Thursday, August 17, 2017

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

What Justice Humes says is absolutely right:

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

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

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

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

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

Wednesday, August 16, 2017

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

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

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

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

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

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

The Court of Appeal certainly isn't shy here.

Monday, August 14, 2017

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

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

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

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

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

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

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

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

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

Interesting stuff.

Thursday, August 10, 2017

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

"Reverse veil piercing".  Super cool.

And allowed in California in an appropriate case.

Including, potentially, this one.

Wednesday, August 09, 2017

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

Two questions about this opinion:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 08, 2017

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

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

Which is generally not good for your company.

Monday, August 07, 2017

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

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

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

Florencia:  "What?!  That's absurd."

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

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

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

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

That's essentially the dialogue that underlies this opinion.

Thursday, August 03, 2017

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

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

As today's opinion proves.

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

Which is why there's prejudice here as well.

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

Wednesday, August 02, 2017

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

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

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

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

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


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

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

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

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

Tuesday, August 01, 2017

Republic of Marshall Islands v. United States (9th Cir. - July 31, 2017)

This morning brings a very good example of a lawsuit with a zero percent probability of success.  Zero.  As anyone with any knowledge of the underlying subject matter -- despite it being allegedly "complex" -- would well know:

"Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the “Treaty” or the “Non-Proliferation Treaty”) . . . calls on each party to the Treaty “to pursue negotiations in good faith on effective measures” to end the nuclear arms race and accomplish nuclear disarmament.   Armed with Article VI, one of the treaty parties, the Republic of the Marshall Islands, filed suit, asking the federal court to declare the United States in breach of its treaty obligations and to order the United States to engage in good-faith negotiations."

Uh, dude.  To state the facts of the case is pretty much all I need to know in order to tell you how it's going to come out.

But lest you take it from me, here's how the Ninth Circuit summarizes things:

"These claims are nonjusticiable -- Article VI is not directly enforceable in federal court, the Marshall Islands’ asserted injuries are not redressable, and the claims raise nonjusticiable political questions.  At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches. We affirm the district court’s dismissal of the complaint. Asking the federal court to order the United States to negotiate in “good faith” on “effective measures” for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks."

And that's even from an author (Judge McKeown) who's probably generally somewhat sympathetic to the plaintiff's cause.

In short, no, you're not going to win this lawsuit.  No chance.  Zero.

Baker v. Italian Maple Holdings (Cal. Ct. App. - July 31, 2017)

Is an arbitration agreement enforceable if a consumer (1) signs it, (2) has a statutory right to rescind her agreement within 30 days of her signature, but (3) dies before the 30 day statutory period expires?

After this opinion, the Court of Appeal is split on the issue.

One opinion, from eight years ago, holds that the agreement isn't binding in such circumstances.  But a different opinion, from now, holds that the agreement is binding in such circumstances.

It's a statutory interpretation case, and revolves around the meaning of what the statute means when it says that "[o]nce signed, such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature."  Does that mean that since the contract was never rescinded, it's still valid?  Or does it mean that since the statutory 30-day period never had a chance to expire, it's invalid?

The question is particularly relevant when, as here, the consumer dies allegedly because of the negligence of the party seeking to enforce the arbitration agreement.  To put it a different way:  Can you frustrate the 30-day statutory cooling off period by killing the signator so she can't exercise her right to rescind?

There's a split in the Court of Appeal.  It's an important issue.  It's one that recurs -- particularly (as here) in the nursing home context, where I imagine a nontrivial number of people die within a month of being admitted.  And the latest opinion not only expressly disagrees with the prior opinion, but also garners a dissent.

The California Supreme Court should step in and decide the issue once and for all.  Whether you get to go to court upon your death shouldn't depend on what particular panel you happen to draw.

Monday, July 31, 2017

Rush v. White Corp. (Cal. Ct. App. - July 28, 2017)

Justice Richman savages the appellants in this opinion.

He doesn't like the way they crafted their response to the moving party's separate statement of material facts below.  He doesn't like the way they wrote their briefs.  He doesn't seem to like much of anything about what counsel for appellants have done.

The overwhelming majority of the opinion is about the quality of the briefing, and the arguments therein, rather than on the actual merits of the case.  (Though admittedly these things are intertwined.  A little bit, anyway.)

It's a cautionary tale.  About how to not write your separate statement of material facts.  About how not to write you brief on appeal.

And about how merciless the Court of Appeal can be if you ignore the above counsel.

People v. Arredondo (Cal. Ct. App. - July 28, 2017)

There's a lot here to consider.  A lot.

The majority opinion spans 69 pages.  The dissent is quite lengthy as well.

I'll let the introduction to the dissent set up the issue:

"The relevant facts from trial span a mere three and a half pages of transcript, from which we can glean only that the court allowed an 18-year-old witness—who already had a support person—to testify behind a monitor that entirely blocked defendant’s view of her and vice versa. The court did so to make the witness “more comfortable” because she had become emotional when taking the stand. However, the court did not hear evidence from anyone—medical professionals, for example, or even simply the witness herself— as to the cause and degree of her distress, and the record does not support an implied finding the distress was severe enough to warrant such an invasive accommodation. As I will explain, the trial court’s handling of this situation did not provide a sound basis for depriving Arredondo of his constitutional right."

I'll add to that desription the facts that (1) it's a molestation case, (2) the witnesses were often emotional, and (3) the defendant was sentenced to over 300 years in prison.

There are weighty concerns on both sides.  On the one hand, you definitely want to let the defendant see the critical witnesses against him.  On the other hand, you definitely don't want to make it totally traumatic for witnesses to testify.

The competing views here take a different approach to the appropriate balance.

Check 'em out and see which one comes closer to your own view.

Wednesday, July 26, 2017

County of San Mateo v. Superior Court (Cal. Ct. App. - July 25, 2017)

Depressing opinion.  Concise holding:

"A 72-foot diseased tree fell on a sleeping child’s tent pitched in a campground that is located within a vast public wilderness park. The park’s owner, the County of San Mateo, contends it is immune as a matter of law for this allegedly dangerous condition of its property under Government Code section 831.2, commonly referred to as the “natural condition immunity.” It states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”1 (See § 831.2.)

The trial court denied the County’s motion for summary judgment under section 831.2, and we now deny the County’s petition for a writ of mandate seeking to overturn the summary judgment ruling. We conclude there are triable issues of fact as to whether the property here was “unimproved.” . . .

On July 25, 2012, Zachary Rowe and his family were camping in San Mateo County Memorial Park, where they occupied campsite D-1 of Sequoia Flat Campground. Twenty feet from Zachary’s tent stood a 72-foot, diseased tanoak tree suffering from a species of fungus called Armillaria that caused it to fail. In the early morning hours, while Zachary was sleeping, the massive tree fell on Zachary’s tent, crushing him and inflicting catastrophic injuries. .  . .

San Mateo County Memorial Park is property owned by San Mateo County, consisting of approximately 499 wooded acres, with trails. Its campsites are located in a heavily wooded campground area, portions of which were cleared of trees. The campground area contains dozens of campsites as well as amenities such as paved roads, telephones, restrooms (with electricity, sinks and flush toilets), showers, dedicated parking areas, a dumping station and a store. . . .

A professional land surveyor determined there were 34 man-made improvements within 126 feet of where the tree stood, including roadways, bumper logs (which are large trees laid on the ground to keep cars out of camping areas), restrooms, picnic tables, bear boxes, fire pits/barbeque pits, road signs, conductor poles with transformers and a parking bollard. According to the survey map he prepared, which is reproduced as Figure 2 in the appendix to this opinion, the man-made objects closest to the tree were a picnic table and a fire pit in a neighboring campsite, both some 13 feet away from the tree. The map depicts many man-made objects within the tree’s 72-foot striking distance, including a power line within 37 feet at its closest point; two access roads, one of which was 22 feet away at its closest point and the other 61 feet away; and various amenities located in Zachary’s campsite and several neighboring ones. Also close by, but not within the tree’s 72-foot striking distance, were two restrooms, one 113 feet away from the tree, and the other 126 feet away."

Given all this, it's somewhat surprising that the Court of Appeal decided to hear the writ.

Monday, July 24, 2017

In Re A.C. (Cal. Ct. App. - July 21, 2017)

Your usual parental termination appeal typically involves horrible facts.  If there's a jurisdictional dispute, it often involves technical stuff about ICWA (Indian Child Welfare Act) notice.

But this one's different.  And I learned a couple of interesting things that I definitely didn't know previously.

For one thing, this one involves notice not to an Indian tribe, but to Mexico.  Okay.  Didn't know about such a process.  Makes sense.  Just never seen it before.  Since the mother (and children) had lived in Mexico for a fair piece, you want to make sure that Mexico hadn't already entered any orders about the kids or already established jurisdiction.  K.

But here's another thing I didn't know -- and was somewhat surprised to see.  I'm used to seeing ICWA notices, and they're almost invariably sent by mail.  But here, the court communicates (or at least attempts to communicate) with Mexican authorities by e-mail.  I didn't know we did that.

Mind you, it doesn't work.  They never respond.  And that's only after Mexican authorities refuse to pick up the phone after multiple calls.  But the concept of a judge firing off "official" e-mails sent to judges from other countries was definitely something I hadn't seen before.

One last thing.  I've obviously read thousands of cases involving deportations, including but not limited to parents (and children) deported to Mexico.  But I'm pretty confident that this is the first opinion I've ever read involving a parent who was deported from Mexico to the United States.

I'm sure that makes sense as well.  I'm sure there are some U.S. citizens in Mexico that Mexico doesn't want.  So, of course, Mexico has the right to kick them out.

I've just never seen it before.

You've got your usual depressing facts, of course.  Though at least here the intervention by the authorities -- or at least the U.S. authorities -- was fairly prompt:

"On May 21, 2015, Mother, who was born in California, was deported from Mexico to the United States at the San Ysidro Port of Entry. Her two sons, A.C. and E.C., were with her when San Diego Police Department officers responded to a call regarding a female (Mother) who might be unfit to care for her two children. On their arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting on the ground with Mother. Mother appeared manic and confused about her detention and expressed irrational beliefs (e.g., she could communicate telepathically). Based on their belief Mother was gravely disabled and unable to care for herself and her two children, the officers detained Mother pursuant to Welfare and Institutions Code section 5150 and transported her to a San Diego County mental health facility for evaluation."

Still.  Deportations from Mexico.  Definitely not used to seeing that.

Thursday, July 20, 2017

In Re R.T. (Cal. Supreme Ct. - July 20, 2017)

This seems fine.  I agree with the California Supreme Court that the relevant statute allows kids to be taken away from their parents even if the parent isn't at fault.  The text of the statute sort of says that, and the legislative history makes it clear.  If the kid's in danger, it doesn't matter whether the danger is "because" of the parent.  The state can intervene.

Okay.  That's indeed what the statute says.

But am I really the only one troubled by the consequences -- e.g., the constitutionality -- of such a statutory regime?

That was principally why the one Court of Appeal opinion below held (contrary to today's opinion) that the statute must require fault.  Because to do otherwise, the Court of Appeal thought, might well violate the Due Process Clause.  Can you really take a kid away from the parent when the parent isn't at all at fault?

Let's be clear.  That's precisely what's at stake here.  The minor at issue here is definitely a problem.  She's disobedient, has already had two kids of her own (at 17), throws things at her mother, stays out all night, etc.  Yeah, we want to stop that.

But it's not like the parent doesn't care.  Or doesn't try.  Her hardest, even.  From everything we read in today's opinion, she's trying super hard.  Doing all the things that we'd try as parents.  It's just not working.  (And those of us with children certainly can understand.  We don't have an 100% success rate at everything we try to instill in our children.  Even with respect to the most basic stuff.)

But the California Supreme Court says that doesn't matter.  You can still have your kid taken away from you -- and be declared an "unfit" parent -- even if it's in no way, shape or form your fault.

That's troubling, no?

At least to me.  Apparently not so much to the California Supreme Court.  Because the Court says very very little about that point.  Indeed, it's entire argument in that regard consists of a single paragraph at the end of the opinion.  When, in the context of distinguishing a contrary lower court opinion, the Court basically just concludes that the Due Process Clause isn't violated by taking a kid away from her parents since the statutory regime "includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare" and "is a remarkable system of checks and balances."

That sentiment is small solace, I'd think, to any parent who had their kid taken away from them through what everyone concedes is totally no fault of their own.  As it'd be similarly small solace, I'd imagine, if any of the justices had their own children taken away from them in similar settings.

Which is not to say that I don't get the underlying motivation.  The kid's in trouble.  We need -- or at least want -- to do something.  So even if the parent's not at fault, we may well want to take the kid away.  Because that at least has the possibility of working.

But remember a couple of things.  The first of which is that taking the kid away is hardly a panacea.  Maybe if the results of the juvenile dependency system were uniformly positive I'd take a different view.  But they're not.  A lot of times, kids do worse in that system than with their parents.  And I'd imagine that's even more likely when, as here, the parent is totally trying and is not at all at fault for the minor's delinquency.  So don't for a second think that putting a kid in the "system" means that we are going to solve the problem.  Sometimes it stays the same.  Sometimes it gets even worse.  And the price for all this "progress" (or lack thereof) is inevitably the disruption (or destruction) of a basic and fundamental value:  the relationship between a parent and her child.

And, yes, the system contains a lot of checks and balances.  But, at least until today, one of the most basic of those checks and balances was that kids generally only get taken away when the parent is at fault.  I've read thousands of these cases, and when the kids get taken away, almost invariably, there's parental neglect (drug abuse, violence, etc.) that's a critical component of making that undeniably sad result morally palatable.  Take that way -- take away the need for fault -- and you're taking way what I'd have thought before today was one of the most fundamental of the relevant balances.

Now, I understand that we're trying to do what's best for the kid.  And that's a critical goal.  I too want to try to make every child reach his or her full potential.

But we've got to balance that between (1) the reality that, lots of times, we can't do better than the parents (and, I suspect, there's a darn good chance that the "system" will do no better for the child than her mother has done here), and (2) the devastating consequences to a mother when a child is forcibly removed from her by the state, without her consent, in circumstances in which even the state admits that the mother has done nothing wrong.

Those considerations, at least to me, are worth perhaps a little more than a paragraph of thought and brief platitudes about the "remarkable system of checks and balances" that is the existing dependency regime.

So I think, in short, that I'd take the Due Process argument a bit more seriously, or at least give it more weight, than I think the Court does here.  And maybe even expressly hold that it creates an outside limit on when the state can take children away when, as here, there's no fault at all by the parents.  Unless the state can show that it's likely to do a better job, with some reason to believe that it's efforts at discipline will be more effective than the parent's, I'm super reluctant to say that the Due Process Clause permits the government to take away someone's kid when the parent has done the exact same things that every single one of us would have done under the circumstances.

Food for thought.

Wednesday, July 19, 2017

People v. Roberts (Cal. Ct. App. - July 18, 2017)

Some things seem common, some things seem strange.

"Sharkey, who had ties to the West Coast Crips (WCC) street gang, was playing dice in downtown San Diego when Roberts, known as "Scrappy," shot her twice in the chest."  Do people really still play dice on the street these days?  And who shoots someone during a dice game for no reason?

"Sharkey claimed that Roberts pointed a gun at her face and said something to the effect of, "[k]eep my name out of your mouth." Roberts's act of pointing the gun at her infuriated Sharkey, who felt extremely disrespected by the act."  Really?!  You feel "disrespected" when someone points a gun at your face?  What an unusual reaction.  (Sarcasm alert)

Monday, July 17, 2017

Lewis v. Superior Court (Cal. Supreme Ct. - July 17, 2017)

I wonder why it is that I find myself agreeing with the California Supreme Court more than perhaps many other courts?  Similar disposition to the justices?  More cases that the court accepts for review that are important and yet often unanimous?  Some other reason?

(Or maybe the predicate's  untrue.  It's distinctly possible that I agree with an equal -- or greater -- number of Ninth Circuit cases, or cases from other courts, but simply read more opinions from those tribunals.)

Regardless, today's opinion is another one that seems spot on to me.  There's probably a fairly strong privacy interest in giving the authorities access to CURES (drug prescription) data.  But there's also a good reason for doing so -- to prevent drug abuse.  So the present regime is permissible.

Works for me.  Even though the ACLU would require more.

Thursday, July 13, 2017

U.S. v. Sierra Pacific Industries (9th Cir. - July 13, 2017)

"Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench."

Well, I'm not exactly sure that it's an entirely cautionary tale, since the Ninth Circuit affirms the decision below notwithstanding the judge's (alleged) Twitter account and "forwarded" tweets about the case he was in the midst of adjudicating.

(I say "alleged" because the judge at issue doesn't sign his actual name to the Twitter account, so it's just "alleged" that it's his.)

Snyder & Assocs Aquisitions v. U.S. (9th Cir. - July 13, 2017)

The Ninth Circuit says today, in full:

"Plaintiffs-Appellants’ petition for panel rehearing (Dkt. # 38) is GRANTED. The opinion filed June 16, 2017, is amended as follows: (1) on page two, “millions of plaintiffs’ dollars” is replaced with “plaintiffs’ money”; (2) on page two, “into bankruptcy” is replaced with “out of business”; and (3) all uses of the word “privileges” on pages two, six, fourteen, and twenty are replaced with “authorization.” No further petitions for panel rehearing or rehearing en banc will be considered."

I'm not really sure that the money devoted by plaintiff-appellant to filing that motion was really worth it in retrospect, eh?

Wednesday, July 12, 2017

Association for LA Deputy Sheriffs v. Superior Court (Cal. Ct. App. - July 11, 2017)

This opinion should be taken up by the California Supreme Court.

It's a split opinion, with a dissent.  The deciding vote is cast (and the majority opinion written) by a superior court judge sitting by designation.  The underlying issue is an important one with widespread impact:  Whether the LA Sheriff's Department is allowed to tell prosecutors the names of officers in the department potentially guilty of serious misconduct, which in turn will help prosecutors to fulfill their Brady and related obligations in criminal cases.

The Court of Appeal says no; that this policy is impermissible.  Prosecutors, the Court of Appeal holds, not only have no duty to obtain this information, but the LASD cannot even voluntarily provide it to prosecutors.  Prosecutors instead have to file a motion.  A motion -- to be clear -- by one arm of the government (and prosecution) against another.

I'm skeptical of the result.  Very skeptical.  But even if the Court of Appeal is right on the merits, it's a critical issue, and one that should be decided by the California Supremes.

Tuesday, July 11, 2017

Stone Creek v. Omnia Italian Design (9th Cir. - July 11, 2017)

Tons of fun stuff in this tiny little trademark dispute.  Regarding, as Judge McKeown's opinion puts it (tongue in cheek), "the high-stakes world of furniture sales."

Some snippets:

"The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia Italian Design, Inc. (“Omnia”), admits that it blatantly copied and began selling the same goods branded with the mark of its (now ex) business partner, retail furniture company Stone Creek, Inc. (“Stone Creek”)."

Well now.  That should make the case relatively easy, no?

Actually, no.  Since the district court below found in favor of the defendant.  Albeit in a decision reversed by today's Ninth Circuit opinion.


"To its credit, Omnia was candid. In an email from the Vice President of Sales, Omnia unequivocally admitted to selling furniture under the STONE CREEK mark. In a move not recommended when litigation is certainly impending, the email observed: 'In this day of internet shopping and surfing, it is unfortunate and probably a nuisance for you that your stores are receiving inquiries regarding these products due to the similar name.'”

Yeah.  Kind of unusual to see that type of honesty.  Refreshing.  But given that the honest party loses in the Ninth Circuit, that's not likely to encourage its repetition, I imagine.

Read the whole thing for a romping good time.  (If you're heavily into IP, anyway.)

Monday, July 10, 2017

Get Those Cases Out (9th Cir. - July 10, 2017)

The summer often sees a broad dump of published opinions.  Some may say that's a result of the excitement of working had over the summer.  Doubtful, for sure.  Others may more plausibly claim that the influx of new law clerks and the outflow of old clerks means that there's an impetus to finally get those lingering opinions done before the old clerks leave.

Either way, today sees not one, not two, not three, but eight different published opinions issued by the Ninth Circuit.  Opinions that run the gamut from the disputed ownership of paintings looted by the Nazis, whether used car dealers have to make their vehicles available for test drives by the disabled, and doctrinal issues involving forum non conveniens,(essentially) tribal sovereign immunity, and quasi-judicial absolute immunity.  Weighty stuff all around.  All alongside more pedestrian matters like whether a particular plaintiff is entitled to social security disability payments.

So there's something for everyone today.  Take your pick and read the one that you think might excite you the most.  It's a grab-bag Monday.

Friday, July 07, 2017

Espejo v. Copley Press (Cal. Ct. App. - July 7, 2017)

Darn it, darn it, darn it.  I was born in the totally wrong era.

The Court of Appeal decides a case today involving a class action brought against the Copley Press, which publishes the San Diego Union Tribune, in which the plaintiffs claimed -- and won -- that the U-T's newspaper delivery people were employees rather than independent contractors.  The Court of Appeal reverses a tiny bit of that victory and remands, but in large part, the merits are affirmed.

Which bums me out, because I too was an alleged "independent contractor" in my youth.  Albeit a newspaper delivery person for the Washington Post back in Virginia.  Back in the days -- and this demonstrates my advanced age -- in which we delivered newspapers by walking door to door, or by riding our bikes, rather than by driving our vehicles.  (Not that my brother and I were old enough to drive anyway.  We were probably twelve or fourteen at the time.)

I'd have been part of a successful class action!  Maybe, anyway.  I could definitely have used the money at the time.  Especially since I was the worst -- literally, the worst -- at the actual "collecting the subscription dues" part of the job.  I bet I worked for a year, getting up super early, and made a total of $10.  Because I had to pay for the papers, I had to collect from the subscribers, and to the degree there was any shortfall in the latter, that was my problem, not the Washington Post's.

Memories of a misspent youth in Virginia.

Thursday, July 06, 2017

Padilla-Ramirez v. Bible (9th Cir - July 6, 2017)

Today's Ninth Circuit opinion doesn't necessarily sound like a typical Judge Wallace opinion.

Sure, it reaches the result you'd expect from Judge Wallace.  It's a close immigration case involving a guy who's got a decent argument -- indeed, one that the asylum officer thought was right -- that he'll be tortured or killed if he's sent back to El Salvador.  The guy has nonetheless been kept in detention (read: prison) with no bond hearing, and he thinks that's wrong.  The Second Circuit agrees with him, and says that people like this are entitled to a shot to obtain bond.  But Judge Wallace doesn't think so, and authors and opinion explaining why.

The Second Circuit is left of center, and Judge Wallace most definitely is not.  Understandable.  And with Judge Bybee also on the panel, the result isn't all that surprising.

But the language somewhat is.

This is not a strident, take-no-prisoners opinion.  A type that Judge Wallace has definitely authored on multiple occasions in the past.  Today's opinion is instead downright moderate, at least in tone.  Take a look at Part III.D. of the opinion for a classic example in this regard.  There's tons of stuff in there about how the panel knows it's (allegedly reluctantly) creating a circuit split by disagreeing with the Second Circuit, how immigration law in particular is supposed to be uniform, how it reaches its result an understanding that the Supreme Court might want to take the case up to make the law in all the circuits the same, etc.

That's not what you see in most opinions by Judge Wallace.  Trust me.

Some might argue that, perhaps, Judge Wallace has somewhat mellowed with time.  Maybe that's true, maybe -- quite possibly -- that's not.

Personally, I think the better explanation is found by looking at the third name on the panel.  One who joins Judge Wallace's opinion in full.  Judge McKeown.

Part III.D. sounds exactly like something that she'd write.  Not that I'm saying that she did.  But on occasion, to attempt to persuade another member of the panel, you write stuff that you think will get that person on board.  Stuff that you might not otherwise say if someone else was on your panel.  On occasion even adopting as your own suggestions from that other judge that you'd normally reject (or not have thought worth mentioning) on your own.

I think it quite plausible that the tone of today's opinion is explained in part by such a dynamic.

Which sometimes makes for a much more powerful (and/or palatable) opinion than would otherwise have been issued by a single judge acting on his own.

Wednesday, July 05, 2017

Petrocelli v. Baker (9th Cir. - July 5, 2017)

It's an ugly case.  You can see why the jury sentenced Mr. Petrocelli to death:

"On March 29, 1982, Petrocelli went on a test drive of a Volkswagen pickup truck with James Wilson, a used car salesman, in Reno, Nevada. At some point during that test drive, Petrocelli shot and killed Wilson. . . .

Nearly a year before killing Wilson, in May 1981, Petrocelli had pleaded guilty in Washington State to kidnaping his girlfriend, Melanie Barker. He had received a suspended sentence conditioned on his completion of a drug treatment program. Petrocelli absconded from the treatment program twice and never completed it. Petrocelli shot and killed Barker in Washington State in October 1981, five months before he killed Wilson in Nevada."

Bad facts for the defendant, for sure.

But the panel unanimously reverses the death sentence due to the admission of an expert's testimony at the penalty phase.  And this is not an isolated occurrence.  As the penultimate paragraph of Judge Fletcher's opinion recounts:

"We have encountered Dr. Gerow before. He testified for the prosecution in Sechrest in very much the same manner he testified for the prosecution in the case before us. Gerow testified that Sechrest “was an incurable sociopath” who was “extremely dangerous and could not be rehabilitated.” Sechrest, 549 F.3d at 813. We held in Sechrest that the combined effect of Gerow’s testimony and an instruction identical to Instruction 5 “had a substantial influence on the jury’s decision to sentence Sechrest to death.” Id. We similarly conclude, in this case, that Gerow’s improperly admitted testimony, understood in the light of Jury Instruction 5, “had [a] substantial and injurious effect or influence in determining the jury’s verdict.”"

Judge Christen's position is perhaps even stronger than the majority.  She says in her concurrence:

"I agree that Petrocelli’s death sentence must be reversed. I write separately because, in my view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and especially egregious trial error, or one that is combined with a pattern of prosecutorial misconduct, might warrant habeas relief, even if the jury’s verdict is not substantially influenced). Brecht’s footnote nine is rarely employed, but the Fifth and Seventh Circuits have each relied on it one time in cases where an error (or errors) did not easily fit into either the “structural error” or “trial error” category. The errors in Petrocelli’s case were equally pervasive, flouted Supreme Court authority, and undermined the integrity of the criminal justice process."

Strong stuff.

Thursday, June 29, 2017

Sato v. Orange County Dep't of Education (Cal. Ct. App. - June 29, 2017)

A"Defendant Orange County Department of Education (OCDE) hired plaintiff Michael Sato as a Systems Database Architect in August 2014. Within a matter of weeks after Sato started working at OCDE, Sato’s supervisors informed him that he would be terminated immediately. OCDE offered no explanation as to why Sato was being terminated, and Sato insisted that he had performed his duties satisfactorily during his brief period of probationary employment with OCDE. Before he was fired, Sato received no oral or written notice of his termination, and he was given no opportunity to be heard at a pre- or post-termination proceeding."

Huh.  That happens.  I wonder why he was so summarily fired?  I guess we'll have to read more of the opinion to get the juicy details.

Hold on.  Scratch that.  The Orange County school system has immunity under the Eleventh Amendment.  So we're not going to find out anything.

Tuesday, June 27, 2017

Hardie v. NCCA (9th Cir. - June 27, 2017)

There's hard core and then there's hard core.

The majority -- Judges Tallman and Friedland -- hold that the NCAA is allowed to categorically bar felons from coaching at NCAA-certified youth athletic tournaments even if that rule has a disparate impact on minorities.

The concurrence -- Judge Faber, sitting by designation from West Virginia -- totally agrees, and would also go further and expressly hold that Title II doesn't even allow disparate impact claims in the first place.

And Judge Faber would do so even though the NCAA expressly abandoned this argument in its briefs on appeal, which was only raised by amici.

That's the hardest of judicial core.

Monday, June 26, 2017

Miranda v. Selig (9th Cir. - June 26, 2017)

Sometimes you file appeals (or even entire lawsuits) knowing full well that they're going to lose, but hoping -- sometimes without hope -- that the United States Supreme Court will eventually step in.

Almost always, you're totally right that you're going to lose, and your hopes for Supreme Court review are -- almost always -- similarly dashed.

All of these are thoughts that I had when I read this morning's Ninth Circuit opinion.

Of course the plaintiffs were going to lose in the Ninth Circuit.  Just as they did in the district court.  Just as they will (almost certainly) when they petition for certiorari in the Supreme Court.

Now, factually, are minor league baseball players underpaid?  Yes.  Potentially, criminally underpaid -- in a moral sense, anyway.  Absolutely.  Totally.  No question there.

(In this regard, some enlightening facts worth knowing from the opinion:  "Although MLB’s salary guidelines are not publicly available, the plaintiffs, a class of minor league baseball players [] allege MLB requires that all first-year minor league players earn $1,100 per month, Class-A minor league players earn $1,250 per month, Class-AA minor league players earn $1,500 per month, and Class-AAA minor league players earn $2,150 per month. The Players allege that most minor league players earn less than $7,500 per year, with some earning as little as $3,000. Minor league players receive no salary for spring training, during which they work fifty to sixty hours per week.")

Similarly, do the major league teams conspire to set those same salaries?  I'm totally confident (based on nothing) that they totally do.  Just like they control what team you play for in the minor leagues, how long you're bound to a given club once you're drafted, etc.  It's a business.  The teams conspire.

But does that violate the antitrust laws?

You know the answer as well as I do.  No.  Not at all.  Not according to precedent. Not only precedent, but longstanding precedent.  Precedent that might be crapola, but that Congress has not only never seen fit to change, but has affirmatively seen fit to retain (albeit in the context of making sure that the "baseball exemption" to the Sherman Act gets limited to baseball and not extended to other professional sports).

You can't file an antitrust lawsuit against baseball.  Period.  Including the one here.  If you want to change that, you need to persuade Congress.

And good luck with that.

Minor league baseball players strike out.

Thursday, June 22, 2017

Arias v. Raimondo (9th Cir. - June 22, 2017)

If you're an attorney representing a defendant in an employment-related case, sometimes you find out -- and have good reason to find out -- that the plaintiff employee is an undocumented alien and hence not allowed to work, or remain, in the United States.

There are definite strategic advantages to bringing that issue up with the authorities and having the plaintiff deported.

Just know this:  If you do so, you -- the lawyer -- can be sued for a ton of money under the retaliation provisions of the FLSA.

Definitely worth knowing.

Wednesday, June 21, 2017

Brewster v. Bick (9th Cir. - June 21, 2017)

I'm genuinely confused.

I'm incredibly sympathetic with the result reached in today's opinion by Judge Kozinski.  It's absurd that Los Angeles has a law that allows the city to impound a vehicle for 30 days -- a minimum of 30 days -- when it's driven by an unlicensed driver.  Sure, the City can impound the thing.  Sure, there's an interest in getting unlicensed drivers off the street.  But once (as here) the actual owner shows up, shows her valid license, and offers to pay all towing and impound costs, there's no doubt in my mind that the City should release the vehicle to her.  If she has to pay a subsequent fine as well, that's fine.  But the City says that even if all that happens, it has the right (and, under the law, a duty) to keep the vehicle in impound for the entire 30 days.  That's absurd, in my view.  Or at least incredibly unjust.

So when the Ninth Circuit today unanimously holds that this practice is unconstitutional, as a former vehicle owner in Los Angeles, I couldn't help but applaud.  Bravo.

Yet I seriously don't get the rationale behind the holding.

The City says that the seizure is an administrative penalty that's designed to stop unlicensed drivers, and also cites a plethora of cases that says that these sorts of things are permissible under the Fifth and Fourteenth Amendments.  Judge Kozinski's opinion, however, says that focuses on the wrong portion of the Constitution, and holds that the seizure here violates the Fourth Amendment because it's excessively lengthy.  Judge Kozinski says that the Fourth Amendment is simply different than the Fifth.

Judge Kozinski's definitely right that these are two different amendments.  He's also definitely right that there are indeed cases that say that an excessively long detention (of either property or a person) may well turn a valid search under the Fourth Amendment into an invalid one.

Okay, so they're different.  At least in part.

Let's put entirely to one side the fact that, in truth, as applied to alleged state misconduct (as here), both amendments are incorporated by the Fourteenth Amendment, so we're in truth actually only talking about the same amendment in both places.

Wholly apart from that, I just remain confused as to why the Fifth Amendment holdings aren't a substantive defense to the Fourth Amendment claim.

Judge Kozinski says that, sure, maybe the administrative penalty here is permissible.  Maybe it's okay under the substantive provisions of the Constitution (e.g., the Fifth Amendment) to punish someone who lets an unlicensed driver use her car by taking away that vehicle for thirty days.  That's an okay and legitimate way to deter such misconduct.  (In truth, you can tell from the footnotes that Judge Kozinski's not entirely sure that's right, but he concedes -- at least for purposes of argument -- that's perhaps true; he instead holds that it's irrelevant.  And the Fifth Amendment precedent here is indeed not so great for the plaintiffs, which likely underlies Judge Kozinski's argumentative concession.)

But, he says, just because you can validly seize a vehicle under the Fifth doesn't mean that a lengthy seizure is okay under the Fourth.


I gotta say, at least to me, it seems like the two inquiries have to overlap.  And I'm not exactly sure how Judge Kozinski's opinion deals with that overlap.

Let's take an easy example first.  A hypothetical.

Let's say that instead of saying 30 days', LA's ordinance is even harsher than it is, and says that if an unlicensed driver drives a vehicle, the City is allowed to take the vehicle.  It's forfeited.  Period.  That second and forever.  Let's also assume that such a seizure is permissible under the Fifth Amendment.  Then a plaintiff files a class action lawsuit (as here) that alleges that, regardless, that seizure violates the Fourth Amendment.

Well, geeze.  Plaintiff surely loses that one, right?  Because once the City grabbed the vehicle, it was theirs.  You weren't deprived of anything that was yours any more.  So the detention wasn't overly lengthy as far as you were concerned because the vehicle wasn't yours once the City seized it.  Seems to me that the City wins that case.

At a facial level, it would seem bizarre to me that a harsher ordinance that allowed a seizure forever (or for 1000 years) would be constitutional and yet a lesser ordinance that allowed a seizure for 30 days would suddenly become unconstitutional, no?

And the principle behind the hypothetical seems the same regardless of whether we're talking about pure ownership versus possessory interests.  The first thing one learns in Property class is that what we call "ownership" of a vehicle is really just a bundle of sticks.  Temporal possession is simply one of those sticks.  If the Fifth Amendment permits the City to punish you by taking away one of those sticks -- whether that stick is possession forever or for 30 days -- then once you commit the violation, you don't have that stick any longer.  So, to me, I'm not sure it makes sense to say that you've been deprived of that stick for an "excessive" period if we've already held that the City was entitled to take that stick entirely.  If they can seize the thing for 30 days as a penalty, then it's not yours (at least during that period), and you can't complain about that, under the Fourth Amendment or anything else.

So, if only as a doctrinal matter, I'm not entirely confident that Judge Kozinski's claim that the City's "focusing on the wrong Amendment" totally holds water.  Seems to me like there's huge overlap, and I leave the opinion -- even after thinking about it quite a bit -- wondering what the panel's response to this argument entails.

And then there's the additional little problem of precedent.

I don't want to get too much in the weeds here.  But the case that immediately came to my mind when I first read this opinion was Bennis -- a Supreme Court opinion that Judge Kozinski's opinion doesn't (I think) mention at all.  That's no only because that prior opinion squarely involved the analogous seizure of an automobile for (relatively) minor conduct, but also because the Supreme Court's holding in that opinion was memorably harsh.

The state in Bennis passed a statute that allowed the state to seize a vehicle -- forever -- if that car was used to pick up a prostitute.  Sure enough, a husband did just that, the state followed up on its statute and seized the vehicle forever, and the innocent wife, who co-owned the vehicle, claimed that seizure was impermissible.  Surely she hadn't done anything wrong, since she definitely didn't encourage her husband to pick up prostitutes in the car, and so even if you could punish her husband, she said, she thought that it was definitely impermissible to forfeit at least her half of car to the state.  Which was what the statute indeed did.

Pretty good argument, right?

No dice.  The Supreme Court held that it was perfectly okay to make the wife lose her vehicle forever.  The Constitution was completely okay with that.

Well, if a totally innocent person can lose her car forever if it's used for misconduct, I'd think that a partially culpable person (who deliberately loaned her car to an unlicensed driver) could lose her car for a lesser period of time (30 days), right?

Not according to today's opinion.  Which just seems odd to me.

Now, were he to mention it, I'm sure that Judge Kozinski would attempt to distinguish Bennis by saying that that was a case involving the Fifth Amendment, not the Fourth.  But two things would still stick out.  First, when you read Bennis, I think that every objective observer would be a thousand percent confident that a Fourth Amendment argument in that case would have fared no better -- and may even have fared worse -- than the Fifth Amendment argument that was rejected.  So it's a slender reed on which to distinguish a case if the Court itself would have definitely rejected that distinction.

Moreover, again, the rationale of Bennis just seems inconsistent with the Ninth Circuit's underlying holding.  The opinion in Bennis concluded by saying that the statute did not violate the Constitution because "the property in the automobile was transferred by virtue of that proceeding from petitioner to the State."  That underlying doctrinal rationale seems equally applicable to the 30-day possessory interest asserted in the present case; it was gone as a result of the underlying misconduct, so there's no constitutional violation.

Anyway, the long and short of all of this -- perhaps overly long, I admit -- is that I'm not sure that the Ninth Circuit's stark distinction between Fourth and Fifth Amendment claims in the present case is an obvious, or even tenable, one.  Seems to me that there's a darn good argument that if it's okay under the Fifth, it's okay under the Fourth as well.  At least in a case like this.

And that's from someone -- me -- who will freely admit that he'd be quite inclined to find that it violates the Fifth.

Tuesday, June 20, 2017

Jordan-Benel v. Universal City Studios (9th Cir. - June 20, 2017)

Claims that someone stole your screenplay and wrote the same thing are often weak.  This one may be otherwise, at least if you believe what's in today's Ninth Circuit opinion.

Here are the relevant facts:

"Around January 2011, Jordan-Benel wrote a screenplay entitled Settler’s Day about a family’s attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.

Around June 2011, Jordan-Benel’s manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency (“UTA”), about Settler’s Day. Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and Kramer. On July 8, 2011, Peck submitted the screenplay.

Based on custom and practice in the industry and prior dealings between UTA and Peck, UTA understood that the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client. Around July 13, 2011, Davis emailed Peck to confirm that he had read the screenplay but that he was going to “pass.” Nonetheless, someone at UTA sent the screenplay to UTA client James DeMonaco. DeMonaco and his partner, Sebastian Lemercier (also a UTA client), wrote a script entitled The Purge, which allegedly copies Jordan-Benel’s ideas from Settler’s Day."

That doesn't sound like an absurd claim, does it?  And there's a lot of money at stake, since there's not only the original movie, but also a couple of sequels.

Now, even with a decent claim on the merits, you need to make sure that you don't mess things up.  In the present case, there may well have been a strategic error, since the plaintiff not only sued to obtain damages, but also for declaratory relief that he was the owner of the screenplay and hence entitled to credit.

Two problems.  One, such relief is foreclosed by precedent.  Two, it potentially opens you up to an anti-SLAPP motion.

And an anti-SLAPP motion is precisely what the defendants file.

Plaintiff ultimately (and wisely) abandons the "credit" claim, but defendants press on with the anti-SLAPP motion, both below and on appeal.  And rightly lose.  Asking for money because someone stole your work doesn't arise out of free speech activity.  Judge Pregerson's opinion is spot on.

But it was still a strategic mistake to ask for credit.  One that might have cost the plaintiff on appeal (and still might cost them on remand, since the Ninth Circuit correctly notes that getting one SLAPP claim dismissed still might lead to a fee award even if the rest of the suit has merit.)

A reminder to be careful what you plead.

More is sometimes less.

Thursday, June 15, 2017

Rossdale Group LLC v. Walton (Cal. Ct. App. - June 15, 2017)

I often tell my students that capacity and standing are two different things, with different rules and procedures.  Justice Rushing amply highlights those differences in today's opinion.

The Court of Appeal's limited holding is that -- at least for standing purposes -- it's okay for a corporate entity to sue under a registered d/b/a, even if that's not its formal legal name.  But more broadly, the Court of Appeal also says that (again, for standing purposes anyway) it's even okay to sue under whatever name you'd like, even one that's totally fake.  So if I, Shaun Martin, want to sue as "John Doe", we know that's okay (fictitious names), at least in California.  But apparently I can sue under the name "Barack Obama" if I want to as well, as long as I'm asserting my own claims rather than this.  I can see some practical problems with that, but I concede I'm not exactly sure where they fall in the standing/capacity continuum, and, yeah, I guess it's not an actual standing issue since they are MY claims.  As long as I was the one who was, say, run over and injured, and that injury is what I'm indeed suing for, if I want to call myself Barack Obama, or the Tooth Fairy, in the complaint, I guess at least for purposes of today's holding, that lawsuit gets to go forward.

Interesting stuff.

It gets more complicated when, as here, the underlying corporate entity was dissolved.  Now, that is definitely an issue of capacity.  But there's a dispute about that; the plaintiff says that its assets and liabilities were taken over by another entity, the opposing party says that's not entirely true, etc. etc.

But that's not a standing issue.  That's something else.  SOMEONE was injured.  And SOMEONE is claiming to be that person.  Maybe they are, maybe they aren't.  When you're dealing with admittedly fictional entities like corporations and LLCs, that's maybe not so easy to tell.

So that's an issue.  Just not, as Justice Rushing explains, one that involves standing.

U.S. v. Hernandez (9th Cir. - June 15, 2017)

I seriously don't know how we expect juries to do their job competently.  Because I'm not a moron, and have also been an attorney for a quarter century now, and even I can't fully follow the Ninth Circuit's explanation today as to what it means (or what we have to tell a jury) when we say that someone who ships firearms from one state to another may be acting in "willful"violation of the law.

If even someone like me can't fully understand what we're saying, how in God's Green Earth can we expect a jury of laypeople with absolutely no legal training to figure it out on their own (instructed properly or not)?

I understand why there's sufficient evidence to convict here.  Mr. Hernandez drove a super long way to buy a ton of guns in Arizona that he couldn't have bought in California, and then drove back here and they ended up in the hands of others.  Yeah.  That may well be illegal.

But it's only illegal if it's willful, and, geeze, I'm just at a total loss to explain to a nonlawyer -- or even a lawyer! -- what the true dividing line is between willful knowledge of illegality and lack of such knowledge.  Even after reading the opinion.

Look, I understand, we have to do our best, and I appreciate the Ninth Circuit both caring deeply about the issue (it reverses the conviction here because the instruction, while admittedly "accurate", allegedly wasn't "clear enough") and trying their absolute best.

But lots of the opinion nonetheless reads like eleventh century theological analyses of how many angels can fit on the head of the opinion, and -- worse -- how to explain that reasoning to largely disinterested nontheologians.