May It Please The Court
Quote of the Day - Wall Street: A thoroughfare that begins in a graveyard and ends in a river.
Lawyer 2 Lawyer Internet Radio Covers the Fall of Lehman Brothers Holdings, Inc.The largest bankruptcy case in U.S. history is playing out before us with the fall of Lehman Brothers Holdings Inc., creating chaos in the financial community. Please join me and my fellow co-host and Law.com blogger Bob Ambrogi, as we talk to the top legal experts, Attorney John D. Penn, partner at the law firm of Haynes and Boone, LLP and Attorney Victor Bass, partner at the law firm of Burns & Levinson LLP, about how lawyers will unravel the company's assets, what will happen to stockholders and customers along with the impact of all that on the economy. Hear their take on the legal options and strategies being used in this unprecedented case.
Tagged By the '5 Blogs and 5 Blawgers' Meme
Bob Ambrogi tagged me with a meme of non-law blogs, asking me to rank my top five favorites. Disclaimer here, I'm going to cheat and give you six. Here they are, with my favorite last, which frankly isn't really a blog in the truest sense of the form, but it's a site you shouldn't miss. So, in no other particular order, here they are:
Now, here are my five tags for blawgers to pick up where I left off:
Denise Howell of Bag & Baggage
Bruce MacEwen of Adam Smith, Esq.
Ed. Post, the Blawg Review Editor
Larry Bodine Law Marketing Blog
Kevin O'Keefe's LexBlog: Real Lawyers Have Blogs
Mark Britton of the Avvo blog
Who's Responsible For Dangerous Dogs?
The trial court and the court of appeal disagree over this one. The lower court thinks the owner of the property where the dogs were kept owes no duty of care to another invitee, and the appellate court thinks the owner should have kept the dogs locked up or otherwise chained up. Here's your chance to decide, based on the facts taken directly from the appellate court's opinion in Stephen Salinas v. Paolo Martin, here edited slightly for clarity and ease of reading:
Martin owned a home on McLaughlin Street in Richmond. In 2005, he embarked upon a remodeling project that included construction of a new foundation. Martin hired Burle Southard as general contractor for the project. Southard, in turn, hired Salinas as an employee to work on the construction project under his supervision for a period of three to four months. With Martin's approval, Salinas and Southard stored equipment and materials in the back yard and garage. Martin gave both permission to enter the yard "at any time" to retrieve equipment or materials they stored there.
Martin also hired two men, Armand and Greg Sanchez, to perform "weeding and gardening" work. The Sanchez's had two dogs, a pit bull terrier and a smaller pit bull, Labrador mix. Martin agreed that the Sanchezes could keep their two dogs loose in the fenced back yard and in a van they kept on the property. According to Martin, he did not see or hear the dogs attack, bite or appear aggressive with anyone; they seemed "tame and friendly" to him.
Southard expressed a different view of the dogs. He "saw a ferocious looking pit bull dog" in the Sanchezes' "very dilapidated looking van" in June or July of 2005. Southard confronted Martin about the dog. Martin explained that the "van had been broken into in the past, and the dog was there to guard the van." Southard communicated his fear and view to Martin that "he should certainly not have this pit bull" which had been trained as a " ‘guard dog' around this job site." He told Martin, "that's a pit bull,' meaning that the dog was dangerous." Southard thought Martin understood the concern that "the dog would attack someone."
On August 1, 2005, Salinas called Southard to report that he needed to retrieve "wood planks for scaffolding" that were stored in Martin's yard. Based on Martin's prior consent, Southard advised Salinas to "go ahead and pick up what he needed." The same day, Martin had specifically given Armand Sanchez permission to let the dogs "roam in the backyard." Martin left the house before Salinas arrived and was gone for four or five hours. He was not advised that Salinas "intended to visit" the residence that day. If Martin had known Salinas planned to enter the yard, Martin would have "warned him about the pit bull." Salinas had never seen the dogs at the residence before, so he entered the back yard through a 12-inch gap in a cyclone fence around the house. Once Salinas was about 10 to 12 feet into the yard at the corner of the foundation, the smaller mixed breed dog growled at him, then the pit bull attacked him. Salinas escaped through the gap in the fence, but the pit bull followed into the driveway and continued to repeatedly bite him until he managed to jump onto Martin's car.
So, based on these facts, who wins?
Watch What You Wear To The Gilroy Garlic Festival- They May Throw You Out, Top Hat And All
George Villegas and other members of the Top Hatters Motorcycle Club went for a ride to the Gilroy Garlic Festival in hopes of having such treats as garlic ice cream and garlic smoothies.
No, I am not kidding. Well, maybe George and the gang weren't specifically looking for garlic ice cream, but if they had wanted it, they could have bought it. Yuck. And I love garlic. But in ice cream?
Anyway, George and the boys wore vests that had on the back a skull with wings, wearing a top hat and the club's name on top and "Hollister" on the bottom. We all know what happened at Hollister. Now don't get me wrong here. Regular readers know I ride a motorcycle, too. I don't, however, belong to a gang but I do wear a Welsh flag on the back of my jacket that bears a red dragon. I guess you could consider that a gang, but it's more like part of a country.
Shortly after they arrived, George and the other members of the Top Hatters Motorcycle Club were escorted from the Gilroy Garlic Festival at Christmas Hill Park by a City of Gilroy police officer for violating an unwritten policy of the Gilroy Garlic Festival Association. Apparently, you're supposed to know that the Festival prohibits guests from wearing "gang colors or motorcycle club insignia." Don't ask me where the quotes came from. It was quoted that way in the case. I don't quite get how you can "quote" an unwritten policy, but I guess that's why I'm not on the Ninth Circuit Court of Appeals.
The Festival invited them to stay if they removed their "colors" and when they didn't the Festival refunded the members' price of admission. The members were free to wear their colors elsewhere in the City. The Festival had adopted the unwritten policy to stem gang violence which had risen in the prior years and adversely affected attendance.
Not surprisingly, George and Top Hatters sued the City and the Festival organizers under 42 U.S.C. section 1983 for violating their civil rights.
Here's where the going gets a little rough. We have to go back to law school for a minute. In order for your civil rights to be violated, the government has to do it. A private party can violate civil rights too, but as a private citizen, the violator has to be a "state actor" in the words of the statute. Now don't get too far ahead of me here. I know what you're thinking. You perceptively noted that I said a cop escorted George and the boys from the Festival.
"Aha! ," you exclaim. "The police officer provides the nexus to create state action." Well, you need one or two more facts before you can jump to that conclusion. The police officer was contracted by the Festival to provide security services. So at the time, she (Officer Brenda Bergman) was employed by the Festival, not the City. The City and the Festival are not one in the same. The Festival got a permit from the City and rented the park from the City. The Festival was not put on by the City, but instead is a private, non-profit corporation.
Now you see the nexus is not really there.
So, George and the boys got legitimately tossed out on their top hats. Perhaps they would have had more luck if they tried an action against the just the Festival instead of the City, and tried selective enforcement or another non-governmental cause of action. Maybe next year.
MIPTC Is Back Online And (Mostly) Fully Restored
Well, a few hundred man and woman-hours later, May It Please The Court has been restored to its former working condition after being hacked and pop-up ads inserted without my permission. Unfortunately, some things got lost in the process, including comments to some posts as well as the Quote of the Day for other posts. We'll be able to restore the quotes, but the comments I'm afraid, have been lost for good. My apologies to those commenters.
In most instances, the comments are closed on old posts, but if you remember your comment and can email it to me (even if it's not exactly what you may have written before), I can still post your comment for posts where comments are now closed. I promise not to edit your comment and will simply post it as you send it.
We've tightened up security, but there are still some bugs to work out. We're still not able to upload audio or video properly, but hope to have that issue resolved shortly.
Thanks for your patience and continually checking back. Posts will resume today, and we'll have audio/video by the end of the week.
Hang On - We're Still Moving Servers
Regular readers will remember that MIPTC was hacked by CPX Interactive - a company that placed unauthorized pop-up ads on MIPTC and several related sites. In the process, the hackers completely wiped out our companion blog sites, A Criminal Waste of Space and Sharks in the Water, as well as my book site, How to Get Sued, and in the process erased two months of MIPTC posts.
We've restored ACWOS and SITW, as well as HTGS. We're still working on MIPTC, so please bear with us while we're making the move from UplinkEarth to GoDaddy, a much more stable web hosting environment. We hope to have the process completed by early next week, and we'll be back up and running ASAP.
So much for alphabet soup.
Lawyer 2 Lawyer Internet Radio Gets Duped
Attorneys have fallen prey to a new email scam circulating that specifically targets law firms. Please join me as I dissects this check scam sweeping law firms.
Attorney Gregory Bartko, an Atlanta securities and corporate attorney and Attorney John P. Donohue, Senior Counsel from Thorp Reed & Armstrong in Philadelphia talk about the details of the scam, how they were targeted, how one lawyer was victimized and one narrowly escaped - this is a story you can't afford to miss!
What's Wrong With This Opinion?
James Hernandez pled no contest to oral copulation with a person less than 16-years-old. Hernandez was 22 and the minor was 14.
In 2001, Hernandez served 270 days in jail, was placed on five years of probation, and required to register with local police as a sex offender according to California Penal Code section 290. So far, so good.
In 2006, the California Supreme Court held in People v. Hofsheier that mandatory sex offender registration under section 290 violated equal protection when a person is convicted of oral copulation of a minor between the ages of 16 and 18. Don't ask me why, I just report 'em - the post in the last link gives a great explanation. Based on that decision, Hernandez appealed to overturn the mandatory registration requirement, arguing there is no reasonable distinction between oral copulation with a person between 16 and 18 years of age and with a person between 14 and 16 years of age.
The court of appeal reversed the mandatory sex offender registration requirement and allowed Hernandez not to register as a sex offender.
So I ask again, what's wrong with this decision in People v. Hernandez?