Thursday, June 20, 2019

People v. Bankers Ins. Co. (Cal. Ct. App. - June 19, 2019)

I didn't think there'd be a dissent to this one.

The trial court declares the defendant's bond forfeited when his attorney shows up a little late to a hearing.  The attorney had called in, telling the clerk that he'd be there in 45 minutes, but didn't leave his name.  The attorney walked in five minutes after the court declared the bond forfeited, so the trial judge corrected the forfeiture.  No blood, no foul.

Three months later, the defendant skips.  The bond is ordered forfeited.  But the surety says that it's entitled to its money back because the trial court forfeited the bond earlier, and wasn't allowed to change that decision five minutes later without providing notice to the surety.

The Court of Appeal, like the trial court, disagrees.  It doesn't make any sense, Justice Danner says, to stop the trial court from correcting straightforward errors in the forfeiture process five minutes after they've transpired.  If the lawyer was a little late (especially if he had an excuse), and the "forfeiture" box was never entered in the minutes and corrected during the same court session, that event should not have any significance -- much less a dispositive one that allows the surety to avoid its obligation in the event the defendant flees.

It's a common sense ruling.

But Justice Mihara dissents.

It's not that Justice Mihara doesn't have a point.  The statute does say that you've got to give the surety notice once you forfeit a bond in open court.  And there's an argument that this makes sense even for a lawyer being five minutes late; it give the surety the opportunity to "reassess" the flight risk of the defendant (and, arguably, the competence of counsel).

So there's an argument.  Backed up by precedent.

But it's a weak one.  Or at least weaker, in my view, than the arguments the other way.  Particularly when the trial court makes mistakes; let's say, for example, that the defendant was there, and the trial court declared the bond forfeited, but it was a mistake, which the trial court realized ten seconds later (e.g., the defendant said "Here," but the trial court didn't hear him, and declared the bond forfeited, only to reinstate it seconds later when the defendant said "But I said I'm here!" and the trial court said "Oh, sorry, my bad, I didn't hear you.")  Under Justice Mihara's view, you're under a mandatory duty to notify the surety -- even after the correction -- and if you don't, the bond can't be forfeited even if the defendant later skips.  Doesn't make sense.  Ditto for the situation here.

So Justice Danner writes a common sense opinion.  As to which I'm on board.

Makes justice better.

Tuesday, June 18, 2019

Martinez v. Ryan (9th Cir. - June 18, 2019)

It's been a heavy week for death penalty cases recently.  I don't know whether it's the summer or just random, but lots and lots of murder opinions in the pipeline.  Which are always depressing, and that rarely show people at anything other than their absolute worst.

Today gives us a Ninth Circuit opinion that unanimously affirms the denial of a habeas petition in a death penalty case.  It's authored by Judge Milan Smith and joined by Judges McKeown and Fletcher. So the chances of en banc or Supreme Court review are essentially zero.  In California, that wouldn't mean much as a practical matter.  But this is Arizona, in which they at least used to actually carry out a fair number of executions.  (At least until it took two solid hours, and fifteen different attempts, to execute the last guy, at which point the Arizona governor put a moratorium on executions, until the state figures out how to actually "humanely" kill someone.)  So there's at least some chance that this guy will in fact be put to death at some point.

It's also not a case where you can't figure out why the death penalty was imposed.  It's someone who killed an on-duty cop, so that's going to get you sentenced to death more times than not.  And, as if that wasn't enough, the Ninth Circuit's opinion drops this little nugget in a footnote on page seven:  "Hours after murdering Officer Martin, Martinez robbed a convenience store in Blythe, California, and fatally shot the store clerk. Martinez’s convictions and sentences for that robbery and murder, however, are not before us."

Making it virtually certain -- if it wasn't already -- that the jury's going to sentence the guy to die.  As well as diminishing whatever residual sympathy a Ninth Circuit panel might have for the petitioner.

Monday, June 17, 2019

Swanson v. County of Riverside (Cal. Ct. App. - June 17, 2019)

This is an interesting opinion on several levels.

First, the (alleged) facts are fairly striking.  Brandon M. attacks his mother with a pair of scissors and is admitted to the Riverside County Regional Medical Center on a 72-hour involuntary hold.  But the hospital purportedly released him before the 72 hours has expired; allegedly,  "[leaving] Brandon in a waiting room and discharg[ing] him for lack of space before the expiration of the 72-hour period, then provid[ig] him a bus pass to return home" having never even assigned him a room.

Which is no problem if Brandon's not a danger to himself or others.  (Though he has just attacked his mother with scissors, so we might want to be a bit cautious here.)  But what does Brandon do once he gets home from the hospital?  He promptly uses a baseball bat at the home to bludgeon three people there to death.  Including, ironically, a technician who was installing an alarm system in the home, presumably to protect the family from . . . Brandon.  Not good.  (Some of the briefs in the dispute are redacted and nonpublic, but for more information about the underlying offense, including some facts not discussed in the opinion, check this out.)

The County files an anti-SLAPP motion, which successfully delays the lawsuit for some time.  But the trial court correctly denies it and the Court of Appeal affirms.

Beyond the facts of the case, the other interesting component of the opinion is the legal analysis.  Justice Huffman authors an 18-page disposition.  But the legal analysis of the actual holding of the thing is only two pages long, finding (appropriately) that the lawsuit didn't "arise out of" protected speech -- and instead arose out of conduct -- so the anti-SLAPP statute didn't apply.  The majority of the opinion, both before and after that holding, addresses other grounds for denying the motion, and simply serves to "express doubt" as to various County defenses.

That's a fairly long time to talk about issues that you're not actually deciding.  Maybe helpful to other (and/or lower) courts in the future, or on remand.  But classic dicta.

Expressed at length.

Thursday, June 13, 2019

Kirkpatrick v. Chappell (9th Cir. - June 13, 2019)

What a tangled web.

It's a death penalty case, and Judge Reinhardt writes the original opinion (joined by Judge Wardlaw), with Judge Kozinski writing a classic Kozinski dissent.  Needless to say, given that Judge Reinhardt wrote the majority opinion, you know how the case turned out:  the denial of the defendant's habeas petition was reversed and remanded.

The California Attorney General files a motion for panel rehearing (and rehearing en banc), an event that's likely going nowhere.  But while that motion was pending, troubles begin for Judge Kozinski, and he ultimately resigns at the end of the year, before the motion is decided.

Now, you may think:  "The guy dissented.  Not like his replacement is going to change anything."  And you'd be right.  Nonetheless, you've got to replace him, let the new member of the panel review the briefs and oral argument, and weigh in.

So Judge Christen gets drawn.  She's working on getting up to speed on the briefs and arguments.

And a few months later, Judge Reinhardt dies.  (Parenthetically:  Google, can we please get a better picture of the guy to pop up when someone does a search for "Judge Reinhardt dies?"  It's almost like you looked long and hard for a close-up photograph of the guy with his eyes closed.)

So now we have to replace Judge Reinhardt.  Judge Bea gets drawn to replace him.

And, perhaps predictably, the result of the opinion now changes.  The new panel orders the case reargued and, today, unanimously rejects the defendant's habeas claim on the merits.

The dispositive difference just being purely a matter of timing.  Had the court acted just a little faster on the pending motion, the defendant would have a live habeas claim, and chance for reversal.  But in a twist of fate, his victory gets taken away.

It doesn't really matter, of course.  As I mentioned earlier today (again, coincidentally enough), it's not like Mr. Kirkpatrick is likely to be executed anyway, since he too is in California.  Which, again, ironically, is exactly what Judge Kozinski said at some length in his original dissent to Judge Reinhardt's opinion in 2017.

To end where I began:  A tangled web.

People v. Caro (Cal. Supreme Ct. - June 13, 2019)

It seems somewhat a waste to write an 100-plus page opinion about someone who, notwithstanding the sentence, will almost certainly not actually be put to death.  Still, you want to get it right.  So here it is.

A woman with no prior criminal record who killed three of her four kids after a domestic dispute (and then tried to kill herself).  Another case where it's hard to fathom how a jury -- or collection of juries -- intelligently and rationally distinguishes between those defendants who should spend the rest of their lives in prison or be killed.

And another case in which the conviction and death sentence is unanimously affirmed.

Wednesday, June 12, 2019

United Grand Corp. v. Malibu Hillbillies (Cal. Ct. App. - June 12, 2019)

The Court of Appeal delineates the arguments and conduct of Los Angeles attorney Cyrus Sanai in this comprehensive, 37-page opinion.  It is devastating.  I've never seen the Court of Appeal savage an appellate brief so thoroughly as Justice Stratton does here.

Oh, and the opinion ends with this neat little kicker:

"Sanai did not report to jail and the trial court issued a bench warrant for his arrest. He is currently a fugitive from justice. He has willfully disobeyed the trial court’s order. Under the circumstances he is not entitled to challenge the sanctions orders on appeal."

Ouch.

People v. John (Cal. Ct. App. - June 12, 2019)

I'm seriously confused.

Is the Court of Appeal really saying that if both sides (i.e., the defendant and the People) recognize that (1) you're obviously guilty of the offense (i.e., you did it), but (2) you're also obviously insane (i.e., could not recognize right from wrong at the time of the crime), you can't agree to that as part of a plea deal?

That seems to be what today's opinion holds.  But such a holding seems to be so potentially wrong that I'm not at all sure that's what Justice McKinster actually means.

Part of the opinion seems obviously right.  You can't plead "guilty" but also "not guilty by reason of insanity."  One's guilty, the other's not guilty.  So, here, when the defendant ultimately changed her plea to "guilty" -- but both sides stipulated she was insane -- those two don't really mesh.  What you are really pleading is "not guilty by reason of insanity," and the People are agreeing.  So defendant gets to "withdraw" her guilty plea because that's not what you really plead to when you're saying you are insane.

So far so good.

But the Court of Appeal seems to be saying that you can't "mix" these two types of pleadings at all.  That you can't (1) admit that you did the offense (i.e., "plead guilty" to that), but (2) say that you were insane -- and have the People agree to that as well.  The Court of Appeal says that that's "[a]n illegal plea bargain," and hence "null and void."

That implicit holding seems weird.  Why can't the parties so agree?  Especially if it's true.  We want the parties -- desperately -- to strike precisely such deals, particularly when such a plea accurately reflects the obvious mental state of the defendant at the time.

The Court of Appeal correctly describes how the whole plea thing generally works in cases like this.  If you plead not guilty alongside not guilty by reason of insanity, you've got two trials; the first one about whether you did it, and a second one (if the first one finds you did it) about whether you were insane at the time.  Cool.  By contrast, if you just plead straight up NGI (not guilty by reason of insanity), you're essentially admitting that you did it, thus obviating the first trial, so the only issue is whether you were sane.  Again:  Totally fine.

But what I'd like to hear the Court of Appeal say -- at least if it believes it to be true -- is that it's fine for the parties to agree to (1) let the defendant change his plea from not guilty and NGI to a plea of only NGI (i.e., to essentially admit the offense), and (2) have the parties agree that the verdict will then be NGI (i.e., to stipulate that the guy was insane, so will be committed rather than incarcerated).  As the opinion now reads, it nowhere says that's permitted, and at least implicitly, with all these claims about "illegal plea bargains" and the like, seems to cast some doubt as to whether it's legal to do what the parties clearly attempted to do here; i.e., to strike a deal where everyone recognizes the guy did it but was insane.

Which makes me wonder whether the Court of Appeal really thinks you can't do that, or whether it just thinks that the particular "technical" way the parties were went about doing it (with a "guilty" plea) was merely a procedural error that can easily be corrected on remand to accomplish what the parties intended.

It'd be great if the Court of Appeal could make that a bit clearer.  If only because I've read the opinion three different times now, and am still not positive which of these two things it actually means.

Either position is arguably defensible.  I just want to know which one the Court of Appeal thinks is the actual law.

People v. Raybon (Cal. Ct. App. - June 11, 2019)

I can state with near certainty that the California Supreme Court will grant review of this opinion.

There's basically no choice.  The Court of Appeal's starkly worded opinion holds, unanimously, that pursuant to the plain language of Proposition 64 (which legalized marijuana), it's no longer a felony to possess this product in prison.  You can still be subject to discipline -- potentially heavily -- for having it in prison, or convicted for smoking it in prison.  But it's not a felony to possess it, at least if you're 21 and it's under an ounce.

There is, in fact, a strong argument that that's exactly what the text of the statute provides.

So why does the California Supreme Court basically have to grant review?

Because, three months ago, a different panel issued this opinion.  Unanimously.  Holding exactly the opposite of what the Court of Appeal holds in the most recent opinion.

You can't have squarely conflicting appellate holdings on the validity of a substantive felony that's an incredibly commonly charged offense.  There needs to be a rule.  One rule, applicable everywhere in the state.

So the California Supreme Court has to step in and decide the matter once and for all.  Quickly.

So they'll grant review in this case.  And, while they're at it, they need to grant review in the case from March as well.  A petition for review has already been filed in that case, and a couple of weeks ago the Court extended the time to grant or deny review to July 8.  After this most recent opinion, the Court should grant review in both cases.  And decide which panel was right.

Tuesday, June 11, 2019

City and County of San Francisco v. Uber (Cal. Ct. App. - June 11, 2019)

Had the Court of Appeal not published this opinion, I would never have known that ride-sharing services like Uber and Lyft "accounted for nearly 65% of all moving violations for driving in transit lanes and bicycle lanes, obstructing bicycle lanes and traffic lanes, failure to yield to pedestrians, and illegal U-turns in business districts" in San Francisco.

That's a shockingly high number.  Amazing.

Monday, June 10, 2019

People v. Kidd (Cal. Ct. App. - June 10, 2019)

The decision to publish this opinion definitely got me thinking.

The question in many of these cases -- including this one -- is when a reasonable person would no longer feel "free to leave" when confronted by the police.  That's a toughie.  Most of the time, we don't leave a police encounter, even if it's unwanted (as it often is), because we don't want to be rude or because we're not sure we're allowed.  From a risk/reward perspective, it's not usually too big of a pain to converse with the police, whereas if you attempt to flee the encounter, rightly or wrongly, you may end up getting arrested.  Or worse.

So from a practical point of view, the realities of the situation almost always "coerce" you to interact with the police.

But Fourth Amendment doctrine obviously can't say that you're detained whenever the police talk to you.  If only because, as a factual matter, you are, in fact, free to leave in a variety of situations.  As a result, we've to to distinguish between when there's an actual Fourth Amendment seizure --  a set of facts that requires probable cause, or reasonable suspicion, or something like that -- and when there's not.

No easy task.  Which is amply revealed by the diversity of cases that deal with the subject, which are by no means subject to facile catalog.

Today's opinion is yet another of these fact-intensive cases.  But the facts are fairly straightforward.  An officer sees a couple of guys sitting in a car in a residential area during the "wee hours of the morning" with their fog lights on.  That's definitely not reasonable suspicion of a crime, but at the same time, not exactly something usual, either.  So we want -- or at least, I want -- the officers to investigate.  Which they do.

The police make a u-turn in their car, park 10 feet behind the suspicious/interesting vehicle, shine their floodlight on the car, and approach the thing at a fairly brisk pace to talk to the occupants.  No red lights, no guns drawn.  But, still, a couple of floodlights from a police car ten feet behind you.

Would you feel free to leave?

My personal answer is:  No.  Which is what the Court of Appeal says as well.  Holding that since it was thus a detention, there had to be reasonable suspicion of a crime.  Which there wasn't.  Hence we suppress the guns, drugs and pills the officers subsequently find.

But it's a messed up inquiry.  Because I wouldn't feel free -- most reasonable people wouldn't feel free -- to leave with a lot less.  Even just cops coming up to you in your car at 2:00 a.m., no floodlights or anything.  Are you really going to just drive away?  No way.  Because I suspect that virtually all of us would think that if we did, they're going to definitely come after us.  Which means we wouldn't feel free to leave.  Yet those facts are the very definition of a "consensual" police encounter to which the Fourth Amendment doesn't apply.

Making the Fourth Amendment test depend on whether a reasonable person would feel free to leave just seems silly.  Because no one seems free to leave.  Even when, in fact, they are.

Plus, the only ones who actually "know" whether they're free to leave are likely to be limited to lawyers, law professors, or (other) hardened criminals.  So it seems incredibly artificial to decide whether there's a seizure based upon what a totally uninformed person would perceive based upon a set of facts in which the practical realities almost always militate in favor of sitting tight once the police approach you.

I'm thinking that maybe the right approach would be a Miranda-type thing.  Maybe what we want to say is that a ton of police encounters are presumptively detentions -- something that reflects the actual reality of what most people feel -- unless the police proactively say something like "You're free to leave if you'd like, but [if you want to talk to me, blah blah blah] . . . ."  There'd be a lot of upside to such a rule.  That way you'd know whether you were, in fact, free to leave.  And could actualize your desires if you'd like.  It'd also avoid the dangers -- life-risking, in some circumstances -- of someone thinking that they're free to leave when the police take a different perspective.  We'll basically just assume that in most police encounters, other than the most obviously benign, someone is not free to leave unless the police tell 'em otherwise.  (Now, if they leave anyway, and there's no reasonable suspicion, that's fine, we can't validly arrest 'em.  But letting them know the scoop in advance seems like a valuable -- and easily obtainable -- objective.)

The people here seem to me like they were, in fact, free to leave, and had they left, I'd have been fine with that.  Maybe a brighter-line rule would both make cases like this easier to adjudicate as well as have substantial real-world advantages to boot.

Friday, June 07, 2019

People v. Smalling (App. Div. Sup. Ct. - June 7, 2019)

On the "low level litigation" front, here's a neat little published opinion from the Appellate Division of the Superior Court.  It holds that restitution is mandatory even for infractions (e.g., traffic tickets).

The defendant here pled guilty to having her pit bull kill a service dog, the result of which was a fine of $157.  But the owner of the dog who was killed then demanded restitution, which the trial court (a temporary judge) denied, saying that the owner could sue civilly if she wanted, but couldn't obtain a restitution order in a case involving an infraction.

But the Appellate Division disagreed.  It may be an infraction, but it's still a crime.  And restitution is mandatory in all criminal cases.

So it's going to end up being a lot more than $157.  (Plus, unlike the judgment in a civil suit, an order for restitution likely isn't covered by one's homeowners policy.)

One final note.  It's rare that the order of a temporary judge (a "pro tem") is made the subject of a published opinion, so I looked up the judge at issue, who's listed as Andrew K. Kim.  To my surprise, there's no lawyer or judge in California listed with that name; the closest you get is a "Peter Andrew Kim," which I'm fairly confident is someone else.  So I contacted Mr. Google, and discovered that there is a lawyer listed with that name, but in a way I'd never seen before.  The State Bar's records for Ki Hyon Kim list his "aka" as Andrew Kim, and he works at the "Law Office of Andrew K Kim."  So I assume that's him.  I've just never seen an a.k.a. in an official Bar record before.  Learn something new every day.


Thursday, June 06, 2019

Bergelectric Corp. v. Secretary of Labor (9th Cir. - June 6, 2019)

The $3000 question in this opinion is whether solar panels are "roofing materials [or] equipment."  If they are, then installing those panels is subject to a certain set of OSHA rules, which the contractor here followed, and the $3000 fine is invalid.  But if they aren't, then installing the panels is subject to a different set of rules, and the $3000 fine is valid.

The Ninth Circuit concludes that the plain meaning of "roofing materials [or] equipment" answers the question.  Nothing fancier or more complicated than that.

So?  Whatchathink?  Is a solar panel a type of roofing material or equipment?  After all, you're just as qualified as the Ninth Circuit to decide the common meaning of those terms.  What's your call?

On the one hand, solar panels are (as here) installed on the roof, typically by roofers.  On the other hand, the solar panels are typically installed on top of the roof, though they (partially) cover the roof as well.

Roofing materials or equipment?

The Ninth Circuit says no.  So the fine's valid.

To me, it's actually a close call.  Indeed, my initial impression was that solar panels are indeed a type of roofing equipment.  Maybe in part because when my wife and I looked into having solar panels installed on our own home, we were told (by the roofing contractor) that they'd have to cut out some or most of the clay roofing tiles to install the panels, which would then cover the resulting gaps.  That sounds a lot like a type of roofing, or at least roofing materials or equipment.  Even though it's on top of what we normally think of as the "main" roofing material.

But the Ninth Circuit decides otherwise.  Fair enough.  Maybe right, maybe wrong.  I'm not sure I'm going to spend all day thinking about a close case in which a whopping $3000 is at stake.

Though I do have a marginal critique about the definition employed by the per curiam opinion.

Recall that the question is what we mean by "roofing material" or "roofing equipment."  Those are nouns.  Yet the definition that the Ninth Circuit's opinion relies upon (1) is for the word "roof," not "roofing" (even though it's the latter word that's the one used in the regulation), and (2) is for the word "roof" as a verb, which is not how the word is used here.  (As a verb, "roof" does indeed mean to provide cover with a roof -- that's the "action" word -- but as a noun, the word "roof" can have a very different meaning.)

Now, I'm not enough of a grammarian to know for sure what you do when you turn a noun (roof) into an adjective (roofing) that describes a different noun (material or equipment).  Still.  Seems weird to use the verb definition when you're trying to figure out the meaning of a particular noun.

Anyway.  Close case.  I'm not sure the plain meaning of the relevant words is really all that plain.  Or why someone installing material on a roof (as the petitioner undeniably did here) isn't okay to follow the regular old rules for someone installing roofing equipment -- e.g., shingles -- since the risk of falling seems equivalent whether you're installing shingles or solar panels.  But what do I know?  I'm freaked out by being on a high roof in any event.

(I also wonder what the Ninth Circuit would do with solar shingles, which seem -- sort of like regular solar panels -- to provide both solar power as well as covering for the home.  Is that a different result, or the same thing?)

U.S. v. Brown (9th Cir. - June 5, 2019)

I suspect that the Supreme Court will reverse this opinion.

An (essentially) anonymous tipster at a YWCA calls the police and says that there's an African-American man with dreadlocks, a camouflage jacket and red shoes carrying a gun.  The police promptly spot someone who looks just like that in the area, and follow him in their vehicle for a couple of blocks.  When they turn on their siren, the individual runs away from them.  The police catch him and discover the gun and some drugs.

The Ninth Circuit holds that the stop was impermissible.  Not enough reasonable suspicion to conduct a Terry stop.

There's a lot in the opinion that makes sense; that having a gun is likely lawful in the state, that lots of innocent people (including, perhaps especially, minorities) distrust and may run from the police, etc.

But the standard for a Terry stop -- a "brief, investigative detention" -- is low.  And having a gun (in public, anyway) is a big deal, even if it might well be lawful in a number of circumstances.  Perhaps most importantly, running from the police is generally viewed as a big deal.  As a "flight" of some sort that may well suggest criminality.

I doubt that a majority of the Supreme Court would conclude as the panel does here.  And this may be precisely the type of case where the Court grants certiorari to spank down the "liberal" Ninth Circuit and it's "crazy" views about search-and-seizure jurisprudence.

Wednesday, June 05, 2019

Rudisill v. California Coastal Commission (Cal. Ct. App. - June 5, 2019)

You don't see many people get sanctioned for filing frivolous anti-SLAPP motion in the trial court.  When it happens, you don't see many such decisions get reversed.

But it happens here.

Worth mentioning on those rare occasions when it transpires.

McMillin Homes v. National Fire & Marine Ins. Co. (Cal. Ct. App. - June 5, 2019)

It's hard to argue that a decision about the applicability of a particular exclusion in an individual insurance policy as applied to a certain set of facts raises a critical issue the answer to which the universe (as opposed to the parties) awaits with bated breath.  Nonetheless, some of those cases get published, and that's fine.

Today's opinion not only gets published, but gets published even after the parties settle the appeal and dismiss it.  The Court of Appeal says that it "elected to proceed with the opinion given because the appeal was fully briefed and raised important issues."  The truth, of course, is that the court had already drafted its 25-page opinion at the time of the dismissal, and (understandably) didn't feel like just throwing the thing away at that point.  (The two statements are not necessarily inconsistent.)  So it published the opinion regardless.  Even though, at that point, the parties didn't care.

Monday, June 03, 2019

U.S. v. Knotek (9th Cir. - June 3, 2019)

A lot of Ninth Circuit opinions involve kicking out non-citizens from the country.  Today's opinion, by contrast, involves kicking out a citizen; in particular, sending him over to the Czech Republic to be incarcerated.  Different from the usual fare.

It's an extradition opinion.  The relevant treaty -- like many of them -- says that the respective countries aren't required to extradite their own citizens.  But a fairly recent federal statute says that the President is authorized to send U.S. citizens away if s/he wants.  Does that work?

The Ninth Circuit -- like virtually all courts -- says "Yes."  Which is not surprising.  It's a pretty straightforward interpretation of the relevant textual provisions.

The complexity is an old Supreme Court opinion that held that an extradition treaty (like the one at issue here) that says that you're not required to extradite your own citizens doesn't itself authorize such extradition; that there needs to be something else.  Hence the issue.  The petitioner here says that the U.S. authorizing statute -- which post-dated both the treaty as well as the Supreme Court's holding -- is unconstitutional, since it wasn't approved by the Senate in the manner required by a treaty.  Not a frivolous argument.  But one that the majority, like most courts, rejects.

So the 62-year old U.S. citizen here gets sent to the Czech Republic to serve a four-year sentence for a not extraordinarily serious property crime (attempted economic extortion).  Which isn't awesome.  Though if you don't want to serve time in a Czech prison, maybe don't go to that country and commit a crime there.


Friday, May 31, 2019

Longview Int'l v. Stirling (Cal. Ct. App. - May 31, 2019)

Who says you can't cogently and comprehensively resolve a civil appeal in less than five and a half double-spaced pages?!  Justice Grover can.

Thursday, May 30, 2019

In Re Southern California Gas Leak Cases (Cal. Supreme Ct. - May 30, 2019)

The California Supreme Court has been -- and, occasionally, still is -- at the forefront of modern torts jurisprudence.

But there's a reason why today's opinion is unanimous.  And doesn't expand tort liability one iota.

I wanted to quote from one or two paragraphs of Justice Cuellar's opinion to identify just why the Court doesn't allow businesses who were clearly damaged by the Southern California gas leaks -- but that nonetheless did not suffer actual "personal injury" or "property damage" -- to sue for the profits they undeniably lost from the thing.  The problem is that every single paragraph is just so darn good, it's hard to isolate just one or two.  So I'm going to make you read the whole shebang.

It's a folky, policy-centered, articulate, awesomely crafted decision.  Beautiful, really.

Were I able to write a tenth as well, I'd be a happy man. 

U.S. v. Graves (9th Cir. - May 30, 2019)

There's little doubt that the Ninth Circuit gets this one right as a matter of legal doctrine.  The district court thought that a life sentence was mandatory given the defendant's prior offenses, but that's not in fact true.  So a remand's required.

The government says -- accurately -- that the district court would have sentenced the defendant to a life sentence anyway.  Which we know because the district court expressly said so.

But the Ninth Circuit's response is spot on.   "Because the district court had already concluded that Graves was subject to a mandatory life sentence, he did not submit to a presentence interview or file a sentencing memorandum in an effort to obtain a lesser sentence because that effort would have been futile."  So, yep, a remand is the appropriate response.

Now, will Judge Sabraw give the defendant a life sentence once the case gets back to him?  I'm quite confident he will.  (At least if the recently-passed First Step Act doesn't apply.)

But going through the motions is an important part of the process.  Particularly when you're making someone spend the rest of his life in prison.

Tuesday, May 28, 2019

Jozefowicz v. Allstate Ins. Co. (Cal. Ct. App. - May 28, 2019)

There are a plethora of legal subjects about which I know a lot.  The law of negotiable instruments is not one of them.  Do I write (and cash) checks?  Sure.  Do I actually know the rules about them?  Not really.  Not in any legal sense, anyway.

But today's opinion sheds some light on the topic.  I did not know, for example, that you could file an independent action against someone who wrote you a check if you end of losing the check (at least in California).  That's super helpful to know.  If only because I'm  confident that I've lost checks before, and will lose them again.  Sure, if they're nice, the person who wrote the check will probably send you a replacement.  But not everyone is nice.

There are more details about this particular statutory provision in the opinion.  Details that include why the recipient of the check here doesn't end up getting paid.

But for your prototypical "lost check," fear not.  You can get it back.

Good to know.

Thursday, May 23, 2019

People v. Astorga-Lider (Cal. Ct. App. - May 22, 2019)

I'm glad there are cases (and procedures) like this one.

Criminal Defendant fraudulently gets Victim to sign various mortgage documents by pretending that they're something else, and funnels the money to herself.  She steals several million dollars that way.  She ultimately pleads guilty and is sentenced to 11 years is prison.

There's a rule that says that, as part of a criminal proceeding, the trial court is allowed to declare false or forged documents to be precisely that.  Thankfully.  So the trial court does so.  But the adversely affected lender (Deo) appeals, saying that you can't do that in a criminal case -- that it's a civil matter (and that the civil rule is different).

But it seems to me that you can indeed short circuit things when you've already resolved the relevant criminal case.  I'm not entirely sure I'm super excited about affecting third party rights through such a procedure (like here).  But it seems at least tolerable.  And if we already know that someone's been criminally tricked into signing a document, more than likely, it seems like you're entitled to get out of the thing.

Without having to go through a year or two of expensive litigation.

People v. Erskine (Cal. Supreme Ct. - May 23, 2019)

It's a case from San Diego, and involves two boys -- nine-year old Jonathan, and his brother, thirteen-year old Charles -- who went out on a bike ride and never returned.  So it touches a fair piece close to home for me.  Their killer was Scott Erskine.  He's sentenced to death.  And the California Supreme Court unanimously affirms.

It's not hard to see why.  When you read all the things that Mr. Erskine has done, it's hard to think of a more fitting candidate for the death penalty.  This is not one of those cases where you wonder why this particular person was sentenced to death but others with similar crimes are spared that fate.

I know that Mr. Erskine will almost certainly not in fact be executed by the state.  But you definitely see why that was his sentence.  And why many would prefer that it be carried out.

Wednesday, May 22, 2019

Shalabi v. Fontana (Cal. Ct. App. - May 22, 2019)

Rarely do you see the Court of Appeal refuse to following a controlling decision from the California Supreme Court that's directly on point and that has no intervening precedent to undercut it.

Yet it happens today.

Sure, the Court of Appeal doesn't expressly say it's refusing to follow controlling precedent.  But trust me.  That's exactly what it's doing.

Don't get me wrong.  I totally understand why the Court of Appeal is doing what it does.  Because the California Supreme Court;s holding was definitely wrong.  So I get why you'd want to ignore it.

Still.  We do have thing thing called vertical precedent.  So it's pretty bold to do what the Court of Appeal does today.

The issue is whether the statute of limitations has expired.  It's a lawsuit brought by someone who was a minor at the time of the incident, so that statute only starts running on his 18th birthday.  He turned 18 on December 3, 2011.  He filed suit exactly two years later, on December 3, 2013.  Is that timely?  (The statute of limitations for this action is two years.)

The Court of Appeal says:  Yes.  You've got two years, and you filed on the last day.  You're good to go.

Which, on the merits, is right.

With one small problem.

There's a California Supreme Court case in 1884 that squarely says exactly the opposite.  On identical facts.  Seriously.  The minor there turned 21 (the relevant age at the time) on April 11, 1876, and filed suit exactly five years (the relevant limitations period) later, on April 11, 1881.  You can't get more on all fours than that.  Yet the California Supreme Court held -- unanimously, no less -- that the suit was time-barred.  On the theory -- expressed concisely, in a single paragraph -- that since the minor was no longer a minor "on the first minute" of his birthday, filing on his birthday (presumably after 12:01 a.m.) was outside the limitations period.

Just like in today's case.

There's no way to get around that 1884 opinion.  (It's Ganal v. Soher, but I can't find a publicly available link; sorry).  It's the same case.  If it's right, today's opinion by the Court of Appeal is wrong.

The Court of Appeal has an answer, of course.  It says that the relevant principle -- and it's right on this -- comes from Section 12 of the California Civil Procedure Code, which says that in calculating time, you exclude the first day, but include the last.  Which makes filing on the exact day of your birthday timely.

True.  That's indeed what it says.

But Section 12 has existed, unchanged, since 1872.  The same was true in 1884.  Yet that case came out the other way.  Both cases cannot be right.  They cannot be reconciled.

The Court of Appeal insists that since the 1884 case didn't expressly talk about Section 12, it's okay to ignore it, since cases don't stand for propositions they don't discuss.  But that seems fairly weak tea to me, at least for cases that (like here) are squarely on all fours, and on identical facts.  I mean, it's also true that the plaintiff's first name in the 1884 case was Henry, whereas the plaintiff's first name here is Luis.  Distinction without a difference.  Cases that are irreconcilable remain so.

Indeed, if you were desperate to distinguish the two cases, there seems to me a better way to go than the way the Court of Appeal went anyway.  In the 1884 case, there was an express statute (Section 26 of the Civil Code) that said that you calculate dates "from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority."  But it appears that this statue was repealed by the Legislature in 1993.  So if you're really desperate to say that relevant authority has changed, I might be inclined to rely on that -- since the 1884 holding was indeed expressly based on that statute, so it's repeal seems fairly relevant.  And stronger, IMHO, than saying that you can ignore an on-point holding of the California Supreme Court because they forgot to mention a statute (Section 12) that existed both then and now.

But, again, I'm sympathetic.  The Court of Appeal is right.  This case is not, in fact, time-barred.  Just as the case in 1884 was not, in fact, time-barred.  Regardless of what the California Supreme Court said back then.

It's just that the Court of Appeal isn't technically allowed to say so.  Precedent and all.

In the end, here's what should happen.  The California Supreme Court should grant review in this case.  On it's own or otherwise.  And, in a quick, short, super easy opinion, overrule the 1884 case.  Wrong then, wrong now.  For the exact reasons the Court of Appeal articulates.

'Cause the California Supreme Court can do that.

And should.

Perez v. City of Roseville (9th Cir. - May 21, 2019)

In February 2018, Judge Reinhardt authors a majority opinion that reverses the district court's grant of summary judgment.  There's no dissent; Judge Tashima concurs in the result.

A judge on the Ninth Circuit calls for en banc review.  Judge Reinhardt then dies.  Judge Ikuta is drawn to replace him.

With its new member, the newly constituted panel completely reverses course, and affirms the grant of summary judgment.  The original member of the majority opinion (alongside Judge Reinhardt) dissents, saying not only that the original opinion was correct, but arguing that once an en banc call is made, only the en banc court should reverse the panel's opinion -- that it's unseemly that a judge's death should change things.  (Parenthetically, Judge Tashima never explains what made him change his mind from the original opinion, in which he concurred in the result, but now reaches an opposite conclusion.)

We'll see if the Ninth Circuit wants to take this en banc.  I suspect they'll be at least several votes to do so.

Monday, May 20, 2019

Murray v. BEJ Minerals (9th Cir. - May 20, 2019)

I discussed last year the Ninth Circuit's opinion about whether dinosaur fossils are "minerals" under relevant legal principles.  The Ninth Circuit took the case en banc, and today, it decides to let the Montana Supreme Court resolve the issue.

The fossils have been there for a while.  Resolving their ownership will take a little bit longer than anticipated.

Paxton v. Board of Administration (Cal. Ct. App. - May 20, 2019)

Government work is tough:

"The Department of Social Services is the state agency responsible for determining, through its Disability Determination Service Division, the medical eligibility of disabled Californians who are seeking federal Social Security benefits or state Medi-Cal benefits. Paxton is a medical consultant-psychiatrist who reviews claims for the federal program. . . . These consultants are expected to be at work for “core hours,” which are 9:00 a.m. to 11:30 a.m. and 1:30 p.m. to 2:30 p.m., and to average 40 hours per week, but otherwise they have flexibility in deciding when they work.

The Department of Social Services has suffered from periodic backlogs of disability review cases in the federal program. In 1993, the Department of Social Services received an exemption from the Department of Personnel Administration1 to temporarily pay overtime to consultants to deal with the pending cases even though they are salaried employees and such payments are inconsistent with the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). The Department of Personnel Administration granted the temporary exemption with the expectation that the Department of Social Services would adopt an alternative to paying overtime.

In 1996, after a second request for an exemption was denied, the Department of Social Services proposed requiring consultants to work extra hours without compensation due to the extra workload and their classification as professional employees exempt from overtime and for whom “[t]he regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position.” The union representing the consultants rejected this proposal “out of hand.” The Department of Social Services and the union thereafter agreed to a voluntary bonus program “for processing additional workload.” Under the bonus program, consultants would be paid for each case closed above a certain threshold per week. . . .

Paxton participated in the bonus program from 2005 until it ended. During that period, consultants were paid $27 per case after 90 cases per week. The trial court found that “[t]he 90-case threshold was not hard to exceed in part because the threshold never was adjusted to account for increased efficiencies occasioned by computerization of the records and use of more experienced analysts.” Paxton and two retired consultants testified that they did not work more than 40 hours per week. Paxton was able to earn significant bonuses by spending an average of only five minutes to review a case.2 At this rate, he surpassed the weekly threshold for achieving a bonus in about a day and a half. As a result, he earned over $1.2 million in bonuses. In 2010, a particularly lucrative year, his monthly bonuses ranged from $16,821 to $39,501, more than three times his monthly salary. Paxton still works for the Department of Social Services."

Thursday, May 16, 2019

Columbo v. Kinkle, Rodiger & Spriggs (Cal. Ct. App. - May 16, 2019)

Sometimes, to briefly state the facts of the case is sufficient itself to state the appropriate holding:

"A vexatious litigant’s request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. This court denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the current action was filed."

Yep.  That's enough to know how this one should (and does) come out.

"As a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to one bite at the apple. But this vexatious litigant refuses to stop biting. We conclude the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore, we affirm the judgment."

Wednesday, May 15, 2019

County of Los Angeles v. Hoa (Cal. Ct. App. - May 15, 2019)

"Beginning in 2010, and as a result of a serious medical condition, Hoa took a number of extended medical leaves from work. In early 2013, Hoa believed, and her doctor reported, she was able to return to work with workplace accommodations. When Hoa reported for work, however, the County did not allow her to work. Instead, under Rule 9.07B, the County required Hoa to submit to a medical reevaluation, which she did in May 2013. . . .

A County clinical psychologist with Occupational Health Programs conducted the medical reevaluation. The psychologist determined Hoa suffered from a “chronic and persistent psychological condition” that had “caused her to miss an extraordinary amount of time from work over the past several years.” The psychologist also reported that, when at work and “despite numerous accommodations that the department has made (such as assigning [Hoa] only a small fraction of the caseload that other co-workers carry), [Hoa’s] performance has been unsatisfactory and punctuated by complaints from participants.” As a result of the May 2013 medical reevaluation, Occupational Health Programs determined “Hoa’s psychological condition impairs her ability to think clearly or carry-through with an activity. From a practical standpoint, she is unable to effectively interact with others or in situations that require her to perform even the most rudimentary tasks. Due to the severity of her illness, Ms. Hoa is unable to perform any of the essential job duties of her current, or any other, position presently and in the foreseeable future.”"

Thus began a series of hearings, motions and litigation that progressed for another six years, ending only today, when the Court of Appeal reverses the decision below and holds Ms. Hoa not entitled to any relief.

The public sector is often quite different than the private sector. 

Tuesday, May 14, 2019

County of Orange v. Seneca Ins. Co. (Cal. Ct. App. - May 14, 2019)

I'm glad the Court of Appeal published this opinion.  Not just because it's correct on the merits, as it surely is.  But because it implicitly publicizes a limitation on the enforcement of certain judgments that seems bizarre to me, and that I think the Legislature should abrogate.

A surety posts a bond for a criminal defendant, and the guy doesn't show.  So the bondsman is liable on the bond, and is ordered to pay the $100,000 bond.  The bondsman doesn't.  Simply doesn't pay.

Which, ordinarily, would lead to rapid enforcement action, etc.  But, here, for whatever reason, the County of Orange doesn't seem to be particularly worried.  Years go by with no attempt to force the surety to pay.

Here's the crazy (to me) thing:  Apparently there's a statute (Section 1306) that says that you can't enforce a judgment on a bond after two years.  (“The right to enforce a summary judgment entered against a bondsman pursuant to this section shall expire two years after the entry of the judgment.”)  Which just seems to me a crazy short period.  For a regular civil judgment, you've got like 10 years to enforce it.  Why the government should have a shorter time period -- for a debt arising in a criminal case, no less, with its corresponding public policy implications -- is simply beyond me.

Maybe there's a secret reason behind Section 1306 that I can't presently fathom.  But unless someone persuades me otherwise, were I a member of the Legislature, I'd almost definitely vote to amend Section 1306 to extend the time limit of two years to, like, ten.  (Unless, of course, the various sureties and their lobbyists paid me a substantial bribe; err, I mean, contributed to my campaign.)

Ultimately, here, the Court of Appeal enforces a different statue, which states -- totally reasonably, IMHO -- that if a surety has an unpaid judgment against it, it can't be a surety in the interim.  Totally fair.

But in the perfect (or at least better) world, the surety would be precluded from writing new bonds and have to pay the $100,000 it owes.  Rather than just change its name, get a new license, and then go back to writing bonds that it has no intention of ever paying.

Hopefully someone in the Legislature will eventually pick up on this.

Monday, May 13, 2019

Front Line Motor Cars v. Webb (Cal. Ct. App. - May 13, 2019)

It's too bad that the DMV can't do more to punish the used car dealer -- Front Line Motors -- in this case.  But at least it conditionally revoked the dealer's license for two years, and the Court of Appeal affirms.

It's the kind of used car dealer you love to hate.  The facts:

"Twyla Davis purchased a car from Dealer. At Dealer’s office, Davis applied for financing from First Credit Finance (Financier). Davis paid a $2,000 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500 two weeks later. One week after Davis signed the contract, Dealer told her she was to return the car because financing had been denied. Three or four days after hearing from Dealer, and on the same day she received the declination letter from Financier, Dealer repossessed the car. Davis asked Dealer to refund her down payment. Dealer refused, telling Davis she would have to sue Dealer in court for the money.

Zaneicesha Phillips paid Dealer a $3,800 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500. She had constant mechanical trouble with the car and tried to return it, but Dealer refused, saying the deal was “finalized.” After the car was repossessed and Dealer’s manager told Phillips the loan was denied, Phillips requested a refund of her down payment. The manager “laughed and said, ‘No way, . . . your loss . . . take us to court.’”

As you can probably imagine, the people whose down payments were wrongfully retained were not individuals with money to burn.  They're vulnerable people buying used cars.  To laugh at them as you take their down payment adds insult to injury.

As the Court of Appeal says:  "Here, Dealer’s conduct confirms our worst stereotype of used car salesmen. Unabashedly, Dealer repossessed the cars in question, resold the vehicles to new buyers, retained Davis’ and Phillips’ entire down payments despite the women’s entreaties for the money’s return, and challenged the women to sue it in court."

Here's hoping that entities like Front Line Motors go out of business permanently.



Thursday, May 09, 2019

In re H.D. (Cal. Ct. App. - May 8, 2019)

Maybe.

The little kids want to be with stepmom, who's taking care of them now, but biological mother ("Mother") wants them too. Mother lost the kids when she was addicted to meth, at which point Father got custody.

What to do?

The dispositive factual question is whether Mother ever "abandoned" the kids.  The trial court thought she did.  Over a year ago, she tried to talk to the kids, but she was addicted then, and Father didn't let her.  So then Mother tries to get clean, and for over a year, doesn't talk to the kids, doesn't reach out to the kids, doesn't pay child support, etc.

The trial court thinks that's abandonment.

The Court of Appeal reverses.

You can see where the Court of Appeal's coming from.  It's harsh (and counterproductive) to say that a parent "abandons" their kids just because they're in treatment.  We don't want that.  We want parents to get clean.

So the Court of Appeal says that's reasonable, and wasn't "abandoning" the kids.

But I can also see why the trial court might have come out the other way.  It's not like Mother was in an inpatient facility for an entire year.  During the year and a half she had no contact with the kids, she was in residential treatment for a sum total of 30 days.

Yes, she did six months of sober living after that, then another six months of outpatient treatment.  But it's not like Mother was incapable of at least trying to contact her kids during that period.  You can still write letters, or make telephone calls, or send a $5 bill on a kid's birthday even when you're living in a sober living home, or doing the occasional outpatient therapy.  You've got an entire life to live.  Sure, you may be primarily focused on staying sober.  But that doesn't mean that you can just ignore your kids, or that it's impossible to (at least try to) reach out.  Particularly if it's true that you are in fact clean and sober during this entire year.

Now, it'd be one thing if Mother was laser-focused on sobriety during this entire year-long period.  I could see a court saying that if you're really spending every waking moment on sobriety, that doesn't mean you're ditching your kids during this period.

But during this year-long period, Mother meets a guy, gets engaged, and gets pregnant.  So clearly she's spending some time not focusing exclusively on sobriety, and instead on developing and nurturing human relationships.  If you've got time to spend on a new guy -- no small interpersonal task -- you've got time to spend on your kids, no?

Or at least I could imagine a trial court rationally seeing it that way.  Having actually seen and evaluated the participants in this process and their veracity, as opposed to merely viewing a cold appellate record.

So this may be one of those cases where the standard of review might actually matter.  I could see a trial court saying, you know what, sure, she could have reached out to the kids during that year and a half, and, yeah, she was doing a lot of outside things apart from merely staying sober, but I still think she always thought about the kids and planned on getting back with them.

But I could also see a trial court concluding otherwise; that during that 18-month period, she simply didn't care about her existing kids, and was more focused on herself and her new relationship and did nothing at all -- deliberately -- with respect to those children, thereby abandoning them.  At which point we're free to give the kids to their Father and the parents to which they've grown accustomed and consider their family.

But the Court of Appeal thinks there's only one conclusion to be drawn from the undisputed facts.

As I started out:  Maybe.

Maybe not.

Wednesday, May 08, 2019

Cedar Point Nursery v. Shiroma (9th Cir. - May 8, 2019)

Judge Paez's majority opinion today is spot on.

In California, a union can potentially get access to seasonal agricultural workers (e.g., to try to unionize them) by giving notice to the employer that they want to go on the field for an hour before work and/or an hour after work to talk with the workers.  The theory behind this rule is that it's often hard to otherwise gain access to these employees, who (necessarily) often work in different fields on different days, etc.

The plaintiffs in this case are employer/landowners who claim that this California regulation is an unconstitutional per se taking.  On the theory that it's authorizes an express trespass on their land.  So, they say, they're entitled to compensation.

I'm somewhat sympathetic to this position, at least as a purely legal matter.  It is, after all, a trespass, and it's definitely their land.  Just as I wouldn't want a stranger coming on my land, I can get why an employer doesn't necessarily want strangers coming on theirs.  The right to exclude being a huge part of the relevant bundle of sticks, as it were.

But here's the thing:

Plaintiffs bring a claim for a per se taking.  That's a big deal.  Only particular types of things are per se takings.  The first is “where government requires an owner to suffer a permanent physical invasion of her property--however minor."  But the regulation at issue definitely isn't a permanent physical invasion of property.  It's limited in time (an hour before and after work) as well as frequency (four times a year).  Clearly that's not a permanent physical invasion.  The other type of per se taking is when a governmental act “completely deprives an owner of ‘all economically beneficial us[e]’ of her property.”  That too is obviously inapplicable here, since the landowner can (and does) still use the property to productively farm notwithstanding the temporary intrusion.

Everything else may potentially be a "regulatory taking" that's subject to mandatory compensation, but it's governed by a different legal test.  It's not per se.  And plaintiffs make it crystal clear that they are only interested in bringing a per se claim, and refuse to amend their complaint to allege anything less.

Okay.  So be it.  Maybe there's a regulatory takings claim.  Though, on that test, the limited nature of the intrusion -- and the public interest in favor of it -- maybe not.  But if that claim -- the one that may perhaps have legal merit -- isn't one that the plaintiffs are interested in bringing, then this case should be resolved exactly as Judge Paez does.  Notwithstanding Judge Leavy's dissent to the contrary.

IMHO.

Monday, May 06, 2019

FilmOn.com v. DoubleVerify, Inc. (Cal. Supreme Ct. - May 6, 2019)

This is one of those (rare) days in which there's stuff from the appellate judiciary in California but not much exciting stuff.  Or at least not much that's particularly exciting to talk about.  We'll see if the Court of Appeal publishes something this afternoon that's the exception to today's rule.

In the meantime, at a minimum, this opinion from the California Supreme Court is worth at least knowing about.  It's an anti-SLAPP appeal that holds that you can consider the "context" of the underlying speech -- e.g., that it's commercial speech -- in deciding whether it qualifies as "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” under the "residual" anti-SLAPP provision in Section 425.16(e)(4).

That doesn't mean that no commercial speech is covered.  But in "evaluating" whether subsection (e)(4) applies, the California Supreme Court basically says that you can look at everything.  Everything. So go ahead and do so.

A narrow but nonetheless important part of California's evolving anti-SLAPP jurisprudence.

Friday, May 03, 2019

People v. Salcido (Cal. Ct. App. - May 3, 2019)

When you're reviewing a conviction for sufficiency of the evidence, the deference given to the factual findings below is fairly significant.  For that reason, on the merits, I'm not sure that this opinion is wrong.

The language (and approach) that Justice Ramirez employs nonetheless seems a little bit strong.

It's an unsophisticated defendant, Sara Salcido, who's acting as an "immigration consultant" even though a formal immigration consultant has to jump through various hoops to be licensed.  Ms. Salcido is "helping" immigrants get green cards, etc., except that at least in several cases, it appears that she's simply taking their money and not doing much actual work (e.g., not filing the relevant papers).  So the state charges her not only with the relevant crime of "unlawfully engaging in the business of an immigration consultant, a misdemeanor," but also with grand theft -- a much bigger deal.

Fair enough.  She's arguably guilty of those offenses, and the trial court so found.

But one of the big sticking points of those offenses is that the government had to prove that Ms. Salcido had fraudulent intent.  Here's what Justice Ramirez says about that:

"The trial court could also reasonably find fraudulent intent. . . . At the preliminary hearing, she testified: “Q. . . . [Y]ou’re aware that the State of California requires you to pass a background check, right? “A. I didn’t know about that until 2015. “Q. And you’re aware that you’re also required to have a $100,000 bond on file; correct? [¶] . . . “[A.] Yes, I read about that. “Q. . . . You did know that? “A. Yes.” Because she carefully specified when she learned about the background check requirement, but she did not specify when she learned about the bond requirement, it is fairly inferable that she knew about the bond requirement at all relevant times."

Respectfully, that's not the inference (at all) that I would draw from that testimony.  Nor is it how normal people talk -- or what they mean -- when they say what Ms. Salcido says.

They asked her if she knew about the background check, and she said that she knew about it now, sure (she had, after all, been criminally charged with it by that point), but volunteered that this was something she had just learned, and didn't know about it until 2015.  They then immediately asked her about the closely bond related requirement, and she she said that she "read about that" as well.  But didn't at that point spontaneously re-volunteer the words that she had just said -- that this was something she had read about now, but didn't know before 2015.

You could draw the inference that because she didn't restate the same thing that she had just stated seconds ago, she was deliberately drawing a distinction between the two.  But I don't think that's how normal people talk -- much less what Ms. Salcido actually meant.  She made the point that, yes, she knew about the relevant rules now, but said she didn't know about them before.  Then she was asked about a different (related) rule, and she said, yeah, again, she's "read about that," just like she read about the background check thing.  I think it's plausible -- indeed, likely -- what what she meant was to say that, yes, she read about that, just like she read about the other thing, but not until recently.  I don't think she meant to admit -- as the Court of Appeal basically holds -- that she at all times knew about the bond (but not the background check), and hence was confessing her guilt.  I think she just didn't feel the need to repeat the same point that she had volunteered just a second or two previously.

Nor did the prosecutor bother to ask her:  "So, you say you didn't know about the background check until 2015, but you admit that you knew about the bond requirement before then, right?"  For good reason.  Since I'm fairly positive that Ms. Salcido would have said:  "No, I learned about both of them at the same time, when I read about them in 2015.  That's what I meant."

To me, it might be a permissible inference -- one that a skeptical factfinder that disbelieved Ms. Salcido might well come to -- that she knew about the one requirement (or both) before 2015.  But I don't think that, as Justice Ramirez says, that Ms. Salcido's claim "at trial . . . that she did not learn that she needed a bond until September or November 2013" was "contradicted" by her testimony about the background check.  Seems to me like she was just speaking loosely.

Like normal people often do.  Particularly when they're under stress; e.g., at their preliminary hearings.

Wednesday, May 01, 2019

People v. Bolding (Cal. Ct. App. - May 1, 2019)

Today's opinion makes me wonder if the defendants charged in the college admissions scandal might eventually have a state law problem as well.

The existing defendants have all been charged with federal crimes, in federal court.  But -- at least currently -- double jeopardy doesn't bar California (or other states) from charging them with state crimes as well.

Many of the existing defendants have recently been charged with additional counts of money laundering -- an offense that carries substantially additional jail time.  And "money laundering" includes a ton of stuff that you wouldn't ordinarily think at all counted as money laundering, so it's likely that the defendants are in fact guilty of those offenses.

Today's case isn't one of the college admissions cases.  But the Court of Appeal today makes state law money laundering cases even easier to prosecute than similar federal law cases, holding that Ninth Circuit precedent that requires "tracing" doesn't apply in California (and thereby disagreeing with a prior Court of Appeal opinion to the contrary).

More bad news if you paid a lot of money to get your kid admitted to a college by pretending that s/he was an athlete.

Tuesday, April 30, 2019

People v. Morrison (Cal. Ct. App. - April 30, 2019)

The question is whether Mr. Morrison stays in detention for additional periods.  But common sense dictates that it's not really a question:

"Morrison had been convicted of kidnapping and raping a fourteen-year-old girl, and forcing her to orally copulate him. While in prison for those crimes, Morrison repeatedly engaged in sexual misconduct and threatening sexualized behavior toward female prison medical professionals. He also admitted he had uncontrollable urges and was likely to rape again if released. . . . Morrison had repeatedly exposed himself to and masturbated in front of female medical professionals, and engaged in other threatening sexual behavior . . . . Morrison confided to a psychologist that, if released, he would rape again."

Yeah.  You're going to be continuously detained as an SVP given those facts.

The only surprising thing is that at least one expert came to the conclusion that Mr. Morrison was not an SVP.  But for the Court of Appeal, that doesn't matter.  It'd be "absurd" to let him out at this stage.

Monday, April 29, 2019

People v. Sanchez (Cal. Supreme Ct. - April 29, 2019)

Two juries are hopelessly deadlocked in deciding whether the defendant is in fact guilty of the crime.  A third jury convicts, and sentences the defendant to death.

The California Supreme Court unanimously affirms.

Friday, April 26, 2019

Tanimura & Antle Fresh Foods v. Salinas Union High School Dist. (Cal. Ct. App. - April 26, 2019)

I'm very sympathetic to the plaintiff in this case.  It's developing a 100-unit housing complex in the Salinas Valley that's designed to house seasonal agricultural workers during the seven-month growing season.  The thing's basically a dorm; two-bedroom units that house between two and four workers each.  Everyone agrees that the only people in the units are going to be the workers themselves; any kids of these workers basically get left at the worker's regular home with the other parent, or (if both parents work during the season) left with friends or relatives.  So basically:  No kids.  None.

But the Salinas Union High School District  nonetheless imposes a fee of $3 a square foot on new residential developments.  Of which this is definitely one.  The theory being -- and, in most cases, this makes total sense -- that new residential development brings new kids, and those kids gotta go to school, so there's "rough proportionality" between the fee and the development.  Which is what the Takings Clause (as well as California law) requires.

But the developer says:  "It's not right to make me pay that $294,000 fee, because my particular development won't have any kids."  So no impact on schools.  And there's legions of evidence that, with respect to this issue, the developer's totally right.  So you're basically making it pay a fee for reasons that fairly clearly don't apply.

And that seems unfair.

The Court of Appeal nonetheless ultimately upholds the fee.  Holding that, basically, there's still  rough proportionality because it's indisputably a residential development, and that it be too hard (and there's no requirement to) look at the particular details of each and every development to see what type of an impact each one would have.  And I get it.  There's senior housing.  There are houses with more bedrooms and fewer bedrooms.  It'd be a pain to have to say "Well, we think that X number of kids are in each one," so maybe just having a basic flat rate is fine.  Even if, in particular cases, it's pretty clear that such a rate vastly overstates the particular impact of this development.  It's evenly applied, and it balances out at the end; e.g., it may be too low for, say, apartments with 4 bedrooms, which are likely to have a lot of kids, but it's nonetheless roughly accurate for everyone.  Roughly.

But still.  I feel bad for a developer who has to pay a big fee when we know for a fact that there's absolutely zero impact of the development on the services relevant to that fee.  So part of me might even be willing to create an exception for such very, very limited set of facts.  Maybe.

But ultimately I read one line -- about thirty pages into the opinion -- that made me think, well, okay, it's not perfect, but in the end, I'm okay with the fee in this case.

The reality is that, almost certainly, there will never be actual kids in the dorms.  The Court of Appeal talks about planning restricts and deeds and regulations and the like, but in the end, I'm okay with the assumption that no kids are actually there.

But, nonetheless, this line made sense to me:  "[I]t is also possible that children accompany a parent or parents for the seven-month season, and whether placed with local friends, relatives, or elsewhere, those children enroll in school."

Yeah.  That seems possible.  I'm sure lots of the kids are left at the worker's regular home.  And, yeah, for the others, I'll assume they're not allowed in the actual dorm.  But it's seven months.  Particularly if both parents are working far from home, it might well be that the parents take the kids with them and place them locally.  Not in the dorms.  But nonetheless locally in Salinas Valley.  Which in turn would have an impact on schools.  Making imposition of the fee legitimate.

So I was worried about the stark inequity of a $300,000 fee at the beginning.  But in the end, I'm okay with it.

It's not perfect.  But it's okay.  No manifest injustice.

Thursday, April 25, 2019

People v. Martinez (Cal. Ct. App. - April 24, 2019)

Here's an example of a "He said, she said" rape case in which guilt seems fairly easily established beyond a reasonable doubt.

People v. Mazumder (Cal. Ct. App. - April 24, 2019)

Justice Goethals is right in this one.  For reasons even beyond the ones he expresses.

Admittedly, Justice Moore's majority opinion makes a ton of sense.  The petitioner pled guilty.  So how can he possibly later file a petition claiming that he was factually innocent of the offense?!  The Court of Appeal holds that he can't.

That pretty much naturally follows, right?

But it's wrong.

The Court of Appeal bases its holding principally on the words of the statute.  It says: "There are three classes of persons who may petition the court for a finding of factual innocence. (§ 851.8, subds. (a)(c)(d) & (e).) 'Those classes are: (1) persons who have been arrested but no accusatory pleading has yet been filed [subd. (a)]; (2) persons who have been arrested and an accusatory pleading has been filed but no conviction has occurred [subds. (c) & (d)]; and (3) persons who are ‘acquitted of a charge and it appears to the judge presiding at trial . . . that the defendant was factually innocent’ [subd. (e)].'"

You see where the majority is coming from here.  The first group doesn't apply to guilty pleas since an accusatory pleading was filed.  The third doesn't apply because the guy wasn't acquitted; he pleaded guilty. And the second only applies when "no conviction has occurred," and with a guilty plead, a conviction has occurred.

So there you have it.  You can't petition.  As a matter of law.

But that's actually not right.  At least in situations like this one.

Because, yes, the guy here pleaded guilty.  But he then moved under Penal Code 1203.4 to vacate his conviction.  Successfully.  So there's no more conviction.

Now, the Court of Appeal understandably says:  "Well, maybe there's a dismissal, but there was still that initial conviction.  He just completed probation successfully, and the Legislature decided to grant him (essentially) clemency under Section 1203.4.  You can still use that conviction for a variety of things."

True.  But we're talking about the words of the statute here.  And the words of Section 1203.4 are crystal clear:  When you successfully file such a petition, you are thereby "permitted by the court to withdraw his or her plead of guilty . . . and enter a plea of not guilty . . . and [have the court] dismiss the accusations or information against the defendant."  So you accordingly don't have a plea of guilty any more.  That's expressly what the statute says.

Which means that you're now in the second group of people who are permitted to file a petition for a finding of factual innocence.  Because, at this point, "no conviction has occurred."

One might respond -- not unreasonably -- that a conviction nonetheless had "occurred" in the past, ostensibly making a Section 851.8 factual innocence petition unavailable.  But such an argument is foreclosed by precedent.  The Court of Appeal held in Laiwala (cited in the majority opinion here) that someone who was convicted at trial but whose conviction was reversed on appeal was permitted to file a factual innocence petition.  And, yes, that's a slightly different case that the on at issue here.  But that holding nonetheless precludes an interpretation of Section 851.8 as barring anyone who had ever been found guilty from filing an innocence petition.  Because such an interpretation would have barred the defendant in that case as well.

What matters is instead whether they currently have a conviction.  And, on that point, the defendant in Laiwala and the defendant here are similarly situated.  That guy had a conviction but on appeal it was vacated.  This guy had a conviction but under Section 1203.4 he was permitted to withdraw his guilty plea and enter a not guilty plea and have the thing dismissed.  Same deal.

Don't get me wrong.  I'm entirely confident that most people who have pleaded guilty will in fact not be able to successfully petition for factual innocence.  Particularly given the fact they previously admitted the offense.  Given that admission, it's going to be incredibly rare for a trial court to find that the guy was in fact factually innocent.  Much less to make such a finding by clear and convincing evidence such that there's essentially no doubt about it.

But the point is that they're allowed to try, and there's no categorical bar to such relief.  Contrary to what the Court of Appeal holds in this opinion.

Nor do I think that such a result is absurd.  Indeed, the contrary seems far more problematic.  Take, for example, a guy who pleads guilty because the police viciously beat him every single day -- and, for good measure, let's say there's video proof that someone had a gun to his mother's head on the day the guy pleaded guilty, with the defendant having to falsely "take the rap" for the underlying crime lest his mother be killed.  Five years later, all this comes out, and the guy is allowed to withdraw his guilty plea and the charges are dismissed.

Under the Court of Appeal's ruling, that guy -- that innocent guy -- can't file a petition to be declared factually innocent.  Because he did, after all, plead guilty, so "none of the three categories" in Section 851.8 apply.  That seems obviously wrong to me.  So too here.

Again:  Unlike the "gun to the head" defendant, in your run-of-the-mill Section 1203.4 case, the fact that the guy previously pleaded guilty will almost certainly stop him from prevailing on the merits of his Section 851.8 petition.

But there's no categorical bar.  He's still eligible.  And if it's that rare case in which he originally pleaded guilty, but he's in fact factually innocent, then he's entitled to -- and should -- obtain relief.

Notwithstanding this opinion to the contrary.