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.

Absurd.

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.

Waiting.

Waiting.

Waiting.

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.

Absurd.

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.

IMHO.

In Re J.T. (Cal. Ct. App. - Aug. 7, 2014)

Jasmine M. is a 16-year old dependent of the court.  Who has a one-year old child.  Who's also a dependent of the court.

Let's hope this cycle ends.

Thursday, August 07, 2014

People v. Shapiro (Cal. Ct. App. - July 23, 2014)

Defendant talks in a chat room with a 16-year old girl.  They fall in love.  They have cybersex, which entails mutual masturbation over the internet while watching pornographic videos and telling each other what they'd like to do to each other if they weren't two thousand miles apart.

Put to one side that defendant lies about being 17 when he's really 59.  Also put aside the fact that the age of consent in Indiana -- where the girl is located -- is 16.  There's a whole lot of other stuff to put aside as well; feel free to read the whole opinion if you'd like.

Here's the issue:

Defendant's convicted under Section 288.3(a) of the Penal Code, which makes it a crime to contact a minor for the purpose of committing various crimes; in particular, here, the crime of sexual penetration of a minor.  What "sexual penetration" did defendant try to encourage?  Masturbation.  Since he told the victim that he'd like her to play with herself, and she did, he's guilty.  Because during the process, she "penetrated" herself -- "however slight" -- with her own finger, which counts as a "foreign object".

Defendant has a lot of arguments against that conviction, but the only one I'll mention is his claim that if that's really what the statute means, it's irrational and violates the Equal Protection Clause.  Because the statute criminalizes convincing a 16-year old two thousand miles away to masturbate, but does not criminalize convincing a 16-year old two thousand miles away to have actual sex.  Since "penetration" is one of the enumerated offense, but sex is not.  Surely actual statutory rape is worse than consensual masturbation, no?  So it's irrational to criminalize one but not the other.

The Court of Appeal "commend[s] defense counsel for his clever argument."  So I'll mention his name: Richard Power.  (Note to Rich:  Take care of yourself.  Of the six "Richard Power/s" ever to join the California Bar, four are already dead.  Only two remain.  That's a pretty high mortality rate for a single name.)

But Justice Ikola has a response.  He says that the statute makes sense because the Legislature could rationally conclude that consensual masturbation is, indeed, worse for a minor than actual sex.  To use his words:  "Foreign objects may be of varying degrees of size, shape, or texture, and thus present potential dangers to a minor’s genitals or anal opening greater than simple consensual intercourse. Thus the Legislature could rationally conclude that vaginal or anal penetration with a foreign object is more harmful than intercourse between a 16 or 17 year old minor and an adult."

I agree that one of these arguments is too clever by half.  Is it the defendant's, or is it the Court of Appeal's?

Wednesday, August 06, 2014

In Re A.L. (Cal. Ct. App. - July 23, 2014)

This opinion sounds like the plot of a soap opera:

"The parents . . . began dating around 1999 following Jennifer’s divorce from her first husband who supplied her with drugs. Jennifer was convicted of prostitution in 2006 and theft in 2007, and Richard was convicted for failure to appear on a written promise in 2002.

The parents married in 2008 and have four children together. The oldest, A.L., was born in June 2002. A son, I.L., followed in May 2004. E.L. was born next in July 2005. Their fourth child, O.L., was born in July 2008. 

[] The parents have a lengthy history of drug abuse. Jennifer began using methamphetamine when she was 15. She continued abusing the drug for approximately 15 years, and evidence in the record suggests she used drugs while pregnant with I.L. After achieving what turned out to be temporary sobriety around the age of 30, she relapsed in 2011, a year before filing the petition to terminate the guardianship. Richard also began using methamphetamine as a teen. He abused the drug for over 20 years, from the age of 16 until approximately the age of 40 when he enlisted in the Army in 2007.

Child Protective Services (CPS) received at least 11 referrals regarding the parents, four of which were substantiated for an absent or incapacitated caretaker, substantial risk or general neglect. To avoid having A.L. and I.L. removed by CPS in August 2004, Richard asked his stepsister, Shannon, to care for the children. Shannon lived with her minor children in a house on the property of Richard, Sr., Richard’s father and her stepfather. In early 2005, A.L. returned to live with the parents but I.L. remained with Shannon. In January 2006, Richard asked Shannon to care for A.L. and also for E.L., who had since been born. Because she was already caring for her own children and I.L., Shannon declined. Richard and Jennifer then approached Marjorie, Richard’s mother, for help with the minors since Richard had lost his job and they were losing their home. . . .

Beginning in January 2008, A.L. moved to Kentucky where Richard was stationed in the Army to live with the parents. Because Jennifer was pregnant with O.L. at the time, the guardian and the parents agreed E.L. would stay with her until O.L.’s birth. O.L. was born with severe health issues so the guardian and the parents agreed E.L. would remain in California with her until his health issues improved. E.L. eventually moved to Kentucky with her parents around August 2009. Richard was then transferred to Virginia and the parents, the minors, and O.L. relocated; I.L. remained in California with Richard, Sr., and Shannon, and did not join the rest of the family in Virginia until approximately January 2010.

In February 2010, Richard was deployed to Afghanistan. During his year-long deployment, Jennifer and the children moved into a house on Richard, Sr.,’s property in California. While the parents maintain that Jennifer cared for the children during this time, Shannon claims she was the children’s primary care-giver between February 2010 and March 2011 because Jennifer was abusing prescription and illegal drugs and had difficulty caring for the children. 

Richard returned from Afghanistan in late February 2011. Upon his return, he discovered Jennifer had been having a sexual relationship with an ex-boyfriend who was a drug dealer. The parents got into a domestic dispute over the affair and Jennifer assaulted Richard. Jennifer also inexplicably injured her foot that same day, although the parents deny the injury was related to domestic abuse. The next day, Richard’s stepmother reported the incident to police, and Jennifer was arrested for domestic violence. Jennifer was jailed for a few days, but the charges ultimately were dismissed. . . .

Several months later, Jennifer and Richard reconciled."

The only things missing entail twin sisters and a fake deaths.


Tuesday, August 05, 2014

Columbia Riverkeeper v. United States Coast Guard (9th Cir. - Aug. 5, 2014)

I don't know if I've ever previously seen an appeal to the Ninth Circuit from "An Order of the United States Coast Guard."  But now I have.

Judge Ikuta's opinion tells you everything you need to know about how the Coast Guard relates to the regulatory review process involved with liquefied natural gas facilities.  Truth be told, there's probably an extra 26 pages in there that the vast majority of us will never need to know.  (The opinion contains 27 pages.)

But the parties care, some random other people care, and it's a federal appeal, so Judge Ikuta spells it all out for anyone interested.

At least now, when someone asks you what sorts of appeals the Ninth Circuit hears, you can say:  "Well, orders of the U.S. Coast Guard, of course."

In Re Complaint of Misconduct (9th Cir. - Aug. 5, 2014)

This is one of my favorite Chief Judge Kozinski resolutions of judicial misconduct.  Not because it's the most important (at all).  Not because it's full of any Kozinskisms (it doesn't have any).  But because it's well-written, concise, and says exactly what it needs to say and no more.

Really well done.

Monday, August 04, 2014

Ringgold-Lockhart v. County of Los Angeles (9th Cir. - Aug. 4, 2014)

With all due respect to Judge Berzon, my personal view is that this opinion substantially understates the necessity of prefiling orders as a means of combating vexatious litigation.

Nina Ringgold is an attorney.  She's also been declared a vexatious litigant in California state courts.  A finding that's more than well-established given her history.  (I'll not link to the plethora of findings that concern Ms. Ringgold's conduct in state court.  But if you want to get a flavor for Ms. Ringgold, just google "Ringgold Vexatious Litigant" and read the results.  Wow.)

Ms. Ringgold extends her litigation to federal court, and the federal district court reviews her history and declares her a vexatious litigant and imposes a similar prefiling requirement.

The Ninth Circuit reverses.

Judge Berzon's opinion clearly reflects a legitimate concern with generally keeping courts open to litigants.  But we probably differ a bit on how that (entirely proper) interest is balanced against the harassment, and resulting harm to third party interests, that results from vexatious litigation.  And Judge Berzon's belief that the availability of Rule 11 sanctions may substantially solve the problem of vexatious litigation both overstates the utility of Rule 11, IMHO, and is particularly inapt with respect to Ms. Ringgold, as this opinion -- which describes Ms. Ringgold's conduct in paying prior sanctions that were imposed upon her in state court -- amply demonstrates.

One difference between Judge Berzon's view and mine may result from one of us being a little bit more intimately familiar with the consequences of vexatious litigation.  I also can't help but wonder whether the source of the particular order at issue here -- which was entered by Judge Real -- didn't come into play here.

I know that Judge Berzon remanded the case, and that it's possible that a more narrowly tailored (or factually supported) order might survive on remand.  I hope that's in fact what happens.

But in the meantime, more harm transpires.  Harm that I'd take at least a bit more seriously than I think is reflected in this opinion.

P.S. - I have a much greater problem with the State Bar of California. Which has apparently seen fit to keep Ms. Ringgold's disciplinary record spotless notwithstanding the numerous opinions with respect to her conduct.  Seriously?

Rhea v. General Dynamics (Cal. Ct. App. - July 21, 2014)

Let's put the undisputed facts on the table.  Facts that are relevant to the vast majority of the people who are reading this summary:

(1)  If you're paid a salary (as opposed to hourly), you don't get paid overtime/time-and-a-half.  Even if you work over 40 hours a week.  You're "exempt".  You'll work however long your employer demands (or you'll be fired).  Ditto for working more than eight hours a day.  If it's a 16-hour billable day, that's your lot.  No overtime pay.

(2)  In return, you get a corresponding upside.  If you work less than eight hours, your employer can't deduct anything from your pay.  That's the benefit of the bargain.  Go home early, working only six hours that day, and you still get paid the same.  That's what it means to be on "salary".

(3)  Take a whole day off, however, and your employer can legitimately deduct that day's pay.  Or require you to take a vacation day, a sick day, or whatever deal you've struck.  When you're not doing work at all that day, it's not part of the "salary" bargain that they still have to pay you.  You're on your own for that one.

Make sense?  That's the distinction between being salaried versus hourly.

So we know that when you take part of a day off, your employer still has to pay you for the day, and that when you take the whole day off, they don't.

But when you take part of the day off, instead of dinging your salary, can they take away a vacation day (or part thereof)?  In other words, if you go home early to catch your kid's soccer game, and so only work 7.5 hours, can they force you to take .5 hours as a "vacation"?  Even though you'd get no additional "vacation" time -- or pay -- if you had worked 8.5 hours that day?

The Court of Appeal says yes.  Even in California, they can ding your vacation/sick/personal days, and can even do it if you left at 4:59:30 p.m.  You're employer's a jerk, I might add.  But it's fair.  And legal.  At least according to the Court of Appeal.

I want everyone to know this rule.  Because it's important.  But I also wanted to make one comment about Justice Irion's equitable defense of this principle.

She argues that the rule's fair because, at least in the present case, the employer doesn't ding your vacation days if you work more than 40 hours a week.  Which is, admittedly, nice of them.  So if work 60 hours one week, you can indeed leave a little early on Friday to watch your kid play soccer and not lose vacation.  Big of 'em.

Two brief points, however.  First, the employer doesn't have to do this.  You'd still be "salaried" even if the employer dinged you for every second you worked under eight hours a day.  Even though you gave 'em 16 hours a day, six days a week, for thirty years.  So holds the Court of Appeal.

Second, even at "nice" employers like General Dynamics, notice that the exception only applies to




Friday, August 01, 2014

In Re Rebecca C. (Cal. Ct. App. - Aug. 1, 2014)

Justice Bigelow is right.  Just because the parent's using drugs doesn't allow you to take their kid away.  You've got to show some actual neglect of the child.

That said, Mother should still stop smoking reefer.  When eight of your nine drug tests come up positive, it's a problem.  When you can't stop using even after DCFS is on your butt, that's a sign -- a real, substantial sign -- that you need to get clean.

P.S. - Justice Bigelow says in the opinion:  "If a parent’s failure to keep on top of a teenage child’s homework assignments is sufficient to show 'physical harm,' many, many parents would be subject to DCFS intervention."  Word.

States v. Bad Guys (9th Cir. - Aug. 1, 2014)

The captions of the published Ninth Circuit opinions this morning make clear that it's not just private litigants who are getting in the game.  You've got one opinion in which the State of Hawai'i has sued numerous credit card companies (Capital One, Citibank, HSBC, etc.) for deceptive practices.  You see another involving a CERCLA suit by the State of Arizona against Raytheon.  To top it all off, we've got People of the State of California v. U.S. Department of the Interior, which addresses what we should be doing about the Salton Sea.

August:  A big month for states.

Rundgren v. Washington Mutual (9th Cir. - July 29, 2014)

So you want to be a rock star?  It's not all sex, drugs, and rock-and-roll.  Sometimes it's suing your lender for foreclosing on your place in Hawaii.

And losing.

That's the fate of Todd Rundgren.  You'd never know from Judge Ikuta's opinion that we're dealing with a rock-and-roll legend; instead, she plays it straight, and never once mentions that the plaintiff is famous.  But even if there's more than one Todd Rundgren in the world (and I doubt it), my money's heavily on there only being one of 'em married to a woman named Michelle.  This is the rock star.  As well as the unsuccessful appellant.

(You've heard his stuff, by the way, even if you're not deeply into 70's rockers.  Here's I Saw The Light.  Here's Hello It's Me.  At least until Todd reads this and issues DCMA takedown requests.  In meantime, have a glass of wine, kick back, and remember those halcyon days.)

As an additional aside, one great thing about looking up tangents regarding Ninth Circuit cases is that you sometimes learn fascinating things that you'd otherwise never know.  For example, here, I knew (in the back of my mind somewhere) that actress Liv Tyler was the daughter of Aerosmith frontman Steve Tyler.  But what I didn't know -- until now -- was that Liv Tyler's original name was actually Liv Rundgren.  Liv was apparently conceived while her mother and Rundgren were together (with on-and-off periods), but the product of a dalliance with Tyler.  Apparently Liv's mother knew that Tyler was the biological father, but named her Rundgren -- and listed Todd on the birth certificate -- in part to put some distance between her daughter and Tyler's drug-fueled ways.

Who knew?




Thursday, July 31, 2014

Luckey v. Superior Court (Cal. Ct. App. - July 22, 2014)

If someone doesn't come in and object to this class action settlement -- which involves a FACTA suit (credit card expiration dates printed on receipts) against Cotton On stores -- I'll be stunned.

It's not an attractive settlement.  It's also an affirmatively ugly process.

Take a look.  See what you think.

Wednesday, July 30, 2014

U.S. v. Hurtado (9th Cir. - July 29, 2014)

Inserting pop culture references or funny little asides into opinions doesn't always work for me.  But I nonetheless liked what Judge Silverman did here.

Yeah, they were unnecessary.  But they seemed entirely apt and not unnecessarily distracting.  One of 'em even brought forth an audible chuckle.

Here's the first:

"Hector Hurtado appeals the 46-month sentence imposed by the district court following his guilty plea to intentionally and knowingly importing 11.64 kilograms of cocaine into the United States from Mexico in violation of 21 U.S.C. §§ 952 and 960. Hurtado was caught driving a truck loaded with cocaine across the border, for which he was paid $3,500. Hurtado argues that the district court erred when it held that he was not entitled to the 'minor role' reduction provided for in United States Sentencing Guideline § 3B1.2(b).

Hurtado’s argument is essentially this: Just as all children in Lake Wobegon are above average, all drug couriers are, by definition, below average and entitled to the minor role reduction. Like the district court, we reject that argument. We hold today that the district court applied the correct legal standard, did not abuse its discretion in its application of the guideline to the facts of the case, and did not clearly err when it found that Hurtado was a typical commercial drug smuggler – no better, no worse – and not entitled to a minor role reduction. The district court was not clearly erroneous in finding that although Hurtado may have been a cog in some larger wheel, he was an essential cog who, solely for a sizeable sum of money, knowingly smuggled a large quantity of narcotics into the United States via a hidden compartment in his truck."

Now, I'm not a monster Garrison Keillor fan, and know a personal detail or two about the guy from a firsthand source that aren't too flattering, but I nonetheless thought the reference meaningful as well as enlightening.

Here's the second:

"There’s an old saying:  Crime doesn’t pay, but at least you’re your own boss. In this case, Hurtado wasn’t even his own boss; he was paid by others to commit the crime. However, the mere fact that Hurtado may have been doing criminal work for hire does not itself establish that he was a minor participant. That Hurtado’s supervisors, organizers, recruiters, and leaders may have above-average culpability – and thus are subject to aggravating role enhancements under U.S.S.G. § 3B1.1 – doesn’t mean that Hurtado is “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 n.3(A) (emphasis added). The requisite comparison is to average participants, not above-average participants."

I smiled at how that paragraph began.  Good inclusion.

People v. Hernandez (Cal. Ct. App. - July 29, 2014)

I don't know all that much about Anders/Wende briefs.  I don't write them.  They very rarely lead to published opinions.  So perhaps you should take what I'm about to say with a grain of salt.

But when I read the three pages of content in this opinion, I was struck by just how internally inconsistent the articulated standards appear to be.

I definitely agree with Justice Rylaarsdam that counsel need not raise silly issues.  If they're clearly unmeritorious, you're not obligated to raise them.  So, as Justice Rylaarsdam quotes from a prior case, you're not obligated to "raise[] one or two frivolous issues, easily disposed of by the inspection of a few pages of transcript."  Absolutely right.

On the other hand, the other quote Justice Rylaarsdam uses seems absolutely wrong to me.  That quote says:  "We hold that an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious."  Not in my book.

If I'm appellate counsel, I am not the one to authoritatively conclude whether an argument is right or not.  I may have my opinion.  Truth be told:  I normally do.  But that's not my job.  I'm here to decide if an argument on my client's behalf is possibly meritorious.  If so, I raise it.  If not, I don't.  That's it.  Whether I think that the argument has merit is, in my view, beside the point.

Let's make this concrete.  Assume I've been appointed to represent a criminal defendant on appeal.  I have reviewed the record and the law, and have come up with four different possible arguments:

I believe that Argument One is (a) likely to prevail, and (b) right on the merits.  Clearly I have to raise that one.  We all agree.

I believe that Argument Two is (a) unlikely to prevail, but (b) is right on the merits.  Surely I should raise that one too.  The fact that the justices on the Court of Appeal may, in my estimation, not be as bright as I am, or may read the law the wrong way, shouldn't stop be from raising an argument that I believe correctly states the law.  If only because I may be wrong (and let's hope I am!) and they may well end up (rightly) agreeing with me.  So I'm hoping we all concur that I have a duty on behalf of my client to raise Argument Two.

I believe that Argument Three is (a) likely to prevail, but (b) wrong on the merits.  Now, come on.  I surely have to raise that one, right?!  It's going to get my client off.  So, on his behalf, I clearly have to raise it.  The fact that I might think it erroneously reads the law doesn't matter.  It's arguable; indeed, so arguable that my prediction will be that neutral judges buy it and write it into law.  At which point it is law.  The fact that I don't think it's, in fact, a proper reading of the law is irrelevant.  Surely we can agree on that too, right?  I'm the lawyer.  Not the judge.  My subjective belief is entirely irrelevant.

So that leaves us with Argument Four.  One that I believe is (a) unlikely to prevail, and (b) wrong on the merits.  My view is that (b) doesn't do any work here.  Only (a).  To put it differently, my belief as to the "merits" is a one-way ratchet.  If I think the law in fact says X, I've got to raise that issue, even if I don't think the Court of Appeal will agree (assuming that my argument isn't affirmatively foreclosed by precedent such that it's frivolous to make an argument that my position is in fact "the law" or a good faith argument for the modification or reversal of existing law).  By contrast, the fact that I've decided (internally) that the law doesn't really say X doesn't matter.  We already established that in Argument Three.  Instead, what's doing the work -- what's dispositive -- with respect to Argument Four is that this argument's unlikely to in fact prevail.

Which means we also need to drill down on (a).  What do we mean by "unlikely to prevail"?  Usual non-legal usage would mean below 50/50.  But that's not the appropriate legal standard.  I raise plenty of arguments that I think have less than a fifty percent chance of being accepted.  So does every single competent lawyer in the history of the universe.  'Cause guess what?  You may be wrong.

Moreover, collectively, even a low probability of success can result in a win.  Counsel A has three independent arguments, each with only a 30% chance of success.  Counsel B has one argument with a 60% chance of success.  Guess who prevails more often?  Counsel A.  Surely you can't tell me that Counsel A doesn't have a duty to raise these three arguments on his client's behalf just because he concludes that each one of them is unlikely to succeed.  Moreover, any such rule would clearly be regressive, since a rich client could (and would) ethically find a lawyer to make 'em, whereas the poor client with appointed counsel would be stuck with your silly rule and stay in prison while the rich guy goes free.  Such a rule simply isn't supportable.

So by "unlikely to prevail," I think we clearly mean at least "less than 30% likely to prevail".  Truthfully, a lot less.  Like in the single digits.  In my mind, what we mean to say is that this argument is basically "frivolous".  It's silly.  It has such a low (or zero) probability of success that you're under no duty to raise it.  Whether -- and this part is important -- your client is rich (and hence you're retained) or poor (and you're appointed).

So when Justice Rylaarsdam's opinion -- quoting Justice Garner -- says that "an arguable issue on appeal consists of two elements," the first of which is that "the issue must be one which, in counsel’s professional opinion, is meritorious," if we're giving the term "meritorious" it's normal meaning, that's an erroneous proposition, in my mind.  We've instead got to separate out the objective and subjective beliefs with respect to "merit" and process them along the metric delineated with respect to Arguments One through Four above.  Moreover, if we get down the line to Argument Four, we've then got to decide the standard -- which I think is darn near (if not at) frivolousness -- and apply it.

None of which Justice Rylaarsdam's quote does.  It instead just flatly says that an argument has to be "meritorious".  That's the wrong standard, in my view.  On a plethora of levels.

Justice Rylaarsdam, like Justice Garner before him, admits that even though he's saying that "the issue must be one which, in counsel’s professional opinion, is meritorious" in order to be raised, "[t]hat is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success."  Which is helpful, maybe, a tiny bit, but not at all sufficiently clear or adequate to dispel the normal meaning of the term "meritorious".

With respect to the the former caveat -- that the contention must not "necessarily" achieve success -- I think we can all agree that's a response to a complete strawman.  Obviously no one's saying (or has ever said) that counsel only has to raise issues that have 100% probability of success (i.e., will "necessarily achieve success").  That's just silly.  So thanks for saying that's not the standard, but that doesn't really help us very much.

So that leaves us with the fact that the argument "must have a reasonable potential for success".  Okay. If we can agree on what you mean by that, maybe we can reach consensus.  But two points:

(1) Notice that we're not talking at all about subjective beliefs here.  We're merely talking about the objective probability of success.  Two problems:  (A) That somewhat conflicts with the opening line that to be raised, an issue must "be one which, in counsel’s professional opinion, is meritorious."  So if you're really redefining the term "meritorious" here, you need to be more explicit that you're moving from the subjective to the objective; and (B) even so charitably interpreted, this redefinition still does not correctly resolve Argument Two -- the one that's objectively (you conclude) correct, but that you nonetheless conclude is objectively unlikely to prevail.  Moreover:

(2) You haven't told me what a "reasonable" potential for success is.  I infer that you don't mean 50 percent.  (Which is what your use of the term "meritorious" would normally mean in this context.  An argument is either a "meritorious" argument or an "unmeritorious" one, and the binary nature of that description necessarily implies a 50/50 dividing line.)  Is it 30 percent?  Ten?  Three?  That's where the rubber hits the road.  And you're not telling me pretty much at all what's rubber and what's road.

Moreover, I've got a keen sense that's what a "reasonable" potential for success to you isn't the same thing to me.  Justice Rylaarsdam publishes this opinion to make clear his view that arguments that he labels "arguable-but-unmeritorious" should not be raised.  Something that's "arguable but unmeritorious" sounds very much to me like an argument that's -- depending on whether we're talking objectively or subjectively -- (1) only ten percent (or so) likely to prevail ("arguable"), or (2) lacks actual merit (i.e., a "wrong" view of the law or facts).

If it's the former, we disagree -- sharply -- on the number.  If it's the latter, we disagree -- sharply -- on the relevant standards (see Argument Three).  And if, as I fear, Justice Rylaarsdam might perhaps mean both, well, that's a double whammy, isn't it?

So I like that Justice Rylaarsdam publishes this opinion.  Truly, I do.  There are a lot of these briefs.  It's an important thing.  We want to get the standards right.  If there's a practice going on that we think is a waste of resources or improperly applies the law, we should (1) make the law clear, and (2) root these things out.  Count me in.

But I'm not at all persuaded that Justice Rylaarsdam's opinion either (1) sufficiently clarifies things, or (2) articulates the right standard in any event.  To put it a different way, the opinion is unclear, and if it were actually clearer (and hence helpful), it might well be wrong.

I've got to say, however, that it's possible that Justice Rylaarsdam and I agree.  I'd love to hear (truly) his take -- or the take of the rest of the panel (Justices Bedsworth and Thompson) [heck, pretty much anyone's informed take] -- on Arguments One through Four.  Am I right that all of 'em get made, with the sole exception of Arguments Four that are frivolous?  Or do we disagree on only the standard for Four?  Or do we disagree on that as well as Two and/or Three?

That'd be totally helpful for appointed counsel to hear.  Because I think answering those questions would actually make things clear.

And yes, I know, we can totally achieve consensus, and all agree, on opinions that are sufficiently indeterminate and unclear that everyone can read into them whatever they want.  But that's not what we should be doing.  We should ask, and answer, the hard questions.

I hope that Justice Rylaarsdam -- and/or others on the Court of Appeal -- do precisely that.

Tuesday, July 29, 2014

People v. Leonard (Cal. Ct. App. - July 29, 2014)

At first glance, this just looks like your typical conviction for pandering.  Typical (depressing) facts, typical (depressive) life of the relevant prostitute, typical (exploitative) conduct by the pimp.  A typical relationship that began this way:

"In 2011, Leonard approached Cynthia Jordan along El Cajon Boulevard in San Diego. Jordan was working as a prostitute at the time, and she thought Leonard might be a potential client. After speaking with him, however, Jordan understood that Leonard was interested in becoming her pimp. Jordan told Leonard her life had been difficult lately, and Leonard offered her protection. Leonard said he could provide Jordan with a place to live and food to eat if Jordan continued to work as a prostitute and gave her earnings to Leonard. Jordan soon gave Leonard a $100 'choosing fee,' symbolizing her choice of Leonard as her pimp, and moved into Leonard's apartment the next day."

You see this all the time.  The prostitute needs protection.  The pimp provides it.  Then you routinely see stuff like this:

"Leonard controlled Jordan's activities. Leonard told Jordan how to speak to potential clients, how much to charge, when to demand payment, and how to avoid contact with other pimps. Leonard and Walser [Leonard's friend] supplied Jordan with methamphetamines to feed her severe drug addiction. Jordan worked out of the apartment and in hotel rooms. Leonard eventually rented the apartment next door to use for prostitution. Leonard often drove Jordan to out calls, and he waited nearby to make sure Jordan turned the payments over to him immediately afterwards. Walser, and sometimes other men, rode along with Leonard for protection."

There's a stable.  Another prostitute named Hanson.  With whom you see more of the typical stuff:

"If Hanson did not have a client's payment for Leonard, or if Hanson spoke in a way that upset Leonard, he would order Walser to beat her. Leonard would say, 'beat that bitch,' and Walser would do so. After Hanson became pregnant, she stood up to Leonard more often. She did not want to continue working so many hours as a prostitute. Leonard responded that 'his other baby's mother . . . was out there working the blade until she was ready to pop,' and the beatings increased in severity. In one instance, Hanson and Jordan got into an argument. To punish Hanson, Walser punched her. Hanson suffered a cracked tooth, a dislocated jaw, and a broken lip from Walser's beating. Hanson also beat and cut herself.

Eventually, Hanson left Leonard. She returned to El Cajon Boulevard to work the streets. One night, Leonard pulled up beside her in his Cadillac. Walser was in the car as well. Walser grabbed Hanson and threw her into Leonard's Cadillac. They drove to Leonard's apartment, where Walser led Hanson to Leonard's bedroom. Leonard told Hanson she should not have left and she needed to return to Leonard. Leonard instructed Walser to beat Hanson, and he complied. Walser kicked Hanson in the stomach, back, legs, and face. Leonard kicked Hanson in the face as well. Leonard confined Hanson to the bedroom until Hanson agreed to work for him again. When Leonard released her, she returned to the streets and sought out her new pimp, Kevin Smith. Hanson soon started bleeding profusely as a result of the beating. Smith drove her to a hospital emergency room, where she suffered a miscarriage."

All of this is worth mention.  Not because it's unusual.  But because it's nonetheless important to know the next time you might think that sex work is no big deal because it's performed between consenting adults.  There's a real underbelly here.  Not a pretty one.

But I mention this case for a different reason as well.

Picture in your mind the defendant, Leonard.  The big bad pimp.  Imagine what he looks like as he goes about his daily routine and interacts with his prostitutes.  Providing them "protection" and harming them in all the ways described above.  Got the picture in your head yet?

No, I'm not going to ask you what race he is.  I'm instead going to ask if the picture in your head is consistent with this description of Leonard's life:

"Because Leonard has muscular dystrophy and uses a wheelchair, Walser assisted Leonard with certain daily activities. Walser's duties included bathing and dressing Leonard, lifting Leonard into and out of his wheelchair, and placing Leonard in his car."

Not what you were thinking, huh?

People v. Redd (Cal. Ct. App. - July 28, 2014)

What do you think the going rate for a smart phone (i.e., a cell phone with internet access) is in prison?

Answer:  $1000.

Nice work, if you can get it.

Of course, you also risk -- as here -- an additional seven years in prison if you get caught.  So you've got to definitely be aware of that downside.

I also thought it was interesting that the defendant's name in this case was "Redd".  Given that the opinion involves smuggling things (here, cell phones and tobacco) into prison, it reminded me of The Shawshank Redemption.  In which a similar character, "Red", is a "man who can get things" (i.e., smuggle them into prison).  And does.

Except Red never got caught and busted for seven extra years.

More proof that crime in the movies is a lot more fun than crime in real life.