Jones v. Catholic Healthcare West (Cal. Ct. App. - Jan. 31, 2007)

Who's breathing a huge, huge sign of relief today? Attorney Donald West of Stockton, that's who. Someone who should probably give Justice Cantil-Sakauye a huge hug the next time he sees her, I might add.

According to the trial court, Mr. West -- a Dartmouth man, I might add -- successfully turned a medical malpractice suit into a (likely) legal malpractice suit when he blew the statute of limitations. Because Mr. West allegedly blew the statute, the trial court granted summary judgment to the defendant. And the next step, almost certainly, was a legal malpractice claim against West.

But Justice Cantil-Sakauye reverses, holding that the telefaxed letter that West sent on February 2, 2004 effectively extended the limitations period and made the complaint timely.

Whew. Cut that one a bit close, didn't we?

Go Big Green.

McAllister v. County of Monterey (Cal. Ct. App. - Jan. 31, 2007)

Want to build a huge, 10,000+ square foot home on the coast at Highway 1 in Big Sur, but have a neighbor who's the chair of the World Wildlife Fund's Marine Leadership Committee? Not surprisingly, you've bought yourself a fight. A big one. As described in this 49-page opinion by Justice McAdams.

The "winner"of this battle is perhaps neither surprising nor clear. In the end, the rich owners get to build their huge house, albeit with slight modifications. But the neighbor successfully delays the project during the six-plus years the various objections and litigations are pending.

Who's the winner? You tell me. In a way, they both win. And they both lose.

People v. Flores (Cal. Ct. App. - Jan. 31, 2007)

Whoops. What happens when the judge forgets to instruct the jury about something so fundamental as the reasonable doubt standard? The conviction gets reversed.

Or at least it does here. There's an interesting doctrinal debate between Justice Huffman (who writes the majority opinion) and Justice McDonald (who writes separately) about whether such an error is subject to constitutional harmless error review or is instead structural error. My sense is that Justice McDonald, who argues the latter, probably has the better of the argument, but Justice Huffman articulates the contrary view fairly well. Still, to affirm a conviction in which the jury wasn't at all instructed about the reasonable doubt standard seems to expand harmless error review beyond its rational limits, and even purely as a matter of precedent, I think that Justice McDonald may better interpret the cases. (Plus, in truth, if harmless error was the appropriate standard, I think the prosecution would have a decent argument here. Justice Huffman does a great job of explaining why each of the various instructions given by the trial court didn't substitute for an actual reasonable doubt instruction. That said, I'm pretty darn positive that a jury -- and, in particular, this jury -- knows full well that a defendant in a criminal case can be convicted only when there's no reasonable doubt. That's pretty darn basic, and especially here, I can't fathom the jury not knowing that fact.)

Admittedly, here, it doesn't matter, since everyone on the panel agrees that defendant's conviction must be reversed under either standard. So, as applied here, it's a largely academic debate, albeit an important one whose conclusion may substantially affect other cases.

Parenthetically, how embarrassed must the trial court -- Judge Peter Deddeh (down here in San Diego) -- be about forgetting the reasonable doubt instruction. That's a pretty big mistake. And I'm sure one that he's not likely to repeat again anytime soon.

Safe Air for Everyone v. Environmental Protection Agency (9th Cir. - Jan. 30, 2007)

I always like it when there are opinions with captions like this one. I'm just waiting for "Kindhearted Helping Souls v. Evil Bastards" or the like. I wonder who'd win?

For what it's worth, in this one, Safe Air for Everyone prevails against the U.S. Environmental Protection Agency. In a case that might alternatively captioned "People in Idaho Who Want to Breathe Clean Air v. Farmers Who Want To Burn Their Fields." (Or, I guess, depending on your perspective, "Clueless Liberals v. People Who Want Less Expensive Food and the Preservation of Property Rights")

Anyway, objectively, appellants win.

In Re Malcolm M. (Cal. Ct. App. - Jan. 30, 2007)

Want to read about a wasted life? One that's not even nearly over, and yet already seems virtually destined to be a net negative for all involved? If so, read this case. Which can't help but depress.

Justice Ardaiz begins his opinion with the following line: "At age 10, appellant Malcolm M. joined several of his relatives in robbing and beating to death 69-year-old Alejandro Escareno." And goes downhill from there.

Read the whole thing if you want to see what happens to Malcolm thereafter. And why you probably don't want to ever meet him on the streets of Fresno.

Gilbert v. Sykes (Cal. Ct. App. - Jan. 26, 2007)

Loyal readers will know that I'm a big fan of Justice Butz. She generally writes excellent, erudite opinions, and ones that typically persuade me that she's totally right.

Except for this one. Mind you, this remains an excellent, erudite opinion, and at 30-plus pages, it's hardly an opinion that Justice Butz cranked out on a whim. Nonetheless, on the merits, I think it's pretty clearly wrong.

I'd have suggested the opinion as valuable reading wholly apart from my fundamental disagreement with its conclusion. For one thing, Justice Butz begins the opinion with the following eye-catching opening paragraph: "In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic. The number of people, especially women, who have had minimally invasive cosmetic surgery has grown exponentially in the past several years." That's not the usual opening gambit to something published in the California Reporter, so I liked the opinion from the outset.

The facts of the case are also interesting. It's about a plastic surgery that allegedly went bad, and a web site that the patient (Georgette Gilbert) subsequently created -- www.mysurgerynightmare.com -- that detailed, as the name of the site suggests, her experience with the process. This alongside a medical malpractice suit against the doctor who performed her plastic surgery, Dr. Jonathan Sykes. Ms. Gilbert also allegedly spent some real money and bought herself a sponsored link on Google so that whenever someone typed Dr. Sykes's name her web site came up -- a neat trick, and one that undoubtedly served to "bring home" the risks of the malpractice suit to Dr. Sykes. (By the way, when you type in his name now, Ms. Gilbert's web site remains the very first result you see on Google.)

Not surprisingly, Ms. Gilbert's web site hardly painted Dr. Sykes in a positive light, and was (and is) basically devoted to insulting the guy. (Read it if you don't believe me. The before and after photos are pretty telling -- we're not talking major mistakes here, but she puts up a very nice "before" photo and an overexposed "after" photo that indeed looks a fair piece worse.) The best part of the site, in my view, is when Ms. Gilbert includes a portion of Dr. Sykes's deposition in which he's asked if he's ever been a defendant to any other malpractice suits and to he responds "I think three others." To which Ms. Gilbert says (in 24-point, red, and all caps) that Dr. Sykes has in fact been involved in at least 11 medical malpractice suits, and then lists them. I thought that this basically encapsulated the dispute, since (1) these facts make Dr. Sykes look pretty bad, and likely justly so, since it casts a great deal of doubt about his credibility (which is pretty important when choosing a doctor to work on your face, no?), and (2) is deceiving -- even though it still has a point -- since around half of these 11 lawsuits were filed after he answered the question (and also included Ms. Gilbert's suit). In other words, it looks like both sides here aren't exactly being the most honest and forthright they could be.

So it's an interesting glimpse both into the world of plastic surgery as well as the inter- and intrapersonal dynamics that often attend a civil lawsuit.

All of which is worth reading, albeit irrelevant to the merits. As for the latter, this post is already too long, but it is probably sufficient to say briefly that I strongly disagree with Justice Butz's conclusion that Dr. Sykes is a limited purpose public figure. Dr. Sykes (as you might have gathered) filed a defamation counterclaim to Ms. Gilbert's malpractice action based upon the contents of her web site, to which Ms. Gilbert responded by filing an anti-SLAPP motion. The trial court denied the motion, but Justice Butz reverses.

The opinion properly holds, in my view, that the web site is an act covered by Section 425.16 as an act in furtherance of a person's right to free speech and in connection with an issue of public interest; e.g., the risks of plastic surgery. Dr. Sykes disagrees, but I think Justice Butz rightly dispenses with this objection. Where she gets it wrong, in my view, is on the merits -- on the probability of success. Justice Butz holds that because Dr. Sykes did numerous things to publicize his practice (e.g., advertising, appearing on local television shows, writing articles in medical journals), he's thereby become a limited purpose public figure on the issue -- and thus (unlike normal plaintiffs) must prove actual malice (by clear and convincing evidence, no less) in order to prevail on his defamation claim. Which he can't do. Hence, according to Justice Butz, Dr. Sykes loses the anti-SLAPP motion, and must pay all of Ms. Gilbert's costs and attorney's fees both below and on appeal.

I'm pretty convinced, however, that if Dr. Sykes is a limited purpose public figure on this basis than virtually everyone is -- or at least everyone worth suing. There was no showing that Dr. Sykes was actually prominent, only that he tried to become prominent by writing advertising and writing articles and the like. But of course he did that: that's part of his job, and is precisely how one advances (and gets business) in his field. If writing articles and advertising and/or being quoted by the media makes one a limited purpose public figure, then I know of around a hundred industries in which pretty much every single member has precisely such a status. Take the entertainment industry, or medicine, or (close to my heart) being a professor, or (perhaps close to yours) being a lawyer. You may well write articles, or be on television, or blog, or write newsletters. Under Justice Butz's view, this makes you a limited purpose public figure because you've deliberately attempted to interject yourself into a public debate. Which means that you can pretty much never be defamed, as you'll almost never be able to prove actual malice, much less with clear and convincing evidence. So get used to people calling you a liar or fraud or child molester or whatever, as you'll have no recourse. Moreover, if you try to file suit notwithstanding this counsel, get ready to pay the other side's attorney's fees, since you'll lose the anti-SLAPP motion that the other side will invariably file.

Yes, there are limited purpose public figures. But doing the types of routine, business-related activities that Dr. Sykes did here doesn't make him one. Much less is Dr. Sykes -- as Justice Butz asserts -- the "archtypical" example of a limited public figure. In my view, he's not one at all, and assuredly is not the classic example. Moreover, if he is, this involves a fairly expansive -- and radical -- interpretation of the doctrine.

So I agree with Part II of the opinion, as well as much of Part IV (in which Justice Butz goes line-by-line down the various defamation claims and finds no probability of success). But Part III just seems wrong to be, and wrong in a fairly serious way -- and one with widespread implications far beyond the reputation of Dr. Sykes.

Defamation and First Amendment stuff is hard, of course. Particularly amorphous and fact-dependent issues such as the public figure doctrine. Moreover, I have no doubt whatsoever that Justice Butz and the rest of the panel gave a great deal of thought to the issue, and that their constitutional views are well within the realm of the possible.

But I still think they're wrong. So, with all due respect to Justice Butz, you'll have to count me out on this one. I don't think that the First Amendment limited purpose public figure doctrine goes nearly this far.

Hall v. North American Van Lines (9th Cir. - Jan. 29, 2007)

It's only a complaint. Which, for 12(b)(6) purposes, we've got to assume is true, even if it's not.

Still, the next time you move, if you're thinking about using North American Van Lines, perhaps you should read the second page of this case and see what they allegedly did to Eva Hall. And then read the remainder of the opinion and see why Ms. Hall ends up recovering nothing. Plot-stealer: The 1906 Carmack Amendment to the Interstate Commerce Act of 1887 is often the moving company's best friend.

Williams v. Superior Court (Cal. Ct. App. - Jan. 26, 2007)

This opinion kicks butt.

It's by Justice Haller. It's incredibly good. Perhaps most impressive is that it deals fairly and equitably with a case (1) in which the overall sleaze factor is relatively high (e.g., lots and lots of Machiavellian manipulation of the rules and "gotcha" litigation tactics), and (2) in which it's extremely uncertain which side has the better of the argument, and in which the stakes are relatively high.

I thought that the opinion was worth reading even before I got to the discussion of the merits. The underlying factual circumstances are very interesting, and surround a lengthy -- and understantably important -- fight between the maternal grandmother and the father/paternal grandparents over who should be appointed as the guardian ad litem for minor daughters suing for their mother's death in an automobile accident. Father was in the midst of divorcing mother at the time of her death, and has his own separate claim against the defendant, so the maternal grandmother doesn't want him to control the litigation (in part because she fears he's more interested in money flowing his way than on behalf of the kids). But Father doesn't have a great relationship with Maternal Grandmother (he was, after all, in the midst of a divorce with mother), so Father would rather have his parents (Paternal Grandparents) represent the kids instead.

I'll not repeat all the procedural tricks and races-to-the-courthouse that each party used in an attempt to get their way. Suffice it to say that there was much going on here, and all of it was interesting. Even before I got to the discussion of the merits, I was also struck by how much all of the underlying judges involved -- Judge Kevin Enright and Judge Linda Quinn (both of whom are down here in San Diego) -- really made a hard core effort both to get things right and to do what's fair. Which, especially in this case, is no small task.

Justice Haller also does the same thing, and her opinion is also really impressive. So I was struck with both the situation as well as how, as I was reading Justice Haller's opinion, she ended up persuading me more and more on every page. Again, it's a hard issue. Rarely do I think that opinions on tough, close issues are really good. But this one is an exception. It's really good.

In the end, maybe I'm overly effusive both because (1) I thought that every participant in the process was trying their absolute best here -- and, in general, I'm not at all sure that's uniformly the case, so I'm very glad (and a little bit surprised) to see it, and (2) in the end, substantial justice was accomplished. So a good day. And a good way to end the work week.

U.S. v. Hector (9th Cir. - Jan. 25, 2007)

I agree with Judge McKeown here. Judge Pregerson -- up in L.A. -- (1) suppressed the results of a search because the officers didn't give the occupant a copy of the warrant, and (2) entered a post-trial judgment of acquittal on Count Two, which charged the defendant with possessing a firearm in furtherance of a drug crime, holding that the government had merely demonstrated possession of the weapon, not use in furtherance.

Judge McKeown, in a very well-written opinion, reverses on both issues. I think she's right.

The warrant issue seems controlled by the reasoning (if not the holding) of the Supreme Court's recent decision in Hudson, which held that suppression isn't proper for constitutional violations that fall short of being the unattenuated but-for cause of obtaining the disputed evidence. And although parsing out the many fact-specific cases on both sides of the acquittal issue isn't easy, I also think that the evidence was sufficient here to establish possession in furtherance -- or at least that a rational jury could so conclude.

The only thing I'd change about this opinion is the double-negative that Judge McKeown uses on page 1011. But, hey, I wouldn't have written nearly as good of an opinion as she did, so take my complaint in this regard as merely the whine that it is.

Temple City Redevelopment Agency v. Bayside Drive Ltd. Partnership (Cal. Ct. App. - Jan. 25, 2007)

I'm going to have to respectfully disagree with Justice Vogel here. Though I recognize that our disagreement may largely be a philosophical one, and one upon which reasonable minds can -- and surely do -- disagree.

Justice Vogel believes that when the words of a statute are clear, the courts should follow them, even when -- as here, in my view -- the result is absurd, and clearly one that the Legislature did not intend. So, here, CCP 1268.610(a)(1) says that a defendant is entitled to recover his litigation expenses (including attorney's fees) "whenever[ t]he proceeding is wholly or partly dismissed for any reason." Justice Vogel concludes that this statute means what is says. So that a defendant who gets dismissed from a lawsuit because he voluntarily sold the property subject to condemnation, thereby changing owners, during this suit is entitled to a windfall recovery of his entire attorneys' fees and costs in that suit. Even though the only reason he was dismissed is because he essentially gave up and sold the property to someone else. Which, by the way, was precisely what happened here, and the basis on which the defendant requests -- and Justice Vogel awards -- over $40,000 in costs and fees, in addition to other costs and fees on appeal.

I disagree. To me, the Legislature clearly did not intend such a result. Moreover, such an interpretation would lead to absurd results; for example, a defendant who died (or became incompetent) would be entitled to recover, or who sold the property and then repurchased it, or who sold the property to a relative -- all of these individuals would be entitled to drain tens of thousands of dollars from the public fisc even if the city ultimately won the lawsuit on the merits, since these changes would mean that the defendant was (at some point) dismissed from the lawsuit.

We see this sort of thing play out in various contexts: for example, in statutes that say "no less than 7 days" when the Legislature clearly and indisputably meant "no more than 7 days". Some judges say: Follow the law as written even if it's totally absurd. Others say: "The whole point of judges is to judge, not merely to be an automaton and apply the words of a statute as if they were a robot." I think that the case for judicial review and interpretation of a statute is greatest when, as here, there's no substantial reason whatsoever to believe that the Legislature intended the statutory language to cover this particular set of circumstances and in which an award to one side would be manifestly -- and uniformly -- viewed as unjust.

There's profound wisdom in a contrary view, of course, both in general and as applied to the facts of this case. But I'd still have come out the other way on this one.

See what you think.

U.S. v. Jernigan (9th Cir. - Jan. 23, 2007)

It's been an en banc bonanza in the last couple of days. The Ninth Circuit took two cases -- Castillo and Aukai -- en banc on Monday. And then they just took this one -- Jernigan -- en banc as well.

I'm not especially surprised to see this last one go up. I blogged about this one when it came out, and mentioned that Judge Betty Fletcher's dissent was pretty good. (Then again, so was Judge Thompson's opinion, in my view.) The case highlights starkly divergent judicial philosophies. And, in truth, I think that there may currently be more judges on the Ninth Circuit with Judge Fletcher's philosophy than with Judge Thompson's.

So it'll be worthwhile to see what the draw is for the en banc panel. But, barring something unusual, I'd be surprised if you didn't see the panel opinion get reversed en banc.

We'll see.

Manderville v. PC&S Group (Cal. Ct. App. - Jan. 24, 2007)

It's been a slow day today -- just one published opinion each from the Ninth Circuit and California Court of Appeal. One involving fish and the other involving real estate.

For what it's worth, I agree with the opinion today by Justice Nares, which reverses a grant of summary judgment by Judge Lim and holds that an exculpatory contract in a real estate purchase agreement that basically says "do your own investigation" doesn't necessarily absolve the seller from claims arising out of their alleged misrepresentations to the buyer that the lot could be subdivided when, it fact, it couldn't. Sure, I'm biased, both because Justice Nares is a USD alum as well as an incredibly nice fellow (I sat next to him at lunch on Friday and very much enjoyed talking with him). But I'd still be more than willing to slam him if I thought he got this one wrong. Fortunately, he didn't.

Except, by the way, for those crazy marks at the end of the first paragraph on page four. What the heck is "420:25-421:4)!" doing at the end of the sentence?! I mean, I can understand the partial parenthetical; my sense is that the law clerk forgot to delete this part -- undoubtedly a record citation -- when editing the draft opinion for publication. But the exclamation point?! Not something you usually see.

Get that mess out of there and the opinion will be fine.

POSTSCRIPT - My favorite CCoA gnome just sent me an e-mail letting me know -- and I love minutia such as this -- that the "!" comes from the macro the Court of Appeal uses in Microsoft Word. Apparently they put things like record citations between exclamation points [e.g., !(Andrew Deposition 10:12-14)!] and then run a macro to delete every such reference. Which works. Usually. Unless, as here, you forget to insert, or delete, the first exclamation point. Then it just looks silly.

My advice is to run the macro and then proofread, rather than vice-versa. Or just write a blog and don't worry about typos, misspellings, and the like. Either way works.

Valeriano v. Gonzales (9th Cir. - Jan. 23, 2007)

I'm fairly confident that Judge Kleinfeld gets this one right, and that Jose Valeriano -- a 34-year old Mexican national with three United States citizen children -- isn't entitled to equitable tolling, and hence can and will (and, legally, should) be deported to Mexico. Sure, Valeriano hasn't committed any criminal offenses here, and sure, he might perhaps have a defense to deportation on the merits. But his lawyer apparently filed the notice of appeal six days late (and then lied about it), and then waited too long to file a motion to reopen. So deported ye shall be.

All of which is how the law likely declares it should be. And hence, as a judge, you're largely obliged to make it so. The first three pages of the opinion nonetheless starkly highlight that, sometimes, people -- and their U.S. citizen children -- may well be deported from their homes and country based not upon the merits, but rather upon the (sometimes inexplicable) mistakes of their counsel. Which is sad.

Sure, technically, in this area, you're responsible for your counsel's errors. That's (basically) the law. Still, it doesn't seem very nice -- or, on occasion, very fair. Especially given the type of counsel that uneducated, poor illegal immigrants are generally able to afford. Which is to say: Not so good.

None of this is to claim that Valeriano shouldn't be deported. He probably should. But the first three pages nonetheless make you wonder. Or at least force you to recognize the occasional -- and stark -- injustice that must surely arise in at least some deportation proceedings.

People v. Coleman (Cal. Ct. App. - Jan. 23, 2007)

It's pretty rare for the Court of Appeal to buck precedent and reverse a conviction on insufficiency grounds. Especially for high-profile offenses like -- as here -- carjacking.

But that's what Justice Doi Todd does here. She concludes that existing precedent is wrong, and that what Chris Coleman did here entails merely robbery, not carjacking.

The argument in favor of Justice Doi Todd's position is that this is, assuredly, not your typical carjacking, and not what the Legislature had in mind when it codified the offense. Yes, Coleman took a car at gunpoint, but (1) he took it from someone sitting at an office desk, in a business, when the car was parked outside, and (2) it wasn't even her car -- it was the car of her boss, and she merely had access to his keys, which he had left in the office when he went to a job in another vehicle. So not really a classic carjacking when you shove a gun in the driver's face and throw her from the vehicle. On the flip side, however, the definition of a carjacking is pretty (and deliberately) broad, and the statutory text may well cover what transpired here.

It'll be interesting to see what happens with this one. For now, however, Coleman's convicted of robbery, not carjacking.

People v. Nguyen (Cal. Ct. App. - Jan. 22, 2007)

This case completes the trilogy. An Apprendi/Booker/Blakely opinion today by the Supreme Court. Then one from the Ninth Circuit. And, now, one from the California Court of Appeal.

This one's about prior juvenile convictions (technically, juvenile "adjudications") and whether it's permissible to use them to enhance an adult defendant's sentence even though there's no right to a jury trial in juvenile prosecutions. Justice McAdams, in a very scholarly and comprehensive opinions, says "No," holding that to do so would violate Apprendi and Blakely.

This is an opinion worth reading. Even if it may well not be around all that long: given the significant sea change in California sentencing that it presages, I wouldn't be surprised if the California Supreme Court grants review -- or, perhaps more likely, depublishes the opinion (a distinct possibility given that Justice McAdams ends up affirming the sentence below on the ground that this particular defendant admitted the prior juvenile offense).

Moreover, the timing was interesting: I doubt that Justice McAdams realized that it would be released on the same day as the U.S. Supreme Court's opinion in Cunningham. Admittedly, the opinion in Cunningham only bolsters Justice McAdams' view. But he might have written the opinion a bit differently -- if only to include additional support -- upon reading the Supreme Court's contemporary view of related objections to California's sentencing scheme. (For this reason, we might well see a modification of the opinion soon, if only to include a brief mention of Cunningham. On the flip side, the change in sentencing structure compelled by Cunningham to some degree makes the holding in Nguyen moot, since the contemporary enhancement regime in California now requires revision to satisfy Blakely not only in juvenile cases, but in all other cases as well.)

This nonetheless remains a substantial, and interesting, opinion. And for anyone who doubts the potential significance of student-written law review articles, the first dozen or so pages of the opinion should help put those doubts to rest. Justice McAdams cites quite a few of them to support his holding, and his analysis on the merits often mirrors many of the arguments raised in these student-written comments. So don't think those law review notes necessarily entail merely spilled ink. They can matter. Including the very first one cited by Justice McAdams: a 1995 student-written comment by a then-USD student, and current California attorney, Lise Forquer (now Lise Jacobson) in the San Diego Law Review.

Great job, Lise.

U.S. v. Mercado (9th Cir. - Jan. 22, 2007)

Today's a huge Booker/Blakely day.

Here's another opinion -- this one from the Ninth Circuit -- about what facts can permissibly be used in sentencing. The opinion by Judge Fernandez holds, consistent with the view of all of the other circuits that have considered the issue, that a judge may increase a sentence even based upon conduct for which the defendant has been acquitted at trial.

What's most interesting about the case is Judge Betty Fletcher's dissent. It takes a lot to get Judge Fletcher to dissent, and given the uniformity of the federal circuits on this issue, it may facially be surprising that she elects to dissent here. Nonetheless, the use of acquitted conduct in sentencing is sufficiently counterintutive -- at least to Judge Fletcher -- to compel a dissent.

Judge Fletcher's dissent has some pretty good lines, and uses Blackstone and others to highlight the significance of a jury's verdict and the dangers that arise from the rejection of that verdict in sentencing. She says, for example: "By considering acquitted conduct, a judge thwarts the express will of the jury . . . and imposes a punishment based on conduct for which the government tried, but failed, to get a conviction. Such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant’s equals and neighbors. . . . The fact that a jury has not authorized a particular punishment is never more clear than when the jury is asked for, yet specifically withholds, that authorization." Pretty powerful stuff.

In the end, I think that Judge Fernandez probably correctly predicts what the Supreme Court would hold; namely, that Watts survives Booker. But Judge Fletcher makes some darn good policy arguments to the contrary, and were Watts ever to be revisited, her dissent would be a good starting point. Especially in a case like this one, when the sentence that the defendants receive is based almost entirely on conduct for which they were acquitted.

Judge Fletcher says that "[w]hen a jury refuses to convict defendants of several counts, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants’ sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense." She's got a point there. Not one, I think, that's recognized by precedent. But a point nonetheless.

Cunningham v. California (U.S. Supreme Ct. - Jan. 22, 2007)

Time to revise California's entire sentencing scheme.

The U.S. Supreme Court held earlier today that California's determinate sentencing laws violate the Sixth Amendment (as incorporated by the Fourteenth) under Apprendi/Blakely/Booker by permitting enhanced sentences based upon judicial factfinding on the preponderance of the evidence standard. Most everyone I know who followed this case thought it was going to come out this way, and the Supreme Court refused to disappoint. The decision was 6-3, with Justice Alito joining the expected dissents of Justices Breyer and Kennedy.

So now the California Legislature has some real work to do. And quickly. Plus, prepare for an avalanche of post-Cunningham sentence appeals (and habeas petitions) in California. Everybody's job just got a little bit harder today.

Parenthetically, the decision in Cunningham is a victory for Justice Jones, who dissented in the Court of Appeal and has repeatedly argued that California's determinate sentencing laws are unconstitutional, and could not be distinguished from Blakely. It's also somewhat of a victory for Justice Kennard, who dissented in People v. Black on similar grounds. The Supreme Court's decision essentially proved both of them right. California's sentencing regime doesn't survive the Apprendi/Blakely/Booker trilogy, and the attempts to distinguish California's laws from those previously invalidated by the U.S. Supreme Court simply don't work.

P.S. - One final point. There are good reasons why the syllabus prepared by the Reporter of Decisions don't constitute part of the opinion by the Supreme Court. Check out the citation to People v. Black in the syllabus. It's wrong. It's 35 Cal. 4th 1238, not 35 Cal. 4th 1230.

Kurwa v. Harrington, Foxx, Dubrow & Canter LLP (Cal. Ct. App. - Jan. 11, 2007)

Representing yourself -- even if you're an attorney -- is often a bad idea. You won't obtain neutral, impartial advice. You'll often convince yourself that motions are meritorious when, in fact, they're utterly frivolous; or, at best, meritless.

Like here.

Admittedly, maybe attorney Dale Goldfarb (and his firm, Harrington, Fox, Dubrow & Canter) -- both of whom are defendants in the case -- are merely responding to the lawsuit with a scorched earth policy, and hence do not care whether the motions are likely to succeed. Still, I've rarely seen a more meritless anti-SLAPP motion than the one they filed here. It didn't persuade Judge Oki. It didn't persuade anyone on the Court of Appeal, either, and Justice Armstrong rightly affirms the trial court's denial of the motion.

The only relief that Mr. Goldfarb and Harrington, Fox end up with is a cost award against them. They're lucky, in my view, not to be sanctioned for a frivolous motion and/or appeal.

But, hey, if all of this was deliberate, and they totally knew that they were filing a motion and subsequent appeal that had virtually no shot in hell of being granted, and was merely designed to delay the action and frustrate the plaintiff: Great job. It worked. Congratulations on avoiding a fee award the other way!

Frunz v. City of Tacoma (9th Cir. - Jan. 16, 2007)

Don't mess with Judge Kozinski. Because if you do, you'll be the one burned, not him.

There's no better evidence of the truth of this aphorism than this order. Which, technically, is by the panel, and is unsigned. But since the underlying opinion is Judge Kozinski's, and given the tenor of the subsequent order, I've got a pretty good sense who wrote it.

The order is, essentially, eight straight single-spaced pages of devastating insults on counsel for the City of Tacoma. Judge Kozinski, in a footnote in the original opinion, had ordered defendants -- the City of Tacoma, the Tacoma Police Department, and various Tacoma police officers -- to show cause why they shouldn't be sanctioned for filing a frivolous appeal. Defendants responded to the order, and this order entails the panel's reaction to their response.

Let me give you a little hint as to how one should respond to Judge Kozinski, in particular, if he ever issues an order to show cause. Your mantra should be: "Mea culpa, mea culpa, oh, God, mea culpa. Please, oh Lord, oh please show mercy, in your infinite wisdom, on my prostrate and humble soul. I am unworthy. I deeply, and with reverence, aplogize for my transgressions."

Your mantra should definitely not be: "You're wrong. What I did was totally fine. You're mischaracterizing what I did and what I said. Get your act together." Because that's what the City of Tacoma did, at least in part, here. And, let me tell you, it did not have the desired effect.

It's not that Judge Kozinski gets especially nasty. But the panel's order is relentless, and pounds home both at length and in excruciating detail why the defendants are wrong, why their purported precedential distinctions are frivolous, and why the panel correctly assesed defendants' appeal as potentially frivolous. Moreover, one quickly gets a very keen sense from the order that, rather than make things better, the defendants' response to the order to show cause only made things worse -- and much worse at that. The response, which (according to the panel) merely continued to mischaracterize and misstate the record, only demonstrated that counsel was without remorse and still failed to recognize the impropriety of what has previously transpired. And so was in desperate, desperate need of a spanking. Which the panel was all-too-happy to administer.

Wholly beyond Judge Kozinski's particular personality traits, it's generally a bad idea to respond to an order to show cause from the Ninth Circuit with anything other than a profound mea culpa, especially in a case like this. Telling the panel "You're the one that's wrong, not me" isn't going to work, if only because (1) the judge, and -- perhaps even more importantly -- (2) his or her clerks will virtually uniformly defend, with gusto, their prior opinions and work product. Which is, in fact, precisely what you see in this order. And since the Ninth Circuit gets the last word -- after all, their opinion is published, and your response is not -- the panel has the ability to really publicly slam you, painfully, with little recourse on your part.

Everyone makes mistakes. Even big ones. And, at times, virtually everyone has been accused of something they don't think is right. I'm thus not surprised that the natural reaction of defendants (and their counsel) to the order to show cause was, at least initially, to be a bit defensive.

But you've got to let that go. If only for your own good. Otherwise you end up with an order like this one. Which ends not only by imposing sanctions, attorneys' fees, and double costs, but adds (for good measure) the following as its concluding sentence: "No later than 10 days from the date of this order, defense counsel shall serve a copy of this order, together with our opinion, on each member of the Tacoma City Council and on Eric A. Anderson, the Tacoma City Manager."

Not what you want to see -- or do -- if you're the attorney for Tacoma.

So memorize the words. Mea culpa. They may not do a world of good. But they're often a lot better than the alternative.

Fisher v. City of San Jose (9th Cir. - Jan. 16, 2007)

Sometimes you can't put a book down even after reading only the first page. For me, that was definitely the case with this opinion. Here's the second paragraph of Judge Berzon's opinion:

"On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events."

To paraphrase Dorothy Boyd in Jerry Maguire: You had me at "beer, baseball and guns."

Read the rest of the opinion to find out what happens. Let's just say that baseball figures less prominently in them than the other two.

P.S. - When you're surrounded by 60 cops, intoxicated, and heavily armed, the articulation of a rambling, drunken diatribe regarding your rights under the Second Amendment -- however valid -- may not be amongst the most prudent courses of action you could possibly take. Just a friendly reminder.