People v. Perrot (Cal. Ct. App. - Dec. 23, 2024)

You might think that work at the Court of Appeal stops entirely during the holidays. Not so. It slows down, for sure. But opinions continue to be written and published. At least for a while.

Today's opinion addresses a variety of issues, but the particular one that caught my attention was this:

Does a prior sex offender have a right to possess . . . a penis pump and/or dildo?

Is that the most onerous parole condition in the universe? No. The other restrictions -- for example, on access to the Internet, etc. -- are far more substantial.

But the guy did get busted for having the pump and dildo, and ended up getting thrown in the pokey for 60 additional days as a result.

His defense was that he needed the pump to get an erection, and that the dildo was his girlfriend's -- the latter defense confirmed by the girlfriend herself, though apparently rejected by the trial court.

Do I want a child molester to get erections? I guess not. Though, at the same time, if he's got a girlfriend, isn't molesting children, and needs the thing (which, after 20 years in prison, he perhaps might), I'm not certain that I care all that much.

Do I care that he has a dildo? Again, as long as he's not using it on children -- and it doesn't seem like he ever did that before -- I'm not sure that I do. And, at least facially, it sounds fairly persuasive to me that it isn't his, but rather his girlfriend's. That it was -- as the Court of Appeal argues -- "not locked away or kept in a location in his residence beyond Perrot’s ability to access" doesn't seem all that persuasive to me. It's not a gun or drugs or anything like that. It's a dildo. If the girlfriends wants (or needs) one, I'm not sure I'm really going to insist that it be locked up, lest Mr. Perrot attempt to misuse it.

I don't know. The whole pump-and-dildo thing seems silly to me. Could you bust the guy for having the internet devices he's not supposed to have. (Oh no! A PlayStation!) Sure. I definitely do not want the guy communicating with minors.

But the marital aids? I'm just not sure that I really care -- or care enough to throw a guy back in prison for the stuff. (Even for 60 days.)

Though I understand that reasonable minds might perhaps differ on this.

Back to the main point, though:

The Court of Appeal rests not during the holidays. There's pump and dildo work remaining to be accomplished.

JJD-HOV Elk Grove LLC v. Jo-Ann Stores (Cal. Supreme Ct. - Dec. 19, 2024)

I'm no fan of liquidated damages provisions. They're often (indeed, typically) employed in an oppressive fashion, and included by the economically superior party in a contract with a much more vulnerable counterparty.

But when a sophisticated shopping mall negotiates with a sophisticated business and they mutually agree on a cotenancy provision -- basically, that rent gets reduced if and when an "anchor" tenant leaves and the foot traffic to the mall thereby diminishes -- I have zero problem with them. And very much appreciate Justice Evan's unanimous opinion holding that the cotenancy provision here was just fine.

To me, the case for intervening in the contractual relations is at its nadir when the matter involves very sophisticated business parties, little to no public policy concerns, and provisions that are beneficial to both sides at different points in time. The cotenancy provision here is a perfect example. The shopping mall was able to receive higher rent when it had anchor tenants with a lot of foot traffic, and the store was able to pay lower rent when the anchor tenants were gone and the foot traffic diminished.

The fact that the departure of the anchor tenants was not under the "control" of the shopping mall is of no moment. For one thing, the shopping mall could have gotten someone in there by offering incentives; I bet a lot of stores would take the space if the mall owner charged, say, a penny a foot in monthly rent. 

And even if the anchor tenant's departure was entirely beyond the control of the shopping mall owner, so what? Lots of contracts provide for higher (or lower) rent when things beyond the control of the parties occur. I'm not in charge of the U.S. money supply, for example, but if my contractual rent increases (or decreases) based on the nationwide inflation rate, tough. Ditto for a contract that establishes a set price when the cost of the underlying commodities rises or falls. Those provisions harm the party adversely affected by the things the occur beyond their control. But we're fine with that.

So I'm a thousand percent on board for today's opinion. Indeed, I affirmatively like these provisions. They make sense for everyone.

So yay, California Supreme Court.

Merrick v. Lau (Cal. Ct. App. - Dec. 17, 2024)

“I already rejected those arguments. Okay. I know your client was not happy with my ruling. I mean, she was there, you know, mad dogging me, which didn’t bother me at all. It was almost amusing to see this little Chinese woman stare me down, because she didn’t like the ruling. But again, it’s just business. I didn’t take it personally.”

We can all agree, I think, that the judge's reference to the litigant's ethnicity and gender was unfortunate, unnecessary, and should be avoided. I suspect that even the trial judge, at this point, is of that view.

The Court of Appeal affirms the decision below, which I think is the correct result on the merits.

I also think it made sense to (belatedly) publish the opinion.

Keep those thoughts to yourself. Or, better yet, don't have them in the first place.

Majestic Asset Mgmt. v. The Colony at California Oaks (Cal. Ct. App. - Dec. 16, 2024)

Ah, the hassle of living in a golf course community.

I really appreciate what the Court of Appeal (as well as the trial court) did here. Buyers purchase a golf course in Murietta (the California Oaks Golf Course) subject to an agreement with the homeowner's association of the various homes that surround the golf course to keep the place in good shape. Buyers, however, fail to do so; the grass gets brown, trees die, a lake dries up, etc. So the HOA sues Buyers.

The HOA wins, and the trial court enters an injunction that compels Buyers to bring the course back up to snuff. They fail to do so. So the HOA moves to foreclose.

The HOA wants a "credit bid" so it can buy the property. But Buyers say they aren't entitled to one, or that, if they are, it should only be for $3000. The trial court disagrees, and grants the HOA a credit bid of $2,000,000+. Alongside an order that if the HOA (or anyone else) buys the property, they're still subject to the requirement to keep the course in good shape. Whereas Buyers say that if, instead, they purchase the property at foreclosure, the requirement that the course be properly maintained should be gone.

The Court of Appeal almost entirely agrees with the HOA, and rightfully so. The Court of Appeal reduces the HOA's credit amount by $244,000 to $2.5 million (again, correctly), but otherwise agrees with the HOA and grants them costs and fees on appeal.

All of which will, hopefully, lead to a result that's the best possible under the circumstances: the HOA will buy the course with its credit bid, get a real management company to run the place, and the area will be at least as green and pretty as it can be for a desert community in which I can personally attest it gets SUPER hot (sometimes over 100 degrees) in the summer.

Happiness to the maximum extent possible. (Except for the Buyers, of course.)

People v. Caratachea (Cal. Ct. App. - Dec. 13, 2024)

Defendant is convicted of molesting four children. So you know he's going to be sentenced for a long time, even if he has no prior criminal record.

He receives a sentence of 785 years to life (plus an additional six years). That's because the trial court imposed the sentences consecutively, agreeing with the prosecutor that the law granted no discretion for concurrent sentences in these types of cases.

The Court of Appeal reverses. There is, in fact, discretion. So maybe some, or all, of those 25-to-life sentences can be served concurrently. Remand.

Though I'll mention one thing in this regard that's nowhere in the opinion, but which you can nonetheless find out when you look up the defendant on the California Inmate Locator website.

He's 72 years old.

Which means that there's no way that any of this actually matters. He's going to die in prison regardless, or (if he's lucky) get compassionate release shortly before he dies.

But, hey, at least we eventually got the law right.

Kaur v. Dual Arch Int'l (Cal. Ct. App. - Dec. 11, 2024)

I know it's a pain in the butt to have to sit through a trial and listen to the evidence when you strongly think that one side deserves to prevail. But it generally seems a mistake to me -- doctrinally, we call the move "disfavored" -- to grant a nonsuit after the plaintiff's opening statement on the grounds that the evidence she's described therein is insufficient to support a judgment in her favor. As a general rule, why not actually listen to the evidence instead and then decide whether or not to grant a nonsuit then?

Otherwise, you risk substantial wasted time and effort when the Court of Appeal reverses the dismissal and finds the opening statement sufficient (assuming, of course, that the actual evidence ultimately shown at trial accurately corresponds to counsel's description during her opening argument).

Like, for example, the reversal here.

People v. Billy (Cal. Ct. App. - Dec. 9, 2024)

"Defendant and appellant Anthony Jordan Billy was convicted of driving under the influence of alcohol (DUI) with three or more DUI offenses in the prior 10 years (Veh. Code, §§ 23152, subd. (b) & 23550, subd. (a)). 1 Under section 23552, subdivision (a), if a person convicted under section 23550 receives probation, “the court shall impose as [a] condition[] of probation that the person be confined in a county jail for at least 180 days.”"

Anthony. Tony. J-Rod. Billy. Whatever you prefer to be called. Please, please, please get it together.

Mr. Billy spent 180 days in a residential alcohol treatment facility, so that's good. But the Court of Appeal holds that he still has to spend 180 days in jail as well, because that's the mandatory minimum sentence under Section 23552(a). It doesn't matter that other provisions say that residential treatment counts. The specific subsection here controls.

Mr. Billy hasn't served his time in jail yet; the sentence has been stayed while his appeal was pending. Unfortunately for him, the time has now come to pay the piper.

People v. Hall (Cal. Ct. App. - Dec. 5, 2024)

Am I wrong, or did something here get mixed up in the opinion editing process?

The Court of Appeal affirms the defendant's convictions, and that result seems right to me. In a child abuse prosecution, you can't help make your children unavailable for trial -- which it seems clear to me (alongside the trial court and the Court of Appeal) that the defendant did -- and then claim a hearsay or Confrontation Clause violation. That's your fault. Forfeiture.

But while the result seems correct, here's how the last paragraph of the first page of the opinion reads:

"Hall concludes that without the children’s statements his convictions on the two child abuse counts lacked evidentiary support. On this point the People do not disagree and instead contend that both the trial court’s evidentiary rulings were correct."

Shouldn't that read "do not agree" (rather than "disagree"), or shouldn't "do not" be deleted (so it reads "the People disagree")?

I wish that I could say I always reviewed my work product one last time -- and did so perfectly -- to make sure I caught all the minor typos. I most definitely cannot so claim. (Not truthfully, anyway.)

POSTSCRIPT - A well-informed reader says that the Court of Appeal probably meant what it said, and I'm persuaded. The People agree that they need the kids' statements, but disagree that the statements were inadmissible. Okay. Got it. Though definitely missed it the first time!

Chinaryan v. City of Los Angeles (9th Cir. - Dec. 4, 2024)

Were I the one responsible for writing the unofficial syllabus for this opinion, this is how it'd have gone (in its entirety):

"Ninth Circuit: 'Summary judgment reversed. Feel free to go to trial.' Mandate issues.

Party Stipulation (to District Court): 'Please stay the case while the loser petitions for certiorari.'

District Court: 'No can do. The mandate issued. No power. Ask the Ninth Circuit if you want one.'

Party Stipulation (to the Ninth Circuit): 'Please stay the case?'

Ninth Circuit: 'Nope. Denied. Ask the district court.'"

Admittedly, the Ninth Circuit also (helpfully) tells the district court: "You do have the power to stay, so stop saying you don't. Your call, not mine."

Otherwise this ping-pong could have gone on forever.

Planned Parenthood v. Labrador (9th Cir. - Dec. 4, 2024)

The Ninth Circuit today affirmed a preliminary injunction against Idaho's efforts to stop doctors from referring patients to out-of-state providers. Losing on the merits was definitely not what the Idaho Attorney General (alongside the Idaho Solicitor General) wanted.

But the last part of Judge Fletcher's opinion adds insult to injury, saying (in rejecting Idaho's efforts to have a different judge assigned on remand):

"No 'reasonable outside observer' could conclude that the district judge harbors personal bias against the defendants or that reassignment is warranted to preserve the appearance of justice. See id. at 1046. The Attorney General charges that the district judge ignored relevant materials, mischaracterized the record, and unfairly denied supplemental briefing. This charge is patently false. The thorough preliminary injunction order shows that the district judge carefully considered the record, the Attorney General’s arguments, and the parties’ timely filings. The compressed briefing schedule reflects the emergency nature of the relief plaintiffs requested. The decisions to deny supplemental briefing and reject untimely filings were well within the district judge’s broad discretion to manage his docket."

"Patently false" are fairly strong words to describe an advocate's representations to a court. Definitely not something I'd want said about me. 

Today's Insurance Opinions (Cal. Ct. App. - Dec. 3, 2024)

Both of these opinions -- coincidentally published on the same day -- amply demonstrate why some people rationally elect not to purchase insurance coverage. Because what you may well think that you're buying doesn't actually protect you from the losses you fear.

The first opinion involves fire coverage for a home in Malibu. Ms. Hughes bought a homeowner's policy from Farmers. You'd think that'd cover you if your house burned down, right? Nope. Her house burned down, but there's an exclusion in the policy (that her broker allegedly absolutely didn't mention) that says that the policy doesn't cover fire if you could buy a state-sponsored FAIR policy. So lawsuit dismissed.

The second opinion involves a  commercial general liability policy issued by Continental Casualty to a massage parlor owner. What's the absolute biggest risk you face when you own one of those businesses? Right. You're worried that you might get sued if you or one of your employees allegedly touches someone without their consent. Which, of course, happens here. At which point the insurer refuses to defend the lawsuit, relying on an exclusion in the policy, and a stipulated $6.8 million judgment results. The owner sues the insurance company for coverage. Lawsuit dismissed.

Both of these judgments get affirmed. Which is hardly surprising. The relevant exclusions do indeed negate coverage for the exact thing the owners probably bought the insurance for in the first place.

Which you'd think, at some point, would diminish the number of people willing to buy insurance.

Though that assumes you read the fine print of these massively long policies. Which few people do.

Which in turn is, of course, why those exclusions persist.

Schneider v. Hull (Cal. Ct. App. - Dec. 2, 2024)

It's boring, I know, but sometimes I just want to call out an opinion as being really smart and comprehensive. Like this one today by Justice Hull.

It's not the most critical opinion in the world, other than to the parties. There are two adjoining parcels by a river, and the only way to get to one of them is through an easement over the other. To minimize the intrusion on the dominant tenement (*fancy word*), the easement on behalf of the servient tenement (*ditto*) runs along the river.

But that has problems of its own. In 2002, flooding destroyed the riverbank and hence the easement, leading to litigation that was resolved in 2011, in which the trial court moved the easement a little bit inward from the riverbank. The goal, again, was to minimize the impact on the dominant tenement.

But floods will be floods. Then, in 2018, there was another flood, which made the new easement too difficult to traverse. Leading to new litigation, and a plethora of arguments about claim preclusion, issue preclusion, the nature of easements, etc. Imagine a really difficult property class combined with a really hard class on civil procedure. That's today's opinion.

Nonetheless, Justice Hull does a great job. His opinion seems sensible and entirely just -- as well as doctrinally correct. There's a new easement, this time (again) a little bit further inland. And unlike the trial court, the Court of Appeal doesn't make the owner of the servient tenement pay the million bucks or so it'd take to stabilize the riverbank so we don't see round three.

Hopefully this latest easement won't be washed away too. But if it does, well, that's life. Back to square one. Again.

For now, though: Justice.

People v. Multani (Cal. Ct. App. - Nov. 26, 2024)

Mr. Multani has been sentenced to life in prison. But he also has stage IV lung cancer. It's going to kill him, so he would like compassionate release from prison.

The wrinkle is that Mr. Multani has had stage IV lung cancer . . . for 10 years now. It's a specific type of lung cancer with a particular gene profile, so we have treatments for that. Those treatments are not a cure by any means, but they've enabled Mr. Multani to live this long. Eventually they'll fail, of course. But no one knows when.

Do you get compassionate release?

The Court of Appeal and the trial court say: No.

Yes, the cancer metastasized to his brain in 2017. But since then, it's been "perfectly suppressed." He still has symptoms, of course. He has weakness and problems with balance and cognition that require him to use a wheelchair. And, again, at some point, the cancer almost certainly will kill him. Maybe in a month. Maybe in six months. But maybe not for years. Depends on when the gene-targeting drugs stop working.

The Director of Health Care Services for the CDCR recommended that Mr. Multani be granted compassionate relief, but the trial court disagreed. It held that Mr. Multani was not on an “end-of-life trajectory” under Section 1172.2 in light of his prior and expected future treatment. The Court of Appeal affirms.

Tough call either way, IMO.

Murphy v. City of Petaluma (Cal. Ct. App. Nov. 25, 2024)

Here's another one where both the trial court and the Court of Appeal seem to me to have the right take; this time, in dismissing a lawsuit on summary judgment:

"Marites Murphy sued the City of Petaluma and fire department paramedics Jude Prokop and Shay Burke for medical negligence after the two paramedics responded to the scene of a head-on automobile collision in which Murphy was involved. As we shall discuss, the distinctive feature of this case is that Murphy repeatedly told the paramedics she was not injured and did not want or need medical assistance, and she said so even after being warned she might have suffered a serious injury that was not yet symptomatic and being urged to accept transport to a hospital for examination by a physician. Accordingly, after concluding Murphy had the capacity to refuse medical treatment, the paramedics left the scene. Unfortunately, hours later, Murphy suffered a serious debilitating stroke attributable to a hypertensive crisis triggered by the collision. She subsequently filed this lawsuit alleging the paramedics owed her a duty of care, which they breached through gross negligence, to assess her medical condition and to arrange transport to a hospital. The trial court granted the defendants’ motion for summary judgment, ruling the paramedics did not assume a duty of care to provide Murphy with the medical assistance she claims was owed. We affirm." 

I feel incredibly bad for Ms. Murphy, of course. But I agree with the Court of Appeal and the trial court that the paramedics did all that they were legally required to do. Ms. Murphy was competent at the time. She could -- and did -- refuse medical treatment. She had that right. If that's your choice, not only do the paramedics have no "duty" to conduct further medical tests, they also affirmatively have no right or legal ability to do so. When someone competent says "I'm fine, leave me alone," that's the end of the matter.  Leave 'em alone.

I was reminded when reading this case of my own personal experience on this front. I was riding my bike home from work several years ago when I was hit by a car. Many ribs were broken, I could tell my left lung was punctured, I had trouble breathing, etc. It was a serious. But I was wearing a helmet and knew that I hadn't hit my head. The paramedics show showed up -- quite rapidly, I might add; thank you for that, as well as the resulting morphine -- and understandably wanted to place me in a cervical collar, but when they did so, I had a much harder time breathing. So I told them to take it off; that I was certain that I had not hit my head and that my neck was fine. They repeatedly said: "Are you sure?" and I responded that I was, so they never put me in the thing.

That's exactly how that event should have gone down, and everything was fine. Were the law other than as articulated in this opinion, people might well be subjected to medical interventions that they do not want. We don't do that. (Not generally, anyway.) The downside of that legal regime is that, sometimes, perhaps a as here, people get injured in a way they didn't anticipate. That's a real harm, to be sure. But we are about autonomy. Deeply. Sometimes you get to choose to do things that are unwise, or even that affirmatively may cause you harm.

As here.

The upsides are worth the downsides. I'm glad the Court of Appeal agrees.

Juarez v. San Bernardino School Dist. (Cal. Ct. App. - Nov. 25, 2024)

It's been a busy week or so, and as a result, I've gotten a little behind on reading cases. But today sees a good one that's definitely worth note.

The trial court thought these facts weren't sufficient to create a claim for conduct "under color of law" for which the defendant could be liable, and hence granted a demurrer. The Court of Appeal disagreed and reversed.

Seems to me that the Court of Appeal is unquestionably correct.

The relevant facts, as alleged in the complaint:

"In February 2018, Juarez found a cell phone on the ground in Cherry Valley, California, located in Riverside County. Juarez placed it in his truck. Later that afternoon, when Juarez and the other plaintiffs were outside of Hinojosa’s home in nearby Beaumont, California, Officer Brown approached them after tracking his cell phone to their location.

Officer Brown, who was employed by the District as a police officer at the time, was carrying his firearm and had his District police badge clipped to his belt. He immediately identified himself as a police officer for the District, displayed his badge to plaintiffs, and demanded that they comply with his commands. Officer Brown then pulled his firearm, cocked it, and aimed it at Juarez, Espinosa, and Hinojosa, while Morfin, Hinojosa’s wife, watched from inside the house. Officer Brown demanded they turn over the cell phone and repeatedly asserted his authority as a police officer for the District. Juarez retrieved the phone from his truck and attempted to hand it to Officer Brown, but Officer Brown ordered Juarez to put the phone on the ground. As Juarez went to do so, Officer Brown struck Juarez in the face with his gun, causing Juarez to fall back, hit his head on the ground, and lose consciousness. Officer Brown then took pictures of plaintiffs and told them he knew who they were.

Officer Brown later pled guilty in San Bernardino County Superior Court to assault by a public officer (Pen. Code, § 149) and threatening the other plaintiffs under color of law, admitting that he acted under the color of authority as a District police officer when he detained plaintiffs and assaulted Juarez."

Those seem clearly -- clearly -- sufficient to me. 

LCPFV, Inc. v. Somatdary Inc. (Cal. Ct. App. - Nov. 11, 2024)

On occasion, I'll read an opinion by Justice Wiley that I feel is too harsh or curt (or both).

Not here.

A plumber allegedly didn't do a great job on work that cost $47,883.40, so the owner of the building had to hire someone else to fix it. The worker who subsequently fixed the problem charged the owner less than $43,883.40, but the owner nonetheless sued the original plumber for a fair piece of change. When the first plumber eventually defaulted, the owner submitted a default package asking for over $1 million, including over $300,000 in attorney's fees. The trial court said "No way" and awarded $120,319.22 total, and the owner appealed.

The Court of Appeal affirms. And isn't shy about explaining why.

Read the whole opinion -- it's 25 pages -- for a full understanding of why the trial court (as well as the Court of Appeal) thought that the owner was unnecessarily churning the case. Plus there's the whole "lack of candor" portion of the opinion. I'm fully on board for everything that Justice Wiley says on this score.

I nonetheless will mention that a small portion of the opinion seems erroneous to me.

The plaintiff here propounded a number of case-dispositive requests for admission, which the defendant didn't respond to (because no one represented him at that point). That's a time-worn strategy, and hardly unique to this particular case.

Justice Wiley takes umbrage at this practice, saying that it was unnecessary since the defendant had already essentially defaulted. I fully agree with that.

But he also attacks the practice writ large. He quotes the Rutter Group to say that "requests for admissions are useful 'only as to matters of lesser importance (for which they may not be necessary, since unimportant matters can usually be handled by stipulation with opposing counsel).'" And then goes on to say that, as a general matter, propounding RFAs on the ultimate issues in the case is "troubling," "not ‘in conformity with the spirit of the law,’" and does not "serve substantial justice.’”

I understand that there are occasional cases that so state, but that attitude seems flatly wrong to me. It's just fine, in my view, to propound case-dispositive RFAs, even at the very outset of the case. Mind you, if you do so, the RFAS may well not be successful, since the other side will almost surely deny them and the trial court will almost equally surely find "substantial justification" for such denials given the early stage of the litigation and hence deny cost of proof sanctions even if you establish the truth of the requests at trial. But if you want to give it a shot, I see nothing improper about the practice.

Moreover, I think the practice has affirmatively beneficial results as well. Sometimes, even early on in the litigation (and especially thereafter), there is in fact no substantial justification whatsoever to deny even case-dispositive RFAs. Say, for example, you rear-end someone on a bridge. Or drive drunk and smash into someone's house. That's pretty much certainly your fault. If you nonetheless deny liability in your answer, well, a case-dispositive RFA on an ultimate fact can -- and should -- be coming your way. And if you have the gonadular fortitude to deny the thing, well, if I'm the judge, I'm imposing cost of proof sanctions every day of the week if liability is ultimately found. Rightly so.

RFAs are designed to narrow disputes, and one (critical) way they do so is to impose a burden on those litigants who might wrongfully create disputes where none actually exist. That's equally true for both "important" (e.g., case dispositive) portions of the case, as well as less portions. RFAs are valuable in both settings.

So I'm 100% on board for Justice Wiley's language as applied here. But I don't think that language applies more broadly, and am worried that a published opinion contains language that litigants might well use to defeat the value (and use) of case-dispositive RFAs.

The Comedy Store v. Moss Adams LP (Cal. Ct. App. - Nov. 14, 2024)

You've got to pull quite a few doctrinal moves to make this opinion work. But Justice Mori pulls them all. The Court of Appeal holds that since the defendant's forum selection clause (which required all lawsuits to be filed in Washington state) also contained a waiver of the right to a jury trial, which is enforceable in Washington but not in California, it's not entitled to a dismissal of the California state court lawsuit on forum non conveniens grounds.

Even if the defendant stipulates to waive the impermissible (in California) jury trial waiver provision.

I thought that the equity of this result was best expressed in one particular paragraph near the very end of Justice Mori's opinion, in which she says -- quite correctly, in my view:

"Predispute jury waivers have been unenforceable in California for nearly 20 years. (See Grafton, supra, 36 Cal.4th at p. 956.) According to a declaration from Moss Adams’s general counsel, engagement agreements similar to the one signed by the Store have been in use throughout this time. If we were to hold that Moss Adams’s unilateral stipulation satisfied its burden of proof under Verdugo, it would have little incentive to take the jury waiver out of the agreements it provides to California clients. It can simply wait and see if a client who signs the agreement sues it in California and argues the forum selection clause impinges on the client’s right to a jury trial. Then Moss Adams can provide a non-enforcement stipulation. However, if the client does not recognize its right to a jury is unwaivable, it may end up abiding by the terms of the agreement and litigating the case in Washington without a jury."

Yep. Spot on right.

In re Baby Girl R. (Cal. Ct. App. - Nov. 12, 2024)

Let's begin the week with the only published appellate opinion in the last four days. Albeit a somewhat depressing one. The facts:

"S.R. and Baby Girl R. were transported by ambulance to a hospital shortly after S.R. gave birth in a homeless encampment. The identity of Baby Girl R.’s father is unknown. S.R. informed hospital staff she was unaware of her pregnancy and was using methamphetamines daily. Baby Girl R. tested positive for the drug and exhibited withdrawal symptoms. The hospital placed S.R. on an involuntary psychiatric hold as she displayed paranoia, delusions, and aggression. When the hospital discharged S.R. a few days later, she returned to the homeless encampment and left Baby Girl R. at the hospital. . . . Despite diligent search efforts, the Department was unable to locate S.R. after she left the hospital."

Man.

It's been over a year now, by the way, and they still haven't found the mother.

There's at least some potential good news, though. They originally placed Baby Girl R. in foster care. But while the present appeal was pending, the trial court apparently placed her with her maternal grandparents.

So at least there's some hope there.

Grand Canyon University v. Bolton (9th Cir. - Nov. 8, 2024)

I gotta be honest that I liked the district court's decision better than the Ninth Circuit's in this one.

It's a summary judgment ruling, so maybe reasonable minds could perhaps differ. But it's a challenge to an administrative ruling, so the agency's decision needs to be "arbitrary and capricious" to be overturned, and that's a super difficult standard.

As I see it, there's pretty ample evidence that Grand Canyon University's purported "transition" from a for-profit corporation to an alleged nonprofit is basically a scam. (Which, in very loose -- and admittedly opinionated -- language on my part, is what the Department of Education essentially concluded.) You can read the whole opinion for yourself for the details. But they basically fold the existing for-profit entity into an existing nonprofit but then "capture" the nonprofit, plus get basically all the tuition revenue flowing to the purported nonprofit.

(Here are some of the mind-numbing details, according to the opinion's recitation of the DOE's views:

"The Department concluded that the “primary purpose” of the GCE-Gazelle transaction “was to drive shareholder value for GCE.” The Department based this conclusion on the purportedly disproportionate 60% share of GCU’s revenues to which GCE was entitled under the transaction, which included revenue from operations to which GCE was not obligated to “provide[]” any “services” under the MSA. The Department also found that, when taking into account payments on the loan under the Credit Agreement, GCE would be “receiving approximately 95%” of the university’s revenues. “[E]qually concerning” to the Department was its view that GCU was a “captive client” under the transaction, given the initial seven-year term of the MSA and the substantial financial payment that the university would have to make in order to terminate the agreement. The Department concluded that “GCU d[id] not meet the operational test’s requirement that both the primary activities of the organization and its stream of revenue benefit the nonprofit itself.” According to the Department, “[t]his violates the most basic tenet of nonprofit status—that the nonprofit be primarily operated for a tax-exempt purpose and not substantially for the benefit of any other person or entity.” The Department also stated, as “additional support” for its conclusion that GCU was not entitled to nonprofit status, that Gazelle was “not the entity actually operating” the university under the Department’s regulations. See 34 C.F.R. § 600.2 (stating that a HEA nonprofit must be “operated by one or more nonprofit corporations or associations”); 20 U.S.C. § 1003(13) (same). The Department reasoned that the board “responsible for managing and overseeing the University” consisted predominantly of GCE employees."

Pretty damning, in my view. As well as a sufficient basis for calling GCU not a "true" nonprofit -- with all of the various financial advantages and benefits from the Department of Education that arise alongside such a status.

I understand Judge Collins' hypertechnical (IMHO) argument to the contrary. I'm just not confident that the DOE's opposite conclusion is genuinely arbitrary or capricious, or that (as the panel found) it really applied an inappropriate legal standard here.

At a minimum, it seems to me like they reached a result with which I'm entirely comfortable.

But if reasonable minds could perhaps differ, so be it.

In re Marriage of Diamond (Cal. Ct. App. - Nov. 5, 2024)

I thought it was very nice of Justice Feuer to spend 32 pages carefully analyzing this appeal, which affirmed the trial court's rejection of a self-represented litigant's attempt to vacate a marital dissolution judgment in which she failed to show up for trial (or respond to discovery, or basically do anything). The opinion exhaustively discusses the relevant evidence, is very careful about the underlying standards, and takes the issues seriously. All this despite the fact that, in my view, the proper outcome is crystal clear, particularly since the trial judge found the appellant not credible (for more than sufficient reasons).

I certainly feel bad for the appellant, and am confident that Justice Feuer does too. She was clearly depressed during a period of time, and did not handle her divorce (or mental health during that period) well. But she had plenty of notice and plenty of opportunities to show up, and failed to do so, even as she was able to successfully participate in a variety of events. So, yes, I feel bad, but the proper result is fairly clear. (I'm also quite confident that the trial court rightly awarded custody of the children to the father under the circumstances.)

One thing that you learn about the appellant midway through the opinion is that she's an attorney, which is ironic given her failure to appear in the divorce action. If there's anything you'd think an attorney would know to do, it's to keep in touch with her attorney and/or show up at trial.

But I get it. She was depressed. She simply didn't want to deal. Not a sufficient excuse under the particular circumstances here (and given the evidence presented below), but understandable.

Parenthetically, I also thought it was interesting that when I looked up the appellant's name on the State Bar's website. All three of the attorneys with that same name ("Susan Diamond") are currently ineligible to practice law. The one at issue here (in LA) is suspended for failure to pay child support, failure to pay bar fees, and failure to satisfy the MCLE; the second (a fellow HLS grad!) just recently went inactive last year after practicing law for 40 years; and the third (in Sacramento) was suspended just four months ago for client trust account noncompliance (oops!).

Three for three.

Anyway, a very nice opinion by Justice Feuer, who clearly gives this appeal the careful attention it deserves (and perhaps even more).

Mountain View P.D. v. Krepchin (Cal. Ct. App. - Nov. 4, 2024)

I seriously hope that Mr. Krepchin gets some assistance with his mental heath. But, in the meantime, I completely agree with the Court of Appeal that he shouldn't possess any guns.

Good luck, Mr. Krepchin. Things can get better.

Martinez v. Superior Court (Cal. Ct. App. - Nov. 4, 2024)

I understand where the Court of Appeal is coming from here. The Legislature may well allow you to retrospectively withdraw your guilty plea -- for example, when you weren't advised at the time of the immigration consequences of that plea. But that doesn't mean that the state is barred from refiling those charges after the resulting dismissal. The statute doesn't expressly say that refiling is barred, and in some circumstances, I could totally understand why refiling would be permissible.

So the basic holding is something that doesn't seem to me out of this world. Under those circumstances, I can see why the Double Jeopardy clause doesn't necessarily bar refiling, the statute doesn't, etc.

But the situation here involves someone who's served his original sentence -- namely, probation. When the Legislature says that, after you've successfully served such a sentence, you can withdraw your plea and get the charges dismissed, it seems a bit bizarre to say that the state can then refile those same charges. And, to make matters worse, to say that the state can now refile those charges as a felony even though the California Supreme Court has said that "when a court has granted relief under section 17, subdivision (b), the offense is 'deemed a ‘misdemeanor for all purposes.’"

Doesn't it seem crazy to allow the state to refile the charges after you've served your entire sentence and to potentially now seek to incarcerate you for a longer period as a result of your successful petition under a statute that the Legislature passed to ameliorate the consequences of your prior conviction?

The Court of Appeal responds to that basic point by saying that "at this stage of the proceedings, whether the state may seek additional punishment is not before us." True enough, I guess. But that's the mountain that astrides the molehill. If the state isn't allowed to seek additional penalties beyond the ones that you've already served, then what's the point of allowing refiling? And if the point of the statute was to ensure that there aren't additional penalties, then it seems to me that allowing refiling would impermissibly conflict with the core purpose of the statute, and be improper even if the statute didn't expressly say whether such refiling was permissible or not. (That matters; just like preemption can be found even if its implied rather than express, so too can a statute sometimes require something even though the Legislature didn't pass a statute that contains those exact words.)

So it seems to me important whether additional punishment is allowed, even though the Court of Appeal doesn't feel like it needs to reach that issue at this point.

It seems to me like it nonetheless matters. A ton.

In re M.T. (Cal. Ct. App. - Oct. 30, 2024)

This is an eminently moderate and reasonable opinion.

M.T. transitioned to being a girl when she was a minor, and at 19, legally changed her name. Three years later, she was harassed and outed on social media by someone who had looked up her name change petition online, so the next year, she moved to seal her name change materials. 

The trial court refused to do so. The Court of Appeal reverses.

Justice Meehan's opinion doesn't establish a categorical rule that says that all name-and-gender petitions have to be sealed; rather, you gotta look at this stuff case-by-case. We generally make name change petitions public because we don't want people changing their names to defraud creditors, escape the police, etc.

But this girl isn't doing any of that. She transitioned as a minor. She changed her name at 19 for fully permissible reasons. There's no reason why the public needs access to what she was originally called (her "deadname") name, and permitting easy public access allows people to look up current names and link them up to old names to "out" folks as transgendered. So public interest in that, thank you very much, and big downsides, as the individualized harassment here reflects.

So, in my view, a very well-written and sensible opinion by Justice Meehan -- one that could have easily gone off the rails in either political direction, but doesn't.

Osborne v. Pleasanton Automotive Co. (Cal. Ct. App. - Oct. 31, 2024)

It's a bit ironic -- or at least caused me sly amusement -- that this appeal involves a (successful) anti-SLAPP motion filed against a cross-complainant whose name is Bob . . . Slap.

It's juvenile, I know, to find humor in someone's surname. Still

(The word "SLAPP" appears 47 times in the opinion and the word "Slap" appears 98 times, so it's kinda hard to miss the similarity.)

In re H.B. (Cal. Ct. App. - Oct. 29, 2024

I'm of two minds regarding the decision to publish this opinion. On the one hand, yes, it's important, and we want to make sure that trial courts don't make the same (alleged) mistake in similar cases.

On the other hand, oh my, what a total nightmare of a family situation, and so depressing to read about.

U.S. v. Nasri (9th Cir. - Oct. 29, 2024)

Do you remember Pennoyer v. Neff -- likely from your first day of Civil Procedure as a first year in law school?

Today's opinion from the Ninth Circuit is Pennoyer on steroids, and discusses personal jurisdiction (or lack thereof) in civil forfeiture actions involving international fugitives.

It's 89 pages of single-spaced, incredibly dense prose. With an opinion by Judge Desai, a concurrence by Judge Bybee, a concurrence by Judge Desai (to her own opinion), and then a dissent by Judge Bennett.

If you were simply fascinated by that first day of Civil Procedure, I can't think of a better way to spend the next couple of hours.

(I must sadly admit that I did, in fact, spend that time. But I teach the stuff, so actually care.)

Alafi v. Cohen (Cal. Ct. App. - Oct. 25, 2024)

I'm often protective of professors, but ironically enough, here's a recent opinion from the Court of Appeal involving a $20 million judgment against a full-time, tenured professor at Stanford. And not an unknown professor either; the judgment debtor is Stanley N. Cohen, who basically discovered recombinant DNA in the 1970s.

The Court of Appeal finds in his favor, but it's likely only a temporary reprieve, because the remand is so the trial court can issue a more robust statement of decision sufficient to permit appellate review. I'd bet a ton that the judgment's going to come out the same way, but at a minimum, this buys Professor Cohen a little more time.

We'll then see if, eventually, the Court of Appeal affirms or reverses on the merits.

U.S. v. Shih (9th Cir. - Oct. 25, 2024)

Today's Ninth Circuit opinion notes that "Shih, an electrical engineering professor at the University of California, Los Angeles, collaborated with engineers in the People’s Republic of China in conducting research for China Avionics Systems Co. Limited (“AVIC”), a Chinese enterprise that develops military weapons. . . .  Shih was sentenced to concurrent 85-month sentences on Counts One and Two and lesser concurrent sentences on the other sixteen counts."

I'm sure that I'm being overly proprietary here, but I'd nonetheless like to point out that Mr. Shih was an adjunct professor at UCLA. That's a big difference.

By contrast, full-time, tenured professors in California rarely sell military secrets to our adversaries.

Rarely.

CPC Patent Tech. v. Apple, Inc. (9th Cir. - Oct. 24, 2024)

You're not going to read this opinion unless you're a super nerd; or perhaps care deeply about appellate jurisdiction over nonfinal orders for federal discovery for use in a foreign proceeding pursuant to 28 U.S.C. § 1782. (The latter category probably consists of about a dozen people; the former is larger.)

That said, it's a nice little opinion by Judge Bress. Very well written and reasoned, IMHO.

Price v. Superior Court (Cal. Ct. App. - Oct. 23, 2024)

How do you feel about sentences that are not grammatically complete sentences?

Personally, I'm not a monster stickler for old-style grammar. Over the years, for example, I've become comfortable with beginning the occasional sentence with "And . . . ." Despite the fact that, as a young lawyer, I thought that was terrible form. Nowadays, though, I'm down with that.

With the understanding that some other readers might react negatively to it.

With that in mind, what do you think about these two sentences from Justice Earl:

"Over a year later, on November 14, 2023, the superior court held a hearing in which it considered anew the issue of Price’s suitability for conditional release, based on new circumstances. This time apparently without the concurrence of DSH."

Me? I'd probably have introduced those last eight words with a comma -- or a set of dashes -- instead of a period. If only because I can't seem to find a verb in that second sentence.

But this might perhaps be another example of me being an old-fashioned stickler. I get Justice Earl's point. What she's saying is unambiguously clear. So why should I care if there's a sentence without a verb?

Just fine, no?

Committee to Recall Dan Holladay (9th Cir. - Oct. 23, 2024)

Judge Bumatay (alongside Judges Bennett, Nelson & VanDyke) dissent from the denial of rehearing en banc in this case. It's a 30-page missive that argues that states should have more leeway than Ninth Circuit precedent currently allows to restrict voting on initiative, referenda and recall petitions.

Let's leave to one side the atmospherics of conservative jurists arguing in favor of more restrictions on voting -- an issue of some political salience in the contemporary era. Judge Bumatay is making a doctrinal point, and he's (of course) entitled to do so, using whatever arguments he'd like. Those arguments stand or fall on their own merits.

But as a practical and persuasive matter, if you're arguing in favor of the legitimacy of state-sponsored limitations on voting, I might suggest that you not -- as Judge Bumatay does pervasively throughout the entire 30-age opinion -- focus on similar efforts to constrain voting during Reconstruction.

Because, yes, states -- particularly in the South -- did indeed make pervasive efforts to limit ballot access during Reconstruction, so there's indeed a lot of historical precedent on that front.

But I'm not at all certain that precedent cuts the way Judge Bumatay wants it to.

Because most of us, I suspect, don't view those voter suppression efforts during Reconstruction as a good thing that we should diligently attempt to replicate.

A.D. Improvements v. Dep't of Transportation (Cal. Ct. App. - Oct. 22, 2024)

A statute requires CalTrans to sell “commercial real property acquired for the construction of a state highway, but no longer required for that purpose."

You'll notice that the statute only applies to "commercial" real property. So if the property was residential when CalTrans acquired it, and is currently residential -- e.g., CalTrans is currently leasing it to someone who uses it as residential property -- clearly the statute doesn't require CalTrans to sell it.

Conversely, if the property was commercial when CalTrans acquired it, and is currently utilized for commercial purposes (e.g., by the lessee), then, yes, CalTrans has to sell it.

But what this opinion resolves is: What if the property was non-commercial (e.g., vacant) when CalTrans acquired it, but is currently commercial (i.e., used by the lessee commercially). Does the statute apply?

The question is accordingly one of tense. "Acquired" is past tense. What does that past tense word modify? Does it mean that the property had to be commercial in the past -- when acquired? Or does the statute simply mean that the property needs to be commercial now for a sale to be acquired?

The trial court thought it meant one thing. The Court of Appeal concludes the opposite, and reverses.

What do you think?

It's at least facially a simple grammar question. So, arguably, there's a "clearly right" answer.

And that's indeed what the Court of Appeal concludes. Its opinion is replete with statements to the effect that there's only one possible interpretation of that statute that might even conceivably be true. It says the language "clearly indicates the Legislature’s intent." That the "plain reading" of the statute permits only one conclusion -- a phrase the opinion often repeats. And that the statute's unambiguous, and hence the court need not resort to legislative history.

I'm not going to quibble with ultimate result reached by the Court of Appeal. That result is plausible, for sure.

(Notice how I'm deliberately keeping you in suspense as to which way the Court of Appeal comes out?)

My only quibble is that I definitely do not think the answer is "clear" -- or that the text has a "plain" meaning that admit of only one result. Nah. Either result is plausible to me. One might perhaps be preferable -- and the one that I think is correct. But there's no way that I believe that there's one and only one way to interpret the sheer text that the Legislature passed. Sorry. Language is often complex, and its meaning somewhat indeterminate. As here.

When the text is indeed crystal clear, sure, go ahead and follow it; that's definitely our job. But there are lots of circumstances in which the text is not, in fact, crystal clear.

When that's true -- as here -- I don't think it's helpful to stretch and pretend that there's a single "plain meaning" that obviates the need to resort to all the helpful textual and analytical tools in our arsenal. I know we're in a "focus on the text" jurisprudential regime lately. But that can go way too far, and claim as "clear" certain statutory language that's, in fact, far from it.

And I think this is a good example of that.

As proof: Are you really sure that the way you come out on this one is the same as the Court of Appeal, when all you have is the ostensibly "clear" text?

Go ahead and read the opinion to find out if you're right.

Montejo-Gonzalez v. Garland (9th Cir. - Oct. 17, 2024)

If she had consistently met all her other deadlines but got caught in multiple traffic accidents on her way to court, would you deport someone from the country solely because she was late for her hearing?

Judge Desai wouldn't. Judge Collins would.

Claudia Elena Montejo-Gonzalez had a court hearing in Seattle on October 31, 2019 at 8:30 a.m. She didn't have a lawyer, so she had to show up personally, so she left her house in Bremerton for the hearing at 6:45 a.m. That's typically sufficient time, since the trip normally takes 90 minutes or so at that time of day. 

"But on their way to the hearing, petitioners encountered not one, but two major accidents that caused severe traffic." (She took pictures!) When she didn't show up on time, the immigration judge ordered her deported in absentia. "Upon arrival, Ms. Montejo-Gonzalez spoke with two clerks to try to have her case heard, but to no avail."

Judge Desai says that, under the totality of the circumstances, Ms. Montejo-Gonzalez did everything she could given the extraordinary situation to arrive on time, so shouldn't be deported in absentia. Whereas Judge Collins says that being late was her fault -- she should have left earlier -- so deportation without a hearing is okay.

To me, the correct answer depends on how late you are, and why. It definitely should not be the rule that whatever traffic you confront is your fault because you could always have left earlier than you did.

Here, Ms. Montejo-Gonzalez was two hours late. That's a lot. If she was only 15 minutes late, well, that's not good, but no way you deport someone in absentia for that, IMHO. You just hear her case on second call or whatever. Regardless, honestly, of the excuse -- if any -- for her absence. You don't get booted out of the country because you're 15 minutes late to something. Not in my world, anyway.

But two hours is more than 15 minutes. By that time, the judge had finished calling the calendar and had gone back into their chambers. Now, it's only 10:30 a.m. at that point, so if I'm the judge, I might well be miffed, but it's a serious issue to deport someone in absentia, so I'd have gone back to the bench, vented a little, and heard the thing on the merits. Again: it's only 10:30 in the morning. It's not like everyone's gone home for the day.

Now, Judge Collins is right. Ms. Montejo-Gonzalez could definitely have left earlier than 6:45 a.m. (Though that's already pretty early.) And if I was giving her advice, I definitely would have told her to leave by 6:00 a.m. or so. Sure, that might get her there a whole hour early, since it only typically takes 90 minutes (even with traffic) to arrive, so she'd be there at 7:30 a.m. But better to play it safe.

It nonetheless seems unfairly harsh to say that you get deported -- without a hearing -- if you leave 45 minutes too late. Wholly apart from the injustice of the rule that Judge Collins appears to advance: that traffic is always expected so is always your fault if you don't leave early enough.

Take a look at the route that Ms. Montejo-Gonzalez had to take. It's a long way around the bay to get to downtown Seattle. (Don't even get me started on risking the ferry when your continued presence in the country is at stake.) I plugged in the recommended departure times for Thursday, October 31 (the date of her hearing) into Google maps. That takes, according to Google, from a little under 90 minutes to maybe two and a half hours. But, on the relevant day, it took nearly four hours due to the two major accidents.

That seems fairly exceptional, no? Doesn't exceptionally (e.g., not reasonably anticipated) bad traffic count as a legitimate excuse?

Judge Collins doesn't seem to think so. But really?

Imagine, for example, that Ms. Montejo-Gonzalez had left SUPER early -- say, 5:30 a.m. -- but while she was on the road, the Tacoma Narrows Bridge was suddenly shut down. Maybe a ship hit the thing. (It happens.) Maybe there was a jumper. (Not a hypo: This happened to me once, when the Coronado Bridge was suddenly shut down and I had to go over it to drive one of my children to a game. I had to drive all the way around -- basically to Mexico -- to ultimately get there. Super delayed.)

At that point, there's basically only one way to Seattle: WAY around the bay -- all the way to Olympia and back -- and no way (even leaving early) you're getting to the hearing anywhere near on time. No matter how early you leave. (And that's assuming you don't get stuck on the bridge!)

Your fault? Deported in absentia? After all, it's just "traffic". And you could have left at 2:00 a.m., after all. Or spent the night -- or week -- in downtown Seattle, waiting for your hearing.

So, in my mind, unexpected traffic can be an excuse. But you gotta look at the totality of the thing. Was it just a little worse than usual? A lot worse than usual? Incredibly worse than usual? And what did you do to try to make it work. Did you (could you?) call the clerk? Did you show up while court was still in session? Do we believe you when you say you left when you did and were delayed as you were? All this goes into the assessment of the appropriate remedy.

But the thumb's gotta be on the scale for only deporting someone if they actually deserve to be kicked out of the country. Right?