Friday, January 19, 2018

Estate of Kerkorian (Cal. Ct. App. - Jan. 19, 2018)

You see in today's opinion a story of what is unquestionably true love:

"Two days before the wedding, [Kirk] Kerkorian gave . . . (Mandekic) $10 million with written instructions to give the money to petitioner upon their marriage “as a transfer from [Kerkorian] to [petitioner] outside of [Kerkorian’s] estate and . . . in place of any transfer to [petitioner] that [Kerkorian] might make upon [his] death.” The day before the wedding, petitioner signed a “Waiver of Marital Rights” (the waiver) in which she relinquished any right to receive assets of Kerkorian’s estate through intestate succession, under Kerkorian’s will, or as an omitted spouse pursuant to statute. Mandekic then transferred $10 million to petitioner as directed. . . .

Petitioner and Kerkorian separated roughly two months later. Kerkorian died just over a year thereafter, in June 2015. His will was admitted to probate, and Mandekic was qualified to serve as executor of the estate. The July 2013 will is not part of the record on appeal, but it is undisputed the will (1) does not mention petitioner, (2) provides approximately $40 million in specific bequests to several individuals, including Mandekic (whose bequest has already been distributed), and (3) gives the remainder of Kerkorian’s estate, valued at approximately $2 billion, to unidentified charitable organizations to be selected by a committee appointed in the will."

Needless to say, Kerkorian's former wife -- Una Davis -- now seeks a huge chunk of the $2 billion as an omitted spouse.

The $10 million payment right after the wedding.  The prenup signed the day before.  The separation months after the marriage.  A demand for huge amounts after the former spouse dies.

Modern romance.

Thursday, January 18, 2018

Wishnev v. Northwestern Mut. Life Ins. Co. (9th Cir. - Jan. 18, 2018)

Am I wrong, or does it seem like the Ninth Circuit has been certifying more and more questions to state supreme courts over the past half-dozen years or so?

The Ninth Circuit certifies today yet another question to the California Supreme Court.  This one is about usury and permissible interest rates (in particular, compound interest).

I assume the California Supreme Court will take the thing and decide it.  Though I wonder what the informal "cap" would be on how much work a state supreme court would do for the Ninth Circuit before it stopped doing stuff for 'em.  Five cases a year?  Ten?

If I was more rigorous, I'd actually run the numbers and see if my intuition is correct that there's been a slight uptick in certification in the Ninth Circuit.

But I'm sick.  And lazy.  At least today.

So I'll just speculate.

Ah, the joys of academia.

Wednesday, January 17, 2018

ESP LERP v. Gascon (9th Cir. - Jan. 17, 2018)

When the name of the plaintiff on the caption is "Erotic Service Provider Legal Education and Research Project," you're pretty much required to read the underlying opinion, right?

Of course you are.  If only to figure out what the heck that organization does.

Here, it's a constitutional challenge to California's law against prostitution.  Plaintiffs say that have a constitutional right to do what they want (sexually, at least) with their bodies -- even for money.  The district court dismissed on the pleadings.

Not surprisingly, the Ninth Circuit unanimously affirms.

This was a lost cause from the beginning.  Sure, Lawrence opened up a lot of things to potential challenge on the sex front.  But prostitution was carved out even in that opinion.  So there was little doubt -- notwithstanding the substantial amici involvement in the case -- where this one was going to end up.

Which is not to say that plaintiffs will never prevail.  Who knows what the next decade or so (or decades) will bring?  Few would have predicted, for example, that gay marriage would end up where it is now so quickly.

But at least for now, this is an idea whose time has not yet come.  At least in the judiciary.

And it isn't even especially close.

Tuesday, January 16, 2018

Galiea LLC v. AGCS Marine Ins. Co. (9th Cir. - Jan. 16, 2018)

I've never been a scholar of Plato.  I've read the guy, sure.  But not a ton.  Nonetheless, I recognize the guy's a stud.  Name all the people you know from 2000 years ago.  Yeah.  Thought so.  When you're in a group of a dozen or so people, that's a pretty significant accomplishment.

So when the guy speaks, I listen.

Judge Berzon begins her opinion today with a quote from the guy.  And it's surely an appropriate quote for the context -- an insurance policy that covered a yacht that wrecked in Panama.  She says:

"“The sea, although an agreeable, is a dangerous companion,” wrote Plato more than two millennia ago."

Cool.  Never read that one before.  Awesome.

But I have a question.  One that may admittedly demonstrate my ignorance.  Lest that should ever stop me.

Doesn't that middle clause have to have a noun in it?

It's not that Judge Berzon gets the quote wrong.  Everything I've seen recites the passage the same way.

But "agreeable" is an adjective, right?

So I could see the sentence reading:  "The sea, although agreeable, is a dangerous companion."  Or, "The sea, though an agreeable one, is a dangerous companion."  Or even "The sea is an agreeable, although dangerous, companion."  Those all make sense to me.

But "The sea, although an agreeable, is a dangerous companion" just strikes me as sounding strange. I'm trying but failing to come up with an analogy; a different sentence that describes an X as being "an [adjective]" in a subordinate clause followed by an adjective/noun combination.  I'm sure that one probably exists; I just can't come up with one.  And it sounds weird.

None of this, of course, is Plato's fault.  He wrote in Greek.  I'm sure it makes total sense in the original.

The translation just strikes me as a bit off.  Or at least unusual.  Maybe that's the point?

Anyway, you can read the whole opinion if you'd like.  Though I'll warn you at the outset that spending some time pondering Plato may be slightly more enthralling than deciding whether arbitration provisions in maritime insurance policies are enforceable despite law in the forum state that precludes its application pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1012 (which shields state insurance laws from federal preemption) and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1–16 (which provides for enforcement of arbitration provisions in maritime contracts).

But, hey, that's the dispositive issue here.  So that's what the court decides.

Friday, January 12, 2018

Cook v. Harding (9th Cir. - Jan. 12, 2018)

Today's Ninth Circuit opinion is a dream read for civil procedure/federal courts scholars.  It's all about Younger abstention and issue preclusion.  And, as an added bonus, these issues arise in the context of a constitutional challenge to California Family Code Section 7962, which codified the preexisting California cases that found gestational surrogacy contracts enforceable.  Fascinating.

Though I readily concede that "fascinating" may be an overstatement for those less enthralled by federal procedural minutia.

Thursday, January 11, 2018

Murray Dental Corp. v. Dentsply Int'l (Cal. Ct. App. - Jan. 10, 2018)

The next time someone tells you that class actions are unfair because they're judicial blackmail, too risky for defendants to take to trial, coerce settlement even when the action is meritless, impossible to try, etc. etc., have them read this opinion.  (And, yes, Judges Easterbrook, Friendly, and Posner, I'm talking, inter alia, to you.)

It's a case that was filed in 2004, and has been up and down in the Court of Appeal since then.  It's a class action against a particular (very expensive) dental machine, which the plaintiffs say isn't up to snuff because defendants market it as good for "[p]eriodontal debridement for all types of periodontal diseases" (e.g., oral surgery) but in fact doesn't work for that since it accumulates biofilm and hence can't deliver the required sterile water.

The case goes on forever.  Thirteen years.  Gets certified and everything (though even that requires a trip in the Court of Appeal).  But never settles.  Actually goes to trial; a month-long one, even.

One in which the defendants prevail.  And the Court of Appeal affirms.

A definite bummer for the plaintiff class and -- especially -- their attorneys, to be sure.  All that work (and expense) for literally less than nothing.  Plus a cost award (e.g., insult to injury) in the final lines of the Court of Appeal's opinion.  Ouch.

But proof positive that cases can be tried.  And lost.  Even class actions that might facially seem non-trivially good ones.

Wednesday, January 10, 2018

U.S. v. Hullen (9th Cir. - Jan. 10, 2018)

Andrew Hulen failed to register as a sex offender, so he was sentenced to a year in federal prison.  He did his time and got out.  After he was out, he had a five year term of supervised release, and was required to undergo sex offender treatment.  Which he did.

Two months into that treatment, however, he volunteered to his treatment provider that "he was not doing all he could to progress in treatment."  Clearly, he felt bad about that.  "Hulen’s provider told him to write down everything he had done in violation of his treatment program, which he did."  The resulting list was pretty long; he was sexting, having contact with (presumably adult) women, going to bars, etc.  Things he definitely shouldn't be doing.

So, on the basis of Hulen's forthright admissions, his provider promptly terminated Hulen and tturned over his list to his probation officer.  Who in turn revoked Hulen's supervised release, and Hulen was forced to spend another six months in prison.

Hulen says that this violated his Fifth Amendment right to remain silent, because he was required to be truthful in his treatment program, and he was, and that's precisely what got him in trouble.  But the Ninth Circuit holds that the Fifth Amendment doesn't apply to revocations of supervised release.  So there.

Okay.  That's the way we view things, apparently.  It is what it is.

But I will say this.  If that's the law, and I'm Hulen, I'm definitely going to start lying to my treatment provider (e.g., my doctor).  Every.  Single.  Day.  I'm not going to feel bad about the stuff I'm doing; or, at least, I'm not going to tell him about that stuff in an attempt to get better.  Because, apparently, rather than try to help me, he's just going to get me thrown back in prison.  And, after today, he can clearly do that, and I'm utterly without recourse.

And if I'm anyone advising Hulen (e.g., his lawyer), I'm going to make darn sure to tell him that this is the law.  Because I don't want him thinking, even for a second, that he can be honest with the guy who's trying to make him better. 

Friends of Animals v. U.S. Fish & Wildlife Svc. (9th Cir. - Jan. 10, 2018)

What Judge O'Scannlain says in today's opinion seems right to me.  The U.S. Fish & Wildlife Service decided that in order to protect one very critically threatened species -- the northern spotted owl -- it might make sense to reduce the population of another (fairly common) species, the barred owl.  Barred owls, as it turns out, are fairly aggressive, and have migrated from their usual range in the eastern United States to compete with northern spotted owls out here in the West.  To the substantial detriment of the latter.

Or so it seems.  The U.S. Fish & Wildlife Service decided that it'd go to particular areas and whack some barred owls to see if that helped out the northern spotted owls there.  Which, my sense is, it probably will:  "Barred owls’ diets can overlap with spotted owls’ by as much as 76%, and the more aggressive barred owl may displace spotted owls and may even physically attack them."

Judge O'Scannlain says there's nothing illegal about that.  Which seems right to me.

The only thing that sort of miffed me about the opinion was the language.  Throughout the opinion -- a couple dozen times or so -- the Ninth Circuit says that the issue is whether the U.S. Fish & Wildlife Service is permitted to "take" the barred owls.  Only in a footnote (or in isolated quotes) does the opinion say what we all know this really means.  As the footnote explains:  "“To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995). As the Service acknowledges, the “vast majority of take” at issue in this case consists of “intentional, lethal take of barred owls.”"

Look, I know the relevant statutes say "take", and it's nice that Judge O'Scannlain drops a note to recognize that he's aware what this really means.  But whereas Congress may prefer euphemisms, I prefer letting the reader know straight out what we're talking about.  Can we kill thousands of one type of owl to potentially help out another?

I think the answer is yes.  But I also wouldn't shy away from using the more meaningful word.

Because that's what's at stake.

Monday, January 08, 2018

People v. Arter (App. Div. Yolo - Jan. 5, 2018)

It's a minor point, to be sure.  And I don't at all expect perfection from opinions by the Appellate Division of the Superior Court -- in this case, from Yolo County.

But, as a general matter, there's no reason to include stuff in a published opinion that's unnecessary as well as routine.  For example, the following three paragraphs of the opinion:

"Defendant filed an opening brief.

The People filed a respondent’s brief.

Defendant filed a reply brief."

Okay, that's great.  I'm glad everyone filed briefs.  But we probably expected as much.  No need to kill trees (or pixels) pointing it out.

There's some minor other stuff as well.  Some bluebooking errors; for example, on page 7, the citation to "(Birchfield v. North Dakota ____U.S._____, 136 S. Ct. 2160.)" needs a year.  And there's a crazy blank box of some sort on page 8; not sure what that's about.

But, again, nobody's perfect.  I appreciate the opinion.  Boating while intoxicated is a problem.  Glad to see the panel make the extra effort involved to publish the opinion.

POSTSCRIPT - A couple hours after my post, they reposted the opinion to the "correct" version -- one that (thankfully) gets rid of that annoying box.  Still doesn't have a year for Birchfield though.

Thursday, January 04, 2018

People v. Tua (Cal. Ct. App. - Jan. 4, 2018)

The first paragraph of today's opinion begins by saying:

"A jury convicted Roland Isaac Seau of the crimes of murder in the first degree in the death of Louiegie Bermas with the personal use of a deadly weapon; the willful, deliberate, and premeditated attempted murder of Randy Lozano; assault with a deadly weapon on Lozano with the personal use of a knife and personal infliction of great bodily injury; and dissuading a witness, Vanessa Rivera. The jury found that each crime was committed for the benefit of a criminal street gang. In a bifurcated proceeding, Seau admitted two prison priors, a strike prior, and a serious felony prior." (citations omitted)

Well, now, that's a pretty solid batch of charges.  Indeed, you can't get much more solid than that.  I would expect some heavy, heavy time.

Which is exactly what Mr. Seau receives:  102 years to life.

His friend, Mr. Tua, gets sentenced to 75 years to life.  But, again, these are darn serious convictions.  Probably not helped by the fact that Mr. Tua has a tattoo on the left side of his neck that says "Fuck a Snitch."

The crimes here also reflect the somewhat random -- and harsh -- nature of life on the relevant streets.  The person who's stabbed and almost dies is a guy who was a gang member from Fallbrook who made the mistake of moving to Oceanside.  Even though he was friends with everyone there, and didn't seem to make enemies with anyone, he still randomly suffers his fate.

It's even worse (obviously) for the guy who was killed.  As far as I can tell, he didn't do anything.  At all.  He's not even in a gang.  He was just a guy with a slight build who was friends with the other guy.  A fact that got him killed.

What a harsh world in which to live.

Wednesday, January 03, 2018

Arave v. Merrill Lynch (Cal. Ct. App. - Jan. 2, 2018)

One of the annyong things about practicing in the Ninth Circuit is its issuance of short, unpublished memorandum dispositions.  I understand why they do them; there are too many cases to resolve all of them in lengthy published opinions.  So you need to short circuit some -- indeed, perhaps most -- of them.

Still, if you're a lawyer for one of the sides, and you've spent hundreds of hours pouring out your detailed arguments in 50-page appellate briefs, it's incredibly distressing to get back a two- or three-page opinion back that engages with none of these arguments and simply gives you a conclusion.  I found that prospect distressing even when I was (long ago) clerking on the Ninth Circuit, and for that reason always wanted to go through the extra (albeit unnecessary) effort of drafting comprehensive opinions even if they were going to be unpublished.  I find the prospect even more distressing now that I'm on the receiving end of those opinions.  Again:  I understand why they're done.  But they're still no fun.

Which is, in part, why I really appreciated the first published opinion in 2018 from the California Court of Appeal.  It's an incredibly fact-intensive opinion about a particular discrimination case -- a case in which there was a five-week trial.  And the Court of Appeal goes through every argument that's raised in excruciating detail.  Justice Slough's opinion is 94 (!) pages.  It may not resolve the issues in the manner preferred by the losing party.  But the justices undeniably took their jobs very seriously, and went through their assigned tasks point-by-point.  In detail.

You can't argue with that.

It's a nice start to a new year to see something that's so obviously diligent.  Gives one hope.

Tuesday, January 02, 2018

People v. Shaw (Cal. Ct. App. - Dec. 7, 2017)

The holidays are over.  Sorta.  There's nothing published from any appellate court in California yet for 2018.  So they're still on a break.  (Though I'm confident they're working away.)

So let's take a break and mention something noteworthy from December.  This opinion contains two things I hadn't seen before.  Or at least don't recall seeing.

First, the defendant was convicted of possession of burglary tools.  That's not strange.  But the burglary tool that he was convicted of possessing was a foil-lined bag.  Apparently, foil-lined bags are used to shoplift material from stores (here, to steal jeans); that way, the store's sensor doesn't go off when you take the stuff out of the store.

Didn't know that.

Second, the first line of the opinion reads:  "Defendant James Shaw used a foil-lined bag to shoplift several pairs of jeans from a San Francisco department store."  But the caption is "People v. Linda Shaw."  No, Linda is not his wife.  He's transgender.  Hence the divergence.

Don't recall seeing that before either.

Wednesday, December 27, 2017

Nalder v. United Automobile Ins. Co. (9th Cir. - Dec. 27, 2017)

You knew it was going to happen.  It had to.

But I didn't realize until today that it would only take around a week.

The first (star) footnote of today's opinion, which appears immediately after the composition of this two-judge panel (Judges O'Scannlain and Fletcher) reads:  "This case was submitted to a panel that included Judge Kozinski, who recently retired."

Well.  That was definitely fast.

Though can I also point out that this case was argued and submitted almost two full years ago.   In January of 2016.

Wow.  That's a long time to take to write an opinion.  Especially when, as here, the only thing the opinion does is to certify the relevant question to the Nevada Supreme Court.

Sort of makes you think that something else was going on here for the past two years, no?  Something that Judge Kozinski's absence suddenly dispositively changed.  (E.g., a dissent, a split panel, etc.)

Losing a judge on the panel sometimes matters.  A lot.

A Community Voice v. U.S. EPA (9th Cir. - Dec. 27, 2017)

The California Court of Appeal is taking off the holidays, and hasn't published anything for a while.

But the Ninth Circuit remains hard at work.  It didn't publish anything yesterday, but it publishes a half-dozen opinions today.


This opinion is one of the six.  There's a neat little dispute -- or not-so-little -- between the majority and the dissent.  Here's how Judge Schroeder frames the opinion in her opinion for the panel:

"This case is about the hazards of lead paint in home environments that have been found by scientists to be more dangerous to childrens’ health than earlier supposed. It is an action in the form of an original petition for writ of mandamus to compel the Environmental Protection Agency (“EPA”) to act upon a rulemaking petition it granted eight years ago. The agency does not challenge the science supporting Petitioners’ concerns, but contends its only duty under the statute is to begin a rulemaking proceeding, and that it has no responsibility to make any decisions within a reasonable time or ever."

Well now.  You can tell by her tenor that she's not going to say that the EPA can't take forever to make a decision.  So she grants a writ of mandamus.  (Her reasoning in this regard is apparent from one of her concluding paragraphs, in which she writes:  "We must observe, however, that EPA has already taken eight years, wants to delay at least six more, and has disavowed any interest in working with Petitioners to develop an appropriate timeline through mediation. We are also mindful of the severe risks to children of lead-poisoning under EPA’s admittedly insufficient standards."  When you are dealing with the health of kids, you can see why the Ninth Circuit might not want to allow infinite amounts of administrative dithering.)

But Judge Smith, in dissent, disagrees.  He says that the EPA's under no duty.  Period.  So cut it out, he says, with the issuance of an extraordinary writ of mandamus.

(For the majority's part, Judge Schroeder responds:  "We also note that failing to find a duty would create a perverse incentive for the EPA. In our court’s most recent unreasonable delay case, we granted mandamus where the EPA had not responded to an administrative petition for rulemaking after eight years. See Pesticide Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015). The EPA distinguishes that case on the ground that here it has responded by granting this petition. Under the EPA’s view, were it not to respond to the petition at all, this court could grant mandamus and compel a time table for rulemaking, yet if EPA “grants” the petition it can then delay indefinitely, without any recourse to the Petitioners. This would allow the EPA to grant petitions for rulemaking and take no action in order to avoid judicial review. The dissent’s position that the EPA is under no duty to act leaves the agency unaccountable and our children unsafe.")

Nonetheless, there's one part of Judge Schroeder's opinion that I definitely find wanting.  On page 9, she says that 15 U.S.C. § 2618(a) permits the filing of a suit in "any Court of Appeals for a circuit where any petitioner resides or has its principle place of business," and notes that "[t]hree of the Petitioners . . . have their principle place of business in California."

Nope.  Section 2618 gets it right.  You can file in their principal place of business.

But, hey, it's the holidays, and the panel's working hard.  Feliz Navidad.

Friday, December 22, 2017

Doe v. Kelly (9th Cir. - Dec. 22, 2017)

There are few things more peaceful than a University over the holiday break.  Few things colder, either.  At least in Southern California.  No professors, no students, and the office heat on "vacant" mode.  So it's quiet and a great place to work.  Except for the shivering.

Things could definitely be worse.  At lot worse.  To take but one example, you could be a detainee at an immigration facility near Tucson.  To say that things are bad there -- really bad -- is a significant understatement.  Even after the preliminary injunction entered below, but especially before it.

Maybe I should have realized just how bad it was to be picked up as an unauthorized alien.  Especially for those first few days.  But I didn't know.  I didn't know we did things like this.

"Discovery revealed that between June 10, 2015, and September 28, 2015, only about 3,000 of approximately 17,000 detainees were processed out of detention within 12 hours. About 8,644 detainees were held at a Border Patrol station up to 23 hours; 6,807 were held for up to 47 hours; 1,207 were held up to 71 hours; and 476 were held for 72 hours or more. . . .

[O]f the 16,992 detainees held between June 10 and September 28, 2015, only 122 were recorded to have received a mat, and the others’ bedding needs were met with only a Mylar sheet/blanket. . . . the harshness caused by the lack of mats and the inadequacy of the Mylar blankets is compounded by the Defendants’ practices of keeping holding-cells lights turned on 24-7, feeding one of the three regular hot meals to detainees at 4:00 a.m., moving detainees in and out of holding cells throughout the night for processing, overcrowding cells which causes people to lie cramped together and next to toilet facilities or to sit or stand up, and because the hard concrete floors and benches retain the cold caused by low thermostat temperatures and make it too hard and cold to sleep."

So basically, for up to three days (or more), you're crammed into a room with no bed, freezing your butt off with only a Mylar sheet, crammed into a tiny room with the lights on 24/7, unable to sleep or lie down -- again, for three days -- while people get moved in and out all day and night.

Not good.  Not good at all.  (And I'm not going to even talk about the toilet situation.  OMG.)

That this isn't our own lot is yet another thing to be thankful for during this holiday season.

Thursday, December 21, 2017

Vividius v. Express Scripts (9th Cir. - Dec. 21, 2017)

The Federal Arbitration Act allows an aribtrator to “summon in writing any person to attend before them . . . as a witness and in a proper case to bring with him . . . any book, record, document, or paper which may be deemed material as evidence in the case.” 9 U.S.C. § 7.  The power to compel includes nonparties, since the statute says "any person".  The statute further provides that if such a person refuses to come (or produce documents), the arbitrator can ask the federal district court to force 'em.

The question then becomes:  Can you only make the non-party attend the actual hearing before the arbitrator, or can you make 'em produce documents before the hearing?

The Ninth Circuit today decides to join the Second, Third, and Fourth Circuits and hold that the power is limited to making 'em show up (and produce documents) at the hearing, not before.  The Eighth Circuit has held otherwise, so the Ninth Circuit joins the majority rule.

Okay.  Fair enough.

But it seems to me like this limitation is fairly easy to circumvent, no?  Why can't an arbitrator simply call a hearing, make the person attend (and give the documents/evidence), and then order the hearing continued to allow the parties to digest the documents/testimony?  Yes, the statute says that people can only be ordered to "attend before them . . . as a witness," and the Ninth Circuit agrees that means at an actual hearing.  But clearly arbitrators can continue hearings if they want.  So if the hearing begins in June, and the documents are produced then, and subsequently continued until December for the final adjudication on the merits, doesn't that make the majority rule essentially meaningless?  Or at least merely create a tiny procedural hoop that arbitrators have to jump through in order to get the documents they think should be produced?

Seems like it to me.  And pretty much impossible to stop.

Wednesday, December 20, 2017

In Re A.F. (Cal. Ct. App. - Dec. 20, 2017)

The first paragraph of the statement of facts in today's opinion reads:

"At the time of the events leading to A.F.'s dependency, four-month-old A.F. was living with her father, W.F., in a motor home on Donna's property. W.F.'s girlfriend, Lillie B., and her 18-month-old daughter, Leah B., also were staying in the motor home. At noon on Monday, December 5, 2016, Lillie called 911 when she could not wake Leah. The paramedics arrived and immediately started CPR. The paramedics could not revive Leah and shortly after their arrival pronounced her dead. First responders suspected foul play, and the homicide investigators called to the scene reported Leah had multiple injuries on her body, including a broken arm, bruising on her legs, cuts on her face and head, and a burn on one of her feet."

I wish I could say the facts get better as the opinion progresses.  They don't.

Tuesday, December 19, 2017

U.S. v. Wells (9th Cir. - Dec. 19, 2017)

There's a lot of good stuff in today's Ninth Circuit opinion.  It reverses a murder conviction on multiple grounds, and also expresses a particular view about the particular conduct of the U.S. Attorney's Office here.  Plus there's a concurrence and a dissent, the last of which relates to the decision by the panel to reassign the case to a different judge on remand.

All that's worth reading.  Including but not limited to important holdings therein about Daubert and the scope of "profile" evidence in a criminal trial.

But I only want to talk about one thing, and even with respect to that, only briefly.  Because on that point, I think I can help.

The panel reverses the Mr. Well's conviction on evidentiary grounds and remands for a new trial.  But Wells spent a half-dozen pages of his brief arguing that the evidence against him was insufficient to establish guilt.  With respect to that issue, the panel says:

"We do not discuss Wells’ challenge to the sufficiency of the evidence, as we explicitly do not vacate the conviction on the basis of insufficiency of evidence and therefore do not risk offending the Double Jeopardy Clause in remanding for a new trial. See Burks v. United States, 437 U.S. 1, 15 (1978) (“[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case[;] it implies nothing with respect to the guilt or innocence of the defendant.”)."

But I thought that we did address such insufficiency claims on appeal, even if the panel reverses the opinion on other grounds.  If only as a matter of circuit precedent.

For example, here's what the Ninth Circuit said with respect to that procedure in U.S. v. Bishop:

"Ordinarily, our resolution of Bishop's Batson claim in his favor would end our inquiry -- for reasons of judicial economy we would not address additional claims of error.  In this instance, however, Bishop claims that the evidence presented in his [] trial was legally insufficient to support his convictions . . . . As we have made clear in previous cases, "the existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence." [quoting Ninth Circuit and out-of-circuit cases]  The reason for this exception to our general rule is obvious:  the defendant who successfully challenges a conviction for insufficiency of the evidence is entitled not only to a reversal of his conviction but also to an order directing the district court to enter a judgment of acquittal with respect to that conviction.  Under such circumstances, the double jeopardy clause bars the government from retrying the defendant on the charge underlying the conviction. [Citation] Because of this bar to retrial, we reaffirm our longstanding rule and turn now to the insufficiency claim before us."

That same rule seems to have been applied not only before Bishop (as the cases cited therein identify), but also thereafter.  See, e.g., U.S. v. Wigglesworth.

So it seems to me that the panel has to -- and should -- decide the insufficiency claim as well.

Now, I'm not at all sure that Mr. Wells is right that the evidence against him is insufficient.  It looks to me like a rational trier of fact might reasonably find him guilty.  (Even though I readily concede that finding guilt beyond a reasonable doubt is far from axiomatic.)

But if Mr. Wells is right that the evidence against him was insufficient, he shouldn't have to undergo a second trial.  And the (very limited) expediency of ignoring this issue now doesn't seem worth it.

So I'd go ahead and add a page or two to this already-lengthy opinion that articulates a holding with respect to this issue.  'Cause I think that's required.

As well as a good idea.

Monday, December 18, 2017

Song v. Sessions (9th Cir. - Dec. 18, 2017)

We haven't seen much from the Ninth Circuit lately.  Basically one published opinion a day for the past week.

Of course, it's the (extended) holidays, so that's not all that surprising.  And there have certainly been some recent distractions as well.  Some natural.  Some less so.

Regardless, work goes on.

I usually don't read the syllabus of Ninth Circuit opinions.  Ruins the story for me, and I'm going to read the case anyway, so don't need it.

But today I did.  Maybe (in part) because the syllabus was so short.  It said, in its entirety:

"The panel granted a petition for review of the Board of Immigration Appeals’ denial of asylum to a citizen of China who sought relief based on his political opinion. The panel held that the evidence compelled the conclusion that the Chinese government imputed an anti-eminent domain opinion to petitioner, and persecuted him for that opinion. The panel vacated the denial of asylum relief, and remanded for the Attorney General to exercise his discretion whether to grant asylum."

That's pretty brief.  And maybe, as described, a little surprising.  We reverse the decision below and grant asylum just because the person had "an anti-eminent domain opinion" that the Chinese didn't like?  Seems much less substantial than a lot of cases in which we routinely affirm the denial of asylum.

But then I read the case.  Yes, he had an "anti-eminent domain opinion" and was "persecuted" for those beliefs.  But there was a lot more there than what I imagined from reading the syllabus.

In particular:

"Song received a letter from the local government on August 5, 2009, that the demolition would proceed. Song continued his protest of the forced demolition by hanging a banner from his unit expressing his opposition. The banner stated that Song would rather die than give up his property. Song also moved his belongings into and began sleeping in one of the upstairs residential apartments, then vacated by its tenants because of the demolition notice.

Twelve days later, Song was arrested. Two police officers entered the apartment, overpowered his efforts to resist, and took Song to a detention center. He was charged with interfering with official duties. During the three days Song was jailed, police tortured and beat him, and encouraged his cell mates to do the same. Song was forced to spend an entire night in a squatting position. , , ,

Prison officials accused Song of being “antigovernment,” “subvert[ing] the government,” and “preventing the [government] official from doing official duties.” They tried to get Song to confess to the same. When Song refused, police beat him with a baton and electric baton until he passed out. Song suffered multiple injuries from the beatings, to the point that he was unable to walk."

Uh, yeah.  That's pretty darn serious.  Now I see why he gets asylum.

Friday, December 15, 2017

People v. Richards (Cal. Ct. App. - Dec. 15, 2017)

You don't see many convictions like the one in today's opinion, which was for "attempting to take another person from the lawful custody of a peace officer by means of a riot in violation of Penal Code sections 405a and 664."

You also might think that this is a pretty serious offense.  After all, it involves interfering with a police officer, and that whole "by means of a riot" thing sounds fairly bad.

But no.  Defendant only gets 90 days in jail.

Not that serious at all, apparently.

Thursday, December 14, 2017

People v. Lucero (Cal. Ct. App. - Dec. 14, 2017)

Some people have problems.  Real problems.  Problems that aren't too hard to figure out.

As in today's case.

"Defendant was charged with first degree burglary (Pen. Code, §§ 459, 460) and [another crime]. Attorney Dorr was appointed to represent defendant.

Before trial, on three separate occasions, defendant failed to appear, causing the trial court to issue a bench warrant.

Once trial started, defendant was present for the first two days, but on the third day, he failed to appear. Dorr asserted that defendant was in the hospital. The trial court granted a one-day continuance, but it warned Dorr that defendant would have to produce medical documentation of his unavailability to obtain a further continuance.

On the fourth day, defendant once again failed to appear. Dorr did not attempt to explain why defendant was absent and did not produce any medical documentation. The trial court therefore refused to grant a further continuance. On the fifth day of trial, defendant still did not appear. The jury found defendant guilty as charged.

Dorr filed a motion for new trial, on the ground that defendant had been unable to appear for legitimate medical reasons. At the hearing on the motion, however, Dorr conceded that it was untimely; the trial court denied it as untimely, without reading it. It proceeded to sentence defendant to a total of two years eight months in prison. . . .

Defendant appealed. We requested further briefs on whether defendant’s motion for new trial had, in fact, been untimely. Defendant then argued, not only that the motion was actually timely, but also that Dorr had rendered ineffective assistance by conceding that the motion was untimely. We agreed on both points. We therefore reversed the judgment. . . .

On remand, the trial court set a hearing on defendant’s new trial motion. The hearing, however, was repeatedly continued. In particular, in July 2015, September 2015, and again in January 2016, the hearing was continued based on Dorr’s representations that defendant was in the custody of Immigration and Customs Enforcement (ICE).

While defendant was in ICE custody, Dorr visited him; they discussed the status of the case, including the fact that the judgment had been reversed on appeal. Dorr told him that, if he was released, he needed to let Dorr know.

As of May 14, 2016, defendant evidently was no longer in ICE custody, as he was arrested on [] charges. He signed a citation promising to appear on July 29, 2016.

On May 27, 2016, defendant was arrested on a new misdemeanor [] charge, as well as for misdemeanor resisting an officer. On June 3, 2016, while still in custody, he was arraigned; a hearing was set for July 1, 2016. A hearing in this case was also set for July 1, 2016, specifically so defendant could appear in both cases at the same time. On that date, he failed to appear.

A hearing in this case was then set for July 29, 2016, again so defendant could appear in this case and in his first misdemeanor case at the same time. On that date, he failed to appear. . . . The trial court continued the hearing.

On August 12, 2016, at the continued hearing, defendant failed to appear. Dorr represented that he had not had any contact with defendant since defendant was released. . . . After hearing argument, it denied the motion for new trial; it found that defendant’s claim that he had been unable to appear at trial for medical reasons was not credible. It therefore reinstated the judgment."

You can readily figure out the problem.  My father used to say (quoting, apparently, Woody Allen) that 80% of life was just showing up.  Mr. Lucero unfortunately was not hip to that 80 percent.  Ergo his many problems.

But you can also (potentially) figure out the underlying cause.  I deliberately inserted three separate brackets (omissions) into the portion of the text I quoted.  Those brackets cover the following words and phrases, each of which likely identifies the reason for all the absences:

(1)  "charged with . . . [possession of methamphetamine];"
(2)  "arrested on [drug] charges;" and
(3)  "arrested ona  new misdemeanor [drug] charge.

Yeah.  That stuff's not good for you.  At all.

Wednesday, December 13, 2017

Kirzhner v. Mercedes-Benz USA (Cal. Ct. App. - Dec. 13, 2017)

"This case under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq., Act), concerned an allegedly defective car which could not be repaired after multiple attempts. Plaintiff Allen Kirzhner accepted an offer of compromise pursuant to Code of Civil Procedure section 998 (998 offer) from defendant MercedesBenz USA, LLC . . . .The court awarded plaintiff over $47,000 in accordance with the 998 offer. Plaintiff appealed and asserts the court erred because it denied him recovery of approximately $680 in vehicle registration renewal and certificate of nonoperation fees which he incurred in the years after he first leased the car."

Wait.  Are we really filing an appeal in a civil case that revolves exclusively around an additional alleged $680 in damages?

Yes.  Yes we are.

P.S. - Plaintiff doesn't get 'em.  And "Respondent is entitled to its costs on appeal."

Tuesday, December 12, 2017

People v. Rubino (Cal. Ct. App. - Dec. 12, 2017)

Joseph Rubino is caught on surveillance video trying to burn down the office of the mobile home park in which he resides.  He doesn't have a very good defense at all.

He ultimately gets sentenced to probation plus a year in jail.

Which is not a bad result (for him) at all, in my view.  As he most definitely could have received a lot more.

Monday, December 11, 2017

In Re R.G. (Cal. Ct. App. - Dec. 11, 2017)

Your children are rarely perfect.  Perfection is pretty darn hard to achieve.

And, even short of perfection, it's often helpful to remember that things could be far worse.

That's true for sons, and it's true for daughters.  Today brings an example of the latter:

"On October 26, 2016, Minor attempted to slap the victim, accusing the victim of sleeping with Minor’s best friend. . . . On November 22, 2016, the probation department filed a report. The report includes a recitation of Minor’s previous juvenile delinquency history, including an arrest on February 26, 2013, for unlawful sex with a minor; an arrest on June 25, 2013, for receiving stolen property; an arrest on September 1, 2015, for unlawful taking or driving of a vehicle; and an arrest on February 26, 2016, for fighting at school. It is noted in the report that Minor had been suspended from school 13 times for defiance and fighting; she had been expelled three times for nonattendance, truancy, and defiance; and she had 11 unexcused absences during the current school year."

Yeah.  Not good.

As for her life prior to all that:

"Both Minor’s mother and father were drug addicts with criminal histories. Minor reported her mother left her in the care of her father who was using drugs who, in turn, left her in the care of her grandmother. It was reported that Minor had been a victim of frequent sexual assaults by her father at the age of 13 and had suffered physical abuse by both her father and grandmother. Minor reported living in group homes beginning in 2012 when her grandmother no longer wished to care for her."

Not a happy story at all.

Friday, December 08, 2017

In Re Marriage of Kagmar (Cal. Ct. App. - Dec. 8, 2017)

Fred Kagmar has a great life.  He's got a couple of businesses, a smart and loving wife, and four great kids.  He's sufficiently rich that he doesn't even have to work any longer.  Awesome.

He enjoys playing the stock market, and is a big believer in Apple.  So he's got $2.4 million in Apple stock, and he plays around with the stuff on Ameritrade.

Then, in 2012, he's convinced that Apple is going to go even higher.  He puts another $8 million into the Ameritrade account, and off he goes.  By the end of February 2012, the account value is up to $13 million.  Not chump change at all!  Then comes August 2012.  He's on fire!  The account's now worth over $16.3 million.  And that's after he takes out another $3 million.  He's doing all this without his wife's knowledge -- she only knows about the $2.5 million -- but he's doing awesome.

Of course, this is a Court of Appeal opinion.  If that was the end of the story, there'd be no lawsuit, right?

You know the next chapter.

He tanks.  Tanks.  By the time he stops trading in the account, the $16.3 million is down to . . . $409,000.


During this entire time, by the way, he's in marriage counseling with his wife.  So things are pretty much not going well on any front.

They eventually divorce.

And now he has to reimburse the community for a ton of the money he lost in the account.

Things can change so much.  Even in a tiny little bit of time.

Wednesday, December 06, 2017

Dep't of Forestry and Fire Protection v. Howell (Cal. Ct. App. - Dec. 6, 2017)

Today's opinion seems especially timely given the numerous wildfires raging throughout Southern California.  It's about the protracted (and high profile) litigation surrounding the Moonlight Fire in 2007.

There's so much in there that's fascinating that I shan't attempt to summarize it.  I'll just give you a snippet from the last paragraph of Justice Robie's dissent to whet your appetite:

"Finally, I also cannot agree that any remand be before the same trial judge, who I believe was manifestly biased and did not provide a fair and impartial forum for litigation of an enormously important case with vast ramifications beyond the facts of this proceeding. The conduct of the trial court in making the Cottle ruling, granting judgment on the pleadings and then issuing postjudgment terminating sanctions were not the actions of a fair and impartial judge."

Come on.  You gotta read the whole thing, right?!

Tuesday, December 05, 2017

Noel v. Thrifty Payless (Cal. Ct. App. - Dec. 5, 2017)

I really do think that holdings like this one, were they left to stand, would essentially spell the death of consumer class actions in California.

It sufficiently conflicts -- as the opinion itself expressly recognizes -- with plethora of other Court of Appeal opinions that the California Supreme Court should either (1) accept review of the thing, or (2) depublish it.

Because to let something like this stand, in my view, would make justice in California substantially worse.

Monday, December 04, 2017

Fettgather v. Board of Psychiatry (Cal. Ct. App. - Dec. 4, 2017)

It says something when a psychologist facing an investigation is ordered to undergo a psychiatric examination.  And refuses to do so.

That'll get your license suspended.

When I read the opinion, I wondered whether the psychologist represented himself.  Because the opinion says things like this:

"Fettgather challenges the trial court on a number of grounds . . . . While many of his arguments are difficult to discern, Fettgather appears to argue that he should have been afforded the opportunity to challenge the propriety of the Board’s order requiring him to submit to a psychological evaluation under section 820 at the Board’s revocation hearing, despite his noncompliance with that order. . . .

He further argues this court should “overturn” Lee, supra, 209 Cal.App.4th 793, which was relied upon by the trial court in upholding the Board’s license revocation order. While we do not have the authority to “overturn” Lee, we are not bound by that decision.

We will not address arguments not separately stated under a separate heading as noncompliant with California Rules of Court, rule 8.204(a)(1)(B). (See T.P. v. T.W. (2011) 191 Cal.App.4th 1428, review denied (2011) 2011 Cal. LEXIS 3990 [declining to consider undeveloped argument not delineated under separate heading].)"

But, no, Mr. Fettgather was indeed represented by an attorney on appeal, Bruce Ebert.  An attorney who has had his own disciplinary issues.

Apparently Mr. Fettgather is a fairly popular professor at Mission College as well.  Though, in the future, the lesson he might want to teach his students is that when you're ordered to submit to a psychiatric exam, you should follow the order.  Lest bad things happen.

Friday, December 01, 2017

U.S. v. Lummi Nation (9th Cir. - Dec. 1, 2017)

Who gets to fish west of Whidbey Island, in Washington?

That's an issue that's taken a huge amount of litigation to resolve.

But now we know.

Apparently the fishing is pretty darn good out there.  At least according to the locals.

Thursday, November 30, 2017

In Re Marriage and The Grange (Cal. Ct. App. - Nov. 30, 2017)

Which one do you want to obtain:

(A) Insight into the trials and tribulations of the (now former) marriage of famed restaurateur Piero Selvaggio?  If so, read this opinion.  Or,

(B) Insight into the trials and tribulations of the California chapter of The Grange.  (Which, yes, apparently still exists.)  If so, read this opinion.

As they say:  We report.  You decide.

Wednesday, November 29, 2017

Crime & Justice America Inc. v. Honea (9th Cir. - Nov. 29, 2017)

I'm a little confused about one portion of this morning's opinion by Judge Tallman.

A prison in Montana bars its inmates from receiving unsolicited commercial mail.  That's a problem for one particular magazine, which distributes its product for free to inmates.  That's the magazine's "target market," surprisingly enough.  It's got advertisements for lawyers, bail bondsmen, etc., so that's how the magazine makes its money.

The prison has installed some electronic kiosks where inmates can view various publications.  But you can see why that's not a total substitute.  As many of us can personally attest, it's different to have reading material in your hand as opposed to reading a PDF on a computer.  The former you can take with you physically, page through, read at your leisure, and view on your own time and in your own place; on your couch, in bed, etc.  As opposed to having to read a PDF in public place while you just stand there.

One is better.  Trust me.

But the prison says that it stops these magazines because there's a problem when there's too much paper in the prison.  Prisoners use it to stuff up toilets, block windows, etc.  And prisoners tend to do that with unsolicited stuff (like phone books and donated paperbacks) instead of, say, love letters from their families.

Fair enough.  Mind you, other prisons seem to work just fine with allowing magazines in.  And if the prisoners still have access to phone books and paperbacks, I'm not sure how stopping magazines can really solve this problem.  But okay.

Here's the part I don't entirely understand:

If a prisoner wants the magazine, which is free, he can just ask for it.  We get free magazines at my house.  Do we read those all the time?  No.  But sometimes we do.  It's not a big deal to have them around.  You just send in a postcard and you get the subscription essentially forever.  Presumably this particular magazine could easily do the same thing; e.g., put subscription requests on the kiosk, and if the prisoner filled it out, boom, he's entitled to a monthly (or whatever) magazine, even under the prison's policy.

As a result, any prisoner who wants useless paper (or even wants useless paper lying around) can easily get it.  From himself.  From other inmates.  No problem.  Even the same useless paper that the prison's trying to stop.

Given that reality, what's the huge penal interest in stopping the "unsolicited" stuff?

Judge Tallman says in a footnote:

"Here, Butte County distinguishes between solicited and unsolicited mail because unsolicited mail is far more likely to be used to undermine institutional security than solicited mail. Thus, the regulation is neutral in the Turner sense."

But is that really right?  It's the same magazine.  Prisoner X gets it unsolicited for free in the mail, and never reads it, and simply has it to stuff up toilets.  Prisoner Y filled out a postcard, so it's solicited, but gets it for free in the mail, never reads it, and simply has it to stuff up toilets.  Is it really true that the magazine that Prisoner X has "is far more likely to be used to undermine institutional security" than the magazine that Prisoner Y has?

I'd like to hear what Judge Tallman has to say about this.  Maybe someone would think that prisoners aren't likely to want free magazines just to stuff up toilets with, so would never bother to fill out even the postcard.  But I don't know.  Seems to me they very well might.  Or at least there's some guy ten cells down -- the magazine here is sent to every tenth inmate -- who'll have the magazine anyway, so we're going to get the same amount of toilet-stuffing either way.

With the only difference being that we're deliberately burdening the First Amendment right of the publisher to reach its target audience.

Sure, if I was running a prison, I probably wouldn't want my prisoners having anything.  Paper, combs, whatever.  Prison's an ugly, dangerous place.

But maybe the First Amendment requires a bit more flexibility and accommodation.

Tuesday, November 28, 2017

Flores v. Southcoast Automotive Liquidators (Cal. Ct. App. - Nov. 27, 2017)

The defendant in this lawsuit sells cars in South Gate as Discount Auto Plaza.  But based on what I read in this opinion, it's a place with which I'd definitely not want to do business:

"Defendant and appellant Southcoast Automotive Liquidators, Inc., doing business as Discount Auto Plaza (Dealer), publishes print advertisements on Wednesdays that advertise low prices for specific cars to attract customers to the dealership. Small print at the bottom of the advertisements states that the price expires at 12:00 p.m. on the day of publication. A customer who calls before noon to inquire about a car in an advertisement will be quoted the sale price. If the customer arrives at the dealership in the afternoon, the advertisement has expired and the car is sold for full price. Dealer also posts the advertisements online for about three hours. The advertisements on the internet do not contain expiration information and are simply taken down after three hours.

In April 2013, plaintiff and respondent Krystal Flores wanted to buy her first car. She saw Dealer’s advertisement on the internet for a black 2009 Dodge Charger for $9,995. She printed the advertisement and asked her parents to call the phone number on it the next day to ask questions. Her mother called and spoke with a male employee named Sergio, who said the car had 42,000 miles and was in excellent condition. Her mother asked if he could go any lower on the price and he said he might be able to drop the price to $9,000. Flores waited an hour and had her father call to see if he got the same answers. A female employee said the car had 42,000 miles on it. Plaintiff’s father explained that they were going to drive an hour and a half to see the car, so he needed her to be honest and not waste their time. She said there were no mechanical issues with the car.

The next day, Flores, her mother, and her sister drove from Oxnard to South Gate to view the car. Upon arriving, they asked for Sergio. A salesperson falsely responded that he was Sergio. Flores showed him the advertisement from the internet. He showed her a black 2009 Dodge Charger with body damage and mileage of 107,000. He said it was the only black Charger on the lot, but the Dealer could repair the damage. Flores was very excited to purchase a car and thought it might still be worth buying. They went inside to discuss the paperwork. Flores’s mother recognized the voice of another salesperson as the real Sergio. He said the price of $9,000 was for a cash payment, so Flores’s price would be the advertised price of $9,995.

Sergio told the assistant manager that Flores wanted to buy the Charger. The assistant manager called the manager and asked what he wanted to sell the Charger for, then put the number in the paperwork as the total cash price. Salesperson Maria Guadalupe Jauregui assisted Flores with the paperwork for the purchase, bringing each document out from the printer. While Flores completed the paperwork, a fight broke out between the male salespeople over credit for the sale, and the police responded.

One document listed the selling price as $16,995. Flores’s mother noticed that it stated the amount financed was $17,401 and asked why the document did not say $9,995. Jauregui said not to worry about it, because they were just throwing numbers out and that number would not stay. . . .

On the drive home, Flores noticed a tire warning light was on. After that, the engine light went on. Flores brought the car to a mechanic the next day and got a list of repairs that were needed. She called Jauregui and told her that the car was going to overheat. Jauregui said to bring it to Dealer with the list of repairs and it would take three days to fix. Flores brought the car with the repair list. She called Jauregui each day to ask if the car was ready. When Jauregui stopped answering her phone, Flores began texting her."

That's really all you need to know.  Even though the opinion has lots, lots more.

General rule:  When the employees of the business get into a fist fight about your sale, and the police are called, take that as a pretty significant warning sign.

There's a reason the place only gets one-and-a-half stars on Yelp.