Stathoulis v. City of Montebello (Cal. Ct. App. - June 30, 2008)

We know that it's possible to sue a City if you trip on a crack in the sidewalk. But can you sue if you trip on a similarly-sized pothole in the road?

Yep.

Read the whole thing if you want to learn the common law about sidewalk and (now, at least) tiny-pothole tripping. Apparently if cracks or potholes are less than an inch or so, they're trivial, so you're out of luck. But if they're larger, or if you can get to a sympathetic jury, you can potentially get paid.

Ah, the life of the common law.

Mardardo F. v. Superior Court (Cal. Ct. App. - June 30, 2008)

It's a depressing reflection of the world in which we live when the Court of Appeal is called upon to decide whether a statute that denies family reunification services when "a parent [] of the child has caused the death of another child through abuse or neglect" applies to a 27-year old father who raped and murdered a 13-year old girl when he was 15. Legally, yes, the statute's ambiguous: does the statute's reference to "another" child mean another child of the parent, or merely any other child in the world? And what about parents who, as here, only become parents after they committed the offense and served their time for the crime? Does the statute still apply?

So, legally, I totally understand why the Court of Appeal has to resolve the case. And rightly so.

Still. Doesn't the mere existence of this dispute bring you a fair piece down?

P.S. - Justice Davis holds that the statute applies to all children and even to parents who were not parents at the time of the death. Though calls the latter issue a "tough nut to crack".

Brown v. Uttecht (9th Cir. - June 27, 2008)

The California Court of Appeal is having a server problem today, so no opinions from them. But the Ninth Circuit keeps cranking them out.

Including this one.

It's a death penalty case post-remand from the Supreme Court. A case in which the panel originally granted habeas relief -- though beginning the opinion with the memorable sentence "Cal Brown is not a nice man." -- but the Supreme Court (shockingly) viewed the merits differently. On a 6-3. (Stevens, Souter, and Breyer on the bottom)

So now the case is back down, for resolution of the remaining issues. Same panel on the Ninth Circuit, though. Kozinski, Reinhardt and Berzon. All three of whom were up for granting habeas relief in the original opinion.

Post-remand, however, it's -- predictably -- a different story. Two of the three judges say "Thanks, I'm done being reversed, thank you very much. Death penalty affirmed." One, however, says "I think not. I'll still vote to reverse the death sentence." Knowing full well, I believe, that he'd totally be smacked down by the Court if the case went up again. Which, of course, it would have had habeas relief again been granted by the panel. (At least if the case didn't get reversed en banc first!)

So who's the dissenter? Duh. I said "he" in the last paragraph, so that's one (totally unnecessary) hint. Here's another one: It's not Chief Judge Kozinski.

Like the remaining guy cares if he's reversed in a death penalty case. Add it to the list.

State Farm v. Superior Court (Cal. Ct. App. - June 26, 2008)

Justice Aldrich begins this opinion by saying: "If an insured throws someone into a swimming pool intending to get the other person wet, but by mistake does not throw hard enough and so the latter lands on the pool’s cement step and suffers injuries, is the incident an 'accident' within the meaning of insurance law?" He then adds "We conclude it is."

To which I'd have added the following sentence immediately thereafter:

"Duh."

People v. Page (Cal. Supreme Ct. - June 26, 2008)

Tahisha Clay, a six-year old girl, and her nine-year old brother Stefan were tossing a ball back and forth to each other in the apartment complex in which they lived when the ball rolled down a hill. When Tahisha went down the hill to retrive the ball, her mother called for her and Stefan to go back into the apartment, and Stefan did so.

Needless to say, the story goes downhill from there. Six-year old Tahisha was never seen alive again.

A chilling tale. And a death sentence unanimously affirmed.

Guidiville Band v. NGV Gaming, Inc. (9th Cir. - June 26, 2008)

You recall, I'm confident, the classic line from Bill Clinton's deposition during the Monica Lewinski days: "It depends upon what the meaning of the word 'is' is." A line that was -- perhaps entirely justifiably -- roundly mocked as laughably absurd.

And, yet, guess what the entire dispute in this case -- which lasts for 45 single-spaced pages -- surrounds? You guessed it. What the meaning of the word "is" is.

It's an awesome dispute, especially given this historical context. Particularly since there's both a majority and dissenting opinion -- in other words, the dispute is actually a darn close one. I was especially interested in this fight because the dispute resolved by the Ninth Circuit is essentially identical the one that Clinton proffered as a defense of his deposition testimony.

Clinton maintained that "is" is a present tense term, and hence that his statement that "there's nothing going on with us" was accurate, since, at that point, the relationship had ended. To quote the now-infamous defense of President Clinton: "It depends on what the meaning of the word 'is' is. If the -- if he -- if 'is' means is and never has been, that is not -- that is one thing. If it means there is none, that was a completely true statement. . . . Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true." I could put it a bit more articulately: "I testified that there 'is' nothing between us. 'Is' is a present tense word, so since there wasn't anything going on at the time, it was true."

The Ninth Circuit case revolves around a similar -- and dispositive -- dispute surrounding the meaning of the term. Section 81 of Title 25 requires approval by the Secretary of the Interior for certain contracts that relate to "Indian Lands," and defines that term as "lands the title to which is held by the United States in trust for an Indian tribe or lands the title to which is held by an Indian tribe subject to a restriction by the United States against alienation." So the question is whether "Indian Lands" include only those lands held as of the date of passage of Section 81 or includes future lands obtained as well. In other words, is "is" a present tense verb?

So the Ninth Circuit held . . . [the excitement builds] . . . that "is" is indeed a present tense verb, so the covered lands are only those held at the time. In essence, that Clinton was correct. Indeed, the majority held that "is" is only present tense -- according to the "unambiguous" language of the statute, no less -- even notwithstanding the language of the Dictionary Act (1 U.S.C. sect. 1), which states that unless the context indicates otherwise, "words used in the present tense include the future as well."

So pretty interesting, huh? Judge N. Smith dissents, arguing that lands acquired in the future are included as well. But -- sadly, to my eyes -- never draws the analogy (or even mentions) to the Clinton dispute. Which, in my mind, would be a pretty decent argument. As well as, perhaps more importantly, funny.

So what does "is" mean, my friends? Was Clinton, in fact, correct? Did he, in fact, testify truthfully? Don't forget that the Supreme Court held in Bronston that an answer that is literally true -- even if intentionally misleading -- doesn't count as perjury.

If I'm Clinton's lawyer, I would definitely cite today's case from the Ninth Circuit as strong support for his position. And if I was on the Ninth Circuit, you can bet your bottom dollar that I'd draw the analogy in the present dispute. Because it's an interesting -- and perhaps enlightening -- one.

Monroy v. City of Los Angeles (Cal. Ct. App. - June 25, 2008)

It's rare to read an opinion regarding a trial in a routine civil case -- here, an automobile accident involving the LAPD -- in which (1) the Court of Appeal reverses the jury's finding of no liability on multiple grounds, all of which are fairly pedestrian (application of requests for admission, limitation of cross-examination, whether a percipient witness deposition was admissible because the witness was unavailable, etc.), and (2) I find myself repeatedly saying to myself "Yes. Right. Yes. Correct. I completely agree." Usually, I think that the trial court not only gets these issues right, but the deference that's given to the judgment makes reversal unlikely.

But here, yet again, is the exception that proves the rule. The opinion by Justice Aldrich seems entirely persuasive to me. I agree with him on every point; so much so, that it's hard to see why the trial court made the findings it did (especially on the deposition issue).

It's a good case to read for civil trial lawyers. Especially since it manifests how pretrial discovery may be exceptionally relevant to how a case ultimately gets resolved at trial.

Plus, on a more pedestrian level, it's also interesting to read how the LAPD works with regard to responses to "Code 1" through "Code 6" backup requests; e.g., how the police decide whether to respond to a request by obeying traffic laws or, alternately, turning on their lights and siren and speeding through town.

Interesting stuff.

Morgan v. Mukasey (9th Cir. - June 25, 2008)

You can get Judge Noonan angry. And, like Bruce Banner, you won't like him when he's angry.

Here's proof.

Espinosa v. United Student Aid Funds, Inc. (9th Cir. - June 24, 2008)

Looking for a good law review article? Either because you're a student or want to crank out some publications to hopefully get a cushy academic job? Interested in the crushingly boring (but important) area of bankruptcy law as applied to civil procedure? Or merely looking to have impact on a legal issue on which the Ninth Circuit is the lone holdout and will soon -- perhaps very soon -- revisit the issue, perhaps with a subsequant foray into the Supreme Court?

Then here's a good topic. Which the per curiam opinion totally tees up.

Duncan v. Ornoski (9th Cir. - June 24, 2008)

It's a death penalty habeas case. Judge Reinhardt writes the opinion.

Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.

But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below . . . .

California Nat'l Bank v. Woodbridge Plaza LLC (Cal. Ct. App. - June 20, 2008)

Judge Rylaarsdam writes a completely persuasive resolution. I agree with pretty much everything substantive he says.

Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least). But I agree with the merits. Which is surely the more important part.

In Re Rothwell (Cal. Ct. App. - June 23, 2008)

It's possible to send heroin to a prisoner on a postcard?! Yes, it is.

Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.

Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.

People v. Roberts (Cal. Ct. App. - June 16, 2008)

It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.

The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive. He was a 22-year old African-American male whose sexual knowledge was fairly immature, and during the summer of 2004, he briefly dry-humped two teenage mentees who were sleeping at his home. That's a crime, for sure. The question is only how -- and how much -- he should be punished for it.

He's got no criminal record. The court-appointed psychologist concludes that Roberts is not a pedophile or sexual predator, that appropriate local treatment is available, that Roberts would succeed if treated, and is a good candidate for probation. Roberts was also a "model inmate with no disciplinary record" who "t[ook] advantage of the services offered to him" while he was in prison for the crime. Finally, Roberts "admitted culpability early on" and "expressed genuine remose and regret."

So what sentence? Probation's a possibility. Or, if you're going to put him in prison, you've got three choices: the low, mid, or upper term (4, 6, or 8 years, plus 2 more years for the second victim). What's your choice?

The trial court says: Upper term. Worse than your typical case. 10 years in prison.

Justice Raye writes the "majority" (of 1) opinion. Saying, in part, that "This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As . . . we see reguarly in the cases before us, his conduct, while represensible, was less egregious than many section 288 [the crime that Roberts committed] offenses." But concludes that, sorry, for the next decade, Roberts gets to be "rehabilitated" (with no treatment) in prison. After a decade in prison, Roberts will surely come out of there much, much better than when he went in, I'm sure. And society then gets to deal with the results of that lengthy incarceration for the remaining 50 years of Roberts' life. Nonelessless, Justice Raye says: Affirmed. Not our job -- or role -- to do otherwise.

Justice Robie writes a separate opinion. That states, in its entirety: "In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur."

Justice Sims dissents in part, and agrees that there was no abuse of discretion in denying probation but dissents from imposition of the upper term, stating that the latter "shocks my conscience." Money quote from Justice Sims: "In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subidivision (d), that I have encountered. . . . Considering all these circumstances [no prior record, conclusions of the court-appointed psychologist, quick acceptance of responsibility and remorse, model prisoner, etc.] and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking."

As an aside, Justice Sims also uses -- accurately, I might add -- the phrase "dry humping" to describe the crime that Roberts committed. A phrase that, a little research reveals, has not yet graced the pages of the California Reporter. Which -- wholly aside from the keenly interesting dispute between the justices -- would have been a good reason to publish the case. Even though, last time I checked, I'm pretty sure that's not one of the actual criteria in Rule 8.1105(c). Sadly.

It's a great dispute. One that concerns role, responsibility, and justice. So even though it's unpublished, it deserves a read. As well as serious reflection.

U.S. v. Gonzalez (9th Cir. - June 19, 2008)

Sure, defendants routinely claim that police officers steal money or drugs from them after they bust them. But it never really happens, right? I mean, come on. It's just absurd to think that a police officer would do so.

Unless, of course, it's caught on videotape.

Roberts v. Assurance Co. (Cal. Ct. App. - June 20, 2008)

"When you put my name in print, I don't care what you say. Just spell it correctly."

A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.

Leppind v. Mukasey (9th Cir. - June 20, 2008)

Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.

But usually you write a dissent in response to something contrary that was written by the majority. They say that X is true, so you write that X is false. Makes sense.

But to every rule there's an exception. As Judge Ikuta demonstrates here.

The majority enters a bold and unprecedented order referring the action to voluntary mediation. At the suggestion of the parties. Shocking, I know. They then write an order saying that they do so because there's an intervening case that might -- just might -- affect the resolution of the case, and rather than remand the matter for the BIA's initial take, the government suggested that mediation might do wonders instead, at which point the Ninth Circuit says: "Sure."

Judge Ikuta, however, dissents. And writes a lengthy opinion in which she argues that the intervening case is distinguishable from the present dispute. Recall that the majority never said that it wasn't. Just that it may or may not be. Hence the order. And the (hardly fanciful) hope that a successful mediation might moot the need to resolve the matter.

So you've got a case that may well be successfully and efficiently mooted out, a majority that doesn't decide a thorny judicial question, and an order that merely send the case the mediation to see if it can be resolved. In light of all that, why dissent? And why write a dissent now, as opposed to when (and if) the case comes back in the event the mediation is unsuccessful?

The answer, of course, depends upon who your audience is, and what you're trying to accomplish. If you are trying to resolve a particular dispute, both efficiently and without the need to address potentially unnecessary disputes, then you don't author a dissent, in my view. At least at this point. The majority has merely said that an intervening case may be relevant -- not that it's dispositive -- and that mediation might help. You can sign onto both those statements as well as the resulting reference to mediation even if you believe the intervening case to be distinguishable.

By contrast, if you're worried that the present dispute might, in fact, settle at mediation -- or want to influence the BIA in another (or intervening) case raising the same issue, or the influence the outcome of the mediation -- or are worried that this case might be your only opportunity to personally opine about the merits of the legal dispute at issue, you write a dissent now. One that makes sure to get across your personal opinion about the issue that the majority on the panel expressly does not reach. For anyone who might want to listen.

An interesting decision.

I'm not saying that I'd never do that. In an appropriate case, I might well. But I wouldn't do it here. Especially given the particular context -- mediation -- as well as the underlying legal issue, I'd have definitely been with Judge Wardlaw and Judge Fogel (sitting by designation) on this one.

Barona Band v. Yee (9th Cir. - June 18, 2008)

Kudos to Judge Wardlaw. For writing an opinion that not only makes sense on the merits (though I admit that I totally see the other side as well), but also contains a funny line with the perfect level of subtlety. Not too much, but definitely not too little.

The case involves whether the Barona Band of Mission Indians, who have a big casino down here in San Diego (and nice golf course too, I might add), can immunize non-Indian contractors from paying California sales tax on purchases of construction materials from non-Indian vendors through a particular complex (but elegant) arrangement designed to do just that. The Barona Band convinces the district judge (Judge Sabraw) that this scheme succeeds, but Judge Wardlaw holds that it doesn't. Sorry.

The relevant funny line -- which really did make me both smile and let out a little chuckle -- comes fairly early on in the opinion. Here's the setup, which is the second paragraph of the opinion:

"After nearly two centuries of displacement of the Barona Band of Mission Indians by European and then American encroachment, the United States enacted legislation to provide a tract of land in rural San Diego County to serve as a reservation for the Tribe. Until the early 1990s, however, the Tribe suffered from deep structural economic difficulties. Following the nationwide trend of Native Americans seeking to infuse economic life into depressed reservations, the Tribe opened up a casino in 1996: the Barona Valley Ranch Resort & Casino — 'Where The Real Players Play, and Win.'"

Then comes the punch line, which is first sentence of the third paragraph:

"By 2001, enough of these real players had played and lost for the Tribe to plan a $75 million expansion to the casino floor and hotel, replete with a new wedding chapel, parking structure and other resort amenities."

I admit that I don't fully know why I loved that line so much. But I did.

People v. Wilkinson (Cal. Ct. App. - June 18, 2008)

Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much.)

If you nonetheless disagree, let me warn you: It's 180 days in a world with a lot less interesting sexual action if you're caught.

So that's the purient take on this case. Here's the legal angle:

I know that the relevant precedent on this point is pretty bad. But my personal opinion is that when (1) a police officer volunteers to a roommate that the officer can't search the defendant's room because there's no probable cause -- nudge nudge, wink wink -- and; (2) the roommate responds by getting the "crazy idea" (from I wonder where) that maybe the roomate should search the defendant's room himself and give the evidence to the police; and (3) asks the police officer if he can do so, to which the officer admits he responds "Well, you can do whatever you want. It’s your apartment. . . . But keep in mind, you cannot act as an agent of my authority. I
cannot ask you to go into the room, nor can you go into the room believing that you’re doing so for myself." (the most obvious nudge nudge in the universe, IMHO); and (4) the roommate does so and provides the evidence to the police, well, that's an illegal search. Sure, it's a fact-intensive inquiry. But I find it entirely uncredible -- to the point of absurd -- that the police officer in such a scenario isn't actively encouraging the search.

When someone asks a police officer if they can illegally enter another person's private room and shuffle through (and take) their possessions, the routine (and legitimate) response would be "No, you can't. That'd be trespassing, theft, and a variety of other crimes." When, instead, the officer admits that he says "Well, you can do whatever you want," and goes on to say that they can't tell you to perform the search that because that'd be an illegal search, we all know full well what the officer's really saying. And a finding to the contrary is blind to reality. As well as a similar type of distortion -- though admittedly not nearly as egregious -- regarding what's really going on as the underlying nudge itself.

On the other side of the equation, however, I couldn't agree more with the following language from the outset of Justice Robie's opinion:

"Defendant first contends he had a reasonable expectation of privacy in the contents of the compact discs located in his room. The People disagree, contending he 'did not have a
legitimate expectation of privacy in the stolen images of his roommates’ private sex life.' According to the People, 'While [defendant] may subjectively have expressed an interest in keeping the disks private by keeping them in his room and asking people to stay out, the voyeuristic images are not the kind of material that society is willing to recognize as a legitimate
privacy interest.'

We find the People’s argument rather startling, inasmuch as acceptance of it would largely obliterate the Fourth Amendment, because whenever a criminal prosecution is premised on
contraband discovered during a warrantless search, the search that led to discovery of the contraband could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband. We know of no authority that supports such a broad proposition. Certainly that proposition is not supported by the only two cases the People cite. [Powerful and entirely accurate discussion of those cases then ensues.]"

I think it's entirely right to quote -- and then pound -- silly and/or dangerous legal arguments advanced by a party. Keeps 'em honest. Or, hopefully, will at least make 'em think twice about articulating such positions.

Long v. Century Ins. Co. (Cal. Ct. App. - June 17, 2008)

It's rarely a good sign when the Court of Appeal quotes your brief in its opinion. Because usually that means that they're just teeing your argument up to take a huge whack at it.

As here.

Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B. Long. Who's not only the attorney representing the appellant on appeal, but who's also the appellant. Oh, yeah. Also the loser.

So off to arbitration for you, Jay. Think of it as a sort of "legal roulette" thing akin to some of the stuff you see on the Nevada side of Lake Tahoe. Though a lot less fun.

Gribben v. UPS (9th Cir. - June 16, 2008)

Maybe it's just because I've been on the East Coast -- sweltering in heat and humidity -- for the past week. It makes certainly makes me sympathetic. But regardless of the reason, even on the merits, I was interested to learn from this opinion by Judge Thompson that the ADA can require an employer to provide air conditioning in the vehicle that its employee drives.

On so many levels, it makes me long for the cool, ocean breezes of San Diego ASAP. Where, as we speak, wedding bells toll across the State.