Alvarez v. Brookstone Company (Cal. Ct. App. - Jan. 18, 2012)

Wasted money.

Plaintiff files a putative class action against Brookstone claiming that it illegally recorded ZIP codes on credit card receipts.  Defendant files a demurrer and prevails, with the trial court following a recent Court of Appeal decision (Party City) holding that ZIP codes (unlike telephone numbers) don't entail "personal identification" under the relevant statute.  Plaintiff appeals.

Then, in February 2011, the California Supreme Court decides a case that expressly repudiates Party City and holds that ZIP codes are indeed personal information subject to the statute.  It's a case on all fours with the present appeal.  The California Supreme Court also holds that this is the "only reasonable interpretation" of the statute.

Does Brookstone abandon its appeal in light of this clear authority?  No.  It instead argues that the California Supreme Court's decision should only be given prospective, rather than retrospective, effect.

This argument is silly.  It had a zero percent probability of success.  Decisions are usually given retrospective effect.  And the fact that the Court held that the only reasonable interpretation of the statute was the one that it adopted is the nail in the coffin.  Defendant's argument that they "relied" on Party City is both a nonstarter at a doctrinal level (you can't generally rely on intermediate authority to avoid the retrospective decision of a higher court) as well as on the facts here, since plaintiff filed her complaint before the decision in Party City was issued and accordingly sought relief for conduct that couldn't have been founded upon a decision that had not yet even been rendered.

It's a fee-shifting case.  It's a case (like the vast majority of them) where you also have to pay your own lawyers.  Smart counsel should know not to spend good money after bad.  Here's a perfect example.

Sometimes defeat is inevitable.  When it is, retreat.  Don't waste time and money on arguments that have no chance of success.

U.S. v. Kuok (9th Cir. - Jan. 17, 2012)

Someone buys stuff off eBay.  He's a citizen of Macau.  Some of those items aren't allowed to be exported, because they can be used in defense equipment.  One of the things he tries to buy is from a British company.  The most sensitive thing he tried to buy was from a company in Arizona.  When the authorities searched his eBay account, they discovered he had bought some two-way radios from a seller in Los Angeles.  He also agreed to meet an undercover officer in Panama.  To get there, he changed planes in Atlanta.  Where the authorities arrested him.

Where is venue proper for this offense?  China?  Britain?  Arizona?  Georgia?  Los Angeles?

No, no, you silly.  The answer is obvious.  San Diego.  Which is where the government indeed tries him.

San Diego?!  How was that location at all involved in the offense?  One of the undercover agents who was investigating the defendant operated out of the San Diego ICE offices, and at some point cashed a money order that the defendant had given him in a local bank in San Diego.

Ta-da!  Venue in San Diego.  It matters not that the defendant had no idea whatsoever that he was dealing with an undercover agent from San Diego -- or else he wouldn't have committed the crime with him (duh!) -- or that the only basis for venue there was the government's own conduct.  The Ninth Circuit holds that there "is no such thing as manufactured venue or venue entrapment."  Sure, the venue requirement is in a somewhat important document:  the Constitution.  But that requirement's satisfied by acts unknown to the defendant that are unilaterally performed by the government to advance a criminal prosecution.

I guess an argument could equally be made that venue is proper in a particular district because that's where the government elected to file the indictment.

The defendant here gets his convictions reversed on a couple of different basis, and a new trial is ordered on a couple of the counts because he should have been allowed to present a duress defense to the jury.  But that retrial will happen in San Diego.  Because venue is something we simply don't take very seriously.  At least in criminal cases.

Transport Ins. Co. v. TIG Ins. Co. (Cal. Ct. App. - Jan. 13, 2012)

When you have an appellate case that's resolved on Friday the Thirteenth, it's invariably going to unlucky for one or the other of the participants.  Someone's going to lose.

But losing is one thing.  Getting mocked -- even if alongside a compliment -- is another.

That's what happens to several San Francisco lawyers today.

It's a case about reinsurance.  Thrilling, I know.  Here's Justice Richman's concise description of the case in the introduction:

"Numerous suits were brought against Aerojet, and as early as 1980 it begin submitting claims for property damage to Transport [Insurnace Company], which it denied based on a policy exclusion. . . . A December 1997 decision by the California Supreme Court held that site investigative expenses could be covered, and in late 1999 Transport finalized a settlement with Aerojet, agreeing to pay $26.6 million. Transport claimed that over $12 million of this was the responsibility of the reinsurers, and in December 1999 submitted its billing and final proof of loss to them.

Years went by without resolution, and in 2006 Transport filed separate lawsuits against each reinsurer, which lawsuits were consolidated. Following an 17-day trial, the jury quickly answered “No” to special verdict questions whether the lawsuits were timely filed, and judgment was entered against Transport.
 
Transport appeals, an appeal that has generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply brief. And, Transport tells us, the appeal presents two issues of first impression in California, issues 'that when decided by this court, will have an impact far beyond the confines of the specific dispute in this case. . . . [T]his court's opinion is likely to become the lead authority on issues involving the statute of limitations in reinsurance claims, not only in California, but possibly throughout the nation'—apparently inviting us to publish some lengthy opinion addressing the claimed issues. We decline the invitation, and resolve the appeal under well-settled principles of appellate review, most fundamentally the doctrine of invited error. And we affirm."

Ouch.  Sure, you called their briefs (as well as the other side's) well-written.  But quoting, mockingly, from one of those briefs?  And then affirming?  On the grounds the lawyers delayed and then invited the error?

Double, or even triple, ouch.

P.S. - Don't think that this pattern doesn't continue in the rest of the opinion.  It does.  Just one example:  "In its reply brief, Transport asserts that 'When this court applies the actual invited error doctrine to the actual facts of this case—where it is clear Transport in fact objected to the 'reasonable time' prong (5 AA 1194)—the court will inevitably conclude that Transport's trial counsel did not 'invite' error and has properly preserved the important issues this case presents for appeal.' We conclude otherwise."

U.S. v. Lopez-Alvia (9th Cir. - Jan. 12, 2012)

When it rains, it pours.

The Ninth Circuit publishes as many merits opinions today as it has during the entire rest of 2012.  There's some neat stuff in there as well.

I'll mention one of these opinions for now.  This one.  As to which my reaction is:  "Right on."

It's a fairly stunning case.  Lopez-Alvia is smuggling around 10 pounds of cocaine across the border, and customs officials catch her.  She initially pleads guilty, and has a plea hearing, but then changes her mind and withdraws the plea.  Her defense at trial is duress, claiming that she only smuggled drugs because she was threatened to do so.

No surprises thus far.  Happens every day.

Everything's going fine, but then at trial, the AUSA asks the court to permit him to introduce a statement that Lopez-Alvia made at the plea hearing; in particular, the following:

"COURT: Ms. Lopez, has anybody threatened you?


DEFENDANT: No."
 
The court, over defendant's objection, allows the question.  So the AUSA then asks Lopez-Alvia:
 
"Q: Do you recall testifying under oath on February 24th, 2010, and being asked this question by the Court—by the Magistrate Judge:
 
Ms. Lopez, has anyone threatened you?
 
And you gave—did you give the following answer:
 
No.
 
Did you tell that under oath to Magistrate Judge Guerin?

DEFENDANT: Yes.

Q: Was that a lie?

DEFENDANT: How is that? I don’t understand.

Q: Well, are you—you’ve now admitted that you in fact told the judge that you were not threatened in this case. And I’m asking you was your testimony on February 24th, 2010, while you were under oath, was that a lie? Did you lie to the judge about not being threatened?

DEFENDANT: Yes."
 
Pretty damning, eh?
 
Except for one thing.  Here's what the transcript of the guilty plea hearing actually says:
 
"COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?

DEFENDANT: No.

COURT: Have you ever been treated for a mental condition?

DEFENDANT: No.

COURT: Ms. Lopez, has anyone threatened you or forced you to plead guilty?

DEFENDANT: No.

COURT: Has anyone made any promises to you as to what would happen in your case?

DEFENDANT: No."

In other words, it's crystal clear that Lopez-Alvia was being asked at the plea hearing -- which was entirely about the voluntariness of the plea -- that the question she was asked what whether anyone "threatened you . . . to plead guilty."  It wasn't about the merits.  There wasn't a contradiction at all.

When, at a break, the defense counsel got a copy of the transcript and reviewed it, counsel promptly moved for a mistrial, which the district court granted.  Lopez-Alvia then moved to bar a retrial on double jeopardy grounds, which the district court denied.  The Ninth Circuit affirms.

I agree with that.  The AUSA didn't deliberately cause a mistrial, which is the primary situation in which you'd get a double jeopardy bar.  He was trying to get a conviction.  Improperly, to be sure.  But that doesn't bar a retrial on double jeopardy grounds.

But I also agree not only with Judge Bea's holding, but with the other things he does as well.  First, he mentions the relevant AUSA -- Jerry Alpert -- by name.  Repeatedly.  Second, Judge Bea notes that the district court can bar a retrial based upon its supervisory powers as a sanction for the AUSA's conduct if it finds such a sanction to be appropriate.  Totally right.  Good reminder.  Third, the Ninth Circuit reminds the district court that as an alternative to this "strong medicine" -- or in addition -- it can discipline Mr. Alpert directly.  Yep.  Definitely consider it.

And then Judge Bea ends the opinion with this:

"Third and finally, we note that the district court is not the sole institution with the authority to investigate and discipline prosecutorial misconduct. Within the Department of Justice, the Office of Professional Responsibility (OPR) is required to '[r]eceive, review, investigate and refer for appropriate action allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . litigate.” 28 C.F.R. § 0.39a(a)(1). If a complaint is filed, OPR would therefore be required to review the conduct of the Department attorney. Anyone may file a complaint with the Office by sending a letter to the address listed on OPR’s website at http://www.justice.gov/opr/process.htm (last visited January 4, 2012)."

Through which Judge Bea essentially says:  "I'm a judge.  It's potentially awkward for me (or one of my clerks) to file a formal complaint with the OPR.  But someone should do it.  At which point OPR would be required to investigate.  I'll get you started.  Here's the website address.  Send a one-sentence letter to OPR alongside a copy of my opinion.  One of you will surely do that, right?  Or can you not take a hint?"

So there's your assignment for today.  Help a Ninth Circuit judge out, will ya?

Bylsma v. Burger King (9th Cir. - Jan. 11, 2012)

A lead story on Yahoo! yesterday asserted that it's largely an urban myth that restaurant workers spit in your food.

Which is why we also read the Federal Reporter.  Because today's opinion from the Ninth Circuit proves beyond a shadow of a doubt that sometimes restaurant workers do indeed spit in your food.

Especially if you're a police officer.  Not only did Officer Bylsma observe a white phlegm blob inside his Whopper, which he rightfully took to be a spitwad, but when it was tested for DNA, it matched Gary Herb, who was working at the Burger King at the time.  Busted.  Felony assault.  Ninety days in jail.

Bylsma, by the way, sued Burger King.  Wanting big money.  The Ninth Circuit certifies the case to the Washington Supreme Court.  The question is whether you can recover under a particular Washington statute -- the WPLA, which governs contaminated food -- absent a physical injury.  Does merely viewing a glob of spit, which allegedly causes emotional distress, give rise to a cause of action under the statute?

We'll find out the answer to that question in due course.  But even today, we know the definitive answer to the question:  Do people at fast food restaurants sometimes spit in your food?  Yes.  Yes they do.

"Have it your way" indeed.

People v. Clancey (Cal. Ct. App. - Jan. 10, 2012)

The California Supreme Court should grant review of this case.

At first glance, it might appear to be a purely fact-bound issue.  Did the trial court here merely "indicate a plea," as California law permits, or did it instead engage in impermissible "judicial plea bargaining."  The majority and the dissent have different takes on this issue.

But the conflicting opinions reflect fundamentally divergent views on the proper role of the judiciary in criminal plea agreements.  And give the prevalence of plea bargains in criminal cases, as well as the increasing involvement of the judiciary in this practice, this is a critical issue upon which the California Supreme Court should express an opinion.

Certain facets are common ground.  It's permissible for a trial judge to "indicate" a sentence in a given case.  So, for example, if a trial judge says:  "Just so you know, my current thought is that I'm going to give you five years," that's okay.  That might persuade a defendant to plead guilty (if he's happy with five years).  But that doesn't coerce a plea, so is fine.

On the other hand, a judge can't get down and dirty into the plea negotiation process, by making back and forth offers, pushing one side or the other to compromise, etc.  That both risks coercing a plea as well as may diminish the neutrality of the court as well as harm the trial judge's ability to impartially evaluate any final plea agreement (which the court ultimately has to approve).

The critical question here -- and the one that I believe is centrally presented by the case -- is whether a trial court can make an "indicated sentence" conditional on a guilty plea.  In other words, we all agree that a judge can say "I'm thinking about giving you five years, regardless of whether you're convicted at trial or whether you plead guilty."  But can a judge say "I'm going to give you five years only if you plead guilty; if you go to trial, you take your chances."

The majority says, nope, you can't do that.  Justice Mihara makes a decent argument as to why that should be impermissible.  It sounds somewhat like the type of "bargaining" -- a give-and-take -- that's not allowed.  It might coerce a guilty plea.  You could see why we might well want the judiciary to be more neutral than this; to be an objective, outside observer of the plea bargaining process rather than a participant.  Those are potentially winning arguments, and you could see why a system might well adopt them.

But Judge Lucero doesn't agree.  She's sitting by designation from Santa Clara.  And, perhaps because she's a trial judge, she has a substantially different take.  She says that telling a defendant what you'll do for them  if they plead guilty does not "coerce" a plea, but rather simply gives them a choice.  And doesn't detract from a judge's ability to evaluate a plea because he or she is merely telling the parties in advance a given sentence that she not only would approve, but be willing to enter if the defendant "pleads to the sheet".  It's okay for a defendant to do so, and for a judge to indicate a sentence.  Why can't that indicated sentence be good only if the defendant pleads guilty, rather than forces a trial?

These, too, are decent arguments.  So both sides have tolerable points.  It's a close issue worthy of being taken up at a higher appellate level.

More importantly, this is a critical issue.  As both the majority and the dissent recognize, as caseloads become heavier, more and more courts are adopting formal policies in which the trial court is more actively involved in the negotiation of pleas.  This case is a perfect example.  There's an express "Early Resolution Calendar" in Santa Clara that led to the bargain here.  Judges are trying to settle cases.  If this process is permissible, it validates what these and other courts are doing, and approval would advance these regimes.  By contrast, if this process is impermissible, it's important to put a stop to it now.  Because it's pervasive already and likely to get even more so as the judicial budget crunch continues apace.

Where you come out on this debate largely revolves, in my view, about whether you think it's permissible for judges to take systemic interests into account in resolving plea deals.  One view is that judges should be pure outsiders.  Neutrals.  The federal system largely adopts this approach.  No active involvement in pleas.  We approve plea deals, but don't negotiate them, and simply decide whether they're fair.  Any contract is purely up to the parties to negotiate, with the People representing society, the defendant representing the individual interests, and the judge deciding only fairness.  That's attractive on many different levels.

On the other hand, judges do represent social interests.  In particular, the interest in systemic efficiency; e.g., the need to avoid resource drains and resolve cases without a trial.  Judges protect that interest when they decide whether or not to approve deals.  Why can't they do that in advance?  Even when the People think that a trial best serves the interest of justice, isn't it a permissible role for a neutral judge to say, no, you're undervaluing the benefits of informal resolution.  We should get this case resolved, and just like I'm allowed in sentencing to reduce defendant's sentence for acceptance of responsibility, I can do exactly the same thing in response to his or her decision not to impose the costs of a trial upon society.  And since I can do that at the final stages, I can tell them that in advance.  That's a permissible part of "indicating" a sentence.

Personally, I find both of these competing positions to have a fair degree of merit.  On the one hand, in the area with which I'm personally most familiar (civil cases), I like the federal system better.  No trial judge involvement in settlement negotiations.  No having the judge who's going to hear your summary judgment motion telling you what you should offer.  Too much of a risk that, if you disagree, and refuse to make the suggested offer, the judge might consciously or unconsciously retaliate when deciding the motion.  Similar dynamics may well apply in criminal cases, thereby supporting a similar rule.

But, at the same time, the criminal caseload is crushingly burdensome.  Trial judges can -- and do -- play a role in reducing them.  Sure, some cases might be resolved by a trial judge saying "I'm going to give you five years either way."  But a lot more would be resolved were the trial court permitted to grant the defendant a benefit by pleading to the sheet.  Otherwise why not simply say:  "Thanks, judge.  I'll take the five.  And will play the lottery at trial as well to see if I can get zero."

I can't make the call about which of these positions should be the policy of California.  Nor should a panel on the Court of Appeal.  This is something that should be decided, once and for all, by the California Supreme Court.  Different states go different ways.  Our highest tribunal should decide which of these competing views accurately reflects the policy of our state.

So I don't have unconflicted feelings about the merits.  But I nonetheless strongly believe that this is a case in which review by the California Supreme Court is both warranted and exceptionally important.

U.S. v. Alcala-Sanchez (9th Cir. - Jan. 10, 2012)

This is what happens when you have too many criminals and too few prosecutors.

Sergio Alcala-Sanchez is walking along I-905, about three miles north of the Mexican border.  Border Patrol stops him and determines that he's an unauthorized alien, and has been previously deported from the United States.  So Alcala-Sanchez gets criminally charged.  (Suggestion:  If you're committing a crime by your mere presence in the United States, perhaps walking alongside a heavily-traveled interstate just north of the border is not a preferred way of avoiding detection.)

We've got a "fast track" program down here in San Diego that gives you big benefits if you plead guilty fully and quickly.  We do so because we have so many border crimes that we've got to process these things along or else the judiciary (and U.S. Attorney's Office) will be swamped.  So Alcala-Sanchez pleads guilty and in return gets a decent plea agreement.  In particular, the government promised that they'd only suggest a total offense level of 12, which would result in a guideline range of two to three years in prison.  A decent deal for both sides.

But when the Probation Office calculated an offense level of 20, rather than sticking to the deal, the U.S. Attorney's Office said:  "Okay."  It filed a sentencing memorandum that said, yep, the offense level is 20, which means a range of five to six-and-a-half years (rather than two or three), and recommended the top range of six-and-a-half.

At which point Alcala-Sanchez's lawyer says:  "You breached the agreement!  Withdraw that thing!  You promised me you'd only ask for two or three!"

Then, at the sentencing hearing, the AUSA who negotiated the plea appeared.  She said, essentially, well, yes, I negotiated the plea, and I hear what defendant's saying about us being in breach.  I'm not saying that he's wrong, because I don't want to lie about the deal I struck.  But I wasn't the attorney who submitted the sentencing recommendation -- a different AUSA did that -- and I'm just a junior person, and am totally not "comfortable making a recommendation that is different than what the sentencing assistant was going to recommend."  In short:  Yes, I made that deal, and yes, I feel bound to it, but no way I'm going to challenge in open court what my bosses have apparently done.  You have to take that up with them.

So the district judge sets another hearing for the following week.  At which point the line attorney who negotiated the plea agreement again appears and "apologized profusely" for the fact that the U.S. Attorney recommended a deal different than the plea agreement.  And says that, at this point, the government's willing to let Alcala-Sanchez have the benefit of his deal, and will only recommend two to three years.

But the defendant says:  "Yeah, I hear you, but you still breached of the agreement.  Sure, you're willing to say now that I should only get two to three.  But you've already argued otherwise.  You can't unring the bell.  I negotiated for us having a unified front.  You didn't do that.  Sure, you're now willing to go along with what I've requested.  But you've also made it clear that you're only doing that because I've got you by the short hairs.  So the district court knows how you really feel, and will probably sentence me at this point to the higher number.  I want to withdraw the plea."

At which point the AUSA who submitted the sentencing recommendation says:  This wasn't deliberate.  This was just a mistake.  "This is what happens when these cases get handed from person to person to person, Your Honor."  And the line attorney adds to this by noting the “overwhelming number of cases that [she] personally ha[d].”  Mistakes happen when you're crushed.  Plenty of 'em.  Don't blame us.

The district court listens to all of this, accepts the government's position, holds that they're not in breach, and ultimately accepts the five-to-seven year range initially suggested by the government but departs downward, sentencing the defendant to four years.

Alcala-Sanchez appeals.  The Ninth Circuit reverses.  It's a breach.  You agreed to do one thing.  You did another.  That you then backtracked doesn't mean you didn't breach.  Defendant didn't get the benefit of the bargain or the unified front he requested.  Back to the Southern District.  This time before a different judge.

Which is understandable.  As well as highlights one of the many problems you have when there are too many offenders and too few resources with which to prosecute them.

Just one more thing.  It of course makes sense to remand to a different judge.  But will that really solve the problem?  It's not like the new judge will not know everything that has already transpired.  The initial U.S. Attorney recommendation.  The breach.  The relevant (and changing) positions of the parties.  It's not like there's going to be a "unified front" at this point either.  Since the new district judge can (and surely will) learn everything that the initial judge knew, and will know it instantly upon reading the Ninth Circuit's opinion.  An event that's surely going to happen, right?  What district judge is going to take a remanded case and not read the published appellate opinion that remanded it?

Sure, maybe the new judge is slightly less invested in achieving the same outcome as the initial sentence.  But it hardly puts the defendant back in the position for which he bargained.  It's simply the best we can do.

People v. Pearson (Cal. Supreme Ct. - Jan. 9, 2012)

What?!  A California Supreme Court death penalty opinion that's only three dozen pages long?!  And that unanimously reverses the death sentence?!

Seems like 2012 may well be a freaky year.  Or perhaps this, alongside that whole Mayan thing, is another sign of the coming apocalypse.

So get prepared.  Just in case.

Okay, okay.  Maybe it's just a totally unique case.  After all, the trial court here bounced a juror for cause even though she consistently said -- without any equivocation -- that yes, she could indeed impose the death penalty.  Said it around half a dozen times, and in response to literally hundreds of oral and written questions.  That's pretty unusual.  And indeed requires reversal of the death sentence.

So maybe it's just an anomaly.  Still.  I'm getting ready.  'Cause you never know.

In Re Marriage of Sorge (Cal. Ct. App. - Jan. 5, 2012)

It's tough to figure out who to root for here.

In the red corner, we have Maryanne Sorge.  In the blue corner, we have Joseph Sorge.  Maryanne and Joseph were married, but are now divorced.

Pursuant to their divorce settlement, they split up the money in various ways, and Joseph agreed to pay Maryanne specified child support and alimony.  Then, in 2007, Maryanne moved to modify the deal and get more money.  They had three children, but only one of them is still a minor.  He's 14.

Maryanne has no debt.  She has over $13 million in assets.  Half that amount is liquid.  She's currently getting around $50,000 a year in child support for the one child, and she also gets alimony of about $150,000 a year.  That was the the deal the parties struck.  She wants more:  She now wants over $200,000 a year in child support.  Plus attorney's fees.  Plus sanctions.  Plus pendente lite attorney's fees.  She has remarried, but doesn't want so say how much her new spouse makes.

Not especially sympathetic.  Even down here in San Diego.

But that's equally true -- if not more so -- for Joseph.  He sold his company for $100 million, and says he still has assets worth nearly $70 million, of which over $50 million are "easily" liquid.  So he's got even more than his ex-wife.  But doesn't want to pay more in child support, even after selling his company for boatloads of cash.  His primary argument is that his "income" is negative because he's invested a ton of money in start-up companies that aren't making any money yet, and counts all those investments as "business losses" and thus deductible from his yearly income.  Never mind that he's only spending that money because he expects to make even more money in the future.

But when he makes the money, the kid will no longer be a minor, so it won't be counted as income for purposes of child support.  For now, he wants the losses to be counted so he doesn't have to pay more.

Oh, and he's sort of a jerk in the litigation.  Threatening to sue court-appointed experts and the like.  Both sides have aggressive and incredibly high-priced counsel.  Hence the requests for six-figure sanctions and attorney's fee awards.

I somewhat feel the same way I feel when I watch, say, the New York Giants play the Dallas Cowboys.  As a Washington Redskins fan, I don't really want either team to win.  But someone has to.  That's the nature of the game.  So too here.  With the only difference being that in divorce court, you can't simply watch and root for injuries.

Ultimately, the Court of Appeal largely agrees with Maryanne.  Joseph says his losses have to be counted, but Justice Aaron says -- rightly, in my view -- that you're not allowed to structure your income to hose your child.  Joseph could have invested the assets in regular old stocks or bonds and gotten current income, but decided not to.  That's his call, of course.  But it doesn't reduce his child support liability.  The trial court can properly impute income, as it essentially did here.

Maryanne also wins on the pendente lite order.  She says that she needs $60,000 now -- from Joseph -- in order to pay her attorneys for their response to Joseph's appeal.  Note the not-significant fee she's paying her lawyers for a single brief.  Joseph responds that she hardly needs $60,000 from Joseph now since she's got over $13 million in assets.  Just write 'em a check!  No need for it to come from Joseph at this point.  That's not "need," but rather greed.

This issue is closer, in my view.  But in the end I think that Justice Aaron is correct.  Need is relative, not absolute.  (So too, I might add, is wealth.)  Especially here.  Sure, Maryanne can pay.  But Joseph can pay even more easily.  So the trial court, balancing the equities, can properly tell the former to do so now.  It's not necessary to wait until the end.  It's so much easier for Joseph to write a check than for Maryanne to do so -- even though it's within both of their skill sets -- that it's okay to tell the former to go ahead and do it.

So that's how high-priced divorces sometimes go.  Someone wins.  Someone loses.  And we occasionally get to watch the sausage being made.

U.S. v. Russell (9th Cir. - Jan. 5, 2012)

Sometimes I like to discuss doctrine.  Sometimes I like to mention stories.  And sometimes, as with this case, what I learn from an opinion may have practical significance to the public at large, so I like to share it.

The lesson from today's case -- one that's definitely worth remembering -- is that if an officer asks you for your consent to search you, and you agree to allow him to pat you down, you've thereby agreed to permit him to touch your junk.

That's purportedly why they start the patdown from the ankle up.  So you can alelgedly say "stop" when it gets too personal.  Sure, you might think they're going to stop at the upper thigh.  But when they go higher, and the cop cops a feel, that's tough for you.  You consented.  The best you can do at that point is to say:  "That's not a gun, officer.  Could you please release my privates?"  At which point, verily, the (hopefully non-kung-fu grip) shall be released.

A rule that applies not only in airports, but everywhere.  And a rule that's going to make me think twice about consenting to a patdown.  Even to the nicest of officers.  (Except perhaps really nice-looking ones.)  Because while I don't want to be rude, and while I don't want to frustrate law enforcement, I generally have a greater desire to avoid being groped by strangers.  Including but not limited to strangers with guns.

Judge McKeown expressly doesn't decide whether this holding applies to opposite-gender patdowns.  So keep that in mind.  Though for many (but assuredly not all) men, at least, I imagine that an opposite-gender patdown might be preferable to the ones Judge McKeown does expressly allow.  Homophobia, etc.

So that's a lesson for today.  Be careful when you give consent.  Because, in this area, we're going to give a pretty broad interpretation to degree that consent takes.

Oh, one more thing.  Not something completely relevant to everyone, and not something that you may be able to do much about in any event, but nonetheless interesting.

Here's why the officers decided to track Russell down at his departure gate and pat him down (including his various "packages"):

"Officer Matt Bruch is a Port of Seattle Police Officer assigned as a task force officer with the Drug Enforcement Administration group at the Seattle-Tacoma International Airport. On August 12, 2010, Bruch received a phone call from an Alaska Airlines ticket agent reporting that Russell, described as a black male wearing a leather jacket and a large necklace, had paid cash for a last-minute, one-way ticket to Anchorage, Alaska. The Alaska Airlines agent also reported that Russell was traveling alone and did not check any luggage. In light of these circumstances, Bruch was suspicious that Russell might be a drug courier."

Rank the following facts, in order of importance, that likely led to Bruch's suspicion that Russell might be a drug courier:

(1)  Russell paid cash for a last-minute, one-way ticket to Anchorage, Alaska.
(2)  Russell was traveling alone and did not check any luggage.
(3)  Russell was a black male wearing a leather jacket and a large necklace.

Hmmmm. . . .

Jennifer R. v. Superior Court (Cal. Ct. App. - Jan. 4, 2012)

I guess I can get on board with the California Court of Appeal's finding in this case that the San Diego County Health and Human Services Agency didn't do all it could to help Mother (Jennifer) deal with her methamphetamine problem, and that she was accordingly entitled to a stay in the determination as to whether to take her child (James) away from her permanently.  The Agency did some things, but I agree that they could have done more.

Though here's how Justice Huffman describes Mother:  "The record shows Jennifer was highly motivated to participate in services.  She completed her court-ordered case plan.  Jennifer's visits with James were regular, affectionate, and loving. . . . The social worker acknowledged Jennifer was willing to participate in substance abuse treatment from the beginning of the case."

Pretty glowing, eh?

Just remember that this is the same Jennifer who already lost custody of an older child due to her continuing abuse of methamphetamine.  Then, after getting clean, started using again, and then lost custody of her second child.  Then, after James was born, continued to hang out -- and protect -- the father of James, A.B.  A guy who choked her while she was holding James, causing her to pass out and drop James to the floor face-first.  Who bailed A.B. out of jail after this incident.  Who continued to live with him -- a guy who has been arrested 20 to 30 times, and who's regularly used meth (and continues to do so) for the past thirty three years.  Who, during the pendency of the case, stabbed Jennifer in the neck, nearly severing a major artery, while high on meth, and in response to which Jennifer waited 12 hours to seek medical attention -- and told the social worker that the underwire on her bra might have caused the injury -- in order to avoid getting A.B. in trouble.  Oh, did I mention that both A.B. and Jennifer were high on meth at the time?  They were.  Jennifer also tested positive for meth several months later.  She said it was from "cold medicine".  Right.  The same cold medicine A.B. has been taking for thirty three years.  Sure, Jennifer eventually obtains outpatient substance abuse treatment in April.  But stops going in July -- one month before the court hearing at issue.

This is the Jennifer who's "highly motivated to participate in services"?

It's not that I don't feel sorry for Jennifer.  I do.  She's a serious victim of domestic violence.  She's got major depression issues.  She's got an addiction she's finding difficult or impossible to quit, even after losing two kids and about to lose a third.  She's made incredibly bad choices, especially regarding A.B.  She's never going to stay clean while she's with him, and she can't seem to leave him.

So should we try to help?  Definitely.  Could the Agency have done more?  Probably.  Is it worth it to give her yet another shot?  Maybe.  I get it.  She's definitely far from the worst caregiver you see in these sorts of cases.

But let's not sugarcoat things.  She's far from a model parent.  She's not someone who's consistently done everything we ask her to do and only needs the tiniest of helping hands.  She's got a problem and she's only been sporadic -- not "highly motivated" -- in trying to solve it.  And let's be honest.  She's likely to lose her third child no matter what we do.  Because, in the end, she's likely going to choose the pipe and A.B. over her child.

Lastly, don't forget who we care most about here.  The kid.  James.  He got dropped face-first on the floor.  The back of his head was flat -- a classic symptom of neglect (i.e., you're left on your back so routinely while your parents smoke meth that your skull deforms).  While he was in foster care, he went from the third percentile in weight -- neglect, again -- to the 50th.  He's the one we care most about.  And his life, if we're honest, is a lot better apart from his mother (and A.B.) than with them.

So let's not lose sight of the big picture.  Even if, as here, it may make sense to hold that Jennifer's entitled to another shot.  The same shot she was given -- and ignored -- with her two other kids.

I wish I could be more optimistic.  But I'm not.

Balderas v. Countrywide Bank (9th Cir. - Dec. 29, 2011)

Well, 2012 is off to a somewhat slow start.  Yesterday's a holiday, so nothing then.  Then nothing at all published by the Ninth Circuit today.  And nothing so far from the California appellate courts either.  I assume some jurists and their staff had an awesome New Year's Eve.

But that shall not detain us.  Because 2011 still has some good stuff worth mentioning.

For example, Judge Ikuta writes a neat concurrence in this one.  Which says, in its entirety:

I concur in the opinion except for the penultimate paragraph, in which the majority takes the opportunity to give the Balderases some helpful legal advice. After clarifying that a lender must leave the TILA Notice of Right to Cancel with the borrower in order to “deliver” it (an interpretation with which I agree), the majority worries that the broker may in fact have left the Balderases with two copies of the completed form, as per Exhibit 14 of the complaint. Maj. op. at 21516. To address its concerns, the majority seizes on a footnote in the complaint, where the Balderases asserted that “[b]ecause the signing occurred after midnight, the actual signing date was the 26th of September, 2006.” Although the Balderases’ counsel didn’t make anything of this fact, the majority opines that if the Notice of Right to Cancel was indeed signed on September 26th, but incorrectly dated September 25, the notice itself would violate TILA. See maj. op. at 21516. Regardless whether the majority is better at spotting issues than the Balderases’ attorneys, it is not the job of judges to make up arguments and then purport to rule on them. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Our appearance of neutrality is damaged when we step outside our role and give a helping hand to one of the parties. Accordingly, I decline to participate in that portion of the opinion."

I'll add some subtext to that concurrence, which I think would go as follows:  "I say this in part because I think the Balderases are baldface liars.  They lost their house because they didn't pay their loan, and thereafter made up some absurd claims that are flatly belied by the documents they signed.  Nonetheless, they're willing to lie, and at this stage of the process, we have to believe their lies, and those lies -- if true -- would indeed state a cause of action.  So I join the majority opinion, as is my (and our) duty.  But that doesn't mean I have to like it, and that surely doesn't mean that we should go out of our way to assist the Balderases in obtaining the fruits of their perjury.  Let their lawsuit go forward, with faith that a jury will reject it.  But don't actively help 'em.  No need to make our test of faith harder than it already is."

Which I get.

Hepting v. AT&T (9th Cir. - Dec. 29, 2011)

The merits are interesting, and involve complex constitutional arguments about whether it was permissible for Congress and the Attorney General to immunize communication companies for assisting the United States in its massive eavesdropping (without a warrant) of e-mail and telephone traffic after 9/11.  The Ninth Circuit, like the district court, says "Yes."

But wholly apart from the merits, check out the caption.  Hard to find one that's longer.  Nearly 20 pages.

Lots of effort went into this one.  Lots.

Henry v. Red Hill Evangelical Lutheran Church (Cal. Ct. App. - Dec. 9, 2011)

Sara Henry gets hired to teach preschool kids.  It's at an evangelical Lutheran preschool -- I didn't even know those existed, to be honest -- but she's up for the job.  She does well.  Within six years, she's the director of the program.

She's not an evangelical Lutheran.  She's not even Lutheran.  She's Catholic.  But no biggie.  She's doing her job.

But then her employer learns that she's living with her boyfriend and they're raising a child together.  That's a biggie.  They fire her.

And while she tries, there's nothing she can do about it.

Robinson v. City of Chowchilla (Cal. Ct. App. - Dec. 23 & 27, 2011)

Christmas brings joy -- and disappointment -- to virtually everyone.  But apparently it doesn't necessarily end there.

On the Friday before Christmas, Justice Dawson issued this opinion.  Which affirmed the trial court.  To the chagrin, and yet happiness, of both of the litigants.  Defendants had filed the appeal.  But plaintiff filed a cross-appeal.  Both of them lose their appeal.  Which means that both of them somewhat win.  So no one's Christmas was entirely ruined.

But then, today -- the first business day after Christmas -- Justice Dawson issues this opinion.  Which involves plaintiff's separate appeal of the trial court's denial of his request for attorney's fees.  Surely both opinions were ready before Christmas.  But this one gets out only after the holidays.  And this one does not simply affirm.  Robinson instead obtains a reversal.  Victory!  Sweet victory.  A late Christmas present, to be sure.  But a happy one.

At least for Robinson.  The City of Chowchilla (and their lawyers) taste defeat.  But at least tasted holiday turkey first.

But fear not.  Justice Dawson has a present for them as well.  Robinson wins his appeal.  But that doesn't necessarily means Robinson actually gets a present.  The Court of Appeal simply remands.  Maybe he will be entitled to attorney's fees.  That's for the trial court to decide, in accordance with the Court of Appeal's holding.  And that holding has some portions that are favorable to Robinson, but others that favor the City of Chowchilla.

So, in the end, Justice Dawson spreads out both the rewards as well as the pain.  A little right before the holidays.  A little right after.

Merry Christmas.

Park v. First American Title Co. (Cal. Ct. App. - Dec. 16, 2011)

It's the day after Christmas, so neither the Ninth Circuit nor the California courts cranked anything out today.  But that doesn't mean that working stiffs like us have nothing to learn today.

For example, we can take advantage of Justice Fybel's recent decision to publish this opinion.  Which provides further evidence that title insurance is worth only slightly more than the paper upon which it is printed.

Which probably makes it only slightly less valuable than that ill-fitting sweater you may have received over the holidays.

Kumar v. Yu (Cal. Ct. App. - Dec. 16, 2011)

I'd have thought it was obvious that if a tenant breaches a lease for, say, $1500 a month, and after a month of vacancy, the lessor leases the property to another party for $1600 a month, the lessor's damages are reduced by $100 for each month during the defendant's original lease term.

But apparently that wasn't so clear.  At least until this opinion.

Seems right to me.

Drake v. Obama (9th Cir. - Dec. 22, 2011)

Let me make clear at the outset:  The Complaint here is frivolous.  President Obama was born in the United States.  It's absurd -- frivolous -- to assert otherwise.

So too are many of the legal claims asserted in the litigation.  The FOIA claims are silly.  The quo warranto claim obviously belongs (if anywhere) in a court in D.C.  Plaintiffs' failure to articulate RICO claims -- even though they alleged they had them -- because there are "so many complex rules" about RICO pleadings that are difficult to follow is simply pathetic.

The Ninth Circuit rightly dismisses all of these obviously deficient legal claims.  It also holds that none of the plaintiffs have standing, and hence dismisses their assertion that President Obama was born outside the U.S. and is accordingly ineligible to be President.  The closest they came was when they gathered together some of the minor candidates who ran against President Obama -- e.g., Alan Keyes -- and included these parties as plaintiffs.  That might potentially have worked, notwithstanding the fact that these individuals actually had no chance whatsoever of winning the election even if a lame chicken was running in place of the allegedly ineligible Democratic nominee.  But plaintiffs filed their complaint only after the inauguration.  Which means they lack standing.  File before the inauguration, dudes.  Yeah, you run into potential ripeness problems, but those aren't nearly as severe as the standing problems that you obviously should have foreseen.

There's only one interesting part of the Ninth Circuit's opinion about which I had a question.  Everything else seems obviously right.  Judge Pregerson holds that active military personnel don't have standing, even though they say that they're potentially disciplined if they refuse to follow the orders of a Commander-in-Chief who's ineligible for office.  Judge Pregerson says that they have an alternative:  Obey the orders.  Which seems true, and so I agree that the standing claim here is speculative.  But imagine that one of the plaintiffs had violated an order.  Standing?  I can definitely see an argument.  Then you're not just talking about a generalized issue you have in common with everyone else.

Nonetheless, the Ninth Circuit's clearly right here.  No standing.  So one more frivolous lawsuit bites the dust.

Just in time for the next election.

Retired Employees of Orange County v. County of Orange (9th Cir. - Dec. 19, 2011)

It's a testament to modesty and neutrality when the Ninth Circuit certifies a state law question to the state supreme court.  It's nice when the California Supreme Court answers that question fairly promptly.  And it's wonderful when, in light of the state court's answer, the Ninth Circuit remands the case and tells the district court to act quickly.  Especially when, as here, the case involves retirees, who subsist upon the benefits at issue and some of whom die throughout the pendency of the litigation.

Well done.

Romero-Mendoza v. Holder (9th Cir. - Dec. 19, 2011)

If your biological parents had stayed unmarried, you'd be free to stay in the United States.  Unfortunately for you, at some point after you were born, they got married.  Which means we're deporting you.

So much for family values, eh?

People v. Covarrubias (Cal. Ct. App. - Dec. 20, 2011)

I agree with Justice Aaron.  The decision to admit the testimony of ICE Agent Andrew Flood was erroneous.  But it was also likely harmless.  Covarrubias was pretty clearly guilty of smuggling 193 pounds of marijuana across the border, as his story had a ton of holes and was not particularly credible.  So letting Agent Flood testify about the structure of drug organizations etc. wasn't really the reason Covarrubias was convicted.

Justice Aaron discusses at length why Agent Flood's testimony should have been excluded, but doesn't really focus on the portion of that testimony that I find most problematic.  Covarrubias claimed that he was a "blind mule" -- that he did not know the drugs were in his car -- and Agent Flood testified that blind mules are "fictional" and don't really exist.  Stating that he had never come across anyone in his lengthy experience in law enforcement who was actually a blind mule, even though many of them claimed to be.

That seems obviously improper to me.  Let's just change the facts slightly.  How about this testimony:  "I've been involved in law enforcement for many years.  I've seen hundreds of defendants charged with murder.  Lots of them say that they didn't do it.  But that's simply untrue.  I've never met someone who actually didn't do it.  It's fictional.  They're all guilty."

People v. Lowery (Cal. Ct. App. - Dec. 19, 2011)

Eddie Lowery was in prison for allegedly stealing $250,000 from 88-year old Joseph Gorman, whose mobile home he and his wife occasionally cleaned.  Lowery was acquitted, but during his time in jail, he made a tape-recorded statement in which he told his wife (over the jailhouse phone):  "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman‟s house, maybe this week, and I'm gonna blow his fucken‟ head away."

Lowery says that he wasn't serious; that he was just blowing off steam to his wife, and so this wasn't a true "threat" -- but was instead protected by the First Amendment.  The California Supreme Court takes up the case and narrows the statute so that it's consistent with the First Amendment, and then remands the case to the Court of Appeal to apply the new test.  The issue is whether, on the facts of this case, the statement was really a threat.

The Court of Appeal holds that the trial court erred, but that the error was harmless.  Its core argument is that the evidence was pretty strong that Lowery was making an actual threat because he made these statements over the jailhouse telephone even though he knew -- and was repeatedly advised during the call -- that the call was monitored.

Which struck me as strange.  I'd have thought this argument went the other way.  That you know the authorities are listening seems to me to be evidence that you're not serious when you say you're going to kill someone.  As few people make such actionable threats when they're, say, right in front of a cop.

UMG Recordings v. Shelter Capital Partners (9th Cir. - Dec. 20, 2011)

Veoh lives.

People v. Eubanks (Cal. Supreme Ct. - Dec. 19, 2011)

It's always difficult to figure out who should live and who should die.  I imagine that even God finds the issue not all that easy, so we might rightly expect far-more-imperfect humans to do even worse at this task.

Take this case, for example.  Eubanks murdered multiple people.  There's a big strike in favor of the death penalty, right?  Eubanks is a woman.  Her first name is Susan. Which way (if any) does that cut?

The four people she murdered were her children, ages 14, seven, six and four.  Again:  Which way do those facts cut?  For or against killing her?

After she kills her children, she shoots herself as well.  Doesn't die, though.  Hence the issue.  Should we finish the job?  Does that realization -- that she thinks she deserve to die for what she did, and can't live with it -- mean we should be more or less willing to kill her?

She's clearly troubled.  Obviously.  No one kills their four children who's not.  I need not go into the exhaustive details, but suffice it to say that her past is not good.  At all.  She's got no criminal history whatsoever.  So that cuts against killing her, right?  And there's no real chance she's going to kill in prison, agreed?  Those facts surely cut against the death penalty.  Do we nonetheless off her?

Maybe we can gain insight into her mental state by looking at the numerous notes she leaves for others and she kills her children.  One was to her husband, who was the father of some (but not all) of the children she killed.  It read:  "You betrayed me. You kept a diary, and you and Rene Dodson conspired against me. . . . I've lost everyone I've ever loved. Now it's time for you to do the same."  Adding that he could use any money from her worker's disability case to "bury the kids and find your rainbow. Anna May, I'm sure."  That does not make Eubanks very sympathetic.  But she writes to the father of Brandon, one of the children she killed:  "I know you‟ll hate me forever, but I can't let [Brandon] live without his brothers, so I did what I did," adding that she'd been "strong for 25 years, and I'm tired of all the fight and hurt."  She writes to her niece and sister that "I know what I'm doing is going to hurt you tremendously, but I can't and have no desire to go on," and asks to be buried in the same casket as her four-year old child, Matthew, who was one of the victims.  How do those notes cut?  For or against death?

We choose a sample of the population who feels like showing up for jury duty, death-qualify them, allow both sides numerous peremptory challenges, and let both sides argue.  Then those twelve people decides who lives and who dies.

The jury decides that Susan Eubanks should die.  And the California Supreme Court unanimously affirms.

Plaza Auto Center v. NLRB (9th Cir. - Dec. 19, 2011)

Read the first half-dozen pages of this opinion.  Which will make you appreciate your current job.  No matter how terrible parts of it might be, it'll sound a whole lot better than working for Plaza Auto Center selling used cars in Yuma, Arizona.

The owners there sound like quality folks who treat their employees right.  I'll definitely be going there to buy my next automobile.

(Their motto is apparently "Honesty and Integrity is a MUST in ALL our Deals".  I'm not sure that their treatment of their employees makes me all that confident in the veracity of that claim.)

People v. Valdez (Cal. Ct. App. - Dec. 16, 2011)

You can tell this case took a long time to work its way through the criminal justice system because one of the principal issues on appeal is whether it was permissible to introduce the alleged gang member defendant's MySpace page at his trial.

I'm not thinking that there are many "original O.G.'s" with MySpace pages anymore.

Even fewer after this opinion.  Which says that, yes, your MySpace page can indeed be used against you at trial.

Crockett & Myers Ltd v. Napier, Fitzgerald & Kirby LLP (9th Cir. - Dec. 16, 2011)

You're really going to make us to this ourselves?

One law firm refers a medical malpractice case to another law firm expecting a one-third (or one-half) referral fee, which is the usual practice and/or the practice pursuant to an alleged agreement.  The prosecuting firm then obtains a half-million dollar fee in the case, but doesn't share.  At which point the referring fee sues.

Judge Pro decides that there was no binding agreement (so no 50/50 split), but that the referring firm should receive a quantum meruit recovery, which he sets at $33,000.  Back in 2009, the Ninth Circuit reverses, holding -- in a published opinion -- that, no, $33,000 isn't the right figure, and remanding so the district court can recalculate the award.

The case then goes back to Judge Pro.  Who responds to the Ninth Circuit's holding by recalculating the award and holding that the reasonable value was . . . $33,000.  The same award he had made before.

Yet another appeal to the Ninth Circuit.  Yet another reversal.  This time by a different panel, because the first panel is already tired of the case and doesn't feel like dealing with it anymore.

And which point the Ninth Circuit has three options.  Remand the csae to Judge Pro yet again, hoping that the third time's a charm.  Remand the case to a different judge, but that's somewhat insulting and burdens yet another judge with the dispute.

Or simply resolve the case themselves.  Which is what they do.

Sure, it requires some factual findings, which appellate courts are loathe to do.  But we want this case finished, gosh darn it.  So we're telling you the number.  One hundred thousand dollars.  We're done.  Go away.

Six judges on the Ninth Circuit is the most that we're willing to throw at a $100,000 referral dispute between lawyers.

Sessoms v. Runnels (9th Cir. - Dec. 15, 2011)

Judge Tallman writes a majority opinion.  He admits that it's a "close case," but nonetheless affirms the denial of habeas relief.  Judge Betty Fletcher dissents, arguing that it's not that close of a case, saying that "rarely has there been a case in which our obligation . . . was more clear than in this one."  Judge Tallman then includes some pretty harsh footnotes responding to the dissent, as I discussed when the opinions were first issued.

And the Ninth Circuit takes the case en banc.  Which is not especially surprising.  Nor inconsistent with the proposition that being mean to Judge Betty Fletcher -- indisputably one of the nicest judges on the Ninth Circuit (if not the nicest) -- may retard rather than advance your case.

People v. Murillo (Cal. Ct. App. - Dec. 15, 2011)

It's shocking -- yet perhaps not surprising at all -- how many opinions begin like this one.  In which the statement of facts commences by stating:  "On the day of the assault, Murillo and Vargas consumed about 20 beers each."

Come to think of it, very few positive stories begin with "After drinking around 20 beers, . . . ."

Voit v. Superior Court (Cal. Ct. App. - Dec. 14, 2011)

Clerk's Offices range from the sublime to the incompetent (and/or actively hostile).  As a broad stereotype, the Clerk's Office down in San Diego tends towards the former, and the one in Los Angeles the latter.

There's presumably similarly broad variation throughout the state.  And unless you have familiarity with and exposure to the various offices, you never know what you might find once you're forced to litigate in a new county.

Those attorneys who have ever been forced to confront a less-than-sublime Clerk's Office will appreciate this opinion by Justice Premo.  Which, in three short pages, totally slams the Clerk's Office in Santa Clara County.

Here's a snippet:

"The actions of the court clerk’s office are quite troubling. 'It is difficult enough to practice law without having the clerk’s office as an adversary." [Citation]Whether Voit’s motion has legal merit is a determination to be made by a judge, not the clerk’s office. No statute, rule of court, or case law gives the court clerk’s office the authority to demand that a petitioner cite or quote precedent before his motion will be filed.

If a document is presented to the clerk’s office for filing in a form that complies with the rules of court, the clerk’s office has a ministerial duty to file it. [Citation] Even if the document contains defects, the clerk’s office should file it and notify the party that the defect should be corrected. [Citation] Moreover, there actually is precedent allowing courts to appoint counsel for indigent inmates facing civil suits.  [Citation]  By unilaterally refusing to file Voit’s motion, the clerk’s office prevented the court from applying this precedent, or any other relevant law, to Voit’s particular circumstances. The clerk’s office’s actions violated Voit’s rights under both the federal and state Constitutions to access the courts."

Word.

In Re Kinney (Cal. Ct. App. - Dec. 8, 2011)

Whenever I start thinking fondly of the Bar, along comes a case like this.

It's not that I have a problem -- at all -- with the Court of Appeal.  I don't.  It does exactly what it should.  Good job, Justice Boren.

But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly.

The Bar's great about catching people who bounce trust fund checks.  The remainder of the disciplinary process is far from as efficient.

Kennedy v. Eldridge (Cal. Ct. App. - Dec. 13, 2011)

Can a grandfather represent his son in a child custody case in which the son seeks custody of the infrant grandchild?  What about if the grandfather previously represented the father of the adverse party (the grandchild's mother)?  What about if the grandfather is also a witness, with exhaustive knowledge of the underlying events?

Not surprisingly, the answer is no.

I get where the grandfather is coming from.  He wants to protect his child (and his grandchild).  He knows -- or at least thinks he knows -- that he can do that better than anyone else, and can give his son better representation than anyone else.  And he's certainly right that he can do so at a lower cost than any nonconflicted attorney.  Something that's especially important in family law cases, where the alternative is often no legal representation whatsoever.

But still, the Court of Appeal is right that the trial court acted well within its discretion here.  There are simply too many problems that might result from the representation to say that the trial court erred.

City of San Diego v. Board of Trustees of CSU (Cal. Ct. App. - Dec. 13, 2011)

The City of San Diego suing San Diego State University?!  Really?

Yes indeed.

I couldn't fathom how these two entities could possibly get into a tiff.  Until I read the opinion.  Then it all made sense.

Okay, all of it didn't make sense.  But at least I could fathom it.

The issue's about money.  Not surprisingly.  Basically, SDSU wants to expand, and has plans to do so.  Which, actually, is good.  I was surprised -- favorably -- that in this era of budget cuts and the like, SDSU actually plans on getting larger.  In a big way, even.  It's planning on adding an additional ten thousand students a year within fifteen years.  Which means hiring almost a thousand new faculty members, plus support staff.  Lots of new people in sunny, beautiful San Diego.

Which is a good thing.  Except for one tiny problem.  Traffic.  As a San Diego resident, I can attest that traffic around SDSU is already pretty bad.  Add another ten thousand students and it's going to get even worse.  So to alleviate these problems, as part of the environmental impact report, SDSU identified a lot of traffic improvements that will need to be made.  Bigger streets, better off ramps, etc.  And the EIR also identified the portion of those costs that should fairly be allocated to SDSU and for which it should pay.  Which added up to around $6.5 million.

But SDSU says:  "That's fine.  We'll pay you that money if the Legislature gives it to us.  But we have no way of making them give it to us, so if they don't, that's your problem, not ours."  At which point the City responded:  "No, that's still your problem.  You have to either promise the money or not get your environmental impact report certified."  To which SDSU responds:  "Stick it.  We'll pay if we/the Legislature wants, and won't if we won't."  So the City of San Diego then files a writ.

There are tons of disputes down below.  Eventually, the trial court finds in favor of SDSU, and discharges the writ.  The Court of Appeal reverses.

There are lots of interesting things about Justice McDonald's 83-page opinion, but I'll focus only on two components.

First, Justice McDonald is pretty bold here.  The City's best argument is a statement from the California Supreme Court in Marina, a very similar case arising from the expansion of Cal State Monterey.  In Marina, the California Supreme Court said, essentially, exactly what SDSU asserts here -- that since the Legislature is in control of the money, Cal State only has to ask for the money, and that's sufficient; if they don't get the money, that's the City's problem.  And it was on the basis of that statement that the trial court below dismissed the writ.

But Justice McDonald doesn't agree.  He agrees that the statement was made, of course.  And also agrees that it supports the trial court's ruling.  But he holds that it's dicta.

Which it is.  But the thing is, it's dicta from the California Supreme Court.  When they say jump, the Court of Appeal generally limits its response to an inquiry regarding height.  The Court of Appeal almost invariably follows even dicta.  Pragmatically, if you don't follow what they say, you're often very likely to get reversed.  Moreover, doctrinally, if your duty is to predict what the California Supreme Court would do (which is what California law "is"), what they say is pretty good evidence of what they'd do.

But the Court of Appeal nonetheless doesn't do that here.  Arguing that the relevant sentence was not only dicta, but not really explained either.  And, further, that it's wrong.  Holding -- and here's where Justice McDonald's pretty bold -- that if the California Supreme Court actually thought about the issue at length, they'd realize that what they said was not right, so would change it.  Hence we'll do it for them and not follow that portion of the opinion.

Now, let me be clear:  Justice McDonald may well be right on the merits.  To say it how we'd say it in academia, money is fungible.  SDSU already has lots of it, and they're only going to get more once they add another ten thousand students.  So SDSU will have the money to pay for the improvements even if the Legislature refuses to give them another $6.5 million.  It's only a question of whether they're willing to spend it.  Given those facts, you could see why Justice McDonald might be inclined to hold that it's insufficient to merely say in response to an EIR that you're willing to ask for more money.  At a bare minimum, SDSU will be getting more money from tuition, rent, parking, and the like if the expansion goes forward.  Given those facts, it seems not unreasonable to consider requiring them to allocate some of this money towards paying for the improvements that make the resulting monetary largess by SDSU possible.

But just because Justce McDonald may be correct doesn't make it any less bold (or unusual) for him to refuse to follow dicta from a higher tribunal.  It's still something that you don't usually see.  Especially when, as here, the dicta the Court of Appeal refuses to follow is fairly recent.  Which means that lots of the members of the Court who signed onto that dicta still possess the power to grant review and affirm that, yep, they meant what they said, and do not believe themselves to be as uninformed (or inattentive) as a lower court considered them to be.

So we'll see where it goes from here.

One other point.  Not about the opinion, but rather about the underlying dispute.  At issue here is $6.5 million.  Not a huge amount in the scheme of things, particularly when it concerns governments.  And we're not fighting about whetherlevel of government has to pay -- the Legislature or the City.

Look at how long this lawsuit has gone on (the writ was filed in 2006).  Look at the caption and see how many lawyers are involved at all levels of the dispute, both for the City, for SDSU, and for various governmental amici.  Imagine how much money has been spent on this dispute on both outside and governmental lawyers.  Not to mention how much we've spent on the judicial side.  All to figure out whether the State or City are obligated to pay a relatively trivial sum.  A sum that's quickly getting burnt in attorney's fees in any event.

Assume that governments are populated by entirely reasonable people.  (Counterfactually, I know.)  Wouldn't, in such a world, this lawsuit be settled?  In a heartbeat.

But this one wasn't.  And isn't.  And may well even take up additional time and resources once the case either continues on remand or goes up to the California Supreme Court.  Or both.

Yes, I know, in tight budgetary times, governments feel increasing pressure, and so may fight to reduce their expenditures.  But having everyone spend money on lawyers in order to simply pass the bill to another level of government -- with many of the same taxpayers, no less -- is largely to cut your nose off to spite your face.

It's silly.  It shouldn't happen.  And yet it does.

People v. Guzman (Cal. Ct. App. - Dec. 12, 2011)

I prefer that my doctor not fraudulently bill Medi-Cal.  I even more strongly prefer that, when inserting an IUD, the doctor use an actual FDA-approved IUD, rather than a cheaper non-FDA approved IUD manufactured in Mexico.  Particularly given the whole Dalkon Shield debacle.

The sentence of three years probation and ninety days of community service for doing otherwise seems pretty light.

San Francisco Opera Ass'n v. Flickinger (Cal Ct. App. - Dec. 9, 2011)

Two individuals die and leave the entirety of their assets to the San Francisco Opera.  Around a half million total.  The deaths are in 1996, a lawyer gets appointed for the estates (and paid), and by late 1998/early 1999, everything's finished, and the Opera's supposed to get the money.

But the lawyer never writes a check.  The Opera never follows up.  The money just sits there.  Waiting.  Waiting.  Waiting.  Nothing happens.

Six years later, the Opera looks into old bequests, and follows up.  The attorney says:  "Oh, I'm sure it's been paid out and just not recorded."  A year passes, and the Opera eventually says:  "Are you sure?"

Yet another year passes.  No money.  So the Opera hires a lawyer.  Another year passes.  And finally, in 2009, the lawyer sends a check for most of the money.  At which point the Opera files suit.  Saying that a partial payment in 2009 of money it should have gotten a decade earlier is hardly sufficient.  Wanting the full amount plus interest.

The trial court's willing to make the lawyer give 'em the full amount.  Not surprisingly.  But the lawyer can't find some of the money, which had probably escheated to California because the accounts were inactive for so long.  But that's the lawyer's problem, not the Opera's.  But as for interest -- a pretty penny at this point -- the trial court's not persuaded by the Opera's argument.  Sure, the lawyer messed up.  He was inattentive.  He was lazy.  But so were you.  You didn't effectively follow up on money you knew was due either.  We call that laches.  No interest.

The Court of Appeal affirms.

It's a half million dollars for a civic organization.  With utterly no reason not to distribute it.  You'd think -- and hope -- that everyone would be more organized than what was displayed here.

In Re Quantification Settlement Agreement (Cal. Ct. App. - Dec. 7, 2011)

If you still don't think that water rights are the next looming frontier of California jurisprudence (as well as other southwestern states), read this opinion.

It should change your mind.

This is an important field -- just look at the list of counsel on the appeal -- and is only going to get bigger.

U.S. v. Tapia (9th Cir. - Dec. 8, 2011)

The Ninth Circuit decides a criminal appeal, and Judge Reinhardt is on the panel.  The Supreme Court grants certiorari and unanimously reverses.  The case goes back down to the Ninth, and Judge Reinhardt writes the opinion.

Classic story, right?  So you obviously know what transpired.  That crazy Ninth Circuit panel gave relief to a criminal defendant, the Supreme Court reversed, and now Judge Reinhardt's try to save his leftie opinion by circumventing the Supreme Court's reversal.  Right?

Wrong.

Here, the Ninth Circuit denied relief.  The Supreme Court did indeed unanimously reverse.  Holding that the Ninth Circuit was wrong -- that the district court might well have erred.  And, on remand, Judge Reinhardt (and the rest of the panel) holds that, yep, there was error.  Thanks, Supreme Court.

This will, of course, show up on the statistics as yet another opinion by the Ninth Circuit reversed by the Supreme Court, as further purported proof that the liberal Ninth Circuit is out of step with the rest of the country (as well as the Supreme Court).  The truth, of course, is slightly more complicated.

P.S. - This is the second Tapia case the Ninth Circuit decided this week.  I discussed the earlier one here.

People v. Kovacich (Cal. Ct. App. - Dec. 7, 2011)

This would make a good case for Cold Case Files, or any one of the innumerable other police-murder shows.  Except it's real.  So you'd have to add a tearful confession or something like that.

But it's about a police officer who murdered his wife nearly thirty years ago, in 1982.  Her skull was found in 1995.  He was charged and convicted of murder only within the last couple of years.  Sentenced to 25 years to life in prison.

You can kill your wife.  You can sometimes get away with it.  But even when you think you're in the clear, even when you think you've successfully dumped the body, even when you think they can't convict you on circumstantial evidence, sometimes you're wrong.

As here.

Red Lion Hotels v. MAK, LLC (9th Cir. - Dec. 7, 2011)

It's a pretty big ego stroke when a Ninth Circuit opinion and dissent substantially revolve around what you meant when you wrote your law review article.

That's what Donald Chisum -- whose ego probably doesn't need any additional stroking, since he's already a big stud -- gets out of this opinion.

He writes a law review article in the Washington Law Review back in 1973 (he was a professor at U-Dub Law School at the time) that discussed whether the Washington franchise statute covered franchisees who were located out of state.  The Washington Legislature then amends the statute in 1991 to respond in part to Chisum's article.  And the question in 2011 then becomes what Chisum meant and what the Legislature did.

People sometimes say law review articles don't matter.  This case proves that they clearly do.  As long as they're written in the early 70s.

Kwong v. Holder (9th Cir. - Dec. 7, 2011)

How long does it take to write a unanimous, eleven-page panel opinion denying a petition for review in an immigration case.

Seven years.

Okay, so that's a slight exaggeration.  The petition was indeed filed in early 2004.  But it didn't get argued until early 2008.  So that's four years right there.  So one might say that it takes only three to four years for the panel to write those ten pages.

Though, even then, four years to get a case to oral argument seems mighty long itself.  Wholly apart from the three-plus years it then takes to write an opinion.

What took so long?  Looking at the docket, I can't explain the first four years.  Sure, there are the usual requests for extension of time.  Because goodness knows you can't prepare a brief in less than six months, right?  But the case is fully briefed in 2005.  And gets set for oral argument in 2006.  At which point Kwong asks to delay the oral argument, a request that's granted, and it takes another two years before the new oral argument date transpires.  Not exactly a rush to justice.

Then, as the panel opinion itself explains, the panel twice vacates the submission pending two different en banc matters.  There's your additional nearly-four years.  That eventually results in an opinion issued on the seventieth anniversary of Pearl Harbor.

The result.  Unanimously affirmed.

So Kwong's going to be deported.  But fear not.  It may have taken seven years to reject his Ninth Circuit appeal.  But the Ninth Circuit gave him a stay during this entire period.  So he's had seven additional years in the United States.  For a total of fourteen years since his 1997 conviction for an aggravated felony.

Not exactly speedy, eh?

Roberts v. El Cajon Motors (Cal. Ct. App. - Nov. 8, 2011)

Today's been a busy day.  But fortunately there's something easy, right in my back yard.  Because here, plaintiff was right.  Judge Prager (down here in San Diego) was right.  Justice Benke is right.

It's an easy case.

U.S. v. Grant (9th Cir. - Dec. 5, 2011)

A guy walks into a sushi bar . . . .

But the guy walking in is Grant's parole officer.  And Grant's not allowed to drink alcohol, but has ordered a large glass of sake.

So this joke ends with Grant getting two years in federal prison.

Grant ultimately gets a reversal from the Ninth Circuit, which was required due to the Supreme Court's recent decision in Tapia.  Plus he got bail on appeal, so things are breaking (reasonably) well for Mr. Grant.  Assuming he continues to avoid that particular sushi bar and his penchant for rule-breaking.

Plus, in footnote 35, he gets to see a quote from James Q. Wilson.  Which is a first for the Ninth Circuit, and only the third time that any federal appellate court has ever done so.  The last two times being over 15 years ago.

Which may tell you a little bit about the state of contemporary criminal law jurisprudence.

Joffe v. City of Huntington Park (Cal. Ct. App. - Dec. 2, 2011)

Totally right.

That's not inverse condemnation.  I would have been severely bummed if the Court of Appeal had held otherwise.

Glad they decided to publish it.

People v. Rivera (Cal. Ct. App. - Nov. 30, 2011)

Defendant admits he killed the victim, but in his first-degree murder trial, denies premeditation, and instead claims that he was in a rage.  There's no dispute about the killing.  But the prosecutor nonetheless asks the defendant at trial to reenact the murder for the jury by using the prosecutor as the victim -- essentially, to strangle the prosecutor like defendant admits he stranged the victim, Ted Neff.

The trial court says, no, we're not going to have the defendant pretend to strangle the prosecutor in front of the jury.  That's just silly (and prejudicial).  Go get a mannequin.  So the prosecutor does that.  And returns with a female mannequin wearing a blue dress, pink ribbon, and hat.  (The victim was an adult male.)  The defense objects to the "theatrics" of a simulated killing in front of the jury, especially since the killing is not disputed and the only issue at trial is whether defendant was in a rage or did it in cold blood.  To which the trial court responds by telling the prosecutor to take the dress and hat off the mannequin.

So the defendant is then compelled to strangle a naked female mannequin at his first-degree murder trial while the jury watches, according to the direction of the prosecutor, who tells him how to turn the dummy, where to put his hands, how to strangle her, etc.

The Court of Appeal doesn't exactly approve of this decision.  Here's what Justice Dondero (and the rest of the panel) has to say about it:

The minimal probative value of the evidence was diminished further by the absence of similarity of both the setting and circumstances of the demonstration. A courtroom is hardly the appropriate venue to attempt to recreate and prove the manner of commission of a murder by strangulation. The setting was entirely dissimilar, lacking in the dimensions, configuration and the furniture that was present in the victim‟s home. Further, the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor. The acts of the victim were not reproduced. The emotion associated with the strangling, which was an integral part of the defense, was entirely missing from the demonstration. But for the seriousness of the charge, the courtroom events were suggestive of a slapstick parody.

The Court of Appeal ultimately holds the error harmless, which seems right.  But that's no excuse for throttling an innocent dummy at trial.

One more thing.  The victim met the defendant through a Craigslist advertisement for sex, and defendant said in his ads that he'd meet people at their hotel room and provide a "session" for them for $140 (which is how the police picked him up).  Oh, and a few hours after defendant killed the victim, he was back online soliciting a female customer to join him and his wife in a threesome.

In short:  Find sex in places other than Craigslist.

Flynn v. Holder (9th Cir. - Dec. 1, 2011)

When I first started reading this case, I thought:  "Oh my God.  You're kidding me.  The Ninth Circuit's really going to do this?!"

I mean, I get it.  Lots of libertarian conservatives have jumped on the "You should be able to sell your organs" bandwagon.  It's consistent with at least one version of economic liberty and bodily integrity.  Plus there's an undeniable need out there.  People are dying.  Every single day.  Paying money for organs would presumably save these lives and benefit everyone.  So why shouldn't we allow such sales?

But just because you may have a potentially persuasive policy argument is one thing.  It doesn't mean you have a valid constitutional claim.  And, in this lawsuit, the plaintiffs are bringing an equal protection challenge to a federal statute that bars compensation for bone marrow donations.  That's rational basis review.  Totally lax.  Just gotta have a possible reason, and surely at least one (and probably more) exists.  The district court dismissed the claim on a 12(b)(6) motion.

But then I start reading Judge Kleinfeld's opinion.  And even though he's just "reciting" the facts, he's clearly reacting favorably to the plaintiffs' claim.  Saying all this stuff about the procedure and the need that's exactly what you'd write if you were going to reverse the district court's dismissal.

Sure, he's got his strong libertarian bent, and I'm sure his clerks do as well.  But surely he can't be ready to hold that there's an equal protection violation, right?!  That'd be radical.  Way radical.  I'm not saying it'd be indisputably wrong.  But wow.  A freaky holding.

So after two or three pages, I can't wait any longer.  Stop taunting me.  I do what I almost never do.  I flip to the end of the opinion to see how it comes out.  REVERSED.

Holy hand grenades!  Wow.  This is going to be revolutionary.  We're going to hold that there's potentially a constitutional right to get paid for your organs.  Amazing.

Will the Supreme Court really let this stand?  It seems crazy.  But there are libertarians there too.  And the liberals might realize, and be sympathetic with, the desperate need.  This will be fascinating.

So then I go back and keep reading.  And one of the things I learn is that bone marrow donation is not, at least according to Judge Kleinfeld, what I think it is.  I think of it -- and probably most people think of it -- as an incredibly painful process where they stick a huge needle into your spine.  That's indeed one way of doing it, and the traditional way.

But apparently there's a new way as well.  That basically just involves giving blood.  They spin the blood through a thingy and collect what you need.

Which I did not know.  Moreover, as a practical matter, it makes a huge difference to me.  Because even before I got to the "legal" part of the opinion, I had the following thought:  "I'm going to do this."  I should probably be willing to get a spinal tap to potentially save someone's life, but I'm flawed, so I don't.  I also don't give regular blood nearly as much as I should, on the (again, flawed) theory that there's not actually a monster shortage and my blood's not essential.

But even I can't rationalize not giving blood when I may be the only (or nearly only) person who might be a match for someone.  Having to sit in a chair for a couple hours isn't too much to ask to save a life.  So Judge Kleinfeld's opinion (and the underlying lawsuit) at least did this:  It convinced me that this is a procedure that I should do.  Maybe others who read the opinion will have the same reaction.  I certainly hope so.

But that's a practical and personal conclusion, not a legal one.  Moreover, I'm willing to do this wholly absent any payment.  That doesn't mean that I have a constitutional right to be paid for it.  And that's plaintiffs' claim.

Judge Kleinfeld eventually gets to the merits.  Starting with where I would have thought, before reading the opinion, he'd be forced to go.  He initially concludes that, as to the "spinal tap" way of getting blood marrow, there's indeed a rational basis.  That's painful.  That's grabbing an "organ".  Maybe one Congress might not think that's a big deal, and would allow you to be paid for it.  But our Congress thought that mattered, and a rational argument can be made in that regard.  Ergo it satisfies the Equal Protection Clause.

But you can also see where Judge Kleinfeld's going with this.  He just told you that one way -- the traditional way -- of grabbing blood marrow is okay under the Equal Protection Clause.  That's foreshadowing.  As one is reading along, you can already see the argument.  If it's true (as we must assume on a 12b6 motion) that it is possible to grab blood marrow just by taking blood, how's that any different than -- well -- giving blood, for which you can be paid.  Or giving sperm, or an egg; for which, again, you can be "compensated."  That's an equal protection argument with teeth.  Or at least potential teeth; once again, the test here is very lax, and we are loathe to strike down (especially) Congressional statutes for lack of a rational basis.

But it nonetheless looks like Judge Kleinfeld's indeed going to so hold.  Because remember that we know how the case is coming out.  Reversed.

So I'm still enthralled with the decision, and while the process has been a little different than I first expected when I started reading the opinion, it's still a fascinating outcome.

But then Judge Kleinfeld throws a curve.

He does indeed reinstate the complaint.  On the merits; not on some procedural technicality or the like.  But at the end of the opinion, he decides not to reach the equal protection argument as applied to the blood-like manner of collection.  Because while he's exclusively talked about the constitutional issue thus far, in the end, he interprets the federal statute to not cover bone marrow procedures if they just involve the new blood-collecting process.  Ergo making resolution of the constitutional claim unnecessary, and also reaching the same result.  Donors under that process can be paid.  (And, to assist the plaintiffs, also awards 'em costs, which in this case likely means attorney's fees.  So everyone gets paid.)

This statutory interpretation is surely defensible.  Less controversial, I might add, than reaching this same result on constitutional grounds.  And with the same practical consequences.  You can indeed sell your bone marrow.  But only if you can do it through the less painful means.  Which is probably what you would prefer anyway.

That's a change in the law.  You used to be not able to do this.  Now you can.  So feel free.  Whether for money or not.

Judge Kleinfeld convinces me it's a good idea.