more accurate but that indicates that Judge Gould's final argument in favor of remand doesn't really say much of anything that anyone disagrees with (though at least doesn't say anything wrong).

Lee v. Lampert (9th Cir. - July 6, 2010)

The state court violated your constitutional rights, you say? It directly caused your conviction, eh? Indeed, you're an innocent person languishing in prison as a direct consequence of these violations of your constitutional rights?

We don't care. After a year, nothing you say matters. We're not giving you habeas relief, even if you convince us that you're actually innocent. Enjoy prison.

That's what the Ninth Circuit holds today. Oh, and drops in a mere one-sentence footnote the holding that a contrary decision would be unconstitutional.

The panel isn't the most pro-defendant in the universe, and consists of Judges O'Scannlain, Randy Smith, and Wolfe (sitting by designation from Iowa). But this is also the rule in many other circuits as well. Though not the rule in others.

The Supreme Court should have taken this up already. For reasons identical to the ones that Judge O'Scannlain explores in the opinion in the intra-circuit context. Yet has failed to do so.

We'll see what happens to this one. Though I think that resolving the circuit split would be more likely had the Ninth Circuit gone the other way.

U.S. v. Johnson (9th Cir. - July 6, 2010)

Welcome back from your July Fourth holiday, Mssrs. Johnson and Heineman. You'll be happy to learn that the Ninth Circuit now has a decision in your appeal.

Though I don't think you'll especially appreciate what Judge Silverman has to say about you. Because he's not exactly pulling any punches:

"Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder. . . . The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right. Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the

district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to

stand trial but not to represent themselves.

The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and

go down in flames if they wished, a right the district court was required to respect. There was no legal or medical basis to foist a lawyer on them against their will."

Not exactly mincing words.

Gilb v. Chiang (Cal. Ct. App. - July 2, 2010)

You can't get more timely than this.

Yesterday, the Governator said that he was going to defer salary payments for state workers and pay them only minimum wage for now. The Controller said he wasn't going to follow this order because (inter alia) it's illegal.

Today, the Court of Appeal issued a published opinion on this exact same issue -- albeit in the context of the identical dispute two years ago -- holding that the Controller has to follow such an order and can't merely disregard it.

Who says opinions are always boring and irrelevant?

In Re Ross (Cal. Ct. App. - July 1, 2010)

"Oh, wait. You in fact cited that case we said you didn't discuss?"

Never mind, then.

Mundy v. Neal (Cal. Ct. App. - June 30, 2010)

You've got to try to settle the dispute before you file a lawsuit if you want attorney's fees. Even if a fee award is mandatory. At least if your lawsuit requests relief that the defendant can voluntarily provide after you file your lawsuit (e.g., constructing that handicapped-accessible space).

So holds the Court of Appeal.

People v. Honan (Cal. Ct. App. - June 29, 2010)

A guy walks into a sauna at a 24-hour fitness where another guy's in there talking on a cell phone. They're both in towels. The guy who walks in takes a seat and, looking and smiling at the guy on the cell phone, drops his towel and starts quasi-masturbating. It's clear the guy's asking the other guy if he wants a little action. But the other guy's not interested.

This happens, I imagine, not infrequently. It's undoubtedly annoying (if you're not interested, anyway), and properly illegal.

So what's the right penalty? The guy's charged and put on three years probation. That seems fine to me. Maybe even a little bit overly harsh for an awkward (but common) way of seeking to have a consensual sexual encounter, but okay. I might give a dude like that a year probation, but the trial court gives him three. I can get behind that.

But here's the rub (if you'll pardon the pun): the guy also gets mandatory lifetime registration as a sex offender. I'm not cool with that. At all.

Dropping your towel to a dude in a sauna you think's interested in a little action isn't the same as flashing a woman or little kid on the street. With the latter, yeah, you're a sex offender, and I'm okay with registration. No so the sauna dude. He's doing something qualitatively different. The mandatory lifetime registration here just seems massive overpunishment to me.

I blame two groups here. First, prosecutors. I'd have charged the guy with lewd conduct, which doesn't carry mandatory lifetime registration. Indeed, that's what the guy was initially charged with. But on the day of trial, the prosecutor added the charge of indecent exposure and thus the mandatory registration punishment. Why? Because the defendant had the audacity to ask for a trial. Apparently what everyone does is to use the greater charge as a "stick" to get you to plead guilty, but if you don't, boom, mandatory lifetime registration.

That's wrong to me. The Larry Craigs of this world have a right to go to trial without the fear of massive overcharging. If the right charge is -- as here -- lewd conduct, that's what should be the charge. Prosecutors who think that their job is to get a guilty plea at all costs or to get the largest penalty available aren't, in my mind, doing their job, and are instead committing injustice.

Second, the Legislature. If a trial court is allowed (as here) to sentence someone to probation, and chooses to do so, I think that's a darn good sign that mandatory lifetime registration may be an unwarranted and excessive penalty. Seems to me that in such cases, the Legislature should allow discretionary lifetime registration, or mandatory registration only during the period of probation and discretionary registration thereafter.

But that'd be "soft on sex offenders," right? God forbid we should have that label attached. A flaming electoral defeat may well follow. Simply not worth the risk to actually do justice.

I'm not necessarily blaming the Court of Appeal here, which is largely stuck with a statute and exercise of executive discretion that's unreviewable. But I'll not leave it entirely out of my rant either. The Court of Appeal repeatedly says that mandatory registration doesn't violate equal protection because a person who engages in indecent exposure, unlike lewd conduct, "is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others."

Not true. Unless by "provoke" you mean to include "arose" and by "aggressive" you mean to include "exciting." Dudes in a sauna like Honan aren't looking to upset people. They just want to give (or get) a blowjob. They're hoping for a consensual encounter, and do what they do in the (potentially mistaken, as here) belief that the other guy's looking for action too. They're not in the market -- as some others are -- for shock. They just want some consensual boy-on-boy sauna love. But the indecent exposure statute criminalizes that because it only requires that the exposure occur in a place "where there are present other persons to be offended." Even if you did not intend offense, but rather intended joyful reciprocity, you're guilty. Which, under the facts of this particular case, is what I'm confident Honan did.

So I don't think the Court of Appeal is entirely blameless in this one as well, and operates under assumptions that are simply factually inaccurate.

Not that I necessarily expect the justices to know the ins and outs of how people proposition others in single-sex saunas. Though it shouldn't be that hard to figure out.

In short, if you'll pardon a final pun, no one comes out especially cleanly here.

Stacey v. Rederiet Otto Danielsen (9th Cir. - June 29, 2010)

I'll be the first to admit that I know very little about maritime law. Sure, I'm in the Ninth Circuit, and yeah, I live near the ocean. But surfboards and kayaks are about as seafaring as I typically get.

What are the rules for recovery in maritime actions when two ships collide? I may read all the published Ninth Circuit opinions, but truthfully, I don't really know.

Which is all just a way of saying that I'm no maritime expert. In the slightest.

Still, I guess I can have a sense of what the right rules should be. Let's take two hypotheticals, for example.

(A) Two ships nearly collide, allegedly due to the negligence of the first. The first ship comes really, really close to the second, but they don't hit. But the near-collision freaks out one of the passengers on the second, who suffers severe emotional distress. Can the passenger sue under maritime law?

(B) Slight variant. Same factual setting as the first. But add that after the first ship narrowly avoids the second, it hits a third ship. The passenger on the first ship didn't see or hear that crash, but did participate in the search for survivors. Can the passenger sue now?

Doctrinally, we're asking what the scope of recovery should be for negligent infliction of emotional distress under maritime law. We're creating federal common law. What should the rule be?

This is what state courts do all the time, but we're slightly less used to it in the federal system. The "right" answer may also require us to parse through Supreme Court and circuit precedent in likely analogous area; i.e., FELA cases. Which I definitely haven't, and you probably haven't either. So without reading those cases, I'm not sure that I am confident of the "correct" way to decide this case.

That admission aside -- and in full recognition of my manifest ignorance of maritime law -- I will say that if we were writing on a blank slate, I think that Judge Hall has a point here. She argues that the plaintiff in Scenario 2, which (as you may have guessed) is not a hypothetical, should not be allowed to recover. Whereas Judge Noonan writes an opinion joined by Judge Thomas that holds that these facts indeed state a cognizable cause of action under federal maritime law, and for that reason reverses the district court.

So, again, I'd have to read the cases. But without doing so, I would say that I might lean in Judge Hall's corner on this one. Even if FELA cases -- which are deliberately broadly remedial -- may do something else.

I'm just a bit worried about potentially expansive maritime liability if NIED allows recovery for near-misses. Does it keep me up at night? Hardly. But it does seem like a more limited theory of recovery might be more on the mark.

At least for someone, like me, who knows utterly nothing. But who occasionally looks out at the ocean.

For whatever that's worth.

People v. Hartsch (Cal. Supreme Ct. - June 28, 2010)

After needlessly killing two people in a car, Cisco Hartsch tells his confederate not to worry about it, because "it's not like they were important, like, if they were bankers or lawyers or anything like that."

Which is good, I guess, if your jury consists entirely of bankers and lawyers. But not so good if it's a different venire. Which will sentence you to death, and the California Supreme Court will affirm.

But at least that comment is better than when you also told him: "the bitch didn't want to die and . . . she had nice tits." That's really not going to help with the jury either.

Greenspan v. LADT (Cal. Ct. App. - June 25, 2010)

An arbitrator is hearing two cases against you. He decides the first one against you. The second one's pending. What should you do?

Here's an example of what you should not do.

Filing a lawsuit against the arbitrator as a means of trying to disqualify him ain't gonna work. Plus, it might make hiim . . . uh, a bit displeased. Sufficiently displeased that a $6 million-plus judgment against you in the second lawsuit won't be at all surprising.

Not going to work.

Word to the wise.

People v. Low & Gastello (Cal. Supreme Ct. - June 24, 2010)

Two opinions from the California Supreme Court (here and here) with the same fact pattern and to the same effect. Defendant gets arrested and brought to a jail. The police ask him: "Do you have any drugs on you? It's a felony to enter a jail with drugs."

The defendants don't want to incriminate themselves, so say either "No" or nothing. Then they're taken into the jail and searched, at which point officers find drugs. So now defendants are charged with the additional (high-penalty) offense of bringing drugs into a jail.

Defendants assert a Fifth Amendment defense and also say it's not like they wanted to go to jail -- they didn't have a choice -- so shouldn't be convicted. But the California Supreme Court unanimously rejects their contentions. "You voluntarily had drugs. Your bad if that means you have to incriminate yourself due to the statute."

I can understand that. Makes sense at some level.

But what's good for X is presumably good for Y. So tell me how this case comes out:

Legislature passes a statute that says "It's hereby a crime to bring blood or hair that's not your own into a jail." Risk of infection or lice; something like that. Police tell defendant accused of assault "Do you have any hair or blood spatters on your clothes from the victim? You gotta tell us before we put you in jail otherwise it's a crime." Presumably the same result, right? Unless the guy incriminates himself, he can be charged.

So why not get at it directly? What about this statute: "The Legislature finds that people who have assaulted someone recently are at a higher danger of assaulting others in jail and need to be segregated. It is hereby illegal to enter a jail if you have recently assaulted someone without disclosing this fact." Defendant's suspected of assault and booked into jail, with the officer saying "Did you commit an assault recently? You have to tell me or it's a crime to go into general population." Ditto for identical statutes that change "assault" to "murder" or "rape" or "theft".

Same as the other statutes, right? Personal status is no different than possessory status, after all. Don't forget that defendants in each scenario "voluntarily" put themselves into the position they're in. So they can't be heard to complain.

Convictions upheld 7-0 in the California Supreme Court, right?

Bomersheim v. Los Angeles Gay and Lesbian Center (Cal. Ct. App. - May 26, 2010)

"Defendant Los Angeles Gay & Lesbian Center (defendant or the Center) provides medical services in Los Angeles County. From January 1999 to March 2004 defendant treated with Bicillin C-R more than 600 patients presenting with confirmed syphilis infection or reported sexual contact with someone who was known or suspected to be infected with syphilis. Bicillin C-R is not recommended for such use. The proper formulation would have been Bicillin L-A. Though both medications contain the same amount of penicillin, Bicillin C-R is a mixture of short- and long-acting penicillin, while Bicillin L-A is composed wholly of long-acting penicillin. Robert Bolan, M.D., the Center's medical director, admitted in deposition that Bicillin C-R 'was incorrect for the condition . . . treated.'"

Oops.

People v. Garcia (Cal. Ct. App. - June 23, 2010)

The day after Jane Doe breaks up with Garcia, Garcia goes to her house and entered through an unlocked front door. Garcia then had "intercourse with her while she was sleeping" and "t[ook] a picture with his phone camera of himself having sex with Doe." When Doe woke up to the sound of Garcia's phone camera and called police, Garcia "admitted he had used poor judgment."

"Poor judgment," eh? You think?

And then some.

Benson v. Superior Court (Cal. Ct. App. - June 22, 2010)

The coroner can keep your heart. At least in California. As long as he or she has a plausible reason to continue to diddle with it.

Thrifty Payless v. Mariners Mile Gateway (Cal. Ct. App. - June 21, 2010)

Here's what happens when you write a bad contract.

Mariners Mile owns a fancy piece of commercial land in Newport Beach. It proposes to build a Rite-Aid store on the property, and enters into a lease with Thrifty for a specified rent. Mariners then starts to build the building. So far so good.

But then Mariners decides that it can probably get more rent from someone else. It asks Rite-Aid to pay more, but Rite-Aid isn't interested in renegotiating a deal the parties had already signed.

But the provisions of the lease provide that if the building hasn't been finished by a certain date, unless it's Rite-Aid's fault, both of the parties have a right to terminate the contract. So Mariners essentially says: "Dude, if you don't pay more than the contract requires, we're not finishing the building by the specified date, at which point we'll cancel the contract." Rite-Aid responds that that'd be a breach of the contract, and calls Mariners' bluff. But it's no bluff. They slow things down, don't build it on time, and then get a different tenant -- Walgreens -- at a higher rent, and terminate the contract. At which point Rite-Aid sues.

But the trial court dismisses the complaint on a nonsuit, and the Court of Appeal affirms. These are sophisticated parties. They wrote a contract that says either side gets to terminate. In such settings, the Court of Appeal held, there's no implied covenant of good faith and fair dealing, since it would conflict with the contract terms, so even if Mariners deliberately slowed down the building so it could terminate, that was its right. And, yes, even if there may be some extrinsic evidence that shows that the parties intended the contract only to allow Rite-Aid to terminate the contract if the lease didn't start on time, that's not what the final version of the contract said. So Rite-Aid can't sue even if it was -- as it assuredly was -- held up and then screwed over.

Watch what you sign.

Murdoch v. Castro (9th Cir. - June 21, 2010)

Here's a blistering Chief Judge Kozinski dissent. From a 6-5 en banc decision (though, more accurately, a 5-1-3-2, but with the top six in favor of one result and the bottom five in favor of the other) in which he's in the minority.

Just to give you a tenor of the thing, here's his conclusion:

"Today we become the only court in the country to hold that a state court may adjudicate a constitutional claim 'on the merits' by overlooking it, and then have its carelessness rewarded with AEDPA’s presumption that its adjudication was good enough for government work. We defer to a decision the state courts never made to reach a result that the state’s highest court disagrees with. We fail to give effect to the plain meaning of the Confrontation Clause—one of the best-established principles of Anglo-American law—on the ground that it isn’t 'clearly established.' Any one of these errors would be remarkable, but their combination produces a truly spectacular miscarriage of justice.

The purpose of AEDPA is to allow state courts to operate in good faith. So, in the ordinary case, when a defendant has an unbiased judge and the state courts take his constitutional claims seriously, we must defer even if we disagree on the merits. But this isn’t an ordinary case. The state trial judge coerced a key witness into testifying and the state appellate judges never addressed the key claim on appeal. Cases like this are the reason federal habeas exists. When a federal constitutional claim falls through the cracks of a state’s criminal justice system, federal courts must be there to catch it. No one else can. Charles Murdoch certainly deserved better from the California courts. Ultimately, though, it is we who surely did let him fall."

Tell us what how you really feel, Alex.

People v. Henry (Cal. Ct. App. - June 21, 2010)

Here's a funny twist: The Court of Appeal reading a concurring opinion that insults the lower courts as a holding that justifies the practice of the lower courts that was insulted.

Lucky United v. Lee (Cal. Ct. App. - May 28, 2010)

Litigation has gone on, up and down the Court of Appeal, since 1999. The latest saga involves many different proceedings that exclusively relate to cost and fee awards, with people fighting over hundreds of dollars, costs, interest, etc. Minor stuff in the scheme of things.

Given all this, I was surprised to see the Court of Appeal award costs on appeal. Can't we just conclude this thing once and for all?

People v. Casas (Cal. Ct. App. - May 25, 2010)

Nothing new from the California Court of Appeal today, and two tiny orders is all we have from the Ninth Circuit. So let's just take a brief diversion to an opinion from last month to remind ourselves what a wonderful thing drugs are:

"Defendant, Jorge Jose Casas, a salesman at a car dealership, used a trade-in vehicle to follow a customer home to collect the down payment, a process referred to as 'chasing.' However, he did not return to the dealership immediately with the down payment or the trade-in vehicle, using the vehicle to drive nearly 400 miles in search of drugs to purchase using the cash portion of the down payment. He was convicted of embezzlement (Pen. Code,1 §§ 503, 508) following a jury trial and sentenced to state prison."

Selling used cars and a drug addiction. An awesome combination.

Leu v. International Boundary Commission (9th Cir. - May 17, 2010)

Here's a modern-day Marbury v. Madison.

Contrast to the original.

Taylor v. Sisto (9th Cir. - May 25, 2010)

I'll be surprised if this one survives.

Yes, it's strange. The California state court judge repeatedly told the jurors to leave all their life experiences in a metaphorical "box" outside the jury room when they were deciding the case. It was the judge's main theme. Some of what was to be left in the "box" were prejudices and the like; that's good. But the judge was clear that he wanted the jury to leave everything in the box; their own beliefs, experiences, reasonability, etc. That goes too far. Plus is just weird.

Weird is one thing. Reversible error is another. Reversible error on habeas review after AEDPA is yet a third. And while I think what the judge here is definitely (1), and at least arguably (2), I don't think it's (3). So on this one I think I'm with Judge Ikuta, who dissents, rather than with Judges Noonan and Berzon.

Plus, I think you should read this one while you can because it's the exact of case that -- while fact-specific and not at all worthy of Supreme Court review -- the Supreme Court sometimes likes to take up from the Ninth Circuit just to spank 'em down. Since I feel very confident that the vote in the Supreme Court on this one would not go the same way.

United States v. O'Donnell (9th Cir. - June 14, 2010)

Okay, so you haven't had an exceptionally wonderful morning. It's Monday, after all. Back to the grind.

But did your Monday morning see the Ninth Circuit reinstate two criminal felony charges against you?

That's how prominent Los Angeles attorney Pierce O'Donnell started his work week.

The district court thought that the relevant statute didn't prohibit O'Donnell from giving $26,000 to the Edwards for President campaign through 13 "straw donors," so dismissed the first two counts of the indictment against O'Donnell. The United States disagreed, and the Ninth Circuit agreed with the United States. So back to defending a couple of federal felony counts for O'Donnell.

Sort of makes your not-so-fun Monday morning pale in comparison, eh?

Blair v. Bethel School District (9th Cir. - June 14, 2010)

Name a situation -- if you can -- in which it's okay for a state actor to retaliate against someone for that person's expression of protected First Amendment speech; in particular, speech that concerns a public issue and does not cause disruption or any other untoward effects.

I'll put the question another way. An individual exercises his First Amendment right to criticize a public figure. He's unpopular as a result.

Various state actors disagree with the individual's views, and as a result, they remove him as the vice-president of a particular Board. They concede that they did so in response to his views and his protected First Amendment statements.

Surely that's a violation of the individual's civil rights, right?

Nope.

I agree. There are some cases when retaliating against someone based upon their protected speech -- or even their political views -- is okay. This is one of them.

U.S. v. Bonds (9th Cir. - June 11, 2010)

Barry Bonds is going to have a much more enjoyable weekend thanks to the Ninth Circuit. Which this morning affirmed a hearsay ruling that's going to make his prosecution for making false statements to the grand jury very, very difficult.

It's hard to prove that your results came back positive when the only dude who can confirm that the samples came from you -- the guy you gave 'em to -- refuses to testify. Sure, as a result, he's in jail on contempt charges. But there are two people who can authenticate those samples, one of 'em who refuses to testify and the other of which (you) has a right not to. The U.S. can't use the testimony of a guy saying that he was told by X that the samples came from Y. That's hearsay. And it can't use the lab test results that have your name on 'em for the same reason.

Judge Bea dissents, but it outvoted by Judges Schroeder and Reinhardt.

Consider this home run number 763 for Bonds. Just don't forget the asterisk.

Shin v. Holder (9th Cir. - June 11, 2010)

Mother's in the United States, and tells her unmarried children (in South Korea) that she's gotten a green card because she was a longtime hairdresser on a U.S. military base. The kids believe her, and accordingly apply to immigrate to the United States. They have to wait seven years for a visa to become available, but eventually, it does, and they immigrate. Welcome!

Mother does indeed have a green card. One problem. Unbeknownst to the kids, she got it from a dude inside the immigration office that was selling them on the side.

So years after the kids immigrate, the U.S. discovers this scheme. People get sent to prison, participants get kicked out, etc.

What about the kids? Everyone agrees they're totally innocent of wrongdoing. But everyone also agrees they were only able to come here in the first place derivatively through Mother, who was here by fraud. However, that was years ago, and the kids have now settled into the United States. What to do with them?

Three options:

(A) Kick 'em out.
(B) Kick 'em out, but give the Attorney General discretion to let 'em stay.
(C) Let 'em stay.

Here's what the Ninth Circuit does.

U.S. v. Villasenor (9th Cir. - June 10, 2010)

A car drives through the Calexico border station. It gets inspected at primary inspection. It get referred to secondary inspection. It gets dog-sniffed. Clean. It leaves.

The car then heads north. The driver stops at a gas station, and talks on his cell phone for ten minutes, and goes to the restroom.

The driver then drives a couple of miles and goes to an AM/PM. He talks on his cell phone for five more minutes. He then drives on.

He drives for another half hour. Now he's in El Centro. He drives to the DMV, and walks in. He does his business there, and then drives off some minutes later.

Shortly after the driver leaves the DMV, he's pulled over by the cops. Sure, the dude's far from the border with Mexico at this point, and has done a plethora of things.

But the Ninth Circuit holds that this is a "extended border" stop. Hence okay.

Remember that the next time you're anywhere near a border. Like, say, if you live and spent nearly every waking hour there.

Munn v. Briggs (Cal. Ct. App. - June 10, 2010)

You can't sue someone for interfering with your expected inheritance under a will. At least in California. At least when you could have challenged the will in probate court (even though, if you did so, the no-contest clause would be a huge problem).

That's the holding today from the Court of Appeal.

People v. Johnson (Cal. Ct. App. - June 9, 2010)

"Defendant, whose nickname was 'Mookie,' and the victim, Nicole Henderson, had grown up in the same neighborhood in Oakland and had been friends since Henderson‘s teenage years in the late 1980‘s. By 2004, they had become romantically involved, and defendant had moved in with Henderson and her two sons about two years before the events in question. The relationship was deteriorating by late 2006 because Henderson could no longer tolerate defendant's drug abuse and his threats against her. She told him that if he could not get off drugs she would leave him. He said if she left, 'somebody was going to die. . . .'

While Henderson was driving defendant to work on December 28, 2006, defendant threatened to shoot her, saying, 'I should blow your mother fuckin‘ head off.' He stretched out his left arm and pointed it at her, and she thought he might have a gun. That night Henderson left the house with her son and went to her mother‘s house to stay, fearing what defendant might do. She knew he had injured a former girlfriend named Amanda, and she had seen him with guns before. The next day Henderson went to court and applied for a restraining order, but one was not issued immediately because of the holidays.

Defendant called Henderson's cell phone several times over the next few days, but she did not answer. She did, however, record the calls, which were played for the jury. Defendant left a message for Henderson on January 1, saying that if she did not apologize to him, he would come to her workplace, would 'check [her] ass there,' and would 'put one in [her].'

After receiving that threat, Henderson returned home, changed the locks on the door, and then spent the night at her cousin's house in Richmond. While she was at her house, Henderson noticed that some of defendant's possessions had been moved out, but some were packed up and still sitting in the living room.

Defendant called Henderson early the next morning and told her he wanted to get the rest of his things out of her house, and that he needed some papers he had left there so he could get into a drug treatment program. She told him she would bring the papers to the childcare center where she worked, and he could pick them up there when she arrived at work at 9:00 a.m.

Defendant did not show up until a little after 5:00 p.m., having called to say he was on his way. Henderson went outside and saw him arrive alone in an unfamiliar car. Defendant parked his car at an odd angle in the daycare parking lot, blocking Henderson‘s car from exiting. Henderson immediately retrieved the documents from her car and gave them to defendant. People were coming and going through the parking lot as parents picked up their children from the childcare center.

Defendant then asked for the return of some of his fishing gear from Henderson‘s car and began carrying his possessions from the trunk of her car to the trunk of his car. When he spent time rooting around in Henderson‘s trunk, trying to find a fishing knife that she told him was not there, Henderson got the feeling defendant was 'stalling.' Throughout this time, he kept repeating, with increasing anger, 'So this is how you want it, huh?' Henderson assured him she was serious about breaking up with him.

Defendant 'kept looking around' during this time, inferably waiting for the parking lot to empty. He was wide-eyed and appeared agitated. By the time he finished rummaging through Henderson‘s trunk, he and Henderson were the only ones left in the parking lot. Finally, defendant returned to the trunk of his car (about ten feet behind where Henderson was standing). Henderson thought he was preparing to leave, and she turned her back to defendant to close the trunk of her own car.

Just then she heard a loud noise that deafened her temporarily. She then heard two or three more shots in rapid succession. She felt the back of her neck get warm, but did not realize she had been shot until she hit the ground, forehead first. She never saw a gun in defendant‘s hand, but she knew he owned two guns. Henderson and every other percipient witness testified there was no one else in the car defendant was driving, no one else in the parking lot, and no one else in close proximity at the time of the shooting. Henderson testified she had no other enemies.

After Henderson collapsed, defendant returned to his car, closed the trunk, and drove off. Another witness said he 'sped off,' 'burning rubber.' While Henderson lay in the parking lot, she told both a coworker and the responding police officer that her boyfriend 'Mookie' had shot her, and she named him at trial as the shooter.

Two shots hit Henderson, one in her arm, and one in her back. The shot to her arm left a ten-inch scar and required surgery in which nerves from her leg were removed and transferred into her arm. Though she had previously been left-handed, that arm was badly mangled after the shooting, forcing her to switch hands to write. She had been in physical therapy ever since, but had not recovered full sensitivity or use of her left arm at the time of trial.

The shot to her back was just inches to the right of her spine, and the doctors initially told her she might be paralyzed from the neck down. Fortunately she was not. The bullet fractured two of the wings of her vertebrae on the left side and one of her left ribs, bruised her left lung, and lodged near her left collarbone. It was surgically removed some three weeks later. . . .

On June 3, 2008, the jury returned guilty verdicts on all charged offenses: attempted first degree murder, firearm assault, injury to a cohabitant, felon in possession of a firearm, criminal threats, and mayhem. It also returned true findings on various firearm and great bodily injury enhancements. After defendant waived jury trial on the prior conviction allegations, the court found true two prior serious felony convictions. . . . On December 5, 2008, defendant was sentenced to 60 years to life in prison."

Yeah, that seems about right to me. Though I might have made it 160 years. Or a neat 200 to call it even.

This is a guy I do not want out.

People v. Wilkinson (Cal. Ct. App. - June 9, 2010)

The first sentence of this opinion begins: "Shelbe Wilkinson was found to be a mentally retarded person pursuant to Welfare and Institutions Code section 6500."

Which somewhat surprised me. Since you don't hear the words "mentally retarded" much in the modern era. Though that's indeed the term the statute uses.

Even here in left-of-center, otherwise-pretty-p.c. California.

POSTSCRIPT - Off topic, I know. But I knew the guy just two years earlier. This doesn't even look like him at the time. At all.

Walgreen v. City and County of San Francisco (Cal. Ct. App. - June 8, 2010)

When was the last time you saw a statute regulating economic transactions struck down on rational basis review?

Yeah. I thought so. Freakishly uncommon.

But check this one out.

Admittedly, the Court of Appeal doesn't strike down the statute here. But it comes darn close, and not only reverses the trial court's dismissal, but its holding and analysis makes it very likely that the statute gets found unconstitutional on remand.

It's a somewhat strange -- and yet understandable -- statute. From San Francisco, which is not surprising given the context. Basically the statute says that retail "pharmacies" can't sell tobacco products. On the laudable ground that we don't want people in the business of health also in the business of unhealth, and want to avoid any perception that places that sell vital drugs endorse the consumption of unhealthy drugs as well.

One can debate the premise, of course. But that's largely for the Legislature to decide. With very, very limited constitutional review on rational basis grounds.

So you'd think the statute would be pretty invulnerable. Except that it does have features that make it difficult to defend. For example, while the entire store that has a pharmacy in it (even if it sells other things) is precluded from selling cigarettes -- e.g., an entire Rite-Aid is covered -- the statute also says that "grocery stores" and "big box" stores are expressly not covered. So your Safeway, which has a pharmacy in it, can sell cigarettes, as can your Costo, but Walgreens can't. Those exceptions are what really trouble the Court of Appeal, and make the statute much more vulnerable to an equal protection challenge. Especially when, as applied, the law basically applies almost exclusively to Walgreens and Rite-Aid, which are owned by the same entity.

But, again, rational basis is a darn lax test. And Walgreens and Rite-Aid are "health" stores in a way that other retail stores aren't. So on rational basis review, I think the statute may have a bit -- albeit perhaps a tiny bit -- more going for it than the Court of Appeal gives it credit.

Though I readily concede that, on the other side, my thoughts on this subject are undoubtedly colored by my personal knowledge of the relevant stores. For example, I often go to my local Rite-Aid (in Ocean Beach) for prescriptions or with my kids with ice cream. That place must do 90% of its business -- no exaggeration -- in alcohol sales. Every single person in line invariably is buying beer or hard liquor, and for the majority, that's it. The place is infamous for having by far the cheapest alcohol in my neighborhood, and its customers are fully aware of that fact. So to the extent the San Francisco ordinance is trying to say "Oh, we're deeply concerned that pharmacies be perceived to have an undiluted connection to heath," well, try telling that to the guy at Rite-Aid buying tequila, two cases of beer, and a box of condoms. I'm not really sure that making the guy walk across the street for cigarettes keeps the pharmacy "pristine".

People v. Weber (Cal. Ct. App. - Jne 7, 2010)

Let's everyone get real.

(1) I agree with Justice Sims that Joseph Weber was competent and validly wanted to represent himself. He's got a right to do that. He clearly wanted to. The fact that Weber kept interrupting the judge during the Faretta admonitions doesn't matter. Weber was fully advised of his rights, which he already knew anyway. So no relief. Right result.

(2) Atmospherically, I have a somewhat different take than the other participants here. We all agree that Weber was one of your classic . . . well, rather than finish the sentence, let me tell you what Weber's most consistent argument was in the trial court. His repeated beef: That the flag in the courtroom had yellow fringe, which Weber wanted removed and claimed made the court into an "admiralty" tribunal with no jurisdiction over a "living" person. Add to that the fact that he thought that signing his name a particular way (first name, comma, last name) made a huge judicial difference and you'll understand the kind of person we're talking about.

Justice Sims thinks that all these tactics "were intentional efforts to thwart the proceedings" and "were designed to derail" it, and the psychologists labeled Weber a "malingerer" trying to get an adverse competency ruling. But my take is slightly different. He's not a malingerer. Nor was he trying to "obstruct" the proceedings by making objections he knew were frivolous. I'm instead pretty sure that he actually believed this stuff: the flag, the last name first, the "living person" stuff . . . all of it. You just sometimes get people who go totally off track when confronted with legal issues and half a sense of what they entail, and that -- when combined with intelligence (to a degree) and a fair amount of intellectual hubris and narcissism -- results in people like Weber. Who really believe the crap they're spewing.

Mind you, that doesn't make them incompetent to stand trial. They intellectually "know" what they're up against as much as (or more than) your usual criminal defendant. Sure, their way of responding to that threat is way miguided. But not in a qualitatively different way than someone who's caught dead to rights but who insists on defending himself by saying "I didn't do it". Bad strategies for both. But bad strategies, and bad decisions, don't make for incompetence.

(3) The above is a slight difference. I do have one that's slightly more important, though again at the margins. The trial judge had to deal with Weber's silly objections for months: to the flag, to the concept that anyone "represented" him (as opposed to "defending" him), etc. And I'm very confident the trial judge was sick of the guy. Understandably.

One of defendant's claims, however, is that the judge made fun of him in front of the jury. During jury selection, after the trial judge told prospective jurors the nature of the charges and said that defendant was representing himself, defendant objected and stated he took offense to that term and stated he was "going to 'defend' myself, not 'represent myself,' sir." This comment was then followed by the trial judge starting to tell prospective jurors about hardship exemptions, at which point a lot of jurors immediately raised their hands, at which point the judge said: "I need to talk you out of it before we get into it. Not yet. I‘ve never seen so many people so eager to get out of here."

To me, the "I need to talk you out of it" and "I've never seen so many people so eager to get out of here" clearly refers to the fact that so many jurors wanted to bag once they got a sense of how nutty the defendant was and that he'd be representing himself. The Court of Appeal says it does "not read this passage as a slap at defendant." But it sort of is.

Admittedly, I wouldn't reverse on this basis, and completely agree with Justice Sims when he says that that "jury selection can be protracted and difficult, and judges commonly inject some levity into such proceedings." So I'm okay with it. But I'd still call the comment what it is.

Ditto for the two other examples defendant cites. At one point, defendant said he was confused, and the trial judge responded "I know you are." Justice Sims defends this comment by saying that "on a cold transcript we do not know the tone with which this comment was delivered," a statement that's technically true. But, given the context, I've got a pretty good sense.

For an example of this context, here's the other example defendant isolates. Defendant asked the prosecution's firearms expert if he had a performance bond. Which, I'm sure, was another of these nutty concepts that if you don't have a "bond" you can't testify. The trial court then said: "Do you have a performance bond? Do you have it?" At which point the defendant repeated: "Do you have a performance bond," at which point the trial judge interjected: "Do you have it in your hand?" When the witness then responded "No," and the defendant said "Funny. I find no humor in that, sir," the trial court said "I do. What does that have to do with anything? Of course he doesn't have a performance bond." Again, perhaps understandable to a degree, since judges are human, but an exchange that gives a definite context to what the trial judge was doing. In a way that's definitely not what we're looking for.

(4) The final reality. Defendant represented himself and made the trial judge angry. Defendant is convicted, of course. (Though he does obtain an acquittal on two ancillary counts.) So now it's time for the sentence. Before trial, the prosecution had offered defendant a misdemeanor plea and probation -- i.e., no jail time -- but defendant turned it down. After the trial, the prosecutor suggested a two year prison term, but also said he'd have no objection to 16 months (a year and a third). By contrast, the probation officer recommended straight probation, which (obviously) the defendant would prefer as well.

So what'd the trial court do? Imposed a sentence higher than anyone thought appropriate. The high term on the main count -- three years -- plus another concurrent two years.

Take that. Hope you enjoyed representing yourself.

And the Court of Appeal affirms.

Lahiri v. Universal Music and Video Dist. Corp. (9th Cir. - June 7, 2010)

A lawyer files a copyright case. Who owns the copyright is governed by the law of India, and the lawyer relies on a foreign law expert. Nonetheless, the district court sanctions the lawyer for over a quarter million dollars.

And the Ninth Circuit affirms, holding -- in a published opinion -- that there was "clear and convincing" evidence of the attorney's subjective bad faith, and that the quarter-million-plus sanction award was not excessive.

A bad Monday morning for Marina Del Rey attorney Anthony Kornarens.

Mickey v. Ayers (9th Cir. - June 7, 2010)

Douglas Mickey is sentenced to death in California even though there's "substantial evidence" in mitigation. The trial court grants a habeas petition with respect to the sentence due to ineffective assistance of counsel, but denies the petition with respect to the guilt phase. The case goes up to the Ninth Circuit.

Which affirms the conviction and reinstates the death penalty.

Another decision by the out-of-control-liberal Ninth Circuit.

Maxwell v. Roe (9th Cir. - May 20, 2010)

You've got to have a competency hearing whenever there's any "bona fide doubt" regarding whether a defendant is competent to stand trial. Here's what happens to Clifton Maxwell:

"At the time of trial, Maxwell had a history of mental illness, frequently refused to take his prescribed antipsychotic medications, was unable to verbally or physically control himself in the courtroom, and exhibited increasingly paranoid and psychotic behavior that impaired his communication with defense counsel and reasoning regarding his defense. Furthermore, during the trial, Maxwell attempted suicide and spent a substantial portion of the trial involuntarily committed to a hospital psychiatric ward. Despite these circumstances, the trial judge never doubted Maxwell’s competence."

Uh oh. That doesn't sound good.

Even if Maxwell was indeed malingering, he's pretty good at it. The suicide attempt alone shows he's at least committed to the charade. And, as you might imagine, the Ninth Circuit holds that, notwithstanding the evidentiary findings below, there was indeed a "bona fide" doubt regarding Maxwell's competence.

So a word to the wise: Give 'em a hearing. Make factual findings. Avoid a retrospective view 11 years later on whether there was a "bona fide doubt" or not.

People v. Chung (Cal. Ct. App. - June 3, 2010)

I'm not overly aggressive when it comes to claiming "exigent circumstances" that allegedly allow a police officer to barge into your home without your consent.

But when the neighbor below you in the condo calls the cops because she hears "the high pitched crying of a dog in pain" in your unit, and when you tell the police that you don't have any dogs but they hear the sound of a dog wimpering, it seems to me like the police can enter. So when they find a dying dog on your patio and a dead dog in your freezer, they get to arrest you, and you can't legitimately complain about the search.

Seems so to the Court of Appeal as well.

Exigent circumstances aren't just for people.

Chude v. Jack-In-The-Box (Cal. Ct. App. - May 27, 2010)

You'd have thought that after all the terrible publicity about the McDonald's "hot coffee" lawsuit that no one would bring a nearly identical action against Jack-in-the-Box.

Nope.

You'll notice, however, the strikingly different result here. This case doesn't even get to trial, and is largely dismissed on a motion for summary judgment.

But not for the reason you might expect.

When Teckla Chude gets her coffee, she's going through the drive-thru. In her uninsured vehicle. So Jack-in-the-Box argues she can't recover any damages for pain and suffering pursuant to Prop. 33 (Section 3333.4 of the Civil Code) since she's uninsured.

Chaude responds that this provision only applies to car accidents and the like. Which I'm sure was indeed its central intent. But Jack-in-the-Box argues that the text of the statute applies to any injury "arising out of the operation and use of a motor vehicle," so it covers her injuries, as she was using her car at the time. And the Court of Appeal agrees, arguing that such a broad interpretation of the statute serves the valuable public policy goal of encouraging drivers to have liability insurance.

I'm of two minds here. On the one hand, I know that when I'm deciding whether or not to have automobile insurance, the very first thing I think about is: "Will I be able to recover for spilled coffee in a drive-thru if I decline to get coverage?" Definitely. Ditto for when I was voting on Prop. 33. Had a clear picture in my mind that this would cover a McDonald's coffee scenario.

On the other hand, this accident occurred inside the vehicle, and Chude's injuries were expressly alleged to be increased because she couldn't get out of the vehicle after the coffee spilled because the drive-thru was too narrow to let her open her door. That seems like it's pretty darn related to actually driving -- or at least "driving through".

But tell me how this case comes out. Shaun drives his car to a park twenty miles from his home. He's inside the vehicle and takes a brief nap. Five minutes later, Shanker hits a golf ball that's wildly errant and hits Shaun in the face. He's uninsured. Can Shaun really not sue Shanker for pain and suffering? The accident "arose out of the operation" of the vehicle, right? After all, he was inside it at the time, and absent driving to the park, he'd never be there. And hosing Shaun would encourage others to buy insurance. Seems like under the Court of Appeal's rationale, no recovery.

But should it really matter if I happen to be inside the car or twenty feet away from it when I'm hit? Or if I'm hit two minutes or two hours after driving? What if I drove ten of the miles and then walked the other ten to the park? It seems absurd if whether I can recover depends upon such practically irrelevant differences. At least to me.

San Joaquin County HRA v. Marcus W. (Cal. Ct. App. - June 2, 2010)

What would you do in this one?

Marcus W. is a sixteen-year old minor who has sickle cell anemia and has had multiple strokes as a result, starting when he was a very young child. The standard treatment for people in his condition is periodic blood transfusions. Marcus' parents, however, are Jehovah's Witnesses who have religious objections to this procedure, and Marcus eventually shares their faith. Doctors try alternative, non-transfusion therapies, but they fail; indeed, Marcus has a stroke during one of these alternative procedures. Still, Marcus and his parents object.

So the County files an application with the juvenile court for continuing blood transfusions. Marcus and his parents object, saying that even though Marcus is a minor, his beliefs should be taken into account -- the "mature minor" doctrine -- and transfusions not ordered. The trial court disagrees. So up to the Court of Appeal it goes.

This is a standard law school tale. It's the usual story about competing religious and secular values as well as their application to minors. A good story, and one worth thinking about. What would you do as the doctor, the parent, the County, or the judge?

But this one also has a twist. Once it goes up, the Court of Appeals notices that the statutory scheme expressly allows emergency petitions like these only in certain specified conditions, none of which are expressly met here. The usual way that these things get filed is because the County files a dependency petition on behalf of the child, which is one of the specified conditions. But not only is this very burdensome, but it's also bad for the parents, since it both stigmatizes them and may result in taking away some additional rights over the child. So for Jehova's Witness cases in which all the County wants is a blood transfusion, for the good of everyone, the County's policy is to just file the request rather than invoking a more expansive procedure.

Marcus and his parents don't object below, but the Court of Appeal raises this issue sua sponte, and holds that the County has to file a dependency petition. So sends it back down.

Think that's the right way to deal with these things?

Does it matter to you analysis that by the time the case actually gets back down to the trial court and resolved there, Marcus will be 18?

Something the opinion doesn't mention, but that's easy to figure out.

Garber v. Superior Court (Cal. Ct. App. - May 13, 2010)

While reading this case, I came up with the following not-so-hypotheticals. Particularly for my gun-loving friends.

Assume that the Supreme Court decides in McDonald that the Second Amendment applies to the states. Consistent with Heller, which of the following would be prohbited by the Second Amendment:

(A) A state flatly prohibits residents from possessing firearms. Garber possesses a gun in his home, allegedly for self-defense. (Easy, huh? Clear Second Amendment violation, right?)

(B) A state prohibits residents from possessing firearms in vehicles. Garber lives in his motor home and possesses a gun therein, allegedly for self-defense. Second Amendment violation?

(C) A state prohibits residents from possessing firearms in vehicles. Garber lives in his motor home and possesses a gun therein, allegedly for self-defense, and drives his son to school (or a park) in his motor home. Second Amendment violation?

(D) Garber goes to play a recreational softball game in a state-sponsored tournament on state property. He openly carries a gun, allegedly for self-defense. The umpire, a state employee, refuses to umpire a game in which one of the participants carries a weapon. Second Amendment violation?

(E) Would your answer to (A) through (D) be any different if the "state" in question was the District of Columbia (so Heller applies directly)?

Consider it a law school exam. You have 60 minutes. Begin.

Haight Ashbury Free Clinics v. Happening House Ventures (Cal. Ct. App. - May 26, 2010)

It's Memorial Day. A holiday for everyone in the judiciary. But not necessarily for those in private practice.

So let's look back in a different realm. One that's closer to what most of us do.

As you can tell even from the caption on the complaint, it ain't the 60s anymore. Even in the Haight.

Nowadays, the "Summer of Love" is more likely to be the "Fall, Winter, Spring and Summer of Litigation."

The times, they are a changin'.

Scalzo v. American Express (Cal. Ct. App. - May 28, 2010)

This seems an easy one to me. Notwithstanding a contrary ruling by the trial court below, which granted the defendant's anti-SLAPP motion and awarded attorney's fees to the moving party.

You can't call American Express to get credit card information on someone else's account. Even if you're in litigation with them. That's not covered by the "litigation privilege".

If you want that stuff, we have a legal way for you to get it. It's called a "subpoena." Not a "telephone."

Carver v. Holder (9th Cir. - May 27, 2010)

You don't see AUSA's, of all people, typically sue for age discrimination. Much less prevail.

Here's the exception.

Mind you, John Carver doesn't like the way the DOJ has calculated his back pay, and on that issue, loses in the Ninth Circuit. But he still gets an order that requires that the DOJ hire him as well as over a quarter million bucks. Plus he gets to keep his buyout money from when he originally left DOJ.

So not bad.