Law Offices of Christina DiEdoardo

BREAKING: California Supreme Court sets Sept 6 2011 Oral Argument in Perry v. Brown

Christina DiEdoardo — Fri, 29 Jul 2011 01:19:52 +0000

Late Thursday, the California Supreme Court announced it would hear oral arguments in Perry v. Brown on the question certified to it by the Ninth Circuit Court of Appeals–namely, whether the backers of PropHate have legal standing to defend the inititative since the State of California is refusing to do so–at 10 a.m. on September 6, 2011 in San Francisco. . This is huge for two reasons: 1) If the California Supremes hold that the private backers of Prop Hate lack standing, then the appeal against the District Court ruling holding the measure unconstitutional collapses and 2) under the California Constitution, the California Supremes must render an opinion within 90 days of oral argument or forefeit their pay until they do.

Thus, we may see the back of Prop 8 before the end of the year, depending on how the Court rules. Stay tuned!

–CAD

U.S. Supremes Strike Down CA Ban On Violent Videogame Sales to Minors

Christina DiEdoardo — Mon, 27 Jun 2011 15:30:00 +0000

In a 7-2 decision on Monday in Brown v. Entertainment Merchants Assn, the U.S. Supreme Court struck down a measure authored by State Senator (and present candidate for SF Mayor) Leland Yee which banned the marketing of “violent” video games to minors.

“Like the protected books, plays, and moviesthat preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection” wrote Associate Justice Antonin Scalia for the majority. “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct’ “.

In some of the most erudite language I’ve heard from Justice Scalia in a while, he noted “No doubt a State possesses legitimate power to protect children from harm, [internal citations ommitted] but that does not include a free-floating power to restrict the ideas to which children may be exposed. “ (emphasis mine).

Well said, paisan. It’s nice to see the First Amendment win a trophy and the nanny state get p0wned at your hands

–CAD

CA Supremes Curtail 4th Amd Protections For Hunters and Fishers

Christina DiEdoardo — Mon, 20 Jun 2011 18:51:05 +0000

In a unanimous decision Monday, the California Supreme Court held that California game wardens did not need to have a “reasonable suspicion” that a violation of the fish and game laws had taken place before they stopped and searched a vehicle.

Writing for the Court in People v. Maikhio, Chief Justice Cantil-Sakauye held “we conclude that (1) the state’s interest in protecting and preserving the wildlife of this state for the benefit of current and future generations of California residents and visitors constitutes a special and important state interest and need that is distinct from the state‟s ordinary interest in crime control, (2) the administrative regulations that are required to serve this interest — involving, for example, limits on the number, size, and species of fish or game that may be taken at different times and in different locations — are of such a nature that they would be impossible to adequately enforce if a game warden could stop, and could demand to be shown all fish or game that have been caught by, only those anglers and hunters who the warden reasonably suspected had violated the fish and game laws”.

In the Court’s view, hunters and fishers surrender their expectation of privacy since they “have voluntarily chosen to engage in the heavily regulated activity of fishing or hunting” and because the stops are “directly” related to fishing or hunting.

The case arose after a game warden spotted Mr. Maikhio using a hand-line to fish off of a pier and then putting a fish in a black bag. Because the game warden believed this was a technique used by lobster poachers, he stopped Mr. Maikhio’s vehicle, searched the bag and discovered a contraband lobster.

Of course, this ruling raises the interesting prospect of “what happens when Joe the fisherman gets searched by a game warden, who finds no fish but a bunch of meth instead?” Presumably, the court would find that Joe had surrendered the right he would otherwise enjoy to privacy for having the termerity to go fishing and admit the evidence.

Accordingly, if you fish or hunt, don’t poach or carry contraband.

–CAD

1st DCA May Allow Access To State Bar Records

Christina DiEdoardo — Fri, 10 Jun 2011 21:04:45 +0000

In a unanimous decision Friday, the 1st District Court of Appeal held that the San Francisco Superior Court erred when it denied researchers access to demographic data held by the State Bar of California. In Sander v. State Bar of California, the Court rejected the State Bar’s contention that it was subject to the tigher rules of disclosure governing courts and held ” The common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents. ”

The case arose after a law professor at UCLA who was researching the gap in bar passage rates among certain ethnic and racial groups requested demographic data from the State Bar of California. The State Bar rejected his request (and several revised requests made by Prof. Sander and others) and litigation followed.

For those of us with longer memories than we’d like to admit, some dicta in the case brings back bad memories of the bitter battles between former Gov. Pete Wilson and the State Bar Board of Governors in the late 1990s regarding the State Bar’s proper role in California constitutional government, which led to the State Bar being defunded for a period of several months and several key functions, like attorney discipline, going by the wayside.

Here’s hoping the case leads to an interesting study by Prof. Sander, rather than a recurrence of the late 1990s drama.

–CAD

CA Supremes Deny Jury Trial In Tax Refund Cases

Christina DiEdoardo — Mon, 06 Jun 2011 20:45:27 +0000

In a unanimous decision on Monday June 6, 2011, the California Supreme Court held that taxpayers seeking a refund do not have a constitutional right to a jury trial on their claims. Writing for the Court in Franchise Tax Board v. Superior Court of San Francisco, Associate Justice Carol Corrigan held that modern tax refund claims were different in character from ancient personal rights of action against individual tax collectors. “[S]tatutory actions for tax refunds from the government have generally not been placed in the same class as the common law right of action against individual tax collectors. Most courts have viewed actions for a refund from the government as new and distinct proceedings, subject to such conditions as the legislative branch sees fit to impose.” Since “At common law, sovereign immunity barred actions against the government, by way of jury trial or otherwise …[and] [t]he right to a jury trial provided by the Seventh Amendment to the United States Constitution does not apply in statutory actions against the federal government”, and that this principle has been applied to federal tax refund actions, therefore there was no independent statutory or state constitutional basis for a right to jury trial in state tax refund actions.

This is likely to ruin the day of tax protestors and believers in jury nullification, so the long term impact should be interesting.

–CAD

U.S. Supremes Uphold CA Prison Population Reduction Order

Christina DiEdoardo — Mon, 23 May 2011 15:55:34 +0000

In a 5-4 decision earlier today, the United States Supreme Court upheld an earlier decision by a three-judge panel directing the State of California to reduce its overcrowded prisons to a mere 137% of designed capacity–which should mean releasing approximately 37,000 people. Writing for the majority in Brown v. Plata, Justice Kennedy rejected the State’s objections to the release order.

“The population reduction potentially required is nevertheless of unprecedented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result.”

As you would expect, Justices Scalia, Thomas, Roberts and Alito were in dissent. (Apparently, because the “right” of a state to inflict needless suffering and death on its citizens should, in their minds, be preserved).

The opinion is a win all around. CA’s fantastically overcrowded prisons will see a drop in population, the State (which has been effectively impotent against the prison guards union) should be spending less on overtime and other costs and prisoners can have greater access to effective rehabilitation programs and have less of a chance that they will reoffend upon release.

–CAD

CalSupremes: Client Loyalty: 1, Free Speech Rights of Lawyer: 0

Christina DiEdoardo — Mon, 16 May 2011 20:23:13 +0000

Earlier today in Oasis West Realty LLC v. Goldman, the California Supreme Court held that an attorney’s free speech rights on a matter of public concern must yield to her or his duty of loyalty to a former client.

According to the opinion, in 2004 Mr. Kenneth Goldman represented Oasis West Realty in a redevelopment matter before the Beverly Hills City Council. Two years later, he withdrew as Oasis’ attorney. Two years after that (i.e. in 2008) “Goldman became involved in a campaign to thwart the same redevelopment project by soliciting signatures on a referendum petition to overturn the Beverly Hills City Council‟s approval of the project.” After the referendum proceeded to the voters, Oasis sued Goldman and his then law firm for breach of fidicuiary duty.

Goldman then moved to dismiss the case under California’s anti-SLAPP statute. Although he prevailed at the Court of Appeals, he struck out on Monday.

According to the Oasis Court “Although Oasis does not offer direct evidence that Goldman relied on confidential information in formulating his opposition or in crafting his plea to his neighbors to join him in opposing the project, the proper inquiry in the context of an anti-SLAPP motion ‘is whether the plaintiff proffers sufficient evidence for such an inference.’… In light of the undisputed facts that Goldman agreed to represent Oasis in securing approvals for the project, acquired confidential information from Oasis during the course of the representation, and then decided to publicly oppose the very project that was the subject of the prior representation, it is reasonable to infer that he did so. Moreover, inasmuch as Goldman was obligated under rule 3-310(B) of the State Bar Rules of Professional Conduct to disclose to Oasis any personal relationship or interest that he knew or reasonably should have known could substantially affect the exercise of his professional judgment—but never did so—it is likewise
reasonable to infer that Goldman‟s opposition to the project developed over the course of the representation, fueled by the confidential information he gleaned during it. ” (Emphasis added)

In addition ”Oasis further claims that, because of Goldman‟s overt acts in opposition to the project, it was forced to investigate Goldman‟s conduct and prepare a letter demanding defendants’ adherence to their legal and fiduciary duties, thereby incurring over $3,000 in legal fees. Based on this showing and the inferences therefrom, we conclude that Oasis has demonstrated a likelihood of prevailing on each of its three causes of action”

Bottom line? Be careful who you represent (and take $60K in legal fees from)—you may be giving up your right to oppose them later.

–CAD

4th DCA Slaps Down DMV For Discovery Violations

Christina DiEdoardo — Fri, 29 Apr 2011 23:25:00 +0000

Props to a three-judge panel of the 4th District Court of Appeal, which on Friday published an earlier decision finding the California Department of Motor Vehicle’s failure to provide the results of a blood-alcohol test to a driver until “minutes” before the driver’s license revocation hearing was a violation of due process. In Petrus v. Department of Motor Vehicles, the Court held “Due process requires that Petrus be given a meaningful opportunity to present his case. Petrus’s defense required examination of the blood test results because that was an element the DMV must prove at the hearing.” Moreover, “Petrus’s counsel initially received the blood test results minutes before the hearing despite his request for it approximately one month before the hearing. We conclude the phrase ‘prior to the hearing’ does not equate to receiving discovery minutes before the hearing.” (Emphasis added).

Well done, 4th DCA!

-CAD

Violate Your Employer’s Acceptable Computer Use Policy? Go to Jail! (At least in the 9th Circuit)

Christina DiEdoardo — Thu, 28 Apr 2011 22:13:18 +0000

Earlier today, the Ninth Circuit handed down a decision which could affect every employee at every company with an IT access policy. In a 2-1 ruling in United States v. David Nosal, the Court held that workers who obtain information from a company’s computer system and then use that information in violation of company regulations could face criminal prosecution under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030.

In the Nosal case, the Court was faced with a situation where Mr. Nosal allegedly left his employment at the executive search firm Korn/Ferry and then allegedly inveigled some Korn/Ferry employees to appropriate information from the firm’s proprietary database in order to help him start a competing business. At the District Court, Mr. Nosal argued that the CFAA didn’t apply unless the employee had no right to access the information under any circumstances–and in this case, his alleged accomplices had been given access to the database as part of their work tools.

While Mr. Nosal ultimately persuaded the Hon. Marilyn Patel, he had less luck with the Ninth Circuit. “The government contends…that an employee exceeds authorized access when he or she obtains information from the computer and uses it for a purpose that violates the employer’s restrictions on the use of the information. We have jurisdiction under 18 U.S.C. § 3731, and we agree with the government,” wrote the Hon. Stephen S. Trott for the majority.

After today, a host of behavior which was previously considered to be a civil offense (e.g. theft or misappropriation of trade secrets) can now be prosecuted criminally if an employer can persuade the local U.S. Attorney to take up their cause.

This didn’t seem to bother Judge Trott or the majority much.

“We do not dismiss lightly Nosal’s argument that our decision will make criminals out of millions of employees who might use their work
computers for personal use, for example, to access their personal email accounts or to check the latest college basketball scores. But subsection
(a)(4) does not criminalize the mere violation of an employer’s use restrictions. Rather, an employee violates this subsection if the employee (1) violates an employer’s restriction on computer access, (2) with an intent to defraud, and (3) by that action “furthers the intended fraud and obtains anything of value.” 18 U.S.C. § 1030(a)(4) (emphasis added). “ In his mind, therefore “[T]he requirements of a fraudulent intent and of an action that furthers the intended fraud distinguish this case from the Orwellian situation that Nosal seeks to invoke. Simply using a work computer in a manner that violates an employer’s use restrictions, without more, is not a crime under § 1030(a)(4).”

Alas, in an age of Wikileaks, the above argument is too clever by half. Imagine if an employee at TransOcean or BP accessed their company’s respective database and discovered a document establishing that either firm acted recklessly during the Gulf oil spill and its aftermath. The employee leaks it to WikiLeaks or to the media. What is the practical barrier to either company demanding the United States prosecute the leaker under CFAA? The company will argue that their information has value (and indeed, the revelation of an otherwise hidden document might realistically mean the difference of hundreds of millions of dollars in the final bill for the Gulf cleanup); that the leaker “defrauded” the company by “stealing” the information, that they furthered their intended fraud by accessing the computer system and as a result, obtained public attention (a thing of value) for their actions.

The civil penalties for theft of trade secrets can be severe enough. It beggars belief that criminal sanctions can now be imposed (and paid for through our taxes) for the almost exclusive benefit of a private victim. Congress should amend the CFAA posthaste.

–CAD
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9th Cir. Affirms Prelim Injunction against AZ Immig Law

Christina DiEdoardo — Tue, 12 Apr 2011 02:19:45 +0000

Good news–today the Ninth Circuit affirmed the decision of the Hon. Susan R. Bolton in United States v. Arizona barring the state from enforcing several provisions of SB 1070 (which purported to allow state officers to enforce immigration laws) on federal supremacy grounds. Another loss for the Tea Party Nativists

–CAD