Tuesday, July 22, 2014

Gotterba v. Tavolta (Cal. Ct. App. - July 22, 2014)

When I saw the caption to this opinion, I figured it'd be about that Travolta.  Sure enough, it is.

Which is not all that surprising.  According to the Census Bureau, there are fewer than 100 people with the last name of Travolta in the entire United States.  Presumably only a portion of those are involved in lawsuits in California.  And it's not like the most famous Travolta is litigation-shy.  He's had some prior experience with the civil and criminal justice system here.  So the guess that this is yet another foray in this field was a pretty good one.

The case is also fairly significant even beyond mere star-watching.  Not because of the resulting legal doctrine articulated by the Court of Appeal, however.  But rather for two reason:

(1)  It highlights just how frivolous some anti-SLAPP appeals are. Here, someone who wants to write a book about his experiences with Travolta files a declaratory relief action seeking a declaration that he's not bound by a purported confidentiality clause.  At which point Travolta and his legal minions file an anti-SLAPP motion, claiming that the lawsuit arises out of protected activity.

That's absurd.  It's a pure declaratory relief action.  It arises entirely out of a purported contract.  The trial court held that this isn't a SLAPP suit.  The Court of Appeal agreed.  Which is not surprising.  As it's a no-brainer.  Travolta's argument that the lawsuit "arises out of protected activity" because his attorneys sent threatening letters to the plaintiff in advance of the lawsuit is frivolous.  You don't turn a contractual declaratory relief action into a SLAPP lawsuit merely by hiring lawyers to shoot off a letter.


(2)  It also highlights how you can win an anti-SLAPP motion even if you lose.  Plaintiff filed his action for declaratory relief so he could quickly obtain a determination of whether he was permitted to publish his book.  Travolta lost his anti-SLAPP motion, to be sure.  But just by filing (and losing) it, he delayed the lawsuit -- and hence the book -- by at least two years.  So plaintiff has to sit on his butt while this meritless motion (and appeal) works its way through the system.

Strike up another example of the power of tactical anti-SLAPP motions.

Given these tactical consequences, alongside the obvious lack of merit of Travolta's appeal, I was somewhat surprised not to see any consideration given to sanctions.  They might well have been appropriate.  (Reading between the lines, it may be that the Court of Appeal didn't feel like imposing sanctions because, in truth, it looks like plaintiff's lawsuit isn't particularly strong on the merits.  He's claiming that an unsigned "draft" contract is the "real" contract and a later signed contract -- the one with the confidentiality clause -- is a "fake".  I'm not especially impressed with that position.  Sure, the lack of underlying merit of plaintiff's claim is technically irrelevant to whether the defendant's appeal of an anti-SLAPP motion denial is frivolous.  But sometimes even doctrinally irrelevant things actually make a big difference.  Perhaps including here.)

In the meantime, Travolta loses.  But, in the larger scheme of things, he still wins.

Gonzalez v. Planned Parenthood (9th Cir. - July 22, 2014)

Lefties generally don't decry the Supreme Court's heightened pleading standards in Iqbal and Twombly.  But I'll bet dollars to doughnuts they'll like the applications of those standards by the Ninth Circuit in this case.  Applied to dismiss a qui tam lawsuit against Planned Parenthood for allegedly overbilling the government for contraceptives delivered to low-income women.

Let the internal conflict begin.

People v. Chavez (Cal. Ct. App. - July 22, 2014)

I certainly don't blame Justice Benke.  Nor do I think that the relevant brand needs to get any more publicity.

But in four different places in this opinion, Justice Benke refers to one of the victims as exclusively smoking "Marlborough cigarettes".  When even I -- someone who's never smoked a cigarette in his life -- knows that it's actually spelled "Marlboro".

We in the United States kill ourselves with products spelled differently than their British origins, thank you very much.

Monday, July 21, 2014

U.S. v. Liera-Mendoza (9th Cir. - July 21, 2014)

"In 2011, Liera-Morales unlawfully entered the United States with the assistance of a human-trafficking ring and later began working for the trafficking ring to pay off his remaining smuggling fee. As a part of his duties, Liera-Morales participated in at least one smuggling operation. In December 2011, he picked up three undocumented immigrants in the Arizona desert and helped transport them to a trailer house in Tucson, Arizona."

Oh, great.  Now human smugglers have discovered the power of multilevel marketing.

We're doomed.

Thursday, July 17, 2014

Velasquez v. Superior Court (Cal. Ct. App. - July 17, 2014)

There are worse things you can do than combining drinking and riding a bicycle.  But Justice Aldrich is correct.  It's still not a good thing.  As well as illegal.

Mind you, there's pretty darn good reason to believe that Jorge Velasquez, Jr. was not, in fact, guilty of the offense for which he was charged.  Mr. Velasquez was enjoying some alcoholic refreshment at Dodger's Stadium on -- appropriately enough -- April Fool's Day of 2013 when he decided to ride his bicycle home.  A bicycle with no brakes.  Did I mention it was April Fool's Day?

The good thing for Mr. Velasquez was that he wasn't drunk driving.  Plus he had just watched Clayton Kershaw beat the hated San Francisco Giants with a four-hit shutout on Opening Day.  Not bad.  Not bad at all.

The dark cloud behind this silver lining, however, was that a car pulled out in front of Mr. Velasquez on a downhill portion of his ride home, and when he swerved into the opposite lane to avoid the car, he smashed into a pedestrian, Sudha Russell, who broke several bones in her face and lost consciousness for ten days.  Suffice it to say that Mr. Kershaw had a much better April 1 -- and 2013 -- than Ms. Russell.

Not that Mr. Velasquez gets off scot free.  The police come and, according to the Court of Appeal's opinion, "Velasquez’s blood alcohol content was 2.18."  To be honest, I'm not really sure what Justice Aldrich means by that.  Maybe it's a typo.  Maybe it should read ".218".  'Cause the usual way we talk about these things is .08 for being per se DUI, .20 for being totally blotto, .50 for being dead, etc.  So on the usual scale, 2.18 would mean that Velasquez is four times the lethal level.  Or maybe Justice Aldrich is using something other than the usual scale.

Anyway, that confusion aside, the point is the Mr. Velasquez is intoxicated.  While biking.  Let's call it BUI.

So they charge him with a felony.  Under Section 23105 of the Vehicle Code.  Which covers "driving" while intoxicated and causing specified serious injuries.

You see the problem, right?  He ain't "driving".  Not the way we usually think, anyway.  Not a car.  (That's also putting entirely to one side the fact the prosecution erroneously charged him under Section 23105 even though that's actually the statute that sets forth the penalty, not the offense.  The actual statute they intended to charge him with is 23103.  "Reckless Driving".  With the relevant penalty then calculated under 23105.)

But he's "driving" a bike, so the statute allegedly applies, right?  You drive a car.  You drive a bike (sort of).  No problem.  (-Ish)

Except for one thing.  The relevant statute only covers someone who recklessly drives "a vehicle".  A vehicle, in this context, is usually a car.  So does it apply to bicycles?

You textualists out there may well say:  "Of course is does, Nimrod.  'Vehicle' means car, bike, scooter, Big Wheel, pretty much anything like that.  Common language."

Okay.  I hear you.  Let's perhaps agree to disagree on just how far a "vehicle" goes according to the plain -- and perhaps purportedly "unambiguous" -- meaning of that term.  (For example, a vase is a "vehicle" in which to hold flowers, but I'm pretty sure that's not what the statute covers.)

Because, fortunately, we don't have to resort to common language.  The Legislature helpfully expressly defined that term for us.  Section 23103 of the Vehicle Code says you're guilty if you "drive[] a vehicle upon a highway" in certain settings.  Section 670 of the Vehicle Code then defines the term "vehicle" as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

You see the problem now.  Bicycles are (or at least Mr. Velasquez's was) clearly "moved exclusively by human power".  Which means they're not "vehicles".  Which means that Section 23103 doesn't apply to him.  Which means he's not guilty of this offense.

Straightforward.  Couldn't be clearer.

Except the Court of Appeal holds that it's not true.

You see, using definitions is all well and good, but Justice Aldrich notes that there's a different statute (Section 21200) in the Vehicle Code that says that “[a] person riding a bicycle . . . upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs."  And clearly, a driver can't drink and drive.  So, according to this statute, neither can a dude on a bicycle.

So the definition says it doesn't apply to bikes.  But a different statute says it does.  Which do you use?

The Court of Appeal holds that you apply the statute that makes Velasquez guilty of a felony.  Justice Aldrich's opinion persuasively applies both textual modes of interpretation as well as legislative history to establish that, yeah, the Legislature meant to permit prosecutions under 23103 to guys on bikes.  A fact complicated -- but not displaced -- by the pesky detail that the Legislature neglected to actually change the words (and definitions thereof) employed in that statute.

Justice Aldrich says that the more specific statute prevails over the more general definitions section.  I find that conclusion, and interpretive mode, eminently reasonable.  Justice Aldrich doesn't cite anything to support that conclusion.  But I'd refer to the maxim articulated by Section 3534 of the Civil Code -- "Particular expressions qualify those which are general" -- as entirely applicable.  Ditto for the caveat in Section 100 of the Vehicle Code, which says that “Unless the provision or context otherwise requires, these definitions shall govern the construction of this code."  Here, the statutory context requires a conclusion contrary to the identified dictionary application of the specified word.

So even though the statute requires a vehicle, and even though the statute says a bike's not a vehicle, it's still a vehicle.

Proof positive that textual interpretation doesn't merely require opening up a dictionary.  Or even the relevant provisions of the Code.

People v. Arevalo (Cal. Ct. App. - April 14, 2014)

If your DNA is found on a rock used to smash a window, and that's how a burglar got into a building, is that evidence alone sufficient to prove that you're guilty of burglary?  In other words, does the fact that your DNA is at a crime scene establish your guilt beyond a reasonable doubt?

The California Court of Appeal says "No."

Wednesday, July 16, 2014

Merritt v. Countrywide Financial Corp. (9th Cir. - July 16, 2014)

I'm not too super sympathetic towards Judge Kleinfeld's contention that the pro se complaint was, at 68 pages, way too long.  Especially since, the same day, a different panel issues an opinion in a case involving a represented party in which the complaint is three hundred pages long.  With nary a word about the duty to be "short and plain".

Nor am I compelled by Judge Kleinfeld's horror that the plaintiffs caused the defendants and their attorneys to prepare two whole 12(b)(6) motions to dismiss.  The horror.

But the best part of Judge Kleinfeld's dissent comes when he's winding it up.  Where he says:

If plaintiffs had what looked like a strong claim that ought to be adjudicated on the merits, judicial creation of a complaint for them might not be so unfairly prejudicial. But they do not. What they appear to be saying in their 398-paragraph complaint is that they bought a $729,000 house, and borrowed $739,000 for it, because the seller lowballed them into thinking they were going to get the house for $719,000. They seem to be saying that Countrywide’s agent persuaded them to lie, which they did, in their loan application, such as by saying that Mrs. Merritt was employed when she was actually receiving disability payments (later terminated). And they seem to be saying that because they were minorities they were offered a more ample adjustable rate mortgage instead of a less ample fixed rate mortgage loan than they would otherwise be entitled to.

Were we limited to 12(b)(6) dismissal, we would have to assume for purposes of decision that the plausible factual statements (but not the legal conclusions and editorializing rhetoric) in the complaint were true. We are not so limited under Rule 8 analysis, which I suggest ought to be applied. Under Rule 12 analysis, some of the claims are plausible at least in part. Obviously, if Countrywide did not properly provide the loan papers to the Merritts, a claim if timely could be made. Tender of the full amount received is not in all circumstances a sine qua non for a pleading claiming rescission, though some sort of equitable judgment requiring tender must be made if rescission is granted, to assure that the plaintiff does not get to keep what it bought and also get all the money back.

It is hard to say whether plaintiffs even seek a rescission remedy that could be allowed. The prayer in their complaint seeks a return of all the money they have “invested in their property,” plus compensatory damages, plus $2,000,000 in punitive damages, plus a “prime loan at current market rates” (far lower than the housing bubble interest rates that prevailed when they bought their $729,000 house), or for them to be able to walk away with the reimbursements and damages. Their appellate brief is more modest, but was not before the district court.

Their pleading seems to say that they have been living in a $729,000 house for what is now almost six years without paying anything toward the price. If they got past their Rule 8 problems, and their Rule 12 problems, their equities appear to be weak. The Merritts have had five chances to state this claim. Prejudice and futility counsel against giving them a sixth try. We ought to let the dismissal with prejudice stand."

That part tugs at my heartstrings a lot more than the thought that Countrywide's lawyers had to prepare two brief, incredibly easy motions.

Tuesday, July 15, 2014

People v. Bradford (Cal. Ct. App. - July 15, 2014)

I will express no opinion about the merits of Justice Nicholson's concurrence in this case, in which he argues that the vast majority of the Court of Appeal's opinion is unnecessary and unhelpful.

He's surely right, however, that the most important part of this opinion -- to the litigants, anyway -- is its core finding that a guy convicted of having wire cutters while shoplifting from a store isn't carrying a "deadly weapon" such that he's categorically ineligible for potential relief for his resulting three strikes (25 years to life) prison sentence.  Proposition 36 says that you're never able to get your life sentence reduced thereunder if “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.”  The prosecutor at Bradford's shoplifting trial said during closing argument:  “You got wire cutters. You’re going to snip the sensor tags off the merchandise.”  The trial court held that the fact that Bradford was "armed" with these wire cutters meant he was "armed with a deadly weapon".

Thank goodness the Court of Appeal was more rational.

Sure, we classify a boatload of things as "deadly weapons" here in California.  A crazy patchwork of crazy things.

But come on.  There's no way the voters thought that a guy who uses a wirecutter to snip off sensor tags has should invariably stay in prison for life whereas a guy who snips 'em off with his bare hands should be let go.

Just not plausible.

Lee v. Hanley (Cal. Ct. App. - July 15, 2014)

Isn't it wonderful when the first couple of paragraphs of an opinion tell you the vast majority of what you need to know about the case?  Absolutely.

Hence my love for Justice Moore's opinion in this case.

Here's the first page, which tells you almost all that you need to know:

"Plaintiff and appellant Nancy F. Lee hired Attorney William B. Hanley to represent her in certain civil litigation. After the litigation settled, Lee sought a refund of unearned attorney fees and unused expert witness fees she had advanced to Attorney Hanley. Not having received a refund, Lee hired Attorney Walter J. Wilson and terminated the services of Attorney Hanley. Attorney Hanley thereafter refunded certain expert witness fees, but no attorney fees. More than a year after hiring Attorney Wilson, Lee filed a lawsuit against Attorney Hanley seeking the return of attorney fees.

Attorney Hanley filed a demurrer to Lee’s second amended complaint, based on the one-year statute of limitations contained in Code of Civil Procedure section 340.6.1 The court sustained the demurrer and dismissed the action with prejudice. Lee appeals. We reverse.

Section 340.6 provides the statute of limitations for an action based on “a wrongful act or omission, other than for actual fraud, arising in the performance of professional services . . . .” According to the plain wording of the statute, to the extent the wrongful act or omission in question arises “in the performance of professional services,” the statute applies; to the extent the wrongful act or omission in question does not arise “in the performance of professional services,” the statute is inapplicable.

This notwithstanding, it seems that almost any time a client brings an action against his or her attorney the wrongful act in question is construed as one arising in the performance of legal services, such that section 340.6 applies. But surely it cannot be the case that every conceivable act an attorney may take that affects his or her client is one arising in the performance of legal services. For example, if a client leaves her purse unattended in the attorney’s office and the attorney takes money from it, would we say that act arose in the performance of legal services? How different is it if, when the legal services have been completed and the attorney’s representation has been terminated, the attorney keeps the unearned fees belonging to the client? To steal from a client is not to render legal services to him or her. We hold that, to the extent a claim is construed as a wrongful act not arising in the performance of legal services, such as garden variety theft or conversion, section 340.6 is inapplicable."

Love it.

By the way, statute of limitations aside, this seems like a fairly decent lawsuit.  Backed up by the (likely inadmissible) fact that the State Bar has also charged Mr. Hanley with misconduct based on these same events.  As well as, in Count Four, a little problem concerning a forged letter that Mr. Hanley allegedly submitted to the State Bar.

So the world gets to find out a little more detail about whether this particular Newport Beach attorney made off with tons of money from his client or whether that client gave that cash to him as a "bonus" for a job well done.

One thing's for sure:  The client is definitely not happy now.

Monday, July 14, 2014

In Re Misconduct Complaint (9th Cir. - July 14, 2014)

During his tenure, Chief Judge Kozinski decided to publish all of his misconduct decisions.  Transparency, openness, and similar good stuff.  As a result, once every couple of months or so, you'll see yet another "In Re Complaint of Judicial Misconduct" caption.

They all get resolved the same way.  Short.  Two or three pages.  Brief recitations of the facts and then a conclusion that the allegations aren't even sufficient to investigate.  Dismissed.

Which, to be honest, is exactly right.  I imagine that most of these things are filed by frustrated litigants or lawyers.  Many of whom need to take a chill pill.  So it's become a routine:  get the complaint, prepare a cursory decision explaining why X, Y and Z isn't really "misconduct" under the statute (or why there's no evidence submitted to support the allegation), and then publish the thing.

So when I saw this decision earlier today, I said out loud:  "I wonder when one of these things will actually say something."

Today's the day.

Don't get me wrong.  Chief Judge Kozinski still dismisses the complaint.  But, for pretty much the first time ever, the opinion takes the allegations seriously.

That's in part because this one's slightly different.  You can complain about a judge under Section 351 on the ground that the judge "engaged in conduct prejudicial to the effective and expeditious administration of justice," and that's precisely the basis for the overwhelming majority of complaints.  But you're also allowed to complain that a judge "is unable to discharge all the duties of office by reason of mental or physical disability."

The complainant here does the latter.  He knows a bankruptcy judge in the Ninth Circuit that he thinks is showing signs of dementia.  Something that he's familiar with because he's taken care of a family member with similar issues.  So he tells the Chief Judge.

I like that.  With life tenure, it's a serious issue.  It should be taken seriously.

And Chief Judge Kozinski does.  Expressly noting that -- presumably in contrast to the usually frivolous "misconduct" complaints -- such complaints "are welcome and encouraged."  Moreover, unlike the quick, dismissive way in which the usual misconduct complaint is dismissed, Judge Kozinski (1) actually makes a (limited) investigation of the facts here, and (2) writes an opinion that clearly reflects that he truly cares about this stuff.

In the end, after talking with some other judges, Judge Kozinski dismisses the complaint.  He says that none of his colleagues has identified a similar problem with this judge.  So, for now, see ya.  Complaint dismissed.

Although I very might like the serious way Judge Kozinski treats this issue, there's one part of the opinion that rang hollow for me.  Judge Kozinski's opinion somewhat critiques the complainant because he didn't "provide any transcripts or audio in support of his allegations."  Like that's routinely available.  Or, even if it was, like a transcript will show painfully slow reaction times and the like.  Similarly, not providing "dates" of particular events seems eminently understandable to me.  You diagnose dementia not from a snippet of facts on particular dates, but from a lengthy pattern of conduct.  So, yes, it'd perhaps be wonderful to have written transcripts of conduct on particular dates.  Would also be wonderful to have the judge confess in writing that s/he's senile.  But the absence of these things hardly a strong basis for concluding, as Judge Kozinski does, that "[w]ithout more specific facts, complainant's allegations are insufficient to raise [even] an inference that a disability exists."

Moreover, requiring more detail also seems a bit inconsistent with the text of the statute itself -- something that Judge Kozinski typically cares about, and yet that's not even mentioned in the opinion -- which expressly requires only a "brief statement of the facts constituting such conduct."  Would the lack of a transcript and dates fail to satisfy FRCP 8, which requires a similar "brief statement of the facts"?  No way.  We'd inquire further.  We'd conduct an "actual" investigation.  Seems to me that the burden that Chief Judge Kozinski is imposing may be a bit high.  Notwithstanding what I agree are slight difficulties in investigating because the complaint doesn't include a transcript or dates.  At a minimum, were it me, I'd at least pick up the phone and try to call the complainant to find out additional details.  Dates and the like.  Stuff like that.

Nonetheless, in the end, I get it.  You do what you can.  You talk to your friends.  Things seem reasonably fine.  So you dismiss the complaint.  While nonetheless telling everyone -- truthfully -- that you really do take these things seriously.

I'll bet you dollars to doughnuts that, as a direct result of this opinion, you see a tenfold rise in the number of disability complaints under Section 351 in the next several years.  Few lawyers know about this provision.  It reflects a serious problem that actually exists.  One that's not just in the minds of losing lawyers and litigants.

So, as they say in the subways, "If you see something, say something."

And, after today, I bet people will.

Friday, July 11, 2014

U.S. v. Ruiz (9th Cir. - July 11, 2014)

At 4:20 in the morning, two armed men knock on the door of a trailer, struggle with its occupant, and end up shooting him in the kneecap before fleeing.  The police interview the victim and his girlfriend at the trailer after the shooting.  The girlfriend "seems evasive".  The police are shocked -- shocked, I tell you -- to find (after searching the trailer) methamphetamine and a pipe with burnt residue.  Who could believe that someone who lives in a trailer in rural Idaho and uses methamphetamine?

The police officers, not being idiots, come to the conclusion that the 4:20 a.m. forced entry into a trailer that contains methamphetamine might not have been random.  So the police use an undercover cop to make a controlled buy from the girlfriend of the shooting victim at the trailer later that same day; i.e., promptly after her boyfriend's been shot.  And the girlfriend, being an idiot, makes the sale.

Which, not surprisingly, leads to a more than a little pressure being applied on the girlfriend to help the police.  There's ultimately a search warrant, the discovery of a shotgun in the home of a felon, etc. etc.

Your typical day.

In the Ninth Circuit, the question is whether the warrant's valid.  Judge Christen writes the majority opinion.  Judge Gould dissents.  Guess which side think's the warrant's okay?


The majority says it is.  Judge Gould says it isn't.

Thursday, July 10, 2014

In Re G.P. (Cal. Ct. App. - July 10, 2014)

Like the Court of Appeal (and the trial court), I have no doubt that Mother loves her kids.  Truly.

But if she really loved them -- seriously, with all her heart -- she'd have gotten off the meth.  As well as not have done all the other stuff that's reflected here.

Avila v. LAPD (9th Cir. - July 10, 2014)

Judge Hurwitz surely describes the facts of this case in a way that's extremely persuasive.  He says:

"Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him."

Well, geeze.  I agree.  That's totally outrageous.  I'm not at all surprised the jury found in his favor, and that the Ninth Circuit affirms.  Way to go.

Except for one thing.

Judge Vinson -- sitting by designation from Florida -- gives a little more color to those facts in his dissent.  Color that's darn persuasive as well.  He says:

"The majority repeatedly states that Avila and two fellow officers, Romney and Anderson, were disciplined only after they testified in the Maciel litigation. See, e.g., Maj. Op. at 5 (“[The] termination occurred only after Avila had testified in [the Maciel suit.]”); accord id. at 5 (“The evidence at trial was that the only officers disciplined . . . were those who testified against the LAPD in the Maciel suit[.]”). Although technically true, the substance of their Maciel testimony is critical, as Avila, Romney, and Anderson were also the only officers who had openly admitted to insubordination while they testified. Specifically, they admitted that for several years they failed to report overtime — and failed to report supervisors who allegedly told them to do so — even though they knew it was “serious misconduct” for which they could be fired. Accordingly, when the majority says “the only officers singled out for discipline were those who testified at the Maciel action”, id. at 16, it is more complete and factually accurate to say that “the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.”"

Well, shucks.  That does make it more complicated, doesn't it?

Imagine, for example, a situation in which one police officer files a wrongful termination suit, saying that he shouldn't have been fired for accepting bribes, and three other officers testify therein that they routinely accept bribes as well:  that everyone does, and everyone knows about it.

Is it really illegal to fire those officers given their admission that they're doing something illegal?  Even if you only fire them?  Why isn't it okay to fire the class of people who admit to illegality?  Even if that class is composed entirely of people who testified at trial, and the only evidence of that illegality is that testimony?

Sure, you should fire everyone who commits illegal acts, not just those who testify about it.  But I'm sure that the department would say that that's exactly what they did.  And wouldn't it be rational to at least start with the firing of the people against whom the evidence is overwhelming -- i.e., those who admitted to the misconduct -- and then potentially go after the remainder?  Moreover, maybe there's a reason you stop after firing the self-confessed criminals:  maybe the evidence against the others (given the absence of a confession) is too ambiguous, the required prosecutorial resources too great, the risk of litigation too high, etc.  Might not that make sense?

Mind you, I have a keen suspicion -- as does Judge Hurwitz, I imagine -- that there are other things at work here.  I'm inclined to believe that the LAPD was pissed at the officers for testifying adversely to the department.  So when it decided to "target" these people, I think there might well have been a direct reaction not just to the content of their testimony, but also to the mere fact that it was made.  "Breaking the Code of Silence" and all.  Not "supporting" the Department.

But it's tough to create a real standard here.  Imagine that the testimony is not just about taking bribes, but also beating suspects and killing innocent people.  Same rule?  Just have to show that the LAPD's anger at breaking the Blue Wall was a substantial motivation in terminating the people?  Really?!  Isn't it sufficient just to say:  Hey, this is serious stuff.  You can't keep your job once you admit to things like this.  Even if it's possible that other, non-testifying, officers also might commit similar offenses (but have not confessed to them) and not be punished.

One other point.  In other areas of the law involving police, we don't care about subjective motives.  For example:  Did they really pull you over because you had tinted windshields, or was their true motivation just to search your car?  We don't care.  We only care that there was an objective basis for what the police did.

Here, by contrast, there's no doubt an objective basis for what the police department did.  But we're spanking them anyway.

Interesting dichotomy.

Wednesday, July 09, 2014

People v. Juarez (Cal. Ct. App. - July 9, 2014)

You can only file a felony complaint twice.  That stops the prosecution from (1) getting around the speedy trial rules, and (2) forum-shopping for a different judge.  So you can file a felony complaint once, and dismiss it (or have it dismissed by an unsympathetic judge), and then refile it yet again.  But after that, you're done.  No refiling it a third time.

The Court of Appeal nonetheless holds here that it's okay under this rule to, for the same set of facts, (1) file a murder charge, (2) dismiss it, (3) file another murder charge (the same offense), (4) dismiss it, (5) file a conspiracy to commit murder charge, (6) dismiss it, (7) refile the conspiracy charge, (8) dismiss it, (9) file an attempted murder charge, (10) dismiss it, (11) file another attempted murder charge, (12) dismiss it, (13) file a charge of voluntary manslaughter, (14) dismiss it, (15) file another voluntary manslaughter charge, (16) dismiss it, (17) file attempted voluntary manslaughter, (18) dismiss it, (19) refile it, (20) try conspiracy to commit voluntary manslaughter, etc. etc. etc.  (I think I could get up to around sixty or so major charges, but you get the point.)

That's okay.  It's permissible under the statute.  "Our hands are tied."

Tuesday, July 08, 2014

People v. Guillen (Cal. Ct. App. - July 7, 2014)

"On September 14, 2006, John Derek Chamberlain was arrested for possession of child pornography . . . . [He was sent to] Theo Lacy Jail in the City of Orange (TLJ) . . . .

Inmates at TLJ, as well as at other Orange County jails, form race-based groups called 'CARs,' Classification According to Race. The CAR system is an inmate-generated hierarchy divided along racial lines that has existed since the 1950s. In October 2006, the CAR system was present in all Orange County jails and the majority of California jails.

In F West there were three CARs each with its own management hierarchy. The three CARs were the Woods, the Paisanos, and the South-Siders. The Woods were the Caucasian inmates, the Paisanos were the Mexican national inmates, and the South-Siders were the Hispanic-American inmates, who were primarily gang members and were the most dominant CAR. Most inmates were members of one of the CARs. Each CAR had a leader, a “shot caller,” a second in command, a “right-hand man,” an
enforcer, a “torpedo,” and a person waiting in command, a “mouse.” There was also a “house mouse” for the entire barracks who is in charge of cleaning the barracks, distributing commissary slips, and communicating with the deputies about the barracks’ needs. Inmates were aware of who occupied the roles and when a change occurred after someone left the barracks.

The shot caller and the right-hand man were responsible for determining which inmates were disciplined or “taxed.” Taxing was a form of punishment that included assaults, cleaning duties, squats, or providing items from the commissary. A common form of taxing was “the wall” where two inmates held an inmate against a wall for a specified period of time and hit him below the neck and above the waist while the inmate submitted to the punishment. The shot caller authorized the taxing of inmates who did not follow the jail rules and inmate rules. The shot caller used torpedoes to carry out the taxings.

A CAR mouse would typically approach a new inmate and ask to see the inmate’s court documents or “paperwork” to learn the inmate’s charges. It was common for inmates to assault other inmates with “sensitive charges” such as child molesters (called “Chesters”) and informants (called “Rats”). If inmates became suspicious about an inmate’s charges, they attempted to find out the charges often with the help of a third party by checking a public Web site or calling the jail’s public information line. All the CARs viewed the assault of inmates perceived to be child molesters or informants favorably. Inmates who failed to produce their paperwork were taxed.

For the Woods on October 5, 2006, Petrovich was the shot caller, Aguilar was the right-hand man and torpedo, and Carlstrom was the mouse. Petrovich and Aguilar recently assumed their positions within the Woods. For the Paisanos on that date, Villafana was the shot caller, Salvador Garcia (Chava) was the right-hand man, and Guillen was the mouse. That same day, Deputy Kevin Taylor, Deputy Jason Chapluk, and SSO Philip Le were assigned to F Barracks. Taylor was in command of F Barracks. 

OCSD does not condone deputies utilizing the CAR system in the course of their duties. Although inmates tried to hide the workings of the CARs from deputies, deputies, including Taylor and Chapluk, are aware of the CAR management structure. However, deputies are not supposed to authorize or sanction CARs. Deputies are trained that no inmate should have more power than any other inmate. Deputies are trained to treat all inmates equally and not allow any particular inmate to believe he is exempt from the rules. However, because of the number of inmates, deputies used the shot callers to control the inmates because the inmates did not always follow the deputies’ orders but they feared the shot callers. Taylor met with the shot callers almost daily and used them to control the barracks, discuss issues, and obtain information. When the deputies had a problem with an inmate, they would likely address the problem with a shot caller or other CAR representative. The deputies would tell the shot caller that a particular inmate was not “‘staying with the program’”—i.e., the inmate was making the deputies’ job difficult. Deputies did this knowing the shot caller would tax the inmate. Shot callers generally complied with the deputies’ directives and were rewarded with additional day room time or extra food. The CARs would have meetings in the day room to disseminate information. The deputies were more tolerant of rule violations by those higher up in the CAR management structure than by other inmates, including cube hopping, which is moving from cube to cube. . . .

On September 14, 2006, Chamberlain was arrested for possession of child pornography and booked into Santa Ana jail. On September 18, 2006, Chamberlain was arraigned. On October 2, 2006, Chamberlain appeared in court and his trial was scheduled for October 24, 2006. His defense counsel was Case Barnett. Because of the nature of the charges, Chamberlain was brought into court by himself and not given paperwork to take to jail. Chamberlain was instructed that his charges were sensitive and to not tell other inmates. 

On October 3, 2006, Chamberlain was transferred to TLJ and assigned to F West. Carlstrom, the Woods’ mouse, approached Chamberlain, and asked him for his paperwork but Chamberlain said he did not have any. Chamberlain told other inquiring inmates he was in custody for violating a restraining order. Later that day, Chamberlain called his girlfriend to tell her that he was worried because inmates were asking him why he was in custody. Chamberlain’s girlfriend called Barnett and left him a message stating Chamberlain was afraid because inmates were asking for his paperwork. She left a second message on October 4, 2006. . . .

Andrew Corral, a South-Sider, was on his bunk in D cube playing cards when Aguilar told him to leave because they had business to conduct. Corral moved to the other side of D cube. Corral overheard Petrovich tell Aguilar they were going to beat a “‘Chester’” who admitted he likes them young, and Aguilar left D cube. Petrovich, the Woods shot caller remained in D cube, while Villafana, the Paisanos shot caller, and “Stretch,” the South-Siders shot caller arrived in D cube. Corral heard them say they were going to beat and rape Chamberlain. They said there was an incentive of 10 commissary items to anyone who raped him. Aguilar went upstairs to J cube to bring Chamberlain to D cube. Aguilar escorted a fully dressed Chamberlain to D cube. As they entered D cube, Aguilar pushed Chamberlain to the floor and the attack began. 

Multiple witnesses observed about four groups, totaling at least 30 inmates, enter D cube and assault Chamberlain for about 20 to 45 minutes.

Luis Palacios, a Paisanos, was watching a baseball game about 30 feet away from D cube and saw inmates going in and out of D cube, three or four groups of three or four inmates, taking turns hitting and kicking Chamberlain. Palacios saw Petrovich hit Chamberlain first. Palacios saw Aguilar grab hold of a bunk, elevate himself about three feet, and stomp on Chamberlain. Aguilar also hit him. Palacios described Aguilar as “ruthlessness.” Palacios also saw Guillen enter D cube, get on his knees, and make a couple downward striking motions during the beginning or middle of the attack. Guillen was in D cube for at least two minutes. The noise from the barracks muffled Chamberlain’s screams and cries for help. Palacios went upstairs and when he looked down he saw Chamberlain trying to crawl under a bunk as inmates continued to hit and kick him. Inmates pulled down Chamberlain’s pants, spanked him with a shoe, and spit on him. After Petrovich told Palacios to “‘keep walking don’t look down[,]’” Palacios returned downstairs. Palacios heard an inmate say Chamberlain “‘passed out.’” Aguilar threw water on Chamberlain to wake him up and beat him more. Palacios saw Villafana make multiple trips between working out in E cube and going into D cube. 

Robert Mayfield witnessed four waves totaling at least 12 inmates assault Chamberlain; the first few waves each lasted a couple minutes but the last wave lasted a “ridiculous” amount of time. The first wave was the Woods. Aguilar struck downward with his fists and used the bunk for leverage as he stomped up and down on something behind a short wall. Aguilar and other inmates put rubber-soled jail shoes over their hands before hitting Chamberlain. Carlstrom held onto the bunk while he violently jumped up and down on something behind the wall. The second wave included Villafana and two South-Siders. Villafana threw two punches with a closed fist. Aguilar, and another inmate Carlstrom handed water to, threw water on Chamberlain to wake him up. 

Corral, who was still in D cube, saw inmates hit Chamberlain, spill hot coffee on him, urinate on him, and insert a spoon in his rectum. He saw Villafana hitting and kicking Chamberlain on his head and torso. He also saw Aguilar hitting, kicking, and stomping Chamberlain. After Corral left D cube, he saw Aguilar repeatedly exit D cube, speak with Petrovich, and return to D cube. Aguilar took Chamberlain’s clothes outside of D cube when the assault ended."

Needless to say, Chamberlain's dies.  Of horrific injuries.  Several perpetrators get convicted of second-degree murder.  Their convictions are affirmed.

History is going to judge our prison system favorably.  Right?

P.S. - Don't forget that Chamberlain was simply arrested.  Not convicted of anything.  (Not that a conviction would have made it all right.)

Monday, July 07, 2014

City of LA v. County of Kern (Cal. Supreme Ct. - July 7, 2014)

I'm a little surprised that this opinion is unanimous.

There are three different possible interpretations of the part of the federal supplemental jurisdiction statute, 28 USC 1367(d), that says that state limitations periods are "tolled" during the pendency of a federal action (and for thirty days thereafter) if the federal court ultimately exercises its discretion to dismiss supplemental state law claims.  Justice Werdegar cogently lays out the competing views:  the "suspension" position, the "grace period" interpretation, and the "substitution" approach.  This issue has confounded state courts pretty much everywhere:  around half have adopted the "suspension" approach and the other half the "grace period" position.

Justice Werdegar notes that the text of the federal statute seems to most naturally support the "suspension" approach.

So the California Supreme Court unanimously adopts the competing "grace period" interpretation.

With the various courts roughly evenly split, you'd facially expect seven state court justices to be split fairly evenly themselves.  Yet here you have it:  A unanimous opinion.

Maybe everyone simply sees it the same way.  Or maybe this is a pretty good example of the justices preferring to speak with a unified voice.  Especially when the matter is relatively unimportant (at least in the scheme of things) and it's more critical to have a solid, articulated rule than it is for that rule to be precisely right.

Right or wrong, until the United States Supreme Court speaks, or until Congress amends the statute, the rule in California is now clear.  If you've got supplemental claims that were dismissed, you've got thirty days after dismissal to refile 'em in state court (or the original limitations period, if longer).  Even if you filed your original lawsuit well in advance of the expiration of the limitations period.  You don't get that extra time back after dismissal.

That's the rule.  Not in lots of states.  But -- as of today -- definitely here.

Thursday, July 03, 2014

U.S. v. Dharni (9th Cir. - July 2, 2014)

In January, I said that Judge Wallace was right.

I was wrong.

To be clear, so was pretty much everyone else.  Judge Wallace's opinion held that it wasn't reversible error to temporarily kick spectators out of the courtroom because there was a shortage of seats.  The key limitation being "temporary".  Once seats became available, people were invited back in.

Or so we thought.

In the amended opinion, it turns out that the closure wasn't necessarily temporary.  The closure may well instead have been for the entire time.  In which case maybe the result should be different.  This wasn't clear from the original briefing, so the panel decides to remand the case to the district court for fact-finding. Was the closure indeed temporary?  Or was it for the entire voir dire?

This makes eminent sense to me.  Indeed, I give credit to the panel.  It's not a natural tendency for judges on the Court of Appeals to admit that they may have made a factual error, and to accordingly change their result.  People get invested in their decisions.  Amending them involves work, as well as confessing error.  It makes me proud when judges to so.  Justice is more important than keeping to one's original path.

Judge Wallace dissents.  He'd retain the original result.

Kudos to Judges Fisher and Berzon.

Wednesday, July 02, 2014

Young v. WCAP (Cal. Ct. App. - June 25, 2014)

You're entitled to worker's compensation benefits if you're overweight, middle-aged, and are doing jumping jacks on your own time at your home.

If you're a cop.  (Or, as here, a jail booking officer.)

People v. Robinson (Cal. Ct. App. - June 24, 2014)

Life is not a porn flick.  A fact that Lee Robinson will have many, many years in prison (although not the full twelve for which he was originally sentenced) to consider.

Tuesday, July 01, 2014

Nevarez v. Tonna (Cal. Ct. App. - July 1, 2014)

I'm not exactly sure why this one is in the "published opinions" pile.  Since it says on the top that it's unpublished.

But it does give everyone a chance to be reminded that "no" means "no".  As in, "No, I don't want to see you any more."

Take the hint.  Way, way earlier than what went down here.

U.S. v. Bonds (9th Cir. - July 1, 2014)

No one can bat a thousand, right?  Not even a major leaguer.

Surely that's true for even Barry Bonds.  Yeah, he won in the Ninth Circuit four years ago, in a split opinion that made his prosecution for making false statements to a grand jury extraordinarily difficult.

But even the best hitters get out two times out of three.  So it should perhaps come as to surprise that his conviction for obstruction of justice was affirmed by the Ninth Circuit last year.

Game over, presumably.

Except you forgot.  MLB has instant replay.  The Ninth Circuit has en banc review.

And even though last year's opinion (1) was unanimous, and (2) involved three Ninth Circuit judges (not anyone sitting by designation), today, the Ninth Circuit takes the case en banc.

That Barry Bonds.  Amazing.  On so many different levels.

Monday, June 30, 2014

People v. Avila (Cal. Supreme Ct. - June 30, 2014)

The California Supreme Court unanimously affirms a conviction and death sentence.

But would you really expect otherwise?  Defendant is Jose Avila, the killer of five-year old Samantha Runnion.  I'd have been stunned -- truly, remarkably stunned -- had the California Supreme Court done anything other than what it did in this incredibly high-profile case.

Gilbert v. Chiang (Cal. Ct. App. - June 27, 2014)

I think this opinion is exactly right.

Now, I know, you may be thinking:  "Oh, Professor Martin's just kissing up to the opinion's author, Justice Rylaarsdam."  Wrong.  Not at all.

I'm much more likely to be kissing up to the plaintiff.  Justice Gilbert.

Yep, that's right, a sitting California Court of Appeal justice is the plaintiff in an action pending in the California Court of Appeal.  What's more, the appeal concerns an issue that might well benefit many of the justices on that court:  whether a sitting justice who leaves the bench prior to the expiration of his or her term is allowed to accept public employment immediately thereafter.

Guess what?  The Court of Appeal holds that s/he can.  Reversing the trial court.

Why would anyone not allow a former justice to hold public office after leaving the bench, you might ask?  Good question.  The truth is:  There's utterly no reason to do so.  As Justice Rylaarsdam's opinion cogently explains, it'd be silly -- absurd, even -- to adopt such a principle.

But the trial court nonetheless thought that that's exactly what the voters did when they said (in the California Constitution) that a judge of a court of record is ineligible for public employment "during the term for which the judge is seated."  So, under the trial court's theory, if you leave the bench before your term of office has expired, that's fine, but during the remainder of your term, you cannot perform a public office.

The Court of Appeal's opinion smartly explains why that reading of the statute both doesn't make any sense and also isn't what it actually says.  Once you're no longer a judge, the statute no longer applies.  So you're free to take public office; e.g., to be the dean of a public law school.

It's a really great opinion.  Entirely right.  As well as just.

And I'd say that regardless of who wrote it.  Or who benefits from it.

Friday, June 27, 2014

People v. Brown (Cal. Ct. App. - June 25, 2014)

Question:  What's the difference between 26 inches and 25 1/2 inches?

Answer:  Prison.

That's at least true when the measurement at issue is of your shotgun in California.  Because even if your barrel is the right length (e.g., it's not a "sawed-off" shotgun), if your shotgun's too short (e.g., a "shortened" shotgun), it's illegal.  And, no, the Second Amendment doesn't save you.  Even if a short shotgun would perhaps be marginally more effective for combat in a tight hallway or the like.  There's a  reasonable interest in avoiding shotguns that are more easily hidden (e.g., in one's coat).  So use a tape measurer if you want to stay out of prison.

Oh, one more thing.  If you elect not to use a tape measurer, it's probably not a good idea to repeatedly call up the DMV (as well as tell the police) that you might up in there and "light up the place".  These folks tend to take these things pretty seriously.

Rightly so.

Thursday, June 26, 2014

In Re Y.R. (Cal. Ct. App. - June 3, 2014)

"Detective Robert Forbes of the San Diego County Sheriff's Office was assigned to investigate the incident of vandalism at the clubhouse. After about a year, law enforcement identified Y.R. as a potential suspect from DNA found at the scene."

Wait a minute.  We're now using DNA to figure out which kids committed a year-old offense of busting down the door to a HOA clubhouse?

I had no idea the San Diego Sheriff's Office was so . . . efficient.  Particularly since my only personal experience with the process is having to file a theft report online -- because that's the only way you're allowed to do it -- after a couple of guys were spotted smashing the windshield of my parked car and stealing a laptop therein.  For that, you get a cop who spends five seconds reviewing the report online and hitting the "Okay" button -- nothing else -- but for a busted door, you apparently get police officers coming out and taking DNA.

I'm not complaining about the usual process.  Truly.  I get that for most minor (e.g., sub-$5000) property crimes, the police aren't likely to catch anyone, so won't even try.  Indeed, for most property crimes worth less than $500, the San Diego Police Department won't even let you file a report.  Just wastes their time.

I just find it surprising that we're nonetheless using DNA evidence to catch a teenage "aider and abettor" girlfriend who tells her boyfriend she's cold and thus "persuades" her boyfriend to break down a door to they can warm up in a clubhouse.  Not sure why that particular crime gets so much attention.

Not critical.  Just surprised.

Wednesday, June 25, 2014

Peake v. Underwood (Cal. Ct. App. - June 25, 2014)

Marviel Underwood didn't have a particularly stellar NFL career.  A fourth round pick of the Packers, he played the entire 2005 season, but tore ligaments in his knee during a preseason game against the Chargers in 2006, and spent the entire season on injured reserve.  He then spends a little time with the Raiders and then even less time (five days) with the Raiders before his NFL career is over.  (He gets injured again in 2009 playing in the United Football League, but that's just icing -- bitter icing -- on the cake.)

By contrast, Underwood performs stellarly in the California judiciary.  He and his wife get sued in 2010 by the buyer of their house.  Underwood not only wins this lawsuit, but also (1) recovers his attorney's fees in defending this actions, (2) obtains $60,000 in sanctions against both the plaintiff and her attorneys, and (3) both prevails and obtains costs -- presumably (yet again) including fees -- in the Court of Appeal as well.

Not bad, Mr. Underwood.  Not bad at all.

Tourgeman v. Collins Financial Svcs. (9th Cir. - June 25, 2014)

With all due respect, when the majority opinion devotes 31 single-spaced, facially persuasive pages explaining in detail why the district court erroneously granted summary judgment, I think it's incumbent on the dissent to explain why s/he disagrees.  Rather than simply saying:  "I respectfully dissent. As I view the record, the trial court got it right. I would affirm."

Which is what Judge Farris does here.

I'm not saying that you've got to write a dozen pages explaining your reasoning.  A paragraph or two might well suffice.  But you've got to at least summarize the district court's reasoning and why it seems persuasive to you.  Especially since the majority has spent 31 pages demolishing it.

Now, at 84 years of age, Judge Farris is perhaps entitled to a little leeway.  Brevity's especially fine for someone who's seen and done a lot in his life.

But not this much.  Not in a published opinion, anyway.

Tuesday, June 24, 2014

U.S. v. Shouse (9th Cir. - June 24, 2014)

"Shouse was found to have an expansive cache of child pornographic material, including 82 child pornography images on an iPhone, and an old cellular phone SD card containing 264 child pornography images as well as18 child pornography videos, nearly all of which Shouse produced himself as he committed sexual acts on a female infant. The videos reveal Shouse penetrating and ejaculating on the infant while she cries for her “mom or mommy” and the images show pre-pubescent children being penetrated and children that Shouse admits are in “bondage.” Rearden and Holt leave no doubt that this material qualifies as sadistic or masochistic content."

Given these details, I'll bet you can guess around how many years Shouse receives in federal prison.  That's right.  Pretty much the rest of his life.  Fifty years, to be exact.  Assuming he lives that long once his fellow prisoners learn the details of his offense.

The Ninth Circuit affirms.

In Re A.S. (Cal. Ct. App. - June 24, 2014)

My sense is that you don't need to read this opinion.  Because my strong guess is that we'll be reading about 17-year old A.S. at some additional point in the near future.  When he's convicted of crimes and sentenced as an adult.

Sometimes you get the very, very strong feeling that certain people are nearly irrevocably down a path of long -- or even lifelong -- criminality.  This is one of those cases.

Let's hope I'm wrong.

Monday, June 23, 2014

Verdugo v. Target Corp. (Cal. Supreme Ct. - June 23, 2014)

I'll admit that part of me feels old when I read this opinion.  Or at least old-fashioned.  It's likely true that a modern incarnation of the Traynor court would have gone the other way in this one.  Whereas I would sign on to today's California Supreme Court's opinion, which holds that there is no common law duty for even big-box stores to have automated external defibrillators (AEDs) on their premises.

A court that was revolutionary might well find such an obligation.  There are, after all, lots of heart attacks.  For big-box stores, the cost of including AEDs might be relatively nominal.  So one might well think that imposing a common law duty would save lives at minimal cost.  Which, broadly speaking, seems the right thing to do.  Imposing such a duty seems far less revolutionary (or burdensome) than the California Supreme Court's decades-old decision to sometimes impose affirmative duties on businesses to protect against third party criminal assaults.  Guards costs a lot more, after all, than $1200 AEDs.

Nonetheless, I agree with the California Supreme Court.  A thousand bucks or so isn't chump change.  At this point, I'm not willing to impose a duty.  If only because it'd be very hard (and messy) to figure out just how large a store would need to be before AEDs are required.

So in the meantime, stores can dial 911.  Hopefully paramedics will get there soon.  Hopefully.  And if they don't, well, that's terrible, and a tragedy, but not the basis for a lawsuit.

Give it some time and I might go the other way.  Drop the cost down to a hundred bucks or so and, to be honest, I'd probably impose a duty.  As potentially irrational as that might be, since I concede that there's no material difference to a Target between $1200 and $100.  Nonetheless, at $100, I might well be happy with imposing a common law duty on pretty much every nontrivial shop to have an AED, or at least one in close proximity.

One tangential point.  On numerous occasions in this opinion the California Supreme Court cites material available on the internet.  Which is great.  But the citation for those authorities is supposed to indicate when that material was viewed; e.g., "as of 6/12/2014" or "viewed on June 12, 2014".  But instead of an actual date, the opinion (e.g., in footnote 14, and on pages 36 through 38) reads "[as of OPN FILE DATE]."

Which is wrong for two reasons.  First, it looks like a draft.  Where's the actual date?  Seems like someone forgot to edit this stuff out.  Second, that's not what you're supposed to do.  You're not supposed to include a date -- e.g., the opinion file date -- on these citations unless you actually review the relevant citations on that particular date.  Which isn't what seems to have transpired here.  Instead, the citation was probably actually viewed back when the opinion was drafted (i.e., earlier this year) and then the author puts in a placeholder that says to later include the date on which the opinion was in fact published.  That would be fine if the person in charge of including that later date (e.g., the publisher) was also charged with pulling up the citation and making sure that the authority was actually there.  But I see no indication that this is what was intended.  It instead reads like the author is telling the publisher to just include a particular date (i.e., the filing date) the day the opinion's published.  That's not okay.  It defeats the purpose of the date.  I understand why an author might not want to include an earlier date, as it may reveal when the opinion was actually drafted (God forbid!).  But if you want to put in a later date, you've got to actually pull up the authority again.  Making sure it's both still there as well as that it still supports the proposition for which it's cited.

A minor point, but one worth mentioning.  As well as correcting.

Hendricks & Lewis PLLC v. Clinton (9th Cir. - June 23, 2014)

George Clinton is a famous musician, a member of the Rock and Roll Hall of Fame, and is still going strong at 72.  If you're into funk, he's a classic.

But if you want to listen to his music -- perhaps Atomic Dog, anyone? -- you're going to have to ask the Seattle law firm of Hendricks & Lewis.  Not because it represents him.  But rather because it now owns his copyrights.  Having seized them for unpaid legal fees.

I'm not sure how it got this bad.  Hendricks and Lewis used to represent Clinton.  Racking up . . . wait for it . . . over $3.3 million in legal fees between 2005 and 2008.  When Clinton only paid the firm a little over a million bucks, the firm went after Clinton.  Ultimately enforcing the fee obligation not only to judgment, but also subsequently enforcing the judgment against pretty much anything the firm could find.  Including the copyrights.


Friday, June 20, 2014

Allen v. Meyer (9th Cir. - June 20, 2014)

"Allen consented to jurisdiction before a magistrate judge, but the record confirms—and the parties concede—that the officers never did the same. On two occasions during the pendency of the motion to dismiss [filed by the officers], the magistrate judge ordered the officers to reject or consent to magistrate-judge jurisdiction. After the magistrate judge’s first order, the officers filed their reply brief but failed to address the consent issue. Acknowledging that the officers had not yet consented to his jurisdiction, the magistrate judge then issued a second order and set a deadline for the officers to respond. Inexplicably, without waiting for the officers’ response or for this second deadline to pass, the magistrate judge granted the officers’ motion to dismiss and entered judgment against Allen."
Not the most impressive performance by Fresno Magistrate Judge Gerald Cohn.  Or, for that matter, by the California Attorney General's office, which represented the officers.

Thursday, June 19, 2014

U.S. v. Rodriguez (9th Cir. - June 19, 2014)

If I hadn't have read them straight from the pages of the Federal Reporter, I'd have thought that the details of this case came from Hollywood rather than out of a federal prison in Victorville, California.

Read the first fifteen pages or so of Judge Rawlinson's opinion.  Then remember that if all that stuff is routine in a maximum security federal prison -- routine drug use, alcohol consumption, murder, etc. -- then imagine what it's like in a state prison.

Why read Lord of the Flies when you can get a similar, nonfictional recitation from the Ninth Circuit.

Desertrain v. City of Los Angeles (9th Cir. - June 19, 2014)

The City of Los Angeles prohibits people from living in their car on a public street.  You can live in your car on private property; for example, some churches allow homeless people to park their cars in the chuch parking lot and sleep there, as long as they're gone by a certain time.  But you can't live in your vehicle on a public street (or beach).

Plaintiffs sue, claiming that the statute is unconstitutionally vague since it does not specifically define what it means to use a vehicle "as a living quarters," and also contend that the statute is arbitrarily enforced in violation of the Due Process Clause.

The district court dismisses the lawsuit.  The case goes up to the Ninth Circuit.  And the panel is . . .

Judges Pregerson, Berzon and Christen.

You couldn't be more lucky if you were homeless.  Short of winning the lottery, anyway.

You can figure out what the Ninth Circuit does.

Sweet dreams, homeless-but-not-carless.

Wednesday, June 18, 2014

U.S. v. Jackson (9th Cir. - June 18, 2014)

Judge Reinhardt waxes poetic in an opinion that's somewhat replete with tangents and that reverses a misdemeanor criminal conviction (resulting in a fine of $150) for insufficient evidence.

Judge Murguia is fine with the result, but not the digressions.  So she concurs.  Purely, I strongly suspect, for style reasons.

There are two different views about joining the opinions of others.  One view says that the author largely has the prerogative to say whatever s/he wants to say in the form s/he prefers, and that the remainder of the panel should go along with it as long as the substance is fine.  The other view says to concur separately if the author's stylistic choices are substantially not to your liking, particularly when you have no strong personal attachment to the author.

Judge Murguia apparently takes the latter approach.

Allen v. Liberman (Cal. Ct. App. - June 18, 2014)

Here are the facts as they appear in the introduction to Justice Mauro's opinion, which affirms the grant of summary judgment to the defendant:

"This case involves the application of California’s social host immunity law. Shelby Allen was 17 years old when she went for a sleepover at the home of her 16-year-old friend Kayli Liberman. After Kayli’s parents went to bed, Shelby obtained vodka from the Libermans’ bar, consumed 15 shots, began vomiting and passed out. Kayli propped Shelby’s head against the toilet, took Shelby’s cell phone, closed the bathroom door and went to bed.  [Shelby then died of acute alcohol poisoning.]"

Here are the more complete details that appear in the subsequent statement of facts:

"On the evening of December 19, 2008, Wallace and Debby Liberman were entertaining in their game room, which contained a fully stocked bar. Kayli Liberman arrived home from a party and, in the presence of her parents, consumed alcohol with her older sister Tori. Shelby Allen and Alyssa Alexander arrived at the Liberman home around 12:30 a.m. after Debby gave permission for them to spend the night there. The Liberman family continued drinking alcoholic beverages, but Shelby and Alyssa did not consume alcohol in the presence of Kayli’s parents. Between 12:30 a.m. and 1:00 a.m., Wallace and Debby went to bed. Wallace suspected that the minors wanted to drink alcohol and cautioned them that although his daughters had permission to do so in their home, he did not have the right to give such permission to Alyssa and Shelby, who should talk to their own parents about the subject."

Those additional details make the defendants appear far more morally -- even if not legally -- culpable, no?

Tuesday, June 17, 2014

U.S. v. Aguilera-Ross (9th Cir. - June 17, 2014)

It's funny how things turn out sometimes.

Last year, the Supreme Court decided a case involving whether someone could be deported for sharing a small amount of marijuana with friends.  The Court held that this wasn't a removable offense, and in so holding, modified somewhat (or applied in a particular setting) the "categorical approach" to determining whether a particular offense was an aggravated felony.

The United States wasn't psyched about this rule, since it made deporting people a bit more difficult.  One of the arguments the Solicitor General made in that case was the claim that applying a rule like the one advanced by defendant might not only let off small-time drug users, but "bigger" criminals as well.  For example, the U.S. argued, this rule might make it more difficult to deport people who had been convicted of illegal possession of firearms.  Because the U.S. definition of the relevant felony was slightly different than various state defintions of similar crimes.

The Supreme Court, however, was not persuaded.  Here's what it said in its opinion about this argument (and its basis for rejecting it):

"Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like §1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for 'antique firearm[s],' 18 U. S. C. §921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be 'a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outsidethe generic definition of a crime.' 549 U. S., at 193. To defeat the categorical comparison in this manner, a non-citizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms."

And, the Supreme Court thought, that's just silly.  So the United States' hypothetical problem is merely an illusion.

Which brings us to this morning's case.

That case involves, yep, someone convicted of illegal possession of firearms.  Who gets deported under the "old" rule.  But he says that California's statute doesn't match the federal statute, which means that he can't be deported.

But, remember, the Supreme Court said that in order to win this argument, he'd have to show that California was actually silly enough to prosecute people for having antique firearms.  No way that's going to in fact happen, right?


Aguilera-Ross makes precisely such a showing.  Citing numerous cases over the past several years in which the Court of Appeal affirmed convictions for, among other things, "possession of [a] replica muzzle-loading pistol," possession of a "family heirloom replica single-shot muzzle-loading rifle incapable of using modern ammunition," and an "old-style cap and ball pistol that was rusted and would fire only one shot at a time and had to be reloaded each time to fire." Oops. So the thing that the Supreme Court implicitly thought would never actually happen does indeed happen in our great state.  Which means, in turn, that Aguilera-Ross prevails. Pursuant to the express word of the United States Supreme Court itself.  Notwithstanding the fact that those words were half made in rhetorical jest. Proof positive that law, like reality, is sometimes even stranger than fiction.

Monday, June 16, 2014

Ruiz v. Affinity Logistics Corp. (9th Cir. - June 16, 2014)

The Ninth Circuit has not been kind to S.D. Cal. district judge Janis Sammartino.

In 2009, Judge Sammartino held a three-day bench trial in a wage-and-hour class action and found for the plaintiffs.  She held that whether the truck drivers in that case were employees (as aruged by plaintiffs) or independent contractors (as argued by defendants) should be decided according to Georgia law.

Two years ago, the Ninth Circuit reversed.  California law applies.  Try again.

So she did.  Briefs get filed, Judge Sammartino reviews her prior decision, and holds that the result is the same under Califonia and Georgia law.  No dispositive difference.  Defendants win again.

Nope.  The Ninth Circuit today reverses again.  Under any view of the evidence, the Ninth Circuit holds, plaintiffs are entitled to win.  They were employees.

And this time, the Ninth Circuit doesn't even need oral argument.  Decides the case on the briefs.

But thanks for trying.

Friday, June 13, 2014

Reddam v. CIR (9th Cir. - June 13, 2014)

I can't tell you how unsympathetic I find the founder of DiTech -- the well-known home mortgage company -- to be here.

Yes, I understand that rich people don't want to pay taxes.  Who does?  So when John Reddam sells his company to GMAC Mortgage and makes many, many tens of millions of dollars, yes, I get that he does not feel like paying any taxes on it.

I also understand why places like KMPG like to latch on to these desires and invent creative offshore Cayman Islands schemes to "shelter" such gains from taxation.  Namely, because KMPG will make a boatload of money off of selling these things.

So everyone's motives are understandable.

But I also can't help but be entirely happy that the Tax Court -- as well as the Ninth Circuit -- frustrate these desires and hold that the relevant tax schemes employed by KMPG and Reddam "lack economic substance" and hence don't work.

Judge Hurwitz writes a really good opinion that explains why.  Not why I'm happy, of course.  But why these schemes do indeed lack economic substance.

Here's a great snippet from Judge Hurwitz's opinion that's a nutshell of the underlying analysis:

"Put differently, the small percentage chance that Reddam’s OPIS transaction could have created a sizeable economic gain in return for his multi-million dollar investment pales in comparison to the expectation that it would always create a tax loss of $42,000,000 to $50,000,000. No matter how the underlying Deutsche Bank stock performed, the OPIS transaction was designed inevitably to produce a tax loss: the $42,000,000 shift of basis from Cormorant to Reddam would always (even under Reddam’s expert’s calculations) have overshadowed any possible gain. On this record, the Tax Court was correct in concluding that the percentage of likely potential gain did not infuse economic substance into what was clearly a tax loss scheme."

Or, as Judge Hurwitz explains in footnote 10:

"Dr. Miller’s report states that only in highly uncommon circumstances would the OPIS transaction make any kind of profit, but that five percent of the time it could make between $3,450,000 and $6,300,000. It defies belief that an objective investor would risk $6,000,000 on a transaction that was designed to lose money at least seventy-five percent of the time, could make a nominal profit twenty percent of the time, but might, only five percent of the time, have generated profits in that range for any reason other than to garner the eight-figure tax loss the transaction was designed to generate."

Well spoken, sir.

Well spoken indeed.

Thursday, June 12, 2014

Orichian v. BMW (Cal. Ct. App. - June 12, 2014)

Sorry your BMW X5 was not to your liking.  That truly sucks.

But the jury found that, while it perhaps wasn't "all that," it also wasn't a lemon.

The Court of Appeal affirms.

Not a happy experience for the plaintiff on any front.  Not at the dealership.  And not in the courts.

At any level.

Wednesday, June 11, 2014

Big Lagoon v. California (9th Cir. - June 11, 2014)

One of the downsides of sitting by designation is that you don't get a vote on any en banc call.  That downside is doubled when the only other person you can persuade to join your opinion for the panel is (as here) senior, particularly when you've got an active judge (as here) dissenting.

Add to your troubles when your opinion is arguing that circuit precedent has been implicitly overruled by intervening authority.  Make it an even more difficult task when a big portion of the opinion is about that age-old question -- quite familiar to at least one ex-President -- of what "is" means.

Put it all together and you get a panel opinion in January that this afternoon gets taken en banc.

Thanks for the help, District Judge Block.  We appreciated your flying all the way from the Eastern District of New York to assist the Ninth Circuit in San Francisco.  Which is no small task, I might add, for someone who turned eighty years old on Friday.

Happy Birthday!

Now watch from the sidelines while everything you wrote disappears.

Dixon v. Williams (9th Cir. - April 30, 2014)

It's been a slow June day.  Nothing from the California Court of Appeal.  Just a tiny edit to a single opinion from the Ninth Circuit.  Zzzzzz.

So, for contrast, I thought I'd mention something a little different.  Something . . . speedy.

Now, mind you, I've been on juries in California.  When they deliberate, they generally do so during the usual business day.  Come in at around 9, leave at around 5.  Or earlier.  Typical business hours.

So I was fairly surprised to see footnote 3 of this opinion.  Involving a murder trial in Las Vegas:

"The jury began deliberating at about 7:10 p.m. on Thursday, October 28, 2004, and returned a verdict by 2:32 a.m. on Friday, October 29, 2004."

Which made me think:  Wow.  They really do love late nights in Vegas.  For everything.

Tuesday, June 10, 2014

In Re I.G. (Cal. Ct. App. - May 20, 2014)

"I.G. was 14 years old when she came to the attention of the Agency in July 2012. She had just tested positive for THC (tetrahydrocannabinol), the active ingredient in marijuana, after giving birth to a premature baby. The Agency filed a petition under Welfare and Institutions Code section 3001 on behalf of I.G.’s baby alleging I.G. and the baby’s father were both using alcohol and illegal drugs, were assaultive toward each other and others, and had not been visiting the baby or learning how to care for her. The allegations were found true and I.G. was provided reunification services, but she did not maintain contact with her attorney or the social worker.

In October 2012, the Agency discovered that I.G.’s mother was rarely home, using methamphetamine and abusing alcohol, and allowing drug users to frequent the home and sleep in the breezeway outside their home. Mother’s whereabouts were unknown to I.G. and her siblings (ages 11, 12, and 17) much of the time. I.G., after one of her many arguments with mother, ran away and became homeless, was not attending school, and was using methamphetamine and marijuana. I.G. was physically aggressive at home, had a history of assaulting her mother and siblings and, on at least one occasion, assaulted and injured a sibling with a knife. Law enforcement had responded to the mother’s residence on 28 occasions over the previous three years due to domestic disturbances and I.G. and her sister frequently running away. I.G.’s father was serving a lengthy term in prison in the State of Washington for attempted murder and possession of a firearm."

How you break this cycle is totally beyond me.  What a mess.

That's even more the case when the attitude of the relevant party (I.G.) is aptly described by her statement that all she wants to do is to "live wherever and be a kid."  Uh, well, here's the thing:  You're a child with a child, you and your baby father hit each other, you don't give a crap about your kid, you're using meth and you've used a knife on one of your siblings.  The option to just "be a kid" pretty much went out the window once you became a mother.  I understand that you don't think that way.  As amply reflected by the fact that being pregnant didn't stop you from continuing to get high (and have a premature baby).  But that's the stark reality.  Playtime's over.

So the child/parent here doesn't look very good.  Nor, to be honest, does the Shasta County Health and Human Services Agency, which is in charge of recommending where she should stay.  Here's what the Court of Appeal has to say about the Agency:

"The Agency argues I.G. 'is not simply an obstinate minor,' but 'a street-wise minor/mother who has shown her ability to survive on her own and with her family. That is where she intends to be and that is what [the juvenile] court appropriately allowed and ordered.' This is a stunning argument by counsel for a child protective service agency. We reject it out of hand. The record, to be sure, reflects a number of negatives. I.G. was a frequent runaway and a habitual truant. She continued to use illegal drugs during her teenage pregnancy. That may have led to the premature birth of a child she essentially abandoned. She had a history of violence against her siblings and in the presence of law enforcement. It is this behavior and these circumstances which have resulted from I.G. being in her mother’s custody. Having been handicapped by poor parenting for years, I.G. has now been abandoned by the administration of child dependency justice and again left alone to attempt to manage her own well-being sensibly. Clearly, she cannot do it. Equally clearly, it is error for the Agency and the court to abdicate their legal duties in the face of it all, however apparently difficult."

Come on, Justice Nicholson.  Tell us what you really think.

I'm not optimistic at all that the underlying situation is going to get much better.  Neither, I imagine, does the Court of Appeal.

But you gotta try.  Because the status quo is simply intolerable.  A situation which will likely replicate itself in the next generation.  As it did the generation before.

Monday, June 09, 2014

Scialabba v. De Osorio (U.S. Supreme Ct. - June 9, 2014)

See today's Supreme Court decision?

Told you so back in 2012.

Admittedly, I was off when I said the Supreme Court would reverse in an opinion "not nearly as close as the 6-5 split of the en banc court."  It stayed a close one in the Supreme Court.  5-4, at least as to the ultimate result.

That said, kudos to anyone who could have predicted this 3-2-1-3 result.  With a lineup of Justices Kagan, Kennedy, Ginsburg, Roberts and Scalia on the "immigrant loses" side, with Justices Alito, Sotomayor, Breyer and Thomas concluding that the immigrant wins.

Even crystal balls aren't that crystal.

Hill v. Dregery (Cal. Ct. App. - June 9, 2014)

This opinion might perhaps come out the correct way.  But I think it'd materially benefit from inclusion of the following line (or at least thought):

"Our decision affirming the trial court's award of attorney's fees results from the standard of review on appeal.  Appellant's arguments might well justify a substantially reduced fee award.  However, we defer to the trial court's contrary decision to award the full amount of requested fees.  This decision was not an abuse of discretion."

I say that because, were I the trial court, I might well have awarded only a fraction of the fees sought here.

Rightly so, I think.