Tuesday, November 26, 2013

In Re A.M. (Cal. Ct. App. - Oct. 30, 2013)

When I was a high school student, if you skipped school, your parents dealt with you.

Nowadays, we put a GPS tracking device on you.

Monday, November 25, 2013

In Re Fonberg (9th Cir. - Nov. 25, 2013)

It's a week for giving thanks.  So that's what I'll do, which means that posting may be a little light this week.

But Margaret Fonberg gets to give thanks early.  She's a career law clerk for a magistrate judge in Oregon.  In  2009, she attempted to get benefits for her same-sex domestic partner, but was denied by OPM.  She claimed that OPM's policy violated her constitutional rights.

Her case has a unique procedural posture since she's "internal" to the court system.  But after going to the chief judge for the District of Oregon, it ends up in the Ninth Circuit's Executive Committee.  Which holds today -- following Windsor -- that it's unconstitutional to deny same-sex domestic partners equal benefits.

So Fonberg gets back pay of around six grand.

Happy Thanksgiving.

Friday, November 22, 2013

U.S. v. Arreguin (9th Cir. - Nov. 22, 2013)

I'll say nothing about substantive about today's Ninth Circuit opinion other than simply making a prediction:

My money's on the United States Supreme Court GVRing the case in light of the ultimate opinion in Fernandez v. California, which was argued last week.

Which is not to say that the panel will necessarily change its mind.  But my bet's nonetheless that this opinion isn't the end of the story.

Kurtz v. Syrus Systems, Inc. (Cal. Ct. App. - Nov. 22, 2013)

This decision is wrong.  Understandable.  But wrong.

It's an anti-SLAPP appeal, but the relevant dispute boils down to a single issue:  Can an employer sue for malicious prosecution based upon an applicant's (allegedly) frivolous prosecution of a claim for unemployment benefits?

The Court of Appeal says "No," a holding based exclusively upon the language of Section 1960 of the Unemployment Insurance Code, which provides that findings of an unemployment proceeding "shall not be used as evidence in any separate or subsequent action or proceeding [] between an individual and his or her present or former employer."  According to the Court of Appeal, this means that the employer can never prove that the unemployment proceeding terminated in its favor, since Section 1960 precludes admission of any evidence about this proceeding, including but not limited to its outcome.  And since the employer can't prove favorable termination, it definitionally can't establish one of the elements of malicious prosecution.

You could indeed read the statute that broadly.  But you'd be wrong to do so.

The point of Section 1960 is to prohibit issue preclusion from findings made by unemployment commissioners.  It's not to bar malicious prosecution claims, which are routinely permissibly filed in response to frivolous administrative proceedings.  Section 1960 is like analogous statutory and common law provisions governing mediation, arbitration, small claims proceedings, and other areas in which we don't want to give preclusive effect.  But just because we don't allow the findings in such areas to be admissible doesn't mean that the result of those proceedings can't establish a favorable termination.  In the same way you can't give evidence about what transpired at a mediation but are nonetheless permitted to enforce a settlement agreement arising therefrom.

I understand the Court of Appeal's contrary textualist approach.  But it's overly formal.  It doesn't accurately reflect the policies and legislative intent behind Section 1960.  And it neglects the adverse policy consequences that necessarily arise from the Court of Appeal's holding.

I concede that there are some cases in which the text is so spanking crystal clear that there's no room to do the right thing.  This isn't one of them.

The Court of Appeal shouldn't have reversed the trial court.  Bad result.  Bad law.

Thursday, November 21, 2013

People v. Vangelder (Cal. Supreme Ct. - Nov. 21, 2013)

How many innocent people are you willing to throw in jail in order to convict a guilty person?

It's a classic problem of criminal law.  It's the foundation of why we require proof of guilt beyond a reasonable doubt.  "Better that 10 guilty people go free than that one innocent person be imprisoned."

But what's the right number to let go free?  10?  100?  1000?  Presumably that number gets reflected in our internal (or external) definition of what "reasonable doubt" entails.  If we're only willing to let 10 go free -- if we're unwilling to let 11 roam the streets -- then presumably "reasonable doubt" means something like "90% certain".  Whereas if the relevant number is 1000 or so, then reasonable doubt means something more like being 99.9% sure the guy's guilty.  Because if that's the number, we can be sure that only 1 time in a 1000 or so will we be incarcerating innocent people.

Like I said, that's an age-old debate.  One I've deliberately oversimplified a bit.  If only because it's nearly impossible to summarize a century of jurisprudence and thousands of law review articles into a couple of paragraphs.

I mention this not simply to highlight a recurring problem of criminal law.  But also because it's directly at issue -- despite the fact the California Supreme Court never once mentions it -- in this case.

It's a drunk driving case.  Prosecutions that happen all the time.  Where, if only due to the law of large numbers, we've undoubtedly subjected a number of innocent people to criminal punishment.  Nonetheless, we clearly want to get it right.

There's a breath test in this case.  The question in this opinion is whether an expert gets to testify about the potential inaccuracies of the test.  The guy blows a 0.095 -- and then a 0.086 -- on the machine, and the relevant statute says you're guilty if you're driving with over a .08.  Is it admissible for the expert to say not that this particular machine is inaccurate (e.g., improperly calibrated or the like), but rather that by its very nature the output of that machine is inherently inaccurate?

There's good reason, by the way, to believe that that number may well be inaccurate.  A fact that nearly every scientist or person knowledgeable in the field recognizes.  What we're trying to get at with breath tests is the underlying blood alcohol content (BAC).  Because we don't care at all, obviously, how much booze is in your breath.  We instead care about how much is in your blood -- which means, in turn, in your head.  As that's what makes you a danger.

Is breath content a decent proxy for blood content?  Yes.  Yes it is.  That's Henry's Law.  In general, when you have a permeable membrane -- like the aveolar sacs in your lungs -- that touches a liquid (e.g., blood), stuff seeps through.  So the concentration of booze in your breath is roughly the concentration of booze in your blood.

The key word, of course, being "roughly".

'Cause we also know, from extensive scientific study, that "rough" is really quite "rough".  Which matters a lot when there's a sharp dividing line -- e.g., .08 -- between guilt and innocence.

One reason for the "roughness" is what's called the "partition ratio".  Simply put, with some people, more booze gets through the aveolar sacs to the lungs, than with other people.  This ratio varies from person to person.  Women are generally different than men.  Lung capacity (and condition) also plays a role.  There is, in short, a ton of variability.

None of which matters to the Legislature.  The Legislature has by definition set the partition ratio at 2100 to 1.  We're going to declare -- despite the fact that we know it's not true -- that the amount of alcohol in 2100 parts of breath by volume is equal to the amount of alcohol in 1 milliliter of blood.

When you do that, by definition, you know you're convicting "innocent" people -- people who do not, in fact, have a blood-alcohol concentration of .08.  Indeed, we've done studies, and we know almost exactly how many innocent people we'll throw into jail as a result.  To its credit, the Legislature has set the 2100:1 ratio that -- for most people -- understates the ratio of alcohol in the bloodstream.  (The average ratio is actually around 2300:1.)  But for some people -- scientific estimates range from 2.3% of the population to as low as 0.3% of the population -- the Legislature's partition ratio nonetheless still overstates their individual ratio.  A person like this will be convicted of driving with a BAC of .08 (i.e., will blow a .08) even though their actual BAC is less than that.

We know that.  But we're willing to convict them anyway.  Even when the relevant machine is working perfectly fine.

The proposed expert testimony here discussed a related, but similar, issue.  Something that scientists also uniformly know.  You see, what we're trying to get at with breath tests is the alcohol content in your actual aveolar sacs.  But guess what?  We can't get there.  If only because we don't want to (or can't) stick a tube down there and pull out the stuff directly.  So we get it indirectly.  By making you blow "deep breaths" into the machine.  That last little bit of air comes largely from deep in your lungs; e.g., the deep sacs.  So that's a rough proxy.

But there's that word again.  "Rough".

Because guess what?  We know for a fact that the air that comes out of your mouth isn't the same as the air in your sacs.  It's contaminated by the usual stuff even laypeople might know.  Mouthwash.  Alcohol in your oral cavity you might have just imbibed.  Barf.  Stuff like what.  Which is why we generally wait a while to have you breath into the machine.  To try to minimize those contaminants.

But what scientists know is that there's stuff you can't minimize.  In particular, mucus and other liquid stuff in your upper lungs.  That stuff may contain a fair amount of accumulated alcohol.  It's liquid, after all, and has been repeatedly exposed to prior alcohol.  So even if the breath in your aveolar sac is at .07, after it goes over this mucus and other stuff in your upper respiratory system, it might pick up enough alcohol to be .09.  Which is what the machine might read.  So you get thrown in jail despite the fact that your BAC is lower than .08 (i.e., is at a point at which we allow people to permissibly drive).

That's what the expert here wants to say at trial.  But the California Supreme Court unanimously holds that he can't.  Because, it says, the statute inherently defines the offense as having a breath concentration at the relevant point. The fact that this may have an imperfect -- or even utterly no -- correlation to what we in fact care about (i.e., the alcohol content of your blood) is irrelevant.

There's a lot to be said for that conclusion as a linguistic matter.  It's actually right.

But it also says a lot about the age-old debate about "reasonable doubt".

One way to feel okay about incarcerating innocent people is to futz with the underlying concept.  To say that it's okay to convict sometime even if you're only 90% (or 99%) sure they're guilty. Yes, we may thereby put an innocent person in prison.  But that standard would nonetheless stop 10 (or 100) people from going free, so it's worth it.

The other way to solve this problem, however, is to do what the Legislature and the California Supreme Court have done here.  It's to say that we don't care.  To define the offense in a way that makes someone guilty even if we know they may not in fact have the characteristics about which we actually care.  So we may actually think that .08 alcohol blood content is the dividing line between when you can and cannot be allowed to drive.  But we nonetheless won't define the offense that way.  We'll instead define it as .08 in the person's breath.  That way -- by definition -- no one's innocent.  Which is what the California Supreme Court says here.  Which is in turn why the expert's testimony is inadmissible to the per se offense at issue.

Which some people may perhaps be fine with.  After all, they're driving after having imbibed alcohol, and we're not that psyched about that, right?

Though realize that we could do the exact same things for other crimes as well.  Worried about not being able to convict murderers?  Just define the offense differently.  Say that you're hereafter guilty of "murder" whenever you've (1) actually committed a murder, (2) been found with a gun in your hand within 50 feet of a dead person who's been shot, and/or (3) have confessed to a murder.  Boom.  No "innocent" people have been wrongly convicted.  By definition.  Despite the fact that it's the very definition of the crime that's the really troubling part.

We don't do that for murder.  Or virtually any other crime.  For good reason.

But we do here.

It's a neat little twist on the longstanding debate.  A way in which the Legislature "avoids" the problem of "innocent" people being incarcerated by defining the problem away.

Which works.  Except for the necessity of the quotation marks around the relevant terms.

Wednesday, November 20, 2013

People v. Tirey (Cal. Ct. App. - Nov. 15, 2013)

Law students often find constitutional law interesting, but somewhat challenging.  It's too highbrow.  The standards are too vague.  There are no determinate answers.  The opinions are starkly results-oriented.

All that's true.  To a degree.

But there are some cases that are nonetheless straightforward.  Obvious.  Beyond substantial dispute.

Here's one of them.

Criminals can occasionally become rehabilitated.  And, when they are, if they make a specified showing, they can obtain a certificate of rehabilitation.  For sex offenders, that's a pretty significant step.  Because, amongst other consequence, a certificate of rehabilitation relieves them from the lifetime requirement of registering as a sex offender.

But California law has a neat little twist.  If you're convicted of a sex offense with a very young child -- one that's ten years of age or younger -- you can get a certificate of rehabilitation.  By contrast, if you're guilty of a sex offense with a child under 14, you can't.

Which makes no sense.  Absolutely no sense.  It's just a crazy -- and presumably -- unexpected twist in the law that results from a statutory patchwork of cross-references to which the Legislature presumably paid no (or almost no) attention.

So Tirey -- who's been convicted of lewd conduct with two girls under 14 -- challenges the statute as a denial of equal protection.  He couldn't be more right.  There's no rational basis for the way this statute works.  A statute that gives a lesser punishment to a greater offense simply makes no sense.

The Court of Appeal agrees.  Striking down the statute and letting Tirey seek his certificate.

The California Attorney General's Office doesn't confess error.  It tries in vain to come up with arguments in defense of the statutory scheme.  They're silly.  They're wrong.  Constitutional law may be amorphous to a degree, but it's not infinitely malleable.  Even if you don't like sex offenders -- and the Court of Appeal surely does not -- the proper result here is crystal clear.

Some cases are easy.  Even when they involve striking down a statute as a violation of the Constitution.

Tuesday, November 19, 2013

People v. Johnson (Cal. Ct. App. - Nov. 19, 2013)

Ryan Johnson was a big deal.  He decided to put together a robbery of a guy who grew (and perhaps sold) weed from his house.  His crew consisted of his buddies Kelsey Alvarez and Jesse Baker-Riley.  Ryan was the "shot-caller".

Pursuant to Johnson's plan, Alvarez and Baker-Riley show up at the home of Peter Davis, who had a fair amount of marijuana at the place.  They knock on the door, and when Davis answers, Baker-Riley pulls out a large handgun and shoves it in Davis' face.  Stand and deliver.

Baker-Riley sees a pile of pot on the table, and tells Davis to wrap it in a paper towel and give it to him.  Davis -- not surprisingly -- does so.  Baker-Riley is clicking the safety of his gun on and off.  He's taunting Davis, telling him he's "quick on the trigger, homie."  Baker-Riley makes references to "Pulp Fiction".  This is fun.

Baker-Riley then sees a fortune cookie on the table.  Points his gun at Davis and tells him to open it.  Fortunately, the fortune is not "You're going to be shot and killed today."  Because God knows what Baker-Riley would have done at that point.  It's instead the typical vaguely positive thing you usually get in the middle of these stale treats.  It says "There will be many upcoming opportunities.  Take advantage of them."  Which Baker-Riley understandably finds funny.  Because he's indeed taking advantage of the opportunity to rob Davis.  And Baker-Riley says so.

Baker-Riley eats some food that's on Davis' table -- more Pulp Fiction -- and demands that Davis tell him the location of the rest of the weed.  Davis says he doesn't have anything.  Baker-Riley sees some marijuana drying in a back bedroom.  Orders Davis to go back there and sit on the bed.  Davis does so.  Telling Baker-Riley:  "Don't kill me.  I'm not going to do anything.  Take what you want.  Just don't kill me."

I know what you're thinking.  You're thinking that, just like in Pulp Fiction, Baker-Riley's going to spew out some fancy line from the Bible and then blow Davis away.  Complete the cycle.

Perhaps.  But you forgot about the fortune cookie.

It told Davis that there will be many upcoming opportunities, and to take advantage of them.  It was right.  Baker-Riley had told Davis to sit on the bed.  Guess what's on the nightstand?  That's right.  A gun.  Never one to go against a confection, Davis whips it out, and repeatedly fires.  Killing Alvarez with a shot to the chest.

So Alvarez dies.  Baker-Riley gets convicted of first-degree murder.  Despite not firing a shot, he's guilty under the provocative murder doctrine, because someone else got shot.  And Johnson -- the shot-caller, who wasn't even present at the raid -- gets convicted of first-degree murder as well, and sentenced to 26 years to life.

The Court of Appeal affirms.

Tough luck for both Johnson and Baker-Riley.  But at least they're better off than Alvarez.

Life imitates art.  But sometimes comes out a different way.

Monday, November 18, 2013

Berendes v. Farmers Ins. (Cal. Ct. App. - Nov. 18, 2013)

Kristina Berendes' father gave her a 2005 Mercedes-Benz ML 350 for graduating college.  Nice gift.

Kristina was later a pedestrian when she was hit and killed by an underinsured driver.  Her survivors got the driver's $50,000 policy limit, and another $200,000 from her husband's underinsured motorist coverage.  But she wants an additional $1,000,000 from her father's umbrella policy.

She got the car from her father.  But not the policy.  Dimissal affirmed.

Sometimes a good insurance policy is even more important than a Mercedes.

Friday, November 15, 2013

U.S. v. King (9th Cir. - Nov. 15, 2013)

Check this one out.  A story of guns, lies, and the convictions that were ultimately spawned.

Here's a snippet:

"Oliver King, born Hamid Malekpour, is an Iranian-born Canadian citizen and self-described firearms enthusiast. In January 2009, during a flight from Amsterdam to Tehran, King bonded with Amir Zarandi, an Iranian-born United States citizen, over their shared passion for guns.

Although King purportedly ran an ammunition manufacturing business in Vancouver, Canada, he was not permitted to lawfully deal firearms in either the United States or Canada. As a non-immigrant alien, King was ineligible for a license to deal firearms in the United States. He was eligible for a license in Canada, but his license had been revoked. Three months after he and Zarandi met, King invited Zarandi to Vancouver. During the visit, King drove Zarandi to a building where King’s company was purportedly located. When Zarandi asked to go inside, King made excuses and did not permit Zarandi to enter. At King’s apartment, King showed off his gun collection and introduced Zarandi to his 'wife,' Rebecca Reznick, whom King claimed to have met when they served together in the Israeli Intelligence. (In fact, she was his girlfriend whom he met on J-date.)"

You gotta love the parenthetical.

Thursday, November 14, 2013

Vega v. Ryan (9th Cir. - Nov. 13, 2013)

The Ninth Circuit grants a habeas petition, holding that in a child molestation case, it constituted ineffective assistance of counsel for the defendant's trial counsel to not know (and to not call as a witness) the priest to whom the alleged victim had recanted her molestation claims.

The trial court denied the habeas petition on the ground that the priest's testimony would merely have been cumulative, since the alleged victim already testified at trial that she told her mother that no molestation had taken place.  The Ninth Circuit disagrees.  That the victim recanted her testimony to two people, it says, is more powerful than the fact that she recanted her testimony to one.  That's not "merely" cumulative, but is instead more "powerful" evidence.  When you say something to two people, instead of one, that makes it more likely that it's true.  Even if you say something different at trial.

To me, however, a better argument is that there's a huge difference between telling something to your mother and telling something to your priest.  Including but not limited to recantations about molestation charges.  It's one thing for a victim to tell her mother that she wasn't really molested.  There may be lots of reasons to do so.  To protect the mother.  Because the mother and the defendant are close.  Because sex is a difficult topic to discuss with parents.  Etc.  Were I on a jury, I might not find it all that significant that an alleged victim told her mother that she wasn't molested, but at trial nonetheless insisted that molestation indeed transpired.

By contrast, there's usually much less -- indeed, probably very little -- reason to lie to one's priest.  If only because the alleged consequences (e.g., potential damnation) might be pretty darn severe.  When you tell your priest something, to me, that's usually pretty powerful evidence.  It doesn't mean it's always true.  But it's nonetheless super probative.  And that fact is much, much more powerful than the fact that the witness said the same thing to her mother.

Which is also why it's not cumulative.  Indeed, it's qualitatively different.

So were I writing the opinion, I'd have focused on that fact.  Not merely the fact that two witnesses are better than one.  But, instead, the fact that the excluded testimony related to a statement by the victim to a priest.  That she said the same thing to her mother isn't nearly the same thing.

(Which, to be clear, doesn't necessarily mean that the victim wasn't telling the truth at trial.  Maybe there were reasons for telling the priest a lie.  But that's something a jury has to determine.  After they hear the relevant evidence.)

Wednesday, November 13, 2013

JKC3H8 v. Colton (Cal. Ct. App. - Nov. 13, 2013)

Justice Hoch is exactly right.

Plaintiff filed a complaint that -- stupidly, in my view -- alleged a variety of things, including but limited to some activity (e.g., filing a restraining order, alleged defamation, etc.) that would properly give rise to an anti-SLAPP motion.  Defendant was about to file precisely such a motion.  But less than ninety minutes before defendant did so, Plaintiff filed an amended complaint.  That (smartly) removed the allegations that would lead to an anti-SLAPP motion, but kept the remainder.

Ninety minutes later Defendant filed its motion anyway.  It got heard by the trial court on the merits, and the losing party filed an appeal.

The Court of Appeal holds that the filing of the amended complaint mooted the anti-SLAPP motion that was filed in response to the original complaint.  That's right.  It does.  Moreover, the Court of Appeal correctly elects to reach this issue notwithstanding the fact it wasn't argued below.  It's a pure issue of law.  It's an easy way to resolve the appeal.  It's efficient.  It's equitable.  It's right.

This is why you don't bluster and posture in advance about how you're "going" to file an anti-SLAPP motion.  You just file it.  Because your bluster may alert them to the need to amend their complaint.  And if they do, there goes your anti-SLAPP motion -- alongside its ancillary strategic advantages (plus attorney's fees) -- out the window.

Don't talk.  File.

Tuesday, November 12, 2013

Schurtz v. Ryan (9th Cir. - Sept. 12, 2013)

The thing about three-day holidays is that, in the court system, they often turn into four- or five.  Often there are no (or few) published opinions the Friday before the holiday.  People looking to get out early -- if they haven't already -- either physically or psychologically.  Then, on Tuesday, it's slow to pick up as well.

Like today.  Nothing yet from the California Court of Appeal.  And nothing from the Ninth Circuit.

So let's look at a classic archetype from a tiny little bit ago.

This opinion is about what you'd expect from Judge Kozinski.  It doesn't find petitioner's claims persuasive.  At all.  The opinion is short -- six pages -- and dismissive.  It's clearly an "easy" case.

It's a death penalty case, mind you.  But when you read the opinion, it's crystal clear that Judge Kozinski thinks that there's so little there that it's not even worth discussing.

Which is fine.  Personally, I might go into a little more depth when someone's life is on the line.  But if Judge Kozinski thinks that the result here is so crystal clear -- that the omitted evidence was so clearly cumulative -- that it doesn't even require extended discussion, so be it.  His right.

Given the brevity and dismissiveness of the opinion, however, what I don't understand is why it took nearly a year and a half after oral argument to crank the thing out.

I could have written the thing in two hours.  Even without a bench memo.  Not hard.

I'll also mention that the appeal begins with the number 07-.  Which means it took six years to get decided.  By the way, the district court number begins with 97-.  So add another decade.

And that's all after the conclusion of all the state proceedings.  Add another indeterminate -- and definitely not short -- period of time.

All for something that's so facile that one can write a cursory six-page opinion that says that the case is totally easy.

I wish I could say this is a misplaced case of the perfect being the enemy of the good.

But it's not.

Friday, November 08, 2013

Christina C. v. City of Orange (Cal. Ct. App. - Oct. 30, 2013)

Neither the Ninth Circuit nor the California appellate courts have given us anything today.  It's seemingly a lazy Friday for everyone.  Maybe getting a jump on the long weekend.

So instead, you can read the first six pages of this opinion from last week for an incredibly depressing story of a particular family and child.

I'm not saying that's the most uplifting way to begin your weekend.  But it may nonetheless be enlightening.

Thursday, November 07, 2013

Poyson v. Ryan (9th Cir. - Nov. 7, 2013)

It's a testament to how my day's been that this came out at 10:00 a.m. this morning and I'm just now able to write about it.

That's true despite the fact that I don't have much to say.  It's an en banc vote that failed.  It's a dissent from the denial by Chief Judge Kozinski.  Joined not by the usual right-wing suspects.  But rather, this time, by a bevy of suspects from the the other side of the aisle.

Kozinski's often acerbic, biting and (sometimes) funny.  Not this time.  This time, he's short, poignant, and with touching reflection.

Here's his opinion.  Three paragraphs total:

"Just how obvious does a state court’s constitutional error have to be when a man’s life is on the line? According to the panel majority, indisputably obvious, which is 'beyond a reasonable doubt' stood on its head. Judge Thomas’s powerful dissent explains how the majority’s decision to 'throw up [its] hands and declare the record too ambiguous to definitively interpret one way or the other,' Amended Dissent at 49 n.3, contravenes Supreme Court authority and undermines our circuit law. [Citations]. No need to repeat his arguments; we adopt them, chapter and verse.

The issue will not go away. There are many more cases in the pipeline where state courts in our circuit applied a causal nexus test before affirming a sentence of death. We can’t long continue down the path forged by the majority, which forces panels to choose between two materially different standards of review in causal nexus cases: the newly minted 'clear indication' standard and our traditional approach of scrutinizing the record and asking whether it 'appears' that a constitutional violation occurred. Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008).

We must suture this fissure in our circuit law, and soon. Tragically for Robert Poyson, when we do so, it will come too late to save him. But come it will."

Twelve judges sign onto what Chief Judge Kozinski writes.  That's a lot.  But it's a number less than half of the court.  Which made all the difference to Poyson.  He's killed.


NRDC v. EPA (9th Cir. - Nov. 7, 2013)

Nothing you learned in school is true.

Okay, I admit, that's a bit of an overstatement.  But this is nonetheless a fascinating case.

It's an EPA case, which I know means that it's going to take a lot to convince many readers to actually read the thing.  But here's my pitch:

(1)  The case is all about whether they (e.g, the manufacturers, importers and distributors) can coat your clothes, your bedsheets, your rugs and carpets, and basically all of your textiles everywhere with nanosilver.  Which is essentially really, really, really small time-release particles that contain silver.  Designed largely to kill (or at least deter) bugs, mold, and the like.  Because silver and living things generally don't mix.

You may be thinking:  What's wrong with that?  Perhaps nothing.

But it does mean that you're going to be exposed to -- and your children may well ingest -- a lot more silver than you might otherwise think.  And there's not exactly a recommended daily allowance of silver.  For example, the opinion notes that three-year old children might ingest a fair amount of silver from "mouthing" their clothes (and/or "blankie"), from resting against bedsheets and/or carpets (and/or, again, the ubiquitous "blankie"), and other common things.  I can also personally testify that it's not just three-years you've got to be worried about.  Yes, they're smaller, and lighter, and (as a result) have more to potentially fear from the ingestion of even small amounts of silver.  But my seven-year old still has his (though technically now "my") blankie.  And my twelve year old still repeatedly mouths the front collar of her shirt.  In the future:  That's all eating silver.

Again, maybe that's okay.  Maybe there's no harm.  We fed mice a lot of silver, for example, and not much seemed to happen.  So maybe we should be cool with it.

But we know the stuff kills things.  That's the whole point.  And the thought that our kids might be eating the stuff -- as well as absorbing it through their skin -- certainly isn't affirmatively encouraging.

(2)  The most interesting part of the opinion, in my view, is on pages 20-22.  Believe it or not, a large portion of the opinion focuses entirely on the following question:  What's 0.00047 + 0.000027?

The EPA says it's .000497.  The Ninth Circuit says it's 0.00050.  And that makes -- literally -- the entire difference in this case.  Because the case comes out one way if the EPA's right, and another if the Ninth Circuit's right.

You're taught as a kid that the EPA is right.  You're taught in elementary school that .00047 is the same as .000470.  That you can add zeros at the end of a decimal figure without consequence.

Nope.  Critical consequence.  Dispositive here.

Check out the Ninth Circuit's math.  Fascinating stuff.

Wednesday, November 06, 2013

Vesco v. Superior Court (Cal. Ct. App. - Nov. 6, 2013)

Here's a "loophole" -- some would say, "scam" -- that I'm glad the Court of Appeal (largely) closed.

It's a result of unambiguously good intentions.  California Rule of Court 1.100 requires courts to grant accommodations to disabled people.  Rightly so.  It also says that requests for accommodations are generally confidential.  Again, for good reason.  Just because you want an accommodation doesn't mean everyone's suddenly entitled to view the expansive details of your medical condition.  Sure, the judge who reads the papers, law clerks, and the like get to know the details.  But no one else.

All this makes sense.

It also makes sense that "accommodations" can potentially include continuances of trials.  You can see why.  If you're, say, hit by a car, and can't make it to your trial because you're in the hospital, it makes sense to have a rule that says that a court must accommodate your disability.  Good policy.

Which leads to the loophole.  Amply demonstrated by this case.

David Vesco buys a home.  He's in long-term relationship with Tawne Newcomb at the time.  But David pays for the house entirely himself.

Their relationship ends.  But -- David alleges -- Tawne now has sole possession of the home, and won't leave.  Even though it's completely his.

So he sues to get his house back.

Fair enough.  Disputes like this happen all the time.  That's why we have courts.

Admittedly, our courts are super backlogged.  So David's got to wait a year-plus to actually get a trial date.  During which Tawne gets to continue to live in the house rent-free.

Not optimal.  But it happens.  At least David's eventually going to get his trial.  Which is scheduled for April 22, 2013.

Except once April comes, Tawne files an ex parte "motion for accommodation" with the trial court.  Saying that she's got a disability, and for that reason, requests that the trial be continued.

Tawne surely serves the motion on David, right?  Both because he's (1) adversely impacted by the requested continuance, and (2) should have an opportunity to oppose the thing if he wants?

Nope.  Tawne says she doesn't have to.  Because all this stuff is "confidential" under Rule 1.100.

The trial court agrees.  And accordingly continues the trial until June.  The first David knows about the thing is when he gets the minute order from the court.  At which point he's in no position to do anything anyway.

But at least he's getting a trial in June.

Except he's not.

'Cause guess what happens in June?

You know it.  Tawne did it again.  Requesting another continuance of the trial on the basis of her alleged disability.  Saying, yet again, that David was not entitled to view anything at all about this request.  Not the motion, not any underlying documents, not anything.  All confidential.

The trial court agrees.  Continuing the trial, yet again, until August.

David says that Tawne's a big faker.  Constantly filing false affidavits (which he thinks he can prove in spades), making up false injuries, etc.  So he wants to be able to oppose her request.  Which he can't do if he doesn't even know about the thing, or provided with an opportunity to be heard.

So David files a writ.

Which the Court of Appeal grants.

Justice Gilbert's opinion not only makes total sense from a policy perspective, but also as a pure matter of statutory interpretation.  Rule 1.100 says that only those people "involved in the accommodation process" are allowed to see the relevant confidential materials.  Of course that includes judges and other judicial staff.  It also properly includes opposing parties.  At least when, as here, they're affected by the request at issue; i.e., the proposed continuance.  They're "involved" in the process because they're "involved" in the lawsuit.  So they're entitled to notice and an opportunity to be heard on the motion.  Which includes actually getting a copy of the thing.

That's part of the rule.  That's part of justice.  That's part -- an important part -- of what "due process" entails.

So good job by the Court of Appeal granting the writ and publishing the opinion.

Because I'm certain that Tawne's not the only litigant who's figured out this trick.

Eel River Resource v. County of Humboldt (Cal. Ct. App. - Nov. 5, 2013)

The company doing the trash pickup for residents of the County of Humboldt -- Tom's Trash -- is doing a bad job.  Among other things, it's behind on its payments the County.  So rather than automatically renewing the contract, the County decides to put it up for bid.  Giving certain weights to various bid components, etc.

Both Tom's Trash and Eel River Disposal put in bids.  Eel River has a demonstrably better bid.  On pretty much every metric.  Plus it's at a lower price.  Including curbside recycling.

The County staff thinks it's the biggest no-brainer in the history of mankind.  Give the contract to Eel River.

But the Board of Supervisors, in a split vote, nonetheless awards the contract to Tom's Trash.  Because it's a "local" company with a half-dozen or so local employees, and several residents of Humboldt file letters on its behalf.  Whereas Eel River is an "outside" company principally based beyond the County lines.

The Court of Appeal reverses.

Humboldt County has always struck me as sort of an odd duck.  Both politically and -- as one might imagine -- otherwise.  Presumably deliberately.

So when I'm presented with the opportunity to peek under the curtains of its political process (as here), it's always interesting what you find.

The whole thing reminds me of the final line of that famous Roman Polanski film.  "Forget it, Jake.  It's Chinatown."

Tuesday, November 05, 2013

People v. Dolezal (Cal. Ct. App. - Nov. 5, 2013)

I totally agree.

Of course the state can prohibit bail bondsmen from soliciting business from arrestees at the jail.  The statute is designed to prevent precisely what transpired here.

There's no stronger supporter of the First Amendment than yours truly.  But this is a reasonable restriction on the time, place and manner of speech.

The Court of Appeal gets it right.

Yanez v. Plummer (Cal. Ct. App. - Nov. 5, 2013)

A railroad employee gets injured on the job.  Another railroad employee witnesses at least part of the accident.

At the direction of his boss, the witness then signs a couple of written statements.  The two statements are slightly contradictory:  they're unclear about whether the witness actually saw the employee fall in the oil and grease-soaked pit, or whether he just "noticed" that the employee had fallen.

The victim sues.  The employee witness gets deposed.  At the deposition, the railroad's lawyer represents the witness.  The witness tells the lawyer he's worried because his testimony might be bad for the railroad.  The lawyer responds by telling the witness not to worry:  that as long as he tells the truth, everything will be fine.

So the witness testifies.  Generally consistent with his (admittedly somewhat confusing) written statements.

At which point the railroad's lawyer -- who also represents the witness -- essentially turns on the witness.  Introducing one of the two written statements (but not the other) to try to paint the employee's testimony as contradicted by his written statement.

Which is bad enough.

But it gets worse.

The railroad boss is at the deposition.  You might think:  Why?  Perhaps to try to intimidate the witness employee into testifying favorably for the railroad?

Nah.  That'd never happen.

But the witness didn't so testify.  So guess what happens next?

The boss "reviews" the deposition transcript.  And fires the witness from his job.  For allegedly testifying falsely against the company.  Based almost entirely on the alleged contradiction between the deposition testimony and his (confusing) written statements.


The employee ultimately sues the lawyer.  Alleging that the attorney "set him up" at the deposition.  Tried to deliberately make him look bad.  Which directly led to him getting fired.

The trial court grants summary judgment to the attorney.  The Court of Appeal reverses.

The attorney had a conflict.  He represented the employer.  But he also represented the witness.  Especially in a case like this, that's a conflict.  There was no waiver.  That can create liability.

Something to keep in mind when you represent witnesses at their deposition.  Make sure you don't generate similar problems.  Deliberately or not.

Get a written waiver.

Monday, November 04, 2013

Nevarrez v. San Marino Skilled Nursing (Cal. Ct. App. - Nov. 4, 2013)

The Court of Appeal holds in this opinion that when a party's required to prove something by "clear and convincing evidence," that means "that the party must persuade you that it is highly probable that the fact is true."

That's indeed what CACI 201 says.  The Court of Appeal holds that's an accurate statement of the law.  A holding that's not especially surprising given that (1) it's a CACI, and (2) the California Supreme Court has used those exact words itself.

I'm nonetheless not persuaded.  (And certainly not persuaded by clear and convincing evidence, FWIW.)

I think this instruction understates the burden of proof.  "Clear and convincing" evidence doesn't just prove that something's "highly probable".  It establishes that it's really, really, really probable.

If I were to put a quantitative figure on what "highly probable" means, it'd be somewhere around 70 percent or so.  For example, imagine that a bag has four or five balls in it, all but one of which is blue, and you select one of them at random.  Is it "highly probable" that you're going to pick a blue ball?  I think the overwhelming majority of people would say "Yes."  That's what we understand "highly probable" to mean.

By contrast, would we say that "clear and convincing evidence" establishes that you're going to pick a blue ball?  I think not.

Here's perhaps a better example.  One focused on what "evidence" means in the first place.  Imagine that it's disputed whether the victim of an accident was a woman.  Here's the only evidence that you have on that point:  The victim's legal name is "Pat Smith".

It is "highly likely" that Pat's a woman?  Maybe.  Most people named Pat are indeed women.  Some people might say, sure, it's "highly likely".  (For the actual numbers:  Slightly over 60% of people with the first name "Pat" are women.)

But would we ever say that the fact that the victim's first name was "Pat" counts as "clear and convincing evidence" that she was a woman?  No way.  Not even close.  No one would say that.  Which means, as a deductive matter, that evidence that something is "highly likely" is not synonymous with evidence that is clear and convincing.  Notwithstanding CACI 201.

Not persuaded?  Maybe because you'd have come out the other way on the "Pat" hypothetical.

Okay.  Here's another one.  Close to my own heart:

His/her first name is "Shawn".  Is it "highly likely" that it's a male?  Absolutely.  Virtually every "Shawn" that you know is a male.

But is this "clear and convincing evidence" that Shawn's a male?  No way.  Yes, a little over 90% of Shawn's are male.  But that leaves around ten percent female.  That ain't enough.  It's not "clear and convincing" even though we'd all agree, I think, that it's indisputably "highly likely" that s/he's a male.

The phrases are different.  They mean different things.  CACI 201 is wrong when it says otherwise.  As is the Court of Appeal when it holds to the contrary.

Mind you, in the present case, I don't think the defendant's proposed instruction gets it right either.  The one that defendant proposed said that clear and convincing evidence "requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind."  That language -- like the language in CACI 201 -- comes directly from a California Supreme Court opinion that so stated.  So it's pedigree is equally unimpeachable.

But good pedigree doesn't mean it's necessarily right either.  I don't think it is.  The Court of Appeal says this proposed instruction basically equates to "beyond a reasonable doubt."  I'm not sure that's entirely right:  the proposed language is slightly less than that, in my mind.  It's much more like summary judgment.  Which is in no way, in my view, equivalent to beyond a reasonable doubt.  The latter requires total commitment.  While the former requires a little less.

Notwithstanding this fact, however, I think that "clear and convincing" evidence is lower than the burden on summary judgment.  We're not saying that "all" reasonable people will agree.  Rather, we're saying -- to use the same language -- that an overwhelming majority of them will agree.  Maybe some reasonable people will take a different view.  Maybe they won't find the evidence as powerful as we do.  But we'd say that the evidence nonetheless overwhelming.

I'll demonstrate the point, and continue the theme, with a final linguistic hypothetical or two.  The victim's name -- like my own -- is now "Shaun".  The facts are that 99.07% of people with that name are, like me, male.  Or maybe it's "John".  That's 99.6% male.  Is it true that the victim is male beyond a reasonable doubt?  Nope.  Not to me.  Could be female.  By contrast, is it "clear and convincing" evidence that the victim was male?  Yes.  To me, it is.  At the point at which we're 99% sure, I'm okay with that.  That's a virtual certainty.  Not beyond a reasonable doubt.  But virtually certain sufficient to be clear and convincing.

So I'd rephrase CACI 201.  Something like this: "Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof.  This means that the party must persuade you that it is very highly probable, with evidence that leaves only a little room for doubt, that the fact is true."

I think that's more accurate.  Both as a descriptive matter -- what we think of when we use the relevant terms in ordinary language -- as well as a normative one.

Dietrich v. Ryan (9th Cir. - Sept. 3, 2013)

Nothing from the Ninth Circuit this morning.  So let's go back and look at a nice little en banc decision from a tiny while ago.

What a mess.

Five members of the en banc panel think that the death penalty petitioner's claim here is utter crap, and that the Ninth Circuit should so hold.  Thereby getting the guy quickly to his appointment with the needle. 

(Of course, "quickly" is a relative term.  The underlying murder was nearly a quarter century ago.  There's been a mistrial, a second trial, appeals, habeas petitions, a remand by the U.S. Supreme Court, etc. in the meantime.  But five members of the Ninth Circuit at this point want it all over and done with.)

But five ain't six.  It's a minority of eleven.  So five dissent.

Judge Pregerson writes for four.  But he nonetheless authors the plurality opinion.  Despite the fact that four is less than five.  (Last time I checked, anyway.)  Articulating his vision of what the law is and why petitioner's claim isn't utter crap, and hence why they're remanding to the district court.

Judge Nguyen concurs.  Agreeing that there should be a remand.  But disagreeing with everyone -- both the plurality and the dissent -- about the contours of existing law. 

Judge Watford concurs as well.  Preferring to say nothing about either the content of the law or the potential merits (or lack thereof) of the petitioner's case.  Just remading.

In short, it's your classic 4-1-1-5.  (*Sarcasm alert*)

You may also find the lineup interesting.  You might think that it's a pretty "liberal" panel draw.  The four in the plurality, for example, are Fletcher, Pregerson, Reinhardt and Christen.  That's a group you tend to like when you're sentenced to be killed.

But the rest of the panel is far from your hard-core conservative crowd.  The dissenting five, for example, are Judges Graber, Kozinski, Gould, Bea and Murguia; i.e., a majority of the judges in dissent were appointed by Democratic presidents.  And, yes, I hear you saying that some of the dissenters may not be hard-core liberals who hate the death penalty.  But, still, not exactly total Republican right-wingers either.

A funky little plurality opinion.  So much mess for a simple remand.