Thursday, February 14, 2019

Perez v. County of Monterey (Cal. Ct. App. - Feb. 14, 2019)

Happy Valentine's Day! The Court of Appeal decides to give us some presents on this most solemn of days, with no less than four published opinions for us to peruse. Yay!

So I decided I'd talk about the one that is perhaps most likely to be viewed as a joke. One perhaps more appropriate for April Fool's Day than today, yet, here it is.

(1) The County of Monterey says that you can't keep more than 4 roosters on your property, unless you have more than 200 roosters. No joke. There are other exceptions too; little kids can keep more than four roosters, you can't keep more than four roosters if you've been convicted of cockfighting (but you can, apparently, keep fewer than 4 -- or more than 200), etc. In short, there's a sophisticated rooster-keeping set of regulations for residential property in Monterey. If you want to have between 4 and 200 roosters on your property, you've got to get a permit.

Who knew?!

(2) Plaintiff filed a lawsuit that claimed that these rooster-keeping regulations were unconstitutional, and deprived him of his property right to keep more than 4 roosters on his property, was a taking, violated the Interstate Commerce Clause, etc. etc. etc.

No joke either.

Look, the law here may well be mostly silly.  A lot of the exceptions are somewhat difficult to justify on a categorical legal basis.

But it's rational basis review. There's a reason why we might want to let little kids in 4-H programs, for example, have half a dozen roosters. Maybe it's not a particularly GOOD reason, but it's a reason.

Which is why plaintiff's challenge was doomed from the outset. As any good student of constitutional law would have been able to tell you. And as the Court of Appeal explains.

Just go ahead and get the permit, Mr. Perez. I hope and expect that if there's a good reason why you want or need, say, 20 roosters on your property, the County of Monterey will give it to you.

And why, hopefully, your neighbors won't subsequently hate you every single morning at dawn.

Wednesday, February 13, 2019

Szonyi v. Whitaker (9th Cir. - Feb. 13, 2019)

I'm going to blame the rainy (and cold) week for putting a damper on the publication of opinions by the California judiciary thus far.  Only one Ninth Circuit opinion, and only two California Court of Appeal opinions, all week.  Them's slim pickins.

But today's Ninth Circuit opinion nonetheless reveals a nice little dispute.  The question is what it means for two crimes to arise "out of a single scheme of criminal misconduct" sufficient to get you deported from the country.  Mr. Szonyi got extremely drunk one day and, over a five- to six-hour period, forced three women to commit various sexual acts.  Since Mr. Szonyi is formally a citizen of Hungary (who came to the United States in 1957, when he was four years old), even though he's been in the United States for over 60 years, that means he's subject to deportation.  Unless the crimes for which he was convicted arise (under the statute) out of a single scheme of criminal misconduct.

Judge Clifton writes the majority opinion, holding that Mr. Szonyi is out of luck.  He thinks these are discrete crimes against different women.  Judge Fisher dissents, and thinks that these might perhaps be a single scheme of criminal conduct, with no real "pause" in the offenses sufficient to allow Mr. Szonyi to reflect.  (As Judge Fisher puts it, "On this record, I would grant the petition for review and remand for the BIA to adequately explain its decision. BIA precedent clearly requires a “substantial interruption” between offenses, and Szonyi squarely placed this issue before the BIA. The BIA, however, did not address it, leaving us to speculate whether the BIA disregarded the “substantial interruption” requirement, in contravention ofits own precedent, or concluded that there was a “substantial interruption” between offenses in this case, but without saying so and without pointing to anything in the record to support that conclusion.")

See which opinion most closely fits your own views.  But, at least at this point, Mr. Szonyi is going to be deported from the country in which he's lived the past 60 years.

Tuesday, February 12, 2019

In Re Marriage of Yeager (Cal. Ct. App. - Feb. 4, 2019)

Justice Gilbert says in the second paragraph of this opinion that "California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, “ ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’" He then drops a footnote that says "Deletion of the words 'strive to' from the oath gives it the potency it deserves."

Which is a pretty big hint that some attorney is going to be in trouble here.

And trouble she is indeed in.

The Court of Appeal affirms a $50,000 (!) sanction award against an attorney, Lisa Helfend Meyer, who disclosed information contained in a confidential child custody evaluation report.  She didn't do it in open court, or in a filing, but nonetheless asked questions about that report in a deposition.  That, the Court of Appeal holds, is an unambiguous no-no.  Fully justifying the sanctions imposed by the trial court.

Plus the respondent gets awarded his costs on appeal.

There rules out there.  Pretty important ones.

Fail to follow them at your peril.

Monday, February 11, 2019

Jackson v. Kaiser Foundation (Cal. Ct. App. - Feb. 8, 2019)

The Court of Appeal holds that you can't get mandatory relief from an erroneous dismissal (i.e., employ CCP 473(b)) when the dismissal that you're challenging is your own request for dismissal without prejudice.  Even if you made a mistake based on erroneous legal advice, that's your bad. Had the case been dismissed by the court or on a motion, sure, you'd get relief. But since this was your call, not the action of someone else, CCP 473(b) doesn't apply.

Okay. Good to know, at least.

The holding is in a context that's somewhat interesting, however. The plaintiff here filed her lawsuit (for discrimination) pro per, and then sought to get an attorney to represent her. The attorney said "Sure, I'll take your case, but let's get rid of this pro per thing first -- dismiss it without prejudice, and then I'll file a new one for you that looks better." Which she did.

But after the first lawsuit was dismissed, the lawyer said: "Oops. I didn't know how FEHA suits worked. Seems like now, after the dismissal, your lawsuit is procedurally barred."

Which probably also made the attorney go back and check his malpractice coverage.

Seeking a way out, the attorney then said he'd represent the plaintiff on a limited basis to get the first lawsuit reinstated. That way, presumably, no malpractice claim for the bad advice. (To be clear: the word 'malpractice' doesn't exist anywhere in the opinion, but I'm just reading between the lines for a possible explanation for how this case came to be; pure speculation and opinion, obviously.)

So the attorney files an ex parte request, which the trial court denies, without prejudice to a noticed motion. So the attorney agrees to another limited representation agreement where he'll file a noticed motion, which he does, but the trial court again denies it. Hence the subsequent appeal.

So a nice attempt to get out of the malpractice claim by using CCP 473(b). Albeit one that fails.

On the other side, though, I thought it somewhat interesting that Kaiser -- the defendant -- thought it tactically advantageous to oppose the motion for relief from default, as well as the resulting appeal. On the one hand, that's the obvious move. It gets them out of the lawsuit without having to defend the merits. Typically, the right call. If only because it avoids the transaction costs of defending the thing.

But, on the other hand, they get out of that suit, but, presumably, into another. Now the plaintiff may file a malpractice claim against her would-be lawyer based on the bad advice. In which she'll have to prove her case-within-a-case against Kaiser. So now it'll have to defend all those depositions etc. in the malpractice suit. Plus it had to file all those briefs in the trial court and on appeal defending the refusal to reinstate the underlying action.

So some contrary transaction costs there as well.

All that, plus the risk -- which is at least nonzero -- that all this would be for naught if the Court of Appeal held that CCP 473(b) applied.

In the end, I suspect that Kaiser would make the same call again. But it's not an easy one. Sometimes, choosing a battle may not be the wisest call. Even when it's typically the most straightforward one -- and one that you might well win.

Wednesday, February 06, 2019

People v. Johnson (Cal. Ct. App. - Feb. 5, 2019)

This is pretty good police work.  Solved a murder down here in San Diego.  Mind you, there were TONS of video tapes available from the surrounding businesses.  Still.  Lots of effort clearly went into this one.

There's another lesson that one might learn from this opinion.  Don't steal drugs from someone who's running a large drug trafficking organization. And then sleep with his girlfriend.

Otherwise you might be shot in your barbershop, Sopranos-style, by a hit man in broad daylight. Ten of the fourteen shots hitting you.

Not an awesome way to go.

Tuesday, February 05, 2019

People v. Westerfield (Cal. Supreme Ct. - Feb. 4, 2019)

It was a long time ago.  But I remember it extraordinarily well.  As well am reminded of it every time I go over the Danielle Van Dam memorial overpass here in San Diego.

David Westerfield was convicted and sentenced to death for the high-profile kidnapping and killing of this seven-year old girl.

The murder was in 2002, and it has taken 17 years for the conviction just for the thing to get to the California Supreme Court for the first time.

To the surprise of no one, Mr. Westerfield's conviction and death sentence were unanimously affirmed.

Monday, February 04, 2019

Ward v. Tilly's (Cal. Ct. App. - Feb. 4, 2019)

Today's opinion matters a lot.  At least for a variety of low-paid workers, and perhaps for others as well.

The Court of Appeal reverses the trial court and revives a putative class action alleging that an employer (here, Tilly's) has to pay its employees wages when it tells them that they have to call in two hours before work starts to see if they're working that day.  Calling in counts as "reporting" for work.  At least according to the majority.  (The dissent, and at least one federal district court, says that the employee is not entitled to be paid unless she personally shows up for work during that two hour "call in" period.)

I must say that the majority opinion is at least persuasive on one point:  It's a total crock that the employer pays you nothing if you call in and they tell you you're not working that day.  The employer disrupted your life.  You couldn't make alternative plans that day since you potentially had to work (under penalty of being fired if you didn't show up).  You might have had to pay for child care or the like.  There's a reason for a minimum wage etc.  You shouldn't be paid nothing for the fact that your employer obligates you to arrange your schedule and potentially work on a given day, with only two hour's notice.

On the other hand, there's a line-drawing problem.  Do you really deserve to be paid for a whole day (or half day, or whatever) for a day you had to call in but didn't actually have to work?  What's the appropriate amount?  An hour?  Tough call.  Plus, there's no law that tells your employer how much in advance they have to tell you you've got a shift.  At least of which I'm aware.  Say your employer tells you a week in advance that you've got to work Thursday and Friday of next week.  I would think that's enough notice to not get you paid for, say, not working on Wednesday.

But what if they tell you your shift on Friday's; say, you often work Mondays, but on the Friday before, they say, nope, it's Tuesday next week?  Enough notice?  What if they tell you Friday that even though you normally work Saturdays, you're off this Saturday?  Is that enough?

Seems to me there should be a rule here.  And rules are generally made by the Legislature; courts have a tough time creating them.  (There's a proposed bill in the Legislature to accomplish something along these lines, but it's unclear whether it'll pass, and it probably would not resolve the exact issue raised by the present case anyway.)

Still, I'm not happy with a rule that says employers can make you arrange your schedule so you're available for nothing but work all day and then pay you nothing if it turns out two hours earlier they don't need you. Seems like that in fact might/should violate the relevant rules (e.g., Wage Orders).

So this putative class action survives for now.

Thursday, January 31, 2019

In re Marriage of Perow & Uzelac (Cal. Ct. App - Jan. 31, 2019)

Well, now, that's unusual.

You're used to seeing child molestation cases in the Court of Appeal.  Criminal cases.  SVP cases.  Guardianship cases.  All over the place.

Sometimes -- though much more rarely -- you even see molestation issues pop up in dissolution (divorce) cases.  Wife's making a claim, Husband's making a claim, etc.

But rarely do you see molestation issues in (1) high-value divorce cases, (2) involving a ton of attorney's fees.  (Which is perhaps not surprising, because sex offenders tend not to be fabulously wealthy.  With limited exceptions.)

So here, for example, you've got an otherwise run of the mill divorce case.  Two people get married in November 2000:  Richard Uzelac (Husband) and Catherine Perow (Wife).  What's a little unusual for the happy couple is that Mr. Uzelac was a convicted sex offender.  Which Ms. Perow apparently knew.

But she didn't know the details of the alleged offense.  Which, to me, seem pretty important; e.g., something that one should discuss prior to the actual marriage.

Those details are fairly important, since it turns out that Mr. Uzelac was convicted of molesting his stepdaughter for several years.  An even that, understandably, takes on a somewhat heightened significance when Ms. Perow gets pregnant and has . . . a daughter.

Mr. Uzelac and Ms. Perow separate, and then get divorced.  They share custody of the daughter, with Ms. Perow having primary custody.  Mr.  Uzelac gets custody of his daughter 7 to 12 hours a week, and Ms. Perow gets custody the rest of the week.  Fine.

A couple years later, Mr. Uzelac files a petition to change the custody arrangement to 50/50.  Thereby reducing his child support payments as well.

When Mr Uzelac filed his petition, can you guess what salient fact he neglected to mention to the Court?

Yes.  No mention of the fact that he was a convicted sex offender, nor the details of this offense.  Something that a trial court trying to figure out who should have custody of a daughter might want to learn about, no?

Ms. Perow opposes the petition and prevails.  And gets the attorney's fees she spent litigating the thing.  Nearly $150,000 worth.  "[B]ecause husband’s request for modification of the custody order had been 'fatally flawed from the outset because he did not disclose his status as a registered sex-offender,' and because husband had 'scuttled wife’s proposed settlement' at the last minute."

Plus, on appeal, Ms. Perow not only wins again, but orders that Husband pay her costs.

It's one little fact, that whole "sex offender" thing.  But it's a pretty important one.

Not something that you should leave out of your papers.

Tuesday, January 29, 2019

Dilberg v. California Check Cashing Svcs (9th Cir. - Jan. 29, 2019)

Sometimes it's difficult to be an attorney for an organization and to figure out how it should comply with relevant laws.

Sometimes it's not.

The Fair Credit Reporting Act (FCRA) says that if you're an employer who pulls a credit report on applicants for employment, you've got to make a particular disclosure to that applicant contained "in a document that consists solely of the disclosure.”

It's not hard to comply with that.  Make the relevant disclosure in a separate document.  Don't combine it with other stuff.  Use a separate piece of paper.

Sure, it kills some additional trees.  But that's clearly what Congress requires.

Not difficult.

If you fail to figure that out, you can be sued in a class action.

Which is a pain.  And kills a lot more trees.

So just put the thing in a separate document.  You'll be happy you did.

Monday, January 28, 2019

Karingithi v. Whitaker (9th Cir. - Jan. 28, 2019)

Serah Karingithi, a native of Kenya, overstayed her six-month tourist visa in 2006.  The United States eventually moved to deport ("remove") her in 2009.  She's been in the United States the whole time, including the resulting decade of various removal proceedings.  All of which have not gone well for Ms. Karingithi.

Given this lengthy history, it would surely be surprising indeed were the Ninth Circuit to have held that all these proceedings were for naught because the paper that notified her of the very first of them (in 2009) contained the location of the place at which she was required to appear and defend herself but listed the date and time as "TBA".  After all, she was informed of that time and date in a separate document, showed up, and also showed up at the plethora of later hearings.  Wouldn't it be crazy if the whole exercise as meaningless due to an alleged notice failure that didn't harm anyone?

Now, I know what you're thinking.  I'm going to say:  "Yet that's exactly what the Ninth Circuit held."

Nope.  The Ninth Circuit went the other way.

Which makes total sense.  To me, anyway.  As well as to the panel.  In the old days, there might be a more robust fight about whether the initial omission deprived the court of "jurisdiction" to hear the underlying removal petition.  But in the last decade or so, the Supreme Court (alongside lower federal courts) have been making foundational principles less and less formalistic.  Very few things are indeed "jurisdictional" anymore.

Today's case is but the latest example.

And, on this front, I'm not exactly shedding a tear.

A practical and common sense result.

Thursday, January 24, 2019

People v. Martinez (Cal. Ct. App. - Jan. 24, 2019)

You give the police one story when they first question you.  Then they confront you with various pieces of evidence they've already obtained, and then you tell them a different story.

The second story's usually just as unpersuasive -- indeed, often even more so -- than the first one.  And typically just incriminates you even more.

Here, for example.

Just be quiet.  You're not going to help yourself.  Just the opposite.

Better yet, don't commit the murder in the first place.

Wednesday, January 23, 2019

People v. Taggart (Cal. Ct. App. - Jan. 23, 2019)

Hmmm.  I could come out either way on this one.

It's the ancient problem of how old language covers -- or doesn't cover -- new facts.

Moonshadow Taggart gets convicted of buying or receiving a stolen vehicle and gets sentenced to two years in county jail.  But a around six months before his release date, he gets released from jail pursuant to a program called "sheriff's parole" -- a term I haven't heard before, but that apparently exists.  Neither I nor the Court of Appeal knows precisely what "sheriff's parole" entails.  Footnote two of the opinion explains that "No party refers us to rules or regulations governing the Kern County sheriff’s parole program, and the program’s terms are not in the record."  But what we do know is that under this program, Mr. Taggart wasn't supposed to leave Kern County (or the state).

Which, of course, he subsequently did.  Hence the opinion.

Which revolves all around whether that counts as an "escape" from custody.

On the one hand, we wasn't allowed to leave the state, and he did.  So you could say that since he was subject to a certain degree to restrictions on his freedom, which he then violated, by doing so, he in essence "escaped" from that custody.

On the other hand, yeah, he had some limitations on his freedom, but he was basically at large in the population, rather than in "custody" (at least as we typically define the term).  We certainly wouldn't call it "escape" if someone on parole violated, say, a condition that said "Don't use drugs" -- that'd be a parole violation, but not an escape.  Unclear why violating this particular provision ("Don't leave the county.") suddenly counts as the much more serious offense of escaping from custody.

Given these competing principles, you can perhaps understand why there's a majority opinion and a dissent here.  The majority opinion (written by Justice Snauffer) says it's not an escape.  The dissent (Justice Levy) says it is.

No easy answer to this one.  We all know that a horse is a horse and a duck isn't a horse, but figuring out the precise contours of what's in the middle isn't always easy.

The same is true with respect to an "escape" from custody.

Zhang v. Jenevein (Cal. Ct. App. - Jan. 23, 2019)

Don't secretly record other people.

And don't be surprised that secretly recording other people isn't protected by the anti-SLAPP statute.

Tuesday, January 22, 2019

In re Volkswagen Clean Diesel Litigation (9th Cir. - Jan. 22 2019)

You're an attorney and, on behalf of your clients, you filed one of the many lawsuits against Volkswagen about its fake "clean diesel" claims.  The class action of the century.  The class eventually recovers a settlement of $10 billion.  You're going to make a mint, right?!


Because the overwhelming majority of these lawyers are not appointed class counsel.  So they do work.  Lots of it, allegedly.  After the settlement, these non-class lawyers file not one, not two, but 244 motions for attorney's fees.  Every single one of these lawyers wants to get paid.  Because the recovery is massive, right?  Their view is that they helped.

The district court refuses to give these counsel even a penny.

The Ninth Circuit affirms.

You know it's going to be a significant case when you scroll through the caption.  I've never seen one this big before.  Even on appeal, it's 35 pages long.  Just the caption.

Big case.  Big recovery.  For some.

Not so much for others.

Monday, January 14, 2019

Ricasa v. Office of Administrative Hearings (Cal. Ct. App. - Jan. 14, 2019)

Were I a professor employed by a University -- which, coincidentally enough, I am -- and had to plead guilty to (essentially) corruption, alongside being pilloried in the press as a participant in the "South Bay Corruption Scandal," I'm not sure that I'd care deeply about my particular status at the University.  More likely, I'd just feel pretty fortunate to still have a job.

But Arlie Ricasa feels otherwise.  She was at Southwestern College -- even serving as interim Dean at one point, apparently -- "until she was selected to serve as Southwestern's director of Student Development and Health Services (DSD), an academic administrator position."  A nice, tenured position.  But then, after that whole "pleading guilty" thing, she was "demoted . . . from an academic administrator position to a faculty position on the grounds of moral turpitude, immoral conduct, and unfitness to serve in her then-current role."  So she sues.

Personally, I wouldn't call being moved from "an academic administrator position to a faculty position" a "demotion".  I'd see it more like manna from the grace of God.  But, hey, that's me.  I'm reasonably confident that being an administrator at a University is one of the various circles of Hell. Whereas being a faculty member is reserved for reincarnated versions of Ghandi and the like. Maybe you won't accomplish much in this life, but hey, here's your reward for all those good deeds you did in your prior version.  Sit around and write and talk about whatever you feel like and get paid for it.  Enjoy.

But, again, that's just my personal take.  Plus, if I ever had a similar administrative position to Ms. Ricasa's, I'd be "Dean Martin."  Too weird.

Regardless, she files a writ, but loses.  Next time, maybe don't take that $1800 from a vendor (during business hours at Southwestern, no less) so your daughter can attend a "conference" st some fairly nice place, I imagine.  Then not report it.  Ain't going to look good on your resume.

Though, remember, you're still a faculty member.  So anything marginally bad you did in this life undoubtedly pales in comparison to (1) the rest of your cushy world, and (2) what got you there in the first place.

At least if you believe in that whole karma and reincarnation stuff.

None of which strikes me as true.  But still cool to think about.

Thursday, January 10, 2019

In Re E.T. (Cal. Ct. App. - Jan. 10, 2019)

The Court of Appeal holds late today that this is "the rare case where the juvenile court erred in failing to recognize that Mother’s relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption."  So it gives the kids back to the Mother.

Read the opinion.  Mother's got a lot of things going for her.  She's apparently working hard.

But there are several things against her as well.  Those are in the opinion as well.

Justice Siggins may be right that the children will be better off with Mother than with their godparents.  But he also may well be wrong.

It's difficult to square this opinion with the "substantial evidence" standard on appeal.  The trial court saw the witnesses.  A cold record is a pale substitute, especially in these types of cases.

I hope that Justice Siggins is right.  I hope we never see this family back in court.  I hope the kids don't end up being taken away (yet again) from Mother.

But I'm not supremely confident that's how things will in fact play out.

Here's hoping for a good result.

Tuesday, January 08, 2019

U.S. v. Torres (9th Cir. - Jan. 8, 2019)

Welcome back, Ninth Circuit!

After a virtual hiatus for nearly two weeks, a Ninth Circuit panel finally publishes an opinion this morning.  And it's a goodie!

Amongst other questions raised, but not decided, by the opinion are whether aliens who are in the United States without authorization are included in the phrase "the people" to whom various rights are given under the Constitution.  Interesting stuff.

It's also a case that splits the left-right spectrum.  On the one hand, it involves whether unauthorized aliens have various rights.  On that question, conservatives generally like to say "No," whereas those on the left generally like to say "Yes."

But in this case, the right in question is the Second Amendment right to possess a gun.  When that's the right at stake, conservatives generally are in favor of it, whereas those on the left are generally opposed.

So what say ye?  Federal law makes it illegal for an unauthorized aliens to possess a weapon.  A violation of the Second Amendment, or not?

The Ninth Circuit says -- correctly, in my view -- that the statute's valid.  The panel assumes without deciding that the Second Amendment applies.  But holds that under intermediate scrutiny (which I agree is the proper standard here), the statute's valid because it advances an important governmental interest with a reasonable fit.  In the words of the Ninth Circuit -- largely quoting from other circuit authorities:

“The [government] has the important government interest of ensuring the safety of both the public and its police officers. . . . These government interests are particularly applicable to those subject to removal. “[T]hose who show a willingness to defy our law are . . . a group that ought not be armed when authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them. Further,“[unlawful aliens] often live ‘largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting Huitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on the possession of firearms by [unlawful aliens] is substantially related to the statute’s general objectives because such persons are able purposefully to evade detection by law enforcement.” Id."

Good to have the Ninth Circuit back.  Glad to see it begin 2019 with a bang.

Monday, January 07, 2019

Strawn v. Morris, Polich & Purdy LLC (Cal. Ct. App. - Jan. 4, 2019)

The Ninth Circuit continues its apparent vacation -- only one published opinion since December 28, 2018 -- but. fortunately, the California Court of Appeal continues to crank things out.

This opinion takes a very restrictive view of the litigation privilege.  I'm not saying that Justice Kline is wrong in that regard; this is a demurrer after all, and it may well be appropriate to wait until the summary judgment stage to decide whether there was "really" a threat of litigation here sufficient to establish the privilege.

But, on these facts, I gotta say, I'm much more confident that there was in fact a privilege than Justice Kline appears to be.  Yeah, the insured hadn't yet filed a lawsuit, or expressly said he was going to do so.  But the guy's property burned down, the guy was being criminally investigated for arson, and the insurance company was thinking about not paying due to arson.

There's no doubt whatsoever in my mind that, on these facts, the insurance company knew full well that there was not only a likelihood of litigation if it denied the claim on the basis of arson, but that there was a super high likelihood of litigation.  Of course the guy's going to sue if you don't pay him (and he's not eventually convicted of arson).  Why wouldn't he?  No doubt whatsoever.

Hence the privilege.

Justice Kline's opinion seems to hint that something more might be required.  Which I'm not certain is true.  On these facts -- at least at the summary judgment stage -- I have extraordinarily little doubt as to how I'd come out on whether the litigation privilege applies.

Because I'm confident that the insurer both recognized and fully anticipated the threat of litigation.

As would any insurance company not staffed by morons.

Friday, January 04, 2019

Doe v. Allee (Cal. Ct. App. - Jan. 4, 2019)

This is another Title IX sexual assault hearing case.  This time involving USC.  Another holding that the University's hearing procedures are fundamentally unfair.

As for the particular offense here, it's another profoundly troubling set of facts.  Read the whole thing for the graphic details.

You can't figure out from a cold appellate record, of course, whether the alleged victim or perpetrator is more credible.  But there are nonetheless some undisputed facts here that, in my view, make the alleged perpetrator -- in this case, a member of the USC football team -- look particularly bad.

To take but one example, the alleged victim stated that during the nonconsensual encounter (the victim alleged that she was held down, etc. etc.), "Doe pulled out to finish and it looked like he planned to ejaculate on her face or torso. When he let go of her, Roe “freaked out [and] went between his legs, scooting out quickly.” Doe ejaculated on the sheets."  The alleged perpetrator's version of these particular details is only slightly different:  "Regarding the October 24 sexual encounter, Dr. Allee asked how Doe knew Roe wanted him to pull her hair, to which Doe responded, “I didn’t. We were in doggy position. I just assumed she’d like it.” Similarly, when asked how he knew Roe wanted to swallow his ejaculate or to have him ejaculate on her face, Doe said, “I didn’t, but if she didn’t want to she could get out of the way and she did.”

That last part doesn't sound like someone profoundly concerned about consent.

USC ends up finding the victim more credible and expels the alleged perpetrator.  The Court of Appeal decides that the University's system was fundamentally unfair, so reverses the finding of sexual assault and expulsion on that basis.

But halfway through the opinion, there's this nugget.  Which, though perhaps technically irrelevant to the issue of credibility, is definitely something of which the reader takes notice:  the fact that, after his expulsion, the alleged perpetrator was apparently "charged with committing several felonies near USC, and, in April 2016, sentenced to six years in state prison, a sentence he was serving when the petition was heard. In August 2016, Doe was expelled for independent violations of the SCC [and] as a result . . . regardless of this Court’s decision, Doe is no longer eligible to return to USC."

Another fact which, if true, doesn't say particularly positive things about Mr. Doe.  (Here's a couple of public links that relate to a particular USC football player).

Yu v. Liberty Surplus Ins. Co. (Cal. Ct. App. - Jan 4, 2019)

There's nothing from the Ninth Circuit yesterday or today.  But the California Court of Appeal steps up to the plate, and this afternoon published an opinion with a very helpful -- and easily remembered -- pointer for civil litigants.

When you're drafting a complaint (or, as here, a cross-complaint), do not ask for damages "according to proof".  Ask for a particular number.  Otherwise, even if you obtain a default judgment, it won't stick.

Words to the wise.

Thursday, January 03, 2019

Brown v. Mortensen (Cal. Ct. App. - Jan. 3, 2019)

I'm sure that trial judges appreciate it when the Court of Appeal expressly recognizes that the work performed below is (1) important, and (2) doesn't always have the same inputs as the particularized efforts undertaken on appeal.

So, in this opinion, Judge Wiley (from Los Angeles) gets reversed.  I'm sure he's not ecstatic about that.  But that he nonetheless appreciates the opening two paragraphs of Justice Currey's opinion:

"This case resolves two obscure and previously unaddressed state constitutional issues: Does article I, section 16 of the California Constitution guarantee the right to a jury trial for (1) nominal statutory damages claims, and/or (2) claims for attorneys’ fees, under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.1)?

With little useful guidance from the parties, no controlling precedent, and the three-year post-remittitur deadline for bringing the case to trial about to expire, the experienced and highly regarded trial judge concluded it does neither. With more time to reflect, further development of case law, and some modest additional input from the parties, however, we reach a different conclusion. We hold that jury trial is guaranteed for CMIA’s nominal statutory damages claims brought before 2013 under section 56.36, subdivision (b)(1), but not for attorneys’ fees claims under section 56.35. We therefore reverse the trial court’s judgment (which was entered after a bench trial) and remand for jury trial on both the nominal statutory damages claims and a remaining compensatory damages claim."

Wholly apart from the Court of Appeal's expressly laudatory statement about Judge Wiley ("the experienced and highly regarded trial judge"), the Court of Appeal also recognizes that the issue was a complex one and the procedural setting of the dispute far from ideal.

In short, if you're a trial judge who's going to get reversed by the Court of Appeal, something like this is probably how you want it to happen.

Wednesday, January 02, 2019

Lief v. Superior Court (Cal. Ct. App. - Jan. 2, 2019)

It's a Tale of Two Cities in the California judiciary as we begin 2019.

The one published opinion from the Ninth Circuit thus far is this one -- an 86-page, single-spaced tome from the en banc court that's all about how much in attorney's fees someone gets from being wrongfully included on the federal government's "no fly" list.  Is it $125/hour (the usual cap)?  More because the government litigated in bad faith? Should the hours spent on one claim be recoverable when granting relief on a different claim made that claim moot?  The Ninth Circuit waxes poetic on these and other issues in 86 dense pages that includes a partial dissent.  Big, fat reading.

Meanwhile, on the California state side, the only thing published we have is this one.  It's four pages.  Double spaced.  That basically says as fast as one can say it that when there's a 30-day stay on move-away orders (here, letting one divorced parent move to Israel with the kids), that actually means 30 days. Not 15.  Not exactly dense reading.  Extraordinarily straightforward.  (Indeed, once the Court of Appeal decided to hear the writ and stayed the trial court's order, the prevailing party stipulated below that she wouldn't leave until the 30 days expired on December 7, 2018. So the whole thing's sort of moot at this point. But the Court of Appeal nonetheless issued its opinion on December 6th and then published it today.)

So choose your poison in 2019.  Want to read an incredibly complicated, lengthy opinion about which multiple people disagree?  Or a nice little short one that's pretty simple?

Up to you.

Thursday, December 20, 2018

USC v. Superior Court (Cal. Ct. App. - Dec. 20, 2018)

No one looks good in this one.  Not the fraternity, not USC, not SAE, not the USC students.  No one.

"Several fraternities and sororities affiliated with USC occupy houses in an area near the USC campus known as Greek Row, including a chapter of Sigma Alpha Epsilon Fraternity. On October 10, 2013, the day of a home football game, several fraternities, including Cal. Gamma, held parties on Greek Row where alcohol was served. The street was crowded with partygoers. . . .

USC’s Policy on Alcohol and Other Drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s Social Events Policy prohibited parties after 10 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warnings and imposed discipline on the fraternity.

USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gamma several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party. The two officers were not aware of USC’s policy prohibiting parties on Thursdays and generally were untrained in the enforcement of USC’s policies governing alcohol use and social events.

Barenborg was a 19-year-old student at Loyola Marymount University at the time of her injury. On October 10, 2013, she visited parties on Greek Row with a group of friends. Barenborg consumed cocaine and five to seven alcoholic beverages before arriving at Cal. Gamma, and she continued drinking alcohol after she arrived there. . . .

A platform approximately seven feet tall constructed from tables was being used for dancing. Barenborg and two female friends were stepping up onto the platform where USC student Hollis Barth and another woman were dancing when Barth gave them an unwelcoming look. Just as Barenborg and one of her friends reached the top of the platform, Barth bumped Barenborg and her friend off the platform, they fell to the ground, and Barenborg sustained serious injuries."

The injured Loyola student sued USC.  The trial court denied USC's motion for summary judgment.  The Court of Appeal grants a writ and reverses.  No duty.

Wednesday, December 19, 2018

In re Marriage of D.C. and T.C. (Cal. Ct. App. - Dec. 19, 2018)

I'll quote the second sentence of this opinion, and you tell me if it makes sense to you:

"The trial court found that a significant increase in Wife's earnings since the last spousal support order amounted to "changed circumstances" and on that basis reduced her support payments to Husband."

Read that again.

Yes, you read it right.  The Wife made more money.  That's a changed circumstances.  That justifies reducing the amount of money she had to pay to Husband.

And the Court of Appeal agrees with that.

I literally read that sentence three times when I first read the opinion.  I figured there had to be a typo.


It wasn't until around a third of the way through the opinion that I finally understood what the Court of Appeal meant.  Only then did it make sense.

It's not that the support payments to Husband were actually reduced.  No.  That would be crazy.  They were instead merely reduced compared to what was called for in their marital settlement agreement.

Which is a big difference.

See, the MSA called for Husband to receive ten percent of anything Wife eventually made over $180,000.  So, for example, if she made $200,000 in a certain year, Husband would get an extra $2000; i.e., ten percent of $20,000.

As it turns out, she ends up making a boatload more money than expected, because she gets a better job.  So Husband wants his ten percent of the extra cash, but Wife doesn't want to pay.

And the trial court lets her out of the deal.  So what Wife pays is (1) more than what she was paying before, but (2) less than what was called for under the MSA.

The Court of Appeal starts its opinion by focusing on (2).  Which is confusing, because the opinion hadn't yet even talked about an MSA -- much less its contents -- and normally, when you say that a party gets "less" money, you're talking about (1).

So a bit confusing.

On the merits, by the way, I see why the Court of Appeal ends up where it does.  It holds that the trial court can modify the MSA since Wife's making more money than the parties expected, but shouldn't have "capped" the amount in the way the trial court did.  I get that.  Equitable, in a way.

But I gotta also say that I'm not at all certain why it wouldn't also be equitable just to enforce the agreement.  The parties were married for eighteen years.  They've got two kids together.  Both of them worked during the marriage.  The MSA only calls for support payment for seven years.  It doesn't seem crazy to me to say that if Wife (or, for that matter, Husband) suddenly starts making a boatload of money more than expected -- money that would otherwise have gone to the marriage had the parties stayed married -- then the ex-spouse should get a tiny piece of that.

Like -- coincidentally enough -- ten percent.

Doesn't harm the ex-spouse much, who still gets 90 percent of the unexpected windfall. And puts the other ex-spouse in a very slightly better position, and compensates them for the fact that after the divorce, the poorer spouse is now in a much worse position than when s/he had two incomes coming into the family -- and in a super worse position than if those two incomes would have included the new high-paying job received by the now-ex-spouse.

Should that "bonus" money be split 50/50?  No way.  But a ten percent slide to the ex-spouse for a brief period of time -- e.g., seven years -- after two kids and an eighteen-year marriage.

Doesn't seem crazy to me.

Tuesday, December 18, 2018

In re Cody R. (Cal. Ct. App. - Dec. 17, 2018)

Nothing published from the Ninth Circuit or California Court of Appeal today.  Some judges may be wrapping presents.  Others may be celebrating the Tenth of Tevet.  Others may just be working away on draft opinions.  Another cold(ish) and lazy(ish) day in December.

Does that make you think:  "Hey, maybe I should be an appellate judge?!  I like days off too."  Well, perhaps.  But then you have to deal with facts like these, from an opinion yesterday out of San Diego:

"Shortly before Christmas 2016, the children's former court-appointed special advocate (CASA) visited the family, which by then included another son and an infant daughter. The CASA observed that three-year-old Cody, who had been a "chunky" baby, was severely underweight, weak and lethargic. His extremities were purple. The CASA, a former paramedic, said Cody appeared to be near death and advised the parents to take him to the emergency room.

Cody was barely responsive when he arrived at the hospital several hours later. He was significantly malnourished. At three-and-a-half, Cody weighed 21.6 pounds, which was less than he had weighed at his last doctor appointment shortly after his second birthday. Bruises and abrasions on Cody's face, back, and legs were concerning for nonaccidental trauma.

During his hospitalization, Cody gained almost five pounds in less than five days. There was no other cause of failure to thrive other than malnutrition and neglect. Cody was severely neurologically delayed due to psychosocial and nutritional deprivation. Physicians characterized the parents' treatment of Cody as "essentially starvation" and advised the social worker that Cody would be at risk of death if returned home.

In foster care, Cody displayed extreme food seeking behaviors, which was "textbook behavior" for children who had been food deprived. . . . The Agency detained Cody's siblings in protective custody in March 2017, when Shauna and C.R. were arrested on charges of felony child cruelty and held without bail. Cody's baby sister was placed with him in foster care. The older siblings were very guarded when first removed from their parents. They later disclosed the parents said the entire family would go to jail if they talked about what had happened in the home.

The eldest sibling, C.R., Jr., said the parents did not feed Cody and would make him watch while the others ate. The parents locked the kitchen cabinets to prevent Cody from eating at night. C.R., Jr. explained that he and his siblings left food on the ground for Cody but the mice would eat it. Cody was so hungry he ate his feces from his diaper. He was not allowed to play with toys. He was not allowed out of the bedroom and had to stay in bed all day. C.R., Jr. said the parents made him stay home with Cody to avoid having Cody be seen in public. The three oldest children reported that the parents hit all the children, leaving marks and bruises, and encouraged them to hit each other and Cody."

Not exactly It's a Wonderful Life.  More like exactly the opposite.

Monday, December 17, 2018

Biel v. St. James School (9th Cir. - Dec. 17, 2018)

The Ninth Circuit represents itself well in its sole opinion from today.  Since Judge Friedland's opinion (joined by Judge Watford) is much more persuasive than the dissent from Judge Fisher (sitting by designation from the Third Circuit).

The question is whether the defendants get to take advantage of the "ministerial exception" to justify their decision to fire a substitute teacher at a Catholic school who got canned when she told the school that she had breast cancer and would need to take time off to undergo chemotherapy.  (The school's response was to tell her that she was fired because, inter alia, “it was not fair . . . to have two teachers for the children during the school year.”  Nice.)

Judge Friedland summarizes some of the basic facts about the fired teacher in a easily understood fashion that helps make clear why the ministerial exception doesn't apply:

"After graduating in 2009, Biel worked at two tutoring companies and as a substitute teacher at several public and private schools. St. James, a Roman Catholic parish school within the Archdiocese of Los Angeles, hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. Biel is herself Catholic, and St. James prefers to hire Catholic teachers, but being Catholic is not a requirement for teaching positions at St. James. Biel had no training in Catholic pedagogy at the time she was hired. Her only such training was during her tenure at St. James: a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.

Biel taught the fifth graders at St. James all their academic subjects. Among these was a standard religion curriculum that she taught for about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. Biel also joined her students in twice-daily prayers but did not lead them; that responsibility fell to student prayer leaders. She likewise attended a school-wide monthly Mass where her sole responsibility was to keep her class quiet and orderly."

The Third Circuit's Judge Fisher would hold that the ministerial exception would apply to these facts, but to me, the majority opinion wins the battle fairly clearly.

There might well be some judges on the Ninth Circuit who would see things the same way as Judge Fisher.  But I don't think they're a majority.  Or anywhere near.

Thursday, December 13, 2018

People v. Superior Court/Smith (Cal. Supreme Court - Dec. 13, 2018)

You can't really argue that much with today's opinion from the California Supreme Court.  After the Court granted review of the case, the Legislature quickly passed a new statute that made it clear that the People should win.  That's one of the big advantages of being a Legislature; if it looks like you're going to lose a case, one solution is to just change the law.  So there's a reason why today's opinion unanimously finds in favor of the State.  You can't say much about the merits other than "Yeah, given the law now, that sounds about right."

Nonetheless, I wanted to say just a tiny bit about the language of the opinion.  Because I have a sense that people 100 years from now may view the opinion in a slightly different way than contemporary readers.

The opinion is written by Justice Cuellar, a kind soul.  It's about various discovery provisions in the procedures used to commit sexually violent predators (SVPs).  Justice Cuellar ultimately holds that, pursuant to the recent statutory amendment, some otherwise confidential medical information gets to be disclosed to the district attorney and her experts.  Fine.  That's the law.

It was Justice Cuellar's description of the SVP proceedings that nonetheless caught my eye.  There are various sentences in the opinion that describe these proceedings kindly, with language like the following:  "When we take account of the relevant provisions and structure of the law, and the SVPA’s broad purpose of identifying dangerous sex offenders so that they may receive treatment . . . ."

Okay.  Look.  I know that one theory behind SVP proceedings is the one described by Justice Cuellar:  that we're trying to "identify" sex offenders so we can "treat" them.  But, in reality, I think that's pretty much a classic euphemism:  a mild word that we substitute when the truth is unpleasant.  We commit SVPs in theory to treat them.  In reality, we just want them locked up.  So we "civilly" commit them.  Not because we have much hope that we can make them better.  But just because we don't want them on the outside.

Take the guy in this actual case, for example (Richard Smith).  The opinion is all about procedure, so it doesn't say what he did or what his problems are.  But he was in prison and about to get paroled when, in 2002, the District Attorney initiated SVP proceedings.  And he's been locked up since then.  Fifteen-plus additional years.  Getting "treated".  'Cause that's why we're locking him up, right?  Not merely to keep him off the street.

The obvious reality is that the central purpose of SVP proceedings like these is to incarcerate someone even when they've done their time for the crime (if any) for which they were convicted.  Do we have a hope that, somehow, they'll be magically cured?  Of course.  And we make an effort.  But we know full well that for a huge number of these people, our "treatment" won't work, and we'll just be locking them up for an additional eternity.

And we're cool with that.

Just look at the language of the statute, as well as what we call these people.  Violent.  Predators.  Does that sound like soft language we'd employ if our central purpose was to "treat" someone?  Or is it more what we'd say when we were looking for ways to lock these Violent Predators up?

I express no necessary normative judgment about whether locking people up in these circumstances makes sense, or whether there's a superior alternative.  That's a policy (as well as moral) decision, and one rendered in circumstances that are far than ideal.

But I nonetheless think it's worthwhile not to soft pedal what we're doing.  Or to use language that describes softly and with a peaceful purpose what we're, in fact, harshly trying to do here.  Especially when we're talking about an area in which "treatment" euphemisms have routinely been employed by governments to achieve less savory results.  Not good, in my view, to have a neutral judiciary seem to go along with -- or, worse, implicitly support -- the program by using flowery (and, in truth, one-sided) language to describe what we're doing.

That doesn't mean that Justice Cuellar is factually wrong.  I'm confident that one purpose of the SVP program is to try to "treat" patients.  To the degree we can, anyway.

But there are other purposes and motivations at play as well.  And to describe a program by focusing primarily the benign seems to me to do a disservice.  In the same way that I might feel disturbed if someone wrote an opinion (or history book) that said that the "broad purpose of interning American citizens of Japanese descent during World War II was to protect the country during wartime."  Yeah, I guess, someone could say that.  But that description seems to me to have the wrong focus.  On a topic that's incredibly serious to both the system as well as to the individuals adversely affected therefrom.

So too here.

It's not that Justice Cuellar entirely ignores the fact that we're talking about locking people up.  At the outset of the opinion, for example, he says that "Although designation as a sexually violent predator (SVP) is not a punitive measure, individuals so designated are subject to a variety of serious consequences, including civil commitment."  But even that seems fairly soft to me.  Were it me, I'd mention that people (like Mr. Smith) get locked up for 15-plus years, with no end particularly in sight.  And I wouldn't focus on the ostensible "treatment" rationale for the statute.

Because I think that downplays, in a fairly dramatic fashion, what's at stake here.  In a way that readers a century from now -- and some readers currently -- might find disturbing.  Or at least overly palliative.

My thought, anyway.

Wednesday, December 12, 2018

Doe v. USC (Cal. Ct. App. - Dec. 11, 2018)

The Ninth Circuit is taking some time off -- it has only issued one published opinion the entire week.  Meanwhile, the California Court of Appeal publishes this excruciatingly detailed tale, which describes at length an alleged acquaintance sexual assault at USC.  The Court of Appeal ultimately holds that USC didn't provide the accused student a proper hearing before expelling him.

The facts are a cautionary tale for everyone involved.  Alcohol and sex.  Not good.

Tuesday, December 11, 2018

Cobb v. City of Stockton (9th Cir. - Dec. 10, 2018)

There are lots of different legal and factual issues at play in this appeal.  But I wanted to mention only the one I thought was the most interesting, and as to which there may be some disagreement between the majority and the dissent:

Does the Fifth Amendment trump a discharge in bankruptcy?

To put it differently:  If you're entitled to "just compensation" because someone (e.g., a city) has taken your property, is your takings claim against that entity constitutionally entitled to super-priority over all other claims, secured as well as unsecured?

I could see why someone might say "Yes."  The Constitution expressly says you're entitled to "just compensation" if your stuff is taken.  So maybe you're automatically entitled to that compensation.  Period.  Even if the entity that took your stuff doesn't have enough money to pay everyone, you get your money.  End of story.

But I could also see why someone might say "No."  There's not enough money to pay everyone.  We've got a long history of distinguishing, for example, between secured and unsecured creditors.  When there's not enough money to go around, it might not make sense to someone automatic priority just because they've got a particular type of constitutional claim.  Just like people with Section 1983 constitutional claims don't get priority in bankruptcy.  It's a generally applicable law about how to allocate the residual money of a bankrupt that doesn't violate the Fifth Amendment.

And I could also see why someone might say "Maybe."  Maybe what counts as "just" compensation depends not only on the value of the property, but also -- in cases where there's not enough money to compensate all the creditors -- how such compensation would affect others.  Maybe paying someone less than what their property is worth is okay if the relevant entity is bankrupt and so paying one type of claim would necessarily harm those with other types of claims.  Maybe not.

I'm not sure I have a definitive view on this issue.  Each of the various alternatives has its upsides and downsides.

But it's something I hadn't thought about before, and it's interesting.  So I thought I'd share the case.  (Which doesn't really answer the question either, but which definitely raises it, albeit in an incredibly complicated procedural setting that mucks things up a bit.)

Monday, December 10, 2018

U.S. v. Valencia-Cortez (9th Cir. - Dec. 10, 2018)

I usually don't read the unpublished opinions.  There are too many of them, they typically lack a ton of reasoned analysis, so I'll leave 'em to the parties.

But I happened to look at this one today.  Not because I cared (or knew anything) about the case.  But just because the Ninth Circuit today didn't list any published opinions -- yet omitted the "No Opinions Filed Today" blurb that it uses on every other such day -- so just took a quick look to make sure that the Circuit was still hard at work.

And, once I read the thing -- it's very short -- I wondered:  "Why isn't this opinion published?"

Here's the relevant part:

The District Court denied Valencia’s request for a Ninth Circuit pattern eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in doing so, did not abuse its discretion. In its final jury instructions, the District Court discussed Valencia’s identification defense and provided a general witness credibility instruction. Further, the District Court permitted Valencia to elicit comprehensive expert testimony on, among other things, eyewitness memory, memory for the details of events, the ability to pick faces, and suggestibility. Counsel for Valencia extensively argued the identification defense to the jury based on this testimony. The jury was thus alerted to potential weaknesses in the Government’s eyewitness identification evidence. Accordingly, we see no abuse of discretion in the District Court’s refusal to give the Model Eyewitness Instruction.

While we see no abuse of discretion, we are troubled by the comment to the Model Eyewitness Instruction that recommends “against the giving of an eyewitness identification instruction.” Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There is now a robust body of scientific research and evidence that highlights the unique perils of eyewitness identification testimony as “one of the greatest causes of erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016).

The Supreme Court has acknowledged the fallibility of eyewitness testimony and characterized eyewitness instructions as due process safeguards that “warn the jury to take care in appraising identification evidence.” Perry v. New Hampshire, 565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model Eyewitness Instruction). Other Circuits have also encouraged the giving of such instructions, recognizing the inherent dangers of this type of evidence. United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir. 1972). Further, we have previously suggested that the need for heightened jury instructions should correlate with the amount of corroborating evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley and Telfaire a single eyewitness was the only incriminating evidence against the defendant”). Without disagreeing that courts are given discretion in fashioning jury instructions, we encourage the Jury Instructions Committee to reassess their comment as it is inconsistent with legal precedent and growing scientific evidence.

For similar reasons, we are also troubled by the following language in the comment to the Model Eyewitness Instruction: "The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction where the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded." MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either give the Model Eyewitness Instruction or allow expert witness testimony, but not both. Again, because of the particularly unreliable nature of eyewitness identification evidence, we encourage the Jury Instructions Committee to make clear that it is within a court’s sound discretion to provide both safeguards if the facts and circumstances of the case so require."

I get that even an unpublished opinion can be send to the Jury Instructions Committee.  But this discussion seems to me pretty important on the merits.  As well as useful to contemporary litigants and judges in the plethora of eyewitness identification cases that happen every day in the district courts.

So I'd publish this one.  Something that's far more informative and significant, honestly, than some of the published opinions we see.

J.W. v. Watchtower Bible and Tract Society (Cal. Ct. App. - Dec. 10, 2018)

Here's a primer on how to turn a simple discovery dispute into a $4-million-plus judgment against you.

I'm sure that the defense counsel thought every step of the way that what s/he was doing was okay.  Making arguments, thinking the trial court was wrong, thinking you could get out of producing some documents that the client really didn't want to produce (and thought were privileged).

But at some point, you've got to realize:  You've lost.  Time to face the music and comply with the court's order.

Otherwise this will happen.  Even though you keep telling yourself it won't.

That's a mighty big judgment.  One that will in fact be paid.

Don't mess up discovery.  It can cost you.


Friday, December 07, 2018

C.S. v. Superior Court (Cal. Ct. App. - Dec. 7, 2018)

You're a 14 year old kid.  You make the mistake of wearing blue shorts to a public park.

The depressing details:

"The 14-year-old victim, Heriberto R., went to the park at about 6:30 p.m. to play basketball with his older brother, his father, and his uncle. Heriberto was wearing blue shorts.

C.S. was at the park along with several members of the RPL, including Victor Villar, who was the gang’s shot-caller. Villar signaled to C.S. and another gang member to confront Heriberto. Villar also told a third gang member to “go.” 

C.S. and the two other gang members approached Heriberto, asking, “Do you bang?” Heriberto “looked like he was confused.” One of C.S.’s companions lifted Heriberto’s shirt to look for tattoos but did not see any. 

Heriberto’s older brother approached and said, “Leave my little brother alone. He doesn’t play that stuff. He doesn’t bang.” However, one of C.S.’s companions said, “Bullshit. You’re a fucking scrap,” referring to Heriberto’s apparel. 

One of C.S.’s companions then punched Heriberto, causing him to fall to the ground. C.S. and other gang members punched, kicked, and stomped on Heriberto’s head. C.S. was the last person to stop stomping on Heriberto’s head. . . . . Heriberto suffered a skull fracture and died."

What a world.

Thursday, December 06, 2018

Love v. State Dep't of Education (Cal. Ct. App. - Dec. 6, 2018)

Here's another challenge to California's repeal of the "personal belief" exemption to California's immunization rules.  One that goes the same way as all of the others and in which the Court of Appeal rejects the plaintiff's claims.  With Justice Robie saying that those claims "are strong on hyperbole and scant on authority."

In short:  Immunize your children.