U.S. v. Vasquez (9th Cir. - June 18, 2013)

Let me say at the outset that I have little to no knowledge of the practical details of criminal law.  I read the various cases, I know the underlying substantive offenses, and I generally know everything one would expect from an appellate perspective.  But when it comes to practical things like where one serves one's sentence, what attitude probation officers take, and similar details, I'm utterly clueless.  No experience in that realm.

Let me also say that, in particular, I know next to nothing about the intricacies of the State of Washington as regards these matters.  I've been there.  Beautiful place.  But I understand that they do there own thing there, in a variety of different areas.  Don't know the details.  Probably never will.  (Assuming, as is quite likely the case, that I will never elect unsuccessfully to mule drugs from British Columbia to Seattle.)

So with those (important) caveats aside:

Is this really right?

Judge Kleinfeld's opinion certainly reads persuasively.  I totally get it.  The question is whether a federal defendant with a previous state conviction for driving with a suspended license gets his criminal history bumped up a point when his sentence for that previous crime was "90 days custody imposed with 84 days suspended for 24 months."  The sentencing guidelines say, in relevant part, that your history gets bumped if you spend more than 30 days in custody -- everyone agrees that doesn't apply -- or you're on probation for more than a year.  Does having your sentence suspended for two years count?

Let me be honest.  Let me forthrightly concede my ignorance.  Before reading this opinion, I had failed to recognize that suspended sentences were "suspended" for particular periods of time.  Instead, I thought they were simply "suspended."  Like being suspended from school.  We imposed the sentence, perhaps as required by law.  But didn't make you serve it.  Just being nice to you.

If that was what a suspended sentence actually was, the case would be easy.  Obviously that doesn't count as probation.  It's just time not served.

I realize now that my prior understanding doesn't really make much sense.  Maybe that's still the law somewhere.  I have a vague recollection, for example, that a speeding ticket I once received when I was 16 resulted in a "suspended" sentence.  (P.S. -- Thank you for that, Mike Arif.  Mike went on to defend D.C. sniper Lee Malvo, in what was undoubtedly a letdown from Mike's high-profile representation of me in traffic court many years earlier.)  Maybe that's where my understanding of the concept arose.

But now I get it.  It's "suspended" for a period of time, and if you do something bad during that period, it can come back and be reimposed.  Makes sense.

But I gotta say:  That sounds an awful lot like probation.  Which is the exact same concept.  You do something wrong during this period and you go back to jail.  Same concept, right?

Which is why the U.S. thinks that, yeah, 24 months of "suspension" counts as 24 months of "probation".  You do something wrong, your sentence gets served.  Same deal.

Judge Kleinfeld has a facially persuasive response to that.  A distinction that makes some sense.  He says -- and the rest of the panel agrees -- that probation generally comes with conditions.  Things that restrict your preexisting liberty.  Like mandatory reporting to your P.O.  Not going out of state.  Not hanging out with gang members.  Things like that.  By contrast, with a suspended sentence (at least of the type here), the only thing you can't do is commit another crime.  Which you're not at liberty to do anyway.  So, the Ninth Circuit holds, that's not "probation" so don't count against your criminal history.

There's a lot to be said for that.  It makes for a decent distinction.  And it obtains the assent of all of the members of the panel, a reasonably diverse one at that.

I nonetheless wonder if it's right.

There are two problems with this position.  Judge Kleinfeld recognizes one of them.  Albeit buried in a footnote.  Lots of other circuits have apparently held to the contrary.  The Sixth.  The Seventh.  The Eighth.  Indeed, every circuit to have addressed the issue appears to have decided that a suspended sentence can indeed count as probation.  Now, Judge Kleinfeld says that some of these same circuits have held that, for other states within them, certain types of suspended sentences may not count.  Okay.  So maybe there's some split.  But it does seem that (1) the Ninth Circuit's view might be a minority one, and (2) there may be some basis to think that Judge Kleinfeld's purported distinction might not be as persuasive as otherwise thought, as other circuits apparently aren't on board.

So I tried to think of why other circuits might go the other way.  Which brings me to the second, more fundamental, problem.  One that makes me wonder whether Judge Kleinfeld's position is the right one.  (As well as left me wishing he'd have at least addressed the potential counterarguments; that way, I could have a more informed view of the matter, rather than being forced to come up sua sponte with the competing positions that created the circuit split.)

Here's my basic problem.  Is the distinction actually a difference?

It's true, for example, that probation often comes with the conditions that Judge Kleinfeld discusses.  But not always.  Probation's sometimes "unsupervised".  Especially in this era of pervasive budget cuts, in which taxpayers often don't feel like paying for things.  What about someone sentenced to probation who doesn't have to report to a P.O.?  Those people clearly have been sentenced to probation, after all.  The court expressly did so.  Yet under the Ninth Circuit's view, it seems that unsupervised "probation" wouldn't count as "probation".  Yet that makes no sense.  Clearly probation is probation.

Judge Kleinfeld likely has a decent response.  He'd likely say that even with unsupervised probation, there are often other conditions.  Staying employed, not drinking alcohol, etc.  Things that restrain your liberty, and that normal people are allowed to do.  Hence, he'd say, probation is really probation, unlike a suspended sentence.

Suspended sentences are admittedly conditional as well.  But the Ninth Circuit would say that the only condition thereto is that you don't commit a crime, which you're not at liberty to do anyway.  Hence it's not "probation" because that doesn't additionally constrain your liberty.

Okay thus far.

But here's the tough part:  What about unsupervised probation that doesn't include those often-applied provisions?  Cases in which the trial judge hasn't checked those particular boxes, but nonetheless has still clearly (and expressly) placed the defendant on probation?  What does the Ninth Circuit's rule coherently -- or otherwise -- say about those?

That seems to me to strike at the heart of the Ninth Circuit's holding.  Because I'm confident that there are, in virtually every state, precisely such cases.  Probation where the only imposed condition is the exact same one as that of a suspended sentence:  Commit no future crimes.

Judge Kleinfeld doesn't say how that one would comes out.  And there's really no good answer under the Ninth Circuit's test.  Unlike the test proposed by the U.S., where there's a totally easy answer:  "Yep, that's probation."

Plus, I can easily come up with a variety of standard probation conditions that are beyond those imposed alongside a suspended sentence and yet still would not seem to constitute "probation" under the Ninth Circuit's view.  Imagine, for example, a domestic violence offender sentenced to probation with the only condition that he not contact, and that he stay away from, the victim.  Normally that'd be a restraint on liberty.  But what if there was already a preexisting restraining order?  (Maybe even the one the the defendant violated that led to the criminal charge.)  In that case, "probation" wouldn't restrain defendant's preexisting liberty.  So it's not really "probation," right?  Really?!

Other conditions -- conditions that I have no doubt whatsoever (after a little research, anyway) are actually imposed -- operate the same way.  What about the standard probation condition that the probationer not use illegal drugs?  Not really "probation" since that's illegal anyway?  Or, for minors, the standard probation condition that they enroll in (and/or attend) school?  Is that not really "probation" either since schooling is already compulsory for most minors?  Is it really possible that you could have someone expressly sentenced to probation, and have the trial judge check a wide variety of the standard boxes on the form -- as well as add some new ones -- and yet this clear "probation" not be "probation"?  Under the Ninth Circuit's view, the answer is clearly "yes".  Which is troubling.

Especially since there's a clear, bright-line alternative.  One that doesn't run into these difficult definitional and counterintuitive problems.  The one advanced by the United States.  Probation is when the serving of a sentence is conditional.  Which, apparently, includes a sentence that's described as "suspended".  Turns out, it's just like probation.  Or at least a form of it.  So both count.

That's my thought, anyway.  Judge Kleinfeld's opinion made a great deal of sense to me.  (The first part of the opinion, by the way -- the part about the plea bargain -- was so totally clearly correct that it made me wonder who would even bother to argue the contrary.)  But the more I thought about it, the more problems I discovered.  Which, in the end, left me with a keen sense that the Ninth Circuit's facially appealing decision here might in fact be wrong.

So. Cal. Edison v. Victorville (Cal. Ct. App. - May 17, 2013)

You might think it would -- or at least should -- be relatively easy to figure would whether you can sue a utility for putting a light pole too close to the street, resulting in injury.

If so, you'd be wrong.  At least as regards the former (descriptive) claim.

Four appeals.  Yet still quite a piece away from actually getting a trial and/or judgment.

That's a lot of work.  On everyone's part.

Aleman v. Uribe (9th Cir. - June 14, 2013)

Think being a police officer is easy?  Think again.

Three people rob a person of his wallet and necklace at gunpoint.  LAPD officers receive a report of the crime over the radio and immediately start following a gray Honda that they suspect may contain the perpetrators.  A high-speed chase ensues.

So far, just a regular day in L.A.  The high-speed chase seems a bit excessive for an everyday piece of street crime, but whatever.

The Honda drives into Toonerville territory, an LA street gang.  When the chase reaches the heart of Toonerville, the officers notice a washing machine in the middle of the street.  What the heck?

The officers slow down to avoid the washing machine, and drive around it.  At which point someone throws a bicycle in front of their vehicle as well.  Clearly, this is no accident.  Someone's trying to help the suspects escape the chase.  Presumably colleagues from Toonerville.

But what's shocking to me isn't that.  It's darn, darn bold to essentially set up roadblocks on public streets to try to stop the police.  But what's stunning is what happens next.

The perpetrators aren't just setting up a roadblock.  It's an ambush.

As the officers are slowed and diverted by the washing machine and bicycle, a sniper starts shooting at them.  Plus the occupants of the Honda start shooting at them as well.  The officers immediately call for backup, and try to speed away, but the suspects in the Honda block their escape.

This is like something out of a movie.  Like this one.  Something that happens only in the minds of a Hollywood writer or maybe -- and even then, only maybe -- in Columbia.  A deliberate ambush of the police in Los Angeles?  Over the theft of a wallet and gold chain?  Wow.

Fortunately, the officers make it out, and two of the three suspects in the vehicle are caught.  (Though the third one, and the sniper in Toonerville, are never found.)  The suspects are convicted of attempted first-degree murder of a peace officer and sentenced to two consecutive life terms.  Convictions that are not only affirmed at the state level, but at the federal habeas level as well.

I'd have never thought that a street gang would be so bold (or stupid) to deliberately ambush and try to kill police officers in order to escape a high-speed case.  Apparently I'm wrong.

Pretty stunning.  At least to me.

Doug C. v. State of Hawaii DOE (9th Cir. - June 13, 2013)

I'm as sympathetic as the next person to the claim that slight administrative hassles don't permit a bureaucracy to infringe fundamental rights.  Probably more so.

That's especially the case when it comes to kids and their right to an appropriate education.  That's important.  Parents should be involved.  A school bureaucracy shouldn't be allowed to use picayune administrative excuses to deprive a parent of their right to be involved in the education that's given to their child.

For this reason, you might think that I'd greet today's Ninth Circuit opinion with a big "Hallelujah."  Since that's what it squarely holds.

That was not, however, my reaction.

At some point, a parent simply goes too far, and administrative reasons are a legitimate basis to move forward without the parent.  And in my mind, this case exemplifies the point.  Or at least comes darn close in a way the Ninth Circuit doesn't recognize.

Here are the facts.  To which -- it bears mention -- everyone substantially agrees.

Spencer C. has an IEP in Maui, and his father (Doug C.) wants to be consulted about where Spencer gets placed in school.  That's their right.  It's a good thing.  As a result, there needs to be a meeting at which Doug and the school administrators discuss where Spencer should be placed.  Fair enough.

Federal law imposes strict guidelines on this issue.  You've got to do an IEP once a year.  Spencer's eighteen years old, so we've got to figure out where's going to go.  Spencer's one-year deadline ends on Saturday, November 13th.  Pursuant to federal law, a decision on Spencer has to be made by then.  So, necessarily, the meeting with his father (Doug) needs to happen by then.  Makes sense.

The support team -- and we're talking about a dozen or so school teachers and administrators that are involved in the decision about what services Spencer needs -- first talks with Doug in September.  A date two months before the deadline.  Everyone, including Doug, agrees to have the final meeting on October 28.  Plenty of time to meet the deadline two weeks later.  Let's write that down:

(1)  October 28.

The school people testify that this was a "firm" date.  But Doug says it was only "tentative."  Based on my personal experience -- as well as what transpires later -- I'm pretty darn confident that I believe the school.  But let's put that to one side.  There's an October 28 meeting date.

On October 22, the school calls Doug -- very kindly -- to remind him about the meeting.  At which point he says:  "Can't make it."  Why?  Whatever.  Okay.  So we'll reschedule.  Everyone then agrees that they'll meet on November 4 or 5 (there's disagreement about which date was chosen).  Mind you, that means that the dozen or so school people who were supposed to be at the October 28 meeting now have to change their schedules.  But okay.  We'll accommodate the parent's preferences and/or whim.  Still plenty of time to meet the deadline.  Let's write this one down too:

(2)  November 4/5.

The next day, Doug calls the school.  He again interprets the November 4/5 date as "tentative" and says that, nope, he's not free on that date either.  So the school says:  "Well, when will you be free?"  He says November 9.  Fair enough.  November 9 it is.  We'll rearrange everyone's schedule again.  Everyone, including Doug, agrees that November 9 is a firm date.  Four days before the deadline.

Let's write it down again:

(3)  November 9.

Can you guess what happens on November 9?  Of course you can.  Doug e-mails the school at 7:27 a.m.  He says he's "sick" and can't make it.  Of course.

So now what does the school do?  They've got four days until the statutory deadline.  They're facing a parent who's missed/blown off/couldn't attend/rescheduled multiple meetings.  They've got to get a dozen people in a room, with a parent who doesn't seem able to actually attend any of the dates they have set.  Oh, and they've already got the dozen school people assembling later that day to meet what was the admittedly "firm" date four days before the deadline.

Does the school at that point simply tell the parent to fork off?  No.  It doesn't.  It tells the parent:  "Look, we've got to do this thing by November 12.  That's the law.  It's now November 9, and you advise us at 7:27 a.m. that you can't make it.  What about tomorrow, November 10?  Or the next day, November 11?  We can't do it on Friday, November 12, because some of the people who need to be there can't make it that day (having repeatedly rearranged their schedules on multiple times already).  Which of November 10 or 11 works for you?"  I'll write those down too:

(4)  November 10/11.

At which point Doug says:  "I don't know.  I can't schedule anything.  I'm sick.  Who knows if I'll be available on those days?"

At that point, what's the school supposed to do?  Blow the deadline?  That's not only bad for Spencer, but a good way to be sued.  Set a new meeting for November 11?  Doug's already said he's unable to commit to be there that day, since he might still be sick.  November 12?  For the same reasons, Doug might still be "sick" that day too, and not everyone's available anyway.  Which presumably matters, as we want the right decision at the meeting, which means that everyone with information should be there.  Which, maximally, includes Doug.  But he's already blown off/rescheduled multiple meetings, and can't commit to attending any before the deadline.

So the school does what it thinks it has to.  It conducts the meeting as "firmly" scheduled on the 9th, and gets in a plan as required by law on the 12th.  They're then finally able to meet with Doug on the 7th of December, and at that point, Doug attends the meeting (finally!), but refuses to substantively participate, claiming that the school screwed him by conducting the earlier meeting without him.

Doug then sues.  The administrative tribunal and the district court find for the school, holding that it didn't do anything wrong.

The Ninth Circuit reverses.

Judge Paez says that the school district was "clearly unreasonable" in not including Doug at its meeting.  Again, I'm partially sympathetic, and definitely want Doug to be included.  But Doug's repeatedly flaked.  Repeatedly rescheduled.  What's the school supposed to have done?!

Judge Paez says that the school improperly refused to schedule the meeting for November 10 or 11.  Seriously?  Doug expressly said he might well still be "sick" either of those days.  Judge Paez seems to say that the school should have nonetheless schedule a meeting for either (or both) of those days, gotten the 13 school people together in a room, and waited for the (likely inevitable) last-minute e-mail.  I find that unreasonable.  Parental involvement matters.  But so does administrative burden.  When a parent expressly says he can't commit to showing up at a meeting on a particular day, having already missed a meeting one or two days earlier, I don't think it's unreasonable not to have a dozen employees sitting around in the almost certainly vain hope that the parent decides to make it that day.

Judge Paez also says that the school improperly refused to schedule the meeting for November 12.  Really?  Not only were some important participants unvailable, but if Doug could not commit to showing up on November 10 or 11 -- as he expressly said -- because be "might still be sick," why in the world would the school have any reason to think that things would be any different a single day later?  It boggles the mind to think that Doug would say:  "I'm 'sick' to can't promise I'll make it on the 10th or 11th, since I might still be sick, but don't worry, I'm positive I'll be better on the 12th."  Paticularly given the history described above. 

If Doug was a doctor, or hadn't flaked on multiple prior meetings, or the school had any reason to believe that Doug's "sickness" as a one-time thing, that'd be something.  In particular circumstances, when an IEP meeting is coming up, I could well see a parent saying "I've got a cold, so I'm sorry I can't make it today, but don't worry, I should be better by Friday at the latest, and come hell or high water, I'll make it."  In those circumstances, yeah, I'm totally on board for the school having to do a meeting on Friday, the day before the deadline.  Regardless of whether everyone could be there.

That ain't this case.  By a longshot.

Judge Paez finally says that the school could have just ignored the statutory deadline, and done the meeting thereafter.  This part, surprisingly enough, isn't crazy.  I think that in some cases, that's right.  The school would potentially be opening itself up to liability, so I don't think it's an awesome choice, or that the decision to avoid such a consequence would be unreasonable.  But, yeah, in a particular case, I get Judge Paez's point.  So the meeting's a couple of days late.  Big deal.  Just get the parent involved.  As long as delaying the meeting won't harm the child, a couple of days won't matter.

Here's the thing, though.  I'm not sure that this is the best case -- or potentially, even an appropriate one -- in which to make such a holding.  Because there was ample reason for the school to think that the issue was not about a "couple of days" or so.  Doug had been blowing off meetings for a month.  There was absolutely no reason to think that he'd show up for a "firm" meeting on, say, November 16th any more than the "firm" meeting on November 9 or, prior to that, the one in October (which he interpreted as "tentative").  Given Doug's history, the school district could quite reasonably, in my view, think that there was simply no way of knowing when, if ever, Doug would show up.  That's a sufficient basis, at least for me, for the school to conclude that Doug had effectively "affirmatively declined" to attend the required IEP meeting.  End of story.

At an absolute minimum, I think it's overboard to hold -- as the Ninth Circuit does -- that the school district "clearly" acted unreasonably and violated the IDEA.  Couldn't a reasonable factfinder decide, on an appropriate record, that Doug was perhaps not really "sick" on November 9, but was instead making excuses just like he had repeatedly done previously?  Couldn't a reasonable factfinder hold that the school district, when faced with a difficult decision, acted reasonably, given that there was no certainty that Doug would ever actually show up for a meeting?  There seem to be lots of fact issues here.  And I'm bummed that they're decided the way the Ninth Circuit implicitly decides them.  Even more so since, were I the factfinder, my initial belief, upon reading the facts of this case, would be to draw a conclusion directly opposite to the one the Ninth Circuit draws.  It at least seems a question of fact.  Particularly on these, somewhat egregious, facts.

(I forthrightly concede, by the way, that part of this is driven by the revulsion that Doug will almost certainly use the school district's "violation" of the IDEA to (1) obtain a potentially substantial cost and attorney fee award, and (2) get his son's private school paid for by taxpayers.  I'd be fine with (2) if that were the right result.  But to have it transpire not because it's in Spencer's interest, but instead potentially due to Doug's deliberate procedural manipulation of the meeting schdule, somewhat galls me.)

What's particuarly frustrating -- not only to me, but, I'm sure, even more so to the school district -- is that the district essentially did precisely what Judge Paez suggested, and indeed went forward with a successful meeting with Doug in December after he failed to show up for the scheduled meetings in October and November.  I understand what Judge Paez says about that -- that, doctrinally, that does not "count" since the IEP had already been created, so the parent wasn't allowed to "participate" in the process.  But it's still frustrating.  Especially since that same doctrine would presumably apply equally to the statutory violation of not getting the IEP in by the statutory deadline.  The district is essentially in a damned-if-you-do-damned-if-you-don't dilemma.  They've got to provide a plan and services by the deadline, so they have to decide on what those services are, and if they don't, they get sued (and the child suffers).  But if they follow that rule, and do indeed decide by the deadline, then they get sued by a come-lately parent even after they follow the Ninth Circuit's advice and say "Well, we decided by the deadline, but we still want your input," even when the parent says (as Doug did in this case) "Screw you.  You violated the statute by not including me.  I'm not talking to you."

Not my sense of justice.

Really, truly, and sincerely:  I could not appreciate and agree more with the sentiment expressed by Judge Paez's opinion.  But even someone as sympathetic as I am is unsure that this sentiment is the appropriate response to this case.

In Re Marriage of Ficke (Cal Ct. App. - June 12, 2013)

There were slim pickings today.  The Ninth Circuit didn't publish anything at all -- for the second day in a row.  The California Court of Appeal was silent in the morning.  It looked like it might be a lazy, relaxing Wednesday.

Then this opinion came along.

One might write about this opinion just because it concerns the divorce case of a political figure -- Aliso Viejo City Council member Greg Ficke.  A little (political) celebrity in the Court of Appeal.

But even beyond the "star" factor, it's a strongly-worded opinion.  Which is far from surprising given its author, Justice Bedsworth.  The Court of Appeal was not happy that the trial court imputed some income to the custodial mother.  At all.  So it reversed and remanded.

I can understand the Court of Appeal's holding.  As well as its sentiment.  We generally want -- or are at least fine with -- custodial parents spending some time at home with their children.  For this reason we might generally be loathe to impute income to a nonworking parent.  On the theory that we like it that they're not working.  I get it.

At least as a general theory.

But that theory can nonetheless go too far.

Let me give you an example.  Imagine that father and mother divorce, and there's a 17-year old child.  Father gets 95% custody.  Father generally makes a ton of money -- $500,000 a year -- as a CEO, but got laid off just before the divorce, so now just hangs out at home.  Mother makes a relatively small amount of money -- $100,000 a year -- and busts her hump to do so.  Father could easily take a job that pays $300,000 (i.e., triple what Mother makes), but doesn't feel like doing so.

Should Mother really have to pay support ("alimony") to Father?  Or should we instead impute some income to Father, which would mean that Father either gets little (or no) support or instead has to pay something to Mother?

I think we should.  Even if Father isn't just sitting on his butt, but is instead (1) playing catch with his 17-year old son, and (2) earning $60 a week -- rather than the $6,000 a week he could make -- since he took a job as a part-time baseball coach so he could "be there" for his son.

Yes, we value hanging out with your kids.  But not exclusively.  It's not fair to the $100,000/year Mother to make her pay $300,000+/year Father alimony.  Imputation would instead be proper.

The facts I just mentioned are fictional.  But they demonstrate the point.

They're also not too far off from the facts of this case.

I admittedly deliberately switched genders.  Here, Mother obtained 95% custody.  But she's also the high earner.  She was a VP at a dental implant manufacturer.  Her 2007 W-2 showed over $725,000 (!) in income.  She got over $200,000 in severance when she was terminated in 2008.  But despite the fact that she could very easily get another six-figure job, she instead decided to start a "pet insurance" business similar to her mother's business in Arizona.  A job that nets her only $250 a month.

Father, meanwhile, is a real estate broker and City Council member.  He makes less than $100,000 a year.

The only other difference between the hypothetical and the actual facts of this case is that there are in reality two kids instead of one:  a 16-year old and a 17-year old.

The trial court made Father pay child support to Mother.  But the trial court also made Mother pay support ("alimony") to Father because it imputed $160,000 of income -- the amount that it thought $700,000+ Mother could easily make -- to Mother, which meant that she made more than him.

That latter ruling was what made the Court of Appeal go quasi-ballistic, and reverse.

I'd be somewhat sympathetic to this ruling, to be honest, if the kids were younger.  If there's a two-year old kid who needs full-time support, I'm hesitant to impute income to the custodial parent, as it may well effectively coerce that parent to enter the workplace and leave the child.  I get that.  I could see refusing imputation in such a situation.

But here, it's different.  We're dealing with kids in high school.  Late high school, at that.  The stark reality is that while those kids definitely need support (and rearing) as well, it's not nearly a full-time job.  The need to "be there" for those kids 24/7 by opting out of the workforce simply doesn't exist.  Or if it does, someone needs to tell that to the millions of two-earner couples and single parents out there who nonetheless manage to raise their kids -- well -- without a full-time stay at home parent.

In short, you can raise your high-school kid just fine even if you work.  Yes, there's some value in a parent being home at 3:30 p.m., rather than 5:30 p.m., so they can hand the keys to the kid (who can already drive) to go with their friends and do their extracurriculars, and -- on those exceptionally rare occasions when the teenager desires it -- play catch with them in the backyard.  I'm not denying that those things are good and valuable.

But to say that they're so essential that we should categorically impute no income to the custodial parent just seems wrong.  It seems more case-by-case to me.  For a young child with a mother who stays at home and could otherwise make only $35,000 at work, yeah, I'm on board for imputing no income.  For a 17-year old with a parent who could make $200,000 or $750,000, uh, no, I'm pretty much just fine with imputing income.

The Court of Appeal adds a caveat, but I don't think it has any substantial practical effect.  It limits its holding by saying that a trial court can sometimes impute income when imputation would benefit the child (i.e., be in their best interests).  But let's be real.  That will never be the case.  It will never help the child to reduce the amount of money their custodial parent receives.  Just doesn't happen.

Let me make a suggestion.  Something I think would make the Court of Appeal's opinion better, and yet be consistent with its overall theme -- as well the overriding thrust of family law.

Rather than saying (as the Court of Appeal does) that a trial court can't impute income unless it's affirmatively in the best interests of the child, I think it makes much more sense to say that you can only impute income when it doesn't conflict with the best interests of the children.  In some cases -- as with the young child (and, potentially, even with older children), imputation might be a bad idea, and harm the kids.  If it meant that kids were routinely left alone on nights and weekends, then, sure, no imputation.  I'm on board for that.

By contrast, if imputing income meant that, on an occasional evening, when the custodial parent had to work late, the kids would have to be picked up (or stay with) a noncustodial parent who was more than happy to spend time with them, well, you know, that seems totally fine with me.  Permitting the could-easily-be-richer parent to obtain funds from the poorer parent when such a consequences is not affirmatively justified by the best interests of the child seems wrong.  If the kids will be totally fine with imputation or without, then it seems like it makes sense to me to go ahead and impute.

Parenthetically, that also seems precisely the case here.  Mother's rich.  She can make a ton of money whenever she wants, and also received over a million bucks in the divorce.  Father's rich too, and he's got the million bucks he got in the divorce plus another million or so in separate property.  Father has to pay child support to Mother as well.

The stark reality is that these O.C. teenagers are going to do just fine regardless of whether their could-be richer parent has a fraction of the income she used to make imputed to her for purposes of calculating support.  The parents have a million bucks each to blow on their kids during the year or two of child support left, and even thereafter, I've got no doubt whatsoever that giving the poorer parent $700 a month in support (i.e., a whopping $8,400 a year) -- which is what the trial court did here -- will not matter one iota to the kids.  Mother's not going to do anything different, Father's not going to do anything different, and the kids won't notice the transfer in the slightest. 

As a result, on Shaun's Modified Rule, since imputing income won't be inconsistent with the best interests of the children, absent other countervailing considerations, that's what one should do.  It's what we do in every other support context, and it's fair.

Oh, and parenthetically, my proposed modification of the Court of Appeal's holding is also consistent with the actual statute.  Section 4058 of the Family Code says that a court's determination of earning capacity must be "consistent with the best interests of the children."  Notice that it says "consistent with," not "advance".  My rule says that imputation is permitted if it's "consistent with" the interests of the children.  The Court of Appeal's rule says that imputation is permitted only if it advances the interests of the children (e.g., "no imputation of income should be made to the custodial parent unless it benefited the children").  Which of these seems more consistent with the statutory text?

In short, I'm on board for a lot of what the Court of Appeals says.  In particular contexts.  But not as a uniform rule, and not in each and every case.  And as for the rule itself, I think that one that's slightly different than the one articulated by the Court of Appeal would be superior.  Not only as a general principle, but also -- at least potentially -- as applied to the present case.

People v. Barnes (Cal. Ct. App. - June 11, 2013)

Here's another decision that seems obviously right.

Defendant steals a purse with a smartphone in it.  The smartphone has a GPS in it (like many such phones), and the owner consents to have Sprint "ping" it, which reveals its location:  in the possession of defendant.  Defendant moves to suppress, claiming a violation of the Fourth Amendment.

But there was no trespass or intrusion by the police.  You can't have a subjectively reasonable privacy interest in stuff you just stole.  And the only person with a legitimate privacy interest -- the owner -- consented to the search.

Good police work.  Easy case.  Right result.

State Farm v. Huff (Cal. Ct. App. - June 11, 2013)

Sometimes you lose cases at trial because your attorney either doesn't bother to introduce the necessary evidence or doesn't understand what the law requires.

Case in point.

Martinez v. Brownco (Cal. Supreme Ct. - June 10, 2013)

Here's a decision from the California Supreme Court that makes total sense.

You don't even need to know anything about anything to figure out the right answer.  Let's make it a multiple choice question:

On May 1, Plaintiff makes a pretrial Section 998 settlement offer for $200,00.  That offer expires by not being accepted within 30 days.  On December 1, right before trial, plaintiff makes a lower 998 offer for $100,000, which defendant rejects as well.  At trial, plaintiff recovers $250,000.

After trial, Plaintiff moves to recover $50,000 in expert witness fees that she incurred in October.  Section 998 allows parties to recover such postoffer expenses if they obtain a judgment at trial more favorable than their pretrial offer.  The policy justification for this rule is to encourage settlement.

Can Plaintiff recover these expenses?

A.  Yes, because her pre-October offer of $200,000 was less than the amount ($250,000) she successfully recovered at trial.

B.  No, because her December offer wiped out her expired May offer, so there was no pre-October offer that was less than the amount she recovered at trial.

(If this was a real law school multiple choice exam, I'd manufacture distracting (C) and (D) choices that made no sense, but I'm going to make things easy.  It's either (A) or (B).)

Whatcha think?

The correct answer is (A).  Which makes eminent, total sense to me.  As well as to each of the justices of the California Supreme Court.

There's a series of opinions in the Court of Appeal that adopt the underlying reasoning of (B) and say that when a party makes a second 998 offer any previous offer is deemed to have never existed.  Those cases never made any sense at all to me, either as a matter of contractual doctrine or settlement policy.  So I'm glad to see the California Supreme Court hold otherwise.  (POSTSCRIPT - A reader rightly e-mailed me and noted that I had urged the California Supreme Court to grant review in this case last year.  So I'm glad to see that happen as well.  Though sad to see that my memory is apparently so utterly shot.)

You can make two (or more) 998 offers without necessarily totally negating the initial offers.  That's a good rule.  Glad to see it's (now) the law.

Western Watershed Projects v. Abbey (9th Cir. - June 7, 2013)

I was moved by the introductory paragraphs of this opinion by Judge Gould.  They're really poetic.  They paint an incredibly attractive picture of Lewis & Clark's expedition, what these explorers saw in (what's now) north-central Montana, and how the place -- to this day -- is really beautiful.

Indeed, I was sufficiently transfixed by Judge Gould's prose that -- and this is no exaggeration -- after reading these paragraphs, I was about to go downstairs to my wife and say: "You know what, honey?  We should really make an effort to get to Montana someday.  It sounds like a gorgeous place."  Big Sky.  An environment like no other.  As Judge Gould describes it:  "[U]nparalleled scenic beauty, great geological and biological import, and special historical significance."

Sign me up.

I still think I might -- and should -- visit the place.  But I must admit that when I read the remainder of Judge Gould's opinion, I didn't have the same reaction any more.  I no longer had a transcendent picture of "unparalleled scenic beauty" in my head.

Instead, all I could think about was cow poop.

Because ultimately, Judge Gould holds (for the most part) that the BLM permissibly permits private grazing in the Upper Missouri River Breaks National Monument.  And as I read his opinion, in which he describes the effects of livestock grazing on this environment, I gotta say, the place became less and less attractive to me.  Because I kept returning not to a picture of incredible bluffs and of undisturbed country of the sort seen two centuries by Lewis & Clark, but rather, to a picture of a scrubrush and cattle and cow manure.  Doesn't really want to make me drive 20 hours to see it.

None of which is to say that the Ninth Circuit gets the opinion wrong.  There's deference -- albeit not complete deference -- to what the BLM decides.  They decided it made sense to allow a fair amount of cow poop to the mix.  As a legal matter, I can't say that Judge Gould is wrong to say that's permissible.

But I did come away from the opinion with a keen sense that these things matter.  That a really beautiful, potentially transcendent place can indeed be spoiled by the addition of even small changes.  Perceptually as well as, perhaps, in reality.  I was keen to visit the Upper Missouri River Breaks National Monument when I started reading about it, and when I thought it looked substantially the same way it did in Lewis & Clark's time.  That excitement diminished -- substantially -- as a result of what the BLM has allowed.

So this may well be the case of an actual lost tourist.  For whatever that's worth.

I should still try to make it up to Montana.  Notwithstanding the hassle. 

But if I'd have stopped reading the Ninth Circuit's opinion, I could have told you with some degree of confidence that my family and I would get up there -- God willing -- sometime in the next three years.

Having read further, I'm not nearly as sure.

Rony v. Costa (Cal. Ct. App. - Oct. 26, 2012)

There's not much of note today; indeed, there's nothing at all new published by the Ninth Circuit or the California Court of Appeal.  The only thing of even potential interest is a decision from the California Surpeme Court, but unless you're a doctor getting kicked out of a hospital -- or interested in those sort of things -- that doesn't exactly get one's blood boiling.

So I thought I'd go back a bit.  And mention that I like what the Court of Appeal did here.  I think it's right on the law.  I also think it's equitable.

It also delivers a message to homeowners.  If you get your trees cut, do it with someone licensed.  For all the reasons identified herein.  Plus a plethora of others.  Don't just hire a day laborer.

The Court of Appeal cuts down somewhat on the adverse consequences of failing to heed this advice; i.e., you don't necessarily have to pay attorney's fees.  But there nonetheless remain substantial good reasons to make sure that the guy who cuts your trees has a license to do so.

Word to the wise.  Better late than never.

Grace v. Beaumont USD (Cal. Ct. App. - June 4, 2013)

Del Grace was a probationary school teacher in Beaumont.  A California statute says that if a school district isn't going to rehire a probationary teacher, it's got to tell the teacher by May 15th.  Otherwise the teacher's deemed rehired.

The school board met at a board meeting on May 3 to figure out what teachers, if any, would be laid off.  Ms. Grace attended the meeting.  That that meeting, in open session, the board elected to lay of twelve teachers, who were identified (for privacy reasons) by their employee number.  Ms. Grace's number was one of those numbers, and she saw it.  Shucks for her.

On May 11, the school district sent Ms. Grace an e-mail asking if she could attend a meeting later that day.  Ms. Grace responded by asking the purpose of the proposed meeting.  At which point the school district said it was "to provide you notice that the district will not be offering you a contract for next school year."

Ms. Grace responded that she's prefer not to have such a bummer of a meeting.  The district said no problem, it'd happily send her a certified letter instead, and Ms. Grace said that's what she would prefer.  So out went the certified letter later that day.

Ms. Grace never claimed the certified letter, and it was thus returned to the district.  Ms. Grace then sued, alleging that she was automatically rehired because she hadn't been given notice of her termination by May 15th.

The trial court disagreed.  The Court of Appeal affirms.

Common sense prevails.

In Re Martinez (Cal. Ct. App. - May 31, 2013)

It's somewhat amusing to see all this effort over whether a dude in prison can read an awful book about a chick who kills warewolves.  The book -- "The Silver Crown" -- is available for one cent (used) on Amazon.  Seventy seven cents if you want it new.

I'd easily have sent the guy a free copy if it'd have saved the expense of the appeal.

For what it's worth, I think that Justice Richman's analysis seems pretty spot on.  At well as somewhat humorous.  The book has "some" literary value.  Though notice that this word is in quotes, 'cause we're definitely not talking about Shakespeare.  The best that can be said for the book is that (1) it's not really all that different than all the other crappy vampire-slash-witch-slash-warewolf literature that's out there, and that (for some inexplicable reason) people tend to consume these days, and (2) yes, there are definitely "screw" scenes -- let's use the fancy term and call those components "erotica" -- but the literature part isn't merely "filler" purely intended to keep the work from being obscene.  The thing is an integrated whole.  An absurd, messy, utterly implausible and silly work of literature, but a work of literature regardless.  So Martinez is entitled to spend his time in prison reading this dreck and fantasizing about a hot warewolf-killing babe if he'd like.

People v. Beltran (Cal. Supreme Ct. - June 3, 2013)

The first twenty pages of this opinion are, in my view, simply amazing.

They are perfect.  The writing is crisp.  The analysis is clear.  The author blends precedent, history and commentary in exactly the right amount.

I was actually jealous.  It's crystal clear to me that I cannot write half as well -- or even a tenth as well -- as what appears in those twenty pages.  Not only when I crank things out on the fly in these posts, but even when I sit down with infinite time to write an academic article.  I am just not as talented.  It was amazing.  I was, and am, in awe.

You may perhaps be waiting for the other shoe to drop.  Expecting, perhaps, some snarky comment about what's contained in the opinion after those first twenty pages.

No such luck.

The final eight or nine pages are simply about average.  They address a different argument -- whether there's harmless error in this particular case -- and they are what they are.  What's on those pages is about par for the course.  There are arguments.  You could agree, you could disagree, you could be unsure.  It's what you'd expect from smart people writing an opinion.

But those first twenty pages.  They're something different.  As weird as it sounds, I felt like I was reading art.  Which is something I don't think I've ever felt before when reading an opinion from the California Supreme Court.

I readily concede that the depth of my feeling in this regard may perhaps be idiosyncratic.  I nonetheless believe that any reasonable reader will find the first twenty pages of this opinion to be exceptionally well-written.  Maybe they won't be awed in the same way I was.  But they'll still think those pages are crafted pretty darn well.

Meanwhile, I'll continue to think that they're nothing less than awesome.

For those more concerned about substance rather than style, here's what the case is about.  As accurately -- and helpfully -- summarized in the first paragraph of the opinion:

"Here we clarify what kind of provocation will suffice to constitute heat of passion and reduce a murder to manslaughter. The Attorney General argues the provocation must be of a kind that would cause an ordinary person of average disposition to kill. We disagree. Nearly one hundred years ago, this court explained that, when examining heat of passion in the context of manslaughter, the fundamental "inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." (People v. Logan (1917) 175 Cal. 45, 49 (Logan).) The proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment."

The factual setting that required the California Supreme Court to resolve this question are a good test case for the issue.  Basically, defendant and the victim were in a relationship, that relationship was marred by domestic violence, and at some point the parties decided to try to get pregnant, but defendant thought that this effort was unsuccessful.  At some later point, the defendant and the victim got into an heated argument, during which the victim called the defendant "a f**king illegal," a "nobody," and said that she "could get better than [him]."  This (understandably) upset the defendant, who started to leave.  At which point the victim said:  "F**k you.  I was right.  I knew you were going to walk away someday.  That's why I killed your bastard.  I got an abortion."

You can figure out from the context of the case what happens next.  Defendant stabs the victim with a knife, killing her, flees to Mexico, gets caught, is put on trial, and the central question is whether defendant is guilty of first degree murder (premeditation), second degree murder, or voluntary manslaughter.  Did the victim's (alleged) comment create "heat of passion" to push the crime into the latter of these categories?  Defendant argued at trial that it did, and argued that the provocation need only be sufficiently strong to potentially push someone into a "rash" act.  The prosecution, by contrast, argued at trial that to qualify as "heat of passion" sufficient to reduce the crime to manslaughter, the provocation needs to be sufficiently strong to push someone to kill someone.  Those are two starkly different tests, and the jury had to choose between them.  During deliberations, the jurors expressly asked a question about which was the correct standard, and the trial judge responded by essentially repeating the instruction that the jurors had been given.

The California Supreme Court's unanimous opinion is that that defendant, not the prosecution, was correct about the relevant standard.  But that there was no instructional error or prejudice because the jury instruction accurately (though vaguely) articulated the relevant rule.

The first twenty pages of the opinion concern the first of these conclusions.  That's the part of the opinion that's incredibly special.  It's also the most important.  The rest of the opinion deals with the latter part.  That's important too -- especially to the defendant -- but perhaps somewhat less so.

So that's what the case is about.  Important in its own right.  But I just want to reiterate how impressive are those first twenty or so pages of the opinion.  Masterful.  Literally masterful.

Well done -- extremely well done -- Justice Corrigan.

P.S. - Part of the prosecution's argument at trial had a somewhat special appeal to me.   Notwithstanding the fact that I think that the California Supreme Court was exactly right to reject the principle for which the prosecution argued.  The prosecutor told the jury during closing arguments:  "We would have probably millions more homicides a year if [the defendant's version of the law about provocation was accurate] . . . . We've all gotten cut off in traffic.  We say the few choice words.  'Oh, my God.'  We don't gun the pedal and start trying to hit the car in front of use to try to kill the person who cut us off."  I hear you.  I have indeed said "Oh, my God" recently to someone who cut me off in traffic.  Though in my case, that utterance was purely out of pain, not passion. 

Funny how the exact same words can mean such starkly different things, depending on context.

U.S. v. Maloney (9th Cir. - May 30, 2013)

My sense is that I wasn't the only one who thought (as I said here) that the dissent had the better of the argument in this one.

The Ninth Circuit just took the case en banc.

It's largely a fact-specific case.  But it's still wrong.  Sufficiently so that taking it en banc seems right.

We'll see what the en banc panel looks like.  But I'd predict a reversal regardless.

In Re Boyette (Cal. Supreme Ct. - May 30, 2013)

It's a death penalty case, and they're assembling an impartial jury.  They ask the jurors various questions on a written questionnaire.  Here's one of the questions:

“25.  HAVE YOU, A CLOSE FRIEND, OR RELATIVE EVER BEEN ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT COME TO COURT?”

Seems pretty straightforward.  Not much ambiguity there.

The eventual foreperson, Pervies Ary, answers this straightforward question in a straightforward way:  "No."

The truth, however, couldn't be more different.  Here are the actual facts, taken from the California Supreme Court's majority opinion.

Let's take Ary's own criminal history first.  In fact, Ary:

"(1) was charged in 1964 with two counts of robbery and grand theft, and was convicted that same year of felony grand theft [and served six months in jail]; (2) was charged in 1971 with seven counts of robbery, but the charges were dismissed for insufficient evidence; (3) pleaded guilty to driving under the influence of alcohol (DUI), a misdemeanor, in 1982 and was placed on probation; and (4) had his probation revoked in 1982 and was reinstated to probation that same year. Ary himself declares he 'was arrested in . . . 1963 and spent some time in jail.'"

Ary's explanation for his straightforward "No" answer notwithstanding this lengthy criminal history?  "I misunderstood the question."  Yeah.  Right.

Remember also that the question didn't just ask about Ary himself, but also his friends and relatives.  Again, Ary's answer was a straightforward "No."  Here, by contrast, is the truth:

"Ary failed to disclose that his two sons, Pervies Lee Ary, Jr. (Pervies Jr.), and Pervies Lee Ary II (Pervies II), as well as two other relatives, had significant criminal histories. . . . Pervies Jr. (1) was charged in 1986 with four counts of transportation of narcotics, possession, and possession for sale, and pleaded guilty to all four counts in return for being sentenced to three years probation on conditions including 210 days in jail; (2) pleaded guilty the same day in a different case to possession for sale of cocaine and was sentenced to probation on conditions including a consecutive term of 150 days in jail; (3) pleaded guilty in 1987 to sale of marijuana, was sentenced to three years in custody, had the sentence suspended, and was committed to the California Rehabilitation Center in Norco due to his narcotics addiction; and (4) pleaded guilty in 1990 to driving with a suspended license, a misdemeanor.  Documents also indicate Ary's second son, Pervies II, had been charged in 1993 with misdemeanor battery and that this criminal charge had been filed the same day Ary was questioned on voir dire in petitioner's case. . . . Ary also [admits] that '[o]ne of my first cousins got a life sentence during the 1950s for killing a man.' . . . Ary testified at the hearing that he had both a nephew and a cousin who were serving sentences of life without parole for murder, and admitted he had revealed neither relative on his jury questionnaire."

Why the "No" answer?  Same excuse.

I find the foreperson's justification for these answers laughable.  It seems inconceivable to me -- totally inconceivable (and, yes, I know what that word means) -- that Ary simply "mistakenly" answered "No" notwithstanding the lengthy, eminently memorable history described above.  I'm instead of the definite conviction something else explains his answers.

Nonetheless, I understand why the majority here refuses to grant relief.  The referee at the evidentiary hearing bought Ary's excuse.  I cannot fathom making a similar finding myself.  It seems stunning.

I nonetheless understand respective roles.  I didn't see Ary testify.  I wasn't there.  The factfinder made a finding, and it's entitled to a ton of deference.  So be it.  I have deep, deep, super deep reservations about this finding.  But it is what it is.  So I see where the majority's coming from.

By contrast, the second part of the opinion, I simply don't get.

Here's the issue, and some of the underlying facts.  Taken straight from the majority opinion:

"Petitioner alleged in his habeas corpus petition that Ary had urged the other jurors to rent and watch the movie American Me (Olmos Productions, Universal Pictures 1992). The movie allegedly depicts the violence associated with life in a contemporary American prison and focuses especially on Hispanic prison gangs. Petitioner alleged Ary had argued to his fellow jurors that death was the appropriate penalty because petitioner, who was immature and tended to follow strong leaders, would simply join a Black prison gang (such as the Black Guerrilla Family) and continue his murderous ways if given a life sentence, a position that echoed the prosecutor's closing argument. Petitioner further alleged two jurors who were holding out for a life sentence watched the film and eventually changed their vote to impose the death penalty.

Ary's declaration supported petitioner's allegations. He declared: 'I told the holdout jurors that if they wanted to understand what it was like in prison, they should watch the movie American Me. That is based on a true story. Two of the jurors rented the movie and watched it over the weekend. They finally understood that Mr. Boyette could kill again in prison if he was not sentenced to death. After they watched the movie, they changed their votes to death.' . . . .

The evidence adduced at the evidentiary hearing confirmed many of the allegations in the habeas corpus petition and the supporting declarations. Although some jurors had no recollection of any discussion about watching a movie, Ary himself testified that two female jurors 'were so naive about street life' they took the position that life in prison was an adequate punishment because petitioner 'will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to
Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.' Jurors Britton, Mann, Orgain and Perez corroborated this evidence, confirming that Ary and other jurors had urged jurors to watch the movie. Although Ary testified that his advice was directed at two 'naive' female jurors, Juror McClaren recalled that the advice to watch the movie was directed at three or four jurors who were still undecided. Juror Perez had already seen the movie American Me before being chosen as a juror and recalled that other jurors had too.

Juror McClaren admitted she watched the movie American Me during a break in jury deliberations, and Juror Rennie testified she had watched part of the movie. The referee concluded that 'Ary, along with one or more other jurors, did urge two holdout jurors to watch the movie American Me in order to learn more about the nature of a prisoner's life in prison.' Moreover, '[t]wo jurors— . . . McLaren [sic] and . . . Rennie—did watch the movie during the penalty phase deliberations.”

Pardon my French, but:  Jesus Christ!  We're desperate -- desperate -- to avoid outside influences in jury deliberations.  How can we possibly allow a death sentence to stand when it's based not on actual evidence adduced at trial, but on a Hollywood movie?!  That can't possibly be okay, right?

The majority nonetheless denies relief.

Inconceivable.

For anyone who's uncertain about whether watching the movie made a difference, I can't say anything more (or better) than what's in Justice Corrigan's dissent:

"The movie American Me stars Edward James Olmos as a young man who is incarcerated and joins a prison gang, which he leads in a violent struggle over drug turf. It is a raw, violent depiction of the American prison system, with multiple scenes of stabbing and sexual assault.

It is this movie that two undecided jurors watched during a break in deliberations, at the urging of the jury foreman and other jurors voting for the death penalty. There is no dispute that these two jurors committed misconduct by actively seeking out information not presented at trial. There is no dispute that the jury did not reach a verdict after a full day of deliberations. The next day, after these two jurors watched the film, the jury deliberated for only 30 minutes before returning a death verdict. . . .

The misconduct must be considered in context. The prosecutor argued against life without the possibility of parole because defendant could join a prison gang and kill again while incarcerated. In urging undecided Jurors McClaren and Rennie to watch American Me, Foreman Ary took up the prosecutor's theme. He
explained at the evidentiary hearing: 'The two jurors, which [were] the two young ladies, they were so naive about street life until they were so determined that he couldn't harm no one while he was in prison for the rest of his life, and we discussed this, we deliberated and discussed it . . . . We have to do something about this because it's been deliberated too long, so I asked these two young ladies, . . . but these two said he will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.” Ary told them the movie was based on a true story. . . .

The timeline of deliberations provides strong evidence of the movie's influence on these two jurors. The jury began penalty phase deliberations on Tuesday, March 23, 19932 at 2:51 p.m. and adjourned nine minutes later at 3:00 p.m. The jury deliberated all day on Wednesday. They resumed deliberations on Thursday at 9:40 a.m. and returned with a death verdict at 10:10 a.m., 30 minutes later.

After a full day of deliberations, McClaren and Rennie remained undecided. That evening, both jurors independently obtained the movie and watched at least part of it. The next day, with little or no discussion of the film, the jury rendered a death verdict within 30 minutes. Given the brevity of deliberations on Thursday, the most reasonable inference is that the movie influenced McClaren and Rennie to vote for death. Indeed, McClaren testified that she was not a 'holdout' juror but 'simply needed more information' before rendering a verdict. The only 'information' she obtained between deliberations on Wednesday and Thursday was the movie. . . .

McClaren testified that she voted for death after seeing the movie. Britton and Perez confirmed that the vote had been 10 to two in favor of the death penalty before McClaren and Rennie saw the film and the vote was unanimous for death thereafter."

Simply put, the movie made a difference.  This admittedly improper influence -- a story produced by Hollywood -- changed the minds of the jurors.  If that's not prejudice, I seriously don't know what is.

Even after reading the majority opinion for a second time, I just don't understand how it comes out the other way.  I couldn't disagree more.  Particularly given the tests that we (properly) apply when reviewing whether extraneous information has invaded the province of juror deliberations.

One final thing.  Both the majority and the dissent treat the two issues -- Ary's misstatements in voir dire and the influence of the movie -- as discrete events.  But, in my view, they're linked.  Remember that it was Ary who told the jurors to watch the movie.  Something that's clearly improper, and that violated the oaths that the jurors took.  Foreperson Ary was actively pushing for death.

I think that Ary's subsequent (undisputed conduct) may give some insight into why he answered the way he did in voir dire.  Insight that contrasts quite starkly with his subsequent explanation for why his answers were so starkly divergent with the truth.

We can't let people lie to get on juries.  We can't let movies make the difference between someone's life and death.

The result here disturbs me.  As does the fact that only two of the seven justices on the California Supreme Court view this case the same way I do.

Because there are a lot of cases that are close.  But, in my view, this one isn't.

Adir Int'l v. Superior Court (May 29, 2013)

Here's a case that I would have decided the other way.

Debtor loses a $90,000 judgment at trial, so creditor is entitled to execute on the judgment.  It does so, and the sheriff levies some of debtor's property.  But disbursement to the creditor isn't scheduled until later, and debtor still has plenty of time to file a notice of appeal, post a bond and thus quash the judgment lien.  Which it does.  Notifying the sheriff to boot.

At which point the sheriff isn't supposed to transfer the debtor's levied property to the creditor.  But the sheriff mistakenly does so.   Oops.

The debtor accordingly files a motion in the trial court to require the debtor to give back the ill-gotten booty (i.e., the levied funds).  The trial court denies the debtor's motion, saying that there's no statute that seems to affirmatively allow such a request, although there's no statute that precludes such relief either.  The Court of Appeal affirms, for essentially the same reason.

For me, there's such a thing as equity.  There's a principal that for every wrong there's a remedy.  That would be enough for me.  There was a wrong here; the debtor lost some property to which it's entitled and the creditor has been unjustly enriched.  We should change that.  There's no reason at all -- none -- why the creditor should be allowed to hold onto property it should never have received in the first place, particularly since its interest is fully protected by the existing appeal bond.

It matters not to me that the debtor could have potentially filed a different motion that might have gotten its property back in a different way.  It did what it was supposed to do.  It was entitled to get its property back.  That it could have done two things to have gotten the property doesn't negate the fact that the first thing that it did should have worked.

It'd be one thing if there was a statute that affirmatively barred the relief the debtor seeks.  There's not.  I think a writ ordering the creditor to do what it should -- quite frankly -- voluntarily do anyway is entirely appropriate.

Notwithstanding the contrary (though, I concede, understandable) holding of the Court of Appeal.

Stanley v. Ryan (9th Cir. - May 28, 2013)

You see?  Defendants sentenced to death in the Ninth Circuit really do die.

Mind you, the defendant here -- Milo Stanley -- was sentenced to death nearly a quarter century ago, in 1987.  But the appellate process of putting Stanley to death continued apace during this entire period.  And finally, earlier this month, the process reached its end.

Oh, Stanley wasn't put to death.  He committed suicide in his cell.

Which leaves only one final thing to do.  (Besides get rid of the body.)  Vacate any judgments that were the subject of pending appeals.  Which is what the Ninth Circuit does.

NFL v. Fireman's Fund Ins. Co. (Cal. Ct. App. - May 28, 2013)

I think the Court of Appeal is a little bit slippery in this one.  It really skimps over the central argument that the National Football League makes:  that an unincorporated association (e.g., the NFL) is deemed to be a "resident" of the state of its members not only for jurisdictional purposes, but also for purposes of other doctrines like forum non conveniens.

There's some doctrinal logic to this argument.  But the Court of Appeal essentially neither accepts nor rejects it, simply saying that the two doctrines are somewhat different (true) and hence that while a "real" California resident is entitled to a strong presumption against a forum non conveniens stay/dismissal no such "strong" presumption attaches to a "partial" resident like the NFL.

As an outcome, that seems right.  But the Court of Appeal essentially just articulates this rule ex cathedra rather than explaining why it's just.  Which is too bad.  Because I think there could be a pretty nuanced, and persuasive argument, on its behalf.

Then, when applying this rule to the case at hand, the Court of Appeal is slippery again, and only talks about the "strong presumption" (which it has previously rejected) -- as opposed to applying any presumption in favor of California on behalf of a "partial" resident like the NFL.  This seems unfounded.  I think it'd be more forthright to say that, yes, we'll go ahead and give the NFL some deference in favor of California, but here, even with such deference, New York is the right place for this litigation.  Because, in my mind, that's totally true.  But instead the Court of Appeal just articulates a mish-mash of thoughts that are only loosely (if at all) tied to the underlying (and evolving) standard.   Whcih is too bad.

The net result is, again, one I think is correct.  The NFL's insurance coverage action should take place in New York, not California.  That's where the "NFL" does most of its "work".  So when we decide whether or not the NFL's insurance policies cover the ever-increasing number of lawsuits from former players about concussions, it makes sense that the first-filed jurisdiction over New York resolve that issue.  Notwithstanding the NFL's (understandable) contrary desire for a California forum.

Dealing with fictional entities is always a little difficult.  Even when those fictional entities have a clear legal status; e.g., corporations.  (See, e.g., Citizens United). 

Dealing with entities that are not only fictional, but that may not actually even "exist" -- e.g., unincorporated associations -- is even harder.

Heyen & Bluford v. Safeway (Cal. Ct. App. - May 23 & 24, 2013)

It's not been a good couple of days if you're Safeway.

Yesterday, Safeway lost Heyen, an individual wage-and-hour case that Safeway lost at trial to the tune of around $24,000 and in which the Court of Appeal took little time in squarely rejecting Safeway's appeal (filed by their counsel at Littler Mendelson).  So that's bad precedent for Safeway, lost money on their own attorney's, and a cost award -- likely including the other side's attorney fees -- against them.   Not a good day.  Would have been better not to appeal.

Then, this morning, Safeway wakes up to discover that the Court of Appeal has published Bluford.  This one is another wage-and-hour case, but this one's a putative class action involving Safeway drivers.  This time, however, Safeway won below, getting the class decertified, and so is the respondent in the Court of Appeal.

No matter.  Same result.  Safeway loses.  The Court of Appeal reverses, and orders the trial court to certify the class.

So if you're an officer, director, shareholder, or attorney for Safeway, the last couple of days did not come out as you'd have hoped.

But let's look on it from the bright side.  If you're an employee with Safeway -- especially a manager or a driver -- it's probably been a good 24-hour period.  Some victories stayed victories, and some defeats became victories as well.

I'll look at it that way.  Staying positive as the week ends.

Rybicki v. Carlson (Cal. Ct. App. - May 22, 2013)

My interest in cases like this one has definitely increased during the past month or so.

The Court of Appeal gets it right.  Moreover, it does so concisely, in an opinion that takes less than eight double-spaced pages.

Here's my summary of the opinion:  Motor Vehicle 1, Bicylist 0.

I sympathize with you, Mr. Rybicki.  God knows, I sympathize with you.  You were hit by a wrong-way driver while riding your bicycle.  The driver was potentially drunk, and was under 21.  You were seriously injured.  To say that I feel for you is an understatement.

But while you can sue the driver, you can't sue the passengers.  Even if they too were under 21, even if they too were drinking, and even if they helped provide the driver with alcohol.

I know it's a harsh rule.  But under the common law -- which was quickly codified by the Legislature in Section 1714 of the Civil Code once the California Supreme Court started to backtrack on it -- in a case like this one, you can't sue someone for illegally giving someone else alcohol.  The consumption of the alcohol by the driver and subsequent driving constitutes a superceding intervening cause, so no liability.

Sorry about that.

P.S. - Today was the first day I've been able to shower in over week and a half.  Trust me, Mr. Rybicki:  You're be hard-pressed to find someone a more sympathetic to your cause than I am.  But sometimes the law is clear.  Right or wrong.  This is one of those times.

People v. Timothy N. (Cal. Ct. App. - May 22, 2013)

When you are a repeat player in the justice system, you've got to do better than this.

If you are the California Attorney General, there are so many better vehicles for getting your point across rather than taking this particular case up in appeal.  Instead, here, the A.G. decides to fight every single battle, and in doing so, loses the war.

Sometimes the best strategic decisions involve cases and/or appeals that you elect not to bring.  This should have Ben one of theses cases.

People v. Pizarro (Cal. Ct. App. - May 21, 2013)

I am exhausted.

Not over the stuff you might think.  Though that might assuredly play a part.

Rather, I am spent -- spent, I tell you -- after reading this opinion by Justice Kane.

There is some interesting stuff in the opinion about juror misconduct.  Which is what ultimately gets the defendant, Michael Pizarro, a new trial in the first-degree muder of his 13-year old half-sister.  A trial that will be required notwithstanding the fact that the murder was nearly a quarter-century ago and Pizarro has already been unanimously convicted for this offense twice.

No one is happy out this result.  Not me.  Not Justice Kane.  No one.

But that's what happens when a juror goes on the Internet and reads the published decision by the Court of Appeal in the case that's the exact one the juror's deciding on remand.

Cannot do that.  Improper.  Likely criminal.  Reversible error.

So for any jurors who may be reading the California Appellate Report while you are still a juror:  Stop now.  Turn off the computer.  You can come back and read all you want after you are discharged from service.  Do everyone -- everyone -- that favor.

But the majority of Justice Kane's opinion actually concerns a different issue.  DNA evidence.  That is the part that has literally exhausted me.

It is not just that the topic is complicated.  As well as, commendably, addressed at intellectual depth in the opinion.  All that's tiring, for sure.

It's also pure volume.  The opinion spans over 115 pages.  In, again, incredible depth.

Yikes.  You just don't see that usually in the Court of Appeal.

For me, it felt less like reading an opinion than reading a dissertation.  A science dissertation, no less.

I learned a lot.  A ton.  But I'm exhausted.  Spent.  Done.

So go ahead and read this one if you want to learn a lot about DNA evidence.  Which is, admiringly, a fascinating as well as critical field.

But I warn you ahead of time.  It's going to take you forever.  As it did me.

And, at the end, you're going to need a nap.

Enjoy.

People v. Lopez (Cal. Ct. App. - May 20, 2013)

I have a couple of reactions to the underlying facts of this case.  So I thought others might be interested in those facts as well:

"Respondent [Sergio Jose Lopez], a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena Zavala. Zavala stated as follows: During an argument with respondent the previous day, she asked him to move out. Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with respondent, and he 'let go.' Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her 'if they were okay.' Zavala responded that 'they were not okay.' Respondent 'pulled her head out of her elbows where she was crying and brandished a silver handgun revolver in his right hand.' Respondent said, 'I told you if you were ever going to leave me, I will shoot you and shoot myself.' Respondent inserted a single bullet into the revolver's cylinder. He cocked the revolver and put the muzzle against his temple. Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at her and then at himself. When respondent pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and mattress. Zavala said that she was not going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told respondent that she was going to take a break. Respondent replied, '[Y]ou're not going anywhere.' Zavala felt 'an object hit her in the buttocks.' Respondent had thrown a candle at her. Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw her onto the bed. For several minutes, he hit her with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said that her children were going to be home soon from school.

Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched the vehicle and found a revolver that was registered to respondent. The revolver's cylinder contained one expended cartridge and no live rounds. Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found underneath the hole in the sheet. Scheller saw 'an impact mark on the wood of the headboard.'"

The rest of the facts are about what you'd expect.  Criminal charges for assault with a firearm, injury on a cohabitant, negligent discharge of a firearm, etc.  Restraining order issued that bars Lopez from further assaulting or contacting the victim, etc.  The usual stuff.

But here are some things that might surprise you.  Or at least that surprised me:

(1)  Remember that Lopez is an attorney.  Surely he was disbarred -- or at least suspended -- for all of this, right?  Especially since he'd only been admitted to the California Bar around three years before these offenses.  We care seriously about domestic violence, about firearm offenses, about an attorney who allegedly lacks impulse control, etc.  No way a guy like this gets to keep his license, right?

Wrong.  Lopez is still an active, practicing member of the California Bar.  Specializing in, ironically, criminal law and family law.

(2)  You'd think that Lopez's criminal prosecution would be a slam dunk.  They find the gun and the bullet hole.  Good witness testimony.  To be sure, it's a classic he-said/she said dispute, but that's lots of domestic violence cases.  Seemed to me like there's no reason the state couldn't win this one.

I was wrong again.  The jury outright acquits Lopez on the assault, false imprisonment and negligent discharge of a firearm counts.  It hung on the inflicting corporal injury on a cohabitant count, which the prosecutor then dismissed.  Those are the biggie counts, and are the one most relevant to the central facts.

The jury finds Lopez guilty essentially only on ancillary counts:  one count of attempting to dissuade a witness (the victim) from testifying, and one count of violating the restraining order.  The latter is only a misdemeanor, and as to the former, the trial court grants a new trial, holding that this verdict was against the weight of the evidence.  "Thirteenth juror" theory stuff.

Which means that Lopez essentially just gets time served and -- after the Court of Appeal's (correct) ruling that the new trial order on the dissuasion count isn't a double jeopardy bar, a potential second trial on that one.

The guy could have done much, much worse.  Indeed, I'm at a loss to explain why the jury came out the way it did.  The Court of Appeal's opinion includes a lot about the facts on the prosecution's side, but nothing about Lopez's defense.  So hard to assess why the case came out the way it did.

Point (2) may be linked to Point (1).  Maybe Lopez is still a lawyer because he got off of the most serious counts.  Though now that his conviction is (essentially) final on the restraining order violation I wouldn't bet on him remaining an attorney for long.  Even if he beats the dissuading witness count on retrial (or has the trial judge dismiss it).

(3)  Third surprise:  I didn't know that just hanging out with a potential witness in a hotel, hoping that they thereby avoid a subpoena, was a felony.  My baseline here was always that people were free to avoid subpoenas as long as they did so legally.  No requirement that I answer the door, for example, if I fear it's a process server.

I think that's the case, anyway.  But there's apparently a distinction people who "help" someone not answer the door; that's a crime.  Even if there are no threats and the third party truly is only advancing the internal desires of the would-be witness.  I knew that professional responsibility rules for lawyers sometimes draw a related line, but had no idea that the criminal law did something similar.  Good to know, and at some later point, I might even think about this issue in more detail.  (For now, I'm just happy to be introduced to the concept.  And I agree with the Court of Appeal that if that is indeed the law, the evidence here was not legally insufficient, and that a reasonable jury could find that Lopez was not just "hanging out in a hotel room with his girlfriend" but was instead helping her avoid a subpoena so she didn't have to testify against him at his preliminary hearing.)

(4)  Final point.  If you ever doubt that there's such a thing as BWS (Battered Women's Syndrome), reread this case.  Look at what the victim does on Lopez's behalf even after she's "free" and able to escape his psychological clutches.  That someone doesn't leave an alleged batterer doesn't mean that there wasn't battery.  It may not make rational sense, but people aren't uniformly rational animals.

Case in point.

In Re Martin (San Diego - May 13, 2013)

Regular readers may notice that I have been very light on posts this week.  In fact, I must forthrightly confess that I have probably read fewer pages of the Federal and California Appellate reporters this week than any week during the past decade.  A period that includes a plethora of vacations, crushing workloads at the office, etc.  Because I enjoy learning and thinking about the law and legal problems, I almost always find some spare time to do so, edven when things are busy.

This week has been an exception.  I have done virtually nothing on the law side since I got on my bicycle at the end of work on Monday to return home.

Since I generally post about legal matters, I won't bore you with the factual details of my week.  I also don't have to.  All I have to do instead is to refer you to this post, which I wrote almost exactly five weeks ago.

The prescience of that post is almost freakily scary.  Similarly eerie is how the facts of Spriesterbach describe nearly perfectly -- stunningly so -- how my Monday the 13th, as well as the rest of the week (and counting), turned out.

With one exception.  In my post, in addition to discussing legal doctrine, I took Spriesterbach to task -- rightly so, I think -- for, immediately after the accident, "saying 'You fucking bitch.  I am going to sue you.'  He picked up his bicycle and threw it, and picked it up again and threw it against a tree.  He pulled earplug from his ears and called the police."

By contrast, yours truly -- and I remember the events as vividly as anything in my memory -- could only manage to repeatedly moan a single sentence fragment, over and over.   "Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God."

I've been posting from my "temporary office" since then, and likely for a while longer.  I will pick up the pace of my "recreational reading" -- and publishing my reactions -- as I'm increasingly able.

In the meantime, I want to emphasize again what I said five weeks ago.

Let's be especially careful out there.

It matters even more than I previously realized.

P.S. - Today's Bike to Work Day.  Coincidental timeliness strikes yet again.

Greene v. Bank of America (Cal. Ct. App. - May 16, 2013)

Not too long ago, I litigated an appeal in which the attorney for the defendant (Jan Chilton) was the same one as in this appeal. l.  I found Him to be reasonable, sophisticated and smart.

I do not think that these qualities in an opposing counsel uniformly exist.  Far from it.

I ended up (partially) winning my appeal.  Mr. Chilton loses this one.

But I mention the identity and qualities of the respondent's counsel because it perfectly explains, in my view,what happens here.

This appeal is a no-brainier.  Appellant is totally right.  The trial court clearly got this one wrong.  Justice Armstrong's opinion persuasively and concisely explains why appellant's arguments are both basic and entirely right, and why respondent's are wrong.  It is a totally simple case.

But it is nonetheless a mark of a good lawyer that s/he is able to make totally erroneous arguments look at least plausible and/or facially appealing.  That's what Mr. Chilton does here.

Sometimes ou lose and there's nothing to be ashamed of.  Your side was wrong.  Nothing you could do about that but put the best possible, albeit losing, argument forward.

And be proud even in defeat.

Slater v. Clarke (9th Cir. - Nov. 19, 2012)

I'm not sure how the Massachusetts officials who (allegedly) decided not to extradite Daniel Tavares could possibly have made that decision rationally.  Nor could the survivors of the two people who died as a result.

But I'm also not sure how Judge Leighton, from the Western District of Washington, could deny the defendant's immunity motion.  State officials are absolutely immune for these sorts of executive, prosecutorial decisions.  That's clearly the rule.

Fortunately, Judge Christen isn't as confused as the above-mentioned officials.  Reversed.

County of Tulare v. Nunes (Cal. Ct. App. - April 29, 2013)

Doesn't the Court of Appeal find it somewhat ironic that the County of Tulare adopted -- and the Court of Appeal affirmed -- an ordinance that bars the cultivation of medical marijuana in places zoned for agriculture?

Gonzalez v. F.E.V. (9th Cir. - March 23, 2013)

There's a dissent in this Section 1983 police excessive force case.  The panel consists of Judges O'Scannlain, Trott and Clifton.  One need not speculate as to the identity of the dissenter.

It's a fascinating case.  Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously:  that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves.  Accordingly, on a summary judgment motion, a core issue involves the degree of reasonable inferences necessary before a jury reasonably could conclude that the officers' story lacked credibility.  That's a darn good point, and it's one that I didn't sufficiently appreciate until I was reminded of it by Judge Clifton's dissent.

One can summarize Judge Clifton's dissent by saying that there was sufficient evidence here for a reasonable jury to find that the police officer deliberately shot the unarmed decedent in the head at point-blank range when the vehicle the decedent was driving was travelling four miles an hour.  The majority says that, as a matter of law, that's not excessive force.

Read it and see if you agree.

People v. Fisher (Cal. Ct. App. - May 10, 2013)

It may well be -- as the Court of Appeal holds -- that a criminal court doesn't have the statutory power to enter a restraining order in an extortion case, unlike some other criminal cases (e.g., stalking, domestic violence, etc.).

However, if that's indeed the case, the law should be changed.

Defendant tries to extort a job from someone by threatening him.  Defendant gets convicted.   After trial, defendant sends the victim a note that says he was "looking forward to seeing [the victim] at the trial, but no matter; other opportunities will present themselves.  Have no doubt; I will be a regular fixture at the races, in the future."

I think it should be just fine in a case like that for the court to include as part of its sentence that the defendant have no further contact with the victim.  Ever.

The Legislature should get on it.

Duchrow v. Forrest (Cal. Ct. App. - April 30, 2013)

I'm looking for someone to root for here.

Lawyer A represents Lawyer B in an action against Lawyer B's employer.  Lawyer A withdraws at the beginning of trial, and the case is dismissed.

Lawyer A then sues Lawyer B for alleged unpaid fees and costs.  Lawyer A's complaint seeks $44,000, but on the fourth day of a five-day trial, seeks to up that amount ("conform to proof") by several hundred thousand dollars, relying on a provision that he knew about for years.  The trial court allows the amendment, and the jury gives him a six-figure award, but the Court of Appeal reverses.

Lawyer B, by the way, represented herself at trial.  He's a transactional lawyer.  She's also been declared a vexatious litigant.

How Lawyer B -- Ernestine Forrest -- gets to keep a spotless public disciplinary record despite having been declared a vexatious litigant I'll never know.

I'm not in favor of Lawyer B.  But I'm definitely not in favor of Lawyer A either.

If only we could just give the six-figure back pay award that Lawyer A received to the deserving poor rather than ration it out between these two . . . .

In Re David & Sharon Welsh (9th Cir. - March 25, 2013)

I certainly do not have a firm understanding about how bankruptcy works.  For what it's worth -- which is not much -- it seems to me that this Ninth Circuit opinion, which affirms a (split) decision of the Bankruptcy Appellate Panel, seems correct on the merits.

But I do wonder about the equities of the thing.

David and Sharon Welsh live in Montana.  They have a house worth $400,000 -- which buys you a lot in Missoula (check out this 5 bedroom, 4 bath home with 4200+ square feet and two acres of land) -- and lots of equity in the home.  They own three cars, an Airstream trailer, and two ATVs.  They also earn nearly $100,000 every year, plus many additional thousands of dollars in Social Security benefits.  In short, for Montana, they're rich.

But, like many of us, they have debts.  They cosigned their daughter's student loan and have a $50,000 line of credit with Bank of America.  They don't feel like paying these debts.  So they file for bankruptcy and propose a plan that has them continuing to pay off their secured debts (the house, cars, trailer, ATVs, etc.) but pay only $15,000 of their $180,000 unsecured debts.  Despite the fact that their disposable income, even as calculated pursuant to the bankruptcy rules (e.g., excluding Social Security income), would allow them to make far more substantial payments.

The Ninth Circuit says that the debtors' plan was nonetheless required to be affirmed.  Which indeed seems to be the case.

I'm all for giving people a fresh(ish) start.  Though case like this one, while perhaps not the most egregious, might not give the bankruptcy rules a great name.

Goldstein v. City of Long Beach (9th Cir. - May 8, 2013)

Ninth Circuit judges certainly know their way around a dictionary.

Thomas Goldstein spent 24 years in prison based upon the perjured testimony of an unreliable jailhouse informant, Edward Fink.

Judge Reinhardt describes the informant as "the eponymous Edward Fink."  Judge Thomas delves even further into the dictionary, calling him "the aptronymic Edward Fink."

Eponymous.  Aptronymic.  Informant = Fink.  Get it?

It's been a big year already for the word "eponymous."  In the Ninth Circuit alone, Judge Wardlaw used it last month in a lawsuit involving Donald Trump and Trump University, and Judge Berzon used this same term in a different opinion the previous month.  So Judge Reinhardt makes it three months in a row. 

I'm looking forward to seeing what June brings.  Maybe a reference to sprinter Usain Bolt?  Sexting Congressman Andrew Weiner?  The possibilities are endless.

But Judge Thomas ups the ante.  As far as I can tell, "aptronym" has never been used in any published or unpublished federal or state court decision.  Ever. 

And it works.

Let's keep 'em coming.