Thursday, September 18, 2014

U.S. v. Garcia (9th Cir. - Sept. 18, 2014)

Maybe you hate a former housemate of yours.  Maybe for totally irrational reasons, maybe for good ones, whatever.  You don't like her.  Okay.

Maybe you don't even want to hurt her.  Just scare her a little bit.  Reminder her of that time she had your car towed.  That's not a good quality in you.  At all.  You shouldn't do anything about it.

But if you reject this advice, for goodness sakes, do not decide that the way you make your feelings felt is to explode a pipe bomb in her car.  Doesn't matter if it was in the middle of the night, there was no one around, and no one got hurt (or was even meant to get hurt).

You exploded a pipe bomb.  That's now a federal offense.  As well as a profoundly serious one.  One for which you'll receive, as here, thirty five years in prison.  A stark contrast to the fairly brief period of probation you're likely to receive in state court if you slash its tires or (maybe) even if you steal it and drive it into a lake.

And your conviction and sentence will be affirmed by the Ninth Circuit.

Briefly put, there's pretty much no possible way to fill in the blank in the following sentence with something that makes sense:  "It's a nice day today.  I think I'll _________ with a pipe bomb."

Wednesday, September 17, 2014

The Depressing Ninth (9th Cir. - Sept. 17, 2014)

You don't get a very good impression of the nature of mankind if you read today's published opinions from the Ninth Circuit.

You've got one attorney who completely abandons a client who's been sentenced to life in prison and never even lets him know (despite promising to do so) that the Nevada Supreme Court has denied his state habeas petition and hence the one-year clock for filing a federal habeas petition has commenced.

You've got police officers who incarcerate an innocent man for two years by charging him with a series of crimes that were committed by someone else -- someone the officers allegedly knew had the same modus operandi, who confessed to committing these distinctive crimes in the exact same area of L.A., whose fingerprints were ultimately found at the scene of one of the crimes with which the defendant was charged, and whose arrest promptly terminated the series of crimes for which defendant was charged (which had continued unabated even after defendant's arrest).  None of which the officers disclosed to defendant or his attorney.

You've got an Indian tribe trying to rebuild itself after it was entirely dispossessed of its land by the federal government's decision to build a dam and floods the entire reservation, forcing every single family but one to leave the reservation.

And you've got a popular web site for aspiring models (with over 600,000 members) that rapists use to lure women to fake auditions, drug and rape them, and videotape the entire process for distribution to those who enjoy such pornography.  Allegedly with the knowledge of the owners of the web site.

What a world in which we live.

Tuesday, September 16, 2014

People v. Peyton (Cal. Ct. App. - Sept. 16, 2014)

Justice Yegan begins this opinion with the following introduction:

"Lamenting the delays associated with the orderly processing of criminal cases, Justice Macklin Fleming explained a popular way for a criminal defendant to avoid, or at least delay trial: 'sidetracking.' He describes this as diverting 'the inquiry into a collateral issue. . . . In the operation of a railway system to sidetrack a train is to switch it from the main line to a siding. In criminal law to sidetrack a cause is to divert the accusation from the pending issue [guilt or innocence] to some other issue, any issue, and then keep the prosecution [or the trial court] so occupied in litigating the side issue that the hearing of the accusation itself comes to a halt.' (The Price of Perfect Justice, Basic Books, Inc, (1994) at p. 54.)

Appellant is the poster boy for sidetracking."

I agree with Justice Yegan that there's such a thing as "sidetracking" and that, when it happens, it's a problem.  It can be a deliberate tactical strategy.

But there's also something called "being a nutjob".  Not making tactical decisions to try to derail a prosecution, but simply being so incredibly divorced from reality that one makes counterproductive, irrational decisions that are virtually random in their nature and effect.

IMHO, appellant here is a poster child for the latter, not the former.

Look at what the appellant filed and see if you think he's rationally trying to derail the prosecution or instead merely filing whatever crazy concepts fly into his head at the moment.  For now, just take one little snippet from the motion this pro per criminal defendant filed on November 6, 2012, in which he "alleged that Judge Hirsch 'leaked' appellant's identity to the media after appellant accused Judge Hirsch of judicial corruption. He repeated his claim that because he was Muslim and Judge Hirsch was Jewish, Judge Hirsch was prejudiced against him. According to appellant, Judge Hirsch's 'leaking' appellant's name to the press put his life in danger and was done because of appellant's religious beliefs. This, according to appellant, 'crossed the line' and 'Allah gave me the full holy right to act in return in aggression . . . by any means I choose . . . I have chosen to act in aggression against Judge Hirsch . . . with my brains and legal applications. . . .'"

Ah, yes.  There's a motion that's going to be granted.  There's one that a rational party is definitely going to file.  I can't fathom a more brilliant display of "sidetracking" than this.

Put simply, this case is a bad vehicle for a good concept.  Yes, deliberate sidetracking exists, and it can potentially be a problem.  Indeed, I might even agree that the sidetracking in this case was a big problem if defendant were out on bail at the time.  Because then defendant's wasting everyone's time and getting a tactical benefit -- his freedom -- as a result.

I strongly suspect, however, that as a two-striker ultimately sentenced to ten years in prison, the defendant here's not on bail, but is instead rotting in jail the entire time he's tactically "sidetracking" the proceedings.  Maybe I'm wrong (though I doubt it), and if I am, then yeah, the crazy motions and resulting delay are maybe a reason to keep him in and/or adopt some other remedy.

But if the only result of crazy motions is that a guy who should be incarcerated stays incarcerated, I don't really see how that's a monster problem.  A slight hassle?  Sure.  But it ain't hard to deny what are clearly frivolous motions like the ones filed here.  Nor do I suspect that we need to deter the type of conduct that transpired here, because I strongly suspect that most defendants know that what went down here was in no small part the reason the guy to a decade-plus in prison.  You don't piss off the judge who's sentencing you.  That's not a lesson we really need to desperately reiterate in spades lest everyone forget it.

The Court of Appeal publishes the opinion to "remind" trial courts that they can revoke pro per status if the defendant is being "deliberately obsructionist".  Which is clearly true.  But this case isn't the poster child for a "deliberately' obstructionist party because it's unclear that there's anything at all "deliberate" out what he's doing.  There's no deliberation.  There's no intent to delay.  It just seems to me it's the conduct of someone divorced from reality and convinced -- truly convinced -- that the trial judge is biased and the world's against him and everything will be just fine once he's able to present all of this to the federal court (in which he's sued the state court judge) and the Court of Appeal.  That is what he truly believes.  As evidenced by his final statement to the trial court: "When I reverse you on appeal, I will make sure to rub it in your face."

Yeah.  How'd that work out for you in the end?

The trial court could tolerate and quickly deny the silly motions that this pro per defendant filed or it could have revoked his constitutional right to represent himself and forced an attorney upon him that he didn't want and would aggressively fight.  I could imagine arguments for doing the latter.  But they are ones based upon paternalism and the need to protect the innocent.  Not -- as here -- as a bulwark against deliberate, tactical sidetracking.

It's not that Justice Yegan doesn't have a point.  He does.

It's just not that I'm at all sure this is the case in which to make it.

Suarez v. City of Corona (Cal. Ct. App. - Aug. 29, 2014)

A compressed natural gas (CNG) tank in a van explodes while being filled at a fueling station owned by the City of Corona, injuring a passenger, who sues the City.  The Fire Department investigates the explosion, tests the fuel lines and investigates the tank on the van, and concludes that the explosion was caused by "stress corrosion cracking" on the van's tank that resulted from sulfuric acid from contents in the cargo area of the van.  In short, it wasn't the City's fault.  In the slightest.

Plaintiff nonetheless continues to litigate against the City.  If by "litigate" we mean doesn't drop the suit; there's not really any depositions, etc. against the City.  The City eventually is forced to file a motion for summary judgment, which is predictably granted.

The trial court imposes sanctions against the plaintiff and his lawyers.  But the Court of Appeal holds that the particular statute the trial court applied only authorizes sanctions against parties, not lawyers.

Fair enough.

So the City wins the lawsuit, but loses its only enforceable sanction award.  A partial win.

One final point completes the story.  Although the lawsuit was frivolous, how much did the City of Corona spend to defend this lawsuit?  Over $135,000.

That's a fair piece of change for a lawsuit that indisputably had no merit.

Monday, September 15, 2014

Jon Dalver Inc. v. Arch Ins. Co. (Cal. Ct. App. - Sept. 15, 2014)

How'd you like to have this case walk in the door:

The owner/manager of Jon Dalver, Inc. (a cosmetics manufacturing company) sees a used sanitary napkin around the toilet area in the women's bathroom and blood around the toilet seat.  She promptly goes ballistic, and (allegedly) goes to department full of female workers screaming that they're "dirty" and demanding to know who's on their menstrual period.

Pretty bad, right?  I mean, you're probably going to get sued for that.

But it gets worse.

Not satisfied when each of the workers says they're not responsible -- having had the supervisor scream "Are you on your period?! at each employee -- the manager then forces another employee to "take each of [the employees] into the bathroom, one by one, and check their panties to see who was on their menstrual period, by requiring each to pull down their pants and underwear for an inspection.”  The employees ask what happens if they refuse, at which point the supervisor says they'll be fired.  So a male supervisor waits outside the bathroom door with the female supervisor as "the designated female employee went into the bathroom with each employee, 'stood a foot or two away' while the employees 'had to pull down their pants and their panties, exposing their vaginal area, so that [the employee] could see if they were wearing a sanitary napkin and therefore on their period.'"

Oh my.

I'll take that case on the plaintiffs' side, thank you very much.  Since it's akin to taking candy from a baby.

Oh, and this conduct isn't covered by insurance.

Not a good day for Jon Dalver, Inc.

U.S. v. Gadson (9th Cir. - Aug. 19, 2014)

This house is somewhat cute.  Small, of course.  A fixer-upper.  But right along the river in Fairbanks, Alaska.  Lots of space.  For sale now for $119,500.  The beauty and splendor of the Alaska frontier can be yours for an insubstantial chunk of change.

Though thanks to the second paragraph of this opinion from Judge Ikuta, it's now public knowledge that this home "was the hub of a drug trafficking operation" selling crack cocaine.  A search of which revealed "a shoe box on top of the living room couch containing approximately a kilogram of cocaine, another shoe box containing another kilogram of cocaine and some $29,000 in cash behind the drugs. . . . . A loaded shotgun and ballistic vests were found near the shoe boxes. Powder cocaine, crack cocaine, ecstasy, marijuana, drug paraphernalia, and more cash and money orders were found in various locations in the kitchen and dining room. The bedrooms contained more drugs. . . . [including] powder cocaine, crack, marijuana, heroin, 156 tabs of ecstasy, and approximately $13,000 in cash."

Presumably, none of that comes with the $119,500 purchase price.

The asking price of this property -- which has been pretty much consistently listed for sale since 2008 -- has fluctuated greatly over time.

I wonder if Judge Ikuta's express reference to this address will nudge it down a bit.

Friday, September 12, 2014

Schinkel v. Superior Court (Cal. Ct. App. - Sept. 12, 2014)

Prisoner Larry Schinkel wants to recall his three-strikes, 25-to-life sentence under Proposition 36, and the question is whether he was convicted of a serious or violent felony and hence disqualified from relief under the statute.

Schinkel has six prior convictions for burglary.  He then got arrested and convicted of four counts of sexual intercourse with a minor.  And after he was arrested on those charges, he solicited someone to kill the minor so she couldn't testify against him.

That's why he got 25-to life.  Once on the charge of solicitation of murder and twice more on two of the sexual intercourse with minor charges.

That's all you need to know.  You know where this one's going even before you get to that part of the opinion in which the Court of Appeal says that "defendant is one of the truly dangerous criminals that the voters meant to exclude from the resentencing provisions of Three Strikes Reform Act."

In Re Snowden (9th Cir. - Sept. 12, 2014)

No, not that Snowden.  This one's instead a guy who took out a $575 payday loan in Washington and thereafter filed for bankruptcy.  (Instead of fleeing to Russia)

As for the other party to this transaction, they may have fancy advertisements and nice, brightly lit stores, but for the underbelly of how "Check Into Cash" works, read the opinion.  Here's a portion:

"Snowden advised CIC’s Sequim, Washington office that she was 'thinking about filing for bankruptcy,' and provided her bankruptcy attorney’s phone number. She was advised that she should let CIC know if she decided to file. When Snowden told CIC that she could not repay the loan, CIC said that she must call CIC every day, otherwise the company would call her 'references.' Snowden complied, calling CIC every day until the day she filed for bankruptcy because she 'didn’t want to be embarrassed.'

Snowden was employed as a hospital nurse. CIC employees called her at work numerous times asking why she had not yet repaid the loan. Snowden referred them to her attorney and asked that they stop calling her at work, but the calls persisted."

Harassing someone at work even after they ask you to stop, threatening to call their "references" merely to embarrass them, demanding they call you every single day, and then violating the automatic stay after they file for bankruptcy.

Stay classy, Check Into Cash.

Thursday, September 11, 2014

People v. Johnson (Cal. Ct. App. - Sept. 11, 2014)

When you read the transcripts of defendant Daniel Johnson's recorded phone calls as he's talking to friends -- recounted on pages three through five of this opinion -- you realize two things.  First, he's not very bright, since he's essentially confessing to his crimes on a recorded jailhouse line.  Second, he's got to learn to express himself better.  Because my rough estimate is that, in each of his various conversations, which collectively entail probably a hundred different sentences, Mr. Johnson uses the word "nigger" in literally half of them.

(Here's a classic example, from how he ends his third conversation:  "Yeah, nigger. There’s a camera on (Gerrard), too, my nigger. So let, let everybody know, man. When you niggers is around there. Nigger, I thought I was good. I mean, I got it, I got it all so quick, right? You feel me? I got—I told the bitch to leave so quick that the nigger I was with didn’t even know I kicked the bitch out. You feel me? Smooth, though, nigger…. That mother fuckin’ nigger had a camera right here, Cuz. That’s crazy. Shit, man. You know, I fucked up, my nigger. I—I’m a learn from this.")

It's not an especially attractive quality when every other sentence of our nation's youth includes the word "Like . . .".  It's even less attractive when "nigger" serves as an alternative placeholder.

Hopefully Mr. Johnson will indeed [a] learn from this.

People v. Venegas (Cal. Ct. App. - Sept. 11, 2014)

How tough can it be to be a police officer in Compton?  At least this tough.

The Born Krazy Minded gang got pushed out of some territory on Indigo Street in Compton and wanted to reclaim it, so one night, some gang members shoot up one of the houses on the street.  The police are called about a shooting on Indigo Street, and officers Orozco and Robles, who were in the vicinity, promptly saw two cars travelling on Indigo at a high rate of speed.  One was green, one was gold, and both ran a stop sign on Indigo, narrowly missing the officers' vehicle.  Since there were two perpetrators and one cop car, the officers decided to follow the green one.

The officers sped after Greenie, which accelerated even faster, ran another stop sign, and turned onto Tamarind Street.  The officers then saw the driver throw something out of the vehicle, and called for another officer to try to find what was discarded.  Which turned out (of course) to be a Glock.

Greenie then turns onto Cocoa, at which point the gold car reappeared, driving the other way.  Ha!  Now we might even get you both.

So the officers and Greenie are speeding towards Goldie, and as the gap closes (and Greenie passes Goldie), the gold car swerves towards the officers, who are forced to themselves swerve to avoid a collision.  That bastard!  Goldie tried to make us spin out so that Greenie can get away!

But the officers are driving Dukes of Hazzard style, and keep up their pursuit of Greenie despite the serendipitous reappearance of Goldie driving the other way.  Greenie continues to blow through stop signs and drive on the wrong side of the street, but the officers keep up the pursuit.

Greenie eventually returns to Tamarind Street, with the officers closing in.  At which point Goldie appears yet again, and this time, when the cars pass each other, Goldie crashes head on into the patrol car, disabling the vehicle.

The officers eventually recover from the crash and arrest the driver of the gold car.  Backup officers also eventually come to the crash site, and then drive down Estrada (where Greenie was headed) and eventually find that vehicle abandoned on East Caldwell, with no one in it.  They eventually find the driver of Greenie stashed in a home, surround the place, and force him to surrender.  So in the end, the pursuit succeeds.  Everyone's arrested, and convictions follow.

But geeze.  Deliberately smashing into a patrol car head-on so your fellow gang member might escape a pursuit.  That's hard core.  For both the gang member as well as the officers.

They say that police work entails long periods of boredom punctuated by brief periods of extreme danger.

That's certainly true in Compton.

Wednesday, September 10, 2014

Rudin v. Myles (9th Cir. - Sept. 10, 2014)

It's pretty bad when you've been charged with murder and your lawyer is so ill-prepared and incompetent that even the trial judge gets scared.  So scared, indeed, that he appoints a second attorney to "assist" the first one.

You're even more scared, I imagine, when you listen to your attorney's rambling opening statement at trial on your behalf and realize (alongside everyone else who listens to that speech) that it makes no sense and had "no cohesive theme".  Your attorney (you later discover) appears to be spending more time selling the media rights to his representation of you than he does on actually preparing for that trial.

You ask the attorney appointed to "assist" your attorney how things are going.  This is your counsel's opinion of your attorney at trial:  your representation is "a farce, and that disturbs me as an attorney. . . . This has become a sham, a farce and a mockery."

(Which perhaps reminds you of the following line from Arrested Development:
Michael:  "I'm not going to turn this mock trial into some sort of . . . .
GOB:  You were going to say 'mockery' weren't you?
Michael:  I was in trouble like three words into that.

You smile.  But your smile is fleeting.  Especially when you're convicted and sentenced to life in prison.

Things can't get much worse on the representation side, can they?

Oh, but they can.

Read the entire opinion for more.  But in the meantime, here's a snippet from the majority opinion.  Which, over the dissent of Judge Adelman (sitting by designation from the Eastern District of Wisconsin), denies habeas relief:

"We are troubled by the outcome of this case for many reasons. Margaret Rudin’s direct appeal and collateral review proceedings have been pending in either state or federal court for a combined total of 13 years. She has potentially meritorious claims that she has suffered prejudice at the hands of her own attorneys’ egregious misconduct. Yet she has never had an opportunity to present those claims in court.

Rudin’s defense counsel, Amador, indisputably engaged in egregious professional misconduct during the course of her underlying criminal trial. On direct appeal of her judgment of conviction, the Nevada Supreme Court acknowledged that Rudin’s trial was plagued not only with inadequacies on the part of defense counsel, but also with prosecutorial misconduct and legal error on the part of the State and the court.20 Although two members of the Nevada Supreme Court found the record sufficiently clear as to the “inherent prejudice created by [trial counsel]” to require immediate reversal of Rudin’s judgment of conviction, a majority of the court declined to address the effect of those errors, finding them more appropriate for resolution on collateral review.

But then, in her collateral review proceedings, Rudin was abandoned. Rudin’s first attorney filed nothing in any court on her behalf, and he also failed entirely to investigate her post-conviction claims. By the time Rudin requested and obtained substitute counsel, her state and federal limitations periods had already run, but nobody, not even the court, knew that to be true. And although the state post-conviction court, seeing the case as a “mockery of [its] promise to people who are in the criminal justice system that they will have an adequate defense,” initially granted Rudin relief, the Nevada Supreme Court reversed that court’s judgment, finding Rudin’s petition untimely and reinstating her criminal convictions. Now, for reasons that completely escape us and that remain unexplained by the record, Rudin’s current counsel failed to file a protective habeas application in federal court to preserve Rudin’s right to any opportunity for review that may have remained.

At this point, Rudin is still in prison, having served 13 years of her life sentence for murder. We know from the state post-conviction court that the State’s “proof of guilt [at that trial] was not a slam dunk by any stretch of the imagination.” We also know from the post-conviction court that, had Rudin been represented by competent counsel, the jury’s verdict may have been different. Thus, what we do not know is whether Rudin is lawfully imprisoned. And, regrettably, that is something we may never know.

The prejudice that Rudin potentially suffered at trial has only been compounded by the inadequacies of her attorneys on collateral review, who have now precluded her from having any chance at presenting her claims in federal court. Thus, if ever there were a case in which equitable tolling
should apply to soften the harsh impact of technical rules, perhaps this is that case. However, we are bound by AEDPA and the standards established under our caselaw and that of the U.S. Supreme Court, which circumscribe our power to grant relief to cases in which extraordinary circumstances–in
other words, abandonment–made it impossible for the petitioner to file on time."


ALPS v. Ingaldson Fitzgerald (9th Cir. - Sept. 10, 2014)

It's funny to see this Ninth Circuit opinion end with a signature line and, thereunder, "Judge Jacqueline H. Nguyen, Presiding Judge."

You routinely see things like that in the state court system (in which Judge Nguyen formerly served), but not generally in the federal system.  Which doesn't actually have a "presiding judge".

In Judge Nguyen's defense, she is the only active member of the Ninth Circuit on the panel, and the opinion certifies a question to the Alaska Supreme Court, so she presumably thought it'd be helpful to add that line.

Still, not something you see every day.

Tuesday, September 09, 2014

Castellanos v. Small (9th Cir. - Sept. 9, 2014)g

This opinion by Judge Murguia -- in a habeas case -- begins in the way you usually begin these things when you're going to deny relief:  with a poignant recitation of the facts.

Plus, I gotta say, those facts made a difference to me.  If only on an initial, emotional level.  Because here's what they are:

"Petitioner Anthony Castellanos, who was 17 years old at the time of the incident giving rise to this case, was at his apartment with his 11-year-old and 12-year-old neighbors, Joey and Nicky. Castellanos was trying to recruit Nicky to join his gang, the King Kobras, but Nicky had previously
refused. Castellanos, who had been cooking French fries in the kitchen, walked into the living room where Nicky was sitting on the couch, pulled a gun from his waist, and pointed it at Joey and Nicky. Joey ducked, fearful of what might happen. Castellanos then turned and pointed the gun directly at Nicky, put his finger on the trigger, and said, “What do you think about this?” He fired, shooting Nicky in the head."

Yikes.  I mean, shooting a 12-year old child in the head, killing him in cold blood, for not joining a gang?!  Seriously?!  And in front of his 11-year old brother?!  Wow.

Yet, notwithstanding this opening gambit, Judge Murguia reverse the conviction and grants habeas relief.  On the ground that one or more Hispanic jurors was improperly dismissed by the prosecutor.

It's difficult to look into the heads of prosecutors.  I have no doubt whatsoever that there are improper race-based dismissals.  But the record here is especially unclear.  Particularly with respect to the one juror that the opinion extensively discusses.  Defense counsel challenged five dismissals of Hispanic jurors.  The prosecutor had to justify each one.  It's clear to me that the prosecutor didn't really have his act entirely together.  For example, the central juror at issue was one that the prosecutor thought was white.  As a result, he didn't really focus on this one, and gave a lame (and, ultimately, not very persuasive) reason for bouncing her.  That's why the Ninth Circuit grants relief.

At the same time, however, look at the ultimate jury that convicted the defendant:  four Caucasians, one Asian, and seven Hispanic jurors.  Hard to argue that the prosecutor's bouncing jurors on account of their race when a majority of the jurors are, indeed, Hispanic.  Moreover, it's not like he ran out of challenges:  the prosecutor only used 12 of his 20, leaving 8 left.  If you've got 8 challenges left and let 7 Hispanics on the jury, that's some evidence -- and remember that we're in deferential AEDPA land -- that the prosecutor was not, in fact, discriminating based on race.

I can't help but wonder what really went down here.  Maybe, of course, the prosecutor was really discriminating based on race, and his failure to submit a rational explanation for his strike is good evidence of pretext.  But it's also distinctly possible that the lameness of the reason for striking this particular juror was because the prosecutor was focused on the other four -- remember, it's clear the prosecutor thought that this juror was actually Caucasian -- and simply "failed to show his work."  A conclusion somewhat supported by the ultimate composition of the jury.

So this is a toughie.  One framed by an initial articulation of the facts that doesn't make one especially empathetic towards the defendant.

Shaw v. Superior Court (Cal. Ct. App. - Aug. 21, 2014)

One of the topics that I do not cover at length in my first-year Civil Procedure class is when parties have a right to a jury trial.  Not that this issue is uninteresting, or unimportant.  Far from it.  There's neat historical stuff, plus the whole law-and-equity distinction, at issue.  Were it exclusively an issue of what's interesting to an academic, "right to jury" stuff would clearly be up there.

But you can't cover everything in the first year.  Not even close.  And my excuse for leaving out this subject is an immensely practical one.

Most of the underlying issues have simply already been decided.  Want to know if there's a jury trial in a workers compensation case?  Look it up.  There's a simple yes-or-no answer.  FLSA?  Ditto.

That's true for pretty much everything.  Because (1) you're rarely the first person to have ever litigated the particular cause of action at issue, (2) it's pretty important whether a party has the right to a jury, and (3) the answers are typically binary -- either there's a right or there's not.  No gray area.

Which is not to say that the first couple of cases that decide whether there's a right to a jury trial are easy.  They're not.

But once you've got an answer, there you go.  Precedent.  Judges follow it.  Done deal.  This is not an area where the facts of one case arguably create a different result.  If one Alien Torts Act case entitles a party to a jury trial, most likely, so does the next.

So while we spend a lot of time in law school teaching will-be lawyers how to reason and argue, with a focus on complicated cases, we sometimes leave out ones the answers to which are now settled.  Ones that don't come up that much in actual practice.

I say all this as backdrop to this opinion.  Which relates to whether a cause of action under Section 1278.5 of the Health and Safety Code, which prohibits a health care facility from retaliating against any of its employees for complaining about the quality of care or services provided by that facility, entitles the parties to a jury trial.

Justice Croskey does the necessary historical analysis.  Is this the type of claim that would have been a legal one that entitled a party to a jury trial back in the 1850s?  Holding that, yeah, it is.  Notwithstanding the contrary opinion by the trial court below.

You won't read cases like this in law school.  Or even much in practice.

But you see it now.

Monday, September 08, 2014

People v. Doolittle (Cal. Ct. App. - Sept. 8, 2014)

Ken Doolittle sells "investments" in "mobile home trust deeds" to elderly people.  With a rate of return that's allegedly "guaranteed".

You know where this is all going.

Let me reiterate.  Investments.  In mobile home trust deeds.  To the elderly.

The question is how many years in prison Doolittle properly receives.

People v. Banks (Cal. Supreme Ct. - Aug. 14, 2014)

Kelvyn Banks is a very, very bad guy.

Whose death sentence is unanimously affirmed by the California Supreme Court.

Scary dude.

Friday, September 05, 2014

People v. Hojnowski (Cal. Ct. App. - Aug. 4, 2014)

What's the appropriate penalty for spitting on a corrections officer?

Eleven years in prison.

On the merits, one can find little technical fault with Justice Needham's workmanlike opinion.  It raises and resolves the issues coherently.  It's a straightforward resolution.

But can you seriously read what transpired here and not have serious concerns about what we're doing in situations like this one?

Because Joseph Hojnowski isn't legally "crazy".  He's competent to stand trial.  I admit that.  Under what we mean by "competent", yeah, he "understands" the nature of the proceedings, in that he gets that they're looking to lock him up.

But he's an absolute nut.  Just listen to him.  Read everything he says.  About the judge, the process, his lawyer, etc.  The guy has the most tenuous grip whatsoever on reality.  He thinks he's about to get out of prison in a couple of weeks (wrong), clearly doesn't have any intelligent understanding of what's going on, and -- ancillary to the above -- seems to think that repeatedly referring to the judge as "dude" and "motherfucker" in court will be beneficial.  The guy's as crazy as any stereotypical homeless guy you think about on the street.  Except this person is in prison and facing an additional 11 years for the offense of spitting on a guard who didn't take as kindly as the judge did being called a motherfucker.

The trial judge rightly doesn't let Hojnowski represent himself at trial because to do so would be a farce.  (Saying:  "[D]efendant doesn’t even begin to have the ability to defend himself on his own. He can’t — quite frankly, he can’t even make sense here trying to basically discuss these issues.  If the Court were to allow the defendant to represent himself, it would be a sham proceedings. It would be a folly.”)

But, truth be told, even without the guy representing himself, it's still a farce.  You've got everyone sitting there magisterially while some nutjob's calling everyone involved a faggot and a motherfucker and displaying only the loosest possible connection to the real world while all the time everyone knows that the guy's just digging his own grave and looking at another decade-plus in the hole because he has no idea at all about how one interacts with the outside world.  In a word:  He's lost it.  Completely.

I'm not saying that I know what to do in situations like this.  I don't.  The guy did something he should not have done.  He needs to be punished.  Whether a spit's worth a decade in prison, well, to be honest, that wouldn't be my initial predisposition.  Though I hardly want the guy on the outside either.

But there's nonetheless something that bugs me about how antiseptic this whole thing reads.  Everyone at the trial level plays it straight.  Everyone goes through the motions.  Applies the relevant rules.  Let's the guy speak and sits there quietly and does their job.  Ditto for the Court of Appeal.  Applies the rules and precedent faithfully.  Affirms in a straightforward opinion that recites the facts and rules.

But doesn't something nag at you about all of this?  We're just basically warehousing a guy.  There's no way he's actually getting any better in prison.  Indeed, I'll be stunned if he's not substantially worse.  I suspect, moreover, that a large part of what caused him to lose it is being locked up in the first place.  We're putting this guy in prison for another decade, and we know he's eventually going to lose it again and make another mistake, then we'll add another decade or two, then again, and again, and eventually the guy will die in prison and we'll put him in the ground.

No biggie.  Plenty more where that came from.  Next patient, please.

And we don't care.  Not one iota.  We don't actually care about the fact that this is a person.  One with serious problems.  We're not really even going to try to solve them.  We'll just start putting (as here) a bag on his face every time he takes a shower and we'll call that "success".  One more lost soul.  But one hidden behind large concrete walls we'll pretty much never peer behind, and even when we do, we will just do -- as the Court of Appeal does here -- our jobs.  No more.  No less.

Something about that just doesn't sit right with me.  Something just makes me feel that humanity is -- or at least should be -- better than this.

That this ain't the way it's supposed to be.

Thursday, September 04, 2014

U.S. v. Hardrick (9th Cir. - Sept. 4, 2014)

Judges Reinhardt and Noonan like kiddie porn.

That's (of course) not true.  But both of them write separate concurrences that -- while affirming the conviction here -- bemoan the way we treat this issue.  Judge Reinhardt says that these people have psychological problems and that incarcerating them forever isn't right (excepting only the people who actually produce the underlying material, who should rot).  Judge Noonan says that these people are often upstanding, otherwise-law-abiding citizens, and maybe we should publicize more highly the long sentences we often impose in an effort to deter misconduct.

At least in the Court of Appeals, kiddie porn is the crack cocaine of the 21st century.  Lots of people questioning whether we should have the sentences we do for mere possession.

U.S. v. Reyes (9th Cir. - Sept. 4, 2014)

Does a represented criminal defendant have a right to be present at sidebar conferences with the judge?

Sometimes, yes.

It's harmless error here.  And when the sidebar concerns only issues of law, the defendant can be left sitting in his chair (at least as long as the attorney's allowed to consult with him if counsel thinks it's necessary).

But during, for example, voir dire, when a juror's privately telling everyone why he might not be able to be fair, the defendant has a right to hear what's said.

So you gotta let him approach the bench alongside counsel.

Wednesday, September 03, 2014

U.S. v. Edwards (9th Cir. - July 31, 2014)

The Ninth Circuit's application of precedent in this case seems right.  When you've got a 911 call of shots being fired, and respond to the scene five minutes later and see a guy who tends to match the description of the shooter, I can't fault the panel for holding (as it does) that you're allowed to stop the guy.

I'll just add, however, that if four cops are allowed -- as the Ninth Circuit holds -- to draw their guns and order to the ground any black male between the ages of 17 and 26, and around 5'7 or 5'9, wearing a black shirt and grey pants they happen to spy in Inglewood; well, let's just say that'll result in a non-trivial number of innocent people being held at gunpoint.

Especially when, as here, the relevant black male is described as 19 or 20 years old, and the guy you take to the ground at gunpoint is 26.  And he's 5'11 instead of "between 5'7 and 5'9".

But close enough for government work, apparently.  And the dude ended up being a felon who had a gun.  So it's all good.

According to the Ninth Circuit, anyway.

Tuesday, September 02, 2014

FTC v. Grant Connect (9th Cir. - Aug. 15, 2014)

It takes real guts -- or stupidity -- to be a huge scammer and yet to file an appeal claiming that the FTC isn't allowed to make sure you don't scam additional people in the future.  But Kyle Kimoto gives it a shot.

Read what this guy did and you wonder (at least if you're me) why the guy's not in prison for even longer than he is.  Moreover, his arguments as to why the injunction against him is overbroad are not ones that strike a resonant chord with me.  If I had my way -- unconstrained by law -- the guy would be precluded from ever engaging in any business.  Ever.  Any.  Business.  He can work for someone as an employee if he'd like.  But the businesses he creates seem to be . . . troublesome.  Hence the prison time and multimillion dollar restitution awards.

So his claim that the limitations on his business activities are not perfectly tailored are not ones that exactly tug on my heart strings.

Levitt v. Yelp! (9th Cir. - Sept. 2, 2014)

It's perfectly legal for Yelp! to highlight (and repost) negative reviews of businesses and reduce their star ratings if these businesses refuse to buy advertising on Yelp!

So holds the Ninth Circuit.

Monday, September 01, 2014

U.S. v. Stewart (9th Cir. - July 31, 2014)

You'd normally think that the fact that your drug dealer is trying to rip you off increases his moral culpability rather than decreases it.  He's not only a drug dealer, but a thief.

But that's not the way the sentencing guidelines work.  Yeah, the guy here sold GHB.  But what he sold was such "bunk" -- the GHB was so diluted -- that it wouldn't really achieve the desired effect.

Which you definitely don't want in your drug dealer.  But which society is apparently pretty happy with.  Because we may well end up giving that guy a lower sentence.

None of which helps the defendant here, since he's a "career criminal" and the district court already made a substantial downward departure.  But, in the future, if you're thinking about whether to sell high-quality versus low-quality drugs, think the latter.  It may help you out if you get caught.

Just don't get shot by a frustrated customer.

It's Labor Day, after all.  Work smarter, not harder.

Friday, August 29, 2014

People v. Deluca (Cal. Ct. App. - Aug. 14, 2014)

If you're a registered sex offender, and sufficiently poor that you don't have enough money for a home, you're going back to prison.  Pure and simple.

Maybe not de jure.  But de facto.  Because you've got to register and tell the authorities every single place you "sleep, eat, work, or engage in leisure activities."  If you forget one, you go to jail.  If you wait longer than five days after changing a residence, you go to jail.  Your "residence" being defined broadly as any place you regularly reside; a curb, a bush, a shelter, anything.  Just like in this case.

You're going to screw up.  Inevitably.  Because it's an infinite hassle to tell the police every single spot in a city in which you ever hang out or "engage in leisure activities".  You're homeless, after all.  You move around.

So if they want to put you back in prison -- say, here, for another seven to eight years -- it's not a problem.  At all.  You'll have messed up at some point.  And back in you go.

Oh, one more thing.  You're a sex offender.  You're not popular.  They'll want you back in.

I don't know what the empirical data is on homeless sex offenders in California.  But my gut tells me that a huge portion of them -- huge -- are violated and put back in prison for failing to keep up with the constant reregistration requirements.  It's an easy bust.  Why not make it?

Rich sex offenders with homes stay out.  Poor sex offenders without 'em go back in.  That's basically the rule.

It's not that I don't get why people support sex offender registration.  I do.  But at some point, when we know that virtually everyone in a certain class of people (i.e., homeless) can't, and won't, comply with the onerous requirements we put on them, doesn't that just seem a little wrong?  Almost like we don't have the guts to simply sentence them to infinitely long prison sentences, so we instead give 'em a particular (long) sentence, let 'em out, then put 'em back in at our leisure.  With the "short" sentence as proof that we tried to let them rehabilitate themselves but they just weren't up to snuff.

Seems like something they're not going to look back on especially favorably in, say, 2114.

Thursday, August 28, 2014

People v. Garcia (Cal. Ct. App. - Aug. 28, 2014)

There's so much in this opinion that's really, really good.  As is typical for Justice Bedsworth.  Plus, it involves a fascinating issue -- whether it's relevant in a woman-on-girl molestation trial that the alleged perpetrator is a lesbian -- as well as a scintillating dynamic in this particular case of how the prosecutor used this information notwithstanding the trial judge's reluctance to/instructions about not letting it in.

In short, read the whole thing.  The Court of Appeal reverses the conviction -- though barely, I think -- and remands for a new trial, holding that what transpired here was prejudicial.

As I said, there's much in here with which I profoundly agree.  But let me nonetheless ask Justice Bedsworth (and the rest of the panel) what I think is amongst the hardest questions raised by this holding (though not addressed directly in the opinion):

If, as the Court of Appeal holds, sexual orientation is entirely irrelevant in a molestation trial, does that equally mean that a defendant in such a proceeding similarly has no right to introduce this evidence?  So, for example, if a homosexual male is accused of molesting a 15-year old girl, I take it he's not allowed to introduce any evidence about his exclusive attraction to males, right?  Despite the fact that this evidence may be overwhelming?  Not relevant.  At all.  Jury not permitted to hear it.

Seems troubling, no?

U.S. v. Nora (9th Cir. - Aug. 28, 2014)

Two police officers are driving along doing their job and see three guys standing in front of a house in a high-crime area.  The officers have, I presume, a gut feeling and decide to pull up in front of the house and try to talk to the two guys.  Which is fine.  Consensual contact.

In the seconds it takes the officers to pull around and get in front of the house, two of the guys have moved to the porch of the house, and another's in its yard, which is surrounded by a fence.  Okay.  They apparently moved.

The police start chatting, and one of the guys looks nervous, and it seems like he's trying to keep his right side hidden from the cops.  Seconds into the conversation, that guy suddenly spins around and starts to run inside the house, pushing past one of the other dudes on the porch.  At which point the officers see that the guy's holding a blue-steel semiautomatic handgun in his right hand.  The officers scream "Stop, police," but the guy with the gun (and one of the guys on the porch) continue into the house and shut the door behind them.

Now what to do?

The police don't just go barging in.  But they have just seen a guy with a gun flee from the cops into a home.  That's potentially pretty serious, no?  They call for backup.  Twenty officers come.  The house is surrounded.  A police helicopter arrives as well.  Bright lights are pointed on the house, and there's a standoff for twenty to thirty minutes, as officers call for the occupants to exit with their hands up.

Which they eventually do.  The police then search one of the bad guys, find some drugs on him, and he admits he's got more drugs in the house.  Plus they run a check on the guy and find out that he's got prior convictions, including being a felon in possession of a weapon.

So the officers gets a warrant to search the house.  Find guns, cash, and drugs.  Prosecution of the defendant follows.

Seems pretty straightforward, right?  Often times these things end in shootings.  Righteous or not.  Or barging into a house without a warrant.  None of that transpires here.  So what's the problem?

According to the Ninth Circuit, it's ordering the defendant out of the house.  No probable cause, Judge Watford holds.  Lots of evidence in the house is accordingly suppressed.

There's lots to say in favor of Judge Watford's opinion.  Possessing a loaded handgun in public is only a misdemeanor, he notes.  The home is a foundationally protected place, he rightly explains.  The police could have gotten a warrant in advance.  All true.

Something nonetheless makes me uncomfortable.  Despite the validity of each and every one of these points.

At a base level, there's a guy with a gun who's fled from the police.  That seems pretty serious.  To me, anyway.  Serious enough to shoot into the house?  No.  Serious enough to blast away at the guy as he's running inside?  Not then either.

But still serious.  Serious enough, my gut tells me, to tell him to come outside.  In strong language, even.  Including but not limited to a helicopter and bright lights.  Commanding him to come out.

Could the police have gotten a warrant?  Yeah.  But are we really going to compel 'em to do so?  To repeat:  There's a guy with a gun who's fled from police.  Maybe my intuitive sentiment is wrong.  But I sort of want this situation to be resolved expeditiously.  Plus, I can't help feeling that it's somewhat "wrong" that evidence gets tossed here when the police acted in what seems to me a pretty reasonable fashion.  Certainly as contrasted to what alternatives might well have gone now (e.g., someone shot and killed -- defendant and/or the officers).

So that's my sentiment.  For whatever it's worth.

P.S. - Note to Judge Watford:  I think the contemporary way to describe the locale at issue is "South Los Angeles," not -- as the opinion does in its third paragraph -- "South Central Los Angeles."  It's the same area, of course.  And since I'm somewhat who was clerking in L.A. and drove through the intersection at Florence and Normandie six days a week between 1991 and 1992 (but who, thank goodness, took the I-10 on the afternoon of April 29), I'm quite familiar with the locale.  But I'm also pretty sure that since the L.A. riots, people deliberately started calling the place its new name.

People v. Kent (Cal. Ct. App. - Aug. 27, 2014)

I love the California Court of Appeal.

Four weeks ago, I posted a lengthy critique of Justice Rylaarsdam's opinion that held that appointed counsel should not file Anders/Wende briefs raising "arguable but unmeritorious issues".  I ended the post by seeking input from others on the Court of Appeal (and elsewhere) on this issue, which is an important one.

Yesterday afternoon, Justice Aronson did precisely that.  Telling me -- nay, everyone -- his thoughts on the matter.  Disagreeing with Justice Rylaarsdam, and holding that appointed counsel should continue to file such briefs.

Justice Aronson articulates his reasons for that conclusion a little differently than I did.  But we end up in the same place.  He says that "[w]hile an argument may prove unmeritorious, that is for the court ultimately to determine," not counsel, and that's the heart of things.  As long as (in my view) the case raises a nonfrivolous argument, you should at least identify it.  Then it's the Court of Appeal's job to sort it out.

We've now got to opinions from the exact same division -- the 4/3 -- going opposite ways on an issue that comes up hundreds of times a year.  The California Supreme Court should grant review and make a final decision as to which position should prevail.  What you do as an attorney shouldn't depend on what panel you guess you'll draw.  Nor should the prevailing procedure necessarily be the one that's the "least common denominator" or the one adopted either internally (by you) or by an external organization (e.g., an appellate defender's officer) in light of the conflicting holdings of the Court of Appeal.  It's for the judiciary to say whether "arguable but unmeritorious" issues should be raised, as well as to interpret what we exactly mean by that.

And that's exactly what the California Supreme Court should do.

Wednesday, August 27, 2014

Alexander v. FedEx (9th Cir. - Aug. 27, 2014)

Judge Fletcher holds that FedEx drivers aren't independent contractors even though FedEx tries to make them ones.  Judge Trott, joined by Judge Goodwin, fully agrees with everything Judge Fletcher says.  But nonetheless writes separately to take FedEx's counsel -- O'Melveny & Myers -- to task for its brief.  Here's the first paragraph of Judge Trott's concurrence:

"The resolution of this case as a matter of granting summary judgment to the drivers is far from simple, as the length and complexityof Judge Fletcher’s meticulous opinion demonstrates. It has not been made easier by FedEx’s brief, which, by quoting part of a sentence from an admission — but not all of it — creates a rosier picture of the drivers’ state of mind than the record supports."

Judge Trott then goes on to talk about the importance of not using out-of-context quotations,"the regrettable lesson that the basic information we require to resolve a controversy is not always found in the parties’ briefs, but in the ungilded record itself," and his suggestion (to O'Melveny & others) that "[l]awyers would be well advised not to elide the truth, the whole truth, and nothing but the truth."

Not something you really want the Ninth Circuit to say as a commentary on your (losing) brief.

People v. Lujano (Cal. Ct. App. - Aug. 26, 2014)

The trial court -- Judge Koosed in Riverside -- holds that the relevant searches were valid under the Fourth Amendment, "colorfully" stating:  "They’ve got consent up the ying-yang here."

The Court of Appeal respectfully disagrees.  At least with respect to the detention inside the home.

P.S. - I wondered if any other appellate opinion had ever previously employed the term "up the ying-yang," and as it turns out, there are indeed three of 'em.  One even from California, albeit unpublished (in 2010).  Two others, both from Massachusetts, in the 90's.  All of 'em quoting the trial court or something else below.  Because, I think, appellate tribunals tend not to use the term "up the ying-yang" themselves.

P.P.S. - Oh and, by the way, the related term "up the wazoo" has only been used in a published appellate decision once.  In the Ninth Circuit.  In 2010.  By someone you can probably guess.  Not at all quoting anything below, but rather using it himself.  (Arguing, in a concurring opinion to an en banc opinion, in relevant part that wife-beaters, "though they might use a golf club or meat cleaver to threaten their mates, aren't likely to be packing such implements up their wazoos.")

Tuesday, August 26, 2014

People v. J.S. (Cal. Ct. App. - Aug. 26, 2014)

I'll not comment on the substance of this opinion, other than to articulate my view that the Court of Appeal's opinion is absolutely right, and that it'd have been a travesty if the relevant procedural rule was the one advanced by the Attorney General.  For exactly the reasons Justice Hollenhorst identifies.

I'll instead share a paragraph from the middle of the opinion.  Which for some reason made me break out in a visible smile:

"The Attorney General makes much of several decisions infelicitously referring to petitions pursuant to section 2966, subdivision (b), as being 'rendered technically moot' by the expiration of the initial commitment period. (Merfield, supra, 147 Cal.App.4th at p. 1075) The Merfield court, however, like the cases it cites, acknowledges even where the initial commitment term is over, the initial certification an offender qualifies as an MDO has continuing ramifications where the offender is subject to recertification. (Ibid.) In other words, 'technically moot' means, apparently, not moot at all, if by 'moot' we mean having no further practical impact."

Too funny.

Medina-Lara v. Holder (9th Cir. - Aug. 26, 2014)

That didn't take long.

The Ninth Circuit holds oral argument in this case yesterday morning.  It's the last case on the calendar.  Here's the oral argument.

The panel listens to oral argument, steps back, and then decides the case and assigns an opinion to be prepared.

Then, minutes later, the panel issues the following order:

"For reasons to be set forth in a disposition which will follow in due course, we grant Medina–Lara’s petition for review because the government did not meet its burden to show that his California convictions constitute predicate offenses for purposes of removability under 8 U.S.C. § 1227(a)(2). We, therefore, order the United States to release Medina–Lara from custody immediately."

Petitioner's been detained for five years.  Not a day longer.  Petitioner's counsel ends his argument with a request for a short-form order, and that's exactly what he receives.

Speedy justice.

Pedro v. City of Los Angeles (Cal. Ct. App. - Aug. 25, 2014)

You sort of wonder when you read this opinion why the LAPD is making such a big deal out of Officer Jason Pedro's decision to drive a friend of his to a medical appointment in an unmarked police car while he was on duty.  Should he do that?  No.  Should he have been a bit more courteous to the person with whom he interacted on the sidewalk outside the clinic?  Sure.  Should he have been more, shall we say, "forthright" in his statement to a fellow officer about what he was doing there?  Absolutely.

But the guy's been a cop with the LAPD for 15 years.  Why such apparent excitement about dragging the guy through a Board of Rights hearing and getting that guy suspended from his job?  Sure, I'd love to think that he LAPD's that serious in every single case of alleged misconduct.  But somehow, I doubt it.

Though maybe I get what's going on a little bit more once I get to page 9 of Justice Croskey's opinion. Which reads:

"[T]he board believed that [Officer] Pedro was not completely truthful in describing his platonic relationship with the minor, who apparently was 16 years old at the time of the incident, or in stating that he did not know either the nature of her visit to the clinic or that abortions were performed there."

Yeah.  Now I get it.  You drive your sixteen-year old "friend" to an abortion clinic twice while on duty and in uniform.  Allegedly telling a fellow officer who spots you there that you're "working the Gang Unit in Detectives and was conducting a follow up with a victim.”

Now I can sort of see why the LAPD might make kind of a big deal about that.

Though Officer Pedro gets entirely off.  On what the police generally call a "technicality" as applied to perps but that becomes an extraordinarily important procedural limitation was applied to one's self.

Monday, August 25, 2014

Murphy v. Sloan (9th Cir. - Aug. 25, 2014)

My starting disposition is to really not want parents to "kidnap" their kids from other countries and bring them back to the United States.  If they're in, say, Ireland, and going to school there, I usually think that a parent who takes the kid back to the United States to stay without the affirmative consent of the other parent has probably done something wrong.

So I was somewhat surprised at my reaction to this opinion by Judge McKeown.  Which seems to me a terrific example of an opinion that's correct on both doctrine and justice.  And which reaches a result that's contrary to my initial predisposition.  Entirely persuasively.

The opinion is a wonderful mix of legal analysis, compassion, and tact.  Classic Judge McKeown.  I was left with the definite impression that both the trial court as well as the Ninth Circuit got this one right, notwithstanding the fact that it's indisputably a difficult case in which to balance the equities.

I also noticed that the respondent in this case -- the Father -- represented himself in pro per.  You do not usually see that done.  Successfully, anyway.

But Father isn't your usual pro per.  One hint that this isn't an impoverished family is that Father at one point bought a second home in Mill Valley in order to try to make things work out.  And although Judge McKeown's opinion never mentions that Father has any connection to the law, a little digging reveals that he's not only legally sophisticated, but a partner at a not-insignificant San Francisco law firm.

Which in turn identifies one final happenstance.  Father is a partner at MoFo SF.  The trial judge -- Jon Tigar -- was a former associate at MoFo SF.  With whom I worked when I was a summer associate at . . . MoFo SF.

P.S. - I thought that Judge Tigar was an incredibly kind and talented person when I worked with him those many years ago.  You can't ask for more compassionate, smart adjudication than you're likely to get from Judges Tigar and McKeown.

In Re A.E. (Cal. Ct. App. - Aug. 4, 2014)

Do not spank your two-year old child with a belt.  Ever.  She's two.

I don't care if this was the fourth time she was misbehaving in an hour.  I don't care if she was talking back to your wife, or "acting out," or even that she said "No" and tried to kick you in the leg.  I'll say it once more:  She's two.

Are these things okay for a child to do?  No.  Is discipline appropriate?  Absolutely.  Beyond a shadow of a doubt.

Should you spank this child?  On that subject, I readily concede, people disagree.

But do not spank a two-year old child with a belt and leave marks.  Ever.  On that issue, I believe there should be no dispute.  Even admitting -- as I must -- that some would indeed dispute this fact.

All that said, I also say this to DCFS (and the trial court):  Don't remove a parent from the home solely because he once disregarded the above.  Not when, as here, there's no other misconduct, no drug use, no arrests, no mental illness, no nothing.  That's overboard.  Way.

There may one day come a time when the spanking of a child is considered child abuse.  But that day is not today.

Friday, August 22, 2014

People v. Baniani (Cal. Ct. App. - Aug. 22, 2014)

Perhaps I've been persuaded by the de facto status quo.  But if the defendant in this case isn't entitled to present (as he did at his first trial) a defense under the Medical Marijuana Program Act, I don't know who is.

The jury at his first trial split evenly as to whether to convict him.  The judge at his second trial didn't allow the MMPA defense, and the jury convicted him on one count but hung on another.  Clearly the availability of the MMPA defense made a big difference.

The Court of Appeal reverses his conviction.  He should have been allowed to present his defense.

Thursday, August 21, 2014

People v. Lucas (Cal. Supreme Ct. - Aug. 21, 2014)

This opinion is difficult to get through.  Not merely because of its length.  It recounts a brutal -- truly brutal -- series of crimes.  Profoundly disturbing.

I'll skip over the overwhelming majority of the stuff.  Though I'll mention briefly that I'm not too psyched about the prosecution's closing argument, and the California Supreme Court's theory that one can meaningfully distinguish between impermissible references to the Bible in a death penalty case versus permissible references (e.g., that Moses says it's okay) seems pretty weak to me.

I'll directly mention only something that appears on page 223 (!) of the opinion.  Chief Justice Cantil-Sakauye says that when the judge -- after the jury said it was deadlocked -- twice told the bailiff to inspect the jury deliberation room, and the bailiff reported that all the guilt phase exhibits remained in the file drawers (i.e., hadn't been reviewed by the jury), at which point the trial judge responded to this report by giving a supplemental instruction to the jury, that process did not "intrude upon the jurors' mental processes."

I'm not sure how someone can credibly say this.  Of course it intruded upon the jurors' mental processes.  The bailiff was specifically reporting on what the jurors were looking at.  S/he wasn't just making sure that the jury had enough food or was keeping the place clean.  Similarly, the trial judge clearly cared what evidence the jury was inspecting.

The only way to intrude more on the jury's thought processes would be to directly eavesdrop on them.  Of course that's what you're doing.  To say otherwise is, in my view, simply not credible.

Maybe the judge doing so didn't matter.  That might well be a plausible holding.  But to say that it's okay to take a look at what exhibits the jury's viewing in its deliberations seems silly.  On that theory, it's presumably okay to contemporaneously videotape the jury's deliberations as well, as long as you keep the playback on mute.  No way.

The trial judge thought the jury was confused.  Neither the judge nor the bailiff should have invaded the jury room.  But they did, albeit in good faith.  That invasion might not have made a difference.  But an invasion it was.

That's what pages 223-224 of the opinion should have said.

Martinez v. Aero Carribean (9th Cir. - Aug. 21, 2014)

It's fitting that two of the three members of this panel -- including the author of the opinion -- are former law professors.  Because the issue is straight out of a first-year civil procedure exam:

Does personal jurisdiction based upon "tagging" (i.e., personal service) apply to service upon a corporation?

The Ninth Circuit says "No."

Read the opinion and drift fondly back to those halcyon days when you were a first-year law student.

Wednesday, August 20, 2014

Pacific Shores Hospital v. United Behavioral Health (9th Cir. - Aug. 20, 2014)

Want to know why many people hate insurance companies?  Stuff like this.

United Behavioral Health kicks a severely anorexic, 88-pound woman who's planning to starve herself to death or overdose on laxatives out of the hospital because she's "healthy enough to be discharged," despite the manifest untrue of that statement and the vociferous objection of the nurse in charge of the patient's care.

Intolerable.  Seriously intolerable.

In Re A.R. (Cal. Ct. App. - Aug. 12, 2014)

Please do not drive under the influence of alcohol and methamphetamine.  If you elect to ignore this request, please do not do so with your seven- and five-year old daughters in the vehicle.  At a bare minimum, if you do all of this -- if you're driving your small children around while drunk and tweaked -- please put them in seat belts.

I'm not even going to mention the subsequent allegations from your daughters that you sexually abused them.  Or the domestic violence or other allegations.

That'd be piling on.

P.S. - Mom's not exactly a peach either.  Which is why the trial court takes away the kids, and the Court of Appeal affirms.

Tuesday, August 19, 2014

Williams v. California (9th Cir. - Aug. 19, 2014)

I sometimes find it refreshing when the Ninth Circuit adopts the district court's opinion as its own.  It's a nice hat-tip to the hardworking district court judge.  Plus, when there's no need to reinvent the wheel, why do so?

So when the Ninth Circuit this morning adopted as its own an opinion by District Judge King, I thought it nice.

Just two minor points, however:

(1)  If you're simply adopting the district court's opinion, why does it take so long?  Oral argument in this case was in October 2013.  If the district court's opinion is sufficiently complete and self-evidently correct to justify adopted in in toto (notwithstanding the appellant's arguments on appeal), I don't know why it takes nearly a year to adopt the thing.

(2)  I know that it's old-fashioned to use actual books these days.  But isn't there something a little lame about attaching the district court's opinion as a Westlaw printout?  Since the thing's formally published (at 990 F.2d Supp. 1009) already, I might have actually run down to the library and made a copy of it.

During a couple of minutes of those nine months or so.

Jones v. Taylor (9th Cir. - Aug. 19, 2014)

There were three witnesses to a crime that Scott Jones allegedly committed.  No other evidence.  At all.  But the jury believed the three witnesses, and Jones was convicted.  Fair enough.

Years later, each of these three witnesses recanted, and testified under oath that Jones did not, in fact, commit the offense, and that their contrary testimony at trial was erroneous.  The district court held that this new development entitled the defendant to habeas relief, because it created a substantial probability that Jones was, in fact, innocent of the offense.

The Ninth Circuit reverses.

Judge Tashima holds that a jury would still probably find Jones guilty -- beyond a reasonable doubt -- even when every witness testifies he's innocent and there's no evidence of guilt beyond the testimony of those three witnesses.

Interesting theory.

City of Pasadena v. Superior Court (Cal. Ct. App. - Aug. 14, 2014)

When a veritable hurricane strikes the city (as transpired in L.A. on November 11, 2011 -- a fact that I think should be subject to judicial notice), you can potentially sue the City when that wind blows down a tree into your house.

So holds the Court of Appeal.

Monday, August 18, 2014

People v. Merriman (Cal. Supreme Ct. - Aug. 18, 2014)

Here's an 141-page opinion by Chief Justice Cantil-Sakauye.  Can you guess what it's about?  The result?

Right.  Death penalty case.  Unanimously affirmed.

Friday, August 15, 2014

Weaving v. City of Hillsborough (9th Cir. - Aug. 15, 2014)

This is a great case.  Says a lot.  About police officers, the ADA, and legal doctrine.

But I fear that its length -- 35 single-spaced pages -- might deter people from wading through it.

So I'll summarize the Ninth Circuit's holding in a single sentence:

Being an asshole isn't a disability.

Even if you say that you're a jerk because of ADHD, and being a jerk gets you fired (no small task for a cop, I might add), that's not an excuse.  Much less something that entitles you to three quarter of a million dollars.

Which is what the jury awarded this former officer, and which is what's reversed by the Ninth Circuit.

There are great examples in the opinion of just how "difficult" it was to work with Officer Weaving.  Read the whole thing for a great view into the workings of someone who, clearly, lots of people hated.

Judge Callahan dissents.  She says that "[t]he majority may not like Matthew Weaving," but that's this is not a valid reason for disturbing the jury's verdict.

There's definitely a fine line between personality and circumstances that might generate that personality.

But ADHD or no, my view is that you've got an obligation not to be a complete bunghole at work.  At least when you're capable of acting professionally.  Which Officer Weaving apparently did with those above him.  But for those subordinate to him; well, read some of the e-mails.  Classic.

Carlton v. Dr. Pepper Snapple Group (Cal. Ct. App. - Aug. 14, 2014)

No one comes out looking good in this one.

Not the plaintiff.  He gets a text message on his phone that shows a man sitting on a toilet with his penis stuck between the base of the toilet and the seat.  Which he proceeds to show to everyone else who's sitting around the conference table at a work meeting.

Not bright.  I don't care if you think it's funny.  I don't even care if it is.  Here's a little guideline I like to follow:  Don't show pictures of penises at work.  Easy to remember.

Plaintiff gets fired, and sues.

Plaintiff's counsel doesn't come out looking so great either.  I'll not mention all the pleading problems, which the Court of Appeal discusses at length.  Or the failure to timely file an opposition to a demurrer. I''ll instead simply quote some of plaintiff's discovery responses.  For which he gets sanctioned:

"First, in the employment law form interrogatories, defendants asked, “Do you contend that the EMPLOYMENT relationship was not ‘at will’? If so: [¶] (a) State all facts upon which you base this contention; [¶] (b) State the name, ADDRESS, and telephone number of each PERSON who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS that support your contention.” [Plaintiff] responded, “Yes.”

Second, also in the employment law form interrogatories, defendants asked, “Do you contend that the EMPLOYMENT relationship was governed by any agreement—written, oral, or implied? If so: [¶] (a) State all facts upon which you base this contention; [¶] (b) State the name, ADDRESS, and telephone number of each PERSON who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS that support your contention.” [Plaintiff] responded, “Yes.”

Not good.  Not good at all.  Ditto for the fact that plaintiff "did not file any opposition to the motions to compel."  Yeah.  That's not going to work out well for you.

Don't think that defendant's counsel comes out perfectly either.  They get discovery sanctions imposed.  But they're reversed on appeal.  Because guess what?  Defendants failed to move to compel within the 45-day deadline.  And, despite defendant's arguments on appeal, you can't get sanctions -- even for absurd discovery responses -- if you blow the deadline.

I have a copy of a cartoon from the New Yorker on the door to my office that says:  "If someone is worth suing, he's worth suing well."  This case doesn't exactly comport with this maxim.

Thursday, August 14, 2014

People v. Tom (Cal. Supreme Ct. - Aug. 14, 2014)

When you accidentally hit another vehicle, you'd better instantly utter the words "I hereby invoke my Miranda rights."  Otherwise, in a subsequent prosecution for manslaughter, the prosecution can use your silence -- the fact that you didn't affirmatively ask about the occupants of the other car -- against you at trial.

So holds the California Supreme Court in a 4-3 opinion.

Colwell v. Bannister (9th Cir. - Aug. 14, 2014)

I'm just going to quote from this one.  Without comment.  Here are the first two paragraphs of Judge Silverman's opinion:

Plaintiff John Colwell, an inmate in the Nevada Department of Corrections, is blind in one eye due to a
cataract. It is undisputed that his treating doctors recommended cataract surgery and that the surgery would restore his vision. However, the surgery was denied by NDOC supervisory medical personnel because of the NDOC’s 'one eye policy' – cataract surgery is refused if an inmate can manage to function in prison with one eye.

We hold today, as numerous other courts considering the question have, that blindness in one eye caused by a cataract is a serious medical condition. We also hold that the blanket, categorical denial of medically indicated surgery solely the basis of an administrative policy that 'one eye is good enough for prison inmates' is the paradigm of deliberate indifference. We reverse the grant of summary judgment in favor of the prison officials and remand for trial."

Judge Bybee dissents.

Enough said.

Nguyen v. Holder (9th Cir. - Aug. 14, 2014)

The Ninth Circuit harbors terrorists.

I know you're more likely to read that headline on Fox News than here.  But it's true.  Today, the Ninth Circuit harbored a terrorist.  It held that even though the guy plotted to blow up buildings and engaged in criminal conduct involving moral turpitude, he's entitled to stay illegally in the United States.  And on that basis reversed the findings of the IJ and BIA below.

Expect a whirlwind of protest from the usual suspects.

Or maybe not.  Because the thing is, the kind of people who tend to hate the Ninth Circuit and others who are "soft on terrorism" are also the kind of people who often sort of like these kind of terrorists.

Because the terrorist here is Vinh Tan Nguyen.  A prominent member of the "Government of Free Vietnam".  Who fled that country in 1983 and who's been fighting against that communist nation ever since.  And, yes, he planned to blow up an embassy in Manila.  But it was the embassy of Vietnam.  A country that lots of people who hate terrorists also happen to hate.

Plus, the reason the Ninth Circuit lets Mr. Nguyen stay is because it finds that he's likely to be tortured by the government of Vietnam if he's deported to that country.  There's a dispute about whether the government of Vietnam really tortures people nowadays; the IJ and BIA based their decision on the views of a retired Harvard Law School research fellow who said that Vietnam wouldn't torture a guy like this because it would harm their international reputation, but the Ninth Circuit didn't find that testimony credible in light of the contrary evidence.

Hence Mr. Nguyen's eligible for relief from deportation under the Convention Against Torture.

Judge Tallman dissents from the CAT holding.  I read his dissent as basically admitting that he thinks that Mr. Nguyen is likely to be tortured.  But the standard is not whether the BIA's finding is correct, but instead whether there's "substantial evidence" to support that view.  Judge Tallman thinks the guy from Harvard's testimony is "substantial" enough.  Even if its weak.

The majority disagrees.

As for the politics of the whole thing, personally, I don't like sending people back to be tortured.  Regardless of whether I like them.  Or their cause.  So my reaction to this case focuses purely on the evidence.  With a thumb on the scale -- and I'll forthrightly admit this -- towards not sending back a guy to be tortured.

But for some others, what matters is the "talking point".  The cause.  Who one likes and who one hates.

But in this one, that gets confusing.  Some hate the Ninth Circuit.  But they love freedom fighters.  But they hate terrorists.

For that reason, this one may get less play in the places that typically come to mind when one thinks of reactions to Ninth Circuit opinions that grant relief from deportation.

Wednesday, August 13, 2014

People v. Ebertowski (Cal. Ct. App. - Aug. 13, 2014)

You tell the police you're with Seven Trees Norteno, threaten him, tell him he's "fucked with the wrong gangster," resist arrest, tell him you're going to sexually assault him, his wife, and his daughter, and pee repeatedly on the floor of the police station.  All this and you're . . . on MySpace?

Social media makes strange bedfellows, apparently.

Chubb & Son v. Superior Court (Cal. Ct. App. - Aug. 12, 2014)

Tracy Lemon is an attorney in San Francisco who works for a law firm associated with the insurance company Chubb.  Ms. Lemon contends that she was fired from her job "because she is a person with disabilities, requested accommodation, and took medical leave."  Chubb contends that Ms. Lemon was fired for "fraudulent and dishonest conduct in connection with misrepresentations [] she made in a declaration filed with the San Francisco County Superior Court in September 2011 . . . [that] sought relief for her failure to timely file opposition papers to a motion for reconsideration."

Justice Needham's opinion involves attorney-client privilege issues, and it is very comprehensive.  Things definitely get complicated when attorneys get fired and one party or another wants to use (or get access to) privileged communications to prove its case.

Meanwhile, on the merits, the contrast between the positions of the parties are fairly stark. It's of course important not to fire someone on the basis of a disability.

It's also important not to lie to a court.

Tuesday, August 12, 2014

Nordstrom v. Ryan (9th Cir. - Aug. 11, 2014)

You can go ahead and read the dispute between Judge Silverman (who writes the majority opinion) and Judge Bybee (who dissents) about whether it's a violation of the Sixth Amendment right to counsel for a prison guard to open and read a letter containing privileged communications between a prisoner and his attorney.  Judge Silverman says "Yes."  Judge Bybee disagrees.

Both sides have their points.  Which is in part why the opinion and dissent top out at 34 single-spaced pages.

My own reaction to the dispute is exactly the opposite of Judge Bybee's.  He ends his dissent by saying:

"The majority is correct that prisons are a tough place. Maj. Op. at 4. And because of the majority’s decision today, they are about to get a little tougher. Prison officials are 'responsible for maintaining internal order and discipline,' as well as 'securing their institutions against unauthorized access or escape.' Martinez, 416 U.S. at 404. To protect individuals in and outside the prison, prison officials must be allowed to read legal letters to the extent necessary to detect illegal conduct. By preventing reading in this limited sense, the majority has hamstrung prison officials’ ability to do their job."

With respect:  Poppycock.

Everyone concedes that prison guards are allowed to "scan" letters for contraband or other illegal plans and the like.  The dispute's simply about whether they're allowed to "fully" read the letters.  The only reason this case got to court was because the guard here was so pissed off by the prisoner's claim that his legal mail was private that the guard essentially read the letter in detail in front of the guy.

The stark reality is that -- contrary to Judge Bybee's excited claim in dissent -- the Ninth Circuit's opinion in fact means absolutely nothing.  Absolutely.  Nothing.  Yeah, doctrinally, there's a distinction between a guard "scanning" mail and "reading" it.  I get it.  The Ninth Circuit says a guard's allowed do the former but not the latter.  I get it. And, yes, I totally know the difference between "scanning" a letter and "reading" it.  Just like I daily know the difference between "scanning" an opinion and "reading" one.  They're distinct.

But we're in a real world, folks.  And in the real world, guards who are allowed to "scan" a letter can -- and hold on if this shocks you -- "read" it whenever they feel like it.  And there's absolutely, totally nothing that a federal appellate court can do about it.  The difference is perhaps meaningful on a doctrinal level, but in terms of practical enforcement, the difference is zero.  Once you let the guard open the letter and take a look at it, the game's over.  Whether it's a "scan" or a "read" is, for all practical purposes, entirely up to the guard.  As it's not like the Ninth Circuit, or anyone else, is looking over the guy's shoulder.  True, if the guard admits that he fully read the letter, instead of scanning it, he's in trouble.  I'm sure those concessions are going to happen all the time.  Not.  Absent a confession, it's a distinction without a practical difference.  At all.

The majority opinion doesn't "make prisons harder" or "hamstring" guards in any material way.  At all.  It just tells them what they need to say.  And/or pretend to do.  That's it.  It's a kabuki show.  Nothing more.

Which doesn't mean the majority opinion is valueless.  We care about the Sixth Amendment.  We want to get it right.  We want to make the appropriate legal rules.

But let's not pretend we're doing more than we are.

On either side.

The real world impact of this decision is zero.  Guards will scan letters when they feel like it.  And will read letters when they feel like it.

And there's not a thing this opinion can do about it.

People v. Quinones (Cal. Ct. App. - Aug. 11, 2013)

My predominant reaction to this opinion was one of nostalgia.  Busted for possessing heroin.  It seems so '70s.

Sure, the stuff is (sadly) making a comeback.  Among the yuppie crowd, apparently.  Or whatever they're called these days.  Hipsters, I think.  (Or is that so '00s?)

Plus, it's not like Humberto Quinones was out slinging the stuff in the modern era.  He was busted back in 1996.  It's just that after twenty-plus years in prison, he'd like to get out.  Sentenced as a three-striker to 75 years in prison, he'd like relief under Proposition 36.

No dice.  He had a loaded gun in his waistband at the time.  That keeps you in prison forever.

Which means that Quinones fades into history.  Like so many other memories.

Friday, August 08, 2014

Loos v. Immersion Corp. (9th Cir. - Aug. 7, 2014)

This is absurd.

I could perhaps get on board for most of the opinion.  And I understand that the last part is consistent with -- or at least analogous to -- a decision of the Eleventh Circuit.

But that doesn't make it right.

A publicly-traded company reports certain revenues during various quarters.  Everyone trades as if those revenues are real.  Then, one day, it announces that it's conducting an "investigation" into those revenues.  It says:  "[T]he Audit Committee of the Board of Directors of Immersion Corporation
(“Immersion”) is conducting an internal investigation into certain previous revenue transactions in its Medical line of business. The investigation is being conducted with the assistance of outside counsel. The Audit Committee has not yet determined the impact, if any, to Immersion’s historical financial
statements. As a result of this investigation, Immersion may discover information that could raise issues with respect to its previously-reported financial information, which could be material. Immersion will not be able to evaluate the full impact of the aforementioned matters until the Audit Committee completes its review and further analysis is completed."

Everyone and their mother knows exactly what that means.  The stock tanks 23% the same day.

The Company thereafter reports the "results" of that investigation.  Which reveals exactly what anyone with a brain already knew as a result of the initial disclosure.  The Company had indeed improperly reported revenue.  Case closed.

Stockholders sue.  Assume -- as the Ninth Circuit does (and must) -- that the stockholders can prove that the officers and directors of this company knew that they were cooking the books; i.e., that there's scienter.  Can the stockholders sue?

The Ninth Circuit says "No."

Why not?  Because according to the Ninth Circuit, there's no "loss causation".  Sure, the stock tanked, wiping out millions in company value.  But it tanked only due to an "investigation," not the reporting of actual fraud.  "An investigation is merely an investigation."  So the loss was only caused by the report of the investigation.  Not a report of actual fraud.  Hence the fraud didn't cause any losses.


There was an investigation because there was fraud.  And the entire universe of investors knows that by the time a company publicly reports that they're investigating whether revenue has be improperly booked, the company knows darn well that revenue has indeed been improperly booked.  Want proof?  That's why the stock price tanks.  Because if an investigation was "just an investigation," no one would care, right?  But they do.  Know why?  Because people with money on the line are much, much, much smarter than people in black robes who might say "Oh, it's only an investigation, no actual fraud."

Want more proof?  Go ahead and list all those times you remember in the last half-century in which a company reported that it was conducting an investigation into financial misreporting and then later said that the investigation had concluded that everything was okay.  Go ahead.  I'll wait.




Yeah, good luck with that.  How many could you recall?

Thought so.  Zero.

When a company stock tanks because it's "investigating" misreporting, everyone knows what that means.  A reality amply indicated by the reality of the stock price.  To close one's eyes to that is to blind oneself to reality.  As well as to allow deliberate misconduct to knowingly go unpunished.

Under this Ninth Circuit rule, going forward, no smart company is ever going to be found liable for misreporting.  All they have to do is warn people first.  Indeed, warn 'em in the worst possible terms.  When you find out -- or realize that others are about to find out -- that you've cooked the books for, say, $50 million, go ahead and report that you're conducting an "investigation" into whether the books have been cooked, and make the warning as dire as possible.  Your "investigation" has, of course, not yet concluded.  Nothing's "official" yet.  But "maybe" there's $50 million in fake revenue. Or even $100 million.  Or even $1 billion.  You don't know yet.  But fear not.  You'll find out, and then let everyone know.

Sure, your stock price will plummet.  People will lose millions.  But fear not.  Thanks to the Ninth Circuit, you're not liable.  Even if you deliberately engaged in fraud.  Because the stock tanked only upon an announcement of the "investigation".  Presumably, as long as the stock price doesn't tank even further once you announce the fraud, there's no "loss causation" anymore.

And you're not an idiot.  That's not going to happen.  Because you made the "non-actionable" announcement so scary that the actual "results" of the investigation will actually seem pretty mild by comparison.  Heck, the stock price might even go up.  Which the Ninth Circuit will conclude means that the market actually liked the fact that you engaged in fraud.  Right?  Because the losses were the result only of an "investigation", whereas the actual "fraud" caused the stock price to rise.  See?  No damages at all from the actual fraud.


Look, there may be extraordinary circumstances in which a stock price drop at the announcement of an investigation isn't properly actionable.  Imagine, for example, a stock that dropped 25% upon the announcement, but then when the results were announced, it bounced back 30% (or 24%).  Okay.  I agree that might establish that the actual "fraud" wasn't material.  Because if (after adjusting for market forces) a stock was trading at $25 before anyone knew of any alleged fraud, and $26 (or $24.99) after the fraud was finally and completely revealed, then, yeah, that reflects no loss causation.

But the Ninth Circuit does not say that's what transpired here.  It instead simply holds that there's no loss causation from an announcement.  Period.  Nothing about subsequent market performance.  No data about subsequent stock movement.  Nothing.

So the way virtually every observer (and court) is going to read this opinion is to have it stand for the proposition that announcement losses aren't recoverable.  That's wrong.  Flatly wrong.  Announcement losses are recoverable.  They're the "result" of the fraud.  At least presumptively.  How do you know?  The same way the market knows.  Because the market knows that "investigation" means "fraud".  Or at least a high probability (indeed, in reality, a near certainty) thereof.  Which is why the stock tanks.

Can that presumption be rebutted?  Sure it can.  Just like lots of other things (e.g., the fraud on the market theory) can be rebutted in this area.  So if the stock price rebounds upon the disclosure of the actual results -- adjusting, again, for market conditions and other changes -- then, yes, there may well be no loss causation.  Or, alternately, it might reduce damages.  So, all other things being equal, if a stock's at $30, it drops to $10 upon the announcement of an "investigation", then rebounds to $20 once the results are revealed, the losses are $10 a share ($30 minus $20), not the full $20 a share the stock dropped on the announcement.  That's the right rule.

Any other rule immunizes misconduct.  Any rule that says that losses on an announcement don't matter because it's "only an investigation" -- mere "speculation" of misconduct -- is wrong.  Clearly wrong.  In a way that really, materially matters.

So I'd be fine with an opinion that says that announcement drops don't matter when the stock bounces back completely (after adjusting for all other events) upon the subsequent disclosure of the fraud.  I'd also be less vociferous if the Ninth Circuit merely held that it was the plaintiff's burden to prove the absence of a future bounceback and that that burden wasn't met here (if, indeed, it wasn't).  (Though, for me, the presumption should be that the market's contemporaneous reaction was accurate, and the defendant should have the burden to prove otherwise.)

But that's not what the current opinion says.  Far from it.  It instead articulates a powerfully pernicious, and demonstrably erroneous, rule.