Friday, March 16, 2018

People v. Aguirre (Cal. Ct. App. - March 16, 2018)

It's bad enough when you're paying for something with a counterfeit $100 bill.  It's even worse when you've got a total of $1,310 in counterfeit currency in your purse at the same time.  And if you do all that when you're on probation, and hence subject to a search condition, wow, that's incredibly unwise.

But when you do all this and you have some methamphetamine and a glass pipe in that same purse, well, at that point, I don't know what advise I can give you.

The defendant here, Beatrice Aguirre, actually gets an amazing deal; she gets to plead guilty to only a single count of forgery for all of the above.  Plus the deal says that she gets to withdraw the plea if the judge sentences her to anything except probation.  Not bad.  Especially for someone with two prior prison terms!

Though then Ms. Aguirre -- again, unwisely -- skips out on her sentencing hearing.  So the deal gets vacated, a bench warrant is issued, she's eventually caught, and ultimately gets sentenced to a couple of years in the pokey.

Plus her current Prop. 47 motion gets denied.

A series of unfortunate events for the unlucky -- and unwise -- Ms. Aguirre.

Wednesday, March 14, 2018

Ventura Content v. Motherless (9th Cir. - March 14, 2018)

Here's a great opinion that gives insight into how most low-level porn sites on the internet work.  It doesn't sound like the greatest job in the universe to run most of those sites.  Plus you've got to deal with potentially getting sued for copyright infringement.  Like here.  Not fun at all.  Hardly worth the time, in my opinion.  But at least you get to say that you run a porn site for a living.  So if being able to truthfully say that at a cocktail party is your life's objective, then go for it.  Goals.

At the same time, today's Ninth Circuit opinion is basically a primer about how to run a porn site that massively infringes other people's copyright without actually getting held liable.  Just upload a ton of porn, let your users upload a ton of porn, and then do some very basic stuff to make sure you comply with the DMCA takedown requirements.  And, boom, you're immune.  Notwithstanding the fact that your site has a ton of stuff that violates someone else's copyright.

Judge Kleinfeld's opinion gives tons of cogent reasons why the defendant here wasn't liable given the contours of the DMCA.  And his analysis is pretty darn persuasive.  Plus, rarely do you see opinions that contain (as here) the word "".  So the opinion is notable, if only for that.

As I said, I think that Judge Kleinfeld's opinion is pretty darn good on its own terms.  But I did have two thoughts as I read it that I thought might be worth sharing.

First, Judge Kleinfeld raises -- but doesn't answer -- an interesting issue.  The DMCA and Ninth Circuit precedent says that you're not immune under the statute if you decide what to post at your "own direction," as opposed to merely posting whatever stuff users upload.  That basic concept seems right.  So too does Judge Kleinfeld's conclusion that the site here doesn't run afoul of this exception merely because it actively screens out child pornography, stuff that obviously violates copyrights, etc.

Sounds right.  We want people to do that.  And that doesn't mean that you're really just posting your "own" stuff or stuff at your own direction.  Cool.

But Judge Kleinfeld says that even though screening out kiddie porn doesn't mean that you're "actively" directing what's on your site, he says that "perhaps if Lange’s site were flooded with pictures and videos of kittens playing with yarn, he would change his rule and exercise judgment about whether the material was pornographic enough to host."  Which I'm sure is right -- the guy definitely wouldn't want tons of yarn-playing kittens (rather than porn) on the site (unless, I guess, there's some kink I don't know about).  Plus, I love the fact that Judge Kleinfeld works in the idea of kittens (of all things) in an opinion about a porn site.  Well done.

But here's the thing.  What about that?  What if people did flood porn sites with kitten videos?  I'm certain the operator would screen the things out.  And that might well demonstrate that the site is what it in fact all these sites are:  operator-controlled, at some level, because the operator only wants pornSo why don't copyright owners do this all the time?!  Just flood every major porn site with kitten videos, let the operator screen 'em out, and then sue.  In short, make Judge Kleinfeld's hypo a reality.  Seems like that would work.  And pretty cheaply at that.  (The porn site here, for example, lets users upload 999 videos at a time.)

Interesting thought experiment, at least.  And maybe a practical one for copyright owners as well.

My second thought's a broader one.

The DMCA articulates another exception for when the site owner knows full well that its site has material that violates copyright.  And there are Ninth Circuit cases that make clear that you can't just sit there and host massive copyright violations (e.g, be a pirate site with full movie downloads) and claim immunity under the DMCA.  If you know your place is chock full of copyright violations, you aren't immune.  Whereas if you've just got isolated copyright violations here or there, and you take those down once you know about them, you're okay.

You can see why that's the rule.  It makes sense.

The copyright owner in the present case says that the defendant here knew that his site was full of copyright violations, so the exception applies.  His best evidence was that almost all of the clips look professionally produced, fancy, etc.  But Judge Kleinfeld has a pretty decent response.  He says -- rightly -- that in the modern era, with smartphones and all, pretty much anyone can make a porn video that looks pretty darn fancy.  So the fact that the things "look" like movies doesn't necessarily mean that they are, in fact, professionally made (e.g., likely copyrighted) things.

Good argument.  Seems right.  Makes sense.

But here's the thing.

Yeah, it may be unclear for any given clip on a porn site whether it's for sure professionally produced.  But come on.  Seriously:  When you see these things, you know full well that the overwhelming majority of 'em come from copyrighted movies.  Might some of them be from homemade sex tapes that the owner uploaded?  Sure.  Can you be 100% positive that a given clip is from a full-length porn movie?  Maybe not.

But you are like 90% sure.  And, similarly, you can be extremely confident that, on the whole, the vast majority of what's on a given site is from copyrighted movies.  You just know.  And know to a degree of absolute moral certainty.  Notwithstanding all the arguments that Judge Kleinfeld rightly makes and the millions of individual clips, any one (or dozens) of which could possibly be sex tapes that were uploaded by their creators for free.  Still:  Visitors to the site know full well they're from movies.  And the owner of the site knows this even more.

So what you basically have as a result of today's opinion is precisely what you see out on the Internet.  Massive, obvious copyright violations.  On a virtually limitless scale.  But because you can't "prove" that the owner of the site "knew" that there were massive violations, the DMCA allows 'em to get away with it.  To the benefit of the public but to the detriment of copyright owners.

I had even thought of "proving" the point.  I decided to go on the web site at issue in this opinion -- -- and pick 100 clips at random and see if I could quickly find out which movies they came from.  My guess was that in an hour or two I could easily find 70 or 80 percent of the full-length, copyrighted movies from whence those clips were cut.

So I tried.  For about two minutes.

But, ugh!  There's some nasty stuff in there.  So I quickly abandoned the project.  Just not worth it.  (And, no, I'm not just rationalizing to my IT department why my work computer has recently visited some inappropriate places.  Seriously.)

Still, had I tried, my strong sense is that one could prove that, on virtually any given porn site, the majority of the clips in fact come from copyrighted material.  Since that's, in fact, what everybody knows and expects.  Because, yes, there's some legitimately amateur stuff out there, I'm sure.  But there's a lot more professionally produced stuff.  'Cause there's a lot of money in it.  And that's where most of the stuff in fact comes from.  Even if, as Judge Kleinfeld notes, it's hard to absolutely prove knowledge with respect to any individual person with respect to any individual clip.  In the aggregate, what's going on is clear.  Just like I sometimes know that a number of students in a given class have not done the assigned reading even though I can't prove to an absolute certainty that any particular one of 'em is a culprit.

So, anyway.  A blow today for continuing massive copyright violations on porn sites.

One final thing.  It took Judge Kleinfeld over two and a half years after oral argument to write up this opinion (alongside Judge Rawlinson's partial dissent).  That's a ton of time, no?

Probably due to all the "research" that was required for the opinion, no doubt.

Tuesday, March 13, 2018

People v. Johnson (Cal. Ct. App. - March 13, 2018)

Yes, the defendant might have been faking it.  Might.  Maybe, just maybe, he simply wanted to delay the trial by getting a competency hearing.

But if that's so, he was doing a darn good acting job.

"Defendant Derek Antonio Johnson . . . engaged in multiple acts of self-mutilation, shouted to voices in his head, could not be quieted during court proceedings, defecated in his pants, was placed in a medical unit at the prison where he was given medication and was put on a suicide watch, and his lawyer expressed doubt throughout the trial about his mental competence to understand the proceedings and to assist in his defense."  And that's just a summary.  The actual facts are incredibly disturbing.  Seems to me like he may well have been having incredibly serious mental problems.

But the trial court thought he was faking it.  Since there were period in which he was normal, the trial judge thought the defendant just wanted a delay in the trial date.

Again:  Maybe.  But when you're faced with substantial evidence -- as here -- that the guy may be incompetent, you've got to hold an actual hearing.  With people who are actually trained to sniff this stuff out.  You can't just come to a conclusion based on your own beliefs.

So holds the Court of Appeal.

Monday, March 12, 2018

Orr v. Plumb (9th Cir. - March 12, 2018)

Don't wait for the district court to enter a final judgment on a separate document.  Just go ahead and appeal.  Early appeals are fine. Whereas late appeals can kill you.

That's the basic message behind today's Ninth Circuit opinion.  Appellant thought that the jury's answers on a special verdict didn't start the clock ticking for the appeal, and waited instead for the district court to enter a formal "judgment" on a separate document.  As the district court was surely required to do (but didn't).

That was a mistake.  The return of the special verdict was subject to immediate appeal since it ended the case.  Waiting more than 150 days thereafter killed you.

Sorry 'bout that.

Friday, March 09, 2018

GMRI v. California Dep't of Tax & Fee Administration (Cal. Ct. App. - March 9, 2018)

Here's something I hadn't thought about before.  But I feel educated now that I know it.

Lots of restaurants (in my experience) add a mandatory or "optional" gratuity to large parties; i.e., when there are eight or more people in the group.  Red Lobster and Olive Garden restaurants -- which (during the relevant period) were owned by plaintiff GMRI -- followed this general practice.  The customer could add an additional tip beyond this amount, or could ask that the "optional" tip be taken off, but basically, it's what you paid.

That's my experience too.

What I hadn't thought of before is how that "optional" tip was taxed.

Tips ordinarily aren't taxed -- at least for sales tax -- because they're truly "optional."  (The recipient has to pay income tax, but we're talking about only sales tax here.)  But mandatory tips are, since they're part of the price of the service.  So which one is this one?

California says that it's essentially mandatory (or at least standard), so it's subject to sales tax.  GMRI disagrees.

The Court of Appeal holds that California is correct.  And I think that's right.  At least given the text of the relevant authorities.

There's an upside to adding on an (essentially) mandatory tip; that way, your employees definitely don't get hosed.  But there's a downside as well.  That way, you're taxed.

So pick your poison.

Thursday, March 08, 2018

Chaney v. Netterstrom (Cal. Ct. App. - March 8, 2018)

Here's an interesting strategic decision.

The parties get "married."  Notice that I put "married" in quotes.  By that, I mean that they get a marriage license, and have a ceremony.  But they never send the completed marriage license back to the county recorder.  So for all the county knows, they're still single.  Whereas everyone else in the universe thinks they're married (and they act like it).

Why do that?  Well, for one thing, it gets your parents off your back.  They think you're "married" even though you're not.  More significantly, that way you can still claim to be single.  On your tax returns (hence avoiding the marriage penalty).  With the Social Security office; e.g., as here, so the "wife" doesn't lose her Social Security survivor benefits (from a prior marriage).

See how that works?

Now, that's a problem when and if the two of you split up, and one of you asks to get "divorced."  Because then we're going to have to figure out if you were ever actually married in the first place.

But today's opinion solves that problem for us.  The Court of Appeal holds that, yep, you're still in fact married, even if no one returns the license.  Notwithstanding the fact that the statute clearly says that when you pull a confidential marriage license, you're required to send the completed form back to the recorder once you're married.  (The statute says that a confidential marriage license “shall be returned by the person solemnizing the marriage to the office of the county clerk in the county in which the license was issued within 10 days after the ceremony.” (§ 506, subd. (c), italics added; § 423 [“The person solemnizing the marriage shall return the marriage license . . . to the county recorder . . . within 10 days of the ceremony.” Italics added]; Health & Saf. Code, § 103150 [A marriage “shall be registered by the person performing the ceremony.” Italics added].) The word “shall” means that the act is mandatory. (§ 12.)")

I'm just fine with that result.  It seems like the Court of Appeal gets this one right.  If you pull the marriage license and hold the ceremony, you're still in fact married, even if you don't comply with the statute's requirement that you return the form.  It's the ceremony that married you, not the mailing back.

Though notice that this doesn't obviate all the tax- and Social Security-related benefits that this couple received during their marriage.  They don't have to give all that stuff back.  Or at least not yet; and, potentially, never.

So maybe that's an actual strategy.  Pretend to get married, don't return the form, say to everyone except the government that you're married, and get all the benefits of marriage without any of the liabilities.

In theory, at least, that works.

Good luck trying to get your would-be spouse to agree to that.

Wednesday, March 07, 2018

Doyle v. Firemans Fund Ins. Co. (Cal. Ct. App. - March 7, 2018)

The case is all about some counterfeit wine.  So Justice Moore takes the opportunity to throw in a ton of Shakespeare references to wine.  Plus lots of sentences with phrases like "Yea verily," "We agreeth with the trial court . . .," etc.  You get the theme.

Okay.  Fair enough.

In the end, the Court of Appeal decides that there's no insurance coverage for the $18 million (!!) of counterfeit vintage wine that David Doyle bought from convicted felon Rudy Kurniawan.  So a bad day for Mr. Doyle.

But Justice Moore ends the opinion with another Shakespeare quote for him:  "Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: “The robbed that smiles steals something from the thief.” (Shakespeare, Othello, act I, scene 3.)"

Yeah.  Call me crazy, but I don't think that's going to give Doyle much solace.

Tuesday, March 06, 2018

People v. Monk (Cal. App. Div. Sup. Ct. - March 6, 2018)

This is the most important appellate opinion in California ever.


It's about a $25 fine.  For crossing an intersection when the "DON'T WALK" sign was flashing.

Yet, notwithstanding the incredibly tiny monetary interest at stake, the opinion may well have more practical significance to most of us than nearly every single one of the other appellate opinions we read.

Pamela Monk got her $25 ticket because a police officer saw her enter the crosswalk when the red "DON'T WALK" sign was flashing, and was in it's "countdown" mode; e.g., was at number "7" of the 15-second countdown.  The officer said, and the trial court found, that this violated the Vehicle Code.  On the theory that once the sign says don't walk, you're . . . wait for it . . . not supposed to walk.

But the Appellate Division reverses.  That's not what the law actually says.  Or at least not what it says now.

The law is instead that you're allowed to enter the intersection -- even if it says "DON'T WALK" -- as long as (1) the red sign (or the red hand) is still flashing, rather than constantly red, and (2) you finish your walk -- i.e., are out of the intersection -- before the countdown expires.

That's what I always thought the rule was.  And it's how I in fact walk across in street in those situations.

Good to know it's also, in fact, the law.

Monday, March 05, 2018

People v. Garton (Cal. Supreme Court - May 5, 2018)

The facts of this death penalty opinion read like a made-for-television movie.  A really bad made-for-TV movie.

If it were an actual movie, I'd have turned it off after the first three minutes because it's so pathetic, implausible, and overwrought.

But it's actually real.  So I keep turning the pages as I read today's opinion.  Yes, it's the conviction of a guy who's clearly seen too many movies.  But it's amazing that he actually makes this stuff up.  Or that people seem to buy it.

Of course, there are real victims as well, so at the same time, it's incredibly sad.

It's a set of facts I wouldn't believe if someone pitched 'em to me.  Yet here they are, straight out of an opinion from the California Supreme Court.

Friday, March 02, 2018

U.S. v. Studhorse (9th Cir. - March 2, 2018)

First of all, "Kenneth Studhorse" sounds like the made-up name of a porn star, not the actual name of a defendant.

But, apparently, it's not made up at all.  It's instead the actual name of someone convicted of being a felon in possession of a firearm and a violent felon in possession of body armor.

Second of all, it's symptomatic of contemporary legal analysis that it takes the Ninth Circuit sixteen single-spaced pages to say why attempted first degree murder is a "crime of violence" under federal law.

Of course it's a crime of violence.  It's attempted murder!

Judge Smith's opinion offers a bit more detail, but comes out the same way.

Thursday, March 01, 2018

Herterich v. Peltner (Cal. Ct. App. - March 1, 2018)

Talk about the Court of Appeal doing work for one of the parties!  Check this out.

Plaintiff files a lawsuit.  Defendant articulates numerous defenses, but never alleges that its conduct was privileged.  Defendant files a summary judgment motion, but not (obviously) on the ground that their conduct was subject to any privilege.

The Court of Appeal notes on appeal, on its own initiative, that the whole lawsuit might be barred by the litigation privilege.  So requests supplemental briefing.

And, boom, in the end, resolves the appeal entirely on the ground that the litigation privilege applies.  A defense the defendant never raised below, never argued in its original appeal, and mentioned only at the direction of the Court of Appeal.

I'm not saying the opinion is wrong.  The lawsuit does indeed seemed barred by the litigation privilege.  And that's an issue of law, so the Court of Appeal probably does have discretion to raise the matter notwithstanding its wholesale omission by the parties.

But wow.  You gotta be hating the Court of Appeal if you're the losing attorney in this one.

Whereas thanking your lucky stars for the Court of Appeal's (unsolicited) help if you're on the other side.

People v. Perez (Cal. Supreme Ct. - March 1, 2018)

When you choose a home pretty much at random to rob, and stab and kill the woman inside of it, it's not at all surprising that the trial court sentences you to death and that the California Supreme Court unanimously affirms.  Particularly given this particular defendant's lengthy and disturbing criminal history.  (Before the murder, Perez had the dubious distinction of being committed to the California Youth Authority at age 14, making him "one of the youngest wards in the CYA system at the time.")

Distressing all around.

Wednesday, February 28, 2018

Delgadillo v. Television Center (Cal. Ct. App. - Feb. 27, 2018)

Luz Delgadillo was a commercial window washer.  He was hired to wash the windows of a three-story commercial building in Hollywood.

He originally thought he'd wash the upper-story windows of the building with a Tucker Pole System, which is a a water-fed pole with an attached brush, or ladders.  But his colleagues noticed that there were wires, lines, and telephone poles on the building’s south side, which risked electrocution.

Probably a good idea.

So Delgadillo and his colleagues went up to the roof.  One side of the building had good anchor points where they could tie up a controlled descent apparatus.  But the other didn't.  So they decided that they'd rappel off the building from the roof using roof anchor points on the first day, and would construct a steel cable tie-back anchor system to which they could connect on the second day.

Okay.  I guess.  Though that doesn't sound perfectly safe.

But better than being electrocuted.

The company's policy was that you had to connect two different lines when rappelling off a building: one primary line and one safety line. But late in the morning, Delgadillo attached his line to only a single connector.

Bad idea.

Oh, yeah, and the single connector he attached to what an angle iron bracket that was supporting the air conditioning unit, which in turn was attached to a small piece of wood.

Horrible idea.

Delgadillo falls to his death.

The lawsuit by his survivors doesn't fare especially well either.  Here's the core holding of the Court of Appeal as to why the trial court properly granted summary judgment to the defendant:

"Plaintiffs contend that TCI had a statutory duty as a building owner to install structural roof anchors to which window washers could attach their controlled descent equipment. They identify several sources for the asserted duty to provide building anchors, including California Code of Regulations, title 8, sections 3281 to 3289; Health and Safety Code section 17920.3; Labor Code sections 7326 to 7329; Los Angeles Municipal Code section 91.8104; and International Window Cleaning Association I-14.1 guidelines, section 3.9. For purposes of this appeal, we assume that these sections required TCI to equip its building with structural roof anchors, and that TCI failed to do so. We nonetheless do not agree that there were triable issues as to whether TCI’s breach of its statutory duties gave rise to liability not barred by the Privette doctrine. To the contrary, SeaBright compels the conclusion that when TCI hired CBS, an independent contractor, to provide window washing services, it delegated to CBS its duty to provide a safe workplace for CBS’s employees. Accordingly, TCI’s alleged breach of a statutory duty to provide safety anchors did not give rise to rise to liability to decedent or his survivors."

A bad situation all around for Mr. Delgadillo.

Tuesday, February 27, 2018

Pittman v. Beck Park Apartments (Cal. Ct. App. - Feb. 27, 2018)

Sometimes the topic of the opinion itself tells you where the court's likely to come out.

For example, figure out how you think this opening paragraph ends:

"On May 28, 2010 the trial court declared Randall Pittman a vexatious litigant and prohibited him, pursuant to Code of Civil Procedure section 391.7, from filing in propria persona any new litigation in the courts of this state without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. Over the past seven years Pittman has made several attempts to have that order stricken, reconsidered, vacated or overturned. This appeal is from the trial court’s most recent denial of Pittman’s motion to vacate the order declaring him a vexatious litigant."

The next line reads:  "We _________."

Do you think the Court of Appeal fills in the blank with "affirm" or "reverse?"

Yep.  You got it right.

Oh, and if you need another hint -- not that you do, since you already know the answer -- here's another part of the opinion that might help you figure out where this one's headed:

"Siemens further argued Pittman repeatedly engaged in harassing and unnecessary tactics. For example, during three of his previous lawsuits against Siemens, Pittman had filed five motions to disqualify the presiding judges. Each motion was denied. Siemens stated Pittman sent “harassing and intimidating” emails to opposing counsel, one of which included “an extended diatribe about 9/11, the war in Iraq, pharmaceutical companies, and the inequities of the criminal justice system,” while in another, Pittman stated, “[L]et them know that that was only one battle because the war will end in the courtroom and that is where I must die.”"

Probably not the greatest strategy on Pittman's part.

Bravo, in contrast, by the respondents in this appeal.  Who don't even show up.  They let the Court of Appeal figure this one out on its own.

Right call.  By everyone involved.  (Except, of course, Mr. Pittman.)

Monday, February 26, 2018

Rybolt v. Riley (Cal. Ct. App. - Feb. 26, 2018)

From today's opinion in the Court of Appeal:

"The order also implicitly acknowledges Riley’s future plans to become a lawyer in the context of considering the potential burden a renewed restraining order would have on him. Because he had already been dismissed from the California Highway Patrol for dishonesty, the court found it would be difficult to discern any negative consequences from the renewal. When considered in context and in light of Riley’s testimony that he was attending law school and that a renewed restraining order might affect his ability to gain admittance to the state bar, the court’s statement shows it did consider Riley’s law school attendance in its decision but did not find the evidence compelling."

As a law student, Mr. Riley might have wanted to think twice before filing a (losing) appeal that might subsequently be published -- as today it was -- and thereby reveal to the world the various facts contained in this domestic violence restraining order appeal.

Wednesday, February 21, 2018

Bassett v. ABM Parking Services (9th Cir. - Feb. 21, 2018)

You can certainly understand why the Ninth Circuit comes out this way today.  The Supreme Court in Spokeo a couple years ago really did seem to make the "injury in fact" standing requirements tougher to satisfy.  Given that predicate, you can see why the panel concludes that there's no standing even when a defendant clearly violates a federal statute that says you can't put the credit card expiration date on a receipt.  That's illegal, and there are statutory penalties.  But apparently the Constitution prohibits federal courts from enforcing it.

Okay, I guess.  I'm fairly confident that's what the six justices in the majority in Spokeo would indeed hold.  As the Ninth Circuit's opinion puts it, if there's no thief who grabs the receipt out of your hand and uses it to steal your identity, there's no "actual injury" and hence no standing.

Though I have one thought in this regard to share.

There seem to me to be lots of somewhat analogous circumstances in which we do find standing.  Even when the only recipient of the item in question is the plaintiff herself, and in which there's no demonstrably "concrete" harm.  To take but one example, imagine that a boyfriend secretly takes a Polaroid of his sleeping (naked) girlfriend, and the before the picture develops, slips it in her purse.  She sees it the next day and is horrified.  She didn't consent to the photo, and there she is, naked, for all to see.

I have no doubt whatsoever that a court would find standing in such a context.  Someone's privacy was invaded.  A statute was violated.  There's a photograph out there that depicts something that the law protects.  If the girlfriend sued, I am certain that the Ninth Circuit would find standing.  Even if (1) the only person to ever view the picture (like the receipt) was the plaintiff, (2) there were no other copies, and (3) to use the words of the Ninth Circuit, the picture "fell into [plaintiff's] hands in a parking garage and no [] thief was there to snatch it."  The fact that plaintiff freaked out about the privacy violation -- and that the Legislature says that's good enough to impose some minimal level of statutory damages -- would certainly create standing.

So why not here?

I know that our sentiment is that it's worse to have a naked picture than a credit card receipt with your expiration date on it.  But that's a quantitative difference, not a qualitative one.  And if the Legislature -- the voters -- dictate that the latter invasion is as harmful to community (or individual) sensibilities as the first, in what position is the judiciary to conclusively determine otherwise?

Plus, I gotta tell you, I have zero doubt that at least some people would be more freaked out about a credit card receipt than a naked picture, and might indeed be psyched about the latter.  The point is that these things seem inherently subjective.  Some people freak out about privacy.  Some people don't.  Some people freak out about potential identity theft.  Some people are more mellow.  I can think of plenty of statutes that articulate "concrete" injury when, in fact, there's no "demonstrable" harm of the type the Ninth Circuit seems to require here.  Is the line the Ninth Circuit draws here really a consistent -- or tenable -- one?  I have some doubts that it is.

Anyway, I think it's worth thinking about the nature of subjective injuries, particularly when (as here) the issues concern (inherently subjective) privacy and legislative judgments.  If we really had a rule that treated seriously the Ninth Circuit's principle about trees (or receipts) falling in the forest where no one hears (or steals) them, I think we might well have to strike down a plethora of federal and state statutes that we're super happy with and that we commonly think reflect legitimate interests.

Tuesday, February 20, 2018

Hauser v. Ventura County Board of Supervisors (Cal. Ct. App. - Feb. 20, 2018)

Justice Gilbert begins today's published opinion by saying:

"This case calls to mind the poem “The Tyger” from Songs of Experience by William Blake, the last stanza of which reads: “Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!”"

Truthfully, when I read the case, that particular poem did not come to mind.  But I concede that I'm less cultured than Justice Gilbert.

Plus, the case is indeed about tigers.  The appellant wants to keep five tigers (!) on her property.  The neighbors, by contrast, are (shockingly) not too psyched about the prospect.  Nor is the County Board of Supervisors.  So they deny her the conditional use permit that's required.

She appeals.  No dice.

No tigers in Ventura.  Sorry about that.

Friday, February 16, 2018

Marsh v. J. Alexander's LLC (9th Cir. - Feb. 16, 2018)

When you've got (1) a majority opinion written by a hard core conservative, (2) over the dissent of a liberal judge, (3) with the swing vote provided by a district court judge sitting by designation, (4) that creates an express circuit split, (5) in a labor law case, (6) in which the Department of Labor appears as amicus curiae for the losing party, don't be surprised if the Ninth Circuit takes that panel opinion en banc.

I'm not sure it happens 100% of the time.  But, under those circumstances, I bet it's darn close. 

Thursday, February 15, 2018

People v. Hutchinson (Cal. Ct. App. - Feb. 15, 2017)

It's a home invasion robbery of a wealthy family in Rancho Palos Verdes by a group of people who threaten and repeatedly tase the occupants and who have prior felonies.

Guess whether the sentence is short or long.

Right.  42 years.

Wednesday, February 14, 2018

Tovar v. Sessions (9th Cir. - Feb. 14, 2018)

The Ninth Circuit says:

"The question before us is whether Margarito Rodriguez Tovar, a child of a lawful permanent resident (LPR) who was deemed by statute to be a minor child until the very day his father naturalized, still qualified as a minor on that day, or whether instead his father’s naturalization transformed him on the spot from a minor into an adult. The government and the BIA have parsed individual provisions of the labyrinthine Immigration and Nationality Act to arrive at the latter position, with the effect that a parent’s naturalization can cause a child to be deported forthwith and to wait for decades in a foreign land for an immigrant visa—a visa that he would have had in a short period of time if his parent had not become a citizen."

Yeah, that does seem strange.  Doesn't make sense that the fact that your parent becomes a citizen somehow means you get deported.  Seems like it should go the other way.

Which is what the Ninth Circuit indeed holds.

Happy Valentine's Day, Mr. Rodriguez Tovar.

Tuesday, February 13, 2018

People v. Robbins (Cal. Ct. App. - Jan. 19, 2018)

A tiny snippet from this opinion:

"Defendant began drinking beer and smoking marijuana around 3:00 p.m., consuming approximately 33 beers. Defendant became intoxicated."

Call me crazy, but I'd call that second sentence somewhat redundant.

Monday, February 12, 2018

Rojas v. HSBC Card Services (Cal. Ct. App. - Feb. 9, 2018)

No published opinions from the Ninth Circuit or the California Supreme Court today, and none from the California Court of Appeal yet either.

But here's an opinion from Friday that seems spot on.  And I'm glad the Court of Appeal decides to publish it.

The trial court granted summary judgment to the defendant, but the Court of Appeal reverses.  It's illegal to intentionally record confidential phone communications of someone else, but HSBC recorded all of its employees' outgoing calls.  The trial court said that HSBC was entitled to summary judgment because HSBC didn't "intentionally" record a "confidential" communication because HSBC didn't know that the particular 300+ calls at issue -- between plaintiff and her daughter, who worked at HSBC -- were confidential.  But the Court of Appeal seems exactly right when it says that if you record all the calls, you pretty much know for sure that you're going to record confidential calls, so you're liable.  The fact that you didn't know that this particular call was confidential is irrelevant.

Works for me.

Indeed, to me, it's not just that HSBC isn't entitled to summary judgment.  If the facts are indeed as the parties appear to present them, the plaintiff is entitled to summary judgment.  Since it's not just that a reasonable jury "might" conclude that HSBC's practice was intentional under the statute.  To me, every reasonable juror would be required to so conclude as a matter of law.

If only because -- and hopefully this doesn't shock anyone -- people at work sometimes make personal calls from their phone.

Crazy, I know.

Which in turn means that if you record every single call, you know that you're definitely going to be recording these as well.

Thursday, February 08, 2018

People v. Int'l Fidelity Ins. Co. (Cal. Ct. App. - Feb. 8, 2018)

Dealing with bail forfeitures isn't exactly my area of expertise.  But I nonetheless read a fair number of appellate cases about it.  So I'm generally aware of what's going on (and at stake).  Generally.

But today, when reading this opinion, I learned about a dynamic that I hadn't previously understood.  One that makes sense.  But that I hadn't thought about before.

It's not what the opinion is about.  But the factual recitation is what clued me in.  Basically it's about a guy who disappears after he's convicted of lewd or lascivious acts against a child under the age of 14 years.  That's bad for him, but it's also bad for the bail bondsman who posted his $300,000 bond.

So the surety tries to find him and bring him back in, then gets an extension for another six months.  But the clock's ticking.  One day after the bail's going to be forfeited, the surety comes into court and asks for another extension, which it seeks basically on the grounds that they've caught him in Mexico and he's in the process of being extradited.

Except arguably that's not really true.  There's a fight about whether the surety really has the guy in custody in the manner the law requires (or even at all).

And who's on what side of this dispute is what's interesting.

Obviously the surety wants more time.  What's not so obvious -- but what makes sense -- is that so does the District Attorney's office.  Because if the bounty hunter gets more time, he's likely to keep on working (perhaps successfully) to bring the guy in.  Whereas if the bail is forfeited, there's no incentive to keep looking (or keep trying to extradite), since the money's already down the toilet.

By contrast, County Counsel wants the bail forfeited.  Because the forfeited money -- no chump change -- goes to the County once it's forfeited.  And the County wants the dough.

So you've got the D.A. and County Counsel on opposite sides in a criminal case.  Not something you see every single day.  (Or at least not something I see.)

So that taught me something new.

Plus, in the particular case at hand, the Court of Appeal reaches a result with which no one's probably really happy.  Except the surety.  I can summarize that holding with a single paragraph from the opinion:

"Respondent’s frustration in the case is not unwarranted. The time of the hearing was changed by the court and it appears to have been obvious to all present that the defendant would not be appearing. Had the court waited the 42 minutes until 10:00 a.m., when the defendant was legally required to appear, before declaring the forfeiture, there would have been no question that the forfeiture was valid. Instead, by virtue of the court’s error in proceeding as it did, appellant will avoid liability on the bond despite having failed to locate the defendant and return him to court during the period of more than a year between the declaration of forfeiture on January 24, 2014, and the trial court’s April 23, 2015 denial of the surety’s motion for tolling and subsequent entry of summary judgment. Nevertheless, respondent’s argument that waiting until 10:00 a.m. before declaring the forfeiture would have been “the epitome of an idle act,” while understandable, is untenable."

The net result of which is that the decision below is reversed, the bail bond is exonerated, and the guy stays in Mexico (or wherever he is) because the surety no longer has any incentive to bring him back, since it's now got it's $300,000 back for good.

Ouch.  For want of a nail, the kingdom was lost.  Only this time the nail is 42 minutes.

Wednesday, February 07, 2018

Gonzalez v. Mathis (Cal. Ct. App. - Feb. 6, 2018)

It's a premises liability case where a window washer falls off a roof while cleaning a skylight.  So he sues the homeowner.

Okay.  I'm sure the guy was injured somewhat seriously.  Plus, the house at issue is in the Hollywood Hills, and has an indoor pool.  So I'm fairly confident the homeowner is decently wealthy.  Given the likely stakes at issue, and the wealth of the defendant, you'd expect that some decent attorneys would represent the defendant.

But Latham & Watkins?  They're not exactly a personal injury defense firm.  And cost a fair penny. What the heck are they doing on this case?

So I check out the caption.  The defendant's name is John R. Mathis.  I'm figuring that maybe the guy's a partner at Latham.  Or some other big name attorney who's friends with someone at Latham.

Nope.  No dice.

Well, the guy's in Los Angeles.  Maybe I can find out some stuff about him online.

When suddenly it hits me.  John R. Mathis.  John Mathis.  Johnny Mathis.

Now it all makes sense.

To her credit, Justice Zelon doesn't even hint at this in her opinion.  It's just another case in L.A. to the Court of Appeal.  No star-struck references in the opinion to music lyrics, song titles, etc.

One still wonders whether it's really worth having Latham & Watkins on the case.  Particularly when you discover that Mathis loses in the Court of Appeal, and the case is remanded back for trial.

Still, even good lawyers lose sometimes.  Not necessarily their fault at all.

Though some of the statements in the Court of Appeal's opinion don't exactly make Latham look all that great.  Like this one:

"In a footnote to the introductory section of his respondent’s brief, Mathis argues we may affirm the trial court’s judgment on an alternative ground, asserting that “Gonzalez is estopped from recovery because he mispresented [sic] himself as having worker’s compensation insurance, as required by California state law, and which would have compensated him for his injuries, and improperly seeks to require Mathis to compensate him for an injury that should have been covered by his own claimed insurance.” Mathis’s brief presents no further argument on this issue. “We . . . need not address . . . contention[s] made only in a footnote.” [Citations]; see also People v. Lucatero (2008) 166 Cal.App.4th 1110, 1115 [“A footnote is not a proper place to raise an argument on appeal”].)."

As for Mathis, this week ain't his week.  But it's probably a better day than a couple of years ago.  Which seems to involve the same home at issue here.  One totally destroyed in a fire.

Bad ju-ju.

Tuesday, February 06, 2018

Simpson v. Trump University (9th Cir. - Feb. 6, 2018)

The district court's approval of the $25 million class action settlement against Trump University gets affirmed by the Ninth Circuit this morning.  Not surprisingly.

The best part of the opinion, IMHO, is footnote four.  The objector to the settlement made various arguments in the district court, including a very non-frivolous argument that the short form notice seems to provide (in a parenthetical) that class members would get a second opportunity to opt out after any settlement.  The Ninth Circuit held that even though that parenthetical might well be read in such a fashion, viewed as a whole, the notice didn't really say that, and there was only opportunity for a single opt-out election.

Here's footnote four:

"Plaintiffs repeatedly characterize Simpson’s argument as “attorney-manufactured.” The timeline and evolution of her objection support that assertion, but our court would have little work to do without creative arguments “manufactured” by zealous attorney advocates."

Love it.

Monday, February 05, 2018

In Re J.G. (Cal. Ct. App. - Feb. 5, 2018)

This is sufficiently depressing that I'm almost inclined not to mention it.

Four very little kids -- the oldest was four years old -- were removed from their parents.  For good reason.  In full view of the kids, Father ran over and killed Mother.  OMG.

Father's sister (Aunt) then moves to get custody of the kids, and the court awards it.  The opinion gives a ton of detail about what happens to the children while they're in Aunt's home.  One -- very bland -- sentence will instead suffice:  "We agree and conclude that the court abused its discretion in ordering the children to remain with a caregiver who failed to provide adequate food to them, causing serious injury to the health and well-being of the three youngest children."

Yikes.  Times three.

You can get a sense of what transpired by how the Court of Appeal characterizes these events later in the opinion.  "The record clearly shows that Aunt failed to provide P.G., D.G., and J.G. with adequate food and that she intentionally limited the children's food portions. As a result, the younger children were diagnosed with nonorganic failure to thrive. P.G. was severely malnourished, dehydrated, and lethargic, and had to be hospitalized for almost two weeks. D.G. and J.G. were also severely malnourished. They had postgrowth arrest lines on their bones, which occurs when the body stops building bone in response to malnutrition. D.G. and J.G. displayed food insecurity. Dr. Young testified that P.G., D.G., and J.G. essentially stopped growing. In addition, she believed that malnourishment may have affected their brain development. Dr. Young said that the younger children all had significant loss in growth potential. She characterized Aunt's treatment of them as "starvation.""

To be clear:  This is not a case of a deliberate intent to harm.  Aunt thought that the children were overweight.  That's indeed sometimes a problem with kids in the modern era.  Maybe even, initially, here.

But that doesn't matter.  At least to the result here.  "The record shows that Aunt willfully failed to provide the younger children with adequate food and nutrition, resulting in their diagnoses of severe malnutrition and nonorganic failure to thrive. That Aunt may have lacked the intent to harm the children does not mitigate her failure to provide adequate food to them. (§ 300, subd. (b).) We therefore conclude that the court erred in determining that it was safe for the children to remain in Aunt's care because she did not intend to starve them."

As Justice Aaron ends her opinion:

"Adequate nutrition and food security is an essential need for any person, particularly a young child whose proper growth and development depends on such sustenance, and in turn, on the caregiver to provide it. Here, the uncontroverted evidence shows that Aunt failed to provide the younger children with a fundamental necessity of life—adequate food, and that she failed to appreciate the impact of her actions on their health. Further, there was no indication that Aunt was able or willing to alter her behavior in this regard. The impact of malnutrition on the children's growth and development, and well-being, outweighs any other benefits that the younger children received in Aunt's care."

Marina Pacific Homeowners Ass'n v. Southern California Financial Corp. (Cal. Ct. App. - Feb. 5, 2018)

The Court of Appeal has to decide who's the prevailing party in the underlying litigation.  The second paragraph of the opinion begins by noting:  "This is the fifth appeal in litigation over the assignment fee that began in 2006."

That sentence may provide a hint as to what the court's going to do.  Because this thing has gone on a long time.  And the easiest way to put a merciful end to it is simply to affirm.

Which is precisely what the Court of Appeal does.

That resolution also makes sense.  Both sides won.  But both sides lost.  If the trial court thought the final judgment was essentially a wash -- which sounds right, since the ultimate result was in between what both sides sought -- you can see why the Court of Appeal might not want to disturb that finding.

And finally put the thing to bed.

Thursday, February 01, 2018

Gonzalez v. Lew (Cal. Ct. App. - Feb. 1, 2018)

This opinion is a good candidate to go up to the California Supreme Court.

Not that the Court of Appeal is necessarily wrong.  But the decision here has a fair amount of tension with other California appellate cases.  Today's opinion validates a Section 998 offer that was jointly made by multiple plaintiffs.  Normally, however, joint offers like that are invalid, since they don't allocate liability, so the reasoning of this opinion stands in stark contrast to the holding of those other authorities.

So it might make sense to straighten this out.  Especially since (1) 998 offers are pretty routine, and (2) there's a real value to a bright-line rule here, rather than having the result depend on what panel you end up getting on appeal.  Lawyers should know whether these types of offers are valid.  And having a clear rule may be equally (if not more) important as having a rule that makes good policy.

Plus, as an added bonus, granting review would mean that the California Supreme Court could take out the double negative.  Check out the heading on page 22:  "4. The plaintiffs’ joint settlement offer was not invalid."  You can probably change those last two words to "valid," right?

Lest we confront physical violence from our high school English teacher.

Wednesday, January 31, 2018

O'Malley v. Hospitality Staffing Solutions (Cal. Ct. App. - Jan. 31, 2018)

Justice Moore begins today's opinion by noting the general rule:

"Ordinarily, a person has no legal duty to come to the aid of another. But if a person does come to the aid of another, and does so without exercising reasonable care, that person may be responsible for any damages caused under a 'negligent undertaking' theory of liability."

There are various statutory exceptions to that rule, there are various issues of fact regarding whether someone has a duty, etc.  This case involves applying all those things to the issue at hand.

Here, a wife checked into a hotel, her husband kept calling her without answer, and he eventually called the hotel and asked 'em to check up on her.  The hotel sent up a maintenance worker who quickly peeked into the dark room and didn't see anything, and hence told the husband that there was no one there.  But the husband later drove to the hotel and found his wife on the floor, where she fell after suffering a brain aneurysm.

Hence the lawsuit.

The trial court granted summary judgment to the defendant on the ground that there was no duty.  The Court of Appeal reverses, holding that since the hotel bothered to check, a duty may well exist.

Okay, fine.  You can see why precedent might so hold.

Just don't be surprised, in the future, if hotels accordingly refuse to help you out when you think that your spouse may have had a heart attack, have collapsed in her room, etc.  "Sorry, we'd love to help out if we could, but if we do, you might sue us.  So we can't help you.  Our general counsel has set a firm policy that we can never help anyone out if there's a worry they might be in danger.  Have a nice day."

That's definitely the world in which I'd like to live.

Tuesday, January 30, 2018

Santa Barbara Channelkeeper v. City of San Buenvaventura (Cal. Ct. App. - Jan. 30, 2018)

I agree with this opinion one thousand percent.  And am so happy it's published.

Santa Barbara Channelkeeper thinks that the City of San Buenaventura is taking too much water from the Ventura River, which is in turn threatening the Southern California steelhead trout.  So it sues.

Great.  That's why we have courts.  To figure these things out.  Based on the limited facts in the opinion, by the way, it seems like Santa Barbara Channelkeeper is right -- that we're basically killing this species by making the river run essentially dry over the summer.  Probably a bad idea.

The City thinks it's got a vested right to take the water, but even if there is a vested right, that's trumped if the use is unreasonable, which killing a species might be.

Regardless, today's appeal isn't about the merits.  It's about procedure.  The City files a cross-complaint against a huge number of other people who also take water from the Ventura River.  Basically saying that if everyone is collectively taking too much, the City shouldn't be the one left holding the bag and the one compelled to reduce its own use -- instead, everyone should participate.

Which sounds exactly right to me.  You figure out how much water you need to leave it, you figure out amongst all the people who take the water who should leave how much in, and then you enter a judgment accordingly.

Perfect.  Efficient, even.

But that's not the way the trial court saw it.  It dismissed the City's cross-complaint, saying that the present suit was just about the City's water usage, not everyone else's.

Thankfully, the Court of Appeal reverses.

I get that the plaintiff might be happy with just an easier suit that's only against one appropriator.  But the lawsuit involves the entire river.  It makes eminent sense to me to bring everyone together in one big lawsuit.  Indeed, to do otherwise seems manifestly unfair.  Everyone should be treated the same (or at least consistently).  And you can only do that if everyone's together and bound.

So I think the Court of Appeal gets this one exactly right.

And that makes me happy.

P.S. - Was I the only one in the universe (or at least Southern California) that didn't know that the City of Ventura's "actual" name was the City of San Buenaventura?!  Just learned that today.  And not even from the opinion -- I had to look it up.

Monday, January 29, 2018

Candelore v. Tinder (Cal. Ct. App. - Jan. 29, 2018)

I'm not a big believer in discrimination based on immutable characteristics.  Shocking, I know.

As a result, I'm a fan of the Unruh Civil Rights Act.  Seems to me that you shouldn't make arbitrary or unjustified distinctions based on stereotypes.  No charging more (or less) based on race, gender, sexual orientation, etc.  Unless there's an actual good reason it.  That resonates with me.

Yet I tend to think that principle is increasingly affirmed more in theory than in fact.  You see legions of cases that attempt to salvage gender-based discrimination, for example (e.g., "Ladies Nights"), by imposing a variety of substantive and procedural obstacles to enforcement.  Or you courts rationalize discrimination on a number of different grounds.

Some of these developments might make sense.  But I have a feeling that underlying the morass of them is a belief that stereotypes (or at least "accurate" stereotypes) are okay.  Or at least not as bad as traditionally thought.

So when I read this afternoon's opinion, I anticipated more of the same.

But was in for a surprise.

The case involves Tinder.  The Court of Appeal cogently explains the service in the first paragraph of its opinion.  Lest anyone have been under a rock for the last decade (or at least not regularly around millennials since then):

"Tinder, Inc. owns and operates the smartphone-based dating application, Tinder. The original app began, and is still offered, as a free online dating service. It presents users with photos of potential dates. The user can swipe right to express approval, or swipe left to express disapproval. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee."

Now, admittedly, I've never used the thing.  Nor did I know about Tinder Plus.  So there's something in that opening paragraph for everyone.

And I especially didn't know about the pricing structure for Tinder Plus.  Which is indeed interesting:

"Tinder charges consumers who are age 30 and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features."

Hmmm.  I would have thought that was exactly the sort of thing that the Unruh Act prohibited.  So did the plaintiff, who sued.

But the trial court disagreed.  "The trial court sustained Tinder’s demurrer without leave to amend, ruling in part that Tinder’s age-based pricing practice did not constitute arbitrary or invidious discrimination because it was reasonably based on market testing showing “younger users” are “more budget constrained” than older users, “and need a lower price to pull the trigger.”"

But the Court of Appeal disagrees.  Here's the scoop.  With a cultural reference at the end.

"But, as discussed below, the Unruh Act provides broad protection against arbitrary age-based price discrimination. No matter what Tinder’s market research may have shown about the younger users’ relative income and willingness to pay for the service, as a group, as compared to the older cohort, some individuals will not fit the mold. Some older consumers will be “more budget constrained” and less willing to pay than some in the younger group. We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users. Because nothing in the complaint suggests there is a strong public policy that justifies the alleged discriminatory pricing, the trial court erred in sustaining the demurrer. Accordingly, we swipe left, and reverse."

C.J.L.G. v. Sessions (9th Cir. - Jan. 29, 2018)

Judge Callahan concedes that C.J. -- a child -- "is a sympathetic petitioner."  Which sounds right to me.  He's a Honduran kid who "repeatedly spurned the Mara gang’s entreaties to join its ranks despite death threats made against him and his family" and, after the gang threatened him at gunpoint, fled Honduras and came to the United States.

Not someone we're exactly itching to send back to Honduras.

Most people, anyway.

Judge Callahan is somewhat sympathetic to the child, but not at all sympathetic to his legal claim -- which is that he's entitled to be provided an attorney before he's deported back to Honduras.  That, Judge Callahan says, would "upend Congress’ statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors."

Ain't going to happen.  As the Ninth Circuit promptly holds.

Judge Owens concurs.  He comes out the same way.  Though his sympathy is perhaps somewhat more substantial than Judge Callahan's.  He says that he concurs "in the majority opinion and its narrow scope."

(Put to one side whether the opinion is really all that "narrow".  He has a point, and he wants to make it.)

Judge Owens characterizes the majority opinion as "hold[ing] that the Due Process Clause does not mandate government-funded counsel for C.J.L.G, an accompanied minor. The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer."  Then cites several cases that suggest that in that different setting, he'd lean towards so holding.

So there's expressed sympathy here.  At at least an expression of support by one of the members of the panel for a different rule in a different type of case.

None of which helps the minor -- C.J. -- here.  He's getting sent back to the gang, in a country with an absurdly high murder rate.

Or, as Judge Callahan softly puts it:  "We are mindful that our decision means that, absent a reprieve offered by the government, C.J. will likely be returned to a country in turmoil. We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity. But while “our hearts are with [C.J.],” the law does not support his requested relief."

Thursday, January 25, 2018

In Re Marriage of Clarke and Akel (Cal. Ct. App. - Jan. 24, 2018)

This opinion did not at all turn out to have the facts I thought it'd have.

The first couple of paragraphs of the opinion are great.  They say exactly what the opinion holds.  (Or at least, in the author's opinion, the most important parts of that holding.)

That holding also seems spot on to me:

"Under Family Code section 1615, subdivision (c)(2), a premarital agreement is unenforceable as to a party who was not represented by counsel and who did not have at least seven calendar days between the date he or she was “first presented” with the agreement and the date it was signed. [Cites] Evidence Code section 622 provides that the facts recited in a written instrument, other than the recital of a consideration, “are conclusively presumed to be true as between the parties thereto[.]”

We conclude that when the evidence shows an unrepresented party to a premarital agreement was not provided with the seven-day period for review required by Family Code section 1615, subdivision (c)(2), the agreement’s recitation that the review period was provided is not binding. In other words, the seven-day review period may not be circumvented by inserting language into a premarital agreement acknowledging that both sides had seven days to review the agreement, when in fact they did not."

Totally makes sense, right?  If the statute says you've got seven days, then you've really got to have seven days.  No joke.  Can't just lie about it or say otherwise in the written agreement.

Glad to hear.  Exactly right.

Once I knew what the holding was, I figured the facts of the case would be pretty straightforward.

Maybe Rich Husband sprung a premarital agreement on Trophy Wife the day before the wedding, but said in the agreement that she in fact had seven days when she obviously didn't.  She signed because, hey, that's the deal, but now wants to (properly) get out of the thing.

Or maybe there's a factual dispute between Husband and Wife over whether one of 'em actually had seven days to review the thing, but the trial court thought it didn't have to resolve that dispute because the agreement itself said there was seven days.

Both of those factual settings would make sense.  I'm sure they happen all the time.

But this one was something I didn't suspect.  And in ways that make the details interesting.

Here, it's indeed the Husband that comes up with the proposed premarital agreement.  And, yeah, he presents it a couple of weeks before the wedding to his future bride.

Not exactly romantic, but okay.  That's what I expected.

But it doesn't seem that Husband's necessarily your classic rich dude who's just taking advantage of someone by making a last-minute deal.  He doesn't use an attorney to write the thing.  He downloads it off of Nolo Press (!).  And it's mostly about who'll own a particular house that husband was going to bring to the marriage, and he just wanted to make clear what the deal was with it.

Nor does he seem to be procedurally trying to hose his future spouse.  He gets an attorney for her.  One who goes over the deal on her behalf.  Meanwhile, Mr. Nolo Press simply represents himself.

And there's back and forth.  Wife's attorney asks for modifications, redlines the deal, etc.  The parties meet, go through a couple of drafts, etc.  All in the weeks before the wedding.  Then they strike and sign a deal that everyone's happy with.  Wife's happy.  Husband's happy.  Seems fair to everyone.


The couple gets married the day after they both sign the agreement.  Mazel tov.

Needless to say, there wouldn't be an opinion if everyone lived happily ever after.  Eventually, the parties separate.

So now we gotta figure out if the prenup can be enforced.

Though here's the thing.  It's the HUSBAND who's trying to get out of the thing.

Which is weird, right?  Since he's the one who wanted it, who drafted it, and who proposed it.

But, yeah.  He's the one who wants to get out.  And he's the one in a position to potentially do so, since he's the only one who was unrepresented (and hence is entitled to the seven days).

And indeed he does.  The Court of Appeal throws the thing out.

Wife's got a lot of decent arguments as to why that's silly.  The principal one being that he proposed the thing.  So why shouldn't he be bound?  Especially since there were more than seven days between his draft and when they actually signed.  So he clearly had time to consider things.  Seems like a huge and unjustified windfall to let him get out of a deal that he proposed.

Nonetheless, you can see why the Court of Appeal comes out the way it does.  Yes, it was "basically" his deal.  But Wife's attorney edited the thing.  Those edits were non-trivial (though hardly huge).  So it's technically a "different" deal.  Since he didn't actually have seven full days to review the ultimate redlined version, the statute wasn't satisfied, and the deal goes down.

Wife tries mightily to say that Husband should at least be bound to those parts of the agreement that the attorney didn't change, but no dice.  The thing's an integrated whole.  Husband's not bound.

Fascinating stuff.

And not the facts I expected when I first began reading the thing.