Today's opinion from the California Supreme Court is a close one (4-3), but ultimately holds that municipalities can be required to turn over under the Public Records Act some billing records sent by outside law firms -- at least for litigation that has already concluded.
The second paragraph of Judge Werdegar's dissent suggests that she's not fond of the ruling, and also provides a reminder that we all need to make sure to proofread one final time to ensure that any "track changes" don't get included in the final document. That paragraph reads:
"With today‘s decision, a majority of the court undermines this pillar of our
jurisprudence, finding legal invoices sent from a law firm to its client, although initially protected by the attorney-client privilege, may lose such protection once
the subject litigation is concluded. This conclusion finds no support in the plain
meaning of the words of the attorney-client privilege as set forth in Evidence Code
section 954, and are in fact contrary to a recent decision by this court interpreting
the scope of the privilege." (underlining in original)
On the merits, it's a good debate. Both sides have reasonable positions.
But one side has 4 votes, and the other side has 3.
Thursday, December 29, 2016
Tuesday, December 27, 2016
Davis v. CEC (9th Cir. - Dec. 27, 2016)
How many times do you see laws struck down as violating the Fifteenth Amendment? Heck, when was the last time you even saw such a thing?! (Or, as a slightly easier question, what's the Fifteenth Amendment in the first place?)
Chief Justice Thomas tells you most of what you need to know in the first paragraph of today's opinion:
"The Commonwealth of the Northern Mariana Islands restricts voting in certain elections to individuals of 'Northern Marianas descent.' This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court."
The Supreme Court struck down a similarly defective statute in Hawaii in 2000. The Ninth Circuit does the same thing for the CNMI today.
No race-based disenfranchisements, thank you.
Chief Justice Thomas tells you most of what you need to know in the first paragraph of today's opinion:
"The Commonwealth of the Northern Mariana Islands restricts voting in certain elections to individuals of 'Northern Marianas descent.' This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court."
The Supreme Court struck down a similarly defective statute in Hawaii in 2000. The Ninth Circuit does the same thing for the CNMI today.
No race-based disenfranchisements, thank you.
Monday, December 26, 2016
McNair v. NCAA (Cal. Ct. App. - Dec. 23, 2016)
Since we're still in the court holiday season -- and hence on published opinion hiatus -- I thought I'd go back and mention the last published opinion rendered before the holidays.
Given that the holiday season includes a ton of football games (both college and pro), it's an opinion that's particularly timely. If only because it involves a lawsuit brought by Todd McNair, who was a former player and assistant coach. He doesn't like what the NCAA did to him, so he sued. A lawsuit that's gone on for many years, and -- as the Court of Appeal notes -- "has been assigned to eight trial judges in five years." Not exactly what you want, either from the perspective of the litigants or of the system.
Over half a decade ago, the NCAA filed a peremptory challenge to the original judge, then filed an anti-SLAPP motion, which the trial court denied. The NCAA filed an appeal, which it partially won, and then on remand, the NCAA filed another peremptory challenge that struck the judge who denied its anti-SLAPP motion. You're allowed to do that under the statute since you prevailed on appeal, and the trial judge accordingly recused himself.
But McNair files a writ, and the Court of Appeal reverses. The opinion holds that a party is only allowed to paper the judge twice if they obtain a reversal on appeal from a final judgment, whereas the reversal here was from an interlocutory anti-SLAPP appeal.
There's some textual support for that position, since the second sentence of Section 170.6(a)(2) does indeed expressly say "final judgment". But there's also textual support to the contrary, since the first sentence of exact same section says "a motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment."
The Court of Appeal nonetheless holds that the statute is unambiguous. So we can entirely ignore legislative history, as well as pretty much anything else. You only get to a paper the judge a second time if you get a reversal of a final judgment. And since that didn't happen here, no second paper, and we'll reverse the contrary decision below.
At least now we know the rule.
Given that the holiday season includes a ton of football games (both college and pro), it's an opinion that's particularly timely. If only because it involves a lawsuit brought by Todd McNair, who was a former player and assistant coach. He doesn't like what the NCAA did to him, so he sued. A lawsuit that's gone on for many years, and -- as the Court of Appeal notes -- "has been assigned to eight trial judges in five years." Not exactly what you want, either from the perspective of the litigants or of the system.
Over half a decade ago, the NCAA filed a peremptory challenge to the original judge, then filed an anti-SLAPP motion, which the trial court denied. The NCAA filed an appeal, which it partially won, and then on remand, the NCAA filed another peremptory challenge that struck the judge who denied its anti-SLAPP motion. You're allowed to do that under the statute since you prevailed on appeal, and the trial judge accordingly recused himself.
But McNair files a writ, and the Court of Appeal reverses. The opinion holds that a party is only allowed to paper the judge twice if they obtain a reversal on appeal from a final judgment, whereas the reversal here was from an interlocutory anti-SLAPP appeal.
There's some textual support for that position, since the second sentence of Section 170.6(a)(2) does indeed expressly say "final judgment". But there's also textual support to the contrary, since the first sentence of exact same section says "a motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment."
The Court of Appeal nonetheless holds that the statute is unambiguous. So we can entirely ignore legislative history, as well as pretty much anything else. You only get to a paper the judge a second time if you get a reversal of a final judgment. And since that didn't happen here, no second paper, and we'll reverse the contrary decision below.
At least now we know the rule.
Wednesday, December 21, 2016
U.S. v. Thomas (9th Cir. - Dec. 20, 2016)
Judge Kozinski asks:
"Joel Leon Thomas, Jr., barely 24 years old when he was sentenced, will be 73 when he gets out of prison. How did a young man get half a century following a conviction for three bank robberies—two of which he wasn’t present for and none of which resulted in physical harm?"
I might add that Mr. Thomas doesn't even have much of a criminal history either. This isn't someone who's clearly unredeemable. Yet he'll likely be in prison for pretty much his entire life.
Judge Kozinski thinks Mr. Thomas is in prison forever due to a mistake by the trial judge. Maybe that's right. But Judge Kozinski believes so in dissent. The majority says that it's not a mistake. It's a result of mandatory minimums; in particular, how they work with the guidelines. And it's clear that Judge Schroeder is right, at least in part. Because as she notes, here's the law in the Ninth Circuit:
"The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable within the meaning of 18 U.S.C. § 3742. We have expressly so recognized. We have held that the district court must impose a mandatory minimum sentence even if doing so “makes it impossible for the judge to impose a total sentence that the court considers reasonable.” United States v. Washington, 462 F.3d 1124, 1140 (9th Cir. 2006)."
So even if the total sentence is unreasonable, there's nothing the judiciary can do about it.
Look, you'll have a hard time arguing that it violates the Eighth Amendment to say that 50 years for a series of bank robberies in necessarily cruel and unusual; i.e., so unreasonable that it's a violation of the Constitution.
But when history looks back and judges the way we punish people, I don't think that it'll view fondly the fact that we threw human lives away forever for crimes in which no one got hurt and in which the defendant had the possibility of living a productive, meaningful life.
A possibility that we deliberately took away.
I'm no fan of bank robberies. But this seems too much.
"Joel Leon Thomas, Jr., barely 24 years old when he was sentenced, will be 73 when he gets out of prison. How did a young man get half a century following a conviction for three bank robberies—two of which he wasn’t present for and none of which resulted in physical harm?"
I might add that Mr. Thomas doesn't even have much of a criminal history either. This isn't someone who's clearly unredeemable. Yet he'll likely be in prison for pretty much his entire life.
Judge Kozinski thinks Mr. Thomas is in prison forever due to a mistake by the trial judge. Maybe that's right. But Judge Kozinski believes so in dissent. The majority says that it's not a mistake. It's a result of mandatory minimums; in particular, how they work with the guidelines. And it's clear that Judge Schroeder is right, at least in part. Because as she notes, here's the law in the Ninth Circuit:
"The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable within the meaning of 18 U.S.C. § 3742. We have expressly so recognized. We have held that the district court must impose a mandatory minimum sentence even if doing so “makes it impossible for the judge to impose a total sentence that the court considers reasonable.” United States v. Washington, 462 F.3d 1124, 1140 (9th Cir. 2006)."
So even if the total sentence is unreasonable, there's nothing the judiciary can do about it.
Look, you'll have a hard time arguing that it violates the Eighth Amendment to say that 50 years for a series of bank robberies in necessarily cruel and unusual; i.e., so unreasonable that it's a violation of the Constitution.
But when history looks back and judges the way we punish people, I don't think that it'll view fondly the fact that we threw human lives away forever for crimes in which no one got hurt and in which the defendant had the possibility of living a productive, meaningful life.
A possibility that we deliberately took away.
I'm no fan of bank robberies. But this seems too much.
Tuesday, December 20, 2016
Fowler Packing v. Lanier (9th Cir. - Dec. 20, 2016)
The Ninth Circuit invites us in today's opinion to watch the oral argument in order to confirm that the defendants made a particular (important) concession. (Footnote 4) That makes sense. Though it's a 50 minute oral argument. It might help to identify the particular portion of the argument -- i.e., which minute -- so we don't have to go through the whole thing. Presumably someone watched it at some point.
The other funny thing is that Judge Gould refers the reader to YouTube to watch the argument. Okay, I sort of get that. The Ninth Circuit does indeed post some of its arguments to YouTube. And I went ahead and watched it there. Works just fine. (You can also vote the thing "Up" or "Down", but the Ninth Circuit has disabled comments, so no yapping about the case there.)
But the Ninth Circuit also has its own site where you can watch the thing. Without ads or anything like that. Same exact video. Somewhat funny that we're directed to a for-profit site instead.
POSTSCRIPT - An astute reader notes that footnote 4 contains a reference to minutes 25 to 27 of the video. Maybe I missed that on a first read, or maybe the reference was added after. Regardless, I checked out those minutes, and, yep, they're the right ones. Thanks for that, Judge Gould!
The other funny thing is that Judge Gould refers the reader to YouTube to watch the argument. Okay, I sort of get that. The Ninth Circuit does indeed post some of its arguments to YouTube. And I went ahead and watched it there. Works just fine. (You can also vote the thing "Up" or "Down", but the Ninth Circuit has disabled comments, so no yapping about the case there.)
But the Ninth Circuit also has its own site where you can watch the thing. Without ads or anything like that. Same exact video. Somewhat funny that we're directed to a for-profit site instead.
POSTSCRIPT - An astute reader notes that footnote 4 contains a reference to minutes 25 to 27 of the video. Maybe I missed that on a first read, or maybe the reference was added after. Regardless, I checked out those minutes, and, yep, they're the right ones. Thanks for that, Judge Gould!
Monday, December 19, 2016
People v. Mickel (Cal. Supreme Ct. - Dec. 19, 2016)
There are no published opinions from the Ninth Circuit today. Pre-Christmas lull. There's only one published opinion from the California appellate courts thus far today. Perhaps inconsistently with the holiday spirit, it's from the California Supreme Court, and it's a case in which the Court unanimously affirms a death sentence.
Not that the prosecution was all that hard. Defendant admitted that he ambushed and killed a police officer as a "political" statement. He left a homemade flag next to the officer's body with the phrase "This Is A Political Action. Don‘t Tread On Us‖" written below the image of a snake. Then he flew to New Hampshire, talked to a reporter, and turned himself in.
He also represented himself at trial. Or at least sort of did. He didn't put on any actual defense. He said he would "sit in silent protest during the guilt phase" and that "not speak or raise any issues until the penalty phase," and during his brief closing statement, he told the jury that he'd explain during the penalty phase why he had killed Officer Mobilio.
Needless to say, it took the jury only 45 minutes to find him guilty.
Then there's the penalty phase. "During the penalty phase, defendant also testified that he had acted out of a sense of patriotism. Defendant ultimately presented the theory that he had killed Officer Mobilio in order to defend constitutionally guaranteed liberties that he believed the government was infringing, including the right to bear arms. Defendant explained that he came to California to kill a police officer because he wanted his actions to make a national statement. He believed California to be the least gun-friendly state in the country, and where "the war on drugs is fought the hardest." Defendant traveled to California in September 2002 to find a location where he could ambush a police officer, drive back to Washington, and then fly to New Hampshire without being arrested. He explained that he had intentionally chosen New Hampshire as the location where he would be arrested because he believed the New Hampshire Constitution guaranteed the right of revolution."
Yeah. Okay. Anyway, you can figure out the rest.
Not that the prosecution was all that hard. Defendant admitted that he ambushed and killed a police officer as a "political" statement. He left a homemade flag next to the officer's body with the phrase "This Is A Political Action. Don‘t Tread On Us‖" written below the image of a snake. Then he flew to New Hampshire, talked to a reporter, and turned himself in.
He also represented himself at trial. Or at least sort of did. He didn't put on any actual defense. He said he would "sit in silent protest during the guilt phase" and that "not speak or raise any issues until the penalty phase," and during his brief closing statement, he told the jury that he'd explain during the penalty phase why he had killed Officer Mobilio.
Needless to say, it took the jury only 45 minutes to find him guilty.
Then there's the penalty phase. "During the penalty phase, defendant also testified that he had acted out of a sense of patriotism. Defendant ultimately presented the theory that he had killed Officer Mobilio in order to defend constitutionally guaranteed liberties that he believed the government was infringing, including the right to bear arms. Defendant explained that he came to California to kill a police officer because he wanted his actions to make a national statement. He believed California to be the least gun-friendly state in the country, and where "the war on drugs is fought the hardest." Defendant traveled to California in September 2002 to find a location where he could ambush a police officer, drive back to Washington, and then fly to New Hampshire without being arrested. He explained that he had intentionally chosen New Hampshire as the location where he would be arrested because he believed the New Hampshire Constitution guaranteed the right of revolution."
Yeah. Okay. Anyway, you can figure out the rest.
Friday, December 16, 2016
Veera v. Banana Republic (Cal. Ct. App. - Dec. 15, 2016)
Here's a nice summary of the opinion, courtesy of Justice Willhite:
"Plaintiffs . . . filed a putative class action against Banana Republic, LLC, a clothing and accessories retailer with stores throughout California, alleging that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not disclose that the discount applied only to certain items. . . . In opposition to Banana Republic’s summary judgment motion, plaintiffs produced evidence that in reliance on the allegedly false advertising, they were lured to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, plaintiffs were told for the first time that the advertised discount did not apply to their chosen merchandise. Having waited in line to purchase the selected items, and out of frustration and embarrassment, they ultimately bought some (but not all) of the items they chose even though the discount did not apply. The trial court granted summary judgment in favor of Banana Republic, concluding that plaintiffs lacked standing because they failed to raise a triable issue whether they suffered injury in fact and lost money or property. In this appeal by plaintiffs, we conclude that neither the ground cited by the trial court, nor the other grounds raised in Banana Republic’s motion, support summary judgment. Instead, we conclude that on the evidence presented, plaintiffs raised a triable issue whether they lost “money or property sufficient to qualify as injury in fact, i.e., economic injury,” and whether “that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset).) Therefore, we reverse the judgment."
I'll also say that the underlying facts of the case seem to me to accurately describe how economic injury -- as well as unfair competition -- might well result from allegedly misleading "sale" signs.
Here's one of the plaintiff's story:
"Cherilyn DeAguero testified in her deposition that on November 7, 2010, she and her 14-year-old daughter were driving past a Banana Republic store on Ventura Boulevard in Studio City. DeAguero saw a large red sign in the store window stating in black letters “40 percent off.” She pointed it out to her daughter, and they decided to stop and go shopping. Based on the 40 percent off discount, DeAguero thought she would be able to buy six to eight outfits for her daughter, who required a variety of outfits for auditions in her acting career. . . .
After shopping and trying on outfits for approximately 40 minutes, DeAguero’s daughter chose eight pieces and wore one new outfit out of the dressing room. They went to the register, and the sales clerk began ringing up the items. DeAguero was talking excitedly with the customer behind her, stating “This is great, 40 percent off.” The clerk told her the items she was purchasing were not 40 percent off. DeAguero replied that the sign indicated everything was 40 percent off, but the clerk said the discount did not apply to the items she chose.
DeAguero became embarrassed, noticing that the line behind her was getting long. She found the experience “humiliating,” because she was trying to remain in a budget but did not want to make her daughter return to the dressing room to remove the outfit she was wearing.
She became angry and asked the clerk why the store had “waste[d] [her] time luring [her] in” and which items were 40 percent off. The clerk explained that there were “selected items” throughout the store, even though DeAguero did not see any signs in the store indicating those items.
DeAguero did not ask to speak with a manager because her daughter was embarrassed and was whispering to stop. She ultimately purchased the new items her daughter was wearing because she did not want to embarrass her. She did not buy the other items because they were not 40 percent off."
That's a story that rings familiar -- or at least true -- to me. Even if you found out at the time that the items weren't 40 percent off, you might still buy them. If only out of shame.
Now, mind you, the price you paid for the items was still the price that was listed for them. That's in part why Justice Bigelow dissents.
I'll just mention in passing that people aren't always entirely rational. Or, to put it more accurately, we often make decisions based upon a series of assessments not all of which can be rationally set forth.
Many, many people will be more inclined to buy a $100 dress if that dress is labelled 40 percent off than they would were that same dress merely listed as $100. And the industry knows that full well. That's why "sales" are so popular. And productive.
Maybe the buyer is making an internal assessment that an $100 dress that originally sold for $167 is a made better -- with higher quality materials -- than a "mere" $100 dress. Maybe there's some internal joy from getting a "deal". Maybe there are other things at stake as well.
But having been around people who shop my entire life, I'm confident that "sales" work. They affect the buyers internal dynamic. They are persuasive. And I'd rather be in a world in which "sales" are in fact sales than in a world in which they're not.
Maybe that's irrational. But it's definitely a desire.
"Plaintiffs . . . filed a putative class action against Banana Republic, LLC, a clothing and accessories retailer with stores throughout California, alleging that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not disclose that the discount applied only to certain items. . . . In opposition to Banana Republic’s summary judgment motion, plaintiffs produced evidence that in reliance on the allegedly false advertising, they were lured to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, plaintiffs were told for the first time that the advertised discount did not apply to their chosen merchandise. Having waited in line to purchase the selected items, and out of frustration and embarrassment, they ultimately bought some (but not all) of the items they chose even though the discount did not apply. The trial court granted summary judgment in favor of Banana Republic, concluding that plaintiffs lacked standing because they failed to raise a triable issue whether they suffered injury in fact and lost money or property. In this appeal by plaintiffs, we conclude that neither the ground cited by the trial court, nor the other grounds raised in Banana Republic’s motion, support summary judgment. Instead, we conclude that on the evidence presented, plaintiffs raised a triable issue whether they lost “money or property sufficient to qualify as injury in fact, i.e., economic injury,” and whether “that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset).) Therefore, we reverse the judgment."
I'll also say that the underlying facts of the case seem to me to accurately describe how economic injury -- as well as unfair competition -- might well result from allegedly misleading "sale" signs.
Here's one of the plaintiff's story:
"Cherilyn DeAguero testified in her deposition that on November 7, 2010, she and her 14-year-old daughter were driving past a Banana Republic store on Ventura Boulevard in Studio City. DeAguero saw a large red sign in the store window stating in black letters “40 percent off.” She pointed it out to her daughter, and they decided to stop and go shopping. Based on the 40 percent off discount, DeAguero thought she would be able to buy six to eight outfits for her daughter, who required a variety of outfits for auditions in her acting career. . . .
After shopping and trying on outfits for approximately 40 minutes, DeAguero’s daughter chose eight pieces and wore one new outfit out of the dressing room. They went to the register, and the sales clerk began ringing up the items. DeAguero was talking excitedly with the customer behind her, stating “This is great, 40 percent off.” The clerk told her the items she was purchasing were not 40 percent off. DeAguero replied that the sign indicated everything was 40 percent off, but the clerk said the discount did not apply to the items she chose.
DeAguero became embarrassed, noticing that the line behind her was getting long. She found the experience “humiliating,” because she was trying to remain in a budget but did not want to make her daughter return to the dressing room to remove the outfit she was wearing.
She became angry and asked the clerk why the store had “waste[d] [her] time luring [her] in” and which items were 40 percent off. The clerk explained that there were “selected items” throughout the store, even though DeAguero did not see any signs in the store indicating those items.
DeAguero did not ask to speak with a manager because her daughter was embarrassed and was whispering to stop. She ultimately purchased the new items her daughter was wearing because she did not want to embarrass her. She did not buy the other items because they were not 40 percent off."
That's a story that rings familiar -- or at least true -- to me. Even if you found out at the time that the items weren't 40 percent off, you might still buy them. If only out of shame.
Now, mind you, the price you paid for the items was still the price that was listed for them. That's in part why Justice Bigelow dissents.
I'll just mention in passing that people aren't always entirely rational. Or, to put it more accurately, we often make decisions based upon a series of assessments not all of which can be rationally set forth.
Many, many people will be more inclined to buy a $100 dress if that dress is labelled 40 percent off than they would were that same dress merely listed as $100. And the industry knows that full well. That's why "sales" are so popular. And productive.
Maybe the buyer is making an internal assessment that an $100 dress that originally sold for $167 is a made better -- with higher quality materials -- than a "mere" $100 dress. Maybe there's some internal joy from getting a "deal". Maybe there are other things at stake as well.
But having been around people who shop my entire life, I'm confident that "sales" work. They affect the buyers internal dynamic. They are persuasive. And I'd rather be in a world in which "sales" are in fact sales than in a world in which they're not.
Maybe that's irrational. But it's definitely a desire.
Wednesday, December 14, 2016
Ryan v. Crown Castle NG Networks (Cal. Ct. App. - Dec. 13, 2016)
Justice Rushing doesn't mince words:
"Plaintiff Patrick S. Ryan brought this action against his former employer, NextG Networks, Inc., and its successor Crown Castle NG Networks Inc. (collectively NextG). He alleged in essence that NextG had breached a promise to grant him lucrative stock options as a condition of his employment. The case went to the jury with an unclear special verdict form and unhelpful instructions."
Whoa. Tell us what you really think about what the trial court did.
After describing the jury's verdict (and the trial court's refusal to grant a new trial), Justice Rushing goes on:
"We will reverse with instructions to grant a new trial. The court was fully empowered and indeed obligated to make an independent assessment of the adequacy of the verdict. Moreover, the verdict was unmistakably unsound. If viewed as an award of tort damages, it had no foundation in law. If viewed as an award of contract damages, it had no foundation in fact. It is in all likelihood the product of juror confusion, improper compromise, or some combination of the two. Either way the findings of liability are sufficiently suspect that a retrial cannot fairly be limited to damages. Accordingly, we will direct that the court conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment."
The Court of Appeal clearly didn't like pretty much anything that transpired below in this case.
"Plaintiff Patrick S. Ryan brought this action against his former employer, NextG Networks, Inc., and its successor Crown Castle NG Networks Inc. (collectively NextG). He alleged in essence that NextG had breached a promise to grant him lucrative stock options as a condition of his employment. The case went to the jury with an unclear special verdict form and unhelpful instructions."
Whoa. Tell us what you really think about what the trial court did.
After describing the jury's verdict (and the trial court's refusal to grant a new trial), Justice Rushing goes on:
"We will reverse with instructions to grant a new trial. The court was fully empowered and indeed obligated to make an independent assessment of the adequacy of the verdict. Moreover, the verdict was unmistakably unsound. If viewed as an award of tort damages, it had no foundation in law. If viewed as an award of contract damages, it had no foundation in fact. It is in all likelihood the product of juror confusion, improper compromise, or some combination of the two. Either way the findings of liability are sufficiently suspect that a retrial cannot fairly be limited to damages. Accordingly, we will direct that the court conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment."
The Court of Appeal clearly didn't like pretty much anything that transpired below in this case.
Monday, December 12, 2016
People v. Landry (Cal. Supreme Ct. - Dec. 12, 2016)
The theme for today's opinions from the California Supreme Court and the Ninth Circuit may revolve around the duality of man.
Take Daniel Landry. He's sentenced to death, and you can easily see why. He's already serving a sentence of 25 years to life when he kills a fellow prisoner by cutting his throat. It's a premeditated crime, and hardly Mr. Landry's first. He's a Nazi Low Rider and it's hard to deter future misconduct in prison absent sentencing someone like this to death. So you can see why Mr. Landry might well be seen as a monster as well; someone who needs to be "put down" before he kills yet again.
At the same time, Mr. Landry wasn't always like that. He was a child once. And his childhood was a nightmare, and undoubtedly profoundly influenced what he would become in the future. Both of his parents were deaf, and his mother had serious issues herself; she set a ton of fires as a kid, and then "attacked a pregnant neighbor with a knife while the woman was showering and her husband was mowing the lawn." She married Gary when she was 20 or 21, but there was a ton of fighting -- and I mean, a ton. And it clearly affected the future Mr. Landry:
"Linda [his mother] was a drug user and extremely neglectful mother. When members of her family would visit, they would discover defendant alone in his play pen, hoarse from crying and yelling. No one had responded to his cries. Linda‟s family installed a light-flickering system to alert her when defendant was crying. The house was filthy and defendant crawled on a floor littered with broken glass and curdled milk. When he was old enough to walk, defendant would get out of his crib and wander the neighborhood. His grandparents, who lived nearby, once discovered him asleep beneath their car. Another time, he was found scavenging for food in the neighbor's garbage cans.
When defendant was four years old, he went to live with his grandparents. . . . When defendant first went to live with his grandparents, he did not talk, but grunted and pointed. He had nightmares and hoarded food beneath his bed. When he returned to his grandparents, they took him to mental health professionals because he seemed inaccessible. He continued to receive psychiatric care, including hospitalization, throughout his childhood and adolescence."
You can see why Mr. Landry was depressed and suicidal. And, perhaps, why (in part) he became the person he eventually became.
The one we sentence to death.
Take Daniel Landry. He's sentenced to death, and you can easily see why. He's already serving a sentence of 25 years to life when he kills a fellow prisoner by cutting his throat. It's a premeditated crime, and hardly Mr. Landry's first. He's a Nazi Low Rider and it's hard to deter future misconduct in prison absent sentencing someone like this to death. So you can see why Mr. Landry might well be seen as a monster as well; someone who needs to be "put down" before he kills yet again.
At the same time, Mr. Landry wasn't always like that. He was a child once. And his childhood was a nightmare, and undoubtedly profoundly influenced what he would become in the future. Both of his parents were deaf, and his mother had serious issues herself; she set a ton of fires as a kid, and then "attacked a pregnant neighbor with a knife while the woman was showering and her husband was mowing the lawn." She married Gary when she was 20 or 21, but there was a ton of fighting -- and I mean, a ton. And it clearly affected the future Mr. Landry:
"Linda [his mother] was a drug user and extremely neglectful mother. When members of her family would visit, they would discover defendant alone in his play pen, hoarse from crying and yelling. No one had responded to his cries. Linda‟s family installed a light-flickering system to alert her when defendant was crying. The house was filthy and defendant crawled on a floor littered with broken glass and curdled milk. When he was old enough to walk, defendant would get out of his crib and wander the neighborhood. His grandparents, who lived nearby, once discovered him asleep beneath their car. Another time, he was found scavenging for food in the neighbor's garbage cans.
When defendant was four years old, he went to live with his grandparents. . . . When defendant first went to live with his grandparents, he did not talk, but grunted and pointed. He had nightmares and hoarded food beneath his bed. When he returned to his grandparents, they took him to mental health professionals because he seemed inaccessible. He continued to receive psychiatric care, including hospitalization, throughout his childhood and adolescence."
You can see why Mr. Landry was depressed and suicidal. And, perhaps, why (in part) he became the person he eventually became.
The one we sentence to death.
U.S. v. Rocha-Alvarado (9th Cir. - Dec. 12, 2016)
Doroteo Rocha-Alvarado molests a nine-year old girl, gets deported from the United States, and then is caught illegally reentering the country. One might view such a person as a monster.
On the other hand, he's reentering the United States in order to buy medicine for his son's kidney transplant. That's not especially monster-like.
People are complicated beings.
On the other hand, he's reentering the United States in order to buy medicine for his son's kidney transplant. That's not especially monster-like.
People are complicated beings.
Thursday, December 08, 2016
People v. Franklin (Cal. Ct. App. - June 30, 2016)
This is not a good relationship.
"Crystal Delgado dated appellant on and off over a nine-month period from February to November 2013." Okay, every relationship has its ups and downs.
"They fought frequently . . . ." Not good, but not necessarily unique. ". . . . often sending each other vicious text messages. . . ." Okay, well, you definitely shouldn't do that. ". . . . and appellant once pulled Delgado’s hair." Look, when it starts to involve physical violence, that crosses what I think everyone would understand to be an unacceptable line.
"On October 24, 2013, appellant sent Delgado a text message in which he said she would live to regret “fuckin’ with a real gangster.” A few days later, Delgado received another text message from appellant in which he threatened to stomp on her face, break her nose, and crack her teeth."
Not good. Not good at all.
"In early November 2013 Delgado planned a trip to San Diego with friends to serve drinks at a bachelor party. Appellant did not want her to go, and left a message on Delgado’s voice mail threatening that if she “went to San Diego, he was going to kill [her].” Sometime before attending the party, Delgado posted on social media that she was single, which she later told police appellant had taken personally as indicating disrespect toward him."
Now he's threatening to kill her. You have to know things are bad at that point. Really, incredibly bad.
"The day Delgado returned home from the party she found her room ransacked and empty of all of her belongings—only the furniture remained. The television had been pulled from the wall mount, and her laptop, her bedsheets, most of her clothing, and other personal items had all been removed. There were no signs of a break-in. Delgado suspected appellant had burglarized her room with help from her cousin Lexi, who lived in the house with Delgado and Delgado’s mother."
Classy. Taking every piece of property from your (former?) partner. Wow.
"Delgado played several voice mail messages she had received from appellant for the police. In one message, appellant said he was coming right over and threatened to kill Delgado if she didn’t pick up the phone. In another voice message, appellant told Delgado he was going to hide out until he caught her, and declared, “No one’s ever gonna want to fucking see your face, eh. I’m gonna fuck it up, eh. I’m gonna fuck you up, you fucking piece of shit.” Appellant also threatened Delgado’s mother: “You fucking gonna go to a fucking bachelor party, fucker? Fucking piece of shit. Just watch what we do to your mom when she comes home from work.” Finally, appellant threatened to “seriously hurt” Delgado. Delgado told the police she was afraid of appellant because he was an active Jim Town gang member and she believed he would kill her."
And to think I thought it couldn't get worse.
"Later that day, appellant called Delgado and admitted he had taken her property. He promised to return her property if she would agree to meet with him. They met at Guirado Park and appellant got into the front passenger seat of Delgado’s car. Producing a foot-long metal pipe from his jacket, appellant struck Delgado on the head and arms. Appellant switched seats with Delgado and drove around for several hours before taking Delgado to his house where he lived with his mother and sister."
Sweet Jesus.
"They went to a Knights Inn in Pico Rivera, a Pico Viejo gang hangout well outside of Jim Town gang territory to spend the night. Appellant offered to return Delgado’s property to her for $500. . . Delgado went to the restroom and texted her mother. She told her mother she was with appellant and she was hurt. She instructed her mother to agree to pay appellant $500 for the return of her property when appellant called. . . . Appellant and Delgado left Vasquez’s home and drove back to appellant’s house where they spent the night. There, appellant made a video recording on his cell phone of Delgado in which he told her to say appellant had not taken her clothes and she was not being held against her will."
It just gets worse and worse.
Thankfully, Ms. Delgado does not ultimately get killed. Which is where I was worried that this one might end. Instead, eventually, on some future day, she calls 911 when she's being followed by Mr. Franklin, and the police discover all of these events and arrest Mr. Franklin. And he's ultimately convicted.
Oh, yeah. One more thing. "At trial, Delgado claimed to have no memory of the events related to this case, and the prosecution presented Detective Steven Lopez’s account of the facts underlying the case as related to him in an interview of Delgado on November 14, 2013."
So sad.
"Crystal Delgado dated appellant on and off over a nine-month period from February to November 2013." Okay, every relationship has its ups and downs.
"They fought frequently . . . ." Not good, but not necessarily unique. ". . . . often sending each other vicious text messages. . . ." Okay, well, you definitely shouldn't do that. ". . . . and appellant once pulled Delgado’s hair." Look, when it starts to involve physical violence, that crosses what I think everyone would understand to be an unacceptable line.
"On October 24, 2013, appellant sent Delgado a text message in which he said she would live to regret “fuckin’ with a real gangster.” A few days later, Delgado received another text message from appellant in which he threatened to stomp on her face, break her nose, and crack her teeth."
Not good. Not good at all.
"In early November 2013 Delgado planned a trip to San Diego with friends to serve drinks at a bachelor party. Appellant did not want her to go, and left a message on Delgado’s voice mail threatening that if she “went to San Diego, he was going to kill [her].” Sometime before attending the party, Delgado posted on social media that she was single, which she later told police appellant had taken personally as indicating disrespect toward him."
Now he's threatening to kill her. You have to know things are bad at that point. Really, incredibly bad.
"The day Delgado returned home from the party she found her room ransacked and empty of all of her belongings—only the furniture remained. The television had been pulled from the wall mount, and her laptop, her bedsheets, most of her clothing, and other personal items had all been removed. There were no signs of a break-in. Delgado suspected appellant had burglarized her room with help from her cousin Lexi, who lived in the house with Delgado and Delgado’s mother."
Classy. Taking every piece of property from your (former?) partner. Wow.
"Delgado played several voice mail messages she had received from appellant for the police. In one message, appellant said he was coming right over and threatened to kill Delgado if she didn’t pick up the phone. In another voice message, appellant told Delgado he was going to hide out until he caught her, and declared, “No one’s ever gonna want to fucking see your face, eh. I’m gonna fuck it up, eh. I’m gonna fuck you up, you fucking piece of shit.” Appellant also threatened Delgado’s mother: “You fucking gonna go to a fucking bachelor party, fucker? Fucking piece of shit. Just watch what we do to your mom when she comes home from work.” Finally, appellant threatened to “seriously hurt” Delgado. Delgado told the police she was afraid of appellant because he was an active Jim Town gang member and she believed he would kill her."
And to think I thought it couldn't get worse.
"Later that day, appellant called Delgado and admitted he had taken her property. He promised to return her property if she would agree to meet with him. They met at Guirado Park and appellant got into the front passenger seat of Delgado’s car. Producing a foot-long metal pipe from his jacket, appellant struck Delgado on the head and arms. Appellant switched seats with Delgado and drove around for several hours before taking Delgado to his house where he lived with his mother and sister."
Sweet Jesus.
"They went to a Knights Inn in Pico Rivera, a Pico Viejo gang hangout well outside of Jim Town gang territory to spend the night. Appellant offered to return Delgado’s property to her for $500. . . Delgado went to the restroom and texted her mother. She told her mother she was with appellant and she was hurt. She instructed her mother to agree to pay appellant $500 for the return of her property when appellant called. . . . Appellant and Delgado left Vasquez’s home and drove back to appellant’s house where they spent the night. There, appellant made a video recording on his cell phone of Delgado in which he told her to say appellant had not taken her clothes and she was not being held against her will."
It just gets worse and worse.
Thankfully, Ms. Delgado does not ultimately get killed. Which is where I was worried that this one might end. Instead, eventually, on some future day, she calls 911 when she's being followed by Mr. Franklin, and the police discover all of these events and arrest Mr. Franklin. And he's ultimately convicted.
Oh, yeah. One more thing. "At trial, Delgado claimed to have no memory of the events related to this case, and the prosecution presented Detective Steven Lopez’s account of the facts underlying the case as related to him in an interview of Delgado on November 14, 2013."
So sad.
Wednesday, December 07, 2016
Munoz Santos v. Thomas (9th Cir. - July 28, 2016)
One possible view of this en banc opinion is to perceive it as a classic liberal/conservative split in which the former outnumber the latter in the draw. And, to a degree, that's true.
The dissent consists of Judges Callahan and Ikuta. They're definitely outvoted.
But the majority opinion is written by Judge Bybee. Hardly a huge leftie. And the eight judges who join his opinion include, amongst others, Judges Clifton and Milan Smith.
That line-up may suggest that one side of the equation might have the better of the argument.
Tuesday, December 06, 2016
Japanese Village v. FTA (9th Cir. - Dec. 6, 2016)
Bonus question for the day:
The shortened caption for this opinion is "Japanese Village v. FTA." What's the FTA?
(No peeking).
Answer:
.
.
.
.
.
.
.
.
The Federal Transit Administration.
Give yourself a dollar if you got that one correct.
P.S. - The case is about an extension of the light rail Gold Line in downtown L.A. to meet up with the Blue and Expo Lines. Basically a two-mile light rail line between 7th & Flower going to 1st and Alameda. (Which, coincidentally enough, is where I parked when I was clerking in L.A.) A nice convenient connector. Which, as a result of today's opinion, will go through. Eventually.
The shortened caption for this opinion is "Japanese Village v. FTA." What's the FTA?
(No peeking).
Answer:
.
.
.
.
.
.
.
.
The Federal Transit Administration.
Give yourself a dollar if you got that one correct.
P.S. - The case is about an extension of the light rail Gold Line in downtown L.A. to meet up with the Blue and Expo Lines. Basically a two-mile light rail line between 7th & Flower going to 1st and Alameda. (Which, coincidentally enough, is where I parked when I was clerking in L.A.) A nice convenient connector. Which, as a result of today's opinion, will go through. Eventually.
In Re Marriage of Schu (Cal. Ct. App. - Dec. 6, 2016)
I always thought that California was a no-fault divorce state.
I was wrong.
Apparently how much spousal support ("alimony") you receive can vary depending on how much "at fault" you are. To the extent that -- as here -- the trial court can permissibly deny all spousal support if you've done something sufficiently bad in the marriage.
So here, the Court of Appeal holds: "California’s so called “No Fault Divorce” law does not require a court to ignore evidence of fault when deciding spousal support. This is especially the case when the spouse seeking support is guilty of domestic violence. The trial court denied Gomez support under Family Code section 4320, subdivisions (i), (m), (n), and (k)1. We affirm."
So, inter alia, domestic violence is one thing that can convince the trial court that you're not entitled to spousal support at all. (Even when, as here, the one spouse hasn't worked during pretty much the entire marriage, and instead stays home with the kids.)
You might also think that the domestic violence here is of the classic "husband-beats-wife" type. It's not. It's the wife who's guilty of domestic violence. And she's not even touching the husband. She's instead giving alcohol to unrelated minors (and having sex with one of them) and cutting off her daughter's hair when she won't give her one of her friend's social media passwords.
That conduct permissibly gets you denied spousal support.
I was wrong.
Apparently how much spousal support ("alimony") you receive can vary depending on how much "at fault" you are. To the extent that -- as here -- the trial court can permissibly deny all spousal support if you've done something sufficiently bad in the marriage.
So here, the Court of Appeal holds: "California’s so called “No Fault Divorce” law does not require a court to ignore evidence of fault when deciding spousal support. This is especially the case when the spouse seeking support is guilty of domestic violence. The trial court denied Gomez support under Family Code section 4320, subdivisions (i), (m), (n), and (k)1. We affirm."
So, inter alia, domestic violence is one thing that can convince the trial court that you're not entitled to spousal support at all. (Even when, as here, the one spouse hasn't worked during pretty much the entire marriage, and instead stays home with the kids.)
You might also think that the domestic violence here is of the classic "husband-beats-wife" type. It's not. It's the wife who's guilty of domestic violence. And she's not even touching the husband. She's instead giving alcohol to unrelated minors (and having sex with one of them) and cutting off her daughter's hair when she won't give her one of her friend's social media passwords.
That conduct permissibly gets you denied spousal support.
Monday, December 05, 2016
U.S. v. Mohamud (9th Cir. - Dec. 5, 2016)
This opinion discusses the making of a terrorist. By the United States.
That said, I think that Judge Owens seems spot on. The jury rejected his entrapment defense, and that's a very high barrier to reversal. The opinion concludes:
"Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements."
Tragically long indeed.
That said, I think that Judge Owens seems spot on. The jury rejected his entrapment defense, and that's a very high barrier to reversal. The opinion concludes:
"Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements."
Tragically long indeed.
People v. Williams (Cal. Supreme Ct. - Dec. 5, 2016)
What a terrible crime. The murder of an eighth-grade girl. The discussion about the girl's Cabbage Patch dolls -- and the fact that she was from San Diego -- made the facts particularly heartbreaking to me.
The California Supreme Court unanimously affirms the defendant's death sentence.
Defendant makes a not-implausible case that someone else -- George -- was in fact guilty of the crime. But he's got a hard time explaining his semen on the girl. And his story about consensual sex didn't cut it with either the jury or the California Supreme Court.
The California Supreme Court unanimously affirms the defendant's death sentence.
Defendant makes a not-implausible case that someone else -- George -- was in fact guilty of the crime. But he's got a hard time explaining his semen on the girl. And his story about consensual sex didn't cut it with either the jury or the California Supreme Court.
Friday, December 02, 2016
People v. Mejia (Cal. Ct. App. - Nov. 22, 2016)
I thought when I first read this opinion that Mr. Mejia was only sentenced to four years in prison, and freaked out about that fact when I got to the portion of the opinion when Justice McKinster described the facts of his offenses. (I won't delineate in detail what transpired, but you're free to read the entire opinion for yourself; suffice it to say for now that he was convicted of torture,
spousal rape, spousal abuse, and criminal threats. Offenses that he committed in spades.)
But then, after finishing the full 25 pages, I went and reread the portion about the sentence. Which turns out was four years on the first count mentioned in the opinion, but 15 to life and 7 to life on two of the other counts.
Which is more in line with what I'd have expected after reading the facts.
But then, after finishing the full 25 pages, I went and reread the portion about the sentence. Which turns out was four years on the first count mentioned in the opinion, but 15 to life and 7 to life on two of the other counts.
Which is more in line with what I'd have expected after reading the facts.
Thursday, December 01, 2016
Westside Estate Agency, Inc. v. Randall (Cal. Ct. App. - Dec. 1, 2016)
Justice Hoffstadt begins today's opinion by saying:
"We are all familiar with the phrase, “caveat emptor”: Buyer beware. This case deals with its less renowned cousin, “caveat sectorem”: Broker beware."
Much less renowned.
The opinion is not even really about brokers having to be "beware". It's really about brokers having to follow the statute.
Section 1624 of the Civil Code says that a real estate broker can only be a broker for someone -- e.g., get a commission -- if there's an agreement in writing. The broker here didn't get a signed agreement authorizing his status as a broker, but instead relied upon an alleged oral agreement.
That's not good enough.
Which means he loses out on a $925,000 commission on a $45 million sale.
Yep. Follow the statute. Get the agreement in writing.
"We are all familiar with the phrase, “caveat emptor”: Buyer beware. This case deals with its less renowned cousin, “caveat sectorem”: Broker beware."
Much less renowned.
The opinion is not even really about brokers having to be "beware". It's really about brokers having to follow the statute.
Section 1624 of the Civil Code says that a real estate broker can only be a broker for someone -- e.g., get a commission -- if there's an agreement in writing. The broker here didn't get a signed agreement authorizing his status as a broker, but instead relied upon an alleged oral agreement.
That's not good enough.
Which means he loses out on a $925,000 commission on a $45 million sale.
Yep. Follow the statute. Get the agreement in writing.
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