Johnson v. Ingalls, 2012 WL 1537480 (N.Y. App. Div. May 3, 2012)

The latest entry in my popular series of blog posts about plaintiffs burned by inconsistent evidence in their social media accounts. Today's case addresses the admission of about 20 Facebook photos in a vehicular personal injury lawsuit that resulted in a defense verdict from the jury. The court says the photos are admissible:

Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The [Facebook] photos admitted were taken over a 1 1/2-year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians.

Prior blog posts in this series:

* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

A few years ago, SCU hosted a series of Bay Area Blawger gatherings. I've included some links at the bottom of this post. Our goal was to give legal bloggers a chance to meet each other in person and discuss topics of mutual interest. We had pretty good turnouts at most of the events, and I believe attendees had a good time.

I haven’t organized a Bay Area Blawgers event since 2009. First, my schedule has been busy. Second, and perhaps more importantly, blogging has changed a lot in the last couple of years. Many bloggers have moved some or all of their activity to other social media, like Twitter, which has sucked some of the air out of the blogosphere. A lot of early bloggers have turned over as part of the ordinary life cycle of blogging. And many new legal bloggers are law firm attorneys blogging for corporate interests and who may not even self-identify as BLOGGERS. So I’m not sure who would come if we held another Bay Area Blawgers gathering—or if anyone would come! If you have thoughts about the merits of another gathering, please email me. I’m willing to put something together if there’s enough interest.

Earlier this month, I had an excuse to visit Seattle for the first time in several years. See my Seattle photo album and video from Mt. Si. Among other benefits, it meant that I could finally meet my co-blogger Venkat in person for the first time. It’s odd that I had worked so closely with Venkat over the past 3 years but never met him in person. (I email Venkat more than I email any other person, even my wife). So having a chance to spend time with him was a real plus.

As part of my Seattle visit, Venkat and Josh King of Avvo helped organize a gathering of Seattle Blawgers. The group photo. I believe this group had gotten together in the past. About 20 blawgers showed up at Avvo’s palatial subleased space in downtown Seattle to shoot the breeze and compare notes. Unlike the SCU blawgers events, there wasn’t any structured discussion, but I think mostly people just welcomed the opportunity to chat face-to-face and enjoy someone else’s food and libations. Many thanks to Josh King and Mark Britton of Avvo for sponsoring the event, to Venkat for doing some of the marketing (see the Tweetup registration), and to everyone who showed up for a great time!

Other Recaps of the Seattle Blawgers Gathering

* Venkat (with another photo!)
* William Carleton (and a different photo!)

Past Coverage of Bay Area Blawgers Activity

* Announcements of Bay Area Blawgers 1.0, 2.0, 3.0 and 4.0.
* Recaps of the first, third and fourth gatherings. Beth Grimm has written an interesting meta-recap.
* Photos from the second and third gatherings.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

My kids are getting old enough to pursue more ambitious hikes, so I've started to think about some of the must-do hikes in California that we should consider. I've done a lot of hiking in California, and some hikes that stand out as especially memorable for me, roughly arranged north to south (where I've done more extensive reviews, I've linked to them):

* Lava Beds National Monument. It's not exactly hiking, but exploring the lava tubes is loads of fun. Bring a helmet, sweatshirt and flashlight.

* Fern Canyon, Prairie Creek Redwoods State Park. There are numerous fern canyons in California, but this gets my vote for the ferniest. It has the bonanza of being surrounded by a first-rate redwood forest. Gold Bluffs Beach is beautiful, and you're likely to see an elk herd along the way. Gold Bluffs Beach is a fantastic camping destination--it's where Lisa and I got engaged, August 9, 1995!

* Angel Island to Mt. Livermore. From the top, you get a 360 degree view of the San Francisco Bay, including downtown San Francisco, the Golden Gate, the East Bay mountains, Mt. Tam and Marin County. Often fog blocks some of the view, but the fog also adds to the visual interest. The military ghost towns on the island are worth a visit too. I enthusiastically recommend camping on the island as a bucket list item.

* San Bruno Mountain. On a clear day, the views of the San Francisco Bay and the Pacific Ocean are mesmerizing. When it's foggy (most of the time), at least you'll be able to enjoy the flowers blooming year-round.

* Mist Trail, Yosemite. Yosemite has many great trails, but this one stands out as a wonderful hike to a beautiful waterfalls--plus you're going to get wet, and you're almost certain to see rainbows. The big downside: people. Lots of them.

* Mesquite Flat Dunes, Death Valley National Park. These are the sand dunes you've seen in the Hollywood movies, and I think it is the prettiest sand dune system in California. Go at sunrise or sunset for the best scenery (or better yet, both).

* Telescope Peak, Death Valley National Park. On the east side, Death Valley. On the west side, Panamint Valley--which I think is even prettier. Beyond, views for up to 100 miles in every direction. As a bonus, Mahogany Flats campground is a fantastic desert campground.

* Anacapa Island to Inspiration Point. The view overlooking the other two Anacapa Islands and Santa Cruz Island is incredibly romantic.

* Hikes to the Desert Divide (part of the Pacific Crest Trail). To the west, Garner Valley, which I think is the prettiest valley in Southern California. To the east, the mountains of Joshua Tree Monument and the Coachella Valley stretching out to the Salton Sea. To the north, 10k+ feet San Jacinto and San Gorgonio mountains. To the south, 8k feet Santa Rosa Mountain. All around you, not a soul to be seen. All of the Desert Divide peaks are equally good in my opinion. Or, go straight for San Jacinto Peak for the best views (although you will see people there).

* Hiking in palm oases. Examples include Indian Canyons in Palm Springs and Borrego Palm Canyon in Anza-Borrego Park. My choice overall for convenience, cost and oasis quality is Coachella Valley Preserve in Thousand Palms.

You'll note that I didn't put any redwood-specific hikes on the list. For me, all redwood hikes are always worth doing, even when it's a second-growth forest--although old-growth forests are best. However, there's a certain sameness to redwood hikes, so it's hard to distinguish among them. Some of my favorite redwood destinations include Redwood National Park, Hendy Woods and Montgomery Woods. This site looked pretty helpful. Muir Woods and Big Basin, two of the most popular old-growth redwoods destinations, don't make my list because of the omnipresent crowds.

Still on my long-term to-do list: hike the Lost Coast, hike the Headwaters Forest Reserve, visit Santa Rosa and San Miguel Islands, climb Mt. Whitney and climb Half Dome.

Other perspectives: Everytrail offers a fine list of contenders. Mt. Tallac is a strong contender for its Lake Tahoe panorama. The Berry Falls loop in Big Basin is a great Bay Area hike but it wouldn't make my cut overall. McWay Falls in Julia Pfieffer State Park is iconic, but it's a very short stroll and the trail doesn't really lead you close to the falls (the view is is fairly distant). The South Grove in Calaveras Big Trees State Park is worth doing, but it's "just" another redwood hike.

Another list from BestCaliforniaHikes. Golden Canyon in Death Valley is a wonderful hike; go in the early morning to get the best colors. Mosaic Canyon in Death Valley is pleasant but wouldn't make my top list.

Want more? Try Tripleblaze's top 100 list. However, I think this list is more about popularity than quality. For example, Jughandle State Reserve (#83) is entirely skippable. The Trails.com lists (North, South) are better but are still popularity-driven and not totally useful, e.g., it lists jeep trails, and #10 on the south list are "trails in Joshua Tree" (well, that narrows things down).

So, what are your favorite California hikes? I don't care where they are located in California, although I do prefer day hikes (including car camping if applicable) over backpacking destinations. Email me and let me know.

UPDATE: some of the suggestions I've gotten: Panorama Trail in Yosemite, Dipsea Trail (Muir Woods to Stinson Beach), Salmon Creek Trail in Big Sur.

UPDATE 2: I'll add Lobo Canyon on Santa Rosa Island to the list. Spectacular!

See my photo album from this hike.

Rancho San Antonio is the nearest "hiking" park to my house, but I've never been a fan of it. I don't like the crowds or the fight for parking, but more than anything, I find the hikes there boring. It take 15+ minutes to get into the hills, and even after that investment, many of the trails are repetitive and visually uninteresting.

Recently, I tried a new trailhead in Rancho San Antonio, and it totally changed my attitude about the park. This time, I started at the Rhus Ridge parking lot and hiked to Black Mountain via the Rhus Ridge Trail and the Black Mountain Trail, a RT of about 9 miles and 2300 feet of elevation gain. In contrast to starting from the main Rancho San Antonio parking lot, the hike starts strong and keeps getting better. In fact, I think this is the nicest mid-range/half-day hike within a 20 (or even 30) minute radius of Mountain View.

Unlike many other trails in the Santa Cruz Mountains facing the Bay, where vegetation often obscures the view, the trail offers frequent panoramic vistas of the Bay from San Jose to Palo Alto, with Mt. Diablo and Mt. Tam poking up over the haze. Personally, I think the views along the way are better than the views from the top of Black Mountain. The trail goes through ecosystems ranging from moist and shaded ridgesides to fully exposed semi-arid chaparral. There was only one uninteresting spot when the trail goes along the power line easement for a bit (a number of Rancho San Antonio trails suffer from this defect), but it's brief. The first and last mile are quite steep, so it's a tough workout, but it's manageable for hikers that pace themselves, and the rest of the trail is nicely graded. Signage is excellent. I saw plenty of people but it wasn't "crowded" (the parking, discussed below, helps limit the crowds). All of Rancho San Antonio (and most parks in the Santa Cruz Mountains) gets frequent airplane noise. Refreshingly, the trail was mostly free of horse poop.

Two crucial downsides of this hike:

1) Like other Rancho San Antonio hikes, don't do this hike on warm days. I went when temperatures were in the 50s, and it was pleasant. Indeed, the perfect time to go is on a cool but sunny Winter day after a storm, when temperatures are comfortable but the storm has cleaned up the haze. In contrast, when the temperatures get into the high 60s or warmer, this hike will become miserable or even unbearable. On warm days (up into the 70s), I prefer hiking Wunderlich County Park because its trails are mostly shaded.

2) The parking lot is TINY! It holds maybe a dozen cars max. The local residents have done a good job making street parking illegal for a mile in every direction too, and I sense they take a perverse delight in towing illegally parked cars. The result is that finding a parking spot feels a little like winning the lottery. As usual, go early. The good news: if you can snag a spot, parking is free.

I love redwood hikes, and we are blessed with many fine ones in the Bay Area. But finding the "perfect" redwood destination is tricky. It needs to be a nice redwood forest, and some of the more convenient redwood hikes aren't that redwoody. Plus, driving to the destination should not be a chore. The best redwood hikes, buried deep in the Santa Cruz Mountains, require a time-consuming drive over twisty roads that nauseate my kids and can ruin the experience for everyone.

When I'm in the mood for a quick redwood hike, I typically go to Wunderlich County Park in Woodside, which is quite good but suffers from less-than-peak redwoodiness, plenty of crowds, and lots of horse poop. When I'm in the mood to drive a little longer for a better redwood experience, my new favorite is Fall Creek Unit of Henry Cowell State Park. Its selling points:

* redwoodiness: the park is in prime redwood country. It was heavily logged a century ago, but it remains a first-rate second-growth redwood forest. The lovely year-round Fall Creek enhances the scenery.

* convenience: it's just a half-mile outside of Felton. Getting there via Highway 17 is no joy, but I find 17 OK if I leave early and drive slow. The park's official website instructs visitors to drive to Santa Cruz and then back to Felton on Highway 9, but it's quicker for Valley residents to take 17 to Mt. Hermon Road, which turns into Felton Empire Road as it crosses Highway 9. The park entrance is just a half-mile further on Felton Empire on the right. Door-to-door from Mountain View is about 40 minutes with no traffic (only about 15 minutes each way more than Wunderlich for a noticeably better redwood experience).

* bonus attractions. In addition to top-quality and convenient redwood hike, Fall Creek Unit has other points of interest, including limekiln ruins (lime is used to make cement, which helped rebuild San Francisco after the 1906 fire) and the ruins of a cooperage which manufactured redwood barrels to ship the lime. The park also offers its own named redwood tree, "Big Ben," which I found underwhelming and not worth the extra hike (but the extra hike was worth it for other reasons). My favorite part of the park was "Lost Camp," an incredibly scenic hollow. Note: when we went, the signage from the Fall Creek Trail going to the Big Ben Trail was missing, so we blew right past it. Pay close attention at that intersection. See the entire photo album from our hike.

* free parking! The parking lot isn't that big, so go early. On the plus side, once we got past the limekilns, we pretty much had the park to ourselves.

Wunderlich remains my default redwood hike, but Fall Creek Unit is a great option to add to my mix. Plus, Felton or Santa Cruz offer convenient after-hiking festivities if time permits.

Hikes in the Palm Springs area tend to come in three varieties:

1) Local hikes from the Valley floor up to a ridge. These hikes tend to be steep thighbusters but they usually reward fit hikers with nice views.
2) Flat hikes along the Valley floor, which are often boring.
3) Mountain hikes, such as along the Desert Divide or in the Santa Rosa Wilderness or in Joshua Tree National Park, which are wonderful hikes but usually require a long and twisty drive to get there.

This is why the Coachella Valley Preserve, located beyond Thousand Palms basically near the end of Ramon Road, is such a revelation. It has everything going for it: interesting things to see; some reasonably level trails; close to the Valley's cities, especially for people staying down-Valley like in Palm Desert; and as an added bonus, free parking! Among other advantages, this is one of the few hikes on the Coachella Valley side of Joshua Tree and the Little San Bernardino Mountains; most hikes in Joshua Tree require a lengthy drive around the mountains to Twentynine Palms.

We hiked from the visitor center to McCallum Oasis, then took the loop trail through Moon Country. Total hiking distance of about 4 miles. Had we not been dragging along two very tired kids, we could have done the trail in about 90 minutes. The trail had three highlights:

1) Thousand Palms Oasis, a nice oasis. I must say that I love hiking to and in oases. A stand of palm trees may be my favorite type of trees to hike in/to (after redwoods of course). The California fan palms are lovely. In addition, I love the feel of oases. They are cool, green and lush--a stark contrast to their surroundings--and they attract all sorts of interesting fauna, especially birds.

2) McCallum Oasis. A little smaller than Thousand Palms Oasis, it had the added bonus of a small gorgeous pond and a small stream running off it. Really stunning.

3) A vista point on the hillside above McCallum Oasis. The vista point has a wonderful birds-eye view of McCallum Oasis and a 180 degree view of Joshua Tree National Park, with a through-the-gap view of San Gorgonio Peak.

This is earthquake country; the oases are clustered along the San Andreas fault where springs come through the gaps in the earth's plates. The fault isn't really "visible" but it's still a neat (and slightly unsettling) context.

I love hiking to the oases in Indian Canyon, but I recommend this hike over those. The pricetag for admission to the Indian Canyons has gotten too steep; it would cost over $30 for our family of four to go there, while this hike is free. Perhaps the Indian Canyon oases are a little nicer (the views of the Desert Divide and Palm Springs certainly are nice), but not $30 nicer, and the Coachella Valley Preserve is close enough that the drive time from Palm Springs is worth it. So it's hard to justify the high prices of Indian Canyon when this option is free.

The signage is pretty good on the trail, but all of the precautions about desert hiking apply: wear good shoes, drink lots of water, use sunscreen and remember that everything looks closer in the desert than it actually is. Hiking here during hot weather would be just miserable.

Our photo album from our visit.

Clement v. Johnson's Warehouse Showroom, Inc., 2012 Ark. App. 17 (Jan. 4, 2012)

In my long-running series of litigants saying one thing in court and another when talking to their friends online, consider this from a worker's comp case after a refrigerator fell on Clement:

The first issue Clement raises in his brief is whether pictures of him that appeared on Facebook and MySpace should have been admitted into evidence. He complains that the pictures “are a disgrace to the dignity of the workers' compensation proceedings and the legal system” and have nothing to do with his medical treatment....

We find no abuse of discretion in the allowance of the photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying. Certainly these pictures could have a bearing on Clement's credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission. We hold that there was not an abuse of discretion in allowing the photographs.

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Prior blog posts in this series:

* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Johnson v. Arlotta, 2011 WL 6141651 (Minn. App. Ct. Dec. 12, 2011)

Johnson and Arlotta dated. After the breakup, Johnson got a "harassment restraining order" (HRO) against Arlotta that:

prohibited him from (1) committing any acts "intended to adversely affect [Johnson's] safety, security, or privacy," (2) having "any contact" with Johnson "in person, by work or home e-mail, by telephone, or by other means or persons," and (3) visiting Johnson's Morgan Stanley "worksite."

Almost immediately thereafter, Arlotta created a blog titled "Help Ann Johnson," written in the third person. The blog "documented Arlotta's ongoing relationship issues with Johnson [and] discussed personal information about Johnson, including her involvement in sexually and physically abusive relationships, and questioned the state of her
mental health." Under pseudonyms, Arlotta then promoted the blog to Johnson's family, friends, contacts and employer as well as some unaffiliated parties, like the local media. Needless to say, many of these folks contacted Johnson regarding Arlotta's communications. The lower court found that Arlotta violated the HRO and ordered a new HRO that extended for 51 years (the appeals court adjusted this down to 50 years, the statutory maximum). The lower court also ordered the blog deleted (which has happened).

The appellate court agreed that Arlotta violated the prior HRO. Arlotta argued that his communications weren't directed to Johnson, but the court rejected that argument: "Arlotta intended his communications to reach Johnson and that they did, causing her humiliation and embarrassment." Johnson also argued that his information was truthful and lawfully obtained, but the court says harassment can occur even if those attributes are true.

The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.

The court also concluded that the HRO wasn't impermissibly vague. Arlotta argued that the HRO never expressly said he couldn't contact people in Johnson's network. The court says that's not a problem because the HRO

prohibits communications that are "intentionally calculated" to harass Johnson or have the effect of harassment, directly or indirectly, as exemplified by Arlotta's "Help Ann Johnson" blog and his contact with people close to Johnson.

Finally, Arlotta argued that Johnson could send takedown notices or sue for defamation or public disclosure of private facts, and these alternative ways of proceeding mooted the need for an HRO. The court rejected that based on the statute.

From my perspective, each of Arlotta's arguments had a point, in a tendentious sort of way. Yet, the arguments fell completely flat in light of the fact that Arlotta was, at best, trying to get around an existing HRO. We all know what Arlotta was trying to do, and his arguments felt very disingenuous.

This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).

This makes the court's remedy of ordering the blog deleted somewhat uncomfortable. Arlotta is allowed to speak his mind, and the court may have been able to excise the "harassing" component of the blog without wiping the entire blog off the Internet. Given the constitutional dimensions of this case, it's troubling that the court didn't evaluate that option more carefully.

Kash Hill's post on this case.

Here's a list of some of my anticipated upcoming events. For some reason, a higher-than-usual number of these upcoming events are still question marks. As usual, if I'm traveling to your neighborhood or we're going to be at the same event, let me know if you'd like to get together.

Dec. 2: The Economics of Privacy, University of Colorado Boulder, Boulder, CO

Jan. 20: ABA Business Law Section Cyberspace Committee Winter Working Meeting, San Francisco

Feb. 9: Faculty workshop, University of North Carolina Law School, Chapel Hill, NC

Feb. 10-11: WIPIP, University of Houston Law Center, Houston, TX

March 22: Oldham Lecture in Intellectual Property Law (should be open to the public), University of Akron School of Law, Akron, OH

March 24: Internet Law Works-in-Progress, New York Law School, New York, NY

April 13: Social Networking Sites: Law, Policy and Practical Strategies, Suffolk University Law School, Boston, MA

April 20-21: Trademark Scholars' Roundtable, Chicago, IL

May 2: Lawyers' Guide to Using Social Media for Professional and Client Development, PLI, San Francisco

May 4: American Society for Aesthetic Plastic Surgery Annual meeting, Vancouver BC (to discuss DoctoredReviews.com and patient reviews)

May 5-9: I'm trying to decide if I'll go to the INTA Annual Meeting in Washington DC. My faculty discretionary account probably will be exhausted by then.

May 18-19: Teaching Consumer Law conference, University of Houston Law Center, Houston, TX

June 1-2: SFIPLA meeting in Healdsburg, CA

June 10-12: AALS Mid-Year Meeting, Berkeley, CA

Ensign Yachts, Inc. v. Arrigoni, 2011 WL 5325174 (D. Conn. Nov. 2, 2011)

Another entry in the annals of social media evidence undercutting a litigant's testimony. This time, a YouTube video becomes the "gotcha":

Ross Sr.'s credibility was severely impeached at trial, most notably through the introduction of a YouTube video of Ross Sr. and Fabrice Fontanez on a yacht in the South of France directly contradicting Ross Sr.'s sworn testimony that he had only seen Fontanez on one occasion, at the Norwalk Cove Marina in Connecticut, since the dealings regarding the sale of the yacht and that he had no business relationship with Fontanez. Contrary to this testimony, the YouTube video, a promotional video for NuMarine, displayed Ross Sr. with one of his yacht dealers on a yacht in St. Tropez with Fabrice Fontanez in 2010, establishing that he had not only seen Fontanez on at least one additional occasion, but also that he had a business relationship with Fontanez. Further, when presented with this video on cross-examination, Ross Sr. was at best evasive in answering questions concerning the identities of the people shown in the video.