Legal Pad

'Fajitagate' Case Ends Quietly at Ninth Circuit

The much-ballyhooed "Fajitagate" litigation, which plaintiff lawyers had hoped the Ninth Circuit U.S. Court of Appeals would use to establish new precedent on police misconduct, has ended with a whimper.

After grilling lawyers for the city of San Francisco before a crowd of Boalt Hall law students earlier this year, a three-judge panel issued a short unpublished opinion today affirming U.S. District Judge Jeffrey White's grant of summary judgment. The ruling likely ends Jade Santoro's and Adam Snyder's attempt to recover damages for a 2002 assault by off-duty policy officers that began over a bag of steak fajitas.

"Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a city policy of inadequate discipline for officers' on-duty misconduct was the proximate cause of three off-duty officers' decision to assault the plaintiffs for their bag of steak fajitas," wrote the court in its unsigned opinion. The panel comprised Judges John Noonan, Sidney Thomas and Jay Bybee.

—  Scott Graham

Energy Lawyer: This Oil Crisis is Here to Stay

With oil prices zigzagging across the charts from record highs to record drops, and America’s auto makers retooling domestic factories to build and sell more compact cars, we thought we’d take out the historical lens and compare the current energy crisis to that of the 1970s.

We asked Manatt, Phelps & Phillips counsel Charlie Ferguson, who was just embarking on the practice of law in the early 1970s, to share some perspective on our energy challenges today.

Ferguson, who The Recorder interviewed for a story in tomorrow’s paper about alternative energy in China, recalls looking out his Embarcadero Center office windows, watching the sections of the Alaska Pipeline being shipped out of the Bay each summer from 1976 to 1979. He worked on the litigation coming out of the construction and development of the offshore oil rigs in the North Sea. When those oil sources reached the markets, prices dropped, Ferguson said, zapping then-President Jimmy Carter’s efforts to move the country toward renewable resources and energy independence.

That won’t happen this time around, Ferguson said.

Whoo Hoo!!! Wait, No, I'm Injured

A meter maid who said she was seriously injured when her Cushman crashed was awarded about $1.5 million last week by a San Francisco jury. But Mercy Zamora could have won a lot more if she hadn't competed -- and been photographed -- in a 10K race after the accident, according to one of the defense lawyers on the case.

San Francisco civil litigator Edward Hugo got a defense verdict for Brake Parts Inc. in the trial concluded July 18. But the jury awarded about $1.6 million against Cushman Inc., maker of the cart Zamora was driving, and employer city of San Francisco, which had already settled out. (Zamora will receive about $518,000 after offsets from the verdict.)

Hugo, who isn't shy about discussing his trial results, said in a press release that the award included $500,000 for past pain and suffering, but none for future pain and suffering. He speculated that was because, after Zamora's husband had testified his wife could no longer compete in road races or do other strenuous activity, he introduced this photo. 

"The photograph, found on the Internet for anyone to view," according to the press release, "clearly shows the plaintiff enjoying herself while engaged in an activity which her own attorney, Thomas Brandi, told the jury that she 'had lost the ability' to perform."

—  Scott Graham

Recession? Sili Valley. Valley? Recession ...

With no venture-backed, million-dollars-a-pop IPOs in the second quarter, Silicon Valley corporate lawyers were still busy doing venture financings, right?

Well, not quite.

Venture capital investment dropped 12 percent to $6.64 billion from the second quarter a year ago, the Dow Jones Venturesource tells us. Financings also dropped 9 percent to around $2 billion in the Bay Area, which all us know as the land of venture-backed milk and honey. The number of deals was also down from 226 to 193 here.

It looks like that far-away, East Coast thing called a recession is finally finding its way down Sand Hill Road.

But don’t go switching your practice from corporate to bankruptcy quite yet. The total dollar value for financings in the Bay Area in the first half of the year — $4.65 billion — is still a little higher than the first half of 2007.    

—  Zusha Elinson

Judge Finalizes Bay Guardian Court Win

Sparing herself from the potential wrath of a Bruce Brugmann scorned, San Francisco Superior Court Judge Marla Miller has put the final stamp on her judgment awarding his paper, The San Francisco Bay Guardian, roughly $15.6 million in a predatory-pricing suit.

On Friday, Miller denied two motions filed by New Times Media LLC, the parent company of the SF Weekly, that sought a new trial or a judgment notwithstanding the jury’s verdict. The Guardian sued the Weekly, its primary competitor, in 2004. The suit accused the Weekly of intentionally selling its ads below cost to starve the Guardian of revenue and drive it out of business.

Ralph Alldredge, the San Andreas-based lawyer for the Guardian who also publishes the small-circulation Calaveras Enterprise, said he expected New Times to appeal the case and that he would remain the Guardian’s counsel. Attorneys for New Times did not respond to phone calls.

Andy Van De Voorde, the ever-sniping New Times editor whose biting sarcasm punctuated almost every hearing, has remained oddly silent.

—  Evan Hill

Gov. Signs Courts Bill, Asks Where's the Money

Here’s one you don’t see everyday. The governor signs a bill giving foster kids greater access to their own dependency court proceedings and then asks the Legislature: Why didn’t you put any money behind it?

In an unusual statement (.pdf) that accompanied his signature on AB 3051, Gov. Arnold Schwarzenegger said Monday that he “whole-heartedly” supports the bill’s intentions, but “I question … why the courts have not made such access a greater priority when it is allowed under current law. More likely than not the reason is lack of resources and overburdened court schedules, which this bill fails to address.”

Schwarzenegger then said he’ll sign the bill into law, but if courts and counties decide they need money to enforce it, “I expect them to implement this bill utilizing current resources.”

Gubernatorial snippiness aside, expect the bill’s author, Assemblyman Dave Jones, D-Sacramento, to take the statement as an invitation to introduce a related funding bill next year.

And speaking of money, Bar dues will be going up to $410 next year thanks to legislation the governor also signed on Monday. The $410 includes a $315 base fee, $40 for the Client Security Fund, $25 for the disciplinary system, a $10 limited-time fee for tech upgrades, $10 for the attorney diversion program and $10 so the Bar can build, buy or lease a new building in Southern California.

—  Cheryl Miller

Dude, We Should Totally Meet in Canada!

Tired of attending State Bar annual meetings in the same old cities? Ya know, Anaheim, Long Beach, Monterey and San Diego?

Well, some members of the State Bar were so venue-weary that they recently suggested taking the big event out of state — say to Seattle or Las Vegas — or even out of the country to Vancouver, British Columbia.

But that trial balloon got popped almost as soon as it was floated.

Good Day to be Gay, Bad Day to be Ron George

Same-sex marriage proponents who failed  to keep Prop. 8 off the ballot this week had to be buoyed by this morning’s Field Poll, which shows (.pdf) the November measure that would ban gay unions is opposed by a majority of Californians.

Interestingly, the poll suggests that the age group most opposed to Prop. 8 is not young hipsters (55 percent of 18 -29 year olds say they’ll vote no) but Baby Boomers. Fifty-seven percent of respondents aged 50 to 64 said they’re against the measure.

Some other tidbits from the blogosphere this Friday:

U Got the Suit: Prince's Label Attacks Toddler*

Tonight we’re gonna party like it’s copyright infringement time.

Tell me who in this house heard about this suit.  I mean, really. The Electronic Frontier Foundation is suing (.pdf) Prince’s music label for wanting to yank a video off YouTube of a toddler dancing to one of his purple majesty’s famous songs. No not “Sexy MF,” but that would probably be hilarious. It was “Let's Go Crazy.”

Universal Music claimed that the video infringed on its copyrights, but the EFF says that it’s fair use on the part of the uploader and plaintiff, Stephanie Lenz, mother of 18-month-old Holden (who, with that name and this case, should be well on his way to sullen resentment of authority).

In a press release, EFF Staff Attorney Corynne McSherry said, "Universal's takedown notice doesn't even pass the laugh test."  She did not say it’s the kind you’d buy in a second-hand store, but you know she wanted to. "Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video."

On Friday, EFF will try to prevent San Jose federal judge Jeremy Fogel from dismissing the case for a second time. We’ll keep you posted. U got the look at his first dismissal here (it’s hecka slammin’).

And let’s check in with YouTube users on this controversy over Prince’s label wanting his songs taken down forever (and that’s a mighty long time). Does this plaintiff plaintive cry (no doves were injured in the making of that cry) for the “artist” to let YouTube videophiles to use his music sum it up? Or how about the flotilla of videos of amateurs covering Prince songs where the sound has been removed? Or what about “Well you can burn in hell you purple midget”? (We just can't believe all the things people say). Someone with a degree in public relations (if not musicology) should pay attention to these signs o’ the times.

—  Zusha Elinson

*The toddler is the tall one. (Couldn't resist.)

Failed Attack on Prop 8 Tried on Drug-Law Prop 5

Same-sex marriage proponents couldn’t persuade the Supreme Court to boot Prop. 8 off the ballot. But that’s not stopping a group of politicians, DAs and cops from trying the same tactic with Prop. 5.

Prop 5 (.pdf), the so-called Nonviolent Offender Rehabilitation Act, would shorten parole for drug offenders, change certain marijuana misdemeanors to infractions and spend more on drug rehab programs. Think of it as a cousin to Prop. 36 , only more despised by law enforcement.

Prop. 5 opponents, led by San Diego DA Bonnie Dumanis, gathered in Sacramento today to unveil their petition to the state Supreme Court to block the initiative from the November ballot. They say the measure is really a constitutional amendment that proponents tried to pass of as a statutory change, making it “facially invalid” on constitutional grounds. And, they say, if justices don’t keep it away from voters, Prop. 5 could wreak “irreparable” holy havoc on a state with an already troubled prison system.

“Proposition 5 is deceptive and voters need to know it,” Dumanis said.

You can read what initiative supporters say here.

The anti-5 group’s petition sometimes reads more like a position paper. A chatty 48-page brief is followed by the actual initiative’s language, various analyses of the measure, four newspaper articles chronicling California’s ailing prison system and copies of orders in the Coleman and Plata cases.

But the petitioners involved in the lawsuit are pure tough-on-crime marquee: Former Govs. Pete Wilson and Gray Davis, LA DA Steve Cooley, Dumanis, possible AG candidate Rod Pacheco and dozens of others (mostly prosecutors). No word yet on when the court may hear the case.

—  Cheryl Miller