Hepting v. AT&T (9th Cir. - Dec. 29, 2011)

The merits are interesting, and involve complex constitutional arguments about whether it was permissible for Congress and the Attorney General to immunize communication companies for assisting the United States in its massive eavesdropping (without a warrant) of e-mail and telephone traffic after 9/11.  The Ninth Circuit, like the district court, says "Yes."

But wholly apart from the merits, check out the caption.  Hard to find one that's longer.  Nearly 20 pages.

Lots of effort went into this one.  Lots.

Henry v. Red Hill Evangelical Lutheran Church (Cal. Ct. App. - Dec. 9, 2011)

Sara Henry gets hired to teach preschool kids.  It's at an evangelical Lutheran preschool -- I didn't even know those existed, to be honest -- but she's up for the job.  She does well.  Within six years, she's the director of the program.

She's not an evangelical Lutheran.  She's not even Lutheran.  She's Catholic.  But no biggie.  She's doing her job.

But then her employer learns that she's living with her boyfriend and they're raising a child together.  That's a biggie.  They fire her.

And while she tries, there's nothing she can do about it.

Robinson v. City of Chowchilla (Cal. Ct. App. - Dec. 23 & 27, 2011)

Christmas brings joy -- and disappointment -- to virtually everyone.  But apparently it doesn't necessarily end there.

On the Friday before Christmas, Justice Dawson issued this opinion.  Which affirmed the trial court.  To the chagrin, and yet happiness, of both of the litigants.  Defendants had filed the appeal.  But plaintiff filed a cross-appeal.  Both of them lose their appeal.  Which means that both of them somewhat win.  So no one's Christmas was entirely ruined.

But then, today -- the first business day after Christmas -- Justice Dawson issues this opinion.  Which involves plaintiff's separate appeal of the trial court's denial of his request for attorney's fees.  Surely both opinions were ready before Christmas.  But this one gets out only after the holidays.  And this one does not simply affirm.  Robinson instead obtains a reversal.  Victory!  Sweet victory.  A late Christmas present, to be sure.  But a happy one.

At least for Robinson.  The City of Chowchilla (and their lawyers) taste defeat.  But at least tasted holiday turkey first.

But fear not.  Justice Dawson has a present for them as well.  Robinson wins his appeal.  But that doesn't necessarily means Robinson actually gets a present.  The Court of Appeal simply remands.  Maybe he will be entitled to attorney's fees.  That's for the trial court to decide, in accordance with the Court of Appeal's holding.  And that holding has some portions that are favorable to Robinson, but others that favor the City of Chowchilla.

So, in the end, Justice Dawson spreads out both the rewards as well as the pain.  A little right before the holidays.  A little right after.

Merry Christmas.

Park v. First American Title Co. (Cal. Ct. App. - Dec. 16, 2011)

It's the day after Christmas, so neither the Ninth Circuit nor the California courts cranked anything out today.  But that doesn't mean that working stiffs like us have nothing to learn today.

For example, we can take advantage of Justice Fybel's recent decision to publish this opinion.  Which provides further evidence that title insurance is worth only slightly more than the paper upon which it is printed.

Which probably makes it only slightly less valuable than that ill-fitting sweater you may have received over the holidays.

Kumar v. Yu (Cal. Ct. App. - Dec. 16, 2011)

I'd have thought it was obvious that if a tenant breaches a lease for, say, $1500 a month, and after a month of vacancy, the lessor leases the property to another party for $1600 a month, the lessor's damages are reduced by $100 for each month during the defendant's original lease term.

But apparently that wasn't so clear.  At least until this opinion.

Seems right to me.

Drake v. Obama (9th Cir. - Dec. 22, 2011)

Let me make clear at the outset:  The Complaint here is frivolous.  President Obama was born in the United States.  It's absurd -- frivolous -- to assert otherwise.

So too are many of the legal claims asserted in the litigation.  The FOIA claims are silly.  The quo warranto claim obviously belongs (if anywhere) in a court in D.C.  Plaintiffs' failure to articulate RICO claims -- even though they alleged they had them -- because there are "so many complex rules" about RICO pleadings that are difficult to follow is simply pathetic.

The Ninth Circuit rightly dismisses all of these obviously deficient legal claims.  It also holds that none of the plaintiffs have standing, and hence dismisses their assertion that President Obama was born outside the U.S. and is accordingly ineligible to be President.  The closest they came was when they gathered together some of the minor candidates who ran against President Obama -- e.g., Alan Keyes -- and included these parties as plaintiffs.  That might potentially have worked, notwithstanding the fact that these individuals actually had no chance whatsoever of winning the election even if a lame chicken was running in place of the allegedly ineligible Democratic nominee.  But plaintiffs filed their complaint only after the inauguration.  Which means they lack standing.  File before the inauguration, dudes.  Yeah, you run into potential ripeness problems, but those aren't nearly as severe as the standing problems that you obviously should have foreseen.

There's only one interesting part of the Ninth Circuit's opinion about which I had a question.  Everything else seems obviously right.  Judge Pregerson holds that active military personnel don't have standing, even though they say that they're potentially disciplined if they refuse to follow the orders of a Commander-in-Chief who's ineligible for office.  Judge Pregerson says that they have an alternative:  Obey the orders.  Which seems true, and so I agree that the standing claim here is speculative.  But imagine that one of the plaintiffs had violated an order.  Standing?  I can definitely see an argument.  Then you're not just talking about a generalized issue you have in common with everyone else.

Nonetheless, the Ninth Circuit's clearly right here.  No standing.  So one more frivolous lawsuit bites the dust.

Just in time for the next election.

Retired Employees of Orange County v. County of Orange (9th Cir. - Dec. 19, 2011)

It's a testament to modesty and neutrality when the Ninth Circuit certifies a state law question to the state supreme court.  It's nice when the California Supreme Court answers that question fairly promptly.  And it's wonderful when, in light of the state court's answer, the Ninth Circuit remands the case and tells the district court to act quickly.  Especially when, as here, the case involves retirees, who subsist upon the benefits at issue and some of whom die throughout the pendency of the litigation.

Well done.

Romero-Mendoza v. Holder (9th Cir. - Dec. 19, 2011)

If your biological parents had stayed unmarried, you'd be free to stay in the United States.  Unfortunately for you, at some point after you were born, they got married.  Which means we're deporting you.

So much for family values, eh?

People v. Covarrubias (Cal. Ct. App. - Dec. 20, 2011)

I agree with Justice Aaron.  The decision to admit the testimony of ICE Agent Andrew Flood was erroneous.  But it was also likely harmless.  Covarrubias was pretty clearly guilty of smuggling 193 pounds of marijuana across the border, as his story had a ton of holes and was not particularly credible.  So letting Agent Flood testify about the structure of drug organizations etc. wasn't really the reason Covarrubias was convicted.

Justice Aaron discusses at length why Agent Flood's testimony should have been excluded, but doesn't really focus on the portion of that testimony that I find most problematic.  Covarrubias claimed that he was a "blind mule" -- that he did not know the drugs were in his car -- and Agent Flood testified that blind mules are "fictional" and don't really exist.  Stating that he had never come across anyone in his lengthy experience in law enforcement who was actually a blind mule, even though many of them claimed to be.

That seems obviously improper to me.  Let's just change the facts slightly.  How about this testimony:  "I've been involved in law enforcement for many years.  I've seen hundreds of defendants charged with murder.  Lots of them say that they didn't do it.  But that's simply untrue.  I've never met someone who actually didn't do it.  It's fictional.  They're all guilty."

People v. Lowery (Cal. Ct. App. - Dec. 19, 2011)

Eddie Lowery was in prison for allegedly stealing $250,000 from 88-year old Joseph Gorman, whose mobile home he and his wife occasionally cleaned.  Lowery was acquitted, but during his time in jail, he made a tape-recorded statement in which he told his wife (over the jailhouse phone):  "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman‟s house, maybe this week, and I'm gonna blow his fucken‟ head away."

Lowery says that he wasn't serious; that he was just blowing off steam to his wife, and so this wasn't a true "threat" -- but was instead protected by the First Amendment.  The California Supreme Court takes up the case and narrows the statute so that it's consistent with the First Amendment, and then remands the case to the Court of Appeal to apply the new test.  The issue is whether, on the facts of this case, the statement was really a threat.

The Court of Appeal holds that the trial court erred, but that the error was harmless.  Its core argument is that the evidence was pretty strong that Lowery was making an actual threat because he made these statements over the jailhouse telephone even though he knew -- and was repeatedly advised during the call -- that the call was monitored.

Which struck me as strange.  I'd have thought this argument went the other way.  That you know the authorities are listening seems to me to be evidence that you're not serious when you say you're going to kill someone.  As few people make such actionable threats when they're, say, right in front of a cop.

UMG Recordings v. Shelter Capital Partners (9th Cir. - Dec. 20, 2011)

Veoh lives.

People v. Eubanks (Cal. Supreme Ct. - Dec. 19, 2011)

It's always difficult to figure out who should live and who should die.  I imagine that even God finds the issue not all that easy, so we might rightly expect far-more-imperfect humans to do even worse at this task.

Take this case, for example.  Eubanks murdered multiple people.  There's a big strike in favor of the death penalty, right?  Eubanks is a woman.  Her first name is Susan. Which way (if any) does that cut?

The four people she murdered were her children, ages 14, seven, six and four.  Again:  Which way do those facts cut?  For or against killing her?

After she kills her children, she shoots herself as well.  Doesn't die, though.  Hence the issue.  Should we finish the job?  Does that realization -- that she thinks she deserve to die for what she did, and can't live with it -- mean we should be more or less willing to kill her?

She's clearly troubled.  Obviously.  No one kills their four children who's not.  I need not go into the exhaustive details, but suffice it to say that her past is not good.  At all.  She's got no criminal history whatsoever.  So that cuts against killing her, right?  And there's no real chance she's going to kill in prison, agreed?  Those facts surely cut against the death penalty.  Do we nonetheless off her?

Maybe we can gain insight into her mental state by looking at the numerous notes she leaves for others and she kills her children.  One was to her husband, who was the father of some (but not all) of the children she killed.  It read:  "You betrayed me. You kept a diary, and you and Rene Dodson conspired against me. . . . I've lost everyone I've ever loved. Now it's time for you to do the same."  Adding that he could use any money from her worker's disability case to "bury the kids and find your rainbow. Anna May, I'm sure."  That does not make Eubanks very sympathetic.  But she writes to the father of Brandon, one of the children she killed:  "I know you‟ll hate me forever, but I can't let [Brandon] live without his brothers, so I did what I did," adding that she'd been "strong for 25 years, and I'm tired of all the fight and hurt."  She writes to her niece and sister that "I know what I'm doing is going to hurt you tremendously, but I can't and have no desire to go on," and asks to be buried in the same casket as her four-year old child, Matthew, who was one of the victims.  How do those notes cut?  For or against death?

We choose a sample of the population who feels like showing up for jury duty, death-qualify them, allow both sides numerous peremptory challenges, and let both sides argue.  Then those twelve people decides who lives and who dies.

The jury decides that Susan Eubanks should die.  And the California Supreme Court unanimously affirms.

Plaza Auto Center v. NLRB (9th Cir. - Dec. 19, 2011)

Read the first half-dozen pages of this opinion.  Which will make you appreciate your current job.  No matter how terrible parts of it might be, it'll sound a whole lot better than working for Plaza Auto Center selling used cars in Yuma, Arizona.

The owners there sound like quality folks who treat their employees right.  I'll definitely be going there to buy my next automobile.

(Their motto is apparently "Honesty and Integrity is a MUST in ALL our Deals".  I'm not sure that their treatment of their employees makes me all that confident in the veracity of that claim.)

People v. Valdez (Cal. Ct. App. - Dec. 16, 2011)

You can tell this case took a long time to work its way through the criminal justice system because one of the principal issues on appeal is whether it was permissible to introduce the alleged gang member defendant's MySpace page at his trial.

I'm not thinking that there are many "original O.G.'s" with MySpace pages anymore.

Even fewer after this opinion.  Which says that, yes, your MySpace page can indeed be used against you at trial.

Crockett & Myers Ltd v. Napier, Fitzgerald & Kirby LLP (9th Cir. - Dec. 16, 2011)

You're really going to make us to this ourselves?

One law firm refers a medical malpractice case to another law firm expecting a one-third (or one-half) referral fee, which is the usual practice and/or the practice pursuant to an alleged agreement.  The prosecuting firm then obtains a half-million dollar fee in the case, but doesn't share.  At which point the referring fee sues.

Judge Pro decides that there was no binding agreement (so no 50/50 split), but that the referring firm should receive a quantum meruit recovery, which he sets at $33,000.  Back in 2009, the Ninth Circuit reverses, holding -- in a published opinion -- that, no, $33,000 isn't the right figure, and remanding so the district court can recalculate the award.

The case then goes back to Judge Pro.  Who responds to the Ninth Circuit's holding by recalculating the award and holding that the reasonable value was . . . $33,000.  The same award he had made before.

Yet another appeal to the Ninth Circuit.  Yet another reversal.  This time by a different panel, because the first panel is already tired of the case and doesn't feel like dealing with it anymore.

And which point the Ninth Circuit has three options.  Remand the csae to Judge Pro yet again, hoping that the third time's a charm.  Remand the case to a different judge, but that's somewhat insulting and burdens yet another judge with the dispute.

Or simply resolve the case themselves.  Which is what they do.

Sure, it requires some factual findings, which appellate courts are loathe to do.  But we want this case finished, gosh darn it.  So we're telling you the number.  One hundred thousand dollars.  We're done.  Go away.

Six judges on the Ninth Circuit is the most that we're willing to throw at a $100,000 referral dispute between lawyers.

Sessoms v. Runnels (9th Cir. - Dec. 15, 2011)

Judge Tallman writes a majority opinion.  He admits that it's a "close case," but nonetheless affirms the denial of habeas relief.  Judge Betty Fletcher dissents, arguing that it's not that close of a case, saying that "rarely has there been a case in which our obligation . . . was more clear than in this one."  Judge Tallman then includes some pretty harsh footnotes responding to the dissent, as I discussed when the opinions were first issued.

And the Ninth Circuit takes the case en banc.  Which is not especially surprising.  Nor inconsistent with the proposition that being mean to Judge Betty Fletcher -- indisputably one of the nicest judges on the Ninth Circuit (if not the nicest) -- may retard rather than advance your case.

People v. Murillo (Cal. Ct. App. - Dec. 15, 2011)

It's shocking -- yet perhaps not surprising at all -- how many opinions begin like this one.  In which the statement of facts commences by stating:  "On the day of the assault, Murillo and Vargas consumed about 20 beers each."

Come to think of it, very few positive stories begin with "After drinking around 20 beers, . . . ."

Voit v. Superior Court (Cal. Ct. App. - Dec. 14, 2011)

Clerk's Offices range from the sublime to the incompetent (and/or actively hostile).  As a broad stereotype, the Clerk's Office down in San Diego tends towards the former, and the one in Los Angeles the latter.

There's presumably similarly broad variation throughout the state.  And unless you have familiarity with and exposure to the various offices, you never know what you might find once you're forced to litigate in a new county.

Those attorneys who have ever been forced to confront a less-than-sublime Clerk's Office will appreciate this opinion by Justice Premo.  Which, in three short pages, totally slams the Clerk's Office in Santa Clara County.

Here's a snippet:

"The actions of the court clerk’s office are quite troubling. 'It is difficult enough to practice law without having the clerk’s office as an adversary." [Citation]Whether Voit’s motion has legal merit is a determination to be made by a judge, not the clerk’s office. No statute, rule of court, or case law gives the court clerk’s office the authority to demand that a petitioner cite or quote precedent before his motion will be filed.

If a document is presented to the clerk’s office for filing in a form that complies with the rules of court, the clerk’s office has a ministerial duty to file it. [Citation] Even if the document contains defects, the clerk’s office should file it and notify the party that the defect should be corrected. [Citation] Moreover, there actually is precedent allowing courts to appoint counsel for indigent inmates facing civil suits.  [Citation]  By unilaterally refusing to file Voit’s motion, the clerk’s office prevented the court from applying this precedent, or any other relevant law, to Voit’s particular circumstances. The clerk’s office’s actions violated Voit’s rights under both the federal and state Constitutions to access the courts."

Word.

In Re Kinney (Cal. Ct. App. - Dec. 8, 2011)

Whenever I start thinking fondly of the Bar, along comes a case like this.

It's not that I have a problem -- at all -- with the Court of Appeal.  I don't.  It does exactly what it should.  Good job, Justice Boren.

But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly.

The Bar's great about catching people who bounce trust fund checks.  The remainder of the disciplinary process is far from as efficient.

Kennedy v. Eldridge (Cal. Ct. App. - Dec. 13, 2011)

Can a grandfather represent his son in a child custody case in which the son seeks custody of the infrant grandchild?  What about if the grandfather previously represented the father of the adverse party (the grandchild's mother)?  What about if the grandfather is also a witness, with exhaustive knowledge of the underlying events?

Not surprisingly, the answer is no.

I get where the grandfather is coming from.  He wants to protect his child (and his grandchild).  He knows -- or at least thinks he knows -- that he can do that better than anyone else, and can give his son better representation than anyone else.  And he's certainly right that he can do so at a lower cost than any nonconflicted attorney.  Something that's especially important in family law cases, where the alternative is often no legal representation whatsoever.

But still, the Court of Appeal is right that the trial court acted well within its discretion here.  There are simply too many problems that might result from the representation to say that the trial court erred.