People v. Batman (Cal. Ct. App. - Jan. 30, 2008)

I'm Batman. No, not that one. Donald James Batman.

So you can't collect $144 from me.

People v. Seminoff (Cal. Ct. App. - Jan. 29, 2008)

There are various parts of this opinion about which I might disagree. For example, it seems to me that the prosecutor was deliberately asking tangential questions to the witness purely in order to get her to invoke her Fifth Amendment rights (rather than risk prosecution) and hence get her testimony on the suppression motion stricken. Sure, the credibility of the witness was a central issue, but that does not open up every possible inquiry on the ground that it might provide fertile grounds for impeachment. And, unlike Justice Bedsworth, I thought that the queries posed by the prosecutor were darn tangential to the issue at hand, and that this was the case even though the queries admittedly related to the marijuana in the room.


Who cares if the witness "intended to sell" the marijuana, for example? The only reason the prosecutor asked that query, in my view, was because the prosecutor knew that she would whack herself if she answered it, and figured that -- even after some point -- the witness would invoke. Since that was the core purpose of the question, I think that the severe sanction of striking the entire testimony of the witness was pretty harsh. And the fact that the questions concerned some items relevant to the charge doesn't seem enough for me. The pot was wrapped in wet towels, for example. Does that mean you get to ask the witness: "Did you use these towels to abuse your child earlier in the evening? For a sex act? Did you use the marijuana as a suppository? To beat a man to death?"


At some point, the purpose of the questions seems purely to get the witness to invoke. And I had a keen sense that was the case here. Especially after the witness had already copped to possessing and transporting the marijuana.


Admittedly, my reaction to the case was somewhat colored by the fact that the police officer's testimony at the suppression hearing was less than unambiguously credible. To put it mildly. "I announced myself at the door. I waited 30 full seconds. Then I opened the door a crack and announced myself again. And waited another full 30 seconds. Only then did I enter. I smelled the overwhelming smell of marijuana, even though the pot was all wrapped up and none of the paramedics recalled any such smell. I saw some methamphetamine in plain view. The witness gave me permission to look in her briefcase. None of what the witness says is true." Well, yeah, I guess maybe that's what really happened. But I have a spidey-sense -- potentially inaccurate, I admit -- that this testimony sounds a bit too good to be true.


I do, however, agree with Part II of Justice Bedsworth's opinion, which concerns the validity of the entry into the hotel room after the four-year old son of the witness came down to the hotel lobby and accounced that he could not wake his mother. Justice Bedsworth concludes that this justified a warrantless search, and this seems right to me. Especially given the first sentence of the fourth paragraph of Part II, in which Justice Bedsworth states:


"If there is one thing four-year-old boys are usually good at, it is waking their parents."


As the parent of a four-year old boy, I couldn't agree more.

Costco v. Hoen (9th Cir. - Jan. 29, 2008)

Prohibition. The Sherman Act. The 21st Amendment. Costco's mission to provide cheap intoxication to the masses.

Important interests, all. That directly collide in this case.

Costco challenged a variety of restrictions in Washington that drove up the price of alcohol -- e.g., by making volume discounts to retailers illegal -- as violating the Sherman Act. The district court largely agreed. But the Ninth Circuit, in a closely watched case, largely reverses.

It's a tough case. The interactions between the sovereign and the regulation of alcohol has always been a dynamic one. Especially here in the States. I have no doubt that the Washington regulations have the effect -- and probably the purpose -- of raising the price of alcohol. But the State's generally allowed to do that. Mind you, Costco has a pretty good response that if you want to do that, you should raise excise taxes rather than regulate competition. But Judge O'Scannlain makes a reasonable argument that, doctrinally, the regulations here are permissible -- even if imperfect -- as acts of the State. Sure, competitors couldn't engage in horizontal price-fixing in order to raise prices. But perhaps State regulation may permissibly accomplish the same end.

You don't read nearly as many antitrust cases nowadays as you did in the 80s. Much less do you read nearly as many cases involving the 18th and 21st Amendments as you did in the 20s. So this one is interesting.

Costco will undoubtedly seek further review. And consumers in Washington await the results.

People v. Morton (Cal. Ct. App. - Jan. 22, 2008)

Sometimes you don't know whether to laugh or cry:

"The events giving rise to the crimes charged against Morton occurred on November 7, 2004. At that time, Morton resided with his girlfriend and alleged victim, Theresa Windham. According to the prosecution’s evidence, Morton was sitting in the living room watching television, while Windham was cooking in the kitchen, topless. Morton made an unflattering comment about Windham’s appearance as compared to that of a stripper in the movie he was watching. Windham took umbrage, told Morton she was going to move out, and noted that he also fared poorly in comparison to the 'good looking and big' man in the movie.

Not to be outdone in the umbrage department, Morton picked up the chair he had been sitting in, and tried to throw it through the window near Windham. He then grabbed a wooden table and threw that at Windham. Neither connected.

Windham went into the hallway, picked up the phone and attempted to call 911. Morton grabbed the phone from her, and they both went into the bedroom. Morton hit Windham several times in the jaw with a closed fist, and 'head-butt[ed]' her. When Windham began screaming, he grabbed her by the throat from behind, and a neighbor heard her shout 'you’re going to choke me to death.' According to the neighbor, Morton responded something to the effect of 'I don’t give a damn, you bitch.'

Morton and Windham ended up on the floor, and Morton again choked her until Windham thought she would actually pass out. Although Windham was able to get Morton’s hands off her throat, he remained on top of her. He squatted over her face, then pulled down his pants and told Windham 'I’m going to shit on you.'

Windham managed to escape this Fellini-esque nightmare, and fled the apartment, still topless. Morton followed her, but according to Windham, his mood had changed. He told Windham he loved her and wanted to go to his sister’s house. A neighbor overheard him say to Windham: 'be quiet, because if the cops come, I’m going to be gone. Is that what you want?'"

It goes on like this. While reading the description of the facts, at times, I had both reactions. Some of the comments are so bizarre and crazy and strange as to be funny. And yet, knowing that it's all real, and knowing how the cycle persists (as well as the physical results), makes it impossible to feel anything other than sorrow.

Verga v. WCAB (Cal. Ct. App. - Jan. 25, 2008)

I'm sorry. Did I say "Yes"? I meant, of course, "No."

Or, as the Court of Appeal says in this modification of the opinion: "On page 11, last paragraph, first sentence, insert the word 'not.'"

U.S. v. Cherer (9th Cir. - Jan. 25, 2008)

I've said it before. It remains true. I'll say it again:

When you're a 35 year old man, and engaging in sex talk with an alleged 14-year old girl, that's not actually a 14-year old girl on the other computer. It's the FBI.

Paris Cherer found that out the hard way. And will get to remember that fact for the next 25 years. In prison.


Parenthetically, Judge Noonan has a very interesting dissent to the sentence here. He notes that Cherer gets 25 years for trying to meet an alleged 14-year old in a hotel to have sex; in other words, for a crime with a nonexistent victim and no actual harm. By contrast, under the sentencing guidelines, you only get 8-17 years for an actual forcible rape of a real victim. And Judge Noonan contrasts the present case -- and 25 year sentence -- with a Ninth Circuit forcible rape case in which the defendant got 7 years, and argues that it's hard to argue "that Cherer’s clumsy effort to obtain forbidden sex was over three times more heinous" than the actual rape that got 7 years.

Ultimately, Judge Noonan gets outvoted, and the majority says that the 25 year sentence seems fine (even if seemingly high). But he still articulates an interesting perspective. And it is indeed hard to argue that 25 years is the right sentence for an internet attempt at sex with a minor but 7 years is the right sentence for a completed forcible rape.

CKE Restaurants v. Moore (Cal. Ct. App. - Jan. 24, 2008)

I wouldn't have facially thought that filing a declaratory relief action once someone tells you that they're probably going to sue you (by filing a Proposition 65 notice) would be subject to an anti-SLAPP motion, and hence suddenly raise the prospect of attorney's fees. You'd have thought, at least initially, that it was just a procedural device to get the matter in court faster (and, potentially, in a different forum), not something that would result in potentially large liability for attorney's fees.

But, if that was your belief, you'd be wrong, at least according to Justice Coffee. You're subject to an anti-SLAPP suit. Which CKE (i.e., Carl's Jr.) discovered on appeal. To its substantial detriment.

P.S. - Page 4 of the opinion, last sentence of third paragraph: I'm pretty positive that Scot Wilson -- a young attorney for CKE (and a UCSD and Pepperdine Law graduate) -- drove his fries, onion rings, and fried zucchini to Santa Fe Springs, not "Santa Fe prings".

Ross v. Ragingwire Telecommunications, Inc. (Cal. Supreme Ct. - Jan. 24, 2008)

If you've got a prescription, and it's medically necessary, California law let's you take a toke. But that doesn't mean your employer can't fire you for it. Even if it happens at home off-duty and doesn't affect your job.

So holds the California Supreme Court. Justices Kennard and Moreno dissent, but Justice Werdegar's opinion gets more votes.

Something to think about the next time you have a need for doobage.

Bertrand v. Santa Clara County (9th Cir. - Jan. 24, 2008)

That was fast.

The Ninth Circuit back in June decided an immunity case. None of the members of the panel liked it, but they were bound by circuit precedent -- a published opinion authored by Judge Paez back in November 2003 -- to find that the social worker had immunity. So Judge Reinhardt writes an opinion that grants immunity, but Judges Reinhardt, Milan Smith, and Ferguson also write separately to say that they think the circuit precedent on this point is wrong.

Thereafter, in rapid order, (1) the July case gets taken en banc, (2) it gets argued last month, and (3) within 45 days, the en banc court unanimously cranks out a per curiam opinion reversing the panel. An opinion that spans, in its entirety, all of two full pages.

Whew. That was a toughie, huh?

What I especially liked is that the en banc court unanimously overrules Judge Paez's 2003 opinion, which the court says was wrongly decided, not because of intervening precedent or anything, but rather because it was simply wrong. And who's one of the members of the unanimous en banc court to so hold? Judge Paez, of all people. Who simply signs on to the opinion; there's no separate statement that says "Oopsie" or "This is why I changed my mind" or anything like that. Just signs on with the rest of the 11-member panel.

So a quickie -- an interesting quickie -- opinion in the morning.

People v. Williams (Cal. Ct. App. - Jan. 22, 2008)

This opinion is fairly short (seven double-spaced pages). And I've got a very brief -- and idiosyncratic, I admit -- question about it.

Does it speak ill of me -- and it may well -- that I really want to know how old the defendant is? I mean, if he's a 25- or 35-year old guy, this whole stuff seems so weird. In addition, obviously, to being a crime and worthy of punishment. And yet, if the defendant's 70 or something, the case takes on a whole new meaning.

My strong sense is that the former is true. But I really wanted to know. Not because it makes a difference in the law, or (perhaps) the result. But it does potentially give the thing a slightly different flavor.

So that thought popped into my head, so I thought I'd share it. Even if -- and, again, this is distinctly possible -- my emotional reaction to the underlying events should intellectually be the exactly the same regardless of whether the defendant was also elderly.

A weird tangent for the day.

Plumlee v. Masto (9th Cir. - Jan. 17, 2008)

Sometimes it's lonely being the only strong leftie drawn for an en banc panel. So you get outvoted. Big time. As in double digits to your one.

Such is the life of Judge Pregerson. Who was drawn for this case, which took en banc the previous opinion in a criminal case authored by Judge Betty Fletcher (and joined by Judge Thomas). But neither Judge Fletcher or Thomas -- or even reliable lefties like Judge Reinhardt -- were selected for the en banc court. And hence Judge Pregerson stood alone.

Vox clamantis in deserto, as we used to say.

Frantz v. Hazey (9th Cir. - Jan. 22, 2008)

Maybe Alex Kozinski has changed -- albeit only a tiny little bit -- as a result of his new role as Chief Judge. And, perhaps, has only changed in the context of en banc opinions.

Regardless, if there has been a change -- and I admittedly think it's way too soon to tell -- I think I'll like it.

The "old" Judge Kozinski would typically write a blistering (and, usually, blisteringly persuasive) dissent, or concurrence, if he had something special to say to his colleagues. And that part, thankfully, hasn't changed. He still writes directly. He still takes on the other side head on. All of which is good. And which he does here, in which he writes a concurrence (joined by Judges Wardlaw, Paez, and Bea) that responds to a concurrence by Judge Gould (joined by Judges O'Scannlain, Rymer, Silverman, Callahan, and Ikuta) that adopts a starkly different view, albiet resulting in the same result, than the majority opinion.

That said, for all the similarities, and for all the (great) directness, Chief Judge Kozinski's concurrence is nonetheless, I think, a tiny bit mellower than usual. A tiny bit less harsh. A tiny bit more collegial, albeit within the context of a very targeted response. It's not a "classic" Kozinski concurrence. But is instead an older, slightly gentler, reproach.

And that's not because Alex has mellowed in his old age. He hasn't. If anything, I think the near uniform consensus is that he's gotten a bit meaner, and a fair piece more tempermental, over time. At least towards parties and their counsel.

But I think there may be at least some slight evidence that, at least with respect to his colleages, and at least in en banc decisions, there's an incipient mellowness starting to reveal itself. Subtle. Careful. And not in a way that would at all diminish the classic Kozinski response. But that's nonetheless there.

Time will tell, of course. Still, I liked what I saw here. And look for more to come.

P.S. - Please don't think I'm saying that Alex will never tee off on people in the future. Trust me: He will. You can take that one to the bank. There may nonetheless be something here, in particular cases, that's slightly different from his usual take.

Ali v. Bureau of Prisons (U.S. Supreme Ct. - Jan. 22, 2008)

You gotta love this opinion. For at least two different reasons.

First, it's not your usual 5-4. Sure, in general, the conservatives are in the majority and the liberals are in dissent. Nothing surprising there.

But unlike the usual case, where Kennedy's the swing vote, this time the swing vote that adds the fifth vote to the four conservatives (Roberts, Scalia, Thomas, and Alito) is . . . . Ginsberg.

Ginsberg?! That's right. Ginsberg. Kennedy dissents, with Stevens, Breyer, and Souter on board. But not Ruth Bader. Hence the 5-4 the other way.

Ain't gonna see that often.

Second, it's a neat case for statutory interpretation types. Or even just people who like grammar a lot. The question is all about how you interpret the phrase "any law enforcement officer" in a particular statute. Does that phrase really mean any law enforement officer is immune from suit? The conservatives (and Ginsberg) say, sure, any means any, and the statute is unambiguous. Whereas the liberals (and Kennedy) go the other way. And, in the process, discuss -- and debate -- a ton of different guides to statutory interpretation. All of which, of course, have latin descriptions: ejusdem generis, noscitur a sociis, etc. Cool beans. And important even beyond this particular case.

Plus, Justice Breyer also writes a separate dissent (joined by Stevens) that makes a very interesting argument, and essentially argues -- among other fascinating points -- that rather than being crystal clear, the word "any" often is actually meaningless. Or at least inherently limited by its context. You can summarize this point in a great line he uses, in which he says: "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.'" Rather, he argues, "the context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as 'any' will apply."

Sure, this argument has its origin at least as far back as an early opinion by Chief Justice Marshall. But it's never been made as neatly as Justice Breyer makes it. So that's interesting as well.

So some good stuff in here. And not too long. Worth the read.

CONFLICT DISCLOSURE: I was one of the counsel for the petitioner (the side that lost) in this one, and was on the briefs as well as at counsel's table at oral argument. I rarely post about cases in which I've been involved, but given the makeup of the majority, as well as the contents of the opinions, I thought an exception was justified. I've tried to describe the opinion as neutrally as possible -- but, obviously, you can be the judge of whether I've successfully done so. And, in case you're wondering: Sure, we knew we might well lose some or all of the conservatives. But had no idea whatsoever that we'd lose them plus Ginsberg. No clue.

Jessen v. Mentor Corp. (Cal. Ct. App. - Jan. 16, 2008)

And, equally tangentially, on the lighter side of things, read this opinion. Which is yet another of the everyday cases you read involving a deformed testicular prothesis. Dime a dozen, right?

P.S. - Do you think Justice Perluss recognized the potential of footnote two, which says "there is no significant difference in appearance or weight between an unfilled and filled implant, especially in the small size Jessen received" (emphasis added)? I mean, sure, I know we're talking about a prothesis here. But, personally, I'd strongly prefer not to have a reference to my "small size" in any of the affected area in question -- especially in a published opinion!

U.S. v. Lococo (9th Cir. - Dec. 27, 2007)

It may be a holiday. There may be no new opinions to read. It may even be raining (as it is) in ordinarily sunny San Diego. But there are still cases about which something can be said.

For example, this one's from a couple of weeks ago, but there's no reason -- at least that I can see -- to publish this opinion. Which basically doesn't say anything other than (1) conclusions, that (2) are totally fact-specific.

Wholly beyond publication, while I'm a fan of short(er) opinions, I do think that this one goes off the deep end. The defendants are in prison. For a long time. So there's lots at stake. And each of the parties have filed long briefs that make a variety of different arguments.

I think that the resolution of these appeals require more than just mere recitation of the judicial conclusions. Which is basically what happens here. Maybe a lengthy exegisis on each point is unnecessary. But more -- a fair piece more -- than what's here seems to me to be the bare minimum.

I think this is a good example of what happens when (potentially) good intentions go way too far. Brevity ain't always the soul of wit.

Nguyen v. Nguyen (Cal. Ct. App. - Jan. 17, 2008)

Stylistically, this opinion reads a little bit like the first -- and sometimes second -- drafts of the briefs that I sometimes write. And that's not necessarily a good thing.

I'm not saying that Justice Sills gets this one wrong. Far from it. In fact, I think he's totally right, and that Janet Nguyen -- rather than appellant Trung Nguyen -- was properly declared the winner of the relevant Orange County supervisorial seat at issue in the litigation.

It was a freakishly close election. The original canvass of the votes declared that Trung was the winner. By seven votes. But then Janet asked for a recount of the paper ballots. And, after the recount (and various challenges to various votes), Janet was declared the winner. By, ironically enough, seven votes. At which point Trung then filed an election contest. And the trial court changed four votes in Trung's favor. But that still left Trung three votes short. Hence Janet's the winner.

So the underlying backdrop is pretty interesting. As well as timely, and should hopefully encourage people to get out and vote. Including but not limited to the California primary election on the 5th. Remember: even a single vote sometimes matters.

But I digress. What I mainly wanted to say was that Justice Sills writes this opinion in a passionate manner. Which I don't necessarily dislike. He believes strongly in what he's saying, and it shows. Mind you, unlike advocates, judges might often want to sound a little less one-sided. But, sometimes, emotions seep through. And that's not always a bad thing.

But I do have one suggestion. Yes, when you first write the thing, you use a lot of italics for emphasis. At least if you're like me you do. You want to have the reader really hear and understand what you're saying. You think -- at least subconsiously -- that if the reader really knows and feels the nature of what you're writing, including the emphasis on particular thoughts and words, then they will truly get the meaning of what you're saying and a deep level. Hence the italics. You're writing in the same manner that you speak. Or, more accurately, think.

Which is all well and good. And understandable. And, again, something that I do in spades.

Nonetheless, you should generally edit that stuff out as the drafts progress. Yes, you still feel it. Yes, the points of emphasis are still meaningful. But take 'em out anyway.

In this opinion, Justice Sills italicizes multiple different phrases for emphasis on pretty much every single page of the opinion. Take a gander, for example, at page 17, which italicizes for emphasis no less than a half-dozen different phrases. With all due respect to Justice Sills, that's probably way too much. A random italicization or two in an opinion -- or in a brief -- is okay. But not multiple emphases on every single page.

IMHO, anyway. And, on this one, my suggestion is to do as I say, rather than as I do. There's no doubt in my mind that one could find briefs I've written -- especially ones that only went through a couple of drafts -- that have way too many emphases. It's a big flaw of mine. Among many others, I might add.

But think of it this way: When even I think that someone's placing too much emphasis on particular words, that should say something.

Just a suggestion. Keep drafting those things with a lot of italics. Get it out of your system. But edit 'em out as the process continues. And I'll try -- try -- to do the same. Really.

People v. Medina (Cal. Ct. App. - Jan. 17, 2008)

Maybe this year's a bad one for computer integration as well. Consider this line in the opinion published today by Justice Kane: "Defendant told the officer it was his hous7e."

Time to work the bugs out of that computer system, huh?

People v. Chakos (Cal. Ct. App. - Jan. 17, 2008)

I think that 2008 is going to be an unusual year, as I keep seeing things that are pretty darn rare. Not four-headed monsters or anything. But nonetheless stuff you don't see every day.

Like this amendment, which was published today by Justice Sills. An amendment that consists solely of removing a somewhat snide comment made in the previous opinion.

In footnote 7 of the original opinion, Justice Sills quoted at length from the Attorney General's brief, in paragraphs in which the AG tried to "make sense" (i.e., argue from) a particular precedent (Hunt). Justice Sills was, shall we say, less than persuaded by this analysis, and said -- among other things -- that the AG's interpretation was "a misreading of Hunt," and then explained why. Moreover, after articulating the AG's position, Justice Sills then included the terse line: "Hunt held no such thing." And, as a bonus, Justice Sills then concluded the footnote by saying: "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"

In a word, Justice Sills was a bit miffed. And didn't mind showing it.

Then the AG moved for rehearing. And, upon the passage of time, perhaps Justice Sills was less upset. Or, perhaps, just wanted to be nicer.

And so, today, changed the opinion to delete that last line: the part that said "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"

The footnote still ends with "Hunt held no such thing." Which is pretty incisive. But gone is the bonus slam.

Anyway, I haven't seen many amendments that accomplish nothing other than toning down rhetoric. So it's unusual. (I was fine, by the way, with both the initial slam as well as its subsequent deletion. The slam seemed somewhat appropriate, but at the same time, it surely was unnecessary as well. Including it is just a matter of whether you want to be especially nice or mean, and I don't think it unusual that, as time passes, and initial tempers flare, one may tend to become a little more of the former and a little less of the latter.)

I guess the only downside is that we now can't cite a clear case for the proposition that not every statement in a published opinion is a holding! :-)

In Re Marriage of Barthold (Cal. Ct. App. - Jan. 15, 2008)

"A party can't file a motion for reconsideration that doesn't meet the requirements of CCP 1008; e.g., that doesn't raise anything new. But while a party can't do that, if it does, and the judge is thereby persuaded to grant the relief requested therein 'sua sponte' (albeit obviously prompted by the improper motion), that's okay. Sure, that'll undoubtedly lead to the filing of improper Section 1008 motions, since, after all, they've now got a chance of working. But trial courts can always sanction such motions if they want. So you'll have more sanctions and more motions, but also more justice. And that's probably the best of the two available alternatives."

That's not exactly the way Justice Ruvolo puts it. But it's pretty darn close.

And I think, on the merits, he's probably right as well. Even though I can definitely see the other side.

So dust off those Section 1008 exemplars, you often-way-too-litigious types. They may well work for you in the end.

Preserve Shorecliff Homeowners v. City of San Clemente (Cal. Ct. App. - Jan. 16, 2008)

You should read this opinion if only for the breezy manner in which Justice Sills writes it. That's not something you see every day. Even from him.

Plus, on the merits, he's exactly right. It's unconstitutional under the First Amendment to require that people who circulate referenda petitions be eligible voters in the city (or other locality) in which the referenda is to be voted upon. Sure, there's a 1994 Court of Appeal opinion (Browne) that upheld such a statute. But that's not good law after the U.S. Supreme Court's opinions in Meyer (which predated Browne) and Buckley (which came after, and is more on point). (Parenthetically, I might not have included Section C.3.a of the opinion -- which tries in part to distinguish Browne -- and instead would have just gone with C.3.b, which argues that this opinion doesn't survive Buckley. I think the latter point is much stronger than the first.)

So I agree with Justice Sills on the merits. Even though I can also see the counterarguments, and think that the dissenters in Buckley made some good points. I also agree with his decision to reach the constitutional issue even though -- somewhat stunningly -- no such argument had been raised by the parties below. His analysis of this issue is spot on, in my view. Exactly right.

So a neat First Amendment opinion for the day.

P.S. - For what it's worth, I'm somewhat less convinced by the companion opinion (in a separate case, but published at the same time) authored by Justice Sills. I think there's a pretty good argument for substantial compliance in that one. But I see his argument to the contrary, which is far from frivolous. Still, I think that the first opinion is better. And is much more clearly right.