Thursday, September 21, 2017

In Re Joiquin C. (Cal. Ct. App. - Sept. 20, 2017)

I know that we're talking in this opinion about someone who's confused a lot, but I too was confused by this sentence (with an additional sentence for context):

"Carrasco offered Veronica C. an appointment book, but she said she would not forget her appointment. She told Carrasco that said she had been wearing her mother’s gold earrings, which confused her; she took them off and was fine."

Wait. Who's wearing the earrings, whose mother owned them, and who was confused?

Pronouns pronouns everywhere.

Wednesday, September 20, 2017

In Re Destiny D. (Cal. Ct. App. - Sept. 11, 2017)

Lest there be any doubt, domestic violence doesn't only harm the direct participants thereto:

"Sergio D., the presumed father of 15-year-old Destiny D., had a history of alcohol abuse and was a current abuser of alcohol . . . . Sergio and Claudia have a long history of engaging in domestic violence in Destiny’s presence. During one incident in August 2016 Sergio held a knife to Claudia’s throat. Destiny intervened to protect her mother; Sergio shoved Destiny, injuring her. . . .

During an interview Claudia told the social worker Sergio had been violent throughout their 18-year relationship, but she had remained with him to keep her family together. Following the August 2016 incident, however, she finally had had enough and obtained the restraining and custody orders to protect herself and Destiny from Sergio.

Destiny confirmed her father’s history of violent behavior toward her mother, stating he had “[p]ut his hands on my mom more times than I can count.” Destiny reported Sergio typically did not hit her, but he did shove and injure her during the August 2016 incident when she tried to defend her mother. Destiny also admitted to engaging in self-harming “cutting” behaviors when she was 13 years old because she had been unable to cope with her parents’ marital conflict."

As a bonus:  "Both Claudia and Destiny stated Sergio abused alcohol regularly and had a history of driving while intoxicated with Destiny in the car."

Children are at least somewhat products of their environment.  Sometimes that's great.  Sometimes not so much.


Tuesday, September 19, 2017

R.E.V. v. City of Anaheim (Cal. Ct. App. - Sept. 19, 2017)

I'm sympathetic to -- and on board with -- the result of this opinion.  Which involves res judicata and a ton of other civil procedure stuff that's near and dear to my heart.

But I'm not at all certain that the holding of the case is doctrinally right.

You can see why the panel comes out the way it does.  Plaintiff files a federal civil rights case that asserts a federal claim and some supplemental state law claims.  The district court grants summary judgment to defendants, and then (with the federal claim dismissed) predictably declines to exercise supplemental jurisdiction over the pendent state law claims.  So those get litigated in state court.

The plaintiff (again, predictably) appeals the dismissal of the federal claims, and the state claims go forward in state court) at the same time.  The Ninth Circuit affirms the dismissal of the federal claims, and the state courts then hold that the federal holdings preclude the state suit (issue preclusion, etc.) since they're basically the same thing.

End of story.  Lawsuits gone.  Both state and federal.  Federal on the merits, state because of issue preclusion given the federal result.

But then something unexpected happens.

The federal claims rise from the dead.

The Ninth Circuit takes the case en banc and reverses the grant of summary judgment.  So now the federal claims are alive again, and there's no adverse issue preclusion.

Except for one thing.  The state claims are now over.  Their dismissal has been affirmed by the Court of Appeal.  And the mandate has issued.  So there's nothing left to do.

You see the injustice there.  The state claims got dismissed for X reason, but X no longer exists.  So the state claims should be revived.  Yet they're dead, and the timeline to petition for rehearing etc. in the Court of Appeal is over.  So what to do?

The Court of Appeal today has an answer.  It doesn't like this result.  Understandably so.  A person has potentially important claims that have merit that were wrongly dismissed, for a reason we now know is wrong.  So the Court of Appeal wants them to be addressed on the merits, rather than doing an injustice by keeping them dead.

I feel the same way.

So the Court of Appeal has a way to accomplish this end.  Plaintiff in the present case filed a new state court lawsuit.  One identical to the one that was dismissed.  Normally that'd be totally barred by res judicata.  As indeed the trial court held.

But the Court of Appeal holds that res judicata doesn't apply.  That "exceptional circumstances" mean that it's okay, in this case, to file an identical suit to the one that's dismissed, and yet that suit gets to go forward.  Because those exceptional circumstances -- the injustice that would result by not letting plaintiff have his day in court -- justify an exception to the usual res judicata rules.

That makes sense.  On its own terms, anyway.  We want people to have their claims heard on the merits, rather than dismissed for a legal reason that we got wrong, and denying res judicata to the second (totally identical) suit solves the problem.  Plaintiff gets its claims adjudicated on the merits.

Problem solved.

The Court of Appeal discusses at length what it believes to be the primary arguments in opposition to that principle; namely, that the plaintiff should have sought a stay, tried to keep the first suit alive, etc.  To be clear:  Those are decent arguments.  In lots of cases, that's in fact a better approach.  And not granting res judicata effect does indeed diminish the incentive for plaintiffs to adopt these alternative (superior) approaches.

But the Court of Appeal nonetheless thinks that these counterarguments as a whole don't justify doing an injustice and depriving plaintiffs of their day in court.

And I get that.  Both the sentiment as well as the doctrinal holding.

Here's the thing, though.

The procedural mechanism that the Court of Appeal adopts to deal with this problem is to create an exception to prevailing res judicata principles.  Yes, that's one way to do it.  But it's a procedure that creates lots of problems and inefficiencies of its own.  It allows (indeed, requires) plaintiffs to file a duplicative second suit that's identical to their first (dismissed) one.  It allows plaintiffs to potentially forum shop by filing that second suit in a different forum with different (perhaps more sympathetic) judge.  It requires a new tribunal to get totally up to speed on a case that the first tribunal has already fully considered and has some familiarity with.  There are, in short, definite downsides -- practical as well as doctrinal -- in permitting multiple duplicative lawsuits about the very same thing.

The Court of Appeal's holding will nonetheless engender these downsides in the service of a greater good:  adjudication on the merits.  And it gets those benefits by creating an exception to res judicata.

But there's a different way.  A way that doesn't change res judicata law, that's simpler, and that doesn't engender the downsides of permitting multiple (potentially forum-shopped) adjudications.

And, as a bonus, it's the way the federal courts deal with this issue.  Without tinkering in the slightest with res judicata law or requiring duplicative (identical) lawsuits.

Rule 60(b)(5).

See, in federal court, we have a principle -- backed up, even, by an express rule -- that says that the way we avoid this injustice is to permit the losing party to file a motion in the trial court for relief from the underlying judgment.  And Rule 60(b)(5) involves precisely the situation presented here: when (in the express words of the rule) "the judgment . . . is based on an earlier judgment that has been reversed or vacated;" i.e., when (as here) the final judgment was based on applying res judicata from a prior judgment that was subsequently reversed.

So in federal court, you don't file a second duplicative suit.  You file a post-trial, post-judgment motion in the trial court that says that the judgment should be changed because the other suit that formed the basis for the res judicata finding is now no more.  And you'd win.  Ergo getting your day in court.

And, unlike paragraphs (1) through (3) of Rule 60, there's no temporal limit on Rule 60(b)(5) motions.  They can be filed at any time, not merely within a year.

Problem solved.  Without the (substantial) difficulties necessarily engendered by the Court of Appeal's res judicata holding here.

The Court of Appeal never cites Rule 60(b)(5), nor does the opinion ever mention or discuss how the federal courts deal with this exact issue.  Nor do I see anywhere in the opinion a case that holds that the federal way of dealing with things is foreclosed by California law.  (And if I was going to find, or create, an exception for "exceptional circumstances," I would personally be just as willing -- or more so -- to do so in California's analogue to Rule 60 as I would to California's longstanding res judicata principles.)  Admittedly, the Court of Appeal says that because the mandate had already issued in the Court of Appeal, the deadline to petition for rehearing there was already gone.  But Rule 60, or the California judicial analogue, doesn't involve filings (or deadlines) in the appellate courts.  It's a filing in the district court.  And it's timely even when a similar filing in the appellate court would be time-barred.

So, in a nutshell, I agree with the result reached by the Court of Appeal.  Plaintiff should have his day in court.  And, in federal court, he definitely would.

But unless there's a California Supreme Court that's on all fours with this exact case, I'd get there via the Rule 60 route, not by fundamentally tinkering with res judicata.

That's a much better way.

(Oh, and if, perchance, there's a square California Supreme Court holding of which I'm unaware that says that you can't file a Rule 60-ish motion on the basis of the reversal of the judgment to which the prior court gave res judicata effect, then I'm confident that exact same reasoning would apply to the Court of Appeal's holding here.  There's no way that the underlying equities don't permit you to file a motion for relief from the judgment and yet those exact same equities permit you to file an entirely separate lawsuit about the very same thing.  So if the Court of Appeal for some reason couldn't adopt the Rule 60 route that I suggest here, then it can't backdoor this same result by creating an exception to res judicata principles to do the same thing.)

Monday, September 18, 2017

People v. Romero (Cal. Ct. App. - Aug. 23, 2017)

It's a slow start of the week here in California.  Nothing published from the Ninth Circuit.  Only one published opinion thus far from the California Court of Appeal, and that one's not especially worth reading -- that is, unless you're keenly interested in finding out whether someone who tried to help the Shingle Springs Band of Miwok Indians open a casino gets paid.  (Summary:  No.)

So we can start out the week on the slow side as well.  And maybe just give what might otherwise seem to be an easy reminder to trial courts when they're deciding whether or not to bounce a juror for cause.

Because you'd think that a trial court would totally understand that it should definitely excuse a juror who says that she had the victim in an alleged rape case as a student of hers three years ago and has positive recollections of her.  Especially when the defense challenges her and says, yep, she needs to be replaced.

But apparently not every trial court would similarly so conclude.

And, as a result, now we need to do an entire new trial.

Just replace the juror with an alternate.  It's that easy.  Pretty darn clear, even.

Friday, September 15, 2017

Ass'n Des Eleveurs v. Becerra (9th Cir. - Sept. 15, 2017)

In 2004, California passed a law that prohibited force-feeding ducks or geese to produce foie gras (or, more significantly, prohibited sale in California of foie gras produced in this manner.)  The industry was given seven years to transition to a different manner of producing this product.  Predictably, the industry sued.  But although the district court concluded that California's prohibition didn't violate the Due Process or dormant Commerce Clause, after that plaintiffs amended their complaint, the court held that the statute was nonetheless preempted by the federal Wholesome Poultry Products Act.

The Ninth Circuit reverses.  Which should pretty much put an end to both this litigation as well as the sale of foie gras produced in this particular manner.

Judge Nguyen writes a fairly comprehensive and scholarly opinion.  It's worth a read.  You'll likely get other opinions written on the same subject as additional states join the anti-foie gras bandwagon, but this one's a pretty good template for how the analysis will go.

Judge Nguyen does make an interesting observation in upholding California's prohibition.  She says that California's ban on foie gras was inspired in part by California's related ban on horsemeat.  And when it passed the bill, the California Assembly did indeed argue that these provisions are similar in intent.  Judge Nguyen says that "as societal values change, so too do our notions of acceptable food products. Like foie gras, horsemeat was once a delicacy. Today, many states, including California, ban horsemeat because they consider the idea of eating horse repugnant. California, like a growing number of countries around the world, has concluded that forcefed foie gras is similarly repugnant."

All that's right.  Though I think that there's a qualitative difference between the horsemeat and foie gras statutes.  We can horsemeat because -- at a superficial level -- we like horses.  So we think it's disgusting (or "wrong") to eat them.  Or at least to use them directly as food.  The ban is based upon our reaction to the nature of the species.  We like dogs, we like cats, we like horses.  We deal with them all the time.  We societally consider them to have a certain level of sentience or what have you.  So we have a visceral reaction to eating them.

Ducks and geese are different.  We're totally happy to eat them.  (Or at least most of us are, though I personally don't.)  We don't think of them as having the requisite level of sentience or familiarity or whatever it is that puts 'em in the "eating them is disgusting" category.

The prohibition on foie gras is instead based entirely on "unnnecessary or unusually high suffering" grounds.  In other words, the correct analogy is to animal cruelty laws, not species-specific reactions to consuming their flesh.  California banned foie gras -- or this particular manner of foie gras -- for the way in which these animals were killed for food.  A way that, in my mind, at least, does seem to be incredibly cruel:

"Force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird’s head, insert a 10- to 12-inch metal or plastic tube into the bird’s esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. This process is [] so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.”

Dude!  Bodily violations so severe that you would literally die of mental distress if they didn't kill you first.  That sounds pretty darn bad, no?

My point is that this isn't like the ban on horsemeat.  We generally don't eat dogs or horses no matter how humanely they're raised or killed for a certain set of social reasons.  Whereas we do eat (at least as a society) ducks and geese if they're humanely raised and killed.  The two are materially different.

Not that any of this matters to the opinion, which is entirely about preemption.

But when we're dealing with an important issue like when our species elects to kill (or not kill) particular other species, I thought it might at least be worth setting the descriptive story straight.

Thursday, September 14, 2017

In Re J.T. Thorpe (9th Cir. - Sept. 14, 2017)

Sometimes the chambers of one of the judges on a panel writes a lengthy bench memorandum/draft opinion, which it hopes will eventually become the backbone of the ultimate opinion by the panel.  In tons of cases, that in fact transpires.  Efficient for everyone.

But sometimes it doesn't.  Occasionally leading to opinions that look, well, a bit different.

So, for example, for the most part, dissents are concise and targeted.  They're shorter than the majority opinion and, except for additional relevant details, don't recite a full-fledged "Statement of Facts" about the overall cases.  There are other typical characteristics of dissents as well.

But, sometimes, you see opinions like this.

The majority opinion is a crisp five pages long, and contains as its first section the usual factual summary of the case.  It's exactly what you'd expect from a majority opinion.

The dissent, by Judge Korman (sitting by designation from the Eastern District of New York), is 32 pages long.  Over six times the length of the majority opinion.  And around a full nine of those pages -- yes, nine -- simply recite the underlying facts and procedural history in exhaustive detail.

That's fine for a majority (or panel) opinion.  But for a dissent, it's distracting.  To me, anyway.  A ton.

Maybe that's simply Judge Korman's writing style.  Or what you're used to when you've been writing district court opinions for over thirty years.

Readers just typically see something different in Ninth Circuit dissents.  For better, IMHO.

Wednesday, September 13, 2017

Roth v. Plikaytis (Cal. Ct. App. - Sept. 13, 2017)

Sometimes cases are worth mentioning not because they're particularly interesting, but rather simply because they might be helpful to the reader.

Which is why I mention this one.

The relevant part of the holding is a simple one:  You're allowed to incorporate by reference prior motions and supporting evidence.  That's something that attorneys do somewhat routinely, and yet, other attorneys prefer to be on the safe side and refile the entire shebang.

Good to know that you have a choice.

As Justice Dato explains:

"Rule 3.1110(d) states that "[a]ny paper previously filed must be referred to by date of execution and title." Rule 3.1113 provides rules for the memorandum in support of the motion, and rule 3.1113(j) states that "[t]o the extent practicable, all supporting memorandums and declarations must be attached to the notice of motion." Consistent with these rules, a litigant may incorporate previously filed documents and, where practicable, should file them with the motion. But a litigant is not required to do so absent a rule precluding incorporation by reference. (Cf. rule 3.1345(a) & (c) [requiring separate statement for certain discovery motions and stating "[m]aterial must not be incorporated into the separate statement by reference"].) . . . .

Code of Civil Procedure section 437c now expressly contemplates incorporation by reference in summary judgment papers. (Code Civ. Proc. § 437c, subd. (b)(7).) We see no reason why incorporation by reference would be any less appropriate for a fee motion. . . . .

Refiling materials to support fee motions may be typical, and even prudent, but it is not required. Denied motions are part of the record. And even assuming record size imposes an additional burden, to aid the court Plikaytis did provide courtesy copies. At a minimum, if the court felt Plikaytis's efforts were insufficient to rely on incorporation by reference, it could have permitted her to refile the documents. Simply refusing to review the materials was an abuse of discretion."

So there you have it.  The rule.  As well as some practical advice from the Court of Appeal about that same rule.


Tuesday, September 12, 2017

People v. Hunter (Cal. Ct. App. - Sept. 11, 2017)

This isn't what you expect to see at all.

A group of seven people decide to rob Monaco Jewelers in lovely San Juan Capistrano.  A pretty heavy crew.  Seize the location, take the high-end jewelry, grab the security tape, and leave.

So the crew enters the store and starts pointing guns.  At which point the shooting starts.

But the shooting isn't from the perpetrators.  It's from multiple employees in the store itself, who shoot and kill two of the would-be robbers.  At which point the others (wisely) flee.

Nor was this a meek little crew.  One of the robbers was Robert Avery, who " towered over Pashaian [the store manager] even though Pashaian stood six feet tall" and who pointed a gun at the manager's head as he told him to "Come here, you motherf****r."

Which turned out to be Mr. Avery's last words, as he was then promptly shot three times by the father of one of the store's employees who was in the back room with the manager.

Two robbers dead and the others fleeing, desperate to escape.  Two of whom (Mssrs. Hunter and Paschall) are then caught and convicted of first-degree murder under the provocative act doctrine.  Because even though neither of the defendants were shooters -- indeed, even though neither of them were even in the store, since Paschall was acting as the lookout and Hunter was the getaway driver -- that doesn't matter.  They're sentenced to 30-to-life because one (indeed, two) of their accomplices died.

And there's more.

As is often the case, there's a plea deal for some of the participants, who then agree to testify against the others.  The defense attorneys who represent the remaining defendants then turn on the counsel for the "rat" and demand their interview notes, but counsel for the pled-out defendant refuses to turn over those notes.  Because even though everyone's in the same boat for a while, once there's the plea deal, everyone looks out exclusively for their own client.  At which point there's fighting and an appeal.

Though for naught.  Everything's affirmed.

But nonetheless and unusual case.  Not the usual result of a seven-person robbery.

Monday, September 11, 2017

People v. Lujano (Cal. Ct. App. - Sept. 11, 2017)

I had to read this morning's opinion from the Court of Appeal a couple of times just to make clear that I was reading it correctly.  I thought that the victim was initially a certain age, then later I thought that I must have gotten it wrong, only to find out (upon further review) that I was right all along.

Regardless, it's not the fact pattern that might instantly spring to mind when you read the first line:

"A jury convicted Andres Lujano of sodomy of an intoxicated person (Pen. Code, § 286, subd. (i)),1 and the trial court sentenced him to six years in state prison.  He appeals . . . .

The victim, Marco M., testified Lujano had lived next door to Marco’s family for three years, and Marco trusted him. . . . Marco testified that on May 26, 2015, he was sad because his baby was in the hospital with respiratory problems. Sitting in his truck in front of his house, he started drinking beer with his friend Jose at about 8:00 p.m. At around 11:00 p.m., he tried methamphetamine (provided by Jose) for the first time, and it made him feel more awake. Jose went home around midnight, but Marco did not go to sleep that night. Between 8:00 p.m. and about 5:30 a.m., in addition to the methamphetamine he ingested, Marco smoked marijuana and drank more than 20 beers. Marco testified he is five feet, five inches tall and weighs about 130 pounds."

Okay.  Let me just stop there for a second.  Marco smokes methamphetamine for the first time, is emotional, and then has more than twenty beers?!  And only weighs 130 pounds?!

This is not going to end well.  Things like that never end well.

"At about 5:30 a.m. on May 27, Lujano approached Marco in the truck and asked him if he wanted another beer; Marco had socialized with and drunk beer with Lujano previously. Marco said he did want another beer, and Lujano told him to come get it from his house. Marco went inside Lujano’s home to get the beer and sat down in the living room while Lujano was in the kitchen washing dishes. Marco was “pretty intoxicated” and dozed off sitting on Lujano’s couch."

So it's 5:30 in the morning, you've already had over 20 beers, and you're thinking:  "Yeah, you know what I really need at this point?  Another beer.  That'll probably help things."  Oh my.

"Marco testified he woke up because he felt “hard pain” “in [his] butt.” When he opened his eyes, he saw Lujano’s hands on top of his hands, he was face down over the side of the couch with his pants below his waist, and Lujano’s body was on top of him. When Lujano saw that Marco had opened his eyes, Lujano immediately stopped, got up, and started putting on his clothes. Marco got up, said he had to leave, and tried to go through the front door, but the door required a key to unlock it from the inside. Lujano could not find his keys and told Marco to go through the window. He gave Marco $6 and told him not to tell anyone. Marco was “still hurting” and “wasn’t able to walk right.”"

Ugh.  Terrible.

The next part of the opinion's factual recitation is the one that got me wondering whether my mental impression of Marco's age was totally off:

"Immediately after climbing through Lujano’s window, Marco went inside his own house and told his mother what had happened—that he “got raped.” She started crying and told him to call 911, which he did at 6:54 a.m. While Marco was still on the witness stand, the prosecutor played the recording of the 911 call, in which Marco told the operator “my neighbor just raped me.” Crying throughout the call, Marco said he was drunk and “just woke up and he was on top of me.” Police officers arrived about five minutes later, spoke with Marco, and took him to the hospital. Officers also took Lujano into custody that morning."

Nonetheless, I get it.  It's a traumatizing series of events at a definitely traumatic time.  Especially given the underlying physical symptoms:  "The supervising nurse practitioner who performed Marco’s sexual assault exam two to three hours after his 911 call testified Marco had an actively bleeding anal laceration—a “fairly significant injury.” She noted Marco was “shut down” and had difficulty talking about what had happened but told her he had had a lot of alcohol and was going to have a beer at Lujano’s house but “passed out” on the couch; when he “awoke,” Lujano was penetrating him. She testified Marco’s examination was consistent with his report. The parties stipulated that sperm found on Marco’s anal swab matched Lujano’s DNA profile."

Oh, man.  What a horrible, horrible night.

Friday, September 08, 2017

People v. Williams (Cal. Ct. App. - Sept. 8, 2017)

I'm usually not a fan of the California Supreme Court reaching out to depublish an opinion by the Court of Appeal.

But here's a good candidate for precisely that.

There's a loose horse out in a rural area, so police officers (understandably) investigate.  The horse seems trying to get back into a particular property, and the police follow it around, block it off, call for backup, try to contact anyone at the house (by knocking on doors, windows, calling the property, etc.).  Eventually the authorities succeed in getting the horse into a horse trailer that they've brought to impound the horse.

Cool.  Great work.  I have absolutely no problem with any of that.

While they're doing all of this, they hear some dogs barking, see some dogs that appear to be fairly poorly kept up (when they peek inside the windows), and generally just get a sense that there might be something going on with respect to the dogs.  Now, truthfully, they already know that already, as they'd previously been out to this same house on a couple of prior occasions, and knew that there were lots of dogs.  But the owner showed 'em the proper permits etc., so everything passed.

But now the authorities feel like they've got free reign of the place.  The owner's not home.  They've already done everything that conservative Supreme Court precedent allows 'em to do -- enter a home property without consent, repeatedly knock on every door, peek inside all the windows, etc.  Stuff that'd freak you out if you saw a stranger doing to your home, but that nonetheless the judiciary says is okay, since it's the "curtilage" of your home and hence involves a "sidewalk, pathway, common entrance or similar passageway [that] offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."

Okay.

But then the police cross the line, in my view.  Both literally and metaphorically.  There's a fenced in back yard.  Something that clearly doesn't offer "implied permission" for anyone to enter.  The police nonetheless enter the back yard, at which point they see some dogs with scars and a missing lip and some additional evidence that makes 'em think that there might be dog fighting.

And then, two weeks later, based on these observations, they go back to the property and take some more (entirely permissible) pictures.  Then they wait another three weeks, and finally get a search warrant, which they obtain by reciting all the evidence described above.  And during the search, they find evidence of dog fighting and charge the defendant.

The critical issue is whether the search was permissible; in particular, the officers crossing into the back yard.

The Court of Appeal says that was okay -- proper -- because of "exigent circumstances".  Based on the presence of several barking dogs and one letting out some whines somewhere.  Justice Grimes relies on an "exigent circumstances" case that said that it was okay for a police officer to hop over a fence when he saw a gun lying on the ground and says it's the same thing here:  gun, barking and/or whining dogs, no difference.  Exigent circumstances.

But the two are radically distinct.  Particularly here.

First off, of course there are barking dogs.  Come to pretty much any house with a dog -- or more of 'em -- and knock on doors and windows and peer in and see what happens.  They'll bark because (1) that's what they do, and (2) that's why (in part) we have 'em.  Because we want them to bark their heads off when random dudes go traipsing around our front hard for an hour knocking and peeking into every window.

So that's hardly exigent circumstances.  That's hardly reason to fear that the dogs are in mortal danger, which is the "exigent circumstance" that the Court of Appeal finds.

Now, there's also a dog that whines a little, and some dogs that look a little thin and the like.  Now, mind you, that exact same stuff -- and worse -- was there last time the authorities were called to the place, and the authorities did absolutely nothing.  So I'm not really sure how "exigent" all this stuff is.  But even ignoring past history, it'd be one thing if there really was a dog that was about to die or who was yelping like it was in mortal danger or whatever.  But that's not what was happening, and was definitely not what the police perceived.  The dogs were just doing what we'd totally expect them to do with randoms on their lawn who weren't leaving.  And, yeah, there might perhaps have been some systemic problems with the alleged weight of the dogs or a smell of feces or whatever.

So you know what you do in that situation?  Get a warrant.  It takes, like, hours.  Maybe a day, tops. There's absolutely no reason to believe that one of these dogs is in such distress that it's going to die or the like in the time it takes to get a warrant.  And it's nowwhere near as dangerous as a gun lying unsupervised on the ground.  Get a warrant, get a warrant, get a warrant.  Because we want a neutral magistrate to decide -- except in the most extreme cases -- whether circumstances truly warrant (pun intended) making people no longer "secure in their persons, houses, papers and effects."  Not merely the unilateral whim of the police.

But the Court of Appeal thinks that the dog situation is so extreme -- so exigent -- that it warrants the police exceeding their normal authority and invading the back yard.  And let's be crystal clear what's at stake in his holding.  If exigent circumstances -- the alleged dying dogs or whatever -- permit the police to invade the back yard, those same exigent circumstances permit them to bust down the door and enter the house.  Because both places are the "home" under the Fourth Amendment.  The fact that the police here only elected to invade the fenced back yard, rather than the home itself, doesn't make the Court of Appeal's holding any less dangerous, because what's good for the former is good for the latter as well.  If barking, smelly dogs are exigent circumstances that negate the need for a warrant, that's a view that's not limited to merely inspecting the back yard; you get to go full out at that point.

So it's an opinion that really does matter.

Oh, and lest you think that the "dangers" of the barking dogs were really all that substantial -- that I'm understating their perceived seriousness -- let me just remind you of just how serious the police who witnessed them first-hand thought they were.  How "exigent" and critical the circumstances were.  Those facts were so serious that after the police invaded the back yard and did all their stuff, they promptly left and did absolutely nothing.  Those "critically at risk" dogs were just left to their own devices.  For weeks.  Until the police did another drive-by and took some more pictures.  And then let three more weeks pass until seeking and obtaining a warrant.

When that's how serious the police perceive the matter to be in real time -- i.e., not at all -- I think it's super difficult to argue that on the facts of this case, the barking dogs were really so exigent that they authorized entirely dispensing with the requirement of a warrant.  Because every fact you'll mention to identify how allegedly "serious" the circumstances might have been were not, in fact, perceived to be at all that serious -- that requiring of immediate intervention -- by the people who were actually there and perceived them.

Anyway, that's my take.

And, in the end, the Court of Appeal concludes its opinion by saying that the seized evidence was permissibly introduced in any event because even if you excise the impermissible stuff from the affidavit (i.e, the back yard stuff), the remaining (proper) evidence was more than sufficient to justify the warrant's issuance.

Which totally negates the need for the rest of the opinion.  The bad -- and dangerous -- part about why exigent circumstances allegedly permit the police to invade your home whenever analogous circumstances like this exist.

Which in turn is why, even though I'm not normally a fan of depublication, I think this is a perfect candidate.

Thursday, September 07, 2017

U.S. v. Del Mundo Faagai (9th Cir. - Sept. 7, 2017)

It's a natural human tendency to become more persuaded over time about the validity of your own articulated beliefs.  Not everyone does it.  But lots of people do.  The reality is that as time passes, people start believing their own bull.  A lot.

It happens to regular people.  It happens to lawyers.  (Which explains in part why litigators often overestimate their probability of success.)  And it happens to judges.

Once initially seemed like the "right" conclusion to you over time becomes "obvious" and then "crystal clear" and then "so undisputably true that only a moron could possibly disagree."

And if you're a judge -- especially one writing a dissent -- that evolution sometimes affects the ultimate tone and content of your opinion.

Those are some of the thoughts when I read Judge Kozinski's dissent from today's Ninth Circuit opinion.

It's not that Judge Kozinski doesn't have a point.  He definitely does.  He might even be right.  It's certainly not crystal clear that there's probable cause to believe that the defendant here would have some drugs in his car.  Sure, there's some prior (recent) history of drugs, and some suspicious stuff, and a lot of talk on the wiretaps that sounds a bit weird and might be code for a drug deal.  But there may well be an innocent explanation for all this stuff as well.  Which Judge Kozinski spells out at length.

So I could definitely see someone coming to Judge Kozinski's conclusion.  The quantum of proof here may not meet the standard for probable cause.

But here's the thing:  It might not meeet that standard, but it totally might as well.  That's what two neutral judges on the panel think, after all.  And, as I read the competing opinions, I can see where the majority is coming from.  There's definitely stuff in there that's suspicious.

But not to Judge Kozinski.  He admits that probable cause "is not a high standard," but says that the government "came nowhere close to meeting it here."  And the tone and content of his dissent is very much consistent with that expressed view.  That this is a totally easy case.

Except it's not.  Reasonable minds can differ.  If the government's evidence didn't show probable cause, I gotta say, at a minimum, it at least came close.  As I read the facts, there's definitely stuff that's suspicious there.  That makes you think that, yeah, they may well be talking about doing a drug deal.  Notwithstanding the fact that I definitely agree that someone reviewing those facts would in no way, shape or form be certain that they were doing a drug deal, since the evidence was indeed subject to multiple reasonable interpretations.

Judge Kozinski does a great job parsing out the innocent explanations for the evidence that the government was able to identify.  He'd have been a great defense attorney.  But his pursuit of those innocent explanations blinds him, in my view, to arguments he makes that just aren't that persuasive.  In the vernacular, it looks like he just starts strongly believing his own bull.  (And, yes, I know that there are another four letters that often conclude that final word.)

I'll mention just one example.  The two alleged conspirators talk about setting up a meet to shop for some "food".  The majority (and government) think that "food" is a code word for drugs, and Judge Kozinski thinks it's a code word for . . . food.  So they arrange to meet at a particular Costco.  But that Costco is a full half hour away from their location, and there's a much closer Costco nearby.  To me (and the majority), that seems weird.  Suspicious, even -- at least in the context of the other evidence.

But that fact doesn't bother Judge Kozinski at all.  He says that not all Costco's are the same, and says that it would make sense to meet at the farther-away Costco because it's relatively newer and also has a fresh deli.

Is that possible?  Sure.  Maybe.  That's possible.  But the guys don't mention the deli, don't talk about it being newer, and don't give any reason at all why they're chosing that one over the closer one.  With all due respect to Judge Kozinski, that's unusual.   If you're really just shopping for actual "food," you usually don't inexplicably drive half an hour out of your way to a Costco when there's a much closer one nearer.  Because, yes, they're all different, but they're also quite similar.

Let's put it this way.  If my wife -- or, I imagine, Judge Kozinski's wife -- said she was going to shop for some food at Costco, and then mentioned that she was going to the Costco that was 40 minutes way from us (rather than the one 10 minutes away), wouldn't that seem at least a little strange?  At least enough to say, "Hey, that's cool with me, but why are you going to that one?"  I promise you I'd ask the question.  If she said it was because it was newer, or had a deli, fine.  I wouldn't suspect that she was buying a pound of meth.  But it's still something.  Yet Judge Kozinski's dissent doesn't admit that it's even that.  Which I think is a downside of his vision, and is the type of stuff that helps gives rise to his thinking that this isn't even a close case.

Of course, as usual, there's some great stuff in what Judge Kozinski says as well.  Like taking the government to task for saying that it was suspicious that the guys were setting up to meet in a not-very-busy place (thus supporting probable cause) where in other cases the government has said the exact opposite -- that drug dealers like to set up in busy places where there's a lot of traffic.  That's spot on.  Damned if you do and damned if you don't.  Everything's suspicious and support probable cause.

But in the overall context of this case, I can definitely see people disagreeing about whether the evidence here was merely "suspicious" or whether it satisifed the quantum of proof necessary for "probable cause".  That's a fine line, and smart people could (and would) argue about whether that line was crossed here.

But the line was at least approached.  It's a close case.  Not an easy one at all.

Notwithstanding Judge Kozinski's stridently articulated view to the contrary.

Tuesday, September 05, 2017

People v. Washington (Cal. Ct. App. - Sept. 5, 2017)

There have been only two published Court of Appeal opinions thus far in September.

The one published today, after the long Labor Day weekend, should definitely be reviewed by the California Supreme Court.

It's an opinion that decides to ditch a central constitutional principle that's stood for over half a century.  The opinion itself accurately describes the contours of this rule:

"Under the so-called Aranda/Bruton doctrine, a trial court may generally not allow a jury in a joint criminal trial of a defendant and codefendant to hear the unredacted confession of the codefendant that also directly implicates the defendant—even if the jury is instructed not to consider the confession as evidence against the defendant. (People v. Aranda (1965) 63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136 (Bruton).) Such a confession is so 'powerfully incriminating,' the doctrine provides, that the jury cannot be expected to heed the court’s instruction and put it out of its collective mind when evaluating the defendant’s guilt."

That rule has not only been consistently applied for the last fifty-plus years, but it's also one that's at issue in a relatively large number of cases.  And it's critically important, as it involves what's thought to be the pinnacle of reliable testimony:  a suspect's confession.

The Court of Appeal holds that this longstanding precedent is no longer good law after the Supreme Court's 13-year old decision in Crawford, which limited the Sixth Amendment right to cross-examine witnesses to "testimonial" statements.  You might rightly think that the fact that confessions are surely "testimonial" means that Crawford doesn't abrogate the Aranda/Burton doctrine at all.  But the Court of Appeal believes that the necessarily implication of that decision (and its progeny) mean that the 50 years of precedent that followed Aranda and Burton are no longer good law.

There are definitely those who will find Justice Hoffstadt's reasoning persuasive.  And there are definitely those who will find it unpersuasive.  To me, given those facts, before we ditch a critical principle of criminal procedure and constitutional law, the California Supreme Court should definitely weigh in, rather than let a panel of the Court of Appeal conclusively decide this issue.

There's a lot to be said for the other side of this dispute.  If only because I think that even if the Sixth Amendment didn't apply here (which it may well), then the Due Process Clause might require the same result.  The Court of Appeal thinks it doesn't, arguing that if a more specific clause doesn't apply, then a more general one shouldn't require a different rule.  But my view is that even if there's not a specific right to cross-examine a particular witness, to admit testimony with a required limiting instruction that we practically know the jury will ignore is indeed something that the Due Process Clause cares about.  Quite a bit.

Moreover, if, indeed, there's no constitutional barrier to admitting the testimony here, then I surely think that separate trials (or at least separate juries) should be required.  Particuilarly in high-stakes cases like the first-degree murder trial here.  The Court of Appeal holds that one trial was just fine.  But if we're indeed going to revolutionize confession admissibility like the panel does here, my own view is that -- at a minimum -- the burden of two juries is definitely worth it.  If only to avoid the manifest prejudice that we all recognize will otherwise arise from admitting the confession.

There are powerful reasons for the Aranda/Burton rule.  There's the Sixth Amendment at stake.  As the opinions recognized, there's also a Due Process issue.  And that rule was also adopted by the judiciary in part pursuant to its inherent supervisory powers.  All those principles are still in play.

The Court of Appeal holds that the law now is different -- beneficially different -- than that of the last fifty years.

The California Supreme Court should grant review and decide whether it agrees.

Thursday, August 31, 2017

Updike v. Multnomah County (9th Cir. - Aug. 31, 2017)

I'm just fine with soft pedaling the facts a bit when the issue is a legal one.  Particularly when you're dealing with a grant of summary judgment, where you have to view the facts in the way that's the most favorable to the non-moving party.  So if an opinion paints a particular picture of one of the parties that's a little bit one-sided, generally, I'm totally fine with that.

That said, the facts of today's opinion may still seem just a bit too shaded even for my flexible tastes.

Not that the plaintiff doesn't have a lot of sympathetic facts going for him.  He's been totally deaf since birth, doesn't read or speak English well, and isn't very good at reading lips (since he's not too familiar with the English words, so don't necessarily know what they look like).  So he relies on American Sign Language (ASL).  That's his basic world, especially since "[a]ll of [his] friends are deaf and [his] ex-wife is deaf."

And when he's arrested and booked and in associated proceedings, he doesn't receive an ASL interpreter, and allegedly suffers harm as a result.  That's definitely too bad.

Judge Gould's opinion recites all of these facts, as well as others.  An opinion that ultimately reverses (in part) the district court's grant of summary judgment to the state.

Okay.  Fair enough.

But, as I said, I have a feeling that what facts are included and what facts are left out may be partly driven by the result Judge Gould reaches.  To take but one example:  you get lots of details about the plaintiff's life and tribulations, but only a glimmer (if that) into why the plaintiff was arrested during a "disturbance" at his home, and learn only late in the opinion that he had also "been booked at MCDC on five previous occasions."

Similarly, Judge Gould's reaction to the plaintiff's interactions with the relevant court personnel might also be viewed as potentially one-sided.  For example, Judge Gould recounts what he describes as a "series of miscommunications" with his pretrial release officer, but my strong sense is that others did not view these events as "miscommunications" but rather simply plaintiff's refusal to do stuff.  Maybe that's why plaintiff himself thought that this officer believed that he "used his hearing impairment as an excuse to violate conditions of his pretrial release."

And when Judge Gould notes that the pretrial officer's log entries noted that the plaintiff had "poor reporting during his time with pretrial services, that [he] used his hearing impairment as the reason for not complying with the conditions of supervision, and that their interactions were challenging because [he] “argued” everything," Judge Gould had a definite response to this impression, saying: "The “hearing impaired, learning impaired, and developmentally disabled individuals engage in a range of coping mechanisms that can give the false impression of uncooperative behavior or lack of remorse.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is likely that such individuals may have difficulty interacting with personnel who supervise them. Id. This is one basis that may explain why the interactions between Sacomano and Updike were challenging."  Yeah, maybe.  That's surely one possible explanation.  Though another -- unmentioned -- one might simply be that Updike was in fact an arse, and was actually challenging in the exact same ways a non-deaf person can be challenging.

Again, all this is fine; it's okay, especially on summary judgment, to have a particular take on the facts, and to highlight those that favor the non-moving party as well as the ultimate dispensation of the opinion.

It's just that, when I was reading this opinion, I got a more palpable sense of that reality than I sometimes get reading other opinions about the same subject matter.  So I thought it worth mention.

(None of which, of course, says that Judge Gould's impression is the wrong one.  Just that's it's not necessarily the right one either.)

Wednesday, August 30, 2017

People v. Seals (Cal. Ct. App. - Aug. 27, 2017)

Someone steals something (a phone) that costs $900, but with sales tax, it would cost $972.

Whether that's commercial burglary (a felony) or shoplifting (a misdemeanor) depends on whether  "the value of the property that is taken . . . exceed[s] nine hundred fifty dollars ($950)."

Well?  Does it?

Do you count the sales tax, or not?

I definitely could see competing visions here.  On the one hand, the "value" of the property could be seen as only the $900, since that's the "worth" of the "thing".  On the other hand, its value could be the whole $972, since that's what it would in fact cost -- what a willing buyer and seller would agree on.

The Court of Appeal agrees with the latter approach.  Which is different than courts in some other jurisdictions.

Its reasoning (in part):

"Unlike the sales tax law and administration described in several of the cases from other jurisdictions, California law does not obligate a merchant to collect a sales tax from the customer. This is a significant distinguishing factor. In California, whether the retailer seeks a sales tax reimbursement from the customer is a matter of contract between the buyer and seller. Under this sales tax framework, the addition of sales tax reimbursement to the cost of an item is an indication of that item’s fair market value: the total and highest price to which the willing buyer and seller agree."

That makes sense.  The retailer is paying the tax, so adds it to the cost of the product.  Just like the retailer is paying rent, which is also (albeit less expressly) added to the cost of the product.

Though you see the other side as well:  that the "value" of the property is still only $900, if only as established by (1) the fact that that's what this same product would indeed be sold for (in places with no sales tax, or when exempt from tax), and (2) that's all the retailer loses if the phone is stolen -- as here (since no sales tax is paid).

Tough call.  Though I like the scope and coherence of the Court of Appeal's view here.  It takes the matter seriously, and its analysis is pretty darn good.

Even as I understand that the other side has definitely good arguments as well.

(At minimum, the lesson learned here is (1) don't steal something worth $900, or (2) if you do, steal it from someplace that doesn't charge sales tax.)

Avilez-Rodriguez v. LA Community College District (Cal. Ct. App. - Aug. 29, 2017)

It's not that I don't disagree with the result of this case.  I do.  Or its reasoning.  Which is indeed based on a correct reading and interpretation of the underlying cases.

My only point of divergence is with the panel's reluctance.

Here's the scoop:

When a typical employee gets fired, her time to sue runs from the last day of her work.  Not the date she was notified she was being fired:  her last day of work.  Even if she continues to work for the company a bit after she was notified that she was being terminated.

Here, a tenured professor gets fired.  More concretely, he gets notified that he was denied tenure, which effectively means he's fired.  He continued to work for the university for a little bit after he was notified that his tenured was denied.

When does his time to sue run?

The answer seems obvious to me:  From the date of his last day of work.  And that's exactly what the Court of Appeal holds.  A holding that follows directly from precedent, which the panel's opinion explores at length.

But after reaching that conclusion, the Court of Appeal says:

"We acknowledge that both case law and rational policy considerations may militate in favor of a rule that in cases involving an allegedly discriminatory denial of tenure, the statute of limitations for filing an administrative complaint runs from the date the employee is notified of the final tenure decision. Had our Supreme Court in Romano merely distinguished denial of-tenure cases from the case before it, we might well adopt such a rule. But we cannot ignore the language of Romano or the fact that our highest court expressly questioned and unequivocally criticized cases adopting that approach."

Why so timid?

In my view, "case law and rational policy considerations" militate in favor of precisely the rule the Court of Appeal articulates here, not the other way around.  If the clock for normal employees does not start ticking until they actually leave the company -- even if they're definitively notified on an earlier date that they're being fired -- then that exact same reasoning applies equally to employees who work for a university and who are denied tenure.  They're similarly-situated.  They should be treated the same.

What'd be weird is if they were subject to a different rule.  That's what wouldn't be "rational" or consistent with public policy.  Because being told that you aren't getting tenure (and hence have to stop work on Day Y) and being told that you're being fired (and hence have to stop work on Day Y) are the same thing.  The exact same clock should apply.

So good result.  But an even better one than the panel perceives it to be, IMHO.

Tuesday, August 29, 2017

People v. Drew (Cal. Ct. App. - Aug. 29, 2017)

Sometimes even someone as jaded as I am can't believe what I'm reading:

"Appellant Charles Patrick Drew sexually assaulted Amber Oceja while she was in a diabetic coma, and within two hours of the assault, Oceja died from diabetic ketoacidosis."

What?!  Someone's in a diabetic coma and you take that opportunity to sexually assault her?!  Wow.

Then there's the resulting legal quandry:

"The experts all agreed that since Oceja was already unconscious when the sex crimes occurred, they did not materially contribute to her death. Indeed, it appears she would have died when she did even if appellant had not sexually assaulted her. However, appellant did not just sexually assault Oceja while she was unconscious, he failed to seek medical assistance for her knowing she was in dire physical condition – a fact which would remain hidden as long as she was confined in his motel room."

So does that mean he's guilty of first degree murder?  Even though he didn't contribute to her death (apart from doing nothing -- which, ordinarily, is not a criminal offense)?

Apparently so.

"We hold there was a sufficient causal relationship between this fatal omission and appellant’s sex crimes to support his conviction for first degree felony murder."

Oh, and just when you thought the facts couldn't be any more bizarre:

"At the time this case arose in 2012, appellant was 62 years old and Oceja was 29."

Yep.  That's a 62-year old man sexually assaulting a 29 year old woman when the latter is in a coma and about to die.

What a world.

Monday, August 28, 2017

State of North Dakota v. McCarthy (9th Cir. - Aug. 28, 2017)

I thought that I had suddenly lost substantial intellectual function when I read the caption of today's opinion by the Ninth Circuit.  Or at least needed a new pair of glasses.  Is the plaintiff in this case really North Dakota?!  Because last time I checked, I'm pretty sure North Dakota isn't in the Ninth Circuit.

But yes.  It's true.  North Dakota.  That North Dakota.

Whodathunk?

So I gotta admit, I was so befuddled by the caption, I skimmed the opinion at first to just figure out how the heck the case was in the Ninth Circuit if it involves North Dakota.  And I had to read a lot of pages just to figure it out.

But then it all made sense.

North Dakota wasn't the plaintiff to begin with.  The Sierra Club was.  It sued to compel the EPA to do something about sulfer dioxide emissions.  And then a bunch of states, led by North Dakota, that didn't want the EPA to do anything intervened in the lawsuit.

Hence why North Dakota leads the caption and argued the case.  Since it was objecting to a consent decree that the EPA and the Sierra Club had entered into to resolve the suit.

Okay, then.  Welcome to California, North Dakota.  You'll find that it's a bit warmer out here than what you're used to.  Especially (at least down here) this week.

As for the merits, though, uh, sorry about that.  North Dakota loses in the district court.  And loses on appeal as well.

Sorry about that.  But I hope that your lawyers at least enjoyed their stay here.

And wore lots of sunscreen.

Friday, August 25, 2017

First Amendment Coalition v. US DOJ (9th Cir. - Aug. 25, 2017)

Don't reveal settlement offers made during mediation, and especially don't reveal settlement offers made during official Ninth Circuit mediations.  Otherwise the Ninth Circuit may well elect to shame you by mentioning you by name.  As happens today to Davis Wright Tremaine associate Jonathan Segal:

"In oral argument before this panel, Jonathan Segal, counsel for appellant, disclosed confidential information related to offers made by his opponent in mediation before the Ninth Circuit Mediation Program. This is in clear violation of Ninth Circuit Rule 33-1(c)(4), which states that any written or oral communication made in Ninth Circuit Mediation Program settlement discussions may not be disclosed to anyone who is not a participant in the mediation. The panel reiterates the importance of maintaining confidentiality in the Ninth Circuit Mediation Program. The wrongfully disclosed information was not considered in deciding the case."

Yeah.  Don't do that.

(Though he did win the appeal.)

In Re Miller (Cal. Ct. App. - Aug. 25, 2017)

A public service announcement from today's opinion on something you might want to look out for the next time you go to your bank:

"Defendant, Patton, and Tate were all members of the 4-Deuce Crips street gang and had committed follow-home robberies with one another, and with others, in the past. The robberies were typically conducted as follows: A “spotter” would go into a bank, locate a person withdrawing a large amount of cash, and identify that person for the others involved in committing the robbery. The “driver” would tail the victim to his or her destination, and the “getter” would take the money. According to Tate, who testified as a witness for the prosecution at trial, they did not always carry a gun during follow-home robberies; it depended on the age, size, and sex of the victim, as well as whether the victim was alone. Tate estimated he had participated in six prior robberies with Patton and seven or eight with defendant."

Particularly since, here, one of the victims dies.

Thursday, August 24, 2017

Rubenstein v. The Gap (Cal. Ct. App. - Aug. 24, 2017)

I'll be the very first person to admit that I know virtually nothing about "factory" or outlet stores.  If only because I don't buy clothing.  Ever.

But what very little I do know seems entirely consistent with Justice Lui's opinion today.  Which holds that it's not fraud (or unfair competition, etc.) for The Gap and Banana Republic to sell cheaper clothes at its "factory stores" that haven't previously been sold in their "regular" stores.  Because the nature of a "factory" store doesn't inherently represent that the same products are available in regular stores; instead, consumers simply expect that stuff in "factory" stores just means it comes from the underlying "factor"; i.e., the brand.

Seems right to me.  Sure, I sort of think that the stuff -- or at least some of the stuff -- in a factory store is probably sold at a "regular" store at a higher price.  But maybe it is, maybe it isn't.  That's up to the store.  I'm buying the stuff I'm buying because it seems like a good deal (or not).  There's no inherent misrepresentation just because you slap a "Gap" label on stuff that The Gap sells at its factory stores.  (Which, of course, was in turn likely produced in some overseas sweatshop.)

So putative class action lawsuit dismissed.

Wednesday, August 23, 2017

People v. Button (Cal. Ct. App. - Aug. 17, 2017)

Every bad relationship is bad in different ways.  As well as sad.  And any such relationship you learn about by reading about it in a Court of Appeal opinion is almost necessarily especially bad and sad.

This is not your typical domestic assault case.  It's nonetheless depressing in its own way.  If only because, in addition to the violence, you can palpably intuit the emotions that the victim must have had even before being punched.

Here are the facts:

"At the time of the charged offenses, Button and the victim, B.D., were students at Palomar College. They had been in a dating relationship for approximately a year and a half and had previously been engaged. Their engagement ended a couple of weeks prior to the incident giving rise to the charged offenses.

Although their engagement had ended, on the day before the incident, Button and B.D. had sexual intercourse. According to B.D., Button told B.D. that they could continue to be "lovers" if she would agree not to reveal the nature of their relationship to anyone.

The next day, B.D. and Button had a class together. During class, B.D. learned that a group of Button's friends were going to a restaurant after class. One of the friends invited B.D. to come along. While B.D. was gathering her belongings after class, everyone left without her. Shortly thereafter, B.D. called Button a couple of times and sent him some text messages. She received no immediate response.

Later that day, B.D. received a call from Button. B.D. asked Button to meet her so that they could talk. They agreed to meet in front of a building on campus. When Button arrived to the meeting, he appeared to be very upset. His hands were clenched and his face and voice conveyed anger. Button accused B.D. of telling two of his friends that they were still dating. B.D. denied the accusation, and Button called her a liar.

B.D. took off her glasses because she was crying. She then stepped forward with her arms open in order to give Button a hug. Button grabbed both of B.D.'s biceps and began squeezing her. B.D. was shocked and struggled to get free. Once B.D. escaped Button's grasp, she slapped Button across the face with an open hand.

Button immediately punched B.D. in the face, twice. B.D.'s hands were at her sides at the time Button punched her. B.D. bent over and blood rushed into her mouth. Immediately after the incident, the two walked to a health services office on campus."

That factual recitation for some reason struck me as especially depressing.  Perhaps because you had a guy who told his former fiancee that he was willing to still have sex with her only if she agreed not to tell anyone they were still doing so, and she agreed.  Informed also by the fact, revealed later in the opinion, that "there was evidence that B.D. outweighed Button by 120 pounds."

And further informed by the fact that B.D.'s injuries were serious ones:  she suffered a concussion as well as three acute fractures of her facial bones.

Depressing all around.

Tuesday, August 22, 2017

In Re Google Header Referral Privacy Litigation (9th Cir. - Aug. 22, 2017)

Google settles a class action, and every single penny of the multi-million dollar settlement goes to (1) the attorneys, and (2) an award of cy pres funds to various privacy organizations -- most of which are at the alma matters of the plaintiffs' counsel.  Objectors object and appeal.

But lose.  The majority says:

"[W]e reject the proposition that the link between the cy pres recipients and class counsel’s alma maters raises a significant question about whether the recipients were selected on the merits. There may be occasions where the nature of the alumni connections between the parties and the recipients could cast doubt on the propriety of the selection process. But here, we have nothing more than a barebones allegation that class counsel graduated from schools that house the Internet research centers that will receive funds.

The claim that counsel’s receipt of a degree from one of these schools taints the settlement can’t be entertained with a straight face."

But Judge Wallace dissents.  And isn't laughing.  He says:

 To me, the fact alone that 47% of the settlement fund is being donated to the alma maters of class counsel raises an issue which, in fairness, the district court should have pursued further in a case such as this. The district court made no serious inquiry to alleviate that concern. . . . In our case, we have a cy pres-only settlement. That alone raises a yellow flag. Furthermore, we have a class settlement before formal class certification. That raises another yellow flag. Lastly, we have almost half of the settlement fund, several million dollars, being given to class counsel’s alma maters. To me, that raises a red flag. I am especially dubious of the inclusion of the Center for Information, Society and Policy at Chicago-Kent Law School (a law school attended by class counsel), which center appears to have inaugurated only a year before the parties herein agreed to their settlement."

That's a lot of flags.

Now, personally, as a professor at a law school, I'm more than happy to see millions of dollars flow my way (or the way or my institution).  And, truthfully, we could definitely do some good stuff with such funds.

But Judge Wallace has a point.  Though the majority does as well.  We want to be a little careful about cy pres settlements that may not actually be the best way to spend the underlying money.

But not too careful.

Monday, August 21, 2017

U.S. v. Castillo-Mendez (9th Cir. - Aug. 21, 2017)

The sun may be disappearing (temporarily, anyway).  The United States may be headed by the former head of a reality show.  But even in the crazy world in which we live, some things do not change.

Like the Ninth Circuit having to consider illegal reentry convictions coming out of San Diego.

Those things happen all the time.  Usually they're not that complicated.  But here, the defendant has a neat defense:  he says he wanted to be caught by the border patrol, in order to escape the hands of his threatening coyote smugglers.

Well, okay then.  If that's true, then he's not guilty of attempted illegal reentry.  It's a factual dispute.  And the district court gave an erroneous instruction.  Which requires the conviction to be reversed.

Still, even though the defendant gets relief here, he still faces a retrial.  And even though I agree that it's not clear beyond a reasonable doubt that no jury would possibly acquit him, I still think the odds are against him in the retrial.

But at least the instructions will be correct.

Thursday, August 17, 2017

Skulason v. California Bureau of Real Estate (Cal. Ct. App. - Aug. 16, 2017)

What Justice Humes says is absolutely right:

"Skulason’s point is well taken. There is no doubt that the Internet substantially increases the ease with which the public can access information that was previously available only “after a diligent search of courthouse files” or other locally kept records. The reality of our electronic age, for better or worse, is that all kinds of public information that was once hard to obtain has become increasingly accessible, including information contained in or related to documents filed in court cases. And there is no doubt that increased access to information about prior convictions brings with it additional, and potentially harmful, collateral consequences."

Reasonable minds might perhaps differ as to what comes after this (insightful) paragraph.  Since the Court of Appeal nonetheless comes out the other way:

"We are sympathetic to Skulason’s concerns, but her remedies lie with the Legislature or the Bureau, not with the courts through a writ of mandate. The Legislature can consider enacting a law to restrict the Bureau’s ability to post documents that refer to convictions that have been dismissed under sections 1203.4 or 1203.4a. And the Bureau, rather than posting such documents unredacted and unexplained, can consider different approaches that might preserve its legitimate interests and still reduce the negative collateral consequences of its current practice. Our role, however, is limited to deciding whether existing law requires the Bureau, as ordered by the trial court, to “remove any and all documents containing information about [Skulason’s] expunged and/or dismissed convictions from its public website and publicly searchable database.” We conclude that it does not, and the court therefore erred by granting the petition for a writ of mandate."

There's nonetheless no doubt that the Internet is a double-edged sword.

P.S. - The case is also a pretty good example of the Streisand effect.  Before the lawsuit, someone had to deliberately go on the Bureau of Real Estate's web page and look up Ms. Skulason's license to find out about her "expunged" convictions.  Now, by contrast, with the publication of the opinion, I would fully expect that every time someone googles the name "Belinda Skulason", one of the very first hits will be a discussion of Ms. Skulason's previous offenses.  Particularly since "Belinda Skulason" isn't an extraordinarily common name.  (As of today the district court docket sheet is Result No. 9, an amicus brief is No. 11, and the Court of Appeal's opinion is No. 16.  And I'm guessing those results will move up over time.)

Wednesday, August 16, 2017

Ponte v. County of Calaveras (Cal. Ct. App. - Aug. 16, 2017)

This introductory paragraph really gets to the heart of the matter:

"Plaintiff Dennis Ponte is asking defendant County of Calaveras (County) to pay him over $150,000 to reimburse him for work purportedly performed on the County’s behalf pursuant to an oral contract. The contract did not contain any fixed payment, and no bid was submitted--far less approved--pursuant to relevant county ordinances governing public contracts. Ponte disregarded opportunities to abandon his claims after the County provided him with pertinent legal authority demonstrating that his claims lacked merit."

You don't need to read the remainder of the opinion to figure out where this is going.

Unless, of course, you'd like to see the attorney for Mr. Ponte receive similar critique.  But for that you'll only have to read as far as the first footnote:

"We begin by noting with disapproval the paucity of pertinent record citations throughout Ponte’s opening brief, which contains key passages either devoid of any citations, or containing inadequate citations, placing an unfair burden on this court. This same flaw is apparent in the reply brief."

The Court of Appeal certainly isn't shy here.

Monday, August 14, 2017

People v. Trever P. (Cal. Ct. App. - Aug. 14, 2017)

I just knew that when this opinion mentioned that it involved a 12-year old child babysitting his 4-year old cousin that we'd be talking about something bad.

Admittedly, I didn't know that it'd be this bad.  For example, that we'd be talking about an actual tape recording of a molestation.  Or that it'd be so bad that this is what he trial judge had to say:

“I have to say this tape recording, Exhibit 2, is some of the most sickening evidence I've heard. I have presided over adult jury trials involving murders with gory evidence and sexual abuse cases with horrific testimony from the victims, but actually hearing the acts being committed, as is the case here, and Trever's callous and sadistic treatment of Ralph is very disturbing. He seems to take pleasure out of hurting Ralph, and threatening to leave him and spanking him. [¶] There are numerous instances of Trever telling Ralph to bend over and open his butt, that he was going to stick it in, and for Ralph to keep it in; and to do it just one more time, over and over; or requesting Ralph to 'suck it' and threaten[ing] to leave him alone if he didn't and even threatening to kill him.”

Yeah.  Not good.  Especially when you're listening to this stuff exactly as it happened.

On the intellectual front, however, I will say that the opinion is definitely interesting, and would the underlying dispute would also make for a decent law review article.  The issue is whether a parent can "consent" on behalf of her minor child to secretly record communications with someone else.  Usually you have to get consent of both sides to a communication, or it's a felony.  But in certain circumstances, you only need one party's consent; e.g., when you're trying to get evidence related to extortion, crimes of violence, etc.

But here, neither party to the communication gave consent, or even knew that things were being taped.  Yet most courts, including this one, hold that the parent's consent "on behalf of" the minor child was nonetheless sufficient to constitute "consent" within the exception.

There's nonetheless a huge fight about how far this goes.  What about "consent" on behalf of a 17-year old child (who, again, doesn't know or want the communication to be recorded)?  Or "consent" by a noncustodial parent?  Or "consent" by other types of agents; e.g., a principal granting "consent" for his agent (attorney, employee, etc.) to secretly tape?  Are those valid too?

Not relevant here, since this is an otherwise straightforward "four year old child" type of case.  But just how far does the doctrine of "vicarious consent" go?  (And does it even make sense at the outset, or is it inconsistent with the text of the statute in even its "purest" form?)

Interesting stuff.

Thursday, August 10, 2017

Curci Investments v. Baldwin (Cal. Ct. App. - Aug. 10, 2017)

"Reverse veil piercing".  Super cool.

And allowed in California in an appropriate case.

Including, potentially, this one.

Wednesday, August 09, 2017

People v. Financial Casualty & Surety (Cal. Ct. App. - Aug. 8, 2017)

Two questions about this opinion:

(1) What's the relevant standard of proof?  The opinion doesn't seem to mention it, but I think it's at least relevant, if not critical.  Bail doesn't get forfeited if the defendant's been deported.  Here, the surety introduces evidence that certainly seems to at least suggest that the guy might well have been deported.

The surety convincingly establishes that, after posting bail, the defendant was arrested in Utah on drug offenses.  And, as a condition of being released on probation for these offenses, his booking sheet says "Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally."

Since the guy was released to ICE directly from jail, that strongly suggests that the guy was kicked out of the country, since that's what typically happens.  The surety also introduces some cooberating evidence:  a letter from the Department of Homeland Security that reads:  “This is in response to your letter dated August 5, 2015, in which you seek information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015.”

Well, geeze.  That definitely suggests that, yep, the guy was deported to Honduras, no?

Now, the Court of Appeal correctly notes that this evidence doesn't prove that the guy was actually deported.  The letter says that he "departed" for Honduras (even though it also talks about his "deportation" status), and the probation conditions also leave open the possibility that defendant might be permitted to leave the country voluntarily.

So I agree that I wouldn't bet my life -- or even my house -- on the fact that the defendant was in fact deported.  The evidence doesn't establish that fact with 100% certainty.

But that's where the standard of proof comes in.  At least to me.  My guess is that the relevant standard is proponderence of the evidence.  Or maybe even something less.

(I make this latter point because the opinion cites a case in a different section of the opinion that held that “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance,” rather “the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.'")

The evidence the surety introduced may not prove conclusively that the guy was deported.  But it certainly gives a strong reason to believe that might well have transpired, no?  If the standard of proof is 50.001%, geeze, that evidence might well be enough.  If I had to bet one way or another whether the guy was, in fact, deported, I might well take the "Yes" side of that bet.  The evidence might show at least that it's more likely than not that the guy was kicked out.  Even though, sure, there's at least a chance that the guy voluntarily left.

What about you.  You've got $1000 in free money to bet.  Would you take the "Yes, Deported" side of the bet, or "No, Not Deported" side?

So it seems to me that the standard of proof is pretty darn important.  And that the surety's evidence might also well satisfy whatever the underlying standard is.  Even if, admittedly, it leaves open an alternative hypothesis to deportation.

(2)  A related, but quicker, thought.  Why does this matter anyway?

The opinion cogently cites precedent from the Court of Appeal that says that if you're deported, the surety doesn't lose his bail money, but if you voluntarily skip the country, yep, the money's gone.  I get that rule, and in most circumstances, it makes sense.  You can't just flee to Mexico and get your bail money back.

But, here, we're merely disputing whether someone was "actually" deported to Honduras or whether ICE gave him the option of "voluntarily departing" and never coming back.  The guy was going to be deported if he didn't "voluntarily" leave.  Undisputedly.  And since he's not a citizen, he's not allowed to come back.  Under such circumstances, it's not an actual choice.  The authorities are the ones who are making you leave.  You're not skipping out on bail.  You're being deported.  Either de jure or de facto.

Why does it make a monetary difference which one it is?  (A) It's not your choice. (B) You're not doing it to skip out on bail. (C) Either way you're forced, under official orders, to leave the country and never come back.  (See, e.g., the probation condition:  "Do not re-enter the country illegally.")

"Voluntary" departure in the deportation context doesn't seem to me actually voluntary, nor the type of "skipping the country" that precedent talks about when it mentions skipping bail.  So I'd like to have read a bit more analysis of this issue as well.

'Cause I'm not sure that, even if the evidence was consistent with a "voluntary" departure, that should be treated any different than an actual deportation in this context.

(The fact that, on appeal, the surety introduced additional evidence that may well show that, yeah, the guy was actually deported only strengthens my thought that the result here might well be a forfeiture in unjust circumstances.  I agree with the Court of Appeal that it can't consider this evidence since it wasn't presented below  But if in fact that evidence does indeed show that, yeah, he was indeed given the official boot, rather than voluntarily departed, that's just proof positive in my view that the "Yes he was deported" side of the bet is in fact a pretty good one to have taken, even on the evidence that was introduced below.)

Tuesday, August 08, 2017

DLS Precision Fab v. U.S. ICE (9th Cir. - Aug. 7, 2017)

This opinion amply demonstrates at least one of the reasons why you should (1) hire a good human resources director, and (2) make sure that s/he's in fact doing a good job.  Because if your company start getting letters from the United States and your HR Director "literally stuff[s] the government’s correspondence in a drawer and never respond[s]," you may find yourself on the wrong end of a $300,000+ penalty.

Which is generally not good for your company.

Monday, August 07, 2017

In Re Marriage of Garcia (Cal. Ct. App. - Aug. 4, 2017)

Florencia:  "I've had it.  We've been married for 24 years, 7 months, but we're not making 25.  I'm filing for divorce."

Juan:  "Fine.  But guess what?  We were never actually married."

Florencia:  "What?!  That's absurd."

Trial Court:  "Yep, Juan's right.  You were never actually married.  Divorce petition dismissed."

Florencia:  "Okay, then.  New lawsuit.  I was a putative spouse.  Because I definitely thought I was married to you.  So give me the same relief."

Juan:  "I've got some Latin words for you.  'Res judicata'.  You already lost.  You can't sue me again."

Court of Appeal:  "Not so fast.  This is California.  A 'nullity' action is a different primary right than a 'divorce' action.  So the lawsuit can continue."

That's essentially the dialogue that underlies this opinion.

Thursday, August 03, 2017

People v. Echavarria (Cal. Ct. App. - Aug. 3, 2017)

You usually don't see a first-degree murder conviction reversed for juror misconduct.  But for every rule, there's an exception.

As today's opinion proves.

It's possible that the defendant will get convicted of the same offense (first- rather than second-degree murder) at the retrial.  But maybe not.  It's far from an open-and-shut case regarding premeditation.

Which is why there's prejudice here as well.

Regardless, not really worth shooting the guy over a $1200 debt for stucco repair.

Wednesday, August 02, 2017

People v. Singh (Cal. Ct. App. - Aug. 2, 2017)

There are undoubtedly people who are far more familiar with rap lyrics than I am.  Still, even my fairly low level of knowledge makes me wonder how probative (as opposed to prejudicial) the admission of rap lyrics was in this case.


"His writing, “Put it in your face and melts in your mouth like an M&M,” “two to the gut, watch you shut your eyes slow,” and, “I shoot for fun just to watch niggas shake like they goin’ dumb. Put two in your chest, now you goin’ numb” eerily describes what he did to Montoya—shot him in the face and twice in the gut. A jury could infer from defendant’s lyrics his identity as the shooter and his intent to shoot the victim in a specific manner."

Now, if that's how the defendant in fact shot the guy, yeah, that's pretty darn probative.  (Though somewhat diminished if these lyrics are just isolated snippets from several notebooks of rap lyrics, which seems to be the case here.)

And the Court of Appeal says that these lyrics "eerily describe" exactly what he did.

Really?

(1) "Put it in your face and melts in your mouth like an M&M."  In the real world, he first shot the guy in the face, true, but not in the mouth, so that "melts in your mouth" part seems exactly not to describe the crime.  And "put in in your face" seems to me like it's referring to putting the gun in the guy's face, not necessarily shooting him there (since he gets shot with the gun in his mouth).  So I'm not sure this "eerily describes" the crime more than, oh, a thousand other rap lyrics about putting a gun in someone's face.

(2)  "I shoot for fun just to watch niggas shake like they goin’ dumb."  But wait.  That's not what the the guy did.  He just walked up to the guy, someone said "Hey Joe," and shot him in the face.  Didn't hesitate.  Didn't make the guy shake.  Didn't intimidate the guy before shooting.  Just shot.

(3)  “Two to the gut, watch you shut your eyes slow.”  That describes shooting a guy in the gut and watching him slowly die -- a classic screenplay threat (and act).  But that's totally not what the guy did here.  He shot him in the face first, a shot that was -- according to the testimony at trial as well as the Court of Appeal -- “an immediately fatal injury".  So no watching someone slowly die at all.  

And as for even the out-of-context "two in the gut" line, the Court of Appeal says that's precisely what the defendant did.  But after shooting the guy in the face, he actually shot him once in the gut -- "near his belly button" -- and then (a) twice more (not once), (b) elsewhere.  "After Montoya fell to the ground, defendant stood over him and shot him three more times; near his belly button, in his left groin, and in his penis."  So that's once in the gut and twice in the groin, not "twice in the gut".  Since I don't know about you, but I don't call my groin and/or my penis my "gut".  And even if I did, that'd mean three in the gut, not two.