Tuesday, May 23, 2017

In Re Marriage of Janes (Cal. Ct. App. - May 23, 2017)

I think this is a darn good -- and equitable -- opinion by Justice Miller.  The separation agreement was signed in 2010 that says that Wife was entitled to $112,000 of Husband's 401(k) account.  That in turn means that Wife's entitled to that amount in 2014, plus whatever gains (or losses) transpired on those funds.  (As it turns out, gains.)  Because, as of 2010, it was her money.

I also thought the Court of Appeal was right that the relevant date was (probably) the date the agreement was signed, not the date of separation.  That too follows from the analysis.

So good job of the trial court changing its mind on the merits from its initial view.  And good job of the Court of Appeal affirming the correct part of what transpired below (the gains) but reversing the wrong part (the date).

I'd only make one change in the opinion, and it's an admittedly minor one.  Page 10, first paragraph:  "The instant case is distinguishable from Thorne. Wife is seeking the same amount of principle that was awarded to her on April 19—$113,392 of the 401(k) account. In Thorne, the wife was seeking to change the amount of principle she received."

I think those two words should be "principal", not -le.

But otherwise great.

Monday, May 22, 2017

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

Here's another example of that "liberal" Ninth Circuit.

The district court suppresses a defendant's statements because it holds that the police didn't properly advise the defendant of his Miranda rights.

The Ninth Circuit reverses.  The warnings were close enough.

And this ain't some hard-core conservative-stacked panel, either.  The panel consists of Judges Gould, Clifton and Watford.

Friday, May 19, 2017

Olivas v. State of Nevada (9th Cir. - May 19, 2017)

There shouldn't be any surprise that today's opinion by the Ninth Circuit is so short.  Or that it did not require oral argument.  Or that it was published a mere nine days after the matter was submitted.  Or that the panel unanimously reversed.

The only surprise is how the district court could have possibly gotten the matter so wrong.

Of course the Prison Litigation Reform Act, which imposes heightened pleading requirements on prisoners, only applies to actual prisoners -- i.e., people incarcerated at the time.  Sure, there's no definition of the term "prisoner".  But when the statute says the court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," that means you review it if the prisoner's actually been a prisoner.  If the person has been released from prison -- ten years ago or ten days ago -- they're not subject to this rule.

So if they file a lawsuit after they're released from prison, they're like the rest of us.  With an unencumbered right to access to the judiciary.

The appeal is easy not only because the panel's so obviously right on the merits, but also because the district court was clearly being super harsh here.  Plaintiff got shot by a guard with a shotgun to the face, and among other things, lost an eye.  Shockingly, he thought that might constitute excessive force.  But the district court dismissed the complaint at the pleading stage.

Now, maybe, as a factual matter, Mr. Olivas was shot for a good reason.  Maybe he was participating in the fight.  Maybe the guard's an incredibly bad shot.  Those are things we'll eventually have to find out.

But that's neither plaintiff's version of the story, nor what's in his pro se pleading.  So the case pretty clearly gets to go forward.  Or, as the panel says in the footnote at the end of the opinion, albeit in totally extraneous dicta:  "We note that it appears the rigorous screening here did not take all factual allegations as true and weighed imagined countervailing evidence. And, even if it had been proper to conclude that the Complaint failed to state a claim, leave to amend should be freely given. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003)."

Which gives a hint at the attitude of both the panel towards the district court's ruling as well as the district court's attitude towards the plaintiff.

Kinney v. Clark (Cal. Ct. App. - May 17, 2017)

Back in 2011, I wrote this, in which I simultaneously expressed my appreciation for the merits of the Court of Appeal's opinion as well as my utter shock that the Bar had done utterly nothing about the underlying attorney, Charles Kinney.  I said:

"But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly."

It's now 2017.  This opinion recounts yet another appeal by Mr. McKinney.  One aptly described by the Court of Appeal as follows:  "This appeal, like the numerous appeals before, lacks merit. We grant Clark’s motion to dismiss the appeal because it is frivolous."

But at least the Bar has now caught up with the times.  Albeit half a decade after even a casual observer like me was stunned that Mr. McKinney hadn't yet been disbarred.  As the Court of Appeal gleefully (at least for me) explains in a footnote:

"Kinney is no longer licensed by the State Bar of California. In June 2016, he was disbarred for his conduct in the Fernwood property litigation as well as his conduct in representing clients in another residential property dispute involving an easement. On the court’s own motion, we take judicial notice of the opinion and order of the State Bar of California Review Department, filed on December 12, 2014 in case numbers 09-O-18100 and 09-O-18750, setting forth the reasons for the recommendation of disbarment (Kinney’s conduct in the property dispute litigation)."


Thursday, May 18, 2017

People v. Cervantes (Cal. Ct. App. - May 18, 2017)

"Defendant] was caught transporting (among other drugs) more than 3,600 doses of methamphetamine with a street value between $111,000 and $222,000. . . . [D]espite his October 18 arrest and release on bail, he was arrested a mere two days later transporting 342 dosage units of methamphetamine with an estimated street value between approximately $10,000 and $20,000."

Yeah.  Probably not the smartest decision in the world to mule another batch of drugs two days after you were caught and arrested for transporting the first batch of drugs.  Especially when you're doing so in a car with expired registration tags, illegally tinted windows, etc.  That sort of makes you an easy target for a police traffic stop and subsequent search of your vehicle.

Gillotti v. Stewart (Cal. Ct. App. - May 18, 2017)

The Court of Appeal publishes this opinion today, which begins by saying:

"In this construction defect lawsuit by a homeowner, the jury found the general contractor -- defendant Estate of William G. Davidson, formerly Davidson Construction (Davidson) -- negligent and liable for some, but not all, alleged violations of building standards under the Right to Repair Act, Civil Code section 895, et seq. (the Act). The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.) (Unless otherwise noted, statutory references that follow are to the Civil Code.) The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.)."

Wait.  I'm unclear.  Who's the proper party where the decedent was protected by the insurance?  The estate?  Please tell me again.

The same repetition was in the unpublished opinion as well.

But let me just say something you shouldn't forget.

The estate is a proper party where the decedent was protected by insurance.

Wednesday, May 17, 2017

Davies v. Benov (9th Cir. - May 17, 2017)

The Ninth Circuit says today:

"We've got some good news, and we've got some bad news.  Bad news first.  You filed a habeas petition over your 5-year prison sentence for drug violations, claiming that an appropriations rider passed by Congress prevents the U.S. from spending money to incarcerate you for growing medical marijuana in compliance with California law.  The district court denied your petition, and we're not letting you out either.  You waived your right to any challenge as part of your plea deal.  Shucks for you.

Here's the good news, though.  You're almost done with your sentence anyway.  You're currently scheduled to be released on August 9, 2017.  That's less than three months away.  So your loss today isn't really a huge one.  And, just to help you, we tried to decide this thing as quickly as we could, including issuing our published opinion only 62 days after oral argument.  Trust us:  It usually takes much more time than that.  So we at least tried to do you a solid there.  And maybe, for some future person who didn't waive his right to challenge his sentence, we'll actually decide whether you're right on the merits.

So sorry about the bad news, but take solace in the fact that you're a free man in 90 days regardless."

The actual opinion isn't as forthright, but I think that's a positive spin on the thing that's not too far off from reality.

Tuesday, May 16, 2017

People v. Hudson (Cal. Ct. App. - May 16, 2017)

When I think of a carjacking, I think of someone putting a gun to someone's head, or throwing them out of the car, or doing stuff like that and then taking their vehicle.  A pretty serious crime.

When I think of vehicle theft, I think of someone taking a car.  Maybe as the guy watches, maybe as he doesn't.  A serious crime as well, but less serious.

The key difference between these two things is "force or fear".  That's what distinguishes the two crimes.  If you're taking the car by force or fear from the other person, it's carjacking.  Otherwise it's merely theft/robbery/whatever.

Imagine that you get in a car (that's not yours) and start driving it away.  Then, as you're slowly driving the thing away, someone sees you, and starts banging on the hood, or the window, or whatever, telling you to stop.  But you don't.

You'd think that the relevant force that was applied there was the other guy's -- the guy trying to stop you.  So that'd still be theft, but not carjacking, since it was someone else's doing.

But, if so, you'd be wrong, according to the Court of Appeal.  You took the car, and did exactly what you needed to (i.e., rolled the thing along) to take it, and no more.  But once someone else grabs the car, now it's carjacking if you don't immediately stop.

Not what I would have thought carjacking entails.

But definitely the law in California now.

People v. Edwards (Cal. Ct. App. - May 16, 2017)

Oh my.

"At midday on May 7, 2012, defendant attacked Shannon Collins, a woman whom he did not know, as she was walking on Broadway in Santa Cruz. He stabbed her neck and torso 12 times. While Collins bled to death, defendant dropped his jacket and his knife near her body. He nonchalantly walked away and threw his blood-stained shirt into a garbage can. Shortly thereafter, defendant was arrested a few blocks away from the crime scene. Defendant had blood spatter on his hands, head, and shoes.

Defendant was calm and cooperative during the in-field showups, which occurred about an hour after the offense. Defendant was then transported to a hospital for evidence collection procedures during which he was also cooperative. About one and a half hours later, he was transported to the police station where he coherently provided biographical data to the police officers."

Why?  Why would someone possibly do this?

"Defendant presented evidence of his extensive history of mental illness. His symptoms included hallucinations, paranoid thoughts, extreme mood fluctuations, and chronically aggressive behavior. Defendant had been given various diagnoses, including schizoaffective disorder bipolar type, schizophrenia, a psychotic disorder not otherwise specified, antisocial personality disorder, and polysubstance abuse. Defendant had engaged in 15 or 16 incidents of violent behavior between 1991 and 2002, many of which were related to his mental illness. Defendant was involuntarily medicated eight times between 1994 and 2011. He met the criteria for the mentally disordered offender program in 1999, 2000, 2002, and 2011. Defendant had no insight into his mental illness and he frequently did not take his medications."

Oh.  I guess now I understand.  Though how incredibly depressing all around.

P.S. - "Defendant believed that if he killed someone, he would be safe and would join the Illuminati cults. Defendant also claimed that the skeletons told him that if he killed someone, he would be free."  Or maybe "Defendant told the police that he had planned to kill a woman because he was frustrated that women did not give him enough attention. He explained that “corrupt” men, men who weighed 300 pounds, and drug dealers received attention from women, but he did not. Defendant stated that he could not take it anymore, and he decided to kill a woman."  Depending on who what version you believe.

Monday, May 15, 2017

U.S. v. Olson (9th Cir. - May 15, 2017)

Judge Fisher, joined by Judge Paez, wants to -- and does -- decide both the particular case at hand as well as the underlying legal issue.

Judge Hurwitz isn't totally irate, but thinks that may go too far.  Saying:

"This case does not turn on whether the government must prove in a misprision prosecution under 18 U.S.C. § 4 that the defendant knew the underlying offense was a felony. As the majority correctly concludes, the evidence at trial sufficed for a misprision conviction even if the government bears that burden of proof.

The majority’s interpretation of the statute may be correct. But, I would leave such analysis for another day, in a case in which it matters to the outcome. See Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 372–73 (1955) (“These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”); PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting “the cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is necessary not to decide more”)."

Judge Hurwitz has a point.  Though so does Judge Fisher.  Sometimes it's nice to actually decide issues rather than let them linger.

Both positions are reasonable, in my view.

Friday, May 12, 2017

In Re A.V. (Cal. Ct. App. - May 12, 2017)

Opinions from the Court of Appeal sometimes give you a glimpse into the lives of the relevant individuals at issue.  Including types of lives that you might not otherwise be extraordinarily familiar with in your immediate surroundings.  And you have to try to piece together what's going on.

Sometimes that's fairly easy.  Sometimes it's not.

For example, today, I'm not totally sure what I think is going on with the juvenile here.  Sometimes I think he's shaping up.  Sometimes I think he's not.

I probably end with the conclusion that, maybe, he's on the edge.  And that my intuitions here are not especially well-founded.

Though, if he's on the edge, truly, I hope for the best for him.

Here's his initial scoop:

"In September 2014, the Sonoma County District Attorney filed a section 602 wardship petition charging minor A.V., age 15, with felony possession of marijuana for sale and misdemeanor possession of concentrated cannabis. (Health & Saf. Code, §§ 11359, 11357, subd. (a).) Three juveniles were caught with hash oil and an electronic vapor cigarette on their high school campus. One of the juveniles told the police he bought them from A.V. When questioned by police, A.V. admitted he sold the items to his classmate. He later admitted to probation he used marijuana regularly."

You read stuff like that all the time.  Not a good sign.  But not unusual.  A 15-year old doing drugs and getting probation.

"A.V. admitted the truth of the allegations with the understanding the court would consider placing him on deferred entry of judgment (DEJ) probation. At disposition, the court placed A.V. on DEJ probation on the conditions, among others, that he complete 150 hours of community service work, write a 1,000-word essay about the effects of marijuana on the adolescent brain, refrain from using or possessing alcohol or drugs, particularly marijuana, and participate in and complete outpatient substance abuse counseling.

On March 2, 2015, probation filed a report indicating that A.V. was regularly attending school, passing all of his classes, had zero disciplinary referrals, was actively working towards completion of his community service hours and was attending an alcohol and drug offender class. He had tested negative for intoxicating substances since his review hearing in December 2014."

Hey now!  All right.  Well done.  Maybe the intervention here made a difference.  Seems like he's cleanup up his act.

"Then, on March 4 and 17, probation filed notices of noncompliance, alleging A.V. violated his DEJ probation by using marijuana and cocaine. On March 2, he tested positive for THC and cocaine. He also tested positive for THC on March 18. On April 1, 2015, probation reported that A.V. admitted he had smoked some marijuana he had acquired before he was placed on probation, because he was depressed about a medical diagnosis he had received. He was unsure why he tested positive for cocaine, because he did not use cocaine."

Aw, man!  Now he's backsliding.  And may well be adding cocaine to the mix.  That's not good at all.  Not at all what we want to see.  All that progress for naught.

"On April 9, 2015, the court vacated deferred entry of judgment, imposed judgment, declared A.V. a ward of the court, and placed him on juvenile probation on the same and additional conditions of probation, including fines and DNA testing. . . . On April 20, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana and violated his 7:00 p.m. curfew and the terms of his community detention, by testing positive for marijuana on April 9, 2015, and leaving his house in the middle of the night while on community detention."

Jeeze.  Now I'm feeling super bad about where this is going.  Seen it before.  Too many times.  Sad to see the promise I had hoped from the outset be wasted.

"On October 19, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana on October 12 and was cited by police for possessing marijuana on school grounds on October 16. On October 20, 2015, A.V. admitted he violated his probation."

Yep.  So much down the wrong path that, even with all of this, he's even taking his weed to school.


"On November 18, 2015, probation reported that since October 20, 2015, A.V. had followed his court-ordered conditions of probation and abided by his parents’ directives. He was helpful around the house and respectful to his parents. He was a junior in high school, was passing all of his classes, and did not have any tardies, unexcused absences, or behavioral referrals. He had completed Interactive Journaling, and spent most of his summer break successfully completing 150 hours of community service. He had competed three weekends of weekend work crew and was attending drug and alcohol counseling once a week. He had submitted two chemical tests since October 19; both showed diminishing levels of THC."

Seriously?!  Dude!  That's what we want to see!  And I'm not the only one, either.  Sayeth the judge:  "All right. [A.], this is the kind of report we want to see. This is great. I’m glad to see you’re doing so well at school, getting tested, testing clean. You’ve done your community service and everything else we’ve thrown at you. Now we want a period of no violations.” “If you continue the good behavior you had from the last VOP to this date going forward, I think you will end up with a dismissal in February. But you have to show us you can do it for more than a couple months.”

Spot on.  Fingers crossed!

"In February 2016, probation reported on A.V.’s progress. A.V. had completed all of his conditions of probation, including 150 hours of community service, Interactive Journaling, and substance abuse counseling. A.V. spent his free time with his girlfriend and applying for jobs. His mother described his behavior at home as “exceptional.” Since A.V.’s last hearing in November 2015, he had submitted five chemical tests, all of them negative for intoxicating substances. He had no disciplinary issues or unexcused absences at school."

Yes!  Finally.  It's catching.  Maybe all this is actually working.  Belatedly.  But maybe there's hope we're actually -- actually -- making a difference.

"However, his grades had suffered. He had one A, three Ds and was failing English and algebra. On February 19, 2016, the court expressed overall satisfaction with the report but continued the matter to April for evidence of improved grades.  On April 25, 2016, probation reported that A.V. had brought his F in English up to a D. He now had one C, four Ds and an F in algebra. A.V. reported he was working toward improving his grades so he could return to his high school of choice in the fall. He had no disciplinary issues or unexcused absences. Mother continued to find A.V. well behaved and helpful at home. He walked the family dog almost daily, cleaned the pool, and worked from 5:00 p.m. to 10:00 p.m. as a dishwasher at a local restaurant several nights a week. Since the last hearing in February, A.V. had submitted six more chemical tests, all negative for intoxicating substances. The probation department recommended “that all proceedings be dismissed” because A.V. had “completed all of his Court ordered obligations, has continued to submit chemical tests negative for intoxicating substances, and is now actively employed.”"

And that's how it ends.

The performance is spotty, but you have hope.  The grades make you worried, but again, you have hope.

Yet I don't feel like the fight is over here.  I honestly don't know how this eventually turns out.

In particular, whether we ultimately see A.V., as an adult, in some future addition of the California Appellate Report.

Let's hope not.  Let's hope for the best.

Thursday, May 11, 2017

U.S. v. Brugnara (9th Cir. - May 11, 2017)

Mail fraud and wire fraud are bad enough.  But then, while you're defending yourself, to add escape and multiple contempt citations to your charge count?  Seems like adding fuel to the fire.

At least it makes things interesting.

Not that the trial wasn't interesting enough already.  This is not another bank robbery or Ponzi scheme or what have you.  It's rather it's own kind of fraud.  As Judge Wallace explains:

"The events of this case trace back to March 2014, when Luke Brugnara, a former San Francisco real estate tycoon with a fondness for high-end art, agreed to purchase several million dollars’ worth of paintings and other works from art dealer Rose Long for display in his museum. There were two problems: Brugnara had neither the means to pay for the works nor a museum in which to place them."

Uh, yeah.  Those are problems, all right.

Lots of other neat details in the opinion about the underlying fraud.  The trial was also a hoot.  Mr. Brugnara was out of control as he defended himself at trial.  But, ironically, he had a fellow traveler in one of the jurors, who seemed -- before he was dismissed -- to believe the exact sorts of things that Mr. Burgnara believed.  Complete with dueling references to Nazis, etc.

Check it out.

Wednesday, May 10, 2017

O'Neil-Rosales v. Citibank (Cal. Ct. App. - May 10, 2017)

No Ninth Circuit opinions today, and only one Court of Appeal opinion.

Fortunately, you can get the gist of today's opinion merely by quoting one of its footnotes:

"Plaintiff argued below, and continues to argue on appeal, that Rouse v. Law Offices of Rory Clark (S.D.Cal. 2006) 465 F.Supp.2d 1031 (Rouse) compels a different result—i.e., that “the recording of a lien against property based on a default judgment tendered to the County Recorder’s Office is a ministerial function falling outside the ‘any other official proceeding authorized by law’ contemplated in Section 425.16(e).” (Id. at p. 1038.) But, while the act by a county recorder of recording a properly tendered abstract of judgment would appear to be a ministerial function, it is less clear that the act by a judgment creditor of tendering the abstract to the county recorder’s office could be considered ministerial. In any case, we are not bound to follow Rouse (see Howard Contracting v. G.A. MacDonald Const. Co. (1998) 71 Cal.App.4th 38, 52 [federal decisions neither binding nor controlling on matters of state law]), but are bound to follow Rusheen v. Cohen, supra, 37 Cal.4th 1048 (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California].)."

Yeah.  That about summarizes it.  It's a lien -- or what appears to be a lien, anyway -- that arguably is abusive.  But it's connected in some way with the result of a prior litigation, so an anti-SLAPP motion can be filed and, as here, result in a dismissal and attorney fee award.

There you have it.

(It's actually a neat little trick.  Get a judgment against Person X.  File a lien against Person X with respect to a Piece of Property that Person X used to own -- but hasn't owned for years -- and that is instead owned by Person Y.  When Person Y seeks to refinance her loan on the Property, the lender may well require Person Y to pay off the lien -- even though it's not against her -- or file a lawsuit to declare the lien invalid.  Filing a lawsuit may well be even more expensive than paying the lien (say, one for $2,000 or so, like here).  So Person Y ends up paying the judgment even though it's not one against her.  Abusive.  But successful, apparently.  Especially if Person Y can't sue the person who filed the lien without both losing on the merits as well as having to pay the other side's fees.  Neat.)

Tuesday, May 09, 2017

In Re Ford Motor Warranty Cases (Cal. Ct. App. - May 8, 2017)

I get it.  If you coordinate a certain series of cases, then add-on cases based on the same basic facts generally need to be coordinated as well.

And that's true even if the judge who's doing the coordination thinks that coordination doesn't make any sense.

Different roles  Different times.  Different decisions.

Writ of mandate granted.

Monday, May 08, 2017

Cameranesi v. Department of Defense (9th Cir. - May 8, 2017)

From today's order:

"Judge Watford voted to grant the petition for rehearing en banc. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration."

Which I always find funny.  Essentially, Judge Watford voted to take the case en banc, yet the total number of judges voting to take the case en banc was exactly zero.

I know, I know.  There's a difference between "voting to grant a petition for rehearing en banc," on the one hand, and "voting to take the case en banc."  Technically, there was no actual vote, since no one requested a vote.

It's a sign that you know you're in the minority.  You vote for X to happen, but no one else even wants a vote to see if X should happen.  At that point, you give up.  

You're clearly in the minority if you say "Yes" and everyone else says "Meh".

Thursday, May 04, 2017

Clary v. City of Crescent City (Cal. Ct. App. - May 1, 2017)

John Diehl lives in Washington State but owns eight vacant lots in Crescent City.  He doesn't much take care of them, and in a lengthy process, the City eventually made a finding that the overgrown weeds and rubbish on his lots constituted a public nuisance that required abatement and, when Diehl refused to abate the nuisance, placed a lien on his lots for the City‘s abatement costs.

Diehl fought this process tooth and nail, all the way to the Court of Appeal.  With long, discursive briefs defending his alleged right "to allow natural vegetation to flourish on my properties until they are sold for development" and to provide "shelter and foraging habitat for birds and other wildlife" and "replacing carbon dioxide with oxygen."

But no one else saw it that way.  Including the Court of Appeal.  All of these institutions concluded that the blackberry bushes, broom plants, other weedy vegetation, abundant trash and illegally dumped material on these lots were better characterized as "a blight, a habitat for rats and vermin, and an attractive [pun intended, I presume] nuisance."

So Diehl fights what he thinks is a good fight.  But loses.

Though he at least gets a published opinion out of it.  Albeit posthumously.  "Mr. Diehl passed away after the briefing was completed in this appeal," after representing himself both in the Court of Appeal as well as below.

At least he went out fighting, eh?

Dunson v. Cordis Corp. (9th Cir. - April 14, 2017)

I loved reading this opinion.  Crisp, clean, and entirely right.

And about a civil procedure issue too; namely, the relationship between consolidation in state court and removal of "mass actions" under CAFA.

Judge Watford brings a smile to my face.

Wednesday, May 03, 2017

Friedman v. AARP (9th Cir. - May 3, 2017)

If it plausibly looks like a solicitation (or commission), quacks like a solicitation (or commission), and walks like a solicitation (or commission), then, by God, it's a solicitation (or commission).

Or at least that's true at the 12(b)(6) stage of the game.

So holds the Ninth Circuit.  In a huge putative class action in which plaintiffs allege that AARP, the nation's largest (by far) Medigap insurance "provider," actually "solicits" or receives a "commission" (of 4.95%) on the policies it markets.  Notwithstanding not being licensed to do so.

There are still several hoops the lawsuit has to jump through.  The filed rate doctrine, summary judgment, etc.

But the suit was dead as of yesterday.  As of today, it lives.

Tuesday, May 02, 2017

People v. International Fidelity Ins. Co. (Cal. Ct. App. - May 2, 2017)

I'm not a monster fan of the California Style Manual.  Though I readily concede that I don't have a good reason for that distaste.  I'm just used to the Bluebook, which is what's generally used both in federal court as well as in academia (as well as in numerous other state courts).  So having to navigate something different imposes a (very slight) degree of pain.

So when I read this opinion this afternoon, I wasn't sure if my critique was with the California Style Manual or elsewhere.  The relevant portion of which reads:

"Rather, Fidelity relied on inapposite out-of-state authority, namely: State v. Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048 (Gambino)."

Okay, I understood that the first case was from Kansas, and the second case was from the Seventh Circuit.  Both, obviously, are outside California.

But what about Gambino?  I get that it's a federal case, so not necessarily binding on the Court of Appeal. Nonetheless, I wanted to know where it was from.  Is this a federal case in California, or elsewhere?  The citation didn't tell me.  Neither in this place nor in the other portions of the opinion in which that case was mentioned.

If that was because the California Style Manual doesn't require a reference to the particular district court, well, so much the worse for the Manual.  Another reason to dislike it.

But then I looked it up.  And, as I suspected, the Style Manual does indeed say to include which district court in the citation.  So I resorted to Mr. Google.  Turns out it's the S.D.N.Y.

So the omission was Justice Nares', not the Manual.

Which is not to say how one cites a case is the most pressing issue in the universe.  Far from it.

But still.  Include the "S.D.N.Y."

Julian v. Mission Community Hospital (Cal. Ct. App. - May 2, 2017)

This is a lengthy opinion, especially for state court.  Even if you discount the fact that the margins are wide.  Fifty-eight single-ish spaced pages.

It's about a middle school teacher in the Los Angeles area who has problems and who ultimately gets placed on a 72-hour psych hold as a result of a pretty serious disturbance in the workplace.

Interesting facts.  Long, long legal analysis.

Monday, May 01, 2017

U.S. v. Velazquez (9th Cir. - May 1, 2017)

Guadalupe Velazquez is looking at a ton of time in prison.  A ton.  She's caught up in a huge drug conspiracy with weapons, etc.

That's no fun for anyone.  Least of all for her.

She has an attorney, but she ends up very -- very -- frustrated with him.  The government gives her a plea deal, but she doesn't want to accept it.  Because it's serious time.  And she doesn't feel like she has a good (or good enough) attorney.

The district court and the magistrate judge do what you often see in these types of cases.  They push Velazquez to accept her lawyer and take the deal.  Not hard.  Not relentlessly.  Softly.  But for those of us who've seen this happen -- in person and in court -- time and time again, it's not difficult to see the reality of what's going down.

Which is not to say it's necessarily reversible error.  And, IMHO, it's definitely not mean-spirited.  All involved -- from the lawyer on up -- sees someone who's her own worst enemy.  Who's going to lose a favorable plea deal as a result of her own personality and/or inability to deal with things as they are.

You see that time and time again.  Both on the criminal side as well as on the civil side.  People are people.  Litigation is stressful.  Especially when you're talking about having to admit a crime and then go to prison for a long time.  Even the most sophisticated of us might not make wise choices in such a context.  And criminal defendants are often far from exceptionally sophisticated.

So everyone tries to help her out.  And, ultimately, they get her to take the deal.  She's then sentenced to ten years in prison.

And promptly appeals.

The Ninth Circuit ultimately reverses and allows her to withdraw her plea.  When you read the opinion, you can see why.  She definitely had a bad relationship with her attorney.  For whatever reason (and, to be clear, I'm not at all necessarily blaming the lawyer).  There was time to remedy this situation, and the district court erred by not doing so.

Judge Kozinski writes a brief concurrence.  The first two sentences of which are definitely right.  "I join Judge Friedland’s thorough opinion without reservation. I write only to note that the judges below acted with what they believed to be Velazquez’s best interest at heart."  I'm totally sure that's correct.  I have zero doubt that everyone was trying to stop Ms. Velazquez from metaphorically shooting herself in the head.

Ditto for the next sentence:  "Even now, withdrawing from the plea may not be wise, but it’s Velazquez’s choice to make."  Absolutely right.

But the last sentence of Judge Kozinski's concurrence strikes me as somewhat strange:  "I hope and trust that the government will accept her choice with generosity and compassion."


Now, that's definitely a nice thing to say.  And it's sweet to see a judge try to put a thumb on the scale, ever so slightly, to try to convince the government to do what's right.  A little moral suasion is often a good thing.  No threat here.  Just an entreaty to do what's right.

Yet I wonder what motivated that line?

I mean, sure, at one level, I absolutely hope that the government treats Ms. Velazquez with generosity and compassion.  I hope that every criminal defendant receives such treatment.  From Ms. Velazquez on down.

But I wonder why Judge Kozinski singles out Ms. Velazquez.  The government has already treated her reasonably well, I imagine (at least from its perspective).  She's basically caught dead to rights and is looking at 40 years.  There's little chance she's actually going to get off at trial.  But they nonetheless offer her a deal where she might end up serving five and ends up serving ten.

Now, ten years is a lot of time.  But, at least under the guidelines, she's looking at way more.  But the government offers her a break in return for making things easier on it.  A big break.

To which Ms. Velazquez responds by making things complicated.  Very complicated.  And if she elects to withdraw her plea at this point, super complicated.

Okay.  Yep.  That's definitely her choice to make.  Her life, her call.

But at the point at which the government has to go to trial (or even defend an appeal), that's a hassle.  We understandably tend not to give people as good of deals at that point.

So if Ms. Velazquez elects, on remand, to obtain the "benefits" of her victory, and withdraws her plea and forces a trial, I'm just not entirely sure what screams out about this case that would make me want to remind the government that it's a great thing to go easy.  To be generous and compassionate.

Again:  Yes, they should do that.  Absolutely.  Don't insist upon 40 years just because you can.  That's not justice.

Similarly, don't retaliate.  Don't get angry and push for the maximum just because she made you go to trial (and beat you in the Ninth Circuit).  That wouldn't be right.

And, yes, this may well be one of those cases in which the underlying laws are incredibly, incredibly harsh.  Take that into account.

But understand that you get a plea deal in part because you're making things easier for everyone.  If you don't do that, don't expect the level of "generosity and compassion" you received before.

We should still treat you as a person.  We should still love you.  We should still seek justice, and only such punishment as would be just.

But you're going to serve more time.  I'm sorry.  That's just the way things work.

Even if that's something that's incredibly hard for you to internalize when you're stuck in an incredibly stressful situation with an attorney you don't respect and are looking at spending a decade in prison.

Friday, April 28, 2017

In Re R.S. and I.V. (Cal. Ct. App. - April 28, 2017)

Two opinions this morning.  Both involving juveniles.  Both from San Diego.  Both involving kids for whom, sadly, I feel this opinion may not be their only lifetime involvement with the criminal justice system.

Here's R.S.:

"On April 7, 2016, police officers detained R.S. at Crawford High School in response to a report that a nonstudent juvenile male was trespassing on campus. The officers took R.S. to the school's main office and questioned him. R.S. denied being on school grounds. He also repeatedly refused to identify himself and was "very loud and rude."

Because R.S. did not cooperate with the officers, the officers attempted to place him under arrest. As they did, R.S. "tensed up and clenched his fists and attempted to pull away." He yelled, "Don't fucking touch me Blood, get your hands off me!" R.S. struggled with the officers as they tried to subdue him. Eventually, the officers handcuffed R.S. One of the officers suffered a hairline fracture to his thumb during the struggle. School administrators reported that, before the officers arrived, R.S. had identified himself by a fake name and falsely claimed that he was a student at the school.

About two months later, R.S. and a juvenile associate were inside a Starbucks at 67th Street and El Cajon Boulevard, watching a 70-year-old man as he left the coffee shop. The man was carrying an iPhone 6. R.S. and his associate nodded their heads in the man's direction and then followed him outside "as if they were stalking him." R.S. and his associate then struck the man from behind in the back of his head. R.S. hit the man, using a "modified 'superman' punch" whereby R.S. jumped up and brought his fist down onto the man's head. The punch knocked the man to the ground, rendering him unconscious. . . . Police caught R.S. later that day. At the police station, R.S. at first denied punching the victim in the head, but later admitted to striking him. He conceded that he attacked the victim to steal his iPhone."

Less violent, but also troubling, is I.V.:

"In May 2016, 15-year-old I.V. became angry with his mother when she would not give him shopping money. He went into his bedroom in his grandfather's home, punched and kicked the walls, and threatened his grandfather when his grandfather tried to intervene. I.V.'s mother called the police, who arrived to find a broken lock on I.V.'s bedroom door, a damaged bed frame, holes in the wall, and damaged furniture. . . .

In late June, the probation department submitted a social study evaluating I.V. for the disposition hearing. The social study noted I.V.'s history of damaging property when upset and his mother's tendency to downplay his volatile behavior. . . . I.V. received failing grades in all of his classes in his first semester of high school, and he had a history of truancy. He was suspended for possessing marijuana and was subsequently expelled from his high school."

How depressing to have a fairly clear vision of where these children will likely end up.  Despite a wide variety of social efforts to make things turn out a different way.

Thursday, April 27, 2017

People v. Pou (Cal. Ct. App. - April 27, 2017)

The police get a report of a woman screaming inside a particular home and go to investigate.

When they arrive, the police see two men inside a house who seem to be making gestures like they are arguing.  No women, but okay.  [POSTSCRIPT - To be clear, the police see an argument, including some loud voices.] So they knock on the door -- aggressively, presumably -- and say they are the police and want to come in.

One of the guys inside the house eventually answers the door.  The police tell the guy that they want to "come in and look at the apartment to make sure everybody was okay.”  Which makes sense.

But the dude knows his rights.  It's his house.  He's not letting them in.  "Get a warrant."

The police officers, however, have other ideas.  We don't need no stinking warrant.  So they barge in, ostensibly under the "emergency aid" exception.  Because they say they reasonably think there might be a woman in there who's hurt and needs to get to the hospital ASAP.  No time to waste.

Once they're in the house, they indeed find a couple of women.  On a couch.  Unhurt.  Totally fine.

But that's no reason to leave, right.  There may be other women.  Everyone says there's no one else, but who knows?  Maybe someone's not telling the truth.

So they look everywhere in the house.  Just in case.

Where might this hypothetical woman be?  Pretty much anywhere, of course.  And the police say that one place she might be is in a particular closet.  They're not looking for drugs or anything.  No way.  They're just looking for a hypothetical woman who might be in a closet.

And then they just happen to spot drugs in that closet.  At which point people get arrested, charged, etc.

One more thing.  It's not even the right house.

The officers were told that the allegedly screaming woman was in the house that's across the street from 2314 Jupiter Drive.  That's what the Uber driver who complained said.  It's even in writing.

But that's not the house they barged into.  They barged into 2314 Jupiter Drive.  Not the house that had the allegedly screaming woman, which was across the street.

No matter all around.  Search was reasonable.  Conviction affirmed.

Wednesday, April 26, 2017

In Re B.M. (Cal. Ct. App. - April 20, 2017)

Is a butter knife -- the same one you probably used in the last 24 hours -- a "deadly weapon" in California?

The Court of Appeal has previously said "No."  The Court of Appeal in this opinion says "Yes," calling the prior opinion "wrongly decided."

See which opinion you think is correct.

I will submit one argument in favor of the former.  Apart from the fact that, when I think "deadly weapon," the phrase "butter knife" doesn't necessarily immediately come to mind.

According to the Court of Appeal's opinion, "as used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'"

The Court of Appeal's opinion repeatedly discusses whether a butter knife is "capable" of producing death or great bodily injury.  I assume it is.  So's a lego.  Stick it in the right -- or, more accurately, wrong -- place and, yeah, those things can indeed take you down.

But after defining the term, the Court of Appeal doesn't even once mention whether a butter knife is "likely" to produce death or great bodily injury.  The word "likely' doesn't even appear once.  Despite the fact that the "and" part of the definition suggests that a deadly weapon indeed needs to be both capable and likely to produce death or GBI.  Since "and" generally means and.

I think the "likely" part is whether the rubber meets the road.  Both here and generally.  A gun is a deadly weapon because it's capable and likely to produce seriously injury when you use it against someone.  A lego isn't because it's not.

And a butter knife?  Well, let me just say this.  I'd much rather have someone attack me with a butter knife than a whole, whole lot of other things.

And if someone told me that their neighbor had been attacked with a butter knife and made me bet one way or the other as to whether that butter knife caused him death or great bodily injury, I think I know on which side I'd place the wager.

Monday, April 24, 2017

People v. Vela (Cal. Ct. App. - April 24, 2017)

Here are the underlying facts from today's opinion:

"When they arrived in Santa Ana, Martinez drove around 7th Street’s territory. As they were cruising the area, they talked about Ochoa’s gun and were looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop because they saw two males (later identified as Martin Herrera and David Frias) whom they suspected to be rival gang members. Martinez made a U-turn and pulled into the parking lot of an apartment complex. When Martinez stopped the car, Vela got out and said that he was going to “hit these guys up.” . . .

Martinez stayed in the car and could not clearly see what was going on because there was a tree blocking his view. But Martinez was able to see some gesturing as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender. Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.

Vela and Ochoa immediately ran back to Martinez’s car and got in. Ochoa was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and leave. In an excited voice, Vela said, “Did you see those fools crying for their life?”

One victim was killed; the other survived.  Vela was sentenced to 72 years to life.  He was 16 at the time of the offense.

Here's the Court of Appeal's holding:

"In the published portion of this opinion, we conditionally reverse the judgment. Due to the electorate’s recent approval of Proposition 57, which emphasized juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in an “adult” criminal court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into account various factors such as the minor’s age, maturity, criminal sophistication, and his or her likelihood of rehabilitation.

We find that Vela is retroactively entitled to a transfer hearing because his case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge determines that Vela’s case should be transferred to a court of criminal jurisdiction, then his convictions and sentence will be reinstated. But if the juvenile court determines that Vela is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law."

Any doubt as to what the decision is going to be on remand?

I'd be glad for the victory in the Court of Appeal were I Mr. Vela, but I would simultaneously have a realistic view of the likely limited nature of today's victory.

John v. Superior Court (Cal. Supreme Court - April 21, 2017)

The California Supreme Court held long ago -- like, a year ago -- that the vexatious litigant statute doesn't apply to defendants who file an appeal when they've been sued (and lost) as a defendant.

Now, a year later, the Court revises and reposts its opinion to revise the counsel listing page.  As far as I can tell, the only change is to redact -- in big black marks on the last page -- the address of the vexatious litigant at issue, Aleyamma John.

Okay, I guess.  A little unusual.  It's not like the address gets published anyway.  Moreover, it's not like Dr. Google forgets.  It'll always be around.

Moreover, some might think that having the address float out there serves a public purpose.  If only because, after reading the opinion and underlying facts, I doubt that a landlord would be especially excited about renting to the vexatious litigant at issue -- something the landlord could learn about with a quick internet search.  So you might want to leave that address in, if only so someone looking up the person could make sure they have the correct "Aleyamma John".

Oh, and it's not like the address is really private information anyway.  It's not John's home address.  It looks like it's actually the address of the Alhambra Post Office -- i.e., a disguised P.O. Box.

Now, deleting the litigant's (apparent) home phone number; well, that just makes sense.  Not sure why it took a year for that to happen.  But okay.

Thursday, April 20, 2017

Jackson v. Mayweather (Cal. Ct. App. - April 19, 2017)

I'm confident that LA. attorney Michael Maroko cares more about the substance of this opinion than its caption.  Particularly since it concerns one of the firm's (many) high-profile clients; in this case, [litigation against] Floyd Mayweather, Jr.

Still, I'm confident that Mr. Maroko -- alongside his partner, Gloria Allred -- hope that the Court of Appeal spells the name of their firm correctly.  For the record, it's "Allred Maroko & Goldberg," not the "Allred Markoko & Goldberg" listed in the opinion.

Not the first time this has happened, I might add.  Either in the Court of Appeal or elsewhere.

POSTSCRIPT - Not surprisingly, Mr. Maroko's firm represented the woman suing Mr. Mayweather, not Mr. Mayweather.

U.S. v. Harris (9th Cir. - April 20, 2017)

Is this really right?

I mean, part of it seems right.  But I'm not sure about the very end.

Michael Harris stole some money and was convicted, so he's got a $640,000 restitution order against him.  Good luck getting him to pay much of it, though, since he's unlikely to have a great job or very substantial assets upon his release from prison.

He does, however, have parents.  Who established a couple of irrevocable trusts for their son.

Can the United States attach the trusts to satisfy the restitution order?

Well, not really.  The trusts are totally discretionary ones.  The trustees (the parents) don't have to distribute any money if they don't want to.  So you definitely can't grab the entire trust.

But what about the actual distributions to Harris?

That's what the government wants here.  They just want to file a lien on any future distributions.  So if Harris gets any money, the U.S. ends up with it (in order to satisfy the restitution order).

The trial court says that's fine, and Harris appeals.

The Ninth Circuit's per curiam opinion sounds mostly right to me.  It says, yeah, any distributions are totally discretionary, so they're not generally "property" of Harris that can be attached.  But the Ninth Circuit (rightly) also says that even though the trust says that distributions are entirely within the discretion of the trustees, under state law, that's not entirely true -- the trustees have fiduciary duties under the trust, and Harris (in turn) has the power to compel such distributions.  In the words of the Ninth Circuit:

"[D]espite the discretionary language of the trusts, California law grants Harris the right to compel distributions from the trusts, insofar as those distributions are necessary to fulfill the trusts’ purposes. Even if a trust confers “absolute, sole, or uncontrolled discretion on a trustee,” the trustee must “act in accordance with fiduciary principles” and must not act in bad faith or in disregard of the trust’s purposes. . . . Thus, even though the trust purports to grant the trustees absolute discretion over distributions, Harris can petition the probate court to ensure that the trustees’ exercise of that discretion is consistent with the trusts’ purposes."

Yep.  That sounds right to me.  Ditto for the Ninth Circuit's resulting conclusion that "Mindful of the rights granted to trust beneficiaries under California law, we hold that Harris’s interest falls within the federal definition of “property”" that can be subject to a lien.

I'm on board.  The Ninth Circuit's opinion seems logically true to me.  If Harris has the legal right to compel $X distributions from a trust, then that $X is "property" of Harris that can be attached.  Makes sense.

With the additional bonus that it helps stop circumvention of restitution orders.

But here's the thing.

Based on this conclusion -- which, again, I think is right -- the Ninth Circuit holds:

"In sum, we conclude that Harris’s interest in the trusts qualifies as property under the federal debt collection procedure that applies in this case. The government is not attempting to compel distributions from the trusts. However, any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."

Wait.  Not so fast.

I agree that Harris has the right to compel the trustee to distribute $X from the trust.  Now, we don't exactly know what $X is right now, since neither Harris nor the government have moved to compel such a distribution.  If the trust contains, say, $500,000, maybe Harris is entitled to a distribution of $10,000 a year from it, or $1,000, or maybe $0.  Depends on what the trust says, its purpose, the needs of Harris, etc.  But, yes, the $X that is Harris' enforceable "property" in the $500,000 trust is subject to a lien.

But that's not what the Ninth Circuit does.

The Ninth Circuit, like the trial court, didn't make $X subject to a lien.  It made ANY distributions from the trust subject to a lien.  Even those greater than $X.

Worse, it expressly held that "any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."  So, by definition, ALL distributions from the trust to Harris will be intercepted and used to satisfy the restitution order.

That remedy, in my view, doesn't at all follow from the court's analysis.

Harris owns $X.  That's it.  That's his only "property". You can put a lien on that.  But you can't put a lien on anything that's in excess of $X.  If I own $10,000 of a $500,000 trust, you can take $10,000 to satisfy a restitution order.  But if the trust distributes, say, $30,000, you can't take the whole thing, as only $10,000 of that is "my" property subject to a lien.  You don't have a lien on the other $20,000, as that's someone else's property.  (At least until it becomes mine; once it's in my bank account, maybe you can seize it at that point, but that doesn't permit the initial lien authorized here.)

So I have no problem with saying that because Harris owes $X, the government can seize $X.  Or to say the same thing without symbols, because Harris has a right under state law to a certain minimum distribution from the trust, the government can seize that minimum distribution  But it can't seize anything beyond that -- yet that's precisely what the courts here permit.  (An analogy to IRAs springs to mind.  There may be required minimum distributions -- RMDs -- that you can seize, but that does not permit you to seize the entire IRA, or any distributions in excess of the RMD.)

Now, I admit, things can get complicated here, since we don't know exactly what $X is in the present case.  Some could easily say, with some persuasive effect:  "Well, that's the government's burden, since it has the burden of showing both the existence and extent of its purported lien.  So if it wants a lien, it has to show what the legally compelled distribution is, and that -- and only that -- it can seize."

I'd be fairly sympathetic to such a view.

But I'd also understand a contrary view that says:  "You know what?  Since we don't know how much $X is, and since this is a restitution order, maybe I'm going to allow a 'provisional' lien on any and all distributions to Harris, since they may (or may not) be part of $X.  So we'll intercept them and then the parties can litigate later on whether part of the distribution was in excess of $X."

I could find that plausible.  I might need to know a bit more about trusts and remedies to express a complete view as to which of those alternatives seems doctrinally right.

But here's what I do know.  Just because you have a lien on $X doesn't mean you get to take $X + $20,000 and apply it to a restitution order.  Because that extra $20,000 is someone else's property, since it's not the $X to which the relevant person is actually entitled.

State law, for example, requires me to do X for my kids.  Feed them.  Clothe them.  Do some other stuff for them.  That's the minimum.  They're entitled to that, so that's their "property" right in some sense.  So that you can attach.  But if I do anything else for them -- things that I'm not required to do -- that's a gift.  You can't attach a preexisting lien to that.  Since that gift isn't their property.

So too here.

Everything in excess of the required minimum distributed from the trust is a gift -- a total gift -- from Harris' parents to Harris.  You can't place a lien on gifts before they're made.  And that's true whether the gift's made outside of a trust or inside it.  Just like the government would not be entitled to an order that says that any birthday gift of $5 that I make (or Harris' parents make) to Harris is subject to a preexisting lien and seizure, ditto for the excess (extra-legal) distributions from the trust.

So I follow the Ninth Circuit's analysis.  And think it sounds right.

But the court's conclusion from that analysis, and the order it affirms, nonetheless seems off, and not justified by the underlying legal principle.

Wednesday, April 19, 2017

Quigley v. Garden Valley Fire Protection District (Cal. Ct. App. - April 19, 2017)

Nothing from the Ninth Circuit today.  Thus far, from the Court of Appeal, only this depressing story:

Rebecca Quigley is seriously injured when she's part of a firefighting team and is run over by a truck while she's sleeping.  Seriously.  ("The truck crushed plaintiff’s chest, ribs, lungs and left shoulder, and it fractured her back. The accident permanently damaged her heart, lungs, and eyes.")  She sues, but the trial court holds that the defendants are immune, and also that the "firefighter's rule" bars recovery as well.

The Court of Appeal affirms.

Immunity is a funny thing.  (Not "ha-ha" funny.)  Injuries that would get you millions of dollars in compensation if the result of X's conduct get you absolutely nothing if those same acts are performed by Y.

Or, as here, less than nothing.  Since, adding insult to (literal) injury, the Court of Appeal orders Ms. Quigley to pay defendants' costs.

Tuesday, April 18, 2017

McDermott Will & Emery LLP v. Superior Court (Cal. Ct. App. - April 18, 2017)

You've got to read today's privilege opinion from the Court of Appeal.  And I say that despite the fact that I fully realize that it's 49 pages.  Not even counting the dissent.

It's a case in which Gibson Dunn gets disqualified for using a document that's privileged (even though Gibson thought the privilege had been waived) that was inadvertently produced by the other side -- not in litigation, but elsewhere.

As I said, there's also a dissent.

The opinion tells you what not to do -- at least from here on out -- when you see a document that might be privileged and inadvertently produced.  Particularly when, as here, the other side tells you that it's privileged and inadvertently produced.

Even if you don't agree.

Let Gibson Dunn's mistake be a lesson to everyone.

Don't get DQ'd.

Seriously:  A really important opinion.

Blixseth v. Yellowstone Mountain Club (9th Cir. - April 18, 2017)

Attorney Michael J. Flynn gets sanctioned by the Ninth Circuit.  A lot.  Under both FRAP 38 as well as under Section 1927.  For frivolous and bad faith litigation.  That's not good.

But that's not the end of things.  The Appellate Commissioner then has to figure out precisely how much Flynn has to pay.  And does.  At which point Flynn continues to object.

For a sense of Flynn's approach to the appeal, I'll just quote from the last three sentences of the opinion.  Which, not surprisingly, affirms the decision of the Appellate Commissioner:

"Flynn’s requests in the motion and amended motion for reconsideration for recusal of this panel, appointment of a new panel, conversion of this matter to a criminal proceeding, transfer of the matter to the United States Attorney, and holding of the awards in abeyance are denied. Flynn’s suggestion for reconsideration en banc is rejected on behalf of the Court. [Cite]. No further filings by Blixseth or Flynn will be entertained in this closed appeal unless specifically requested by further order of the court."

Sometimes it's healthier just to let things go.

Monday, April 17, 2017

People v. Becerrada (Cal. Supreme Court - April 17, 2017)

Here's a depressing way to begin a post-Easter week:

"A jury convicted defendant, Ruben Becerrada, of the first degree murder of Maria Arevalo with the special circumstances of killing a witness, murder in the commission of kidnapping, and lying in wait. As to the murder, it found true a weapon enhancement allegation. It also found defendant guilty of rape, forcibly dissuading a witness, and kidnapping."

Needless to say, the jury imposed the death penalty, and the California Supreme Court unanimously affirms the judgment.

The actual details of the crime, and the horrific domestic violence that Ms. Arevalo endured over a long period of time, are even more chilling than the one-paragraph introduction at the outset of the opinion.

Thursday, April 13, 2017

Davis v. U.S. (9th Cir. - April 13, 2017)

"In this appeal, we consider whether a federal agent is entitled to qualified immunity from suit for detaining an elderly woman in a public parking lot for two hours, while she stood in urine-soaked pants, to question her, incident to a search, about her possession of a paperweight containing a rice-grain-sized bit of lunar material."

Yep.  Those are some bad, bad facts for the government.

And since the opinion begins with those particular facts, you can probably already figure out which way the panel (unanimously) comes out.

Sumrall v. Modern Alloys (Cal. Ct. App. - April 13, 2017)

I have a hard time understanding this opinion.  And I mean that literally.  I have difficulty even getting a basic understanding of what the Court of Appeal is trying to say.

It's a "coming-and-going" rule case.  An employer isn't liable for things you do on your commute; e.g., from your home to your work.  On the theory that where you live is your choice and benefits "you", not the employer.  (Put to one side whether that makes economic sense.  It's the law.)

So if you drive from H (home) to W (work), any accident on the way is on you, not your employer.  Ditto for W to H.

Conversely, if you're driving for work, that's on your employer.  So W to W is on the employer.

The difficulty here arises from the fact that "W" isn't totally clear.  It's a construction company, and there's a company "yard," where the employees meet before work, and then everyone drives (often a company vehicle" from the yard to the actual worksite.  (For what it's worth, the employees don't get paid until they're at the worksite.)

So the employees here go from H to Y to W.  And the accident happens on the way from H to Y.

So what's the rule?

The Court of Appeal says that it's a genuine issue of material fact, since it's unclear whether Y amounts to W.

I don't get it.

Clearly Y is part of the employee's work.  It's the location of the company.  The employee is required to be there.

If that's the case (and it clearly is), then it seems to me that the Yard unambiguously counts as the workplace.  Hence the coming-and-going rule applies.

The Court of Appeal seems to think that there's only one W.  But I don't get that.  There can clearly be more than one places of work.  If I tell you to be at one worksite at 8:00 a.m., and then to drive from there to another at 11:00 a.m., both of those places are W's.  When you drive from home to the first W, that's on you.  When you drive to the second -- not from your home -- that's on me.

The point is that you're driving FROM HOME.  At the direction of your employer.  That's what happens in the present case.  Home.  To do some work.  Hence the coming and going rule.

Sure, there may be some variables.  When you're "on call" or things like that.  But I don't see any of them coming into play here.

I'm sure my analysis is overly simplistic.  I'm confident that the Court of Appeal perceives some complexity that I don't see.

But I think that when you're going from your house to a company-owned yard, and from there to a worksite, the answer just seems straightforward to me.

Wednesday, April 12, 2017

In Re J.L. (Cal. Ct. App. - April 12, 2017)

This one probably should be published.  Which is what the Court of Appeal decides.  Albeit belatedly.

When your case is (as here) very similar to another published opinion by the Court of Appeal, when you're going the other way than that other (published) opinion, and when your opinion critiques the reasoning (or lack thereof) of that prior opinion, then, yeah, you should published your opinion.

Or at least that's my view.

Boling v. PERB (Cal. Ct. App. - April 11, 2017)

You wouldn't ordinarily think that a City was compelled to meet and confer with one of its unions over a citizen-sponsored initiative that the voters adopted, or that the failure to so meet and confer invalidated the resulting ordinance.

The Public Employment Relations Board, however, thought that this was precisely the case.

The Court of Appeal disagrees.

Just because a City helps out with an initiative doesn't mean that the "City" was the one who did the thing.  So no obligation to meet and confer.

Tuesday, April 11, 2017

People v. Douglas (Cal. Ct. App. - April 11, 2017)

Sometimes your senses get a bit dulled from reading the same basic criminal fact patterns again and again.  Defendant arrested for drug possession.  Defendant pulls out a gun and commits a robbery.  Defendant assaults a person in a bar.  Defendant commits domestic violence.  Defendant commits a robbery or assault or murder to "represent" his gang.

Every fact pattern is somewhat unique, of course.  But there are definitely patterns.

But then, once in while, the Court of Appeal publishes an opinion that mixes things up a bit.

So today's published opinion begins:

"After defendant Brady Dee Douglas’s former boyfriend, a male prostitute, told him Jeffrey B. had shorted him money following a prearranged sexual encounter, defendant and codefendant Clifton Sharpe tracked down Jeffrey and demanded the unpaid money. During a high speed freeway chase, Jeffrey swerved his car into defendant’s vehicle after defendant pointed a gun at him, shooting several times. Jeffrey was able to escape unharmed."

Yep.  That's a little bit different.

There's also some great doctrinal stuff in the opinion about what you do with mixed-motive Batson challenges, particularly as applied to prospective gay jurors in a case like this one.  Definitely worth a read.

And not your garden variety fact pattern.  If only because we don't have all that many freeway shootings as we did back in the old days.  Or at least not typically for reasons like this one.

Monday, April 10, 2017

Shaw v. Superior Court (Cal. Supreme Court - April 10, 2017)

Of course a trial court's erroneous decision holding that a party isn't entitled to a jury trial should be reviewable (in an appropriate case) by an extraordinary writ.  We shouldn't force the parties to waste money (or allow the losing party to sandbag) by making them participate in a meaningless trial.

Kudos to the California Supreme Court for unanimously overruling its prior precedent to the contrary.  It's good for the law to be clear (and right).

If only so lower courts won't feel compelled by precedent to do the wrong thing.

Friday, April 07, 2017

People v. Sharpe (Cal. Ct. App. - April 7, 2017)

This opinion is devastatingly concise.  It rejects defendant's arguments on appeal quickly, easily, and with the precision of a surgeon.

The basic underlying facts are that some people crept into an outdoor marijuana garden in the middle of the night, the owner confronted them, the invaders fled, and the owner ran after them.  Here are the arguments and the court's rejoinder:

"Defendant claims that, although there was evidence of the use of force (knocking Smith down) and fear (in response to brandishing of the gun), there was no evidence that defendant or his coperpetrators were in the act of taking the marijuana or attempting to flee with it when force was applied or fear was caused. We disagree. The men were in the marijuana garden cutting the marijuana. They had already stacked some of it outside the garden. When Smith confronted them, they ran out of the garden and down the driveway. In the darkness, Smith could see that they had something in their hands, yet he testified that he did not see marijuana in their hands. In the morning, Smith saw that there were pieces of marijuana scattered down the driveway. Despite Smith’s inability to identify what was in the men’s hands as they were fleeing, it was reasonable for the jury to infer from the circumstances that the men had marijuana in their hands. Based on this inference, there was sufficient evidence that defendant and his coperpetrators used force and fear as they took and fled with the marijuana, thus supporting a robbery conviction.

Defendant argues that “the circumstantial evidence suggested only that the perpetrators had been cutting and piling up marijuana to steal it, but from the moment Smith interrupted the theft their only aim was to get away.” However, as noted above, the circumstances also suggested that the perpetrators were carrying marijuana down the driveway.

Defendant asserts that the sheriff’s deputy did not see the marijuana scattered down the driveway.  But Smith testified that he saw it.

Defendant also asserts that precisely where in the driveway the marijuana was found was never established. But Smith testified he saw “little pieces of marijuana cascaded down [the] driveway like bread crumbs.”

Defendant claims that there was no evidence concerning how or when the marijuana was deposited on the driveway. But a reasonable inference from the evidence is that the marijuana on the driveway was deposited there as the men fled.

Defendant argues: “It would be rank speculation to leap from the evidence of marijuana pieces on the ground near the garden gate and plant pile (where pieces would have naturally fallen as the perpetrators hacked down 11 plants and their bamboo framing and piled up the marijuana) to the conclusion that some marijuana bits on the ground must have landed there because the perpetrators, in their rush to flee after being interrupted by Smith, were attempting to carry away marijuana but dropped some.”

This argument does not give the evidence its due. Smith testified that there were pieces of marijuana scattered down the driveway. That there were also marijuana pieces by the pile of marijuana does not mean that the jury was constrained to believe that the spread of marijuana was limited to the pile by the garden or immediately around it.

Since the jury could reasonably infer that the perpetrators were carrying marijuana as Smith confronted them and chased them down the driveway, the evidence was sufficient to support the robbery conviction."

Sounds right to me.

Thursday, April 06, 2017

People v. Truong (Cal. Ct. App. - April 5, 2017)

This opinion ends not with a bang, but with a whimper.

The final argument raised by appellant's challenge to her conviction is her claim that the trial court should not have admitted the evidence about the credit limits of the credit cards she was alleged to unlawfully possess.  The opinion deals with this contention in a single paragraph at the end.

On the merits, Justice Lui seems entirely right that any error, even if it existed, would be harmless.

But there's no factual background about what evidence what admitted on the credit limit issue, or for what alleged purpose.  The reader is basically left entirely in the dark about what we're talking about.

The opinion also, strangely, feels the need to drop a footnote that defines what a credit card is.  And a long footnote at that:  "A credit card is generally defined as a “[s]tandard-size plastic token, with a magnetic stripe that holds a machine readable code. Credit cards are a convenient substitute for cash or check, and an essential component of electronic commerce and internet commerce. Credit card holders (who may pay annual service charges) draw on a credit limit approved by the card issuer such as a bank, store, or service provider (an airline, for example). Cardholders normally must pay for credit card purchases within 30 days of purchase to avoid interest and/or penalties.” ( [as of Apr. 4, 2017].)

Is that really necessary?  And, if it is, can we really not find a better source for this information than from an internet dictionary -- indeed, one I've never even heard of before?

Plus, the opinion also asserts that the error was harmless because "Credit cards, by definition, come with credit limits."  Again, I agree that any error would be harmless, and I also agree that most credit cards do indeed come with credit limits.

But it's actually untrue that "by definition," credit cards come with credit limits.  If I want, I can absolutely issue a credit card with no limit.  Indeed, some issuers purport to do precisely that.  that may or may not be a wise practice.  But it's not "definitionally" true that credit cards inherently have a credit limit.  If I want to say I'm liable for whatever amount the individual charges, I can do that.  No problem.  Not smart.  Maybe practically difficult to enforce any resulting liability if the user then runs up $1 trillion in charges buying, say, Russia.  But I can do it if I want.  That's still a credit card.

A funny way to finish up the last substantive paragraph of an opinion.