Thursday, August 06, 2020

In re S.P. (Cal. Ct. App. - Aug. 6, 2020)

Yeah, this is a really hard one.  *Sarcasm Alert*

Father and Mother don't want to get their children vaccinated.  Both children have been declared dependents of the court, and for good reason.  Among other things:  "DSS filed a juvenile dependency petition (§ 300, subd. (b)(1)), alleging Father and A.P. (Mother) neglected and failed to protect their children. Mother had a history of substance abuse and mental illness. She had recently given birth to E.P. Both Mother and E.P. had tested positive for methamphetamine and marijuana. DSS alleged Father had a history of substance abuse and mental illness and was recently incarcerated."

Given this history, I'll be honest and say that I'm at least slightly inclined to not give the parent's desires on this issue a massive amount of weight.  (*Understatement Alert*)

As to whether the children should be vaccinated, the trial court has to weigh the testimony of two medical professionals.  On the one hand, there's the physician who's currently treating the children.  She says they should be vaccinated.  "[T]he DSS social worker testified that both S.P.’s and F.P.’s 'pediatricians are recommending that they receive their vaccinations.' DSS also submitted letters from Dr. Kronstad, a current treating doctor of the children. She was a board-certified pediatrician. She stated, '[N]o medical condition currently exists that would prevent [the children] from receiving vaccinations as recommended by the [American Academy of Pediatrics] and CDC.' She described the specific vaccinations that S.P. and F.P. needed to bring them “up to date” on their vaccines. She set forth a timetable for the specific types of shots they needed and the time periods during which they had to be administered. This was strong evidence to support findings that the children needed vaccinations and the exemptions were not currently valid. There is usually 'no better evidence of the state of one’s health” than the medical opinions from the patient’s current treating doctor.' (Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 664, fn. 6.)"

On the other hand, there's a letter from Dr. Johnnie Ham. Here's what the opinion says about him:

"Father told DSS that on March 11, 2018, Dr. Johnnie Ham had issued letters stating his determination the children were exempt from vaccinations. Ham wrote that the children have 'a medical reason not to vaccinate,' but did not state what that medical reason was. . . . Ham testified he saw the children once in March 2018 for 45 to 60 minutes. He said he is not a pediatrician and did not have medical records from the children’s other doctors. His examination was 'very brief.' He checked the children’s temperatures and their eyes and had them move their arms. . . . 

Ham was asked what was the medical condition that supported the exemptions but did not describe that condition. He said, “The law does not require that the child have a medical condition. . . . [It] allows us to consider both the individual’s medical history as well as family history.” In response to a question about the children’s medical condition that supported an exemption, Ham responded, “I did not see a medical condition directly with either child.” The parents said members of the family have had “allergies,” “asthma,” “autoimmune disease,” and “mental disorders, including autism.” One family member had “a negative vaccine reaction.”

Ham was asked, “Are you aware that the safety for vaccinations is considered reliable?” Ham: “No, I’m not aware of that.” In 2018, Ham issued 350 exemptions. For two children, he charges a $290 fee for an exemption examination. . . .

The juvenile court said, “The reality is that Dr. Ham issued the exemption on March 11, 2018, after receiving a request for an exemption supported solely by an uncorroborated or unverified family history provided by the parents, and without anything resembling a medical evaluation or examination of the minors.” (Italics added.) “[Ham] does not take any blood or tissue samples or anything of that nature. He does not conduct any neurological exam. . . . He testified that neither child had an existing medical condition at the time of his examination.” (Italics added.) The court concluded, “To rely solely on the information provided by a parent (the ‘family history’) without any rudimentary medical evaluation is simply ripe for abuse and patently wrong.” . . . .

Ham testified that he had been disciplined by the Medical Board of California for 'providing false documentation' and that he was on probation for 10 years."

Hmmm.  Which one would I find more credible?  The board certified pediatrician who's the children's treating physician?  Or the exemption-writing hack who's not even a pediatrician and is on disciplinary probation?

Boy.  What a toughie.

U.S. v. Bundy and Engel (9th Cir. - Aug. 6, 2020)

It's a good day in the Ninth Circuit for both Clive Bundy as well as one of his followers.  Conviction of the latter thrown out and dismissal of charges with prejudice against the former affirmed.

Tuesday, August 04, 2020

Graylee v. Castro (Cal. Ct. App. - Aug. 4, 2020)

I like the fact that the Court of Appeal decided to publish this opinion today.  Because it helps make clear what lawyers have to do to circumvent the rule articulated therein.

It involves a pretty common situation, in mediations and elsewhere.  Two sides are litigating against each other and they ultimately want to strike a deal that compels one side -- typically the defendant -- to do something as a means of resolving the case.  Maybe the defendant (allegedly) owes $50,000 but plaintiff is willing to settle for $20,000 if he gets paid within a week.  Maybe (as here) the defendant (allegedly) owes $27,000 in overdue rent but the plaintiff is willing to waive the back rent if defendant simply gets out of the house within a week.  So the parties stipulate to a judgment -- typically, for the full amount of money requested in the complaint -- but agree that the plaintiff won't file it if the defendant does what's required by the settlement agreement; e.g., move out of the house or pay the $20,000 settlement figure within a week.

These types of settlements work.  They offer something to both sides.  It's a way to strike a deal between parties that don't trust each other; typically, for good reason (e.g., they've already breached a prior promise to pay).  The settlement provides a carrot and a stick; the carrot's the discounted settlement amount, and the stick is the stipulated judgment if the defendant doesn't do what's required by the agreement.

Today's opinion removes the stick.

Justice Moore holds that, in most cases, the "stick" (the stipulated judgment) will be an invalid "liquidated damages" provision.  The Court of Appeal's theory is that the amount of the loss -- e.g., the stipulated judgment amount -- will almost never measure the damages that flow from the failure to pay (or the delay in paying) the discounted settlement amount.  So even if the defendant fails to make, say, the $20,000 settlement amount as promised, that only harms the plaintiff to the tune of $20,000 and change; anything above that -- in particular, the $50,000 stipulated judgment -- is an unenforceable "penalty."

And, of course, that's precisely what it is.  A penalty.  And deliberately so.  It's designed to coerce the parties into doing what they promised.  But so are (invalid) liquidated damages.  Hence the holding of the Court of Appeal.

So does this mean no more provisions like these?

Nope.  It just means you've got to "paper" the transaction in a particular way.

To reach the result it wants, the Court of Appeal has to distinguish appellate cases that have gone the other way and that have upheld similar types of "coercive" settlement agreements.  And it does so by saying that in those cases, the defendant "admitted" that it was liable for the full amount.  So, Justice Moore says, those weren't really "penalties" -- instead, they were full-on compromises, thus valid.

One might reasonably respond:  "But doesn't stipulating to a (conditional) judgment for the full amount claimed basically admit that you're responsible for that amount?"  Justice Moore says:  "No."  That's not enough.  You've got to actually say so.  Explicit's good enough; implicit isn't.

Okay.  We can do that.

So, from here on out, when you enter into a conditional judgment, just make sure that there's a line in there that says "Defendant hereby agrees that it's in fact liable for $X (the full amount), and that said amount is in fact due and owing, and agrees to a stipulated judgment in that amount in the event it does not satisfy the conditions set forth herein."   Maybe repeat that first clause in a much of different ways just to make sure.

Do those words actually matter?  Not really.  Defendant's already willing to stipulate to the judgment amount.  What's the big deal about saying -- accurately or not -- that they "admit" that they're liable?  As long as defendant pays what's owed by the settlement agreement, the "admission" means nothing.  By contrast, if defendant doesn't pay, the "admission" doesn't harm them any more than the stipulated judgment.  It's just words.

So that's what you do.  It's like the old days in England:  Just make sure you write down the correct "magic words" and you're able to accomplish your objectives.  But absent those magic words, the deal runs afoul of the law.

So remember those magic words.  Important.

Admittedly, this particular case does seem a situation in which there really is a "penalty" at stake.  The settlement deal says that the defendant will get out of the house by 3:00 p.m. on a given day, lest the stipulated judgment amount ($27,000) be filed, and it sounds like the defendant got out of the house at something like 3:15 p.m. that day.  That's technically a breach, hence the prompt filing of the stipulated judgment amount -- presumably by a landlord none-too-pleased at having been stiffed for the $27,000 in the first place.

Yes, that amount was (probably) due.  But, yes, it also sounds like a stupid penalty for being 15 minutes late.  Hence why the Court of Appeal wants to end up the way it does.

But, remember, yet again:  Magic words would have made the amount not an unenforceable penalty.  So long as the defendant had expressly admitted in the settlement agreement that he owed the $27,000, then it'd be a true "compromise" and hence valid.  But not if there are no such magic words.

An important lesson for litigators (and mediators) everywhere.

U.S. v. Kuzma (9th Cir. - Aug. 3, 2020)

Those are some nice-looking color pictures in Judge Collins' opinion.  Check out pages 5 through 9.  A bright-blue background, even, for the photographs of the alleged machine gun at issue.

Monday, August 03, 2020

Davidson v. O'Reilly Auto Enterprises (9th Cir. - Aug. 3, 2020)

Reasonable minds might disagree about whether Judge Ikuta's opinion is correct or whether Judge Christen's dissent has the better of the argument.

Regardless, one can't help but leave the opinions with a firm sense that Judge Klausner entered the procedural orders he did here (e.g., denying stipulated agreements to extend a super-rapid class certification deadline) with a firm eye towards making sure that the class never got certified.

Whether that's a case-specific preference or applies to class actions more generally is, again, an issue on which reasonable minds might disagree.  But this was definitely a case where procedural means were used (IMHO) to accomplish a particular result.

Friday, July 31, 2020

People v. Brown (Cal. Ct. App. - July 31, 2020)

The following introduction, from the top of page 3 of this opinion, sounds a little more like something you'd see in a work of fiction (or perhaps by Justice Kavanaugh) than in the statement of facts of a Court of Appeal opinion:

"Lions was about to enjoy an afternoon beer outside . . . ."

The line just struck me as funny.  "Enjoying an afternoon beer."  I get it.  Sounds like Justice Dato does as well.

A good way to head into the weekend . . . .

People v. Herrera (Cal. Ct. App. - July 31, 2020)

Jessee Herrera is serving some time in prison and is caught with less than 0.6 grams of marijuana.  That's a tiny amount.

I agree with the Court of Appeal that, even after decriminalization, having marijuana in prison is still a crime.

But an 8-year sentence for having less than 0.6 grams of it?  Seems way too harsh, no?

Even after you strike the priors.

An extra year in prison isn't a walk in the park.  By any means.  Eight (or a similar number) of years?  Wow.

Thursday, July 30, 2020

People v. Collins (Cal. Ct. App. - July 24, 2020)

I'm not sure why this one appears so complicated.

It's not a long opinion -- nine (double-spaced) pages, including the caption.  But as I read through it, I kept getting lost in what seems to me to be a very, very easy case.

I understand that there are some crimes that you can't be charged with "attempting" to commit since the very definition of the crime includes an attempt.  For example, you can't be charged with attempting to commit an assault with a deadly weapon since the underlying crime of assault is statutorily defined as an "unlawful attempt, coupled with a present ability[,] to commit a violent injury on the person of another" (emphasis added).  In short, there's no such thing as an attempt to commit an attempt.  Everyone agrees on this.

The defendant here, Mr. Collins, was charged with "lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1–3), assault with intent to commit rape (§ 220; count 4), attempted aggravated sexual assault of a child (§§ 664/269, subd. (a)(1); counts 5–6), aggravated sexual assault of a child (§ 269, subd. (a)(1); count 7), forcible rape of a minor 14 years of age or older (§ 261, subd. (a)(2); counts 8–10, 12, 14), and forcible oral copulation upon a minor 14 years of age or older (§ 288a, subd. (c)(2)(C); counts 11, 13, 15). The jury found defendant guilty of all charges except assault with intent to commit rape, count 4, for which he was instead convicted of the lesser included offense of simple assault in violation of section 240."  Mr. Collins then argued on appeal that there's no such crime of "attempted" aggravated sexual assault of a child..

But that's obviously wrong, and it's easy to explain why.  Section 269(a)(1) of the Penal Code says you're guilty of "aggravated sexual assault" if the victim's under 14 and more than 7 years younger than you and you "rape" the victim in violation of Section 261(a)(2) or (6).  Those latter sections in turn say that it is rape if you have sexual intercourse with the victim through force, duress or threats.  And Section 664 says that you can be charged with an attempt if you attempt to commit any crime but fail.

That's it.  Done.  The definition of the substantive crime doesn't include an "attempt" provision so you can indeed be guilty of an attempt.  In other words, you can be convicted of "attempted" rape of a child just like you can be convicted of "attempted" rape of an adult.  Actual rape requires commission of the underlying offense (the intercourse).  Attempts do not.  Simple as that.  There's lots of stuff in Justice Margulies' opinion surrounding this point, but it's really that simple.  Yet, at times, I honestly lost track of where Justice Margulies was going as I read the opinion.  In this case, shorter and simpler may have also been better.

Wednesday, July 29, 2020

Reeder v. Specialized Loan Servicing (Cal. Ct. App. - July 29, 2020)

As I read the facts of this opinion, I kept thinking to myself:  "This guy sounds like a lawyer."  At the same time, however, I was thinking that few lawyers would be so reckless.  Plus, it's not a pro per case.

Still, I couldn't help but feel a vibe that this is the kind of neat-dealing that one might see from an attorney trying to negotiate a good deal.  See if you get the same feeling that I did upon reading the facts:

"Plaintiff owned a property on Tiara Street in Encino, originally as his principal residence and then, starting in 2008, as an investment property. On March 16, 2005, plaintiff obtained a home equity line of credit from defendant E-Loan, Inc. The line of credit (or loan), evidenced by a written credit agreement, had a maximum indebtedness of $245,000, a variable interest rate, and a balloon payment due on its April 1, 2015 maturity date. The loan was secured by a second deed of trust on the Encino property. Wells Fargo Bank, N.A. (not a party) held third and fourth lien positions, with deeds of trust recorded later in April 2005.

Plaintiff alleges that before he accepted the line of credit, loan officer Veronica Harmon promised him in a verbal discussion that the 2005 line of credit “would provide a 10-year draw or advance period, subject to a balloon payment at maturity, but [plaintiff] could refinance or re-amortize the loan into a 20-year amortized, principal and interest repayment period.” Plaintiff refers to this as the “verbal loan commitment,” and alleges he would not have entered into the transaction had he known E-Loan would not honor the verbal loan commitment.

In early 2015, defendant Specialized Loan Servicing LLC (SLS) began servicing plaintiff’s loan. Plaintiff did not receive any demand for the balloon payment due on April 1, 2015, and continued to make monthly payments. Later in 2015, SLS returned plaintiff’s payments for August, September, and October 2015.

Plaintiff began active inquiries with SLS in September 2015, and learned SLS had reported to credit bureaus that he was 60 days late in paying off the loan. Plaintiff submitted a formal request for loss mitigation assistance from SLS, seeking “to proceed on the correct loan terms as he understood them,” and submitted documentation to SLS multiple times in the ensuing months. . . .

In January 2016, SLS erroneously closed its review of plaintiff’s loss mitigation request, claiming lack of required documentation. Plaintiff submitted more documents and continued to seek assistance from SLS. In August 2016, SLS offered plaintiff a trial loan modification. Plaintiff rejected this offer “because it was not in accordance with the terms he was  verbally promised” in 2005. Plaintiff then sent SLS an email reiterating his request for a 20-year amortization on the loan and removal of any negative credit reporting. He submitted additional documents in October 2016, and resubmitted them in January 2017 after being told they could not be located.

In June 2017, plaintiff told SLS he intended to sell the property, because SLS was unwilling to provide loan terms as in the verbal loan commitment, and requested removal of the notice of default. In July, he asked SLS to take a “discounted payoff.” In August and September, he submitted and resubmitted documents and further requests for mortgage assistance. . . .

Plaintiff submitted a short sale package to SLS on October 5, 2017, and SLS requested additional information from plaintiff over the next several weeks. SLS continued the trustee’s sale date, and plaintiff believed this was because of the ongoing discussions. On November 1, 2017, plaintiff received an October 18, 2017 letter denying plaintiff’s short sale request because there was sufficient equity in the property to fully pay off the loan.

The trustee’s sale occurred on November 3, 2017, with no advance notice to plaintiff. The property was sold to a third party for $300,000. Plaintiff filed this lawsuit in March 2018."

There's admittedly nothing in there about being a lawyer.  But there was something about the plaintiff just continuing to make offers, and continuing to be sure that he could work the system -- even while they're setting up selling the property, and despite the fact that there's equity therein -- that seemed to me to be a classic "lawyer" flaw.

So I looked up the name of the plaintiff:  Christopher Reeder.  Sure enough:  there's an attorney in Los Angeles with that same name.  Same middle initial ("S.") as well.  Which made me think:  Yeah, that's him.

But to be sure, I then looked up the briefs in the case.  No mention of the plaintiff being an attorney in the opening or reply briefs.  But there it is in the appellee's brief.  Right on the first line (which is what you'd expect, no?):  "Plaintiff/Appellant Christopher S. Reeder, a seasoned attorney . . . ."

One attribute you've got to have as an attorney is knowing when things just aren't going your way, so it's time to pull the plug.  That just didn't happen here.  Either in the lawsuit or in the transactions that underlie it.

P.S. - Though Mr. Reeder does seem to pull the plug (or have the plug pulled) vis-a-vis his employment history.  From his LinkedIn profile, it seems like he worked for Kern & Wooley as an associate for two years, then as an associate for Kaye Scholer for six years, then was a partner at Lord Bissel for a year and a half, then at Sheppard Mullin for a year and a half, then a partner at Reeder & Wu (presumably he's the "Reeder") for two and a half years, then a partner at Robins Kaplan for seven years, and now he's the principal at "CSReeder" (his name) for the last two years.  That's a lot of firms.  The mantra of the current firm is -- ironically, given today's opinion -- "Chris Reeder and his team win trials, litigation, and make deals."  Though, clearly, some deals, like some litigations, don't work out.

Judd v. Weinstein (9th Cir. - July 29, 2020)

Harvey Weinstein wins in the district court.  Ashley Judd wins in the Ninth Circuit.

Tuesday, July 28, 2020

Alston v. Dawe (Cal. Ct. App. - July 28, 2020)

This is what happens when you use the same words to mean different things.

The question is whether you can file a malicious prosecution suit when the suit that you're suing over was dismissed on res judicata grounds.  One Court of Appeal opinion, JSJ Limited, says that you can't, on the theory that a dismissal on such grounds isn't a favorable termination on the merits of the dispute.  Today's Court of Appeal opinion, Alston, says that's not necessarily true:  that a dismissal for res judicata may well involve a determination of the merits, as it was here.

Both opinions are talking about "res judicata" as if it's the same thing.  But, in truth, they're talking about two entirely different concepts.  The first case, JSJ Limited, involved the type of "res judicata" that -- to avoid precisely this type of linguistic confusion in the first place -- we call "claim preclusion" (or, if you prefer the old terms, "true" res judicata).  Once you file Lawsuit #1, you can't file the same action as Lawsuit #2.  When you do, JSJ Limited is generally right; the second suit is barred by claim preclusion, but that determination isn't necessarily on the merits (e.g., because the defendant is innocent).  To take the most obvious example:  Maybe the plaintiff won Lawsuit #1.  Lawsuit #2 would still be barred by claim preclusion.  Can't file the same suit twice.

By contrast, in today's case, we're talking about the type of res judicata that we generally call "issue preclusion" (or, the common law term, collateral estoppel).  Those type of dismissals often do involve a determination of the merits.  For example, if you lost Lawsuit #1 on the merits (because, say, defendant didn't do it), you lose Lawsuit #2 on the same basis via claim preclusion.  No need to litigate the same thing twice.  You lose.  And if you filed Lawsuit #2 maliciously, you are (and should be) subject to a claim for malicious prosecution, because there was a favorable termination on the merits.

So today's opinion "disagrees" with JSJ Limited, and that's (maybe) technically right.  That earlier case said that "res judicata" doesn't count as a favorable termination.  If you count "res judicata" as including issue preclusion, then, yeah, that's wrong; sometimes it does.  But, in truth, that earlier case involved only claim preclusion ("true" res judicata).  As for claim preclusion, JSJ Limited is probably right.  That type of "res judicata" isn't generally (or maybe even ever) a dismissal on the merits, so you can't file a malicious prosecution lawsuit as a result.

Justice Goethals writes a good opinion, and I pretty much agree with everything he says.  But it might have helped out to identify that the two now-"conflicting" strains of precedent really involve two very different types of "res judicata" -- particularly as future trial courts struggle to decide which of these two Court of Appeal precedents they feel like following.  I'd have made it clear:  JSJ Limited is generally right that dismissals for claim preclusion don't count as favorable termination, but today's opinion is right that dismissals for issue preclusion may well (indeed, often) count as favorable determination.

'Cause that's the right rule.

And we should stop using "res judicata" to mean both things.

Monday, July 27, 2020

U.S. v. Bocharnikov (9th Cir. - July 27, 2020)

You might think that this opinion would be the product of a liberal-leaning panel looking to release a criminal defendant at any cost; it's an "illegal search" case, after all, in which "hypertechnical" legal requirements are being used to throw out a confession.

But, if so, you'd be wrong.  It's Judges Bybee and VanDyke, joined by Judge Chhabria (sitting by designation from the Northern District of California).

Judge Chhabria's concurrence might explain in substantial part why a case with such a panel ends up the way it does.  He says (in part):

"I write separately to emphasize that reversal is warranted only because of how this case was presented to us. At no point has the government meaningfully analyzed Bocharnikov’s first encounter with law enforcement to help us determine what sort of violation occurred. . . . And at oral argument, despite suggestions from the bench that the attenuation analysis would be unnecessary if the police had probable cause to arrest Bocharnikov and if his first confession was not coerced, the government declined to adopt that position. In short, the government has disavowed the argument that an attenuation analysis need not be conducted, and left us with little choice but to assume for purposes of this analysis that all four violations took place.

Had the government pressed Bocharnikov on the nature of the first constitutional violation—or itself taken care to identify the violations and the legal consequences that flow from each—I strongly suspect we would have been compelled to rule the other way. . . . To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it."

This is a reminder that, a lot of times, there's not much you can do in your briefs or at oral argument to win a difficult case.

Yet, almost always, you can lose (even an easy case) because of 'em.


Friday, July 24, 2020

People v. Hubbard (Cal. Ct. App. - July 24, 2020)

Sentencing someone to 25 to life in prison for masturbating on the steps of a college building while there's someone 36 feet away from him -- the crime of indecent exposure -- certainly seems a hefty sentence.  But that's the three strikes law.

To be clear:  Mr. Hubbard has a serious problem keeping it in his pants.  By definition, he gets the three strikes sentence because this is far from his first offense.  (FWIW, all of his prior crimes seem far more serious than the current one.)

There's a long discussion in the opinion about what's required for the crime of "attempted" indecent exposure and the split in courts of various states about whether it counts as indecent exposure if no one actually sees a penis.  But, here, the victim said she saw his penis, and the Court of Appeal decides to follow an earlier Court of Appeal opinion that says you don't have to see the penis anyway, so it's a moot point.  Mr. Hubbard's conviction gets affirmed.

There was one part of Justice Duarte's opinion that was particularly memorable.  During trial and closing argument, the prosecutor introduced a picture of both the defendant and the victim.  Needless to say, the picture of the defendant make him look bad -- it was his booking photo, which caught him mid-blink, so he looked weird and/or intoxicated -- and the picture of the victim made her look awesome (taken at a picnic or the like, with figurative rainbows and unicorns).  Those photos were entirely irrelevant, since both the defendant and victim were both physically present at trial and looked the same, and there were no disputes at all about identity etc.  The Court of Appeal ultimately holds that the photos shouldn't have been admitted, but that the error was harmless.  But had this in particular to say about the photo of the victim:

"The photograph of Nayeli was completely irrelevant. We are not persuaded by the prosecutor’s argument that he “use[s] them in Power Point closings” and the trial court’s conclusion that the photograph was admissible to “remind the jury of who she is.” Nayeli was one of only three witnesses to testify during the only day of testimony and had testified the day before. On appeal, the Attorney General argues the photograph of Nayeli “was relevant to whether [defendant] [w]as guilty of the charged crime. Accordingly, the photo was relevant.” How exactly the photograph is relevant, the Attorney General does not say. Frankly, the argument makes no sense. It was an abuse of discretion to admit the photograph."

Totally true.  (Albeit harsh.)

Anyway, Mr. Hubbard -- who's 38 -- is likely to remain in prison for a long, long time.  Perhaps for the rest of his life.  (I suspect that they'll successfully SVP him even on the off chance he ever gets parole.)  In the meantime, this opinion let's you know more than you probably ever wanted to know about the ins and outs of indecent exposure in California.

Wednesday, July 22, 2020

Monzon v. City of Murrieta (9th Cir. - July 22, 2020)

You'd think the timing on this case might have given plaintiffs a fair amount of hope.  An  unarmed minority (Junef Monzon) gets shot and killed by the police in a hail of bullets.  He's driving a vehicle that's reported stolen, but there's no other evidence that he's committed any other crime (ever).  He tkes police on a high-speed chase, and then turns into a dead end street, where he gets blocked in by four police vehicles (and five officers).  Does a multi-point turn at the dead end street so he's pointed towards towards the gap between two of the officer's vehicles, but not at any officer.  The police tell him to "Stop" -- and he puts his hands up -- but the engine is revving, and it looks like he might be about to try to go between the gap in the cars.  So the police start shooting, killing him with eight shots, most of them in his back.  His high speed when he was in the dead-end street (i.e., pointing towards the gap) was 17 miles per hour.

The oral argument in this case was on March 31, 2020; admittedly before the killing of George Floyd, but the resulting uproar about police tactics might well have led the plaintiffs to think:  "Hey, given the facts, we've got a real chance at winning here, right?"

Except the panel consists of Judges Callahan, Lee and VanDyke.  Who unanimously find that the shooting was entirely okay.

Tuesday, July 21, 2020

In re Marriage of Hein (Cal. Ct. App. - July 21, 2020)

You could indeed run a family law system like this.

I just don't know why you would.

The question is what you do with people who are self-employed (or own a business).  In particular, how one treats what the lingo calls "capital assets" -- which is just a fancy term for "the big stuff you buy that let's you do your work."

Let's say you're a professional blogger (so you need to buy a computer), or a driver for UPS (so you need to buy a brown truck).  Without these purchases, you can't make any money.  So you buy it, and start making coin as a result.

But let's say you get divorced.  We've got to figure out how much money you make in order to determine spousal and child support, etc.

The way we usually do that is to just look at your tax returns.  Because, not surprisingly, we've got a fairly sophisticated system when it comes to assessing out how much money people take in order to make sure the government gets its share.  So we largely use that same system in family law cases.

So, on the tax side, we let -- indeed, typically, force -- you to take what's called "depreciation" when you buy a capital asset like your computer or your truck, rather than let you deduct that expense when you incur it.  So, say, in 2018, you buy a $25,000 truck to commence your UPS work, and then use that truck make $25,000 in 2018 and every subsequent year.  As an economic matter, you didn't really "make" any money in 2018, since you spent $25,000 and made $25,000.  But we think that's (1) a bit deceptive, and (2) not the right way to calculate how much money's "available" to you.

So we don't say you made $0 in 2018 (but $25,000 in 2019 and $25,000 in 2020).  Instead, we have you "depreciate" the asset.  Say that we've decided that UPS trucks generally last 5 years; we then let you deduct one-fifth of your $25,000 purchase over each of those five years.  So we treat you as having made a whole $20,000 in 2018 ($25,000 minus $5,000) -- even though you were actually "even" (made $0) in that year in terms of available cash -- and then the same $20,000 in 2019 and 2020 (and the next two years), even though you actually made $25,000.  We're spreading out the deduction because it's more accurate.  After all, yes, in terms of cash, you only "made" $0 in 2018.  But at the end of the year, you also had a $25,000 truck.  Seems silly to say you got "nothing" from your income over that year.

Sorry for the quick, dirty, and somewhat simplistic description of depreciation for those of you already quite familiar with it.  But that's the concept.

So the question is:  Does the same thing make sense in family law court?

The Court of Appeal says:  "No."

Instead, it says that you can't take depreciation.  Since it doesn't accurately reflect the "money" you have available to pay support.  You're not actually "spending" the $5,000 in 2020 (in our example) that depreciation suggests.  So you have it available to pay your former spouse (and/or kids), so we're going to include it in your income.

Again:  You could do that.  It just wouldn't, in my view, make sense.

Because if you're going to ignore tax law (the deduction) in 2020, you've got to do the same thing in 2018.  So if the person in our example gets divorced, under the tax laws, we'll say she has $20,000 of income in 2018, 2019, and 2020, and (in my view) it makes sense to use those same numbers to figure out how much support (if any) she should pay.  She makes money and has a truck.  She's got all that to use to pay her spouse/children.

But the Court of Appeal says, no, you can't use depreciation.  So after today's opinion, she's definitely got $25,000 in "income" in 2019 and 2020 on which to figure support.

But, by the same principle, she also has $0 of income in 2018.  Because if you're not following tax laws for depreciation, you can't follow 'em for 2018 either.  If the Court of Appeal says (as it surely does) that we count the full $25,000 in 2020 because that's actual cash she's got available to pay -- and that that's the family law rule pursuant to statute -- then that same rule means that we've got to view her as having $0 in 2018, because in that year, she didn't have any money to pay support (since she made $25,000 but spent it all on the truck).

So under the Court of Appeal's rule, you should figure "income" of $0, $25,000, then $25,000. Whereas depreciation -- rationally -- smooths that out, and makes it $20,000 every year.  Which I find more accurate, less volatile (obviously), and a better way to determine support.  (Especially since volatility increases transaction cost as parties rush in year-over-year to modify support payments given the ostensible "change" in income.)

There's nothing that forces the Court of Appeal to hold the way it does.  There's a different Court of Appeal opinion that doesn't allow depreciation for real property.  But we could have a different rule for intangible business property like the one at issue here.  Or we could say that the other Court of Appeal opinion seems wrong and that we're not going to follow it.  Either option works.

Today's opinion at least has the value of a bright-line rule and consistency.  But it results in a system that's inefficient and burdensome, as well as not nearly as bright-line as the Court of Appeal might think:

(1) It will result, for sure, in self-employed (and business owners) paying more support in some years since we're now ignoring depreciation, but it will also result (at least if lawyers are smart) in people in such situations arguing (persuasively) that their tax returns similarly overstate their income for years in which they incurred capital expenses but we're allowed to deduct them (and used depreciation instead).  Indeed, for some taxpayers/family law earners, that'll result in them paying less support; for example, if they get divorced (and their support calculated) in a year in which they purchase capital assets, which they can't deduct on their tax returns but can "deduct" in family law court since we're now only looking at "available cash" to pay support.  Of course, the other side can then go to court the next year, when they're not a capital purchase, and argue that now they should get more support, but that just shows the point about transaction cost and uncertainty above.

(2) The Court of Appeal includes a caveat that says that even though you can't count "depreciation" a trial court might nonetheless be able to count it as a "special circumstance" that affects support.  But that's both under- and over-inclusive, and in some ways, is the worst of all possible worlds.  If what a trial court does is to say that capital assets are indeed special circumstances, so we'll go ahead and allow a deduction, great, but (a) we've now wasted time and money to get to the same place we'd have been initially if we'd just taken depreciation into account, and (b) maybe the amount that the trial court counts as "special" isn't the same way that tax law treats it, which isn't awesome, since I suspect the IRS is fairly more informed than a trial judge on, say, the relevant life of various capital assets and how it makes sense to value them over time.  By contrast, the Court of Appeal's general view about what we base support on ("available cash") suggests that trial courts might not find the purchase of a capital asset to be "special" in a given case, in which case we're back to the original problem of distorted support payments -- worse, even, since we've now spent transaction costs on litigating whether something's "special" or not.

So it seems to me that the right rule should just be to follow what the IRS does and allow the depreciation.  At least as the general rule, and directly contrary to what the Court of Appeal does here.

Don't get me wrong; I understand a little bit -- both economically and otherwise -- of where the Court of Appeal may be coming from here.  The "capital asset" that the spouse is depreciating here is an airplane, allegedly used "only for business."  The nature of that asset (a plane) and the fact that he buys flying lessons for his daughter suggests to me that, shock of shocks, this isn't just a business expense with no other purposes at all.  So I get why someone might be somewhat reluctant to say "Oh, you have a half-million dollar plane, so I get why we should use that to reduce the amount you have to pay your ex-wife."

But we can get at that problem by giving a trial court discretion to disallow depreciation (in whole or, probably more accurately, in part) in such "special" circumstances, rather than creating a general rule that depreciation isn't typically allowed.

So I too would create a rule.  It'd just be the opposite one to that followed by the Court of Appeal.

Friday, July 17, 2020

People v. Barton (Cal. Ct. App. - July 17, 2020)

You've got to be careful when discharging a juror for his or her alleged failure to deliberate.  It's hard to distinguish between someone who simply believes what she believes -- notwithstanding the views of the 11 other jurors -- and someone who's refusing to deliberate.  Especially since it's just human nature for a holdout juror to feel like the other 11 are "ganging up" on her and hence withdraw to at least some degree.  If 11 people keep asking me hour after hour to explain my view, and I feel like I've done so more than competently, I may well react negatively to them saying things like (as here) "Just tell me yes or no . . . ."  After all, as Juror No. 12 said here, "I'm not the one on trial."

Justice Huffman and the panel ultimately conclude that the discharge of the juror here was not okay.  That seems right to me.  Was the holdout juror miffed?  I'm sure she was.  She she at some point not feel like participating at the detailed level that the other jurors demanded?  Probably.  But she was still willing to talk and deliberate.  That's all that's required.  Sometimes it's hard to explain why you find one person credible and another person not credible.  At some point it's perfectly okay to say:  "I've already told you, again and again, why I have the view I do.  I can't explain it any better than that."

I understand that there's a downside in having to try a person again.  But there's also a downside in allowing a holdout juror to be coerced, or having her discharged (as here) when the other jurors are upset that she won't change her mind and say she's accordingly not "willing" to deliberate.

So it's a careful balance.  And as between coercing a guilty verdict and potentially wasting some time and money on a new trial, my thumb's on the scale of doing the latter.

Legislature of State of California v. Padilla (Cal. Supreme Ct. - July 17, 2020)

I'm generally impressed that the California Supreme Court is so often able to achieve unanimity in difficult opinions.  Even occasionally in cases that I think are close ones.  Particularly in this era of hyperpartisanship, that's impressive.

But then there are opinions like today's.

It's great that it's unanimous.  But it's also essentially a laydown.

There's a law that says that redistricting, which is based on the U.S. census, needs to be performed by X dates.  But due to COVID-19, the census is basically paused, and the formal deadlines set for the census by federal statutes have (thus far) been pushed backed by four months.  Which in turn means that there's no way that the California Redistricting Commission -- which uses the federal census data -- can do its job by the statutory deadlines.

Normally, the Legislature would just pass emergency legislation that extended the deadline.  But we are dealing with an initiative here, which the Legislature can't amend.  So the only way to solve the problem is (1) to put the issue on the ballot -- which couldn't effectively happen in time, or (2) ask the California Supreme Court for relief.

So, not surprisingly, the Legislature does the latter.  "Please extend the deadline four months."  Which the California Supreme Court then unanimously does.

Makes total sense.  Efficient and just solution to a thorny problem.

The only doctrinal complexity is that it's not obviously true that the judiciary has the power to amend a statute.  But Justice Kruger's opinion persuasively argues that rather than strike down a statute, the judiciary has the power to "reform" it in circumstances in which compliance is impossible.  As it is (effectively, anyway) here.

Sometimes it might take a lot of work to establish unanimity.  Here, however:  Not so much.


Thursday, July 16, 2020

Abatti v. Imperial Irrigation Dist. (Cal. Ct. App. - July 16, 2020)

I remember people telling students back when I was in law school (many decades ago) that water rights were going to involve huge legal disputes in the future.

If today's 106-page opinion by Justice Aaron is any indication, they were right.

Even though it's the size of a small book, the opinion doesn't even really resolve the merits of the competing allocations.  The Court of Appeal simply decides that it's an abuse of discretion to put agricultural uses of water last -- at the very end of the line (behind all other users), resulting in water limitations on them when there aren't corresponding limitations on others.  How the District should in fact allocate water rights is left for another day.

And, presumably, another 106 pages or so.

At least in the Imperial Valley, agriculture accounts for 97 percent of water use.  So farmers are the ones who are going to bear the brunt of any water reduction regardless of how it's doled out.  Still:  maybe no reason to put them on the absolute bottom and not constrain anyone else.

You've definitely not heard the last of this, or other, water wars.

Wednesday, July 15, 2020

People v. Bowen (Cal. Ct. App. - July 15, 2020)

Let me get this straight.  A 62-year old man agrees to board your dog for $100/week, you say the dog will be there for only two weeks, you actually leave the dog there for five months, you and a couple of your buddies eventually come to the house and take the dog without paying the guy, later you beg him to take the dog again and he agrees (you still haven't paid him), then you come to his house and try to stab him to death?!

Wow.  Talk about ungrateful.

Props to the victim, however.  Who, even after being repeatedly stabbed in the neck, eventually gets the defendant (Quentin Bowen) in a half nelson and escapes.

And Mr. Bowen gets sentenced to life in prison.  (Which the trial court somewhat erroneously calls "seven to life," but really it's just life with the possibility of parole, with at least seven years before any parole eligibility.  According to the Court of Appeal:  a distinction without a difference.)

Well done, 62-year old victim Dennis N.  I hope you got Quentin's dog after he went to prison.  It sounds from the opinion like you took very good care of him.

Better care than you received from Mr. Bowen, for sure.

Now off to mail my tax returns . . . .  (Speaking of ungrateful.)

Tuesday, July 14, 2020

Greene v. Harley-Davidson (9th Cir. - July 14, 2020)

Whether to remove a class action from California state court to federal court is always a toughie.  Defendants have a lot of procedural advantages in the former; e.g., appeal as a matter of right of any class certification order.  So even though federal court might generally be preferable in a lot of cases, you'd want to think deeply about it in any particular case, especially a class action.

Here, you've got a defendant (Harley-Davidson) who removed the case under CAFA, saw the federal judge remand the case back to state court, and then filed an appeal with the Ninth Circuit to keep it in federal court.  Successfully.

So the good news is that they get to stay in federal court.  The bad news is that they're stuck there in front of a district court judge who they got reversed and who didn't want to hear the case.  Without any of the procedural advantages of state court (e.g., the ability to paper the judge after an appellate reversal).

Be careful what you wish for.  You might just get it.

People v. Collum (Cal. Ct. App. - July 13, 2020)

Yeah, seems to me they should have charged him with attempt.  Or had the Legislature write attempt into the statute, as it has often done.

Monday, July 13, 2020

U.S. v. Voris (9th Cir. - July 7, 2020)

Jack Voris fires five shots at five or more U.S. Marshals attempting to pick him up on warrants.  He's convicted of six counts of assault.

The Ninth Circuit says that's not okay.  Five convictions are fine; one conviction per shot (as long as there's at least five Marshals, which there are).  But not six, since there weren't six shots -- one shot at a group of six Marshals doesn't create six assaults.  Again:  One shot, one conviction.

Not that this helps Mr. Voris much as a practical matter.  He was sentenced to 1,750 months in prison.  Maybe the remand shaves off, at most, 10 years or so.  He's still looking at 130+ years.

So not really a huge win for the guy.

Friday, July 10, 2020

Saw v. Avago Technologies Ltd. (Cal. Ct. App. - July 10, 2020)

It's too bad that the Court of Appeal can't certify this question to the Court of Appeal of the Republic of Singapore (which his the highest court in that country).

Mr. Saw works for Avago in Malaysia, and is entitled to receive shares in the company.  He buys 160,000 shares and is granted another 137,500 options.  The share agreement says it's governed by the law of Singapore but gets enforced (if necessary) in San Mateo.  The share agreement also says that the company gets to buy back Saw's shares if he's fired for any reason.

Saw gets laid off in 2009, and the company buys back his shares (which he bought for $5/share) at $6.76/share.  So he makes some money, but not a lot.  The thing is:  the shares are now worth tons more than the $6.76 that Saw was paid back then; they're now worth over $70 million.  Saw sues in Malaysia saying he was wrongfully fired, and sues in California saying that the company was wrong to steal his shares by firing him.

The Malaysia court says, yep, he was wrongfully fired, so get's going to get some damages.  But the big damages ($70 million-plus) are only at issue in the stock suit in California.  There, he loses.  The trial court -- and, today, the Court of Appeal -- says that it's okay to fire someone as a means to steal their shares.  There's no Singapore case directly on point.  But the contract says the company can take back the shares if the employee stops working "for any reason," there's no implied covenant of good faith and fair dealing under Singapore law, and the law of California and England (the latter of which is typically persuasive in Singapore) says that you can steal shares in such a manner.

Okay.  But the contract is governed by Singapore law.  The fact that California and England allow you to steal shares -- by firing someone illegally and then say "Oops, you no longer work here, so we're entitled to take your stock -- doesn't necessarily mean that Singapore would say the same thing.  Given that Singapore courts held that the guy was wrongfully fired (and entitled to damages), it's at least plausible that a Singapore court might say "You know what, no, I know the contract says that the company can take your shares if you stop working for any reason, but that's not kosher with us; we hold that, under Singapore law, if you're fired wrongfully, that vitiates the company's contractual ability to take your shares."  And if that's indeed Singapore law, then, pursuant to the contract (which is governed by that law), Mr. Saw should prevail in his California suit.

Unfortunately, we'll never know if that's indeed what Singapore law says.  The Court of Appeal (in California) can't ask 'em, because there's no provision of which I'm aware that allows an intermediate appellate tribunal in California to certify a question to a foreign sovereign's judiciary, so in California we have to guess what Singapore would decide.

And guess what?  We decide that Singapore would do . . . exactly what we do here in California on this issue.  Shocking, right?

I'm not sure that Justice Sanchez's prediction is wrong.  Maybe Singapore would really follow the foreign and other precedent that Justice Sanchez cites.

But maybe not.  I at least think -- based on my VERY limited exposure to Singapore law -- that it would be a closer issue than Justice Sanchez seems to think it is.

So it's too bad we can't ask.  'Cause if I could, I would.  Better than a guess.

Silva v. Barr (9th Cir. - July 10, 2020)

When, as here, Judges Berzon and Ikuta agree that circuit precedent is probably wrong, I suspect that you'll see a successful en banc call to fix the problem.

It's one of those plethora of "what counts as moral turpitude under state law" cases, which determines whether we kick someone out of the country.  The Ninth Circuit decided back in 2009 that petty theft in California counts, the California courts subsequently refined the contours of that offense so that it probably doesn't count anymore, but subsequent Ninth Circuit panels didn't really examine the new state law precedent and simply followed the 2009 case.  That compels a current Ninth Circuit panel to follow the earlier circuit precedent even when, as here, they're pretty sure it's wrong.

But you can always fix these things with an en banc vote.  Which seems would have a very good shot at success here.

Thursday, July 09, 2020

Pico Neighborhood Ass'n v. City of Santa Monica (Cal. Ct. App. - July 9, 2020)

Sometimes the best judge of which side has the better legal argument is someone who doesn't care one way or the other about the outcome.

Of course, all judges are supposed to be impartial.  But judges are people.  They have ideologies.  They have beliefs.  Sometimes those ideas come into play when adjudicating a case.  Sometimes for the better, sometimes for the worse.

But for the moment, I'm just talking about deciding whether one side has the better argument as a matter of legal doctrine.  For that, it's probably better to view the dispute without preconceived views about the underlying merits.

I say that because this idea came to mind when reading this opinion by Justice Wiley today.  It's a high-profile case.  You'll read more about it in legal newspapers, most likely.  The Court of Appeal reverses the trial court and holds that Santa Monica isn't required to move from at-large voting for council members to district-level voting.  The 50-page opinion discusses at length both the history of voting in Santa Monica as well as the racial and other impacts of at-large versus other ways of filling elected municipal positions.

As for style, it's another classic Justice Wiley opinion.  Crisp and clean.  A plethora of one-sentence paragraphs.  As for legal analysis, there's lots to commend the opinion.  It's not ruthlessly one-sided, and understands and appreciates that -- as with many things -- the concepts at issue are often shades of gray.

I mention neutrality and disinterestedness at the outset of this post because that's where I personally come from on this topic.  I'm genuinely agnostic as to the merits of at-large versus district voting.  I see the advantages and disadvantages of both.  For example, as a general matter, at large voting often does make minority representation more difficult to achieve.  At the same time, district level voting creates problems of defining districts (gerrymandering, etc.) as well as  may often enhance not-in-my-backyard effects as each district's official opposes socially beneficial but perceived individually deleterious programs like affordable housing, substance abuse treatment centers, etc.

All of these things Justice Wiley discusses in his erudite 50-page opinion.  My only point:  I see the arguments on both sides.  On this policy issue, I don't have a strong view.  Truly.

Because of that, I approach the legal doctrine questions raised by the litigation with an open mind.  Extremely open.

On the legal doctrine front, there's much that Justice Wiley says that I find at least somewhat persuasive.  But on the central, dispositive point -- what it means to be for a voting group to be "diluted" under the statute -- I find Justice Wiley's analysis amiss.  Substantially so.

The statute at issue -- the California Voting Rights Act -- says that a plaintiff has to establish five elements to obtain relief under the statute:  1. Protected class; 2. Resident; 3. At-large voting; 4. Racially polarized voting; and 5. Dilution.  Everyone agrees that, in the present case, plaintiffs have made out the first three elements, and there's a fair piece of evidence of the fourth as well (though Justice Wiley doesn't reach that issue).  The focus -- at least for Justice Wiley -- is on the fifth:  Dilution.

What does it mean for a group's voting rights to be "diluted"?

Justice Wiley rightly resorts to common dictionary definitions and says that word means to "weaken" something.  "Pouring a quart of water into a quart of milk, for instance, dilutes the milk to half strength."  Yep.  Exactly right.

Plaintiff says that at-large voting reduces Latino voting strength because that minority group only constitutes 13.64 percent of the voting age population, so whereas in a district-level scheme, Latino voters might well make up a substantial portion of that district's electorate -- and hence help them to elect Latino representatives -- an at-large system "dilutes" their ability to do so because their 13.64% doesn't mean much.  So the at-large voting system makes the power of their votes weaker.

Justice Wiley responds that the Legislature didn't define what "dilution" means, but that this can't possibly be what they meant.  He argues from a hypothetical, one that I found somewhat persuasive:

"Assume three facts: there are 3,000,000 voters in a city; 3,000 belong to a small racial group G; and all voters are racially polarized in the sense voters will vote only for candidates of their own race. In an at-large election, group G would constitute 0.1 percent of the electorate. Suppose we now switch from at-large voting to voting in 15 districts, each with 200,000 voters, and we draw the lines to maximize the voting power of group G. Now one district incorporates all 3,000 voters of group G. Thus group G would increase its voting power from 0.1 percent strength at large to 1.5 percent in that district. A change from 0.1 to 1.5 percent is a 15-fold increase, which seems sizeable in relative terms. This change would improve G’s “influence” as Pico would define the term. But a group with a vanishingly small numerical presence—be it .01 percent or 1.5 percent—can have no practical numerical influence in any voting system. There are simply too few voters in group G to be numerically effective in an environment of race-based voting. To define “influence” as Pico proposes would merely ensure plaintiffs always win."

Okay.  I'm with you.  It probably doesn't make sense to define "dilution" in such an overly broad fashion.  Mind you:  That's undoubtedly what the word means.  It means "weaken" -- to any degree.  The ocean is "diluted" when I pee in it.  Sorry, but it is.  So if we're going strictly by plain meaning, that's indeed what the statute says, so, yes, in Scalia World, plaintiff should win, even in Justice Wiley's hypothetical.

But I agree that this would go too far, and was not the Legislature's intent.  So I'm willing to depart from the plain meaning of the term to avoid precisely the result that Justice Wiley posits through his hypothetical.

But from this, Justice Wiley pivots to what he thinks is the dispositive answer here.  He says that just as in his hypothetical, here, Latino voters in Santa Monica similarly don't have their votes "diluted" because their share of the vote is similarly too small.  He notes that even plaintiff's proposed districts would only give Latino voters a 30 percent share in any district.  And he says that, as a matter of law, that's not enough to show dilution.  "Assuming race-based voting, 30 percent is not enough to win a majority and to elect someone to the City Council, even in a district system. There was no dilution because the result with one voting system is the same as the result with the other: no representation. Pico thus failed to show the at-large system was the reason Latinos allegedly have had trouble getting elected to the City Council. The reason for the asserted lack of electoral success in Santa Monica would appear to be that there are too few Latinos to muster a majority, no matter how the City might slice itself into districts or wards. At-large voting is not to blame. Small numbers are."

So the test for "dilution" for Justice Wiley is whether a group would otherwise have enough votes to "win a majority" in a district.  So the test -- majority -- is 50.1 percent.  Because, he says, you've got to assume racially polarized voting, with Latinos voting one way and non-Latinos voting the other way.  And, if so, then absent 50.1% (a "majority"), Latinos won't win anyway, so there's no dilution.  Justice Wiley says that plaintiff can't "arbitrarily embraces racially polarized voting when it helps [on Prong 4] and [then] abandon it when it hurts [on Prong 5, dilution]."

Justice Wiley makes this implicit definition (50%) even clearer elsewhere in the opinion.  For example, n his hypothetical in which he says plaintiffs would have a claim, the relevant minority group is indeed over 50%.  He says:

"For our hypothetical, assume everyone votes strictly according to group membership and, if possible, only for candidates who are members of their own group. Further assume one group has voting power of only 10 percent in a given city but, within that city, the group’s voting power in neighborhood X is 60 percent. If neighborhood X were a voting district, the group could elect one of its own members as a district representative. The 60 percent neighborhood voting power would guarantee success. But now switch to at-large voting. This switch defeats the group’s ability to elect anyone from its own ranks, because 10 percent is not enough to win. Changing from district to at-large voting under these circumstances would weaken that group’s electoral success: the change would deny it the ability it previously had to elect a member of its own group."

Okay.  So I get that's the test.  At least for Justice Wiley.  To state a claim under the California Voting Rights Act, you've got to establish "dilution" -- which in turn means that you've got to show that a particular district would be "majority-minority" (over 50%) to prevail.  Otherwise you couldn't get a minority candidate elected anyway.  To repeat Justice Wiley, unless you've got a 50% district, "At-large voting is not to blame. Small numbers are."

That's where he loses me.

For one thing, I don't think the result follows from its predicate facts.  Yes, there's (let's assume) racially polarized voting in Santa Monica.  Which means, as plaintiff showed, that Latino voters disproportionately vote for Latino-surnamed candidates.  That doesn't mean that every Latino voter votes for every Latino candidate, or that non-Latino voters never vote for Latino candidates.  It's just "polarized," not definitional or necessarily conclusive.  Which is the problem with Justice Wiley's theoretical and doctrinal move.

Imagine, for example, that we've got a district that's 30% Latino, and of the non-Latino voters, 40% are Democrats and 30% are Republicans.  To make things simple, let's assume that voters vote in the following (quite racially polarized) manner:  (1) Latinos always vote for Latino candidates, regardless of party; (2) Non-Latino Republicans never vote for Latino candidates, but as between Democrats and Republicans, always vote for the Republican, and (3) Non-Latino Democrats always vote for the Democrat (as between Democrats and Republicans), but are indifferent to Latino ethinicity.

What happens in that district?  Justice Wiley's analysis assumes that Latinos won't win because they don't have a majority.  But they definitely will.  Take elections with classic primaries.  (The same is true for jungle primaries, but I'll take the less complicated case just to prove the point more easily.)  No Republican Latino will win the Republican primary, of course.  But the Latino candidate will win the Democratic primary, since she'll get a majority of the vote:  in a district with 1000 voters, she'll get the 300 Latino votes plus half of the 400 Democratic votes, for a total of 500, while her primary opponent will only get 200 -- the other half of the 400.  And in the general election, she'll crush; she gets all the Democratic and Latino votes (700) as opposed to the 300 Republican votes for her opponent.  (FWIW, as long as there's not an overwhelming number of Democratic candidates, she also wins in a one-shot election, since she gets the 300 Latino votes, plus her share of the 400 Democrats (all 400 if she's the only Democrat, or her share if there are several), whereas the non-Latino Republican gets at most only the 300 Republican votes, and less if he splits with other non-Latino Republicans).

But the results my well be radically different in an at-large system in which, as here, Latinos are only 14 percent of the population.  My spouse and kids are here to pick me up from work, and this post is already super long, so I won't spell out all the relevant numbers and assumption.  But trust me; the numbers are way different at 14 percent as opposed to 30.

The point is this:  At some number less than 50, you've still got dilution.  The most obvious number being 49.99%.  Yes, it's not a majority.  But that minority's power is diluted when it's reduced from 49.9% -- which definitely will win you an election in a particular district given non-zero crossover votes -- in a district to, say, 14% in at-large voting.

There are other problems with Justice Wiley's definition as well; for example, it gives way too much weight to manipulative gerrymandering, since plaintiffs could surely create a 50.1% Latino district in Santa Monica if they were willing to sufficiently futz with the shape of the districts.  But it's biggest mistake is that it simply doesn't correspond either to (1) electoral (or numerical) realities, or even (2) the commonly accepted meaning of dilution.  To use Justice Wiley's own example:  A quart of milk is "diluted" even if it's still 70% milk and only 30% water.  Ditto for Latino voting strength in Santa Monica.

Now, look, were I the Legislature, I'm not sure that I would have used the undefined word "dilution" -- or have made that an element which, if established (alongside the other four), gets you relief.  But the California Legislature did.  And it did so, I'm quite confident, without a theory in mind that unless you've got a minority district that's majority-minority (50.1%), you've got to claim under the Act.  I'm quite confident that the legislators who voted for the Act knew full well what both "dilution" means and how minority dilution plays out in elections.  They all successfully ran in electoral contests with precisely such actual or potential effects, after all.  Minority strength gets diluted even in situations in which the minority wouldn't be a majority in any district anyway.  In lots of different ways.  I'm sure the Legislature knew that, and in passing the Act, wanted to stop it.  So, yes, they probably didn't want to grant relief in Justice Wiley's "there's only 0.1%" hypothetical.  But I'm darn sure they did want to protect a 30% group (and, coincidentally, a 13.6% group, which characterizes minority groups in lots of real-world settings, in California and elsewhere).  And to do so, they used an open-ended word like "dilution" that facially protects every percentage, not just 50%-plus.

So maybe the Act's a good idea or bad idea.  But as a matter of legal doctrine, I think that Justice Wiley's approach doesn't work.  It's not what the Act actually means.

I also suspect (1) that the losing party here (the plaintiffs) will seek review by the California Supreme Court (indeed, I'm virtually certain of it), and (2) that, if review is granted, the California Supreme Court won't find persuasive Justice Wiley's analysis of the "dilution" point.  I'm not saying that review will undoubtedly be granted; though it's a high-profile case, and important, so it might well be.  But if it is granted, my money's on a different result.

For whatever that's worth.

And in that regard, I'm fully cognizant of the downside of making predictions.  To take an on-point example, here's what the attorney for the plaintiffs said to a reporter before the Court of Appeal's decision earlier today:  "Rex Parris, an attorney representing the plaintiffs, however, said in a December interview with the Santa Monica Mirror that the chances of the city prevailing in an appeal are low. 'What are the odds of reversing on this appeal? Very remote,' Parris said."

Yeah.  Turns out:  Not so much.

Wednesday, July 08, 2020

Crow Indian Tribe v. State of Wyoming (9th Cir. - July 8, 2020)

Three unusual things in this Ninth Circuit opinion today:

(1) The Ninth Circuit lists the title of the case as "Crow Indian Tribe v. State of Wyoming" (it's on the top of each page), yet Wyoming is in the Tenth Circuit, not the Ninth;

(2) The caption of the case alone takes up more than twice the number of pages as the opinion's analysis of the merits, and the "Factual Background" section is as long as the rest of the opinion; and

(3) Judge Schroeder's opinion begins with a quote from the University of Montana's fight song, which isn't something you typically see -- or would necessarily expect from a Swarthmore and University of Chicago graduate living in Arizona.

U.S. v. Vandergroen (9th Cir. - July 7, 2020)

In which of the following situations (if either, or both) is there reasonable suspicion to believe that the individual stopped is guilty of a crime:

Scenario 1:  An identified employee at a YMCA calls 911 and says that someone there saw a person in the parking lot with a gun.  She doesn't say whether the gun is concealed or not.  It's illegal to carry a concealed weapon but legal to carry one openly.  A police officer arrives, starts following the person described by the caller, and that person starts running from the police.  The police then detain him.

Scenario 2:  An identified employee at a bar calls 911 and says that some people there saw a person in the parking lot with a gun.  He doesn't say whether the gun is concealed or not.  It's illegal to carry a concealed weapon but legal to carry one openly.  The person starts running before the police arrive and gets in a vehicle.  The police then detain him.

I'm only focusing on the "is there a crime" part; not the reliability of the tip.  What do you think?  Reasonable suspicion in neither?  Reasonable suspicion in both?  Reasonable suspicion in the first but not the second?  Vice-versa?

Here are the actual results:

The first case is U.S. v. Brown, decided by the Ninth Circuit last year.  It holds that there's no reasonable suspicion.

The second case is U.S. v. Vandergroen, decided by the Ninth Circuit yesterday.  It holds that there is reasonable suspicion.

To me, that's probably the weakest way to come out.  Brown is circuit precedent, and it's very hard to rationally distinguish Brown from the present case on its facts.  I suspect that the majority in Brown would have decided the present case the same way.  But the panel yesterday is different than the panel in Brown, and reaches a different result.

I admittedly think it's a tough call whether people should be allowed to stop people who are reported to be carrying weapons.  Everyone agrees that carrying a weapon openly doesn't normally generate a reasonable suspicion, since it's not illegal.  And neither of the tips here reported that the person was carrying a weapon anything other than openly.  At the same time, carrying a weapon is a big deal, and I sort of like the ability of police to check things like that out, as sometimes people carrying guns are up to no good.

I could easily see a panel saying that there was more reasonable suspicion in Brown than in the present case; after all, in Brown, the guy actively ran from the police, and the police could also view him (and see that he wasn't carrying his gun openly), whereas in the present case neither of those facts existed.  Yet the panel goes the exact other way.

When Brown came out last year, I said that I thought that the Supreme Court was likely to see things a different way than the Ninth Circuit.  But -- presumably for tactical reasons -- the Solicitor General didn't seek a writ of certiorari, and didn't even petition for rehearing en banc.  The thought may have been that the better approach was to let future panels distinguish the case on its facts.  If that was the reasoning, it turned out to be a pretty good thought.

I'd have loved to have seen Judge Friedland write the opinion.  She's on both panels.  She wrote a concurrence in Brown that explained her reasoning in joining the result, but joins Judge Rakoff's opinion in the present case without additional explanation.  Too bad.  I'm sure she agrees that the cases are distinguishable -- hence the result.  But the distinction articulated by Judge Rakoff seems a fair piece too breezy for me; at least the part about "illegality" does.  I'd have liked to see someone who joined the prior opinion (albeit somewhat reluctantly) attempt to explain the distinction in a bit more detail.

Monday, July 06, 2020

U.S. v. Many White Horses (9th Cir. - July 6, 2020)

We ended the week before the July 4th holiday by discussing an opinion about horses.  We now begin the week back, coincidentally enough, by discussing an opinion about Many White Horses.

That's Mr. Many White Horses to you.  James.  He's a member of the Blackfeet Nation, and he's got a problem.  A big one; substance abuse -- to wit, methamphetamine and alcohol.  He was sentenced in 2008 to around 7 years in federal prison for conspiracy to distribute methamphetamine, served his prison time, and now is on 15 years of supervised release.  Except he keeps reoffending.  "Between 2014 and 2018, Many White Horses violated the terms of his supervised release nine times, which resulted in four revocations. Eight violations involved the use of either alcohol, methamphetamine, or another illegal substance."  All but one of these offenses took place in Browning, Montana, which is the tiny town (population: 1016) that's the headquarters of the Blackfeet Indian Tribe and where Mr. Many White Horses sometimes lives (and, apparently, scores his dope).

The district judge repeatedly sends Mr. Many White Horses back to prison, but he keeps doing drugs (shockingly), so finally the district judge says he can't go back to Browning without permission.  Mr. Many White Horses appeals, claiming that this effectively banishes him from the Tribe, but the Ninth Circuit affirms -- reasonably, I think -- holding that the condition is a rational one given Mr. Many White Horses' history and merely requires him to ask permission to visit "but one quarter square mile of the 1.5 million acres of reservation land."

Browning is up in northern Montana, close to the border to Canada.  It's near Glacier National Park, but not much else.  Beautiful, it seems.  But a bit run down.  With not much to do in town, I suspect.  Though there's always the casino.  And, apparently, methamphetamine.

The other interesting thing I discovered about Browning is that even though the opinion refers to Browning as a "town" (e.g., "the sole incorporated town on the Blackfeet Reservation"), at least according to Dr. Google, it's not actually a town any longer.  It dissolved in 2018.  Apparently the town couldn't pay its bills, so the town council just stopped meeting and, pursuant to state law, thereby ceased to exist after a couple of years.  Neat trick, I guess.

So the challenged Special Condition No. 11 is at this point probably like references to Prince:  Mr. Many White Horses is only barred from going to "The Location Formerly Known As the Town of Browning."

Thursday, July 02, 2020

American Wild Horse Campaign v. Bernhardt (9th Cir. - July 2, 2020)

A lot of times I just entirely skip over the "Summary" prepared by staff that appears at the outset of Ninth Circuit opinions.  (I'm not talking about the actual opinion; I'm talking about the stuff before the opinion itself.)  I'm going to read the entire actual opinion anyway.  No reason to unnecessarily add to the burden by also reading the (often duplicative summary).

Plus I often like the suspense of not knowing how the thing is going to come out.

But in today's opinion, I definitely read the Summary.  Okay, not the actual summary, but at least its title.  Because in big, bold letters, it reads:

Wild Horses

Now, maybe there's a previous Ninth Circuit opinion whose summary begins "Wild Horses" . . . but I doubt it.  It's not like "Civil Procedure" or "ERISA."  There are various particular areas of legal doctrine and/or law practice, but I'm pretty sure that "Wild Horses" isn't one of them.  I've yet to meet a lawyer in a bar, ask her what she does for a living, and have her respond:  "Oh, I practice Wild Horses law."

(Though I admit that'd be a cool thing to be able to say.  Sort of like "I practice Maritime Law" but more hip by a factor of four.)

Plus, it made me think of the Stones song.  With Mick saying the choral lyric with that long, long pause.  "Wild horses . . . couldn't drag me away."  Maybe that's what the court staff was also secretly thinking when they titled the summary that way.  Gotta do something to make the job fun once in a while.

On the substance, it turns out that in the American West, it's neat to have lots of wild horses running around.  Dramatic.  Majestic.  Wildlife.  Like the old days.

But, apparently, in the desolate plains of Northeastern Nevada there are . . . too many wild horses.  "Wild, wild horses."  So guess what the Bureau of Land Management does?

Gives birth control pills to the mares and gelds the males.  At least an appreciable fraction of them.

Plaintiff doesn't like that.  So sues.  It's a public interest organization, so it could call itself anything it wants.  It chooses "American Wild Horse Campaign."  If it were my group, I'd probably instead call it "Citizens for Free Horse Love," or "Keep Your Hands Off Horse Penises."  Something like that.  But they opt for the somewhat less controversial title.  Understandably.

Though it doesn't help 'em.  They still lose.  Some wild horses are good.  Tons of wild horses are not.  The BLM's decision isn't arbitrary or capricious.  Regulation affirmed.


Wednesday, July 01, 2020

In re Marriage of Mullonkal & Amplakkil (Cal. Ct. App. - June 29, 2020)

It's an age-old story.  C and S get married.  C is a completing a medical residency program and has substantial student debt.  But shortly after getting married, C completes the residency and is now a doctor, making $225,000 a year in a hospital.  C's spouse, H, doesn't work.  C pays for all of the expenses of the couple; rent, utilities, food, etc.  C and H have a kid, but the marriage doesn't last long after the birth; C files for divorce a mere three years and five months after the marriage.

C, who filed for divorce, knew it was coming.  C starts paying off massive amounts of C's medical school student loan debt before the divorce.  C pays off $153,000 of that debt during the marriage.  Then C pays C's parents -- who helped fund C's medical school -- huge chunks of change during the marriage, including one check for $48,080 and another check for $60,000 given to C's parents two days before C meets with a divorce lawyer.  You get what C's doing here, right?  C also makes huge "gifts" to C's family during this period; over $75,000 total.  Plus C pays for massive (and expensive) trips and vacations for C's family during the marriage; several tens of thousands of dollars worth.

Once the divorce gets filed, H isn't happy to learn all of these facts, and thinks that C is dumping money to C's family (and to students loans) since, after all, why not pay all this money when half of it is H's as opposed to later after the divorce.  So H asks the court for reimbursement by C to the community.  C responds that reimbursement to H wouldn't be equitable since C's making all the money anyway and H is just sitting at home without a job.

The doctor-breadwinner, C, is, of course, the wife, and H is the husband.

Mind you, H has his own issues, with some "mystery stock" and a finding by the trial court that he's not exactly credible on various things.  But, in the end, it's an unhappy marriage, and the parties act accordingly (and strategically) both during the marriage and in the subsequent litigation.  You get a keen sense that neither of the spouses want the other to have any money and both feel that the other is being a mooch and/or inequitable with the community property.

So the trial court figures it out, in a decision that's very favorable to C.  A decision that's subsequently reversed on multiple different points, to the benefit of H, by the Court of Appeal.

There's lots of potential -isms at play here.  Beyond the fact that one wonders whether the case would have been perceived differently had H and C been of opposite genders, there's also the fact that the couple met in India and the husband (H) lived there during approximately two-thirds of the marriage (as well as asserts on appeal that he's entitled to additional support because his wife, C, sponsored his visa application and is accordingly required under federal law to support him at 125% of the poverty line for at least a period of time).  So there's a lot of law in play here, and then there are also potential subjective factors that shouldn't be considered but who knows if they in fact affected the result.

As for the legal doctrine, the case is pretty important on the far-from-uncommon "do you have to reimburse your spouse for the student loan debts you paid off during the marriage" issue.  The usual rule being, according to the Court of Appeal, "Yes," at least for short-term marriages like this one.  A holding that departed radically from the view of the trial court.

So some interesting facts and interesting law.  Always neat -- albeit sometimes depressing -- to get a glimpse into someone else's marriage.

Tuesday, June 30, 2020

Estes v. Eaton Corp. (Cal. Ct. App. - June 29, 2020)

Most of this opinion I readily understand.  It was an asbestos case, the jury found for the defendant, the trial court granted a new trial because it thought that plaintiff's evidence was much better than the defendant's evidence, but the Court of Appeal reverses and reinstates the jury's verdict because the trial court's reasoning in this regard wasn't sufficiently clear or comprehensive.  You can't just say, as the trial court did here (and I'm quoting the new trial order in full):

“On a motion for new trial, the court may weigh all of the evidence, and after doing so, based on the entire record, find that the jury should have reached a different verdict. The court may draw reasonable inferences and resolve conflicts in the evidence that are contrary to the conclusions drawn by the jury. Upon weighing the evidence in this case under these standards, the court finds plaintiff presented sufficient credible evidence that he worked with arc chutes manufactured and supplied by Cutler-Hammer; the arc chutes contained asbestos; asbestos fibers from the arc chutes were released during plaintiff’s work with them; and the levels of fibers released posed a hazard to plaintiff, and may have been a substantial factor in causing injury to him. The evidence submitted by Eaton was not sufficient to rebut this evidence submitted by plaintiff. Therefore, the court finds there was insufficient evidence for the jury to find, as it did, that there was no design defect, no failure to warn, and no negligence on the part of Eaton in this case.”

That's just a conclusion.  You gotta do more.  The trial court has to at least explain why it comes out the way it did; it need not examine the trial transcript line-by-line, but it at least has to explain on what basis it comes out the way it did (i.e., which theory that the jury apparently found convincing was not, in fact, convincing) and why; e.g., what the major piece of evidence were.  The trial court didn't do that here, so the new trial order is reversed and the jury's verdict reinstated.

(To tell the truth, I'm not sure why the failure to sufficiently explain things requires a reversal rather than a remand, but apparently that's what the California Supreme Court has held, so it is what it is.  In my experience, where there's insufficient articulated reasoning below, we usually remand to give the trial court another shot, lest the party who won below -- who's not generally not responsible for the trial court's laziness -- lose on a technicality despite the fact that, here, perhaps a new trial should and would have been properly ordered on the merits if only the trial court had done its job of explaining its reasoning.  But that's another issue.)

So then we gotta deal with the plaintiff's cross-appeal, in which he says that the jury's verdict in favor of the defendant should be reversed because there was insufficient evidence to support such a verdict. That part of the opinion is testament to why trial lawyers often should involve new counsel on appeal.  Because, first, any appellate lawyer worth her salt would likely tell the trial lawyer that he's way too close to the issue and that, given the deference to a jury's verdict, such a challenge is pretty much always (as here) dead on arrival.  The appellate lawyer would also make sure not to do what the trial/appellate lawyers do here, which is to only recite in their briefs the evidence on their side -- a flaw that both (1) miffs the Court of Appeal, and (2) allows them (as here) to consider the issue forfeited for failure to examine the evidence on both sides of the issue.  Ultimately, the Court of Appeal decides that plaintiff was wrong on the merits anyway, and that there was sufficient evidence to support the jury's verdict.  But everyone would have saved time and money if a new counsel had been able to come in on appeal and say "Don't even bother raising a sufficiency of the evidence claim on appeal, since there's no way you're going to win."  Which pretty much anyone objective would have concluded at the outset.

So I understand pretty much everything about Justice Miller's opinion.  Except for the sentence in the middle of the penultimate paragraph.  Which reads:

"Without delving into the particulars, it suffices to say that Dr. Dahlgren’s opinion was no more ironclad than Dr. Rabinovitz’s opinion was of no weight whatsoever and unworthy of credence. The jury was certainly free to side with Dr. Rabinovitz’s opinions and conclusions over Dr. Dahlgren’s."

Wait.  What?  That first sentence makes no sense.  All I can figure is that the words "was of no weight whatsoever and unworthy of credence" were simply left in there from an earlier draft.

Or else I simply cannot understand proper English sentences anymore.  But I'm pretty sure it's just a leftover fragment.

Hopefully.

Monday, June 29, 2020

Yakima Nation v. Yakima County (9th Cir. - June 29, 2020)

Judge Nelson explains at length in today's Ninth Circuit opinion why the word "and" means . . . "or."

Eghtesad v. State Farm Gen. Ins. Co. (Cal. Ct. App. - June 29, 2020)

Check out all the delays discussed in this opinion by the Court of Appeal:

"The first two pages of Eghtesad’s complaint bear the preprinted Judicial Council footer “COMPLAINT—Contract.” The caption identifies State Farm and Does 1 to 20 as defendants . . . .

State Farm filed a general and special demurrer on the grounds that Eghtesad failed to plead sufficient facts to state causes of action for fraud, defamation, and breach of contract, and that each of the claims was uncertain. Eghtesad did not file an opposition to the demurrer. He did, however, appear at a case management conference two days before the originally scheduled hearing, at which he asked the court for 60 days to try to settle with State Farm and get counsel. The trial court continued the hearing on the demurrer for approximately three weeks, with Eghtesad’s opposition due ten days before the hearing.

On the day his opposition was due, Eghtesad, still representing himself, filed a request for a further continuance of 90 days, informing the court that three days before he had been involved in an auto accident. He attached a note from his doctor placing him off work for three days and instructing him to take two medications for pain and muscle stiffness and avoid heavy lifting. The trial court granted Eghtesad “one final continuance” and set the hearing out for two additional weeks.

Three days before the new hearing date (and without having filed a response to the demurrer), Eghtesad filed another request for a continuance to respond to the demurrer on the grounds that he had now been ordered by his doctor to rest for 90 days. The request was accompanied by a doctor’s note stating that the car accident had “exacerbated” Eghtesad’s back pain, such that he was unable to sit for long time without changing position, and that the doctor expected him to recover in three months. The trial court did not grant a further continuance: the court sustained the demurrer without leave to amend and directed State Farm to prepare an order and judgment of dismissal."

You can probably guess what the trial court was thinking here.  Hence the result.

The Court of Appeal reverses, holding that the trial court should have granted plaintiff leave to amend (notwithstanding the fact that he didn't request such relief).

There's also this mysterious footnote in the opinion, which reads:  "Notice of entry of judgment was filed on January 8, 2016. For reasons not relevant to the issue on appeal, briefing before this court was not completed until April 2020."  More delay.  Lots of it.  So I looked at the docket sheet in the Court of Appeal.  Which seems to show lots of efforts by the Court of Appeal in 2016 designed to assist the pro se appellant in perfecting the appeal, which nonetheless resulted in no opening brief being filed in 2016, notwithstanding a notification that if no such brief was filed, the case would be dismissed.

Thereafter . . . nothing.  For years.

It seems like the case just fell through the cracks.  Perhaps literally.

Then, in 2019, someone in the Court of Appeal presumably notices all of this, and the appeal gets dismissed.  Then reinstated after the appellant hires counsel, ultimately resulting in the filing of the briefs.

So the unexplained "reasons" for a three-year delay appear to simply be the Court of Appeal's inexplicable failure to dismiss the appeal once no briefs were filed.  Given this delay on the Court of Appeal's part, perhaps it's not surprising that Justice Miller's opinion isn't particularly critical about all of the various delays on the appellant's part in the trial court.

Ultimately resulting in an appellate win for the appellant.