Thursday, March 05, 2015

DuBeck v. California Physician's Service (Cal. Ct. App. - March 5, 2015)

As Eli Wallach memorably said in The Good, the Bad, and the Ugly:  "When you have to shoot, shoot.  Don't talk."

The Court of Appeal reiterated that message in a slightly different context today.  Telling Blue Shield:  "When you want to rescind, rescind.  Don't cancel prospectively."

Plaintiff has a lump on her breast and sees a doctor, who conducts a needle aspiration.  Five days later, plaintiff submits an application for health insurance to Blue Shield.  Blue Shield asks tons of health questions (as might be expected), but plaintiff omits anything about her recent visit to the doctor, the lump, etc.  Saying "no" to tons of questions where she should have said "Yes".

Blue Shield issues the policy.  One week after the policy issues, plaintiff has breast cancer surgery.  There's lots of subsequent medical treatment as well.

Blue Shield eventually finds out about the omissions.  When it does, it cancels the policy.  But does so only prospectively; it says its going to pay for the existing stuff, but nothing in the future.

Eventually, plaintiff becomes unhappy with some stuff that Blue Shield's not paying for (Blue Shield says some of this stuff is from a preexisting condition), and files suit.  Blue Shield in turn moves for summary judgment, saying that the lawsuit should be dismissed because it could validly rescind the policy based on plaintiff's clearly material omissions in her application.  The trial court agrees.

The Court of Appeal reverses.

Maybe Blue Shield could have rescinded, it says.  But it didn't.  It just cancelled the policy prospectively.  That's a waiver, the Court of Appeal says.  One that was clear, knowing, and voluntary.  So maybe you could have rescinded, but you didn't.  So if you were obligated to pay, you've got to pay.  Summary judgment reversed.

There's one additional fact that's perhaps only tangentially relevant legally, but I bet plays more than a little role in the Court of Appeal's conclusion.  Blue Cross only moved to rescind the policy after the plaintiff sued.  Why didn't it rescind earlier?  Maybe it had something to do with the fact that Blue Shield had collected and retained almost $20,000 in premiums from the plaintiff but had paid out less than $15,000 to her doctors under the policy.  Leading one to suspect that Blue Cross was happy to keep collecting premiums once things were working out well for it, but only moved to rescind after things went south.

Can't do that.  If you want to rescind, rescind.  Can't wait to see what happens.

Yousefian v. City of Glendale (9th Cir. - March 5, 2015)

It's a Section 1983 false arrest case in which the arresting police officer slept with the arrestee's ex-wife, who (among other things) planted drugs on her former spouse.  The plaintiff is represented by Mark Geragos, and the Ninth Circuit opinion is written by Judge Reinhardt.

What's your guess as to how the case comes out?

Nope.  Judge Reinhardt affirms the grant of summary judgment to the police officer and the City of Glendale.

Judge Reinhardt (not surprisingly) doesn't like the police officer's conduct.  And isn't shy about saying so. But he (rightly) holds that, under the facts of this case, there's no Section 1983 violation.

You can't necessarily judge a book by its cover.

Wednesday, March 04, 2015

In Re G.Y. (Cal. Ct. App. - March 3, 2015)

The Court of Appeal's call for legislative action here might well not fall on deaf ears.

You're not usually going to see the Legislature fall over itself to pass a statute that favors someone who's committed a crime.  Admittedly, the offense here was committed by a juvenile, and it wasn't by any means the worst offense you've ever seen.  Here's what G.Y. did when he was seventeen:

"In November 1998, after appellant was beaten by a group of men in a park, he went to his friend’s house. He and his friend then took the friend’s father’s handgun and drove to the assailants’ house. Appellant held the gun to a woman’s head and threatened to shoot her unless she summoned the men from inside the house. She did so and two men, who were holding baseball bats, came out of the house. Appellant threatened to shoot one of the men, but he and his friend left."

Still, the offense involved a gun, and that's serious.  Indeed, G.Y. gets sentenced to a maximum of 15 years in a juvenile ranch -- hardly a minor disposition.

But G.Y. completes the program, and gets released, in four months.  You read that right:  four months, not four years.

Then look at how G.Y. turns his life around:

"In 2006, appellant enlisted in the Army and served on active duty until November 2009. During that period, appellant was promoted to the rank of sergeant and received two Army Commendation Medals for his service in Iraq. Appellant also received numerous other achievement and leadership awards. Appellant provided two letters of recommendation from his commanding officers in the Army and an NCO (noncommissioned officer) evaluation that described his exemplary performance in the Army. After completing his active duty service, appellant enrolled in California State University, East Bay. In December 2012, he obtained his Bachelor of Science degree in Criminal Justice Administration. In 2013, appellant received another Army Commendation Medal for his outstanding contribution to military intelligence operations in Kuwait."

That's a story that people like to hear.  Did it the old-fashioned way:  Joined the Army and made something of himself.

G.Y. then petitions to have his prior felony convictions reduced to misdemeanors, a motion that the D.A. doesn't even oppose, and the trial court does so.  On similar grounds, he then moves to have his juvenile records sealed.  That way he can go through his new life with a "clean" sheet.

With only one barrier.  In 2000, California voters passed Proposition 21.  Which expressly says that a court can't seal juvenile records for specified (serious) felonies that someone committed when they were 14 or older.  Including but not limited to the offenses committed by G.Y. when he was 17.

The law's clear.  So G.Y.can't get relief.

The Court of Appeal calls upon the Legislature to change this result.  Which is understandable.  This is an extremely sympathetic case.

With two problems.  First, although the Court of Appeal says that it probably wasn't the voter's "intent" to stop relief in cases like this one, I'm not so sure.  The voters expressly passed a law that was deliberately categorical.  No one can get relief.  If you'd have asked the "Yes" voters, "Do you really mean 'no one,' even the most sympathetic?", I think the average person would have said "Yep.  That's exactly what I mean."  The statute was passed because they didn't want exceptions.  Didn't trust courts.  The problem you have here is exactly what you get when you enact such a rule.  It's not an accident.  It's deliberate.

Second, although the Court of Appeal calls upon the "Legislature" to resolve the problem, I'm not really sure that's where the call is properly directed.  Since it's an initiative statute, the Legislature can't amend it, right?  All it can do (if it wants) is to suggest an amendment and send it to the voters.  They passed it, so it's their call.

Sure, the Legislature is a (possible) start.  But really the proper message is to the voters.  Pass something that rectifies this problem.  And, in the future, don't pass stuff like this if you don't really mean it.

Tuesday, March 03, 2015

Sato v. Bank of America (Cal. Ct. App. - March 2, 2015)

Is this really all the Court of Appeal wants to do?

It's an unpublished opinion, so I wouldn't ordinarily mention it.  But it's a guy with my last name ("Martin"), so I feel somewhat proprietary about its reputation.

Andrew R. Martin files an appeal and submits briefs.  Here's what Justice Banke says about them:

"In this appeal, the Satos submitted opening and reply briefs totaling 105 pages that fail to provide a single page-specific citation. Instead, the briefs provide “citations” such as “see FAC” (referring to the first amended complaint, which contained 102 pages of allegations and over a hundred pages of exhibits) or make statements such as “[f]acts supporting Appellant’s claim[s] are from the FAC, the opposition to the subject demurrer, and the opposition to summary judgment”—asking this court to wade through nearly 300 pages without guidance. In short, the Satos’ briefing egregiously violates the Rules of Court and provides little help in analyzing the merits of the challenged judgment."

Okay, that's bad.  But ordinarily not really worthy of a huge spanking beyond being called out in an opinion.  (An unpublished one at that.)

But there's more.  Listen to this:

"At oral argument, counsel for the Satos, Andrew R. Martin—who signed the appellate briefs and presumably drafted them—attempted to excuse the rule violations by claiming this was his “first appellate case.” To say counsel was being less than candid with the court is an understatement—this was an outright mistruth. A quick search, by State Bar number, of the dockets of the First District Court of Appeal, alone, showed 17 matters initiated between April 2009 and October 2014, some completed some still active, in which Martin was at least one counsel of record. Thus, he has at least five-plus years of experience with appeals. Moreover, Martin has been on briefs submitted to this court in these other cases which not only suffer from similar defects, they predate the February 2014 opening brief in this case. For instance, the only record citation in the October 2013 opening brief in Jordon-Mendoza v. JPMorgan Chase Bank N.A. (A138304, app. pending) is in a footnote on page three, and it is to the entire complaint; nary a page cite is given. Even a “first time” appellate lawyer is expected to read and comply with the Rules of Court. Martin’s transgressions, as an experienced appellate lawyer, are inexcusable."


So what does the Court of Appeal do to someone who has seemingly outried lied to the Court of Appeal.  Here's the sanction:

"Martin is hereby put on notice that the court will consider imposing sanctions should he file any appellate brief in the future in this court bereft of proper citations to the record."

Wow.  Hurt me.

That's what you get for an affirmative misrepresentation to the Court of Appeal nowadays?

Let me add some more facts for color.  All coming from Mr. Martin's apparent record with the State Bar:

What happened to Mr. Martin's bar license in 2011?  It was suspended for failure to pay child and/or family support.  What happened to Mr. Martin in 2013?  He was convicted of drunk driving.  What happened to Mr. Martin in 2014?  He was convicted of battery.  All of this was on top of a conviction in 2009 for driving with a revoked license.

All I know is what I read in the Bar's charging documents (and Mr. Martin's limited responses).  But even without this background, I'd have been inclined to have been harsher on Mr. Martin than Justice Banke was.

After discovering that background, I'd be even more inclined.

Not the proudest graduate of the Golden Gate School of Law.  Nor the poster child for the 623 attorneys in California with the last name "Martin".

P.S. - In researching the docket, I'm also a little unclear as to Mr. Martin's exact role in the case.  The Court of Appeal says that "Andrew R. Martin [] signed the appellate briefs and presumably drafted them."  Yet the publicly available case information lists both the opening brief (filed on January 15 2014) and the reply brief (filed on -- appropriately enough -- April Fool's Day of 2014) by "Attorney:  Vernon Lester Bradley."  Plus there are two subsequent entries in April of 2014 regarding the substitution of Mr. Martin for Mr. Bradley.  So did Mr. Martin really prepare and file the briefs?  Plus, if Mr. Bradley filed the briefs, could he really do that, since he was disciplined and ordered inactive by the Bar in 2013?  This case just gets weirder and weirder.  (Maybe the docket sheet lists the "Attorney" who "filed" the brief as just the attorney of record on the case even when an entirely different attorney files the briefs.  Who knows.  I'm just going by what I see.  And it looks like a mess.)

Rush v. Sport Chalet (9th Cir. - March 3, 2015)

When you read this Ninth Circuit opinion, it seems so obviously right.  How could the district court have gotten such a (relatively) simple thing as joinder so wrong?  Obviously the various defendants were related.  Or at least were related in the minimal way required by the federal rules.  Or, even if they weren't, why weren't the improperly joined claims severed, rather than dismissed?  Why was the district judge so harsh?

Reading between the lines, however, I think one might obtain a hint.  It's an ADA claim about access to stores potentially brought by a high-volume filer who's looking to save on filing fees by dumping a number of different lawsuits into the same complaint.  The district court probably didn't like that.  It probably didn't like the merits much either.  Hence the result.

The Ninth Circuit never mentions anything like that.  But -- based on nothing but gut -- my money's on the district court not being at all fond of this type of litigation.

Friday, February 27, 2015

City of San Marcos v. Loma San Marcos LLC (Cal. Ct. App. - Feb. 27, 2015)

It's not that I don't feel bad for the defendant in this case.  I do.  It turns out that it was the last holder in a game of hot potato.

But a deal's a deal.  Even if it's a bad one.  So it loses the property.

Shortened to its essentials, here's the deal:

There's a 15-acre plot of land in the City of San Marcos that's being used for a recycling center.  The recycling center then closes, and the land is vacant for around a decade.

Eventually someone gets the bright idea to turn the place into a movie studio.  So the property owner enters into a deal with the City in 2004 to (1) get a conditional use permit to allow the property to be used as a studio (rather than recycling center), in return for (2) payment of $2.3 million in mitigation fees for the improvement of roads, etc. around the property.  The City doesn't demand payment of the $2.3 million immediately; nonetheless, it's a lien on the property, and various installment payments are due at the end of 2006.   The deal's negotiated, signed, delivered, and all the parties are sophisticated and represented by attorneys.  Fair deal.

Company A then buys the land from the original owner, fully aware of the deal and the liens on the property, for $8.75 million in February 2005.  Company A's also no dummy.  One year later, Company A sells 72% of the their interest in the property for $9 million to Company B.  That's a quick million-dollar-plus profit in less than a year.

Companies A and B are still working on getting a movie studio in there.  They ask the City for more time, and it give it to 'em, but the extra time runs out in early 2007.  Then they ask the City for yet more time, and the City gives it to 'em again, and there's a whole formal extension deal signed.  But there's still the $2.3 million due, and it's still a lien on the property, with a right to foreclose if it's not paid.

Company B's still trying to get a movie studio in there, but in the meantime, it uses the land for a commercial car photo shoot, and then rented as storage space several times.  The City wants there to be a movie studio too, so it hobbles along with these interim arrangements.  But in 2009, having still not been paid, the City essentially says "Enough.  Pay us."  But Company B doesn't.

So in 2010, the City exercises its right under the agreement to terminate the deal, and continues to demand its $2.3 million, but Company B still doesn't pay, so later that year, it files suit to foreclose on the land.  Company B fights, claiming that the deal is unconscionable, illegal, etc.  And I'm somewhat sympathetic to this view, since (as far as I can tell) the City's getting paid $2.3 million as mitigation fees for improved streets, etc. that it now doesn't actually have to do since there's not, in fact, going to be a movie studio there.

But a deal's a deal.  So, in 2012, the trial court -- after a five-day bench trial -- rules in favor of the City. And today the Court of Appeal publishes its opinion affirming the trial court.

Don't make bad deals.  And if you do, don't be surprised when you're held to them.

Thursday, February 26, 2015

People v. Johnson (Cal. Supreme Ct. - Feb. 26, 2015)

Can you guess what this appeal is about?  Can you guess the result?  Here are the first three sentences of the opinion:

"A jury convicted defendant Jerrold Elwin Johnson of the first degree murder of Ellen Salling with the special circumstances of robbery murder, burglary murder, and carjacking murder, as well as first degree burglary, first degree robbery, and carjacking. [Cites] The jury also found that defendant personally used a deadly and dangerous weapon, and the victim was 65 years old or older. [Cites] Defendant admitted that he had suffered one prior serious or violent felony conviction and had served one prior prison term."

There is one part of the opinion that merits at least brief mention.  The majority holds that when you enter a home, find a 76-year old woman baking cookies, and beat her to death with a tree limb, that counts as a "carjacking" as long as -- once she's dead -- you walk out of the kitchen, across a breezeway, enter a garage, and take the dead woman's car.

Justices Werdegar and Liu don't agree.  But they're outvoted.

Tuesday, February 24, 2015

People v. Soria (Cal. Ct. App. - Feb. 23, 2015)

Nothing good ever comes out of the following fact pattern:

"On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old defendant was home, drinking beer, and playing video games, when his son Theo brought home three friends and a large bottle of vodka. The group of four -- all of whom were about 20 years old -- consisted of defendant’s son, the son’s new girlfriend, Karolyn Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is the victim. They had a plan to get drunk. . . ."

Oh my.

So many different bad things can happen in a situation like this.  In this particular case, the offense for which defendant was convicted is rape of an unconscious person.

The evidence against the defendant is not, however, as strong as you often see.  There are no eyewitnesses to the offense.  The victim has no memory of what transpired.  There's no bruising or other unambiguous evidence of force.  There's no confession, either, even after a subsequent pretext call (in which the defendant continued to insist that he, too, had no memory of what transpired, although he often says that he's "sorry" that the victim was apparently raped while unconscious).

Sure, there's some very minor evidence against the guy.  His slippers were near her bed.  Stuff like that.  Evidence that might perhaps be explained by the fact that the victim vomited, passed out, and had to be taken care of by somewhat.  

But the strongest evidence against the defendant was -- as you might imagine -- the DNA evidence.  That's what nails him.

With one not-so-tiny problem:  The DNA does not match.

This is probably why the first jury ends up hung.  But the second jury convicts.  Because while the DNA doesn't perfectly match, it definitely comes close.  The prosecution's witness compares the DNA sample inside the victim with the defendant's DNA at the standard 15 places and they match at 14 of 'em.  But not at the 15th.  The expert has a "crossover" theory about the 15th location, but admits that there's utterly no scientific evidence for that theory.

So that's a problem.  The DNA doesn't even match.

But it comes close.  And while you might think that "close" only counts in horseshoes and grenades, here, close is close enough.  For the jury as well as for the Court of Appeal.  It's enough evidence to even establish guilt "beyond a reasonable doubt".

Is the "slipper" evidence or the pretext call really that strong?  Nope.  No way.  But I think Justice Murray gives a pretty accurate description of why the defendant ultimately gets convicted (and that conviction gets affirmed) when he says:

"The DNA testing of the sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted that the major profile is not Beto and it is not defendant’s son. That leaves the only other male in the house, defendant. Unless there was some unknown male at the house who had intercourse with the victim who had the exact same profile at every location except one, where a potential triallele is located, then it must have been defendant who was the perpetrator."

So close is indeed good enough.  Because everyone else isn't even close.

Monday, February 23, 2015

In Re D.D. (Cal. Ct. App. - Feb. 23, 2015)

"On November 1, 2013, San Francisco Police Officer Duncan Duffin and his partner, Francisco Chicas, were working as a robbery abatement team. A series of armed and unarmed robberies had been committed within two blocks of the Glen Park and Balboa Park BART stations, mostly by young males (teenaged or in their early 20’s) who were wearing loose-fitting dark-colored hooded sweatshirts or pullovers and pants. At about 4:00 p.m., the uniformed officers were patrolling the area around the Balboa Park station in an unmarked vehicle. They saw two teenaged males wearing hooded sweatshirts and blue jeans standing in front of a parked Pontiac Grand Prix in a San Francisco Municipal Railway (Muni) employee parking lot near a Muni maintenance yard. The lot had signs indicating it was for Muni employees only and prohibiting trespassing.

The officers pulled over, and Duffin noticed smoke in the vicinity of the young men (D.D. & K.H.). He also saw D.D. look directly at the officers and then turn and enter the front passenger’s side of the Grand Prix. As the officers exited their car and approached the young men, Duffin smelled a strong odor of marijuana. He asked K.H., “Who has got the weed?” K.H. admitted having marijuana.

Duffin motioned with his hand for D.D. to exit the Grand Prix. When D.D. got out, Duffin asked for his name and identification. D.D. provided a false name and said he did not have identification. Dispatch had no record for the name given by D.D. D.D. was advised that Duffin and Chicas were investigating a series of robberies in the area. D.D. denied having any weapons on his person and did not tell Duffin who owned the Grand Prix. When asked why he was on Muni property, D.D. answered hesitantly and avoided the question. D.D. appeared apprehensive and nervous, and he kept looking left and right up and down the street without making eye contact with Duffin. As D.D. moved around, he kept repositioning his right hip away from Duffin: D.D. stood in a bladed stance, with one foot forward and one foot in the back at about a 45 degree angle and, as Duffin moved, he would pivot so his right hip was always pointed away from the officer. Duffin testified that, based on his experience and training, he believed D.D. was carrying a weapon at his right hip.

Duffin decided to search D.D. for weapons out of concern for the officers’ safety. D.D. placed his hands on the back of his head, and Duffin used his left hand to secure D.D.’s hands. Using his right hand, Duffin lifted the right side of D.D.’s sweatshirt and saw a semiautomatic black handgun at D.D.’s right hip, tucked in his waistband. Duffin removed the gun, placed it on the ground, and arrested D.D. Chicas examined the gun, a semiautomatic nine-millimeter Glock pistol, and determined that it was loaded with a live round in the chamber. It was stipulated that D.D. was 15 years old at the time of the incident."

That sounds like pretty good police work to me.  And I agree with every word of Justice Bruniers' opinion that holds that what the police did was proper.  That the police officers "saw two young men standing in a nonpublic Muni parking area, observed smoke near the men, and smelled marijuana" did indeed "provide some objective manifestation that D.D. and K.H. might have been trespassing and smoking marijuana, thus justifying an investigatory detention," and the fact that these kids "were in the general vicinity of a recent spate of robberies and were in clothing and of an age group that generally corresponded with descriptions of the robbers" rightly "added to the officers’ reasonable suspicion of criminal activity."  Similarly, while I understand the minor's argument that the police could not be sure that the minors were trespassing "because he and K.H. could have been Muni employees," neither I nor the Court of Appeal are ignorant of the world.  Justice Bruniers is right that '[g]iven the suspects’ young age, casual clothing, and apparent leisurely, lingering behavior smoking in front of a parked car, the officers had objective grounds to suspect D.D. and K.H. were not Muni employees with a legitimate reason to be present in the parking area, but were knowing trespassers on the clearly marked private lot."

What both the police as well as the Court of Appeal does here makes a ton of sense to me.

Fischer v. Time Warner Cable (Cal. Ct. App. - Feb. 23, 2015)

Of course you want to sue Time Warner Cable.  Hardly a sympathetic defendant.  Of course cable rates are too high.  Undisputed.  Of course it's absurd that cable companies should allow consumers to pick stations a la carte rather than cramming dozens of channels down your throat that you'll never watch in a million years.

Finally, for those in the L.A. area, of course it's absurd that Time Warner paid $11 billion to broadcast the Dodgers and Lakers games and included those games as part of its basic cable package, raising basic cable rates $9/month for everyone -- even the 60% of consumers who have no interest in watching those games -- rather than permitting consumers to opt out.

But while you can (justly) bitch about it, you can't sue.  The Court of Appeal holds that state law unfair competition claims are preempted by the various federal regulations that govern the cable industry.  So you're stuck paying for something you don't want.

Whenever I think of cable television, I think of manifest market imperfection, and how our antitrust and other laws don't seem to capture whatever's going on here.  Sure, I understand that at least in theory, the cable companies compete with plenty of alternatives:  satellite, broadcast, Netflix, internet, etc.  So, in theory, the cable companies don't have a monopoly, and hence are subject to competitive pressures.

But if that's really true, then why do we see the world as it is?  Why are people as fundamentally unhappy with the cable companies as they are?  Today's example is a perfect example:  Why, in a truly competitive market, would cable companies be able to effectively cram down an expensive service on half its customer base that didn't want it?

The truth is that they couldn't.  These competitors do indeed "compete" at the margins -- and I say this as someone who switched off cable long ago -- but only at the fringe.  For the core population, there's really not a tenable alternative.  So the cable companies can, and do, put the screws to them.  As much as they want.

We love to believe in the power of a competitive marketplace.  I wonder if our belief in this regard is really tenable in a wide variety of contexts.  With cable television being an extraordinarily good example.

Admittedly, in the long run, I think this will all work out.  Cable will die.  And there are tons of people who will dance on its grave.

But in the meantime, people continue to be (effectively) forced to pay for things they manifestly do not want.  In an industry that I'm not at all confident is, in fact, substantially constrained by market -- or legal -- forces.

Witness today's case.

Friday, February 20, 2015

Rodriguez v. Brill (Cal. Ct. App. - Feb. 20, 2015)

Sometimes the pages of the California Appellate Reporter can substitute for a gossip magazine.  Witness this case.

Here's the front-page teaser:

"Brill is an attorney in the Bakersfield area. He and Rodriguez lived together as husband and wife for a number of years. When they separated, Rodriguez filed this action in 2006 against Brill, asserting that Brill promised to support her for the rest of her life and, in exchange, she gave up many opportunities to obtain the education and training she would need to support herself."

Ooh!  Palimony. Against an attorney.  This one.  Plus testimony that you don't normally expect in a palimony action against an attorney.  Like the former partner saying:  "I have been homeless since my ex-husband left me. I stay here and there, and because I grew up in Delano, I went and rented a P.O. box [there]. My daughters are unemployed. They are homeless, too.”

I'm quite confident that there are many sides to the various competing stories here.  And the underlying appeal concerns hypertechnical procedural stuff about terminating discovery sanctions, the applicability of mandatory relief for attorney negligence, etc.

Still, for stuff that's all about procedure, there are definitely some gritty details here.

In the end, it looks like Mr. Brill will have to now actually go to trial and defend his former partner's palimony claim.  Because the Court of Appeal reverses the trial court's denial of relief under CCP 473(b).  So unless there's another procedural debacle in the future -- which is certainly possible -- it looks like Kern County may get an interesting trial sometime soon.

Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (Cal. Ct. App. - Feb. 20, 2015)

Don't you love it when the Court of Appeal clearly summarizes the case -- and holding -- in two sentences at the outset of the opinion?

I know I do.

Justice Rubin starts today's opinion with:

"May the second-place bidder on a public works contract state a cause of action for intentional interference with prospective economic advantage against the winning bidder if the winner was only able to obtain lowest bidder status by illegally paying its workers less than the prevailing wage? We hold that the answer is yes if the plaintiff alleges it was the second lowest bidder and therefore would have otherwise been awarded the contract, because that fact gives rise to a relationship with the public agency that made plaintiff’s award of the contract reasonably probable."

Pretty clear and concise, eh?

Justice Grimes dissents from the court's conclusion.  But I don't think anyone can disagree with the style.  It's a great way to start an opinion.

Thursday, February 19, 2015

Calvo Fisher & Jacob LLP v. Lujan (Cal. Ct. App. - Feb. 19, 2015)

Lawyers can make a lot of money.  They can also spend a lot of money.

All of which happens here.

Which lawyer would you rather be?  You could be David Lujan -- a big-time attorney in Guam -- who (among other things) took a case in which he proved to a jury that his client, Junior, was an heir of Larry Hillbroom, who was one of the founders of DHL Worldwide Express and who disappeared while piloting a plane near Saipan.  That victory won his client over $90 million.  For which Lujan received a contingency fee of roughly 38 percent.

Not bad.  Not bad at all.

So that sounds like a pretty good choice.

But with every silver lining there's a cloud.  Eventually, Junior reaches the age of majority and files a lawsuit against Lujan in California, represented by Girardi Keese, that claims that Lujan conspired with others to fraudulently increase his contingent fee from 38 percent to 56 percent.  That's a big-time suit itself, seeking multiple millions.  Plus Lujan eventually wants to file a defamation suit against Girardi Keese (in Guam) for stuff it allegedly said about him in a press conference, and some additional ancillary litigation as well.

Which means Lujan's going to need a lawyer.

Enter Lujan's attorney friend, Eduardo Calvo.  Also in Guam.  Who agrees to represent Lujan in the various actions.

Not for free.  Not at all.

Calvo ends up billing almost $1.5 million to Lujan.  Who only pays a little over $300,000.  These two former friends talk a ton about the various lawsuits -- pretty much every day -- but also fight a ton about the amount of fees that Lujan's being charged.

Hence the future lawsuit between Calvo and Lujan.  Over fees.

Ultimately, that case goes to trial.  And Calvo wins a little under a million bucks -- the full amount he sought.  Plus another $300,000+ in prejudgment interest.

Not bad.  Not bad at all.

But it gets even better.  Then Calvo files a motion for costs, which is (of course) disputed, but he gets nearly all his costs awarded.  More critically, he also files a motion for fees.  Which he also wins.  To the tune of another $1.5 million-plus.

So choosing being Calvo, rather than Lujan, doesn't sound so bad either.

Mind you, both of 'em end up with tons of money.  But both of them also end up with huge, years-long headaches.  Plus one fewer friend.

But need I remind you that we're talking multiple millions of dollars?

Tough choices.

Wednesday, February 18, 2015

In Re Davis (9th Cir. - Feb. 17, 2015)

I'm not a bankruptcy guy, but I'm nonetheless generally familiar with Chapter 7, as well as Chapter 13, bankruptcies.  Even Chapter 11 (for businesses) rings a bell in my head.  Indeed, I can honestly say that I even know what Chapter 9's about:  municipal bankruptcies.  All of this having never taken the class in law school.

Mind you, I may well have just exhausted in three sentences everything I know about the subject.  But I have still heard of the stuff.

I'll nonetheless forthrightly admit that until I read this opinion, I'd never heard about Chapter 12.  Did not ring even the most subtle of bells.

But now I know.

It's about bankruptcies for farmers.  Presumably giving them an even more favorable break than other types of bankruptcies.

Carolyn Davis gives Chapter 12 a shot in this case after already getting a discharge under Chapter 7.  She's looking for more favorable treatment, but her petition doesn't exactly capture one's heart, since the "family farm" at issue is an 110-acre vineyard in Paso Robles.

The legal problem she has is that her "aggregate debts" exceed the approximately $3.5 million cap that is in Chapter 12.  At least when you count the total amount of her debt that had been previously wiped away under Chapter 7.

So the question for the Ninth Circuit is:  Do those debts count against the cap?

The answer is:  Yes.  Debts are debts.  Even when they've been wiped out in another petition.

So now I know two things about Chapter 12 bankruptcies.

And will almost assuredly die before I know three.

Tuesday, February 17, 2015

Aghaian v. Minassian (Cal. Ct. App. - Feb. 17, 2015)

You'd ordinarily think that a lawsuit between a citizen of Country X and another citizen of Country X regarding the ownership of property in Country X would be decided in . . . Country X.

Particularly when, as here, one of the defendants resides in Country X and isn't subject to jurisdiction in California.  The fact that a California tribunal wouldn't have the power to change the ownership of the disputed property -- located (again) in Country X -- would seem to lock things down.

Our fancy legal name for that is forum non conveniens.  We generally stay or dismiss lawsuits filed in our forum in that situation in favor of alternative litigation in Country X.

Except when Country X is Iran.

The Court of Appeal notes that Iran might look like a regular civil law country.  But it's exceptionally displeased that -- as is undoubtedly the case -- the judiciary in that country is heavily influenced by the position of the government, and probably doesn't like lawsuits by people (as here) who fled Iran after the overthrow of the Shah and are now trying to get that property back.

Plus there's the fact that the plaintiffs here aren't Muslim, and that one of them (gasp!) is a woman.

There's substantial reason to believe that Iranian courts aren't going to like that.  Especially when those tribunals have an express rule that the testimony of a woman is only worth half that of a man.

Iran can, of course, have whatever type of judiciary it'd like.  But when the remedy there amounts to "no remedy at all," we can refuse to dismiss lawsuits on forum non conveniens grounds.

As the Court of Appeal does here.  Reversing the trial court.

In Re Emily D. (Cal. Ct. App. - Feb. 17, 2015)

"On November 7, 2013 the Department received drug testing results for Elizabeth []. Elizabeth had tested positive for methamphetamine (at an extremely high level), amphetamine and marijuana. . . . When confronted with the test results, Elizabeth again denied methamphetamine use but confided to the worker she had been sleeping with a neighbor who used methamphetamine and that her positive test may have resulted from those encounters."

I'm pretty sure that's not how it works.  So is the Court of Appeal.

Monday, February 16, 2015

People v. Braslaw (Cal. Ct. App. - Jan. 30, 2015)

Here's a cautionary tale.  Drinking and sex.

It's also an interesting factual recitation.  Compare the Court of Appeal's opinion with a contemporary newspaper account of the events.  The Court of Appeal uses "Jane Doe" and initials, whereas the more robust newspaper story uses actual names.  The Court of Appeal mentions that the victim "phoned her then finacee, who is now her domestic partner," whereas the newspaper mentions that the victim is "openly gay" and that her then-fiancee was a "police officer in Las Vegas."  Plus the newspaper has a mug shot and more details about the defendant.

I'm not saying anything normative here.  Just describing the factual recitation.

A post-Valentine's Day reminder that reality isn't all love and chocolates.

Thursday, February 12, 2015

People v. Wade (Cal. Ct. App. - Feb. 10, 2015)

The California courts are closed because it's Lincoln's birthday, and the Ninth Circuit (again) has not published anything today.  So it's another lazy California day.  (Thankfully:  It's a sunny 80+ degrees and sunny here in San Diego, and is one of those February days that makes me thankful to be alive -- and in SoCal.)

But just because the California judiciary may be (officially) taking a break doesn't mean I can't tell them that they should take on some extra work.  Which I'll now do:

The California Supreme Court should grant review of this opinion.

I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable.

Justice Kriegler holds that you illegally carry a firearm "on your person" if the gun is in your backpack.  Hence prison time.  But less than two years ago, Justice Mallano (in an unanimous opinion) held that you're not illegally carrying a knife "on your person" if it's in your backpack.

One of those two opinions, in my view, is wrong.  It's the exact same statutory language.  They're both weapons.  It's inconceivable that the Legislature intended that you be allowed to keep a knife in your backpack but not a gun because the former isn't "on your person" but the latter is.

Most importantly, we need to know what we're allowed to keep in our backpacks.  Whether we spent years in prison shouldn't depend upon what panel we happen to draw in the Court of Appeal or which of these two competing decisions the trial court finds most persuasive.

So the California Supreme Court should take the case up and settle the question.

P.S. - The entire dispute also brought a smile to my face because it reminded me of something my father used to say.  He was fond of retelling the same stories over and over again.  (Whether he knew he was retelling the story to the same audience is an unsettled question.)  One of the classic stories he would often recount related to how law often remained unchanged in Virginia, the state in which he lived and practiced law.  He would often note that the law about concealed weapons in Virginia "still comes from a case about whether a gun in a saddlebag counts."  He always thought that was funny.  He was also right:  there was indeed a case in 1909 about whether a pistol in a saddlebag counted as being carried "about his person" under the statute.  An issue similar to the one the California Court of Appeal is now split.

I thought about my father's oft-retold story when I saw that one of the decisions cited by Justice Kriegler was from Virginia, and related to whether a pistol in a handbag counted as being "on one's person" notwithstanding the "saddlebag rule" established by the Virginia Supreme Court long ago.

The more things change . . . .

Wednesday, February 11, 2015

Eddie E. v. Superior Court (Cal. Ct. App. - Feb. 11, 2015)

The trial court repeatedly refuses to make findings that might allow a child to stay in the United States, thinking that he'd be better served if he made "a fresh start" by being deported to Juarez, Mexico.  The Court of Appeal, by contrast, thinks that the minor has turned his life around, including graduating from high school with a 4.0 grade point average, and has a contrary view of the merits.

Needless to say, the trial court loses, and the Court of Appeal wins.

In Re Art T. (Cal. Ct. App. - Feb. 11, 2015)

There are some things I don't know.  Like what it says about our species that we live in a world in which 13-year old children join gangs and kill people in cold blood.  Seriously:  I don't know what to make of this.

But there are some (more limited) things that I do know.  Like when a 13-year old boy being interrogated by the police says "Could I have an attorney?", that's a request for counsel under Miranda.

The Court of Appeal understands that as well.

Tuesday, February 10, 2015

Wilson v. Southern California Edison (Cal. Ct. App. - Feb. 9, 2015)

When I read the first paragraph of this opinion, and noticed that the jury had awarded the plaintiff over $4 million -- including $3 million in punitive damages -- for "allowing uncontrolled stray electrical currents to enter the home" from an electrical substation next door, I thought that this was one of your classic juries who believed that electromagnetic radiation from electrical power lines causes cancer.  A controversial theory, to say that least.

But the case is actually not about something controversial.  There are, in fact, stray electrical currents that can -- and often do -- enter homes from nearby substations.  Currents that can at a minimum be extraordinarily annoying, and potentially worse.

When you read this opinion -- which ends up remanding the case for a new trial (and reversing the award of punitive damages) -- my bet is that you'll think twice before buying a home that has an electrical substation nearby.

And if you'd have thought twice about it already, this one will make you think thrice.

Corbello v. Valli (9th Cir. - Feb. 10, 2015)

"Jersey Boys" = Massive Litigation.

Monday, February 09, 2015

Come Back, Ninth Circuit (9th Cir. - Feb. 2015)

Paul Simon once wrote (and sang):  "Where have you gone, Joe DiMaggio?"  The same might be said for the Ninth Circuit in February 2015.

In the six business days of this month, the Ninth Circuit has written a sum total of one -- count it, one -- published opinion.  Whereas the mass of unpublished opinions continues apace:  50+ and counting.

At this rate, February could be the slowest month in the history of the Ninth Circuit.  Plus don't forget it's only 28 days, and we've got President's Day coming up.

P.S. - Apparently the line about Joe DiMaggio is subject to competing interpretations.  To be clear:  I mean "Where are you?" not "Why do you now stink?"

People v. Cisneros (Cal. Ct. App. - Feb. 9, 2015)

I don't like it when either the defense attorney or the prosecutor screws up.  It's the latter that happens here.

It's a Batson claim that you don't see too often:  a claim that one side used its peremptory challenges to exclude a particular gender; namely, men.  The prosecutor did indeed exclude a lot of men.  When challenged, she came up with a variety of reasons for doing so.  All of which the trial court accepted.

Except for one problem.

With respect to two jurors, all that the prosecutor said was that she preferred the next person in the box.

You can't do that.

By definition, whenever you exclude a juror, you obviously prefer the next person in line.  So that can't count as a sufficient justification.  You've got to give an actual reason why you think that this particular juror is bad for you.  Or at least worse for you.

The prosecutor didn't do that here.  Hence the defendant gets a retrial.

It's not a mistake one should make.  Especially since the defense counsel expressly articulated this exact objection.  At a minimum, having been advised that you've got to do more, the prosecutor should have done so.  She didn't.

At least after this published opinion, hopefully it's not a mistake that will be oft repeated.

Andrew V. v. Superior Court (Cal. Ct. App. - Feb. 9, 2015)

I'm glad the Court of Appeal decided to (belatedly) publish this opinion.  It's important.  I'm also impressed how quickly it resolved the writ petition.  For good reason.

Mother files a motion to move Children to Washington, and Father opposes it.  At the hearing, however, the child custody investigator isn't available to testify, and Father's counsel is also sick, so isn't there.  As a result, the hearing gets continued.

But the trial court nonetheless grants a "temporary" move-away order that lets Mother move Children to Washington in the interim.  Without a full hearing.  Without Father's counsel.  And without staying that order for 30 days as required by California law.

The Court of Appeal grants a peremptory writ and reverses.  You can't do that.

It's also done extraordinarily quickly.  The trial court order was on January 14, 2015.  Father filed his writ on January 20.  The Court of Appeal issues a Palma notice the very same day.  Three days later, the Court of Appeal issues its opinion reversing.  Publishing that previously-unpublished opinion earlier today.

Well done.

The only thing I'll add, however, is that the laudatory speed of the Court of Appeal in reversing the trial court's move-away order was far from matched by the speed of the trial court in adjudicating this order.  Mother got a promotion and was transferred to Washington in early 2014.  She filed her motion for a move-away order in July 2014.  A child custody investigation was ordered in August.  Which took until December 2014 to complete.  Then a hearing is scheduled for January 2015.  Which (as described above) doesn't fully resolve the issue, so the trial court continues the hearing until March 2015.

That's nearly a full year after Mother asks for the move-away order.  So she and the children are forced to stay in California the whole time.

It's clearly important to get these things right.  But it's also important to get these things decided quickly.  For the welfare of the parents as well as the children.  People shouldn't be in limbo for eons.  When (as appears here) there's a seemingly legitimate reason for a move, the court should act as quickly as it can.  Because a delay isn't in anyone's interest.

And if that means appointing more family law judges, or more custody investigators, or getting them (and/or the parties) to do their work a bit faster, so be it.

Good job by a busy Court of Appeal.  Let's hope this practice gets replicated by our busy trial courts.

Friday, February 06, 2015

Ram v. OneWest Bank (Cal. Ct. App. - Feb. 6, 2015)

Here's yet another "wrongful foreclosure" case.  Like so many, many others filed in the wake of the Great Recession.

Its fate is the same as nearly all of them.  Dismissed by the trial court.  Affirmed by the Court of Appeal.

The only wrinkle in this one is that the panel disagrees on precisely why plaintiffs lose.  But everyone agrees they do, indeed, lose.

I'm not exactly sure who's prosecuting these appeals, or the underlying business model, when (as here) the plaintiffs are represented by counsel.  Sure, you can get money from the plaintiffs themselves, but presumably not a lot, since they're people who can't even pay their mortgages.  Of course you can alternatively take a piece of the pie, but as I said, there's pretty much never -- never ever -- any actual pie, so I'm not sure how that works as well.

Maybe you're just a true believer.  Surely there are indeed things about the whole "robosigning" process, and other unique aspects of the whole MERS arrangement, that might make you perceive that things are sleazy and hence that you might potentially prevail at trial.

But I think the judicial attitude in pretty much every single one of these cases (including this one) is basically "Hey, you didn't pay your mortgage, and you lost your home.  That's the way things things work.  You can't file a lawsuit based on 'ticky-tack' violations if you didn't actually pay."

Whether they say so or not.

Thursday, February 05, 2015

People v. Rodriguez (Cal. Ct. App. - Feb. 5, 2015)

Read this opinion (and dissent), which involves a three-strike life sentence for having five tiny bindles of heroin for a guy who's now 59 years old.  He's trying to get resentenced under Prop. 36, and he's eligible to apply because he didn't commit any disqualifying offense.

The trial court, however, refuses to grant him relief.  It thinks he's still "dangerous" because he might commit future crimes upon release.  Even though even the state says that Mr. Rodriguez has been a "model prisoner," it -- and the trial court -- are worried that he might continue to engage in things like petty theft if he's released.  The Court of Appeal affirms.

I'll let the competing opinions speak for themselves.  I'll simply add that I'm fairly confident that the vast majority of the people who voted for Prop. 36 intended that prisoners like Mr. Rodriguez should not be bound to their mandatory 25-to-life sentences.

But maybe I'm just saying that because Mr. Rodriguez's history compares favorably to pretty much every single prisoner in The Shawshank Redemption.

Wednesday, February 04, 2015

National Union Fire. Ins. Co. v. Tokio Marine (Cal. Ct. App. - Feb. 4, 2015)

It's hard to write something timely about Ninth Circuit and California appellate decisions on days like today; e.g., when the Ninth Circuit publishes nothing in February thus far (despite 30+ unpublished opinions) and when the Court of Appeal only publishes a single case (thus far) today.  Slim pickings.

Rather than discussing the merits of today's Court of Appeal opinion by Judge Goodman (sitting by designation from L.A.), I thought I'd just mention that I was struck by the caption.  The title of the case is National Union Fire Ins. Co. v. Tokio Marine.  A fight between two insurance companies.

What's neat about that is that I happen to recall that there's a famous Second Circuit case with that exact same name -- a leading appellate case about reformation -- way back in 1937.

So these two entities (or their predecessors) have literally been fighting since before World War II.

Different case, of course.  But a memorable name.

Tuesday, February 03, 2015

People v. Alexander (Cal. Ct. App. - Jan. 16, 2015)

There's only one published opinion today.  It's about whether the California Department of Resources Recycling and Recovery has the authority to enforce the Architectural Paint Recovery Program.

So ahead and read that one if you'd like.  Or, alternatively, you can watch paint dry.

For a slightly more exciting case, you could instead read an opinion from a couple of weeks ago that amply demonstrates that clients are sometimes their own worst enemy.

Monday, February 02, 2015

Ashlan Park Center v. Crow (Cal. Ct. App. - Feb. 2, 2015)

If this case had come out any other way, I'd have fallen on the floor in disbelief.

The Court of Appeal holds that when a corporation (or corporations) own a shopping center and the economy turns south, that does not constitute "reasonable cause and circumstances beyond [their] control" for not timely paying property taxes.  Hence there's no waiver of statutory penalties.


This lawsuit had no probability of success from the get-go.

Friday, January 30, 2015

Jackson v. AEG Live (Cal. Ct. App. - Jan. 30, 2015)

Fittingly, the published opinions for January end with what's likely the highest-value appeal of the month (and perhaps the year):  Katherine Jackson's appeal seeking to hold AEG Live accountable for Michael Jackson's death.

The trial court granted summary judgment for the defendant on various claims, and then at trial, the jury found against Ms. Jackson.  The trial court did not disturb the verdict.

Today, the Court of Appeal affirms.

I'm sure that Ms. Jackson can afford to make an effort to get the California Supreme Court to review the case.

But it won't work.  This one's over.

Wright v. State of California (Cal. Ct. App. - Jan. 30, 2015)

There are actually people (e.g., guards) who voluntarily elect to pay market rates to live on the grounds of San Quentin prison?!

Interesting lifestyle choice.

I bet it makes for a fascinating conversation if you ever meet someone in a bar and take 'em home for the evening.

Thursday, January 29, 2015

People v. Ramirez (Cal. Ct. App. - Jan. 28, 2015)

There's the old saying that you shouldn't bring a knife to a gunfight.  But what about a fistfight?  It's obvious you should bring your fists.  But what about a gun?  Just in case?

What about if it's definitely going to be a fistfight and maybe going to be a gunfight?  What do you do about that?

It's tough to translate aphorisms into modern day legal advice.  It's even tougher when the Court of Appeal has to figure out what the actual law is in this area.  Or, worse, what the jury instructions in such cases should say.

Witness this opinion.

The majority and the dissent disagree about both what to do in situations like this one as well as what exactly transpired here.  Was the jury properly instructed?  Was it confused?  Did the prosecutor mess things up by misstating the law during closing?

Everyone agrees that you can bring a gun to a fistfight as long as you don't use it.  (Or at least that it's not murder, since no one's dead.)  Everyone also agrees that you can't start a fistfight, while bringing a gun, hoping that the other side will then pull a gun and thereby enable you to shoot 'em.

But the majority here says that the relevant CALCRIM instructions here didn't accurately tell the jury (particularly in light of what the prosecutor said during closing) what to do if you elect to bring a gun to a fistfight that you start just in case -- but not hoping -- that the other side has a gun, and then you end up shooting the guy because you thought he had a gun.  Self-defense?  Imperfect self-defense?  A straightforward case of murder, since you're the one who started the fight and brought the gun?

The safe bet, of course, is to leave the gun at home.  Ditto for the fists, for that matter.

But we don't live in a perfect world.

Hence the need for opinions -- and the resulting disputes -- like this one.

Johnson v. Dept of Justice (Cal. Supreme Ct. - Jan. 29, 2015)

Why does today's opinion by the California Supreme Court, which overrules the Court's eight-year old Equal Protection decision in Hofsheier, remind me of the old Gilda Radner skit.

Wednesday, January 28, 2015

Harb v. City of Bakersfield (Cal. Ct. App. - Jan. 23, 2015)

It's yet another drunk driver.  Routine.

The guy loses control of his car and drives onto the sidewalk.  He's slurring his words, as usual.  He leaves the wrecked car and takes a pee in the bushes.  He's disoriented and pukes.  He tries to get back in his car as the police arrive.

The guy's wasted and it's barely 7:00 p.m.  Pathetic.

So the police officers try to cuff him, at which point the guy resists.  Takes three officers to get control of him.

As usual, an ambulance arrives, but even though the guy had a tiny bump on his head (probably from the struggle), the paramedics quickly depart.  Just another drunk.  We'll take him downtown, book him, and let him sleep it off.

It's a little surprising that the guy blows a .00.  But that just means he's on drugs, not alcohol.

Just another pre-Thanksgiving blowout in Kern County, right?

Except for one thing.  The guy's not drunk.  He's not on drugs, either.

He's having a stroke.


The guy now wears diapers and has to have someone cut his food for him.  Needless to say, there's a lawsuit.

Needless to say, the police probably wish they'd have treated this one a little less like it was routine.

People v. Mackey (Cal. Ct. App. - Jan. 14, 2015)

If you want a detailed description into the seedy underbelly of Oakland, take a look at this.

It's like a movie.  A dark, depressing, ultra-violent movie.

Tuesday, January 27, 2015

Greenwell v. Auto-Owners Ins. Co. (Cal. Ct. App. - Jan. 27, 2015)

In my two decades of being a law professor, I've graded more than a couple of civil procedure exams in which the essay was about personal jurisdiction.  Like, literally, thousands.

Justice Robie begins this opinion by noting that the stuff we do in law school isn't necessarily all that far off from what happens in the real world. He says:

"This case goes to show that sometimes life can be like an essay question on a law school exam. Here, a California resident owned an apartment building in Arkansas that was insured by a Michigan insurance company under a policy the owner obtained through an insurance agent in Arkansas. That policy included commercial property coverage for the Arkansas apartment building and commercial general liability coverage for the owner’s property ownership business, which he operated from California. Other than writing this policy, the insurer did no business in California.

Both the commercial property coverage and the commercial general liability coverage in the policy covered some risks, losses, or damages that could have arisen in California, but the dispute at issue here arose out of two fires that damaged the building in Arkansas. Initially, the insurer agreed to treat the two fires as separate losses but later reversed its position and took the position that both incidents were subject to only a single policy limit payment. As a result, the owner sued the insurer in a California state court for breach of contract and bad faith.

Here is the question: Under the foregoing circumstances, did the insurer have sufficient minimum contacts with California to allow the state court to exercise personal jurisdiction over the company in this action?"

That's a darn good hypothetical.  And the Court of Appeal answers:  "No."

Justice Robie's opinion is very cogent.  I'd be exceptionally psyched if I saw something like this submitted by a student in a law school exam.

Admittedly, Justice Robie (and his chambers) got to read briefs on the issue, and then had much longer to pen an answer than in your normal law school in-class (or even take-home) exam.

But, still, it's very good.

Of course, even very good things aren't perfect.  If a student submitted this as their essay answer, I might give 'em a couple of tiny suggestions.  For example, the opinion plods along in places, and could probably be five pages shorter without any loss of substantive content.  Another minor point:  on pages five and six, the author forgets that the Due Process Clause should be capitalized.

But substantively, the opinion reads well, and correctly focuses on the "nexus" requirement for specific personal jurisdiction:  The cause of action has to arise out of the defendant's contacts with the forum state.  That's the weak part of plaintiff's claim, and why the Court of Appeal holds that it ultimately fails.  Yeah, the defendant did business in California.  But the cause of action "really" arose out from acts in Arkansas, not California.

The only substantive part of the answer that I thought was relatively weak was the claim that the fact that the witnesses were mostly in Arkansas reaffirmed the lack of nexus.  The location of the witnesses is indeed a fact that's relevant to personal jurisdiction.  But only to the "fairness" prong, not the existence (or lack thereof) of minimum contacts in the first place.  Even if all of the witnesses to the Arkansas fire were in California -- e.g., viewing the thing on closed-circuit television -- and all of the debris transported here, the answer would be the same.  Witnesses are relevant to prong three, not prong two.

Apart from these minor changes, though, I'd have told my student that it was an outstanding answer.  They'd definitely get an A.

Probably even make law review.

POSTSCRIPT - Extraordinarily reliable sources tell me (and I've confirmed) that the California Style Manual says to capitalize things like "Constitution," "Bill of Rights," "Social Security," basically every statute known to man (e.g., the Civil Mediation Act and Usury Law), but, apparently, not the Due Process Clause.  I'll leave my normative comments about this scheme to myself.  But now I might have to bump Justice Robie's grade up a bit.  'Cause when you know something your professor doesn't; well, seems to me that's the definition of an A+.

Monday, January 26, 2015

In Re Hokulani Square (9th Cir. - Jan. 26, 2015)

Sometimes the Ninth Circuit is required to answer seemingly esoteric questions.  Like:

What is "money"?

Clearly, money is money.  But what about things like money?  Or in lieu thereof?

This matters here because trustees of bankruptcy estates can get compensated based, pursuant to 11 U.S.C. § 326(a), on a percentage of "moneys disbursed or turned over in the case by the trustee to parties in interest."  That's not a problem when, say, the trustee gives $1,000,000 to a creditor.

But what about when the trustee gives a house worth $1,000,000 to a creditor?

Seems like the practical effect is the same.  But is the house "moneys"?

This happens more than you might think.  Particularly with respect to creditors bids.  Let's say a bank lends a guy $1,000,000 to buy a condo, then the dude goes bankrupt.  The trustee then auctions off the property.  Lots of times -- particularly in the modern "underwater real estate" era -- the bank is the one who ends up with the condo at the auction, by making a bid that's not "real" money but instead is the value of its loan.

Does the trustee get compensated based on the value of the condo?  Or does that not count at all?

Not counting the house (and/or credit bid) as "moneys" might have absurd consequences.  For example, if the bank wins the credit bid with its $1,000,000 loan, then the trustee gets nothing.  But if the trustee does the exact same amount of work, and someone outbids the bank by a single dollar (i.e., pays $1,000,001 for the condo), the trustee potentially gets paid a percentage of the whole $1,000,001, which seems crazy.  Similarly, if the bank bids $1,000,000, and actually pays $1,000,000, but then gets back its $1,000,000 because it has a loan of $1,000,000, the trustee again might get a portion of the million, even though he'd get absolutely nothing if the bank "shorthanded" this process by simply making a credit bid.

Judge Kozinski nonetheless holds that's what the statute requires.  Because it's "plain" and "clear" and "unambiguous" that money just means money, not property.

But I wonder.

Judge Kozinski starts out by quoting the definition of "money" in the Third International Dictionary: "something generally accepted as a medium of exchange, measure of value, or means of payment."  I get that.  But doesn't property qualify under this very definition?  If Judge Kozinski goes out to dinner and leaves his wallet at home, I'm quite confident the restaurant will take his house -- and/or his watch -- in lieu of cash.  Doesn't that mean that property (both real and personal) is a generally accepted "medium of exchange, measure of value, or means of payment;" indeed, all three?

Plus, the very definition that Judge Kozinski cites goes on to qualify its meaning by saying that "something generally accepted as a medium of exchange, measure of value, or means of payment" includes not only "paper money" and coins but also "money of account".  Property might potentially qualify there as well.

I'm ultimately just not persuaded that the word "money" is nearly as clear as Judge Kozinski would read it.  So I might delve more deeply into -- and care more rigorously about -- the policy results that might follow from defining money more narrowly.  Particularly if I think that Congress would not have wanted trustees to be artificially compensated by cash exchanges over economically identical (but noncash) transactions.

I also think that "money" (or, more accurately, "moneys") means different things in different contexts.  Were someone to say at a restaurant that he didn't have any "money," I agree that I'd interpret that to mean that he doesn't have any cash.  (I am not sure I'd say the same thing were he to say that he didn't have any "moneys," but I'd have to think about that more.)

By contrast, were a robber to come up to me and say "Your money or your life," and I were to have in my wallet a stack of bills plus a gold ingot worth $1,000, I would not at all think that the person was only asking for my cash.  Nor would I be at all surprised if he shot me were he to discover that I had retained the ingot in reliance upon his purportedly "clear" instruction that I only give him my paper bills.

Whole books have been written about "What is money?"  I think those texts might be a lot shorter if the answer was as crystal clear as the Ninth Circuit takes it to be.

Cortez v. Skol (9th Cir. - Jan. 26, 2015)

Judge Friedland seems right here.  When prison policy says not to walk three hostile, half-chained, high-security inmates by yourself through "no man's land" where there are no cameras and no backup, a jury might find that it's indeed unreasonable to do so.  Which means that when you nonetheless elect to do so because you're "busy", and two of the prisoners brutally attack and stomp on the head of the handcuffed third until he suffers serious brain injuries, that same jury might perhaps find you liable.

Thursday, January 22, 2015

In Re Wilson (Cal. Ct. App. - Jan. 22, 2015)

It's not just teenagers whose parents neglect and/or abandon them who turn to serious crime:

Wilson was born on September 7, 1977. He lived with his parents and two younger siblings in Inglewood, and then later in south central Los Angeles.

According to Wilson and his mother, his family life was very structured; his parents were overprotective and were strict disciplinarians. Wilson’s mother chose his friends, rarely allowed him to watch television, and would not let him play outside with other neighborhood children. He was not allowed to spend the night at a friend’s home. Until he was in high school, Wilson attended Los Angeles Christian School, where his mother worked. . . .

Wilson felt isolated and resentful because of the restrictions placed on him by his parents. He claimed that he was teased in the neighborhood for attending a charter school and because he wore a school uniform. Wilson began going out at night without his parents’ knowledge, and fought with his parents when they attempted to control his actions. . . .

Wilson began having behavioral problems at his school. His parents decided to send him to a public high school. He initially attended El Camino Real Charter High School in the San Fernando Valley. By his early teens, Wilson began using marijuana and alcohol on a regular basis. Wilson was truant from school. He associated with older males in his neighborhood who had made money by selling drugs and committing crimes. His parents would lock him out of the house for violating the house rules.

In ninth grade Wilson was expelled from El Camino Real Charter High School for fighting. Wilson’s mother enrolled him at Washington High School in Los Angeles. She later discovered that Wilson was not attending classes at Washington High School.

Wilson ran away to his paternal aunt’s house, after his mother found drug paraphernalia in his clothing. Wilson moved back and forth between his parents’ home and various relatives for a number of months. After one of Wilson’s friends was involved in a shooting, his mother sent him to Arizona to stay with another maternal aunt. Wilson soon found himself in trouble with his aunt for skipping school so he returned to Los Angeles. Wilson emulated the lifestyle of his friends who sold and abused drugs, consumed alcohol and did not attend school. At age 15, he joined the East Coast Crips gang and became involved in gang activity."

Needless to say, this does not end well.  In 1996, Derrick Wilson gets convicted of first-degree felony murder and attempted murder and sentenced to LWOP for a crime he committed when he was 17.

Today the Court of Appeal grants him habeas relief and a chance to be resentenced based upon the subsequent decisions of the Supreme Court about LWOP sentences for minors and the Eighth Amendment.

We'll see if Mr. Wilson takes advantage of his opportunity better than he took advantage of his parents' attempts to have him grow up a normal teenager.

Wednesday, January 21, 2015

Mosser Companies v. San Francisco Rent & Stabilization Bd. (Cal. Ct. App. - Jan. 21, 2015)

Parents move into a rent-controlled apartment in San Francisco and pay $1,495 a month.  They've got (inter alia) a 13-year old child.  Everyone lives together in harmony.

Years go by.  The rent can legally only go up a little bit, so it's now $1,680 a month.  Way below the market rent, which is double that.

The parents are older.  So is the 13-year old.  State law says that you can't raise the rent to market rates until the original "the original occupant or occupants who took possession of the the dwelling or unit . . . no longer permanently reside there."  The only people on the lease are Parents.

Eventually, Parents (who are now older) move out, but Child -- who's now 23 -- stays.

Can Landlord raise the rent?

The Court of Appeal says:  No.

Child was an original (lawful) occupant.  Even though the lease was with Parents, Child can stay in the rent-controlled apartment, at rent-controlled rates, even after Parents leave.

People v. Camp (Cal. Ct. App. - Jan. 21, 2015)

Hugo Camp gets charged with, and pleads guilty to, a theft offense, and gets ordered to serve 14 months in jail and, thereafter, 14 months of "mandatory supervision" by the probation office.  The probation office then notices that there's an immigration hold on the guy, and he's scheduled to be deported to South Africa.  Hard to supervise a guy there.  So the probation office, the trial court, and the defendant say it doesn't make sense to do the second 14 month stint, so let's just deport the guy immediately.  The People say whatever the trial court decides is fine.

So the trial court enters an order that keeps the 14 months in jail but then let's the guy get deported.

The People then appeal.  Saying that, no, the trial court should have been compelled to put the guy in jail for 28 months; that it wasn't allowed to remove supervision even though the guy will be sent away to another continent.

I'll let you read what Justice Aaron -- who's fine with what the trial court did -- says about this, and contrast it to what Justice O'Rourke (who's not okay with it) says about it in his dissent.

I'll just add one other, nonlegal, point.

I'm not sure why the San Diego District Attorney's Office has such a (belated) interest in not letting this guy get deported ASAP.  Yes, I'm sure he did something wrong, and needs to be punished.  But if you were fine with putting the guy in jail for 14 months and then getting "supervision" for the next 14 months in the community, I'm not sure why you're all of the sudden unhappy with the guy being in jail for 14 months and then getting immediately deported.

Seems like the latter thing is good for everyone -- or at least everyone in the U.S.  Costs less money.  Stops him from committing more crimes here.  Gets him, in short, out of our hair.

As between 14 months of probation and immediate deportation, doesn't the latter seem the better policy?

Tuesday, January 20, 2015

Omega S.A. v. Costco Wholesale (9th Cir. - Jan. 20, 2015)

It took the Ninth Circuit over a year after oral argument to publish its opinion in this one.  But here you go.

As is usual with my speculation, I may well be entirely off base.  But read Judge Wardlaw's concurrence and see if you don't think -- as I do -- that it reads like it started out as a bench memorandum for the panel and turned into a concurrence only after Judges Nelson and Rawlinson wanted to resolve the case on other grounds.

It's also an opinion worth reading for two other reasons.  First, it's unusual (to say the least) that a panel decides the case on the basis of an argument that (as Judge Wardlaw claims) the parties did not brief and that the winning party expressly disavowed at oral argument.  Mind you, there was an intervening Supreme Court decision that was exceptionally relevant.  But still.

Second, Judge Wardlaw's concurrence is all about a neat little issue that I hadn't previously seen in the Ninth Circuit (though the Supreme Court took a related issue up) -- whether a party can stamp something on a product (here, fancy Omega watches), claim that this stamp is a "copyright," and then use that copyright to stop entities like Costco from selling gray market products; e.g., brand name watches that it bought cheaply in another country to sell here.  She says that you can't.  The majority, by contrast, resolves the case on a different ground.

Neat stuff.  Even if it took quite a while in coming.  (You'll also notice that the district court number in the caption begins with "04".  So this one's been around for more than a little bit.)

People v. Givan (Cal. Ct. App. - Jan. 20, 2015)

When you're driving with a .17 (-plus) BAC at 8:00 a.m., plus have some weed in your system -- and run a red light and kill someone, you're going to get 25-plus to life.  Or at least you will if you have five prior felonies.

And the Court of Appeal will affirm.

Friday, January 16, 2015

State Ready Mix v. Moffat & Nichol (Cal. Ct. App. - Jan. 8, 2015)

Justice Yegan begins this opinion by saying:  "Mixing concrete, like baking a cake, is fraught with problems when the recipe is not followed."

True enough.  The major difference being that when you screw up a cake, you simply throw it away, whereas when you botch the concrete, you have to rebuild the whole freaking pier.

Or worse.

Justice Yegan holds that the mistake here was entirely the fault of State Ready Mix, Inc.  Which seems right.  Pretty important to get this stuff right, I might add.

People v. Mulcrevy (Cal. Ct. App. - Jan. 15, 2015)

When smoking marijuana apparently isn't enough for you, you can graduate to hash oil (sometimes called "honey oil"), which is incredibly concentrated marijuana.

The trial court in this case held that the Compassionate Use Act doesn't apply to concentrated marijuana.  The California Attorney General confessed error, and the Court of Appeal reverses.

Presumably making this guy (among others) incredibly happy:

P.S. -  The name of the defendant in this case is Sean Patrick M.  Scarily close to my own name of Shaun Patrick M.  Let's hope I don't feel the need to hit a hash oil pipe any time soon.