Tuesday, February 21, 2017

People v. Camel (Cal. Ct. App. - Feb. 21, 2017)

It's a sign of bad things if you have a car parked on your front lawn.  Driveway:  Fine.  Carport or garage:  Perfect.  But front lawn:  No.  Not classy.

It's even worse if this vehicle (1) has been on the lawn for months; (2) doesn't run; (3) you never work on it; and (4) all you ever do with it is sit in it and smoke week.

That's bad.  Pathetic, really.  I understand the difficulty of getting rid of something that has (at some level) "value".  But just ditch the thing.  Or at least put it somewhere other than on your lawn.

I guess it could be worse.  You might, at least theoretically, put a gun that you used to kill someone in the trunk of that vehicle.

Like here.

Oh, man.  Definitely should have gotten rid of the thing.

Multiple life sentences without the possibility of parole.

Monday, February 20, 2017

People v. Smith (Cal. Ct. App. - Feb. 17, 2017)

"Defendant and another man went to a drug dealer’s home for the purpose of purchasing a quarter-pound of methamphetamine. Defendant was carrying two cell phones, a large knife in a concealed sheath, another knife in a pocket, and $1,300 in cash. They were apprehended by law enforcement before they could enter the dealer’s home. Defendant admitted that he had intended to use the $1,300 to purchase a quarter-pound of methamphetamine. He said that he was a methamphetamine user who was acting as a middleman for a third party. The third party was going to repay him and give him some money and methamphetamine for his help in obtaining the quarter-pound of methamphetamine. Defendant disclaimed ownership of one of the two cell phones seized from his person and did not provide a password or open that phone. He permitted law enforcement to search the other phone, and “messages consistent with drugs sales” were found on it.

Defendant was charged by felony complaint with attempted possession of a controlled substance for sale. He pleaded no contest after the court gave an indicated sentence of a grant of probation conditioned on “60 days county jail to be served on the Weekend Work Program.” Defendant had no prior criminal record."

That's not so bad.  Probation and 60 days of weekend work?  Kind of makes me want to get some knives at buy a quarter pound of meth.

(Not really.)

Thursday, February 16, 2017

Bank of New York Mellon v. Citibank (Cal. Ct. App. - Feb. 16, 2017)

When I saw the caption of this case -- which I read before even booting up the opinion -- I thought the case was going to be a huge one.  Bank of New York Mellon.  Citibank.  Those are big banks.  When they fight each other, they presumably fight hard.  Over substantial (read:  high value) things.

But then I read the opinion.  It's a dinky little fight over the $500,000 refinancing of a loan, and which bank ends up holding the bag over what went wrong.

Really?!  Big banks like this can't just settle or otherwise resolve this dispute?

Guess not.

Anyway, Bank of New York Mellon wins for now.  Dismissal of its complaint reversed.

P.S. - The first words of the opinion read: "The Bank of New York Melon appeals . . . ."  It's actually Mellon, not Melon.  Thomas Mellon was a big-time banker, lawyer, and judge.  Melon is a fruit.

Wednesday, February 15, 2017

Samara v. Matar (Cal. Ct. App. - Feb. 15, 2017)

Every single word of this opinion from earlier today is correct.

And the Supreme Court should nonetheless grant review of the opinion.  On its own initiative, if necessary.

It's an opinion about res judicata.  A topic near and dear to my own heart, admittedly, but also one that's critically important to the efficient functioning of the judiciary.

The case involves both claim and issue preclusion, and the Court of Appeal both properly explains the difference between the two as well as -- with respect to claim preclusion -- why the lower court got it (horribly) wrong.  Spot on.

But the review-worthy portion of the opinion is the part about issue preclusion.

The basic problem is (relatively) easy to explain.  The trial court dismisses a case against Defendant One based on X and Y -- here, on causation as well as on statute of limitations grounds.  Plaintiff appeals, and the Court of Appeals affirms.  But the Court of Appeals only reaches the limitations issue (Y); since it can affirm on that basis alone, it never reaches the causation issue (X).

That same causation issue is relevant (indeed, dispositive) to Plaintiff's case against Defendant Two, which has not yet been resolved in the lower court.

So you've got an issue that was finally resolved in the trial court, and the underlying judgment was affirmed on appeal (but not on those grounds).  Is that issue -- X -- properly subject to issue preclusion?

I'll tell you what I teach to my students:  No.  It's not.  Because, to use my parlance, it wasn't an issue that was subjected to a full and fair opportunity to litigate, since the Court of Appeal never reached that particular issue.  To invest something with issue preclusion, I say, we have to be very confident we're right.  And that includes having the Court of Appeal review it, if necessary.  Here, there was an appeal, but the issue didn't get reviewed.  Hence no issue preclusion.

Justice Perluss says the same thing in today's opinion.  Only more persuasively and at length.  The Court of Appeal says, yep, no issue preclusion.

Here's the rub, though.

There's a California Supreme Court case from 1865 named Skidmore.  Which fairly clearly holds that there is issue preclusion in such a setting.


The Court of Appeal says that Skidmore has been "implicitly overruled" over time.  Not very clearly, I might add, but rather because various courts keep citing the Restatement, which adopts the contrary view of issue preclusion that I've articulated above.  So today's opinion -- like some other Court of Appeal opinions from California over the past several decades -- follow the "right" view rather than Skidmore.

But here's the thing:

(1)  The Ninth Circuit doesn't.  Federal cases interpreting California law seem to think that -- shockingly -- the not-overruled express holding of the California Supreme Court is binding on them.  And,

(2)  Trial courts get confused as well.  Ditto for parties.  'Cause they too, shockingly, occasionally follow the express holding of the California Supreme Court.

Those are understandable, but bad, results.  We should stop them.

So, in my view, the California Supreme Court should grant review of this opinion and expressly overrule Skidmore.

It won't take much time.  I think the opinion will be unanimous.  Heck, the California Supreme Court could just plagiarize the opinion by Justice Perluss, which gets it exactly right.

That'll quickly accomplish a valuable result.  It'll make clear what the res judicata law is here in California.  An issue over which various courts continue to disagree.

I think Justice Perluss might even agree with me; at one point in the opinion, he suggests that the California Supreme Court "might" want to review the issue.  I think the same thing.  But I'm willing to say it far more bluntly.

The California Supreme Court should grant review of this case even if no one files a petition.

Tuesday, February 14, 2017

In re Miles (Cal. Ct. App. - Feb. 10, 2017)

I had to read this modification three times before I finally understood it:

"On page 9, second full paragraph, change the following last full sentence that appears on that page: 'The tow truck driver give his father a receipt' to 'The tow truck driver gave his father a receipt.'"

I thought:  Wait.  Did the original say that the tow truck driver gave the driver a receipt, when really it was the father who got it?  Or did the original erroneously talk about the tow truck driver's father?  I kept staring at the modification trying to figure it out.  'Cause usually these types of modifications entail edits where the original opinion erroneously refers to the wrong person doing X or Y.

Only on my third reading did I finally get it.  It wasn't a substantive error.  It was just a typo.  "Give" versus "gave".  Something not caught by a spellchecker.

But yeah.  Gave.  That's right.


Monday, February 13, 2017

Geraghty v. Shalizi (Cal. Ct. App. - Feb. 10, 2017)

Nothing at all from the Ninth Circuit or the California appellate courts today.  It's a slow Monday.  I presume everyone's gearing up for huge Valentine's Day plans.

I nonetheless wanted to mention a case from Friday.  Because sometimes, when you're a party, you only have to read the first sentence of the opinion before knowing that you don't need (or want) to read much further.

Like when that first sentence is:

"Plaintiff and former tenant Brian Geraghty seeks to undo the deal he made with his former landlord, defendant Joseph Shalizi."

Yeah, that describes the case.  But it also tells you, by clear implication, who's going to win.

Thursday, February 09, 2017

State of Washington v. Trump (9th Cir. - Feb. 9, 2017)

I don't typically spill a lot of (virtual) ink on Ninth Circuit decisions that are already going to receive a fair amount of public attention.  The Ninth Circuit's just-issued per curiam opinion regarding President Trump's executive immigration order will definitely receive the requisite attention.

I'll only mention that justice came (incredibly) swiftly in this case -- and rightly so -- and that the opinion is comprehensive and moderate in both scope and tone.  It's an impressive work product given the rapid deadlines the Ninth Circuit placed itself under.

That said, my educated guess that this particular opinion was given more than the typical amount of attention and priority in chambers, no?

The hard part of the government's case was that the scope of the ban was incredibly broad and, at times, shifting (e.g., its applicability to lawful permanent residents).  The Ninth Circuit (rightly) didn't feel like rewriting the order itself on the fly, and (rightly) didn't trust the non-binding interpretation of the order given by particular White House officials.  Hence the decision on the Due Process Clause.

Going forward, the hardest part of the plaintiff's case remains the validity of the order with respect to people who've never been in the United States, since those individuals have more limited rights under the Due Process Clause.  There's still an Establishment Clause claim there, but in my view, the Ninth Circuit correctly (implicitly) recognized that this was a weaker claim that the Due Process argument, so sidestepped it.  For now.

Rapid -- and much-needed -- justice, however.

People v. Price (Cal. Ct. App. - Feb. 9, 2017)

"Defendant Kiarra Marie Price, then 20 years old, along with two friends, participated in a robbery of Benjamin Merrill during which one of them needlessly and senselessly shot and killed 22-year-old Merrill."

I'm not sure that Justice Stewart needs to say both "needlessly and senselessly".  Seems a bit overkill, if you'll pardon the pun.

Though I agree that the killing was needless.  Senseless, even.

Wednesday, February 08, 2017

In Re Marriage of Schleich (Cal. Ct. App. - Feb. 8, 2017)

From today's opinion:

"Husband served Wife with the dissolution petition and a $75,000 marital settlement agreement, warning her that “it could get very ugly” if she did not sign the agreement."

Well, he was right about one thing.  It did get ugly.  Very ugly.

But it also turned out extraordinarily bad for Husband.  Who ended up paying way, way more than $75,000.

Lesson of the day:  It often doesn't pay to be overly aggressive with your settlement offers.

Tuesday, February 07, 2017

U.S. v. Peralta-Sanchez (9th Cir. - Feb.7, 2017)

It's an important case.  Affecting thousands of people every year.

It also involves an important right.  Whether you have a right to an attorney (at your own expense) before being removed from the United States.

The voting line-up is also not surprising given the panel draw.

Judge Bybee, joined by Judge Randy Smith, believes that non-citizens who are caught in the United States and subjected to expedited removal proceedings are not entitled to hire a lawyer at their own expense to defend themselves in those proceedings.

Judge Pregerson dissents, and believes that they possess such a right under the Due Process Clause.

Everyone admits that aliens in the United States possess Due Process rights.  The dispute is about precisely what process is due.

Now, the underlying facts don't matter (at all) to this constitutional issue.  The right to counsel, if it exists, protects "bad" people as well as "good ones".

But I'm confident Judge Pregerson would nonetheless have appreciated it if the underlying facts in this case were slightly different.  Here's this particular individual's history:

"Peralta’s criminal history, including a history of immigration offenses, is extensive. In 1982, Peralta was arrested in Bakersfield, California, under the name Gabriel Sanchez for arson, although these charges were eventually dismissed. He was arrested in 1983 under the same name, again for arson. In 1990, he was arrested in Fresno under the name Rufino Peralta-Sanchez for giving a false identification to a peace officer. Between 1990 and 1996, Peralta collected a string of driving under the influence (DUI) convictions: five misdemeanor convictions and a 1996 felony DUI conviction for which he was sentenced to 16 months in prison. As a result of the 1996 felony DUI conviction, the thenImmigration and Naturalization Service (INS) issued Peralta a Notice to Appear, charging him as removable for having been convicted of an aggravated felony “crime of violence.” Peralta was ordered removed on June 7, 1999.

Peralta returned regularly to the United States. In January 2000, he was again convicted of felony DUI, as well as possession of cocaine, for which he was sentenced to 28 months in prison. Following this conviction, Peralta was convicted of misdemeanor illegal reentry. After serving his sentence, Peralta’s 1999 removal order was reinstated in December 2001, and he was again removed from the United States. Undeterred, Peralta entered the United States again and was convicted of felony reentry in October 2002, for which he received 30 months in prison. After serving this sentence, his 1999 order of removal was again reinstated in July 2004, and he was again removed from the United States. After another illegal reentry, the 1999 deportation order was again reinstated on May 23, 2012, and Peralta was again removed. Three days later, Peralta was again apprehended by Border Patrol agents one mile north of the border, hiding in the brush with two others. He immediately admitted to being a Mexican citizen with no legal documents to enter the United States and, in a post-arrest interview, admitted that he had entered the United States by walking through the desert with the intent to travel to Los Angeles to find work. On July 17, 2012, Peralta was charged with and convicted of misdemeanor illegal reentry and sentenced to time served. He was ordered removed via expedited removal proceeding and removed on July 18. On July 22, Peralta returned again, was arrested, and in November 2012, was convicted of felony illegal reentry and sentenced to 21 months in prison. He was removed on January 30, 2014, and returned on March 7, 2014, bringing us back to this case, which arises out of Peralta’s arrest on March 8, 2014.

FN - In sum, from what we can tell from the record, Peralta has at least eight felony arrests (1982, 1983, 1990, 1996, 2000, 2002 (2), and 2014) and five misdemeanor DUI convictions, and he has been removed from the United States at least four times (1999, 2001, 2004, and 2012)."

Yeah.  You might want better facts than that.  Even with respect to a matter that involves a pure issue of law.  Purely as a matter of atmospherics.

Monday, February 06, 2017

Prather v. AT&T (9th Cir. - Feb. 6, 2017)

Today's opinion lists "Kathleen M. Sullivan" as one of the counsel for Sprint/Nextel.  That's not unusual.  Kathleen M. Sullivan does indeed do a fair number of appeals in the Ninth Circuit.

But the opinion also lists Kathleen M. Sullivan as an attorney at Perkins Coie in Seattle.  Now that was surprising.  Because the Kathleen M. Sullivan I know is a name partner at Quinn Emanuel.

Perhaps there are two relevant Kathleen Sullivans.  Or perhaps -- shudder the thought -- Kathleen M. Sullivan moved firms.

Those familiar with legal superstars will, of course, recognize the third possibility.

The Ninth Circuit intended to list Kathleen M. O'Sullivan as counsel for Sprint/Nextel.  This person.  Not this person.

Both big-time appellate lawyers.  Both huge studs.

But one has an O'.

Sanchez v. Kern Emergency (Cal. Ct. App. - Feb. 2, 2017)

Don't read this opinion if you want to feel comfortable with your child playing high school football.

It's not the most egregious injury ever.  Not even close.  But it's still a bad one.  And could happen to anyone.

Thursday, February 02, 2017

People v. Lamb (Cal. Ct. App. - Feb. 2, 2017)

I know I don't have to tell the typical reader of the California Appellate Report not to commit random acts of aggression.  Even tiny ones.  We're generally mellow folk.  Ish.

Still, today's opinion demonstrates just how even tiny things can get out of hand.  With devastating consequences.

Thomas Marler goes to a Vons.  As he's leaving the store, a green Ford pickup truck drives by him slowly.  Maybe looking for a parking spot.  Marler is annoyed, and slaps the back of the pickup with his hand -- a signal to speed it up.

Travis Lamb is driving the pickup.  He's miffed.  He follows Marler to his car, and yells at him "Why did you slap my truck?!"  Marler tries to defuse the situation at that point -- or at least denies that he slapped the truck.

Marler went to the Vons with a friend, Richard Gilroy.  Gilroy and Marler stand next to each other in solidarity.  Lamb's their opponent, and he's outside the pickup at this point.  Words are exchanged.  In a heated fashion.

Lamb eventually goes back to the pickup truck, but then a shoving match ensues between him and Gilroy.  So Lamb throws a punch.  One punch.  He hits Gilroy in the head.  Gilroy falls flat, and hits his head on the pavement, fracturing his skull.  He goes into an irreversible coma, and two weeks later, his family takes him off life support.

Gilroy's dead.  Lamb's convicted of involuntary manslaughter and assault.  And gets sentenced to 16 years in prison.

Not a good day.  For anyone.  All from an initial slap of a pickup truck.

Wednesday, February 01, 2017

Van v. Language Lines (Cal. Ct. App. - Feb. 1, 2017)

I can see vacating the finding of contempt.  Sure, the plaintiff didn't show up for her deposition, for no good reason.  But there wasn't a preexisting court order.  Makes sense.

But I was surprised to see the last line, in which the court awarded her costs on appeal.  Yes, she was indeed the prevailing party.

But she was rightly sanctioned below, and although she prevailed, I'm not enthralled with what I see in the record.

I'd have had both sides bear their own costs.

A small point, to be sure.  But still.  Not what I expected at the very end.

Tuesday, January 31, 2017

Fulle v. Kanani (Cal. Ct. App. - Jan. 31, 2017)

Don't cut down trees that belong to your neighbor.  Because even if they're a hassle, and even if there are not that many of them, you can get spanked for a lot of damages.

Yet another reason to get along with the person who lives on the other side of that fence.

Monday, January 30, 2017

U.S. v. Laursen (9th Cir. - Jan. 30, 2017)

Sometimes I can shorten an opinion by summarizing it, or add a different perspective, or offer a little critique of an argument.  But sometimes, the original author says things so well that there's nothing that can be done to improve on what's already there.

This is one of those latter occasions.

Judge Hawkins concurs, and writes the following:

"Michael Laursen stands convicted of the “use” of a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct and is currently serving the fifteen-year mandatory minimum sentence the statute requires. The photos in question were taken in the course of an ill-advised, but perfectly legal, relationship Laursen had with a young woman above the age of consent under Washington law. The record shows no evidence that Laursen distributed, transferred or otherwise displayed the images to anyone outside that relationship. In this respect, his situation is no different than the thousands of similar photos taken every day by seventeen-year-old college students engaged in intimate, consensual relationships. The government admits the theory of prosecution here could be used to prosecute anyone snapping a photo showing consenting individuals engaged in intimacy.

This is where I differ from my friends in the majority. To prevent the statute from being overbroad and unconstitutionally vague, I would adopt a narrower construction of the term “uses” in the statute. The government’s construction implies that one “uses” the minor much as one “uses” a camera to take the photograph, and their mere presence in the photo could suffice. As the majority acknowledges, “uses” has a number of meanings in ordinary language. To me, the one most likely applicable here is: “to take unfair advantage of; exploit.” [Cite] Although I agree with the majority that “a word is known by the company it keeps,” Flores, 729 F.3d at 915, in my view, the rest of the terms in the statute—employs, persuades, induces, entices or coerces— suggest that the defendant must have exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.

Whether that something more has been shown here is where I agree with my colleagues. At the time of the relationship, Laursen was forty-five years old and J.B. was only sixteen. While she was above the legal age of consent, this very significant age difference, combined with the other facts of this case—including her vulnerability from an already abusive relationship with her relatives, and evidence demonstrating that Laursen convinced J.B. that he was her “hero” and “mentor,” all the while providing her with drugs and moving her from motel room to motel room and into the homes and bedrooms of strangers—provides sufficient indicia of a coercive or exploitative element to satisfy even the more narrow definition of “uses” I propose here.

Thus, I would require the government to show some “taking unfair advantage of” the minor to establish “uses” under this statute (where no other statutory element is present), but otherwise I concur in affirming Laursen’s conviction and sentence on the facts of this case."

Well spoken,  in my view.

Friday, January 27, 2017

In Re Q.R. (Cal. Ct. App. - Jan. 27, 2017)

From today's opinion:

"Doe told a police officer that she had engaged in sexual intercourse with minor multiple times. Minor recorded videos of them having sex. Minor and Doe had also exchanged nude photographs. They eventually broke up, at which point minor reportedly told other students at their high school that Doe had had sex with him. Minor started asking Doe for money, later blackmailing her by threatening to show the videos and photographs to others. Doe gave him money for a couple months before telling her father.

In addition to extorting money from her, Doe reported that minor threatened to show the photographs and videos to others if she did not have sex with another boy. Doe 'became scared and felt she had to do whatever [minor] told her to do.' Doe had sex with the other boy, who recorded a video of the encounter."

Classy.  Totally classy.

Thursday, January 26, 2017

Hudson v. Superior Court (Cal. Ct. App. - Jan. 26, 2017)

It's difficult for me to figure out who's right in this one.  And that's unusual for me.  Every member of the panel has good arguments.  Seriously.  It's a toughie.

It's clear (at least to me) that Blake Hudson's probably guilty of something.  He didn't file state tax returns for several years, and he was allegedly one of California's largest 500 tax delinquents.  No small feat, I'd imagine.  Seems to me that we pretty much definitely want to punish that.

But we've got a statute that says that failing to file a tax return is a misdemeanor.  The question here is whether it's also a felony offense.

The relevant statute would, facially, indeed seem to cover Mr. Hudson's conduct.  It says:  "Any person . . . who, within the time required by or under the provisions of this part, willfully fails to file any return . . . with intent to evade any tax imposed . . . , is punishable by imprisonment in the county jail not to exceed one year, or in the state prison."

Well, geeze.  The evidence is surely sufficient to potentially establish that he "willfully fail[ed] to file any return."  And I'd think it equally plausible that he did so "with intent to evade any tax imposed," since a rational factfinder could conclude on these facts that the reason he didn't file a return (after having been repeatedly reminded of his duty to do so) is because he was trying to evade the taxes that he owed.

So, if you just read the statute, it seems like he's (potentially) guilty.  And the procedural posture of this case is a motion to quash the indictment.

Seems clear.

The wrinkle is that there's a federal decision that says that, for federal taxes, something more is required in order to create a federal felony.  And that decision's from no schlub of a court:  it's from the United States Supreme Court.  That decision says that in order to be guilty of a felony on the analogous federal statute, there needs to be something more than a failure to file:  something like keeping double books, etc.  And Mr. Hudson didn't do any of that.

That's the best argument for quashing the indictment.  And there's not only something to that position, but, in this case, the California Supreme Court granted Hudson's petition for review and sent the case back to the Court of Appeal for an examination of this claims.  (That doesn't necessarily express a view on the merits, but it is a hint that his argument is more than insubstantial.  Which indeed it is.)

Now, sure, that's a federal decision, and this is a state case.  But the state statutes are patterned on the federal statutes.  And we've also got a principle that we generally follow analogous federal decisions in this area.  Plus, the statutes are pretty near (though not perfectly) identical.  The federal statute says that if you try to evade taxes in any manner you're guilty of a felony.  The state statute says that if you try to evade taxes by not filing a return you're guilty of a felony.  Seems to me like the former pretty much definitionally includes the latter.  So if the former requires double books (or whatever), so would the latter.

The majority finds the federal statute (and hence the Supreme Court decision) distinguishable.  The dissent doesn't.  Both sides have good arguments.  Seriously.

The struggle for me is this.  On the one hand, I don't think that the federal decision is very easily distinguishable.  Seems to me that its reasoning may well be equally applicable here.  (I understand the alleged difference, but I'm not sure it's dispositive.)  On the other hand, having read the Supreme Court's decision, I'm not sure it entirely persuades me.  Even though it was unanimous.  It's a 1943 opinion.  I get it.  Sort of.  We don't want to make felonies out of everything.  But I think we may well have wanted to make a felony (at least in California) out of this.  I'm simply not persuaded that it makes sense, as a rational manner, to apply this particular Supreme Court's decision beyond its facts or scope (e.g., as applicable to federal rather than state tax returns).

Now, if I was persuaded by the Supreme Court's reasoning, that'd be different.  But I'm not.

As I said, all the opinions here make very good arguments for their respective sides.  The only thing that's lacking, in my view, is an assessment on its own terms of the Supreme Court's reasoning.  My quick review of the literature tells me that at least one state (New Mexico) has expressly declined to extend the Supreme Court's decision to its own (state) taxes, presumably because it didn't find the decision persuasive.  So that's an option, and perhaps one worth considering.  Sure, we can argue that the decision is distinguishable.  And maybe it is (or isn't).

But maybe one way to distinguish the case is also to simply say it's wrong.  Something we have the power to do.  Because the Supreme Court is supreme on federal issues.  But not on state law.

Wednesday, January 25, 2017

Leyva v. Crockett & Co. (Cal. Ct. App. - Jan. 25, 2017)

Next time you think about taking a nice little stroll on a trail that parallels a golf course, read today's opinion first.

Because a golfer shanks a drive, and you end up losing an eye, there's nothing you can do about it.

Kinda ruins the walk.

People v. Forrest (Cal. Ct. App. - Jan. 25, 2017)

Normally I might think that no time in prison is sufficiently long enough for someone who committed the cold-blooded murder of his wife.  Particularly when he gutted her like a deer afterwards.

Yet the level of alcohol abuse here, and Mr. Forrest's (in some ways) bizarre conduct and writings after the murder, suggest that there's something really awry here.  Maybe something that justifies mitigation, at least in part.  A lengthy sentence seems appropriate.  But I'm not certain that the guy is forever irredeemable.

But he gets 50 years in prison.  So isn't getting out anytime soon.

Check out the facts, though.  Fairly chilling.

And weird.

Tuesday, January 24, 2017

People v. Garcia (Cal. Ct. App. - Jan. 24, 2107)

Whenever I see a fact pattern like this -- and I see it occasionally -- I really do wonder what the risk-benefit calculation of the relevant person looked like:

"At about 9:00 p.m. on January 27, 2011, Maria Mendiola went to one of the hair salons she owned, and at which she cut hair, to pick up the mail after closing. She saw a male and female, whom she described as “kids” standing outside the salon hugging. Ms. Mendiola picked up her mail from the mailbox and noticed the two approaching her as she returned to her parked truck, got in and started the engine. As the two got closer, the male told Ms. Mendiola that he knew her, or that she knew him. As she got into her truck, the male lifted up his shirt, pulled a gun out of his waistband and pointed it at her. The male told her to give him her purse. When Ms. Mendiola tried to close the truck door, the male told the female to hold it open.

The male repeatedly yelled at Ms. Mendiola to give him her money, her cell phone and the keys to her truck. Defendant said “Get off the truck. Give me the keys. Give me your purse. Give me the keys. Get off, get off.” Ms. Mendiola testified at trial that “I just thought he was going to kill me.” When she told the male she did not have any money, he took her cell phone from her hand and kept yelling at her to get out of the truck. Ms. Mendiola told the male that she was not going give him anything. He said, “I‟m going to shoot you. I‟m going to shoot you.” Ms. Mendiola said, “Well, shoot me.” The male then asked the female, “Do I shoot her?” And the female said, “Yes.” The male turned to Ms. Mendiola and shot her in the face."

First of all, just give up the stuff.  Don't tell the person to shoot you.  That much should be obvious.

Second, seriously, the shooter's asking someone else whether he should shoot the person?  Seems to me that's a decision you should make on your own, no?

Merced Irrigation Dist. v. Superior Court (Cal. Ct. App. - Jan. 24, 2017)

A company is doing some routine maintenance of a high-voltage transformer (for which it charges a little over $120,000) when one of its employees allegedly accidentally drops a washer into the thing.  Of course, the transformer isn't on at the time.  But now we've got to get the washer out, lest we turn the thing on and have it (potentially) explode.

How much do you think the dropped washer cost?

$1.032 million.

That's an expensive washer.

Monday, January 23, 2017

Yagman v. Garcetti (9th Cir. - Jan. 20, 2017)

This is a fine example of why many people hate lawyers.  Because here, an attorney gets a parking ticket and literally makes a federal case out of it.

It's not actually an absurd claim.  Notorious (former) L.A. attorney Stephen Yagman gets a parking ticket and claims that having to pay the ticket before California's second-level hearing appeal process concludes violates the Due Process Clause.  I agree with the panel that that's wrong, and that here, the relevant procedures satisfy the applicable balancing test.  But there's definitely a non-frivolous argument to the contrary.  The underlying fact pattern could easily be a law school hypothetical on a final exam, and there'd be decent arguments on both sides.

Part of Mr. Yagman's complaint, admittedly, is silly and/or clearly deficient.  Take, for example, the RICO claims.  The factual predicates of which are articulated exclusively in the following sentence: "The bad acts described in the matters enumerated herein above . . . evidence civil RICO predicates, including at least fraud, wire fraud, mail fraud, extortion, and civil rights violations.”

Yeah, that's not sufficient.  Not even close.

Mr. Yagman was able to get out of some of his parking tickets.  But his federal suit falls flat.

Assoc of Calif. Ins. Cos. v. Jones (Cal. Supreme Ct. - Jan. 23, 2017)

What's a lengthy footnote?  Half a page?  An entire page?

Check out footnote 7 of today's opinion from the California Supreme Court.  Three full pages.

That's a long footnote.

(Go ahead and say that last sentence with the same accent as the "That's a spicy meatball" commercial.  Which you might remember if you're, like, 50.)

Thursday, January 19, 2017

Safari Club Int'l v. Rudolph (9th Cir. - Jan. 18, 2017)

I'm generally okay with those "create a theme based on the case" type of opinions.  Not a fan of them, to be sure, but if they're done well, I'm okay with it.  I know others disagree, and think that it makes light of the litigants.  I get that.  So, at a minimum, if you're going to do it, make sure you do it well.

I'm not sure that this opinion from the Ninth Circuit satisfies that standard.

Here are the first two paragraphs of the opinion:

"Dr. Lawrence P. Rudolph is an award-winning hunter who made his way to the top of Safari Club International (“SCI”), a sport hunting and wildlife conservation organization. Following his term at the helm, various SCI members accused him of official misconduct, stripped him of his awards, and then exiled him permanently from the association. That’s when the season opened. Rudolph sued SCI and its president, his friend, John Whipple, whom he assured was named only by virtue of his position at the head of the organization. With his quarry in sight, Rudolph lured Whipple to lunch, brought up the pending litigation, recorded the conversation surreptitiously, and then posted it on YouTube for public consumption.

Outraged, Whipple and SCI fired back at Rudolph with a barrage of legal claims, including statutory invasion of privacy, negligence per se, and common law invasion of privacy. The district court granted Rudolph’s motion to strike under California’s anti-SLAPP statute as to four claims for relief, but denied the motion as to these privacy claims, finding plaintiffs had demonstrated a reasonable probability of prevailing on the merits. On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place. Rudolph’s marksmanship, apparently on target in the tundra, here is wide of the mark. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

Maybe it's just me, but I found all those hunting references distracting and not worth much humor value.  The fact that the underlying humor involves killing living things (and translating that to the ostensible hunting of humans) probably doesn't help either.

On the merits, I totally understand where the opinion is coming from, and why it affirms the denial of the anti-SLAPP motion.

I just have one question.

In first -- extremely long -- footnote, the opinion notes that the plaintiff passed away in late 2014, and that this death mooted (under state law) most, but not all, of the types of damages sought in the case.  The opinion goes on to suggest at some length that this might well obviate Article III standing, but then notes that since the parties didn't raise or brief this issue, the Ninth Circuit was leaving this issue for determination by the district court on remand.

Can you really do that?

I thought that Article III standing was a prerequisite for an appellate decision as well.  So if there was a question about it, that'd have to be something decided first -- by the Court of Appeals -- before the appeal gets resolved.  After all, if there's no Article III standing, then the Ninth Circuit doesn't have jurisdiction to decide the case.  Period.  Right?

It might be otherwise if we were only dealing with prudential standing.  But the Ninth Circuit makes clear that we're talking entirely about Article III standing.  That you've gotta have.  So it seems to me the Court of Appeals has to first decide whether there's in fact standing, and hence jurisdiction, and can't simply decide the appeal on the merits and then remand the case back to the district court for a determination of whether or not there's constitutional standing.

Am I wrong?  Missing something?

Wednesday, January 18, 2017

Chen v. LA Truck Centers (Cal. Ct. App. - Jan. 18, 2017)

I took a Conflict of Laws class in law school.  Not many other people did.  It was interesting.  -Ish.  I learned some concepts that I hadn't heard of before.  Like renvoi.  Or at least the word for it.  And the fact that I still remember this concept places this class slightly above some of the other classes I took in law school.

As I occasionally tell my civil procedure students, sometimes, decisions about the relevant choice of law matters.  A lot.

And now they don't have to just believe me.  They can just read this opinion.

Huge bus accident.  Massive injuries.  Lots of money at stake.  Plaintiffs sue because the passenger bus doesn't have seat belts.  Hence the passenger ejections after the bus rolled over multiple times.  But maybe lap belts are counterproductive in front-end bus accidents, which are much more common.

Defendants prevail at trial, in part because the trial court applied Indiana law.  The Court of Appeal reverses because it concludes that California law should have applied, and is better.

There are a couple of other subsidiary holdings that are important as well.  For example, the Court of Appeal holds that choice of law rulings are always subject to reconsideration (even without new facts or law) because they're just essentially preliminary in limine decisions.  The opinion also holds that in a multidefendant case, the fact that one (or more) defendants settles out -- as here -- may alter the choice of law analysis and result in the application of a different law.  That's important.

One argument the opinion makes seems definitely wrong to me.  Justice Rubin says (in defending the decision that choice of law may potentially change as parties settle) that "We think it unlikely that parties would settle, or hold up a potential settlement, based on the effects a settlement might have on the law to be applied when the remaining parties proceed to trial."

I disagree.  Good lawyers will -- and should -- think about precisely that after today's decision.  If I'm a plaintiff, and I've got multiple defendants, one of whom is more California-centered than the others, I'm definitely going to offer more favorable settlements to some (or all) of the other defendants if I think that'll help me get a more favorable California law applied to the remaining defendants.  I'll be thinking about this too on the defendant's side; among other things, if getting my client out will help the plaintiffs obtain favorable California law for the others, I'll surely be making this argument at the mediation, and probably upping my settlement number (or increasing my resolve) as well.  'Cause it's in fact worth it to buy me off.  (And it goes the other way too; after today's holding, if I'm a plaintiff, I might hold off settling with the California defendant if I think that'll make me lose the benefits of favorable California law -- maybe I'll settle with them after the trial, or do a high low (maybe where the high is $10 higher than the low), or do something else that'll get me the relevant dollars but still keep them in the case.)

Sure, some lawyers won't figure this out.  Or think that deeply.

But the good ones will.

People v. Pinon (Cal. Ct. App. - Jan. 17, 2017)

I haven't seen an amended opinion that's this type of terse:

"It is ordered that the opinion filed herein on December 15, 2016, be modified as follows:

On page 14, third line of the first full paragraph, after the sentence ending “with the local chief of police,” add as footnote 8 the following footnote:

In a petition for rehearing, the People withdrew their concession on this issue and argued, based on In re Guiomar (2016) 5 Cal.App.5th 265, and In re C.H. (2016) 2 Cal.App.5th 1139, review granted November 16, 2016, S237762, that defendant is required to register. We find those cases to be inapt."

Usually if you amend an opinion to distinguish a case or two, you say more than just that you find them inapt, without explaining why they're so-not-apt.

But apparently Justice Ikola thinks that simply calling them inapt is sufficient here.

Tuesday, January 17, 2017

Dep't of ABC v. ABC Appeals Bd. (Cal. Ct. App. - Jan. 17, 2017)

After a long holiday, we get some interesting published opinions from the California Court of Appeal.

Here's one I think you'll like.

It's a straightforward question.  You might not even think it worthy of an 18-page opinion (though I'd disagree.).

To be clear:  It's not an easy question (at least not from my perspective), and reasonable minds might well disagree about it.  Indeed, as I was reading the opinion, I got the feeling there was a dissent, but there wasn't.

It's not even a question that requires you to know any context.  Or facts.  Or anything.  It's simply a categorization question.

Here it is:

When you hand your driver's license to the checkout clerk at a store, and after examining the license to determine your age, the clerk responds "I would not have guessed it, you must get asked a lot," is what the clerk said a "question about [your] age"?

Let's break that down.  Is it a question?  It is about your age?

What do you think?  (And, yes, that's a question.)

Let me repeat again what the clerk said:  "I would not have guessed it, you must get asked a lot,"

(Notice that I didn't add any punctuation at the end, lest I prejudice your view.)

Statement?  Question?

The Court of Appeal holds that it's not a "question" at all, but rather is a statement.

You could interpret it one of two ways.  First, you could say that it's a statement.  "I  would not have guessed it" is clearly a statement, not a question.  "You must get asked a lot" is less clear.  Maybe it's a statement.  Facially it is.  Indeed, facially, it's a strong statement.  You must get asked that a lot.  So don't even bother responding, because it's obvious.  A must.

But you could also easily view it as a question.  Essentially, "You must get asked a lot, right?"  And in common parlance, we'd usually take it that way.  "Must" doesn't actually mean "must".  Ironically, it means more like "maybe".  As in, "You might get asked that a lot.  Do you?"  A question.

What's riding on all of this, by the way, is whether a particular CVS gets suspended from selling booze for 15 days.  Because the ABC uses underage decoys to try to buy alcohol, and (at least in this case) has them present a valid driver's license that clearly shows that the person is UNDER 21 to see if the store will nonetheless accept it.  As the clerk did here.

But the regulations also provide that the underage decoy has to honestly answer all "questions about [his or her] age."  So if, for example, the clerk said "How old are you?", they'd have to answer "18".

So what about the question/statement here?

The decoy didn't say anything.  He just kept silent.  The Court of Appeal says that's okay because the clerk wasn't asking a question, but was merely making a statement.

The English language is a funny thing.  Grammatically what the clerk said was indeed probably a statement.  But we'd all understand it to nonetheless be a question.  If someone said that to you -- in this context, especially -- and you stayed silent, that'd be considered rude, I think.  You'd have been "asked" a question and refused to answer it.  We expect you to "answer" by saying "Yeah, I get that a lot" or "No, this is the first time" or something like that.

And the fact that most of the normal ways people usually respond to a statement/question like this begin with either "Yes" or "No" also tends to suggest that we understand that statement to in fact be a question -- one that "requires" an affirmative or negative response, either expressly or by implication.

There's further complexity involved, too.  A statement can easily be made into a question just by how it's uttered.  "You're 22." is different than "You're 22?", the only difference being the raised pitch at the end.  But we don't know exactly how the question/statement here was asked because (1) we were not there, and (2) only have the decoy's testimony about what was allegedly said (and even then, it's just paraphrased).

Interesting stuff.  (Or, "Interesting stuff?")

Thursday, January 12, 2017

In Re M.F. (Cal. Ct. App. - Jan. 12, 2017)

My first reaction to this morning's opinion was a totally juvenile one:  "In re: M.F.  Ho ho ho."

My second reaction was:  "He gets 480 days in a juvenile residential facility?! That sounds like a lot. Especially since what he got busted for was just passing an (admittedly disturbing) note to one of his teachers."

Then I read the full facts.  Oh my.

You know how you sometimes say:  "Wow.  That kid really had a problem."  Especially after that kid subsequently shoots up a school, or church, or shopping mall?

The facts of this opinion read like this is precisely one of those kids.  Albeit one who, thankfully, was discovered -- and hopefully will be helped -- before it comes to that.

From San Diego, no less.

Wednesday, January 11, 2017

Healthsmart Pacific v. Katateck (Cal. Ct. App. - Jan. 11, 2017)

The Court of Appeal says today:

"On the court’s own motion, the opinion filed in the above-entitled matter on December 19, 2016, shall be modified in the following manners:

On page 20, in the first full paragraph, the third sentence is deleted and replaced with the following sentence:

Plaintiffs also compare Drobot’s admission that he bribed Senator Calderon in various ways that did not involve prostitutes with the suggestion that Drobot was involved in supplying prostitutes as bribes or kickbacks."

That edit reflects one of the central problems with the modern legislative world.  It's just so hard to keep straight the precise relationship between the bribes and the provision of prostitutes.

Tuesday, January 10, 2017

Pure Wafer Inc. v. City of Prescott (9th Cir. - Jan. 10, 2017)

For a good example of how you can win the battle but lose the war, check out today's opinion by the Ninth Circuit.

The district court held that the City of Prescott, Arizona, had unconstitutionally impaired its contract with Pure Wafer, Inc. when it passed a certain environmental regulation.  The City filed an appeal, and the Ninth Circuit agreed that there was in fact no such unconstitutional impairment.

But the Ninth Circuit went on to hold (albeit in a split opinion) that the City didn't impair the contract because it breached it instead.  Which means that Pure Wafer gets pretty much identical relief, albeit on alternative grounds.

That's the problem with bad facts, sometimes.  Which were here (against the City) in spades.

They'll bite you in the end.

Monday, January 09, 2017

Mathews v. Harris (Cal. Ct. App. - Jan. 9, 2017)

"Plaintiffs Mathews and Alvarez have treated numerous patients for sexual addiction, compulsivity and other sexual disorders, who admit downloading and viewing child pornography on the Internet. Based on their training and experience, plaintiffs do not believe those patients present a serious danger of engaging in “hands-on” sexual abuse or exploitation of children or the distribution of child pornography: they typically have no criminal history, have never expressed a sexual preference for children, and voluntarily participate in psychotherapy to treat their disorder, which often involves compulsive viewing of all kinds on the Internet."

Too bad.  The Child Abuse and Neglect Reporting Act (CANRA) makes these people mandatory reporters.  So they've got to rat out their patients.

So they'll have to lie to their doctors about what they're doing.  Good luck getting successful voluntary treatment that way.

There's no constitutional violation.  And to add injury to insult, the Court of Appeal awards costs against the plaintiff.

Friday, January 06, 2017

People v. Starski (Cal. Ct. App. - Jan. 5, 2017)

There are a lot of ways you can go after you fail to make it past your first year of law school.  You can try to get admitted to a different (potentially unaccredited) law school.  You can try to become a paralegal.  You can get a job in a non-legal field.

Or you can simply pretend that you're an attorney.

That's what Edward Starski did here.  According to the Court of Appeal, he attempted to shakedown a lumber mill by pretending to be an attorney with a fake injury claim on behalf of his father in law.  He had filed "lots" of lawsuits -- but less than 50 -- before, and "won most of them".  He gave a variety of reasons why he claimed to be entitled to pretend to be an attorney.  None of them persuasive to the jury, which found him guilty on all counts, including the unauthorized practice of law and attempted grand theft.

Oh, and Mr. Starski couldn't even remember which law school he had attended.  At trial, he said he had attended the University of Colorado, Sturm College of Law.  But as the Court of Appeal notes in a footnote: "This was not correct: Sturm College of Law is a part of the University of Denver, not the University of Colorado."

Mr. Starski does succeed on one point.  He doesn't get sentenced to actual prison time.  Just probation and a suspended sentence.

So that's something.

Thursday, January 05, 2017

Barry v. State Bar (Cal. Supreme Ct. - Jan 5, 2017)

When I read the Court of Appeal's opinion way back in 2013, I immediately wrote a lengthy missive -- some would say diatribe -- I said that the opinion seemed totally and completely wrong to me, and that I hoped the California Supreme Court would take the case up and reverse it.  Even though it was only about a $2,500 award of attorney's fees.

(The opinion is about whether a trial court can grant an anti-SLAPP motion and award fees to the prevailing defendant even if it turns out that there is no subject matter jurisdiction.  The Court of Appeal reversed the trial court's award and said "No.")

But, as I mentioned in the post, when I discussed the case with my wife, she thought that the Court of Appeal's opinion made a fair amount of sense, and leaned that way.  Which persuaded me that perhaps the opinion wasn't crazy, though it still seemed totally wrong.

Well, the California Supreme Court did take up the case, and at long last, today, issued its opinion.

Agreeing with me and reversing the Court of Appeal.  Unanimously.

This is, in my mind, yet another example of Harvard (my alma mater) beating Yale (my wife's).


Wednesday, January 04, 2017

North 7th Street Assocs v. Costante (Cal. App. Div. - Jan. 4, 2016)

The opinion published today by the Appellate Division (in Los Angeles) says:

"On November 3, 2014, plaintiff filed an unlawful detainer complaint alleging . . . [that] defendant took possession of the premises at 1442 Alvarado Terrace, #2, in Los Angeles, pursuant to an oral month-to-month rental agreement [and] that defendant agreed to pay $166.95 monthly on the first of each month."

Wow.  Rent of less than $167 a month in Los Angeles?!  I didn't know there was anywhere where you could get such a deal.

Here's the place, by the way.

Turns out defendant wins the eviction suit anyway.  On both the back rent as well as possession claim, since there's no certificate of occupancy.

So that's an even better deal. Monthly rent of $0.

Tuesday, January 03, 2017

Briseno v. ConAgra Foods (9th Cir. - Jan. 3, 2016)

I wish I could say that the Ninth Circuit and California Court of Appeal returned from their long (at least formal) vacation breaks with a vengeance, and cranked out a couple of dozen published opinions that are of the must-read variety.

But that'd be a lie.

Now, if you're a class action attorney (on either side), it's a somewhat interesting day for you.  There are not one, but two class action opinions from the Ninth Circuit today.

But I'm definitely not going to talk about the first one.  Because, sure, there are some people who may be keenly interested in the tortured history of competing state court class actions -- and the competing settlements that were then negotiated -- against Safeco Insurance, as well as whether the interlocutory review provisions of CAFA apply to minimal diversity and/or federal question cases.

But unless you're a class action/civil procedure geek -- and, I mean, a real geek -- the number of such interested persons is likely to be small.

The second class action opinion might be a tiny more interesting.  Or at least accessible.  Plaintiffs say that ConAgra lied (or was at least deceptive) when it called its Wesson cooking oil "100 percent natural" since it uses bioengineered ingredients.  Sounds like a decent class action to me.

But ConAgra claimed that the class couldn't be certified because there's no "objective" way to tell who actually bought Wesson cooking oil during the relevant years.  Since you don't have to sign anything or put your name down when you buy the stuff at the supermarket.

The district court disagreed.  It certified the class.  ConAgra was granted permission to appeal.

But the Ninth Circuit affirms.

As, in my view, of course it should.

Yes, there's no "objective" way to tell if someone's a member of the class.  Just like there's no "objective" way to tell virtually anything in the universe.  We rely on people's testimony.  Their records.  Their whatever.  Yes, people can lie.  And documents can be faked.

So what.  That doesn't mean that a class action can't exist.  Any more than it means that someone can't recover for personal injuries, or breach of contract, or any other legitimate -- or, potentially, factually illegitimate -- claim.  You present your evidence and the trier of fact decides.  End of story.

Much less should a company get away with (allegedly) deceiving millions of people about its products just because you don't have to fill out a form in triplicate and have your picture taken in order to buy that product.  Too bad.  People can testify, under oath, that they bought the thing.  If ConAgra thinks that they're lying, prove it.  Good luck.  If ConAgra's evidence is believed, that class member won't recover.  But the fact that ConAgra doesn't feel like taking someone's word for it no more stops a class action from being certified than the fact that a different class action defendant doesn't feel like taking a class member's word for it that the product is causing them immense physical pain would stop a class action there.  Go ahead.  Prove it.  Not a barrier to class certification.

Judge Friedland reaches this same conclusion using words and concepts that are a bit more articulate.

But to the same end.