Tuesday, April 16, 2019

People v. Superior Court (J.C. Penney) (Cal. Ct. App. - April 16, 2019)

I was surprised to see a case today captioned "People v. J.C. Penney Corp."  That's something you typically see in a criminal case, and those filed against corporations are rare.  It turns out it's a civil case about false advertising brought by the L.A. City Attorney, against J.C. Penney and a couple of other stores (Kohl's, Macy's and Sears) for asserting alleged "sale" prices that we're accurate -- or at least didn't comply with the California Business & Professions Code.  Makes sense.

I was even more surprised when I saw that the trial court sustained the defendants' demurrer on the ground that the statute was unconstitutionally vague.

I was less surprised when the Court of Appeal reversed.

Defendants raise a variety of fancy constitutional challenges; e.g., free speech, due process, etc.  But it seems to me that the Court of Appeal gets it right.  At least in this particular statute, there's no real vagueness problem with the terms "market price" and the like -- people of reasonable intelligence can understand what that means.  So the statute survives at least a facial challenge, which is what's been brought here.

I suspect that the City Attorney is correct that the defendants advertise fake "sale" prices that are in fact deceptive, and don't really -- or at least don't uniformly -- accurately describe what the goods in fact sold for in the recent past.  The government can, I think, constitutionally prohibit a store from, say, selling an item for $50, marking it up for 10 seconds to $180, and then reducing the price to $60 and saying "On SALE -- 66% off!"  Yeah, at one level, that's "truthful" advertising.  But it's deceptive and in the context of commercial speech, subject to regulation.

So, for now, L.A.'s lawsuit continues.

Monday, April 15, 2019

U.S. v. Loyoza (9th Cir. - April 11, 2019)

The slogan of United Airlines is:  "Fly the friendly skies."  Anyone who's been on a commercial airplane in the past decade knows that the skies are far from as friendly as they once were.  But the Ninth Circuit reminds us that it's not only cramped airplanes, absurd "incidental" fees, and other nastiness associated with the airlines that makes air travel far less glamorous than it once was.  You've also got the fear that you'll be criminally assaulted.

One case last week involved a criminal prosecution for sexual assault on board an airplane.  In that prosecution, "[d]uring an overnight flight from Tokyo, Japan to Los Angeles, California, Juan Pablo Price, a forty-six-year-old man, moved from his assigned seat to an open seat adjacent to that of a sleeping twenty-one-year-old female Japanese student, where he fondled her breast and slipped his hand into her underwear, touching her vagina."  Not something you want to have to deal with, for sure.

The very next day, the Ninth Circuit issued this opinion, which involved a straightforward (non-sexual) assault on a different airplane.  This time on a flight from Minneapolis to Los Angeles.  (Notice, if you will, that both flights were into Los Angeles.)  That case involved merely a punch to the face, but still, not something you want to have to deal with either.

That latest case also has an interesting doctrinal holding.  The majority opinion holds that under the federal venue statute, you have to charge the defendant in the state that the aircraft was flying over at the particular time of the assault, not (as here) merely in the venue in which the plane landed.  The Ninth Circuit noted that, in some cases, this might not be entirely easy to ascertain, stating:  "We acknowledge a creeping absurdity in our holding. Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide—or some other nightmare at 20,000 feet—that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity. How feasible would it be for the government to prove venue in such cluttered airspace?"  Not easy, the majority admits.  But not impossible.  So you gotta do it.

So if you're really angry about that guy behind you who keeps kicking your seat, maybe wait until you're over, say, Texas, or some other state in which the jury might perhaps be more sympathetic to your plight.  Then plunk him.

Wednesday, April 10, 2019

People v. Jones (Cal. Ct. App. - April 9, 2019)

This is fine.  But you know that prosecutors are no longer going to write down their thoughts about the various prospective jurors (lest the defense get those notes in discovery), right?

Diaz v. Sohnen Enterprises (Cal. Ct. App. - April 10, 2019)

You work for Employer.  You've got a written contract that says that you'll be paid $50,000 a year and that you will receive two weeks of vacation per year.  The contract is at will, so the employer can fire you whenever it wishes.

One day, Employer calls a staff meeting and explains that Employer is going through a rough patch. Employer orally tells all the employees the following:

(1) Effective immediately, every employee's pay will be reduced by $10,000 a year, and no vacations will be allowed.

(2) Effective immediately, every employee will be required to mow the CEO's lawn once a week for three hours, without additional compensation.

(3) Effective immediately, any dispute involving Employer and any employee will be decided not in court, but in binding arbitration.

You immediately stand up and tell Employer:  "No way.  I have a written contract.  I don't agree to these changes."  Employer responds:  "Tough for you.  We're unilaterally changing the contract.  If you continue to work here, we are going to deem that as consent to these changes."  You say:  "Look, you can fire me if you want to.  But to be clear:  I'm not agreeing to those changes.  If you continue to employ me, I'm going to deem that consent to our existing contract, not your proposed changed one."

You continue to report to work for Employer.  Employer does not fire you.  Four weeks later (you're paid monthly), you get your paycheck, and it's $800 short.  They've reduced your salary like they said they would.

You promptly quit, and immediately file a lawsuit against Employer, seeking $800 in damages for breach of contract.  Employer counterclaims for breach of contract, alleging that you failed to mow the lawn of Employer for four weeks, and it cost Employer $160 to hire a replacement.  Employer also moves to compel arbitration.  You say in response to both the motion and the counterclaim that you never agreed to Employer's proposed contract, so you're owed the $800 and aren't required to pay $160 or arbitrate your dispute.

Who wins?  Was there a contract?  Was there a meeting of the minds?  Does the answer vary as between the salary, the mowing, and the arbitration clause?

The Court of Appeal doesn't answer all of these questions.  But in a split opinion, on facts analogous to the above hypothetical, it does hold that -- as a matter of law -- the employee has in fact agreed to arbitrate under these conditions.  Expressly saying you don't agree isn't good enough.  You've still agreed.

I'm not quite sure why the Employer's unilateral "take it or leave it" (e.g., if you report to work you've agreed) is given priority over the Employee's unilateral "take it or leave it" (e.g., if you continue to employ me, you've agreed").  Particularly since the Employee's statement is consistent with an existing contract to which all parties did agree, so presumably, you've got to get a new meeting of the minds to change it.

Nor do I understand why arbitration would be any different than salary, or mowing the lawn, or anything else.  So if there's a distinction here, it'd be interesting to see where it comes from.

Regardless, that's the law (at least now) in California.  Even if you say you disagree, it's still a contract, and you're bound.

Monday, April 08, 2019

Demarest v. HSBC Bank (9th Cir. - April 8, 2019)

Diversity jurisdiction was one of the easier concepts in law school.  At least at its most basic level.  For example, it's not hard to remember that you've got to have complete diversity of citizenship.  A concept like that is likely to be on the test, and is (fairly) easily remembered.

But the details are often incredibly difficult.  How one treats corporations wasn't that hard -- place of incorporation and principal place of business -- though figuring out the latter wasn't invariably easy.  But then you've got associations, and insurers, and executors, and things like that.  All these artificial entities for which there are separate rules.

My guess is that your eyes pretty much glazed over when you got down to that level.  With the totally understandable approach of "Well, I get the basics fairly well, so let's move on."

Which is fine for law school.  But then, once you become a lawyer, when you have a case in which you have to actually confront (and brief) the issue, well, sorry.  You're stuck.

Today's (sole) Ninth Circuit opinion delves into the complicated issue of how you treat "trusts" in determining diversity jurisdiction; in particular, trusts created my mortgage securitization.  Do you just look at the citizenship of the trustee?  Or do you look at the citizenship of the beneficiaries (or both)?  After all, it's the latter who really care about the lawsuit.  Even though the former is the nominal defendant and legally represents the latter.  Who counts?

It's not an easy question.  Particularly since (1) the Supreme Court has been slowly changing all these diversity rules, at least at the margins, and (2) the number and complexity of artificial legal entities keeps increasing over time (which in turn partially explains (1)).  So does the rule remain the "usual" one:  that it's just the trustee that counts?  Or is this more like REITs and other trusts, where, under evolving law, it's the beneficiaries (at least in part) that matter?

Ultimately, the Ninth Circuit decides to just dance with the person who brung 'em.  It sticks with the traditional rule.  Only the trustee counts.

If the Supreme Court wants to change the rule, it's up to them.

Thursday, April 04, 2019

Shoen v. Zacarias (Cal. Ct. App. - April 4, 2019)

I don't teach Property.  I don't want to teach Property.

But if I did teach Property, I'd have my first-year students read this opinion.

It involves a topic that seems much more practically important in the modern world than, say, who owns a wild fox.  A landowner grants a neighbor a (free) license to use part of his property -- here, a cliffside area for meditation -- and the neighbor spends some money improving the area.  Does that give the neighbor a perpetual license to use the thing, or can the landowner revoke the license at his leisure?

The trial court said that the license was perpetual.  The Court of Appeal reverses.

Justice Hoffstadt goes a very good job of exploring the relevant precedent and making sense of it.  You get a "perpetual" license (or at least a long one) if you've made "substantial" improvements to the property at issue or spent a "substantial" amount of money on the thing.  You can readily understand the equity behind that rule.

So the issue becomes:  What counts as "substantial"?

The Court of Appeal goes down the specific facts of this case, and does a great job.  It's a concrete example of a modern property dispute.  Definitely worth reading during one's first year of law school.

Plus, it highlights a practical -- somewhat counterintutive -- part of civil procedure.

Namely, that the parties litigate this case for years, and undoubtedly at the cost of tens of thousands of dollars, even though the property at issue almost certainly isn't worth even nearly that much.  You get into litigation and emotions boil over and everybody loses.  Even the winner.  It makes absolutely no sense that this thing was litigated for as long as it was.  It should have resolved.  It didn't.

So, yes, it made some good precedent.  And one side comes out the "winner" -- at least legally -- in the end.

But it's economically irrational to do stuff like this.  For everyone except the lawyers.


Wednesday, April 03, 2019

Workman v. Colichman (Cal. Ct. App. - April 3, 2019)

The sole published opinion by the Court of Appeal today reinforces a trend that's been building for the last several years, and sanctions the defendants and their counsel for filing a frivolous appeal of the denial of their anti-SLAPP motion.

The Court of Appeal is getting more serious about this stuff.  It's increasingly trying to deter the dilatory filing of anti-SLAPP appeals.

Imposing sanctions is but the most recent step.

Be forewarned.  You're undoubtedly going to see more of this in the years to come.

Even if the Legislature won't act to amend the anti-SLAPP statute, the Court of Appeal is starting to take matters into its own hands.

Tuesday, April 02, 2019

National Asian American Coalition v. Newsom (Cal. Ct. App. - April 2, 2019)

The fallout from the subprime mortgage crisis is far from over.  Today's opinion is just a portion of what's left.

This particular case involves what to do with the $410 million settlement that California received when the federal government and 49 states (with Oklahoma as the inexplicable holdout) sued the nation's five largest mortgage servicers for various violations of federal law.  Under the settlement agreement, those funds were to be used "for purposes intended to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud, or unfair or deceptive acts or practices and to compensate the States for costs resulting from the alleged unlawful conduct of [the Bank defendants]."  But over a series of years, California basically used ("allocated") that money to offset various general fund expenditures.

Various consumer groups brought suit in 2014, and were originally successful; with the trial court holding that "$331,044,084 was unlawfully appropriated from the National Mortgage Special Deposit Fund for purposes inconsistent with these instructions" but which hesitated to order that the money be put back.  The case then went up to the Court of Appeal, which largely agreed with the trial court on the merits but which granted a more expansive remedy, ordering "the immediate retransfer from the General Fund to the National Mortgage Special Deposit Fund the sum of $331,044,084."

At which point both the Legislature and the California Supreme Court get involved.

The Legislature doesn't like losing, so it passes a new law, which is expressly designed to abrogate the Court of Appeal's holding.  And the California Supreme Court thinks that the new law is a fairly material new matter, so it orders the Court of Appeal to take a new look at the issue under the new statute.

Which the Court of Appeal promptly does.  Leading to today's opinion.

Which completely reaffirms its prior holding and instructions.

The Legislature has a lot of power.  Power that private litigants typically don't possess.

But that doesn't mean that the Legislature uniformly gets what it wants.

Because there's separation of powers in our democracy.  Which allow you to lead the courts to water, but you can't always make 'em drink.

Friday, March 29, 2019

Molinaro v. Molinaro (Cal. Ct. App. - March 29, 2019)

Sometimes all you're doing in a lawsuit is making things worse.  Particularly in family law court.  Especially when you're representing yourself.

Michael Molinaro is married to his spouse for nearly 20 years, but she decides to leave, and files for divorce.  As she's getting some of her stuff out of the former marital residence, she alleges that "after a verbal altercation with Bertha and some of the family members, Michael moved his car to block the moving truck from exiting the home’s driveway. Bertha called the police, who eventually detained Michael."  She also says that "Michael had physically restricted Bertha from leaving the home on two other occasions -- once by blocking the front door and another time by blocking her car in the home’s carport. Before filing for divorce, Bertha had installed locks on her bedroom door “because [Michael] was acting erratic and [she] was afraid of him.” Michael threatened to “throw a chair though the bedroom window” if she did not remove the locks."

Not good stuff.  So she moves for a restraining order.  For that and some other conduct.

At the hearing, the wife "asked that Michael “please stop posting everything about the case on Facebook,” and “stop giving the children all of my pleadings.” Michael responded that he had only given the children copies of “the domestic violence restraining order, not of the divorce petition.” When the court asked, “what makes it okay to give the 13-year-old and the 17-year-old copies of the court papers,” Michael answered, “My best judgment, Your Honor.”"

Mr. Molinaro might not be reading the judge extraordinarily well at this point.  But okay.

Then things start to go downhill.

"The court explained to Michael that it intended to “issue an order against you today that precludes you from discussing the matter with the 13-year-old and the 17-year-old,” warning him that courts may “consider parents insinuating children into the court process” in making custody determinations. Michael objected to the order, arguing Bertha had “emptied [their] home equity of $250,000 [sic]” and “relocated [his] children to a mystery house without informing [him].” The court acknowledged the objection, but asked Michael to confirm he understood the terms of the order. Michael responded, “Okay. I understand the what. I question the sanity.”"

Let me interject with a tip.  It's generally not a great idea to openly "question the sanity" of a judge or one of his rulings.  You can think it.  You can ponder it.  But probably best not to express it.

The parties subsequently appear at a different hearing in front of a different judge.  So everyone's had an opportunity to cool down.

Or, apparently, an opportunity to heat up even further.

Mr. Molinario doesn't prevail at this hearing either, and the new judge enters various orders.  At which point the new judge "asked Michael if he understood the order. Michael responded, “No, I don’t. I think you’re insane. I don’t understand a word you are saying. It lacks reason, Your Honor. There was no evidentiary foundation for your order.""

Okay.  Another tip.  When multiple judges appear to you to be "insane," I redouble my counsel to keep your thoughts to yourself.  And maybe -- just maybe -- to reflect on whether your judgment in this matter may be the problem, rather than the sanity of the underlying judicial officers.

But Mr. Molinaro's not finished.  Not by a long shot.

"Bertha’s counsel asked to arrange “reasonable visitation with the kids.” She suggested the parties go down to the mediation office to “work out the parenting plan for the kids.” The court suggested mediation might not be productive at the moment, in view of Michael’s “behavior.” Michael interrupted the court, demanding to know “[w]hat behavior.” The bailiff asked Michael not to “scream,” and the court noted Michael had been “[y]elling in court.”

The court ordered Michael would have monitored visits with the children in “a neutral setting.” Michael asked that the visits take place at the children’s residence. The court denied the request, admonishing Michael that he was to stay 100 yards away from the residence. The court also ordered that he was to work with Bertha’s counsel to find a professional monitor. Michael responded, “No, I’m not.”"

Telling a judge that you're not going to follow her express order is rarely a good idea.  It does not generally incline that judicial officer to rule your way.  Particularly in a family law dispute.  The next line of the opinion reads:

"The court granted legal and physical custody to Bertha."

Let this be it, the proceedings continue.  With this:

"At Bertha’s request, the court also ordered Michael to attend anger management classes. Michael responded, “On what basis? There’s been no abuse, Your Honor.”"

Let's stipulate for a moment that there's been no abuse.  And, yes, I'm looking at a cold appellate record, and wasn't there.  But even with those caveats, even I can see way maybe a court might have a reason to order anger management classes.  Because the guy's having a problem even keeping it together in court.  If you can't be calm and collected even in that setting, I can see why there might potentially be a problem with anger management in other settings as well.

And I come to that conclusion even before reading the footnote immediately after that last sentence, which reads:

"The objection prompted another exchange in which the court and bailiff cautioned Michael against screaming or “raising [his] voice and yelling.” When the bailiff, for a third time, admonished Michael not to scream, Michael responded by disparaging the “family law bar.”"

Which reminds me that there's another job that I personally do not wish to have:  being a bailiff in a family law courtroom.  Rough.

So, fortunately, the hearing is nearly at an end.  Or at least the part reported in today's opinion.  But not before this:

"The court explained it was ordering anger management, not a 52-week batterer’s intervention program. Michael continued to respond indignantly: He told the judge, “Why don’t you put me behind bars[?]”; asked, “How fast can I commit contempt of court by going to none of them, Your Honor?”; and told the court, “I have no respect for the court, Your Honor.”"

Again, I'm not sure that stuff like this really advances the ball.  Indeed, when you say stuff like that, I'm pretty sure that your opposing counsel is just sitting there smiling (at least inwardly) as you dig your own grave.

I know it's hard.  Extraordinarily hard.  But try to remain calm.  Even as things are very much not going your way.

Mr. Molinaro represented himself in this proceeding, as well as on appeal, and he used a lot of fancy legal language in places.  (At least when he wasn't calling the judge insane.)  So I wondered if he was perhaps an attorney.  Which would make his outbursts even worse, or at least even more inexplicable, IMHO.

The litigant's name is Michael M. Molinaro, and the case is out of Los Angeles.  There's an attorney named Michael Martin Molinaro in Los Angeles.  I'm not saying they're necessarily the same person, since I don't know.

But it'd surely be unfortunate if they were.

One final mention.  Sometimes the Court of Appeal thanks amici for participating in a case and submitting a helpful brief that articulates various issues.  Justice Egerton's opinion does indeed mention the one amicus brief submitted in this case.  But isn't exactly overly congratulatory.  One might even say that Justice Egerton throws some implicit shade, saying in the final footnote:

"We also have reviewed the National Coalition for Men’s amicus brief and find nothing in it warranting discussion."

Ouch.

Thursday, March 28, 2019

Zakaryan v. Men's Wearhouse (Cal. Ct. App. - March 28, 2019)

I've seen their commercials for years.  "You're going to like the way you look.  I guarantee it."

I've always known the store as the Men's Warehouse.  Clothing for men.  Suits, mostly.  Hence the Men's, and in (ostensibly) a "Warehouse" setting (implying, as some of its ads do, that the stores sell suits at a discount).

But Justice Hoffstadt's opinion earlier today briefly refers to the store as having a "homophonic name."  Really?!  How's it homophonic?  (Which means it sounds the same as a different word.)

Only then did I realize that, all these years, I've never recognized the actual name of the place.  It's actually called the Men's Wearhouse.  For stuff you wear.

Oh, I get it now.


Wednesday, March 27, 2019

Long v. Forty Niners Football Co. (Cal. Ct. App. - March 26, 2019)

Minor point first.

The opening paragraph of this opinion reads:  "Defendant Forty Niners Football Company, LLC demurred on statute of limitations grounds, and the trial court sustained Long’s demurrer without leave to amend."

I think that Justice Brown means that the trial court sustained the Forty Niners' demurrer, not Long's.

Substantive point next.

The final couple of paragraphs holds that the statute of limitations isn't tolled during the period a plaintiff files a diversity case in federal court, even though there's a federal statute that expressly tolls the limitations period for supplemental claims brought in federal court.  The Court of Appeal does not cite any cases for that proposition, and thinks that the express language of the statute (28 U.S.C. sect. 1367(d)) makes the point clearly enough.

Perhaps.  And I know that there are, in fact, some other courts that appear to have held the same way, albeit in dicta and without much analysis.

But it's a funny rule (if it indeed exists).  Imagine a case where a plaintiff brings both federal and state claims and thinks that both federal question and diversity jurisdiction exists.  If he's right, then (under the Court of Appeal's holding) there's no tolling, since original diversity jurisdiction stops the tolling.  Yet if he's wrong -- if, for example, he was mistaken, or even brazenly lying about the residence of the parties -- then all of the sudden he gets the benefit of tolling, since the state claims are now based on supplemental jurisdiction.

Seems irrational  Why have a longer tolling period for the wrongdoer, while potentially barring the honest guy on limitations grounds?

I'd think that even if the statute itself didn't apply, you might have some common law principle like equitable tolling to fill in the gaps.  'Cause it doesn't make much sense to me to grant a tolling period only for supplemental claims.

So I wonder if those final two paragraphs might benefit from a bit more analysis.

And maybe someone might want to eventually write a law review article about the thing.

(Not me, though.)

Tuesday, March 26, 2019

People v. Eddy (Cal. Ct. App. - March 26, 2019)

I agree that the defendant in a criminal case is entitled to have his lawyer argue that he's innocent if that's what the defendant wants.  Even if that's perhaps not the "best" strategy at trial.  It's the life and liberty of the defendant that's at stake.  (Particularly, as here, in a prosecution for murder.)  If the defendant wants to argue he's not guilty, he's got that right.  Even if the defense counsel thinks -- perhaps correctly -- that the most effective way to present a defense would be to concede the events at issue and argue for voluntary manslaughter.

Now, here, the defendant was waffling a bit.  This is not your prototypical case where the defendant consistently insists on X but the attorney goes and does Y.  Still, the Court of Appeal is correct that the defendant had a desire and his counsel didn't follow it.  That's generally sufficient -- on a critical issue like factual innocence, anyway -- to warrant a reversal.

Mind you, given the evidence, I'm fairly certain that the defendant will again be convicted at the retrial.  The evidence against him was somewhat overwhelming.

But at least he'll get the joy of losing with his own strategy, as opposed to a strategy with which he disagreed.

Small solace, I know.  But important.

(Parenthetically, the investigation of the crime here was far from perfect.  After the stabbing, the police looked for the murder weapon in the apartment, but couldn't find it.  Even though it was just sitting under the kitchen table.  And they found fingerprints on the knife, but apparently didn't even bother to test them to see if they matched the defendant.  Not the kind of police work you typically see in a murder case.)

Monday, March 25, 2019

Steinle v. City and County of San Francisco (9th Cir. - March 25, 2019)

Today's Ninth Circuit opinion got me thinking a little bit about when appellate courts elect to call events "tragic" (or not).

This is surely a tragic case.  A high profile one, as well.  Kathryn Steinle gets randomly shot and killed on a San Francisco pier when a gun held by an unauthorized immigrant discharges.  (Whether or not he deliberately killed her is unclear.)  Random deaths like that certainly qualify as tragic.  As do many deaths.  Rarely is the cessation of life of an innocent person cause for celebration.

So it's perhaps no surprise that the first sentence of Judge Bennett's opinion labels the events as "undeniably tragic."

But I started to wonder what sort of opinions decide to label the events as "tragic" as opposed to simply setting forth the facts?

Does the fact that it's a high-profile case matter?  This one definitely got a lot of press, and became a large part of an ongoing debate about the benefits and liabilities of unauthorized immigration.  Is that why this particular case gets labelled "tragic" -- because it particularly touched the heart of those on one side of the debate or another?  Or do we disproportionately label events "tragic" when we think a large number of people (e.g., nonlawyers) might be reading the opinion?

There are, after all, a ton of deaths recounted in Ninth Circuit (and other appellate) opinions.  Most of which could probably be quite accurately described as tragic.  Why do some get the appellation and others do not?

Does the result matter as well?  Here, the Ninth Circuit decides that San Francisco isn't liable for the death (which seems to me exactly right), and hence affirms the district court's dismissal of the plaintiff's lawsuit.  Are judges more likely to describe an event as "tragic" if they then go on to deny relief to the party with whom they expressly proclaim sympathy?

Those are hypotheses, anyway.  I'm not sure how I'd definitively verify or disprove them.  I did check to see how often the Ninth Circuit, in particular, describes events as "tragic."  Not surprisingly (to me, anyway), it happens much more in published opinions than in unpublished opinions.  Since January 1, 2000, that word is in 167 published opinions, as opposed to only 64 unreported ones.  That also means that we're using that term around once a month.  In 2019, the Ninth Circuit has used that word to describe school shootings, a car accident, a prison suicide, a landslide, and a wrongful conviction and imprisonment.  I'd have thought the label was most likely to be applied to random murders.  But it seems the term is used much more broadly.  (Accurately so.)

I'm sure there are other terms that are similarly employed.  Dreadful, appalling, awful, etc.  But my money's on "tragic" being the most common.

Because lots of cases on appeal do indeed involve tragic events.

And a fraction of them are expressly described as such.

Wednesday, March 20, 2019

In Re Marriage of C.T. and R.B. (Cal. Ct. App. - March 19, 2019)

Speaking of nightmares . . . .

I'm confident the Court of Appeal sets forth the facts that most strongly support its decision to reverse the judgment below, which awarded primary physical custody to Father.  But based solely on what I read in the opinion, I totally get why the Court of Appeal is concerned about that.  I too am worried that it makes no sense at all to send the kid to Arkansas with Father.

Admittedly, Mother's extraordinary reluctance to do what the court ordered her to do complicated the situation, and almost certainly upset the trial court.  But you can understand her emotional reaction to the situation (at least in part).  She just can't fathom why her son would be sent to Father under these circumstances.  So she reacts as she did.

Even though it just makes things worse.

Herriott v. Herriott (Cal. Ct. App. - March 20, 2019)

Think it'd be fun to be a justice on the Court of Appeal?  Perhaps.  Though you also have to deal with cases like these.

It's an elderly couple who's divorced.  Who nonetheless live in the same building -- 123 24th Street in Hermosa Beach -- with Wife living on the second floor and Husband living on the third floor.  Which, obviously, is a recipe for disaster.

They get into nightmares of fights.  They have mutual restraining orders against each other.  Their own daughter testifies that her parents have an extremely “volatile” relationship, and that “[i]t’s been hell being a child for them.”  Today's opinion is replete with lots of excruciating -- and depressing -- details.

Oh, and they both represent themselves on appeal.  So no lawyers to help sort things out.  Leading, among other things, to this footnote:

"As an initial matter, we note that the appellate briefs filed by both parties were deficient and failed to reasonably assist this court in our understanding of the facts or analysis of the legal issues in this case. Alicja’s brief makes repeated references to evidence without any citation to the record as required by California Rules of Court, rule 8.204(a)(1). Indeed, in many instances, our review of the record confirms no evidence supporting these statements. . . . Both parties also misrepresent the record in several places. Further, we observe that Respondent has attached documents to her brief that are not included in the record. . . . [O]ne of the documents Respondent attached to her brief is a confidential child custody evaluation report, [so] we have considered sanctioning Respondent. (See subsection D of Discussion herein, post.)"

So, yeah.  That's some of the work with which the Court of Appeal is required to deal.

I suspect that being a justice is a great job.  Most of the time.

Monday, March 18, 2019

Boyer v. Ventura County (Cal. Ct. App. - March 18, 2019)

The result of today's opinion by Justice Yegan seems right to me.  Though, respectfully, I think he dramatically overstates the case.

For over a century, the rule was that you could run to be a County Sheriff with the same qualifications you needed to run for virtually any other political office.  Which is to say:  None.  You don't have to be smart to be, say, the Mayor.  So you also didn't have to be smart -- or qualified, or competent, or potty trained -- to be the Sheriff.  The voters got to decide.

But in 1988, after 150 years of things working out just fine relying on the voters, the Legislature decided to limit who could become a County Sheriff, and imposed some minimal qualifications for the office.

The Court of Appeal upholds those limitations.  And Justice Yegan waxes poetic about their utility, saying (among other things):

"We are quick to observe a common sense reason why appellant cannot prevail. Experience is the best teacher. This is true whether you are a plumber, a teacher, a doctor, or a lawyer. It also applies to being the elected sheriff of a county where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise. It does not matter how intelligent you are or if you are acting in good faith. There is a good reason why the Legislature has imposed an experience requirement. To get a “feel” for law enforcement, i.e., coming to a true understanding of it, you must learn about it in the field by doing it. The people of California have been well served by personnel who have worked their way up the chain of command to leadership."

I'm not going to quibble with the underlying concept.  Experience is often indeed helpful.  At least all other things being equal.  Mind you, if the voters feel like electing someone with less experience -- an "outsider," perhaps -- I'm fine with that too.  Sometimes experience is good, and sometimes it's good to instead get someone who perhaps brings a fresh perspective that's not been formed (and/or jaded) by prior work in the area.

Which is why, for example, we don't have any service qualifications to become, say, President of the United States.  If you've got a pulse, are 35 years old (14 of which were spent here) , and are a natural born citizen, you can control the world.  If you can convince the voters that you should.

So, to me, I'm not a thousand percent positive that there are "good reasons" by the Legislature has imposed an experience requirement.  The world might (or might not) be a better place without them, relying instead (as we did for 150 years) on the intelligence of the voters to decide what role, if any, any particular degree of experience should be required.

That said, I am also fairly confident that it was rational for the Legislature to impose the experiential requirements it imposed.  Since that's all that seems to be required under the California Constitution, the result of today's opinion -- that the statute is constitutional -- works for me.  Even though I'm not entirely simpatico with Justice Yegan's certainty that experience is necessarily essential.

At the same time, I'm also confident that I affirmatively disagree with the Court of Appeal's apparent belief that the particular requirements here manifestly make sense.  Or, to put it differently, that there is no way to get a "true understanding" of the role of a county sheriff any way other than by "doing it," or that the particular experiential requirements imposed by the Legislature ensure that candidates have "worked their way up the chain of command to leadership."

Because, in truth, the Legislature's experiential requirements are incredibly minimal.  Spend a year as a marshal for a magistrate in a federal civil courtroom, having never pulled your gun or gotten out of your chair? You're qualified.  Spend 12 months as an investigator for a district attorney?  Good to go. Work a year with Fish & Game making sure people bought their fishing licenses?  Welcome to being County Sheriff.  All of these people are qualified.  Seems to me to overstate the case by saying that all of these people necessarily "know the field" than, say, a professor of criminal justice who's worked in the area for 30 years, or a civilian member of the Police Review Board (or maybe even a criminal defense attorney) who's had a quarter century of exposure to a wide variety of police practice.

And that's probably even true for candidates with actual police experience.  For example, under the statute, if you spend 12 months as the sole police officer in, say, Amador City (population: 125), you can be County Sheriff.  Maybe County Sheriff of, say, Alpine County (population: 1057).  Your year of work as the sole officer in a sleepy town of 125 hardly constitutes "work[ing] [your] way up the chain of command to leadership."  Nor does a candidate for the Alpine County Sheriff position, I imagine, constitute an office "where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise."

Seems to me that a voter might well reasonably say, "Yeah, I'm not so sure that Ice-T has much experience in the area, but, hey, he plays a cop on television, and I don't think that Barney Fife guy who's running against him is all that hot, so I'm going with the big guy."  In short; experience can be way, way overrated.

Including by the Court of Appeal.

But, to reiterate, it's rational to require some degree of experience.  Could reasonable minds differ?  Sure.  And undeniably do.  But since the statute has a rational basis, and the Constitution doesn't seem to affirmatively exclude Legislative requirements for the position (e.g., by imposing its own), that's dispositive.

No need to wax poetic about the manifest wisdom of the underlying rule.  Since, at least to me, the merits of such a requirement seem a much closer call.

Wednesday, March 13, 2019

Fowler v. Guerin (9th Cir. - March 13, 2019)

Judge Bennett makes his presence on the Ninth Circuit felt in today's dissent from denial of rehearing en banc.

You'd think that the underlying opinion was hardly something that would garner much controversy.  It's an opinion authored by Judge Gould that's joined by Judge Ikuta.  Two individuals who are far from radical left-wingers.  It concerns, according to Judge Gould, a class action brought by a couple of teachers who ask for a "return [of] interest that was allegedly skimmed from their state-managed retirement accounts."  Hardly the most unsympathetic of claims.  And the panel opinion is without dissent or -- at least when you read the opinion -- much controversy.

Yet Judge Bennett, who joined the Ninth Circuit in July, pens a 17-page, single-spaced dissent that argues that the panel's opinion radically conflicts with the Eleventh Amendment.  So thinks that the opinion should be taken en banc.

The only other judge who joins Judge Bennett's dissent is Judge Ryan Nelson.  Who's another Trump appointee also new to the Ninth Circuit, having joined the court even later than Judge Bennett (Judge Nelson took his seat in October).

It's still early.  It's only one opinion.  But the early returns nonetheless suggest that we may hear a lot from the first two Trump appointees on the Ninth Circuit for some time.

Monday, March 11, 2019

In Re M.S. (Cal. Ct. App. - March 11, 2019)

The quotes are from today's opinion by Justice Gilbert.  The text not in quotes is mine:

"Is M.S. eligible to be considered for referral to a mental health diversion program pursuant to the newly enacted sections 1001.35 and 1001.36?"

Well, I honestly don't know what those statutes say.  But just to get things started, I'd want to know how serious the crime was.  More serious crimes probably aren't likely to get diversion.

"This appeal concerns the tragic death of Baby Boy A. . . ."

Oh no.  Not one of these.  So depressing.

". . . . following his home birth to then 15-year-old M.S."

Oh my goodness.  Gave birth at home and then neglected the child, resulting in its death?!  That's so incredibly sad.

"Frightened that her parents would learn that she had been pregnant and given birth, M.S. inflicted fatal cuts on A.’s throat, severing his carotid artery and trachea. M.S. thereafter placed his body in a plastic bag and concealed the bag in the bathroom vanity."

OMG.  That's horrible.  Simply horrible.

On so many different levels.

"During police questionings, M.S. initially asserted that the infant was born stillborn but then stated that she accidentally wounded him when she cut the umbilical cord. When confronted with the medical examiner’s findings, however, M.S. finally admitted that she used a kitchen knife to cut the infant’s throat."

At least she comes clean at the end.

But still.  What an incredibly depressing way to begin our week.

Or to learn about a 15-year old girl and her infant son.

Friday, March 08, 2019

Anderson v. State Farm (9th Cir. - March 8, 2019)

Here's a totally straightforward opinion by Judge McKeown.  Short -- relatively, at least -- to the point, and completely coherent.

And yet I think she's wrong.

The question is a simple one:  When you serve a corporation, when does the 30-day removal clock start ticking?

The issue arises because corporations are fictions.  You serve a corporation by serving one of its agents.  So does the 30-day clock start ticking when the agent gets notice, or only when the entity "itself" receives notice?  With the caveat that the entity "itself" is a piece of paper, and can't read.

Judge McKeown decides that it makes sense to have a bright-line rule that says that it's only when the corporation "itself" actually receives the complaint that the clock starts ticking.  And she so holds in a factual context that perhaps lends itself to such a conclusion.  The Washington statute here says that in order to serve a foreign (i.e., out-of-state) insurance company, you're required to serve not the insurer directly, but rather, you've got to serve Washington's Insurance Commissioner.  Who in turn forwards the complaint to the insurer.

Judge McKeown says that in such circumstances, it makes sense to say that the clock starts only when the company itself receives the papers.  Otherwise the 30 days might potentially run out even before the company knew about the complaint (if, say, the Commissioner didn't properly forward it).  And, in any event -- and this is her central point -- we don't want the federal 30-day rule to vary in application depending on the vagaries of particular state rules about service of process; e.g., who "counts" as the agent for the company.

So we're going to have a simple rule.  It starts when the company gets the papers.  Not a designated agent.

Makes sense, right?

Yeah.  That's what I sort of thought at first too.  A nice, simple, bright-line rule.  One that also has the advantage of following the only other circuit (the Fourth) that's decided the issue.

But then I thought about it more.

And decided that I came out the other way.

'Cause the truth is, all the problems that Judge McKeown talks about already exist with the removal statute anyway.  And her "solution" to the problem in the particular insurer context here will only create additional difficulties in deciding when today's "usual" Ninth Circuit rule applies and when it doesn't; e.g., which agents count for today's rule and which don't.

The thing that changed my mind was realizing just how many different forms "agents for service of process" take.  Judge McKeown focuses -- understandably -- on the one at issue here:  when a state forces a company to use a state officer as its agent.  In such settings, yeah, you have the problem of maybe the agent not being competent, or faithful, or timely, or whatever, and it makes facial sense to say that the clock starts ticking only when the "company itself" actually sees the papers.

But let's take a different agent.  For example, both the Fourth and the Ninth Circuits decided as they did with state-mandated agents that were state officers, but let's instead look at California's law.  That statute says that out-of-state insurers have to appoint an agent, but doesn't say who they have to appoint.  Maybe they decide to appoint their own Treasurer.  Maybe they decide to appoint the state Insurance Commissioner.  Maybe they decide to appoint Shaun Martin.

What rule applies then?  If they appoint the state Insurance Commissioner, does today's rule still apply, since the Insurance Commissioner might not forward the thing properly, we don't want state law to dictate the federal 30-day clock, etc. etc.?  Or does the fact the company "chose" that person mean that she's effectively the Company itself?  Ditto for if they choose Shaun Martin.  Does it start when I receive the summons and complaint, or only when the Company itself receives it (and what if I deliberately delay in order to give the Company more time to remove)?

And ditto for when the Company appoints its own Treasurer -- or a secretary to the CEO, or the company janitor, or the CEO himself, or whomever.  Are we supposed to similarly say that these are not the "Company itself" so the clock starts ticking only later?  Yet that sounds absurd, no?  In turn, what about someone who's full-time job is to receive service of process?  Does whether the 30-day clock starts depend on whether they're an employee vs. independent contractor?  On whether they only receive process for one Company, or more than one?  Where's the line here between what agents "really" stand in the shoes of the Company for purposes of the removal clock and which ones don't?!

Judge McKeown has a simple answer to that question at the very end of her opinion, in footnote 5.  She says:  "We're not deciding that.  That's a different case."

Well then it's not a very bright-line rule now, is it?  Sure, we know how this case gets resolved; one that involves out-of-state insurers who have state-designated officers as exclusive agents.  But there are a thousand cases that we now don't know the rules for, right?  Because we're not sure whether today's rule applies to them or whether a different rule -- the one posited in footnote 5 -- applies.

So far from being an easily applied principle, today's decision seems to create much more confusion than it settles.  As well as creates an artificial line the contours of which are unclear.

To be fair to Judge McKeown, she has an answer for that as well.  And essentially says, earlier in the opinion, that things seemed "just fine" under the Fourth Circuit's rule, and there didn't seem to be a ton of confusion in the lower courts after that particular result, so presumably there won't be any here as well.

Okay, sure, maybe.  But there wasn't much confusion before those decisions either.  Since apparently there are only two cases in history that ever presented this precise issue.  So maybe everyone before just made sure to remove cases within the 30 days from when ANY agent got served.  Which, to be honest, makes total sense.  Why not play it safe?

So, yeah, people may still be doing that, even after today's (and the Fourth Circuit's) decision.  But that doesn't justify a rule that's nonetheless seemingly arbitrary -- service on Treasurers (or janitors, or Shaun Martin -- or maybe not) counts, but not on an Insurance Commissioner -- and that necessarily requires us to create lines between certain agents that start the 30-day clock and other agents that do not.

And the more I thought about Rule 4, the more I became convinced that today's Ninth Circuit rule creates far more problems than it solves.

Because there are TONS of agent rules therein.

(1) We already rely on state law.  Way, way.  So I'm not sure that the "What a pain it would be to rely on state law to decide whether the 30-day clock is ticking" argument is all that great.  We rely on state law to decide whether to take someone's default (since Rule 4(e)(1) borrows state law).  We also rely on state law to decide what agents are appointed "by law" under Rule 4(e)(2)(C).  Other stuff too.  So while I thought today's opinion was persuasive on the whole "Congress wanted uniformity not state-law specific stuff re: removal," upon reflection, I've changed my mind.

(2) We're going to have a hell of a time figuring out how far today's opinion goes.  Indeed, the only thing that'll stop a ton of cases from coming up in the future is a lack of creativity on the part of those lawyers who wait until the last minute to remove.  For example, not only do we have the "which corporate agents count as 'real' agents" problem discussed above, but what about Rule 4(f)(2)?  Does service in a foreign country, pursuant to its rules, start the clock ticking?  What if that foreign agent doesn't promptly (or ever?) relay the notice?  Is it really the rule that you can validly take someone's default under Rule 4(f) and yet the removal clock never started ticking under analogous situations?

And today's opinion is even a problem for individuals.  Normally, you'd think:  well, obviously, the removal clock starts ticking when they get handed a copy of the complaint.  But remember:  that's not the only way to serve 'em.  What about Rule 4(e)(2)(B)?  Say I leave a copy of the summons and complaint with the guy's wife, or roommate, or 21-year old child living in the home, and state law says that's valid.  Does the 30-day clock start ticking?!  After all, he never chose them -- just like the company in today's opinion didn't choose the Insurance Commissioner.  They were chosen by law.  And maybe the roommate delays in giving the complaint to the guy.  (Or maybe the defendant lies and says the roommate didn't hand it over until 20 days later.)  Until today's opinion, I'd have thought it obvious that the 30-day clock started when you handed it to the roommate or wife.  But under the Ninth Circuit's reasoning, the same "don't mess with state law, bright line rule, gotta be given to the defendant itself" arguments apply there as well.  Or, alternatively, yet another line we have to draw.

In the end, I'm persuaded of a different bright line rule.  One that's actually a bright line, and easy to apply -- or at least no harder than the one we apply already.  It's this:  If service on your agent is enough to allow your default to be taken, then it's enough to start the 30 day clock.  If serving your agent is "good enough" to count as service on "you" sufficient to take all your worldly possessions away from you, then it's good enough to count as service on "you" sufficient to start your 30-day clock to remove.

And if, as here, you wait until the last day, that's on you.  You've got 30 days to remove from the date of valid service on your agent.  Just like you've got 30 days (in many state courts) to avoid a default from the date of valid service on that same agent.

Same clock.

So did the Ninth Circuit write an understandable opinion?  Definitely.  And I totally get where it's coming from.

But I still think it's wrong.  Even more so than when I first started having my doubts.

Mairena v. Barr (9th Cir. - March 7, 2019)

The opinion itself is only ten pages.  The panel didn't even need oral argument.

Yet the "Summary" prepared by the Reporter spans four pages.

Tighten that thing up.

Tuesday, March 05, 2019

People v. Joseph (Cal. Ct. App. - March 5, 2019)

You don't see many felony convictions for perjury.  You do here.  But it gets reversed by the Court of Appeal.

There are a lot of practical lessons to be learned from the opinion.  One is to be suspicious when someone asks to use your cell phone to purportedly call his grandmother.  The other is not to go to Taco Bell shortly before committing a robbery (and during the time you told the police that your car was stolen).

They've got video.

Monday, March 04, 2019

U.S. v. Elmore (9th Cir. - March 4, 2019)

On first glance, this appears to be yet another case that involves careless or indifferent parenting.  One of many that you see daily when the appellate courts recite the facts.

Judge Bybee begins the tale by explaining that there was a minor girl -- L.G. (I'll call her "Laura" just to avoid initials) -- who moved from San Francisco to LA for a "fresh start" and lived with her cousin there.  While in LA, Laura started dating Calvin Sneed, a not-so-great character who was pimping young women there, and Laura eventually starts advertising herself on various prostitution websites.

Laura's family finds out about all this and tries to drag her away from Sneed.  Her mother travels from SF to LA one day to try to persuade Laura to return with her, but to no avail.  But three days later, Laura and Sneed drive up to SF, and Sneed drops Laura off at her parent's house at 4:00 p.m.  The parents again try to persuade Laura to leave Mr. (Alleged) Pimp and return to them.

All of that's great.  The mother is trying.  Hard.  There's perhaps only so much a parent can do, but she's making as much of an effort as humanly possible.  Good for her.

But it doesn't work.  Laura continues to argue with her mother about staying in SF and leaving Sneed, but at 12:15 a.m., Laura finally decides to return to Sneed and texts him to pick her up.  The effort to get her out of Mr. Pimp's clutches fails.

Then here comes the depressing part.  Your minor daughter has decided to go back to the pimp who's prostituting her.  Your wife is actively arguing with her, trying desperately to get her to reconsider.  All the while, Mr. Pimp is literally on the way to your home to pick up your daughter and take her away.  Yet, while Mother screams and pleads and begs, here's all that Father says to daughter:

"You grown. Before you leave, turn the lights off."

What?!  "You grown?!"  She's a minor.  Hardly in a position to intelligently decide to devote herself to sex work for Mr. Pimp.  And what the hell about the lights?!  Your daughter's leaving to return to prostitution, and all you care about is not having to get out of your chair and turn the lights off?!

Wow.

It just sounds so incredibly, stunningly heartless.  How can a father demonstrate such a lack of compassion and caring for the events around him?

So as I leave that paragraph, I have a definite view of the father.  And it's not a good one.  At all.

Total lack of caring.  Total lack of parenting.

But I was wrong.

Because here's (allegedly) what actually went down.  Yes, Father was facially uninterested.  But when Laura went outside to wait for her boyfriend, there's an SUV waiting outside with its lights on.  And when Mr. Sneed shows up, the SUV pulls up beside him and promptly shoots him in the head, killing him.

All allegedly set up at the direction (at least in part) of Father.

So you can say a lot of things about Father.  But the lack of caring that I first imagined when I read about his reaction to Laura leaving isn't one of them.  Because, yes, he didn't feel like continuing to argue, but that's because he thought that further discussion was useless.

And he had a far more direct plan to resolve the matter.  Kill the guy.

Today's opinion is about the validity of the warrant to search some cell phone location data, and it's an interesting one, with a majority opinion by Judge Bybee and a dissent by Judge McKeown.  So on the legal issues, worth reading.

But even on the non-legal front, it's also one where I thought one thing at the outset, and a very different thing at the end.

Proof positive that, in legal opinions as well as elsewhere, things are not always as they may initially seem.

Thursday, February 28, 2019

People v. Amezcua & Flores (Cal. Supreme Ct. - Feb. 28, 2019)

I read a lot of the California death penalty cases.  Indeed, for the past thirty years, all of them.

Even having read all those cases, with some incredibly terrible crimes, it's hard to have a lot of sympathy for these two defendants.  Their systemic crimes are pretty darn bad.  As are the things they say thereafter.

Plus, I gotta say, check out pages 49 through 54 of the opinion.  Both of them are pretty darn sophisticated in assessing whether being sentenced to death actually means they're going to die.  I'm not sure I agree with them about their tactical decision.  But they definitely thought about it at some length.  They thought it made more sense for them to be sentenced to death rather than life.  (And, in a bizarre reality, they cared -- weirdly, for good reason -- much more about the size of their restitution orders than whether they were sentenced to death or not.)

What a weird world in which we live.


Darrin v. Miller (Cal. Ct. App. - Feb. 21, 2019)

One of the downsides of deciding appeals that are relatively low value -- and hence may have less well developed briefing -- is that the judges may miss out on potentially relevant information.

That's the thought I had when I read this opinion.

It's a case out of Lake County.  Not the most populous county in the state, to be sure.  It involves a dispute between unfriendly neighbors.  One neighbor says the other trespassed on her property, took down a wire boundary fence, said bad things to her and her family, etc.  The point is:  This is not a multi-million dollar case.  So it only justifies a certain amount of litigation.

The plaintiff nonetheless gets a creative lawyer who files an Elder Abuse claim against the neighbor.  She can do that because she's 81 years old, so not only does she get sympathy -- who screams at an 81-year old?! -- but because if you're over 65, you've got a potential Elder Abuse claim.

But that statute is almost always invoked against family, carekeepers, rest homes, etc.  Can you really file an Elder Abuse claim just against a mean neighbor?

The trial court thought not.  But the Court of Appeal reverses, holding that you can.

It's a statutory interpretation case.  It's all about how you read the statute.  The Court of Appeal thinks it can do that just fine, thank you very much, and also doesn't say very nice things about the quality of the briefs by the respondent.

The statute says someone older than 65 can sue for "elder abuse," and that term is defined as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment [of an elder] with resulting physical harm or pain or mental suffering.”  "Mental suffering" in term is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.”

Justice Miller reads that statute in a straightforward fashion.  She says, essentially, that, yes, the defendant hadn't allegedly engaged in “[p]hysical abuse, neglect, abandonment, isolation, [or] abduction" under the statute.  Yeah, those are admittedly the types of things that caretakers do, and hence is what the statute undeniably focuses on.  But, she says, that definition ends by saying that "other treatment with resulting . . . mental suffering" can qualify as elder abuse as well.  And here, given the broad definition of "mental suffering," the acts here -- even though undertaken by a non-caretaker -- qualify as "other treatment".  So the statute applies.

It makes sense.  Applies the words that are employed by the statute in a straightforward fashion.  What more could you want?

Okay.  Maybe.  Good job.

But as I was looking at the list in the statute, here was my thought.

Preface:  I'm not a big Latin guy.  Failed it -- literally -- in college.  Don't feel like I have to say particularly fancy clauses to impress other people.  Prefer to speak the one language that I actually know well.

That said, there's a Latin phrase -- a principle of statutory construction -- that seems pretty relevant to this case.  One that's nowhere in the opinion, and (perhaps) not in the briefing.

Ejusdem generis.

It's Latin for "of the same kind."  When a statute has a list, and they're all types of things of a particular type or class, we often exclude from the coverage of that statute (i.e., not part of the list) things that aren't part of that class.  Even if the plain language of the statute covers the thing.

For example, if a statute says that only "automobiles, trucks, motorcycles, tractors, and other motor-powered vehicles" are permitted to use, say, a given road, that list probably doesn't include airplanes or boats or submarines.  Even those are indeed "motor powered vehicles" and hence facially included under the statute.  You nonetheless read the statute the other way (unless there's a good reason not to).

At least that's a general rule.  And one that seems especially relevant when, as here, the list includes certain types of things and we're trying to figure out what the statute means when is has a residual clause that says "other".  'Cause that's even broader than the example I used.  You might want to say that if everything that's in the list is part of the same class -- e.g., are all types of things that only caretakers or people in a familial-type relationship can really do -- then maybe we should indeed do what the trial court did and limit that "other" category accordingly.  Even though "other" does indeed mean everything else that satisfies the statute.

Now, I'm not totally confident that everything in the list here is necessarily part of the same class.  It does indeed seem that the statute -- and the list -- is focusing on stuff that caretakers might do.  They hit them ("physical abuse"), "neglect" them, "abandon[]" them, "isolat[e]" them, and "abduct[]" them. That's definitely a list of things we commonly see in Elder Abuse cases, and since all of them seem to be of a class of things that caretakers do (indeed, some of them, like neglecting them, can likely only be actionably done by caretakers), maybe the trial court got it right.  Though I could totally see the contrary argument as well:  that anyone, for example, can physically abuse someone elderly, so the list is not necessarily all of a certain class.

The point is simply that it seems like this commonly applied principle of statutory interpretation -- ejusdem generis -- seems like definitely something that the Court of Appeal should at least consider. Yet it's nowhere even mentioned in the opinion, much less discussed.

Which I'm confident it would be -- in the briefs, at a minimum -- if this was a $50 million case with reams of fancy lawyers on both sides working full time on the thing.

But this is a civil TRO case involving neighbor Sandra Miller allegedly being mean to Jude Darrin, the 81-year old neighbor. So maybe the assistance the Court of Appeal obtains isn't always as fulsome as in those more expansive -- and expensive -- disputes.

The long and short of all this:  It might be helpful to at least add a couple of Latin words to this opinion.  Something to consider, at least.

Wednesday, February 27, 2019

MDQ LLC v. GKCJ (Cal. Ct. App. - Feb. 27, 2019)

I'm a reasonably intelligent guy.  Familiar with a lot of sophisticated legal jargon.

But even my eyes glazed over when I read Justice Grimes' summary of today's opinion:

"The question in this interpleader action is which adverse claimant was entitled to the interpleaded funds: a judgment creditor with a properly recorded judgment lien, or an assignee who did not file a financing statement with respect to distributions irrevocably assigned to it by the judgment debtor before the judgment lien was recorded. The answer depends on whether the assignment created a security interest that had to be perfected (but was not) by the filing of a financing statement under California’s Uniform Commercial Code (UCC or the Code)."

Not exactly the most exciting legal thriller ever invented.

** Spoiler Alert **

Respondent wins.

Ryan v. Real Estate of the Pacific (Cal. Ct. App. - Feb. 26, 2019)

Sometimes it's not really the trial court's fault that it made a mistake, and hence gets reversed.  To take but one example -- here, the losing party relied on Argument X below, but Argument X was meritless, and the trial court rejected it and entered judgment for the winner.  On appeal, the losing party totally abandons Argument X and instead relies on a totally different Argument Y.  With which the Court of Appeal agrees, reversing the judgment below.

Not the trial court's fault (though it might have done some research itself).  Not the Court of Appeal's fault, which is permitted -- though not required -- to consider new legal arguments on appeal.

Just an example of the Court of Appeal being (rightly) concerned about obtaining justice.  Even if it means reversing a decision below where the trial judge made a decision based on the information and arguments that he had available to him.

Monday, February 25, 2019

Orchard Estate Homes v. Orchard Homeowner Alliance (Cal. Ct. App. - Feb. 22, 2019)

Read about the trials and tribulations of living around Palm Springs and having your neighbors rent out their homes to short term renters.

The HOA had an election, and most of the homeowners (62%) voted to bar short term rentals.  But there's a supermajority requirement, so it failed.  At which point that same group tried to eliminate the supermajority rule.

The usual procedural machinations.  I can't imagine what a pain it'd be to have an ongoing fight with all of your neighbors about this issue.  Hard feelings on both sides, I'd imagine.

Nice and warm there, though.  At least vis-a-vis the weather.

Friday, February 22, 2019

People v. Escarcega (Cal. Ct. App. - Feb. 20, 2019)

This opinion is a reminder that it's not just drunk driving that can put you in prison.  As well as seriously injure others:

"On July 15, 2015, at 9:20 p.m., defendant was driving a 2012 Hyundai Elantra eastbound on Palmdale Blvd. He was on his way to work at Adelanto Detention Facility. That stretch of road has one lane of traffic in each direction and is divided by a broken yellow line. There are no streetlights. The speed limit is 55 miles per hour.

As defendant approached 110th Street, he saw two vehicles ahead of him. Shannon Emery’s Chevrolet Monte Carlo sedan was directly in front of him. A large delivery box-truck was in front of Emery. Neither Emery nor defendant could see whether there were any cars in front of the delivery truck, which also blocked their view of any headlights from oncoming traffic. Defendant estimated he was driving 45 miles per hour at this point, but Emery testified that she was going 70 miles per hour.

Though defendant could not see beyond the truck, did not know whether there were more cars in front of it, and could not tell how much space there was between Emery and the truck, he decided to pull into the westbound lane and pass both vehicles. When defendant pulled past Emery and attempted to pass the truck, however, he discovered it was following two or three more cars. As defendant drew parallel with the delivery truck, he saw headlights coming towards him. The headlights belonged to a Lexus sedan carrying Jessica, the driver, and her two nephews, Carlos (age five) and Gabriel I. (age four). Jessica was driving about 65 miles per hour in the westbound lane.

Emery, who by this time had seen Jessica’s headlights, eased off her gas pedal to allow defendant to pull in front of her. According to his statement to authorities, defendant tried to reenter the eastbound lane in front of Emery, but there wasn’t enough room, so he slowed down to retake his original spot. By that point, however, another car had pulled behind Emery, and he couldn’t get back in. Defendant swerved onto the left shoulder. Meanwhile, Jessica had seen defendant driving towards her, had made the same decision he did, and swerved toward the same shoulder. The cars collided, and Jessica blacked out briefly at the moment of impact. Emery saw the collision and called 911.

According to California Highway Patrol Officer Nathan Parsons, who testified as an expert on collision reconstruction, defendant had continued to accelerate until two and a half seconds before the collision. Five seconds before the collision, defendant was driving 67 miles per hour. Four seconds before the collision, he was driving 71 miles per hour. Three seconds before the collision, he was driving 73 miles per hour. And though defendant first stepped on his brakes two and a half seconds before the collision, he did not hit them hard enough to engage the Antilock Braking System until one second before impact. At the moment of impact, defendant was driving 42 miles per hour. Jessica was driving approximately 37 miles per hour.

When Jessica regained consciousness, her hands were on the steering wheel. Glass from the shattered windshield had cut her wrists. The engine was on fire. The children were screaming in the back seat. Defendant stumbled out of the passenger side of his car as Jessica tried to free herself. She yelled for help 10 to 20 times, but defendant just looked at her and walked away. Eventually, bystanders came to her aid, and Jessica and the children were transported to a hospital. . . .

Carlos went into hyperemic shock, had a collapsed lung, and was put on life support with a chest tube. He was in a coma for 10 days. He received multiple unsuccessful skin grafts from his legs to his arm, which required his mother to tend to an open wound from his wrist to his elbow. Carlos underwent more than 10 surgeries. He stayed at LAC +USC Medical Center from July 15, 2015, to August 4, 2015. Although he returned home briefly, he ultimately required additional surgeries and another hospital stay. Carlos, who was seven years old at the time of trial, showed the jury the injuries to his chest and legs. The jury also saw photographs of various skin and muscle grafts on his legs, chest, and arm.

Jessica remained in the hospital for three weeks. She had hip, knee, and ankle surgery to repair serious fractures; her ankle had to be “completely reassembled.” Jessica suffered additional fractures to her skull, four ribs, sternum, and lower spinal disk, as well as internal bleeding. She was confined to a wheelchair for six months, used a walker for three months, and had to modify her home to accommodate her inability to walk. She testified that she expected to undergo at least one more knee surgery."

Devastating.

The jury took just a little over an hour to find the defendant guilty of reckless driving that caused great bodily injury.  The trial court sentenced him to six years in prison.

The Court of Appeal affirms.

Thursday, February 21, 2019

People v. Bueno (Cal. Ct. App. - Feb. 19, 2019)

I don't know many of the underlying facts, since they aren't recounted in this opinion.  What I do know is that Vanessa Bueno was driving a vehicle while intoxicated and rolled it over, which in turn ejected her eight-year old son -- killing him -- as well as injured her teenage daughter.  And that Ms. Bueno pled guilty to gross vehicular manslaughter and was sentenced to 11-plus years in prison.

I can only imagine that pain and anguish caused by being directly and completely responsible for the death of your eight-year old child.  I'm not really sure how that plays into how much prison time you get for that offense.  Obviously, the mother gets sentenced to prison -- it's a serious crime.  Whether you need to pile on 11 years in addition to the lifelong pain of being responsible for your son's death is something I can't ascertain from a cold appellate record.

Ultimately the Court of Appeal remands for Ms. Bueno to be resentenced by the same judge that took her plea, since she never waived that right.  Maybe she'll get the same sentence.  Maybe not.

One thing's for sure.  Don't drink and drive.

Particularly when your kids are in the car.


Wednesday, February 20, 2019

Westport Ins. Co. v. California Cas. Ins. Co. - Feb. 20, 2019)

It's been a full week since the last published Ninth Circuit opinion.  A full week.  I know it's cold, and tough to get work done.  But that's precisely when we need to snuggle up in front of a warm fireplace and read appellate opinions for fun.  So let's get cracking, Ninth Circuit.

Fortunately, today, we finally get a published opinion.  Unfortunately, we only get one, and its about how to allocate a settlement payment between two insurance companies.  Zzzzzzzz.  I mean, sure, it totally matters to the relevant insurance companies.  And we're talking about a fair chunk of change here -- the settlement is for various molestation claims made against the Moraga School District and three of its administrators when a middle school teacher allegedly touched some students, and for the three plaintiffs, the total settlements were $15.6 million.

So, yes, a lot of money at stake.  And this particular insurance company's share of that liability was held by the district court to be $2.6 million -- plus another $750,000+ in prejudgment interest.  More than sufficient to justify hiring a law firm to try to get that allocation eliminated or reduced.

But for the rest of us, it's not a particularly enthralling case.  Particularly since the panel just ends up affirming the district court's decision -- largely for the same reasons articulated below.  Lots of legal arguments on appeal, but none that were persuasive.

So we now know that an excess insurer can indeed be forced to contribute to a primary insurer's settlement payment on behalf of a district and its administrators.  Okay.  Glad to hear it, I guess.

But for more excitement from the Ninth Circuit, we'll have to await another day.

Hopefully not another week.  We miss you, Ninth Circuit.

Monday, February 18, 2019

Sturm v. Moyer (Cal. Ct. App. - Feb. 15, 2019)

They say that law reviews are too theoretical these days, and don't actually help shape the actual development of the law.  I'm somewhat sympathetic to that view.

But this opinion talks at length about a particular law review article.  One published in the San Diego Law Review, no less.

So that's one exception.

Ultimately, the Court of Appeal decides to reject the arguments advanced by Professor Reppy in the relevant law review article.  But that doesn't mean the piece is irrelevant.  It still frames the debate and assists the court in deciding what to do.

The underlying merits are also worth discussing as well.  The Court of Appeal holds that a prenup can validly be attacked under the Uniform Voidable Transactions Act; e.g., as an agreement that defrauds creditors.  I'm a bit suspicious of that result.  And it also has immense practical significance.  If your potential spouse has a huge judgment against him/her, and you've got assets, of course you're going to do a prenup.  Otherwise the creditor's just going to grab your assets after the marriage. But after today's opinion, the creditor might still be able to take your stuff, on the theory that the prenup was a transaction that defrauded creditors.  That's a pretty darn huge deal.  And one that may well deter people from getting married to their suitor of choice.

Now, there's a reason, I think, the Court of Appeal came out the way it did here.  Because the prenup here was a particularly abusive one.  It said that the spousal assets would remain separate until the underlying judgment against the husband was no longer valid.  Then everything would be community property.  You can see why that sort of arrangement might lead the Court of Appeal to decide that some prenups might be voidable since they defraud creditors.

Still.  Bad cases make bad law.  I wonder if it wouldn't make more sense to just say, as a categorical matter, that prenups aren't subject to the statute.  If only because they made the creditor no worse off than it was before the marriage.  Before, it could only go after the husband.  Ditto for after.  No blood no foul.

But, now, that's no longer the law.  At least in California.  And at least as long as this opinion lasts.

Thursday, February 14, 2019

Perez v. County of Monterey (Cal. Ct. App. - Feb. 14, 2019)

Happy Valentine's Day! The Court of Appeal decides to give us some presents on this most solemn of days, with no less than four published opinions for us to peruse. Yay!

So I decided I'd talk about the one that is perhaps most likely to be viewed as a joke. One perhaps more appropriate for April Fool's Day than today, yet, here it is.

(1) The County of Monterey says that you can't keep more than 4 roosters on your property, unless you have more than 200 roosters. No joke. There are other exceptions too; little kids can keep more than four roosters, you can't keep more than four roosters if you've been convicted of cockfighting (but you can, apparently, keep fewer than 4 -- or more than 200), etc. In short, there's a sophisticated rooster-keeping set of regulations for residential property in Monterey. If you want to have between 4 and 200 roosters on your property, you've got to get a permit.

Who knew?!

(2) Plaintiff filed a lawsuit that claimed that these rooster-keeping regulations were unconstitutional, and deprived him of his property right to keep more than 4 roosters on his property, was a taking, violated the Interstate Commerce Clause, etc. etc. etc.

No joke either.

Look, the law here may well be mostly silly.  A lot of the exceptions are somewhat difficult to justify on a categorical legal basis.

But it's rational basis review. There's a reason why we might want to let little kids in 4-H programs, for example, have half a dozen roosters. Maybe it's not a particularly GOOD reason, but it's a reason.

Which is why plaintiff's challenge was doomed from the outset. As any good student of constitutional law would have been able to tell you. And as the Court of Appeal explains.

Just go ahead and get the permit, Mr. Perez. I hope and expect that if there's a good reason why you want or need, say, 20 roosters on your property, the County of Monterey will give it to you.

And why, hopefully, your neighbors won't subsequently hate you every single morning at dawn.


Wednesday, February 13, 2019

Szonyi v. Whitaker (9th Cir. - Feb. 13, 2019)

I'm going to blame the rainy (and cold) week for putting a damper on the publication of opinions by the California judiciary thus far.  Only one Ninth Circuit opinion, and only two California Court of Appeal opinions, all week.  Them's slim pickins.

But today's Ninth Circuit opinion nonetheless reveals a nice little dispute.  The question is what it means for two crimes to arise "out of a single scheme of criminal misconduct" sufficient to get you deported from the country.  Mr. Szonyi got extremely drunk one day and, over a five- to six-hour period, forced three women to commit various sexual acts.  Since Mr. Szonyi is formally a citizen of Hungary (who came to the United States in 1957, when he was four years old), even though he's been in the United States for over 60 years, that means he's subject to deportation.  Unless the crimes for which he was convicted arise (under the statute) out of a single scheme of criminal misconduct.

Judge Clifton writes the majority opinion, holding that Mr. Szonyi is out of luck.  He thinks these are discrete crimes against different women.  Judge Fisher dissents, and thinks that these might perhaps be a single scheme of criminal conduct, with no real "pause" in the offenses sufficient to allow Mr. Szonyi to reflect.  (As Judge Fisher puts it, "On this record, I would grant the petition for review and remand for the BIA to adequately explain its decision. BIA precedent clearly requires a “substantial interruption” between offenses, and Szonyi squarely placed this issue before the BIA. The BIA, however, did not address it, leaving us to speculate whether the BIA disregarded the “substantial interruption” requirement, in contravention ofits own precedent, or concluded that there was a “substantial interruption” between offenses in this case, but without saying so and without pointing to anything in the record to support that conclusion.")

See which opinion most closely fits your own views.  But, at least at this point, Mr. Szonyi is going to be deported from the country in which he's lived the past 60 years.

Tuesday, February 12, 2019

In Re Marriage of Yeager (Cal. Ct. App. - Feb. 4, 2019)

Justice Gilbert says in the second paragraph of this opinion that "California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, “ ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’" He then drops a footnote that says "Deletion of the words 'strive to' from the oath gives it the potency it deserves."

Which is a pretty big hint that some attorney is going to be in trouble here.

And trouble she is indeed in.

The Court of Appeal affirms a $50,000 (!) sanction award against an attorney, Lisa Helfend Meyer, who disclosed information contained in a confidential child custody evaluation report.  She didn't do it in open court, or in a filing, but nonetheless asked questions about that report in a deposition.  That, the Court of Appeal holds, is an unambiguous no-no.  Fully justifying the sanctions imposed by the trial court.

Plus the respondent gets awarded his costs on appeal.

There rules out there.  Pretty important ones.

Fail to follow them at your peril.

Monday, February 11, 2019

Jackson v. Kaiser Foundation (Cal. Ct. App. - Feb. 8, 2019)

The Court of Appeal holds that you can't get mandatory relief from an erroneous dismissal (i.e., employ CCP 473(b)) when the dismissal that you're challenging is your own request for dismissal without prejudice.  Even if you made a mistake based on erroneous legal advice, that's your bad. Had the case been dismissed by the court or on a motion, sure, you'd get relief. But since this was your call, not the action of someone else, CCP 473(b) doesn't apply.

Okay. Good to know, at least.

The holding is in a context that's somewhat interesting, however. The plaintiff here filed her lawsuit (for discrimination) pro per, and then sought to get an attorney to represent her. The attorney said "Sure, I'll take your case, but let's get rid of this pro per thing first -- dismiss it without prejudice, and then I'll file a new one for you that looks better." Which she did.

But after the first lawsuit was dismissed, the lawyer said: "Oops. I didn't know how FEHA suits worked. Seems like now, after the dismissal, your lawsuit is procedurally barred."

Which probably also made the attorney go back and check his malpractice coverage.

Seeking a way out, the attorney then said he'd represent the plaintiff on a limited basis to get the first lawsuit reinstated. That way, presumably, no malpractice claim for the bad advice. (To be clear: the word 'malpractice' doesn't exist anywhere in the opinion, but I'm just reading between the lines for a possible explanation for how this case came to be; pure speculation and opinion, obviously.)

So the attorney files an ex parte request, which the trial court denies, without prejudice to a noticed motion. So the attorney agrees to another limited representation agreement where he'll file a noticed motion, which he does, but the trial court again denies it. Hence the subsequent appeal.

So a nice attempt to get out of the malpractice claim by using CCP 473(b). Albeit one that fails.

On the other side, though, I thought it somewhat interesting that Kaiser -- the defendant -- thought it tactically advantageous to oppose the motion for relief from default, as well as the resulting appeal. On the one hand, that's the obvious move. It gets them out of the lawsuit without having to defend the merits. Typically, the right call. If only because it avoids the transaction costs of defending the thing.

But, on the other hand, they get out of that suit, but, presumably, into another. Now the plaintiff may file a malpractice claim against her would-be lawyer based on the bad advice. In which she'll have to prove her case-within-a-case against Kaiser. So now it'll have to defend all those depositions etc. in the malpractice suit. Plus it had to file all those briefs in the trial court and on appeal defending the refusal to reinstate the underlying action.

So some contrary transaction costs there as well.

All that, plus the risk -- which is at least nonzero -- that all this would be for naught if the Court of Appeal held that CCP 473(b) applied.

In the end, I suspect that Kaiser would make the same call again. But it's not an easy one. Sometimes, choosing a battle may not be the wisest call. Even when it's typically the most straightforward one -- and one that you might well win.