Friday, August 23, 2019

Edmo v. Corizon (9th Cir. - Aug. 23, 2019)

It's fairly unusual for a high-profile, 84-page opinion to be per curiam rather than signed by its author.

Yet here you go.

I wonder if the author of the opinion prefers to remain anonymous, for professional or other reasons.

Read the subject matter and try to figure out why the author of such a lengthy (and careful) opinion might want to just be part of a panel opinion.

Rank speculation, of course.

Huerta v. City of Santa Ana (Cal. Ct. App. - Aug. 23, 2019)

It's undeniably tragic that three little girls were run and killed on Halloween night in 2014 as they crossed the street in a marked crosswalk.  The person who hit them fled the scene but was captured two days later.

The dissent says that the accident might have been caused by a tree that cast shadows that evening onto part of the crosswalk.  But that's the dissent.

The majority says there isn't a genuine issue of material fact; the shadows didn't cause the accident, which was instead caused by a hit-and-run driver who was going between 50 and 70 miles per hour -- on Halloween evening, no less -- on a street that had trick-and-treaters dressed in all black and a posted speed limit of 25 mph when kids were present (and 45 mph otherwise).

Just because you have an expert doesn't mean that you'll necessarily get to trial.  As here.


Thursday, August 22, 2019

Nicholson v. Gutierrez (9th Cir. - Aug. 22, 2019)

The Ninth Circuit gives the plaintiffs in this case some good news and some bad news.

The good news is that they get to go to trial on the theory that they shouldn't have been detained in handcuffs for five hours.  Which is nice, since all they were doing was hanging around before school listening to rap music and getting on their school uniforms.

The bad news is that they don't get to seek relief for something far more serious:  Getting shot in the back by a police officer for no good reason.  Yes, it violated the Constitution.  Yes, a police officer should not shoot someone in the back, even if he has a plastic airsoft gun (with an orange tip) that's not being pointed at anyone as he and his friends hang out before school.  But the Ninth Circuit says that wasn't really clear before now, so there's qualified immunity.

So no relief for being shot.  But feel free to get damages for the five hours you spent in handcuffs.

Small "victory".

Ray v. County of Los Angeles (9th Cir. - Aug. 22, 2019)

How many cases do you see that decide whether a lawsuit is barred by the Eleventh Amendment?

Not many.  But you get one today.

Tuesday, August 20, 2019

Williams v. Superior Court (Cal. Ct. App. - Aug. 20, 2019)

I don't know.  Maybe.

A prosecutor makes a mistake.  There's a grand juror who finds out she's not going to get paid for her time, so she asks to be excused, and the prosecutor says okay and excuses her.

That's wrong.  The prosecutor can't do that.  Only a judge can.  (Of course, there's no judge there at the time, which is why the prosecutor thought it was his job.  Even though it's not.)

So the question is whether that requires dismissal of the indictment.

The Court of Appeal says it does, because having the prosecutor be the one who dismisses the grand juror makes it look like the prosecutor is controlling everything and the grand jury might accordingly be beholden to him.

Hmmm.  Maybe.  Though I suspect that's not what most of the grand jurors think.  At all.  The basic structure of the grand jury already gives the prosecutor a "lead" function, at least perceptually.  When you're dealing with what seems like a routine thing -- a hardship request -- I doubt whether the grand jurors think that having the prosecutor say "That's fine, you're excused" is anything more than a pure administrative function.  I'm not sure it really makes the grand jury think that the prosecutor is totally in charge, or akin to a judge.  Or at least not more than the preexisting fact that the prosecutor is the only key government official that the grand jury typically sees on any given day.

So, yeah, a mistake definitely transpired.  But it was an honest mistake, and one that I'm not certain really mattered at all.  Particularly since there were still 18 grand jurors left, and it only took 12 to return an indictment.

So maybe the grand jury was really swayed by what transpired here.

But I tend to doubt it.

Dryoff v. Ultimate Software Group (9th Cir. - Aug. 20, 2019)

Have a sports injury. Get addicted to opioids. Buy heroin online. Die when it's unknowingly laced with fentanyl.  Sue.  Lose.

A life in twenty words.

Monday, August 19, 2019

U.S. v. Shayota (9th Cir. - Aug. 19, 2019)

"Counterfeit Five-Hour Energy Bottles and the Fifth Amendment."

Available for your review here.  Courtesy of Judge O'Scannlain.

U.S. v. Cuevas-Lopez (9th Cir. - Aug. 19, 2019)

An Obama appointee writes an opinion that says that someone should be locked up longer for illegal reentry after deportation, and a Bush appointee dissents, saying that he should be locked up for less.

What a world.

Thursday, August 15, 2019

People v. Sanchez (Cal. Ct. App. - Aug. 15, 2019)

A 33-year old (Adult) hangs out with a 13-year old (Kid). At 3 a.m., Adult and Kid have seven or eight French-kisses.  During the next three months, Adult and Kid -- now 14 -- engage in a ton of secretive text and instant messages, with Adult repeatedly expressing love for Kid, buying presents, etc. On the night before the Super Bowl, Kid sneaks out of the house and meets up with Adult, and they French kiss again, Adult kisses (and leaves a hickey) on Kid's bare breast, etc.  Kid eventually tells the story to a teacher, who reports the whole thing to police. Adult is criminally charged and convicted.

No prior criminal history for Adult. What's the appropriate sentence for Adult?

(A) 20 years in prison.
(B) 12 years in prison.
(C) 5 years in prison.
(D) 2 years in prison.
(E) Probation.

No actual sex.  But a fairly long history of grooming and molestation.  And Adult is 33 and Kid is 13 and 14.  Big gap.

Oh, and if it matters:  Kid is Adult's step-grandfather's niece.  So it's a familial thing.

So what's right?

Got your answer?

Now for the actual sentence that gets imposed in this case.  I suspect it's not the same as the choice you made.  The actual sentence is at one of the two extremes of the options I gave.  (A) or (E).

Which do you think?

Answer:  Probation.  Straight up.

Does it matter that Adult's a woman, and so is Kid?

You don't see many probation sentences these days when a 33-year old repeatedly molests a 13-year old extended family member.

Tuesday, August 13, 2019

In re NFL Sunday Ticket (9th Cir. - Aug. 13, 2019)

Do you watch DirecTV's NFL Sunday Ticket?  If so, today's Ninth Circuit decision may ultimately get you a check.  Way, way down the line.  Maybe.

The Ninth Circuit holds that the forced bundling of all the NFL games might violate the Sherman Act.  It's a split opinion, but at least for now, the district court's dismissal of the suit is reversed.  I'm confident there will be an en banc petition and a petition for certiorari.  Both non-frivolous.

But for now, the case is revived.

Monday, August 12, 2019

People v. Flores (Cal. Ct. App. - Aug. 12, 2019)

The distinctions that we draw in search and seizure jurisprudence are sometimes such fine ones.

The Supreme Court says that "headlong flight" plus "narcotics area" plus "has a bag" lets you search. At least at night.  But what if it's just a normal "flight" -- not really all that speedy?  What if it's only described as a "high crime" area?  What if it's during the day?  What if there's no bag?

Here, the Court of Appeal says "normal" flight plus "high crime area" plus "during the day" doesn't give you the right to search.

At a more abstract level, it seems like the police just wanted to swoop down on this one alleyway -- where gang members gathered -- and search everyone there. Maybe on the theory that they had probable cause just because there was, typically, a lot of crime there. Or maybe in the hope (and expectation, likely) that someone would run, and boom, all of the sudden, probable cause.

Which works from a policing standpoint. Less so for the citizens standing in the alleyway.

Wednesday, August 07, 2019

ClipperJet, Inc. v. Tyson (Cal. Ct. App. - Aug 7, 2019)

Here's proof that common sense sometimes prevails.

The usual rule is that removal to federal court is self-activating (e.g., you don't need permission of either tribunal) and that, post-removal, the state court lacks jurisdiction to do anything unless and until the case is remanded. Makes sense, and a well-known principle.

But, here, the defendant removes (frivolously), gets remanded, and then later removes again. And the second removal is even more frivolous than the first one.

Now, to be honest, what the state court should have done was to simply waited until the second remand. Which would have come fairly quickly. But, instead, since a motion to strike was fully briefed and in front of it for a hearing -- even though the second removal had transpired three days earlier -- the state court went ahead and decided it.

The Court of Appeal holds that's okay. There's an exception to the general rule. When the removal is totally frivolous, the state court's not deprived of jurisdiction. That'll stop people from, say, removing the case a thousand different times.

Just as the general rule makes sense, so does the exception.

Monday, August 05, 2019

Sheen v. Wells Fargo Bank (Cal. Ct. App. - Aug. 5, 2019)

Justice Wiley authors an extremely well-written (and relatively concise) opinion today. One that admittedly creates split in the Court of Appeal. 

As Justice Wiley frames the issue (and its proper resolution):

"Homeowners in mortgage trouble may try to negotiate a better deal. If mortgage modification negotiations fail and the borrower falls behind, the lender may foreclose, sell the house, and evict the homeowner. In a nutshell, this happened to borrower Kwang Sheen with his lender Wells Fargo Bank, N.A. (Wells). Sheen sued Wells in tort for negligent mortgage modification and other claims. The trial court sustained Wells’s demurrer, partly because Wells did not owe Sheen a duty in tort during contract negotiation.

The issue of whether a tort duty exists for mortgage modification has divided California courts for years. The California Supreme Court has yet to resolve this division. We must take sides.

We join with the old rule: no tort duty during contract negotiations. Our small contribution to this extensive debate is to use the general approach of the recent Supreme Court decision in Southern California Gas Leak Cases (2019) 7 Cal.5th 391 (Gas Leak Cases). The Gas Leak Cases decision was not about mortgage modifications, but it gives us guiding sources of law about whether to extend tort duties when, as here, there is no personal injury or property damage. Seeking wisdom, the Supreme Court considered decisions from other states as well as the Restatement of Torts. We do likewise.

These sources of law decisively weigh against extending tort duties into mortgage modification negotiations. The majority of other states are against it, and the most recent Restatement counsels against this extension because other bodies of law—breach of contract, negligent misrepresentation, promissory estoppel, fraud, and so forth—are better suited to handle contract negotiation issues. We therefore affirm."

That's an important, and recurring, issue. I don't have a definitive view as to what the right rule should be, though Justice Wiley's opinion does an outstanding job of arguing for the "old rule."

I'm nonetheless confident that whether you have a valid lawsuit shouldn't depend on the vagaries of which appellate panel you draw. So the California Supreme Court should grant review of this opinion and settle the matter once and for all.


Friday, August 02, 2019

Ranch at the Falls LLC v. O'Neal (Cal. Ct. App. - July 31, 2019)

A picture is sometimes worth a thousand words. So I appreciated the Court of Appeal's attachment to this opinion of a map -- in color, no less -- the describes the various properties, streets, and alleged easements.

Unfortunately, at least to me, the map is only worth around fifty or so words. In part because the big blue line ("Fern Ann Falls Road") doesn't seem to connect to the big green line (the alleged easement route) like it seems like it should. Unless that little blue, umarked line, which looks like a stream or a lot line, is an actual road that the opinion doesn't discuss.

Still, at least there's a map. Even if I can't 100% follow it.

We appreciate the effort, Justice Grimes.

Lee v. Department of Parks and Recreation (Cal. Ct. App. - Aug. 1, 2019)

In a world with more internet access I'd do a quick study, but for now, I'll just pose the question:

When an opinion begins by saying that a plaintiff "injured herself" (or himself) in a particular accident, does that tend to suggest that the Court of Appeal is going to find for the defendant?

That's the sense I got when reading the first sentence of this opinion.  ("Plaintiff Michele Lee injured herself on a stairway in the Bootjack Campground within Mt. Tamalpais State Park . . . .")  And it turned out to be right; the grant of summary judgment in favor of the defendant was affirmed.  (Though the Court of Appeal did reverse the fee award against the plaintiff.)

Saying that someone "injured herself" suggests that the fault was with the plaintiff.  "Was injured" is more neutral. I suspect that use of the former may give some insight into the mindset of the author.

Wednesday, July 31, 2019

Wilson v. County of San Joaquin (Cal. Ct. App. - July 30, 2019)

It's a tragic case on a plethora of levels, and involves the death of a child. The trial court holds that the County isn't liable because anything a firefighter does -- even if it doesn't involve fighting fires (here, performing paramedic services) -- is covered by statutory "firefighter" immunity.

The Court of Appeal reverses.

I'm not certain the plaintiffs will prevail on remand. But they'll get their shot.

Tuesday, July 30, 2019

Davis v. Guam (9th Cir. - July 29, 2019)

I'm in the Canadian wilderness on vacation, but it's a testament to our interconnected world that there is still sporadic Internet access. What a world.

Meanwhile, as a reminder that the United States spans a great deal of territory, there's this opinion from the Ninth Circuit. It's another case in which Guam has attempted to run an election in which (essentially) only Chamorro people can vote. Prior attempts have described the franchise in express racial terms. This time, Guam attempts the same thing, but in different language, limiting voting to "Native Inhabitants of Guam."

The Ninth Circuit says: "Nice try. No dice."

We've got a history with race and voting here in the United States. As well as the use of proxies to attempt to accomplish the same thing the Fifteenth Amendment prohibits.

So we're pretty sensitive to it at this point. Since they definitely were not our proudest moments.

Wednesday, July 24, 2019

Cole v. Hammond (Cal. Ct. App. - July 24, 2019)

Check out the facts in this one.  Which seem like a huge procedural clusterfart (pardon my French):

"In a prior action, Neil Gieleghem and respondent Gregory Cole, both attorneys, obtained a $500,000 judgment against Anthony Sheen, a landlord, based on unpaid fees for legal services they rendered to Sheen. In satisfaction of that judgment, Cole and Gieleghem obtained an assignment of rent from Sheen for a residential property.

Appellants Betty and Ruth Hammond (the Hammonds) were Sheen’s tenants. Cole and Gieleghem demanded that the Hammonds pay their rent directly to them pursuant to the assignment. The Hammonds refused, and Cole sued, alleging breach of contract and related claims. Gieleghem appeared as Cole’s attorney in the lawsuit.

A few months after the initiation of the lawsuit in 2011, the Hammonds began paying their rent to Cole and Gieleghem. After the parties conducted some initial discovery, the case languished for several years. In January 2018, the Hammonds moved for mandatory dismissal of the action for failure to bring the case to trial within five years, pursuant to Code of Civil Procedure section 583.360. A mandatory dismissal would be considered a determination on the merits entitling the prevailing party to attorney fees under Civil Code, section 1717. However, at the hearing on the motion, Cole sought to voluntarily dismiss the case without prejudice pursuant to section 581, subdivision (b)(1). The court granted Cole’s oral motion and dismissed the case. The court subsequently denied the Hammonds’ motion to vacate the dismissal. This appeal followed.

The parties dispute whether this appeal is timely. We conclude that it is. Substantively, the Hammonds contend the trial court erred in granting Cole’s motion for voluntary dismissal, arguing that they had the right to a mandatory dismissal and the resulting attorney fees. We agree and therefore reverse and remand for further proceedings."

The lesson is:  If you're going to sue, sue.

Monday, July 22, 2019

People v. Gentile (Cal. Ct. App. - May 30, 2019)

Here's a brief little quiz from a recent case (but not today) while I'm off watching some water polo up in Orange County:

Guillermo Saavedra was beaten to death while he was living in the back of the La Casita restaurant in Indio (which has apparently now closed).  Which of the following was he beaten to death with:

(A) A Golf Club.
(B) A Wooden Chair.
(C) A Beer Bottle.
(D) Fists.

Answer?  All four.

Friday, July 19, 2019

In re A.M. (Cal. Ct. App. - July 19, 2019)

Yeah, I feel like if you sexually abuse your daughter, your chances of overturning a restraining order that prevents you from having contact with her for two years has extraordinarily little chance of success.

And I'm right.

(Though, contrary to how the first page of the opinion currently reads, I suspect the order restrains contact via, inter alia, electronic means, not electronic "meas.")

Thursday, July 18, 2019

Flores v. Barr (9th Cir. - July 18, 2019)

Here's how the Ninth Circuit describes the petitioner in this case:

"Petitioner Daniel Flores is a native and citizen of Mexico. He came to the United States as a lawful permanent resident in 1962 . . . . Starting in the 1970s, Flores began serving as a confidential informant for law enforcement, participating in undercover controlled drug buys and testifying against members of various gangs. Also around that time, Flores began to amass a lengthy criminal record that culminated in his pleading guilty in 1990 to two felony counts of committing lewd and lascivious acts on a child under the age of 14 in violation of California Penal Code § 288(a). Flores’s conviction carried with it a six-year prison sentence, of which he served three. He was released from prison on parole in 1994, discharged from parole in 1997, and has no further criminal record.

After his release from prison, Flores worked in the corporate security industry until 2002, when he stopped working for health reasons. He resumed his role as a confidential informant for law enforcement in 2008 but was forced to discontinue his assistance in 2011 following foot surgery. Today, Flores spends his time taking care of his mother, who suffers from several serious medical conditions, including epilepsy, Parkinson’s disease, and dementia."

That's a fairly positive description of the fellow.  You could definitely write those same facts a different way to make him look far worse.

Wednesday, July 17, 2019

In re Harley C. (Cal. Ct. App. - July 16, 2019)

Next time you get in trouble for violating a local rule, at least peruse this opinion.  It sets forth a plethora of reasons why the local rule may be invalid.  Like the local rule here that says you have to give advance notice that you're going to call witnesses at trial.

There are a ton -- ton -- of requirements for local rules.  Right down to format requirements, a table of contents, publication to the local bar, etc.  I suspect that there are lots of local rules that don't quite meet these prerequisites.

Monday, July 15, 2019

People v. Marsh (Cal. Ct. App. - July 15, 2019)

What's weird about this case -- and what's never explained -- is why the defendant would go ahead and sever the brake lines of the victim's Jeep.  It doesn't seem like the defendant even knew the guy; he just parked his car in a parking space outside a fitness club in Pacific Beach, and when he comes out of the club, he notices a pool of brake fluid under his car, and a guy (later identified as defendant, another member of the gym) sitting in a white van nearby.

The victim's a Navy SEAL and, presumably, a fit guy.  Not someone you'd normally want to mess with.  Or cut his brake lines.

Weird.

It's also somewhat strange that this counts as "assault with a deadly weapon."  Messing with a car is not normally the situation you envision when you think about someone committing that offense.

But it counts.

P.S. - I'm not saying it's the same guy; who knows.  But the defendant's name is Spencer Alan Marsh, and the opinion says he's in San Diego, and here's a random posting on a "Paranormal" web site that reads (in its entirety):  "For 17 months I have been criminally stalked, my time taken for granted, run out of work & money so I look a drug addict. IVE ALSO SEEN MAGIC AND PSYCHIC POWERS. So here's my attempt to get help: The CIA train on and hurt good people here in San Diego, CA. They reside at Beachcomber Shores & above Turquoise Street Coin Laundry in Pacific Beach, CA. Watch around early morning. My name: Spencer Alan Marsh."  So maybe that helps "explain" things?


People v. J.S. (Cal. Ct. App. - July 11, 2019)

Here's the rare case involving a juvenile offense that occurred entirely within Contra Costa County and that's nonetheless decided in the San Diego Superior Court with a San Diego judge and an appeal in the Fourth Appellate District.

Wednesday, July 10, 2019

People v. Bay (Cal. Ct. App. - July 10, 2019)

See what you think about this one.

The backpack in the car almost certainly belonged to one of the three people in the vehicle.  (I'm deliberately not going to tell you which one of the three is the defendant.)

The backpack was located behind the center console of a parked vehicle.  The car was "packed tight" and incredibly messy.  Inside the backpack was (1) some marijuana, and (2) a gun.

The person in the driver's seat knew there was marijuana in the backpack but said nothing about the gun.  He also gave a false name when asked by the police.

The person in the passenger's seat was the girlfriend of the (recently deceased) registered owner of the gun, and inside the gun case was a slip of paper with the (dead) boyfriend's name on it.

The person in the back seat was the brother of the (recently deceased) registered owner of the gun; the guy whose name was on the slip of paper.  There was also a disassembled rifle in a gun case next to the person in the back seat.

There are no fingerprints on the gun or backpack or anything in it.  The police took some DNA swabs from the backpack and its contents but never tested them.

Three groups of questions:

(1)  What's your bet as to whose backpack it was?  In other words, if you had to guess, who'd you put your money on as the actual owner of the thing?

(2)  How confident are you of that assessment.  What are the odds you're right?  Is it a one in three thing?  More likely than not you're right?  Virtually certain you're right?  Correct beyond a reasonable doubt?

(3)  Assume the driver was convicted for possessing the gun.  Do you think the evidence against him proves his guilt beyond a reasonable doubt?  Now assume the woman in the passenger seat was convicted.  Is the same also true for her; e.g., is she the owner beyond a reasonable doubt?  Ditto for the person in the back seat; is the evidence clear that he owned the backpack?  (There's little or no evidence that the backpack belonged to all of them, or anyone else, so assume it's gotta be one of the three.)

Needless to say, only one of the three was actually charged with possessing the gun.  And the Court of Appeal concluded that the evidence against this person was sufficient.

Which one do you think it was?

And do you agree that the evidence against this person established guilt beyond a reasonable doubt?

Tuesday, July 09, 2019

U.S. v. Briones (9th Cir. - July 9, 2019)

I hadn't thought about this.

I've read a ton of cases about LWOP (life without the possibility of parole) sentences for juvenile offenders in state court.  You generally can't do that; only in the rarest of cases is it permissible, in part because youthful offenders have a real possibility of change.  So you've got to at least hold out the prospect of release if they do.

Makes sense.  But what I hadn't thought about are life sentences in federal court.  Because, there, we got rid of parole.  So any life sentence is, by definition, an LWOP.

I'm sure others in the field know about this issue in some detail.  Just not me.

Today, an en banc panel votes 9-2 that the LWOP sentence for a 17-year old kid who participated in a robbery that resulted in a murder was unconstitutional.  Significantly, even the government admitted that the defendant had been a "model inmate" during the nearly two decades he'd been in prison for this offense, with not even a single disciplinary infraction.  That goes a long way to demonstrating that someone can indeed change.

Mind you, we only have that information because the whole LWOP jurisprudence is new, and so this is a habeas case.  For new juvenile offenders, we've got to guess whether or not they're going to be a model inmate.  And if we guess wrong -- if we think they won't change, but they in fact do -- there's nothing the inmate can do about it.  They're still in prison for life, since we don't have parole on the federal side.  Even if they end up even more reformed than Mr. Briones here.

Which makes me think that it might make sense to reintroduce parole on the federal side, at least for juvenile offenders.  Because after 20 or 30 years in prison, doesn't it make some sense to see whether the inmate has sufficiently turned his life around to be released?

Anyway, LWOP in the federal system.  In which there's no P.  A difficult problem.

Monday, July 08, 2019

Hoffman v. Pulido (9th Cir. - July 8, 2019)

Appellate courts in California are definitely returning from vacation slowly.

On the state side, today gives us (1) insubstantial edits to a prior opinion; (2) publication of a previously unpublished opinion (that simply does what the Ninth Circuit did in a prior unpublished opinion); and (3) a California Supreme Court opinion that affirms the Court of Appeal and agrees with the view of the California Department of Social Services in a welfare case.

I'd say that none of those opinions are exactly earth-shattering, though I fear that might perhaps trigger someone still reeling from the 7.1 earthquake over the holiday.

On the federal side, there's only one published opinion.  In a fact-specific decision, it holds that one of a prisoner's prior lawsuits was dismissed for lack of subject matter jurisdiction and hence does not count as a "strike" for purposes of having to pay filing fees in the future.  Mind you, the guy's filed something like 21 different lawsuits in the past, and the last footnote mentions that some of those lawsuits might perhaps also count as a strike -- something the district court will have to decide on remand.  So it's not like this opinion is likely to make much of a difference on the merits.

So here's my recommendation to you:  Take a day off reading appellate opinions.  Pretend like it's still the holiday weekend.

Sans the earthquakes.

Wednesday, July 03, 2019

Edge v. City of Everett (9th Cir. - July 3, 2019)

The Ninth Circuit wants you to spend your Fourth of July holiday pondering the following issue:

What's your anal cleft?

Yes.  Seriously.

I'll let you read the opinion to figure out why this is important in the context presented.  But the panel unanimously concludes that people of ordinary intelligence understand what "anal cleft" means, and the statute at issue is accordingly not unconstitutionally vague.

As to the overall merits of the case, I admit to some sympathy with both sides.  There's no way I'm ever going to patronize a "bikini bistro" in which women in pasties and g-strings serve you drive-through coffee.  I'm also quite confident that there are indeed some secondary (deleterious) effects of these establishments; e.g., "how a customer in a truck approached the window and began 'groping' the barista in intimate areas . . . [while] the next customer in line . . . was clearly touching his genitals through his clothes as he was waiting his turn.”  Not something I especially want to see with "my 2 young daughters" in the car.

On the other hand, I think there is an element -- an element -- of expression involved here.  Various baristas testify that their choice of clothing in this regard is an expression of female empowerment, body self-acceptance, etc.  Now, to me, the commercial nature of the underlying transactions suggests that there might be other things, apart from speech, that are primarily motivating the conduct at issue. And, if you want, you can always wear your thongs and pasties off the clock, and the fact that you're probably not ordinarily parading around in this stuff when not being paid to do so suggests that the message-specific motivation for one's conduct is not extraordinarily strong.

Nonetheless, although there are alternatives, and conflicting motives, and all sorts of secondary deleterious effects, I nonetheless think that there is a message here.  And, unlike today's opinion, I think it's not one that people entirely fail to understand.  Sure, that meaning might be ignored (or overlooked) by some people.  But in the modern era, I'm not at all of the view that people fail to understand what body acceptance means -- and the various ways it's demonstrated.  (Moreover, I doubt this case would come out differently if the baristas at issue had signs that said "We're nearly naked to show our empowerment and acceptance of ourselves," thereby making the message crystal clear.)

I also wonder whether the Ninth Circuit isn't distorting precedent a bit; though, in this regard, it's hardly alone.  The panel bases its opinion on the holding that to be protected speech at all, the conduct at issue has to have a "great likelihood" of being understood by the public as the intended message.  But that's not actually the standard the Supreme Court set.  That quote comes from the Supreme Court's opinion in Spence, which held that displaying an upside down flag with a peace symbol attached was protected speech.  In so holding, the Court noted that it wouldn't be difficult for a "great majority of citizens" to understand what that means, and that indeed, the "likelihood was great" that that message would be understood.

But the Court never said that was the test.  It just said it was true in that case.  A fact that supports the expressive nature of the conduct but hardly seems essential.  To take but one example from my own (bygone) era, I doubt that most people will readily understand what I mean if I hold up a sign saying "Bong Hits For Jesus."  But that's undeniably protected speech (even if not, according to a close 5-4 opinion, necessarily protected in a school.)

Ditto for the other case in which this purported standard was articulated, Texas v. Johnson (the flag-burning case).  Again, the conduct there was held to be protected speech, and the meaning of burning a flag isn't totally hard to understand.  Yeah, the Supreme Court did there what the Ninth Circuit does here:  quotes Spence out of context, with inserted words to make it seem like the quote is a test, rather than a factual description.  A test that, in any event, was met there.

On the jurisprudential merits, it seems silly to hold that speech isn't speech at all unless there's a "high likelihood" that people will understand exactly what you mean.  I agree that the more they understand it, the more we might want to protect its exchange in the marketplace of ideas.  But the protection for saying "Trump is God Personified," for example, or conduct displaying such a message, doesn't seem to me to depend on whether people accurately perceive my intention as being pro-Trump, anti-Trump, or anti-religious.  It's a message.  Whether you get it or not hardly is itself dispositive as to whether I'm making a message.  Much less is it so dispositive that the standard is whether most people have a "high likelihood" of groking my intended meaning.

An example, in my view, of a factual statement in a prior opinion that was never intended to be a test and yet becoming one over time by people with a different agenda.

One final point about the opinion.  This case is about the right of women (who are the relevant actors here, I believe) to "wear[] almost no clothing," in the words of the opinion, at work.  It's interesting to note that the panel here consists entirely of women.

One might wonder if (some) men might address things differently.  And how it's a better world that women's permissible legal choices are no longer decided entirely by men.

Tuesday, July 02, 2019

JBB Partners v. Fair (Cal. Ct. App. - July 2, 2019)

It's one thing to impose sanctions for a frivolous appeal.  It's another to publish that opinion and to savage the person you're sanctioning.


The target of the Court's ire is (inactive) attorney Robert Thomas Fair.  Mr. Fair agreed to a $350,000 settlement and then backed out of it.  Spawning six years of contentious litigation and appeals.

Ending in today's $40,000+ award of sanctions.

The Court of Appeal and the trial court are undeniably correct that Mr. Fair agreed to settle the dispute, even if that settlement wasn't necessarily enforceable under Section 664.6.  Here are the basic facts of the acceptance(s) -- which are pretty darn stark:

"Russo, plaintiffs’ attorney, sent the July 4 offer to Fair via email on the evening of July 4, 2013, stating that it was plaintiffs’ “LAST AND FINAL OFFER,” and setting forth the 10 required terms of the settlement. The final paragraph of the offer stated, “WE require a YES or NO on this proposal, you need to say ‘I accept’ and I will work the balance of this holiday weekend to get the paperwork drafted. . . . Let me know your decision.

The next day, July 5, at 10:17 a.m., Fair responded, “Jack, the facts will not in any way support the theory in your email. I believe in Cameron. So I agree. Tom [F]air.”

At 10:28 a.m., Halliburton, another attorney for plaintiffs, sent an email to Fair stating, “I don’t understand your email. Are you rejecting Jack’s settlement offer or accepting it? Please be unambiguous, because I am about to file the complaint and ex parte papers unless we hear an unambiguous acceptance.” . . .

At 1:02 p.m., Fair responded, “I said I agree. Took wording right from Jack’s email. I agree.” At 1:04 p.m., Fair left a voicemail for Halliburton, stating that he had not been able to respond earlier because he had been playing golf on a course that did not allow cell phones and that “I agreed to your terms . . . I agreed. We have a deal . . . you can stop proceeding at this point. . . .” At 1:07 p.m., Fair sent an email to Halliburton in which he stated, “I do not believe you gave proper notice. Also I agreed with your terms. You should [n]ot have filed. We clearly have an agreement. tom fair [sic].” At 1:36, Fair sent an email to Russo, stating, “Filing does not obviate agreement/acceptance. Pls [please] acknowledge.”

At 1:53 p.m., in an email to Fair, Russo stated, “This confirms full agreement, I will work on the formal settlement paperwork which will conform to the settlement agreement made today based on the 10 numbered paragraphs. . . . I will seek to get that settlement paperwork to you for review by Monday with the goal of getting it all finalized and signed next week. The settlement is otherwise binding under [section 664.6].” At 1:55 p.m., Fair sent a text message to plaintiffs’ counsel, stating “I have accepted by phone and emai[l]. I said accepts which is the same as ‘agreed.’ You must stop and you must tell the court we have an agreement.” At 2:09 p.m., Fair’s emailed response to Russo’s 1:53 p.m. email confirming full agreement was “Ok.”"

Uh, I pretty much cannot even imagine any more of an obviously binding agreement.  There was a deal.  Period.  Which is why the trial court properly granted summary judgment on that point.

As for the sanctions order:  Wow.  Check this out:

"In the present case, “[a]lthough we recognize sanctions should be used sparingly to deter only the most egregious conduct [citation], we find them warranted here.” (Kleveland, supra, 215 Cal.App.4th at p. 557.) That is because defendants’ arguments on appeal are not “supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.” (Kleveland, at p. 557.) 

First, the history of this matter is relevant to our determination of the propriety of sanctions. [Cite] This case began almost six years ago, with a settlement offer to which Fair—a licensed attorney—agreed in writing some six times. [Cite]

Additional prior conduct is also relevant to our sanctions determination, including defendants’ repeated attempts to arbitrate this matter, together with a tardy appeal to this court of one of the trial court’s orders denying their motion to arbitrate, despite their failure to appeal the denial of their initial motion to arbitrate. [Cite]  In addition, the trial court granted plaintiffs’ special motion to strike a cross-complaint filed by defendants, after finding that defendants’ claims did not constitute protected speech and defendants were not likely to prevail on the merits because all of the claims in the cross-complaint were protected by the litigation privilege. [Cite] We affirmed the court’s order on appeal. [Cite] As we stated in our 2018 opinion affirming the grant of the anti-SLAPP motion, defendants “offered misleading quotes, taken out of context from the demand letter,” to argue that plaintiffs’ attorney was threatening criminal prosecution for Fair’s alleged Ponzi scheme if Fair did not agree to pay plaintiffs $350,000, whereas he in fact “threatened no such thing.” [Cite] Defendants raised a similar argument in support of their motion for summary adjudication and in this appeal, which provides further evidence of frivolousness. [Cite]

Defendants also offered misleading partial quotes from one of our own prior opinions in this case in which we reversed the trial court’s judgment enforcing the settlement against defendants, pursuant to section 664.6. They then relied on this misleading language to argue that this court found that no settlement in fact occurred. . . . In both their anti-SLAPP appeal and the present appeal, defendants have distorted the language and intent of our own 2014 opinion to support their claim that we held in that opinion that no settlement had been reached, which we explicitly stated in that opinion we were not doing. . . .

In addition, in their supplemental briefing opposing sanctions, defendants purport to demonstrate the merit of this appeal by asserting that “there are several potential triable issues of material fact regarding the existence, actual terms, and enforceability of the parties’ purported July 5, 2013 settlement agreement.” They then repeat in summary form the same completely meritless arguments raised in the trial court and in their opening brief on appeal, in which they offered selective facts, misrepresented the record, and/or argued completely inapplicable law. . . .

For all of these reasons, we conclude that “any reasonable attorney would agree that the appeal is totally and completely without merit” and would not have raised the arguments defendants make on appeal, which are merely rehashed in the supplemental briefing in opposition to imposition of sanctions. [Cite]  In light of this conclusion, we need not directly address plaintiffs’ additional arguments that there is evidence demonstrating that defendants filed this appeal for the subjective purpose of delay because we find that the history of this case and the indisputable “total lack of merit” of this appeal provide strong evidence of defendants’ subjective intent, i.e., that they “ ‘must have intended it only for delay.’ ” [Cite] 

In short, we are persuaded, by clear and convincing evidence, that the pursuit of this appeal was frivolous, and warrants sanctions."

Remember:  This is a published opinion.  That's gotta hurt.

Plus, the Court of Appeal not only sanctions Mr. Fair, but also his attorneys.  Which is a reminder not to take on frivolous appeals brought by litigious clients.  Particularly lawyers.

A total smackdown by the Court of Appeal.

Friday, June 28, 2019

Claiborne v. Blauser (9th Cir. - June 28, 2019)

This is a long, 27-page, single-spaced opinion.  Made longer by the fact that the defendant didn't object at trial, so we've got to review for plain error.  (Though the district court said it would have done the same thing even if an objection had been made, further complicating things.)

Notwithstanding the length, the opinion boils down to a very simple question:

Do we really have to publicly shackle a plaintiff during his civil trial when he's (1) 63 years old, (2) mobility impaired, and (3) had only ever committed nonviolent drug and property offenses?

Probably not.


Wednesday, June 26, 2019

Biel v. St. James School (9th Cir. - June 25, 2019)

When I'm right, I'm right.  When I'm wrong, I'm wrong.

Vis-a-vis this opinion, I was a little bit of both.

When the panel decision came out late last year, I was definitely on board with the majority opinion by Judge Friedland.  I thought it made great sense.  Still do.

There was a dissent, and I suspected -- correctly -- that it'd get some traction at the en banc stage with various conservative judges on the Ninth Circuit.  But I wrote back in December that these individuals would not be a majority of the court, and that an en banc vote would fail.

On that, I was right.

But I ended the post by saying that I didn't think the vote would be "anywhere near" a majority to take the case en banc.  On that, I adjudge myself incorrect.  The dissent from the denial of rehearing en banc received at least nine votes, since nine judges joined Judge Ryan Nelson's dissent.  All of the signatories were appointed by Republican presidents; indeed, every Bush appointee signed on, as did most of the Trump appointees. 

That doesn't get you a majority.  But it does get the dissent a solid third.

Times are a-changin' on the Ninth Circuit.  There was a period in which moderate liberals were a very large majority on the court.  You're now seeing the resurgence of a solid core of very conservative judges.  Not a majority, to be sure.  But solid.

And I suspect you'll see lots more dissents from denial like this in the future.

Tuesday, June 25, 2019

People v. Toledano (Cal. Ct. App. - June 24, 2019)

Great news for Newport Beach attorney James Toledano!  His conviction for extortion was reversed by the Court of Appeal for instructional error.

Bad news, though:  The Court of Appeal simultaneously holds that there was sufficient evidence to support his conviction, so Mr. Toleano continues to face a retrial on remand.  This time with proper instructions.

Plus, at least at present, he's still ineligible to practice law.

The underlying facts bespeak substantial caution whenever you're negotiating a civil settlement in which one of the aspects of the case is that some of the parties previously had an affair and you're arguably getting "hush money" to keep it quiet.  Because maybe, depending on the facts, that counts as extortion.

And you'll find yourself 75 years old, ineligible to practice law, unable to afford an attorney, and with a court-appointed lawyer for your second criminal trial.

Guillory v. Hill (Cal. Ct. App. - June 25, 2019)

The end of page two of today's opinion tells you probably all you need to know about the case.  The two sentences therein say:  "Plaintiffs originally sought over $1 million in damages but ultimately obtained an award of less than $5,400. Plaintiffs then moved for almost $3.8 million in attorney fees in a 392-page motion containing, in the trial court’s words, “bloated, indiscriminate,” and sometimes “‘cringeworthy’” billing records."

Yikes.  Needless to say, the Court of Appeal affirms.

Can you get an award of attorney's fees even if you obtain a relatively small award of damages at trial?  Of course you can.

But while pigs get fat, hogs get slaughtered.

Plaintiffs here asked for a ton of money at before trial, and then their lawyers asked for a ton of money after trial.  Perhaps even worse, the fee request at issue basically just dumped a huge pile of billing records in front of the trial court and said, essentially, "Sort it out yourself."

That, plus the fact that the bills were "crammed with obfuscating and questionable" entries, doesn't get you what you want.  It gets you exactly the opposite.  Nothing.

This is a good case to cite for the proposition that a bad (or abusive) fee motion is reason alone to deny fees altogether.  Though I doubt many cases involve nearly as bad of facts as these.

(The firms that represented the plaintiffs below, as well as on appeal, are Quintilone & Associates and the Eisenberg Law Firm.)




Monday, June 24, 2019

People v. J.M. (Cal. Ct. App. - June 24, 2019)

A kid in high school is upset that he's short on credits to graduate and tells his friend, in a private conversation, that he's going to "blow up the school, shoot it" and that he knew how to get an Army grenade.  The friend thinks that the kid is joking, but isn't certain.

The Court of Appeal holds that's a felony, and counts as "a false report [that] a bomb or other explosive device would be placed in [the] school."

Thursday, June 20, 2019

People v. Bankers Ins. Co. (Cal. Ct. App. - June 19, 2019)

I didn't think there'd be a dissent to this one.

The trial court declares the defendant's bond forfeited when his attorney shows up a little late to a hearing.  The attorney had called in, telling the clerk that he'd be there in 45 minutes, but didn't leave his name.  The attorney walked in five minutes after the court declared the bond forfeited, so the trial judge corrected the forfeiture.  No blood, no foul.

Three months later, the defendant skips.  The bond is ordered forfeited.  But the surety says that it's entitled to its money back because the trial court forfeited the bond earlier, and wasn't allowed to change that decision five minutes later without providing notice to the surety.

The Court of Appeal, like the trial court, disagrees.  It doesn't make any sense, Justice Danner says, to stop the trial court from correcting straightforward errors in the forfeiture process five minutes after they've transpired.  If the lawyer was a little late (especially if he had an excuse), and the "forfeiture" box was never entered in the minutes and corrected during the same court session, that event should not have any significance -- much less a dispositive one that allows the surety to avoid its obligation in the event the defendant flees.

It's a common sense ruling.

But Justice Mihara dissents.

It's not that Justice Mihara doesn't have a point.  The statute does say that you've got to give the surety notice once you forfeit a bond in open court.  And there's an argument that this makes sense even for a lawyer being five minutes late; it give the surety the opportunity to "reassess" the flight risk of the defendant (and, arguably, the competence of counsel).

So there's an argument.  Backed up by precedent.

But it's a weak one.  Or at least weaker, in my view, than the arguments the other way.  Particularly when the trial court makes mistakes; let's say, for example, that the defendant was there, and the trial court declared the bond forfeited, but it was a mistake, which the trial court realized ten seconds later (e.g., the defendant said "Here," but the trial court didn't hear him, and declared the bond forfeited, only to reinstate it seconds later when the defendant said "But I said I'm here!" and the trial court said "Oh, sorry, my bad, I didn't hear you.")  Under Justice Mihara's view, you're under a mandatory duty to notify the surety -- even after the correction -- and if you don't, the bond can't be forfeited even if the defendant later skips.  Doesn't make sense.  Ditto for the situation here.

So Justice Danner writes a common sense opinion.  As to which I'm on board.

Makes justice better.

Tuesday, June 18, 2019

Martinez v. Ryan (9th Cir. - June 18, 2019)

It's been a heavy week for death penalty cases recently.  I don't know whether it's the summer or just random, but lots and lots of murder opinions in the pipeline.  Which are always depressing, and that rarely show people at anything other than their absolute worst.

Today gives us a Ninth Circuit opinion that unanimously affirms the denial of a habeas petition in a death penalty case.  It's authored by Judge Milan Smith and joined by Judges McKeown and Fletcher. So the chances of en banc or Supreme Court review are essentially zero.  In California, that wouldn't mean much as a practical matter.  But this is Arizona, in which they at least used to actually carry out a fair number of executions.  (At least until it took two solid hours, and fifteen different attempts, to execute the last guy, at which point the Arizona governor put a moratorium on executions, until the state figures out how to actually "humanely" kill someone.)  So there's at least some chance that this guy will in fact be put to death at some point.

It's also not a case where you can't figure out why the death penalty was imposed.  It's someone who killed an on-duty cop, so that's going to get you sentenced to death more times than not.  And, as if that wasn't enough, the Ninth Circuit's opinion drops this little nugget in a footnote on page seven:  "Hours after murdering Officer Martin, Martinez robbed a convenience store in Blythe, California, and fatally shot the store clerk. Martinez’s convictions and sentences for that robbery and murder, however, are not before us."

Making it virtually certain -- if it wasn't already -- that the jury's going to sentence the guy to die.  As well as diminishing whatever residual sympathy a Ninth Circuit panel might have for the petitioner.

Monday, June 17, 2019

Swanson v. County of Riverside (Cal. Ct. App. - June 17, 2019)

This is an interesting opinion on several levels.

First, the (alleged) facts are fairly striking.  Brandon M. attacks his mother with a pair of scissors and is admitted to the Riverside County Regional Medical Center on a 72-hour involuntary hold.  But the hospital purportedly released him before the 72 hours has expired; allegedly,  "[leaving] Brandon in a waiting room and discharg[ing] him for lack of space before the expiration of the 72-hour period, then provid[ig] him a bus pass to return home" having never even assigned him a room.

Which is no problem if Brandon's not a danger to himself or others.  (Though he has just attacked his mother with scissors, so we might want to be a bit cautious here.)  But what does Brandon do once he gets home from the hospital?  He promptly uses a baseball bat at the home to bludgeon three people there to death.  Including, ironically, a technician who was installing an alarm system in the home, presumably to protect the family from . . . Brandon.  Not good.  (Some of the briefs in the dispute are redacted and nonpublic, but for more information about the underlying offense, including some facts not discussed in the opinion, check this out.)

The County files an anti-SLAPP motion, which successfully delays the lawsuit for some time.  But the trial court correctly denies it and the Court of Appeal affirms.

Beyond the facts of the case, the other interesting component of the opinion is the legal analysis.  Justice Huffman authors an 18-page disposition.  But the legal analysis of the actual holding of the thing is only two pages long, finding (appropriately) that the lawsuit didn't "arise out of" protected speech -- and instead arose out of conduct -- so the anti-SLAPP statute didn't apply.  The majority of the opinion, both before and after that holding, addresses other grounds for denying the motion, and simply serves to "express doubt" as to various County defenses.

That's a fairly long time to talk about issues that you're not actually deciding.  Maybe helpful to other (and/or lower) courts in the future, or on remand.  But classic dicta.

Expressed at length.