Thursday, October 23, 2014

Williams v. Swarthout (9th Cir. - Oct. 23, 2014)

Judges Noonan and Reinhardt are extraordinarily concerned about fairness.  Deeply, profoundly, and sincerely.  In every case, including but not limited to (and perhaps exceptionally in) criminal cases.

So when the trial judge mistakenly tells the jurors that the defendant has pled guilty, the prosecution and the court reporter notice this error but says nothing, and one juror concedes during the trial that this error made her -- and perhaps others -- essentially "space out" during the trial because it didn't look like the trial made a difference any more, well, Judges Noonan and Reinhardt care.  They vote to grant the defendant a new trial.

Judge Murguia, by contrast, dissents.  She wouldn't grant relief.  Especially in -- as here -- an AEDPA case.

You'll have your own view as to whether the majority or the dissent has the better of the argument.  I am of the belief that a majority of the justices on the Supreme Court -- perhaps even all of them -- are not as similarly concerned as Judges Noonan and Reinhardt about fairness.  Including but not limited to -- and perhaps especially in -- AEDPA cases.

So this one, I think, may well end up in yet another Supreme Court bench slap of the Ninth.

Time will tell.

U.S. v. Bell (9th Cir. - Oct. 22, 2014)

Defendant represents himself at a criminal trial.  The prosecution gives a closing argument.  The district judge never asks defendant if he wants to give one; instead, he simply moves on, and starts reading jury instructions.

There's a Sixth Amendment right to make a closing argument on your own behalf at a criminal trial.

Whatcha think?

For me, Judge Hawkins hits the nail on the head when he says:

"There is a certain value in saying what is necessary and no more. Here, although I have no quarrel with the bottom line result, I am concerned that the majority goes further than needed in announcing, for the first time anywhere, that a pro se criminal defendant has no right to be advised of the opportunity to present closing argument.

I agree, given the litigation history of this case, that the failure to ask Raymond Bell if he wished to make a closing statement to the jury was not error. Certainly the better practice would have been to ask, particularly in the circumstances of this case where the district court urged the jury to listen carefully to the arguments of the prosecution and Bell’s represented co-defendant who both proceeded to make arguments attempting to undermine Bell’s case.

I would affirm, but on the narrower grounds that Bell’s non-participation during the course of the trial and his failure to object or request argument effectively waived his right to make a closing argument. I would not say, as I think the majority does, that a defendant in a criminal case, pro se or otherwise, need not be advised of an opportunity to make closing remarks to the jury."

But Judge Gould, joined by Judge Graber, feels otherwise.

Wednesday, October 22, 2014

Lofton v. Wells Fargo (Cal. Ct. App. - Oct. 22, 2014)

The trial court said that it was "very, very troubled" by the events that transpired in this class action case, stating that he thought that "[i]t appears to me [that] there has been egregious misconduct and bad faith on the part of ILG [Initiative Law Group]."

After reading this opinion, I gotta say, I'm profoundly -- profoundly -- troubled as well.  And the Court of Appeal doesn't seem particularly happy either.  Affirming the trial court's decision below.

You've got to read all the facts for details.  They're fairly shocking allegations about how lawyers at the Initiative Law Group basically stole from their clients.  Again, these are just allegations, but oh, my the facts seem really bad here.

I was somewhat surprised that the Court of Appeal didn't name names here; e.g., expressly say in the opinion which individual lawyers at ILG did what.  Especially since there's apparently some reason to believe that the response of Initiative Law Group to this whole fiasco was to . . . change its name.

Troubling stuff, IMHO.  Profoundly troubling.

Blueberry Properties, Inc. v. Chow (Cal. Ct. App. - Oct 22, 2014)

Do you know what an elisor is?

I'll readily confess that I did not.

Until today.

Tuesday, October 21, 2014

In Re J.S. (Cal. Ct. App. - Sept. 11, 2014)

I can summarize this opinion in three words:

"And" means and.

Under ICWA, an "Indian child" is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."  It's undisputed that the child here is not a member of an Indian tribe, so (a) doesn't apply.

But he's also "eligible for membership" in the Cherokee tribe because his great-great grandfather was an enrolled member.  So (b) might apply.

Except for the "and" part.

You've got to be eligible for membership and be the biological child of a member of the tribe.  It's undisputed that the child isn't the biological child of a member of the tribe.  His father isn't a member.  His mother isn't a member.

"And" means and.  You've got to both be eligible for membership and be the biological child of a member.

That's what the statute says.

End of story.  As the Court of Appeal holds.

Monday, October 20, 2014

US v. Fowlkes (9th Cir. - Aug. 25, 2014)

I'll merely recite the relevant facts of this case without (much) commentary.  With the caveat that they are a little gross, so the squeamish might want to skip to the next post:

The defendant (Mark Fowlkes) is a big guy, and the DEA suspects he has drugs.  The police conduct a pretextual stop for an expired registration, see some alleged drug residue, and arrest him.  Then it gets a little funky:

"At intake, the officers strip searched Fowlkes in the jail’s strip search room, a five by six enclosure with three concrete walls and an opening in the fourth wall. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and 'assistance' in the form of additional officers because he thought Fowlkes might have drugs. The officers instructed Fowlkes to remove his clothing and face the far wall as they watched him. Fowlkes was instructed to bend over, spread his buttocks, and cough, but according to Sergeant Gibbs, Fowlkes instead moved his hand toward his right buttock. Instructed to repeat the procedure, Fowlkes made a quick movement to his buttocks area with his hand and appeared to Gibbs 'to be forcing or forcibly pushing an item inward.' Officer Harris testified he believed it was possible Fowlkes was attempting to push something into his anus. However, he did not actually see any object Fowlkes could have been pushing, and he acknowledged that there was no other way for Fowlkes to comply with the directive other than by reaching back and putting his fingers towards his anus. For his part, Sergeant Gibbs testified that he believed Fowlkes appeared 'to be forcing or moving an object or further
secreting an object' inside his rectum to destroy evidence.

To prevent that, Gibbs 'delivered a drive stun tase to the center portion of the defendant’s back.' Fowlkes’s arms went straight into the air, and the officers handcuffed him. Fowlkes began to 'squirm[]' and 'struggl[e],' and the officers 'lean[ed] him against the wall, . . . brace[d] his body
up against the wall' so that '[h]e end[ed] up being bent over.'  With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes’s rectum.

Officers continued to 'brac[e] [Fowlkes] up against the wall' to prevent him from resisting. At this point, Fowlkes was handcuffed and incapacitated by five male officers, making escape or resistance impossible. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes’s rectum. Nor could they determine how large it was or how far it extended into Fowlkes’s body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly 'retrieved' the bag. He put on the protective gloves he had brought along to the 'search' and pulled the object from Fowlkes’s rectum without the assistance of anesthesia, lubricant, or medical dilation. Although Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes’s anal cavity, Officer Harris testified that the removal itself was a difficult, abrasive procedure:

I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out.

Officer Harris further testified that he could 'see blood and what looked to be feces' on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood."


Judge Tashima writes the majority opinion (joined by Judge Alarcon) and holds that this process was an unreasonable search and seizure in violation of the Fourth Amendment.  Should have waited for a warrant, or let the stuff pass naturally, instead of simply yanking it out of his butt.  Judge Restani, sitting by designation from the Court of International Trade, dissents.

Just one minor point.  The officers clearly didn't know how big the thing was.  On the one hand, you don't expect a golf-ball sized thing up there.  And once you've started the process of pulling it out -- on the assumption it's just a tiny piece of rock or something -- it's sort of difficult to figure out when to stop as the thing goes from "dime" size to "penny" to "quarter" to essentially mondo huge.

None of which necessarily conflicts with Judge Tashima's likely position that the officers shouldn't have even started the whole process.  But I just wanted to mention it because my money's on the fact that the officers might well have done something different if they'd have actually thought that there was a golf ball-sized thing up there as opposed to the quick "snatch-and-grab" I bet they thought they were about to perform.

Friday, October 17, 2014

Johnson v. Appellate Division (Cal. Ct. App. - Oct. 17, 2014)

The Court of Appeal confirms today that when CCP says that you have to have "three judges" on the panels that hears appeals, it really means "three".  Not two.  Three.  Even if two judges are enough to issue a judgment.

You can't have panels of two.  Because you're supposed to have panels of . . . wait for it . . . three.

Three is better than two.  Two is not three.  It's one less.  To make three, you need not one, not two, but three.

Read Justice Elia's complete opinion for more detail if you're unsure about the concept.

Some of this advanced mathematics is moot at this point, since after the Court of Appeal issued its OSC, the Appellate Division of the Santa Cruz Superior Court got the message and stopped hearing appeals with two (instead of three) judges.  But just in case anyone else was thinking about cutting back, Justice Elia publishes the opinion.  Making clear that . . . well, I think you get it at this point.


Nixon Peabody v. Superior Court (Cal. Ct. App. - Oct. 17, 2014)

Here are two hypotheticals.  Tell me how you think each one should come out.

Hypothetical One.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to dismiss the lawsuit and refile it, and counsel does so, but in the dismissal, the attorney accidentally checks the "with prejudice" instead of "without prejudice".  Plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the refiled complaint -- claiming that the dismissal with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

Hypothetical Two.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to file two other duplicative actions in federal court as well "to be safe", and then plaintiff and his attorney decide to dismiss the state suit and one of the federal actions and go forward with the third, and attorney does so.  But neither person realizes that the dismissal of the state and federal actions will operate as a dismissal with prejudice under the federal two-dismissal rule, so plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the pending complaint -- claiming that a dismissal that was effectively with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

What's the rule?

The Court of Appeal holds today that a court is required to vacate the dismissal in Hypothetical One but is precluded as a matter of law from vacating the dismissal in Hypothetical Two.  Granting a writ of mandate in Hypothetical Two compelling the trial court to set aside its order vacating the dismissal.

Was that your answer as well?

Thursday, October 16, 2014

People v. Blakely (Cal. Ct. App. - Oct. 16, 2014)

Ordinarily you'd be happy if someone told you that you were pretty clearly sane.

But the contrary is true when that person is a trial judge holding that the evidence of your sanity is so clear that she's taking this issue away from the jury.  Meaning that you get 35 years to life in prison.

People v. Garcia (Cal. Ct. App. - Oct. 16, 2014)

"Defendant’s criminal history began about 30 years before, with felony receiving stolen property in 1980, for which he was placed on probation. A year later, in 1981, he committed second degree burglary and was sentenced to prison for 16 months. In February 1982, the month he was released, he was arrested and a month later pled guilty to robbery (his first strike) and sentenced to four years in prison. In 1984, he was convicted of unlawful driving/taking a vehicle and sentenced to two years in prison. The same year, he was also convicted of escape. In 1985, he was convicted of grand theft and sentenced to three years in prison. In 1988, he was convicted of assault on a peace officer, battery on a peace officer, and thereafter, with another escape, all resulting in another four years and eight months in prison. Defendant violated parole and was returned to prison in 1991. When released on parole, he was arrested again in June 1991 and when released again, within months committed a first degree burglary (his second strike), a robbery (his third strike), and vehicle theft in 1992, which resulted in a total prison term of 18 years. He was released from prison in February 2003. Within nine months, in November 2003, defendant was arrested again. In August 2004, he brandished a weapon and was placed on probation for two years, including serving 180 days in jail. In January 2005 and January 2007, he violated that probation and was reincarcerated. Defendant was paroled in April 2007 and committed his current offense eight months later. Defendant’s criminal history was preceded by his delinquency in 1979, for which he was committed to the California Youth Authority."

That's pretty extensive criminal history.  Which is why he's not getting relief from his three strikes sentence.

Wednesday, October 15, 2014

C.B. v. City of Sonora (9th Cir. - Oct. 15, 2014)

This is one way to write an en banc opinion.

But it's a mess.

Judge Paez authors the "majority" opinion.  But there's not a majority for "Part II.C.1.".  For the Ninth Circuit's holding on that issue, you've got to look to Judge Milan Smith's opinion that concurs in part and dissents in part.  Because Judge Smith has a total of four votes (including his own) for his proposed disposition, and then he gets three others (Judges Kozinski, Graber, and Gould) -- a total of seven -- to join that particular portion of his disposition.

So you've got to skip around opinions to find the actual holdings.

For The Three, Judge Gould writes a concurring opinion (for himself and Judges Kozinski and Graber) explaining their theory.  Then Judge Berzon -- joined by Judge Thomas -- write another concurring opinion explaining that they join in Judge Paez's majority opinion, except for one of the claims therein, as to which they agree with his result but not his reasoning.

As a result, it's a classic 2-4-3-2 Ninth Circuit en banc split.

Sarcasm intended.

Tuesday, October 14, 2014

Litmon v. Harris (9th Cir. - Oct. 14, 2014)

I'm fairly confident that Chief Judge Kozinski's opinion in this case correctly summarizes existing precedent.  It's not unconstitutional for a state to require -- as California does -- everyone who has ever been found to be a "sexually violent predator" to physically appear at a police station every 90 days for the rest of their lives and answer questions and fill out various forms.  Even after they have been released from treatment.

That's the law.

I merely wonder how far this goes.  What if it's 30 days?  Every week?  Every day?  Judge Kozinski says there's no fundamental right at stake, so it's only rational basis review.  Presumably making prior sex offenders show up at the police station every single day would accomplish the same objectives that Judge Kozinski notes are advanced by the 90-day rule:  deterrence, information, etc.  Even more so, I imagine.

So no violation there either?  Gotta show up at the police station every day for the rest of your life because we've found that you're the "type" of person who's "predisposed" to commit various offenses?

What's the right line here between the permissible and impermissible?

Monday, October 13, 2014

Foster v. Williams (Cal. App. Div., Sup Ct. - Sept. 9, 2014)

It's Columbus Day!  Which, for many workers, means absolutely nothing.  But in our world, it means that the courts are generally closed.  Which means no opinions.

But while we're thinking about what transpired in 1492 -- five hundred-plus years ago -- maybe we can also file this opinion in the "What will they think in thirty years" department:

CCP 1162 says that when you're evicting someone you've got to give them a three-day notice to pay rent or quit and the notice has to include an "address of the person to whom the rent payment shall be made."  Which is what landlord Jennita Foster did for her Santa Monica tenant Keith Williams.  With the slight complexity that the "address" was a web site (i.e., a URL):

That would make a difference to me if the tenant had made his prior payments by check or in person to the landlord.  It's also make a difference to me if the web site charges the tenant a fee.  'Cause I'm not willing to let the landlord hose a tenant by making it more difficult (or expensive) to respond to a three-day notice than it is to pay the usual rent.

But here, it seems that the tenant always paid his rent (when he paid it) on the web site.  And at least according to the web site the landlord may be paying the relevant $3 fee per transaction (or, perhaps, the lease requires an additional $3 by the tenant in addition to the rent).

If the three-day notice doesn't require the tenant to do anything more than he's already obligated to do and/or routinely does, I don't see why a web address isn't as good as a physical address.

But the Appellate Division holds otherwise.  Concluding that the Legislature, when it passed the relevant statute, was thinking in old school ways, and hence that's what "address" means.

This seems to me form over substance.  Which the law's supposed to disregard.  A web site is indeed an "address".  If there's a reason to define "address" as a physical address, I'm totally for doing so.  In the present case, however, I don't see any such reason.  Tenant could pay.  He didn't.  He should be evicted.  He shouldn't get to stay (effectively rent-free) for even longer because the three-day notice gave him the exact same address to which he'd successfully paid rent every month for nearly a year.

When the tenant didn't pay, it was because he didn't want to (or couldn't), not because there was not an "address" on the three-day notice.  That's not a defense.  Regardless of what "address" meant in the 1950s.


Friday, October 10, 2014

People v. Sanchez (Cal. Ct. App. - Aug. 19, 2014)

I think that Justice King is on target here.  Both as regards the fact that the prosecutor erred as well as to the fact that the error was harmless.

I'll just add one thought.  Something that Justice King might perhaps be thinking, but doesn't actually say.

Here's the thought:

Mellow out.  Don't cross the line for no reason.

In this case, as in many others, the defendant has been caught dead to rights.  The police catch him in a fenced-in, barbed-wire-topped Southern California Edison yard at 3:00 a.m.  They've got video of the guy stealing stuff in the yard.  They've got the ladder he propped up against the wall to climb in.  They catch his accomplice in a car a block away with a notebook entitled "Cash" and a list of SCE yards from which to steal.  The accomplice is holding a walkie-talkie that exactly matches the one that the defendant's caught with in the yard.  Defendant's got absolutely no excuse or way to explain what he's doing in the yard at 3:00 a.m. other than stealing stuff.

In short, it's a laydown.  Defendant's going to be convicted.  As in the vast, vast, vast majority of criminal cases that go to trial.

When you're a prosecutor, and you've got one of these, of course you should nonetheless prepare.  Get your witnesses in order.  Make a good opening argument.  Present your evidence cleanly and distinctly.

There's no need to get fancier than this.  There's no need to carefully craft a closing argument that makes sure to comment on defendant's exercise of his Fifth Amendment right not to testify.  There's no need to draw a lengthy parallel between how defendant was hiding in the yard and how he's now allegedly "hiding" in court.  There's no need to repeatedly tell the jury that the defendant's just hoping that you're "gullible enough" to acquit him and that he's trying to "hoodwink" you so that he can "go home and have a good laugh at your expense."

Seriously.  Just summarize the evidence, thank the jury for its service, and sit down.  You'll get what's coming.  Without having the trial court and/or the Court of Appeal refer to prosecutorial ethics and the duty of a prosecutor to strike hard blows but not foul ones.

Or potentially getting the conviction reversed on appeal.

Sometimes the right thing to do is to not try so hard.  Or push the envelope.

Particularly when you're going to win anyway.  Because, yes, Virginia, the evidence is indeed crystal clear beyond a reasonable doubt.

Thursday, October 09, 2014

U.S. v. Renzi (9th Cir. - Oct. 9, 2014)

An election's coming up.  Want to become even more cynical -- or depressed -- about Congress?

Check out this opinion.

The Ninth Circuit affirms the conviction of former Arizona Congressman Richard Renzi.

Maybe this conviction was a big-ticket news item last year.  But it's the first I've heard of it.  Maybe it was big in Arizona but the news didn't leap that much across the Colorado.  Or perhaps I'm simply uninformed.

But having now read what went down, I'm stunned.  Truly.  This is some bad stuff.

Very, very bad.

Three years in prison for Renzi seems pretty generous.  And that's what he's going to spend.

Wednesday, October 08, 2014

U.S. v. Heredia (9th Cir. - Oct. 8, 2014)

The U.S. enters into a "fast track" agreement with Paul Heredia -- as it does with thousands of other "illegal reentry" defendants every single year -- in which it agrees to recommend a six-month prison term and not try to get Heredia sentenced to more than than in return for Heredia's immediate entry of a guilty plea as well as other terms.  "Justice" on a mass scale.

The U.S. later seems to get cold feet about the deal it struck, and so at sentencing, it gives the district court a litany of bad facts about Heredia that seemed designed to make sure that Judge Wilson, who's not bound by the plea agreement, doesn't give Heredia the deal that was struck.  The U.S. is successful, and Judge Wilson gives Heredia a prison term that's three-and-a-half times the agreed-upon deal.

Heredia appeals.  The Ninth Circuit reverses and assigns the case to a different judge on remand.  Judge Wardlaw holds that you can't strike a deal for a six-month term and then slam the defendant at sentencing by repeatedly highlighting all of the bad facts from the guy's criminal history in an effort to tank the deal.

Which makes sense.

Though, with a bright U.S. Attorney, I'm not sure how long the decision will remain of practical import to anyone other than Heredia.

Remember that these fast-track deals are pretty much contracts of adhesion.  Take the same deal that we give to every single other illegal reentry dude or we throw the book at you.  I'm confident what every single Fortune 500 company would do when confronted with a situation like this:  Simply change the fine print.  Put an express provision in the deal that says that even though you agree to recommend a six-month sentence, "nothing herein shall prevent or in any way preclude the United States from introducing in the district court the criminal history of the defendant, including the details of these offenses, and/or supplementing the PSR to including additional facts regarding defendant's prior convictions."  That's what the AUSA did here and that the Ninth Circuit found improper.  But just put in the contract that it's okay.  No more problem.  No more reversals.

We'll see how the U.S. Attorney responds to this one.

Tuesday, October 07, 2014

Latta v. Otter (9th Cir. - Oct. 7, 2014)

I'm sure that it's a total coincidence that the Ninth Circuit issued this opinion, which strikes down the same-sex marriage bans of Idaho and Nevada, the day after the Supreme Court refused to review the many other pending same-sex marriage cases.

Yep.  Total coincidence.

Judge Reinhardt authors a unanimous, 34-page opinion telling us what everyone in the universe already knew full well: that the Ninth Circuit (and especially the panel of Judges Reinhardt, Gould and Berzon) was indeed striking down the same-sex marriage bans.  It's nonetheless still an opinion worth reading.  Very well-written, as always.

Judge Reinhardt also authors a concurring opinion that says that the same-sex marriage bans should also be invalidated on substantive due process grounds as well.  Judge Berzon also authors a different concurring opinion that says that these bans are also invalid classifications on the basis of gender.

So the only real dispute in the Ninth Circuit is how many different ways these statutes are going to be struck down.

Baek v. Continental Cas. Co. (Cal. Ct. App. - Oct. 6, 2014)

This is a pretty good test case to find out where you stand vis-a-vis bright line rules.

Let's take the easiest case -- not this one -- first.  Imagine that you're on the California Supreme Court.  You're hearing an insurance coverage dispute.  A deputy sheriff is allegedly groping other sheriffs at work.  Without their consent.  City gets sued, submits the claim to its insurance company, and the insurer refuses to defend the lawsuit, claiming that the groping wasn't done "within the scope of the sheriff's employment."  But the City disagrees, admitting that, true, it didn't pay the sheriff to sexually harass people, but he nonetheless did it at work, to his co-workers, so there's at least the potential for coverage.

How do you rule?

This isn't a hypothetical.  The California Supreme Court heard pretty much exactly this case in 1995. Holding that, no, that wasn't within the scope, so there's no duty to defend.  (I've loosened up the facts a tiny bit, since this was actually a Tort Claims Act case, but it's nonetheless pretty much on point to the more general issue.)

Now, you could have gone the other way on this way.  Justices Mosk and Kennard, for example, dissented.  But whatever.  That's at least the holding of the Court.

Given this precedent, you now you can do one of two things.  (Three, if you count "overrule the thing" as an option.)  First, you can make it a bright-line rule, and say that sexual harassment and/or touching is always outside the course and scope of your employment.  Alternatively, you can make the issue a fact-dependent one.  Sometimes there's coverage, sometimes there's not.

If you're on the California Supreme Court, which option would you select?

The advantage of a bright-line rule is ease of application.  Sexual misconduct will never be covered.  But its disadvantage is potential injustice.  It's not covered even if the risk of misconduct is, indeed, part of the job; indeed, maybe it's the principal reason for your desire for insurance.

Say, for example, you own a business that gives therapeutic messages.  Maybe a little chiropractic work.  Maybe some sports injury healing.  You've got to hire some employees.  Those employees will be touching clients.  Intimately.  Hopefully not too intimately, since the place you're running is totally legitimate.

But you're no idiot.  You know full well that there's a fine line between "legitimate" touching and "illegitimate" touching in the message business.  And there's always a risk that either (1) one of your employees might get out of line, and/or (2) one of your clients might wrongfully misperceive a totally legitimate touching for an illegitimate one.

So you want insurance coverage.  Since you don't want the business to bankrupt you.  You're willing to pay the premium.  But you want coverage.

The downside of the bright-line rule is that you can't get it.  By definition, any lawsuit against your employee (or you) will be "outside the course and scope of employment" and hence uncovered.  The upside being that any claim that you ever make for insurance coverage will be quickly dismissed on a demurrer.

That's this case.

The Court of Appeal holds that the trial court properly granted a demurrer to the insured's complaint for declaratory relief.  There's not even the potential for coverage -- and hence no duty to defend -- because alleged sexual misconduct is by definition outside the course and scope.

Bright line rules have their upsides.  But they have serious equitable downsides as well.

Monday, October 06, 2014

People v. Jones (Cal. Ct. App. - Oct. 6, 2014)

Things like this always bother me.

There's a contested criminal trial.  Like this one.  Defendant admits that he killed the victim.  The only issue is whether it's first-degree murder, second-degree, manslaughter, etc.  Was defendant provoked, how strong was the provocation, etc.

Obviously there's a huge criminal law element in that determination.

Defendant's counsel stands up at closing argument and says that the law is X.  Prosecutor stands up at closing argument and says that the law is Y.  X and Y are flatly inconsistent.

(Here, for example, the prosecutor says that it's only voluntary manslaughter if a reasonable person would respond to the provocation in the same way that the defendant did; i.e., by killing the other guy.  By contrast, the defendant's argument is that it's voluntary manslaughter if a reasonable person would respond to the provocation 'without deliberation and from passion'; i.e., rashly, whether that means killing the guy or doing something equally rash but with lesser effect.)

This is basically the entire dispute.  Defendant objects to the prosecutor's statement in closing as an erroneous statement of law.  The trial judge now has to rule.  What to do?

So many times, as in this case, the trial judge judge punts.  And essentially says (as here) that s/he's not going to rule on the objection, because the law is what the law is, and s/he'll instruct on that issue later.  Which s/he does, reading the relevant CALCRIM instruction.

And, of course, the relevant CALCRIM instruction accurately states the law.  But does so obtusely.  Which is why even trained lawyers like the prosecutor and defense counsel disagree on what it says.

But the trial judge simply reads the instruction to the jurors and lets these legally untrained folk figure out for themselves what even two lawyers and a judge couldn't resolve.

At which point the Court of Appeal typically says:  "Well, we presume the jury followed the properly given instructions.  Plus no prejudice."

Which all makes sense.  But it's nonetheless a total cop out.  Why shouldn't the trial judge make sure that the jury's given correct information?  Not only in an obtuse jury instruction, but by the parties as well.

I know the answer to that question.  At least practically.  Why doesn't the trial judge and/or Court of Appeal do anything different?  Because it's hard.  They may not be sure of exactly what the law is or whether the misstatement was prejudicial.  It's lots easier to merely read the instruction and affirm, as opposed to actually informing the jury -- clearly and distinctly -- of whether the prosecutor or the defendant's version of the law is the right one.

Admittedly, to the credit of the trial judge here (Judge Ellison, from Fresno), after initially punting this issue in the usual way -- i.e., by just telling the jury "Follow my instructions" rather than ruling on the defendant's objection -- he actually ponies up in the end and says, yeah, you know what, the prosecutor's statement of the law during closing argument was wrong.

Good job.  Important to get this stuff right.

Too bad Judge Ellison did that only after the jury had turned it its verdict.

Sure, the verdict was sealed, and yeah, Judge Ellison sent the jury back to see whether his belated clarification of the law made a difference.

But having now resolved the case 12-0, you'll not be at all surprised to discover how the jury reacted to this new information.  Took 'em all of nine minutes to walk back to the deliberation room, get all the jurors to sit down, have a brief chat, get back up, walk back to the courtroom, get everyone (the judge, attorneys, parties, etc.) together, and render the exact same verdict.  Didn't even need to unseal their prior verdict.

Being a judge is hard.  Sometimes you have to rule on the spot.  And you want to get it right.

But taking the "easy road" has consequences.  Not on your reversal rate, mind you.  The Court of Appeal will almost always affirm if you simply read the form instruction and "trust the jury to follow [it]" rather than actually ruling on an objection to an improper statement of the law.  As it does here.

The consequences are instead on justice.  We'll never really be sure if the jury in fact would have done the same thing if they had actually known at the outset of deliberations what the law really was.

Sturgeon v. Masica (9th Cir. - Oct. 6, 2014)

Plaintiff's name is John Sturgeon.  Yes, like that kind of sturgeon.  He lives in Alaska.  He's got a beef with the Secretary of the Interior and the National Park Service about what's he's allowed to do on a tributary of the Yukon River.

Go ahead and guess what Sturgeon wants to do on that river.

If you said "Get some food," you'd be right.  Good job.  He's not named "John Sturgeon" for nothing.

But if you guessed "fish", you'd be wrong.  That's not what Mr. Sturgeon wants to do.  Instead, he wants to hunt moose.

Perhaps Mr. Sturgeon should change his name?

But the case gets even more surprising from there.  Because the lawsuit isn't about whether Mr. Sturgeon is entitled to hunt moose.  He is.  It's rather about how he can hunt moose.

Is the lawsuit about whether Mr. Sturgeon can hunt moose with a rifle?  No.  A bow?  No.  A knife?  A shotgun?  A bazooka?  No, no, and no.

Rather, the central issue in this lawsuit is whether Mr. Sturgeon, a resident of Alaska, can hunt moose on a tributary of the Yukon River with . . . a hovercraft.

Welcome to the twenty-first century, my friends.

The National Park Service prohibits use of a hovercraft within the Yukon-Charley Rivers National Preserve, which is where Mr. Sturgeon hunts.  When employees of the NPS saw Sturgeon repairing his hovercraft on a gravel bar on a river, they told him that hovercraft aren't allowed, and gave him a verbal warning.  At which point Mr. Sturgeon immediately got on his satellite phone and contacted his attorney, claiming that NPS regulations were inapplicable because he was hovering over a state-owned navigable river.

That's right.  He got on a satellite phone.  To his attorney.  To make sure that his understanding of the nature of federalism in the modern era as applied to federal admiralty law and the use of hovercraft wasn't rusty.

Alaska:  Land of Infinite Surprises.

Plaintiff ultimately brings suit, loses in the district court, and the Ninth Circuit affirms.

I'm not even going to discuss the part about where Alaska intervenes and the Ninth Circuit dismisses the state for lack of standing.  Because this fact pattern weird enough already.

Friday, October 03, 2014

Ellis Law Group v. Nevada Sugar Loaf Properties (Cal. Ct. App. - Oct. 3, 2014)

Perhaps I'm losing my edge.

Or maybe becoming soft.  Because, typically, in any given week, there's something -- often, many things -- with which to disagree in the published decisions of the Ninth Circuit and California Court of Appeal.  By contrast, when I look over this week, I find that I've largely been limited to being a cheerleader.  An appellate Yes Man.  Agreeing with decision after decision after decision.

There's nothing wrong with that, of course.  Sometimes -- gasp! -- courts get it right.

But isn't it about time to really lay into someone?  To slam, with incredible fury, the inapt, inept, and totally erroneous legal analysis of the Ninth Circuit and/or the Court of Appeal?

Nope.  Not today, anyway.

The Ninth Circuit avoids any potential pent-up fury by taking the day off, and not publishing anything.  By contrast, the California Court of Appeal is willing to take a risk, and publishes this opinion by Justice Hoch.

An opinion that's totally right.

Damn her.

You're not allowed to recover attorney fees if you're a lawyer or law firm engaged in self-representation.  Here, a law firm -- Ellis Law Group LLP -- files an anti-SLAPP motion on its own behalf when a client it's suing for fees files a cross-complaint against it.  The trial court nonetheless awarded the firm $14,500 in fees because the firm's motion was filed by a "contract attorney" at the firm.

No dice.  Justice Hoch holds that if it walks like a duck and quacks like a duck, it's a duck.  In this case, a "duck" being a member of the firm.  Perhaps the law firm can successfully avoid some taxes by labeling the attorney an "independent contractor" and paying him by the hour.  But taxes are not attorney's fees.  If he's listed under your firm on the caption, if he has malpractice insurance because you list him as "of counsel" to your firm, and if he's filing papers under your firm name on your behalf, he's a "member" of your firm.  And being a "member" is all that matters.  Regardless of his tax status.  You can't get fees for him.

Couldn't be more right.

Thursday, October 02, 2014

Lightfoot v. Cendant Mortgage Corp. (9th Cir. - Oct. 2, 2014)

Here's an issue -- and an opinion -- that's right out of a first-year civil procedure class.  Or maybe an upper-year advanced civil procedure class.  Does Fannie Mae's "sue and be sued" clause grant federal subject matter jurisdiction?

Judge Fletcher (joined by Judge Trott) is right.  It does.  Judge Stein, sitting by designation from the SDNY, does a mighty job in dissent.  But Judge Fletcher has substantially better of the argument.

In a parallel universe in which current precedent didn't exist, Judge Stein might be right.  But given what the Supreme Court has said from Osborn -- 190 years ago -- to Red Cross (22 years ago), Judge Fletcher's correct.  As is his evaluation of the relevant statute and legislative history.

Actual attorneys will care only about the result:  Fannie Mae can sue and be sued in federal court, and (more importantly) can remove even state law cases there.  But for civil procedure professors, the opinion and dissent also consist a dreamy, 36-page discourse about sue-and-be sued clauses.

What joy.

Wednesday, October 01, 2014

Hernandez v. Siegel (Cal. Ct. App. - Sept. 30, 2014)

When the defendant delays paying a judgment, and accordingly must pay postjudgment interest, a portion of which is interest on the (six-figure) fee award, who gets the interest:  the attorney or the client?

The Court of Appeal correctly holds that it's the attorney.

The analysis could be even shorter.  The attorney is entitled to the res (i.e., the fee award).  So he is entitled to the appreciation or other increase in value of the res.

End of story.

Tuesday, September 30, 2014

PMRA v. County of Alameda (9th Cir. - Sept. 30, 2014)

You don't get a plethora of dormant Commerce Clause cases in the Court of Appeals.  Even in these relatively conservative times.

But here's one.  And it's fascinating.

The facts are fairly straightforward.  Alameda County passed an ordinance in 2012 that essentially requires prescription drug manufacturers to set up and run "kiosks" in which customers can safely return unwanted drugs.  Makes a lot of sense.  We want people to be able to safely dispose of now-unwanted prescription drugs, rather than keeping them about for others to steal, abuse, or mistakenly consumer.  The prescription drug companies benefited from the initial sales.  So they should cover the costs of disposal.  Fair enough.

The drug companies, however, alongside a plethora of conservative interest groups as amici, claim that the ordinance violates the dormant Commerce Clause because all of the relevant prescription drugs travel in interstate commerce.  Judge Randy Smith demolishes this argument.  In an opinion that you can hardly claim is authored by a flaming liberal who's never met an economic regulation that he didn't like.

So that's how the merits get resolved.

For me, however, there's one portion of the ordinance that's discussed at some length in the opinion but that nonetheless continues to trouble me.

The ordinance indisputably obtains local benefits; i.e., protects the health of residents of Alameda County.  But under the statute, the seven-figure cost of that regulation also indisputably is borne largely by consumers outside of this locality.  That's because the statute affirmatively prohibits the drug manufacturers from imposing a "tax" or "fee" on local purchases in order to reimburse the manufacturers for the cost of the program.  As a result, the people of Alameda County benefit from the program, but the cost of that program is borne almost entirely by people outside of Alameda County (in the form of higher prices).

That doesn't seem entirely fair, does it?  As a matter of equity, one might think that the costs of a program that benefits a particular locality should be borne by that locality.  A result that the Alameda ordinance expressly precludes by barring drug companies from charging local residents for the cost of the program via a tax or fee.

Judge Smith hold that, as a constitutional matter, that's not a huge problem.  And his reasoning on this point isn't at all frivolous.  The program costs a million bucks or so.  As contrasted to the billion or two that the drug companies make.  The program's not disproportionate.  It doesn't result in a huge increase (at all) in drug prices.  It's a fairly minimal burden in the scheme of things.  And it doesn't have the effect of precluding the importation of drugs, either de jure or de facto, into the county.  So it's constitutionally permissible.

I get all that.

But it nonetheless seems to me that there's a serious agency problem here.  Alameda County obtains costly benefits for its residents at virtually no cost to itself but at real costs to others.  You can see the systemic problem with such a regime.  If Alameda County can do that -- and you see the incentive for it to do so -- then so can everyone else.  Every locality can obtain local benefits and externalize its costs.  Even when the local benefits aren't even close to equivalent to the costs.  You're not paying them.  Why should you care?

That's the very definition of a collective action problem.  Too many cows on the commons.  To allow a structure the permits localities to externalize the cost of local benefits is to legitimize a subpar, and monstrously inefficient, institutional regime.  And that's exactly what the ordinance does by barring the drug companies from imposing fees that impose the burden of the ordinance on those who benefit by it.

You can see why you'd want to gussy that up into a constitutional argument.  Maybe even a valid one.

So, for me, the most difficult part of the ordinance is the "no fee" provision.  Everything else I'm entirely comfortable with.  Seems perfectly fine.  But that "no fee" part continues to trouble me.

Ultimately, Judge Smith says that if there's a problem with the ordinance, it's up to the other branches of government.  Okay.  I get that.  He's undeniably correct that if the federal government thinks this is a problem, Congress can preempt ordinances like Alameda's.  Absolutely right.

But I'm perhaps a little more worried than Judge Smith is about the separate agency problems with that potential solution as well.  I'm not sure that Congress really has the practical ability to respond to every penny-ante extraction propounded by a particular locality.  Yeah, if it becomes a trend, or if a particular ordinance is particularly burdensome, I have no doubt that the pharmaceutical companies (and their well-paid lobbyists) will be on it like white on rice.  So maybe, given the practical reality of the agency-cost-laden world in which we live, I shouldn't worry so much about the agency costs I definitely see associated with the particular ordinance at issue here.  These are big boys.  They can more than take care of themselves.

But there's nonetheless still something that nags at me at the codification of the resulting principle as a matter of constitutional law.  Because extractions aren't always taken from the powerful.  Sometimes they're taken from the weak.  And the principle here doesn't articulate a difference.

Interesting stuff.

Monday, September 29, 2014

Deck v. Jenkins (9th Cir. - Sept. 29, 2014)

Stephen Robert Deck was a lieutenant with the California Highway Patrol.  He started chatting online with someone he thought was a 13-year old girl named "Amy".

You already know where this is going.  Both what Mr. Deck wants from "Amy" and whether "Amy" is really a 13-year old girl.

Deck drives 45 minutes to meet "Amy" in a public place and tells her that even though he's sick, he "probably won't be able to my hands off you."  The police arrest Deck when he comes to the purported meeting, and in his car, they find not only MapQuest directions to "Amy's" apartment but also "six packaged condoms past the listed expiration date."

Seriously, dude?

I'll not recount in detail the underlying legal fight in the Ninth Circuit.  Suffice it to say that Judge Christen, joined by Judge Thomas, grants habeas relief based upon a fairly central misstatement of law made by the prosecutor in closing argument.  Judge Milan Smith, by contrast, not only dissents, but also helps to author the California Attorney General's petition for certiorari.  Judge Smith's dissent begins by saying:

"I respectfully dissent.  The Supreme Court has repeatedly—and often unanimously—reversed our circuit’s decisions granting § 2254 relief. For example, in its four most recent terms, the Supreme Court has reversed us thirteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254, ten of which reversals have been unanimous. In my view, this case is yet another candidate for reversal because the majority flouts clear Supreme Court AEDPA precedent in order to justify its holding that a state court’s decision is incorrect."

Judge Smith then goes on to explain this conclusion at length.

Judge Smith's dissent contains a decent predictive argument as to what might well end up transpiring in this one.  But it simultaneously goes the other way as well.  Judge Smith ends his dissent with the following quote from Justice Scalia:

"It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit."

That definitely supports Judge Smith's argument that at least some members of the Supreme Court are more than willing -- desirous, even -- to reverse habeas relief grants by the Ninth Circuit.

But it also bears mention that this quotation from Justice Scalia was from one of his dissents from the denial of a writ of certiorari.

Proof itself that Supreme Court review of this one is far from certain.

P.S. - In a twist of fate, the Ninth Circuit publishes this opinion involving a fake 13-year old girl on the same day my daughter turns 13.  Happy birthday, Sierra.

Stay out of chat rooms.

Friday, September 26, 2014

Hendershot v. Ready to Roll Transportation (Cal. Ct. App.- Aug. 14, 2014)

Talk about classy:

"On May 24, 2012, the plaintiffs filed a putative class action against the defendant for failure to pay overtime wages, among other causes of action. The complaint alleged that the putative class members were non-exempt employees who chauffeured vehicles for the defendant, and that the defendant failed to compensate them for periods when they were required to remain on-call in between trips transporting clients. . . .

On June 28, 2012, the plaintiffs propounded requests for production, requests for admissions and a form interrogatory on the defendant. On July 27, 2012, the defendant asked for a one-month extension to respond to the discovery. The plaintiffs conditioned such an extension on the defendant’s agreement that it would provide (1) “good faith, substantive responses, and not simply objections” as well as (2) “the contact information for all putative class members.” The defendant’s counsel “agree[d] to the proposal” and said it would employ a “[Belaire] notice procedure” [i.e., opt-out notices] to provide the plaintiffs’ counsel with contact information for the class. The defendant’s counsel committed to providing the plaintiffs’ counsel with a draft of a Belaire notice within a week.

The defendant thereafter obtained new counsel. On September 7, 2012, the defendant’s new counsel acknowledged the parties’ agreement regarding the discovery extension but asked for additional time to “review the [Belaire] Notice [and] communicate with my client about the details.” The plaintiffs’ counsel agreed to the extended timeframe, and the defendant’s counsel agreed to finalize the Belaire notice by September 26, 2012.

However, the defendant’s counsel did not send the plaintiffs’ counsel a draft Belaire notice. On September 18, 21 and 25, 2012, the plaintiffs’ counsel contacted the defendant’s counsel by phone and email seeking to determine if the defendant had any revisions to the draft Belaire notice. The defendant’s counsel did not respond. During this time, the defendant’s chief executive officer, Gale Ricketts, met individually with 29 putative class members and obtained their signatures on agreements releasing any and all claims they might have against the defendant.  [Several of the "settlements" were for $5.00.]

The defendant served its discovery responses on the plaintiffs in September. On October 29, 2012, the plaintiffs moved to compel further responses to their discovery requests, including the request seeking all documents pertaining to defenses the defendant intended to assert in this action. The plaintiffs argued that, in spite of the defendant’s prior agreement to provide substantive responses to the discovery in exchange for an extension, the defendant had refused to respond to over half of the requests for admissions and the related Form Interrogatory 217.1, had asserted boilerplate objections to certain requests for production, and had only produced a portion of responsive documents. On December 11, 2012, the court granted the motions. The defendant was ordered “to file supplemental responses as prayed for” by December 21, 2012, and to pay the plaintiffs $10,000 in attorney’s fees. . . .

The parties’ counsel agreed to set Ricketts’ deposition for January 31, 2013, and, accordingly, the plaintiffs’ counsel noticed the deposition for that date. However, on January 30, 2013, the defendant’s counsel informed the plaintiffs’ counsel that Ricketts would not appear for her deposition because she had, for some unexplained reason, traveled out of state. The plaintiffs’ counsel objected on the grounds that the parties’ counsel had previously agreed to this date and the deposition had been properly noticed. However, Ricketts did not appear for the deposition."

Defendants ultimately persuade the trial court to deny class certification because even though the plaintiffs thought there were 53 class members, since defendants had now settled and/or agreed to arbitrate with almost all of them, there were only nine left -- the three named plaintiffs and six others.  Hence the trial court held that the proposed class did not satisfy the numerosity requirement.

You can imagine how the Court of Appeal -- properly, in my view -- reacted to the discovery and other shenanigans of the defendant below.  Suffice it to say that the Court of Appeal reverses and remands.

Notwithstanding the fact that, yes, there might indeed be only nine members of the class.

Thursday, September 25, 2014

Golightly v. Molina (Cal. Ct. App. - Sept. 25, 2014)

"Gloria Molina" is a real name, and it's the name of the lead defendant in this case (LA County Supervisor Molina).  You might think that "Robert Glen Golightly" is a fake name -- homage to Truman Capote's Holly Golightly, or Audrey Hepburn in the film version of the book.

But, no, it's a real name.  At least a legally real name.  Of this guy.  Who's darn serious about suing the Board of Supervisors for an alleged Brown Act violation.  As well as trying to recover a seven-figure award of attorneys' fees even though he loses.

No dice.  At any level.

Holguin v. DISH Network (Cal. Ct. App. - Sept. 22, 2014)

Cable television is expensive.  Ditch cable!  Let's sign up for satellite television!

That's what the Holguins (from San Diego) thought, anyway.  They signed up for DISH Network in 2006.  And the guys show up as planned to install the satellite antenna and relevant cable.

Apparently -- and I didn't know this before reading the Court of Appeal's opinion -- sometimes, the guys snake the cable down a sewage pipe.  Easier, I guess, than going through the walls vertically.

But that means that once you drill through the sewage pipe, you've got to make sure to patch the pipe back up once you're done.

Which the DISH Network installers didn't do here.


You can figure out what transpired next.  Sewage.  Mold.  Lawsuit.  Trial.  Judgment.  Appeal.

Suddenly cable isn't looking so bad.  By comparison, anyway.

Wednesday, September 24, 2014

Mercury Casualty & Ins. Co. v. Chu (Cal. Ct. App. - Sept. 24, 2014)

I'd have thought that the insured was totally out of luck in this one.

I'd have been wrong.

Chu's driving a car and his roommate Pham is his passenger.  Chu hits another car, and Pham is injured.  Chu sues Pham for his injuries.

Not surprising that Pham would win, since Chu's at fault in the accident.  But this dispute is about insurance coverage.

Chu has a minimal $15K/$30K auto insurance policy with Mercury Insurance.  But that policy -- like pretty much every one I've ever had and/or seen -- expressly excludes coverage for injuries to anyone with whom you reside.  So if you accidentally hit your spouse (or child) with your car, or they're in the vehicle and get injured in an accident in which you're driving, your insurance doesn't cover that.  Your wife and/or child can't sue you and get money from the insurance company.

Ditto for roommates.  Or other relatives with whom you live.  If they live with you, your policy does not cover your injuries to them.  The policy couldn't be clearer.  And Chu and Pham repeatedly admit in sworn testimony that they live together.

End of story, I figure.

Not so.

Justice O'Leary's opinion persuades me.  Yeah, that's what the policy says.  But that doesn't mean it's legal.  California has an interest in providing insurance coverage for victims of accidents.  It has thus passed a statute that regulates exclusions in policies.  One of those is admittedly relevant here:  it says companies can exclude coverage when the benefits of that coverage would ultimately inure to the benefit of the insured.  Hence the spouse example.  There's no coverage for that since letting your wife sue you and get money from your insurance company would essentially flow money your way.  Something that precedent affirms isn't required.

But Justice O'Leary holds that what's true for your resident family members isn't true for roommates.  Letting your roommate get money from your insurer doesn't flow back to you.  He's your roommate, not your spouse.  So since the exception in the statute doesn't apply, the exclusion is void as against public policy.  Hence Pham gets to recover his $330,000.

Mercury Insurance doesn't like that result.  It says that the reason for the exclusion is because there's too much risk of collusion.  We don't cover husbands who hit wives, it contends, because there's then we'd be worried that husbands might deliberately hit their spouse in order to collect insurance money.  Ditto for roommates.  They might be scamming the system.

But Justice O'Leary articulates the right response.  We trust juries.  They get to separate out the true "accidents" from the frauds.  The risk of collusion shouldn't invalidate coverage when, as here, there is no reason at all to believe that it's a fraud.  Plus, Justice O'Leary rightly notes that if we're worried about collusion between non-related roommates because they're "friends", there's no limit to that principle.  Friends can collude even if they don't live together.  Mercury's argument proves too much.

So there's insurance coverage.  Pham gets his money notwithstanding the provisions of the policy.  And Chu doesn't have to repay the six-figure sum in attorney's fees that Mercury spent defending him at trial.

So what I originally thought was a loser for the insured turns out -- rightly enough -- to be a winner.  The trial court, which shared my initial view (albeit with much more information), gets reversed.

The only thing I'll add to what Justice O'Leary says is that I wonder if the holding doesn't go far enough.  Justice O'Leary seems to assume, via precedent and otherwise, that coverage exclusions for resident relatives are entirely okay.  I wonder if that's really true.  I get the point about spouses and kids.  The money they'd receive from an insurance company can, broadly speaking, be said to belong to the insured, so coverage maybe "flows" to him.  But what about a nephew who lives with you?  A cousin?  A stepbrother?  Their money doesn't seem to me to be yours.  We rightly tell insurers that they have to cover -- at least with minimal liability coverage ($15,000) -- auto accidents in which you hit a stranger and are at fault, or injure a passenger in your car who's a friend.  Why isn't the same true for at plenty of categories of relatives?  Yes, Justice O'Leary is right that they could have refused to have been a passenger with you driving.  But so could your friend, and he's still covered.  What's the difference.  Moreover, pursuant to the Court of Appeal's holding, all that matters for purposes of the statute is that the money doesn't "flow your way".  That's true for strangers as well as cousins.

Plus, although Justice O'Leary's "they can stay out of your car" argument works in some cases -- e.g., as here, with passengers -- it doesn't work for others.  Imagine you're driving home, take a left turn, and plow into a pedestrian in a crosswalk you somehow failed to see.  If it's a stranger, you're covered.  If it's a neighbor, you're covered.  If it's a roommate, you're covered (at least after today).  If it's your cousin or spouse who lives with you, however, you're not.  Even though that made not the slightest bit of difference in the accident:  You had no idea at all who you were hitting before you did it.  Doesn't seem to make an infinite amount of sense.

Again, maybe on the spouse part, I get it.  I could see an argument that the statute applies.  Cousin?  Don't see how what the Court of Appeal says here isn't equally true.  Relative or no.

One final point.  Notice that roommates are now covered but spouses are not.  After today, add that fact to the list of marriage penalties.  "Sorry, baby, I'd love to marry you.  But we can't afford the additional taxes.  Plus, I love you too much to not have you covered in case you're a passenger in my vehicle and accidentally injure you.  Let's stay roommates instead."

Fleet v. Bank of America (Cal. Ct. App. - Sept. 23, 2014)

Justice Bedsworth authors another classic opinion in which he speaks carefully, saying in footnote 1:

"Because they [plaintiffs Robert and Alina Fleet] are representing themselves, their complaint is not in the form to which courts are accustomed.  [Footnote 1:]  The trial court sustained BofA’s demurrer to the Fleets’ original complaint and told the Fleets they had to plead with more specificity. The Fleets evidently took this admonition to mean they had to try their case in their amended complaint. The result is a complex and fact-intensive document that requires concentration and dogged analysis. The Fleets’ appellate brief demonstrates mastery of English but a natural – and commendable – unfamiliarity with legalese. This might be a good time to associate in someone who speaks that tongue."

Let me help translate for Mr. and Mrs. Fleet Justice Bedsworth's own legalese:

Get a lawyer.

Tuesday, September 23, 2014

Zoogolis v. Wynn Las Vegas (9th Cir. - Sept. 23, 2014)

Normally I wouldn't mention this opinion.  Since it's a state-specific holding about administrative exhaustion in a particular factual setting.  Yawn.

But wait!  That state is Nevada.  The administrative tribunal is the Nevada Gaming Control Board.  And the facts involve whether a high-rolling German gambler is required to pay the Wynn Casino the full amount of the $1.3 million he lost there or whether he only has to pay $250,000 since that's how much he told the Wynn (pursuant to a Nevada statute) they should cap his gambling markers.

Now you've got my interest, Ninth Circuit.

Sadly, the case is not about the merits.  But, for whatever it's worth, Judge Rawlinson's opinion seems right that administrative exhaustion isn't required.  Because Zoogolis had actual "credit instruments in the form of markers" under the relevant Nevada statute.

Germany 1, Nevada 0.

Thus far.

Solus Industrial Innovations v. Superior Court (Cal. Ct. App. - Sept. 22, 2014)

Reading tea leaves isn't easy.

The trial court overrules a demurrer, but certifies the issue as presenting a controlling issue of law, and defendant files a writ.  The Court of Appeal summarily denies the petition.  Trial court's ruling stands.

Except the California Supreme Court then grants review and transfers the issue back to the Court of Appeal with instructions to issue an OSC.  Hmmm.  The Court of Appeals figures that the Supreme Court didn't like the decision to overrule the demurrer.  So, as instructed, it hears the writ, and holds that the trial court erred, reversing the decision below.

All's right with the world.

Except now plaintiff files a petition for review.  Which the California Supreme Court again grants.  Transferring the matter back to the Court of Appeal and order it to reconsider its opinion in light of a particular statute.

You could read this latest grant in one of two ways.  Maybe it's a hint (as it often is) that the Court doesn't like the opinion below.  Or maybe the California Supreme Court's just being a pain (or, more charitably, just wants a more thorough evaluation of the merits).

Justice Rylaarsdam figures:  Once burned, twice shy.  The Court of Appeal changed its mind after the Court's original grant of review, and did what it thought the Supreme Court wanted.  It's not doing the same thing again.  This time, it sticks to its original disposition.  Trial court's still overruled.

The Court of Appeal essentially says:  Your move, California Supreme Court.  We're done trying to figure out the true motivation behind your grants of review.  If you want to change this thing, you'll have to do it yourself.

Monday, September 22, 2014

Sessoms v. Grounds (9th Cir. - Sept. 22, 2014)

You can't get much closer than this.

It's a federal habeas case.  Miranda.  The district court denies the petition, and back in 2011, a three-judge panel affirms.  But the case gets taken en banc, and Judge Betty Fletcher authors a majority opinion that reverses and grants relief.

It's a close shave for the petitioner.  Six judges in the majority.  Five dissenters.  Couldn't lose a single vote and still win.  But win petitioner does.

Except it's not over.  The state petitions for certiorari, and the Supreme Court GVRs the case in light of an intervening decision.  So time for the Ninth Circuit to take a second look.

Petitioner hopes, however, for the same result.  The en banc court retains jurisdiction over the case on remand.  And a GVR isn't an expression of any view on the merits.  It's essentially the same issue, the only difference being a new case that doesn't particularly affect the result.

But while the new Supreme Court case doesn't matter, practical reality does.  Because during this whole process, the author of the majority opinion -- Judge Fletcher -- dies.  Which can matter a ton, because it's a 6-5 vote.

Will the judge drawn to replace Judge Fletcher be more like the other members of the prior majority (Judges Schroeder, Wardlaw, Fisher, Paez, and Milan Smith)?  Or more like the dissenters -- Judges Murguia, Kozinski, Silverman, Callahan, and Ikuta?

Ultimately, Judge McKeown gets drawn.  She then authors the new majority opinion.  Another 6-5.  With the same dissenters.

It's also an interesting case on the merits.  Here's how Judge McKeown begins the latest opinion:

"An American poet wrote more than 100 years ago: 'When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.' When a suspect says 'give me a lawyer,' that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal—it is not a maybe or a perhaps—it is an invocation of the Fifth Amendment right to counsel."

Hence the majority holds (once again) that petitioner is entitled to relief.  With one vote to spare.

The dissenters again dissent.  With a slight difference.  Last time, Judge Kozinski fully joined in the dissent.  Today, he does the same thing.  But he also writes separately.  Saying some fascinating stuff.

Maybe time changes things a bit.  Maybe reflection matters.  He still comes out the same way, saying that petitioner isn't entitled to relief.  But what he says bears substantial quotation.  Here's his take:

"This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. [Citations]

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessoms was bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., [Citations]. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. [Citations]. When courts bend over backwards to salvage evidence extracted byquestionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a na├»ve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end."

When was the last time you saw someone not only "reluctantly" dissent, but affirmatively express the view that the contrary majority position ultimately "prevails in the end"?

Not something you see every day.

This one's essentially over in the Ninth Circuit at this point.  But "the end" is far from here.  You'll see the state petition (again) for certiorari.

We'll see what the Supreme Court does.

Friday, September 19, 2014

Pope v. Babick (Cal. Ct. App. - Sept. 19, 2014)

The good new for respondent Matthew Babick and his counsel is that they won at trial, and they win the appeal as well.  Congratulations.

The bad news is that Justice Moore doesn't shy away from telling us what she things about Babick's counsel.  Her opinion expressly names Babick's trial attorney -- Gregory Kane -- and notes that he "directly violated a court order by eliciting causation evidence from a California Highway Patrol officer who responded to the scene. Kane was subsequently sanctioned $500 and the jury was given a curative instruction."  The Court of Appeal says that it "find[s] Kane’s behavior unacceptable from an officer of the court," and adds that "we disapprove of Kane’s actions in the strongest possible terms."  Justice Moore even ends her opinion by saying:  "Once again, we strongly disapprove of Kane’s behavior. If it were up to us, he would have been sanctioned far more than $500."  Yikes.

Don't think that Babick's appellate counsel --  Gregory P. Konoske and D. Amy Akiyama -- get off entirely scot free either.  With respect to them, Justice Moore says:   "[T]his court neither appreciates nor accepts counsel’s inapt and inept attempts during oral argument to minimize Kane’s misconduct."  Double yikes.

Again, Babick wins on appeal.  But his counsel take a beating.  A savage beating.

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.