Wednesday, October 26, 2016

Shepard v. Wise (9th Cir. - Oct. 26, 2016)

Judge Kozinski says that there's no qualified immunity because, if the inmate is believed, it's not okay for a prison guard to retaliate against a prisoner's claim of excessive force by that guard by putting the prisoner into solitary confinement for three months.  Judge Tallman says that there should be qualified immunity for doing so because running a prison is a tough place and it makes sense for a guard to put a prisoner into solitary confinement on the very same day the prisoner makes a complaint against him because that way the guard and prisoner won't have any additional interactions.

Fortunately (in my view), district court Judge Rayes, sitting by designation from Arizona, agrees with Judge Kozinski.

Tuesday, October 25, 2016

People v. Lopez (Cal. Ct. App. - Oct. 25, 2016)

Raul Lopez and Freddie Chacon were 16 when they kidnapped a CYA librarian as part of an effort to escape from the CYA facility.  During this process, they also assaulted her and stabbed another CYA instructor with a shank.  They were both sentenced to LWOP.

A series of legal challenges followed.  Mr. Lopez and Mr. Chacon served nearly 25 years in prison each, but ultimately had their sentences reduced and were released from prison.  The Attorney General filed an appeal, but the Court of Appeal affirms,

Wholly beyond the merits of the statutory dispute, I think a couple of things practically help to explain the Court of Appeal's ruling.  For one thing, the defendants were 16, and no one got killed.  For another, both of the defendants ultimately ended up spending nearly a quarter century -- a very long time -- in prison.

Finally -- and I think this matters a fair piece -- upon being released from prison, one defendant is promptly deported to Mexico to live with his family there and another one is put on probation for five years and told that if he makes even a tiny mistake he's going back to prison for life.

I think those facts give the Court of Appeal some comfort in the conclusion that what they've done here is in fact just.  Or, at a minimum, not exceptionally likely to result in a harm to public safety.

Monday, October 24, 2016

Barickman v. Mercury Cas. Co. (Cal. Ct. App. - Aug. 15, 2016)

Insured runs a red light while drunk and hits two pedestrians.  He's insured for the statutory minimum under California law (sadly), so the insurance company -- Mercury -- wisely offers the policy limit of $15,000 each to the pedestrians, who accept it.

Meanwhile, the Insured's criminal case, the Insured gets sentenced to three years in prison, and also is ordered to pay $165,000 in restitution.

In a normal world, that'd be the end of it.

But, of course, we live in no such world.

Mercury's willing to pay the policy limits, and the victims are willing to accept this, but they want to make clear that the $15,000 insurance payments will not reduce or offset the court-ordered $165,000 restitution award.  Of course, the insured wants something different, but, as you know, the insured is not the one who decides whether or not to settle.  Nonetheless, the case dickers along, with the victims forwarding along a proposed settlement agreement that includes the line "This does not include court-ordered restitution" and Mercury responding that such a line is unnecessary and superfluous, but still fully willing to forward on the full policy limits for each victim.

So the victims file suit, with both sides still pushing for their version of the agreement.  And then, at some point, the victims say:  "Screw it."  And enter into a stipulated judgment with the insured not for the $15,000 policy limits, but rather $3 million.  Alongside, of course, and assignment of bad faith claims against Mercury.  Which the victims then promptly sue.

The trial court gives the victims the full $3 million stipulated judgment, plus ten percent interest per year.  The Court of Appeal affirms.

You can view this case one of two ways.  Ways which are not necessarily inconsistent with each other.

On the one hand, you can be horrified that a trivial dispute over settlement language in a $15,000 case gets the insurance company on the hook for $3 million.  What an incredibly bad series of decisions by the insurance company.  If they'd have just signed the agreement, or just written the check, they'd be totally off the hook.  But, no, that wasn't their call.  So now they're paying millions upon millions of dollars.  Bad choices.  Really bad.

On the other hand, you've now got two people who seem to receive a manifest windfall -- at least as compared to similarly-situated victims -- as a result of a penny-ante dispute.  There was an incredibly tiny fight over whether a $15,000 payment will be an offset.  So now they get $3 million?!  That is a huge payment for a fairly insignificant mistake.  You understand how, as a matter of doctrine, such a result comes about.  But still.  At a minimum, it seems super unfair to the tons of other drunk driver victims who have to live with $15,000 to have two of 'em get a multi-million dollar windfall in nearly identical circumstances.

Yet there you have it.

So, okay, an insurance company screws up, and ends up paying for it.  And two people who would otherwise receive $15,000 get millions of dollars instead.

But, at some level, this still sounds something more akin to winning a lottery than any straightforward attempt at systemic justice, no?

Friday, October 21, 2016

People v. Cady (Cal. Ct. App. - Oct. 20, 2016)

As we head into the weekend, a cautionary tale from this opinion:

"On the evening of January 10, 2014, Cady and his friends Dustin Barr, Jeff Becker, Taylor Bednarski, Shon Gilliam and Trevor Rodgers drove in Cady's Cadillac Escalade for a night of drinking in local bars in San Diego. After leaving the second bar at around 11:00 p.m., the group got back into the Escalade, and Cady drove onto Interstate 805 toward the transition ramp to State Route 52, with the goal of returning back to Bednarski and Rodgers's house.

As Cady approached the transition to State Route 52 he was traveling at a high rate of speed, and several of his passengers told him to slow down. Cady replied with a statement such as, "I'll drive this fucking car however the fuck I want," and then accelerated further. One witness also remembered Cady laughing like somebody who "lost their mind" as he accelerated. Shortly after accelerating, Cady lost traction on his vehicle as he went around a curve, causing the Escalade to roll at least five times, travel up an embankment and then slide back onto the freeway. Another vehicle then impacted the Escalade, causing the Escalade to spin to its final position. During the accident four of the passengers — Barr, Bednarski, Gilliam and Rodgers — were ejected from the vehicle. Bednarski and Gilliam died immediately from blunt force trauma. Barr and Rodgers were seriously injured, but survived. Becker died at the scene inside the Escalade from blunt force trauma. An accident reconstruction expert calculated that Cady was driving between 87 and 97 miles per hour when he lost control of the vehicle.

Based on a blood draw from Cady after the accident, an expert concluded that depending on whether the alcohol that Cady had consumed that evening was already fully absorbed into his system, Cady's blood alcohol level during the accident was between 0.1 and 0.18. Another expert testified that based on an analysis of the cannabinoids in Cady's blood drawn at 2:18 a.m., Cady had used marijuana within hours of the blood draw, and the level of active cannabinoids would have been significantly higher during the accident than during the blood draw. The expert witness testified that the combination of active marijuana with alcohol produces an "additive effect," which is an increase in the impairing effect of both drugs, so that "the combination of those two [drugs] at the same time produces an effect greater than either substance on its own." . . . .

The jury found Cady not guilty of murder, but found him guilty of all of the other counts and made true findings on all of the factual allegations. The trial court sentenced Cady to 18 years in prison."

Let's be careful out there.

Thursday, October 20, 2016

People v. Reyes-Tornero (Cal. Ct. App. - Oct. 19, 2016)

From this opinion:

"For years leading up to December 4, 2010, Nazario Hernandez had hosted card games at his home about three times a week."

That's nice.  A friendly little neighborhood card game.  (Now, to me, three times a week seems a bit excessive.  But who am I to judge?)

"One of these card games took place outside Nazario’s trailer on December 4, 2010. In attendance at the outdoor card game were Jose Ramos, Efren Cisneros, Ignacio Martinez, and Nazario Hernandez. Other individuals were playing another card game inside the trailer.  Around 8:00 or 8:30 p.m., Efren first noticed a man about three or four feet from the card table. Nazario was walking towards his trailer when the man 'asked' for his money. Nazario thought the man was 'playing' and 'didn’t pay any attention.'"

You might be thinking:  "Yeah, I don't think he's 'playing'."  You'd be right.

"Then, the man came to where Efren was playing cards with Jose and Ignacio. The man had a gun and was covering his “head” with his sweatshirt. The man fired a warning shot at the ground, then threatened Jose and Ignacio with the gun by “put[ting] it behind them or on their head.” The man told them, in Spanish, that he wanted their money. There was about $250 or $300 from the card game on the table. Jose and Ignacio said they would give him the money, but refused to give him their wallets."

Hmmm.  That's an interesting strategy.  Why give the man the money but not your wallet?  I could see (maybe) if what he wanted was a wedding ring, or something else with sentimental value.  But money is money, no?

Now, personally, once the guy fires a warning shot, any reluctance to part with my wallet would be gone.  But I guess these folks had a theory.

"The man then came towards Efren and pointed the gun at him. Efren also told the man that he could have the money but not his wallet. The man shot Efren below his right eye, next to his nose. Efren “guess[ed] he got frustrated from what I was saying so then I turned around and that is when I was shot….” Efren then got up and tried to grab the man. During the short struggle, the man’s face became uncovered and Efren got a good look at him. The man then shot Efren three more times. Efren saw the man take the money that had been on the table and left."

Shot right below the right eye?!  Then three more times?!  That "take the money but not my wallet" strategy definitely did not work out very well.

"Efren then drove himself to the hospital."

Now that's pretty hard core.

Wednesday, October 19, 2016

People v. Holm (Cal. Ct. App. - Sept. 7, 2016)

I love opening paragraphs like this one:

"After defendant Jon Holm was convicted of second degree burglary, he filed a petition under Proposition 47 seeking to reduce his offense to misdemeanor shoplifting under Penal Code section 459.5. The trial court denied his petition on the ground the private golf and country club from which he stole a flat screen television and golf balls was not a 'commercial establishment' within the meaning of that section. We conclude otherwise and reverse and remand."

Thank you!  That way I don't feel like I have to read the rest of the opinion.  Notwithstanding the fact I invariably do.  At least for the casual reader, you've set out the rule in a straightforward manner.

As for the merits, yeah, Justice Banke's opinion seems spot on.  Sure, it's a private club.  But it's still a commercial establishment.  At least in this context.  Couldn't agree more.

Oh, and more more thing.  Mr. Holm stole "a television, valued at $662.23, and three boxes of golf balls, valued at $50 each, from the Santa Rosa Golf and Country Club."

Three boxes of golf balls cost $50?!  Each?!  Holy Moses.  I'm not joining the Santa Rosa Country Club anytime soon, that's for sure.  I surely can't afford it.  (Not that they'd have me anyways, I'm sure.)  Heck, I can barely afford the balls.

Plus, I can only imagine how much pain it would cause me every time I whacked a $20 ball into the lake.  Golf is supposed to reduce stress, not cause it.

POSTSCRIPT - Clearly I need to play golf a bit more.  I knew that golf balls came in sleeves, that a sleeve generally contains three golf balls, and that sleeves are generally rectangular cardboard boxes.  Hence that a "box" of golf balls that cost $50 would mean around $20 a ball.  But a careful reader tells me that a "box" of golf balls consists of 4 (cardboard box) sleeves.  Which means that each ball really only costs $4 ($50/12).  Now, since I'm such a duffer, I'd still probably put $20 or so worth of balls into the lake.  But glad to know that's several balls, not just one.

Tuesday, October 18, 2016

City of San Diego v. San Diegans for Open Government (Cal. Ct. App. - Oct. 17, 2016)

I'm not totally sure which way this one cuts.

On the one hand, sometimes, filing a petition for rehearing in order to "clear your name" sometimes makes it worse.  Occasionally much worse.  The Court of Appeal here discusses at length the losing party's petition for rehearing.  And says the following:

"We have read and considered San Diegans for Open Government's (SDOG) petition for rehearing. We deny the petition.

In its petition, SDOG claims that a rehearing is warranted because our opinion in the instant matter was grounded on two "irrelevant" statutes, Revenue and Taxation Code sections 19719 and 23300 (statutory references are to this code unless otherwise specified). We disagree. Our holding in City of San Diego v. San Diegans for Open Government (Sept. 22, 2016) 2016 Cal.App.LEXIS 783 was not contingent on a finding that SDOG and/or its attorney, the Briggs Law Corporation (BLC), committed a criminal act. Instead, we determined that a suspended corporation may not recover attorney fees under Code of Civil Procedure section 1021.5 when the corporation filed an answer in a validation action while both it and its attorney knew it was suspended.

In its petition for rehearing, SDOG, for the first time, directly addresses the City of San Diego's (City) argument that BLC engaged in criminal activity in violation of section 19719. SDOG acknowledges that the City raised this issue in the superior court, but "SDOG stayed on point and did not respond to the inflammatory allegations of criminal misconduct." In other words, SDOG did not feel compelled to provide any defense for its actions or those of its attorney despite being accused of criminal activity.

Further, the allegations of criminal activity did not end with the City's arguments in the superior court. In its notice of ruling and statement of reasons, the superior court explained why it was "greatly concerned" by BLC's actions in representing SDOG in the underlying litigation, specifically referring to BLC's "litigation misconduct" as "at best, an ethical lapse, and, at worst, criminal behavior." And in its opening brief, the City again cited to section 19719 and argued BLC "participated in the litigation knowing they faced the risk of potential and criminal liability[.]" Nevertheless, SDOG did not argue in its respondent's brief that it did not commit any crime. At most, SDOG offered a passing argument that it was not suspended for a failure to pay taxes. It did not discuss section 19719 or otherwise contend that BLC did not violate that statute.

We observe that not only did SDOG and BLC previously fail to argue that their actions were not criminal, they offered no explanation or justification for their actions. They did not do so in the superior court. They did not do so in this court. Now, as part of the petition for rehearing, SDOG insists that it is entitled to yet another opportunity "to establish facts to explain its actions." Not so. SDOG was given multiple opportunities to explain its actions. It made the strategic decision not to do so. Merely because SDOG's strategy did not ultimately prove successful does not compel this court to provide SDOG with another bite of the proverbial apple.

In short, it is clear that when SDOG filed an answer in the validation action, both SDOG and its attorney knew SDOG was suspended. It is undisputed that SDOG was not revived until after the time lapsed by which an interested party had to file an answer in the validation action. As such, we determined that SDOG could not recover attorney fees under Code of Civil Procedure section 1201.5. Nothing raised in the petition for rehearing changes this conclusion."

That's a long discourse on criminality.  It highlights the allegations that the petitioning party wants removed.  That's not really what you're looking for.  At all.

At the same time, however, here's how the Court of Appeal ends the thing:

"That said, this court reached no conclusion that SDOG or BLC committed a crime. We merely cited to what the superior court stated in its notice of ruling and statement of reasons that BLC's conduct could be criminal (a statement SDOG did not challenge until now). As SDOG insists in its petition for rehearing that neither it nor BLC have engaged in any criminal activity by appearing in the underlying litigation and such a finding is immaterial to our conclusion, in an abundance of caution, we will slightly modify our opinion.

The opinion filed on September 22, 2016 is modified as follows: . . . .

On page 11, second paragraph, the second sentence is modified to read: Additionally, BLC's explicit approval of SDOG's appearance and representation of SDOG was, as described the superior court, unethical and perhaps criminal.

On page 12, the first full paragraph, the third sentence is modified to read: In light of this clearly unethical and possibly criminal conduct, we expect some explanation of BLC's actions.

On page 13, first paragraph, the first sentence is modified to read: Further exacerbating BLC's illicit conduct here, BLC does not accept responsibility for its actions.

On page 15, the first full paragraph, the fifth sentence is modified to read: To require taxpayers to compensate a party or a law firm for unethical and unprofessional or even illegal conduct, under the guise that the litigant is protecting the public interest, would turn the private attorney general statute on its head."

Well, geeze.  That's exactly what the petitioning party was looking for.  So all is far from lost.

It's unclear to me (and I should probably know this) whether the long modification discourse at the outset is also published.  If so, then the petitioning party isn't getting totally everything it wants.  (It would be slightly weird to publish it and not simultaneously indicate the deletions in the published opinion, which leads me to believe the discourse might not be published -- or at least might look a bit strange and/or incomplete.)  But if the part at the outset isn't published, then, yeah, the party that filed the petition for rehearing got a little verbal rebuke that it would prefer to do without.  But then it got exactly what it wanted.  So it's probably willing to take its ball at this point and go home.

Monday, October 17, 2016

U.S. v. Dowai (9th Cir. - Oct. 17, 2016)

Here's a question for the true legal geeks out there:

Is the district court of the Northern Marianas Islands . . .

(A) An Article I Treaty court;
(B) An Article III court; or
(C) An Article IV Territorial court?

The correct answer, according to the Ninth Circuit, is (C).

Which the Ninth Circuit also holds is perfectly fine.

Thursday, October 13, 2016

Wang v. Nebbelink (Cal. Ct. App. - Oct. 13, 2016)


I understand that Section 846 of the Civil Code generally shields landowners who allow recreational activities on their land from liability to people who come on that land for such recreational conduct.  I understand the text of the statute.  I understand its purpose.  We're excited about landowners opening up their land to outsiders, and we don't want those outsiders who come on that land for recreation to be sued.  We strike a balance.  The people on the land get to have their fun on that land, but don't get to sue if they're injured.

But here, it's not the person on the land who sues (or is injured).  Rather, a landowner allowed some horses on his land (for a recreational purpose), the landowner (allegedly) negligently allowed a horse to escape, and that horse left the property and seriously injured someone.

The trial court granted summary judgment to the defendant on the ground that Section 846 absolved the landowner of any liability to the injured party.  The Court of Appeal affirms.  The fact that the injured party had nothing whatsoever to do with the recreational activity -- moreover, that he never even stepped a foot on (or even came near) the property -- is irrelevant, Justice Hull holds.  There's still immunity for the landowner's negligence.


I understand why the Court of Appeal reaches this holding.  I understand the textual analysis (the words of the statute).  I get the policy basis (to encourage landowners to open up their property).

But I still tend to think that the Court of Appeal gets it wrong.

It's one thing to say that someone who comes on your property for recreational purposes can't sue the landowner.  It's totally another to say that someone entirely separate from this conduct -- i.e., as here, a total bystander, potentially miles away -- can't sue either.  The former seems an appropriate (or at least plausible) balance, and I'm confident is what the Legislature intended when it passed Section 846.  By contrast, I don't believe that the Legislature intended to, or did, tell a stranger to any of the recreational activities that if he gets injured by someone else's negligence, tough, totally no lawsuit.

That just doesn't seem especially plausible to me.

The next of the statute seems instead to give some credence to the view that only those people who actually came on the property for the recreational purpose -- who got the benefit of that land -- are the ones who consequently can't sue.  Section 846 says:

"An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section."

Those underlined clauses expressly relate to the people who actually enter the land and who use it for a recreational purpose.  They don't mention liability to bystanders.  That's something different.

The last six words then go on to say that there are certain exceptions.  Situations in which the owner of the land may be liable.  Those obviously don't help the landowner.  I understand that at least one portion of that later language -- the exceptions -- may arguably try to cover bystanders.  (Though even then there's an express reference to the people actually on the land for the recreational purpose:  "[A landowner] who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for that purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted except as provided in this section."  The fact that this clause is part of the "exception", and also merely states that the opening of the land does not itself create liability, tends to suggest to me that it both doesn't and is not intended to immunize negligence towards bystanders.)  In the end, I simply am not persuaded that the language compels -- or potentially even allows -- the result reached by the Court of Appeal here.

Moreover, one of the exceptions would seem downright silly were the statute read as the Court of Appeal reads it here.  Justice Hull's opinion doesn't discuss it, but the fourth paragraph of Section 846 provides that "[t]his section does not limit the liability which otherwise exists . . . (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner."  Now, I totally understand why this section distinguishes express versus implied invitees.  Section 846 wants to immunize landowners for injuries to patrons who are merely "permitted" to use the land for recreational purposes, while simultaneously allowing invitees who are expressly invited to that land to sue.  Again, the policy rationale is a balance.  We want landowners to open up their land, so if there's a person who (permissibly) happens on the land for recreation, and benefits therefrom, we don't allow those beneficiaries to sue.  But when someone's expressly invited, well, that's different; they can sue.

That makes sense.  Except as applied to bystanders.

Under the Court of Appeal's holding, if I open up my land to horses, and two horses escape due to my negligence and kill two bystanders ten miles away, I'm not liable for the horse that merely "came" on the property but I am liable for the horse that was "invited" to the property.  I could see why such a distinction would matter to the permissive/express invitee were s/he injured.  But it definitely doesn't matter to the bystander whether the horse that mauled him or her was invited or merely permitted on the land.  Why the Legislature would possibly want one bystander compensated but the other to suffer her injuries in silence is beyond me.  I just don't think that was the Legislature's intent, or even its statutory language.

As I was reading the opinion, I kept thinking to myself:  "Wait.  Is the Court of Appeal really saying that if I open up my land to target shooting, and I negligently set up targets next to an interstate, and people come on my land and start shooting, I'm not liable at all to all the motorists who get shot on the highway?!"  But, yeah, that's exactly what the Court of Appeal is saying.

And, as it turns out, this isn't even an absurd hypothetical!  Apparently there are several out-of-state cases that involve almost that identical fact pattern:  a landowner gets sued for allowing shooting on his land and a bystander totally outside the property and not involved in recreation gets shot. All of those other states say that, yep, the landowner can be liable in such a setting, even in states that have their own analogue to Section 846.

But not here in California.  Not after today.  If you get shot while minding your own business and not engaged in recreation -- indeed, even if you get shot while in your own home -- as long as the shooter is engaged in recreation on someone else's land, you can't sue the negligent landowner who opened up that land to shooting directed towards your home.

That just seems crazy to me.  And not what Section 846 intends.

Again, I understand the policy argument.  We want people to open up their land.

But not at the expense of injury to bystanders.  I don't read the statute to say otherwise.  And I very much don't think that's what the Legislature intended, either.

It's one thing to say that the person engaged in recreation -- the person that stepped on your land and got benefits from it -- can't sue.  (Unless you "actually" invited him there.)  It's very much another to say that even a bystander injured by the landowner's negligence can't sue.

I don't think that's either what Section 846 or justice requires.

People v. Boswell (Cal. Ct. App. - Oct. 13, 2016)

See if you can figure out in advance how this is going to end:

"Eighty-seven-year-old Griffin lived alone in a home in San Diego. Her neighbor, Ana Murillo, occasionally took Griffin to casinos because Griffin liked to gamble. Griffin managed her own money and always kept money hidden around the house, including any winnings from her gambling. Boswell, a drug user, lived with Murillo. Boswell did not work and Murillo gave him money to buy drugs."

If you guessed "It will end badly," you are correct.  Boswell kills the 87-year old woman and is sentenced to LWOP for murder.

The Court of Appeal affirms.

Wednesday, October 12, 2016

GoTek Energy, Inc. v. SoCal IP Law Group, LLP (Cal. Ct. App. - Oct. 12, 2016)

It's human nature to procrastinate.  But I always tell my students that this can be a fatal flaw once you're an attorney.  Even though we constantly wait until the last minute to file complaints, answers, motions, etc., my consistent advice is to not wait until the last minute unless there's a good reason to do so.  Otherwise you may well find yourself in trouble and/or committing malpractice.

Like here.

The facts are simple.  Client retains Law Firm -- SoCal IP Law Group (see cartoon characters here) -- to file patent applications.  Law Firm nonetheless fails to file patent applications in Japan and Brazil, and Law Firm allegedly "admitted . . . that it was negligent” in failing to do so.

So, not surprisingly, Client decides to sue Law Firm for malpractice.

Client hires a new attorney to prosecute this claim, and does so in September of 2012.  On November 5, 2012, Client (through the new attorney) sends Law Firm a fax saying that it's making a malpractice claim against it and telling it to advise its insurer accordingly.  Two days later, on November 7, Law Firm sends an e-mail to Client saying that, in light of the malpractice claim, it must withdraw as Client's counsel, and says:  "Consequently, the firm's attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.”

Then, the next day, November 8, Client tells Law Firm to deliver all its files to its new patent firm.  A week later, on November 15, Law Firm sends an e-mail saying:  "“Pursuant to your request, this will confirm that we have terminated the attorney client relationship with you. . . . [W]e are no longer representing you with regard to your patent matters. As requested, we are transferring your files to Lucas Wenthe of Armstrong Teasdale, LLP.”

Client does, in fact, eventually file suit against Law Firm.  On November 14, 2013.

There's a one-year statute of limitations.  Why November 14, rather than November 6 (or, for that matter, November 4)?!  Sure, there's an argument that Law Firm didn't withdraw -- and hence start the limitations clock -- until its November 15 e-mail.  But there's a better argument that the clock started on November 7, when the Law Firm expressly told Client that "Consequently, the firm's attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.”  Much better, in fact.

But even if that was a worse argument, why wait the extra week?  You've had a whole year to file the suit you knew you wanted to file.  Why not file earlier?  Why wait until what you think is the very last day?!

The short answer is:  We don't know.  As Justice Yegan puts it:  "The record does not show why firm two waited until what it believed was the 'eleventh hour' to file the malpractice action."

Regardless, in the end, the reason matters not.  "We agree with the trial court that it waited too long."  The statute of limitation bars the lawsuit.

The only good news, I imagine, is that Client may potentially now have a new malpractice suit.  This time against its second law firm.  The one that waited until the very last day.  (Or, as it turned out, a day that was after the very last day.)

So that's something, I guess.

If you really like suing lawyers.  (As well as paying the $140,000 fee award that you had to pay to your former lawyers as a result of losing the first malpractice suit.)

Jorge v. Culinary Institute of America (Cal. Ct. App. - Sept. 16, 2016)

There have been absurdly slim pickings on the published opinion front recently.  Absurdly.  In the month of October -- and it's now the 12th -- the Ninth Circuit has published a grand total of two substantive opinions.  In 12 days.  Wow.  Similarly, the last time the California Court of Appeal published a new opinion was five days ago.

So, bluntly put, there's not much currently to talk about.

But at least we can still learn some lessons.

Here's one:

Sometimes, as a plaintiff, you're better off losing on summary judgment.

Like here.

Plaintiff hit by a car driven by Almir Da Fonseca as the latter was driving home from his work at the Culinary Institute.  Plaintiff sues not only the driver, but also the Culinary Institute.

It was Da Fonseca's personal car.  He was driving home.  Normally, there's no way that you can sue the employer, pursuant to the traditional coming-and-going rule.  But Mr. Da Fonseca had some work knives and some dirty uniforms in his car at the time, and occasionally (but not on the relevant day) did various consulting jobs outside of the office, so plaintiff thought this case might fall into one of the exceptions to the usual coming-and-going rule.  Hence the suit.

The Culinary Institute moves for summary judgment.  Plaintiff barely survives the motion -- with the trial court noting that plaintiff's argument against the application of the usual rule (based largely on the knives, uniforms, etc.) seemed "stretched and tortured" -- but survives it he does.  Then, at trial, the evidence is largely the same as on the summary judgment motion, and the defendant promptly moves for a directed verdict, but that too is denied.

Then the jury awards plaintiff nearly $1 million against the Culinary Institute, and the inevitable appeal follows.

The Court of Appeal reverses the judgment, as well as awards costs to the Culinary Institute.

So, for plaintiff (and his counsel), there's the time and expense of preparing for trial, actually doing the thing, and then the additional burden of defending the appeal.  All for naught.

Sometimes a win is, in the end, actually a loss.  Even if you don't realize it at the time.

Like prevailing on the summary judgment motion here.

Monday, October 10, 2016

In Re C.H. (Cal. Ct. App. - Aug. 30, 2016)

No opinions on Columbus Day.  We're too busy discovering new (legal) lands.

Maybe this opinion will give rise to one of those new lands.  Or at least resolve the conflicting claims about them.

Justice Siggins says:

"For the foregoing reasons, we agree with the holding of our colleagues in Division One in In re J.C. (2016) 246 Cal.App.4th 1462, and respectfully disagree with the courts who have held that redesignation of a felony as a misdemeanor under section 1170.18 requires expungement of an offender’s DNA and profile from the state database. (See Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209.) Redesignation of a felony to a misdemeanor under section 1170.18 does not require expungement."

Given these multiple conflicting authorities, the California Supreme Court should grant review and sort it all out.  Whether the state gets to keep your DNA shouldn't depend on the particular appellate panel you happen to draw.

Friday, October 07, 2016

U.S. v. Kaplan (9th Cir. - Oct. 7, 2016)

You're making hash oil, blow up an apartment complex, and kill one woman and injure five others, and you're only sentenced to three years in prison?  And you then appeal claiming that the sentence is way too harsh?

No dice.

I understand it's an upward departure.  But do I have to reiterate the point about you killing somone?

Thursday, October 06, 2016

Nicodemus v. St. Francis Memorial Hospital (Cal. Ct. App. - Oct. 6, 2016)

Section 1158 of the Evidence Code provides (or at least provided during the relevant time period) that:

"'Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law . . . presents a written authorization therefor signed by an adult patient [or by a patient’s guardian, conservator, parent, or personal representative], . . . a licensed hospital . . . shall make all of the patient’s records . . . available for inspection and copying by the attorney at law . . . promptly upon presentation of the written authorization.' The statute authorizes the requesting attorney to employ a professional photocopier to obtain the records on the attorney’s behalf, and the provider must produce the records within five days. All 'reasonable costs' incurred by a medical provider in locating, copying, or making the records available may be charged to the requesting party, subject to limits set forth in the statute, which include $0.10 per page for reproducing documents measuring up to 8.5 by 14 inches, $0.20 per page for producing documents from microfilm, and clerical costs not to exceed $16 per hour per person for locating and making records available."

Makes sense.  No fair letting a hospital make a fat profit from giving patients and their attorneys the copies of medical records they desperately need.

And yet, in the present case, when plaintiff and his attorney requested medical records, "HealthPort’s invoice to plaintiff’s counsel sought payment of $86.52, and provided directions for payment. The amount included a $30 “basic fee,” a $15 “retrieval fee,” $25.25 for copying 101 pages at $0.25 per page, $10.30 for shipping, and $5.97 for sales tax. The invoice included a statement directing requestors to the information sheet for more details, and advising, “Payment implies that you agreed to employ HealthPort as your professional photocopy representative for purposes of this request and that you accepted the charge denoted below on this invoice.”

Nor was this a simple mistake.  "HealthPort has followed the same process at all of its California locations since May 1, 2009. Between May 1, 2009 and July 31, 2013, it processed 152,546 attorney requests for California medical providers, using the same invoice form, and charging the same per-page copying fee ($0.25)."

Plaintiff then sues in a putative class action.  The trial court, however, denies certification.

The Court of Appeal reverses.

Thankfully.  This sounds like an outstanding class action to me.  (Let's just hope that the class gets actual relief, instead of the attorney simply getting a hefty fee.)

Wednesday, October 05, 2016

People v. Nachbar (Cal. Ct. App. - Oct. 5, 2016)

"In April 2014, when defendant was 22 years old, he was placed on summary probation for having unlawful sexual intercourse with a minor, a 17-year-old girl."

Well, that's not good.  He's lucky he only got probation.

"While on probation for that offense, defendant met the victim in this case, a 15-year-old girl."

Oh no.  I can see where this is going.

Dude.  You're on probation.  Are you seriously going to make the same mistake twice?  This time with someone even younger?

"They met through a mutual friend, became friends on Facebook, and exchanged text messages. Several of defendant's text messages were sexually explicit and indicated he wanted to have sex with the victim. Some of the victim's responses were "OMG," "LOL," and that defendant was too old for her."

Damn social media.  Remind me to check my 15-year old daughter's iPad when I get home. Repeatedly.

"On September 14, 2014, the victim told her father she would be staying at her mother's house that night. Her mother was out of town. The victim and defendant arranged to meet at the mother's house, but she told him he could not stay too long because it was a school night. Defendant arrived around 8:00 p.m. and they tried to watch a movie in the victim's bedroom on her cell phone."

Ugh.  I can figure out where this is going.

"When they were unable to do so, the victim asked defendant to leave. Defendant said he wanted to cuddle, but the victim asked him to come back another time."

Oh, wait.  Maybe it's even worse than I thought.

"Instead of leaving, defendant grabbed the victim's breasts; she asked him to stop. Defendant moved his hands toward the victim's pants; she attempted to push his hands away. Defendant removed the victim's shirt and fondled her breasts. He reached underneath the victim's pants and underwear and digitally penetrated her vagina several times; she continued to tell defendant to stop. Defendant removed the victim's pants and underwear, got on top of her, and penetrated her vagina with his penis. The victim asked defendant to stop and was eventually able to push him off of her. She asked defendant to leave, and he exited her bedroom. The victim believed defendant had left the house. The victim put on her clothes and informed a friend by text message that defendant had just raped her. The friend notified the victim's father, who notified law enforcement."

Oh my.  Definitely worse.  Much, much worse.

Raping a 15-year old.  While on probation for having sex with a 17-year old.  You're going to get serious time for that.  The only question is whether it's going to be 10 years, or 20, or even 30.  As I'm reading the opinion, I'm definitely interested in just how slammed this guy is going to be.  I know it's going to be huge, but the only question is how huge.

"Deputies woke, arrested, and admonished defendant. He initially denied having any sexual contact with the victim, stating he knew it would be wrong because she was only 15 years old. However, during transport, defendant admitted he digitally penetrated the victim's vagina and had sexual intercourse with her. He denied the victim ever told him "no." Defendant said he was " 'coming down' " from having smoked methamphetamine before meeting with the victim."

That's not going to help your sentence.  At all.

"Pursuant to a plea agreement, defendant pleaded guilty to the unlawful sexual intercourse count and the remaining counts were dismissed. . . . The trial court sentenced defendant to 381 days in custody (which was set off by custody credits) and placed him on formal probation for three years."

WHAT?!  Seriously?!

I mean, I understand there was a plea, and that date rape cases aren't perfectly easy to prove.  But, again, WHAT?!  The guy's on probation for sex with a 17-year old and rapes a 15-year old (or, at a minimum, has sex with her), and gets just a year in prison.

That's shocking.  Really, really shocking.  Both at the plea and at the sentence.

From a case down here in San Diego, no less.

U.S. v. Lo (9th Cir. - Oct. 5, 2016)

"According to the indictment, from March 2013 to June 2013, Lo “knowingly and with the intent to defraud” executed a scheme to steal money from his girlfriend, A.W. Lo persuaded A.W. to let him prepare her tax returns, and then convinced A.W. to pay her estimated taxes to the IRS by writing checks totaling more than $125,000 to a Schwab account in the name of Lo’s wife. In connection with this scheme, Lo forged confirmation statements from Schwab which confirmed that her checks would be sent to the IRS on A.W.’s behalf."

Wait.  So Lo stole money from his girlfriend to give to his wife?

That's not cool at all.

That -- plus the $2,000,000 Mr. Lo stole from his employer -- gets him a little shy of six years in prison.

And given his plea agreement and waiver, his appeal is dismissed.

Tuesday, October 04, 2016

In Re Julien H. (Cal. Ct. App. - Oct. 4, 2016)

"In February 2015, DCFS received an anonymous referral indicating that the mother regularly left Julien for several days a week with his grandmother who smoked cigarettes in the child’s presence, left prescription medicine accessible to him and allowed him to eat candy."

Wait.  That's all it takes to get a DCFS referral?!  Cigarettes and prescription pills in the house, and (gasp!) eating candy?  Gonna be a lot of calls on Halloween, I'd imagine.

Ultimately, when the DCFS worker actually tours the home, it turns out that there are all sorts of other problems, which ultimately leads to this appeal.

But I read a lot of these cases, and I can say without exaggeration that the allegations at issue are usually way worse than the fact that the grandmother smokes and the kid eats some candy.


In Re Marriage of Cohen (Cal. Ct. App. - Oct. 3, 2016)

As I'm reading this opinion, I kept saying to myself:  "Wow.  This is a really well-written opinion.  I mean, really well written."  The sentences are crisp.  The analysis is tight.  Just incredibly well done.

By that, I don't necessarily mean that the substantive content is perfect.  There may well be parts to which a reader might disagree.  It's not a totally open-and-shut case.

Nonetheless, as far as style goes, the opinion is nothing less than amazing.

I can tell good writing from bad writing.  But it's exceptionally rare that I come across an opinion in which the writing literally makes me sit up in my chair.  This is one of those cases.

So as I was reading the opinion, I couldn't wait to get until the end.  Who's writing the thing?  Who's this incredibly good?  I exaggerate not in the slightest when I say that I was itching to get to the end just to find out.  (And, no, I did not skip ahead:  I wanted the tension to build.)

Then I get to the end.  Justice Bedsworth.

I should have known.

Anyway, extremely well done.  Good job (eventually) publishing it.  Not only because the substantive law therein clearly meets the standard for publication.  But also as an exemplar of outstanding writing.

Monday, October 03, 2016

Doe v. Nikolay (Cal. Ct. App. - Sept. 29, 2016)

Plaintiff says that Nikolay had some naked/sex pictures of plaintiff and distributed them to others, as well as threatened to send them to plaintiff's employer.  So plaintiff sues, since in California there's an express cause of action for that.

Not surprisingly, plaintiff sues as a Doe, since plaintiff wants to remain confidential and not let the world know there are naked/sex pictures out there.  In California, there's an express statute that -- for good reason -- allows such claims to be filed as a Doe.  But the trial court finds out that the clerk has accidentally posted Doe's real name on a publicly-available document -- a mistake not of Doe, but of the court -- so says that Doe can't use a pseudonym anymore, since the cat's out of the bag.

The Court of Appeal reverses.  Rightly so, in my view.  It's a short opinion.  That's all it takes.  The fact that a clerk made a (reversible) mistake doesn't justify forcing Doe to make everything public at this point.  Instead, you should taken the mistakenly-published document off the court's web site and continue to let plaintiff use the word Doe.


One last thing, that might be a tiny bit surprising.

Defendant's Nikolay's first name is Poulet.  She's a woman.  And plaintiff is a John Doe.  So it's the guy in this case that doesn't want his naked/sex pictures circulated by a woman.

Not what you might have first thought, eh?

Not that that's at all relevant to the merits of the case, of course.  But I bet those particular gender roles are the minority of these types of cases.

Friday, September 30, 2016

People v. Bell (Cal. Ct. App. - Sept. 29, 2016)

Michael Bell committed a horrible crime.  Which the Court of Appeal describes in chilling detail.

He was nine days short of his 15th birthday at the time, and no one actually died, so he's got to have at least the possibility of getting out of prison.  So, after lots of procedural wrangling, he's sentenced to 43 years to life, making him eligible for parole when he's 55.  He appeals, but the Court of Appeal affirms.

On a minor note, one of the downsides of cranking out tons of opinions every year is that they're not all perfect.  Fortunately, you've got plenty of people -- both in and outside of chambers -- to review the thing before it gets published forever in the California Appellate Reports.

So Justice Rubin might want to take a quick look at the following sentence on page 7:

"Bell filed a habeas corpus petition with the trial court contending that his sentence of 54 years to file amounted to cruel and unusual punishment because it was a defector sentence of life without parole."

I'm pretty sure he means 54 years to life, not 54 years to file.  Spell check won't catch that one.  The computer also probably doesn't know Latin very well either.  So I think that by "defector sentence" he meant "de facto sentence".

Not one this helps Mr. Bell.  But at least we can get the words right.

Cameranesi v. US DOD (9th Cir. - Sept. 30, 2016)

Panel draws matter.

The issue here is whether the public should be permitted under FOIA to view the names of students at the School of the Americas (now called the Western Hemisphere Institute for Security Cooperation).

The majority says that they shouldn't, because even though some torturers and human rights abusers attend the school, or go on to commit such offenses after graduating, we should trust that the Army follows the law and effectively screens out such people, and there's a risk that disclosing the names of these students might put them at risk.

The dissent says that the public should be allowed access to this information, because the public has a legitimate interest in seeing whether the Army's screening process -- and the stuff it teaches in class -- is effective in protecting human rights, and there's no substantial support for the theory that anyone will be at risk if the names are disclosed (as they were for years previously).

The majority opinion is written by Judge Ikuta and joined by Judge Kleinfeld.

The dissent is written by Judge Watford.

I can think of dozens -- indeed,hundreds -- of alternate panel compositions in which I'm fairly confident the result would have come out the other way.

Thursday, September 29, 2016

Coe v. City of San Diego (Cal. Ct. App. - Sept. 28, 2016)

R.I.P. Cheetah's San Diego.

Personally, I'm not into strip clubs.  For the obvious, traditional reasons and more.  As for the rules, in San Diego, you need a permit, and also can't serve alcohol if the dancers are "nude".  Plus there's a no-touching rule -- neither the patron nor the dancer can touch each other -- plus they have to stay at least six feet away from each other.  As a result, what transpires at this particular place is not exactly the same as you see in, say, The Sopranos.

At least in theory.

There are apparently a lot of dancers at this particular club.  A lot.  According to the Court of Appeal, "[b]etween 12 to 15 adult entertainers perform on a day shift and an average of 50 adult entertainers perform on an evening shift."  I wouldn't have thought that alcohol-free six-foot-away dancing would result in such high employment rates, but that shows you how much I know.

As for the actual practices in this club, I think we can all agree that neither the letter nor the spirit of the various San Diego rules was consistently followed.  Though, given the extent of the violations, I am surprised how long this club kept going -- as well as how slap-on-the-wrist most of the penalties were, at least until the end.

"In 2006, the City issued a 30-day suspension to Coe for multiple violations of the six-foot and no-touch rules occurring during overt and covert inspections between September 2005 and September 2006. Coe appealed the suspension. The parties subsequently settled the matter in January 2007 with Coe admitting to no-touch violations occurring between March and September 2006 and paying a $10,000 fine.

In July 2012 the City issued a 15-day suspension to Coe for multiple violations of the six-foot, no-touch, and no-fondling rules occurring between March 2011 and April 2012. Coe appealed the suspension. The parties settled the matter in February 2013 with Coe admitting the violations, agreeing to a three-day suspension, and paying a $20,000 civil penalty."

Man.  I wish I could settle all my cases on such favorable terms.

"At the end of April 2013 the City sent Coe a warning letter advising her of multiple violations of the no-touch and no-fondling rules by 14 adult entertainers. The violations occurred during covert inspections in late March and April 2013, after Coe and her staff had completed the mandatory training.

In May 2013 Coe and the business's managers met with police department representatives. The parties discussed the recent violations and what measures Coe might employ to reduce their occurrence. The police representatives warned Coe the next penalty for further violations would be a 15-day suspension. . . .

Nonetheless, violations continued to occur at Coe's business. In August 2013 the City sent Coe a warning letter advising her of multiple violations of the no-touch and nofondling rules by 10 adult entertainers occurring during covert inspections in May, June and July 2013. In October 2013 the City sent Coe a warning letter advising her of violations of the no-touch and no-fondling rules by one adult entertainer occurring during a covert inspection in September 2013. In February 2014 the City sent a warning letter to Coe advising her of multiple violations of the no-touch and no-fondling rules by nine adult entertainers occurring during overt and covert inspections in January and February 2014. In April 2014 the City sent Coe a warning letter advising her of multiple violations of the no-touch and no-fondling rules by three adult entertainers occurring during covert inspections in February 2014."

Notice that there are no actual penalties for any of this stuff.  So, on the one hand, it seems like San Diego was very aggressive in conducting covert surveillance at the strip club.  On the other hand, it seems like San Diego was simultaneously uninterested in actually doing anything about the violations.

I wonder why San Diego would send so many investigators to conduct "surveillance" inside a nude strip club so many times and yet never actually do anything about the observed violations?  Is there something enjoyable about just actually conducting the surveillance?  Nah.  Couldn't be.

Finally, the City decides to revoke the strip club's license.  Mind you, the place appeals, and as a result, gets multiple additional years to operate while the appeals take their course.  (Oh, yeah:  "[W]hile the administrative appeal was pending, the City sent Coe a warning letter advising her of multiple violations of the six-foot, no-touch, and no-fondling rules by 16 adult entertainers occurring during covert inspections in July and August 2014."  We're still very excited about the ability to send our officers into strip clubs on the clock, even after the permit's been revoked.)

But, in the end, the Court of Appeal affirms.  So that'll presumably be the end of the place.

But what a run, I guess.

The underlying problem, apparently, is one of incentives.  As well as human nature.  The patrons want to be touched.  The dancers are independent contractors who get paid via tips, and tips are higher -- I assume much higher -- when they satisfy their patron's desires.  And the security guards who are hired to monitor the dancers (and patrons) get tipped by the dancers, whom (as you'll recall) get higher tips when they violate the rules.

You can see the problem.  Even if the owners want dancers to stop touching -- and it's unclear that they even do (since presumably touching means more customers means more money) -- it's a hard practice to stop.  From the opinion:  "Over 40 separate nude entertainers committed the violations, which included rubbing breasts against faces; grinding breasts and buttocks against groins; and rubbing groins or hands against legs, chests, or groins."

A shorthand lesson in human nature.

M.C. v. Superior Court (Cal. Ct. App. - Sept. 29, 2016)

From today's opinion:

"The Del Norte County Department of Health and Human Services (Department) received a referral from law enforcement after officers searched Mother’s residence and found mushrooms, meth pipes, marijuana paraphernalia, concentrated cannabis, brass knuckles and butterfly knives."

Awesome.  Sounds like a wonderful place.  Perfect location for a five- and eleven-year old child.

"It also appeared the occupants were hoarders, as there were large piles of items. Some of the piles were over seven feet tall, presenting a hazard to the children."

Yikes.  And I thought it couldn't get any worse.

"Two days later, Mother tested positive for methamphetamine, benzodiazepines, and marijuana."

Not surprising.

"Mother continued to deny she had a substance abuse problem stating she 'only uses meth to do yard work.'"

Oh.  Okay.  No problem then.

Wednesday, September 28, 2016

People v. Windfield (Cal. Ct. App. - Sept. 28, 2016)

X goes to a gang party in Rialto.  Some members of the gang see X at the party and threaten him with guns and sucker punch him.  The person who had taken X to the party -- his close friend, M -- does nothing to protect or assist X.  Oh, the people who had assaulted X were M's cousins.

X isn't happy about that.  Some months later, X sees M near an apartment and expresses serious anger that X didn't help him in the Rialto fight.  X tells M that he wants to go over to Ramona and kill the people who assaulted him.

M tells X that he's drunk, and that, no, he's not going to help X kill his cousins, and that X should just mellow out.  At which point X -- still incredibly angry at M -- takes off his sweater and pulls out a gun.

A van then pulls up near X and M.  Coincidentally enough, in the van are members of the same gang that had previously assaulted X.  So X, with his gun already out, decides he's had enough.  X begins chasing two of these gang members, with his gun pointed at them, all the time taunting them as they try to run away from him.  X then puts his gun in the face of one of the occupants of the van.

Now, I know what you're thinking.  X pulls the trigger, and we're currently reviewing X's conviction for first-degree murder.

Nope.  Not here.  We're actually reviewing a conviction for the murder of X.  Because X did not, in fact, pull the trigger.  Instead, his conduct simply made M and the gang members he taunted really, really mad.  So later that evening, the gang members retaliate, and shoot X ten times, killing him.

It's truly the Wild West in some places, eh?

Tuesday, September 27, 2016

People v. Davis (Cal. Ct. App. - Sept. 27, 2016)

As I started to read this opinion earlier today, I found myself wondering why the authorities bothered to prosecute a guy for diverting the course of a stream under Fish & Game Code 1602 and petty theft of water under Section 488 of the Penal Code.  I mean, sure, it may be a crime, but do we really care all that much if a guy takes a little water that's flowing off of a big hill near some railroad tracks?  I couldn't figure why people were making such a big deal out of this whole thing; jury trial, appeal to the appellate division, onto the Court of Appeal, etc.  Why this big interest in prosecution?

Then I read more of the opinion.  Oh, now I understand.  The guy was diverting the water to irrigate his marijuana field.  They couldn't bust him for the marijuana because he was complying with the Compassionate Use Act.  So they busted him for the water.

Ultimately the Court of Appeal reverse the conviction for petty theft of water, holding that under the facts of this case, you can't be convicted to "stealing" water that doesn't belong to anyone.  Moreover, in doing so, Justice Butz waxes poetic, with fancy language that brought a smile to my face (and that hurt my brain).  A snippet:

"Water is a resource for which '[o]wnership . . . is vested [collectively] in the state’s residents.' . . . [A]t common law there could not be larceny of public resources because these are not anyone’s personal property. . . . Similar to Brady, the only larceny provision expressly premised on taking water involves theft of water as the captured product of a utility company, along with gas and electricity. . . . Consequently, this was an invalid legal theory on which to premise defendant’s larceny conviction. . . .

To get our metaphysics up and running, there is no ownership of water, gas, or oil on the land other than in usufruct.  Water in its natural state is categorized as a type of real property until severed from the realty 'and confined in portable receptacles,' at which point the water transmutes to personal property. Water that is diverted for purposes of irrigation, however, 'is not deemed severed and thus remains [realty]' (13 Witkin, supra, § 91, p. 113); 'In the case of water for irrigation, delivered in ditches or pipes, the severance does not take place at all'.

In a usually overlooked part of People v. Dillon (1983) 34 Cal.3d 441 (Dillon)—in contrast with the always distinguished holding that the imposition of life punishment on the defendant for first degree murder was constitutionally disproportionate under the facts of that case (id. at p. 489)—it discussed the evolution of severance of realty as a basis for larceny. Originally, in “a hypertechnical remnant of an archaic formalism that can no longer be seriously defended” (id. at p. 457), the common law limited larceny to personal property because land could not be asported. However, as the definition of real property broadened, it began to include “many items that can be more or less readily detached and removed from the land.” (Ibid.) Given a reluctance to expand the class of offenses then subject to capital punishment, courts “clung to the artificial distinction” between personalty and realty, and developed the principle that severed realty (which ordinarily would become personalty had the landowner accomplished it) asported in a single transaction with the severance never became the owner’s personalty, so a larceny did not take place. (Ibid.) “Thus, in a perverse and unintended application of the work ethic, thieves industrious enough to harvest what they stole and to carry it away without pause were guilty at most of trespass, while those who tarried [before returning to take it away] or enjoyed fruits [severed by others], faced the hangman’s noose.” (Id. at p. 458.)."

Neat stuff.

Monday, September 26, 2016

U.S. v. Martinez-Lopez (9th Cir. - Sept. 26, 2016)

Sometimes it's hard to figure out what's going on inside the Ninth Circuit.

Today the Ninth Circuit takes this case en banc.  But I didn't remember the published opinion at issue.

So I looked it up.

Nope.  No published opinion.

That's rare.  Apparently they decided to take up an unpublished disposition.

Nope.  No unpublished opinion either.

So I looked up whether the case has had oral argument already.  Yep, it did.

So I watched the oral argument.  Was there a big fight about an intracircuit split that the panel talked about at oral argument and made it clear that this case should be taken en banc?

Nope.  Just a regular old oral argument.  (Maybe made slightly different by the empty chair in the upper left of the video.)

Indeed, if anything, it was a somewhat tame argument.  Not many questions to the government at all.

So it might have just been that the panel decided, after writing its draft opinion, that this was a case that should be taken en banc.

Which is strange -- or at least unusual -- itself.  But made perhaps even stranger by the fact that the oral argument was in 2015, and here we are taking the case en banc in September 2016.

That's a long time.

Now, there are apparently other cases -- or at least one -- pending in the Ninth Circuit that raise similar issues.  So maybe they all get taken en banc.  But I'm just totally speculating at this point.

Sometimes you can figure out easily why a particular opinion gets taken up.  This case isn't one of 'em.  At least for me.

De Fontbrune v. Wofsy (9th Cir. - Sept. 26, 2016)

Did you wake up this morning and say:  "You know what?  I think I want to finally understand the French concept of astreinte.  I especially want to know whether it operates as a fine or penalty, or is it instead in the nature of a damage award?"

If so, coincidentally enough, you're in luck.  Here's ten single-spaced pages or so on the subject.

Truthfully, the opinion is worth reading even for the more pedestrian intellectuals amongst us.  For Judge McKeown also writes ten pages or so about whether a judge is allowed to examine expert declarations on what foreign law entails at the pleading stage; e.g., on a 12(b)(6) motion.

Foreshadowing alert:  The answer is "Yes."

Fancy-pants international legal stuff from the Ninth Circuit to begin the week.

Friday, September 23, 2016

In Re Sunnyslope Housing Ltd. Partnership (9th Cir. - Sept. 22, 2016)

I can often accurately predict which Ninth Circuit cases are likely to be taken en banc.

But I will forthrightly concede that I was totally blindsided by this one.

Sure, there was a dissent in the original panel opinion.  But Judge Paez didn't write anything that would be considered blistering.  And the majority consisted of Judges Clifton and Kozinski.  Not someone crazy and/or sitting by designation.

Moreover, Judge Paez's argument was largely that the majority simply misread a holding from a Supreme Court case, not that it created an intracircuit split or conflicted with the decision of a prior Ninth Circuit panel.  So you gotta figure that if the Supreme Court really thought its opinion was misinterpreted, it could take care of it itself.

Finally, the clincher:  This is a bankruptcy case.  Come on.  Who's going to take a bankruptcy case en banc?!

Apparently the Ninth Circuit.


Thursday, September 22, 2016

City of San Diego v. San Diegans for Open Government (Cal. Ct. App. - Sept. 22, 2016)

San Diego attorney Cory Briggs loses a quarter million dollars in attorney's fees today because he elected to file an answer on behalf of a nonprofit corporation when his firm knew that corporation was suspended.  Plus, Justice Huffman's opinion, like the trial court, insults him for doing do.  Saying, among other things:

"The law is clear that SDOG lacked the capacity to appear in the Validation Action. A corporation that has had its powers suspended 'lacks the legal capacity to prosecute or defend a civil action during its suspension.' . . . Despite this clear authority, SDOG, represented by BLC [the Briggs Law Corporation], filed an answer in the Validation Action. Such conduct was clearly wrong. Additionally, BLC's explicit approval of SDOG's appearance and representation of SDOG was, as described by the superior court, unethical and perhaps criminal. . . .

We are perplexed by BLC's and SDOG's actions here. We do not understand why BLC would represent SDOG in the Validation Action and file a verified answer on behalf of SDOG when it knew, as did the corporation, that SDOG was suspended. In light of this clearly unethical and possibly criminal conduct, we expect some explanation of BLC's actions. BLC provides none. BLC does not explain why it felt compelled to violate the law and make an appearance on behalf of SDOG. BLC does not discuss any exigency in the matter that induced its improper actions. BLC does not clarify what value SDOG's presence in the action added, especially considering that the public interest was already being protected by Shapiro. There is no indication that SDOG obtained unique relief that Shapiro did not or could not achieve in the Validation Action. In other words, BLC offers absolutely no justification for its actions.

Further exacerbating BLC's illicit conduct here, BLC does not accept responsibility for its actions. Instead, it blames the City for failing to discover earlier that SDOG was a suspended corporation. . . . Such blame shifting and obfuscation does not carry the day."


A good day for the city of San Diego.  At least financially.  Not such a good day for the law firm.

Wednesday, September 21, 2016

In Re J.E. (Cal. Ct. App. - Sept. 21, 2016)

I talked early today about the typically depressing black cloud of human imperfection that I typically read in the pages of the California Appellate Reporter.

See what I mean?

From the same day as my earlier post this morning:

"On August 9, 2014, the then 14-year-old minor was taken into protective custody by the Oakland Police Department after running away from her mother’s home. Mother had refused to allow her to return home and asked that she be taken into the custody of Child Protective Services. . . . The petition alleged that mother was overwhelmed and unable to supervise minor due to minor’s behavioral challenges, which included fire-setting, chronically running away, and suicidal ideations.

According to the detention report prepared by the agency, minor had been residing in Oakland with her mother, her older sister (then age 18) and a younger sister (then age 8). Mother 'reported feeling very stressed and overwhelmed for some time because of [minor’s] behaviors.' Mother stated that minor 'is ‘manipulative’ and ‘lies a lot.’ Further [mother] is concerned about [minor’s] cutting behaviors, statements of suicidal ideation, an attempt to set her bedroom on fire, smoking marijuana, drinking alcohol, chronic running away, and an incident in November 2013 in which [minor] molested her younger sister. [Mother] believes that she is not able to meet [minor’s] needs at this time.' Minor reported to the agency that she ran away because she was beaten by her mother and also claimed that she had been molested by her older sister when they were younger."

Yep.  That's indeed the type of stuff I usually see.


In Re: J.G. (Cal. Ct. App. - Sept. 20, 2016)

The typical day has me read a half dozen or so published opinions, every one of which contains depressing facts about the most marginalized participants in society.  You get to see the bad side of human nature every single day.

Then, once in a blue moon, you come across facts like these:

"Defendant was 17 years old in January 2011 when he committed a residential burglary. He was adjudged a ward of the juvenile court and placed in a youth rehabilitation center for nine months. Defendant was ordered to pay victim restitution of $2,100 and a restitution fine of $100.

Defendant arrived at the youth rehabilitation center in April 2011 and was granted early release in September 2011, graduating from the program in six months. In a later report to the court, a probation officer stated: “According to institutional records and staff, [defendant’s] adjustment to the program was very good. [He] abided by institutional rules; he adhered to staff directions; he interacted well with his peers; and he performed well in school. As part of his therapeutic treatment plan at the [center], [defendant] participated in anger management, impact of crime on victims, life skills, and substance abuse programs.”

Defendant returned home. It was reported at a December 2011 review hearing that defendant “has fully complied with the conditions of his probation. . . . [¶] Regarding his adjustment at home, his attitude and behavior have been good according to his mother. [She] reports that [defendant] had been following her rules, completing household chores, abiding by his curfew, and contributing to household expenses. Each time [the probation officer] has spoken to [defendant’s mother], she has related nothing but positive information regarding her son’s conduct at home. [¶] As to school, [defendant] has been participating in the GED program” and “hopes to take his GED examination within the next few months.” He has been working part time in a restaurant. “As to his other conditions of probation, [defendant] has been drug tested on a regular basis and has not tested positive for any illicit substances. [Defendant] has reported to probation as directed and he has been available for home visits. According to probation records, he has not committed any new law violations.” Defendant had not yet paid restitution but said he “expects to begin making payments in the near future.” The probation officer concluded by noting defendant’s “positive adjustment in the community.” As recommended by the probation department, the court ordered defendant’s parole “terminated successfully” and maintained his wardship. The order was issued on December 29, 2011, when defendant was age 18.

No further proceedings were had until a January 26, 2016 review hearing, when defendant was age 22. The probation department filed a report asking for termination of wardship because defendant’s age put him beyond the jurisdiction of the juvenile court. The report stated that defendant “perform[ed] well in the community” from the time of the 2011 review hearing to date. Defendant “continued to follow his parents’ rules at home, obtained his GED,” “obtained employment” at a restaurant, and was free of any law violations."

Hey!  How about that?!  It actually seemed to turn out okay.  Yes, the guy had problems when he was 17, and was put on probation.  But, at least for the next five years, it seems like he turned it around.  He found a job, obtained a GED, didn't commit any more crimes, seems like he has a good attitude, etc.  Well done.

So what's the case doing in the Court of Appeal?  Why this ray of sunshine in the otherwise nearly uniformly gloomy pages of the California Appellate Reporter?

Simple.  The trial court didn't think that it could declare that the juvenile had "successfully" completed probation because he hadn't yet fully paid the $2,100 in restitution he owed.  The trial court said that it would readily declare probation completed if he had paid the restitution (but he hadn't), or even if the trial court could enter a civil judgment for this amount -- which is generally what happens.  But since the former minor was now 22, the trial court didn't think that it had the authority to enter a civil judgment for the restitution amount, which the trial court thought expired once the minor turned 21.

On that basis, the trial court refused to find that the minor had successfully completed his probation.

Thankfully, the Court of Appeal recognizes a good thing for what it is, and reverses.

The minor has done well.  The trial court has the power to enter a civil judgment based on a restitution order even if the minor is now over 21, so long as the restitution order was entered (as it was here) when the minor was still a minor.  No problem.  And since the minor has done well, there's no need to remand the case for further factfinding.  The Court of Appeal orders that the minor be found to have successfully completed probation, which means that his juvenile records are sealed and he's able to get on with his new life.

Well done.

Tuesday, September 20, 2016

Estate of Barton v. ADT Security Services Pension Plan (9th Cir. - Sept. 20, 2016)

Most work product that you see when you teach at a law school is reasonably good.  Your students have graduated college; they've generally done well there; they scored highly on standardized tests; and typically they work fairly diligently on their projects.  As a result, the vast majority of the time, you're fairly pleased -- or at least satisfied -- with what you see.

But, sometimes, you come across work product that's terrible.  Just terrible.  Incredibly, stunningly, terrible.

At which point you have to make a decision.

The biggest part of you -- or at least of me -- wants to be honest.  Ruthlessly honest.  To tell them exactly what they've done wrong and why, as well as to explain exactly what the deficiencies are in their work and how serious, deeply serious, those deficiencies are.  That may mean telling them that their work product is bad.  Incredibly bad.  But you hope that this bad (but accurate) news will help them improve in the future, which is your exclusive goal.  It'll make them a better person for you to be blunt about where they have failed and by what magnitude.  Even if that news may cause them some short-term distress.  No one, after all, likes to be critiqued for their work.  Especially work on which they've spent a fair amount of time.  Nonetheless, you want to be honest, in an effort to make them better.  Seriously honest.

But another part of you often says:  "What's the point?"  They're not going to like being critiqued.  Especially if you're honest about the gravity of your critique.  They may well think that you're being overly -- wrongly -- judgmental.  That their work isn't nearly as bad as you say it is.  That your critique is just your opinion, and one not worth much weight at that, and probably doesn't in fact reflect the quality of their work product.  The author may think:  "Well, yeah, maybe my stuff wasn't awesome, but it was just fine; this guy's just being a jerk."  So they'll sit there and listen, but really they've tuned out and aren't hearing what you're saying.  Or at least not accepting it.  Because they won't believe it's actually that bad.

That's a natural response.  And it's much more common, I think, than someone taking a powerful -- blunt -- critique to heart.  Much of the time, all that being ruthlessly honest about incredibly poor work product only ends up in upsetting the author and/or making them tune out.

So what's the point?  You haven't actually accomplished your objective.  All you've done is to come off like a jerk yourself.

So you're inclined to sugar-coat your review.  Sure, you tell them the parts of their work product that are bad.  But you never accurately reflect your overall review of the piece.  Or -- and this is the downside -- reveal your belief that what they've written is really bad.  Unacceptably bad.  Which you want to say so they won't do it again.  But, instead, you tell them the bad parts, they come away thinking what they've done is okay but not great, and, yeah, they've (maybe) learned a bit, but there's still a darn high chance that the next project they do (or the one after that) will be just as intolerably bad as the thing you read.

But at least their feelings weren't hurt.

That's a struggle you occasional face as a teacher.  There are analogies to other areas of life, of course; child rearing comes to mind, for one.  Other things too.  How harsh -- or "honest" -- should you be when you see something that's profoundly subpar?  Especially when you know the author can do better?

Judge Smith authors a dissent from a denial of rehearing en banc in an ERISA case today, joined by Judges O'Scannlain, Tallman, Gould, Bybee, Callahan, Bea, and Ikuta.  Sometimes such dissents can serve as an especially powerful way to convince the Supreme Court to grant certiorari in the case.  Or, at a minimum, are fairly devastating indictments of the underlying panel opinion.

This is not, in my view, one of those types of dissents.

The dissent begins with a one-sentence paragraph; a sentence that simply quotes the underlying standard for en banc review.  "A party may petition for rehearing en banc when 'the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed . . . and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions.' Fed. R. App. P. 35(b)(1)(A)."

I don't think that's an especially powerful, or helpful, way to begin your dissent.  If only because pretty much everyone reading the thing already knows the relevant standard.

The second paragraph shifts to making conclusory representations about the panel's opinion that doesn't describe the particular issues at stake and could probably be inserted virtually verbatim into pretty much any dissent from a denial of rehearing en banc.  "In this case, the majority ignores United States Supreme Court precedent and our own Employee Retirement Income Security Act (“ERISA”) precedent and thus fails to maintain the uniformity of the courts’ decisions. Therefore, I must dissent from our court’s refusal to rehear this case en banc."  I'm not sure that really advances the ball very much.

You can read the rest of the dissent if you'd like, but in general, I was underwhelmed, and thought it could have been written a bit better.  It's not that anything that Judge Smith says is demonstrably wrong.  It's just not a very powerful, or even especially persuasive, submission.  Sometimes you've be more than happy to write a certiorari petition that simply quoted at length from a particular judge's dissent from the denial of rehearing en banc.  You definitely wouldn't do that here (or at least I wouldn't).  There's a lot missing, and you might even prefer to simply quote from Judge Ikuta's dissent in the underlying panel opinion instead.

The dissent concludes by articulating two rhetorical questions.  I'm not sure this is a generally great way to end a dissent.  Especially when, as here, those rhetorical questions -- like the introduction -- again are not targeted towards the particular issues in this case and could be used verbatim in pretty much every single dissent from a denial of rehearing en banc in the universe.  This conclusion reads:  "Why have the Supreme Court and our circuit mandate standards of review if judges can ignore them at any time they are so inclined? Our circuit has inexplicably turned its back on the principle of stare decisis in this case. From this time forward, can each panel decide the law on its own, provided enough active judges are willing to live with it?"

I don't think that legal briefs that end with similar rhetorical questions have much persuasive effect.  I feel the same way about the conclusion here.  It just doesn't especially move me.

I've seen better.

Again, it's not that Judge Smith says anything demonstrably wrong.  It's just that dissents from denials of rehearing en banc are often some of the most powerful, persuasive pieces that come out of the Ninth Circuit.

With respect, I don't think that this particular missive is in that particular category.

Monday, September 19, 2016

People v. White (Cal. Ct. App. - Sept. 19, 2016)

Today's opinion is another in a long series of SVP cases.  You get used to reading these things pretty much every week or so.  So maybe you get a little jaded.

Yet something about the first paragraph stuck out to me:

"The issue in this case is whether a defendant’s various mental conditions,1 including frotteuristic disorder, exhibitionist disorder, bipolar disorder, and anti-social disorder, which two experts opined would likely result in future acts of sexual battery, satisfy the requirement of the Sexually Violent Predator Act (SVPA) that a defendant 'will engage in sexually violent criminal behavior.'"

Hmmm.  "Frotteuristic disorder,"  Haven't heard that term before.  I know those other terms; I get what exhibitionism is, bipolar disorder, etc.  I even know some other terms you get used to in these SVP cases; pedophilia, etc.  But the old "frotteuristic disorder"?  Nope.  Don't know it.

So I looked it up.  Apparently it means that you really, really, really like rubbing up against a non-consenting person.  Generally with your penis.

Oh.  That!  Yeah, I'm familiar with the concept.  Just didn't know the term.

But now I do.

Let's hear it for education.

As it turns out, though, I didn't even need to look it up.  Because as you read the rest of the opinion, you inevitably discover -- via context -- what that term means.  Because if there ever was a guy who likes rubbing up against a non-consenting person with his penis, it's Mr. White.  And Justice Kreigler describes at length all the various times throughout history that Mr. White has indulged his apparent passion.

Let's just say, without elaboration, that it's a lot of disturbing touching.  A shocking, depressing, deeply disturbing amount.

And as for the dispositive issue of whether Mr. White is an SVP who's going to stay locked up -- very possibly for the rest of his life, notwithstanding his full service of his sentence -- let's just say you can figure out how the case comes out from the Court of Appeal's recitation of his history both in prison and in the hospital.  Wholly apart from all the "rubbing" he does when outside and in the real world (which, again, is a ton of rubbing):

"Defendant incurred 47 serious prison rules violations while incarcerated, including six sex offenses, three acts of physical aggression, three threatening acts, two instances of possessing weapons, and 11 instances of verbal aggression. The sexual incidents include asking to masturbate in front of a female intern, exposing his erect penis, and masturbating in front of female staff. Defendant was sent to Coalinga State Hospital in 2008 after a parole violation.

At Coalinga, defendant engaged in instances of indecent exposure, verbal sexual aggression, verbal non-sexual aggression, and property damage. Between April 2009 and June 2011, there were 13 indecent exposures, 11 acts of physical aggression, and 33 threats. Between July 2011 to November 2013, there were 12 exposures, 22 acts of physical aggression, 36 threats, 10 instances of verbal sexual aggression, 46 verbal nonsexual aggression, 39 property damage, and 14 instances of contraband possession. From December 2013 through July 2015, there were two exposures documented, one act of physical aggression, three threats, two acts of verbal sexual aggression, four acts of nonsexual verbal aggression, two property damage, and two instances of possession of contraband. There were additional acts of misconduct including frequent sexual comments to female staff, grabbing his clothed penis, and exposing himself to a female medical technician."

Yeah.  There's pretty much no doubt how this case is going to come out, now, is there?

Nope.  None whatsoever.

Rothstein v. Superior Court (Cal. Ct. App. - Sept. 16, 2016)

Justice Baker explains the relevant issue in the opening paragraph of this opinion:

"While a husband and wife were litigating their ongoing marriage dissolution case, a limited liability company run by the wife filed a civil action concerning a disputed debt at issue in the dissolution proceedings. The superior court deemed the two cases related and assigned the civil case to the already assigned judge. The question we decide is whether the limited liability company’s Code of Civil Procedure section 170.6 challenge in the related civil action requires transfer of both cases to a new judge."  (emphasis in original)

Justice Baker frames the question, but doesn't immediately answer it.  For that, you have to read all the way to page four of the opinion.

But from the mere framing of the question -- as well as the strategically placed emphasis on the word "both" -- you can probably already figure out the answer.

As page four says:

"We hold a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge. We explain why."

That's the rest of the opinion.

Friday, September 16, 2016

A.K.H. v. City of Tustin (9th Cir. - Sept. 17, 2016)

I'm a little confused about this one.

The question is whether a police officer used excessive force (and/or is entitled to qualified immunity) when he shot and killed an unarmed person walking on the street.  So the facts are important.

Judge Fletcher's opinion does a good job of explaining why, in fact, there was no qualified immunity here.  In large part because there was basically no real reason to shoot the victim.  He hadn't committed a big offense, wasn't a real threat to escape, wasn't armed or known to be armed, etc.

There's just one part that I don't quite understand.

Judge Fletcher says in the opening paragraph of the opinion that "Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."  That's a pretty big deal.  If you shoot someone who's not holding a weapon, and who you know isn't holding a weapon, you're already starting (in my view) in a huge hole in an excessive force suit.

Yet, later on in the opinion, Judge Fletcher says:  "Villareal immediately shouted, 'Get your hand out of your pocket.' Herrera removed his right hand from his sweatshirt pocket in an arcing motion over his head. Just as Herrera’s hand came out of his pocket, Villarreal fired two shots in rapid succession. . . .  Officer Villarreal testified in his deposition that he shot Herrera because he 'believe[ed] that he had a weapon and he was going to use that weapon on [him].'"

I'm honestly confused.

Maybe what the officer's saying is that, yeah, he didn't actually see a gun in Herrera's hand, but he thought the guy had a gun in his sweatshirt -- which is why he kept his hand in there -- and then when he removed his right hand from the sweatshirt in an arcing motion over his head, the officer thought (mistakenly) there was a gun in there, and that's why he shot.

If that's what the officer's saying, then I can at least understand why he fired.  (There's still the question of whether that's reasonable, but at least I can understand why everything went down as it did.)

But that seems inconsistent with what Judge Fletcher said at the outset of the opinion, when he says -- albeit not directly quoting from anything in the record -- that "Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."

The other way to view the record is to say that the testimony shows that the officer shot the guy because he "thought" he had a weapon in his sweatshirt, albeit not in his hand.  If that's indeed what the record reflects, well, duh, there's obviously no qualified immunity on these facts.  There's totally no reason to shoot a guy because he just pulled out an empty hand -- a hand you knew was empty -- just because tucked away in a sweatshirt somewhere there might potentially be a weapon that is totally no threat at the present moment.

That's how Judge Fletcher seems to view the record.  Or at least the impression I got from reading the facts set forth in this opinion.

Okay.  But I just can't fathom that that's actually what the officer said.

Maybe he did.  Maybe he honestly said that he didn't see anything in the hand, or think anything was in the hand, but he shot the guy anyway.  If so, I totally understand today's opinion.

But is that really an accurate recitation of the officer's story?  (Again:  Maybe.  I simply can't tell from the use of quotations in one area of the opinion but the non-quoted summary at the outset.)

Reading between the lines, is it possible that what the officer's saying was that (1) he didn't actually see a gun (which is what Judge Fletcher says), (2) he didn't actually think he actually saw a gun (which is, again, what Judge Fletcher says), but (3) he nonetheless thought the guy had a gun in his hand once he pulled it out of his pocket?

That last subjective mental state seems important to me.  But at least as far as I can tell, Judge Fletcher never discusses it anywhere in the opinion.  The best I can find is the factual summary at the outset in which Judge Fletcher says that the officer "does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."  One way to interpret that, I guess, is to say that the officer admitted that he didn't think there was a weapon in the hand.  But a different way to interpret that is to say the the officer admitted that he didn't think he saw a weapon in the hand, but nonetheless thought there was a weapon in the hand.   The hand that appears to be rapidly arcing towards him.

But I can't tell from the opinion which of these two things Judge Fletcher is saying.  Or that, critically, the actual record reflects.

Again, I'm not saying the shooting here was necessarily justified.  But it's a far different case, in my view, if you shoot someone who just whipped towards you what you know is an empty hand as opposed to if you shoot someone who just whipped towards you a hand that you think -- maybe reasonably, maybe not so reasonably -- holds a gun.

If a guy points his fingers in the shape of a gun towards you, but you knew they're fingers, you obviously can't shoot him.  But if a guy points his fingers in the shape of a gun towards you, and you think his fingers are a gun -- or holds his hand in a fist that you think holds a weapon, even though you can't "see" one -- well, that's an entirely different case, right?

I think that Judge Fletcher is saying that this case involves the former hypothetical.  But I can't tell for sure if that's indeed Judge Fletcher's understanding.  Or whether, his understanding or not, that's actually this case.

So I'd like to see the actual record on this point quoted.  'Cause it sure seems important to me, at least, whether the officer admitted that he didn't see or think he saw a weapon, versus whether he admitted that he didn't see or think there was a weapon in the victim's hand.

A pretty big distinction.