Thursday, January 19, 2017

Safari Club Int'l v. Rudolph (9th Cir. - Jan. 18, 2017)

I'm generally okay with those "create a theme based on the case" type of opinions.  Not a fan of them, to be sure, but if they're done well, I'm okay with it.  I know others disagree, and think that it makes light of the litigants.  I get that.  So, at a minimum, if you're going to do it, make sure you do it well.

I'm not sure that this opinion from the Ninth Circuit satisfies that standard.

Here are the first two paragraphs of the opinion:

"Dr. Lawrence P. Rudolph is an award-winning hunter who made his way to the top of Safari Club International (“SCI”), a sport hunting and wildlife conservation organization. Following his term at the helm, various SCI members accused him of official misconduct, stripped him of his awards, and then exiled him permanently from the association. That’s when the season opened. Rudolph sued SCI and its president, his friend, John Whipple, whom he assured was named only by virtue of his position at the head of the organization. With his quarry in sight, Rudolph lured Whipple to lunch, brought up the pending litigation, recorded the conversation surreptitiously, and then posted it on YouTube for public consumption.

Outraged, Whipple and SCI fired back at Rudolph with a barrage of legal claims, including statutory invasion of privacy, negligence per se, and common law invasion of privacy. The district court granted Rudolph’s motion to strike under California’s anti-SLAPP statute as to four claims for relief, but denied the motion as to these privacy claims, finding plaintiffs had demonstrated a reasonable probability of prevailing on the merits. On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place. Rudolph’s marksmanship, apparently on target in the tundra, here is wide of the mark. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

Maybe it's just me, but I found all those hunting references distracting and not worth much humor value.  The fact that the underlying humor involves killing living things (and translating that to the ostensible hunting of humans) probably doesn't help either.

On the merits, I totally understand where the opinion is coming from, and why it affirms the denial of the anti-SLAPP motion.

I just have one question.

In first -- extremely long -- footnote, the opinion notes that the plaintiff passed away in late 2014, and that this death mooted (under state law) most, but not all, of the types of damages sought in the case.  The opinion goes on to suggest at some length that this might well obviate Article III standing, but then notes that since the parties didn't raise or brief this issue, the Ninth Circuit was leaving this issue for determination by the district court on remand.

Can you really do that?

I thought that Article III standing was a prerequisite for an appellate decision as well.  So if there was a question about it, that'd have to be something decided first -- by the Court of Appeals -- before the appeal gets resolved.  After all, if there's no Article III standing, then the Ninth Circuit doesn't have jurisdiction to decide the case.  Period.  Right?

It might be otherwise if we were only dealing with prudential standing.  But the Ninth Circuit makes clear that we're talking entirely about Article III standing.  That you've gotta have.  So it seems to me the Court of Appeals has to first decide whether there's in fact standing, and hence jurisdiction, and can't simply decide the appeal on the merits and then remand the case back to the district court for a determination of whether or not there's constitutional standing.

Am I wrong?  Missing something?

Wednesday, January 18, 2017

Chen v. LA Truck Centers (Cal. Ct. App. - Jan. 18, 2017)

I took a Conflict of Laws class in law school.  Not many other people did.  It was interesting.  -Ish.  I learned some concepts that I hadn't heard of before.  Like renvoi.  Or at least the word for it.  And the fact that I still remember this concept places this class slightly above some of the other classes I took in law school.

As I occasionally tell my civil procedure students, sometimes, decisions about the relevant choice of law matters.  A lot.

And now they don't have to just believe me.  They can just read this opinion.

Huge bus accident.  Massive injuries.  Lots of money at stake.  Plaintiffs sue because the passenger bus doesn't have seat belts.  Hence the passenger ejections after the bus rolled over multiple times.  But maybe lap belts are counterproductive in front-end bus accidents, which are much more common.

Defendants prevail at trial, in part because the trial court applied Indiana law.  The Court of Appeal reverses because it concludes that California law should have applied, and is better.

There are a couple of other subsidiary holdings that are important as well.  For example, the Court of Appeal holds that choice of law rulings are always subject to reconsideration (even without new facts or law) because they're just essentially preliminary in limine decisions.  The opinion also holds that in a multidefendant case, the fact that one (or more) defendants settles out -- as here -- may alter the choice of law analysis and result in the application of a different law.  That's important.

One argument the opinion makes seems definitely wrong to me.  Justice Rubin says (in defending the decision that choice of law may potentially change as parties settle) that "We think it unlikely that parties would settle, or hold up a potential settlement, based on the effects a settlement might have on the law to be applied when the remaining parties proceed to trial."

I disagree.  Good lawyers will -- and should -- think about precisely that after today's decision.  If I'm a plaintiff, and I've got multiple defendants, one of whom is more California-centered than the others, I'm definitely going to offer more favorable settlements to some (or all) of the other defendants if I think that'll help me get a more favorable California law applied to the remaining defendants.  I'll be thinking about this too on the defendant's side; among other things, if getting my client out will help the plaintiffs obtain favorable California law for the others, I'll surely be making this argument at the mediation, and probably upping my settlement number (or increasing my resolve) as well.  'Cause it's in fact worth it to buy me off.  (And it goes the other way too; after today's holding, if I'm a plaintiff, I might hold off settling with the California defendant if I think that'll make me lose the benefits of favorable California law -- maybe I'll settle with them after the trial, or do a high low (maybe where the high is $10 higher than the low), or do something else that'll get me the relevant dollars but still keep them in the case.)

Sure, some lawyers won't figure this out.  Or think that deeply.

But the good ones will.

People v. Pinon (Cal. Ct. App. - Jan. 17, 2017)

I haven't seen an amended opinion that's this type of terse:

"It is ordered that the opinion filed herein on December 15, 2016, be modified as follows:

On page 14, third line of the first full paragraph, after the sentence ending “with the local chief of police,” add as footnote 8 the following footnote:

In a petition for rehearing, the People withdrew their concession on this issue and argued, based on In re Guiomar (2016) 5 Cal.App.5th 265, and In re C.H. (2016) 2 Cal.App.5th 1139, review granted November 16, 2016, S237762, that defendant is required to register. We find those cases to be inapt."

Usually if you amend an opinion to distinguish a case or two, you say more than just that you find them inapt, without explaining why they're so-not-apt.

But apparently Justice Ikola thinks that simply calling them inapt is sufficient here.

Tuesday, January 17, 2017

Dep't of ABC v. ABC Appeals Bd. (Cal. Ct. App. - Jan. 17, 2017)

After a long holiday, we get some interesting published opinions from the California Court of Appeal.

Here's one I think you'll like.

It's a straightforward question.  You might not even think it worthy of an 18-page opinion (though I'd disagree.).

To be clear:  It's not an easy question (at least not from my perspective), and reasonable minds might well disagree about it.  Indeed, as I was reading the opinion, I got the feeling there was a dissent, but there wasn't.

It's not even a question that requires you to know any context.  Or facts.  Or anything.  It's simply a categorization question.

Here it is:

When you hand your driver's license to the checkout clerk at a store, and after examining the license to determine your age, the clerk responds "I would not have guessed it, you must get asked a lot," is what the clerk said a "question about [your] age"?

Let's break that down.  Is it a question?  It is about your age?

What do you think?  (And, yes, that's a question.)

Let me repeat again what the clerk said:  "I would not have guessed it, you must get asked a lot,"

(Notice that I didn't add any punctuation at the end, lest I prejudice your view.)

Statement?  Question?

The Court of Appeal holds that it's not a "question" at all, but rather is a statement.

You could interpret it one of two ways.  First, you could say that it's a statement.  "I  would not have guessed it" is clearly a statement, not a question.  "You must get asked a lot" is less clear.  Maybe it's a statement.  Facially it is.  Indeed, facially, it's a strong statement.  You must get asked that a lot.  So don't even bother responding, because it's obvious.  A must.

But you could also easily view it as a question.  Essentially, "You must get asked a lot, right?"  And in common parlance, we'd usually take it that way.  "Must" doesn't actually mean "must".  Ironically, it means more like "maybe".  As in, "You might get asked that a lot.  Do you?"  A question.

What's riding on all of this, by the way, is whether a particular CVS gets suspended from selling booze for 15 days.  Because the ABC uses underage decoys to try to buy alcohol, and (at least in this case) has them present a valid driver's license that clearly shows that the person is UNDER 21 to see if the store will nonetheless accept it.  As the clerk did here.

But the regulations also provide that the underage decoy has to honestly answer all "questions about [his or her] age."  So if, for example, the clerk said "How old are you?", they'd have to answer "18".

So what about the question/statement here?

The decoy didn't say anything.  He just kept silent.  The Court of Appeal says that's okay because the clerk wasn't asking a question, but was merely making a statement.

The English language is a funny thing.  Grammatically what the clerk said was indeed probably a statement.  But we'd all understand it to nonetheless be a question.  If someone said that to you -- in this context, especially -- and you stayed silent, that'd be considered rude, I think.  You'd have been "asked" a question and refused to answer it.  We expect you to "answer" by saying "Yeah, I get that a lot" or "No, this is the first time" or something like that.

And the fact that most of the normal ways people usually respond to a statement/question like this begin with either "Yes" or "No" also tends to suggest that we understand that statement to in fact be a question -- one that "requires" an affirmative or negative response, either expressly or by implication.

There's further complexity involved, too.  A statement can easily be made into a question just by how it's uttered.  "You're 22." is different than "You're 22?", the only difference being the raised pitch at the end.  But we don't know exactly how the question/statement here was asked because (1) we were not there, and (2) only have the decoy's testimony about what was allegedly said (and even then, it's just paraphrased).

Interesting stuff.  (Or, "Interesting stuff?")

Thursday, January 12, 2017

In Re M.F. (Cal. Ct. App. - Jan. 12, 2017)

My first reaction to this morning's opinion was a totally juvenile one:  "In re: M.F.  Ho ho ho."

My second reaction was:  "He gets 480 days in a juvenile residential facility?! That sounds like a lot. Especially since what he got busted for was just passing an (admittedly disturbing) note to one of his teachers."

Then I read the full facts.  Oh my.

You know how you sometimes say:  "Wow.  That kid really had a problem."  Especially after that kid subsequently shoots up a school, or church, or shopping mall?

The facts of this opinion read like this is precisely one of those kids.  Albeit one who, thankfully, was discovered -- and hopefully will be helped -- before it comes to that.

From San Diego, no less.

Wednesday, January 11, 2017

Healthsmart Pacific v. Katateck (Cal. Ct. App. - Jan. 11, 2017)

The Court of Appeal says today:

"On the court’s own motion, the opinion filed in the above-entitled matter on December 19, 2016, shall be modified in the following manners:

On page 20, in the first full paragraph, the third sentence is deleted and replaced with the following sentence:

Plaintiffs also compare Drobot’s admission that he bribed Senator Calderon in various ways that did not involve prostitutes with the suggestion that Drobot was involved in supplying prostitutes as bribes or kickbacks."

That edit reflects one of the central problems with the modern legislative world.  It's just so hard to keep straight the precise relationship between the bribes and the provision of prostitutes.

Tuesday, January 10, 2017

Pure Wafer Inc. v. City of Prescott (9th Cir. - Jan. 10, 2017)

For a good example of how you can win the battle but lose the war, check out today's opinion by the Ninth Circuit.

The district court held that the City of Prescott, Arizona, had unconstitutionally impaired its contract with Pure Wafer, Inc. when it passed a certain environmental regulation.  The City filed an appeal, and the Ninth Circuit agreed that there was in fact no such unconstitutional impairment.

But the Ninth Circuit went on to hold (albeit in a split opinion) that the City didn't impair the contract because it breached it instead.  Which means that Pure Wafer gets pretty much identical relief, albeit on alternative grounds.

That's the problem with bad facts, sometimes.  Which were here (against the City) in spades.

They'll bite you in the end.

Monday, January 09, 2017

Mathews v. Harris (Cal. Ct. App. - Jan. 9, 2017)

"Plaintiffs Mathews and Alvarez have treated numerous patients for sexual addiction, compulsivity and other sexual disorders, who admit downloading and viewing child pornography on the Internet. Based on their training and experience, plaintiffs do not believe those patients present a serious danger of engaging in “hands-on” sexual abuse or exploitation of children or the distribution of child pornography: they typically have no criminal history, have never expressed a sexual preference for children, and voluntarily participate in psychotherapy to treat their disorder, which often involves compulsive viewing of all kinds on the Internet."

Too bad.  The Child Abuse and Neglect Reporting Act (CANRA) makes these people mandatory reporters.  So they've got to rat out their patients.

So they'll have to lie to their doctors about what they're doing.  Good luck getting successful voluntary treatment that way.

There's no constitutional violation.  And to add injury to insult, the Court of Appeal awards costs against the plaintiff.

Friday, January 06, 2017

People v. Starski (Cal. Ct. App. - Jan. 5, 2017)

There are a lot of ways you can go after you fail to make it past your first year of law school.  You can try to get admitted to a different (potentially unaccredited) law school.  You can try to become a paralegal.  You can get a job in a non-legal field.

Or you can simply pretend that you're an attorney.

That's what Edward Starski did here.  According to the Court of Appeal, he attempted to shakedown a lumber mill by pretending to be an attorney with a fake injury claim on behalf of his father in law.  He had filed "lots" of lawsuits -- but less than 50 -- before, and "won most of them".  He gave a variety of reasons why he claimed to be entitled to pretend to be an attorney.  None of them persuasive to the jury, which found him guilty on all counts, including the unauthorized practice of law and attempted grand theft.

Oh, and Mr. Starski couldn't even remember which law school he had attended.  At trial, he said he had attended the University of Colorado, Sturm College of Law.  But as the Court of Appeal notes in a footnote: "This was not correct: Sturm College of Law is a part of the University of Denver, not the University of Colorado."

Mr. Starski does succeed on one point.  He doesn't get sentenced to actual prison time.  Just probation and a suspended sentence.

So that's something.

Thursday, January 05, 2017

Barry v. State Bar (Cal. Supreme Ct. - Jan 5, 2017)

When I read the Court of Appeal's opinion way back in 2013, I immediately wrote a lengthy missive -- some would say diatribe -- I said that the opinion seemed totally and completely wrong to me, and that I hoped the California Supreme Court would take the case up and reverse it.  Even though it was only about a $2,500 award of attorney's fees.

(The opinion is about whether a trial court can grant an anti-SLAPP motion and award fees to the prevailing defendant even if it turns out that there is no subject matter jurisdiction.  The Court of Appeal reversed the trial court's award and said "No.")

But, as I mentioned in the post, when I discussed the case with my wife, she thought that the Court of Appeal's opinion made a fair amount of sense, and leaned that way.  Which persuaded me that perhaps the opinion wasn't crazy, though it still seemed totally wrong.

Well, the California Supreme Court did take up the case, and at long last, today, issued its opinion.

Agreeing with me and reversing the Court of Appeal.  Unanimously.

This is, in my mind, yet another example of Harvard (my alma mater) beating Yale (my wife's).


Wednesday, January 04, 2017

North 7th Street Assocs v. Costante (Cal. App. Div. - Jan. 4, 2016)

The opinion published today by the Appellate Division (in Los Angeles) says:

"On November 3, 2014, plaintiff filed an unlawful detainer complaint alleging . . . [that] defendant took possession of the premises at 1442 Alvarado Terrace, #2, in Los Angeles, pursuant to an oral month-to-month rental agreement [and] that defendant agreed to pay $166.95 monthly on the first of each month."

Wow.  Rent of less than $167 a month in Los Angeles?!  I didn't know there was anywhere where you could get such a deal.

Here's the place, by the way.

Turns out defendant wins the eviction suit anyway.  On both the back rent as well as possession claim, since there's no certificate of occupancy.

So that's an even better deal. Monthly rent of $0.

Tuesday, January 03, 2017

Briseno v. ConAgra Foods (9th Cir. - Jan. 3, 2016)

I wish I could say that the Ninth Circuit and California Court of Appeal returned from their long (at least formal) vacation breaks with a vengeance, and cranked out a couple of dozen published opinions that are of the must-read variety.

But that'd be a lie.

Now, if you're a class action attorney (on either side), it's a somewhat interesting day for you.  There are not one, but two class action opinions from the Ninth Circuit today.

But I'm definitely not going to talk about the first one.  Because, sure, there are some people who may be keenly interested in the tortured history of competing state court class actions -- and the competing settlements that were then negotiated -- against Safeco Insurance, as well as whether the interlocutory review provisions of CAFA apply to minimal diversity and/or federal question cases.

But unless you're a class action/civil procedure geek -- and, I mean, a real geek -- the number of such interested persons is likely to be small.

The second class action opinion might be a tiny more interesting.  Or at least accessible.  Plaintiffs say that ConAgra lied (or was at least deceptive) when it called its Wesson cooking oil "100 percent natural" since it uses bioengineered ingredients.  Sounds like a decent class action to me.

But ConAgra claimed that the class couldn't be certified because there's no "objective" way to tell who actually bought Wesson cooking oil during the relevant years.  Since you don't have to sign anything or put your name down when you buy the stuff at the supermarket.

The district court disagreed.  It certified the class.  ConAgra was granted permission to appeal.

But the Ninth Circuit affirms.

As, in my view, of course it should.

Yes, there's no "objective" way to tell if someone's a member of the class.  Just like there's no "objective" way to tell virtually anything in the universe.  We rely on people's testimony.  Their records.  Their whatever.  Yes, people can lie.  And documents can be faked.

So what.  That doesn't mean that a class action can't exist.  Any more than it means that someone can't recover for personal injuries, or breach of contract, or any other legitimate -- or, potentially, factually illegitimate -- claim.  You present your evidence and the trier of fact decides.  End of story.

Much less should a company get away with (allegedly) deceiving millions of people about its products just because you don't have to fill out a form in triplicate and have your picture taken in order to buy that product.  Too bad.  People can testify, under oath, that they bought the thing.  If ConAgra thinks that they're lying, prove it.  Good luck.  If ConAgra's evidence is believed, that class member won't recover.  But the fact that ConAgra doesn't feel like taking someone's word for it no more stops a class action from being certified than the fact that a different class action defendant doesn't feel like taking a class member's word for it that the product is causing them immense physical pain would stop a class action there.  Go ahead.  Prove it.  Not a barrier to class certification.

Judge Friedland reaches this same conclusion using words and concepts that are a bit more articulate.

But to the same end.

Thursday, December 29, 2016

Los Angeles County BOS v. Superior Court (Cal. Supreme Ct. - Dec. 29, 2016)

Today's opinion from the California Supreme Court is a close one (4-3), but ultimately holds that municipalities can be required to turn over under the Public Records Act some billing records sent by outside law firms -- at least for litigation that has already concluded.

The second paragraph of Judge Werdegar's dissent suggests that she's not fond of the ruling, and also provides a reminder that we all need to make sure to proofread one final time to ensure that any "track changes" don't get included in the final document.  That paragraph reads:

"With today‘s decision, a majority of the court undermines this pillar of our jurisprudence, finding legal invoices sent from a law firm to its client, although initially protected by the attorney-client privilege, may lose such protection once the subject litigation is concluded. This conclusion finds no support in the plain meaning of the words of the attorney-client privilege as set forth in Evidence Code section 954, and are in fact contrary to a recent decision by this court interpreting the scope of the privilege."  (underlining in original)

On the merits, it's a good debate. Both sides have reasonable positions.

But one side has 4 votes, and the other side has 3.

Tuesday, December 27, 2016

Davis v. CEC (9th Cir. - Dec. 27, 2016)

How many times do you see laws struck down as violating the Fifteenth Amendment?  Heck, when was the last time you even saw such a thing?!  (Or, as a slightly easier question, what's the Fifteenth Amendment in the first place?)

Chief Justice Thomas tells you most of what you need to know in the first paragraph of today's opinion:

"The Commonwealth of the Northern Mariana Islands restricts voting in certain elections to individuals of 'Northern Marianas descent.' This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court."

The Supreme Court struck down a similarly defective statute in Hawaii in 2000.  The Ninth Circuit does the same thing for the CNMI today.

No race-based disenfranchisements, thank you.

Monday, December 26, 2016

McNair v. NCAA (Cal. Ct. App. - Dec. 23, 2016)

Since we're still in the court holiday season -- and hence on published opinion hiatus -- I thought I'd go back and mention the last published opinion rendered before the holidays.

Given that the holiday season includes a ton of football games (both college and pro), it's an opinion that's particularly timely.  If only because it involves a lawsuit brought by Todd McNair, who was a former player and assistant coach.  He doesn't like what the NCAA did to him, so he sued.  A lawsuit that's gone on for many years, and -- as the Court of Appeal notes -- "has been assigned to eight trial judges in five years."  Not exactly what you want, either from the perspective of the litigants or of the system.

Over half a decade ago, the NCAA filed a peremptory challenge to the original judge, then filed an anti-SLAPP motion, which the trial court denied.  The NCAA filed an appeal, which it partially won, and then on remand, the NCAA filed another peremptory challenge that struck the judge who denied its anti-SLAPP motion.  You're allowed to do that under the statute since you prevailed on appeal, and the trial judge accordingly recused himself.

But McNair files a writ, and the Court of Appeal reverses.  The opinion holds that a party is only allowed to paper the judge twice if they obtain a reversal on appeal from a final judgment, whereas the reversal here was from an interlocutory anti-SLAPP appeal.

There's some textual support for that position, since the second sentence of Section 170.6(a)(2) does indeed expressly say "final judgment".  But there's also textual support to the contrary, since the first sentence of exact same section says "a motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment."

The Court of Appeal nonetheless holds that the statute is unambiguous.  So we can entirely ignore legislative history, as well as pretty much anything else.  You only get to a paper the judge a second time if you get a reversal of a final judgment.  And since that didn't happen here, no second paper, and we'll reverse the contrary decision below.

At least now we know the rule.

Wednesday, December 21, 2016

U.S. v. Thomas (9th Cir. - Dec. 20, 2016)

Judge Kozinski asks:

"Joel Leon Thomas, Jr., barely 24 years old when he was sentenced, will be 73 when he gets out of prison. How did a young man get half a century following a conviction for three bank robberies—two of which he wasn’t present for and none of which resulted in physical harm?"

I might add that Mr. Thomas doesn't even have much of a criminal history either.  This isn't someone who's clearly unredeemable.  Yet he'll likely be in prison for pretty much his entire life.

Judge Kozinski thinks Mr. Thomas is in prison forever due to a mistake by the trial judge.  Maybe that's right.  But Judge Kozinski believes so in dissent.  The majority says that it's not a mistake.  It's a result of mandatory minimums; in particular, how they work with the guidelines.  And it's clear that Judge Schroeder is right, at least in part.  Because as she notes, here's the law in the Ninth Circuit:

"The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable within the meaning of 18 U.S.C. § 3742. We have expressly so recognized. We have held that the district court must impose a mandatory minimum sentence even if doing so “makes it impossible for the judge to impose a total sentence that the court considers reasonable.” United States v. Washington, 462 F.3d 1124, 1140 (9th Cir. 2006)."

So even if the total sentence is unreasonable, there's nothing the judiciary can do about it.

Look, you'll have a hard time arguing that it violates the Eighth Amendment to say that 50 years for a series of bank robberies in necessarily cruel and unusual; i.e., so unreasonable that it's a violation of the Constitution.

But when history looks back and judges the way we punish people, I don't think that it'll view fondly the fact that we threw human lives away forever for crimes in which no one got hurt and in which the defendant had the possibility of living a productive, meaningful life.

A possibility that we deliberately took away.

I'm no fan of bank robberies.  But this seems too much.

Tuesday, December 20, 2016

Fowler Packing v. Lanier (9th Cir. - Dec. 20, 2016)

The Ninth Circuit invites us in today's opinion to watch the oral argument in order to confirm that the defendants made a particular (important) concession.  (Footnote 4)  That makes sense.  Though it's a 50 minute oral argument.  It might help to identify the particular portion of the argument -- i.e., which minute -- so we don't have to go through the whole thing.  Presumably someone watched it at some point.

The other funny thing is that Judge Gould refers the reader to YouTube to watch the argument.  Okay, I sort of get that.  The Ninth Circuit does indeed post some of its arguments to YouTube.  And I went ahead and watched it there.  Works just fine.  (You can also vote the thing "Up" or "Down", but the Ninth Circuit has disabled comments, so no yapping about the case there.)

But the Ninth Circuit also has its own site where you can watch the thing.  Without ads or anything like that.  Same exact video.  Somewhat funny that we're directed to a for-profit site instead.

POSTSCRIPT - An astute reader notes that footnote 4 contains a reference to minutes 25 to 27 of the video.  Maybe I missed that on a first read, or maybe the reference was added after.  Regardless, I checked out those minutes, and, yep, they're the right ones.  Thanks for that, Judge Gould!

Monday, December 19, 2016

People v. Mickel (Cal. Supreme Ct. - Dec. 19, 2016)

There are no published opinions from the Ninth Circuit today.  Pre-Christmas lull.  There's only one published opinion from the California appellate courts thus far today.  Perhaps inconsistently with the holiday spirit, it's from the California Supreme Court, and it's a case in which the Court unanimously affirms a death sentence.

Not that the prosecution was all that hard.  Defendant admitted that he ambushed and killed a police officer as a "political" statement.  He left a homemade flag next to the officer's body with the phrase "This Is A Political Action. Don‘t Tread On Us‖" written below the image of a snake.  Then he flew to New Hampshire, talked to a reporter, and turned himself in.

He also represented himself at trial.  Or at least sort of did.  He didn't put on any actual defense.  He said he would "sit in silent protest during the guilt phase" and that "not speak or raise any issues until the penalty phase," and during his brief closing statement, he told the jury that he'd explain during the penalty phase why he had killed Officer Mobilio.

Needless to say, it took the jury only 45 minutes to find him guilty.

Then there's the penalty phase.  "During the penalty phase, defendant also testified that he had acted out of a sense of patriotism. Defendant ultimately presented the theory that he had killed Officer Mobilio in order to defend constitutionally guaranteed liberties that he believed the government was infringing, including the right to bear arms. Defendant explained that he came to California to kill a police officer because he wanted his actions to make a national statement. He believed California to be the least gun-friendly state in the country, and where "the war on drugs is fought the hardest." Defendant traveled to California in September 2002 to find a location where he could ambush a police officer, drive back to Washington, and then fly to New Hampshire without being arrested. He explained that he had intentionally chosen New Hampshire as the location where he would be arrested because he believed the New Hampshire Constitution guaranteed the right of revolution."

Yeah. Okay.  Anyway, you can figure out the rest.

Friday, December 16, 2016

Veera v. Banana Republic (Cal. Ct. App. - Dec. 15, 2016)

Here's a nice summary of the opinion, courtesy of Justice Willhite:

"Plaintiffs . . . filed a putative class action against Banana Republic, LLC, a clothing and accessories retailer with stores throughout California, alleging that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not disclose that the discount applied only to certain items. . . . In opposition to Banana Republic’s summary judgment motion, plaintiffs produced evidence that in reliance on the allegedly false advertising, they were lured to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, plaintiffs were told for the first time that the advertised discount did not apply to their chosen merchandise. Having waited in line to purchase the selected items, and out of frustration and embarrassment, they ultimately bought some (but not all) of the items they chose even though the discount did not apply. The trial court granted summary judgment in favor of Banana Republic, concluding that plaintiffs lacked standing because they failed to raise a triable issue whether they suffered injury in fact and lost money or property. In this appeal by plaintiffs, we conclude that neither the ground cited by the trial court, nor the other grounds raised in Banana Republic’s motion, support summary judgment. Instead, we conclude that on the evidence presented, plaintiffs raised a triable issue whether they lost “money or property sufficient to qualify as injury in fact, i.e., economic injury,” and whether “that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset).) Therefore, we reverse the judgment."

I'll also say that the underlying facts of the case seem to me to accurately describe how economic injury -- as well as unfair competition -- might well result from allegedly misleading "sale" signs.

Here's one of the plaintiff's story:

"Cherilyn DeAguero testified in her deposition that on November 7, 2010, she and her 14-year-old daughter were driving past a Banana Republic store on Ventura Boulevard in Studio City. DeAguero saw a large red sign in the store window stating in black letters “40 percent off.” She pointed it out to her daughter, and they decided to stop and go shopping. Based on the 40 percent off discount, DeAguero thought she would be able to buy six to eight outfits for her daughter, who required a variety of outfits for auditions in her acting career. . . .

After shopping and trying on outfits for approximately 40 minutes, DeAguero’s daughter chose eight pieces and wore one new outfit out of the dressing room. They went to the register, and the sales clerk began ringing up the items. DeAguero was talking excitedly with the customer behind her, stating “This is great, 40 percent off.” The clerk told her the items she was purchasing were not 40 percent off. DeAguero replied that the sign indicated everything was 40 percent off, but the clerk said the discount did not apply to the items she chose.

DeAguero became embarrassed, noticing that the line behind her was getting long. She found the experience “humiliating,” because she was trying to remain in a budget but did not want to make her daughter return to the dressing room to remove the outfit she was wearing.

She became angry and asked the clerk why the store had “waste[d] [her] time luring [her] in” and which items were 40 percent off. The clerk explained that there were “selected items” throughout the store, even though DeAguero did not see any signs in the store indicating those items.

DeAguero did not ask to speak with a manager because her daughter was embarrassed and was whispering to stop. She ultimately purchased the new items her daughter was wearing because she did not want to embarrass her. She did not buy the other items because they were not 40 percent off."

That's a story that rings familiar -- or at least true -- to me.  Even if you found out at the time that the items weren't 40 percent off, you might still buy them.  If only out of shame.

Now, mind you, the price you paid for the items was still the price that was listed for them.  That's in part why Justice Bigelow dissents.

I'll just mention in passing that people aren't always entirely rational.  Or, to put it more accurately, we often make decisions based upon a series of assessments not all of which can be rationally set forth.

Many, many people will be more inclined to buy a $100 dress if that dress is labelled 40 percent off than they would were that same dress merely listed as $100.  And the industry knows that full well.  That's why "sales" are so popular.  And productive.

Maybe the buyer is making an internal assessment that an $100 dress that originally sold for $167 is a made better -- with higher quality materials -- than a "mere" $100 dress.  Maybe there's some internal joy from getting a "deal".  Maybe there are other things at stake as well.

But having been around people who shop my entire life, I'm confident that "sales" work.  They affect the buyers internal dynamic.  They are persuasive.  And I'd rather be in a world in which "sales" are in fact sales than in a world in which they're not.

Maybe that's irrational.  But it's definitely a desire.

Wednesday, December 14, 2016

Ryan v. Crown Castle NG Networks (Cal. Ct. App. - Dec. 13, 2016)

Justice Rushing doesn't mince words:

"Plaintiff Patrick S. Ryan brought this action against his former employer, NextG Networks, Inc., and its successor Crown Castle NG Networks Inc. (collectively NextG). He alleged in essence that NextG had breached a promise to grant him lucrative stock options as a condition of his employment. The case went to the jury with an unclear special verdict form and unhelpful instructions."

Whoa.  Tell us what you really think about what the trial court did.

After describing the jury's verdict (and the trial court's refusal to grant a new trial), Justice Rushing goes on:

"We will reverse with instructions to grant a new trial. The court was fully empowered and indeed obligated to make an independent assessment of the adequacy of the verdict. Moreover, the verdict was unmistakably unsound. If viewed as an award of tort damages, it had no foundation in law. If viewed as an award of contract damages, it had no foundation in fact. It is in all likelihood the product of juror confusion, improper compromise, or some combination of the two. Either way the findings of liability are sufficiently suspect that a retrial cannot fairly be limited to damages. Accordingly, we will direct that the court conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment."

The Court of Appeal clearly didn't like pretty much anything that transpired below in this case.

Monday, December 12, 2016

People v. Landry (Cal. Supreme Ct. - Dec. 12, 2016)

The theme for today's opinions from the California Supreme Court and the Ninth Circuit may revolve around the duality of man.

Take Daniel Landry.  He's sentenced to death, and you can easily see why.  He's already serving a sentence of 25 years to life when he kills a fellow prisoner by cutting his throat.  It's a premeditated crime, and hardly Mr. Landry's first.  He's a Nazi Low Rider and it's hard to deter future misconduct in prison absent sentencing someone like this to death.  So you can see why Mr. Landry might well be seen as a monster as well; someone who needs to be "put down" before he kills yet again.

At the same time, Mr. Landry wasn't always like that.  He was a child once.  And his childhood was a nightmare, and undoubtedly profoundly influenced what he would become in the future.  Both of his parents were deaf, and his mother had serious issues herself; she set a ton of fires as a kid, and then "attacked a pregnant neighbor with a knife while the woman was showering and her husband was mowing the lawn."  She married Gary when she was 20 or 21, but there was a ton of fighting -- and I mean, a ton.  And it clearly affected the future Mr. Landry:

"Linda [his mother] was a drug user and extremely neglectful mother. When members of her family would visit, they would discover defendant alone in his play pen, hoarse from crying and yelling. No one had responded to his cries. Linda‟s family installed a light-flickering system to alert her when defendant was crying. The house was filthy and defendant crawled on a floor littered with broken glass and curdled milk. When he was old enough to walk, defendant would get out of his crib and wander the neighborhood. His grandparents, who lived nearby, once discovered him asleep beneath their car. Another time, he was found scavenging for food in the neighbor's garbage cans.

When defendant was four years old, he went to live with his grandparents. . . . When defendant first went to live with his grandparents, he did not talk, but grunted and pointed. He had nightmares and hoarded food beneath his bed. When he returned to his grandparents, they took him to mental health professionals because he seemed inaccessible. He continued to receive psychiatric care, including hospitalization, throughout his childhood and adolescence."

You can see why Mr. Landry was depressed and suicidal.  And, perhaps, why (in part) he became the person he eventually became.

The one we sentence to death.

U.S. v. Rocha-Alvarado (9th Cir. - Dec. 12, 2016)

Doroteo Rocha-Alvarado molests a nine-year old girl, gets deported from the United States, and then is caught illegally reentering the country.  One might view such a person as a monster.

On the other hand, he's reentering the United States in order to buy medicine for his son's kidney transplant.  That's not especially monster-like.

People are complicated beings.

Thursday, December 08, 2016

People v. Franklin (Cal. Ct. App. - June 30, 2016)

This is not a good relationship.

"Crystal Delgado dated appellant on and off over a nine-month period from February to November 2013."  Okay, every relationship has its ups and downs.

"They fought frequently . . . ."  Not good, but not necessarily unique.  ". . . . often sending each other vicious text messages. . . ."  Okay, well, you definitely shouldn't do that.  ". . . . and appellant once pulled Delgado’s hair."  Look, when it starts to involve physical violence, that crosses what I think everyone would understand to be an unacceptable line.

"On October 24, 2013, appellant sent Delgado a text message in which he said she would live to regret “fuckin’ with a real gangster.” A few days later, Delgado received another text message from appellant in which he threatened to stomp on her face, break her nose, and crack her teeth."

Not good.  Not good at all.

"In early November 2013 Delgado planned a trip to San Diego with friends to serve drinks at a bachelor party. Appellant did not want her to go, and left a message on Delgado’s voice mail threatening that if she “went to San Diego, he was going to kill [her].” Sometime before attending the party, Delgado posted on social media that she was single, which she later told police appellant had taken personally as indicating disrespect toward him."

Now he's threatening to kill her.  You have to know things are bad at that point.  Really, incredibly bad.

"The day Delgado returned home from the party she found her room ransacked and empty of all of her belongings—only the furniture remained. The television had been pulled from the wall mount, and her laptop, her bedsheets, most of her clothing, and other personal items had all been removed. There were no signs of a break-in. Delgado suspected appellant had burglarized her room with help from her cousin Lexi, who lived in the house with Delgado and Delgado’s mother."

Classy.  Taking every piece of property from your (former?) partner.  Wow.

"Delgado played several voice mail messages she had received from appellant for the police.  In one message, appellant said he was coming right over and threatened to kill Delgado if she didn’t pick up the phone. In another voice message, appellant told Delgado he was going to hide out until he caught her, and declared, “No one’s ever gonna want to fucking see your face, eh. I’m gonna fuck it up, eh. I’m gonna fuck you up, you fucking piece of shit.” Appellant also threatened Delgado’s mother: “You fucking gonna go to a fucking bachelor party, fucker? Fucking piece of shit. Just watch what we do to your mom when she comes home from work.” Finally, appellant threatened to “seriously hurt” Delgado. Delgado told the police she was afraid of appellant because he was an active Jim Town gang member and she believed he would kill her."

And to think I thought it couldn't get worse.

"Later that day, appellant called Delgado and admitted he had taken her property. He promised to return her property if she would agree to meet with him. They met at Guirado Park and appellant got into the front passenger seat of Delgado’s car. Producing a foot-long metal pipe from his jacket, appellant struck Delgado on the head and arms. Appellant switched seats with Delgado and drove around for several hours before taking Delgado to his house where he lived with his mother and sister."

Sweet Jesus.

"They went to a Knights Inn in Pico Rivera, a Pico Viejo gang hangout well outside of Jim Town gang territory to spend the night. Appellant offered to return Delgado’s property to her for $500. . . Delgado went to the restroom and texted her mother. She told her mother she was with appellant and she was hurt. She instructed her mother to agree to pay appellant $500 for the return of her property when appellant called. . . . Appellant and Delgado left Vasquez’s home and drove back to appellant’s house where they spent the night. There, appellant made a video recording on his cell phone of Delgado in which he told her to say appellant had not taken her clothes and she was not being held against her will."

It just gets worse and worse.

Thankfully, Ms. Delgado does not ultimately get killed.  Which is where I was worried that this one might end.  Instead, eventually, on some future day, she calls 911 when she's being followed by Mr. Franklin, and the police discover all of these events and arrest Mr. Franklin.  And he's ultimately convicted.

Oh, yeah.  One more thing.  "At trial, Delgado claimed to have no memory of the events related to this case, and the prosecution presented Detective Steven Lopez’s account of the facts underlying the case as related to him in an interview of Delgado on November 14, 2013."

So sad.

Wednesday, December 07, 2016

Munoz Santos v. Thomas (9th Cir. - July 28, 2016)

One possible view of this en banc opinion is to perceive it as a classic liberal/conservative split in which the former outnumber the latter in the draw.  And, to a degree, that's true.

The dissent consists of Judges Callahan and Ikuta.  They're definitely outvoted.

But the majority opinion is written by Judge Bybee.  Hardly a huge leftie.  And the eight judges who join his opinion include, amongst others, Judges Clifton and Milan Smith.

That line-up may suggest that one side of the equation might have the better of the argument.

Tuesday, December 06, 2016

Japanese Village v. FTA (9th Cir. - Dec. 6, 2016)

Bonus question for the day:

The shortened caption for this opinion is "Japanese Village v. FTA."  What's the FTA?

(No peeking).










The Federal Transit Administration.

Give yourself a dollar if you got that one correct.

P.S. - The case is about an extension of the light rail Gold Line in downtown L.A. to meet up with the Blue and Expo Lines.  Basically a two-mile light rail line between 7th & Flower going to 1st and Alameda.  (Which, coincidentally enough, is where I parked when I was clerking in L.A.)  A nice convenient connector.  Which, as a result of today's opinion, will go through.  Eventually.

In Re Marriage of Schu (Cal. Ct. App. - Dec. 6, 2016)

I always thought that California was a no-fault divorce state.

I was wrong.

Apparently how much spousal support ("alimony") you receive can vary depending on how much "at fault" you are.  To the extent that -- as here -- the trial court can permissibly deny all spousal support if you've done something sufficiently bad in the marriage.

So here, the Court of Appeal holds:  "California’s so called “No Fault Divorce” law does not require a court to ignore evidence of fault when deciding spousal support. This is especially the case when the spouse seeking support is guilty of domestic violence. The trial court denied Gomez support under Family Code section 4320, subdivisions (i), (m), (n), and (k)1. We affirm."

So, inter alia, domestic violence is one thing that can convince the trial court that you're not entitled to spousal support at all.  (Even when, as here, the one spouse hasn't worked during pretty much the entire marriage, and instead stays home with the kids.)

You might also think that the domestic violence here is of the classic "husband-beats-wife" type.  It's not.  It's the wife who's guilty of domestic violence.  And she's not even touching the husband.  She's instead giving alcohol to unrelated minors (and having sex with one of them) and cutting off her daughter's hair when she won't give her one of her friend's social media passwords.

That conduct permissibly gets you denied spousal support.

Monday, December 05, 2016

U.S. v. Mohamud (9th Cir. - Dec. 5, 2016)

This opinion discusses the making of a terrorist.  By the United States.

That said, I think that Judge Owens seems spot on.  The jury rejected his entrapment defense, and that's a very high barrier to reversal.  The opinion concludes:

"Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements."

Tragically long indeed.

People v. Williams (Cal. Supreme Ct. - Dec. 5, 2016)

What a terrible crime.  The murder of an eighth-grade girl.  The discussion about the girl's Cabbage Patch dolls -- and the fact that she was from San Diego -- made the facts particularly heartbreaking to me.

The California Supreme Court unanimously affirms the defendant's death sentence.

Defendant makes a not-implausible case that someone else -- George -- was in fact guilty of the crime.  But he's got a hard time explaining his semen on the girl.  And his story about consensual sex didn't cut it with either the jury or the California Supreme Court.

Friday, December 02, 2016

People v. Mejia (Cal. Ct. App. - Nov. 22, 2016)

I thought when I first read this opinion that Mr. Mejia was only sentenced to four years in prison, and freaked out about that fact when I got to the portion of the opinion when Justice McKinster described the facts of his offenses.  (I won't delineate in detail what transpired, but you're free to read the entire opinion for yourself; suffice it to say for now that he was convicted of torture, spousal rape, spousal abuse, and criminal threats.  Offenses that he committed in spades.)

But then, after finishing the full 25 pages, I went and reread the portion about the sentence.  Which turns out was four years on the first count mentioned in the opinion, but 15 to life and 7 to life on two of the other counts.

Which is more in line with what I'd have expected after reading the facts.

Thursday, December 01, 2016

Westside Estate Agency, Inc. v. Randall (Cal. Ct. App. - Dec. 1, 2016)

Justice Hoffstadt begins today's opinion by saying:

"We are all familiar with the phrase, “caveat emptor”: Buyer beware. This case deals with its less renowned cousin, “caveat sectorem”: Broker beware."

Much less renowned.

The opinion is not even really about brokers having to be "beware".  It's really about brokers having to follow the statute.

Section 1624 of the Civil Code says that a real estate broker can only be a broker for someone -- e.g., get a commission -- if there's an agreement in writing.  The broker here didn't get a signed agreement authorizing his status as a broker, but instead relied upon an alleged oral agreement.

That's not good enough.

Which means he loses out on a $925,000 commission on a $45 million sale.

Yep.  Follow the statute.  Get the agreement in writing.

Wednesday, November 30, 2016

Driscoll v. Granite Rock Co. (Cal. Ct. App. - Nov. 30, 2016)

One thing I like about reading judicial opinions is that you often learn something new.  Though, as a matter of fact, I already knew this part:

"The concrete that Granitrock produces is a perishable product that cannot be stored. It is mixture of rock, sand and cement. When water is added to the mixture, it creates a chemical reaction that causes the mixture to harden. For this reason, when there is concrete in the drum of a mixer truck, the drum must rotate at all times to prevent hardening. In addition, freshly batched concrete must be poured within 60-90 minutes to ensure its structural integrity. One of the duties of the concrete mixer drivers is to monitor the rotation of the truck drum."

I knew that because one of my relatives (in North Carolina) used to drive a concrete truck.  With an emphasis on "used to".  One night, after work, he had far too much to drink, drove the truck -- which was still full of concrete for the next day's pour -- home, parked it, and slept it off.  But neglected to keep the drum spinning.  So when he woke up the next morning, he had a drum with several tons of set concrete.  In the drum.

As you can imagine, he was promptly fired.

So, yes, keep that drum spinning.

P.S. - Is the company "Graniterock" or "Granite Rock"?  The Court of Appeal's opinion repeatedly says that it's "Graniterock" (e.g., "Graniterock is a concrete company that manufactures, delivers and pours concrete.")  But caption of the opinion says that the defendant is "Granite Rock Co."  The web site of the company, for what it's worth, appears to say "Graniterock".  Maybe one's a d/b/a.  (Making it more confusing, in the quote from the opinion I pasted above, the Court of Appeal also calls the company "Granitrock" -- without the e.  I'm pretty sure that's just a typo, though.)

Tuesday, November 29, 2016

U.S. v. Doe (9th Cir. - Nov. 29, 2016)

When I first read the caption of this case, I was intrigued.  It's a criminal case, but the name of the defendant is deliberately obscured as a "Doe"?  Why?  It's a criminal case.  It's public.  Why not use the defendant's real name?

Then I read the opinion.  Which discussed something I hadn't seen -- or thought about -- before.

The opinion doesn't use the defendant's name because no one knows it.

The guy's charged with identity theft.  He's been using someone else's name, social security number, etc. for nearly 30 years.  And the guy refuses -- to this day -- to tell the authorities who he really is.

And the government can't figure it out.

That's certainly interesting.

I think it may also explain, in part, why the district court departed upward.  The guidelines range here calls for a sentence of only one or two years.  But the district court gives him six and a half.

The Ninth Circuit affirms the departure, since the identity theft here did really cause the victim a ton of harm over the past several decades.  And I think that's right.

But I'd have also said that the upward departure also seems fine to me because we don't even know who this guy really is.

That means two things.  First, it means we totally can't be sure what he's done in the past.  He's got a "criminal history" category of II.  But let me add this:  That's just what we know about.  Who knows what he's done in the past?  Certainly not us, because we can't even figure out his name.  Isn't it just a tiny bit likely that the guy's got some "problems" in his past?  'Cause last I checked, people who are living a perfect, law-abiding life rarely ditch their identity and refuse to admit -- even when caught -- who they really are.

Second, it also means that this guy's probably unlikely to be law-abiding in the future.  He's refusing to tell anyone who he is.  Think he's going to just admit everything after he's out of prison and then live a normal life?  Doubtful.  He may well just find -- i.e., steal -- a new identity and give that one a shot.  That's another reason to keep him in the joint for a bit longer, IMHO.  Incapacitation.  For at least a while.

Parenthetically, I tried to find a picture of the defendant.  I thought it'd be worth posting.  If only in the unlikely event someone would recognize him.  But all I could find was a picture of this gavel.

Not exactly helpful.

Tidwell Enterprises v. Financial Pacific Ins. Co. (Cal. Ct. App. - Nov. 29, 2016)

Don't you wish every appellate opinion had a concise and informative introductory paragraph as this one:

"A fire destroys a house. The homeowner's insurer agrees to pay for the damages resulting from the fire, then sues the contractor who installed the fireplace several years earlier, claiming negligence. The contractor tenders defense of the action to its liability insurer, asserting that even though the fire occurred after the relevant policy periods ended, there is a possibility of coverage because the fire may have been the result of ongoing damage to the wood in the chimney chase during one or more policy periods due to the exposure of that wood to excessive heat from the chimney every time a fire was burned in the fireplace. Under the standard language in a commercial general liability policy, does the liability insurer have a duty to defend the contractor? For reasons we will explain, we say “yes.” Accordingly, we will reverse the judgment here that concluded otherwise."

Plus, I learned something.  I had never heard of a "chimney chase" before.  "The chimney chase is the structure through which the chimney pipe runs.

Now all I have to do is to figure out what a chimney pipe is.

Tuesday, November 22, 2016

Goles v. Sawhney (Cal. Ct. App. - Nov. 22, 2016)

It's a shareholder buyout case where the trial court is required to decide the value of the minority shares.

I definitely agree with the Court of Appeal that the trial court got it wrong.  There were three different appraisers, and each of these experts valued the shares at a totally different amount.  One expert said $69,000, another said $150,000, and the third said $200,000.

The trial court "agreed" with the experts (?!) and decided to value the shares at the exact average of these three different figures; i.e., $139,666.67.

This was obvious error.  You have to actually decide the case.  Which means figuring out which of the witnesses is correct.  You can't just "average" the competing results.

What the trial court did just seems crazy.

So I'm totally with the Court of Appeal on that.

But there's one part of the opinion I'm less sure about.

The Court of Appeals notes that "The Marcus and Forsyth appraisals discounted the fair value of appellants' shareholder interest by 20 percent and 15 percent for lack of control."  That's a pretty standard appraisal technique.  Minority shares can't control the corporation, so they're worth less than shares that include control.  Pretty basic corporate law.

But the Court of Appeal then says, citing a prior opinion from the Court of Appeal:  "Section 2000, however, does not permit a lack-of-control discount when determining the fair value of a minority shareholder interest. The rule justifying the devaluation of minority shares in closely held corporations for their lack of control has little validity when the shares are to be purchased by someone who is already in control of the corporation. In such a situation, it can hardly be said that the shares are worth less to the purchaser because they are noncontrolling."

Okay.  I get that the prior case probably says that.  But I don't understand why that's right.

To me, the minority shares are worth a discount to the minority owner because they don't include control.  And the minority shares are worth a discount to the majority owner as well because they don't give him any control that he doesn't already have.  There's no control bonus to anyone with minority shares:  not the current owner, not the future owner, not anyone.  Which is why they do -- and should -- trade at a discount.

It may well be that a prior case said what the Court of Appeal here says. But I don't understand why that's right.  Or why the Court of Appeal here should follow that opinion.  Which seems wrong to me.

No willing buyer will pay, nor will any reasonable seller expect to sell, minority shares for the same price as majority shares.  Because the former includes control and the latter does not.

So I don't get why a discount isn't entirely appropriate.  Especially since it seems that ignoring such a discount would give the minority shareholder a windfall -- a benefit that s/he would not receive in the actual marketplace for those minority shares.

Everything else in the opinion seems right.  But not this part.

Monday, November 21, 2016

People v. Ramos (Cal. Ct. App. - Nov. 21, 2016)

The first sentence of today's opinion begins:

"Rafael Ramos was charged with making criminal threats against Nancy Garcia, and elected to represent himself at trial."

Man. That never works out well.  Especially in a criminal threats case.

But the next sentences are even more surprising:

"Prior to opening statements, the trial court removed Ramos from the courtroom for disruptive conduct. No standby counsel was appointed to represent him in his absence. During Ramos’s period of exclusion, the prosecution presented its opening statement and conducted a direct examination of Garcia. Ramos was then permitted to return to the courtroom and participate in the remainder of trial. The jury found him guilty."

What?!  So the trial court booted the defendant, then let the trial go on with no one there for him -- including the direct examination of the victim -- and then let him back in only to cross-examine the main witness . . . having never heard her testimony on direct?!

You can read the subsequent 20 pages if you'd like.  But you should already know how it turns out.

Reversed and remanded for a new trial.

Hopefully one that isn't a farce.

People v. Flores (Cal. Ct. App. - Aug. 23, 2016)

Oh my God.

The first ten pages of this opinion tell the tales of two small children.  The opinion reads like a story out of a concentration camp.  Yet it's all true, and it's all in San Bernardino County.

I'm still stunned, and a bit shaken, from reading the thing.

(And I read a ton of cases.)

That things like this can happen . . . .