In Re Loveless (Cal. Ct. App. - Jan. 31, 2011)

Half good.  Half bad.

Good part first.  Michael J. Loveless decides to rob a house in 1986 because he thinks there's a ton of money in it.  He and a confederate go in, tie up the father and his 14-year old son, and put a gun to the father's head.  A while later, while the gun is at the father's head, it goes off, killing him.  Loveless immediately apologizes, saying it was an accident.  After searching the house, Loveless's confederate tells Loveless to kill the boy since he's a witness, but Loveless refuses to do so.  They leave the house with $110 in cash, and Loveless is eventually caught, convicted, and sentenced to 15 years to life.

Fast forward 22 years later.  Loveless has no criminal record, was drinking heavily (and using drugs) at the time of the offense, has an extremely good disciplinary record in prision, and has lots of support for parole.  But the Board denies him.  The trial court, however, reverses.  The case goes up to the Court of Appeal.

The good part about Justice Nicholson's opinion is that it reverses the trial court.  There was indeed "some evidence" that supported the Board's decision.  Loveless had stopped attending AA and NA, had basically done everything that the Board told him to do but no more, hadn't really done any self-help efforts, and was overly agitated during the parole hearing, constantly interrupting the Board, which concluded that they were "listening to a con, and not necessarily a rehabilitated one."

Now, some of this is perhaps understandable.  If you've been in prison for two decades based upon a robbery that went horribly wrong, and finally have a chance to be free, when you're faced with a hostile Board (either objectively or in your own mind), I can see how one might be frustrated.  Nonetheless, you have to be calm, and your inability to do so doesn't bode well for your future success.  So I agree with the Court of Appeal that, based on the totality of the Board's findings, there was some evidence that supported their decision to deny parole.  So that's good.

Here's the bad part.  The Court of Appeal also holds that the Board was correct to deny parole because the crime was committed "in an especially heinous, atrocious or cruel manner."  What?!  Yeah, Loveless only got $110 from it, which I guess is a "trivial" reason, but all murders for money are inherently for trivial reasons -- the two (a human life and money) are incommensurate.  You're telling me you should grant parole to a guy who killed and stole for $110,000, but not $110?  Really?

More importantly, the shooting was clearly an accident.  Yes, that's still second degree murder.  But every murder is "especially heinous" if even an accidental murder counts as well -- hardly a basis for distinguishing the parole-worthy from those who should be denied.  Loveless immediately said it was an accident.  He refused to kill the son -- even at potential risk to himself from his confederate -- even though it meant leaving a live witness.  What Loveless did is simply flatly inconsistent with a view that he deliberately shot and killed the father for a mere $110.  The fact that the robbery was planned, and that it was a calculated risk to put a gun to someone's head, definitely makes it second degree murder.  But that doesn't make it an especially heinous one.

I've read a ton of second degree murder cases in my time.  To say that this one falls on the extreme end of the "especially heinous" scale is simply uncredible.  Yes, a person died, and yes, he died in front of his 14-year old son.  Deliberately imposing those costs or $110 would have been one thing, and maybe I'd be on board if Loveless indeed engaged in such a calculated act (or shot the son as well).  But that not only didn't happen here, but what actually transpired was in fact the total opposite.

So there's a good result here, I think, and for more than an adequate reason.  But part of the basis for the Court of Appeal's holding seems both demonstrably wrong as well as extremely pernicious -- for Loveless (who has to face that same holding in future parole appeals) and for everyone else who will now have to face this same precedent in deciding whether their (much worse) murder was also "especially heinous."

So some good.  But some definite bad.

United Fabrics v. C & J Wear (9th Cir. - Jan. 26, 2011)

Sometimes oral arguments matter.

United Fabrics has a copyright on a particular fabric design, and sues C & J Wear (as well as Macy's) for infringing this design.  United Fabrics got this design from an Italian design house though an agent, and registered the copyright in the United States.

The district court, however, dismissed United Fabric's lawsuit for lack of standing, on the ground that it didn't prove that it had a valid copyright because it couldn't establish a complete chain of title to the design -- i.e., ownership of the design from the Italian company to the agent to United.  United Fabric appeals.

The big problem with this analysis, however, is that registered copyrights are presumed valid.  So it was Macy's duty to prove that United Fabric didn't have the title, but Macy's didn't do that -- all it did was to show defects in the chain of title, and didn't present affirmative evidence of its own.

So the case gets briefed, and the time comes for oral argument.  The lawyers for C & J (and Macy's) decide that Scott Shaw -- a young partner (and 2002 graduate of USC Law) will argue the case.  Likely because Scott wrote most of the brief and so knows the case better than anyone else.  Plus, Macy's won below, and convinced the district court.  How hard can the oral argument be?  (To prove how confident the law firm was, even to this day, the case remains prominently on the firm's web site as an example of its stellar performance, under the firm's motto:  "When Results Matter".)


But, as one might expect, the Ninth Circuit picks up on the central problem with Macy's case, and wants to know what evidence Macy's has that rebuts the presumption.  The Ninth Circuit doesn't find it in the briefs, saying:  "Macy’s argues that United failed to establish the chain of title to the underlying artwork and therefore does not have a valid copyright. But Macy’s skips a step; nowhere does it set forth facts that rebut the presumption of validity to which United’s copyright is entitled, and Macy’s does not even argue that it has rebutted that presumption. The district court’s ruling suffers from the same defect. Although such evidence may be present in the lengthy and extensive record, it is not our place to find it, [citations] or to provide an argument on behalf of Macy’s as to how that evidence rebuts the presumption of validity."

So here's where the oral argument might matter.  Because, as one might predict, the panel bores in on this central question, and here's what transpires:  "It is true that, at oral argument, counsel for Macy’s asserted that it had rebutted the presumption of copyright validity. But, when we asked Macy’s attorney to identify evidence in the record sufficient to rebut the presumption of copyright validity, he merely argued, inter alia, that a United representative testified at a deposition that its designs 'were not published as a true collection' and that 'there is also no evidence that [these designs] met the requirements of an unpublished collection.' Counsel also asserted that Macy’s introduced evidence 'that the transfer was completely invalid,' but to support this assertion, he did nothing more than contend that United failed to provide evidence of the transfer. By repeatedly mentioning that United provided 'no evidence,' we are skeptical that Macy’s understands that it bears the burden of providing 'some evidence' of invalidity. Regardless, Macy’s cites no authority that such facts rebut the presumption of copyright validity."

Admittedly, maybe the problem was also with the briefs, as well as the evidence below.  Sometimes you've got nothing -- nothing -- that's truly on your side.  Though that's pretty rare, especially in appeals in which you won below.  And even if it is, that's a good sign that you should settle the case -- presumably on favorable terms, since the other side currently stands at a total loss -- rather than defend your nothing on appeal.

But this is also proof that oral argument isn't always a show trial.  Sometimes, judges tell you what they think, and if they have indeed missed something -- which is always possible -- being able to recognize their inquiries for what they are and having the ability to correctly respond to these questions matters.

Sometimes dispositively.

Kwikset Corp v. Superior Ct. (Cal. Supreme Ct. - Jan. 27, 2011)

I won't say much about this case.  It's a (relatively) high-profile UCL standing case from the California Supreme Court, so will get a decent amount of press elsewhere.  No need for me to pile on.

But I did want to say two quick things.  First, this is a really wonderful opinion by Justice Werdegar.  One of her best, in my view, in the sixteen year she's been on the Court.  The entire time I was reading it, I thought to myself:  "Wow.  Whoever's writing this is smart, and a really good writer.  I wish I could do half as well."  It's analytically solid.  Extremely so.  Second, on a related note, it really crushes Justice Chin's dissent.  It's not even close.  It's not that Justice Chin doesn't have a point.  But it's largely a political one.  If you care about law and legal analysis, in my opinion, it's not even a fight.  So I thought it disappointing that Justices Chin and Corrigan would go the other way.  Not perhaps unexpected, but disappointing nonetheless.

But let's focus on the positive.  If you want to read a great example of a really good opinion, read Justice Werdegar's.  It's incredibly solid.  Extremely good.

In Re Espinoza (Cal. Ct. App. - Jan. 27, 2011)

I agree with this disposition.  The regulations say that you can't have conjugal visits with your wife if you've previously been found guilty of distributing drugs while in prison.  Makes sense.  That's true even if you slung your dope during one of your prior stints -- as opposed to your current one -- in the pen.  Some parts of the regulations only look at your activity during the past twelve months.  This one doesn't.  So you've got no right under the regulations, or under the Due Process Clause, to sleep with your spouse while you're in prison.

Sorry about that.  But you gotta think about that before you smuggle in dope.  Your bad, not ours.

Despite my overall agreement with the opinion, there's one tiny part that I'd delete.  Justice Hollenhorst holds that there's no Due Process right at stake because Espinoza "is not being denied contact visits wtih his spouse or other family members in the prison's visiting room.  He simply faces restriction on the manner in which he may visit his spouse.  Thus, there is an alternative avenue open for Defendant to maintain his family relationship with his spouse."

True enough.  But Espinoza's "alternative avenue" to maintaining a "family relationship" with this spouse is qualititively different to the one he's seeking.  Big time.  I don't think Justice Hollenhorst -- or anyone else -- would like it if the only way he could have a "family relationship" with his spouse was to do so in a crowded prison visiting room.  I know I wouldn't.  There are contacts I'd like to have that don't involve being watched by 100 other inmates and their children.  So, yes, there's an "alternative" available, but to me, that doesn't say much (if anything) about the nature or merits of Espinoza's claim, or the importance of the right he seeks.

It's important.  He's just lost it.  No need to deny the former by attempting to minimize the importance of intimate relations with the person with whom you've chosen to spend the rest of your life.

U.S. v. Potter (9th Cir. - Jan. 26, 2011)

In a shocking -- shocking -- development, the Ninth Circuit this morning held that the possession of a firearm in furtherance of drug trafficking is not protected by the Second Amendment.

Yet another example of the wacky, uber-left Ninth Circuit going out of its way to undermine the core constitutional rights of American citizens.  This time, the time-honored right to possess a weapon in order to facilitate the sale of narcotics.

Those Ninth Circuit bastards.

People v. Morrison (Cal. Ct. App. - Jan 25, 2011)

I'm liking the trial court -- Judge Jed Beebe, up in Santa Barbara -- in this one.

William Morrison is on probation and gets caught by his probation officer for putting fake pee in a cup.  Section 135 of the Penal Code makes it a misdemeanor to wilfully destroy evidence.  So you'd think that manufacturing "evidence" that's never going to be used at trial (this is a pure probation issue) would simply be a probation violation, or at most a misdemeanor.  But Morrison gets charged with a felony under Section 134, which applies to anyone who prepares false evidence for any "trial, proceeding, or inquiry whatever, authorized by law."

Judge Beebe says:  "I'm not happy about it.  It seems to me it ought to be a wobbler."  But he concludes:  "I've been struggling for some intellectually honest way to read that language and say it doesn't apply, and I can't find it."  So applies Section 134 to Morrison.  After which the Court of Appeal affirms.

I like someone who both struggles to do the right thing and yet remains intellectually honest, even when it compels a result contrary to his internal preferences.  I think that's a great way to be.  So kudos to Judge Beebe.  Who gets this one exactly right, in my view.

Sometimes, the plain language of a statute is indeed the starting and ending point for the relevant inquiry.

U.S. v. Gonzalez-Diaz (9th Cir. - Jan. 24, 2011)

Everyone agrees that it's illegal to "enter" the United States illegally after being deported.  But assume a defendant isn't charged with that, but is instead, charged with being "found" in the United States after being deported.  With respect to that offense, everyone agrees that to be "found" in the United States illegally, you've got to be actually found there.  If only because that's what the statute says.  So if you leave the United States before you're found, you're not guilty.  Consider it akin to withdrawing from a conspiracy, but in the immigration context.

Given those precepts, how should the following hypothetical come out:  Defendant lives in the United States illegally, decides to leave, goes to another country (illegally), gets caught there, and then is returned to the United States against his will.  Guilty of being illegally found in the United States?

The Ninth Circuit says "Yes."

This seems dubious to me.  Sure, you were "found" in the United States.  But you were also there against your will -- here, the defendant was begging not to be returned, for fear that he'd be killed in prison.  Moreover, it's not as if he was found living freely in the United States.  He was only "found" in the United States because United States officials were waiting for him at the border the second the Canadian officers handed him over to them.  In other words, he was under official restraint the whole time, which typically means that you're not guilty.

The Ninth Circuit concludes, however, that even though someone who leaves the United States isn't "found" there and breaks the chain required for a conviction, individuals like the defendant here are not "found" anywhere else because they were not legally in the other jurisdiction (here, Canada).  But where does that requirement come from?  Certainly not from the word "found," which doesn't have any legality component at all.  It seems to me that once someone leaves the U.S., they are "found" elsewhere, legally or not.

This holding also seems to me to have some really perverse consequences.  For example, imagine that a guy illegally lives in the United States for a tiny bit, but then decides to return to his home in Honduras permanently.  He's had a change of heart.  He now realizes it's wrong to be an illegal alien.  He'd like to get back to Honduras as quickly as possible, but doesn't have enough money for a flight, so takes a bus.  He leaves the United States, and travels the entire length of Mexico, but two miles from the border with Honduras, he's picked up by Mexican authorities for being illegally in Mexico.  He pleads with them to send him to Honduras, but the Mexican authorities refuse, and instead fly him to the United States, at which point he's immediately arrested.  According to the Ninth Circuit, the defendant here is guilty of being "found" in the United States upon his return.  But that seems silly.  He did everything he could to leave.  He shouldn't be guilty just because his attempt to leave the United States was initially successful but ultimately was frustrated by government officials.

Or imagine this one:  Same defendant, same process, and two miles from the border, Mexican authorities arrest the defendant on a trumped-up charge in order to coerce a bribe.  Defendant has no money, and begs to be delivered to Honduras, but Mexican authorities refuse, saying that they'll send him back to the U.S. unless he can pay.  He can't, so they do.  Defendant can prove all this.  The Ninth Circuit would still say he's guilty, since he was not yet "legally" in his home country.

I think a contrary rule is preferable.  If a guy can establish that he intended to leave the United States permanently, and in fact leaves the country, I don't think he's "found" in the U.S. just because officials from a foreign country subsequently put him there against his will.  It may be hard to prove that this was the defendant's intent, but if he can, I think that's good enough.  He left.  His crime -- at least the "found" one -- has terminated.  Sure, he can still be deported, and returned to his home country.  Or perhaps even charged in the other country for trying to enter illegally there.  But can't be imprisoned in the United States on the ground that he was "found" there after authorities placed him there against his will.

It seems to me that this rule avoids all the bad consequences of the Ninth Circuit's holding, obtains nearly all the benefits of it, and avoids a conflict with both precedent and the text of the statute.  Plus, it just seems fairer.  A guy who does all he can do to leave the United States -- and does -- shouldn't be guity of being "found" in the U.S. involuntarily.

So I'm going to have to disagree with Judges Willie Fletcher, Ray Fisher and James Jones (sitting by designation from Virginia) on this one.

Which, by my count, makes the vote of Article III judges still 3-0.  But if one were to count my non-Article III, tenured bottom, it'd be 3-1.  Which surely is worth something, no?

Harris v. Maricopa County Superior Ct. (9th Cir. - Jan. 20, 2011)

Judge Reinhardt writes an opinion.  Judge Bybee concurs in part but dissents in part.  Not surprising.

But Judge Bybee wants to make sure you know a little bit more.  Even if you only read one line of the 50 single-spaced pages.

So rather than "Judge Bybee, concurring in part and dissenting in part," he makes sure the opening description reads:

"Bybee, Circuit Judge, concurring in the judgment in part, but mostly dissenting:"

"Mostly dissenting."  Nice touch.

City of Arcadia v. State Water Resources Control Bd. (Cal. Ct. App. - Jan. 20, 2011)

Good catch by the Court of Appeal.  Its initial opinion, read:  "The record reflects Regional Board's basin plan also took into considered 'potential' beneficial uses of water in setting water quality objectives."  Should be "consideration."  Editing error.  Nice correction.

But the same amendment that made that correction created another one.  The second change was to add:  "See also [sect.] 13240 (requiring basin plans 'shall be periodically reviewed and may by revised')."  Oops.  That should be "may be" revised, not "may by."

Plus, I know we like the first word after a parenthetical to end in "-ing".  But I'd either omit that first word entirely -- the statute speaks for itself -- or say "(requiring basin plans to "be periodically reviewed and may be revised")."  Makes more sense.

Still, I like the error correction.  Which I have to do constantly in my own work as well.

People v. Booker (Cal. Supreme Ct. - Jan. 20, 2011)

Think you understand people?  Then tell me why Richard Booker committed these murders.

It sounded like just an ordinary night out with friends.  That turns into an inexplicable triple murder.

I don't get it.  I really don't.

Needless to say, Booker is sentenced to death, and the California Supreme Court unanimously affirms.  A mere dozen years after the sentenced was pronounced.

P.S. - It's not that I categorically don't understand murders.  I typically do.  For example, here's a case that's also decided this morning, and is your typical fare.  Another death penalty, another unanimous affirmance, another 11-plus year delay.  But I get it.  At least the murder part.

People v. Armas (Cal. Ct. App. - Jan. 18, 2011)

This just seems out of whack to me.

I'm not complaining about the Court of Appeal's resolution of the case.  That seems just fine.  But to me, the underlying facts demonstrate just how out of whack we've made the sex registration regime.

Jose Armas pleads nolo contendre to a count of lewd conduct with a person under 14.  Apparently his wife came home and discovered him with his ten-year hold stepdaughter in bed without any underwear, and Jose admitted to the police officers that he was "turned on" when his stepdaughter removed his underwear and that had his wife not interrupted them, "it could have gone further."  Yuck.

Armas gets sentenced to probation and is immediately released after sentencing.  Now, I don't know all the facts, but to me, that seems like a pretty light sentence.  But what do I know?

What I do know is that Armas has to register as a sex offender for the rest of his life.  As does Armas.  So he's released on July 24th and, four days later, he goes to the Sheriff's station to register.  Apparently they only register people at that station on Wednedays (!), so the deputy gives Armas a piece of paper to prove that he tried to register, and tells him to come back the next Monday (?).  Two days later, Armas faithfully goes to his probation officer, shows his piece of paper, and is reminded to make sure he shows up to register on Monday.  On Monday, Armas does what he's supposed to do:  he shows up, registers, tells the officers where he's living (in a flophouse on Whittier Boulevard for which he has a voucher), and leaves.

Jose's vouchers run out several days later, and while he might have had enough money to stay a couple of more nights, he eventually has to leave, and starts staying at a shelter in L.A.  His probation officer, however, had sent Armas a letter a week after his registration to the hotel, which was returned as undeliverable.  So the probation officer called Armas, and Armas dutifully answered.  The officer tells Armas that since he's now a transient, he has to reregister, and also tells Armas to come in the next week.  Armas says okay.  And, one week later, on August 26th, Armas indeed comes in, and tells his p.o. that he's staying at the shelter.  The officer then tells him that since the shelter's in the City (whereas the flophouse was only in the County), he's got to reregister at a different place.  Shucks.  A week later, Armas calls the officer with whom he initially registered in an attempt to make an appointment to reregister, and makes another call four days later for the same purpose.  But four weeks go by without him actually registering.

So they promptly arrest him.  And charge him with three counts of failing to register.

For which he's pretty clearly guilty.  He's given it a shot, mind you.  But hasn't actually done exactly what he's supposed to be doing.  And the fact that the authorities are always able to reach him via telephone, that he has consistently shown up to all of his meetings with his probation officer, etc. don't legally excuse him from the technical registration requirements.  So he's guilty.

So the court sentences him to the low term.  Which, in his case, amounts to three years in prison.

It just seems bizarre to me that a dude that gets probation for the actual offense gets three years for failing to register effectively in a setting such as this.  What he did initially was far worse than what he did thereafter.  Is he liable for both events?  Totally.  But the sentences for each just seem radically out of whack with both each other and with the respective moral culpability of each.

I'm sure this is the way the system works.  But it doesn't seem right.  On any level.  As a deterrent, as a retributivist scheme, etc.  Punishing the failure to register substantially more than the underlying offense, at least in a situation such as this one, seems wrong.

Pannu v. Land Rover North America (Cal. Ct. App. - Jan. 19, 2011)

You're a large corporation.  You lose a big personal injury trial.  Like $21.5+ million big.  You want to take a shot with the California Court of Appeal.  What do you do?

You could have your trial counsel do it.  They know the case pretty well, after all.  But you want a fresh set of eyes.  Plus some special appellate skill.  Maybe even a "name" to get the Court's attention.  Plus, your trial counsel lost big.  Maybe time for someone new.

What's the "safest" approach?  Hire a well-known appellate lawyer.  Big firm.  Other big cases.  No one will complain about your choice.  Will cost you a huge chunk of change.  But you'll have the "best".

Like here.  The folks at Land Rover hire Ted Boutrous of Gibson Dunn to prosecute their appeal.  Now we'll really go at 'em, eh?

For naught.  Plaintiff prevails in the Court of Appeal as well.  Even adding a shot at your fancy lawyer. ("Land Rover's argument is predicated on a distortion of the record.")  Ouch.

Land Rover will presumably do the same thing at the California (and probably U.S.) Supreme Court stage as well.  Play it conservative.  Do the thing that no one can dispute.  Spend the money, don't settle the case, say that it's not your fault -- that the Court of Appeal got it wrong, that you hired the best lawyer in town, etc etc.

Sometimes that play works.  Sometimes it doesn't.  Here's an example of the latter.

Liberal v. Estrada (9th Cir. - Jan. 19, 2011)

A police officer sees a young African-American male driving a car in Menlo Park at 1:40 a.m., and the passengers in this car are a young African-American male and young Mexican-American male.  The car is obeying all traffic rules, but allegedly has an illegally tinted window.  So you know what's going to happen.  The officer turns on his lights and makes a u-turn to stop the car.  Because the subjective intent of a stop doesn't matter if you have an objective basis for it.

At which point the driver of the car sees this, and immediately makes a right turn at the next stop light and then an immediate left turn into an unlit parking lot behind a walk-up burger stand, turning off his headlights for good measure.  In short, he's trying to hide.

Which of course will not work, and will just hack off the officer.  As indeed it does.  The officer jams into the parking lot at high speed, shines his spotlight on the car, approaches it with his hand on his gun, and orders the occupants of the car to put their hands up and outside the car's window.  He gets the driver's license and registration, calls in the license plate number of the car, and orders backup, which arrives within 90 seconds.  Over the next several minutes, numerous officers -- "essentially the entire Menlo Park Police watch" -- arrives on the scene.

Does everyone attempt to calm things down?  No.  Of course not.  The driver starts screaming that the officer pulled him over purely based on his race.  One the passengers keeps yapping on his cell phone.  The officers scream at the passenger to get off the phone.  The officers order the driver out of the vehicle, slam him into the hood of the car, and 'cuff him.  You can probably figure out the attitude of the officers already, but lest there be any doubt, they record the thing on a tape recorder, and after partially Mirandizing the three occupants, you hear him say:

"[Officer Estrada]: Here’s the deal, ok? This is the way I do business, ok. If you would have pulled over and not tried to ditch me [inaudible], ok, then you and I would have been having a more decent conversation, ok. But you tried to ditch me, I get behind you, and then you start shooting off your mouth to me, and then your friends are joining along. I got to make a decision here.
[Plaintiff]: Um.

[Officer Estrada]: Let me finish.

[Plaintiff]: Yeah, I, that’s why I [inaudible] I thought you was done sir.

[Officer Estrada]: Don’t interrupt. I need to make, I need to make a decision here. I’m going to decide whether I’m going to let three little punks walk all over me, and the reason I call you punks is you’re acting that way. I[‘m] gonna have to decide whether I’m going to let three little punks walk all over me or whether or not to sit on you real fast and let you know that I’m the one in charge here, not you, ok. You understand me? Now, let me explain something else to you too. You may be able to get away with smarting off to some of the younger cops, you’re not going to do that with me and I’ll explain to you why, ok. Because, since I had no desire to become sergeant, I really don’t give a rat’s ass who I piss off. I don’t care about complaints.
[Plaintiff]: I know you don’t care I can see that.
 
[Officer Estrada]: Ok, so, so, so, it’s a lot of things in that Penal Code that I could arrest you right now for if I wanted to, so if I was you, I would just keep your mouth shut, don’t try to, don’t try to get smart with me, and we might have a better evening, you understand me? Do you understand me?"
 
Which, again, I'm confident happens all the time.  Only this time, it's recorded.  So the officer's can't testify that none of this happened, that they were courteous and merely concerned with officer safety, etc.
 
The truth of the matter is that the officers are hacked off.  They feel disrespected, and they're going to make the driver and passengers pay for that with a little "street justice".  No charges.  But we will slam you up on the car, handcuff you for a half hour, and make you sit on the curb for the better part of an hour.  Until you show the officers the respect they feel they're due, you're going to get the treatment.
 
Which is not to say that the driver acted appropriately.  He didn't.  Indeed, I think one of the officers (the Sargeant) is exactly right when he tells the driver -- again, on the recording -- that he's was "just being damn right ignorant" by pulling over into a dark alley, saying:  "“I mean stop, stop on the road because if this officer is not sure what’s going on and you do something stupid once he comes up on you, it’s very easy to get shot, you know, his safety is in jeopardy. Really, especially, you know, doing the whole routine back here.”  That's totally true.
 
Though two wrongs don't make a right.  Or at least that's what my mother repeatedly told me as a child.
 
Anyway, as you probably figured out, everyone gets released, then the plaintiff sues, then there's a qualified immunity motion, and then there's an appeal, which the Ninth Circuit largely decides in plaintiff's favor.
 
What's most interesting to me is that the dynamic of this case probably happens all the time.  But rarely is recorded.  And hence rarely results in a lawsuit, much less in a decision in favor of the plaintiff.
 
Which is not to say that plaintiff will necessarily prevail at trial.  Though he might.  It depends on which one of the parties the jury likes least.  In a situation in which both sides, in my view, did not display their most favorable personality traits.
 
So a story in Menlo Park that's probably replayed daily throughout the United States.  Except this time is on tape.  And accordingly offers a demonstrable insight into things that we might suspect, but rarely actually see, in a darkened alley at 1:40 a.m.

Hypertouch, Inc. v. ValueClink, Inc. (Cal. Ct. App. - Jan. 18, 2011)

Who to root for?  Entities who spam deceptive e-mail messages ("Free Gift If You Click Here!") and those that employ them, or someone suing them?  So close.  Especially when the former says that California's statutes are powerless to stop such misconduct because they're preempted.

The trial court sides with the defendants.  The Court of Appeal reverses.

And the (happy) crowd goes wild.

Couldn't happen to a nicer bunch of folks.

People v. Dixon (Cal. Ct. App. - Jan. 14, 2011)

Here's a criminal law question for you.  Imagine it's a final examination.  Or on the bar exam:

"John sends a text message to Jane offering to give her $200 in return for sex.  (The text reads: 'U with me, 1 night, $200 or more.'  Romantic, eh?)  Jane has not previously engaged in sexual activity for money, and is uninterested in doing so now.  John is guilty of which of the following California offenses:

A.  Soliciting prostitution ("Solicitation").
B.  Pandering (penalizing someone who "by promises, threats" or other means "causes or encourages another person to become a prostitute").
C.  Conspiracy to commit prostitution.
D.  (A) and (B).
E.  Each of (A) through (C).

Whatchathink?

Clearly, (A) is true.  This is a classic case of solicitation, and John/the john is obviously guilty.  Similarly, it's not (C).  There was no agreement between two people, so no conspiracy.

The question is whether John's act constitutes pandering.  The California A.G.'s Office thinks it does, which is why it charged him (actually, Todd Dixon) with it, got a guilty verdict from a jury, and defended this verdict in the Court of Appeal.  Todd "encouraged" Jane (actually, "L.N.") to be a prostitute because he wanted to turn her into a prostitute, albeit for one night and for himself.

But the Court of Appeal disagrees.  As do I.  Pandering is when you turn someone into a prostitute for someone else, or for a group of others.  Merely soliciting someone to have sex for you for money doesn't qualify.  Regardless of whether or not this is her first time.  Which, among other things, is why we think of "pandering" -- or the verb, "to pander" -- as being outwardly-directed.

I'm surprised the A.G.'s Office thought otherwise.  As, apparently, was the Court of Appeal.  Which makes repeated comments about the A.G.'s brief that definitely fall in the not-very-positive category.

Consider your knowledge of prostution law broadened yet again.

Wilderness Society v. USFS (9th Cir. - Jan. 14, 2011)

Who says that 11 federal judges can't all get along?

Unanimous.  Short.  Concise.

Were that everything was this easy.

In Re Marriage of Faso (Cal. Ct. App. - Jan. 11, 2011)

Would-Be Husband is a couple of decades older than Would-Be Wife.  They decide to get married.  Husband is worth over $30 million, and everyone wants a prenup.  Both parties get counsel.

The parties and their counsel heavily negotiate the thing.  Heavily.  They go through four or five different drafts.  At the end of the negotiating process, Wife says:  "You're not generous enough.  I'm calling off the wedding."  Husband thinks:  "I've got a plan.  The statute requires a seven-day waiting period in order for a prenup to be valid.  Even though it's been seven days since the first draft, it hasn't been seven days since the last draft, so I can sign Wife's proposal without it being binding.  Yay!"  So Husband and Wife sign.

With a negotiation process like that, how shocking the marriage only lasted 18 months.

Oh, and for what it's worth, the Court of Appeal holds that Husband's wrong.  Since he had a lawyer, the prenup is valid.  Wife's strategy was better than Husband's.

Ah, True Love.

Holmes v. Petrovich Development Co. (Cal. Ct. App. - Jan. 13, 2011)

I'm in a darn good mood.  It's completely sunny.  Seventy wonderful degrees.  I started my short drive to work overlooking the beautiful ocean, saw snow-capped mountains in the distance, drove down a beautiful palm-lined street, and hit all green lights on the way to work:  drive so fast that only a single song -- a guitar-riffing "Strangehold" -- had time to play on the radio.  Life is awesome.

So you'd think, given those predicates, that when I started reading the opinions this morning from the California Court of Appeal, I'd be in a super-cheerful, readily agreeable mood.

And yet with the first opinion I read, I find myself in disagreement with every member of the panel.

Not on everything.  I actually find the court's resolution of most of the case fairly persuasive.  It's a pregnancy discrimination and retaliation case.  Both sides have good positions.  On the one hand, I totally see where the plaintiff's coming from.  When you tell your boss you're pregnant, his reaction should not including saying (in writing, no less):  "I need some honesty.  How pregnant were you when you interviewed with me?"  I don't care how small the office is or how important the position.  That's not a legitimate inquiry.  Neither at the interview stage or thereafter.  "Honesty" has nothing to do with it.  So, to me, plaintiff is quite right to be upset at the inquiry.

That said, people make mistakes, and in later communications, defendant seems to have a sincere change of heart, and really does (IMHO) try to correct his prior error.  Not in a "CYA" way, I think, but rather in an honest understanding that what he did was wrong.  Plus, on the legal side, there are tough standards for when a single incident consititutes an actionable hostile work environment, so I can see why the trial court granted summary judgment to the defendant, and why the panel affirms.

So I can understand that.  Even though perhaps reasonable minds might differ.  (Which, among other things, is why I wouldn't have described plaintiff's arguments, as Justice Scotland does, as "It appears [plaintiff] expects FEHA to be a civility code."  That description is overly harsh, unnecessary and inaccurate, I think.  But maybe my reaction is a product of the good weather, and perhaps Justice Scotland wrote his lines during the winter rain and floods.)

But what I can't get on board for -- even in my completely good mood -- is the court's discussion of the attorney-client privilege issue.

The plaintiff, upset at her interactions with her boss, writes an e-mail to an attorney from her work computer.  Her computer is never monitored, and her e-mail is never inspected, and she even goes back and deletes this e-mail when her attorney tells her to.  But the Court of Appeal holds that because the employer had issued a boilerblate directive -- never actually followed -- that says that work computers are only for work, that they have the right to inspect all e-mails, blah blah blah, plaintiff's communication isn't privileged.  It's like, Justice Scotland asserts, "consulting [an] attorney in one of defendant's conference rooms, in a loud voice, with the door open."

Really?!  Seriously?

To me, this holding just goes way too far.  It might be one thing if everyone actually knew that someone was constantly looking at your e-mails.  In that factual setting, I get it.  But that wasn't the case here.  Nor is it the case in most of corporate America.  The mere fact that someone can look at your stuff doesn't necessarily mean you don't have a reasonable expectation of privacy.  Especially when, as here, you in fact know that they don't.

This holding also seems troubling -- and exceptionally far-reaching -- from a practical perspective.  Virtually every institution has the exact same internet/e-mail policy as the defendant here.  Yet the common practice -- to which virtually every person in America can attest -- is that we do expect a certain level of privacy in our work e-mail.  Go back and check your e-mails over the past year.  You mean to tell me there's nothing you have sent in the last year that you'd prefer remain private?  If so, you and I are definitely different.  We all, or at least most of us, do expect -- and believe -- that our e-mails will typically remain private absent unusual circumstances.  Even when our employer has a boilerplate, never-enforced policy.  I think that those actual expectations, proven time and again in practice, speak volumes about what people's expectations are.  And as a practical (as well as doctrinal) matter, I think those expectations are reasonable.  Something that the law should enforce absent unusual circumstances.

Plus, Justice Scotland's analogy seems way off base.  To me, the more accurate analogy would be to say that the communications here are like talking to your attorney in a whisper in an empty Costco owned by your boss when you know your boss is on vacation in Nigeria.  Even if your boss tells you, in writing, that he has the right to hide behind shelves and in large Pampers packages anytime he wants and to eavesdrop on anything he can hear, when you talk to your attorney in such a setting, you still have a reasonable expectation of privacy.

So I'd have to dissent with respect to that part of the opinion.  A part that I think is potentially really pernicious.

People v. Avila (Cal. Ct. App. - Jan. 6, 2011)

I always like it when the Court of Appeal gives good advice.  Particularly when it does so in the first paragraph of the opinion.  Always good for any readers who might be in a rush.

So, for example, Justice Yegan begins this opinion with the following introduction:  "A criminal defendant has a hard enough time defending the underlyign charge.  He should not 'pick a new fight' with the prosecutor and yet another fight with this court appointed counsel [by] threatening to kill them[,] thereby creating two new cases to defend."

Really?!  You don't say.  Hmmm.  Always thought that was a good strategy.  Thanks for the head's up.

Seriously, though, I really did like that introduction.  It brought a smile to my face.  Particularly since that's exactly what the defendant did here, and it was indeed a very poor strategic decision.

It didn't especially surprise me, by the way, when I learned later in the opinion that the defendant was found mentally incompetent to stand trial.  You have to be a little, well, "different" when you threaten to kill people in an open and obvious way.  Particularly when you do so in a call from a jail cell that you know is being recorded.  Even more so when -- because you're a nut job, quite frankly -- your second threat comes from a letter you sent from your jail cell (which you give to the jailer) in which you quite clearly print, on the outside of the envelope:  "Death Threat, Via U.S. Mail, Title 18 U.S.C. Crime."  Well, now.  That's making it pretty easy for the authorities, isn't it?  Even more so when you also write (again on the outside of the envelope) that if your letter isn't given to a particular judge, "When I get out, I will find you and murder you with a shotgun at point-blank."  Adding, lest there be any doubt, that you had the "specific intent" that your letter be taken as a death threat and that "This time I am not joking, I'm serious!!"

Getting a conviction on that one's gonna really be tough, huh?  That's for shortening the process, dude.

In the end, though, I find a glimmer of hope.  Because guess what?  This is not just some crazy guy.  This was a guy who ran for a seat on the Thousand Oaks City Council.  And who was initially charged with a crime when, during his 2004 campaign, he generated harassing text messages that were made to look as if they'd been sent by an opposing candidate.

Democracy, however, worked.  The voters elected the other guy.  So maybe we've got the right system after all.  The electorate can see whack jobs even before the criminal justice system can.

A great, and happy lesson.  Diminished only slightly by the realization that in the relevant election, out of seven candidates (the top two of whom won seats), this particular whack job came in fifth.

So imagine just how crazy the other two candidates must have been.

In Re Marriage of Fernandez-Abin & Sanchez (Cal. Ct. App. - Jan. 11, 2011)

Custody cases sometimes get ugly.  Real ugly.  But rarely do they include something like this.  Which occurred after a court order, no less:

"In mid-June 2008, husband, accompanied by about 10 armed men carrying assault weapons, went to wife's parents' house [], took the children and never returned them home."

Yikes.

This abduction took place in Tijuana, mind you.  But the children were U.S. citizens, the mother eventually became a legal resident, and the custody case ultimately ends up getting heard -- after various (ineffectual) orders by the Mexican court -- in San Diego, after the Child Abduction Unit of the San Diego D.A.'s office gets the kids (who were in Chula Vista) and reunites them with their mother.

But there are ongoing proceedings in both the U.S. as well as in Mexico.  Which makes for a procedural and jurisdictional nightmare.  Read the whole thing to get a sense.

It's not pretty.