San Diego USD v. Commission on Professional Competence (Cal. Ct. App. - March 26, 2013)

This is a hard case.  Really, really hard.

Thad Jesperson teaches second- and third-grade students.  Opinions apparently vary widely as to whether he's a really good or really bad teacher.

Though that's all beside the point -- or at least ancillary to it -- once he's accused of inappropriately touching his students.  He says he only touches them in "good" ways.  And I'm convinced that there are indeed "good" ways to touch a student, and definitely bad -- incredibly bad -- ways as well.

Once I read about Jesperson's criminal trials, I lost all sympathy for the guy.  At his first trial the jury convicts him of lewd conduct with Emily A. but deadlocks on the other charges.  At his second trial the jury acquits him of charges against three other girls, but convicts him on one count involving Jaicee S.  At his third trial he gets convicted on all counts involving three different girls.  So he's sentenced to seven concurrent 15-to-life sentences.

Seems pretty straightforward, eh?  The dude's scum.

This conclusion is only weakened slightly by knowing that the trial judge in his second trial granted him a new trial on the one count for which he was convicted.  But it's weakened much more by the fact that in 2007, all of his convictions get reversed on appeal.  For jury bias was well as ineffective assistance of counsel.

But he was still originally convicted, right?  So the dude's "probably" guilty?

Then the San Diego District Attorney decides not to even attempt to retry Jesperson.

What to make of that?  If he was really guilty, wouldn't they have given it another shot?  This is a guy, after all, who we wanted to put in jail forever.  It's not like there's political reluctance to retry alleged child molesters.  What conclusions, if any, should we/I draw from the failure to retry?  Is there a reason to put aside my initial thoughts into this guy's character?

At least as involves the criminal charges, however, it's over.  He's a free man.

But does he get to teach again?

Because, you see, if he didn't in fact inappropriately touch his students, then he's entitled to retain his job with the San Diego Unified School District.  But San Diego wants to fire him.  So they initiate disciplinary proceedings.  Which is entirely proper, since the standard of proof at these things are different than the beyond-a-reasonable-doubt standard in a criminal trial.

What happens next?

You should read the opinion in its entirety for the various testimony presented at the administrative hearing.  This is not a classic "she-said-he-molested-me-and-he-denied-it" kind of trial.  The stuff is generally more subtle.  There's a teacher's aide there every day (Connie Murphy) whose testimony is strongly on the teacher's side.  In the end, the Commission unanimously decides in Jesperson's favor, and reinstates him.

At which point San Diego files a writ petition, which the trial court grants.  Finding that Jesperson did, in fact, inappropriately touch Emily S., and stating that the Commission's determination to the contrary (it found Jesperson more credible than Emily) flew in the face of the trial court's "three years of experience as a judge sitting in juvenile court" and evaluating the testimony of child witnesses.

At which point Jesperson appeals.

Now I'm torn.  Seriously, seriously torn.

One the one hand, there are criminal charges.  Most people think that where there's smoke, there's fire.  Especially when you're willing to burn a guy for 15 to life.  On the other hand, these charges were eventually dismissed and/or overturned.  But they were still there, right?

Plus, you've got a Commission that unanimously thinks that Jesperson should remain a teacher.  That's pretty big, no?  There's no way they're letting him back in the classroom if they are even suspicious that he might have molested kids, right?  They must clearly think that what transpired is witch-hunt-like and/or an overreaction.  Because people on the Commission are, I'm confident, not merely bureaucrats, but are rather people.  And people care when kids get molested.  So surely they had every incentive to bounce Jesperson if they thought he was a scumbag, and didn't.  That's got to say something.  Especially when they do it unanimously.

All that makes sense to me.  But let me ask the hardest question:

Do I want Jesperson teaching my own kids?

Yep, he could be great.  Yep, he could be the kind of caring, compassionate teacher who really gets to know his students.  Who cares enough to bend down and tie their shoes (as he indisputably does) at recess.  Who pats them on the back -- both figuratively and literally -- when they need it.  Who's the type of teacher you really, really want your children to have.

Or he could be a monster.

It's a freakishly hard case.

Ultimately the Court of Appeal decides that the Commission rightly gets to make certain credibility calls, and so reverses the trial court.  Again, as a purely legal matter, this seems right to me.

But the harder -- so much harder -- question is whether I'm happy that Jesperson is entitled to get back teaching at San Diego Unified.  On the one hand, if he's in fact innocent, this is a victory of immense proportions.  Justice prevailing over incredible -- truly incredible -- odds.

The reality, however, is that we'll never know.  We'll never know for sure.  And even if you think you're right, there will always be at least a smidgen of doubt.  About something you couldn't care more:  the welfare of your children.

So, so hard to figure out whether to cheer, scream or shrug one's shoulders.

U.S. v. Ruiz (9th Cir. - March 26, 2013)

Judge Paez affirms a conviction but doesn't do so with massive enthusiasm.  Judge Pregerson does the same thing, but is even less enthusiastic.

People v. Vallejo (Cal. Ct. App. - March 21, 2013)

It's not improper for a prosecutor to assert (in closing argument and elsewhere) that the defendant "brought a gun to a fistfight" when the defendant essentially did, in fact, bring a gun to a fistfight.

So holds the Court of Appeal.

Referencing famous movie lines: Not just for outside the courtroom.

People v. Mecano (Cal. Ct. App. - March 22, 2013)

Based upon what the jury found and the facts of this opinion, it seems like LAPD officer Russell Mecano is truly a sleazeball.  He abused his position to coerce powerless teenagers to sleep with him.  Yuk.

Read the opinion for more disgusting details.  Fear not:  Mecano's (presumably) no longer with the LAPD, since he's going to spend four years in prison.

Justice Aldrich's opinion contains this line regarding one of the victims:  "Crying, she called Ben and told him that she'd let Mecano do things to her, and she felt dirty.  Alex [the victim] called 411 and told a Pasadena police officer that she just had an 'incident' with a police officer, 'Rusty,' in which he let her 'off,' and 'bribed me with sex.'"

Are we sure that Alex really told all this to the 411 operator, not 911?  I mean, yes, it's information, and maybe it was Alex (not Justice Aldrich) who was confused.  But if it's a typo, I'd fix it, and if it's not, I might drop a footnote.

People v. Pearson (Cal. Supreme Ct. - March 21, 2013)

This is why you take seriously a person's threats -- at a workplace or anywhere else -- to go on a killing spree.  Because sometimes they're not kidding.

More accurately, they may be "joking" at the time, but the statement may reflect an underlying desire or intent.  Particularly when, as here, the statement is repeatedly made.

Pearson gets fired for telling his coworkers that he might go postal.  Immediately upon being told that he was fired, he indeed goes postal.

He's sentenced to death, by the way.  A decision that's unanimously affirmed in an 109-page opinion.

Columbia Pictures v. Fung (9th Cir. - March 21, 2013)

It's a good day for content providers (e.g., movie studios) in the Ninth Circuit.  It's a bad day for anyone who likes to (illegally) download movies for free.

Here's a lengthy opinion by Judge Berzon explaining exactly how torrent sites -- e.g., isohunt.com -- work.  As well as why many of them will be shut down in the near future.

Round 16 of 184 in the neverending battle over copyrights and content control.

U.S. v. Guerrero (9th Cir. - March 20, 2013)

When you go to jail to post bail for your wife, who was busted the night before for possession of heroin with intent to distribute, it's probably best not to bring the entire $11,500 in cash.  Because the authorities might have a sneaking suspicion that maybe -- just maybe -- you got the money from, oh, I don't know, say, dealing drugs.

But if you do decide that cash is your best option, let me give one piece of advice.  Leave your remaining heroin at home.  Do not keep it in the trunk of your car.  Because they may well start to investigate your large deposit of money, search you, and discover your stash.

Like here.

There's an arrest.  There's forfeiture.  There's a whole heap of trouble.

All of which could have been avoided if Guerrero had just left the smack and cash at home.

County of Sonoma v. FHFA (9th Cir. - March 19, 2013)

I've seen a lot of acronyms in my time.  This opnion may approach the theoretical maximum.

Here's a list of acronyms.  All of them are used in Judge Murguia's opinion except one, which I made up.  Some of them are pretty common, but see if you can guess which acronym is fictional:

FHFA, PACE, APA, HERA, NAC, APA, TILA, FDIC, and USC.

(I could have added FHLB, but Judge Murguia doesn't use the acronym for that one.)

Figure it out?  (Answer:  It's the one in the exact middle.)

Ogundare v. Dep't of Industrial Relations (Cal. Ct. App. - March 18, 2013)

Justice Kane's opinion in this case seems right on target to me, and I'm not sure how the trial court thought it could possibly been otherwise.

Pacific Engineering Company bid on a public works project (which was 99% of its work) and agreed to pay its employees prevailing wages.  It won a contract and submitted timesheets for one of its workers, Miguel Ibarra, that purported to show that he worked 25 hours and was paid a prevailing wage ($36.10 per hour).  But Ibarra testified that he was only paid $15/hour, and worked 61 hours, and had a paystub from Pacific Engineering to prove it.  In short, that Pacific Engineering faked his pay (and screwed Ibarra out of overtime pay to boot).

Pacific Engineering's only argument is that Ibarra's evidence is insufficient to prove that it wilfully violated the prevailing wage provision of the contract because Ibarra said that he didn't have an independent recollection of precisely how many hours he worked on that particular week.

Seriously?  That's the best argument you can come up with?  I currently don't know how many hours I worked during the week ending August 4, 2007 either.  But if my paystub that the company gave me that week says I worked 61 hours, that's pretty darn good evidence that I in fact worked 61 hours that week.  Especially if I know full well how much they paid me -- $15/hour -- and the paystub reflects that my gross pay that week was $915.  Particularly when combined with the fact that Pacific's counsel can't come up with any explanation for why the figures on my paystub are so radically different than the figures submitted to the state other than the lame excuse that the people in payroll must have been confused.  How that results in two radicially different sets of books that just happen to come out to the exact same total is unexplained.

So the trial court gets reversed, and Pacific Engineering has to wait a year before it can bid on any more public works projects.

Seems right to me.

Milke v. Ryan (9th Cir. - March 14, 2013)

Wow.

I can't help thinking about the fictional Detective Sipowicz (NYPD Blue) when I read this case.  Someone the police "bring in" when you need to get a confession.

Contrast the real Phoenix Police Detective Armando Saldate with Sipowicz.  See if you have the same reaction to both.

Entente Design v. Superior Court (Cal. Ct. App. - March 12, 2013)

I think this is right.

There are fairly strict time limits within which you can "paper" a judge, but they vary depending on whether you're assigned a "master calendar" judge or a judge for all purposes or some other type of judge.  The thing is, in reality, those lines blur.

For example, here in San Diego (where this case is from), we generally assign civil cases to a judge for all purposes, and did so here.  But the trial judge who got the case -- Judge Meyer -- was busy at the point at which the case was scheduled to go to trial.  This is far from a unique circumstance; it happens all the time.  So Judge Meyer sees who's available, finds out that Judge Vargas is free, so tells everyone that Judge Vargas is their trial judge and to walk down the hall to clear things with Judge Vargas forthwith.  Which the parties do.

So everything's fine, and Judge Vargas says, yep, I'm free, see you in five days when the trial starts.  An hour later, one of the parties papers Judge Vargas.

But the trial court ruled that was too late.  That they needed to say something to Judge Meyer at the time it got assigned to Judge Vargas, not after.  Not even an hour after.  Whereas the party that filed the papers says they needed to consult with their client and make sure about the proper timing of the papering, which is why it took 'em an hour, and that this was proper.  So files a writ.  Which, among other thing, the Superior Court of San Diego itself chimes in on, claiming that the procedure that it employed (requiring contemporaneous papering) was both permissible and valuable.

But Justice McConnell disagrees.  Finding that Judge Meyer wasn't clearly a "master calendar" judge under these circumstances since he was originally appointed as a judge for all purposes, so it wouldn't be right to apply the master calendar exception.

I think that Justice McConnell makes the right call.  The statute assumes a bright line between who's a "master calendar" judge and other types of judges, and unfortunately, in practice, that's not at all the case always.  I could totally understand why the parties here were unclear as to when they had to (or were permitted) to paper Judge Vargas, particularly given the San Diego Superior Court's express rule that cases are either assigned to a master calendar courtroom or to a judge for all purposes.  It's undisputed that the latter occurred here, when it went to Judge Meyer, so it makes sense that counsel didn't necessarily think that Judge Meyer was acting as the former when he was figuring out to whom to boot the case for trial.

Nonetheless, while I agree with the Court of Appeal's disposition, I'm also sympathetic to the trial court's position.  Judge Meyer was booting the case for trial, which was going to happen shortly; i.e., in five days.  It simply doesn't make sense to give the parties the normal period -- ten days, by which time the trial would have started -- to bounce the guy.  Moreover, from an efficiency standpoint, it makes eminent sense to require a contemporaneous objection.  Judge Meyer's calling courtrooms and picking his replacement now.  It doesn't make sense to take a break, wait five days (or even an hour), and then bounce someone.  We're on the phone now, so if you want to object, let's hear it.  So I can see where the trial court's coming from.

For this reason, were I writing the opinion -- or were I the San Diego Superior Court figuring out how to respond to the Court of Appeal's ruling -- I think I'd suggest a simple solution.  Simply craft (or at the appellate level suggest the crafting of) a modified rule that clearly states that whenever a trial judge is assigned for all purposes, that judge automatically turns into a master calendar judge, and acts in that capacity, if he subsequently declares herself unavailable for trial and purports to assign the parties for trial to another courtroom.  That rule would make sense.  If there were such a rule, the duty to object (e.g., paper the judge) would be contemporaneous.  And, given the presence of the rule, the parties would be on notice of it and required to respond accordingly.

Problem solved.  Everybody happy.

Short of that, however, this is the right result.

City of Los Angeles v. Kern County (Cal. Ct. App. - March 12, 2013)

I'm certain that many readers are, right now, saying to themselves:  "I live in Los Angeles.  I wonder where my poop goes after I flush the toilet?"

Fear not.  Justice Wiseman has the answer.  As well as decides the issue.

Perhaps, however, you don't want to know the gory details, and only want the basic gist.  In that case, I'm happy to oblige.

Almost certainly, your "waste" ends up at the Green Acres Farm in Kern County.  Where it gets applied to crops and then sold back to you.

It used to be that Los Angeles treated the waste and then incinerated it.  But we've got to fertilize crops with something, right?  Cow poo or human poo.  Seems like a waste of money to burn the stuff, and maybe bad for the environmen to boot.  So Los Angeles spends $10 million to buy a 4600-plus acre farm in Kern County, and now ships 75% of its waste there to be dumped on crops.  It's smelly, and it attracts flies, but it works. 

Well, "works" for everyone except the people in Kern County who have to live near it.  Which is why Kern County passes a ballot initiative that prevents farmers in Kern County, including Los Angeles, from using "human biosolids" as fertilizer.  Predictably, Los Angeles files suit, and six years of expensive litigation follow.

Los Angeles wins the latest round.  The trial court entered a preliminary injunction against the Kern County ordinance, and the Court of Appeals affirms.  So poop will continue to be applied aplenty.

Some readers might say:  "Glad we're not wasting anything here.  Good job, Court of Appeal."  For those, I say:  "Congratulations.  Enjoy your victory the next time you visit the bathroom.  Consider it a valuable contribution to the environment.  Your good deed for the day."

Others, by contrast, might say:  "Wait a minute.  My poop on crops I might eat?!  Disgusting!"  But fear not.  Los Angeles only grows corn, wheat and alfalfa at Green Acres.  And only uses it for cow food, not human food.  So rest in peace.  (And try not to think about it the next time you're eating a steak or drinking milk.)

So there you have it.  The circle of life for human waste.  At least in sunny Los Angeles.

P.S. - Having read the case, the ditty to the old 60's television show now means something very different to me.  "Green Acres is the place to be."  The place, at least, if you're poo.  (And if Eva Gabor knew about what was in the fertilizer, she probably would have liked the place even less than she did on the show.)

Alberda v. Boad of Retirement of Fresno (Cal. Ct. App. - March 12, 2013)

Whenever I see an appeal involving a disability claim of a police officer or firefighter, I always assume that the employee is going to win.  It's an open secret in these professions that only the most foolish (or naive) employees actually "retire" when they feel like stopping work.  Rather, the common move is to retire on disability.  Your knees hurt, your back hurts, your butt hurts, whatever.  Sympathetic officials, judges, and onlookers will find the employee's claim credible, and will want to give something back for the employee's work on behalf of public safety over the years.  Only suckers, it's said, don't take advantage of what the public's willing to give them.  Even if a credible case takes a little (or perhaps a lot of) exaggeration and fudging with the facts.  It's perceived, at least by some, as an entitlement.  Or at least easy money.  Why not take it?

Given this backdrop, I was interested when I read this case.  In which both the Retirement Board as well as the trial court denied the police officer's disability claim.  Perhaps the well-publicized state of public pensions in California has started to give some pause to the usual practice.  Or perhaps this is an idiosyncratic case.  Regardless, the disability claim is denied.

Though that's a decision the Court of Appeal reverses.

Which doesn't necessarily mean that Thomas Alberda gets his disability pay.  But it does mean he gets another shot.

Alberda, by the way, is a 6'7" former basketball player who had two previous surgeries on his knees as a result of injuries playing basketball.  But Alberda claims that he's entitled to retire on a disability because problems with his knees both prevent him from working and are the result of his service on the force.

We'll see how it plays out on remand.

Appel v. Superior Court (Cal. Ct. App. - March 11, 2013)

As I was reading it, I thought I was going to go ballistic about this case.  Fortunately, the Court of Appeal didn't do what I thought it was going to do.  But it still doesn't go far enough.

The basic facts are these:  Developer hires Construction Company to build a condo project for $65 million.  Everyone agrees lots of change orders are subsequently approved that increase the price to $81 million, but after the project is finished, Construction Company claims it is entitled to an additional $13 million, so sues Developer as well as files mechanics liens against the individual buyers of the condos.

Developer and Construction Company subsequently settle their claims in return for a $32 million stipulated judgment against Developer -- which is meaningless because it's penniless -- and the settlement agreement says (1) the $32 million won't count as an offset against the lien claims against the condo owners, and (2) that the "contract price" for the work is "officially" $95 million.  That latter part's important because under the mechanic lien's statutes, Construction Company's liens are limited to the lesser of (a) the value of the work it performed, or (b) the contract price.  And, remember, the original contract price was only $65 million, not $95 million.

Then, prior to trial, Construction Company files a motion in limine saying that the individual condo owners aren't able to contest the contract price because it's now "officially" $95 million pursuant to the settlement agreement.  Here's what the trial court says about this argument at the hearing:

"COURT: Are you saying [the unit owners] don't have a right to attack the . . . value of the contract which was agreed after the fact as part of the settlement?


WEBCOR [The Construction Company]: We don‟t believe they have a right to attack that.

COURT: Well, that is just boggling to my mind. [¶] . . .[¶] [I]t totally boggles my mind, because you could agree to anything, anything [in the settlement]."   The trial court ultimately holds that it doesn't matter what the contract price was; that the only thing that matters is the value of the services rendered.   The Court of Appeal is critical of the trial court's reasoning.  It holds that, nope, the statute still says that liens are limited to the lesser of the contract price or the value of the services.  So the trial court got it wrong by takign the contract price "off the table" as an issue for trial.  That part I agree with.  It correctly interprets the statute.   Because the Court of Appeal's opinion was so critical of the trial court, however, I thought that, in the end, they might also disagree with the trial court's view that the "official" contract price established as part of the settlement shouldn't be binding.  Had the Court of Appeal done that, I would have strongly disagreed with this conclusion.  Which is, obviously, the Construction Company's position on the writ petition.   Fortunately, Justice Zelon doesn't do that.  The Court of Appeal instead holds that whether the settlement agreement was a "sham" is an issue that the trial court should decide on remand.  Moreover, Justice Zelon says that the Court of Appeal has "serious doubts" about whether the settlement agreement is indeed binding on the contract price issue as claimed by the Construction Company.  So that's a little push that hints at what the trial court might well permissibly find.   All that's good and fine.  I'm on board for that.   But I'd have gone further, and made things crystal clear.   There's no way the settlement agreement is binding on this point.  No way.  Sham or not.   Private parties can't take away a third party's statutory rights.  At least without notice and an opportunity to be heard.  That's an essential element of due process.  Regardless of what the settlement agreement says, and regardless of whether it's a sham, nothing in that settlement agreement can take away the affirmative defense that the condo owners have under the statute.  Nothing.  As a matter of law.   The statute says that the condo owners can avoid a lien if Construction Company has already been paid (1) the reasonable value of the workit performed, or (2) the contract price.  That's right.  If the contract says that Construction Company's only entitled to $65 million (or $80 million, or $85 million, or whatever), and it's already received payment of that amount, end of lawsuit.  Doesn't matter if the value of their services was $150 million.  They should have negotiated for a better contract.  No lien.   The Developer and the Construction Company can't get around that rule by doing what they did here; i.e., entering into what's ostensibly a retroactive "change order" as part of the settlement agreement that "sets" the contract price at $95 million.  The work's already been performed.  The contract already exists.  The condo owners have a vested statutory right to avoid any lien in excess of the contract price.  Private parties can't destroy that affirmative defense without giving the condo owners notice and an opportunity to be heard, and that's exactly what they're seeking at trial -- a factual determination, based on the evidence, as to what the actual contract price was.  They're entitled to that, and nothing in the settlement agreement can change that.   So I wouldn't have remanded the case by instructing the trial court to do whatever it thought was factually and legally appropriate with respect to the contract price issue.  Because in my view, as a matter of law, as well as a matter of constitutional doctrine, there's only one right answer.  So I'd go ahead and say so.  Even if the settlement agreement wasn't a sham, it's still not binding on a third party.  The contract price is what the contract price is, and the condo owners get to produce evidence on that point at trial.  What's true for issue preclusion is equally true for settlement agreements.  You can't bind a nonparty.

In Re Marcos B. (Cal. Ct. App. - March 7, 2013)

I'm pretty convinced that Marco B. was indeed selling drugs.  But that's not the point.  We have trials for a reason.  Including the ability to effectively cross-examine the only witness to the crime.

Justice Rylaarsdam properly holds that the trial court here denied Marco that right when it prevented his counsel from discovering from the police officer where he was when he allegedly saw what he saw.  Indeed, the Court of Appeal's opinion gives one a very bad impression of the trial judge -- Judge Deborah Chuang, in Orange County -- and (although Justice Rylaarsdam doesn't use this word) one might accurately describe the in camera hearing that she conducted as pretty much a cherade; or, more colloquially, a joke.

I understand that that police officer might not want to tell anyone where he was standing at the time; that way, s/he can use this location again, and potentially keep it secret.  But the officer's preference in this regard has to give way to the right of a defendant to contest the charges against him, especially in a case like this.  We can solve the problems about the "secret" location in other ways; e.g., protective orders, disclosure limitations, etc.

Justice in the Court of Appeal was a lot better here than it was in the trial court.

Mincal Consumer Law Group v. Carlsbad Police Dep't (Cal. Ct. App. - March 7, 2013)

Soemtimes I can figure things out on my own, even when they're not expressly stated.  But that's not the case here.

An attorney files a Public Records Act request with a city to get various information about identity theft; in particular, the names and addresses of the victims.  The city gives the attorney certain information (namely, records during the past thirty days), but denies the request for the past nine months of records on the grounds that this information is "historical".  The trial court denies the attorney's writ petition, and the Court of Appeal dismisses the appeal on procedural grounds.

I understand the merits, which are straightforward.  But I'm a little unclear as to why the attorney wants the underlying records, and why it's worth an expansive fight in the trial court as well as in the Court of Appeal.  My sense is that the lawyer might be trolling for clients.  But is there really value in identity theft cases?  Are these really big moneymakers?

Alternately, I guess there's a scenario where the requested records would be relevant to an ongoing litigation.  But I can't come up with one on my own.

So, in short, I don't fully understand the business strategy here.

But that's no great surprise.  There's a reason, after all, that I'm a law professor rather than a managing partner at a law firm negotiating with banks and implementing a marketing strategy.

People v. Huynh (Cal. Ct. App. - Dec. 20, 2012)

Yikes.

Thankfully, Phillong Huynh will be in prison for the rest of his life.

But there are presumably more people like him out there.

The lesson of this case (amongst others) is to NOT go to bars with strange people who strike up a conversation with you and offer to pay for your drinks, etc.  Or at least, if you do, to be extremely -- and I mean, extremely -- careful about making sure that you at all times keep your eyes on your drink.

You may think that this message is just for women.

It's not.

People v. Andreasen (Cal. Ct. App. - March 5, 2013)

By contrast, here's someone who I'm glad will never be permitted to show his face outside of prison.

I understand that Eric Andreasen is somewhat nutty.  But he's scary nutty, not insane nutty.  He's a consistently aggressive panhandler and knifes a woman for utterly no reason.  Yes, I understand, he also gets naked in public and proclaims to be Jesus.  He's not all there.

But he knows it's not okay to kill people, and even the defense expert can only render a "soft" opinion on insanity, admitting that he was not able to say "100%" that defendant was insane.  The jury finds that Andreasen was sane, and given the evidence, I'm okay with that.

As I am with the fact that I'll no longer see Andreasen walking the streets of San Diego, wondering if and when he'd randomly kill again.

People v. Perez (Cal. Ct. App. - March 5, 2013)

What sentence is appropriate for the following crime:

Defendant holds down a nine-year old boy on a dining room table and then tells another boy to (1) stick his hand in a bag and then stick his hand in the nine-year old's butt, (2) put a Star Wars light saber with a broken tip in the nine-year old's butt, and (3) rub his penis on the nine-year old's butt, and in response to each of these requests/orders, the other young boy did so because he was afraid of defendant.

That's a pretty grim set of crimes, right?  No one wants their nine-year old abused in such a fashion.

So what's the appropriate sentence?

Oh.  One more thing.  The defendant is a sixteen year old boy.

I'm not sure if that last fact changes your answer.  But it likely changes mine.

The trial court gives the defendant a sentence of 30 years to life.  It doesn't like that it's compelled to do so, and notes that it has "sent a number of people to prison for first degree murder for less than the sentence" it felt it had to impose here.  But that's what the relevant statutes say, so the trial court held it had no discretion, even though if it were up to him, he'd have thought a sentence of 15 to life would be more just.

The Court of Appeal affirms.  Justice Bedsworth holds that this doesn't constitute cruel and unusual punishment, and is a permissible sentence for a sixteen year old, because it's not LWOP and because the sixteen year old will be eligible for parole thirty years hence, when he's 47.

Even if he would have reached the same result, I wish that Justice Bedsworth would have displayed a bit more remorse about the equities.  Instead, the opinion lacks anything like that, and suggests that a sentence of 30 to life seems just about right for the underlying crime.  Mind you, if the sixteen year old had simply killed the victim, he'd almost undoubtedly serve less time.  But that's apparently not a reason to doubt the wisdom or righteousness of the sentence.  Or at least that's the thought you're left with after reading the opinion, since there's nothing in there at all to suggest a contrary principle.

This is disappointing for two reasons.  First, the precedent on this issue is in flux.  Yes, I agree with Justice Bedsworth that the Supreme Court has thus far limited its holdings about youthful offenders to situations in which the defendant effectively never gets out of prison (and ditto for the California courts), so those cases are arguably distinguishable.  But the rationale of those cases could potentially extend to lesser sentences too, particularly when, as here, a child is unlikely to have a meaningful life upon release having essentially spent his entire existence in prison.  Yes, it's true, a 47-year old might indeed expect a decade or two of freedom before he dies (assuming, of course, he doesn't die earlier, in prison, or that his post-release life expectancy isn't reduced by his thirty years of incarceration).  I shudder to think, however, of the quality of those final two decades.

More importantly, there's something about the fact that the defendant is a child.  That's the reason for the Supreme Court's precedent.  Because we know that children are simply not as culpable as adults.  Their moral reasoning isn't fully developed.  We know they do messed up, utterly inexplicable stuff that might well indicate a fully depraved heart if done by an adult, but that nonetheless may well not mean the same thing for a child.  Did Perez know that he was doing something wrong when he told another child to stick a Star Wars light saber into another child's butt?  I'm sure he did.  But my sense is that -- in a totally messed up way -- he somewhat thought it was a "game".  And I'm darn sure that he didn't recognize the seriousness of what he was doing.  His internal assessment of the situation, as a child, was qualitatively different than what an adult would be thinking.  That's simply the nature of children.  Particularly, I might add, as regards sexual practices with another child.

But none of that matters to the statute.  At all.  The statutes makes the child be charged as an adult.  No discretion.  It makes the sentence be 30 to life.  No discretion.  The statute's designed for adults, and concerns the forceful molestation of children.  We are understandably harsh about that.  But the text of the statute facially applies whenever the defendant is seven years older than the victim.  Even if the defendant is himself a child.  Ergo the virtually life-long incarceration.  A result that, at least as far as you can tell from the opinion, seems entirely fine to Justice Bedsworth.

I think there's a colorable argument to be made that a statute that entirely removes discretion with respect to child offenders and that automatically sentences them to serve nearly all of their relevant adult years in prison is unconstitutional under the Supreme Court's precedents.  Is it a slam dunk?  No way.  Would the Supreme Court actually so hold?  Maybe.  Maybe not.  I could certainly see three or four votes for such a proposition, and maybe even five.  I could certainly see such a holding come out of a differently-constituted Court, or from a state supreme court not compelled to interpret its state constitutional provisions identically to those contained in the federal Constitution.

Which is not to say that Justice Bedsworth necessarily gets this one wrong.  If I were a betting man, my money would, in truth, be on the U.S. Supreme Court doing the same thing.  Albeit with a dissent.

But here's the thing.  Tone matters.  Caveats matter.  When you're dealing with locking up a child for a minimum of 30 years, I think it makes sense to demonstrate some concern.  Some feeling that what you're doing may not, in fact, be just.  Some feeling that it's not just history that may view the holding that you now pronounce as unsound, but that a large segment of society -- not just the child's parents -- may feel that an injustice has been done, and that a child has essentially had his life taken away by mandatory structures that wrongfully do not take into account the fact that the perpetrator is a child.

One final thing.  Justice Bedsworth ends his opinion by saying that "Perez makes no argument or data to the effect that other American jurisdictions impose on 16-year olds significantly more lenient sentences than the ones given here."  Well, I can't say what data Perez had.  But it only took me five minutes on Google to discover that the average sentence for juveniles convicted and sentenced in adult court for sexual assault is less than nine years; i.e., less than a third of what Perez received.

Oh.  One more thing.  Don't forget we're part of a global community.  Let's compare Perez's sentence to the worst of the worst.  Perez gets 30 years.  What sort of sentence would we give someone who, say, (1) was an adult, (2) who dresses up as a police officer, goes to a youth camp, and methodically shoots and kills 69 people, mostly children, and then (3) smiles about it and is utterly remorseless?

That guy, Anders Breivik, gets 21 years.  Nine less than the toy lightsaber-wielding sixteen year old offender here.

Valle Del Sol v. Whiting (9th Cir. - March 4, 2013)

It might seem easy to accurately summarize the facts of a case and the court's holding in a couple of introductory paragraphs.  But it's not.  Trust me.

Judge Fisher nonetheless accomplishes this task beautifully.  Here's what he says:


"Two provisions in Arizona’s Senate Bill 1070 make it unlawful for a motor vehicle occupant to hire or attempt to hire a person for work at another location from a stopped car that impedes traffic, or for a person to be hired in such a manner. These provisions raise First Amendment concerns because they restrict and penalize the commercial speech of day laborers and those who would hire them. Arizona defends the provisions as traffic safety measures, designed to promote the safe and orderly flow of traffic.

We acknowledge that Arizona has a real and substantial interest in traffic safety. Arizona, however, has failed to justify a need to serve that interest through targeting and penalizing day labor solicitation that blocks traffic, rather than directly targeting those who create traffic hazards without reference to their speech, as currently proscribed under the State’s preexisting traffic laws. Laws like this one that restrict more protected speech than is necessary violate the First Amendment.


Arizona has also singled out day labor solicitation for a harsh penalty while leaving other types of solicitation speech that blocks traffic unburdened. Arizona defends this content-based distinction by invoking the “unique”  dangers posed by labor solicitation. That justification is only minimally supported by the record and, tellingly, S.B. 1070’s introduction says nothing about traffic safety. Rather it emphasizes that its purpose is to encourage self-deportation by stripping undocumented immigrants of their livelihood. Adopting content-based restrictions for reasons apparently unrelated to traffic safety further supports the conclusion that the day labor provisions restrict more speech than necessary.


Accordingly, the district court did not abuse its discretion in concluding that the plaintiffs were likely to succeed on the merits of their First Amendment challenge to the day labor provisions. We therefore affirm the district court’s grant of a preliminary injunction barring their enforcement."

You can read the entirety of Judge Fisher's 35-page slip opinion for more details.  But his introduction is a pretty darn good one, and tells you essentially what you're going to hear.

Well done.

Bourhis v. Lord (Cal. Supreme Ct. - March 4, 2013)

Principles of stare decisis are typically throwaway values.  They get talked about and relied upon, but they don't actually matter.  High tribunals generally do what they want to do regardless of what their predecessors did decades ago.

Here's an exception.

I have a strong sense that the California Supreme Court (or at least some of the justices thereof) are of the opinion that a suspended corporation shouldn't be able to revive a notice of appeal filed during its suspension by paying its taxes after the jurisdictional appeal period has passed.  Nonetheless, because a case from the California Supreme Court forty years ago held the contrary, the court elects to follow that precedent and let the appeal go forward.

Justice Kennard makes a pretty good argument for going the other way, albeit solely prospectively.  But I'm persuaded by the majority's contrary position.  Not entirely based on stare decisis.  (Though that factors into it.)  But also because barring an appeal would preclude an evaluation of the case on the merits -- a generally unfavorable result -- and would require the court to decide the uncertain line between barred and unbarred cases.  I'm sympathetic to barring the appeal here, for example, because the corporation knew it was suspended during the trial but still didn't pay its taxes for a long time; e.g., until after the period to appeal had expired.  But what if a corporation was suspended (or only found out it was suspended) the day before the notice of appeal was due?  Seems harsh to hold that revivor is precluded in those settings.  Especially since we do nothing at all like that in the trial court, in which revivor is pretty much routinely applied and retroactively validates the entirety of the corporation's appearance.

So I can see Justice Kennard's point.  But I'd have signed onto the majority opinion.

People v. Landau (Cal. Ct. App. - March 1, 2013)

Landau was convicted in the 80s of molesting children.  He's been in prison since then, but he's now served his sentence.

Does that mean Landau gets released?

No.

He's now 74 years old.  He's had prostate cancer while in prison, a heart attack, and has had a pacemaker installed.  None of these things exactly enhances his libido and makes him want to go out and molest more children.  He can't keep an erection and the radiation treatment he's had for prostate cancer makes it affirmatively painful for him to ejaculate.  He's taken responsibility for his prior acts and says he's reformed, and there's substantial medical reasons to think he might be right.

But the District Attorney disagrees, saying that pedophila isn't curable.  So they file to keep Landau incarcerated as an SVP even after he's served out his sentence.

It takes him six years to get to trial on the SVP petition.  The jury hangs 11-1 in favor of finding the petition untrue and accordingly releasing Landau.

He then gets a second trial.  Two years later.  Jury hangs again.

Third time's a charm?  Not for Landau.  This time he loses.  As he does in the Court of Appeal.

So no freedom for the 74-year old Landau.  Presumably ever.

P.S. - I haven't seen this before.  When he's incarcerated, as part of his psychological "treatment" (for an allegedly uncurable illness), his doctors affirmatively tell him that he should view pornography, so he does.  (Presumably so he can start getting excited by age-appropriate photographs.)  I've heard of people saying that they do lots of things "for medicinal purposes," but never heard of anyone saying that for porn.  Much less heard of it ever being accurate.  Strange but true, apparently.

In Re Madison T. (Cal. Ct. App. - Feb. 28, 2013)

Proof that San Diego isn't a paradise for everyone:


"The petition, as subsequently amended, alleged Kelly had a mental illness, including chronic paranoid schizophrenia. In the past, this caused her to have mood disturbances, delusions, hallucinations, memory impairment, emotional withdrawal and paranoia. Kelly was not under the care of a psychiatrist and was not taking medication for her illness. When Madison was born, Kelly tested presumptive positive for marijuana. Kelly later admitted smoking marijuana during pregnancy. Madison stopped breathing shortly after birth and was admitted to the hospital due to apnea and cyanosis. Approximately one month later, she was admitted to the hospital due to bronchiolitis. At the hospital, Kelly's boyfriend punched Kelly in the abdomen. Madison was exposed to violence when the boyfriend grabbed and pulled the chair on which Kelly was sitting, and Kelly tore the boyfriend's visitor's bracelet from his wrist. Kelly minimized the incident and refused to obtain a restraining order. Madison continued to experience episodes in which she stopped breathing and turned blue, but Kelly failed to report this to the pediatrician, in violation of Kelly's safety plan with the Agency. Kelly left Madison unattended at times when she cried, although Kelly knew Madison had previously stopped breathing while crying. Kelly has a history of methamphetamine use."

Oy vey.

In Re Georges Marciano (9th Cir. - Feb. 27, 2013)

Both sides have decent arguments in this bankruptcy case.  But I think that Judge Hurwitz has the better position, and that the panel accordingly gets the decision right notwithstanding Judge Ikuta's dissent.

Again, both sides have reasonable positions.  The question is whether (three) creditors can force a debtor into involuntary bankruptcy when they've obtained judgments against that person but those (unstayed) judgments are on appeal.  On the one hand, since no bond has been posted, the creditors can start collection efforts, so it makes sense to allow the creditors to file an involuntary petition to prevent one creditor (amongst many) from potentially getting all the debtor's money.  On the other hand, since the judgments are on appeal, it's possible that they'll be vacated (or reduced), and so you might say that they're potentially subject to a "bona fide dispute" -- thereby requiring the bankruptcy court to take a look at the judgments and their viability on appeal.  Judge Hurwitz takes the former position, whereas Judge Ikuta takes the latter position.

You can see why the issue is complicated.  Add to the fact that, under Jduge Ikuta's view, you've got an Article I federal court prejudging the likely result of a state appeal -- with the resulting federalism implications -- and it gets even more complex.

Ultimately I think it makes sense to adopt Judge Hurwitz's per se rule, and to hold that since the claims have already been reduced to a judgment -- and one that can be currently enforced -- those contemporary claims are not subject to a bona fide dispute.  It's true that sometimes we'll be wrong as a result of this conclusive presumption.  That's always the case with per se rules.  But empirically, we are unlikely to be wrong much, since (1) the vast majority of judgments get affirmed, and (2) even in those relatively rare cases when a judgment is reversed, they're not all likely to be reversed (since involuntary bankruptcy petitions require three or more creditors), and so the total amount of the unreversed claims are still likely to justify an involuntary petition.  Moreover, even in those truly expectional cases where everything gets reversed, we can presumably unwind the bankruptcy petition in the same way we unwind normal unstayed judgments reversed on appeal that have already been collected in whole or in part.

Is that a perfect solution?  No.  There are still some harms to the debtor.  But I'm persuaded that the alternative approach (articulated by Judge Ikuta) has more pervasive harms and transaction costs not only in the extraordinary case, but in every case, since each would require an individualized inquiry regarding the probability of the debtor's success on appeal.

So both sides have tolerable interpretations of the statutory text.  But I think that, for policy as well as other reasons, Judge Hurwitz's view is the superior one.

Even if it does create a circuit split.  Which is undeniably does.

Institute of Cetacean Research v. Sea Shepherd Conservation Society (9th Cir. - Feb. 25, 2013)

This Ninth Circuit opinion is certainly timely.

Chief Judge Kozinski calls the crew of the Sea Shepherd -- an anti-whaling ship featured on the Animal Planet television show Whale Wars -- "pirates."  It's a strongly-worded opinion by Judge Kozinski, and the use of the term "pirate" is deliberate; the Ninth Circuit holds that the plaintiffs (Japanese whalers) have a cause of action against the Sea Shepherd Conservation Society under the Alien Tort Claims Act for piracy.  The Ninth Circuit holds that it doesn't matter that the defendant's conduct is for environmental reasons; it's still violence directed at a ship on the high seas, and the advancement of environmental goals is (the Ninth Circuit holds) "private ends."  So the panel not only reverses the district court's denial of plaintiff's request for a preliminary injunction, but also reassigns the case to a different district judge.  (Judge Milan Smith dissents from the reassignment portion of the opinion.)

Meanwhile, on the same day the Ninth Circuit issued its opinion, half a world away, here's what happens.  The Sea Shepherd collides with whaling ships, each side blaming the other.  One thing's clear, however.  The whalers are taking a more aggressive approach.  Both on the seas as well as in the courtroom.

And what the Ninth Circuit says in its opinion won't tend to make them adopt a different approach.

P.S. - What do you think history will say about Judge Kozinski's opinion?  Put to one side whether he's right about the law.  It's a powerful opinion, full of language that excoriates the Sea Shepherd and its crew.  One could, of course, have adopted a different style.  Will history view the current treatment (read: killing) of large whales favorably?  Or will, on the other side, history take a view akin to how we view the historical record of slavery?  If the latter, in the future, will the Ninth Circuit's opinion in this case be read in the way we currently view lots of the older slavery and/or immigration cases (e.g., cases involving the Fugitive Slave Act)?  My personal take is that we don't necessarily view those cases as "wrong" given the then-prevailing jurisprudence (putting to one side Dred Scott).  But that we nonetheless view them as powerfully morally wrong.  As well as take a dim view of lots of things the the authors of those opinions say in those opinion.  Particularly when, as here, the author expresses a strong moral judgment -- one that turns out to be substantially different than the one that prevails 50 or 100 years hence.

People v. Delgado (Cal. Ct. App. - Feb. 25, 2013)

Want to see how to write a persuasive -- and important -- opinion in five double-spaced pages?

Here you go.

It's really a masterful job by Justice Gilbert.  It's got everything you need to know -- the facts, the law, the analysis -- and nothing you don't need to know.

Exceptionally impressive.

If brevity is the soul of wit, Justice Gilbert can serve as our modern day Polonius.

Elija W. v. Superior Court (Cal. Ct. App. - Feb. 25, 2013)

At first I thought that maybe style was getting in the way of substance in this opinion.  The writing is very chunky (i.e., does not flow very well), even for an opinion in the Court of Appeal.  (That latter phrase is a slight slam on opinions that totally look like the bench-memoranda-slash-draft-dispositions that they once were, and is a description that's quite apt here.)  Moreover, it and it takes Justice Woods a long time to get to the point.  The reader does not really get to Justice Wood's actual analysis until the final two pages, which I found a little frustrating.  As a result, it's possible that my reaction to the Court of Appeal's conclusion is perhaps based in part upon an emotive, rather than intellectual, reaction.

Nonetheless, on the merits, I have some real problems with the Court of Appeal's analysis, as well as its ultimate holding.

It's essentially a test case.  Defense counsel wants the trial court to appoint an expert to evaluate the competency of a juvenile client who's been accused of arson.  Since the trial courts in Los Angeles have been around this block before, they've screened and appointed a panel of approved experts for precisely this purpose.  Efficiency, quality, etc.

But defense counsel knows -- presumably based upon prior communications with some of the experts -- that the experts on the panel feel compelled to disclose any instances of child abuse they might learn in the interviews, on the ground that they're mandatory reporters.  Counsel also learns that the experts will also disclose any active threats by the interviewee to kill people, on the ground that if they fail to do so, there's liability under Tarasoff.

Counsel doesn't like that, and thinks that everything should be confidential.  So he finds an expert off the panel who says that she wouldn't disclose anything like that even if she found out about it, and who says that she'd instead only report it to the attorney.  So counsel moves to have the non-panel expert appointed.

Does the attorney have any reason to believe that the client will reveal anything like abuse or threats?  No.  Not at all.  But it's nonetheless possible.  And counsel doesn't like the fact that the L.A. panel experts do not concur with counsel's evaluation of their legal and ethical duties.  So files a writ petition when the trial court denies the request to have the "keep it quiet" expert appointed.

The trial court thought -- correctly, in my view -- that this was all an "academic" dispute, since there was no reason whatsoever to believe that anything like that would happen here.  But Justice Woods is right that just because there's no reason to think that a problem will transpire here doesn't mean it won't.  As a result, there is standing, and the Court of Appeal is permitted to reach the merits if it wants.  (Mind you, the fact that the petitioner here faces no real problem himself may perhaps be relevant to whether the Court of Appeal wants to grant an extraordinary writ, but I can at least see an argument that it nonetheless makes sense to review this issue now.  Not that the Court of Appeal actually makes that argument, but if it did, I might potentially be persuaded by it.)

Which leads us to the merits.  And that's my problem.

First, let's talk about child abuse.  I had to read the opinion three times, and even then, I'm still not sure why -- or even how -- the opinion comes out the way it does.  There's a whole lot of discussion as to whether the basic attorney-client privilege applies.  But there's a specific statute on this point that's very simple, and even after reading the opinion multiple times, I'm at a loss to understand why the Court of Appeal doesn't think it applies.  The statute says that "mandated reporters" have to report instances of child abuse.  They have to do so even when they learn about child abuse in a confidential context.  Moreover, the text of the statute expressly includes, amongst its numerous sections defining who counts as a mandatory reporter, psychologists and psychiatrists, including but not limited to those at issue here.  So the statute reasonably clearly, in my view, requires disclosure, and trumps any competing privilege -- including the attorney/client privilege -- just like everyone concedes it trumps the analogous doctor-patient privilege.

What does the Court of Appeal say about that?  I honestly can't tell.  I see some discussion of whether an attorney is a mandatory reporter, which is not especially relevant to the issue.  And I see general discourse into whether communication with third parties may be covered by the attorney-client privilege, but, again, a conclusion either way on this issue doesn't matter to whether the Child Abuse and Neglect Reporting Act trumps that privilege in the same way it undeniably trumps other privileges.  So I can't understand how the Court can come to a conclusion that the statute doesn't apply.

Moreover -- and this is perhaps the weirdest part -- even after reading the opinion multiple times, I don't even know whether the court thinks the statute applies.  Here's the money quote from the Court of Appeal that states its holding on this issue:  "The conclusions of the therapists on the JCST panel that they would be compelled to reveal any disclosures made by petitioner are therefore incorrect.  In this situation, as experts appointed to aid the defense, they are bound by the attorney-client privilege.  Dr. Scarf's position that she need only report information about child abuse or neglect or threats of violence to petitioner's attorney is correct."

You can read this holding one of two ways.  One way is to say that the Court of Appeal is holding that the statute doesn't apply.  This seems wrong to me, but whatever.  But if that's the case, why does the Court of Appeal hold -- in the final sentence of the quote -- that the appointed expert is required ("need only") report information child abuse or neglect "to petitioner's attorney"?  There's a duty to disclose only if the mandatory reporting statute applies; otherwise, the expert need only report relevant information about the defense -- if even that -- to counsel.  So, by finding a duty, it seems like the Court of Appeal thinks (like Dr. Scharf) that the statute applies, but that reporting to counsel ("alone") satisfies it.

But that's clearly wrong.  The statute -- which I had to look up, because the Court of Appeal never quotes it -- expressly says that mandatory reporters have to file a report with the police and/or sheriff.  That's Section 11169.5 of the Penal Code.  Period.  Reporting to an attorney indisputably doesn't count.

So, in the end, I'm at a loss to even explain the Court of Appeal's holding regarding the relevant duty, much less am I capable of figuring out coherently how they got there.  Now, look, maybe I'm stupid.  Maybe I am getting super old and incapable of reading opinions, or understanding cogent legal arguments.  I can only say that, if that's the case, it's not for lack of practice.  And that, perhaps, I'm not alone in finding the Court of Appeal's analysis here both substantively skimpy and -- at a minimum -- not nearly as persuasive as Justice Woods surely would have hoped.

Moreover, recall that the child abuse point is only half of the relevant inquiry.  The other reason the panel experts said they'd disclose is because they have a Tarasoff duty to do so.  Pursuant to an express decision of the California Supreme Court that says that if a psychologist or psychiatrist learns -- even pursuant to a privileged conversation -- the a patient actively plans on harming a third party, the therapist is required to disclose that fact under penalty of liability.

Given that opinion, it makes a lot of sense for the experts on the panel to say -- as they all did to defense counsel -- that if they did in fact learn about an active threat to harm someone, yeah, they'd be required to, and would, disclose that fact.  Right?

Not according to the Court of Appeal.  Which attempts to distinguish Tarasoff in two ways.

First, the Court of Appeal argues that its conclusion "is not at odds with Tarasoff, since in that case, the therapist was hired for therapeutic purposes, and was not a therapist hired to assist defense counsel."  Well, yeah, that's a difference between the Supreme Court's case and this one.  So's the fact that the therapist's name in Tarasoff was "Lawrence Moore" whereas here it's proposed to be "Rebecca Scharf".  But why does that matter?  There's no indication whatsoever in Tarasoff that the underlying civil duty depends on whether the psychiatrist is acting for "therapeutic" purposes or for evaluative ones.  Moreover, the California Supreme Court's substantive analysis in Tarasoff seems powerfully applicable to both scenarios.  The court in Tarasoff held that, for policy reasons, the values behind the underlying privilege do not outweigh the duty to prevent foreseeable harm (e.g., death) to another.  Presumably that same weighing -- preventing death is more important that preserving confidentiality -- would apply equally in both therapeutic and non-therapeutic settings.  So if the Court of Appeal is really making the somewhat revolutionary holding that therapists who are seeing patients but not "treating" them are no longer subject to Tarasoff, it needs to clearly say so, and also needs a lot more support for that result than the one-sentence distinction it offers here.  I'm sure there would be plenty of applause from a number of therapists if the Court of Appeal wanted to make that step, but I'm not at all convinced that such a move either makes sense from a policy perspective or is consistent with California Supreme Court precedent.

Moreover, I'm not even sure that Justice Woods is really hanging the opinion on this point, or (perhaps) even means to make it.  Since the opinion concludes with a section that says that Tarasoff isn't a privilege case anyway, but only a "civil liability" case.  Thus, Justice Woods holds, it's not really relevant to whether a defendant should be entitled to retain an expert who feels like running whatever risk exists.

Now this, I think, is a distinction between the present case and Tarasoff.  The latter undeniably dealt with civil liability, and the present case doesn't.  So I agree with Justice Woods that we have to dig deeper.

But I'm still not convinced that this means that the result isn't the same.  Yes, Tarasoff said that therapists have a duty backed up by civil liability.  But that includes the first part of that sentence as well -- the duty part.  Therapists have a duty to disclose.  A duty backed up by law.  In short, the California Supreme Court has clearly imposed a legal duty upon therapists to disclose threats of harm.

Now, it may well be that a defense counsel could find an expert who is willing to violate that legal duty.  But, notwithstanding what the Court of Appeal here holds, it hardly seems an abuse of discretion for a trial court to refuse to appoint such an expert.  That seems perfectly within a trial court's right.  Alternately, a therapist might take a different view of his or her duty.  If the expert was right, then I agree that it would be an abuse of discretion not to appoint the expert.  But, for the reasons explained above, it seems to me that the expert here has reached a legal conclusion that is wrong, and it seems to me entirely permissible -- indeed, likely preferable -- for a trial court to take that into account in deciding whom to appoint.  A trial court would not abuse its discretion by appointing only those experts who indicated that they would be willing to comply with the legal duties imposed upon them by the judiciary.  How could anything make more sense than that?

It's not like I don't value confidentiality.  I do.  Seriously.  A lot.  I'd potentially be persuaded if someone tried to tell me that the Child Abuse and Neglect Reporting Act goes too far, or that Tarasoff was wrongly decided.  I'd listen carefully if someone argued that, at least in a privileged setting, the values advanced by the relevant privilege -- the critical need for confidentiality in privileged communications -- outweigh society's interest in discovering child abuse or preventing third party harm.  I'm not saying that I'd necessarily agree, but I think that there's more than a reasonable argument to be made along those lines.  In short, I'm not at all entirely unsympathetic with a pro-privilege view.

But here's the thing:  California doesn't agree.  It passed a statute that, at least with respect to child abuse, has clearly made a contrary value judgment.  The Legislature believes that confidentiality -- i.e., privilege -- does not trump the statute.  And that statute, as well as its underlying value judgment, seems more than just a little bit applicable here.  With respect to third party harm, the California Supreme Court made a similar policy choice, and imposed a legal duty to disclose.  End of story.  Sure, a defendant, his counsel, and even his appointed therapist might not like it.  But it's the rule.  The privilege does not outweigh.

So, in short (and that's using the word exceptionally loosely, as this this post is "short" only in the context that academic law reviews use that term), I think that the Court of Appeal not only gets this one wrong, but gets it badly wrong.  And, at a minimum, that Justice Woods' opinion is not nearly as persuasively written as it would need to be in order to justify the fairly significant departure from existing practice embraced by the Court of Appeal here.

Schmeer v. County of Los Angeles (Cal. Ct. App. - Feb. 21, 2013)

The Supreme Court says that Obamacare entails a "tax".  Which it surely does (at least in part).  By contrast, the decision by Los Angeles to ban plastic bags and to charge ten cents for every paper bag a consumer decides to get at a store is not a "tax" -- and hence does not require voter approval.

Which also makes sense.  At least when one realizes that the alleged "tax" revenues don't go to the state (and are instead retained by the store) and used exclusively to provide the paper bags voluntarily requested by the consumer, alongside any consumer information or other promotion of reusable bags performed by retailer.

So holds the Court of Appeal.

The plastic bag industry may not like that result.  Maybe consumers won't either.  (Or at least some of them.)

But environmentalists will.  As will a variety of sea (and other) animals.  And, if she has a soul, perhaps Planet Earth as well.

A small step.  But one worth taking.  Even without direct taxpayer approval.  (Plus, if you don't like the policy, you can always vote out the relevant representatives.)

Greb v. Diamond Int'l Corp. (Cal. Supreme Ct. - Feb. 21, 2013)

For a sense how scholarly publications used to play a role in the application and development of legal doctrine, check out this opinion.

The California Supreme Court discusses a wide variety of law review articles -- including but not limited to those written by students -- and how those publications shaped subsequent judicial and legislative decisions.  An impressive story.

What's equally significant, however, are the dates of the publications that made a difference.  Law review articles in 1928 and 1931.  A student note in 1947.  Law review comments in 1913 and 1949.

Academic publications used to matter.  They were cited and relied upon not only by other scholars, but by the judiciary as well.

One need not look beyond this opinion -- which, amongst its couple of dozen or so citations, contains no discussion of any academic work published after the Korean War -- to reveal that the era of broad academic influence upon the judiciary has long since passed.  Sadly.

There's perhaps some reason to hope for at least a partial comeback.  The increasing availability of real-time and doctrinal commentary -- bloggers, online law reviews, etc. -- may grant courts access to the type of neutral academic discourse that has tended to disappear from academia.  This assumes, of course, that lawyers and courts -- which are no longer extensively familiar with looking to academia for insight -- retain the desire to familiarize themselves with these sources.

The rise of information technology and the increasing sophistication of counsel has permitted lawyers and judges to develop for themselves many of the arguments that used to be generated by academia.  At the same time, legal academia has become increasingly insular and removed from the real world.  The resulting confluence results in opinions like this one.  Which reflect the substantial historical use of scholarly publications but the absence of such commentary in contemporary jurisprudence.

A telling opinion.

Proctor v. Vishay Tech. (Cal. Ct. App. - Feb. 19, 2013)

Think back for a moment to those heady days during your first year of law school, when you learned all about res judicata.  It was almost certainly a difficult subject, it's important, right?

Yes.  Yes it is.

Eight years of litigation, and the ultimate result boils down to the proper scope of claim preclusion.

It's a tough subject, but it's often a vitally important one.

Hartman v. California Dep't of Corrections (9th Cir. - Feb. 19, 2013)

Sometimes I think that prisoners are just messing with us.  And I use the term "messing" even though a different word more immediately comes to mind.

Which maybe explains this case.  In which the Ninth Circuit has to decide whether it's constitutional for the California Department of Corrections to rely upon volunteer and part-time chaplains to serve the religious needs of Wiccan inmates rather than hire a paid, full-time Wiccan chaplain.

You might initially think that I've erroneously linked to a fictional legal dispute from the Onion.  But no.  Sometimes truth is stranger than fiction.

Nor, I might add, is this a nutty pro se action filed by an incarcerated prisoner.  Nope.  Not only is there a lawyer on the side of the Wiccans, but an entire law firm.  Jones Day.

Which makes me initially think that Jones Day might be messing with us as well.

My initial reaction to the lawsuit was the same as most people's.  "Seriously?"  I mean, sure, I get that prisons have to accommodate religious preferences.  But my strong sense is that it's okay to rely upon part-time chaplains rather than full-time ones.  Might not be perfect.  But just fine.

The district court thought so as well.  And, on that basis, dismissed the lawsuit.

But the Ninth Circuit reverses.  At least in part.

The panel does a pretty good job of explaining why.  You see, at least allegedly, there are more Wiccans at the Central California Women's Facility than there are Jews.  Or Muslims.  Or even Catholics.

(This might say something about the Wiccan religion, I might add, but I leave more complete elaboration upon that thought for another time.  Apparently we're still putting lots of witches in prison.)

This might otherwise just be a statistical footnote.  But plaintiffs say it's a constitutional violation of the Establishment Clause since the prison provides full-time, paid chaplains for adherents to those (allegedly) less numerous, more "mainstream" religions, but marginalizes Wiccans with volunteers and part-timers.

The Ninth Circuit says that if that's true -- and we're just deciding the case at the pleading stage -- that might perhaps be a constitutional violation.  You can see why.  Especially if, as is alleged, the prison has no objective criteria for deciding which particular religious groups get full-time chaplains.

Reading between the lines, I think the panel is pretty skeptical about whether what the plaintiffs allege is the case is actually true.  In particular, in the end, I think the lawsuit might well be dismissed because while there may be more Wiccans at this particular prison -- hereinafter, "Witch Central" -- than Jews and/or Muslims, overall, that's not likely the case, and the prison could constitutionally decide to employ full-time chaplains only for those religions that have more numerous adherents on the whole.

But that's for a later stage.  The merits.  The Ninth Circuit decides that, for now, the Wiccans get to have their day in court.

So let the Wiccans rejoice.  They get a nice present from the Ninth Circuit just three short weeks after that great Wiccan holiday, Imbolc.

Good times.

People v. Diaz (Cal. Ct. App. - Feb. 6, 2013)

I guess I knew at some level of generality that the airbag computers recorded your speed and braking and the like and could thus be used by the police in a DUI-with-injury case (or similar cases).  Which is a fancy way of saying that I sort of, generally knew a tiny bit about the concept, but with no real details.

After reading this opinion, I now realize (1) that those "airbag thingies" are called sensing diagnostic modules ("SDMs"), (2) that they're in pretty much every modern vehicle, (3) that they record a lot of detail about your driving, and (4) that the police download the SDM data -- and use it against you -- whenever they feel like it; i.e., whenever the crime is sufficiently major to justify the (relatively small) amount of effort required.

Diaz was convicted of involuntary manslaughter for killing an 18-year old while driving drunk, and she claims on appeal that the SDM data used against her at trial was obtained without a warrant and in violation of the Fourth Amendment.  It's not a very sympathetic case in which to make this claim, both given the nature of the offense and the evidence against her.  The Court of Appeal pretty much rejects her argument on every ground imaginable; on the merits, harmless error, etc.

You can see where Justice Hollenhorst is coming from.  The police already get to "inspect" the "instrumentality" of a crime; e.g., the crashed vehicle.  Downloading the SDM data isn't all that different than an inspection.  You could (and Diaz's counsel does) analogize this to opening an enclosed container in the vehicle, which it's not clear the police can do.  But since the SDM is actually part of the vehicle, you can see why the Court of Appeal reaches the result it does.  (You similarly can see why the Court of Appeal property rejects the analogy to the Jones GPS case.  In the former, there was a physical trespass to the vehicle in order to install the GPS device.  There's no such trespass here, however, since the SDM is already installed and the crashed vehicle is already in the possession of the authorities.)

I will say, however, that I'm not sure why the police don't just get a warrant for this stuff.  Which would be really easy to obtain, especially since there's no exigency at all (the police had the crashed vehicle for around a year).  The Court of Appeal offers a nonfrivolous answer -- because they don't have to, pursuant to the instrumentality rule -- but that's somewhat tautological, and doesn't really explain why you'd extend the instrumentality to rule SDMs as opposed to limiting it to, say, a purely physical inspection of the property; e.g., looking for blood in the trunk or open beer cans in the front seat.

But in truth, I can't imagine that these warrants would ever really be denied.  Moreover, since SDMs produce data that's hardly very private (speed, braking, etc.), I'm not really inclined to broaden the warrant requirement to cover this data.  The police are going to get it anyway, it's not really useful for anything other than the prosecution, and adding another unnecessary layer to its receipt doesn't really seem all that necessary.

So I guess I can get on board for the result here.  Although I do so with more caveats than -- and not nearly as enthusiastically as -- Justice Hollenhorst.

Aguayo v. Amaro (Cal. Ct. App. - Feb. 14, 2013)

Jesus Aguayo says that he's in the "business" of acquiring homes by adverse possession.

I'll let you read this case to decide whether or not that business is an exceptionally dirty one.

Silas v. Arden (Cal. Ct. App. - Jan. 28, 2013)

I'm glad that the Court of Appeal published this opinion.  If only to make clear that it's no defense to a malicious prosecution action for an attorney to say:  "Even if I knew or should have known that the cause of action I was asserting lacked merit, it was okay for me to refuse to drop it, because that's what zealous representation of a client requires."

You can say that.  But you can also lose over a quarter million dollars as a result.

Like here.

Reichert v. State Farm Ins. (Cal. Ct. App. - Jan. 25, 2013)

Maybe one reason why I like reading Justice Bedsworth's opinions so much is because they sometimes sound like something that I would write.  If I wrote well, anyway.

Justice Bedsworth expressly says in this opinion -- and it's a very nice thing to say -- that he will "not attempt to improve" on the trial judge's impressive decision below, and that as a result, "[t]he next seven paragraphs are excerpted almost verbatim from the trial judge's statement of facts."  (Adding that "This was no phoned-in minute order."  Nice.)  You can nonetheless figure out where Justice Bedsworth adds an occasional editorial comment of his own.  Regardless, check out the factual underpinnings of the appeal:

"In September 2007, plaintiffs Eric and Liz Reichert purchased a two-story home in Huntington Beach at 18341 Rain Circle, which sits in a designated flood zone.  Shortly after closing escrow, plaintiffs hired Ben Cauthen  (hereinafter “Architect”) to 3 design a substantial remodel of the home.  Plaintiffs also contracted with Krecu Construction (hereinafter “Contractor”) to perform and/or oversee the project as the general.  Plans for the remodel were submitted to the City of Huntington Beach for approval:

The first set depicted what amounted to a “substantial” remodel since it (1) improved the overall value of the property more than 50% and (2) modified more than 50% of the existing walls.  Because of this, additional planning elements were triggered, including a City “in-fill” requirement that neighbors sign off on the placement of windows and a federal FEMA requirement that the ground floor be constructed above the base flood level (which in this instance was about 9 feet); since this triggered significant additional cost and headache (i.e., raising the house 9 feet and staggering windows based on neighbor preference), they went back to the drawing board.

The second set of plans was not too different from the original.  One change was the designation of several existing walls that were to remain in place and become part of the new construction.  By doing this, plaintiffs avoided the City‟s “in-fill” requirement.  In addition, plaintiffs secured an independent appraisal of their property, which, compared to the revised plans, came in at under 50% improved value − escaping the FEMA flood zone issue.  As it turns out, the revised plans had a value improvement of about 49.93%, which was just barely enough to get the project permitted.

The contractor handled the job through Travis Bond (“Bond”), the designated on-site project manager.  During the demo phase (June/July 2008), a light bulb went on over Bond‟s head:  the second set of plans – the one approved by the City – still called for rooms upstairs and downstairs to have 10-foot ceilings, but in order to get the City to sign off on the second set of plans, plaintiffs covenanted to leave in place several original, existing walls.  The problem?  Those original, existing walls supported 8-foot ceilings, not 10-foot.  Ouch.  [SM -- The addition of "Ouch" is awesome  I've repeatedly use that same line.  Like here (in a case involving State Farm, no less), here and here.  Love it.]

Bond contacted the contractor and architect for direction, and was told to go ahead and tear down all the walls, including the specific walls designated to remain as part of the approved plans.  Bond did as instructed, and brought the walls down. During the next City inspection (mid-August 2008), it was discovered that plaintiffs had exceeded the scope of the permit issued.  By taking out the extra walls, the square footage and value of the project increased.  Plaintiffs had only $300 of wiggleroom to stay under the 50% FEMA trigger, and putting in eight brand new walls clearly increased the value more than that.  There was no question that removing those additional walls increased the linear footage enough to trigger the City‟s “in-fill” requirement.  A “stop-work” order was issued, halting the project on the spot.

The contractor proposed a variance, but later learned that while the City could issue a variance from the FEMA requirement, doing so might cost the City its FEMA rating, leading to a widespread increase in the cost of flood insurance for every resident of the City living in a flood zone.  The City expressed (informally) its unwillingness to bend the rule for the Reicherts at the risk of hurting every other Huntington Beach citizen.  Plaintiffs never formally applied for the variance, as it was a foregone futility.  Instead, they filed a civil action against the contractor and architect (2009-125917) and made a claim for insurance benefits from State Farm.  The property (apparently the entire structure in progress) was demolished by order of the city at some undesignated time afterwards."

What a story.  An entire home gets torn down.

I'm not sure what transpired with the lawsuit against the contractor and architect, but I know what went down with the claim against State Farm, which is the topic of the appeal.  It went nowhere.  For the reasons identified at length in both the trial court and the Court of Appeal's opinions.

So the lesson is clearly to be careful when you leave yourself only a little wiggle room.  It may end up biting you.

Hard.

Lucky United Property Investments v. Lee (Cal. Ct. App. - Feb. 5, 2013)

Here's an opinion that addresses how you calculate interest on various post-judgment cost and fee awards.  It's rendered in 2013.

The underlying lawsuit involved a property dispute, which then devolved into multiple competing malicious prosecution actions, anti-SLAPP motions, cost and fee awards, and various enforcement proceedings.  The original fee award was for around $25,000.  How long could the resulting disputes really take?

Let me answer that question this way:  The original lawsuit was filed in the twentieth century.

Suffice it to say that the parties don't like each other.  And are affirmatively interested in battling over pittances.

Browne v. County of Tehama (Cal. Ct. App. - Feb. 6, 2013)

I can't necessarily see anything wrong with the legal analysis in this opinion.  The Compassionate Use Act does indeed permit people do use marijuana for certain medicinal purposes.  At the same time, it doesn't necessarily displace reasonable zoning regulations.  So localities can still regulate, inter alia, the cultivation of marijuana -- as Tehama County has done here -- in reasonable ways, without being preempted by state law.

Mind you, the critical inquiry is whether those local regulations are indeed reasonable.  Many, many localities have used zoning to essentially "zone out" all medical marijuana, and such ordinances do indeed conflict with the CUA.  But the Court of Appeal holds that there's no such showing here, and hence rejects the petition.  Reading the opinion, you can see why.

That said, I'll say this:

Tehama County has deliberately imposed quite strict regulations about the cultivation of marijuana.  You can't grow more than a dozen plants unless it's over 20 (!) acres.  There's an 100-foot setback requirement.  You've got to surround the place with an opaque fence at least six feet high.  You've got to register the place (and pay a fee), include with your registration a copy of the medical marijuana card for every patient, and potentially even have a notarized letter from the owner of the property.  Oh, yeah.  And you can't do any of the above within 1000 feet of any school, bus stop, church, park, etc. etc.

You can see why a county might impose such requirements.  Perhaps for good reasons.  Perhaps for bad ones too.

The one thing I'll add is the admittedly extralegal point that regardless of the motivation, when you wonder whether drug money is going to legitimate businesses or -- instead -- to illegal (often foreign) cartels that engage in violence, remember zoning regulations like these.  The harder you make it for businesses to run a legal, legitimate operation, the more you funnel demand into extralegal avenues.  And while zoning for strip clubs and the like generally work because it's very hard to run an "illegal" strip club, that definitely ain't true for running drugs.  At all.

Food for thought, anyway.

Smith v. Hedgpeth (9th Cir. - Feb. 5, 2013)

It's an AEDPA state habeas case.  The defendant brutally beat his wife in front of his two teenage daughters, leaving her in a hospital (or nursing home) for four months.  The panel consists of Farris, Fernandez and Bybee.  The district court denied habeas relief.

There's no chance the panel's going to reverse.  And it doesn't.  The judges don't even bother with oral argument.

No surprise.  Even less of a surprise once one catches from the caption the judge in the district court was this guy.

People v. Corrales (Cal. Ct. App. - Feb. 6, 2013)

Don't text while driving.  Especially when you've got a baggie of meth in the car.

On the merits, the Court of Appeal gets this one exactly right.  There was indeed a reasonable basis for the police officers to stop the defendant's car.  Sure, they may not have "seen" him texting.  His right hand was below the window to the car, after all.  So we can't know for sure what he was doing down there.

But we all know what texting while driving looks like.  Including the police.  Corrales was looking down and up at something he was holding in his right hand.  I can't draw you a precise picture of the events in words -- nor can the police in their testimony -- but I am absolutely confident that I (along with the police) can reasonably distinguish between someone who looks like they're texting with an unseen object in their right hand and someone who's, say, adjusting their crotch.

And we not only allow the police to pull over the former, but affirmatively want them to.

Silly argument.  Right result.

Some things you can't precisely describe but nonetheless know 'em when you see 'em.

Correa-Rivera v. Holder (9th Cir. - Feb. 6, 2013)

Chief Judge Kozinski is very good at writing opinions that make other people look bad.  Here's the latest example.

Though, to be honest, the BIA did most of the work for him.

(And not for the first time, I might add.)

U.S. v. Preston (9th Cir. - Feb. 5, 2013)

When I read this opinion by Judge Farris (joined by Judge Bybee), it, seemed plausible.  Sure, I could see some potential problems with the case.  The alleged sexual abuse victim -- an eight-year old boy -- clearly made some stuff up.  But as Judge Farris explained, that sometimes happens.  Similarly, the police conducted a fairly aggressive interview, replete with lies, shaded stories, and lots of questions along the lines of "When did you stop beating your wife?"  But that's fairly common too.  I've seen a lot worse on television, and am sure a lot worse goes on in practice.  If I were trying to get an alleged child molester to confess, I'm sure that I too would ask questions like "There are two types of people.  Monsters who prey on people, and people who just make one-time mistakes.  Which one are you?"  Questions which allegedly make it easier for the suspect to feel "good" about confessing.  Finally, I can see the problem with interviewing the defendant here.  He's mentally disabled, with an IQ of 65.  But those people commit crimes too, right?  Gotta get them to confess as well.

So when I finish reading the majority opinion, my reaction is:  Maybe.  Maybe that's right.  It's at least possible that Preston did the crime.  He eventually confessed, after all.  So maybe we're happy with locking him away.

Then I read Judge Noonan's dissent.

Wow.

It's not that Judge Noonan says anything factual that I didn't already know from reading the majority opinion.  He doesn't.  Everything's in there.

It's the way Judge Noonan puts it together.

Stunningly good.

When you get through reading Judge Noonan's dissent, you're not just less confident that justice has been done.  You're also heavily persuaded -- or at least I am -- that Preston might actually be innocent.  Or at least that to call him guilty beyond a reasonable doubt seems a massive stretch.

You've got little to no actual "evidence" that a crime occurred.  Really all you have is the claim -- not even the sworn testimony -- of an eight-year old boy who we are certain made a ton of things up.

I particularly found powerful the stuff at the end of Judge Noonan's dissent.  The stuff about how lots and lots of false confessions are the result of precisely the types of things that transpired here; in particular, the aggressive questioning of mentally disabled people.  They're easy to confuse.  They're very willing to follow the "lead" of authority figures.  Especially when, as here, they're given two choices (i.e., "Are you a monster, or do you just want to say you're sorry") and elect the one that's the most palatable.  Yes, a person of normal intelligence might "think outside the box" and understand that there's a third option.  But that's less likely -- much less likely -- for someone with an IQ of 65.

Could Preston have actually done it?  Yes.  It's possible.  Maybe the boy is telling the truth, albeit saddled between stories of monster trucks, police helicopters, the rape of his sister, 911 calls, jumps off the roof, and the killing of various robbers, all of which we know aren't true.  After all, there was seemingly no reason for the boy to make up the initial story of the assault.  So maybe that's true but the rest of it's fantasy.

But, man.  Maybe not.

Read Justice Noonan's dissent.  Impressive.

People v. Delgado (Cal. Ct. App. - Feb. 5, 2013)

Sometimes statutes require courts to decide "medical" issues.  Like this one.  What's a "coma"?

The Court of Appeal answers the question.  It's a Glasgow Coma Scale of 8 or less.  Here, the victim had a score of 9.  So it's not a coma, so there's not an extra five years.

I'll nonetheless say that it was still a terrible beating.  Just terrible.  So even though Delgado gets five years off his sentence, he still has to do 23+ years in prison.

Though take a look at what his co-defendant, Romero, did.  Even worse.  I don't know what Romero's sentence was.  But 75 years would seem about right to me.

People v. Whalen (Cal. Supreme Ct. - Feb. 4, 2013)

Read Justice Liu's concurring opinion in this one.  He's absolutely right.  The trial court clearly treated pro-death penalty jurors differently than anti-death penalty jurors, and tried valiently to rehabilitate the former while kicking off the latter.  What transpired here is really striking.

None of which particularly helps the appellant, Daniel Whalen.  Who wants the state to kill him and who will (likely) get his wish.  Everyone on the Court agrees that his death sentence gets affirmed.  Despite the conduct of the trial court below.

But it's still telling to look at what the trial court did.  The next time you wonder whether some judges don't put a "thumb on the scale" even in high-profile criminal cases, remember this one.

P.S. - The majority opinion's worth a read as well.  If only to see (1) what a long criminal history Mr. Whalen had, and how incredibly destructive drug addiction is for everyone involved (Whalen, the sex-for-drug trading Michelle Joe, etc.), and (2) how utterly senseless it was for Whalen to kill the victim -- Sherman Robbins -- who was an elderly diabetic and a veritable modern-day Mother Theresa, who welcomed "street people" into his home for food, a bath or rest.  Leading to his death.

Apple v. Superior Court (Cal. Supreme Ct. - Feb. 4, 2013)

The question is whether an online retailer -- here, Apple, at its iTune store -- can collect telephone numbers in connection with credit card sales.  There's a specific statute that says you can't do that in California.  But Apple says that the statute doesn't apply to online credit card transactions, and only applies to physical credit card transactions.

Plaintiff responds that that doesn't make any sense.  That collecting phone numbers is unnecessary in both types of transactions, and that these transactions equally present the dangers that prompted the passage of the statute:  namely, the retail collection of unnecessary data for marketing purposes.  The statute is deliberately broad, plaintiff says, and nothing in the statute exempts online sales.  Plus, the Legislature passed an amendment to the statute in 2011 that permitted pay-at-the-pump gas stations to collect ZIP codes, and the legislative history of that statute expressly talked about how the existing statute applied to online and brick-and-mortar retailers alike.

Its' a close opinion.  4-3.  Justice Liu writes the majority opinion.  One that's joined by, among others, the Chief Justice, Cantil-Sakauye.

They agree with Apple.  The privacy statute doesn't apply to online retailers.