Friday, April 29, 2005




Thursday, April 28, 2005

O'Connell v. City of Stockton (Cal. Ct. App. - April 22, 2005)

I learned a fair bit from this case. First -- and I apologize if this was already obvious to everyone else in the universe (as it might well be) -- I learned that in California, there's taxpayer standing under CCP 526a to enjoin expenditure of any public funds resulting from the enforcement of an unconstitutional law. And also that this is a neat way around potential statute of limitations problems. I consider myself fairly well-read. But this was a glaring gap in my knowledge, since I had no idea that CCP 526a even existed. And it's a neat little statute. So I learned something right there, and something that many lawyers might well effectively put to use. (Though since the doctrine apparently limits one to a facial challenge, the statute isn't as powerful as one might hope, and many of the claims in this particular suit are rejected precisely because they're only cognizable in an as-applied challenge.)

Second, this is also a great procedural due process case. Indeed, it would be a great review for my first-year Civil Procedure students, who are right now busily preparing for their final exam. (Unless they're wasting their time reading this blog, in which case I can only say: GET BACK TO WORK!) At issue is whether the City of Stockton can seize cars that have been driven to buy drugs or solicit prostitutes. These are increasingly common ordinances, obviously. Justice Butz holds the statute constitutionally infirm on procedural due process grounds, during the course of which she conducts a darn thorough analysis and application of the Supreme Court's relevant (Mathews/Snidach/Fuentes) line of cases. The problem here is that the critical post-seizure hearing simply isn't prompt enough; indeed, it probably won't occur for months. And that's simply too long not to have your car. So I think she's right as to the statute's invalidity.

There's another part of the opinion (Part VII) where Justice Butz also holds that these municipal ordinances are pre-empted by state law. That's obviously important as well, and unlike the procedural due process point, is not one that the City can change by merely tinkering with its own laws. And it's not only important, but in finding the ordinance pre-empted, the Court of Appeals also reaches a finding directly contrary to Horton, a decision from the First Appellate District. So you're almost certainly looking at the California Supreme Court taking up the case. Which I'm sure Justice Butz knows as well, which may (in part) be why she writes a 50-page opinion. But it's a good one.

Wednesday, April 27, 2005

Gallant v. City of Carson (Cal. Ct. App. - April 20, 2005)

This is a case worth reading for two reasons. First, as a practical matter, it's important, because the court holds even if a party makes evidentiary objections in its papers in connection with an anti-SLAPP motion, it waives those objections for purposes of appeal if it does "remind" the court at the hearing that the court must rule on those objections. Given the increasing use of anti-SLAPP motions, the preferential ability to appeal the resulting decision, and the often-critical nature of evidentiary objections in connection with such motions, this is a pretty important holding, and one that counsel should definitely keep in mind.

Second, the opinion also contains an enlightented debate between Justice Mallano, who's in the majority, and Justice Vogel, who dissents, about the merits of this holding. Both have very good points, and both articulate their positions well. Justice Mallano argues that because evidentiary rulings are so critical, we need parties to remind the courts to rule on such objections in anti-SLAPP motions -- at least if they want to preserve these objections for appeal -- for the same reason we have this rule in connection with summary judgment motions. But Justice Vogel responds that summary judgments motions are unique and that we should not extend the obligations thereunder to anti-SLAPP motions, particularly since imposing a duty upon counsel to "remind" the judge to do what s/he was obliged to do in the first place -- rule on the objections -- places counsel in a fairly awkward position vis-a-vis the judge.

It's a good debate.

Tuesday, April 26, 2005

Tchoukhrova v. Gonzales (9th Cir. - April 21, 2005)

This is the type of case that's right in the middle of Judge Reinhardt's wheelhouse. He's at his best when he's writing opinions in such cases. And he hits this one out of the park.

At issue is whether asylum can be granted to a person (and his family) when he is disabled and persecuted in his native land on that basis. Judge Reinhardt -- and this should come as a surprise to utterly no one -- holds that he can, and orders withholding of deportation. And Judges Tashima and Wardlaw agree.

The first seven pages of this opinion are masterful. They recount in detail the circumstances the surrounded the birth of this disabled child in Russia and the treatment he subsequently received. Anyone who fails to be touched by Judge Reinhardt's recitation of the facts here is entirely heartless. This is not a well-told story to which we have numbingly become accustomed. Judge Reinhardt's opinion begins with a powerful emphasis on the facts that both touches the reader's soul and provides a concrete setting in which the subsequent legal analysis that he performs is to be applied.

This is one way to write opinions that persuade. And Judge Reinhardt is a master at it. This is an outstanding piece of legal writing. It is one of Judge Reinhardt's finest opinions in a while. Great job, ex-boss.

Monday, April 25, 2005

Bains LLC v. ARCO (9th Cir. - April 19, 2005)

This is a good, well-written opinion by Judge Kleinfeld. It also involves some chilling facts regarding alleged discrimination against Sikhs. So it's definitely worth reading. Even though I think Judge Kleinfeld makes at least a couple of fairly critical mistakes.

First, the good part. Style aside (and, as I said, I think the writing is excellent), on the merits, Judge Kleinfeld gets the inconsistent verdict part exactly right. Which is no small task. This is a complicated area, one about which I've written a little bit in my academic work and argued in the Ninth Circuit. (Blatant tooting-my-own-horn alert: My reference at the end there was to the $3.2 million verdict thrown out for inconsistency that I convinced the Ninth Circuit to reinstate in Duk v. MGM.) Notwithstanding the difficulty of the relevant area, Judge Kleinfeld correctly -- and cogently -- explains why the jury's liability finding (and $1 verdict) on the Section 1981 claim wasn't internally inconsistent. Great job. So I agree with pretty much everything that Judge Kleinfeld says in the first 20 pages of the opinion and his resolution of the vast majority of the issues raised by ARCO on the appeal.

But then there's the not-so-good part. Those darn last four pages. Which is where Judge Kleinfeld starts to fade.

This is the part of the opinion where he addresses the sad fact that the jury awarded $5 million in punitive damages on the Section 1981 claim but awarded only $1 in compensatory damages. That's excessive. Which Judge Kleinfeld gets right. But his analysis is a bit off, and these errors substantially affect the result. First he concludes that the appropriate compensatory damage figure upon which to apply the State Farm "punitive damages single-digit multiplier" test is really $50,000 -- the amount the jury awarded on the separate state law breach of contract claim -- rather than the $1 they awarded on the Section 1981 claim. But that's wrong. He says that the $50,000 figure is the right one since the jury could have concluded that the contract would not have been terminated but for the discrimination. But the jury clearly rejected such a finding by awarding only $1 rather than the $50,000 in damages they found on the contract claim. So you can't use that figure. Which in turn means that you've got to do the tougher job of figuring out the appropriate (and constitutional) punitive damage award on a $1 judgment in a case such as this rather than simply multiplying $50,000 by some single-digit figure. Sorry, but that's just what you gotta do. You can't replace the $1 awarded on this cause of action with $50,000 awarded on a different cause of action. You just can't.

Plus, even if you could, Judge Kleinfeld would still err by concluding the opinion as he did. He remands to the district court to enter a judgment somewhere between $300,000 -- the improper $50,000 figure times six -- and $450,000 (the same figure times nine). But that's wrong too. The district court should have discretion to order a lower figure. Or to order a new trial rather than a specific remittitur. There's nothing at all in Judge Kleinfeld's opinion that attempts to justify a 6x minimum; indeed, the $300,000 limit in Title VII cases that he mentions would suggest a 6x maximum. In any event, the district court clearly has discretion to order a new trial on this issue rather than unilaterally impose a figure alongside a conditional new trial. When a jury uses a wild (and constitutionally excessive) multiplier, the district court surely can order a new trial rather than merely impose the highest possible constitutionally permissible figure. So too on remand.

So Judge Kleinfeld starts extremely strong, but ends fairly weak. I understand why he wants to reach the result he does and to award $300,000-450,000 in punitives. But that's not his role. What he orders on remand is not the appropriate remedy for the errors that he (correctly and cogently) isolates.

Baldwin v. Placer County (9th Cir. - April 19, 2005)

Courts don't like it when you lie to them. Especially when you do so in order to get a search warrant. That's the not-so-hidden atmospheric of this case, in which Judge Noonan affirms the denial of qualified immunity in a civil rights lawsuit brought on behalf of a married couple against several officers.

Take a gander at the "Facts" section Judge Noonan's opinion. I don't know if plaintiffs are correct. But the evidence they submit on the point sure gives one reason to believe that it's not-so-farfetched to think that the police may well sometimes submit baldfaced lies in order to obtain a warrant. Which is more than a little bit frightening.

Sunday, April 24, 2005

United States v. Zone (9th Cir. - April 18, 2004)

Be wary of state prosecutors who offer great pleas. That's the hidden -- and important -- message behind the holding in this case.

The defendant here gets arrested on various charges, including carrying a concealed handgun. Nevada could charge him with a plethora of offenses, but instead offers him a seemingly great deal. They let him plea to a misdemeanor -- carrying a concealed weapon -- for which he's sentenced to a whopping $500 fine. A great outcome for the defendant, right?

Wrong. 'Cause shortly after the defendant's plea, the U.S. Attorney in Nevada indicts the defendant for being a felon in possession of a firearm. Which ain't a misdemeanor, and for which the maximum sentence is 10 years in the pokey (rather than a mere $500). And what's darn good evidence of the defendant's guilt? His recent guilty plea to the state offense. Which is basically all the prosecution needs. And don't think that the "great" deal defendant got in state court is a stunning coincidence, since the federal and state officials had been working together in a federally funded task force to target people precisely like defendant for prosecution.

The case is a healthy reminder of the fact that -- as we all know -- the Double Jeopardy Clause has been repeatedly held inapplicable to dual prosecutions by separate sovereigns. There's a limited exception (the "Bartkus exception") that applies when the state prosecution is merely a sham and cover for the federal prosecution. But the panel holds that this exception doesn't apply here; indeed, that defendant isn't even entitled to discovery on the issue, since the mere fact that there's a jointly funded taskforce working closely together isn't enough to give rise to a sufficient inference that the Bartkus exception might be applicable.

I've got no real beef with the outcome. Though the panel could have been a little more forthright about the evidence that defendant submitted. The panel claims that he's merely relying on the fact that there's a joint taskforce where federal and state officials are working together. But that's not really right. Rather, the best evidence that the state prosecution was a sham cover for the subsequent federal action was, in my mind, the stunningly good deal that defendant received in state court in return for his guilty plea, followed promptly thereafter by his federal indictment. Do you think Nevada regularly offers convicted felons who are caught with concealed weapons misdemeanor pleas and $500 sentences? I doubt it. That's the best evidence that the exception applies, and the panel doesn't even mention it.

There's another part of the opinion that may be interesting to federal courts scholars; namely, whether the denial of discovery on the issue is an appealable collateral order. But all I'll really say on this issue is that the majority (Judges Kozinksi and Thomas) is right and the concurrence (Judge Wallace) is wrong. Fairly clearly, I think. But I'll say nothing more on this point, and instead leave the dueling opinions to battle it out amongst themselves.

Friday, April 22, 2005

International Federation v. Superior Court (Cal. Ct. App. - April 18, 2005)

Justice Parrilli writes an excellent -- and important -- opinion in this case. She holds that the right to privacy does not preclude dissemination of salary information for public employees who earn over $100,000, and that these documents are instead public records properly subject to disclosure under the California Public Records Act. The people have a right to know who (and how much) its high-salaried officers are being paid.

This is the best opinion that I've seen Justice Parrilli write in a while. I also think she's right, and she does a great job of explaining why. The fact that she goes out on a limb to disagree with two other Court of Appeal decisions (City of Los Angeles and Peerless) that are to the contrary to her holding -- and persuasively argues why these cases are either distinguishable (City of Los Angeles) or wrongly decided (Peerless) -- only makes the opinion more impressive.

The resulting split in authority, alongside the importance of the issue, may well result in the case being taken up by the California Supreme Court. But when and if that happens, I think that Justice Parrilli's holding should be affirmed.

Great job, Joanne.

Thursday, April 21, 2005

Gober v. Ralphs Grocery Co. (Cal. Ct. App. - April 19, 2005)

"Oopsies. I guess we shouldn't have asked for a new trial after we lost the first time. Then I guess we shouldn't have messed up the appeal after we lost the second time. Sorry that our mistakes cost you millions of dollars in additional punitive damages. My bad." These are the kinds of things that you hope you never have to say to your clients. But it's apparently what counsel for Ralphs has to say to their client in this case.

Full disclosure up front. I know a fair amount about this litigation in part because, back in 1999, I represented a witness who was deposed in this matter, and -- successfully -- opposed the request by counsel for plaintiff in this case to hold her in contempt. (Actually an interesting story by itself, but I'll refrain from digressing.) My client was one of the people who allegedly witnessed misconduct by the main player in the litigation, Roger Misiolek, and I successfully quashed the subpoena that was -- allegedly (but not in fact) -- served on my client.
That disclosure made, I'm not revealing any confidential information when I say that the lawyers in this case are eventually going to have to answer to Ralphs, which will probably be more than a bit irate at them. This was a sexual harassment case, and, at the first trial, Ralphs' lawyers lost. Big time. Plaintiffs were awarded a total of $550,000 in compensatory damages and $3.3 million in compensatory damages. Ralphs decided to request -- and received -- a new trial on the punitive damages. So good so far, right?

Wrong. At the retrial, plaintiffs were awarded a total of $30.0 million in punitive damages -- almost 10 times more than the original judgment! Oops. Admittedly, Ralphs persuades the trial judge to reduce those a little bit, which orders each plaintiff to either accept a remittitur to 15 times their compensatory damages or deal with a new trial. At which point two of the plaintiffs -- the two with the biggest compensatory damage awards -- agree to accept the remittitur, and four don't. They want a third trial. Presumably because they fully expect even more after the third trial!

So now Ralphs is on the hook for $550,000 in compensatory damages -- with no way out -- as well as $4.5 million in punitives to the two plaintiffs who accepted the remittitur. So it's already $1.2 million worse off (plus interest and fees!) than it was after it lost the first trial. Plus it still has $20 million extra of exposure to the four plaintiffs who didn't accept the remittitur! Which is $18.7 million more than these guys had won at the first trial. And remember -- whereas, at the first trial, these four plaintiffs only got a total of $1.325 million in punitive, after the second trial, they rejected a remittitur that would have given them $3.84 million! They obviously think they're going to get even more at Trial #3. Someone should admittedly check my math on all this, since these figures aren't precisely expressed in the opinion. But I'm pretty sure I'm right. Which means that Ralphs is worse off $1.2 million with respect to two plaintiffs and -- if counsel for the four plaintiffs is acting at all rationally -- at least $2.5 million worse off with respect to the other four. So they've thrown out another $3.7 million, plus costs and fees (both theirs and the other sides!), than had they simply sucked up the result of the first trial.

Pretty bad, eh? But wait. It gets worse! Ralphs files an appeal from the results of the second trial, arguing that the punitive damages are excessive. But Justice McIntyre dismisses their appeal on the ground that they terroneously appealed from the judgment and didn't appeal the new trial order. Which means that the Court of Appeal doesn't reach any of their arguments, and Ralphs is bound. Ouch!

So you've got a slew of strategic and procedural mistakes by the lawyers here. That end up costing the client many, many millions of dollars. That's gotta hurt.

Justice McIntyre doesn't talk about the strategic errors here. But they're definitely worth mention.

P.S. - I'll refrain from listing the lawyers for Ralphs, partially because I'm nice (yeah, right) and partially because it's not entirely clear which sets of lawyers are responsible for which set of mistakes. However, I will mention -- since I was quite surprised to discover -- that three of the lawyers for the plaintiffs (Sanford Rosen, Ernest Galvan, and Sarah Zimmerman) are graduates of Yale Law School, my wife's alma mater. It's not often you see Yalies doing actual legal work. Much less on the plaintiff's side. So I thought I'd mention it.

Wednesday, April 20, 2005







Tuesday, April 19, 2005

United States v. Nava (9th Cir. - April 18, 2005)

It's an internecine battle of the right wing in this case. And the young turk prevails over the old guard. At least in part because the newbie (Judge Bybee) is right, the old guard (Judge Rymer) is wrong, and the swing vote (Judge O'Scannlain) is bright enough to know the difference.

You pretty much can't imagine a worse panel than these three if you're either a criminal defendant. Or, as here, an (allegedly) sleazy family member who's trying to avoid the forfeiture of property as a result of your father's ("Big Vic") federal conviction for conspiracy to distribute methamphetamine. Nonetheless, in a well-reasoned and articulate opinion, Judge Bybee holds that the property here can't be forfeited, at least in an in personam proceeding under Section 853, because the daughter (not the father) owned the property. Judge Rymer dissents. But Judge Bybee's opinion and analysis is much better. And Judge O'Scannlain agrees.

What saves the daughter here is the confluence of several factors. First, although the panel is incredibly conservative, they're also federalists, and (correctly) decide -- over Judge Rymer's dissent -- that ownership of property under Section 853 should be decided under state rather than federal law. Second, in my mind, the majority is probably willing to let the daughter win for now in large part because they think that it won't matter: that she can avoid perhaps forfeiture under Section 853, but that she'll eventually lose the property anyway under the civil (in rem) forfeiture provisions of Section 881. Which Judge Bybee expressly alludes to in the penultimate paragraph of his opinion. Absent those two facts, I think the panel would have come out the other way and affirmed the forfeiture.

Whatever the motivation, however, the panel gets it right. And Judge Bybee writes a good opinion.

Monday, April 18, 2005







Sunday, April 17, 2005






Friday, April 15, 2005

Hudson v. Craven (9th Cir. - April 6, 2005)

You can't tell your students to join you in a riot (here, the WTO "Battle for Seattle" in 1999) by telling them that it will enable them to network with you and your friends during the festivities and that what they see during the fun might be on the final exam. And if you do, and the University fires you, you won't win your lawsuit.

Sure, Judge McKeown's opinion in this case is a little bit more complicated than this. 'Cause I've boiled 20 pages of commentary and facts into two sentences. But that's basically what she holds. And she's right.






Thursday, April 14, 2005

Mileikowsky v. Tenet Healthsystem (Cal. Ct. App. - April 6, 2005)

I was on board for the opinion by Justice Curry in this case until the third-to-last paragraph. Then he lost me.

One can easily understand why Justice Curry reaches the result he does. Plaintiff apparently isn't a big fan of providing discovery. Defendant files five motions to compel and requests terminating sanctions five times, and, in the end, finally obtains them. Plaintiff clearly isn't playing the discovery game properly. So after the dozen pages in which Justice Curry recounts plaintiff's improprieties during discovery, he concludes that the order for terminating sanctions was properly granted.

(Tangent. A google search reveals that the plaintiff appears to be an even more interesting character than Justice Curry's opinion reflects. He's a medical doctor who apparently was not only booted out of the hospital at issue in this case, but also had his privileges revoked at Cedars-Sinai. He has filed a lawsuit (which looks like it's still being litigated) against the Medical Board of California, which -- for various reasons -- ordered him to take a psychiatric examination. Plus it looks like he got scammed (allegedly, of course) for $275,000 by a Belgian who said he was an attorney and investment banker but wasn't. So it looks like Gil Mileikowsky has at least had an interesting life.)

Back to the merits. Okay, so the guy plays very, very fast and loose during discovery. So I agree with Justice Curry that he's a guy who's lawsuit is begging to be dismissed for discovery abuse. But -- as we all know -- you can only impose terminating sanctions for violating an order. And that's the problem. Admittedly, plaintiff tries to violate an order. The parties enter into a stipulation in January 2002 in which plaintiff agrees to serve supplemental discovery responses by February 15, 2002, and he fails to do so. That's the "order" that plaintiff allegedly violates. But the problem is that -- for whatever reason -- that stipulation was neither submitted to the court nor ever signed by a judicial officer. Which means it isn't an order.

Justice Curry responds that the stipulation is still binding because it's signed by the parties. True enough. It's a contract. It's binding. I follow him so far. But it's still not an order. And it's only the violation of a judicial "order" that permit the imposition of termination sanctions under Sections 2030 and 2031. (Parenthetically, I'm not even sure that it's even a binding contract. Typically, signature by the court is a condition precedent to an effective stipulation. If the judge doesn't sign, I'm not bound. But one need not make this move to find Justice Curry's opinion wanting. Whatever might be said, the agreement of the parties isn't a judicial order.)

So I understand why Justice Curry wants to find the way he does. But he just can't. The sanctions here, based as they were on the entry of a terminating sanction, should have been reversed.

(One final digression. The parties are represented by competing beach-loving counsel. Plaintiff's attorney is Roger Diamond, an attorney in Santa Monica and graduate of UCLA and UCLA Law. Defendants' counsel are Mark Kawa -- an attorney on PCH in Redondo Beach (and a USC Law graduate) -- and Joseph Cilic, an attorney whose office is off of Wilshire and a UCLA Law grad. Here, Redondo and Wilshire beat Santa Monica. Even though Santa Monica is, as a matter of doctrine, technically right.)

Wednesday, April 13, 2005






Tuesday, April 12, 2005

Chamberlain v. Ford Motor Co. (9th Cir. - March 31, 2005)

This is a very well-written and persuasive opinion about when the Ninth Circuit will entertain discretionary interlocutory appeals from class certification decisions pursuant to the (fairly new) provisions of Rule 23(f). I thought that both the substantive standard articulated by the court and the application of those principles to the present case were entirely right. Well done.

Burlington Northern v. District Court (9th Cir. - March 31, 2005)

This is an important case for anyone who litigates in federal court, and addresses the all-too-frequent practice of many lawyers of asserting privilege objections without production of a privilege log. Judge Goodwin finds that this practice doesn't automatically waive the assertion of privilege, but simultaneously holds that, in the present case, this fact plus the failure to provide the promised log for another five months permits the district court to conclude -- as it did here -- that the defendant had waived its privilege objection, thereby requiring it to produce all of its privileged documents. Which is a definite warning to anyone who continues the practice.

There's other good stuff in here as well, including a (seemingly approving) reference to the order entered by the district court below that required defendant to organize its production of documents to correspond to particular requests rather than merely produce boxes and boxed of unorganized material. It's always nice when an appellate judge demonstrates familiarity with the trials and tribulations of the grunt associate (or sole practitioner) who's forced to slog through obstreperous discovery. As Judge Goodwin does here.

Monday, April 11, 2005



Sunday, April 10, 2005

Kaiser Foundation Hospitals v. Superior Court (Cal. Ct. App. - April 4, 2005)

I'm conflicted about this case. But the conflicts are all idiosyncratic, and have very little to do with the merits. On the one hand, I'm not a huge fan of Kaiser. On the other hand, I am a huge fan of Kaiser's attorney, Sam Shepherd, who was a former roommate of mine and someone whom I absolutely love (notwithstanding the distressing fact that I haven't talked to him in years). So I was sad to see Kaiser win, but happy to see Sam win. Similarly, I was simultaneously glad that Justice Robie wrote an opinion that clearly demonstrated that he had given the case a ton of careful thought and evaluation, but bummed that it took him 44 pages to resolve this not-massively-complicated petition. Brevity, after all, has its virtues.

On the merits, I think that Justice Robie -- and hence, by implication, my friend Sam -- gets it right. You've got to exhaust your administrative remedies by going through the hospital peer review process before you file suit, even if that process doesn't start within the 60-day period provided by Section 809.2 of the Business and Professions Code. This isn't an egregious case where the hospital is screwing the doctor and exhaustion would be futile; rather, the delays here were generated by far more mundane reasons, such as the hospital wanting to schedule the hearing for a day that would be convenient to counsel. I'm quite certain there are exceptions to the exhaustion requirement. But this isn't one of them.

Good job, Sam.

Friday, April 08, 2005

Parnell v. Adventist Health System (Cal. Supreme Ct. - April 4, 2005)

Here's an opinion by Justice Brown with which I agree. Admittedly, that's not saying much, since the decision was unanimous. But the opinion is still worth reading, for at least two different reasons.

First, it reaches an interesting result, especially for someone like Justice Brown. Don't get me wrong: again, I agree with the decision, which holds that a hospital doesn't have a statutory lien on settlement proceeds when the patient's insurance company has already paid the hospital all the money it's contractually owed. But it's very hard to reach that result by relying on either the text or legislative history of the relevant statute, both of which provide more than tolerable support for a contrary holding. The easiest way out is to engage in something akin to the common law tradition and to interpret the statute in a manner that makes it better (i.e., that interprets the statute in the way that we think would make more sense). Personally, I don't have a huge problem with such an approach, which is why I agree with what the California Supreme Court does here. But hard core textualists -- including Justice Brown -- do have a huge problem with it. At least usually. But apparently not here. Which is one reason why the unanimous result is a bit surprising. And particularly surprising since it's an approach articulated by Justice Brown.

Second, the opinion is also interesting for the subtle, but critical, cop-out at the end of the opinion -- a part of the opinion that, as a practical matter, I believe will make the central holding of the case utterly irrelevant. Justice Brown concludes that the hospital doesn't have a lien because it's essentially already been paid in full by the insurance company. Fair enough, right? After all, if the hospital thought that it was reasonable to get paid $500 for X procedure, why should it get more? If it can make a profit with $500 -- which you know it can, since this figure is the result of arms-length negotiation -- why should it be permitted to charge $700 (or, more accurately, pursuant to the statute, why is any amount over $500 "necessary and reasonable")?

But in the final paragraph of this 23-page opinion, Justice Brown makes it clear that this is not the basis for her holding; indeed, that the hospital would have a lien if they just amended their contractual agreement with the insurance company. Which, after this opinion, is exactly what the hospital is going to do. The hospital wants more money, so it will asks the insurance company to still pay only $500, but to let the hospital charge the third party tortfeasor another $200. It's not the insurance company's money, so what do they care? They'll agree. And it's not a co-payment or anything that a policyholder will typically notice, so the insured almost certainly won't know enough to effectively object either -- indeed, given the randomness of application of this provision (which is basically third party subrogation), the transaction costs of objecting would outweigh the benefits. So the hospital will end up making $700 for a procedure for which we know they can derive an acceptable profit at $500. The insurance company won't care since it's not their money, and the person that gets hosed -- since it's their money that's being taken -- is the insured. Awesome, eh?

So once you add that last paragraph, maybe it's not so surprising why Justice Brown is suddenly willing not only to sign on to a common law approach to statutory interpretation, but is also willing to be the author of an opinion that ostensibly adopts such an approach. For that last paragraph, you'd be willing to give up a lot. But why the rest of the California Supreme Court is willing to agree to the last paragraph of the opinion -- without comment or even seeming recognition of its significance -- is a mystery to me. It's the only part of the opinion that I think is likely wrong, and is also the only part that is practically likely to matter.

Thursday, April 07, 2005


In a previous post, I took Judge Fernandez to task (playfully, of course) for struggling to use a plethora of twenty-cent words. To which one reader responded (playfully, of course) by sending me an insightful e-mail that said that he thought that Judge Fernandez might have been deliberately obfuscatory in order to mock (playfully, of course) the holding of the Supreme Court that remanded he case back to the panel. Which I thought was an interesting point, and I reread the opinion to see if I agreed. Ultimately, I didn't, but the e-mail nonetheless left a tiny bit of doubt in my mind.

At least until I read this case, which put those doubts to rest. Here, Judge Fernandez again (in the penultimate paragraph) uses one of the same twenty-cent words that he used in McNeil: "recrudescent". Well, I thought, maybe the dude is so subtle that he's totally mocking the Supreme Court by issuing two opinions in two days with fancy-pants words. What a joker! Hilarious! But if it was a joke, apparently it's a longstanding one, as Judge Fernandez used this word not only in Gunning and McNeil, but also the (unpublished!) opinions in Arc of Washington State (2005 WL 705372) and Boyle (2005 WL 703397) as well as in his opinions in David (307 F.3d 1143, 1148), Smith (233 F.3d 1188, 1194), Knight (219 F.3d 1138, 1144), Hinduja (102 F.3d 987, 991), Springer (51 F.3d 861, 868), and Phillips (1992 WL 231124, *7).

Admittedly, maybe everyone is just more erudite than I am, and what I call twenty-cent words are really the equivalent of "dude" amongst the intelligentsia. Though if that were the case, one would still have to explain how, in the last twenty years, the remainder of the Ninth Circuit has somehow managed to write tens of thousands of published and unpublished opinions during this period without ever resorting to the word "recrudescent," whereas Judge Fernandez felt compelled to use it ten different times (and four times -- in Gunning, McNeil, Arc of Washington State, and Boyle -- in three days!). (Admittedly, once, almost exactly 20 years ago, Judge Beezer used the word in a quote he inserted from another case. But that was a quote, and it was 20 years ago. This hardly gets Judge Fernandez off the hook.)

Never let it be said that I'm not willing to reexamine my conclusions. But on this one, I think I've got Judge Fernandez pegged about right. (Random statistic: Whereas Judge Fernandez uses the word "recrudescent" ten times, he only uses the word "dude" once. And that's in Landrigan, when he's simply quoting the testimony of the defendant as he rejected the suggestion "that I was supposedly fucking this dude." Not exactly the type of language that I'd expect to be penned by Judge Fernandez himself.)

Wednesday, April 06, 2005

Insyxiengmay v. Moran (9th Cir. - March 30, 2005)

Imagine that you're a state prisoner who's got a habeas petition that's arguably procedurally defaulted and that is subject to the AEDPA. You file your federal habeas petition, lose, and then appeal. You brief the case and then nervously wait until, a week before the oral argument, you find out who's on your panel. And it's Judges Reinhardt, Dorothy Nelson, and Thomas.

You let out a huge sigh of relief. Not your dream panel, but close enough. You throw a party. And the State gets ready to file a petition for rehearing en banc.

So it's not all that surprising that the Ninth Circuit in this case holds that the petitioner is entitled to at least an evidentiary hearing. Not that the panel is necessarily wrong: far from it. But who's on the panel clearly makes a difference. As it does here.

21st Century Ins. Co. v. Superior Court (Cal. Ct. App. - March 30, 2005)

Students often ask me for good case comment or law review article topics. This opinion is a pretty darn good candidate.

The issue in this case is whether the retroactive application of punitive damages violates the ex post facto clause of the Constitution. The Supreme Court hinted that it might in Landgraf, but Justice Croskey holds that it does not. The case arises in the context of the revival of otherwise time-barred insurance claims arising out of the Northridge earthquake pursuant to Section 340.9 of the California Code of Civil Procedure. The opinion by Justice Croskey is decent, but there's lots more that could be said, and a fair argument the other way. Plus, as far as I can tell, there's nothing good that's been written on the subject except for a couple of CERCLA articles. So a good topic for someone to pick up and run with.

Tuesday, April 05, 2005


This is an obviously important opinion. It's also one that is obviously going to get a fair amount of press. Justice Scotland holds therein that the Domestic Partners Act (Family Code Section 297.5), which grants various statutory rights to domestic partners, does not conflict with Proposition 22 (the "Defense of Marriage" initiative), which states that "Only marriage between a man and woman is valid or recognized in California."

I've got no problem whatsoever with Justice Scotland's opinion. My only point is that this was a two-inch putt. A no-brainer. A totally easy case. And, sure, Justice Scotland writes a fine opinion. But so would virtually everyone in a high-profile case such as this, where you know that everyone's going to be reading your opinion and in which the correct legal outcome -- at least to anyone with any ability to neutrally evaluate the merits -- is utterly crystal clear.

A domestic partnership isn't a marriage. Proposition 22 stops the Legislature from recognizing homosexual marriages. That's what the voters decided. But they obviously -- clearly -- didn't vote to repeal Section 297, which existed when Proposition 22 was passed and which entitled domestic partners to certain rights. And they didn't vote to stop the Legislature from ever expanding those rights. They just voted that homosexuals can't get married. And neither Section 297 nor 297.5 grants them that right; indeed, far from it, as the rights granted by those provisions are -- as anyone can plainly see -- hardly coterminous with marriage.

A domestic partnership ain't a marriage. And it's just plain silly to argue to the contrary. (Parenthetically, this obvious fact appears to give little pause to either the Alliance Defense Fund or their attorneys, Robert Tyler and Douglas Edgar, who vow to appeal to the California Supreme Court. Go ahead. Spin your wheels. There are a lot of potentially meritorious lawsuits out there. But if you'd rather waste your time on this one instead, feel free. My only reaction is that I'm just slightly embarrassed that one of the lawyers, Robert Tyler, is a USD Law graduate. Don't get me wrong. Since we're part of a Catholic university, I know that we turn out some graduates with hard-core religious beliefs; moreover, I'm affirmatively psyched that we also turn out graduates -- sometimes (but hardly always) the same ones -- who are willing to work in the public interest for what they believe is right. But I also hoped that we also turned out graduates with a little better judgment.

This case was not a winner below. It was not a winner on appeal. And it isn't going to be a winner in the California Supreme Court. Even if each and every one of the justices therein voted for Proposition 22. Petitioners are simply wrong on the merits. So good job, Justice Scotland. You made the putt.

Monday, April 04, 2005

Enslen v. Kennedy (Cal. Ct. App. - March 30, 2005)

This case was a joy to read. The issue is basically whether a medical doctor may permissibly testify as an expert with respect to alleged malpractice committed by a chiropractor (in particular, whether a doctor can testify that the problem with the patient was obviously a medical problem and not one that could be fixed by chiropractic treatment). The majority opinion, written by Justice Sills, answers "Yes". Justice Ikola, in dissent, answers "No".

Both opinions are excellent. Indeed, at the end, both are sufficiently persuasive that I'm unclear which one I think has the better of the argument. So the case is definitely interesting from that perspective. Additionally, the footnotes in both opinions are excellent; to get a taste, just read the first footnote of the majority opinion, which (intelligently) explains why the Court of Appeal published the opinion even though the majority thinks the answer is crystal clear under controlling precedent.

I'd have been proud to write either the majority or dissenting opinion in this one.

Saturday, April 02, 2005

McNeil v. Middleton (9th Cir. - March 29, 2005)

Cut it out, Judge Fernandez. In four paragraphs of this opinion, he struggles mightily to make sure to use such twenty-cent words as "fossicked," "bosk," "daedalian," "banausic," and "recrudescent". We've all got a thesaurus on our computer or on our desk. It ain't tough to open 'em up. Maybe someone will find it impressive that you knew enough to say that "the jury could consider BWS [Battered Women's Syndrome] when it ruminated upon the actual-belief issue." But those words don't mean anything different than saying that the jury could consider BWS when it thought about the actual belief issue. Unless you meant that the jury was chewing cud.

The only thing that this choice of language does is to prove that there are lots of synonyms out that serve merely to obfuscate. Stop trying so hard to impress.

Friday, April 01, 2005

Avril v. Sot (Cal. Ct. App. - April 1, 2005)



