Thursday, March 26, 2015

Medina v. Chappell (9th Cir. - March 26, 2015)

This is --  unintentionally -- hilarious.  (Okay, maybe not hilarious.  But pretty funny/ironic.)

Judge Wardlaw writes a 36-page, single-spaced opinion.  I read the whole thing, and am about to say something about it.

You can figure out what kind of case it is just by looking at the docket numbers.  The docket numbers in the district court begin with "94-" and "97-".  So, yes, the appeal arises out of petitions filed around two decades ago.  The Ninth Circuit has been similarly speedy.  Its docket numbers begin with 09-.  Which means that it has taken six years simply to resolve the appeal.

You guessed it.  It's a death penalty case.

So resolve it Judge Wardlaw does.  The opinion gets published today.

But, simultaneously, another order issues.  Here's what it says in full:

"We sent the accompanying opinion for filing on Friday, March 20, 2015. On Tuesday, March 24, 2015, we received from Mr. Medina’s counsel a filing entitled 'Suggestion of Death' informing us of a press release indicating that Mr. Medina had 'died on the evening of March 22, 2015 from natural causes . . . .'

Because at all times when we made our decision and sent it for filing, the case was not moot, we allowed it to be published in the ordinary course. However, we direct the parties to file letter briefs within 14 days hereof addressing how best to proceed with the opinion in light of Mr. Medina’s death."


Judge Wardlaw's opinion affirmed the two death sentences against Medina.  Little did she know that, two days later, death would indeed follow.


Wednesday, March 25, 2015

People v. Velasco-Palacios (Cal. Ct. App. - March 23, 2015)

I said last week that I might not have dismissed the indictment -- and let a (potentially) guilty person free -- based on the government misconduct in that case.  Unlike the Ninth Circuit.

By contrast, here's a case where I think the Court of Appeal rightly sets a (potentially) guilty person free based upon government misconduct.

Defendant gets charged with lewd conduct with a child.  The D.A. makes an offer of eight years.  The defendant doesn't want to take the deal, but his lawyer tries to persuade him to make a counteroffer, and thinks the thing will eventually result in some sort of plea.

Meanwhile, the D.A.'s not happy his offer isn't being accepted, so to turn up the heat, tells the P.D. that he's thinking about refiling the charges against the guy and alleging penetration, which would mean a potential life sentence.  And if he refiles, the D.A. threatens, there will be no plea.

Pretty good threat.

One slight problem.  The D.A. knows that there's no evidence whatsoever of penetration.

Okay, you might say.  That's why they call it a "threat".

Fair enough.  It's what happens next that what justifies, in my mind, the dismissal of the charges.

The D.A. has threatened to allege penetration to try to coerce a guilty plea.  He knows there's no evidence to support it, however.  Meanwhile, discovery in ongoing.  There's an audio tape of the interrogation of the defendant by the police.  It's in Spanish.  The D.A. has a transcription of the interrogation which has been translated into English. Which he turns over to the defendant's counsel.

With one caveat.  At the end of the transcript, the D.A. fabricates two additional lines.  Which read:

“[DETECTIVE]: You’re so guilty you child molester.
[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”

You read that right.  The District Attorney forged a transcript in which the defendant allegedly admitted the offense.  As well as essentially admitted penetration.  Which was what the D.A. was threatening to allege -- despite having no actual evidence of it -- in order to coerce a plea.

Here's what the Court of Appeal says about this conduct:

"[An] evidentiary hearing was held on December 17, 2013. At the hearing, Murray [the D.A.] testified the lines were added as a joke, but admitted he did not have a joking relationship with Hinman [the P.D.] and had not made such jokes in the past. . . . [T]he trial court found Murray’s dissemination of the fabricated transcript was made during discovery proceedings and was 'in play' during settlement negotiations. The trial court also found Murray had failed to prove the fabrication was a joke, but even if it had been done in jest, Murray’s dissemination of the fraudulent confession during plea negotiations was 'egregious, outrageous, and … shocked the conscience.' . . .

[T]he trial court found Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges carrying a life sentence, and he distributed it to defense counsel during a period of time when Murray knew defense counsel was trying to persuade defendant to settle the case. Further, Murray did not reveal the alterations until nine days later, and only then when he was directly confronted about the fabricated lines by defense counsel. This is egregious misconduct and, as is shown below, it directly interfered with defendant’s attorney-client relationship. Because Murray clearly engaged in egregious misconduct that prejudiced defendant’s constitutional right to counsel, the trial court was correct in finding Murray’s actions were outrageous and conscience shocking in a constitutional sense."

On that basis, the trial court dismisses the charges against the defendant, and the Court of Appeal affirms.

I can honestly say that I don't even understand what the D.A. was thinking.  What he did was deeply, profoundly offensive.  Shocking.  Horrible.  I can barely even fathom it.

Tuesday, March 24, 2015

Watts v. Oak Shores Community Ass'n (Cal. Ct. App. - March 24, 2015)

This is justice?!

I'm not saying that Justice Gilbert's opinion is unambiguously wrong.  Maybe it even reaches the legally correct result.

But the thing leaves an incredibly bad taste in my mouth.  If it's indeed the "right" result, maybe the system that gives rise to that result needs changing.

The facts are simple, at least when sufficiently condensed.  Oak Shores is a homeowner's association in a community of 650 or so homes.  From the opinion, it looks like the place is on a lake or at some other vacation-like spot in San Luis Obispo county -- I think this one.  Of the 650 homes, only a tiny fraction -- around twenty percent -- are occupied full time.  Most of 'em are just vacation homes.

Some of those owners -- around 66 of 'em -- occasionally rent their places out as vacation rentals.  No problem.  You're allowed to do that.  Defrays the cost of your vacation home.  For what it's worth, the practice is also socially beneficial.  Allows people not rich enough to afford a second home to vacation in a nice place.  Stops nice properties from being vacant most of the year.  Good for everyone.

But many people in the HOA who live there full-time -- and (presumably) some of those who have their vacation houses there -- don't necessarily like having riff-raff around who can't afford a second home.  They don't like the short-term rentals.  Because they don't do it and, being rich enough, don't need it.  Plus it puts more people in the community pool, the lake, makes for extra garbage, etc. that wouldn't be there if the homes were simply vacant.

So the HOA adopts some rules.  Some of which, I think, are potentially reasonable.  There's a $325 fee for owners who rent their homes out.  I'm not sure that's really necessary, since one person (albeit "riff-raff") presumably creates a similar amount of garbage etc. as a rich person.  But okay.  It's a fairly small fee in the scheme of things -- probably offset by a day or two's worth of rental.  There are some other restrictions as well; a limit on the number of watercraft on the property, etc.  Things that seem fine.

But the one that struck me as the most restrictive -- and absurd -- is one that said that any rental has to be for a minimum of seven days.  That one stops the overwhelming majority of rentals.  And it is clearly designed to keep out the "weekend riff-raff".  You know:  People who actually have jobs and who can't afford to take off a full week and hang out at a fancy place on the lake.

So one of the owners sues.  Claiming that this restriction is unreasonable.  Why shouldn't he be allowed to rent his place for three days instead of seven?  Same number of people in the house.  The owner's ultimately responsible for any damage, garbage, etc.  Why should anyone care?

Or, more accurately, why should anyone legitimately -- i.e., "reasonably" -- care whether the rental is for three or seven days?  Sure, maybe the weekend renters wear prefer tee-shirts and sneakers to polo shirts and boat shoes.  But that's not a good reason to exclude 'em.

Or so asserts the plaintiff.  Plausibly, in my view.

What does the Court of Appeal do?  Two things.

First, it upholds the restriction.  Finding it "obviously" reasonable.  Here's the money quote from Justice Gilbert:

"That short-term renters cost the Association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse."  (Emphasis added).


Three-day renters "use the common facilities more intensely" than seven-day renters?  Three day renters violate the rules more than seven day renters?  That's really so "beyond debate"?

My sense is that, on a daily basis, a renter for three days would use, say, the pool, the lake or the garbage can roughly, oh, once a day.  Just like a seven day renter would.  Their use is roughly the same.

Indeed, if anything, a seven day renter uses the facilities more.  Because he uses it for seven days, whereas a three-day renter uses 'em for roughly three.  That's around double, if my math's anywhere near right.

Sure, you could fit in two three-day renters for one seven day renter.  But practically, who gets a three day rental in the middle of the week?  We all know full well that we're talking about either having a family in there for a whole week or a family in there for the weekend.  And which one of these two groups makes more garbage, uses the pool more, etc.?  That's right.  The group there for the whole week.  So the HOA's limitation actually increases the use of community resources.  The antithesis of what the regulation purports to do.

Unless you count the practical reality of the whole thing.  Which seems designed just to stop rentals.  Or at least rentals to riff-raff; read, less wealthy folks.  Make it noneconomical for the owners to rent it out as well as for the riff-raff to afford the place.

That's what the plaintiff says is going on here.  Which seems fairly "common sense" to me.  Justice Gilbert, by contrast, seems to think that the converse is not only true, but "beyond debate".

I'd respectfully disagree.

It's not that I would disagree that renters are (at least slightly) more of a hassle than owners.  But that's not the dispute.  The dispute is about seven-day renters, who are allowed, versus two- or three-day renters, who aren't.  There's no substantial distinction between these groups, in my mind, with respect to how much they "use the common facilities" or are "careful in using the common facilities because they are not concerned with the long-term consequences of abuse."  They are both renters.  Yes, they are (somewhat) more burdensome than owners.  But the owners are ultimately responsible for any damage etc., pay a fee for 'em, and are replacing their own use for that of the renters.  The distinction between three- and seven-day renters seems far from indisputably legitimate.

But Justice Gilbert nonetheless sees it starkly differently.

So that's the first thing the Court of Appeal does.

What's the second?  It awards the HOA its attorney's fees.

Legally, that's perhaps appropriate.  The HOA agreement says the prevailing party gets fees.  Fair enough.

How much attorney's fees does the trial court award to the HOA?  An award that the Court of Appeal (largely) affirms?  How much attorney's fees is the HOA legitimately entitled to in order to defend the lawsuit of a guy who says that he should be allowed to rent his place for a weekend rather than for a week?


Oh, yeah.  That's reasonable.  Awards like that don't totally squash the little guy's ability to sue an HOA over unreasonable restrictions on the use of his property.  Lots of people are willing to risk a million-dollar-plus judgment against them rather than simply submit to whatever limits the HOA places on 'em.  There's no systemic problem with such a regime at all.

*Retroactive Sarcasm Alert*

Am I wrong?  Is anyone else troubled, even in just the slightest, with either the reasoning or the result here?

Again, I'm not necessarily saying that the legal doctrines applied here are wrong.  But the net result is exceptionally troubling to me.  A regime that creates this outcome seems a regime in need of serious improvement.

Because I think that the plaintiff, Mr. Watts, had a darn good point.  As well as a darn good reason for bringing this action.

And I say that as someone who just returned from two weeks of renting someone else's vacation home in an HOA in Hawaii.  So I'm not even the riff-raff that the HOA is trying to keep out.  Or at least I'm  their kind of riff-raff; e.g., the classless nouveau riche.

Monday, March 23, 2015

Boyce v. TD Service Co. (Cal. Ct. App. - March 23, 2015)

As you undoubtedly know, there have been a plethora of "wrongful foreclosure" cases -- both in trial courts and in the appellate courts -- over the past half-decade.  Especially at this point, the consensus judicial attitude to those actions is not especially favorable.

Lest there be any doubt, today, Justice Yegan grants us a fairly good insight into his view.  Ostensibly as regards one particular case, but I think it's pretty indicative of a more general attitude as well.  He ends today's opinion with the following statement:

"Appellant lost in the bankruptcy court. He lost in United States District Court. He lost in the unlawful detainer court. He lost in the Appellate Department of the Superior Court. He lost in Superior Court. He now loses here. As the late eminent federal appellate jurist Rugierro Aldisert would say, "Basta," which translates from Italian to English as, Enough! (United States v Desmond (1982) 670 Fed. 2nd 414, 420) The judgment is affirmed. Costs to respondents."

That's pretty clear, I think.

Friday, March 20, 2015

Munns v. Kerry (9th Cir. - March 20, 2015)

It's facially an ordinary case about standing.  Standing that's absent here, so the declaratory claims get dismissed.

But, factually, it's about what you do when your citizens are kidnapped by hostile forces in a foreign country.  As well as what their families can do in such a setting.  Should you pay ransom?  Should you allow -- or legally prevent -- the families from paying ransom?  What should society, or a single person, do when the life of a loved one is at stake?

What an incredibly difficult question.

But one that the Ninth Circuit is not compelled to answer.

Thursday, March 19, 2015

Seattle Midwest Awareness v. King County (9th Cir. - March 18, 2015)

I make the odds at roughly 4-1 against an informed observer guessing the votes in advance in this one.

The panel consists of judges Kozinski, Christen, and Watford.  A nonprofit group wants to put an ad on the side of Seattle buses that demonstrates opposition to U.S. funding for Israel.  Seattle doesn't let 'em.  There are lots of different ads on the buses, but there are also some limitations (e.g., no nudity, no tobacco products, etc.).

Does Seattle's decision to not allow the advertisement violate the First Amendment?  Who voted which way?

Thinking.  Thinking.  Thinking.

Here's the answer:

Judge Kozinski:  No First Amendment violation.
Judge Christen:  Violates the First Amendment.
Judge Watford:  No First Amendment violation.

Bonus points if you remembered that Judge Watford clerked for Judge Kozinski.  Not that the guy doesn't have a mind of his own.  But at least in this case, he's on the side of his old boss.

Wednesday, March 18, 2015

U.S. v. Zaragoza-Moreira (9th Cir. - March 18, 2015)

Defendant is mildly mentally retarded.  She's caught bringing drugs across the border.  When she's interviewed, she says that she was coerced, and that she "wanted to be caught" so did a variety of things at the border to bring attention to herself; patting her stomach, throwing her passport down, etc.

Her defense attorney makes sure to ask the U.S. to preserve any relevant videotapes.  But the U.S. nonetheless destroys (pursuant to a routine policy) the videotape of the relevant border crossing.

I agree with pretty much everything the Ninth Circuit says when it reverses the district court.  The videotape might well have had some important stuff on it that would confirm defendant's story.  The AUSA should have known to request its preservation.

I'm not at all sure that the U.S. acted in bad faith -- which the Ninth Circuit finds.  Nonetheless, I am confident that the defendant's ability to defend herself -- to potentially confirm some of her story about being coerced and all allegedly trying to draw attention to herself at the border -- was diminished by the government's conduct.

My biggest departure from the Ninth Circuit's disposition is in its final two paragraphs.  I agree that there's not really "comparable" evidence to the stuff the U.S. destroyed; yes, the defendant can testify about what she did, but a videotape is worth a thousand times more than the self-interested testimony of the defendant.  For this reason, the Ninth Circuit dismisses the indictment.  Which may well have the result of setting a guilty person free.

I'm not sure that's a necessary remedy.  Let's assume -- and it's an assumption, but it's one that I'm prepared to make legally -- that the videotape confirmed the defendant's story that she engaged in some crazy acts at the border.  To me, that's doesn't necessarily mean that she was innocent.  It may be that she was just incredibly nervous.  Or had sampled some of the methamphetamine that she was smuggling across.  In short, the lost evidence might -- might -- have been helpful to her case, but it's not necessarily dispositive.

Given this fact, what about a lesser remedy than dismissal of the indictment?  What about telling the jury that there was a videotape of the events at issue, that the videotape was improperly destroyed, and that the jury should accordingly assume that this videotape confirms every single objective act relayed by the defendant?  The thrown passport.  The tummy patting.  Everything.  Then let the other facts come in -- cross-examination, other evidence, etc. -- and have the jury decide guilt.

What's wrong with this lesser remedy?  The videotape couldn't do any better than confirming the defendant's story in this way.  So why not simply tell the jury that it must assume that that's what the videotape did, in fact, show in spades, and then let them assess the balance of the evidence?

We generally assume that juries follow instructions.  If you're not positive, we can give 'em an even stronger instruction.  Tell 'em that there is a videotape (there was, after all), tell 'em we've seen it (a statement that's presumably true; someone at some point saw it), and tell 'em that while we can't show it to 'em right now (true), it confirms everything that the defendant said she did in the line at the border.  The last statement being true as a legal matter.

The AUSA screwed up here.  But to me, I'm not sure the remedy necessarily needs to be dismissal of the indictment.  Something lesser might well solve the problem.  Setting a defendant free sometimes is the only available remedy, but I'm not sure this is one of those cases.

Tuesday, March 17, 2015

People v. Jordan (Cal. Ct. App. - March 16, 2015)

This is why, when you buy something off Craigslist, you meet the seller in a large, crowded place.  Or the parking lot of a police station.

It's also a good indication of why you don't follow someone in your car once they rip you off.

Words to the wise.

Monday, March 16, 2015

Lanquist v. Ventura County Employee's Retirement Corp. (Cal. Ct. App. - March 16, 2015)

Don't mess with the Navy.

Lots of government entities allow employees to "buy" retirement credits for time they spent in the military.  Another perquisite of service.  Timothy Lanquist and Thomas Temple want to make the buy.  Not only for their time in the "actual" military, but also for their four years they spent as a student at the Naval Academy.

The trial court doesn't let 'em do it.  The Court of Appeal reverses.

One of the plaintiffs, Thomas Temple, is an attorney, employed by the Ventura County Counsel's office.  And a graduate of the University of San Diego School of Law.  Both Mr. Lanquist and Mr. Temple prosecuted their matters pro per.

Lots of other jurisdictions don't allow credit for time spent at the various military academies.  As of today, California goes the other way.

In Re Chang (Cal. Supreme Ct. - March 16, 2015)

It took a long time in coming.  But come it did.

Back in 1890, Hong Chang applied to become an attorney in California.  But the California Supreme Court wouldn't let him.  At the time, you couldn't become a lawyer in our state if you weren't eligible to become a citizen, and the federal Chinese Exclusion Act prevented Chang (who was from China) to become a citizen.  Hence Chang's application to become an attorney is denied.

Fast forward to today.  Over a century later, the California Supreme Court grants Mr. Chang posthumous admission as an attorney.

Given the history here, I think we can overlook the fact (not mentioned by the Supreme Court's opinion) that, technically, Chang's not actually allowed to become an attorney without taking the required oath.  Which is going to be hard for him to do at this point.

Welcome to the Bar, Mr. Chang.  Long overdue.

Thursday, March 12, 2015

Kyzar v. Ryan (9th Cir. - March 12, 2015)

For a look inside an Arizona prison, read this Ninth Circuit opinion.  Foreshadowing:  It leads to the stabbing death of a guard.

The Ninth Circuit agrees that there was sufficient evidence to convict the habeas petitioner here of conspiracy for helping to provide the murderer with a shank.  Ironically, the best evidence against the defendant was his (admittedly somewhat weak) attempt to dissuade the murderer from committing the crime, asking him "Well, are you sure about this? How much time you got, homeboy?"  That, the Ninth Circuit holds, proves that the petitioner knew that the murderer intended to do something bad with the shank.

So much for good intentions.

Wednesday, March 11, 2015

DeCambre v. Rady Children's Hospital (Cal. Ct. App. - March 11, 2015)

I wonder if you get a slightly different perspective on cases that (1) come from your home town, and (2) involve hospitals.

Dr. Marvalyn DeCambre is a pediatric urologist at Children's Hospital in San Diego.  She's an African-American woman, and says that she was discriminated against from the outset of her employment.  She was ultimately (effectively) fired, and she sued.

People might have different perspectives on how plausible it is that a hospital would discriminate against someone in such a setting.   But one thing is fairly clear:  the nurses at Children's Hospital didn't like how Dr. DeCambre treated them, and neither did patients, since Dr. DeCambre "received five times as many complaints as the next most complained about physician" at Children's.

Children's Hospital says that's why it fired her.  The trial court agreed.

The Court of Appeal reverses in part.

Perhaps because the events at issue arise from a nearby hospital (indeed, one my family has used), as I read the opinion, it highlighted for me that one of the potential downsides of inaptly applied laws that (rightly) protect minorities is that in particular cases, you might impose ancillary costs not only on the underlying business, but also on the affected community.  My bet is that the staff and patients who were forced to endure "DeCambre's disrespectful and insensitive behavior" were likely pretty happy to see her go.  My money's also on the fact that Children's Hospital likely had to feel like it had a pretty strong case before firing her,

You may be a little bit worried that antidiscrimination laws might encourage employers to retain some subpar employees for fear of a lawsuit.  But you're a lot more worried, I think, when those employers are, say, the doctors of your children.

The relevant laws don't vary depending on the potentially countervailing social interests at stake.  I wonder if they should.

(Of course, there are countervailing interests on the other side as well; you don't want a hospital, for example, firing more effective doctors merely because they're minorities.  But I nonetheless wonder if the practical realities of the modern era -- at least in certain areas and professions -- don't risk one of these dangers more than the other.)

Tuesday, March 10, 2015

Aircraft Svc. Int'l v. Working Washington (9th Cir. - March 10, 2015)

I'm not sure that today's en banc opinion by Judge Owens necessarily articulates a "voice" that will be displayed throughout his long tenure on the Ninth Circuit.  But if it does, I for one will be happy.

It's a labor law opinion in which there's a concurrence from some harder core lefties (led by Judges Berzon) and a dissent from some more conservative judges (led by Judge Kleinfeld) about whether the district court properly enjoined aircraft fuelers at Seattle-Tacoma Airport from striking.  The majority holds that it erred, while the dissent disagrees.

Here's the end of Judge Owens' opinion.  Which I very much like:

"We emphasize that our conclusion is modest: we hold that a party must comply with Section 8 of the NLGA before seeking an injunction under the RLA. The dissent’s suggestion that our holding will disrupt commerce is fundamentally mistaken. As the Supreme Court has explained, “the purpose” of Section 8 “is to head off strikes,” not encourage them. Toledo, 321 U.S. at 65 (emphasis added). Section 8’s salutary mandate that parties make all reasonable efforts to settle labor disputes before seeking judicial intervention will help prevent, not cause, interruptions to commerce. By contrast, allowing injunctions when the necessary steps “have not been taken, not only violates the section’s terms,” but encourages parties to act unilaterally and avoid the reasonable steps that “when achieved, make unnecessary invocation of the court’s aid.” . . .

Our decision will neither summon monsters from the deep nor rain frogs from the heavens to “destroy” the North American transportation system. We do not hold that courts are prohibited from enjoining airport strikes. Rather, our narrow holding—compelled by Toledo and consistent with that of the vast majority of courts confronting this issue—merely requires carriers to abide by Section 8’s requirements before seeking an injunction. Because the record lacks evidence that ASIG made every reasonable effort to settle the dispute, we reverse the district court’s order and vacate the preliminary injunction."

For the record, however, if frogs ever do rain from the heavens, I wouldn't at all be surprised if the location of this meteorological event was Seattle.

Monday, March 09, 2015

Munoz Santos v. Thomas (9th Cir. - March 9, 2015)

I appreciate Judge Nguyen's concise explanation of how federal extradition works.  Because until today, I understood the concept, but was entirely ignorant of the details.

It's a straightforward concept, but its statutory implementation seems a bit funky in places.  The basics are simple:

Step One:  Some other country (say, Mexico) asks the U.S. to extradite someone;
Step Two:  The State Department decides whether to say "Okay;" if so;
Step Three:   The U.S. Attorney files for an arrest warrant for the dude in federal district court;
Step Four:  The district judge decides whether there's probable cause to extradite the guy; and, if so;
Step Five:  The warrant issues, the dude's picked up, and off to the other country he goes.

The judicial complexity comes in Step Four.  The relevant statute says that the "probable cause" proceeding is a fairly limited affair.  The government comes in with whatever evidence it wants to prove that there's good reason to believe that the person has committed an extraditable offense.  The defendant, however, can only present evidence that “explains away or completely obliterates probable cause . . . whereas evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible."

You can figure out the problem.  The difference between admissible “explanatory” or “obliterating” evidence and inadmissible “contradictory” evidence is amorphous.  When is evidence the former, and when the latter?

Judge Nguyen doesn't have to totally resolve this issue.  She just holds that a guy's recantation -- and claim that his testimony was adduced under torture -- falls in the second category.  A complete demarcation of what type of stuff falls in each category awaits another case.

Friday, March 06, 2015

Rifkin v. Carty (Cal. Ct. App. - March 6, 2015)

Your divorce from your former spouse may have been bad:  long, expensive, and litigious.  But odds are it wasn't as bad as this.

Dickson v. Burke Williams, Inc. (Cal. Ct. App. - March 6, 2015)

You can't be liable for failing to take reasonable steps to prevent sexual harassment if there was no sexual harassment.

So holds the Court of Appeal.

Thursday, March 05, 2015

DuBeck v. California Physician's Service (Cal. Ct. App. - March 5, 2015)

As Eli Wallach memorably said in The Good, the Bad, and the Ugly:  "When you have to shoot, shoot.  Don't talk."

The Court of Appeal reiterated that message in a slightly different context today.  Telling Blue Shield:  "When you want to rescind, rescind.  Don't cancel prospectively."

Plaintiff has a lump on her breast and sees a doctor, who conducts a needle aspiration.  Five days later, plaintiff submits an application for health insurance to Blue Shield.  Blue Shield asks tons of health questions (as might be expected), but plaintiff omits anything about her recent visit to the doctor, the lump, etc.  Saying "no" to tons of questions where she should have said "Yes".

Blue Shield issues the policy.  One week after the policy issues, plaintiff has breast cancer surgery.  There's lots of subsequent medical treatment as well.

Blue Shield eventually finds out about the omissions.  When it does, it cancels the policy.  But does so only prospectively; it says its going to pay for the existing stuff, but nothing in the future.

Eventually, plaintiff becomes unhappy with some stuff that Blue Shield's not paying for (Blue Shield says some of this stuff is from a preexisting condition), and files suit.  Blue Shield in turn moves for summary judgment, saying that the lawsuit should be dismissed because it could validly rescind the policy based on plaintiff's clearly material omissions in her application.  The trial court agrees.

The Court of Appeal reverses.

Maybe Blue Shield could have rescinded, it says.  But it didn't.  It just cancelled the policy prospectively.  That's a waiver, the Court of Appeal says.  One that was clear, knowing, and voluntary.  So maybe you could have rescinded, but you didn't.  So if you were obligated to pay, you've got to pay.  Summary judgment reversed.

There's one additional fact that's perhaps only tangentially relevant legally, but I bet plays more than a little role in the Court of Appeal's conclusion.  Blue Cross only moved to rescind the policy after the plaintiff sued.  Why didn't it rescind earlier?  Maybe it had something to do with the fact that Blue Shield had collected and retained almost $20,000 in premiums from the plaintiff but had paid out less than $15,000 to her doctors under the policy.  Leading one to suspect that Blue Cross was happy to keep collecting premiums once things were working out well for it, but only moved to rescind after things went south.

Can't do that.  If you want to rescind, rescind.  Can't wait to see what happens.

Yousefian v. City of Glendale (9th Cir. - March 5, 2015)

It's a Section 1983 false arrest case in which the arresting police officer slept with the arrestee's ex-wife, who (among other things) planted drugs on her former spouse.  The plaintiff is represented by Mark Geragos, and the Ninth Circuit opinion is written by Judge Reinhardt.

What's your guess as to how the case comes out?

Nope.  Judge Reinhardt affirms the grant of summary judgment to the police officer and the City of Glendale.

Judge Reinhardt (not surprisingly) doesn't like the police officer's conduct.  And isn't shy about saying so. But he (rightly) holds that, under the facts of this case, there's no Section 1983 violation.

You can't necessarily judge a book by its cover.

Wednesday, March 04, 2015

In Re G.Y. (Cal. Ct. App. - March 3, 2015)

The Court of Appeal's call for legislative action here might well not fall on deaf ears.

You're not usually going to see the Legislature fall over itself to pass a statute that favors someone who's committed a crime.  Admittedly, the offense here was committed by a juvenile, and it wasn't by any means the worst offense you've ever seen.  Here's what G.Y. did when he was seventeen:

"In November 1998, after appellant was beaten by a group of men in a park, he went to his friend’s house. He and his friend then took the friend’s father’s handgun and drove to the assailants’ house. Appellant held the gun to a woman’s head and threatened to shoot her unless she summoned the men from inside the house. She did so and two men, who were holding baseball bats, came out of the house. Appellant threatened to shoot one of the men, but he and his friend left."

Still, the offense involved a gun, and that's serious.  Indeed, G.Y. gets sentenced to a maximum of 15 years in a juvenile ranch -- hardly a minor disposition.

But G.Y. completes the program, and gets released, in four months.  You read that right:  four months, not four years.

Then look at how G.Y. turns his life around:

"In 2006, appellant enlisted in the Army and served on active duty until November 2009. During that period, appellant was promoted to the rank of sergeant and received two Army Commendation Medals for his service in Iraq. Appellant also received numerous other achievement and leadership awards. Appellant provided two letters of recommendation from his commanding officers in the Army and an NCO (noncommissioned officer) evaluation that described his exemplary performance in the Army. After completing his active duty service, appellant enrolled in California State University, East Bay. In December 2012, he obtained his Bachelor of Science degree in Criminal Justice Administration. In 2013, appellant received another Army Commendation Medal for his outstanding contribution to military intelligence operations in Kuwait."

That's a story that people like to hear.  Did it the old-fashioned way:  Joined the Army and made something of himself.

G.Y. then petitions to have his prior felony convictions reduced to misdemeanors, a motion that the D.A. doesn't even oppose, and the trial court does so.  On similar grounds, he then moves to have his juvenile records sealed.  That way he can go through his new life with a "clean" sheet.

With only one barrier.  In 2000, California voters passed Proposition 21.  Which expressly says that a court can't seal juvenile records for specified (serious) felonies that someone committed when they were 14 or older.  Including but not limited to the offenses committed by G.Y. when he was 17.

The law's clear.  So G.Y.can't get relief.

The Court of Appeal calls upon the Legislature to change this result.  Which is understandable.  This is an extremely sympathetic case.

With two problems.  First, although the Court of Appeal says that it probably wasn't the voter's "intent" to stop relief in cases like this one, I'm not so sure.  The voters expressly passed a law that was deliberately categorical.  No one can get relief.  If you'd have asked the "Yes" voters, "Do you really mean 'no one,' even the most sympathetic?", I think the average person would have said "Yep.  That's exactly what I mean."  The statute was passed because they didn't want exceptions.  Didn't trust courts.  The problem you have here is exactly what you get when you enact such a rule.  It's not an accident.  It's deliberate.

Second, although the Court of Appeal calls upon the "Legislature" to resolve the problem, I'm not really sure that's where the call is properly directed.  Since it's an initiative statute, the Legislature can't amend it, right?  All it can do (if it wants) is to suggest an amendment and send it to the voters.  They passed it, so it's their call.

Sure, the Legislature is a (possible) start.  But really the proper message is to the voters.  Pass something that rectifies this problem.  And, in the future, don't pass stuff like this if you don't really mean it.

Tuesday, March 03, 2015

Sato v. Bank of America (Cal. Ct. App. - March 2, 2015)

Is this really all the Court of Appeal wants to do?

It's an unpublished opinion, so I wouldn't ordinarily mention it.  But it's a guy with my last name ("Martin"), so I feel somewhat proprietary about its reputation.

Andrew R. Martin files an appeal and submits briefs.  Here's what Justice Banke says about them:

"In this appeal, the Satos submitted opening and reply briefs totaling 105 pages that fail to provide a single page-specific citation. Instead, the briefs provide “citations” such as “see FAC” (referring to the first amended complaint, which contained 102 pages of allegations and over a hundred pages of exhibits) or make statements such as “[f]acts supporting Appellant’s claim[s] are from the FAC, the opposition to the subject demurrer, and the opposition to summary judgment”—asking this court to wade through nearly 300 pages without guidance. In short, the Satos’ briefing egregiously violates the Rules of Court and provides little help in analyzing the merits of the challenged judgment."

Okay, that's bad.  But ordinarily not really worthy of a huge spanking beyond being called out in an opinion.  (An unpublished one at that.)

But there's more.  Listen to this:

"At oral argument, counsel for the Satos, Andrew R. Martin—who signed the appellate briefs and presumably drafted them—attempted to excuse the rule violations by claiming this was his “first appellate case.” To say counsel was being less than candid with the court is an understatement—this was an outright mistruth. A quick search, by State Bar number, of the dockets of the First District Court of Appeal, alone, showed 17 matters initiated between April 2009 and October 2014, some completed some still active, in which Martin was at least one counsel of record. Thus, he has at least five-plus years of experience with appeals. Moreover, Martin has been on briefs submitted to this court in these other cases which not only suffer from similar defects, they predate the February 2014 opening brief in this case. For instance, the only record citation in the October 2013 opening brief in Jordon-Mendoza v. JPMorgan Chase Bank N.A. (A138304, app. pending) is in a footnote on page three, and it is to the entire complaint; nary a page cite is given. Even a “first time” appellate lawyer is expected to read and comply with the Rules of Court. Martin’s transgressions, as an experienced appellate lawyer, are inexcusable."


So what does the Court of Appeal do to someone who has seemingly outried lied to the Court of Appeal.  Here's the sanction:

"Martin is hereby put on notice that the court will consider imposing sanctions should he file any appellate brief in the future in this court bereft of proper citations to the record."

Wow.  Hurt me.

That's what you get for an affirmative misrepresentation to the Court of Appeal nowadays?

Let me add some more facts for color.  All coming from Mr. Martin's apparent record with the State Bar:

What happened to Mr. Martin's bar license in 2011?  It was suspended for failure to pay child and/or family support.  What happened to Mr. Martin in 2013?  He was convicted of drunk driving.  What happened to Mr. Martin in 2014?  He was convicted of battery.  All of this was on top of a conviction in 2009 for driving with a revoked license.

All I know is what I read in the Bar's charging documents (and Mr. Martin's limited responses).  But even without this background, I'd have been inclined to have been harsher on Mr. Martin than Justice Banke was.

After discovering that background, I'd be even more inclined.

Not the proudest graduate of the Golden Gate School of Law.  Nor the poster child for the 623 attorneys in California with the last name "Martin".

P.S. - In researching the docket, I'm also a little unclear as to Mr. Martin's exact role in the case.  The Court of Appeal says that "Andrew R. Martin [] signed the appellate briefs and presumably drafted them."  Yet the publicly available case information lists both the opening brief (filed on January 15 2014) and the reply brief (filed on -- appropriately enough -- April Fool's Day of 2014) by "Attorney:  Vernon Lester Bradley."  Plus there are two subsequent entries in April of 2014 regarding the substitution of Mr. Martin for Mr. Bradley.  So did Mr. Martin really prepare and file the briefs?  Plus, if Mr. Bradley filed the briefs, could he really do that, since he was disciplined and ordered inactive by the Bar in 2013?  This case just gets weirder and weirder.  (Maybe the docket sheet lists the "Attorney" who "filed" the brief as just the attorney of record on the case even when an entirely different attorney files the briefs.  Who knows.  I'm just going by what I see.  And it looks like a mess.)

Rush v. Sport Chalet (9th Cir. - March 3, 2015)

When you read this Ninth Circuit opinion, it seems so obviously right.  How could the district court have gotten such a (relatively) simple thing as joinder so wrong?  Obviously the various defendants were related.  Or at least were related in the minimal way required by the federal rules.  Or, even if they weren't, why weren't the improperly joined claims severed, rather than dismissed?  Why was the district judge so harsh?

Reading between the lines, however, I think one might obtain a hint.  It's an ADA claim about access to stores potentially brought by a high-volume filer who's looking to save on filing fees by dumping a number of different lawsuits into the same complaint.  The district court probably didn't like that.  It probably didn't like the merits much either.  Hence the result.

The Ninth Circuit never mentions anything like that.  But -- based on nothing but gut -- my money's on the district court not being at all fond of this type of litigation.

Friday, February 27, 2015

City of San Marcos v. Loma San Marcos LLC (Cal. Ct. App. - Feb. 27, 2015)

It's not that I don't feel bad for the defendant in this case.  I do.  It turns out that it was the last holder in a game of hot potato.

But a deal's a deal.  Even if it's a bad one.  So it loses the property.

Shortened to its essentials, here's the deal:

There's a 15-acre plot of land in the City of San Marcos that's being used for a recycling center.  The recycling center then closes, and the land is vacant for around a decade.

Eventually someone gets the bright idea to turn the place into a movie studio.  So the property owner enters into a deal with the City in 2004 to (1) get a conditional use permit to allow the property to be used as a studio (rather than recycling center), in return for (2) payment of $2.3 million in mitigation fees for the improvement of roads, etc. around the property.  The City doesn't demand payment of the $2.3 million immediately; nonetheless, it's a lien on the property, and various installment payments are due at the end of 2006.   The deal's negotiated, signed, delivered, and all the parties are sophisticated and represented by attorneys.  Fair deal.

Company A then buys the land from the original owner, fully aware of the deal and the liens on the property, for $8.75 million in February 2005.  Company A's also no dummy.  One year later, Company A sells 72% of the their interest in the property for $9 million to Company B.  That's a quick million-dollar-plus profit in less than a year.

Companies A and B are still working on getting a movie studio in there.  They ask the City for more time, and it give it to 'em, but the extra time runs out in early 2007.  Then they ask the City for yet more time, and the City gives it to 'em again, and there's a whole formal extension deal signed.  But there's still the $2.3 million due, and it's still a lien on the property, with a right to foreclose if it's not paid.

Company B's still trying to get a movie studio in there, but in the meantime, it uses the land for a commercial car photo shoot, and then rented as storage space several times.  The City wants there to be a movie studio too, so it hobbles along with these interim arrangements.  But in 2009, having still not been paid, the City essentially says "Enough.  Pay us."  But Company B doesn't.

So in 2010, the City exercises its right under the agreement to terminate the deal, and continues to demand its $2.3 million, but Company B still doesn't pay, so later that year, it files suit to foreclose on the land.  Company B fights, claiming that the deal is unconscionable, illegal, etc.  And I'm somewhat sympathetic to this view, since (as far as I can tell) the City's getting paid $2.3 million as mitigation fees for improved streets, etc. that it now doesn't actually have to do since there's not, in fact, going to be a movie studio there.

But a deal's a deal.  So, in 2012, the trial court -- after a five-day bench trial -- rules in favor of the City. And today the Court of Appeal publishes its opinion affirming the trial court.

Don't make bad deals.  And if you do, don't be surprised when you're held to them.

Thursday, February 26, 2015

People v. Johnson (Cal. Supreme Ct. - Feb. 26, 2015)

Can you guess what this appeal is about?  Can you guess the result?  Here are the first three sentences of the opinion:

"A jury convicted defendant Jerrold Elwin Johnson of the first degree murder of Ellen Salling with the special circumstances of robbery murder, burglary murder, and carjacking murder, as well as first degree burglary, first degree robbery, and carjacking. [Cites] The jury also found that defendant personally used a deadly and dangerous weapon, and the victim was 65 years old or older. [Cites] Defendant admitted that he had suffered one prior serious or violent felony conviction and had served one prior prison term."

There is one part of the opinion that merits at least brief mention.  The majority holds that when you enter a home, find a 76-year old woman baking cookies, and beat her to death with a tree limb, that counts as a "carjacking" as long as -- once she's dead -- you walk out of the kitchen, across a breezeway, enter a garage, and take the dead woman's car.

Justices Werdegar and Liu don't agree.  But they're outvoted.

Tuesday, February 24, 2015

People v. Soria (Cal. Ct. App. - Feb. 23, 2015)

Nothing good ever comes out of the following fact pattern:

"On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old defendant was home, drinking beer, and playing video games, when his son Theo brought home three friends and a large bottle of vodka. The group of four -- all of whom were about 20 years old -- consisted of defendant’s son, the son’s new girlfriend, Karolyn Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is the victim. They had a plan to get drunk. . . ."

Oh my.

So many different bad things can happen in a situation like this.  In this particular case, the offense for which defendant was convicted is rape of an unconscious person.

The evidence against the defendant is not, however, as strong as you often see.  There are no eyewitnesses to the offense.  The victim has no memory of what transpired.  There's no bruising or other unambiguous evidence of force.  There's no confession, either, even after a subsequent pretext call (in which the defendant continued to insist that he, too, had no memory of what transpired, although he often says that he's "sorry" that the victim was apparently raped while unconscious).

Sure, there's some very minor evidence against the guy.  His slippers were near her bed.  Stuff like that.  Evidence that might perhaps be explained by the fact that the victim vomited, passed out, and had to be taken care of by somewhat.  

But the strongest evidence against the defendant was -- as you might imagine -- the DNA evidence.  That's what nails him.

With one not-so-tiny problem:  The DNA does not match.

This is probably why the first jury ends up hung.  But the second jury convicts.  Because while the DNA doesn't perfectly match, it definitely comes close.  The prosecution's witness compares the DNA sample inside the victim with the defendant's DNA at the standard 15 places and they match at 14 of 'em.  But not at the 15th.  The expert has a "crossover" theory about the 15th location, but admits that there's utterly no scientific evidence for that theory.

So that's a problem.  The DNA doesn't even match.

But it comes close.  And while you might think that "close" only counts in horseshoes and grenades, here, close is close enough.  For the jury as well as for the Court of Appeal.  It's enough evidence to even establish guilt "beyond a reasonable doubt".

Is the "slipper" evidence or the pretext call really that strong?  Nope.  No way.  But I think Justice Murray gives a pretty accurate description of why the defendant ultimately gets convicted (and that conviction gets affirmed) when he says:

"The DNA testing of the sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted that the major profile is not Beto and it is not defendant’s son. That leaves the only other male in the house, defendant. Unless there was some unknown male at the house who had intercourse with the victim who had the exact same profile at every location except one, where a potential triallele is located, then it must have been defendant who was the perpetrator."

So close is indeed good enough.  Because everyone else isn't even close.

Monday, February 23, 2015

In Re D.D. (Cal. Ct. App. - Feb. 23, 2015)

"On November 1, 2013, San Francisco Police Officer Duncan Duffin and his partner, Francisco Chicas, were working as a robbery abatement team. A series of armed and unarmed robberies had been committed within two blocks of the Glen Park and Balboa Park BART stations, mostly by young males (teenaged or in their early 20’s) who were wearing loose-fitting dark-colored hooded sweatshirts or pullovers and pants. At about 4:00 p.m., the uniformed officers were patrolling the area around the Balboa Park station in an unmarked vehicle. They saw two teenaged males wearing hooded sweatshirts and blue jeans standing in front of a parked Pontiac Grand Prix in a San Francisco Municipal Railway (Muni) employee parking lot near a Muni maintenance yard. The lot had signs indicating it was for Muni employees only and prohibiting trespassing.

The officers pulled over, and Duffin noticed smoke in the vicinity of the young men (D.D. & K.H.). He also saw D.D. look directly at the officers and then turn and enter the front passenger’s side of the Grand Prix. As the officers exited their car and approached the young men, Duffin smelled a strong odor of marijuana. He asked K.H., “Who has got the weed?” K.H. admitted having marijuana.

Duffin motioned with his hand for D.D. to exit the Grand Prix. When D.D. got out, Duffin asked for his name and identification. D.D. provided a false name and said he did not have identification. Dispatch had no record for the name given by D.D. D.D. was advised that Duffin and Chicas were investigating a series of robberies in the area. D.D. denied having any weapons on his person and did not tell Duffin who owned the Grand Prix. When asked why he was on Muni property, D.D. answered hesitantly and avoided the question. D.D. appeared apprehensive and nervous, and he kept looking left and right up and down the street without making eye contact with Duffin. As D.D. moved around, he kept repositioning his right hip away from Duffin: D.D. stood in a bladed stance, with one foot forward and one foot in the back at about a 45 degree angle and, as Duffin moved, he would pivot so his right hip was always pointed away from the officer. Duffin testified that, based on his experience and training, he believed D.D. was carrying a weapon at his right hip.

Duffin decided to search D.D. for weapons out of concern for the officers’ safety. D.D. placed his hands on the back of his head, and Duffin used his left hand to secure D.D.’s hands. Using his right hand, Duffin lifted the right side of D.D.’s sweatshirt and saw a semiautomatic black handgun at D.D.’s right hip, tucked in his waistband. Duffin removed the gun, placed it on the ground, and arrested D.D. Chicas examined the gun, a semiautomatic nine-millimeter Glock pistol, and determined that it was loaded with a live round in the chamber. It was stipulated that D.D. was 15 years old at the time of the incident."

That sounds like pretty good police work to me.  And I agree with every word of Justice Bruniers' opinion that holds that what the police did was proper.  That the police officers "saw two young men standing in a nonpublic Muni parking area, observed smoke near the men, and smelled marijuana" did indeed "provide some objective manifestation that D.D. and K.H. might have been trespassing and smoking marijuana, thus justifying an investigatory detention," and the fact that these kids "were in the general vicinity of a recent spate of robberies and were in clothing and of an age group that generally corresponded with descriptions of the robbers" rightly "added to the officers’ reasonable suspicion of criminal activity."  Similarly, while I understand the minor's argument that the police could not be sure that the minors were trespassing "because he and K.H. could have been Muni employees," neither I nor the Court of Appeal are ignorant of the world.  Justice Bruniers is right that '[g]iven the suspects’ young age, casual clothing, and apparent leisurely, lingering behavior smoking in front of a parked car, the officers had objective grounds to suspect D.D. and K.H. were not Muni employees with a legitimate reason to be present in the parking area, but were knowing trespassers on the clearly marked private lot."

What both the police as well as the Court of Appeal does here makes a ton of sense to me.

Fischer v. Time Warner Cable (Cal. Ct. App. - Feb. 23, 2015)

Of course you want to sue Time Warner Cable.  Hardly a sympathetic defendant.  Of course cable rates are too high.  Undisputed.  Of course it's absurd that cable companies should allow consumers to pick stations a la carte rather than cramming dozens of channels down your throat that you'll never watch in a million years.

Finally, for those in the L.A. area, of course it's absurd that Time Warner paid $11 billion to broadcast the Dodgers and Lakers games and included those games as part of its basic cable package, raising basic cable rates $9/month for everyone -- even the 60% of consumers who have no interest in watching those games -- rather than permitting consumers to opt out.

But while you can (justly) bitch about it, you can't sue.  The Court of Appeal holds that state law unfair competition claims are preempted by the various federal regulations that govern the cable industry.  So you're stuck paying for something you don't want.

Whenever I think of cable television, I think of manifest market imperfection, and how our antitrust and other laws don't seem to capture whatever's going on here.  Sure, I understand that at least in theory, the cable companies compete with plenty of alternatives:  satellite, broadcast, Netflix, internet, etc.  So, in theory, the cable companies don't have a monopoly, and hence are subject to competitive pressures.

But if that's really true, then why do we see the world as it is?  Why are people as fundamentally unhappy with the cable companies as they are?  Today's example is a perfect example:  Why, in a truly competitive market, would cable companies be able to effectively cram down an expensive service on half its customer base that didn't want it?

The truth is that they couldn't.  These competitors do indeed "compete" at the margins -- and I say this as someone who switched off cable long ago -- but only at the fringe.  For the core population, there's really not a tenable alternative.  So the cable companies can, and do, put the screws to them.  As much as they want.

We love to believe in the power of a competitive marketplace.  I wonder if our belief in this regard is really tenable in a wide variety of contexts.  With cable television being an extraordinarily good example.

Admittedly, in the long run, I think this will all work out.  Cable will die.  And there are tons of people who will dance on its grave.

But in the meantime, people continue to be (effectively) forced to pay for things they manifestly do not want.  In an industry that I'm not at all confident is, in fact, substantially constrained by market -- or legal -- forces.

Witness today's case.

Friday, February 20, 2015

Rodriguez v. Brill (Cal. Ct. App. - Feb. 20, 2015)

Sometimes the pages of the California Appellate Reporter can substitute for a gossip magazine.  Witness this case.

Here's the front-page teaser:

"Brill is an attorney in the Bakersfield area. He and Rodriguez lived together as husband and wife for a number of years. When they separated, Rodriguez filed this action in 2006 against Brill, asserting that Brill promised to support her for the rest of her life and, in exchange, she gave up many opportunities to obtain the education and training she would need to support herself."

Ooh!  Palimony. Against an attorney.  This one.  Plus testimony that you don't normally expect in a palimony action against an attorney.  Like the former partner saying:  "I have been homeless since my ex-husband left me. I stay here and there, and because I grew up in Delano, I went and rented a P.O. box [there]. My daughters are unemployed. They are homeless, too.”

I'm quite confident that there are many sides to the various competing stories here.  And the underlying appeal concerns hypertechnical procedural stuff about terminating discovery sanctions, the applicability of mandatory relief for attorney negligence, etc.

Still, for stuff that's all about procedure, there are definitely some gritty details here.

In the end, it looks like Mr. Brill will have to now actually go to trial and defend his former partner's palimony claim.  Because the Court of Appeal reverses the trial court's denial of relief under CCP 473(b).  So unless there's another procedural debacle in the future -- which is certainly possible -- it looks like Kern County may get an interesting trial sometime soon.

Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (Cal. Ct. App. - Feb. 20, 2015)

Don't you love it when the Court of Appeal clearly summarizes the case -- and holding -- in two sentences at the outset of the opinion?

I know I do.

Justice Rubin starts today's opinion with:

"May the second-place bidder on a public works contract state a cause of action for intentional interference with prospective economic advantage against the winning bidder if the winner was only able to obtain lowest bidder status by illegally paying its workers less than the prevailing wage? We hold that the answer is yes if the plaintiff alleges it was the second lowest bidder and therefore would have otherwise been awarded the contract, because that fact gives rise to a relationship with the public agency that made plaintiff’s award of the contract reasonably probable."

Pretty clear and concise, eh?

Justice Grimes dissents from the court's conclusion.  But I don't think anyone can disagree with the style.  It's a great way to start an opinion.

Thursday, February 19, 2015

Calvo Fisher & Jacob LLP v. Lujan (Cal. Ct. App. - Feb. 19, 2015)

Lawyers can make a lot of money.  They can also spend a lot of money.

All of which happens here.

Which lawyer would you rather be?  You could be David Lujan -- a big-time attorney in Guam -- who (among other things) took a case in which he proved to a jury that his client, Junior, was an heir of Larry Hillbroom, who was one of the founders of DHL Worldwide Express and who disappeared while piloting a plane near Saipan.  That victory won his client over $90 million.  For which Lujan received a contingency fee of roughly 38 percent.

Not bad.  Not bad at all.

So that sounds like a pretty good choice.

But with every silver lining there's a cloud.  Eventually, Junior reaches the age of majority and files a lawsuit against Lujan in California, represented by Girardi Keese, that claims that Lujan conspired with others to fraudulently increase his contingent fee from 38 percent to 56 percent.  That's a big-time suit itself, seeking multiple millions.  Plus Lujan eventually wants to file a defamation suit against Girardi Keese (in Guam) for stuff it allegedly said about him in a press conference, and some additional ancillary litigation as well.

Which means Lujan's going to need a lawyer.

Enter Lujan's attorney friend, Eduardo Calvo.  Also in Guam.  Who agrees to represent Lujan in the various actions.

Not for free.  Not at all.

Calvo ends up billing almost $1.5 million to Lujan.  Who only pays a little over $300,000.  These two former friends talk a ton about the various lawsuits -- pretty much every day -- but also fight a ton about the amount of fees that Lujan's being charged.

Hence the future lawsuit between Calvo and Lujan.  Over fees.

Ultimately, that case goes to trial.  And Calvo wins a little under a million bucks -- the full amount he sought.  Plus another $300,000+ in prejudgment interest.

Not bad.  Not bad at all.

But it gets even better.  Then Calvo files a motion for costs, which is (of course) disputed, but he gets nearly all his costs awarded.  More critically, he also files a motion for fees.  Which he also wins.  To the tune of another $1.5 million-plus.

So choosing being Calvo, rather than Lujan, doesn't sound so bad either.

Mind you, both of 'em end up with tons of money.  But both of them also end up with huge, years-long headaches.  Plus one fewer friend.

But need I remind you that we're talking multiple millions of dollars?

Tough choices.

Wednesday, February 18, 2015

In Re Davis (9th Cir. - Feb. 17, 2015)

I'm not a bankruptcy guy, but I'm nonetheless generally familiar with Chapter 7, as well as Chapter 13, bankruptcies.  Even Chapter 11 (for businesses) rings a bell in my head.  Indeed, I can honestly say that I even know what Chapter 9's about:  municipal bankruptcies.  All of this having never taken the class in law school.

Mind you, I may well have just exhausted in three sentences everything I know about the subject.  But I have still heard of the stuff.

I'll nonetheless forthrightly admit that until I read this opinion, I'd never heard about Chapter 12.  Did not ring even the most subtle of bells.

But now I know.

It's about bankruptcies for farmers.  Presumably giving them an even more favorable break than other types of bankruptcies.

Carolyn Davis gives Chapter 12 a shot in this case after already getting a discharge under Chapter 7.  She's looking for more favorable treatment, but her petition doesn't exactly capture one's heart, since the "family farm" at issue is an 110-acre vineyard in Paso Robles.

The legal problem she has is that her "aggregate debts" exceed the approximately $3.5 million cap that is in Chapter 12.  At least when you count the total amount of her debt that had been previously wiped away under Chapter 7.

So the question for the Ninth Circuit is:  Do those debts count against the cap?

The answer is:  Yes.  Debts are debts.  Even when they've been wiped out in another petition.

So now I know two things about Chapter 12 bankruptcies.

And will almost assuredly die before I know three.

Tuesday, February 17, 2015

Aghaian v. Minassian (Cal. Ct. App. - Feb. 17, 2015)

You'd ordinarily think that a lawsuit between a citizen of Country X and another citizen of Country X regarding the ownership of property in Country X would be decided in . . . Country X.

Particularly when, as here, one of the defendants resides in Country X and isn't subject to jurisdiction in California.  The fact that a California tribunal wouldn't have the power to change the ownership of the disputed property -- located (again) in Country X -- would seem to lock things down.

Our fancy legal name for that is forum non conveniens.  We generally stay or dismiss lawsuits filed in our forum in that situation in favor of alternative litigation in Country X.

Except when Country X is Iran.

The Court of Appeal notes that Iran might look like a regular civil law country.  But it's exceptionally displeased that -- as is undoubtedly the case -- the judiciary in that country is heavily influenced by the position of the government, and probably doesn't like lawsuits by people (as here) who fled Iran after the overthrow of the Shah and are now trying to get that property back.

Plus there's the fact that the plaintiffs here aren't Muslim, and that one of them (gasp!) is a woman.

There's substantial reason to believe that Iranian courts aren't going to like that.  Especially when those tribunals have an express rule that the testimony of a woman is only worth half that of a man.

Iran can, of course, have whatever type of judiciary it'd like.  But when the remedy there amounts to "no remedy at all," we can refuse to dismiss lawsuits on forum non conveniens grounds.

As the Court of Appeal does here.  Reversing the trial court.

In Re Emily D. (Cal. Ct. App. - Feb. 17, 2015)

"On November 7, 2013 the Department received drug testing results for Elizabeth []. Elizabeth had tested positive for methamphetamine (at an extremely high level), amphetamine and marijuana. . . . When confronted with the test results, Elizabeth again denied methamphetamine use but confided to the worker she had been sleeping with a neighbor who used methamphetamine and that her positive test may have resulted from those encounters."

I'm pretty sure that's not how it works.  So is the Court of Appeal.

Monday, February 16, 2015

People v. Braslaw (Cal. Ct. App. - Jan. 30, 2015)

Here's a cautionary tale.  Drinking and sex.

It's also an interesting factual recitation.  Compare the Court of Appeal's opinion with a contemporary newspaper account of the events.  The Court of Appeal uses "Jane Doe" and initials, whereas the more robust newspaper story uses actual names.  The Court of Appeal mentions that the victim "phoned her then finacee, who is now her domestic partner," whereas the newspaper mentions that the victim is "openly gay" and that her then-fiancee was a "police officer in Las Vegas."  Plus the newspaper has a mug shot and more details about the defendant.

I'm not saying anything normative here.  Just describing the factual recitation.

A post-Valentine's Day reminder that reality isn't all love and chocolates.

Thursday, February 12, 2015

People v. Wade (Cal. Ct. App. - Feb. 10, 2015)

The California courts are closed because it's Lincoln's birthday, and the Ninth Circuit (again) has not published anything today.  So it's another lazy California day.  (Thankfully:  It's a sunny 80+ degrees and sunny here in San Diego, and is one of those February days that makes me thankful to be alive -- and in SoCal.)

But just because the California judiciary may be (officially) taking a break doesn't mean I can't tell them that they should take on some extra work.  Which I'll now do:

The California Supreme Court should grant review of this opinion.

I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable.

Justice Kriegler holds that you illegally carry a firearm "on your person" if the gun is in your backpack.  Hence prison time.  But less than two years ago, Justice Mallano (in an unanimous opinion) held that you're not illegally carrying a knife "on your person" if it's in your backpack.

One of those two opinions, in my view, is wrong.  It's the exact same statutory language.  They're both weapons.  It's inconceivable that the Legislature intended that you be allowed to keep a knife in your backpack but not a gun because the former isn't "on your person" but the latter is.

Most importantly, we need to know what we're allowed to keep in our backpacks.  Whether we spent years in prison shouldn't depend upon what panel we happen to draw in the Court of Appeal or which of these two competing decisions the trial court finds most persuasive.

So the California Supreme Court should take the case up and settle the question.

P.S. - The entire dispute also brought a smile to my face because it reminded me of something my father used to say.  He was fond of retelling the same stories over and over again.  (Whether he knew he was retelling the story to the same audience is an unsettled question.)  One of the classic stories he would often recount related to how law often remained unchanged in Virginia, the state in which he lived and practiced law.  He would often note that the law about concealed weapons in Virginia "still comes from a case about whether a gun in a saddlebag counts."  He always thought that was funny.  He was also right:  there was indeed a case in 1909 about whether a pistol in a saddlebag counted as being carried "about his person" under the statute.  An issue similar to the one the California Court of Appeal is now split.

I thought about my father's oft-retold story when I saw that one of the decisions cited by Justice Kriegler was from Virginia, and related to whether a pistol in a handbag counted as being "on one's person" notwithstanding the "saddlebag rule" established by the Virginia Supreme Court long ago.

The more things change . . . .

Wednesday, February 11, 2015

Eddie E. v. Superior Court (Cal. Ct. App. - Feb. 11, 2015)

The trial court repeatedly refuses to make findings that might allow a child to stay in the United States, thinking that he'd be better served if he made "a fresh start" by being deported to Juarez, Mexico.  The Court of Appeal, by contrast, thinks that the minor has turned his life around, including graduating from high school with a 4.0 grade point average, and has a contrary view of the merits.

Needless to say, the trial court loses, and the Court of Appeal wins.

In Re Art T. (Cal. Ct. App. - Feb. 11, 2015)

There are some things I don't know.  Like what it says about our species that we live in a world in which 13-year old children join gangs and kill people in cold blood.  Seriously:  I don't know what to make of this.

But there are some (more limited) things that I do know.  Like when a 13-year old boy being interrogated by the police says "Could I have an attorney?", that's a request for counsel under Miranda.

The Court of Appeal understands that as well.

Tuesday, February 10, 2015

Wilson v. Southern California Edison (Cal. Ct. App. - Feb. 9, 2015)

When I read the first paragraph of this opinion, and noticed that the jury had awarded the plaintiff over $4 million -- including $3 million in punitive damages -- for "allowing uncontrolled stray electrical currents to enter the home" from an electrical substation next door, I thought that this was one of your classic juries who believed that electromagnetic radiation from electrical power lines causes cancer.  A controversial theory, to say that least.

But the case is actually not about something controversial.  There are, in fact, stray electrical currents that can -- and often do -- enter homes from nearby substations.  Currents that can at a minimum be extraordinarily annoying, and potentially worse.

When you read this opinion -- which ends up remanding the case for a new trial (and reversing the award of punitive damages) -- my bet is that you'll think twice before buying a home that has an electrical substation nearby.

And if you'd have thought twice about it already, this one will make you think thrice.

Corbello v. Valli (9th Cir. - Feb. 10, 2015)

"Jersey Boys" = Massive Litigation.

Monday, February 09, 2015

Come Back, Ninth Circuit (9th Cir. - Feb. 2015)

Paul Simon once wrote (and sang):  "Where have you gone, Joe DiMaggio?"  The same might be said for the Ninth Circuit in February 2015.

In the six business days of this month, the Ninth Circuit has written a sum total of one -- count it, one -- published opinion.  Whereas the mass of unpublished opinions continues apace:  50+ and counting.

At this rate, February could be the slowest month in the history of the Ninth Circuit.  Plus don't forget it's only 28 days, and we've got President's Day coming up.

P.S. - Apparently the line about Joe DiMaggio is subject to competing interpretations.  To be clear:  I mean "Where are you?" not "Why do you now stink?"

People v. Cisneros (Cal. Ct. App. - Feb. 9, 2015)

I don't like it when either the defense attorney or the prosecutor screws up.  It's the latter that happens here.

It's a Batson claim that you don't see too often:  a claim that one side used its peremptory challenges to exclude a particular gender; namely, men.  The prosecutor did indeed exclude a lot of men.  When challenged, she came up with a variety of reasons for doing so.  All of which the trial court accepted.

Except for one problem.

With respect to two jurors, all that the prosecutor said was that she preferred the next person in the box.

You can't do that.

By definition, whenever you exclude a juror, you obviously prefer the next person in line.  So that can't count as a sufficient justification.  You've got to give an actual reason why you think that this particular juror is bad for you.  Or at least worse for you.

The prosecutor didn't do that here.  Hence the defendant gets a retrial.

It's not a mistake one should make.  Especially since the defense counsel expressly articulated this exact objection.  At a minimum, having been advised that you've got to do more, the prosecutor should have done so.  She didn't.

At least after this published opinion, hopefully it's not a mistake that will be oft repeated.

Andrew V. v. Superior Court (Cal. Ct. App. - Feb. 9, 2015)

I'm glad the Court of Appeal decided to (belatedly) publish this opinion.  It's important.  I'm also impressed how quickly it resolved the writ petition.  For good reason.

Mother files a motion to move Children to Washington, and Father opposes it.  At the hearing, however, the child custody investigator isn't available to testify, and Father's counsel is also sick, so isn't there.  As a result, the hearing gets continued.

But the trial court nonetheless grants a "temporary" move-away order that lets Mother move Children to Washington in the interim.  Without a full hearing.  Without Father's counsel.  And without staying that order for 30 days as required by California law.

The Court of Appeal grants a peremptory writ and reverses.  You can't do that.

It's also done extraordinarily quickly.  The trial court order was on January 14, 2015.  Father filed his writ on January 20.  The Court of Appeal issues a Palma notice the very same day.  Three days later, the Court of Appeal issues its opinion reversing.  Publishing that previously-unpublished opinion earlier today.

Well done.

The only thing I'll add, however, is that the laudatory speed of the Court of Appeal in reversing the trial court's move-away order was far from matched by the speed of the trial court in adjudicating this order.  Mother got a promotion and was transferred to Washington in early 2014.  She filed her motion for a move-away order in July 2014.  A child custody investigation was ordered in August.  Which took until December 2014 to complete.  Then a hearing is scheduled for January 2015.  Which (as described above) doesn't fully resolve the issue, so the trial court continues the hearing until March 2015.

That's nearly a full year after Mother asks for the move-away order.  So she and the children are forced to stay in California the whole time.

It's clearly important to get these things right.  But it's also important to get these things decided quickly.  For the welfare of the parents as well as the children.  People shouldn't be in limbo for eons.  When (as appears here) there's a seemingly legitimate reason for a move, the court should act as quickly as it can.  Because a delay isn't in anyone's interest.

And if that means appointing more family law judges, or more custody investigators, or getting them (and/or the parties) to do their work a bit faster, so be it.

Good job by a busy Court of Appeal.  Let's hope this practice gets replicated by our busy trial courts.