Thursday, May 24, 2018

In re Ruedas (Cal. Ct. App. - May 24, 2018)

I haven't read one of these in a while.  But they're always fun to see.  Opinions that, from the very first paragraph, jump out at you and let you know full well who's writing it even before you reach the end where the author of the opinion is listed.

Today's opinion begins:

"The jurisprudence of retroactivity is a labyrinthine edifice of both critical importance and daunting complexity. It is located at one of those intersections of freedom, justice, and pragmatism that are all too common in the criminal law, and make its practice a humbling experience. In this case, we are asked to offer our best judgment about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) is prospective or retroactive. We do so with a caution bordering on apprehension, but we arrive at a firm conclusion the rule is prospective only."

Now, to be brutally honest, I found the first line to be slightly more linguistically complex than I typically prefer.  But the rest of the paragraph is a classic.  And made me know from the very outset that I was reading an opinion by this person.

P.S. - Can I just say:  What a day.  Thus far, the Court of Appeal and California Supreme Court have published nearly a dozen different published opinions.  Which collectively total over 400 pages of text.  Slow down!  Spread it out!  Some of us have other work we gotta get done today as well.  (And the day's not even over; maybe the Court of Appeal will crank out some other opinions later today as well.  Ensuring that, yep, I'll do virtually nothing today except pick up my kids from school and read judicial opinions.)

Multani v. Knight (Cal. Ct. App. - May 24, 2018)

I wish I'd have thought of this as a question for a first year law school exam!  It's a great one.

Justice Willhite raises the issue concisely:

"The primary question presented in this case is: Can a landlord be held liable to a commercial tenant for damage to the tenant’s property resulting from an alleged sewer backup when the tenant (who had a month-to-month tenancy in the premises after her lease expired) had stopped paying rent, had been served (but failed to comply) with a three-day notice to pay rent or quit, and had been named in an unlawful detainer action filed before the alleged sewer backup occurred?"

Oooh!  Good one.  I could definitely see law students coming up with good arguments on both sides.  Ditto for actual lawyers.

Here's how the Court of Appeal answers the question:

"We find that the month-to-month tenancy was terminated by the tenant’s failure to pay rent coupled with the landlord’s filing of the wrongful detainer action. Therefore, as of the filing of the wrongful detainer action, the tenant was a tenant at sufferance who had no lawful right to possession of the premises. Accordingly, the landlord is not liable for damage to the tenant’s property left on the premises when that damage was not caused by the landlord’s intentional act or negligence."

Notice the distinction:  It's not the nonpayment of rent that absolves the landlord from liability, but only the filing of the lawsuit (plus nonpayment) that creates the absolution.

You could see a variety of other possible resolutions, from the landlord still being liable (since the tenant was still in possession) to the landlord not being liable at all (because the tenant had breached by nonpayment) to the landlord not being liable only upon the date the unlawful detainer action was adjudicated in the landlord's favor.  But the Court of Appeal draws a different line.

The question would still be a good one on an exam.  But since the Court of Appeal has already given a pretty good answer, we'll now have to find another one.

Maybe:  "Comment upon and critique the line drawn by the Court of Appeal's opinion in Multani v. Knight?"

Wednesday, May 23, 2018

J.N. v. Superior Court (Cal. Ct. App. - May 23, 2018)

You could see why the trial court thought it made sense to charge the defendnat in adult criminal court.  He's twenty years old.  He's charged with murder.  The juvenile court would lose jurisdiction over him entirely in three short years.  And he's got a prior record.  Given those facts, you'd facially think it makes total sense to put him in adult court.

But read Justice O'Leary's opinion.  This is not the usual case with those types of facts.  You can see why the Court of Appeal comes out the other way, holding that the guy should be in juvenile court.  So holding even though the standard of review is "substantial evidence" and abuse of discretion.

A very comprehensive opinion.

Monday, May 21, 2018

Recchia v. L.A. Dep't of Animal Svcs (9th Cir. - May 1, 2018)

What I remember about my first-year property class in law school largely surrounds issues involving wild animals.  Who owns them, blah blah blah.  I distinctly remember thinking that this seemed to be an immensely non-practical way to begin law school.  Who really cares who owns a particular fox?!  Given that there aren't a lot of wild foxes running around San Diego -- or (at the time) Cambridge -- it was difficult for me to perceive any practical value in learning the detailed rules about who can own a wild animal running around.

Clearly, I was wrong.

This Ninth Circuit opinion is about the Fourth Amendment validity of a seizure in which the L.A. Department of Animal Services impounded a dozen or so pigeons that a homeless person kept in cages on the street and then euthanized them because they were in really bad shape.  (For example:  "One pigeon had a baseball-sized tumor protruding from its abdomen and extensive feather loss. Another pigeon had tremors and continually walked in circles. Another pigeon had a shriveled, non-functional right eye. Still another pigeon had contorted legs, feather loss, and could not walk or fly. Some birds had wobbling necks or necks in unusual positions. Several birds were missing toes or toenails, or had very long toenails that were curled in circles.")

The constitutional issues are interesting for sure.  But there's a particular footnote that I thought to be especially fascinating.  And that took me back to those halcyon days of Property.

The text of the opinion says:  "Defendants have agreed for the purposes of this appeal that Recchia had a property interest in his pigeons."  At which point Judge Gould drops the following footnote:

"Specifically, defendants have agreed “[f]or the purposes of this appeal, there is no dispute there can be some property interest in pigeons.” Accordingly, here we treat Recchia as having a property interests in the pigeons. However, in a case where the issue was properly raised for decision, there would be a substantial issue whether a person can have a property interest in wild animals such as pigeons, raccoons, or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the taking of a wild bird except as provided for in the California Fish and Game Code)."

Dude!  It's like it's 1989 and I'm back in Mary Ann Glendon's Property class.

Good times.

Friday, May 18, 2018

Easley v. City of Riverside (9th Cir. - May 18, 2018)

I agree with the Ninth Circuit that it's not improper for a district court to demand that the parties brief qualified immunity even though the defendant hasn't elected to file a motion on the issue.  Though it's certainly unusual.  Typically, we let the parties take the lead on what motions and defenses they elect to advance.

But I do wonder about the substantive content of the majority opinion, to which Judge Pratt (sitting by designation from Iowa) dissents.  Yes, the person who was shot was fleeing police officers, but he wasn't even suspected of a serious crime.  Yes, the person who was shot also had a gun on him, and that's incredibly serious.  When a police officer's chasing a person and that person has a gun, you can see why the police might potentially shoot him, in (at least perceived) self-defense.

But here's the thing.  As the victim was running, he grabbed at his waistband, pulled the gun from his pants pocket, and threw the gun away.  Two to four seconds later, the police officer shot the victim in the back and in his right arm.

The majority says that even "taking th[ose] facts and allegations in the light most favorable to [the victim], [the police officer's] use of deadly force was objectively reasonable."  The dissent disagrees.

If the police officer shot the guy the instant he was throwing the gun, I could see how one might find that reasonable (if mistaken).  Maybe the officer misperceived the guy starting to throw the gun as an attempt to turn and shoot.

But when a guy on the run throws something away, and then four seconds later the officer shoots him, that seems significant to me.  Four seconds is a long time.  One.  Two.  Three.  Four.  It seems strange to say that after a guy throws a gun away, after it's crystal clear there are no shots fired, and after the guy simply keeps running after throwing a gun away, an officer can wait four seconds and then shoot the guy, no reasonable person in the universe could say anything other than "Yeah, that seems right to me.  Reasonable."

Admittedly, it's the heat of the moment.  Hindsight's 20/20.

But shooting a guy 50 seconds after he throws a gun away seems totally wrong.  Ditto for 20 seconds.  Four seconds?  What's the right line?  I'm not exactly sure.

But I wonder if a reasonable person couldn't conclude that the line is more like 1 or 2 seconds.  One one thousand, two one thousand.  Enough time to perceive that, yeah, the guy's not actually shooting at you, so don't gun him down.  And that four full seconds is too long.

So I'd definitely get granting summary judgment if the guy was shot a second or two later.  But four seconds, to me, is in a much less clear gray area.  Perhaps sufficiently gray that reasonable minds may in fact disagree, and in which I'm not completely certain that my own belief on the subject was conclusively the correct one.

Thursday, May 17, 2018

Benaroya v. Willis (Cal. Ct. App. - May 17, 2018)

The holding of today's opinion both is important and can be concisely summarized.  Whether a party who didn't sign an arbitration agreement can nonetheless be compelled to arbitrate (e.g., as an alter ego, as estoppel, etc.) is an issue for the court, not the arbitrator.  And it doesn't matter that JAMS rules say the contrary.  The court decides.

Plus, it's a California case, which means there's always the possibility of celebrity involvement.  As the caption here reflects.  The "Willis" is Bruce Willis.  And he gets a $5 million-plus arbitration award against a producer, but it only survives against the company.  Good luck collecting on that.  Although the arbitrator held that the wealthy individual behind the company was also liable, we'll need a court to decide that issue.

So no immediately forthcoming check for Mr. Willis.  The exact opposite of Yippie ki-yay for him.

Wednesday, May 16, 2018

U.S. v. Briones (9th Cir. - May 16, 2018)

You gotta be thinking this one may go en banc, no?

Not because there's a circuit split, or it's a death penalty case, or anything like that.  It's not.  It's just a fact-intensive case about a single defendant.  It doesn't even really raise any substantial issues of law either.  It's instead merely about whether the facts and transcript below demonstrate sufficient support for the life sentence imposed by the district court below.  Period.

That's not something that one would normally think has even a shot at en banc review.  It affects only one person, and one person only.

And yet I think the thing may perhaps go up.

In part because it's a life sentence for someone who was a minor (seventeen) at the time he committed the (admittedly terrible) crimes at issue here.  Which means, in the federal system, that he's going to almost certainly spend the actual rest of his life in prison for something he did as a kid.  ("Because the federal system does not permit parole or early release from life sentences, see 18 U.S.C. § 3624, Briones’s sentence is effectively for life without the possibility of parole.")

Normally, that wouldn't matter.  We lock up kids forever plenty of times.  But pretty much everyone seems to agree that this case involves someone who'd far from the hardened, unreformable criminal that's the stereotype of someone we put in prison forever.  He's now been in prison for 20-plus years, and his conduct for the past two decades has been completely unblemished by any misconduct.  As the majority opinion notes, the evidence below demonstrated that "in all his time in prison he had not been written up once for a disciplinary infraction, that he had no gang involvement, that he had been working continuously, and that he married his girlfriend with whom he has a now-adult child, and that he sees his wife regularly."  And even the government recognized that "Briones was 'really doing well in prison,'” as opposed to what you might well initially think of someone with his history.

I hear you.  "So what?  He committed serious crimes (albeit as a juvenile), and the district court looked at the evidence and sent the guy to prison forever.  That's life.  At least in our justice system.  Maybe right, maybe wrong.  But hardly subject to en banc review.  He'd never get the votes."

My thought too.  At least initially.

But the lineup of the panel may end up persuading me the other way.  The majority opinion is written by Judge Rawlinson.  That may suggest that there are a ton of judges on the Ninth Circuit who might well see the case the same way.  Though the judge that joins her is Judge Ezra, sitting by designation from Hawaii, so you don't know for sure.

But dissenting is Judge O'Scannlain.  Hardly some shrinking violet let-em-all-out leftie.  Exactly the opposite, even.  If even he thinks that the right result is to remand for resentencing, that might well suggest that one might potentially persuade other folks that the right result here is not to lock this person up for the entire remainder of his life.

Now, look.  This is not the "old days" of the Ninth Circuit.  Many of your heartfelt lefties in criminal cases are now gone.  Some of the strongest voices for correcting serious individual injustice through the en banc process are now silent.

But not all of them.

The prospect of compelling someone to die in prison when they might well be a "different person" from the one who committed the heinous crimes of a teenager might perhaps prompt a serious look at this case.  If only knowing that even some ordinarily hard-core people (like Judge O'Scannlain) may be perhaps sympathetic to the cause -- not in general, but in this particular case.

We'll see.  It'll be a good test case about the contemporary composition of the court, and it's desire (or willingness) to do justice in a given case.

Yeager v. Holt (Cal. Ct. App. - May 16, 2018)

How the mighty have fallen.

He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.

But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:

"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.) We deny Holt’s requests for judicial notice of other cases declaring one or both of the Yeagers to be vexatious litigants, as that material was not before the trial court when it made the order under review."

You'd hope that General Yeager would get the message on remand and drop the suit, notwithstanding winning the appeal.

Though I fear that won't be the case.

(And who knows.  Maybe it's not even his fault.  He's 95 years old.  He was married to his wife Glennis for 45 years, until she died of ovarian cancer in 1990.  He then married Victoria D'Angelo, who's 41 years younger than him, and vociferous litigation between the couple and Chuck's family promptly commenced.  His wife Victoria is also a party to the present action.  Victoria and Chuck are both now on the vexatious litigant list.  Maybe it's all the fault of the 95-year old.  Maybe not.)


Tuesday, May 15, 2018

Huang v. Hanks (Cal. Ct. App. - May 10, 2018)

A lawsuit against Tom Hanks!  That's gotta be interesting, right?

Wait.  It's an appeal that's consolidated with 30 other cases as well.  One of which is against Britney Spears!  Super exciting!

There's more!  Another case against Danny DeVito.  Another against Drew Barrymore.  Stallone.  Zuckerberg.  Spielberg.  It's a who's-who of Hollywood.  You're no one if you've NOT been sued by Han Jing Huan.

Except for the fact that he's now on this list.  And loses.  Again.

Monday, May 14, 2018

Alexander v. Scripps Memorial Hospital (Cal. Ct. App. - May 11, 2018)

This opinion primarily concerns a variety of technical and procedural issues, but the underlying facts present a difficult moral quandary.  What should a hospital do when someone's obviously terminally ill -- days from dying -- but has expressed in writing that she wants all aggressive measures (CPR, etc.) done to her in an effort to preserve her life?

On the one hand, what she says goes.  It's her life.  If she wants CPR, she gets it.  If she wants to have medical procedures done, fine.  That's what we mean by autonomy.

On the other hand, are doctors and other medical professionals morally required to do things that they are certain will only cause more pain and suffering?  Pounding on a chest or cutting open a patient who's in the terminal stages of cancer (with metastases everywhere) when all that would do is to keep a minimally conscious patient alive and in constant pain for another couple of days?  What if they think that violates their own oath to "do no harm"?

Yet doesn't it just seem wrong to cut down someone's nutrition in their feeding tube because it's doing more harm than good?  How you balance autonomy vs. other interests seems incredibly tough to me in this context.  Particularly when someone is literally days away from what we know is certain death and is in both pain and minimally aware.

One thing I know for certain.  I'm glad that the graduate school I attended was law rather than medicine.

Thursday, May 10, 2018

Strategic Concepts LLC v. Beverly Hills USD (Cal. Ct. App. - May 10, 2018)

I assume that the Beverly Hills Unified School District isn't completely impoverished.  Still, this is absurd.  It personifies everything that some people think about government contracts:

"Karen Christiansen was employed as director of planning and facilities for the Beverly Hills Unified School District (District). Among her duties Christiansen administered the planning, construction, and maintenance of the District’s school facilities. She received a salary of $113,000 per year plus a $150 per month automobile allowance. Her written employment agreement ran from February 2005 through June 2007.

In 2006, Christiansen lobbied District officials to change her position from an employee to a consultant. A former member of the Board of Education (Board) testified, “Ms. Christiansen lobbied hard to move from the director of facilities and planning to consulting status.” In June 2006, Christiansen entered into a new three-year contract with the District terminating her status as an employee and naming her a consultant. The new contract, however, did not change her duties. . . .

Pursuant to the contract, Christiansen’s two minor children were considered children of a District employee for the purpose of attending school in the District. Christiansen was allowed to continue her use of the District’s email. . . . The contract set Christiansen’s compensation at $160 per hour with a maximum compensation of $170,000 per year. . . . Christiansen formed Strategic Concepts, LLC (Strategic), of which she was the sole owner. In early 2007, Christiansen assigned her consulting contract to Strategic. . . .

McVeigh and Assistant Superintendant of Business Services Cheryl Plotkin were required to review and approve Strategic’s invoices. McVeigh described her relationship with Christiansen as “friendly, friends.” Plotkin frequently socialized with Christiansen. She attended parties at Christiansen’s home. They went on two pleasure trips. At Plotkin’s request, Christiansen obtained tickets to a show in Las Vegas for Plotkin and her husband. They reimbursed her. Christiansen hired Plotkin’s daughter to work for Strategic.

In spite of the $170,000 per annum contract limitation, Strategic’s invoices were approved and paid in the following amounts: $253,520 in 2006; $1,313,035 in 2007; and $1,390,804 in 2008. No one from the District alerted the Board about the over-payments. The invoices simply appeared on the Board’s “consent calendar”; that is, items that the Board does not usually review on an individual basis.

When Christiansen discovered her contract and payments were being questioned by the District’s Citizens’ Oversight Committee, she emailed Plotkin: “Let’s just say that the contract was developed by your attorney . . . . Please shut this down fast.” . . .

Christiansen’s friend was the District’s counsel, David Orbach, and his partner, David Huff. Christiansen, Orbach and Huff were among a group of friends who often met for drinks after work. In emails Orbach referred to Christiansen as “my queen” and she referred to him as “my prince.” Christiansen sent Orbach and Huff an unsolicited picture of herself in a black bikini. The attorneys and Christiansen exchanged a number of emails containing sexual innuendo.

On June 3, 2008, the District and Strategic entered into a new consulting contract. The contract terminated on June 30, 2009. The contract it replaced provided for maximum compensation of $170,000 per annum. The new contract provided for compensation per an hourly rate schedule attached as exhibit B to the contract. In addition, the contract provided for a retroactive payment in an amount not to exceed $950,000 for services performed between January 1 and June 30, 2008. . . .

Christiansen proposed that the District retain Strategic for program and project management of the projects to be funded by the bond. Christiansen proposed an amendment to the 2008 contract that Strategic be paid $6 million (2 percent of the $300 million project budget) for program management and $10.125 million (4.5 percent of the construction value of $225 million) for project management. . . . At a Board meeting in August 2008, Plotkin recommended that the Board approve Christiansen’s contract amendment. The Board approved the contract amendment three-to-one with one abstention. No other bids were taken.

On November 8, 2008, the voters passed the $334 million bond measure. On November 20, 2008, Christiansen sent the first invoice for program and project management services in the amount of $231,414.24. Between November 2008 and August 2009, Strategic collected more than $2,000,000 in management fees even though no specific project had been approved."

Wow.  The word "abusive" doesn't even come close to accurately describing these transactions.

Is today's Court of Appeal opinion about Christiansen's conviction for the above-described conduct?  Nope.  "Christiansen was prosecuted for a criminal violation of section 1090. A jury found her guilty. She was sentenced to more than four years in prison and ordered to pay the District $3.5 million in restitution. Division 1 of this court reversed the conviction in People v. Christiansen (2013) 216 Cal.App.4th 1181. The court reasoned that for the purposes of criminal law, section 1090 did not apply to independent contractors."

Today's opinion is instead about her lawsuit against the Beverly Hills Unified School District.  One that went swimmingly (for her, at least).  "The jury awarded Strategic general contract damages of $7,710,509 based on $16,125,000 in program and project management fees less overhead and payments received. The jury also awarded Strategic $6 million in special contract damages based on the District’s actions destroying the value of Strategic. The trial court awarded Strategic $4,310,660 in prejudgment interest pursuant to Civil Code section 3287, subdivision (b), and $2.3 million contractual attorney fees. The total judgment is $20,321,169."

Thankfully, the Court of Appeal reverses.  Because there's still a semblance of rationality in the universe.  One in which someone like Christiansen doesn't receive an additional $20 million windfall.

Wednesday, May 09, 2018

U.S. v. Mikhel (9th Cir. - May 9, 2018)

When the Ninth Circuit summary of the opinion itself spans to the seventh page of the slip opinion, you know you're going to be reading a long opinion.  When the opinion starts with an extensive table of contents, that only confirms that it's going to be really long.  And when you're already in the triple digit page numbers and you've still got twenty-some single-spaced pages to read; well, you're pretty much exhausted.

Not surprisingly, the opinion's very comprehensive.  It's a federal death penalty case, which is rare, so one can understand why the panel's opinion is so detailed.  Plus, it's a horrifying case, and involves a group of foreign (Russian and Lithuanian) nationals who kipnap, hold for ransom, and kill a bunch of wealthy people and their associates.  Ultimately dumping each of their victim's bodies off a bridge in the New Melones Reservoir outside Yosemite National Park.

The time between oral argument and publication of the (unanimous) opinion isn't very long -- four months.  But the time it takes to get there is, as usual, expansive.  The murders were in 2001 and 2002.  The conviction and sentence were in early 2007.  And yet here we are, a full decade-plus later, and the Ninth Circuit only now resolves the direct appeal.  With the inevitable rehearing petition, Supreme Court petition, and federal habeas proceedings yet to come.

Still, you've got to be impressed by the opinion, if only by its length.  It's almost the size of a full-length book.  That's a pretty healthy work product.  Which I assume Judge Bybee didn't entirely draft on his own.  Some very hard work -- over a period of years, most likely -- by a bevy of personnel in chambers.

Monday, May 07, 2018

Daniel v. United States (9th Cir. - May 7, 2018)

Well put, Judge Hawkins.

"Like most cases implicating the Feres doctrine, the claims at issue here arise out of personal tragedy. . . . Rebekah Daniel served honorably as a Lieutenant in the United States Navy, and she worked as a labor and delivery nurse stationed at the Naval Hospital in Bremerton, Washington. . . . In 2013, Rebekah and Walter learned that they were expecting a daughter. Rebekah made arrangements to resign from her post, and with the family leave she planned to take following the birth of her daughter, she did not expect to resume her duties prior to her anticipated detachment from service in May 2014. On March 9, 2014, while still on active duty status, Rebekah was admitted to Naval Hospital Bremerton as a patient and gave birth to her daughter. Although her pregnancy had been considered low-risk, Rebekah experienced postpartum hemorrhaging and died approximately four hours after delivery."

The family sues for medical malpractice, but the district court dismisses the case on the pleadings, holding that it's barred by the Feres doctrine, which prohibits suits arising out of military service.  Judge Hawkins quotes Justice Scalia's dissent in Johnson, in which the latter argued that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."  But the panel is nonetheless constrained to affirm, holding that existing doctrine does indeed bar the lawsuit.

But Judge Hawkins concludes the opinion by saying:  "Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so."

Hear, hear.

People v. Reed (Cal. Supreme Ct. - May 7, 2018)

The California Supreme Court affirms the death sentence for two murders in Compton that occurred in 1996 -- and a sentences imposed in 1999.

Not exactly extraordinarily speedy review.

Four years to even appoint counsel for the appeal.  Thirty-eight extensions of time to file appellant's opening brief.  Briefing concluded in 2013, with a decision in 2018.

Not a rush to judgment, for sure.

Tindell v. Murphy (Cal. Ct. App. - May 7, 2018)

This is a whole lot of litigation about a manufactured home bought in Susanville for $320,000, which (since it's "manufactured") apparently has a hard time being refinanced.

A whole lot.

Some people would say that's a great thing about the American system of justice.  Others would perceive the opposite.

Ultimately the plaintiffs don't get any relief.

But they definitely had neutral people hear and think about their case.

A lot.

Thursday, May 03, 2018

In Re D.L. (Cal. Ct. App. - May 3, 2018)

From today's opinion:

"In February 2017, a loaded gun was found in an unlocked closet in a bedroom where two-year-old D.L. slept. In May 2017, the juvenile court determined that the parents’ indifference to the risks posed by leaving a loaded gun in the child’s reach presented an ongoing risk of danger to the child. The court declared the child a dependent of the court and placed her in the home of her mother, with her father having monitored visitation."

Mother should be happy -- beyond happy -- that the untoward consequences of this event were only limited to making her receive family maintenance services and allowing Father monitored visits.  The results could easily have been incredibly tragic instead.

Wednesday, May 02, 2018

Daniels Sharpsmart v. Smith (9th Cir. - May 2, 2018)

California passes a statute that says that if you produce medical waste in California, you have to burn it, not just dump it somewhere.  So Daniels Sharpsmart gets a ton -- actually, 320,000 pounds -- of California-created medical waste, and instead of burning it, ships it to Kentucky and Indiana, which (perhaps not surprisingly) allow medical waste to be dealt with in a much more lenient matter.

California tries to stop this scheme, but Daniels Sharpsmart sues, saying that California's attempt to regulate medical waste generated in California violates the Constitution; in particular, the dormant Commerce Clause.

The Ninth Circuit agrees.

Judge Fernandez's position is that even though California's regulating only medical waste generated in California, once you ship the stuff across state lines, there's nothing that California can do about it.  He says that, otherwise, there'd be "economic Balkanization" of the Union.

A different way of looking at it would be to say that the dormant Commerce Clause sets in stone in the Constitution a nationwide race to the bottom, where the most lenient state -- the one with the fewest environmental or other protections -- sets the standard for the rest of the nation.  Because why go to all the trouble to actually burn medical waste, for example, when you can just go to Kentucky, run some steam over it, and then bury the needles and other stuff.  Much more convenient.

You see some of the same thing at work in transnational trade.  A flow of products -- toxic waste, jobs, whatever -- to whatever nation has the least regulatory burden.  Purportedly to the benefit of everyone; we dump our toxic waste in Mexico (or China, or wherever), which means it's not "our" problem anymore, and the other country gets jobs or whatever.  Plus the associated tumors.

It's definitely the way of the world.  So the domestic application of that principle perhaps isn't too surprising.

Though I'm not sure that the framers, with their heightened sense of state sovereignty, would have thought that the Constitution enshrined that principle to the degree currently interpreted.

Regardless, that's where we are.  The upside is that as long as you can find a state that lets you do what you want, you're free to go -- or ship your stuff -- there.

Which is also the downside.

Tuesday, May 01, 2018

People v. Brady (Cal. Ct. App. - May 1, 2018)

The Court of Appeal sometimes provides neutral insight into the lives of people with whom you are not typically personally familiar.  The first of May brings us precisely such a case.

The case concerns a man named Charles Brady, who lives on the streets of my very own San Diego.  The present offense involves a stabbing.  One that itself gives some insight into the lives of some of those less fortunate.

The story of the offense is this:

"Brady was homeless in downtown San Diego. To make money, he sold hats, costume jewelry, and the like to passersby on the street. Lincoln M., another homeless individual, was one such passerby.

Lincoln was initially drawn to the silver jewelry Brady peddled. The two struck up conversation and became acquaintances, though not friends. Brady learned that Lincoln sold drugs, shoplifted, and—like Brady—had previously spent time in prison. Brady never saw Lincoln carry a gun but knew, or at least strongly suspected, that he carried a knife given the dangers of living on the streets. The two had never argued nor fought previously.

Their relationship soured after a particular transaction. One night in January, Lincoln purchased two pieces of silver jewelry (a necklace and wristband) from Brady for $40. The next morning Brady ran into Lincoln and a friend near a San Diego trolley stop.

Lincoln told Brady that he'd returned the purchased necklace to Brady's "partner" and wanted his $40 returned. He twice threatened, "Diemu, you need to give me my $40 back before I stick you with my kazoo." Brady understood "Diemu" to mean "that [he] was a Blood," i.e., a gang member, and "kazoo" to mean a knife. With one hand, Brady touched or lightly pushed Lincoln on the chest several times while Lincoln fidgeted with his own wallet. As Lincoln turned his gaze away from Brady and looked off into the distance, Brady suddenly grabbed the collar of his sweatshirt with one hand and thrust a knife into his lower abdomen with the other. 

After stabbing Lincoln once, Brady gathered his things and walked away. A private security guard trailed him until the police arrived. While detained, Brady told the police, "I'd fucking stab somebody if they fucked with my property" and "I am going to jail for protecting my mother-fucking property.""

That is a harsh life, and way to live, to be sure.

How did Brady get to this situation in life?  Here's at least a part of his story, from his perspective:

"Brady also took the stand and explained his personal history. He grew up in a small town in Georgia where, at around four or five years old, he was sexually abused at knifepoint by a neighbor. His mother too started physically abusing him at a young age. In one incident, she struck him with the back of a butcher's knife. After about nine years of abuse, fifteen-year-old Brady left home and set out on his own. Having previously been assigned to special education classes, Brady attended no further school.

Things did not get easier for Brady. In his late teens, he was jumped on two occasions by groups of five to six people, armed in the first incident with chains and a tire iron and the second with bats. The beatings led to a seizure disorder.

In his early thirties, Brady came to the West Coast and started using crack cocaine. His drug use led to criminal activity. He was convicted twice for robbery in the 1980's, once for petty theft with a prior in 1994, and once for selling crack to an undercover officer in 1998. As a result, he spent most of the time from 1985 to 2010 in prison. There, he was stabbed on three occasions. The third stabbing incident, involving a broomstick to his eye, left him partially blind.

In 2010, Brady's situation improved somewhat; he attended a residential treatment program that helped him address his addiction to crack cocaine. But as of January 2016, when this incident occurred, Brady remained homeless in San Diego."

So off crack, but still homeless.  And then the stabbing.

So now 15 more years in prison.

Monday, April 30, 2018

Magana v. Superior Court (Cal. Ct. App. - April 27, 2018)

This is about as damning an indictment of a criminal defense attorney as I've seen from the Court of Appeal.

San Francisco attorney (and Hastings Law graduate) Daniel Everett represented a criminal defendant charged with two counts of rape.  I'll not attempt to summarize his preliminary efforts on behalf of his client.  I'll just mention that Mr. Everett repeatedly told the Court that he was not ready for trial, was almost invariably late to court, and even left the courtroom one afternoon and promptly disappeared, "leaving his client, the prosecutor, and the judge waiting for nearly an hour for him to return."

You can read the entire opinion if necessary.  Suffice it to say that anyone who reads this opinion will not likely clamor to retain Mr. Everett as counsel.

The trial court entered the extraordinary remedy of removing Mr. Everett as counsel -- something that the trial judge had never done before in his career.  The Court of Appeal is fine with that.  It not only refuses to disturb the trial court's decision, but also refers its opinion to the State Bar.

Which is already quite familiar with Mr. Everett's antics in other criminal cases.

That's a lot of trouble for an attorney.  Particularly given the brief period of time Mr. Everett's been an attorney.  He was admitted only in 2010.

Friday, April 27, 2018

People v. Espinoza (Cal. Ct. App. - April 26, 2018)

You see a lot of different crimes reported in the various appellate decisions.  But here's a relative rarity:  felony cemetery vandalism.

I'm not sure why someone would want to randomly vandalize a cemetery -- kicking over headstones and the like.  It's not like they did anything to you.  Or will do anything to you again.

But perhaps I just don't fully understand the criminal mind.

Wednesday, April 25, 2018

Bozic v. USDC (9th Cir. - April 25, 2018)

I'll occasionally read cases in which a win is actually a loss, or a loss actually a win.  But today I read a case where a loss is a win except it's a loss.  This one.  Unusual for sure.

Plaintiff files a lawsuit in the Southern District of California, and doesn't want to get it transferred to the Eastern District (where a related class action is pending).  But the district court sends it there.  So plaintiff files a writ of mandamus.

The Ninth Circuit denies the writ.  That's a loss.  But the Ninth Circuit also expressly says that it was error for the district court to transfer the case to the Eastern District, since venue was improper there.  That's a win.  Particularly since it's a decision that the relevant district court will practically have to follow upon remand.  The Eastern District will have to transfer the case back and/or the Southern District will have to reconsider the propriety of -- and withdraw -- its transfer order.  Again: Victory.

Yet it's still a loss.  The case is going to be stayed anyway in favor of a related pending state court class action.  So none of this matters.  Nothing's really going to happen anywhere anyway.

Still, a neat little civil procedure issue, with a relevant holding on the merits even though the Ninth Circuit dismisses the writ.

P.S. - Judge Friedland's opinion says that transfer was improper largely by relying on the Supreme Court's decision in Hoffman, and the opinion repeatedly cites the relevant statute (transfers proper only "to any other district or division where it might have been brought.”) as it read back then.  Just a reminder, though, that the statute was amended thereafter -- in a direct (albeit belated) response to Hoffman -- and now ends with ". . . or to any district or division to which all parties have consented."  The effect of that amendment is somewhat disputed in the lower courts, and it's unclear whether that amendment matters in the present case, since the opinion doesn't mention whether all relevant parties (e.g., defendant) consented to have the case transferred to the Eastern District.  (Though it looks like it did, since it filed the motion to transfer.  There may be a lingering question whether "all" in this regard really means "all").  So the relevant statutory amendment might have merited at least brief mention and/or discussion.

Tuesday, April 24, 2018

Arvizu v. City of Pasadena (Cal. Ct. App. - March 23, 2018)

I feel bad for the plaintiff.  He was seriously injured.  That's never a happy event.

But, in a civil lawsuit, anyway, you have to figure out a lot of things.  Whether there's immunity.  Whether there's contributory negligence.  Lots of "law" stuff.  Particularly on appeal.

Moreover, even on a superficial level, you've got to figure out where the "fault" should be placed, if only as a matter of community values.  How reasonable was the conduct of all the relevant parties?

So here are the underlying facts of the case.  With my own editorial comments in brackets:

"On the evening of September 14, 2013, Arvizu [the plaintiff] went to his friend Ben’s house to watch a pay-per-view boxing match on television.  [I believe this was the Floyd Mayweather Jr. vs. Canelo Alvarez fight.  A long one.  Mayweather wins on a majority decision.]  At about 1:00 a.m. on September 15, 2013, he received a call from his friend Lalo to “hang out,” so he and Ben went to Lalo’s house where they met up with Lalo and three other friends, Frijol, Jerry, and Max.

[Mr. Arvizu was 21 years old.  Just in case you're wondering what age we're talking about when people go over to their friend's house and then "hang out" at 1:00 a.m.]

Sometime around 3:00 a.m., the six friends decided it would be fun to go “ghost hunting” . . .  [Yeah.  I thought that was strange too.  What the heck is 'ghost hunting'?!  Some crazy millennial thing?  But it turns out it's just (allegedly) hunting for ghosts.  If that's in fact what these 21-year olds were in fact doing at 3:00 a.m. instead of a story they made up thereafter.]  . . . at the Colorado Street Bridge in Pasadena. Built in 1913, the bridge is known for its distinctive Beaux Arts arches, and is sometimes referred to as “Suicide Bridge.” The young men had heard ghost stories about it. . . .

[Okay.  So they were "ghost hunting".]

Lalo drove the six young men (in his five-passenger car) to the Park. [Crowded!] The Park is closed from dusk to dawn. At the first place the group tried to enter the Park, they found locked gates and fencing too high to jump over.  [Maybe that's a sign about whether you should enter, no?] . . . .

Sometime in the early hours around 3-4:00 a.m. (the exact time is disputed but immaterial), Lalo parked his car in an unmarked paved area at the intersection of Arroyo Boulevard and Arroyo Drive, across the street from the Park. The young men got out of the car, crossed Arroyo Boulevard, and entered the Park. Pasadena Municipal Code section 3.24.110 (A)(23) makes it illegal to be in the Lower Arroyo section of the Park, where the young men entered, and where the accident occurred, from dusk to dawn.  [Law, schmaw, as 21-year old men are apt to say/feel.]

Ben testified that he had been there before and knew about a trailhead that provided access to the portion of the Trail under the bridge, but “didn’t want to walk the whole thing. I just wanted to get to that part of the trail” under the bridge. So they took a shortcut to the Trail.  [You can probably figure out that the word "shortcut" should be in quotes, and is not going to turn out all that well.]

Ben and the others started to walk down a natural slope, into the Arroyo Seco (except Jerry, who remained behind). There was no pathway where they walked down the slope, although the Trail ran below them, roughly parallel to the stream. They were heading toward the Trail, traveling in a direction roughly perpendicular to its path.

It was dark. None of them had a flashlight. There may have been some light from a streetlamp on Arroyo Boulevard. But there was no moonlight.  [Foreboding, no?  If Court of Appeal opinions had soundtracks, you'd start hearing the exciting, creepy music about now.] . . . .

Arvizu headed down the slope. [Bad]  He did not know where they were going; he merely followed his friends. [Worse] He does not recall if he was wearing his prescription glasses. [Even worse] Arvizu, who was wearing 1-2 year-old athletic shoes, [more bad stuff] started to slide in the loose dirt. [Here it comes . . .] He grabbed a pipeline that was above ground, and used it to assist in his descent. [Saved!] But the pipeline ended before he was all the way downslope. [Not saved!]

He could see his friends standing below him, on or near the Trail. Letting go of the pipe, he continued down the slope, which became steeper as he neared the bottom. He tried to slow himself down, but was unable to do so. He lost his footing and tumbled head over heels. Unable to slow down as he reached the Trail, he traveled all the way across it. [I've got a very good mental picture of all this.  Well done, Judge Curry (sitting by designation).  A second career writing screenplays is by no means out of the question.]

The Trail, at that location, is relatively level and proceeds along the top of, and just behind, an approximately 10-foot-high concrete retaining wall or embankment. [That's the 10-foot thing he's going to fly off.]  After crossing the Trail, Arvizu sailed over the retaining wall, hit a tree limb, and landed on the dirt and rocks below. [Ouch.  Totally and completely:  Ouch.]

Ben, who was on the Trail as he watched the accident happen, testified he saw Arvizu coming down the slope, “trying to get his body to adapt to the speed that he was going, but he just couldn’t. He was – once he hit the trail, it was already too late.” Because he had been there before in daylight, Ben knew there was a drop-off at the retaining wall, but didn’t think to mention it to the others because he thought they would see it. Arvizu testified he didn’t see the drop-off that night."

Yep.  All bad stuff.

So there are the particular details of the evening.  Or, as the Court of Appeal aptly summarizes it, the participants "were someplace they weren’t supposed to be, breaking the law, taking a shortcut in the dark, doing something they were unprepared for."

Given that description, you can probably guess where the panel ends up.  The grant of summary judgment in favor of the City of Pasadena is affirmed.  If only because the "trail immunity" statute applies.

With costs on appeal to the City.

Monday, April 23, 2018

Naruto v. Slater (9th Cir. - April 23, 2018)

The monkey who took the selfie -- this one -- loses in the Ninth Circuit today.

More accurately, PETA -- which sued as the monkey's "best friend" -- loses.  As well as is on the receiving end of some harsh language from the panel.  For example, Judge Bea drops the following text and accompanying footnote in the majority opinion:

"First, “[i]n order to establish next-friend standing, the putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner.” Coalition of Clergy v. Bush, 310 F.3d 1153, 1159–60 (9th Cir. 2002) (quoting Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001)). Here, we are concerned with the second requirement. PETA does not claim to have a relationship with Naruto that is any more significant than its relationship with any other animal. Thus, PETA fails to meet the “significant relationship” requirement and cannot sue as Naruto’s next friend.  [Footnote]

[Footnote] -  We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by Chief Justice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979)."

I doubt that PETA will invite Judge Bea to dinner anytime soon.  Or vice-versa.

Heckart v. A-1 Self Storage (Cal. Supreme Ct. - April 23, 2018)

Sometimes the California Supreme Court grants review in a case that appears to involve purely error-correction.  Nothing huge at stake (except to the parties).  No real split in the lower courts.

This seems one of those cases.

Do we really care whether it counts as "insurance" for A-1 Self Storage to offer to charge $10/month so that the first $2500 in damages to stored items are covered?  Sort of.  But probably not sufficiently to justify the time-constrained involvement of the California Supreme Court.

Yet the case is presumably an easy one.  It's unanimous. 

So I'd guess it didn't take up all that much of the Court's time.

Wednesday, April 18, 2018

Shapira v. Lifetech Resources (Cal. Ct. App. - April 17, 2018)

Plaintiff has a contract with Defendant, and goes to trial.  The trial lasts four full days.  Right before the parties make their closing statements, Plaintiff voluntarily dismisses the lawsuit with prejudice.  Defendant moves for its attorney's fees, claiming that it's the prevailing party.  The trial court agrees and gives 'em a six-figure fee award.

The Court of Appeal rightly reverses.  It may well be a silly rule.  But it's nonetheless the law.  CCP 581(e) says that the plaintiff can voluntarily dismiss, with prejudice, at any point during the trial, as long as it's not over.  And when that happens, there's no "prevailing party."  Hence no fee award.

Were I to have the power to rewrite the statute, I would.  Sure, it encourages "settlement" (e.g., the abandonment of meritless cases), which enhances efficiency.  But at too great a cost.  Defendants should be the prevailing party when that stuff happens.

But I have no such power.  Nor does the Court of Appeal.  The statute says what it says.  So the right result is clear.

Which is exactly what the Court of Appeal holds.

Tuesday, April 17, 2018

U.S. v. Arpaio (9th Cir. - April 17, 2018)

We're all familiar -- certainly in this day and age -- with a special prosecutor.  But one appointed by the Ninth Circuit?!  That's certainly a rarity.

Yet it happens today.

No word yet on the identity of the special prosecutor selected by the Ninth Circuit.  But I'm keenly interested.  As is, I imagine, Joe Arpaio.

Stay tuned.

All Green Electric, Inc. v. Security Nt'l Ins. Co. (Cal. Ct. App. - April 17, 2017)

It's just a tiny little loose bolt in an electric cabinet.  But it created a magnetic field, which in turn stopped an entire mammography room (including an MRI and an x-ray machine) from working.

All from a loose bolt, and when the bolt was tightened, the magnetic field suddenly disappeared.

Which leaves the resulting lawsuit.  And then the tender to the insurance company.  Which refused to defend based upon a particular exclusion clause.

So a tiny little bolt and a tiny little one-paragraph exclusion.  Both of which had major impacts far beyond their size.

Monday, April 16, 2018

Powell v. Bear Valley Community Hospital (Cal. Ct. App. - April 16, 2018)

"Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents—behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges."

First of all:  Ouch.  Second:  Seems to me like the termination makes sense.

Though Texas had a different view.  "The Texas State Board of Medical Examiners (Texas Board) completed an investigation of Dr. Powell's revocation of staff privileges at Brownwood. In a letter dated September 12, 2001 (2001 letter), the Texas Board advised Dr. Powell that its investigation, file No. "00-1243," was being "CLOSED with no action recommended because the evidence does not indicate a violation of the Texas Medical Practice Act.""

What follows -- to the surprise of no one -- is a series of lawsuits, Dr. Powell's attempt to obtain privileges at different hospitals, etc.  Dr. Powell loses his (Texas) lawsuit against Brownwood on summary judgment, says various things to Bear Valley Community Hospital and obtains privileges, gets into a subsequent fight with Bear Valley as well, etc. etc.

You can read all about it here.

All this ends unhappily for Dr. Powell.  Here's how the Court of Appeal concludes its opinion:

"The Texas court opinion and a report by Brownwood's fair hearing committee were relevant to whether Dr. Powell misrepresented the reasons for his termination of privileges. The Brownwood patient's case illustrated how Dr. Powell's lack of candor and/or integrity could result in adverse patient outcomes. There is no evidence in the record that the Board acted irrationally. In summary, Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. . . . The judgment denying Dr. Powell's petition for writ of mandate is affirmed. Costs on appeal are awarded to Bear Valley."


Though small solace, I imagine, to the boy whose vas deferens was severed.

Friday, April 13, 2018

People v. Tom (Cal. Ct. App. - April 13, 2018)

I know, I know, I know.  It's a Friday.  A sunny, warm, glorious Friday in April, no less.  At least here in Southern California.  Spring Break, even, for some of those lucky enough to still be in school.

And even for the indoor-bound, working adults amongst us, there are so many other distractions.  Stormy Daniels.  Then the other Playboy model, Karen McDougal.  And now a third Playboy model, currently unnamed.  That's a lot of scintillating news, political and otherwise, to keep one entralled.

These are surely exciting times.

Plus, on a less fun note, tax returns are due next week.

So there's a lot of competition for our entertainment value.  Who has time for the mere California appellate courts?!

The best I can do in this regard is today's opinion from the Court of Appeal.  Which at least attempts to compete with the other scintillating (titillating?) content currently in the news.

Here's the one-paragraph version of the facts:

"While watching a small dog that belonged to his girlfriend’s parents, defendant Jesse Cody Tom beat, stabbed, and strangled the dog. Defendant then covered the dead dog with oil and placed it inside a barbeque. Before he could light the deceased dog on fire, however, officers arrived on scene and apprehended defendant after he fled."

Dude!!  Not good.  Not okay.  No bueno.  In no way, shape, or form.

Read the whole opinion for more details.  Plus learn Mr. Tom's fate.  To foreshadow:  He's a prior felon, and part of his sentence for this whole affair includes a conviction for attempted arson.  Since he didn't even keep the attempted dog-burning confined to the outdoor Weber grill.

The world's a crazy place, my friends.

Enjoy the weekend.

Wednesday, April 11, 2018

Francheschi v. Yee (9th Cir. - April 11, 2018)

I've seen plenty of unsympathetic plaintiffs asserting unsympathetic claims in my day.  I'm definitely adding this one to the list.

Plaintiff claims that it's unconstitutional to publish a list of the 500 most delinquent taxpayers in California that owe over $100,000 in back taxes and to suspend their driver's license.  Call me crazy when I say that I'm not totally itching to strike down the law and protect people who don't pay their massive tax debts.  Boo-hoo.

And the plaintiff himself only obviates any lingering sense of sympathy I might otherwise have.  He failed to file any California income tax returns from 1995 and 2012.  That's seventeen years of taxes.  And owes a boatload of money.

Oh, one more thing.  Lest any lingering sympathy exist.

He's an attorney.

Yep, the plaintiff is Ernest Joseph Franchesci, Jr.  A Los Angeles attorney and Southwestern Law graduate.  He litigates his Ninth Circuit appeal pro se.  And gets crushed.

For good reason.  In my view, Mr. Franchesci is lucky he's not in prison and/or disbarred.  The lack of a driver's license should, in my opinion, by the least of his worries.

His legal claims are also completely meritless.  He says the suspension of his license doesn't give him sufficient procedural due process.  Ignore for the moment the controlling Supreme Court precedent to the contrary that the Ninth Circuit says Franchesci ignores.  There's no doubt whatsoever that there are sufficient pre-deprivation procedures to challenge the relevant tax liability.  As the Ninth Circuit explaines:  "Franceschi’s arguments overlook the fact that he had a readily available, constitutionally valid, pre-deprivation opportunity to prevent the suspension of his license. After receipt of the notice of revocation and before his license was suspended, Franceschi could have challenged his threatened suspension by paying his taxes and filing a refund claim with the FTB. See Cal. Rev. & Tax Code § 19382. The payment of his tax liability would have allowed him to retain his driver’s license. He would then have the opportunity to file a refund claim and challenge the original tax assessment. In the event the FTB denied his refund claim, he could still obtain relief by suing for a refund in California Superior Court."  Spot on.

And then Franceschi makes the even sillier claim that the statute violates substantive due process because . . . get this . . . it makes it harder for him to be an attorney.  Because the most important thing in the universe is to make sure that Mr. Franceschi gets to continue to practice law without having to pay his massive tax liabilities.

The Ninth Circuit's response should warm the heart of any Los Angeles-based attorney facing the daily prospect of navigating through rush hour traffic:  "No doubt an inability to drive oneself around Los Angeles could make the practice of law more difficult. However, Franceschi still has access to public transit, taxis, or services such as Lyft or Uber. Accordingly, whatever burden may exist does not amount to a “complete prohibition” on Franceschi’s ability to practice law, and thus, does not rise to a violation of substantive due process."

In case I've been unclear, let me say it again:

This isn't a sympathetic plaintiff with a sympathetic claim.

Tuesday, April 10, 2018

Vilutis v. NRG Solar Alpine (Cal. Ct. App. - April 10, 2018)

It's worth the occasional reminder to mention that the volume of the unpublished work by the Court of Appeal massively swamps the published component.  For example, today, at least as of 2:20 p.m., there's absolutely nothing at all published by the California Supreme Court, the Court of Appeal, or the Ninth Circuit.  Nothing.  Yet there are no less than twenty unpublished dispositions from the Court of Appeal.

Not bad for a single workday.

So, if only for entertainment (or shock) value, I thought I'd mention one of those cases -- one that involves an anti-SLAPP motion and a raucous public meeting.  At which there's indisputably a "kerfuffle" that ends when one of the participants allegedly tells another "You fucking faggot. Get the fuck out of my store! . . . . Get the fuck out of the store, you faggot, or I am going to call the Sheriff.”

Which is not something you typically hear at your usual Town Council meeting.

That said, it's a public forum, and there's no probability of success on the merits.  So the lawsuit gets dismissed, and the Court of Appeal affirms.

With costs and fees to the defendant.

Monday, April 09, 2018

Rizo v. Yovino (9th Cir. - April 9, 2018)

You'll probably hear about today's Ninth Circuit en banc opinion in various media.  The court holds that it violates the Equal Pay Act to pay a woman less for the same work a man does when the only justification for that differential is because the woman made a lower salary in a prior job.  To allow such a pay difference, the court holds, would perpetuate salary discrimination.

You may also hear today's opinion described (as it has been repeatedly) as "unanimous," but it only sort of satisfies this definition.  Yes, all 11 members of the panel agreed on the result.  But to say that the thing's unanimous overlooks key differences between the panel members -- differences that may well suggest that the Supreme Court might well take a different view of the subject.

The lead opinion -- for a bare majority of 6 of the 11 judges -- says that an employer can never be considered as a justification for paying women less than men.  That's the holding.

But five of the judges in this "unanimous" opinion disagree.  Judges McKeown and Murguia -- two left-leaning women on the panel -- join a concurrence that says that the majority goes to far, and that in their view, prior low salary is okay to consider if it's combined with other factors that justify the contemporary salary differential.

Judges Callahan and Tallman, not surprisingly, are even less sympathetic to the majority opinion, and agree that the current case was improperly resolved (since the only basis for the pay differential was prior salary), but think that this is basically an exception to the general rule, and believe that there may be a plethora of situations in which prior salary can validly be used to pay women a lower salary than men.

And then Judge Watford concurs as well, holding that, again, here, the employer should lose, but only because it failed to demonstrate that its use of prior salary wasn't itself tainted by discrimination that resulted in the prior pay differential as well.

So, yes, everyone agrees on the result.  But it's a rare case when the only reason that an employer can come up with a basis for its pay disparity is the woman's prior salary.  There are generally legions of alleged reasons that can instead be advanced.  And, in those more routine cases, the panel is split on even the appropriate law to be applied, much less does it make it easy for a plaintiff (or jury) to prove as a factual matter that the pay differential was indeed discriminatory.

And the fact that even Judges McKeown and Murguia aren't on board for the majority's holding suggests incredibly strongly that the Supreme Court wouldn't exactly lovingly embrace the Ninth Circuit's ruling either.  If only because it's an exceptional understatement to say that most of the justices on that tribunal are far less sympathetic to the objectives of the Equal Pay Act than these two Ninth Circuit judges.

One final point.  The majority opinion is by Judge Reinhardt.  Who, as most of you know, died on March 29th.  The en banc court allows the opinion to go forward because "the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."  I'm confident that's correct.  I'm also confident that if this is indeed the final opinion of Judge Reinhardt's long and incredibly productive judicial career, he'd be content with the happenstance.  It's a good way to go out.  A last opinion that's a fairly representative testament to how the man lived and the values he expressed.

And if this opinion is subsequently reversed by the Supreme Court; well, he'd be very much used to that as well.

Fighting to the very end.

People v. Barboza (Cal. Ct. App. - April 9, 2018)

It's somewhat not surprising that Mr. Barboza elected not to appeal his criminal conviction and sentence, as he (1) pled guilty, and (2) was sentenced to probation (with his six-year prison sentence suspended).  Not a bad result at all for someone who pled guilty to robbery as well as a felon-in-possession enhancement.

But Mr. Barboza was a minor whose case was direct charged in adult court, and Prop. 57 was about to be voted on by the electorate later that year.  If Mr. Barboza's attorney had filed an appeal, he'd have been entitled to retroactive application of the statute, and might have gotten some relief.

But no appeal was filed.  Which meant that Mr. Barboza's conviction was final once Prop. 57 was passed.

Which means he can't request a remedy under the statute.

Thursday, April 05, 2018

U.S. v. Gilmore (9th Cir. - April 5, 2018)

If you're going to grow medical marijuana in compliance with state law, don't do it on federal BLM land.

Yeah, I know.  Private property is more expensive.  But it's probably worth it.

If only so the feds don't prosecute you.  (Whereas, if you'd grown the stuff somewhere else, you could have gotten an injunction against federal enforcement.)

Wednesday, April 04, 2018

In Re White (Cal. Ct. App. - March 6, 2018)

It's a slow news day in the appellate courts.  Nothing at all from the California Supreme Court or Court of Appeal.  And only an amendment to an opinion from the Ninth Circuit.  Zzzzzzz.

Though it does give me a chance to go back a tiny bit.

See what you think about this opinion from last month.  The question is whether the defendant is such a threat to public safety that he should be denied bail entirely.  (The California Constitution says that you can only deny bail in this setting if  "the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others.")

You could see strong feelings being raised on both sides.  Do you think there's "clear and convincing" evidence that there's a "substantial likelihood" that this guy will reoffend while on bail?

"Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California. On July 26, 2017, she was staying with friends because her family had been on vacation. In the afternoon, she rode her bicycle to her family's house to get her surfboard and go surfing. Across from her house she saw two men standing near a blue truck. They were playing loud music and looked out of place. J.D. felt like they were watching her.

A woman loading her car nearby saw the two men and thought they looked "creepy." The men were staring at her as well. She was concerned that they might burglarize her vacation rental after she left. The woman's son thought they were being "creepy" also, so he took a Snapchat video of them. He told police he was worried about the men wanting to kidnap his younger brothers.

J.D. had a bad feeling about the men, so she went through a gate into her neighbor's yard, hopped over the fence, and went into her garage. She later said she was trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from the garage, went out front, and left the surfboard in her driveway. The men were still staring at her, which made her feel uncomfortable.

J.D. went inside, but she became concerned that someone would try to steal her surfboard. She grabbed some surfboard wax, went back outside, and started to wax the surfboard. The men were still standing by their truck. J.D. noticed a few people walk by, and a surfer came up from the beach and asked to borrow some wax. This request was normal, so J.D. agreed.

J.D. continued to wax her surfboard in the driveway. At some point, when she had her back to the road, one of the men from the truck came up behind her and grabbed her neck "like a pressure lock." The man—later identified as White's roommate Jeremiah Owens—shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward the truck. J.D. repeatedly told him "no" and "stop."

J.D. managed to fight Owens off and step away from him. She saw the other man—later identified as White—still standing by the truck, looking up and down the street. She told Owens and White, "That's not cool. You can't do that." White said, "We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D. was watching them, White looked at Owens and said, "Go in the house." J.D. thought Owens would try and attack her again.

J.D. went through the gate, locked it "as fast as [she] could," and ran into the house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and locked both doors into the house. She thought Owens and White were going to follow her inside. She thought they might break the lock on the gate or hop over the fence. She was going to hide, but she heard the truck's engine start. She looked outside and saw White in the driver's seat. Owens ran around to the passenger side. J.D. thought they looked scared, and they drove quickly away. She started hyperventilating and crying. She tried and eventually succeeded in calling her parents, who told her to call the police. She called 911, and police responded.

The police began an investigation and detained White. In two interviews with police, White denied knowing that Owens intended to attack J.D. White said Owens told him he thought J.D. was pretty. White admitted he "might have said go and get her" to Owens, but he said he meant go "talk to her." Owens then told him "hey watch out" or "watch this" and walked over to J.D. White said he thought Owens was just going to talk to her. White claimed that, when the attack began, he yelled at Owens to stop and told J.D. he was sorry. White said Owens told him afterwards that a "primal instinct" came over him. White was concerned that Owens had mental health issues. Forensic examination of White's mobile phone revealed an internet search history in the days after the attack that included the questions, "Why would someone act on their primal instinct?," "How can you tell if someone you know is being brain washed?," and "What to do if someone you know is being brainwashed?" Owens was later arrested as well. . . .

The court then heard White's request for bail. White's counsel argued that White was a high school graduate, was gainfully employed as a cable installer, and had the support of family and friends. He requested that bail be set at $50,000. Owens requested bail as well. The prosecution opposed. As to White, it argued, "I will submit to the Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as to whether you would like to set bail, given the fact that he is not as culpable perhaps as Mr. Owens in being the direct perpetrator.""

I live in a beach community -- and have a sixteen-year old daughter -- so the facts of this case (from San Diego, no less) definitely strike home.  Yet, at the same time, the facts involving the defendant (and his subsequent Internet search) are definitely not the stuff of your usual attempted rape case.

What do you think?  A case to deny bail entirely, or not?

Tuesday, April 03, 2018

R.E.B. v. State of Hawaii DOE (9th Cir. - April 3, 2018)

I imagine that, sometimes, litigants hope that adverse things happen to one or more of the judges that rule against them.  Mostly out of spite.  But sometimes, perhaps, out of more practical desires.

If that's what indeed went down here, perhaps the litigant's prayers were answered.

The panel decides in September to partially reverse the district court.  Judge Bea dissents.  The losing party then files a petition for rehearing.  As well as makes whatever supplications to higher powers that may or may not have transpired.

Then, in December, one of the members of the majority, Judge Kozinski, leaves the Ninth Circuit.  Judge Nguyen is promptly drawn to replace him.

And today, the reconstituted panel grants the petition for rehearing and withdraws the original opinion.

Perhaps the new panel will only tinker with the original opinion.  But I suspect that more than mere tinkering will in fact go down.

People v. Buza (Cal. Supreme Ct. - April 2, 2018)

It's sometimes helpful when a dissent begins by quoting at some length -- and then responds to -- the majority opinion.  Because that's a pretty concise summary of the justices' respective opinions.

For example, Justice Liu's dissent in this case begins by saying:

"According to today’s opinion, “[t]he sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at p. 41, italics added.) This statement of the issue is misleading.

The . . . (DNA Act) requires collection of DNA from all adult felony arrestees “immediately following arrest” and requires samples to be “forwarded immediately” to the laboratory for analysis. Buza was arrested on January 21, 2009. At booking a few hours later, a police officer requested a cheek swab from Buza under penalty of law. Buza refused. It was not until the next day, January 22, 2009, that a judge found probable cause to believe Buza committed arson. On January 23, 2009, the district attorney filed a complaint charging Buza with arson and related offenses as well as unlawful refusal to provide a DNA specimen on January 21, 2009. The question is whether Buza can be convicted of refusing to provide his DNA at booking prior to any judicial determination of whether he was validly arrested. Today’s opinion does not explain why the fact that Buza was found “validly arrested on probable cause to believe he had committed felony arson, and . . . was promptly charged with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing on whether it was lawful to require him to provide his DNA before any of those determinations were made.

The court says that a “valid arrest” in this context does not require “a judicial determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true, does not disturb the main premise of the question presented: For purposes of constitutional analysis, Buza is no different than any felony arrestee who has not been charged, convicted, or found by a neutral magistrate to be lawfully detained. This point is critical because it brings into focus the startling breadth of DNA collection and retention authorized by the statute. This is not a scheme carefully calibrated to identify felony offenders. Instead, it can be fairly described as a biological dragnet. As explained below, and for the reasons stated in Justice CuĂ©llar’s dissent, the DNA Act violates the prohibition on unreasonable searches and seizures in the California Constitution."

It's a 4-3 opinion.  The majority upholds the statute.  Which means that, in California, you're going to have your DNA taken upon any felony arrest.  Regardless of what happens to you thereafter (and, as Justice  Liu notes, one-third of people arrested for a felony don't ultimately get convicted of one).

Thursday, March 29, 2018

In Re Conservatorship of P.D. (Cal. Ct. App. - March 29, 2018)

"P.D. suffers from schizophrenia. He was arrested for violating a restraining order that protects his family. The court found him incompetent to stand trial. It committed him to Sylmar Health and Rehabilitation Center for mental health treatment to restore his competency. After the criminal charges were dismissed, Public Guardian filed a petition for a conservatorship on the ground that P.D. is gravely disabled as a result of his mental disorder.

Murray Weiss, M.D., testified that P.D. was diagnosed with a mental disorder 10 years earlier, has delusions, and requires medication to control his symptoms. When not taking his medication, P.D. becomes angry, aggressive, and “impulse disordered.” Dr. Weiss said that P.D. does not accept his diagnosis and believes his medications are “poison drugs.”

Dr. Weiss opined that P.D. is unable to provide for his basic needs of food, clothing, and shelter as a result of his mental disorder. Without a conservatorship, P.D. will stop taking his medication and be “homeless and hungry and living from day-to-day and probably arrested for violating the restraining order when he goes back to his family residence.”

P.D. testified that he does not suffer from a mental disorder and does not need to take medication. He said that if released, he will return to his family or seek help from unnamed friends, none of whom he has contacted to discuss his plans. He denied the existence of an active restraining order which prevents him from contacting his wife and which formed the basis of his prior arrest."

You can probably figure out the rest.  Suffice it to say, P.D. remains in the hospital.  As he probably will for a long, long time.