Thursday, November 14, 2019

Silbaugh v. Chao (9th Cir. - Nov. 14, 2019)

Now here's a neat little case.  Especially if you're (like me) a professor who teaches civil procedure.

It's a relation back case under Rule 15; in particular, against the United States.  You get relation back (for statute of limitations purposes) against the government under Rule 15(c) under if you've made a mistake in naming the correct party -- e.g., here, you named your supervisor as the defendant instead of the formal head of the relevant executive agency (here, the Secretary of Transportation) -- but then later correct that mistake and the U.S. knew within 90 days that you made that mistake because you delivered "process" on the Attorney General or relevant U.S. agency.

The question in this case is:  What does the Rule mean by "process?"

Truthfully, it's got a totally straightforward meaning.  By "process" we mean the summons and complaint.  The documents that you use to commence a lawsuit.

Which is precisely what the plaintiff here did.  She served a copy of the summons and complaint on both the U.S. Attorney as well as on the Attorney General.  End of story, right?

Not quite.

Because the copy of the summons here was not signed by the court clerk.  Which it normally has to be in order to constitute proper service; e.g., to require the defendant to respond to the complaint under penalty of default.

So does an unsigned copy of the summons (plus the complaint) count as "process?"

Under the normal service of process rules, the answer would clearly be "no."  It doesn't count as "process" -- or, more accurately, it doesn't count as valid process.  It wouldn't be sufficient to permit the court to exercise jurisdiction or to award a default judgment.

Which is why, intuitively, you might think that "process" is defined in the rule as a summons that's signed by the clerk plus a complete copy of the complaint.  And, if the rule was defined that way, the U.S. would be right, and there'd be no relation back here.

But you'll look at the FRCP in vain for such a definition.  It just uses the word process.  Repeatedly, to be sure.  But it doesn't define it.

Which leaves it open for Judge Watford to hold as he does here.  The U.S. was indeed served with "process," he says, because it definitely received a summons and the complaint.  Which means that the purpose of Rule 15 was satisfied; it knew full well that it had been served, albeit that a mistake had been made in the formal naming of the defendant.  Hence there's relation back.  Since Rule 15(c) does not say there has to be service of "valid" process to get relation back, the point of relation back is to ensure notice (which there was), and we strongly prefer adjudications on the merits rather than hypertechnical procedural dismissals.  So held.

All of which seems right to me.

I'll add one other point in this regard that Judge Watford's opinion doesn't mention.  Not only do I not see a formal definition of process as including a signed summons, but there are other provisions in the FRCP that suggest that the rules are fully capable of requiring process to be "valid" when they so require.  For example, in Rule B (governing attachment), paragraph (2)(a) says that a court may not order garnishment or attachment unless "the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4."  So if process wasn't served in this manner (e.g., the summons wasn't signed), it'd be invalid, because the rule says so.  Yet Rule 15(c) doesn't do the same thing.

In any event, I think that Judge Watford rightly interprets the rule here to be consistent with its obvious (and salutary) purpose.  We give relation back when there was notice.  Here, there was notice.  Yes, we're a bit nit-picky when the United States is concerned, and, yes, the United States has promulgated rules that are very much in favor of . . . surprise, surprise . . . the United States.  But the rule here just says process, and that means and summons and complaint, and that's indeed what the U.S. got.  That it wasn't signed isn't part of the rule.  Even though that's what you might ordinarily think "process" means as applied to other rules with slightly different purposes.

Fair enough.

Tuesday, November 12, 2019

Altera Corp. v. CIR (9th Cir. - Nov. 12, 2019)

Today's an unusual day indeed.

The Ninth Circuit publishes this today.  It's a dissent from the refusal to take a case en banc.  Nothing totally unusual about that, right?

Except it's a tax case.  Not the usual subject of an en banc call.  And not even a tax case that affects a huge number of "regular" people:  It's about a Ninth Circuit opinion last year that upheld a Tax Court ruling that related entities must share the cost of their employee stock compensation.  Yet that opinion sees a huge volume of amici and a spirited dissent for the refusal to hear the case en banc.  Not your usual degree of attention to a tax opinion.

The opinion is unusual is one other way as well:  the huge number of recusals.  How many?  Not one.  Not two.  Not three.

Ten different Ninth Circuit judges recuse themselves from the en banc call:  Judges McKeown, Wardlaw, Bybee, Bea, Watford, Owens, Friedland, Miller, Collins, and Lee.

So it's an opinion that may affect at least a nontrivial number of people in a particular socioeconomic group.  Including but not limited to Ninth Circuit judges.

People v. Chubbuck (Cal. Ct. App. - Nov. 12, 2019)

Defendant was convicted of unlawfully taking a motor vehicle, but it's not your usual stolen car case. Indeed, I'm not even sure what the defendant was trying to do.  He breaks into a storage yard at 4 a.m. and then starts driving -- inside the storage yard -- a vehicle that's typically used to move storage containers, and does so for 15 minutes or so.  The owner of the storage yard and the police then arrive and arrest him.

What was he trying to do?  Steal a storage container?  If so, he was remarkably bad at it, and didn't even seem to try.  Just joyride in the storage facility?  Weird.  And hardly worth the seven years in prison he received.

And not your usual name, either.  The defendant's first name is "Jhyy."  Last name:  Chubbuck.  The opinion even contains a footnote (the first one) about the defendant's name, which was apparently erroneously entered on the abstract of judgment.  Definitely a unique first name, and one I have not seen before.

Thursday, November 07, 2019

Board of Trustees v. Chambers (9th Cir. - Nov. 7, 2019)

The Ninth Circuit has only published a couple of opinions in all of November, but the opinion today is a memorable one, if only for its brevity.  The split panel opinion (a year ago) was 64 single-spaced pages, and waxed poetically about whether the voluntary cessation doctrine of mootness applied to cases in which the government lost a lawsuit, repealed the relevant statute, and refused to promise that it wouldn't reenact the thing.

But you'll be hard-pressed to find a shorter en banc opinion than the one issued today, which resolves the dispute (1) unanimously, and (2) in well under a dozen pages.  (Indeed, a full half of the opinion consists entirety of the caption and list of lawyers and amici.)  The en banc court says, basically, that other circuits have found that mootness applies in situations like these, so we're going to join them. Notwithstanding the contrary view of the majority in the panel decision we're reversing.

So short.  And (relatively) speedy.  Though I'll note that it still took the en banc court nearly five months two write its five-and-a-half pages of text.

Tuesday, November 05, 2019

People v. Martin (Cal. Ct. App. - Nov. 5, 2019)

There's nothing published by the Ninth Circuit or the California appellate courts today.  So I took a brief look at this opinion.  If only because the defendant's name (like mine) was "Martin."

And it's a somewhat weird one.  At least for a relatively unsophisticated reader like myself.  The defendant is a 22-year old who stole a car in Florida, drove it to California, and then led police on a high-speed chase before ditching the vehicle and being caught.  He's got a bit of a criminal history in Florida, but it seems like he's not totally irredeemable.  And does some fairly strange things when he's caught by the police.  (For example, from the opinion:  "Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, 'Please place me in handcuffs before your partners get here.' He was breathing heavily and asked if he could sit in the patrol car."  Not exactly how most police chases end.)

But okay.  He's convicted of felony evading the police, and it's time for him to be sentenced.  The court thinks that the chase wasn't all that long (two minutes), and Mr. Martin's criminal history isn't all that egregious, so it says that it's going to sentence Mr. Martin to probation.  But the court also says it's a little bit concerned for Mr. Martin's welfare since he doesn't have any family or friends in California (having just gotten here in his stolen car), so orders a recess for Mr. Martin to talk with his counsel to figure out what the most beneficial probation arrangements would be.  Maybe transfer the case (or probation) to Florida?  Something like that.

Here's the part I don't totally understand.  After the recess, Mr. Martin and his counsel come back, and they say that Mr. Martin would just rather be sentenced to prison than receive probation.  The trial court says (essentially), "Really?"  But, yeah, that's what Mr. Martin wants.  To the trial court sentences him to the low end of the imprisonment range.  Which is still 16 months in prison.

Why would someone want to be incarcerated rather than go on probation?  Seems like a no-brainer that the former is worse than the latter.  Strange, eh?

Though I can think of two possible explanations for Mr. Martin's choice.

First, he might think that he'll violate probation anyway.  In which case, yeah, get it over with.

Second, he might think (perhaps combined with the prior explanation) that given his time already served, the ultimate prison sentence won't matter much anyway.  The opinion mentions as an aside that Martin got credit for 256 days of prior jail time.  With a sentence of 16 months, with time off for good behavior, maybe those 256 days of credits means he's not looking at much additional time in actual prison anyway.  Better that, one might perhaps think, than an extended period of probation.

So an interesting choice.  By an interesting guy, Mr. Martin.

Monday, November 04, 2019

U.S. v. Norris (9th Cir. - Nov. 4, 2019)

This seems right to me.  As well as pretty darn good police work.

Someone's sharing child pornography.  The police look up the IP address and discover that it's coming from a router in Apartment 242, and the police obtain a search warrant for that address.

Except that when they execute the warrant, they discover that there's not child porn on the computer there.  So where's the child porn coming from?  They download the access data from the router in that apartment and discover that someone else's computer has been access this router -- notwithstanding the fact that the router is password-protected.  Surprise!

Which is a pretty good move by the child pornographer at issue.  You're worried that the police might figure out it's you if you use peer-to-peer sharing over your own internet connection.  So you use the connection of someone else.  Someone innocent to cover your tracks.

So the police are stymied, but not for long.  They subsequently start using an open-source software program that's aptly named "Moocherhunter" to find out who's been using the router in Apartment 242.  They use a directional antenna and find out that the signal of the computer that's accessing the router in Apartment 242 is much stronger when it's pointed at . . . Apartment 243.

So the police then obtain a search warrant for Apartment 243.  And, lo and behold, they find two computers there that have indeed accessed the router in Apartment 242 and that contain kiddie porn.

Hence the arrest and conviction.

The defendant appeals, saying that the "search" using the Moocherhunter software violated the Fourth Amendment.  But the Ninth Circuit disagrees.  Which seems right.  If you're pumping out electronic transmissions from your computer to pimp your neighbor's password-protected internet connection without his consent, it's not impermissible for the police (or anyone else) to investigate where those transmissions are coming from.  You shouldn't be grabbing their internet in the first place, and your transmissions are in any event public and it's okay for someone else (including but not limited to the police) to point software in your direction to figure out where those transmissions are coming from.

Makes sense to me.  As well as to Judge Rawlinson and the rest of the panel.

AAAJ-LA v. Padilla (Cal. Ct. App. - Nov. 4, 2019)

There's a fight about the degree to which Section 14201 of the Elections Code requires the California Secretary of State to post facsimile ballot materials in languages other than English.  The Court of Appeal resolves that fight.  A resolution in which both sides in a little bit.

What was most interesting to me was to see the list of what languages we're fighting about; in particular, what languages have "minority language groups" that constitute three percent or more of a precinct's population.

Some of the candidates are obvious:  Spanish, Chinese, Mandarin, Korean, Vietnamese, etc.  Some are much less so.

Which of the following language(s) do you think do not have a precinct in California in which three percent or more of the population primarily speaks the relevant language:

(A) Tagalog;
(B)  Formosan;
(C)  Ilocano;
(D)  Khmer.

Answer:  We've got precincts for all of these.  To be honest, I had never even heard of (C), and had to look it up.  More proof that you can learn something new every day.

Thursday, October 31, 2019

O'Grady v. Merchant Exchange Productions (Cal. Ct. App. - Oct. 31, 2019)

If you're a company and you add a mandatory "service charge" to the bill, does that constitute a "gratuity" (i.e., tip) that has to be shared only with the relevant service people?

The Court of Appeal says:  "Maybe."

When I first thought about it, that answer didn't seem particularly compelling.  But the more I thought about it, the more it seems to me that the Court of Appeal's answer is correct.

I could imagine lots of "service charges" that fairly clearly aren't gratuities (at least to me).  Even if they're invoked in the traditional food and beverage industries.  For example, say a business added a $3.00 "service charge" for room service, and had a separate category on the bill for a tip.  To me, that charge is fairly clearly not a gratuity.

By contrast, imagine that the hotel adds an 18% "service charge" on to room service bills, and does not include a line for tips.  Well, to me, I'd almost certainly think that's going to the server.  That's a gratuity to me.

I can imagine a million different types of variations.  Here, it's a 21% service charge imposed by a banquet facility.  Well, it's close to 15 and 18 percent, which is the typical "tip" amount.  But it's not exact.  And it's on banquet stuff, which is not a totally mainstream tipping area.  So I could see someone going either way.

Which is what the Court of Appeal is basically saying.  It depends on the fact.  There's no categorical rule.  Sometimes "service charges" are tips.  Sometimes they're not.  Depends on a ton of things.

Not a bright-line rule, so it'll have some transaction costs and uncertainty.  But still the right rule.

Tuesday, October 29, 2019

Hodges v. County of Placer (Cal. Ct. App. - Oct. 29, 2019)

I get it, Court of Appeal.  I really do.  You're saying that just because the County put the money that belonged to the plaintiff into a "trust" account doesn't mean that there was actually a "trust" (e.g., fiduciary) relationship between the parties.  Just like -- as you say -- "a panda is not a true bear."

But doesn't the partial injustice of the present case nonetheless bother you?  At least just a little?

The plaintiff owes some property taxes on his residential property, and (for whatever reason) doesn't pay them.  Fair enough.  The County of Placer will -- and does -- conduct a tax sale, and sell the thing out from under you.  That's the way we enforce your obligation to pay taxes.  Doesn't bother me in the slightest.

But the value of the property is way greater than the value of the taxes.  Which, again, doesn't bother me.  But it does mean that there's a ton of excess money.  The County sells the property for $530,000.  The overdue taxes, including all penalties etc., consists of less than a tenth of that:  approximately $37,000.  Then the County inexplicably keeps another $45,300 that, as the Court of Appeal explains, "went to other charges and expenses which the County did not explain."

And, in the end, after keeping the money for nearly two full years, the County gives the plaintiff the balance of what it thinks it owes him:  $437,096.16.  But doesn't pay a penny of interest on the nearly half a million dollars of plaintiff's money that the County has held on his behalf for the 18+ months in the meantime.  (Parenthetically, the Court of Appeal doesn't mention this, but on the other side, if you are even a single day late in paying your property taxes, the County instantly charges you interest of 10% on the entire balance.  Sounds fair and equitable, right?)

The County held that half million dollars for a ton of time.  It got value for that.  It earned interest, didn't have to float bonds, etc.  It demonstrably got a benefit.  And, reciprocally, the plaintiff incurred financial harm in not getting that money earlier.  Time value of money and all.  A fairly important (and basic) concept.

Why shouldn't the County be forced to pay at least a little bit of interest?  Why, during the time it kept this money, wasn't the County at least a little bit in a fiduciary relationship with the plaintiff?

It's bad enough to take over $45,000 of the plaintiff's money for "charges and expenses which the County did not explain."  It adds insult (and injury) to injury to pile on by not paying even a single penny of interest on the nearly half million dollars of someone else's money you've kept (to your demonstrable benefit) for nearly two years.

Yes, sometimes a "trust" account isn't really indicative of having a "trust"-like relationship with another party.  But sometimes that "trust" account, alongside the facts and equities of the underlying relationship, does impose at least some obligation of trust and fidelity.  Or at least should.

And not paying even a single dollar of interest here would, to me, seem to qualify as an inequitable and unjust result.  For which we could -- but the Court of Appeal does not -- provide a remedy.

My take, anyway.  FWIW.

Monday, October 28, 2019

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.

Wednesday, October 23, 2019

State of California v. Little Sisters of the Poor (9th Cir. - Oct. 22, 2019)

No published opinions from either the Ninth Circuit or the California appellate courts (thus far) today.  So I'll go ahead and mention another case from yesterday.  This one.

You know it's a big ticket appeal when the caption page and list of counsel and amici spans the first thirteen (single-spaced) pages of the opinion.  And big ticket it is.  As the opening paragraph of the majority opinion accurately states the issue:

"The Affordable Care Act (ACA) and the regulations implementing it require group health plans to cover contraceptive care without cost sharing. Federal agencies issued final rules exempting employers with religious and moral objections from this requirement. The district court issued a preliminary injunction barring the enforcement of the rules in several states. We have jurisdiction under 28 U.S.C. § 1292, and we affirm."

Perhaps that's not a surprising result.  Particularly -- according to some -- from the "liberal" Ninth Circuit.

But, in that regard, let me point out that the author of the majority opinion is . . . Judge Wallace.  A jurist who's about as far from a "snowflake liberal" as you can get.

So a long opinion upholding part of the ACA and striking down an attempt to roll it back.  A high-profile opinion with a ton of interest.

Tuesday, October 22, 2019

People v. R.C. (Cal. Ct. App. - Oct. 22, 2019)

Justice Yegan begins this opinion by saying:

"An attempt to commit armed robbery is extremely dangerous. Appellant is lucky he was not shot to death by the store clerk who resisted his attempt to commit this offense. He would not have been the first attempted robbery culprit to meet this fate."

I'll add that such would have been a particularly tragic result because the appellant (1) is a 14-year old child; (2) who attempted to rob a 7-11 with a BB gun.  Fortunately, all that happened was that appellant was arrested and placed on probation.

It's also a neat little appeal because it's one that's basically based on a law review article:  Northrop & Rosen's piece entitled “Kids Will be Kids: Time for a ‘Reasonable Child’ Standard for the Proof of Objective Mens Rea Elements.” (69 Me. L.Rev. 109 (2017)).  Appellant's counsel takes that academic argument and turns it into a concrete legal one.

But the Court of Appeal says that you can lead an appellate tribunal to water, but you can't make it drink.  The law review article says:  “Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability.” The Court of Appeal responds:  "No, thanks."

So there you have it.

People v. Allen (Cal. Ct. App. - Oct. 22, 2019)

Leona Allen was convicted of welfare fraud in 1993.

Leona Allen was again convicted of welfare fraud in 1997.

Leona Allen was again convicted of welfare fraud in 2000.

Plus felony perjury in 2000.

Her son in serving life in prison (presumably for murder).

She wants her convictions expunged.

She's currently receiving 100% disability benefits from the State.

The trial court is not sympathetic to her plight.  The Court of Appeal gives her only minimal relief.

Thursday, October 17, 2019

In re Marriage of Ahadzadah (Cal. Ct. App. - Oct. 15, 2019)

It's sometimes simultaneously easy and hard to resolve appeals by pro se litigants.  

It's hard because their briefs are occasionally rambling, unclear, and (in places) incoherent, so it's difficult to figure out what exactly they're saying.  And you want -- and are required -- to try your best to ascertain and then analyze the legal point they (obtusely and imperfectly) make.

On the other hand, it's easy for precisely the same reason.  Because when you can't understand a brief, even after trying, you can simply affirm.  As Justice Butz does here.  She resolves the present appeal in an opinion that basically consists of only a single double-spaced page, saying:

"Appellant filed an 11-page opening brief that is difficult to understand and a short supplemental opening brief that is similarly flawed. Unfamiliar with the principles of law governing the trial court’s ruling and the limited scope of appellate review, appellant does little more in her briefs than express frustration with the trial court and the judicial process. . . . Appellants must “present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass.” [Citation] Appellant’s opening brief, and supplemental opening brief, both fail on all these grounds. Under the circumstances, appellant has forfeited her claims of error. The judgment is affirmed."

Fair enough. 

I mention this opinion not because it establishes great law.  It definitely does not.  (Which is why it's unpublished.)  I mention it, in part, merely as an example of a type of case (and briefing) that's far from unusual in the Court of Appeal.

But, to the honest, the primary reason I mention this opinion is because I wanted to apologize.  Not for anything huge, but to apologize nonetheless.

But I'll begin with a long digression.  That's relevant in ways a reader may or may not immediately perceive, but which I'll explain at the end regardless.

My story begins way back in 1971.  That's the year still-popular President named Richard Nixon appointed a fresh-faced former Dean of Agriculture at Purdue University to be the new Secretary of Agriculture.  The name of that new cabinet member?  Earl Butz.

Now, the Secretary of Agriculture does not typically get much press.  But this guy did some pretty revolutionary stuff, and was also fairly controversial.  He massively favored corporate farms over smaller, traditional family farms.  And in 1972, the Soviet Union had a disastrous harvests, and we gave our Cold War enemy -- under Earl Butz's leadership -- massive grain sales.  Stuff like that made the news.  So you heard the guy's name on things like the evening news or on the radio, which was the media at the time, much more than you might otherwise think for someone in his position.

And then there was his personality.  Which was, let's say, unusual.  The guy could not keep his mouth shut.  And had zero filter.  I mean:  Zero.  To say that he was "inappropriate" at times is a massive understatement.  To take but one example:  at a World Food Conference in 1974, Earl Butz publicly mocked Pope Paul VI's opposition to birth control.  By -- and it still stuns me that he thought this would be just fine -- putting on a mock Italian accent and saying:  "He no playa da game, he no maka da rules."

Yeah.  That kind of guy.  In short, the kind of guy who makes the news.  A lot.

Now, in 1974, I'm an eight-year old kid living in Virginia, alongside my 7-year old brother, my 4-year old brother, and my 3-year old sister.  For a group like that -- or at least for my group of immature kids in particular -- the pantheon of humor in the universe consisted of jokes about farts and the like. So when we'd be driving with our parents in the car and a name like "Earl Butz" was read over the radio, you can imagine the resulting smirks and giggles and childlike laughter in the back seats over the mere mention of the name.  "Butz"  Hilarious!  And, to a degree, even slightly scandalous:  they are saying "Butts" on the radio.  Nothing could possibly be funnier.  Or so our pea-like brains thought at the time.

And I vividly remember those years, and Earl Butz's role in them, to this day. (Plus, his name was "Earl," and as a kid in Virginia, every "Earl" I knew at the time could accurately be characterized as a backward, Confederate-flag-waving, cousin-marrying redneck.)

And Earl Butz made the news a lot.  So lots of giggles for me and my siblings.  I remember even as a kid his ultimate downfall and when he was forced to resign.  Though, given my youth, I didn't at the time knew precisely what it was he said that ultimately forced him out.

(Parenthetically, neither did a lot of other people, including many adults.  The newspapers and radio reported that Butz had said something "patently offensive," and that it involved something about "the Blacks," but most of the media basically left it at that.  They didn't report what exactly he had said that made him resign, saying only that it was profane and racist.  Or they shorthanded it and filled in the actual words he said with other words that were close synonyms.  Several newspapers said they were not reporting the actual words he said but that readers could stop by the newspaper's main office if they wanted to read the actual quote.  In my current town, for example, the San Diego Evening Tribune did just that -- and over 3,000 readers in fact make the trek!

When you read what he actually said, you totally understand why he had to resign.  And, to be honest, it's stunning that anyone, anywhere, at any time would say (or even think) what he said; much less that this would come from someone in the Cabinet of the United States.  So skip to the next paragraph if you don't want to know the exact words of what he said.  Because here they come.  The utterly racist thing he said was . . . 'I'll tell you what the coloreds want.  It's three things: tight pussy, loose shoes, and a warm place to shit.'  Yeah.  Amazing.  And he said this right after he told a dirty joke about a dog having sex with a skunk.  Saying all this on a flight after the 1976 Republican Convention to a group that included Sonny Bono, Pat Boone, and John Dean.  Yeah, that was the mid-70s.  In a nutshell.)

Anyway, the point is, (1) the name "Earl Butz" was repeatedly in the news, and (2) it was a name that sparked much attention when it was uttered during my formative preteen years in Virginia.

Fast forward to 2019.  I've said some occasional nice things about Justice M. Kathleen Butz and her opinions in the past. And earlier this week, I discussed yet another one of her opinions.  But in the midst of that post, I accidentally called her "he".

Sorry about that.  Not a typo.  Just a total temporary brainfart.  One of my readers sent me an e-mail about it, and I (of course) went back and changed the post.  Totally my bad.

But it also made me wonder:  Why'd I make that mistake?  Sometimes things I post are just typos.  Sometimes they're things I just pound out with (in retrospect) insufficient thought.  But one this one, it was a mistake that was a weird one to make.  Because I know who Justice Butz is. And on those rare occasions when I'm talking about a particular justice who I don't know, I routinely look them up.

So why'd I make that mistake.

But then it came to me.  Earl Butz.  I honestly think that my subconscious was the one typing that sentence.  And that, in the inner recesses of my brain, when I was thinking about Justice Butz, the picture that subconsciously came to my mind was not the actual Justice Butz, but rather the Earl Butz of my formative youth.  The latter of whom was definitely a guy.

So the post reads the right way now.  And I'm sure it won't be the last one I ever make; or even the last one about gender.

But sorry about that.  Trust me:  I've thought about it a lot.  As you can probably tell.  And will try my best not to make the same mistake again.

Or at least not make it much.

Starview Property v. Lee (Cal. Ct. App. - Oct. 17, 2019)

It's a lawsuit between neighbors.  So you just know it's going to be overlitigated compared to the economic value of the dispute in question.

Perhaps even more so when, as here, the next door neighbors live in Brentwood.

Hence why Justice Bigelow begins the opinion by saying "In this acrimonious dispute between neighbors . . . ."  Yep.  I would expect nothing else.

The lawsuit also has a meaningful holding.  So it's not just important to the residents of Glenmere Way.

A long time ago, back in 1958, one neighbor gives an easement to another neighbor to use his driveway to access the property.  They agree that if the parties need to fill out any documents to confirm this easement or make it run with the land, everyone will sign them.

Fast forward to 2016.  Someone new buys one of the properties, and wants to remodel it.  He seeks permits from the City to do so.  The City says the owner's get the other neighbor's signature as well since the parking spaces for the property will be accessed via the easement.

But the other neighbor -- probably upset at the new owner's remodel -- decides to hold up the new owner.  He refuses to sign unless the new neighbor gives him indemnity, construction, releases, five thousand dollars, etc.  Nice.

The new neighbor is bummed/upset.  He ends up installing a car lift system on his new home, thus avoiding the need to get the neighbor's signature.

Then he sues the neighbor.

There's a variety of causes of action alleged in the original complaint.  And the thing gets litigated in the manner you'd think.  Massively aggressively.

Then, after over a year of litigation, likely somewhat close to trial, the plaintiff (and, particularly, their lawyer) decide to "clean things up" in the pleadings as well as to include new causes of action that they hadn't thought of (or decided to not yet file) when they filed their original complaint.

That's a somewhat common practice.  Sure, they probably should have filed the new causes of action in the first place.  But, for whatever reason, they didn't.  So they want to file them now.

But here's the problem:  Defendants use the amended complaint as an opportunity to file an anti-SLAPP motion.  Which they do 55 days after the amended complaint is filed.  Thus leading to all the advantages of such a motion:  hearing on the merits, potential fee exposure, automatic appeal and stay even if you lose the motion, etc.

Ultimately resulting in today's published opinion by the Court of Appeal.

The trial court denied the motion as untimely, reasoning that since the new causes of action all arose from the same set of facts alleged in the original complaint, the defendants should have filed the anti-SLAPP motion then (or within 60 days thereof), not a year-plus thereafter.

But the Court of Appeal reverses.

You can see the reasoning behind the trial court's decision.  Let's say you protest at a shopping mall, and the store owners sue you (reasonably or not) for trespass, which caused them damages since they had to shut down the store and lost $5000 in business.  You decide not too file an anti-SLAPP motion to get out of the suit.  Then, before trial, the store's lawyer realizes that plaintiff's conduct probably also counts as wrongful interference with prospective economic advantage, so plaintiff amends its complaint to include that new cause of action -- one that arises on the exact same set of facts that have already been asserted.  And, boom, a year in, suddenly there's an anti-SLAPP motion.  On its face, that seems silly.  It's the same lawsuit.  Just a new additional legal theory.  If you wanted to claim that your conduct was constitutionally protected, and hence that you're being SLAPPed, you should have done so when you were first sued.  A year later is too late.

Makes sense.

But so does the Court of Appeal's rejection of that theory.  Not surprisingly, the Court of Appeal relies a lot on precedent -- or at least upon its particular reading of that (not-perfectly-clear) set of authorities.  But it also relies on its own version of common sense.  Because let's say a plaintiff initially sues you for X set of facts, with Y cause of action, and that cause of action arises out of conduct protected by the anti-SLAPP statute, but you think:  "Well, shucks, I could file an anti-SLAPP motion, but you know what, Y cause of action really is true, so I'd lose."  So you don't file the motion.  But then, a year later, on the same set of facts, plaintiffs add absurd causes of action like Z and Q and EEE.  You can see why you'd now want to file your anti-SLAPP motion.  To get out of those new meritless causes of action.  New (meritless) causes of action that you couldn't have gotten out of at the beginning since, back then, they didn't even exist (i.e., weren't asserted).

Hence the Court of Appeal's rule.  When the amended complaint adds new causes of action, you can file an anti-SLAPP motion to strike those new causes of action (but not the old ones).  Even if a year has passed in the litigation.  And even if the new causes of action arise out of the exact same set of facts previously asserted in the original complaint.

So the neighbors get to go back to the trial court for Round II.  In which the trial court will now resolve the merits of the defendant's new anti-SLAPP motion.

Undoubtedly ultimately leading to Round III, when the losing party on that motion (which I suspect will be the defendants) appeals.  Likely followed thereafter by Round IV, in which the Court of Appeal decides the merits of the appeal and then remands the case for trial on the original causes of action plus whatever remains of the new causes of action  Finally resulting in a trial on the merits in Round V.

Sometime around 2023.

What a joy.

Tuesday, October 15, 2019

ARCO v. Central Valley Regional Water Quality Control Board (Cal. Ct. App. - Oct. 15, 2019)

Justice Butz begins this published-today opinion by saying:  "The storied history of mining in California has adverse consequences, among them the discharge of toxic residues from mining sites."  And she's not kidding.

We're litigating in this case who's responsible for the adverse environmental consequences of a mine -- at one point, the largest copper mine in California -- that was opened over a century ago, in 1909.  A long time ago.

And those consequences are severe.  "The mine has 13 miles of flooded underground workings, comprising a total void volume estimated at 543 million gallons. The mine openings and tailings on the site discharge soluble copper and acidic mine drainage into surface waters, at times eliminating aquatic life 10 miles downstream from the mine. In 1987, the Water Board installed a concrete plug at a mine opening that was a primary source of mine leakage, which has eliminated most of the direct discharge but is causing a buildup of contaminated water inside the mine that is leaching into groundwater, and the mining waste on the surface also continues to be a source of water pollution."


We don't do as nearly much of this type of mining these days.  Too many regulations (or, if you take a different view, just the right amount, or even too few.)  The downside is that we have less copper, and rely on other countries.  The upside is that you have less sulfuric and other acids in your water, and don't have 13 miles of flooded, empty mine shafts.

A classic policy choice.

Thursday, October 10, 2019

People v. Financial Casualty & Surety Co. (Sup. Ct. App. Div. - Oct. 10, 2019)

Judge Ricciardulli gets an A+ for this opinion published today.

If one of my students wrote this in response to a final examination hypothetical, I'd find it to be absolutely perfect.  Exactly what I would be looking for.

First, it's the lock solid right answer.  When a statute says that a judge must enter an order "within 90 days after the date upon which it may first be entered" -- "it" referring a prior court order that itself had to be entered within 180 days of a specified event -- then the 90 days begins running on the next court day that was available for the prior order to be.  Which in turn means that if, as here, the prior 180-day period expired on a Saturday, a date the court was closed, then the 90-day period starts from the following Monday (assuming that Monday isn't a holiday, in which case on Tuesday).

Second, Judge Ricciardulli's opinion sets forth every single one of the relevant statutes and principles that establish that this is the right result; e.g., Section 12 of the CCP, which extends dates that end on holidays; Sections 134 and 135 that establish that courts are closed on holidays and that Saturday is a court holiday, etc.  It shows perfectly why this the right answer.

And, finally, Judge Ricciardulli does so extremely concisely and yet with the perfect amount of explanation.  No flourish.  But definite articulation of the reasons why the result is what it is.  You can do that in six (double-spaced) pages of text.  And Judge Ricciardulli does.

I wish that all my students wrote so cleanly and concisely (and accurately).  Ditto for lawyers.

So great job by the Appellate Division, particularly Judge Ricciardulli.

I was also going to say that I was impressed, albeit for very different reasons, with the counsel for the losing party (Bail Hotline Bail Bonds), John Rorabaugh.  Not because Mr. Rorabaugh won a difficult case (he lost) or wrote an outstanding brief (since I've never read it, so I don't know one way or the other).  Rather, I was impressed that Mr. Rorabaugh could apparently effectively prosecute an appeal over a forfeited bail bond in the whopping amount of . . . $5,000.  There's only $5000 at stake.  How can a lawyer write a brief in both the trial court and in the appellate division, plus oral argument, plus all the other stuff, in a manner that makes it cost effective for the client to prosecute an appeal over such an incredibly small amount (in the scheme of things)?!  For most lawyers, the cost of the briefs alone would easily be over $5,000.  So why throw more good money down the drain (even if you're right) when the bad money you might possibly recover -- and, remember, you're not even assured of prevailing on appeal anyway -- is less than the money you're spending to get it back?

If Mr. Rorabaugh's found a way to prosecute trial and appellate proceedings on a given matter for a total costs and attorney's fees of, say, $2,000, thereby arguably making the dispute (and appeal) worth it, more power to him.  Personally, no way I could write such briefs for only $2,000.  More power to him if Mr. Rorabaugh's somehow able to pound out appellate briefs (that result in published opinions, no less) for only a grand or two.  Well done, I guess.

 (It's probably more accurate to say that I, and others, could write briefs in $5,000 appeals for a grand or two, but we pretty much uniformly refuse to do so.  At least when we're looking to make money.  There are plenty of appellate briefs that I've written for the whopping charge of $0.  But those aren't in cases I'm looking to make money or recoup (in any material way) the value of my time; they're pro bono and other matters where I'm looking to correct injustice or serve a social good.  The case at issue here doesn't seem like one someone would take on pro bono, as I doubt anyone other than the parties really cares whether the $5,000 bond here gets forfeited or goes back to Bail Hotline Bail Bonds.  So, yeah,  Mr. Rorabaugh could easily do the case for a reasonable and efficient fee to the client -- $0 -- but I bet that's not what actually went down.)

Wednesday, October 09, 2019

People v. Winn (Cal. Ct. App. - Oct. 9, 2019)

At first glance, I thought this opinion highlighted yet another danger of being a landlord:  the risk you're going to get stabbed an killed by your tenant.  After all, the first sentence of the opinion reads:

"A jury found defendant Alexander Winn guilty of first degree murder for the stabbing death of David Derrington after Derrington had Winn and his wife evicted from their home."

Killing your landlord seems an excessive reaction to being evicted.  To say the least.

But once I read more, I discovered that this wasn't just any old landlord that the defendant killed.  The landlord was also his wife's ex-husband.  (The opinion is a little confusing in places because it talks about the defendant having killed "Darrington" -- meaning David Darrington -- even though the defendant's wife was also a Darrington:  Traci Darrington.)

You can understand why you might stab and kill your wife's ex-husband for reasons beyond those that might arise from being evicted.

So maybe the lesson here is:  Be careful if you're trying to evict your ex-wife and her current husband has -- as here -- served five prior prison terms.

Yeah.  That sounds about right.

Tuesday, October 08, 2019

Brown v. USA Taekwondo (Cal. Ct. App. - Oct. 8, 2019)

Today's decision by the Court of Appeal will massively increase the exposure of National Governing bodies of the USOC (U.S. Olympic Committee) in various sports.

I'm not saying that's bad or good from a normative perspective.  Just that it's the case.

There's USA Swimming for swimming, USA Water Polo for water polo, etc.  National governing bodies that (typically) govern the sport and that establish procedures for how athletes in that sport get selected (nor not selected) to participate in the Olympics as part of the U.S. team.  But more broadly, these national governing bodies typically entire control the club-level in that sport.  If your kid is on a water polo team, for example, he's almost certainly a member of USA Water Polo, because you've got to be (essentially) to participate.

Today's opinion holds that these governing bodies have "special duties" to their members so that when a coach molests a kid, the governing body itself may be liable.  That's a huge increase in liability for the organization.  You'll undoubtedly see it reflected on the bottom line; the cost of membership in these organizations -- a practical necessity for participating the sport -- will assuredly increase.

Now, arguably, so will protections against getting molested, or (potentially) otherwise abused by your coach.  At least that's the hope.

Though I wonder how effective such screening mechanisms etc. would (will) be.  Certainly they'll be at least a TINY bit effective; screening out obvious sexual offenders, heightening concern by parents and participants and increasing awareness of the subject matter, etc.

It's just worth remembering that very few things in life are free.  Including but not limited to here.

Postscript - To nonetheless end on a happy thought, and as a reminder:  Love is always free.  So spread the wealth.

Monday, October 07, 2019

Flynt v. Shimazu (9th Cir. Oct. 7, 2019)

Larry Flynt:  Dead or alive?

Alive.  And litigating this case.  Which a split opinion of the Ninth Circuit revives after being dismissed by the district court on statute of limitations grounds.

Apparently Mr. Flynt likes to purchase "card rooms" -- poker places -- and California law makes it difficult to do so in California if you also own out-of-state casinos and the like.  Mr. Flynt is suing, claiming that's unconstitutional.

I think of Larry Flynt as an old-style pornographer from a bygone era.  I didn't previously know about his shift into (or back into) gambling.

Vices may change over time.  But there's always vice.  And people willing to make money off it.

Thursday, October 03, 2019

People v. Vital (Cal. Ct. App. - Oct. 3, 2019)

I get where Justice Dhanidina is coming from.  I really do.  The defendant committed a disgusting act.  He convinced a mother to engage in oral sex with her three year old son.  To say that I'm totally appalled by that is the understatement of the century.  I'd absurdly evil.  Made only worse once you read (as you learn in Justice Dhanidina's dissent) that in one of the videos of the crime, "the child begged his mother, 'Don’t touch it, don’t touch it! Don’t! Don’t touch it,' and told her 'that’s enough. Mommy, that’s enough.' [and] can be heard whimpering."  O.  M.  F.  G.

Everyone agrees that this is a huge crime.  Everyone also agrees that to be guilty of aiding and abetting this offense (oral copulation with a child 10 years old or younger), the perpetrator needs to be over 18 years old.  But the trial court instructed the jury that only the defendant needs to be over 18.  Wrong.  It's the direct perpetrator who needs to be over 18.  In this case, the mother.  So we all agree the conviction can't stand.

But what gets Justice Dhanidina's goat is the fact that the majority enters a judgement of acquittal on these counts.  Even though, to be honest, I'm fairly confident that the mother here was, indeed, over the age of 18.  If the prosecution had known that it needed to prove that the mother was over 18, I'd bet dollars to doughnuts they could easily do so.  So, if a retrial was permitted, they'd almost certainly be able to establish what's required.

But, for better or not, that's not the way things work.  You've got to introduce enough evidence at the first trial to convict.  You don't get a second shot.  That's the whole Double Jeopardy thing.  So if you make a mistake, or forget to introduce evidence, that's on you.  The defendant gets acquitted.  Even if we're pretty much (or entirely) certain, based upon facts outside the trial, that the guy's in fact guilty (e.g., that the mother here is over 18).

That's not a pretty result.  Either in the usual case or here.  And Justice Dhanidina doesn't particularly like that outcome.  (Nor do I.)

But it's the law.  Reasonably so.

To avoid that untoward result, Justice Dhanidina says that while the instructions were wrong -- hence the conviction must be reversed -- but there was sufficient evidence of the mother's age.  She had at least one child, was described by witnesses as an "older" woman who was an "adult," and told the defendant that "18" was the minimum age of anyone she'd have sexual relations with.

I get it.

But the thing is, while I'm looking at the exact same evidence as Justice Dhanidina, and on that basis, am fairly confident that mother is, in fact, over 18, I couldn't say that beyond a reasonable doubt.  We have a video of the incident, but 21 looks a lot like 18 which looks a lot like 17.  Maybe the mother is 17 and maybe she's described as an "older" adult in comparison to the three year old.  We just can't be totally sure.

And that's what's required.  If this was the only evidence adduced at trial -- say, at a retrial -- and the prosecution didn't introduce the mother's driver's license, birth certificate, express testimony as to her age, etc., I'd have zero doubt that it was insufficient.  Even though I'd think, as I do here, that she's indeed probably 18 or more.

You gotta follow the rules.  Even though I'm not happy -- at all -- with the result, I'd be compelled to do the same thing as the majority.  The prosecution thought it had to prove X, but it actually had to prove Y, and even though it probably could have established Y with ease, it didn't do so beyond a reasonable doubt.  Which means the evidence is insufficient and the defendant entitled to an acquittal.

Even for something as disgusting as this.

P.S. - The mother got a long sentence in prison as well.  Just so you know.

Wednesday, October 02, 2019

People v. Tejeda (Cal. Ct. App. - Oct. 2, 2019)

"I'll confess to the murder, but only if you give me a burger, fries, burrito and a soda."  This, by the way, was better (or at least more favorable to the prosecution) than the defendant's previous offer, which was to confess to various unsolved crimes in return for "a segregated cell with a television, $200 in his inmate trust account, a double bacon cheeseburger, strawberry milkshake, and chili pork burrito, stamped envelopes, legal pads, pencils, media contacts, and an exclusive interview."

What's the deal with the "media contacts" part of that earlier request?  Glad you asked.  You see, Mr. Tejada insists that he's the victim of a horrible mind control experiment.  And it wants the world to know about it.

Indeed, they finally get him to confess by having him write down his confession as part of a "press release."  So no soda.  Mr. Tejada wrote: "It must be understood that I am 100% the subject of a United States government mind control experiment project that is on-going." Which is in turn why he committed the murder.  As Justice Dato explains: "'Suggestional thoughts' were inserted into his brain, hypnotizing him and causing him to pull the trigger."

And don't think this was an isolated, rogue program.  Not at all.  Who's fault was it?  I think you know.


According to Mr. Tejada:  "President Barack Obama was "fully aware" of the project."  And all that Mr. Tejeda wanted was for "Obama to admit to his face, 'Ay bro, you're a project.'"

Seems a reasonable request.  If true.

Mr. Tejada gets declared incompetent several times, but ultimately is declared competent.  So goes to trial.  At which point, against his lawyer's advice (needless to say), he testified that (1) yeah, he was the one who committed the robberies and murder, (2) but that's only because his body had been controlled by "the project,"; and (3) "with the money he stole, he thought he might buy some cigarettes and catch a plane to Langley to 'get to the bottom of this mind control project.'"

Didn't quite work out that way, of course.  He was convicted.  But, perhaps not surprisingly, the Court of Appeal holds that the trial court should have conducted another competency hearing.  Mr. Tejada can be retried if he's currently competent.  But good luck with that.

Tuesday, October 01, 2019

O.G. v. Superior Court (Cal. Ct. App. - Sept. 30, 2019)

I defy you to find a Court of Appeal opinion that -- as here -- disagrees with the unanimous view of multiple other panels in the Court of Appeal, in a high-profile dispute, in an opinion that itself is only six (double-spaced) pages long.

Wow.  That's short.

Not that Justice Yegan needs to do more.  He doesn't.  There are dissents in those other Court of Appeal decisions.  And he things those dissents are right, for the reasons they express.  It doesn't take a huge number of pages to say so.  No need to gild the lily.

Plus, there's zero doubt that the California Supreme Court is going to take up this case.  Justice Yegan strikes down Senate Bill 1391 (which bars prosecutors from asking to try minors as adults in various criminal cases) as fatally inconsistent with Proposition 57 (which allows minor to be tried as adults in only limited settings).  That's an important and recurring issue, and potentially adds (or subtracts) a ton of time for various criminal defendants.  Given the split in the Court of Appeal, it's pretty much certain that the California Supreme Court will step in.

So why write something incredibly long when, in short order, the only thing that readers are going to care about anyway is the controlling decision from the Supreme Court.

Short opinion.  Super important.  Super temporary.

Salazar v. McDonald's Corp. (9th Cir. - Oct. 1, 2019)

I feel gently compelled to talk about today's opinion from the Ninth Circuit.  Not because it's the most important opinion in the universe (which it isn't).  Nor because it's the first opinion published by the Ninth Circuit in October (which it is).

Rather, I mention it because it's the first opinion published by the Ninth Circuit in a while. No opinions published last Wednesday.  Or last Thursday.  Or Friday.  Or Saturday or Sunday (obviously).  Or Monday.  Today, finally, after a week-long break, we get a single published opinion.

Better than nothing, I guess.

Meanwhile, in the last three business days alone, the Ninth Circuit has issued 108 unpublished opinions.  Which tells you a lot about how the majority of Ninth Circuit appeals get adjudicated.

Today's opinion is at least important for anyone who wore a McDonald's uniform in California in the last several years.  The Ninth Circuit upholds the entry of summary judgment in favor of McDonald's in a wage and hour class action, holding that McDonald's itself (as opposed to the relevant franchise) isn't the "employer" of the employees.  Chief Judge Thomas dissents, but since the majority opinion is by Judge Graber (joined by Judge Kleinfeld), I don't think you're going to get en banc review, nor will the Supreme Court be interested.  So that's the practical end of this case.  Notwithstanding all the amici interest in this case (on both sides). 

Thursday, September 26, 2019

People v. Ramirez (Cal. Ct. App. - Sept. 24, 2019)

Nothing published from the California judiciary today (at least thus far).  And nothing published by the Ninth Circuit today either; or, for that matter, yesterday.  Slow September.

But the gap did let me go back a couple of days and reread this opinion from Tuesday.  There's a little bit of a substantive fight between the majority opinion and the partial dissent that's at least marginally interesting.  But I wanted to talk instead about Justice Wiley's opinion style instead.

Justice Wiley is often incredibly concise.  I talked about that earlier this week, and have noticed it in several of his opinions.  But, on rare occasions, he perhaps sacrifices substance for brevity.  For example, when he decides that trial counsel might have failed to object to a particular instance of alleged prosecutorial misconduct, he makes some good points ("Many sound reasons could explain the decisions not to object to these comments. Counsel may have figured counterargument held more rhetorical promise than a mere objection. Or the jury may have looked bored, and the stimulus of an objection may have awakened the jurors’ interest in a counterproductive way."), but then simply adds:  "And so forth."

I'm always intrigued when I see ten-character sentences in a judicial opinion.  Particularly those that lack a verb.  But, on this occasion, I think you have to actually articulate -- not merely assume -- the hypothetical reasons for the purportedly "tactical" decision not to object.  "Etc." doesn't really cut it.

Mind you, in other areas, Justice Wiley's brevity strikes me as brilliant.  For example, the entirety of Section II.C. of the opinion consists of a single sentence:  "There was no cumulative error because there were no errors to cumulate."  You see a plethora of opinions say the exact same substantive thing.  But Justice Wiley's way of saying it struck me as notably pithy and memorable.  Moreover, as far as I can tell, he's the only person who's described a holding that particular way:  at a minimum, there are no published or unpublished opinions that ever use that same sentence.  So i'm impressed that Justice Wiley can come up with a new -- and arguably better -- way of saying something that a plethora of opinions have said over a century or so of jurisprudence.  Well done.  I'm hoping that someone will follow up on that example and use this same sentence sometime in the future.  'Cause I like it.

One other minor point about Justice Wiley's writing style.  The first sentence of this opinion reads:  "A jury convicted Juan Ramirez of a shotgun murder."  That's sort of a funny way to say it, right?  "A shotgun murder."  I mean, simply saying that the guy was convicted of "murder" is probably all you need to say.  Putting in "shotgun" doesn't really add anything.  Particularly since there's nothing substantive in the opinion about whether the weapon was a shotgun, finding the shotgun, ballistics from the shotgun, or the like ("so forth").

Plus, what's the deal with the article.  "A shotgun murder."  That just sounds funny.  Old school, in a way.  So I looked up whether other people (judges, anyway) say the same thing.  On this front, Justice Wiley isn't as original as his earlier "cumulative error" styling.  But it's still pretty rare.  I could only find ten or so instances of where a judge has said that there was "a shotgun murder," and that's after looking at every reported and unreported opinion from all across the nation (state and federal) over the past century.  So, yep, other people have used the same term.  But it nonetheless remains a fairly funky way of saying it.

Anyway, having joined the Court of Appeal only last year, Justice Wiley is quickly making his mark, if only as a matter of writing style.  Which is perhaps not that surprising, given his background as a long-time law professor at UCLA.  The guy knows a thing or two.  And says it in an artful way.

Wednesday, September 25, 2019

In re Marriage of Mitchell (Cal. Ct. App. - Sept. 25, 2019)

I don't think I've ever seen an opinion with an "analysis" section that's shorter than this one.  And I certainly haven't seen such brevity in the midst of a ten-page opinion.

Justice Siggins' analysis of the case is contained in a single paragraph.  Indeed, it basically consists of four sentences.  He says:  "The couple continued to cohabit long after [Wife] discovered [Husband's] infidelity. . . . Carolyn discovered Michael’s communications with DeAndra in February or March of 2017. She taped Michael’s sexual encounter with Kim in March. Nonetheless, the parties continued to live together and to have sexual relations for another eight months.  On this record, the court could not issue a judgment of nullity under section 2210, subdivision (d)."

Not that Justice Siggins is wrong.  He's exactly right.  You can't get an annulment based on fraud (e.g., that the guy always intended to sleep with other people) if you subsequently learn about that fraud and continue to live with him.  So the trial court erred in granting the annulment.

Was it the greatest marriage in the world?  Nope.  Far from it.

But it was a marriage.  Not a nullity.

Tuesday, September 24, 2019

People v. Hicks (Cal. Ct. App. - Sept. 24, 2019)

Justice Hoffstadt begins today's opinion by saying the following:

"Earlier this year, one of our sister courts in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) held that due process precludes a court from “impos[ing]” certain assessments and fines when sentencing a criminal defendant absent a finding that the defendant has a “present ability to pay” them. (Id. at pp. 1164, 1167.) As explained below, we disagree with Dueñas’s analysis, consequently conclude that Dueñas was wrongly decided, and accordingly reject the Dueñas-based challenge presented in this appeal."

Given the routine nature of these assessments in criminal cases, Justice Hoffstadt might as well have said:  "We want the Supreme Court to grant review in this case, so we're going to essentially make 'em do it now."

This one is going up.  Or at least should.

POSTSCRIPT - Or maybe not!  A (super) informed reader wrote to tell me that a couple weeks ago, the Legislature passed AB 927, which is currently sitting on the Governor's desk.  Here's what that bill says: 

"LEGISLATIVE COUNSEL'S DIGEST/AB 927, Jones-Sawyer. Crimes: fines and fees: defendant’s ability to pay. 

Existing law requires or authorizes a court to impose various fines, fees, and assessments on criminal defendants, including fines assessed as a penalty for a crime, restitution fines, and fees and assessments for the support and maintenance of the courts, as specified.

This bill would require a court imposing a fine, fee, or assessment related to a criminal or juvenile proceeding involving a misdemeanor or a felony to make a finding, as specified, that the defendant or minor has the ability to pay, as defined. The bill would require that a defendant or minor be presumed to not have the ability to pay if the defendant or minor is homeless, lives in a shelter, or lives in a transitional living facility, receives need-based public assistance, is very low income, or is sentenced to state prison for an indeterminate term or a term of life without the possibility of parole. The bill would also specify factors establishing inability to pay, as specified."

If the Governor signs AB 927, that seems like it'll largely moot the underlying judicial dispute, albeit probably not retrospectively (i.e., for fines and assessments imposed prior to the statute).  Which in turn would substantially decrease the need for the California Supreme Court to grant review.

So maybe this is a super important dispute.  Or maybe it'll soon become a largely academic one.  We'll soon see.  Keep those comments coming.  Always good to learn something new!

Monday, September 23, 2019

Doe v. Occidental College (Cal. Ct. App. - Sept. 23, 2019)

John and Jane -- not their real names, of course -- attend the same college (Occidental).  John and Jane are both extremely drunk one night.  As occasionally happens in college.  John and Jane have sex.

Neither John nor Jane should be having sex; neither one is sufficiently sober to effectively consent.  As the hearing administrator found:  "An external adjudicator found Jane was incapacitated within the meaning of the policy because she was intoxicated and unable to make 'an informed and rational decision to engage in sexual activity.' The adjudicator found John was also intoxicated; in fact, so intoxicated he did not know Jane was incapacitated."

But, as Justice Segal notes:  "Under Occidental’s policy, however, John’s intoxication did not diminish his responsibility to obtain Jane’s consent, and John violated the policy because he should have known Jane was incapacitated. The adjudicator concluded a sober person in John’s position should have known Jane was too drunk to consent."

Is this one of those "Boy Forces Girl After She Says No" cases?  No.  Not this one.  It's instead one of those straightforward intoxication cases.  Jane "wants" to have sex.  (But, again, is not in a position in which she can intelligently consent.)  Which is why you have facts like these:

"Jane said she remembered that, after returning to John’s room, she asked him if he had a condom. She remembered 'performing oral sex on him,' but did not remember 'having sexual intercourse.'"  And text messages like these:

At 12:20 a.m. Jane sent a text message to her best friend from home saying, “I’m wasted.”

Between 12:31 and 12:45 a.m., Jane and John exchanged text messages, including these:

John: “The second that you’re away from [Angela and Jamison] come back.”
Jane: “Okay.”
John: “Get the fuck back here. Get the fuck back here.”
Jane: “They’re still with me . . . .”
John: “Make them leave. Tell them yo[u] want to sleep. . . . Just get back here.”
Jane: “Okay do you have a condom.”
John: “Yes.”
Jane: “Good give me two minutes.”
John: “Come here.”
Jane: “Coming.”
John: “Good girl. Knock when you’re here.”
Jane: “[Jamison is] out ride [sic] my door.”
John: “What.
Jane: “[Jamison] is outside my door.”
John: “Wtf.”
Jane: “Right.”
John: “Get him to leave.”
Jane: “Working on [i]t.” . . . .
John: “Leave. Say you’re going to the bathroom.”
Jane: “Okay.”

And then, immediately before leaving her room to go back to John to have sex with him, "Jane texted her friend from home again at 12:40 a.m. and said, 'The worlds moving. I’mgoingtohave sex now.'”

So what happens?

John gets expelled.  The Court of Appeal affirms.

People v. Rodriguez (Cal. Ct. App. - Sept. 23, 2019)

One of my (many) flaws as a writer is that I often craft overly long sentences, full of semicolons, dependent clauses, unnecessary adjectives, etc.  I know I shouldn't.  But I can't seem to help myself.

So when I read the first sentence of this opinion by Justice Wiley, I was literally taken aback.  It's so simple.  So straightforward.  So easy. 

The opinion begins:

"Giovanny Rodriguez shot a man."

Yep.  That's what it's about.  Short and sweet.

And that's not the only sentence that Justice Wiley uses that's like that.  "Rodriguez was in a gang." "Police secretly recorded all this." "This is forfeiture."  Stuff like that.  There's even one paragraph that, in total, is five words:  "This case differs from Schueren."

Now, not all the sentences in the opinion are like that.  But enough are.  There's clearly a deliberate effort to be short and to the point.

I could definitely learn something here.  As, I suspect, could many of us.

On the merits, I recommend reading Justice Stratton's partial dissent.  It's super short.  And it raises an important point.  She begins by saying (accurately):  "Any way you slice it, defendant is serving more minimum prison time before he is eligible for parole because he successfully exercised his right to trial on the premeditation allegation. So, even though he is legally less culpable without a finding of premeditation, he faces more minimum time in custody."  And later asks the reader:  "Who among us thinks it is logical and usual to keep a defendant imprisoned longer for an unpremeditated crime than for the same premeditated crime?"

Well now.  That does seem strange, doesn't it?

Definitely work checking out.

Friday, September 20, 2019

People v. Bay (Cal. Ct. App. - Sept. 20, 2019)

The Court of Appeal amends today its earlier opinion (published back in July) to make a couple of substantive changes.  Those changes are interesting.

First, as to the sufficiency of the evidence, the Court of Appeal previously held that a jury could reasonably infer possession of the items in the backpack by the defendant, and today's amendment doesn't change that conclusion.  I discussed that assessment when the original opinion came out, and today, the Court of Appeal adds a fair amount of additional analysis to its conclusion.  I'm still not certain that Justice Humes gets it right, but nonetheless think that the amendments definitely add some force to his conclusion.

Second, as to the "burglary tools" part of the case, the Court of Appeal now reaches a different result than it did initially.  And the next time someone tells you that the judiciary isn't allowed to rewrite a statute, tell them to read this opinion.  Because that's exactly what the Court of Appeal does.  (And it's not even shy about it.)

The statute requires actual possession to establish guilty, but that's because the Legislature -- and I'm convinced that Justice Humes is correct here -- accidentally left out the word "or" when it amended the statute.  So the Court of Appeal rewrites the statute to insert the omitted word.

I generally think that's a permissible (and helpful) exercise of judicial review, and the right way to interpret statutes.  I'm not a thousand percent certain that you can permissibly do that in the context of criminal statutes, since there's arguably a Due Process right to be notified of what you're allowed or not allowed to do under penalty of incarceration.  If the statute says that I can't do X while Y, and I do X but not Y, I could see a legitimate complaint if they threw me in prison on the theory the statute should have said that you can't do X "or" Y.  Since I didn't violate the statute as written, and hence the mistake was the Legislature's, not mine.

The defendant doesn't seem to make that argument; indeed, as far as I can tell, his lawyer didn't even file a brief on the issue at all.  But I wonder if such an argument would (or should) be successful.

Thursday, September 19, 2019

Lindstrom v. Coastal Commission (Cal. Ct. App. - Sept. 19, 2019)

Even though Encinitas residents James and Karla Lindstrom (largely) lose this appeal, they can't (legitimately) complain that the Court of Appeal didn't give their arguments careful consideration.  Justice Irion's opinion is 52 pages long.  And it carefully -- and in my view, persuasively -- addresses the competing contentions of the parties.  It's a very good opinion, and the type I like to see.

The question revolves around the validity of various permit conditions that the Coastal Commission imposed on the construction of a very large (and expensive) residence on a vacant lot on the top of an oceanfront bluff at Moonlight Beach in Encinitas.  Of particular importance is (1) how far back from this (inherently somewhat) unstable bluff the residence needs to be built; e.g., 40 or 60 feet, and (2) whether it's okay to condition the permit on an agreement that no sea wall or other protective devices ever be employed to stop erosion.

The various tribunals below reached conflicting results.  But Justice Irion's resolution seems pretty darn good to me.  Her statutory analysis makes sense and to me from both a textual as well as policy perspective.  And she's definitely thought about the competing positions carefully and at length.  As I said, it's a good opinion.

It makes sense to me that we legitimately want the longer setback because we want the house (and bluff) to be stable (i.e., with a 1.5 safety rating) even after 75 years.  Not just standing, but stable.

By contrast, it's interesting from a policy perspective that we're now deliberately employing land use to make sure (essentially) that houses indeed collapse into the ocean over time, rather than are saved (e.g., impose "no-barriers-ever" conditions).  I'm not saying that's wrong.  Indeed, I'm sympathetic to the view, at least at some level.  (And that's a declaration against interest, since I own a home on the oceanfront that's off a bluff myself -- though there's a street between me and the bluff, and I suspect that the City will go through some fairly strong measures to save the thing before it lets my home fall into the ocean.)  When you build a house on an (inevitably) eroding bluff, it's okay to say to someone "Hey, we'll let you build the thing if you want, but you know it's going to eventually fall in the ocean, right?  No complaining in the future about that eventuality and asking to build an ugly seawall; if that is your intent, no deal."  Do I feel bad for the eventual homeowner -- likely, not the Lindstroms, who will likely have long before departed this property (and the world) before those 75-plus years expire -- who has to watch their house fall into the ocean?  Sure.  Of course.  But that's the price you pay for buying a property on an eroding bluff.  Hope you got a good deal on the thing.  At least the views of the ocean and sunsets in the interim were awesome.

I totally get the contrary arguments that the Lindstroms make.  But I think that the Court of Appeal's analysis of them was nonetheless correct.  (Including, I suspect, the small portion of the opinion that was in the Lindstroms' favor.)

We're letting people build on bluffs.  But we're also making sure that they eventually fall into the ocean.

Just not for a long while.

P.S. - I can't help but wonder whether the bluff-landslide deaths recently up in Encinitas consciously or subconsciously affected the result here.  This was definitely a high-profile event, at least down in San Diego.  And even though the case isn't about erosion that kills people, it definitely put erosion on the bluffs into distinct focus.  I wonder which party to the appeal (if either) reacted to the news of the deaths by saying "Crap.  That really hurts us here."

Tuesday, September 17, 2019

In re A.J. (Cal. Ct. App. - Sept. 16, 2019)

It's a tragic case, to be sure.  A minor with a provisional license ("learner's permit") is driving his father's car and makes an illegal left turn that hits and kills a motorcyclist.  Devastating.

Those facts hit home in part because I've got a 16-year old son at home with a provisional license, and like every 15- or 16-year old driver, I can totally imaging him making a similar mistake.  Let's face it:  New drivers are absolutely terrible.  Horrible.  Particularly teenage boys.  (Though, truth be told, my 17-year old daughter isn't exactly awesome at driving either.)

What struck me about this case is not that a motorcyclist was killed when someone took a left turn in front of them.  That happens.  A lot.  Argument number a thousand for not riding a motorcycle.  (As well as why you've got to be aware of your surroundings when you drive any vehicle.)

What's surprising is that this is not a lawsuit by the motorcycle rider (or his estate) against the driver.  It's instead a juvenile dependency wardship case.  The minor was declared a ward of the court based upon this single incident.  And wasn't even placed on informal supervision, even though the probation office itself thought that would be a good idea, given that the minor "was remorseful, had no prior delinquency history or significant disciplinary record, had been receptive to receiving services throughout these proceedings and, in fact, had taken the initiative to obtain services, and had full familial support."  Full dependency wardship and actual probation.

Such a resolution -- indeed, that it was even sought -- strikes me as unusual.  Or, at least, that it should be.  Imagine that your teenage son, or the son of a Court of Appeal judge, did the same thing:  accidentally made a left turn in front of a motorcyclist that ended in the cyclist's death.  Do you think that the usual response in such a case is to try to make the kid a formal ward of the court?  Really?  Particularly when the kid, as here, is remorseful, has no prior bad history, takes initiative in response to the accident, and has the full support of his family?

Maybe there's something not mentioned by the Court of Appeal here that explains why the parties (and court) here did what they did.  But I'll tell you:  If this happened to my kid, and as a result of an (admittedly tragic) accident, they used that one bad thing to make him a ward of the court, I'd be extraordinarily upset.

And "upset" is probably not the word I'd use at the time.

Hicks v. Richard (Cal. Ct. App. - Sept. 17, 2019)

It doesn't seem like a school principal -- any principal, and perhaps especially the principal of a Catholic elementary school -- should be saying things like this:

"As examples of making inappropriate comments and creating a hostile work environment, the letter stated Hicks "recently made the following statements in the presence of female faculty members at the School, and in some instances, either in front of children or toward children: 'she's like a dog;' 'nice legs;' 'look at her hips;' 'I don't give a shit;' 'he looks like [a] pervert (directed at an elementary student);' 'you are too fat to be a model (directed at a middle school girl),' and 'it is a shame you are having a girl (stated twice, directed at a pregnant staff member, and stated in the presence of female School employees).'" The letter also stated Hicks had commented on a female teacher's breast size in the presence of another teacher and had stated his hiring philosophy consisted of hiring attractive female teachers."

Yeah.  If he indeed did that, I could see why you might want to fire the guy.

The Court of Appeal holds that the letter at issue was protected by the common interest privilege, and hence that the defendant's anti-SLAPP motion should have been granted in its entirety.  Seems about right to me.

By the way, the Court of Appeal never names the school at issue.  It's the St. Mary, Star of the Sea elementary school, down here in San Diego County.  Pretty name.

Friday, September 13, 2019

Calaveras Tel. Co. v. PUC (Cal. Ct. App. - Sept. 13, 2019)

I suspect that opinions like this will seem quaint a couple of decades from now.  The issue is how much of a subsidy rural landline telephone companies should receive, since they (understandably) have higher costs due to the less dense nature of their customers.

I imagine that, in short order, cellular and satellite companies will have largely (if not entirely) replaced these entities.  Making this opinion seem the modern day equivalent of disputes about subsidies for buggy whip manufacturers.

If it doesn't seem that way already.

Thursday, September 12, 2019

In re L.M. (Cal. Ct. App. - Sept. 12, 2019)

It's a heartbreaking case, to be sure.  But also an uplifting one.

On one side, you've got the heartbreak that they take this tiny baby from her parents (particularly, her mother).  But not excruciatingly heartbreaking, on that front anyway.  The mother's homeless, has had two kids (including L.M.) who were taken away after the kids tested positive for methamphetamine, and the father's in custody on weapons and drug charges.  Mother's never even visited the kid.  And then Mother gets arrested on various charges, including vehicle theft.  And Father gets arrested on charges that include robbery.  To say that Mother and Father aren't going to adequately take care of the kids is an understatement.  That's not even really the issue here.

The issue is where you place the kids.

The earlier child of Mother gets placed with Rita and John E.  They eventually adopt her.  It's a beautiful thing.  They're doing great.  They live in Florida, and everything seems wonderful.

When the second child of Mother gets born (L.M.), Rita and John want that new kid placed with them as well.  They'll take care of her while the process with Mother runs in course, and in time, will likely adopt L.M. as well.  And in the meantime, L.M. will be with her biological sister.

Except for one thing.  Rita and John are in Florida, and aren't yet licensed there as foster parents.  So they immediately start that process.

But what to do in the interim?  Obviously they can't place L.M. with Mother.  So they place the kid with Kate and Jaime.

Who are also absolutely wonderful.  The kid bonds, the kid's doing great, fantastic.  Beautiful.

It takes some months for Rita and John to get certified in Florida, but they pass all the background checks, family visits, etc. with flying colors.  In the meantime, though, Kate and Jaime totally bond with L.M. as well, and decide they want to adopt her.

So then we have to decide:  Who gets L.M.?

Is it Kate and Jaime, who have cared for her since birth?  And are awesome.  Or is it Rita and John, who care for L.M.'s sister and who are also awesome?

As both the Court of Appeal and the trial court recognized, it's an incredibly, incredibly tough call.  As the trial court said after closing arguments of the parties at the trial: 

"When one becomes a judge, they send you to new judge orientation for a week, and then a little while after that, they send you to judge's college for two weeks. And then finally, if you get assigned to a[n] area of the law like dependency, they send you to primary assignment training for a week. None of those programs teach you how to make decisions like I have to make today. In making rulings like I have to make today is really the hardest part of this job. I recognize no matter how I rule, there will be people who will be devastated. And I take no joy in that. . . . Prior to making my ruling, I want the record to reflect that this court finds that based on all the evidence, that [Kate] and [Jaime] have done an excellent job of taking care of [L.M.] I believe them both to be good people, and excellent parents. I also want the record to reflect that based on the evidence Mr. and Mrs. [E.] have taken excellent care of [V.E.] and when [L.M.] has visited with them, I find that they have taken excellent care of [L.M.] as well. I believe them both to be good people and excellent parents as well. With or without [V.E.] in the mix, either of these two families would be an ideal family for [L.M.]. The issue here . . . is not whether one family is better than the other, the fact is they are both excellent. Both of them."

Ultimately, the trial court gives L.M. to Rita and John.  Principally because that way she can be with her sister, with whom she has apparently bonded during their visits and so they can be together for the rest of their lives.  Which is, of course, awesome.  And the Court of Appeal affirms.

The heartbreaking thing -- of course -- is that this means the kid gets removed from Kate and Jaime.  Not because they're bad parents.  At all.  And not because they haven't bonded with the kid, because they totally have.

Just because it's an incredibly, incredibly hard call.  One that could go either way.  And it goes against them.

So that's what I mean when I say the case is heartbreaking.

But at the same time, I wish that all the dependency cases that I read were this type of heartbreaking.  Here, there are two awesome families.  Both of whom will totally love the kid.  Both of whom are fully capable of helping the child be the absolute best child she can possibly be.  The world would be a better place if those were the stories that filled the pages of the California Appellate Reports.  In the place of all the terrible, miserable, horrible stories in those same pages in which you can only sigh and hang your head and what's likely to be the eventual outcome for the children at issue.

One final point.  There's a constant undercurrent in this case about race.  All the relevant parental units (John, Rita, Kate and Jaime) are Caucasian.  But L.M. is African-American.  As is her sister (with John and Rita).

The Court of Appeal goes to great lengths to discuss the race of the relevant parents and the kids, as well as how John and Rita "moved from San Diego to Tampa, Florida, which is 26 percent African-American," "reside in a multiracial neighborhood there," and that the first kid (V.E.) "attends a racially diverse school, and the family attends a church having a predominantly African-American congregation."  And there are repeated references as well, particularly in the trial court, by the various experts and witnesses expressing a preference for unifying the kid sisters because that way L.M. will have someone of her own race in the family.

So race is a big deal here.  Even though occasionally the references seem somewhat deliberately veiled.

In telling contrast, not a word is spoken about sexuality.  Or even marital status.  The Court of Appeal mentions that John and Rita are married.  But what we know about Kate and Jaime is that they "have had a stable relationship for seven years."  Which is equivalent thereto.  And although the reader may suspects that Kate is a woman -- and the Court of Appeal sometimes uses the word "her" to describe her -- it appears almost certainly deliberately that the Court of Appeal not once mentions the gender of Jaime.  A name often applied to both boys and girls.

That front isn't once mentioned.  Or even hinted at.

Which, of course, is how it should be.  Which shows you in part how far we've come from the bad old days.

I'll mention, though, that even though the opinion only uses first names and initials, it's not that hard to figure out the identity of Kate and Jaime, since we know they're in San Diego.  Looks like they had an absolutely gorgeous (and fun) wedding, and one that's well-documented online.  And even a little digging will also reveal pictures of L.M. on Kate's Facebook page.  Alongside some heartbreaking comments that reflect and understanding that the child now resides elsewhere.

John and Rita and Kate and Jaime did wonderful things.  Each and every one of them.

You feel incredibly bad that something so heartbreaking necessarily had to happen to two of them.