Monday, August 29, 2016

Akina v. State of Hawaii (9th Cir. - Aug. 29, 2016)

I like a ton of things about Hawaii.  But here's a case that I'm more than glad to get rid of.

The Ninth Circuit feels the same way.

FTC v. AT&T Mobility (9th Cir. - Aug. 29, 2016)

"In July 2011, AT&T decided to begin reducing the speed at which unlimited data plan users receive data on their smartphones. Under AT&T’s data throttling program, unlimited data plan customers are throttled for the remainder of a billing cycle once their data usage during that cycle exceeds a certain threshold. Although AT&T attempts to justify this program as necessary to prevent harm to the network, AT&T’s throttling program is not actually tethered to real-time network congestion. Instead, customers are subject to throttling even if AT&T’s network is capable of carrying the customers’ data. AT&T does not regularly throttle its tiered plan customers, no matter how much data those customers use."

Yet, as the Ninth Circuit holds today, there's nothing the FTC can do about AT&T's conduct.

Friday, August 26, 2016

Trader Joe's Co. v. Hallatt (9th Cir. - Aug. 26, 2016)

Here's a neat little trademark case from earlier today.

Michael Hallett lives in Washington state, buys a ton of products from Trader Joe's stores, drives 'em across the border to Canada, and then sells them (at a huge markup) in his own store -- called "Pirate Joe's" -- that has a nearly identical logo to Trader Joe's.  Trader Joe's isn't psyched about that, tries to stop Mr. Hallett from shopping at its stores, but Mr. Hallett uses disguises and other means to keep buying Trader Joe's products and supplying his own "Pirate Joe's" stores.

So Trader Joe's sues, claiming that Mr. Hallett is infringing its trademark.

The question here is whether U.S. trademark laws apply to Mr. Hallett's activities, a ton of which are in Canada.

The Ninth Circuit says that they do, reversing the district court's decision to the contrary.

So it's Traders 1, Pirates 0.

Oh, one more thing.

Judge Christen's opinion cites a particular Ninth Circuit case -- Reebok v. Marnatech, 972 F.2d 552 (9th Cir. 1992) -- around ten times or so.  That's not especially surprising, because Reebok involved a similar issue involving the extraterritorial reach of U.S. trademark laws over someone who allegedly sold counterfeit Reebok shoes over the border in Mexico.  I was particularly pleased to see that case cited so much if only because that opinion was authored by Judge Reinhardt during my clerkship with him.  So very, very long ago.  Yet I knew that case well.

So that was nice.  A blast from the past, as it were.

But my fond memories suddenly turned to horror on page 26 of Judge Christen's opinion.

In the middle of that page, Judge Christen includes a particular quote from Judge Reinhardt's prior Reebok opinion.  That quote reads:  "See Reebok, 970 F.2d at 557 (finding American court to be in a superior enforcement position vis-à-vis its Mexican counterparts because '[e]ach of the defendants, their principle places of business, and the vast majority of their assets are located in the United States'")."  (My emphasis added.)

No.  Please God, no.  Please don't tell me that when that opinion was drafted and published, it used the erroneous word "principle" for the term "principal place of business".  Yes, I fully understand that I am terrible at spelling, and grammar, and pretty much everything else remotely associated with the English language.  But if an opinion by Judge Reinhardt during my clerkship went out that made that mistake -- and I can assure you that it wouldn't have been Judge Reinhardt's mistake -- and then that mistake was reiterated yet again in other subsequent published opinions, I'd be embarrassed as well as horrified.  Please tell me it's not true.

So I went back to the original opinion and looked it up.


The Reebok opinion uses the words "principal" and "principle" an even dozen times.  And uses the right word every single time.  Today's opinion by Judge Christen quotes Judge Reinhardt as writing "principle places of business," but -- thankfully -- that's not what he actually wrote.  His opinion says "principal places of business."

And I let out a huge sigh of relief when I saw that.

Judge Christen can leave the opinion as it is if she wants, of course.  But she might want to do Judge Reinhardt a solid and edit the quote.

That way no one feels shame.

Thursday, August 25, 2016

Reyes v. Lynch (9th Cir. - Aug. 25, 2016)

I think this line from today's opinion by Judge Kleinfeld is even funnier when read in isolation.

He's describing the "normal" liberties that "regular" people have (as opposed to, say, people on probation).  He says:

"Those of us who have not been convicted of a crime are not required to attend Alcoholics Anonymous meetings or keep some probation office advised of our address, we may own firearms if we choose, and we can go to a restaurant even if we know that servers or other customers may be drug users."

Freedom!  That's pretty much a comprehensive list.

Parenthetically, maybe I have a somewhat distorted perspective on things because I live in California.  But I think you'd be hard pressed to find a restaurant -- any restaurant -- where it's not the case that "servers or other customers may be drug users."  At least low-level, joint-on-occasion types.

That's probably mostly true even if you look at only the servers in isolation.  But once you add the customers as well?  No brainer.

Wednesday, August 24, 2016

Randall v. Mousseau (Cal. Ct. App. - Aug. 24, 2016)

Now that many (if not most) trial courts no longer provide a court reporter, it's gotten tougher to prepare and transmit the record to the Court of Appeal -- something that's a prerequisite to success on appeal.  You can't just simply order the transcript, like you used to be able to do.  You either have to provide a court reporter of your own (in advance) or agree upon a settled statement.

Justice Zelon's opinion today gives a primer on how to go through the process of getting a settled statement.  It's spot on, incredibly concise (seven pages), and incredibly useful.

You should read it.  (Or, at a minimum, read it the next time you decide to appeal and need to prepare a settled statement.)

Super helpful opinion.

Tuesday, August 23, 2016

Ortega-Lopez v. Lynch (9th Cir. - Aug. 23, 2016)

The question is whether cockfighting is categorically a crime of moral turpitude such that it gets you deported and ineligible for relief.

The particular case isn't an especially heinous one either.  Judge Owens artfully puts it this way, the first sentence of which (especially the parenthetical) brought a smile to my face:

"[Defendant] was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government’s sentencing position detailed: 'his involvement in the overall crime was relatively minor compared to' the other defendants in the case. His punishment—one year of probation with no jail time—reflected his limited culpability. He has no other convictions."

Fredo.  Too funny.

One other portion of the opinion also curled the sides of my mouth upward, albeit less intentionally.  In the midst of holding the cockfighting is probably not categorically a crime of moral turpitude, Judge Owens says:  "Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that."  A sentiment that I personally happen to agree with.

But then he drops a footnote that says:  "Unlike dogfighting, which is illegal everywhere in the United States, cockfighting remains legal in Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands."  Well, yeah.  That footnote seems an important caveat.  Especially when the relevant inquiry includes the fact that "[t]he BIA defined moral turpitude as “'conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'"  If there are jurisdictions in the United States that allow the thing, that's some evidence that it's not necessarily "contrary to the accepted rules of morality," no?

People v. Miranda (Cal. Ct. App. - Aug. 23, 2016)

"This case involves a razor-blade-shank attack by 'Southside' gang members on a Los Angeles County jail inmate who refused to stab another inmate at the gang’s behest."

Yikes.  More evidence that being in jail is no fun at all.  Stab or be stabbed, apparently.

The three attackers get fairly long sentences; Miranda gets 17 years, Vega gets almost 12, and Rangel gets over 7.

But it's not going to matter much.  Miranda's already serving life in prison.  Vega's still got a 37-year bit to serve.  And Rangel's existing sentence is a quarter century.

Tough to deter people with very little to lose.

Monday, August 22, 2016

People v. Grimes (Cal. Supreme Ct. - Aug. 22, 2016)

Can you sometimes attribute changes in the composition of a particular judicial tribunal with the difference between life and death of a given criminal defendant?

In Re Biaggio (9th Cir. - Aug. 22, 2016)

Ah, the problems of bringing an NHL franchise to Nashville, Tennessee.  Particularly when your major investor is allegedly a fraudster.  Problems litigated in, of all places, the Ninth Circuit.

Thus are the vagaries of bankruptcy law.

Friday, August 19, 2016

People v. Wagner (Cal. Ct. App. - Aug. 19, 2016)

Jesse Wagner files a motion for relief under Penal Code 1473.6, but the trial court denies it on the ground that it had no jurisdiction to consider the motion.

Wagner is appointed counsel on appeal, and appointed counsel files a Wende brief because she can find no non-frivolous arguments to assert.  Wagner files his own supplemental brief.

The Court of Appeal then reverses, finding that there was indeed jurisdiction to consider the motion.

So apparently there was a non-frivolous argument to be made.  A meritorious one, even.

Thursday, August 18, 2016

Polo v. Innoventions Int'l (9th Cir. - Aug. 18, 2016)

Judge Milan Smith authors a smart opinion today about when (if ever) you have to remand a putative class action case that was removed under CAFA once you find out that Article III standing is absent over the named plaintiff.  That's a neat little topic for civil procedure academics (and/or buffs), and I count myself as at least one of these.  It's also practically important for class action practitioners.

So the opinion stands on its own as one potentially worth reading in full.

I generally find Judge Smith's opinion pretty darn persuasive.  I nonetheless wanted to identify one particular paragraph that stuck out to me as much less powerful than the rest of the opinion, as well as being potentially dispositive.

The question is whether Section 1447(c) requires the district court to remand a CAFA-removed case to state court, rather than dismissing it, once the plaintiff is found to lack standing.  There are a wide variety of arguments that Judge Smith dismisses about why Section 1447(c) is allegedly inapplicable to cases removed under CAFA, and those I totally understand, and he seems right.

But then there's this paragraph:

"Finally, Innoventions argues that because Polo’s lack of injury was established as part of the summary-judgment process, it was established at final judgment, rather than “before final judgment” as required by § 1447(c). What the statute requires is remand “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction”—and the district court necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment to that effect. [Footnote:   Indeed, the record shows that the district court made its determination on May 1, 2014, but entered judgment almost two weeks later on May 12, 2014.]  Therefore, this case falls within the purview of § 1447(c)."

Wait a minute.  Not so fast.  I'm not sure this is right at all.

Here, defendant moved for entry of summary judgment -- a dismissal on the merits -- because the plaintiff lacked any actual injury.  That's indeed an element of the cause of action.  So if defendant is right, then, yeah, they're entitled to a dismissal on the merits.

So defendant says that Section 1447(c) only requires a remand if it appears before a final judgment, whereas here, the court found out that the cause of action was deficient -- as, not so coincidentally, was subject matter jurisdiction -- once it resolved the summary judgment motion.  As a result, says the defendant, the court only found out that subject matter jurisdiction was lacking once it resolved the summary judgment motion, but once it resolved the summary judgment motion, that was a decision on the merits that entitled defendant to entry of a final judgment in its favor.  So, the argument goes, the decision on the merits transpired first, or (at worst) at the same time, as the determination that there was no subject matter jurisdiction.  So the latter determination wasn't "before" the final judgment on the merits, hence Section 1447(c) doesn't apply.  That's the argument.

Judge Smith's opinion responds by saying that the district court "necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment" on the merits, hence that it indeed found out about the lack of jurisdiction "before" that judgment and thus Section 1447(c) applies.  But I'm not at all sure that's the case -- much less "necessarily" the case.

Defendant moved for summary judgment.  The court read the papers for and against.  Yes, at some point -- Time X -- the court must have decided "Yes, defendant is right.  There's no standing here."  And at that exact moment, Time X, the district court necessarily "decided" (at least in its own mind) that both (1) defendant was entitled to win on the merits (since the required element of injury in fact was absent), and (2) there was no subject matter jurisdiction (since there was no Article III standing).

In other words, those determinations happen -- indeed, necessarily happen -- at the same time.  One is the other side of the coin of the other.  The one means the other, and vice-versa.

Which in turns means that a court doesn't decide the absence of subject matter jurisdiction "before" the determination of the merits.  Which is what Section 1447(c) requires in order to compel a remand instead of a dismissal.  Which seems to mean that defendant is right; the requirements of that statute don't apply, and the district court is free to adjudicate the merits instead of remanding, since the two determinations happen at the same time.

Now, the footnote he drops might perhaps reveal Judge Smith's potential reasoning to the contrary.  He points out that, in the present case, the actual final judgment wasn't actually entered until 11 days after the entry of the order on the summary judgment motion.  So I think he's thinking that since a final judgment was entered after the motion was resolved, and the statute says "before", Section 1447(c) must be satisfied.

Okay, I get that.  At least here.

But the truth is that once you've decided the summary judgment motion, that's the end of the case.  It is an adjudication on the merits.  The entry of a final judgment is a ministerial matter at that point.  I don't see that the temporal difference there -- even an 11 day one -- matters.

Plus, Judge Smith says that the decision on subject matter jurisdiction "necessarily" comes before the decision on the merits.  Really?  What if the trial judge here simultaneously filed her decision on the summary judgment motion as well as the final judgment that reflected that decision?  Then it wouldn't be "before", right?  I can't fathom that whether you're entitled to a remand and the resulting ability to continue to litigate in state court, on the one hand, versus a dismissal on the merits on the other is in fact meant to depend under Section 1447(c) on which document the district court decides to file first, or whether one document is filed 11 days, 11 minutes, or 11 seconds after the other (or at the same time).  Seems to me the actual decision is made at the same time; once there's no injury, there's no standing and no ability to prevail on the merits.  One's not actually "before" the other at all.

Moreover, wouldn't Judge Smith have the same view about other adjudications on the merits, where the law is clear that you're not entitled to a remand under Section 1447(c)?  For example, imagine that the district court decides a summary judgment motion that holds that the underlying federal cause of action that authorized the removal is meritless, but the clerk or court holds off (as here) on entering the actual resulting final judgment for 11 days.  Whoopsies!  Under Judge Smith's view, the absence of federal subject matter jurisdiction (since the federal claim is now gone) was now "before" the entry of a final judgment, so Section 1447(c) applies and requires a remand.  Fine.  But it's crystal clear that that's not the current rule.  So it seems like Judge Smith's rule is inconsistent with the remand cases with respect to other entries of summary judgment and merit-based determinations.

As a result, I just really wonder about this one paragraph.  As well as how the today's decision is consistent (or inconsistent) with how we read 1447(c) in analogous precedent.

'Cause I'm just not sure that you "necessarily" decide subject matter jurisdiction before you decide the merits when the two are just different sides of the same coin.  Seems to me you almost "necessarily" decide 'em at the same time.

Wednesday, August 17, 2016

Nichols v. Century West (Cal. Ct. App. - Aug. 16, 2016)

When this is the fact pattern in your civil case, you don't come off as an overly sympathetic person, in my view.

Michelle Nichols leases a BMW 640 (MSRP around $70,000+) in 2012.  She quickly tires of it.

Later that year, she decides to get a new car, deciding that “the 640 was a little small for me.”  So in September, she leases a new BMW 750Li -- an even more expensive vehicle -- even though she's a little "concerned it might not fit into her garage."

It does not, in fact, fit.  But she nonetheless drives it for nearly a month, putting 1,700 miles on it, before taking it back to the dealership and trying to exchange it for yet a third (incredibly expensive) vehicle -- this time, a BMW X6.  She does, in fact, get the third car, but as a result, she owes a bit more money, since she's now leased three different brand new cars, and as you know, they depreciate a ton the second you drive 'em off the lot.

She thereafter tries to get out of the deal that she struck, arguing on appeal only that she was able to rescind the contract because the dealership allegedly put her down payment on the wrong line of the contract (since it was a "deferred" down payment since at least one of the checks was postdated by a couple of weeks).

That argument persuaded neither the trial court nor the Court of Appeal.

The case is nonetheless a great example of First World Problems in the City of Angels.

Tuesday, August 16, 2016

U.S. v. McIntosh (9th Cir. - Aug.16, 2016)

Congress has precluded the federal government from spending money to prosecute individuals on federal drug charges when the conduct of the defendant at issue was permitted by the relevant state marijuana laws.  The Ninth Circuit decides this morning that (1) individuals are entitled to a hearing if they're indicted and claim that their conduct was permitted by state law, but (2) they better be able to prove that they fully complied with state law; otherwise, they're not going to get any relief.

Judge O'Scannlain, who authors the majority opinion, ends his discussion with a practical -- as well as linguistic -- observation.  Don't think that the relevant statute, he says, means that federal law permits or authorizes you to possess marijuana.  It doesn't.  He says:

"To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSAprohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.

Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law."

That said, at least for now, if you're fully complying with state law, the states can't prosecute you, and the federal government can't either.

Monday, August 15, 2016

People v. Stylz (Cal. Ct. App. - Aug. 15, 2016)

If you break into a storage unit (e.g., one at Public Storage), that's felony burglary.  You can't later ask to reduce it to misdemeanor shoplifting.  Because that's not what it is.

It only takes Justice Manella around five double-spaced pages to explain why.

People v. Nelson (Cal. Supreme Ct. - Aug. 15, 2016)

There's some sense from today's opinion that the California Supreme Court's approach to death penalty cases may be slowly shifting.

Five justices vote to vacate the death sentence.  Two justices -- Justices Corrigan and Chin -- dissent.  In an opinion that is only three pages long.

Every case is different, of course.  And one view of today's opinion would be to simply conclude that this particular case was a strong one for the defendant.

But my personal opinion is that there's something -- albeit maybe something marginal -- at stake as well.  That in part explains the 5-2 vote.

It's definitely not that the California Supreme Court is about to start vacating every single death sentence.  But I do think that the era of virtually every single death sentence being unanimously affirmed is pretty much over at this point.

Thursday, August 11, 2016

People v. Becerra (Cal. Supreme Ct. - June 27, 2016)

Defendant is representing himself (with the court's permission) for a while, but then the trial court relieves him and appoints counsel, finding that the defendant has been dilatory.  The defendant then tells the court:

"I haven't done nothing to take this privilege away from me. You‟re taking my constitutional rights from me and that is a reversible error in [sic] your part. And I‟m going to take this on a writ. And if this is all you have to say, this is all I have to say. I'll take this . . . up on a writ. You‟re not going to take my constitutional rights when I have the rights to represent myself. This is my life, your Honor. You're dealing with my life. . . . You want to fuck with me, I'll fuck with you."

Now, I know what you're thinking.  It's not good to threaten a judge.  Doesn't work.  Rarely, if ever, productive.

All true.

But you know what the weird part is here?

Defendant turns out to be right.

He gets sentenced to death, but the California Supreme Court reverses.  Unanimously, no less.  And in an opinion (1) by Justice Corrigan, that's (2) less than a dozen double-spaced pages.  Wow.  (Compare that opinion, by the way, to the other unanimous death penalty opinion that the California Supreme Court published today, which tops out at 162 pages.)

Mr. Becerra was correct.  There were, in fact, insufficient grounds for the trial court to relieve him of his pro per status.

Death penalty reversed.  Retrial.  After nearly twenty years in the California Supreme Court.

Crazily enough.

Wednesday, August 10, 2016

Weiss v. City of Los Angeles (Cal. Ct. App. - Aug. 8, 2016)

Cody Weiss got a parking ticket on La Jolla Avenue in Los Angeles for exceeding the two hour limit.  He contested the ticket -- as you're allowed to do -- by filing a statement online that simply denied that he was parked for more than two hours.  But the people who the City hired to conduct this initial review decided that Mr. Weiss was responsible, so he then paid the $55 ticket.

Most of the time, that'd be the end of the story.

But not for Mr. Weiss.

Mr. Weiss promptly files a lawsuit that claims that, pursuant to statute, the City of Los Angeles is required to conduct the initial review of tickets like his itself, and can't outsource this task -- as the City does -- to other outside entities (here, Xerox Business Services).

The trial court not only agrees with Mr. Weiss, but also awards him his attorney's fees in filing the suit.  All $722,000 of them.

The Court of Appeal affirms.

Getting $722,000 in fees pursuant to your challenge to a $55 parking ticket.  Not bad for Mr. Weiss.

Not bad at all.

Tuesday, August 09, 2016

People v. J.E. (Cal. Ct. App. - July 20, 2016)

From this opinion:

"Minor’s [and] two of his friends. . . . entered an Oakland home through a back window and rear door and took a watch, a camera, and loose change from a large jar. A neighbor reported the burglary, and Minor and his friends were apprehended a few blocks away. . . .  Minor began smoking marijuana when he was nine years old and had begun smoking it almost daily, including the date of his arrest. . . . Minor denied involvement in gangs, but said he associated with members of the Norteños gang a year prior to his arrest.

[] Minor was in danger of failing most of his middle school classes. Minor did not turn in class work or attend his classes regularly. He also had various suspensions and reprimands for behavioral issues, including refusing to go to his workshops after class, cursing at the school principal and his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor’s locker."

Sadly, I fear that, in all probability, this life will not go, or end, well.

Monday, August 08, 2016

U.S. v. Sanchez-Gomez (9th Cir. - Aug. 5, 2016)

Down here in San Diego, in federal court, we put pretty much everyone in full-body shackles.  Even at arraignment.  Sure, a federal judge can order 'em off if s/he wants to, but the ordinary rule is that you get shackled.  Regardless of your dangerousness (or lack thereof).

Almost exactly a year ago, the Ninth Circuit unanimously held that on the record presented, that policy was unconstitutional.

But not so fast.  The Ninth Circuit now takes the case en banc.

So we'll see soon enough if uniform shackling persists in San Diego.

Thursday, August 04, 2016

Cuevas v. Hartley (9th Cir. - Aug. 4, 2016)

Here's a neat little dissent by Judge Kozinski.

The panel decides to allow the respondent to file an overlength brief.  Judge Kozinski, by contrast, is not persuaded.  He says:

"I do not consent to the filing of a fat brief because the state’s motion is wholly inadequate. The state had previously filed a compliant brief that covered many of the same points, but we ordered replacement briefs in light of Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The discussion of Daire in the state’s oversized brief takes up only 3 pages; the state’s lawyer gives no coherent explanation for why she needed to add 14 pages. The state mentions the complexity of the facts it wishes us to consider, but those facts were contained in the earlier version of the state’s brief. Its remaining explanations are equally unconvincing. To me, it seems perfectly clear that the state filed an overly long brief because it thought it could get away with it."

I find that plausible.  You decide that there are things you need (or want) to say, those things take up space, so you ask for extra pages, thinking that the court will go ahead and say "Yes".

Judge Kozinski continues:

"This has become a common and rather lamentable practice: Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them. Of course, it’s hard to decide cases without a brief from one of the parties, and denying the motion usually knocks the briefing and argument schedule out of kilter. Denying the motion is thus more trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page limits with impunity. This encourages disdain for our rules and penalizes lawyers, like petitioner’s counsel, who make the effort to comply."

I find Judge Kozinski's point here even more plausible.  It is indeed more of a hassle to bounce a brief and require a substitute than it is to simply allow the oversized brief.  And attorneys know that.  This reality encourages the practice that Judge Kozinski identifies.  Seems right to me.

But there's an alternative explanation as well.  One that Judge Kozinski doesn't explore, but that to me may be an even more likely explanation for most (but not all) oversize brief requests.

The reality is that lawyers -- like many other people -- are fairly lazy.  And/or overworked.  So if a brief is due on a given day, it often doesn't start coming together until shortly before that day.  That's not to say that there's not work done on the thing beforehand.  But a complete draft often doesn't get created until fairly close to the deadline.  Sometimes very, very close.

As a result, my strong belief is that lawyers often don't know they'll need the extra pages until very close to the deadline.  Now, should they know earlier?  Sure.  And people should procrastinate less, should be more friendly in restaurants and while driving, etc.  But the reality is the reality.  Lawyers often don't know -- or at least know for sure -- that they'll need the extra space until the very end.

Which is why Judge Kozinski sees what he sees:  lawyers waiting until the last minute to file briefs that are oversized, alongside a request for the extra pages.

It's not that those lawyers are deliberately violating the rules.  If they'd have known they'd need the extra pages earlier, they'd have asked for 'em.  They just didn't know.

Which is not to say that Judge Kozinski's alternate explanation isn't somewhat true as well.  Lawyers may well feel comfortable waiting until the last minute in part because they're fairly confident that last-minute requests will be granted.  But the recognition that lawyers procrastinate nonetheless makes a complete explanation of the process, in my mind, less "evil" than the partially incomplete story that Judge Kozinski lays out.

So, yeah, lawyers should get it together earlier, and at present, there isn't a big "hammer" to make 'em do so.  Fair enough.

But I think the true story is a little more complicated than the explanation from Judge Kozinski's side of the bench.

Judge Kozinski ends his dissent with the following:

"For my part, I don’t feel bound to read beyond the 14,000 words allowed by our rules, so I won’t read past page 66 of the state’s brief. If counsel for the state wishes me to consider any argument in the remaining portion of her brief, she should feel free to file a substitute brief, no longer than 14,000 words, which I will read in lieu of her oversized brief, so long as it is filed no later than 7 days from the date of this order."

Well, I guess Judge Kozinski can do whatever he wants.  No one's going to strap him down and make him read anything he doesn't feel like reading.  On that same level, if he wants, he can refuse to read the entire brief, make funny faces at counsel at oral argument, put a frowny face on any opinion he writes in the matter, etc.  That's all within his power.

But I do wonder whether that power's rightfully exercised here.  I mean, whether the brief is accepted is subject to a vote of the panel.  And they voted to accept the brief.  Judge Kozinski disagreed, but he lost.

Now, again, that doesn't mean that the other two judges can physically force their colleague to read the brief.  But I wonder if it doesn't mean that Judge Kozinski has a moral obligation to recognize that he has been outvoted and accede to the will of the majority, at least on this point.  Imagine, for example, that the panel voted to require the parties to brief X, but Judge Kozinski dissented from that particular order.  Would it really be okay for Judge Kozinski to say "I'm not even going to read the briefs on that issue?"  I think not.  And this isn't just a hypothetical:  the Supreme Court grants certiorari (or adds) particular issues all the time, and the dissenting justices on the Court have never (in my mind) said in response that since they disagree with that order, they're going to refuse to follow it.  In matters such as these, it seems to me like the majority rules.  And probably should.

Now, I could probably come up with some hypotheticals in which a judge would entirely rightly refuse to follow the orders of his colleagues.  Because there are, for sure, limits upon the ability of two of the three judges to force the third to do what they want.

But it doesn't seem to me that this is one of those cases.  This is an issue of page limits, for goodness sakes.  It's a minor point.  Yeah, I may prefer briefs that are double spaced and in Times New Roman font.  But if my colleagues vote to allow briefs that are single spaced and in Courier, you know what, I'll just deal with it.  Rather than saying that, even though I'm outvoted, I'm going to refuse to read the brief unless I get a special one for me that complies with my particularized desires.

Look, I don't like overlength briefs any more than Judge Kozinski does.  And, as I said, I think he has a decent point about the incentive effects of the existing practice (despite the fact that I think the story is actually a bit more complicated that the one he lays out).

I'm just not sure that the right solution is the one that Judge Kozinski adopts at the end of his dissent. It may not be a petulant response.  But it does seem to me one that may be unjustified on the facts of the present case.

Wednesday, August 03, 2016

Aldana v. Stillwagon (Cal. Ct. App. - Aug. 3, 2016)

"Mike Stillwagon, a paramedic supervisor, was driving his employer’s pickup truck. He was en route to the location of an injured fall victim to supervise the responding emergency medical technicians (EMTs) and, if necessary, provide assistance. At an intersection in Oxnard, he collided with a vehicle being driven by Gerardo Aldana. A year and a half later, Aldana sued him for negligence."

That seems like a pretty ordinary lawsuit, no?  I wonder what the appeal is about.

"The Medical Injury Compensation Reform Act (MICRA) limits the time to file suit against a health care provider for professional negligence to one year from the date the injury is discoverable. (Code Civ. Proc., § 340.5.) The trial court found that Aldana’s suit was subject to MICRA’s one-year statute of limitations rather than the two-year limitations period for general negligence (§ 335.1), and therefore was time-barred."

Seriously?!  It's an auto accident, for goodness sake.  I can barely fathom how MICRA could even possibly be relevant.  I mean, I can fathom it.  But barely.  It seems obvious to me that this is an auto accident case, with its usual statute of limitations, and not a professional negligence case.

"After briefing was complete and before we heard oral argument, our Supreme Court decided Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 (Flores), which clarified the issue. Flores held that “the special statute of limitations for professional negligence actions against health care providers applies only to actions alleging injury suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.” (Id. at p. 88.)"

Okay.  I agree that's helpful.  But I wouldn't have needed the "clarification".  The right answer seems clear to me even without it.

"Aldana contends that the trial court erred in applying MICRA because he had no connection to the professional services being rendered and because Stillwagon was not rendering professional services at the time of the accident. We agree with the latter contention. While Stillwagon’s status as a paramedic may demonstrate that he was a medical professional, the automobile collision remains a “garden-variety” accident not resulting from the violation of a professional obligation but from a failure to exercise reasonable care in the operation of a motor vehicle. (Flores, supra, 63 Cal.4th at p. 87, fn. 4; see Lee v. Hanley (2015) 61 Cal.4th 1225, 1237.) The obligation was one that he owed to the general public by virtue of being a driver and not one that he owed to a patient by virtue of being a paramedic. Therefore, we reverse."

Exactly right.

ALDF v. FDA (9th Cir. - Aug. 3, 2016)

I said when the original opinion came out that the smart money was on the case being taken en banc.

Today, that smart money gets paid.

Monday, August 01, 2016

Baral v. Schnitt (Cal. Supreme Ct. - Aug. 1, 2016)

This is an opinion that resolves a highly contested issue in the Court of Appeal:  Whether a "mixed" cause of action -- one that alleges both protected and non-protected activity -- is subject to an anti-SLAPP motion.  The California Supreme Court concludes, unanimously, that it is.

That's definitely an important holding.  It broadens the anti-SLAPP statute, and I think it does so in a beneficial way.  Moreover, Justice Corrigan's reasoning in this regard seems very persuasive to me.

So I'm definitely pleased with the result.

Yet the structure of the opinion itself leaves me somewhat hollow.

There's essentially seventeen pages of extensive history -- in particular, the various conflicting opinions by the Court of Appeal on the subject -- followed by six pages of analysis and result.

I understand why opinions are sometimes written that way.  But it seems unnecessarily plodding, at least here.

We are where we are.  Yes, it's perhaps interesting, in a way, to see how we got there.  How language from X opinion was thought by the Court of Appeal in Y opinion to mean Z even though later Court of Appeal opinion A thought that B might not follow from C.  As an historical matter, I get it, and I personally like to see how law changes over time.  Particularly when, as a result, it gets confused (as here).

That said, it's an opinion from the California Supreme Court.  Once we're there, it seems more important to me to expand upon the analysis rather than a (somewhat distracting) discourse on the particular path through which we wound up in our present predicament.  The "backstory" just seems not especially important at this point.

My take, anyway.

But, again, an important case.  And one that resolves the issue both conclusively as well as correctly.

Schmidt v. California Highway Patrol (Cal. Ct. App. - Aug. 1, 2016)

Here's the first paragraph of today's opinion:

"Penal Code section 849.5 provides that if a person is arrested and released and no accusatory pleading is filed, the arrest shall be deemed a detention only. 1 Section 851.6, subdivision (b) provides that the arresting law enforcement agency shall issue the person a certificate describing the action as a detention. Subdivision (d) of the section provides that the official criminal records shall delete any reference to an arrest and refer to the action as a detention."

Interesting.  Didn't know that.

Next sentence:

"The California Highway Patrol (CHP) does not comply with sections 849.5 and 851.6."

Uh, really?

"John J. Schmidt brought a class action against the CHP for a writ of mandate to compel the CHP to comply."

Yeah.  That sounds like a pretty good lawsuit.

"The trial court certified the class and granted Schmidt’s writ petition. The court also awarded Schmidt attorney fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute."

I'm not surprised.

"We affirm."

I can see why.

Friday, July 29, 2016

Munoz Santos v. Thomas (9th Cir. - July 28, 2016)

One possible view of this en banc opinion is to perceive it as a classic liberal/conservative split in which the former outnumber the latter in the draw.  And, to a degree, that's true.

The dissent consists of Judges Callahan and Ikuta.  They're definitely outvoted.

But the majority opinion is written by Judge Bybee.  Hardly a huge leftie.  And the eight judges who join his opinion include, amongst others, Judges Clifton and Milan Smith.

That line-up may suggest that one side of the equation might have the better of the argument.

Thursday, July 28, 2016

Sandquist v. Lebo Automotive (Cal. Supreme Ct. - July 28, 2016)

You get bonus cash if you can guess the alignment of the justices in today's opinion.

The question is who gets to decide whether or not an arbitration agreement permits classwide arbitration:  the arbitrator, or the court?

The majority opinion says that it's a contractual question, and in the present case, the arbitrator gets to decide.  The dissenting opinion says that it's instead a gateway issue presumptively to be resolved by the court.

Who's on what side?

The answer . . . .

Justice Werdegar writes the majority opinion, joined by Chief Justice Cantil-Sakayue and Justices Liu and Cuellar.  By contrast, Justice Kruger authors the dissenting opinion, joined by Justices Chin and Corrigan.

Did you get it right?

Wednesday, July 27, 2016

People v. J.E. (Cal. Ct. App. - July 20, 2016)

From this opinion:

"Minor’s [and] two of his friends. . . . entered an Oakland home through a back window and rear door and took a watch, a camera, and loose change from a large jar. A neighbor reported the burglary, and Minor and his friends were apprehended a few blocks away. . . .  Minor began smoking marijuana when he was nine years old and had begun smoking it almost daily, including the date of his arrest. . . . Minor denied involvement in gangs, but said he associated with members of the Norteños gang a year prior to his arrest.

[] Minor was in danger of failing most of his middle school classes. Minor did not turn in class work or attend his classes regularly. He also had various suspensions and reprimands for behavioral issues, including refusing to go to his workshops after class, cursing at the school principal and his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor’s locker."

Sadly, I fear that, in all probability, this life will not go, or end, well.

Tuesday, July 26, 2016

People v. Superior Court (Cal. Ct. App. - July 25, 2016)

This opinion has been a long time coming.

It may also be one of, if not the, most important opinions of the month.

At issue is whether it's permissible for a district attorney to "blanket paper" a judge that has made adverse rulings against that office -- a practice that may effectively take away the judge's power to hear criminal cases.  Here's how Justice Aronson concisely describes the facts of this particular case:

"Respondent court denied petitioner’s section 170.6 motion because it concluded the motion was part of the Orange County District Attorney’s (district attorney) coordinated campaign to 'blanket paper' Judge Thomas Goethals to prevent him from hearing murder trials in retaliation for Judge Goethals’s rulings in three earlier murder cases. As described more fully in both the lead and dissenting opinions, Judge Goethals found the district attorney’s office repeatedly engaged in misconduct in violation of the defendants’ constitutional rights, and in one of the cases he found the misconduct created a conflict of interest requiring the office’s recusal. Respondent court found the campaign to prevent Judge Goethals from hearing long cause murder trials substantially interfered with the court’s ability to administer criminal justice in Orange County, and thereby violated the separation of powers doctrine."

As informed readers may know, this is not an isolated occurrence.  It doesn't happen to every, or even most, judges.  But it happens to some.  And the possibility of such a practice may also have a chilling effect even on judges who are never papered.  If your ability to hear criminal cases at all -- your area of practice and interest -- depends on the district attorney's favor, your recognition of that reality is something that never goes away.

Now, maybe that's a good thing.  Maybe it "reins you in" and stops you from making crazy rulings.  Or maybe it's a bad -- or even profoundly bad -- thing.  Reasonable minds might differ on the issue.

But, regardless, it's a critical issue.  Super important.

The majority opinion holds, reluctantly, that blanket papering is permitted by controlling California Supreme Court precedent.  The dissenting opinion disagrees.

None of the justices are particularly psyched about the practice.  For reasons they explain at length.

Particular cases and opinions may transform a particular doctrine in the field.  By contrast, the practice at issue here may transform, at least at the margins, the entire field.

Its an especially important opinion.  Worth reading in its entirety.

Thursday, July 21, 2016

Martin v. Yasuda (9th Cir. - July 21, 2016)

The Ninth Circuit concludes today that the defendant waived its right to arbitrate.  And it's exactly right.  This is, indeed, a pretty classic -- and easy -- example of how to waive your rights.

It'd almost be enough itself to mention that the defendant litigated the case in federal court for seventeen months before moving to compel arbitration.  But, as the opinion reflects, there's even more than that.

If you want to cheaply and easily arbitrate -- or, as here, to use arbitration to stop a class action -- then you need to do so quickly.  Otherwise it ain't so cheap and easy.

And definitely not as effective.

Wednesday, July 20, 2016

Kaur v. Things Remembered, Inc. (9th Cir. - July 20, 2016)

Well now here's a strange one.

I was wondering when I read it why the Ninth Circuit published the order.  It's an incredibly short thing.  It basically just says (1) we hereby grant you permission to file a reply, and (2), sure, we've decided to hear your Rule 23(f) (denial of class certification) appeal.

That's not a decision on the merits.  That's a routine thing.  That's why this just a decision for the motions panel.  That's a funny thing to publish.  (Especially when, as here, the order is so incredibly short.)

Nonetheless, once I read the fifth sentence of the order, I understood why the Ninth Circuit published the thing.  And it's sort of cool.

The district court denied class certification.  Plaintiffs asked permission to appeal, and today's order granted permission.  But the district court denied apparently certification based at least in part on its feeling that class counsel might not be a "vigorous" advocate for the class, and the motions panel is keenly interested in whether that's a permissible basis upon which to deny certification.

So the panel drops a sentence that essentially says so, and instructs the parties:  "In addition to all other issues the parties may wish to raise in this appeal, the parties shall brief the issue of whether the district court should have considered less drastic alternatives before denying class certification based on concerns with the vigor of class counsel’s representation."  Then drops a citation to make crystal clear what the panel's talking about:  "See, e.g., Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323-24 (11th Cir. 2008) (“In the event that class counsel does act improperly, the ordinary remedy is disciplinary action against the lawyer and remedial notice to class members, not denial of class certification.”) (internal citation omitted)."

But the motions panel doesn't stop there.  And that explains why the order's published -- and also why someone out there might potentially be interested in following up on it.

The motions panel then tells the world that it's sufficiently interested in the topic that it's happy to hear opinions on the subject.  Entering the following order:  "The court sua sponte grants any individual or entity leave under Federal Rule of Appellate Procedure 29(a) to file an amicus curiae brief addressing the above-stated issue in this appeal. The brief(s) shall comply with Federal Rule of Appellate Procedure 29(c) and (d); the due dates are governed by Rule 29(e)."

End of published order.

So there you have it.  If you're interested in the subject -- and it's an interesting one -- feel free to file a brief.  Judges Kozinski and Paez, at least, are happy to hear your views.

For what it's worth, I'm probably leaning the same way I think these judges are.  Though I might be a bit more conflicted than they are.  (Though I admit I'm reading tea leaves here, at least on their end.)

I get that if you've got a problem with the lawyer, maybe the right remedy is to lean on the lawyer rather than deny the class a remedy by denying certification.  Seems right.

At the same time, it's hard to lean on the lawyer.  At least effectively.  They can do a lot of things that you can't see.  Particularly if they lack "vigor".  And, sure, you can report them to the bar, as well as deny approval of any settlement that you don't like.

But, truthfully, this sort of supervision not only takes time and effort, but is, I think, not likely to be supremely effective.  You can only do so much.  And what a district court may well be worried about in a particular case is that the lawyer will be manifestly incompetent, but rather that he will simply be exceptionally subpar.  Which in turn will hurt the class.

It seems to me that the best remedy in such cases, to be honest, would not be to rely upon discipline or other supervisory remedies to solve the problem -- since I don't think they (typically) will -- but to instead adopt or incentivize a system that'll address the issue directly.  What a district judge may well want in such a setting is to have a different class counsel, and they're trying to get at that by denying class certification in the hopes, perhaps, that someone else will step forward.

Now, if there's already a parallel class action pending filed by another lawyer, maybe denying class certification in the present case -- and doing so expressly based on counsel concerns -- solves the problem.  That way the other class action can go forward, and everyone wins.  So, in that setting, I think denying certification would actually be legitimate.  Perfectly fine.  And I would not want to do what the Eleventh Circuit potentially says to do:  grant certification in the present case and just rely on discipline.  I don't think that'd either solve the problem or be the best of the available alternatives.

In most cases, however, there's probably not a parallel class action pending.  And while I'd understand it if a district court thought "Hey, I'll deny certification here for class counsel reasons, and hopefully a different class action lawyer will pick up on my order and file a new (identical) class action," that may be a pipe dream in a lot of cases, and there may be statute of limitations or other problems with such an approach as well.

So, in the typical case, I lean towards agreeing that the judge shouldn't just deny certification on the hope that there might be a better lawyer out there.

But, to me, that's not the end of it.

Instead, rather than rely on discipline and the like, if I held (as I think the Ninth Circuit will) that the alleged "lack of vigor" of class counsel shouldn't typically be a legitimate basis upon which to deny certification, I'd also expressly mention other perfectly permissible alternatives that district judges may well want to consider when confronting such a setting.  For example, I think that, while granting certification, the district court could permissibly -- and perhaps should -- "invite" intervenors or other class counsel to join the litigation.  Not by name, of course, but make it clear that there are concerns here, and that we're more than happy to look favorably upon someone else coming in and trying to take over the role as lead class counsel.  My guess is that, most of the time, that'll do the trick, and that there are more than enough "aggressive" class counsel out there who'd pick up on the suggestion and be willing to take on that role.  The district court need not conduct a "reverse auction" or any of the other fancy procedures that are sometimes suggested in competing class action counsel cases.  A mere word may be sufficient.  That, when combined with approval of class certification, should in all but the most extraordinary cases do the trick.

But, to be honest, if all the district court did was to approve the class, and/or no one came forward to "help out" the existing (potentially lazy) counsel, to tell you the truth, I'd have problems with that.  A lazy class counsel can do a lot of damage.  A lot.  Sure, the class may get some relief.  But the class may also lose, sometimes solely due to the attorney.  And, in other cases, the class may get pennies on each dollar to which they're legitimately entitled; again, solely because of the attorney.  And approving classes headed by lazy counsel also systemically encourages and incentivizes continued litigation of this type, and that's a bad thing as well.

So, in an appropriate case, I think that'd be a sufficient reason, if no one else stepped forward, to decertify the class even after having originally certified it.  Or, at a very minimum, to try to prevent such a problem in the first place by inviting intervenors and/or suggesting that existing class counsel obtain co-counsel.  Those things, unlike the largely-hypothetical threat of discipline, may actually solve the problem, while simultaneously permitting the class (and the judicial system) to obtain the relief that we want.

So, were I to write an amicus brief, that's probably what I'd say.

Though, having now said it, I'll probably dispense with actually filing a brief.

But if you disagree, or think there's a better approach, I strongly encourage you to take up the Ninth Circuit's opening today and file a brief of your own.  'Cause it's an important issue.

And the Ninth Circuit wants to hear your views.

Tuesday, July 19, 2016

Barrientos v. Lynch (9th Cir. - July 19, 2016)

The Ninth Circuit holds that the "mailbox rule" applies to petitioners who seek relief from deportation and who are in detention at the time they file their appeal, and that the required declaration that states that the petitioner is indeed in detention and placed the appeal in the facility's outgoing mail system on X date may, but need not, be filed with the original papers, and instead may potentially be filed later.

The Ninth Circuit's opinion in this regard seems entirely right to me.

The Ninth Circuit cautions, however, "the court has discretion to reject or to give less weight to a declaration or affidavit that does not accompany the inmate’s legal filing."  It does so on the basis of the reasoning of the Eighth Circuit that "[a]n affidavit filed long after the events in question have occurred tends to be less trustworthy than a promptly-recorded statement because the passage of time dulls memories."

That's true.  To a degree.  Memories about precisely what day it was when you did Y may indeed fade over time.

But there's another reason to credit early-filed declarations as well.

Sometimes, you only realize that a filing was due on Day X after the court, or your opposing party, files papers that say that your petition should be dismissed because it wasn't received until Day Y.  It may potentially be only at that point that you realize that, crap, it was due on Day X.  You at that point discover the mailbox rule, and -- now cognizant that your mailing needed to be on Day X -- submit a declaration that says, yep, that's exactly when I mailed it.  You have a large incentive to so recall.

By contrast, if you originally submit a declaration that says you mailed it on Day X, that may not prove that you mailed it on that day.  But it at least helps to establish that at the time you filed your petition, you likely knew at the time it was due on Day X, and that your declaration wasn't merely a response to someone belatedly telling you that it was due on that day.  And if you knew it was due on Day X at the beginning, that's some evidence that you likely in fact filed it by that day.

So it's not just "faded memories" that an early filing may help with.  It's also any alleged fabrication.

So a good rule here.  For multiple reasons.

Monday, July 18, 2016

Louisiana Municipal PERS v. Wynn (9th Cir. - July 18, 2016)

Opinions like this one today seem to me the twenty-first century equivalent of trying to figure out how many angels can dance on the head of a pin.

The dispositive question is whether the ostensibly independent shareholders of Wynn Resorts are sufficiently independent that they could be expected to decide to sue Steve Wynn, alongside other board members, on behalf of the corporation.  The truth, for anyone who knows this industry, is obvious.  Of course the board members aren't going to authorize such a lawsuit.  Were there infinite numbers of parallel universes, in none of them do these board members vote to bring such a suit.  Zero.  The hand-picked members of the board simply aren't going to do that, and to pretend otherwise is silly.

Yet the federal courts nonetheless go through a facile exercise of trying to ascertain whether these board members are "really" independent and "could" decide to bring a lawsuit such that a demand on the board would be futile.  I understand that such an inquiry is required by doctrine.  But it's as silly as the angel/pin dispute.  There's no real "there" there.  It's an utterly artificial inquiry.  Entirely divorced from the practical realities of many -- if not most -- modern board of directors.  Especially in situations like this one.

So, sure, Judge O'Scannlain's opinion makes sense.  Plus has a neat little stateless-citizen-federal-diversity-jurisdiction issue thrown in there for good measure.

But I nonetheless can't help thinking that it's the equivalent of an opinion that says that exactly 48.6 angels can fit on an average-size pin manufactured in the eastern seaboard of the United States.  It really is that far divorced from reality.

Even though I fully understand that, yes, if the relevant precedent says that it's dispositive whether 45 or more angels can fit, we indeed are required to go through this entirely silly exercise.

Thursday, July 14, 2016

Janice H. v. 696 North Robertson LLC (Cal. Ct. App. - July 13, 2016)

"Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar. On Sundays, as many as 500 people patronized the club. To attract customers, Here Lounge hired promoters who used social media to encourage attendance at special events with sexy themes. For example, the theme when Plaintiff visited the bar was 'size matters.' Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear."

Welcome to West Hollywood, as it were.

"Here Lounge designed the bar to have a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms. The restroom area included four adjacent lockable unisex restroom stalls, an open area behind the stalls with a urinal trough, and two larger Americans with Disabilities Act (ADA) compliant stalls off to one side. Unlike the four unisex stalls, the ADA stalls had lockable, full-length doors. Though each ADA stall was assigned a gender and the men’s ADA stall was adjacent to the urinal trough, patrons treated the ADA stalls as unisex and used them interchangeably."

Unisex bathroom.  No biggie.  Consistent with the West Hollywood theme.

"On a nightly basis, Here Lounge hired as many as 12 security guards to check identification at the door and maintain order in the club. On Sunday nights, it posted eight to 10 guards throughout the club including one or two stationed on either side of the four adjacent unisex stalls in the restroom area. The restroom area security guards were instructed to prevent more than one patron from entering a single bathroom stall at the same time. If a security guard saw two or more people entering a stall, he would stop them. If more than one person entered a stall before the security guard could intervene, he would knock and demand that they exit. The guards routinely took action to prevent sexual activity, drug use, and conflicts among patrons in the restroom area."

Exactly right.  You know full well that there are potential problems in the bathroom.  Sex, drugs, etc.  That's a problem whether the bathroom's for one gender or for all of 'em.  So good job here.  Indeed, I was somewhat surprised to hear that of the dozen or so security guards, a full two of 'em were often in the bathroom.  That's a well-guarded bathroom.

"On that Sunday, Plaintiff arrived at around 11:39 p.m. Feeling intoxicated, Plaintiff drank water and sat on the patio. Some 15 to 45 minutes later, Plaintiff went to the restroom area, where no guards were present. Although the club’s policy was to have one or two guards in the restroom area, the guards had discretion to leave their posts in the restroom area and roam the club when there were only a few dozen patrons in the club and very few in the restroom area. While roaming, they periodically checked on the restroom area."

Oh.  Yeah.  Well, that's probably not a good idea.  If you're worried about the bathroom, you need to stay worried about the bathroom.  Not just sorta-maybe-check-it-out-on-occasion worried.

You already know there's a lawsuit (and appeal).  You've now read the background.  So you probably know already what transpired.  Here are the gory details:

"Plaintiff went into an ADA restroom stall and shut the door. As was common among patrons of Here Lounge, Plaintiff did not lock the door. While Plaintiff was turning and sitting down, a man she had never seen before entered the stall. . . . . When Plaintiff stood up to adjust her clothing, [the man] grabbed her shoulders and pushed her against the wall [and] forced Plaintiff to orally copulate him and forcibly had vaginal intercourse with her."


Two more terrible details.  First, "[b]ased on DNA evidence, the man was later identified as Victor Cruz, a bus boy at Here Lounge."  Not some random patron.  An employee of the bar.  Second, "the assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff’s dress."  Double and triple ugh.

Oh yeah.  "Plaintiff, bleeding and shaken, fled the bar and contacted the police with the assistance of a stranger on the street. Although Here Lounge security found a large puddle of blood in an ADA stall, it did not connect it to the sexual assault until days later when police investigated the incident. Victor’s DNA sample matched the sample of DNA taken from semen on Plaintiff’s dress at the rape treatment center."

What?!  There's a rape, the bar's security "finds a large puddle of blood" in the stall in which the rape transpired, but that's sort of par for the course, and they don't "connect it to the sexual assault until days later?"  Wow.

Anyway, there's a lawsuit.  As you might expect, a darn big one.  Against the bar.  At which "[t]he jury awarded a total of $5.42 million in damages," apportioning "40 percent responsibility to Here Lounge and 60 percent to Victor."

The damage award is huge, but understandably so.  As for the apportionment, no surprise there either, and you can figure out why.  In no universe but our own would a rational factfinder say that the actual rapist was only "60 percent" responsible in this setting, with the bar owners 40 percent liable.  Moral culpability in any rational, real sense would be apportioned far differently.  But the bar has money, the rapist has none, and there's joint and several liability anyway.  So there you have it.

And the Court of Appeal affirms.

There's a lot of bad in the world.  Just read the newspaper.  Today or any other day.

But you can definitely add this rape to the list.  Not good stuff.

Lyons v. Michael & Assocs. (9th Cir. - June 8, 2016)

I'm not sure how anyone could reasonably disagree with Judge Nguyen's opinion here.

The Fair Debt Collection Practices Act says that you can't file a debt collection lawsuit in the wrong forum.  Defendant did so.  That filing transpired on Date X, but the debtor only learned about it on Date Y, which was the date on which she was served with this improperly-filed lawsuit.

When does the statute of limitations start running?  Date X or Date Y?

Prior Ninth Circuit precedent on the point is a little unclear and contradictory.  But Judge Nguyen's opinion definitively holds that the limitations period starts on Date Y -- the date the plaintiff found out about the lawsuit (via service), not merely the date it was filed.

That seems obviously right to me.  The Discovery Rule.  Spot on.

The district court held to the contrary, but its decision in that regard is (IMHO) what happens when you read appellate court decisions too broadly.

I understand why the district court erred.  It thought the Ninth Circuit had answered the question -- maybe not in an actual "holding," but nonetheless in language that's clear.  And it didn't want to be reversed.

But sometimes, faced with unclear precedent, the right thing to do is to do the right thing.  The better rule is the one that starts the limitations period on the date the violation was discovered.

And that's in fact, the rule the Ninth Circuit articulates here.

Wednesday, July 13, 2016

Lkhagvasuren v. Lynch (9th Cir. - July 13, 2016)

I feel bad the guy.  Otgonbayar Lkhagvasuren came to the United States from Mongolia on a vistor's visa in 2010 and subsequently applied for asylum.  He didn't want to go back to Mongolia.  Perhaps understandably.

But he doesn't have an actual claim.  He says he was a whistleblower in an alcoholic beverages company that he though was corrupt.  But that's not going to cut it.  As the Ninth Circuit as well as the immigration tribunals below squarely held.

So Mr. Lkhagvasuren will have to go back.

I've got no reason to believe that he wouldn't be a fine citizen.  And it's not like the United States is being swamped with citizens from Mongolia -- a country that only has three million of 'em in the first place.

But we've got limits.  This is one of them.  So back to Mongolia for Mr. Lkhagvasuren.

In Re Grand Jury Subpoena (9th Cir. - July 13, 2016)

The Ninth Circuit today issues an opinion that decides important issues about a grand jury subpoena issued for e-mails sent to and from a public official and kept by that official on a private e-mail server kept separate from that person's "official" e-mail account.

Yep.  You heard me right.  A very well-known public officer.

The former governor of Oregon, John Kitzhaber.

Wait.  You were thinking of someone else?

Tuesday, July 12, 2016

People v. Ranlet (Cal. Ct. App. - July 11, 2016)

Usually I'm impressed with how adult investigators can trick pedophiles into incriminating themselves by pretending to be someone they are not.  It's typically pretty good police work.

Not so much, however, in this case.

An FBI agent is trying to crack an online child pornography/exploitation group.  The group is forced to change its names at various times to avoid scrutiny, and in its current iteration, ostensibly pretends to be a group that's interested in PT Cruisers, with the title “ptcruzer".

That's a play on words, however.  The title really means "pre-teen cruiser"; i.e., cruising for preteen child pornography or child molestation.  But group members post messages that pretend to be talking about cars.

Anyway, the FBI agent infiltrates the group, and locates defendant's profile.  "Defendant's user profile for the Yahoo account included: the nickname “M.D. DADDY,” location of central California, an age of 35, male gender, marital status of divorced, and occupation of '[f]reelance gynecology and photographer.' Hobbies were listed as, 'Relaxing, chatting, looking for that one female who has very few limits . . . my only limits are scat, bloodplay, and permanent damage.' A favorite quote was listed as, 'Will you shut the fuck up!!! It doesn't hurt that bad!!!'"

Seems like a guy you might want to investigate.  Especially if he's in a "pre-teen cruiser" chat room and sends a message -- which he did -- that says:  "Just wondering if any females out there are near Sacramento, Cali who wanna play with me and my 7-year-old daughter.”

As an FYI, defendant is allegedly molesting his 7-year old daughter at the time.  Apparently he's trying to get others in on the deal as well.  The sick bastard.

So then he sends out another group message.  You'll see what I mean about the group pretending to talk about cars.  The message reads:  "Hey all . . . I am a single male with a 7-year-old almost 8-year-old model. [¶] I have been doing lots of maintenance on my cruzer (lube jobs, engine play. . . et cetera) but haven't 'opened' it up yet that much. [¶] I am looking for a female passenger to be with me when I do. And she can do some driving if she wants. [¶] I am in the Sacramento, Cali area and so should you be too. [¶] I am looking for a long-term relationship as . . . Well having a cruzer of your own is not necessary but it is a plus . . . lol.”

So now the case gets referred to the California Department of Justice.  And an agent for the California DOJ follows up on this lead, creates a Yahoo! account, and writes to the defendant, saying:

“Hi. It's Janette. I‟m not sure if you remember me. I used to be a member of the ptcruzer but my computer crashed and I am just now back up. [¶] I live in Sacramento area and if I remember correctly you do too. [¶] I have a 12-year-old daughter Hope. It's just she and I and we [have] a very open and loving relationship. [¶] You and I spoke of having things in common but I don‟t want to share too much unless you remember me. [¶] We can talk more. Janette.”

Defendant takes the bait.  He responds the very same day.  He says:  "Hi. . . Yes, I am a member of the ptcruzer group. . . I don't remember chatting with you before but would love to chat sometime. I'm usual[ly] on in the evenings at 8 p.m.'ish. Just p.m. me. Would love to talk about you and your daughter and me and mine.”

Okay, so now the agent tries to reel him in a bit.  She responds the next day.  And it's a very good response, I think.  She says:  "Hi. I'm so glad you‟re interested in talking more. It's so hard to find like minded people that share the same interests, especially with a daughter who's close in age to mine. [¶] Can you tell me a little bit about yourself? I'm Janette and have a 12- year-old daughter Hope. She is a beautiful daughter and very curious. I was taught about my body at an early age and have done the same with Hope. Associate doesn't seem to agree with this so I must be very discrete. [¶] Hope is my life and I must be very careful. Obviously, not being a man, I don't have all the tools to help in Hope's teaching. [¶] I work a lot so it's difficult to be online around 8:00. I will definitely check for you when I am. Are any other times good for you?”

Defendant's hooked.  The next day, he responds:  "Hi Janette. I myself also started at a very young age. My daughter is also as curious as I was when I was her age. Excuse me, but before we go on, maybe I should let you know a little of what I am looking for/not looking for. [¶] Not looking to cyber, looking to chat. Not looking to C2C/looking to meet. Looking for long-term commitment and not just a one-time thing. Someone into the same interests as me. [¶] If this is the same for you, then by all means p.m. me or email me back. LOL. [¶] Also, do you have any pics? Mine are in my photos if you want to go there.”

So he's not looking to have cybersex.  He wants actual contact.  Mutual molestation, or whatever else he's into.  Maybe share some child pornography as well.

Sounds like a guy definitely worth catching.

Good job getting this far.

But at that point, the California DOJ agent, in my view, massively drops the ball.  She waits four days to respond.  And when she does respond, she says that Yahoo! seems "difficult to use," so wants to switch their conversation to AOL.  Which he presumably finds strange, if only because she's on the Yahoo! forum already.  And what's so hard about it anyway?

So he never responds.  And continues to allegedly molest his daughter until he's eventually caught and charged some many years later.

I understand that even the police don't necessarily work on weekends. And that guys like this may well be suspicious.

But still.  I thought that this could have gone much better than it did.


Monday, July 11, 2016

People v. Yang (Cal. Ct. App. - July 11, 2016)

Justice Hoch begins today's opinion by the Court of Appeal by saying:

"In this case, we conclude the death of a structure's inhabitant renders that structure uninhabited within the meaning of the arson statute."

Well, yeah.  I think that's clearly right.  If someone dies, say, in his sleep in his bed, and you burn the house down while he's dead, and he's the only one who "inhabits" -- or, more accurately, "inhabited" -- the thing, then, sure, you're guilty of burning down a building, but not an "inhabited" building.  Because the guy is dead.


But then there's the next sentence:

"This is so even where the arsonists murder that inhabitant before setting fire to the structure."


Now, look, there's a part of me -- a huge part -- that totally gets where Justice Hoch (and the rest of the panel) is coming from here.  A dead guy's a dead guy.  If burning down the house of the dead guy in the bed isn't burning an inhabited building (because the guy's dead), then it doesn't matter how the guy died; e.g., that you killed him.  He's still dead.  Dead guys don't "inhabit" anything any more.

Ergo, by necessity, the same result.

Ditto for the statutory language.  The statute says the house has to be "currently" inhabited.  When the criminals torched the place, it wasn't "currently" inhabited.  Indeed, they made sure of that.  By killing the guy.  At the time of the torching, there was no one alive.  Hence the Court of Appeal's result.

I get it.  Makes total sense.  Linguistically, even.

And yet.

There's a part of me that's not willing to go that far.  Part of me thinks:  "Yeah, you could definitely so hold.  Such an interpretation of the statute makes linguistic sense.  Yet if it's possible to articulate a plausible interpretation of the statute that goes the other way, you know what, I'm down for that.  As I really, really don't like the idea that you get a 'bonus' on the arson count for killing someone first."

Plus, I feel darn sure what the Legislature would think about this fact pattern.  Beyond a shadow of a doubt.  They definitely want stuff like this covered under the "inhabited" arson statute.  (And even the Court of Appeal, I think, knows that, saying:  "[I]f the Legislature is troubled by the outcome of this case, it can amend the statute.")

So is a contrary interpretation of the statute plausible?  I'm leaning to thinking so.

True, "currently" usually means "now", and "now" would typically mean at the time the structure was burned.  But maybe we can legitimately stretch it a bit.  Maybe we can reasonably say that in the rare circumstance where the arsonist is the immediate cause of the decedent's death, "currently" may mean at the time of entry into the home.  And, if so, in this case, the guy's guilty.  Since he entered the house, killed the guy, then burned the thing down.

Seems okay to me.  I recognize that this might be a bit of a stretch of the term "currently".  But, you know what?  We stretch terms a least a tiny bit all the time.  If it's a plausible interpretation -- and I am of the slight view that it is -- and it's a better one (which I definitely think is true), then I may be on board for it.

Not only do I think this is what the Legislature would have intended had they thought of this exact fact pattern, but this alternative interpretation also avoids some crazy line-drawing absurdities.  What if the arsonist shoots the guy in the house, burns the thing down, but we're not sure whether the guy died seconds before or after the fire got started?  (For example, we know he died of the gunshot, since there's no smoke in his lungs, but maybe he bled out before -- or after -- the fire was first started, and had -- or hadn't -- reached his particular room.)  I can't fathom it matters in the slightest whether the dude had bled out before or after the exact second of the fire.  Yet under the Court of Appeal's holding today, it totally does; it's a dispositive difference.  That's definitely not a a statute that I would pass, or one that I want to adopt if I have any other reasonable alternative.

My mind keeps going back, for some reason, to the inheritance cases.  Where you don't get to benefit (i.e., inherit the guy's estate) if you were the one who killed the guy.  Same deal here.  (And, yes, I know there's a specific statute for that.  But even before that, it was part of the common law.  Why not so here?)

The case also reminds me of the old yarn about the defendant who kills his parents and who pleads for sympathy because he's an orphan.  Same here:  "You can't find me guilty because I killed the guy first.  Ha!"

Again, I recognize that there are definitely legitimate arguments to the contrary.  As well as what I think are, in fact, pretty decent analogous precedent the other way.  The Court of Appeal says, for example, that if you kill someone before you rape them, and then have sex with them, you're not guilty of "rape" of a live person, but only of the lesser offense of sex with a dead person.  And I must admit that such a result seems right to me, and that it's also pretty darn close to what we have here.

Yet there's still part of me that rebels at the resulting conclusion.  And still thinks that it might well be reasonable to say that arson's different, and that the defendant is in fact guilty of the greater crime in the present case.  And that the statute would be better read in the manner I describe.

I readily concede that, on a practical level, it probably doesn't matter much.  The Legislature will, I think rapidly amend the statute here.  Why wouldn't it?  There's not much of a constituency for the select group of people who kill someone and then burn down their house.  By contrast, here's a very easy way to look "tough on crime" and reverse those "crazy liberal judges" on the Court of Appeal.

Plus, even in an individual case, the dude's sentence won't matter much.  You've already got him, at least most of the time, for an actual murder charge.  Plus, even under the Court of Appeal's holding, an additional arson charge as well (just not of an "inhabited" structure).  Permitting a conviction on the greater arson count really won't matter much at all in your run-of-the mill cases.

Nonetheless, there's still a part of me -- a big part -- that wants to allow a conviction here.  It seems a plausible interpretation of the statute.  It's surely the Legislature's desire.  It's probably a much better practical result.  So maybe go ahead and do it.  Yeah, the Legislature could do it instead.  But why wait?  We can do it now ourselves.

That's my current take, anyway.

Even though I totally understand where the Court of Appeal is coming from, I might well have gone the other way.

ESG Capital Ventures v. Venable LLP (9th Cir. - July 11, 2016)

This morning's opinion definitely doesn't reflect the best transactional work that Venable ever did.

The opinion itself contains some of the details of the underlying scam.  And a complete scam it was.

Here are some more details about the fraud.  The Ninth Circuit reverses the district court and says that almost the entire lawsuit against Venable can go forward.

The relevant partner at Venable is now at Arent Fox.  But Venable still gets stuck with the suit.