Hale v. Superior Court (Cal. Ct. App. - April 2, 2014)

As I read this opinion, I initially thought that it concerned an issue that should probably be reviewed by the California Supreme Court.  You've got multiple different Court of Appeal opinions that conflict with each other -- and this latest missive deepens the split -- and that relate to an issue that arises frequently (e.g., when a drunk driver kills or injures others).  There's no sign that the issue's going away, and the result shouldn't vary simply depending upon which panel the defendant happens to draw.

Which generally means that the California Supreme Court should grant review.  Even if the opinion here is correct on the merits.

But as I reached the end of the opinion, I reconsidered that position.

I realized that the Legislature can easily solve this problem by amending the underlying statute.  It's not a constitutional case, so a statutory fix would work.  The Legislature also has a large incentive to do so since today's opinion is pro-defendant, and it's not like drunk drivers are the most popular constituency in the universe.  If there's a problem, there's every reason to think that the Legislature is more than able to fix it.  Plus there are dozens of district attorneys (plus the California Attorney General) aware of the problem and with access to the sympathetic ear of state legislators.

Given this fact, I decided that it's probably best to simply let this one sit.  Faster, easier and clearer for the Legislature to solve this problem than it is for the California Supreme Court to wade in.

U.S. v. I.M.M. (9th Cir. - March 31, 2014)

With all due respect to Judge Reinhardt and the rest of the panel, when I read this opinion, my reaction was:  "Miranda, Schmiranda."

Which is just a (totally un-)fancy way of saying that I care very little about whether the child here was given his Miranda rights, because in my mind, his "confession" was completely involuntary anyway.

You've got to read the opinion to believe it.  To set the scene:  there's a five-year old girl and her four-year old brother and a twelve-year old male cousin outside, with a grandmother and grandfather inside a trailer on a reservation in Arizona.  The grandmother and grandfather radically disagree on what the other did and said -- a dispute that creates yet more controversy in this case -- but the underlying issue is simply whether the twelve-year old (who's on trial) touched the five-year old.  There's no evidence at all with respect to this issue other than the testimony of the children:  no physical evidence, nothing.

I'll not go into what the various children say at trial, though lots of this is in Judge Reinhardt's opinion, and it's fascinating stuff.  Particularly look at the problems with the four-year old's testimony.  Which is about as helpful as testimony from . . . a four-year old.

Clearly, the most damning evidence against the defendant is his confession.  That's why there's this whole fight about whether this twelve-year old kid was in "custody" and was given his Miranda rights etc.  Because absent that confession, it's unambiguously a whole different ballgame.

I'm not saying that there's anything at all in Judge Reinhardt's opinion with which I disagree.  Because there's lots of good stuff in there.

I just take a slightly different approach.

Put me -- an untrained civilian -- alone with a twelve-year old boy in a small, six-by-six foot room in a police station, and let me see if I can get a "confession" out of him.  Let's have the kid -- as here -- be a twelve-year old who's in special education classes and who reads at a second grad level.  Let me kick the mother out of the room, shut the door, and "talk" to the kid, especially after he denies that he did anything wrong.  Let me tell him that what he's done "isn't really a big thing" but will become a "big thing if you're not going to be honest."  Let me tell the kid -- a kid who doesn't even know his own address -- everything he needs to say to get out of here if he'll just confess.  Let me especially work this kid if he's incredibly troubled and emotionally vulnerable; for example, if he's been abused himself and, especially, if he's witnessed his father try to kill his mother.  All of which are true here.

Oh, one other thing will help too.  Let me lie.  Let me tell the kid that his grandfather -- the only stable role model in his life, the person who he calls "Dad" -- has sworn that he saw the kid molest his cousin.  Let me repeatedly hammer this home to the kid:  Let me repeatedly tell him that by denying the offense he's calling his grandfather a liar, remind him that he's admitted that his grandfather doesn't lie, and use every conceivable machination to point out to the kid that the only way he can tell a story that doesn't make his grandfather into a liar is to say he touched his cousin.  Never mind that none of this is true:  that the grandfather never said anything at all even approaching what I'm telling the kid.  It's the only way out of the tiny room.  Especially since the kid's already admitted that anything the grandfather says is the truth.

I'll get that twelve-year old to confess.  Truly I will.  Even if, unlike the officer here, I don't have a gun at my side.  Because I can play on the mind of a child -- especially a child like this -- even a fraction as well as the officer here did, and I can get a confession.  Even more so if, like the officer here, this isn't my first interrogation rodeo.  And I can maybe even do it with a clean conscience if I testify -- as the officer does here -- that he's never even heard of a false confession.

Here's an empirical test for you.  You take 10 adults and beat them with a hose.  I'll take 10 children and interrogate 'em like the officer did here.  We'll both try to get 'em to confess to a crime we know they didn't commit.

I bet I win that competition every single time.

Confessions are -- and should be -- excluded when they're involuntary.  That's Due Process.  Sure, we've got the "prophylactic" Miranda rule, and maybe that was violated here.  But there a core Due Process problem as well.  And when you've got a "confession" obtained in circumstances like this one, I'm not sure if it's not better to go right to it.  Because if there's ever a case in which I really, really do not like the tactics that the officer elected to employ -- because they may well result in convicting an innocent child -- this one's a perfect example.

And that has very little to do with whether I read the kid what's on a tiny index card; rather, it has to do with psychologically manipulating the child into saying whatever I want him to say.

That's my slightly different perspective on the case.

Peabody Coal Co. v. Director, OWCP (9th Cir. - April 1, 2014)

We don't get that many Black Lung Benefits Act cases out here in the Ninth Circuit.  Compared to, say, the Third or Fourth Circuits.  But when we get 'em, we have to decide them.

Robert Opp worked as a coal miner for 39 years.  He was also around a pack-a-day smoker during this period.  He developed chronic obstructive pulmonary disease -- COPD.  He applied for benefits under the Black Lung Benefits Act, claiming that his COPD was caused or aggravated by his employment in the coal mines.  Peabody Coal opposed his application, contending that Opp's COPD was solely due to smoking.

The Administrative Law Judge gave Opp benefits.  The Benefits Review Board affirmed the ALJ's decision.  Peabody Coal appealed to the Ninth Circuit.  Which didn't feel a need for oral argument to resolve the case.  (Though the Ninth Circuit did inexplicably require nearly nine months after the submission date to finish its opinion.)

As for how the Ninth Circuit came out, see if you can guess.  With the hints that:  (1) it's the Ninth Circuit, and (2) the author of the opinion is Judge Pregerson.

Yep.  You're right.

No April Foolin'.

Gonzalez v. City of Anaheim (9th Cir. - March 31, 2014)

There are lots I could say about this en banc opinion.  You can read the majority and the dissent in this qualified immunity/excessive force case and see which one you find more persuasive.

But I'll stick to two basic points.  Which I'll try to articulate without much elaboration.

(1)  The dissenters -- principally, Judges Kozinski and Trott -- both say that it doesn't matter to them one iota how fast the car was going.  They say that no reasonable juror could possibly care how fast the car was going because the officer was indisputably trapped inside it and so did what he had to do.

Okay.  I understand that you and I might not see the world in invariably the same way.  Maybe I have a perspective that's so absurd to you that you'd find me (and my conclusions) patently unreasonable, and the fact that 11 citizens bereft of black robes unanimously agreed with me wouldn't change your mind.  I get that.

But, for whatever it's worth, let me tell you my personal perspective.

To me, it absolutely matters how fast the car was going.

Yes, the minivan was weaving in lanes, so I get the officers conducted a traffic stop.  And yes, after stopping, the driver was uncooperative, and tried to swallow a baggie of something, so one cop started grabbing and beating the guy through the driver's side window, while the other cop eventually jumped inside the passenger side door and started punching the driver in the head.  And, yes, the driver acted improperly, and pushed the stick shift into gear and jammed on the accelerator, causing the vehicle to move.

Yes, that put the officer who entered the car in a tough position.  The car was moving.  The door had shut.  He was inside.  He quickly tried shifting the car into neutral or turning off the ignition, but that didn't work.  So the officer had to make a call.  I get that.

But to me, for what happens next, it matters how fast the car is going.  Very much so.

If -- as the officer testified -- the car was going fifty miles per hour, that's one thing.  Speeding car, speeding officer, trapped, no way out.  I get it.

But if, as everyone admits may in fact be the case, the car had in fact only gone 50 feet, and in fact was only going 3.4 miles per hour, to me, that's an entirely different situation.  And even if you're an officer and are "trapped" on the passenger side of a vehicle, to me, it is not reasonable to put a gun six inches from the driver's temple and pull the trigger, killing him.

Judges Trott and Kozinski both write opinions that expressly say that what the officer here did was totally okay even if the car was going 3.4 miles an hour.  No need to simply open the door and walk out.  No need to try pepper spray, or retry the ignition, or continue to try nonlethal force.  To put it the way Judge Kozinski does in his succinct dissent, even if the car was going three miles an hour, "no sane officer in [the officer's] situation would have acted any differently, and no reasonable jury will hold him liable."

With all due respect to Judge Kozinski, we see the world differently.  I can't speak with certainty to your former point, having never been a police officer, but I nonetheless think that there are plenty of "sane" officers who would not deliberately kill a man at point blank range if they found themselves in the passenger side of a vehicle traveling at three miles per hour.  And, in any event, I can definitely speak to your latter point.  If I'm on a jury, and an officer kills a man in these circumstances while going three miles per hour, I may well hold him liable.  As may eleven others.  You may perhaps call the twelve of us "unreasonable".  But with respect, perhaps a little deference to the common man is in order here.  Perhaps it is your perspective that is unreasonable.  Or perhaps both of our approaches are within the range of reason.  One important part of being a judge is recognizing that the Founders were pretty confident that there might well be a divergence in what judges thought and what jurors might think on identical facts.  And enshrined in the Constitution the Seventh Amendment as an important constraint on what we should do in situations like that.  I think that's pretty important.  Not always.  But at least where reasonable minds can disagree.

And I understand that you might think that I, and everyone else like me, is unreasonable.  All I can say is that I bet the number of such "absurd" conclusions is nontrivial.  And sincerely felt.  Even by those who might be as approximately as informed and as sophisticated as you are on these topics.

So maybe just give that some thought.  Because whether it's three miles per hour or fifty really does matter to people like me.  Again:  For whatever that's worth.

(2)  Second, a doctrinal point.  One of my first-year students in Civil Procedure asked me just last week in class why a judge would grant a JML motion -- a "directed verdict" -- if they had previously denied a summary judgment motion.  This case is a perfect example.  The evidence on a summary judgment motion is limited to what the parties submit.  Here, the officer's testimony had real problems, and the moving party's summary judgment papers didn't clear those problems up.  The officer said the car was going 50 miles per hour, but also said that the car went 50 feet in five to ten seconds.  Those two figures don't add up.  As the majority opinion amply demonstrates.  Fifty feet in ten seconds is more like three miles per hour.

Now, maybe, in fact, the car went more than 50 feet.  There may well be demonstrable evidence to prove this point -- incident reports, photographs, etc.  But the moving party didn't introduce any such evidence.  It didn't explain the inconsistency.  Ergo a reasonable jury could, in fact, conclude, viewing all reasonable inferences in favor of the nonmoving party, that the car was only going around three or so miles an hour.  Which may well make a difference.

At trial, this error may well be remedied.  There may well -- indeed, probably will -- be photographs and complete reports introduced into evidence.  Evidence that may well demonstrate that the car went well over fifty feet.  Which would explain the officer's error and, perhaps, lead to a directed verdict.

But that's not the evidence here.  When lawyers make mistakes, or don't anticipate problems, you can get results like the one here.

Which is what I essentially told my students.  Without a concrete example.  Explaining just in general how the evidence on a summary judgment motion might be different than that introduced at trial, and hence lead to different results even though the underlying substantive standard (whether a genuine issue of material fact exists) is identical.

Now I've got a case to use as an example.

P.S. - One tangential point.  Unrelated to the merits.  Check out footnote 10 of Judge Trott's dissent (at page 44).  I cannot tell you how thrilled I am to see that unmarked sarcasm has now made its way to a published Ninth Circuit opinion.  Judge Trott doesn't even add *Sarcasm Alert* to the footnote.  He simply says what he says and let's the reader decide if he's kidding or not.  Totally awesome.

Lal v. California (9th Cir. - March 31, 2014)

You can take police on a high-speed chase on the 101 for 45 minutes at speeds in excess of 100 miles per hour.  You can tell the police that you want to kill yourself or have them shoot you.  When the cops disable your vehicle with a spike strip, you can get out of your car and scream at them "just shoot me, just shoot me".  You can pick up a large rock, repeatedly bash it against your forehead, and then start throwing rocks at the officers.  You can even try to pretend that your cell phone is a pistol, and try to trick the cops into shooting you by "firing" it at them.  To which the police will hopefully respond the same way that they did here:  By screaming to the other officers not to shoot you because it's a phone, not a gun.

But when you take your football-sized rock and start advancing on the officers, getting with a few feet of them, at that point, they're not going to be able to wait for the K-9 they called for backup.  You'll get your wish, and they may well feel compelled to shoot and kill you.

So congratulations.  You've "won".

But when your estate sues the officers for alleged excessive force, well, that's a different story.  That one's going to be an unambiguous loss.  Qualified immunity.

Or, to put it differently, in the game of life, "Gun Beats Rock".

Ceron v. Holder (9th Cir. - March 31, 2014)

Back in April of 2013, Judge Graber wrote a majority opinion that distinguished circuit precedent in a deportation case, but Judge Ikuta dissented, contending that the majority was bound by that precedent.

In September, the case got taken en banc.  Which meant that Judge Graber's opinion could no longer be cited.

But guess what?  Judge Graber gets drawn for the en banc panel.  Judge Ikuta does not.  And, today, the en banc court issues its opinion.  Authored by Judge Graber.

It's 9-2.  Judge Bea, joined by Judge Gould, dissents.  This time Judge Graber gets to say what she wants to say without being constrained to "distinguish" circuit precedent.  So squarely overrules the prior circuit precedent "to the extent it's inconsistent" with today's holding.

So that puts an end to that.

Ventress v. Japan Airlines (9th Cir. - March 28, 2014)

If a lawsuit lasts nearly a dozen years, it's got to be looking good for the plaintiff, right?  Surely the defendant's inability to get the case finally dismissed for all that time means that they're going to have to eventually settle the thing, right?

Not at all.

This case lasts exactly that long, and goes up to the Ninth Circuit three times.  Plaintiff won the first two times.  The Ninth Circuit first held that plaintiff's claims were not preempted by the Friendship, Commerce and Navigation treaty.  The second time, it held that those claims were not preempted by the Airline Deregulation Act.

But the third time was a charm for Japan Airlines.  At that point, the Ninth Circuit held that the claims were preempted by the Federal Aviation Act.

Too bad Japan Airlines hadn't started with that one.  It would have saved a lot of time and money.

For everyone.

Rouse v. Wells Fargo (9th Cir. - March 27, 2014)

You've got to be a monster civil procedure geek to read nearly twenty single-spaced pages about what Congress meant when it said that, for purposes of diversity jurisdiction, national banks are deemed to be “citizens of the States in which they are respectively located.”  Does "located" mean where they have branches, or do a substantial amount of business, or simply where their headquarters are?

I am, however, precisely such a geek.  So I read the thing.  (Which is more than I can say for the plaintiffs/appellees.  Who didn't file a brief, didn't enter an appearance, and didn't even respond to letters from the Ninth Circuit about whether they wanted oral argument.  Clearly, they care deeply about the resolution of this appeal.  Not.)

Judge McKeown's majority opinion holds that the right rule is that they're only "located" where their headquarters are.  Judge Gould's dissent says that he "regrets" that he's constrained to disagree, and thinks that especially for entities like Wells Fargo -- a traditional California entity and one with its principal place of business here -- it's silly to say they're not "located" here.

But Judge McKeown gets Judge Bybee's vote.  So there you have it.

People v. Black (Cal. Supreme Ct. - March 27, 2014)

The majority opinion (written by Justice Chin) has a point.  Justice Liu's concurrence (joined by Justice Kennard) has a point as well.  One that -- as Justice Liu mentions -- is not necessary inconsistent with the former.  (Though, to be honest, I think that Justice Liu may be expressing a hope rather than giving a neutral evaluation of the majority's holding.  Lots of what the majority says is somewhat inconsistent with Justice Liu's proposed caveat.)

The California Supreme Court holds that it's not reversible error to fail to discharge jurors for cause as long as the defense is able to strike those jurors with peremptory challenges.  Even when, as here, the defense then runs out of them.  You can see the majority's point.  Defendant was able to remove those jurors anyway.  No blood, no foul.

But Justice Liu has a point as well.  To put it somewhat differently than he does:  What's the incentive for the trial judge to get cause challenges right if it's never reversible error?  The challenges here are a good example:  it's crystal clear that the jurors should have been struck.  The trial judge nonetheless was more than happy to seat 'em.  So defendant was forced to waste precious challenges.  Given the California Supreme Court's holding, there's absolutely no reason for trial judges to pay serious attention to even legitimate challenges for cause.  What's the defense going to do if the challenge is denied?  Get a writ granted in the middle of jury selection?  Good luck with that.  Since it's not reversible error, the trial judge can just say "Denied" to even the most obviously meritorious challenges.  No problem.  No reversal.  No remedy.

Justice Liu's concurrence says that maybe reversal should be allowed when the trial judge "repeatedly" makes errors, since that creates an illegitimate balance between the challenges granted to the defense versus the prosecution.  I agree with him as a policy point.  Though I'm not sure why that's not in fact precisely the case here.  Since the trial judge did it twice, with two different jurors, so it seems to me that qualifies as "repeatedly".  Justice Liu doesn't explain why doing something twice doesn't count, or what "repeatedly" means if it doesn't mean "more than once".

Even beyond Justice Liu's (very good) point, the California Supreme Court's holding seems to me to create an untenable doctrinal inconsistency.  The Court has expressly held that it's reversible error to fail to give a defendant his specified number of peremptory challenges.  So, for example, if the statute says he's entitled to 10, but you only give him 8, that's reversible error.

But if that's the rule, then I don't see why the same result doesn't apply here.  That's basically exactly what transpired.  Defendant was entitled to 10.  But the trial judge's errors meant he only got to use 8 because he had to waste 2.  I don't see why it makes a whit of difference whether the trial judge's error is his inability to properly count to 10 or his inability to dismiss 2 jurors for cause.  The practical effect is exactly the same.  Exactly.  The defendant is forced to leave two jurors on it was entitled to bounce.

How you get to 8 doesn't matter.  At least in any way that makes sense.

What's the only way it matters?  I've got a pretty good sense.  The reality is that trial judges are much more likely to be able to count to 10 than they are able to properly adjudicate challenges for cause.  So why reverse the former but not the latter?  Nothing to do with doctrine or effect.  It's simply that we're willing to do so because there aren't many examples of the former but we're worried there might be way too many instances of the latter.

That's not a normative explanation for the distinction.  But I think it's pretty descriptively accurate.

So trial judges:  If you're sleepy, feel free to take a nap during voir dire.  Put a big thumb on the scale towards denying challenges for cause.  No downside if you get it wrong.

Just remember how to count.  That we care about.

People v. Petrovic (Cal. Ct. App. - March 26, 2014)

"Yeah, apparently, the feds are soft on kiddie porn.  Especially those perverts on the Ninth Circuit.  By contrast, we here in California take these things seriously.  Unknowingly having a temporary cache file in your computer may not count as 'possession' of child pornography in the federal system, but here in California, under state law, we say it does."

So holds Justice Gilbert.

Pielstick v. MidFirst Bank (Cal. Ct. App. - March 26, 2014)

If you're pretty sure that you're going to lose a demurrer to your complaint -- perhaps the tentative is against you? -- and you want to voluntarily dismiss the complaint without prejudice instead, be sure to do so before the hearing starts.  Because once it has started, the "trial" has "commenced" and you no longer have the unfettered opportunity to dismiss.

At which point, if you're right, you'll really lose.  With prejudice.

Jackson v. City and County of San Francisco (9th Cir. - March 25, 2014)

Ah, that nutty, left-wing Ninth Circuit.  We all know what it's about.  Of course it upheld today San Francisco's requirement that firearms be stored with either a trigger lock and/or in a locked container, as well as its ban on the sale of hollow-point bullets.  What else would one expect from a court packed with liberals and demonstrably hostile to the Second Amendment?

That's a consistent refrain.  After this morning's opinion, you'll presumably hear it a lot.

The hard part, however, will be explaining why today's opinion is authored by Judge Ikuta.  Hardly a left-winger.  Even in part.  As well as joined by Judge Milan Smith (as well as Judge Nelson).

That's not a panel that's actively looking to uphold gun regulations.  Far from it.  Plus, there's lots in the opinion that unambiguously takes the Second Amendment incredibly seriously.

Sometimes cases gets decided on, well, the merits.  Here, the Ninth Circuit holds that the regulations satisfy intermediate scrutiny and could advance reasonable state interests in preventing deaths from firearms.  Other municipalities could (and have) concluded otherwise.  But San Francisco has gone the other way.  Something that's permitted by the Second Amendment.

Let the gnashing of teeth begin.

Davis v. Walker (9th Cir. - March 24, 2014)

I occasionally critique opinions as making little doctrinal sense and/or ignoring the practical realities of justice.

Want to see an opinion that exactly the opposite?  Here you go.

Justice Tallman's opinion makes eminent sense.  Both doctrinally and practically.

There's a problem.  Judge Tallman provides a path to solve it.  By contrast, the district court pretended to pretend that the problem simply didn't exist.

I like Judge Tallman's approach better.  Lots, lots better.  Straightforward, equitable, and doctrinally sound.

Well done.

People v. Garcia (Cal. Ct. App. - March 24, 2014)

If you want to get a sense of some of the many absurdities in criminal law, take a look at this opinion.

Not that I'm crying all that much for the defendant, who deserves -- and receives -- a very long prison sentence.  But how we go about making that sentence 74 to life is as strange as some of the conduct that generated that dictate.

I'll not discuss at length why he gets many extra years for putting three different fingers inside the rape victim's vagina before inserting his penis.  You can read more about that in the opinion if you're interested.  Nor, with respect to other counts, does one need to discuss the particular facts of this case.

Instead, I'll summarize the Court of Appeal's central holding with a simple hypothetical:

Imagine that I burglarize a house by entering an open sliding glass door, intending to steal a purse that I view therein.  Then, once I'm in the house, I decide to see if there's any prescription medication I can steal, so I go into a bathroom to check out the medicine cabinet and while I'm there steal a hand towel.  Which for some reason gets me thinking about jewelry, so I go into a bedroom in the house and find and take a necklace.  At which point I start thinking about other pretty things, go into a different bathroom, and steal some makeup.

I burglarized and stole from one house.  But according to the Court of Appeal's ruling, I'm now guilty of four separate counts of burglary.  If I'd have entered the home with a plan of "cleaning the place out," I'd only be guilty of one count.  If I'd have entered the home and all of the items above were in one common room, I'd only be guilty of one count.  But the pure happenstance that (1) I occasionally changed my mind, and (2) the fact that the various items were located in different rooms means that I'm guilty of (and can be punished for) four separate offenses rather than one.  To put it a different way, the guy with the more culpable mental plan who intends to steal everything that's not bolted down is punished less than the guy who enters with a more limited vision of just stealing selected items.

That's what the Legislature intended.  At least according to the Court of Appeal.

As for how the Court of Appeal gets there, I thought that it was interesting that the opinion discusses at some length the reasoning articulated by Justice Benke's dissent in an earlier case.  As I read that portion of the Court of Appeal's opinion, I simultaneously thought (1) that that reasoning had some persuasive merit, but (2) that it was nonetheless a little weird to be quoting from a dissent, which only highlights the fact that the current opinion -- which goes even further than that earlier case -- may perhaps be somewhat "pressing the envelope".

Though I think I understood the opinion's discussion of Justice Benke's dissent a little better once I got to the very end of the opinion.  At which point I noticed that the current opinion was authored by Justice Benke.

Having read literally hundreds of similar burglary cases over time, I'm largely at the point at which I simply throw up my hands.  As presently articulated, this incredibly commonly charged offense is so far from what we commonly understand to be the relevant crime that it's virtually incomprehensible.  Nothing makes any sense at all.  But we seem to have stopped caring at all about that fact long, long ago.  We're instead happy to build fiction upon fiction upon fiction to where we have this giant cairn of a doctrine that looks as fragile and as absurd as any man-made pile of teetering rocks you'll ever see anywhere.

Yet there is stands.  A definite marker for where we are, where we're going, and how we got there.

Add this opinion to the top of the pile.

Ellis v. US Security Associates (Cal. Ct. App. - March 20, 2014)

The Court of Appeal holds that you can't contractually shorten the limitations for FEHA claims (e.g., sexual harassment) to six months.  That's against public policy and invalid.  So it reverses the trial court's dismissal of the lawsuit.

It's a tight little opinion.  Very persuasive.  Maybe a little long on case-by-case distinctions of prior precedent.  But that's not particularly unusual for opinions in the Court of Appeal.  A byproduct of turning bench memos/tentative opinions directly into the final product.  It nonetheless remains a good piece of work.

There's also a nice couple of pages that describe the salacious details.  References to the supervisor "pulling up his pants in front of [plaintiff] to expose the size of his sexual organ" and how both he and his wife (who also worked at the place) tried to convince plaintiff to join 'em in a threeway.  Which is all fine.  If you're into that sort of thing.  But not at work.  While you're there, keep it professional.

And in your pants.

Falcon v. Long Beach Genetics (Cal. Ct. App. - March 21, 2014)

Mother wants to know if Father is actually the biological father of Daughter, so gets a DNA test from Defendant.  Defendant tells Mother that Father is not, in fact, the father.

Turns out, that's wrong.  Father's in fact the father.  As subsequent DNA tests definitively confirm.

So Mother (and Daughter) sue Defendant.  You might think that's a pretty decent lawsuit.

Maybe it is.  Though, of course, every lawsuit has its own complexities.

But in this one, one of the complexities is counsel for plaintiff, San Diego attorney Duane Admire.  The Court of Appeal isn't particularly happy with the papers filed in this case.  Here's what it says

"We set out the undisputed material facts as ascertained from the parties' moving and opposing papers and state other facts and draw inferences from them in the light most favorable to plaintiffs. Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs' claimed disputes as to defendants' enumerated material facts pertaining to the section 47(b) privilege. Plaintiffs' opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence. . . . To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation. Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C). We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment."

The Court of Appeal likes good briefs.  They won't always enable you to win.  But they can definitely help you not lose.

Which plaintiffs do here.  Lawsuit dismissed.

Haskell v. Harris (9th Cir. - March 20, 2014)

Most en banc cases are difficult.  That's because a panel's already decided the case a particular way, there's been a successful en banc call, and there's typically a whole lot of disagreement about how the case should be resolved.  That's why it went en banc, after all.

For example, here, the initial panel heard oral argument in July 2010, and eventually issued a split opinion in February 2012.  It went en banc shortly thereafter, in July 2012.  Then, in September 2012, there's a spirited oral argument in the en banc court.  It looks like it'll be interesting.  A (secret) vote is taken, and opinion(s) start to get drafted.  It'll almost undoubtedly be a fight.

But you know what makes things easy?  Two months later, in November 2012, the Supreme Court grants certiorari in a case that's virtually identical to this one, albeit from another circuit.  Thereafter, in June 2013, the Supreme Court comes down with its opinion.  5-4.  Interesting lineup, well argued on both sides, but there's a definite answer.

So put the opinion writing process on hold.  Because the world's now changed.

A couple months later, the Ninth Circuit tells the parties:  Hold tight.  Given the intervening decision, we're going to have to get this thing reargued.  We'll do it sometime in December.  We'll give you a date shortly.

Come December, the second argument happens.  This one's much less spirited.  Sure, there are parties on both sides.  Presenting their positions forcefully.  But it's nonetheless pretty clear which way this one's coming out given the Supreme Court's holding in the intervening case.  Even to the parties.

Sure enough, four months later -- this morning -- the en banc court releases its opinion.  This one's much shorter than the court originally anticipated in 2012.  Four short paragraphs.  Per curiam.  With the assent of 10 of the 11 judges.  Easy.

(Though that doesn't stop Judge Milan Smith from writing a nine-page concurrence, in which he complains about -- and disagrees with -- the last paragraph of the per curiam opinion.  Even easy stuff isn't necessarily easy when you've got to get eleven different judges on board.)

I hope whichever clerk was assigned the original en banc opinion didn't get started early, but instead procrastinated.  Because that'd have been a good strategy.  (Parenthetically, one advanced by my friend and colleague at USD Law, Frank Partnoy, in his recent book Wait: The Art and Science of Delay.)  No wasted energy.  The thing essentially resolves itself.

Sometimes everything comes together nicely.  Or at least easily.  Like here.

In Re Christian I. (Cal. Ct. App. - March 19, 2014)

As you might imagine, it takes a lot for an experienced Juvenile Court Referee in Los Angeles to describe a particular case as "shocking to me, even after all of these years” and “one of the worse cases I have seen, where there’s such sadism . . . and such disregard for a child[]."

A lot.

People v. Ramirez (Cal. Ct. App. - March 19, 2014)

There are legions of cases that make crystal clear that even though the rule of lenity is supposed to be a cardinal principle of statutory interpretation in the criminal context, in practice, it's pretty much meaningless.

Except in this case.

A vice principal at a high school has sexual relations with a 14-year old student.  Oops.  He pleads no context to a plethora of charges, some of which were alleged to have occurred prior to October 1, 2011, some of which were alleged to have occurred thereafter, and some of which may have occurred in either of these categories.

This matters.  Since, depending on the relevant date of his criminal acts, he gets four-for-four custody credits under one set of rules, but only two-for-four under another.

Which adds up to a fair piece of time.  Even in the context of his 15-plus year sentence.

The thing is, the statute sets up one rule for crimes before October 1, 2011, and another for crimes after that date.  And it's crystal clear that it's the date of the actual crimes that matter, not the date of sentencing or any other date.

The statute also doesn't tell you anything about what you do when there are some crimes before that date and some crimes after.  Plus, all the parties agree that there's no "middle ground".  It's either one rule or the other.  You can't "mix and match" and apply one rule to one part of the sentence and another to the rest.

Hmmm.  What to do?

In a very concise opinion, Justice Premo holds that what you do is to rely on the rule of lenity.  It's totally unclear.  So you adopt the interpretation that favors the defendant.  So the guy gets the more favorable good conduct credit regime.

Still stays in prison for a long, long time.  But gets out a bit earlier.  Thanks to a doctrine that's supposed to matter a lot but actually matters very little.

Except here.

Family PAC v. Ferguson (9th Cir. - March 19, 2014)

I'll admit that I was initially of the impression that when the Court of Appeals expressly told the parties that they were to "bear their own costs," that included attorney's fees.  That's how we usually use the term "costs" in the modern era, which occasionally include the right to recover fees.

But Judge Fisher persuades me otherwise.

Costs on appeal are subject to one standard.  Attorney's fees another.  In a "split" appellate opinion, a panel might essentially call it even on the cost front.  But attorney's fees might nonetheless be recoverable since you can often recover them as long as you've prevailed on a significant issue.  Even if you got crushed on others.

So I think we're on the right side of the circuit split here.