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

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

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

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

Well.  That was definitely fast.

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

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

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

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

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

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

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

Impressive!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Okay.  Fair enough.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As well as a good idea.

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

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

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

Regardless, work goes on.

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

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

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

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

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

In particular:

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

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

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

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

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

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

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

But no.  Defendant only gets 90 days in jail.

Not that serious at all, apparently.

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

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

As in today's case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yes.  Yes we are.

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

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

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

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

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

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

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

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

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

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

Yeah.  Not good.

As for her life prior to all that:

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

Not a happy story at all.

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

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

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

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

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

You know the next chapter.

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

Wow.

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

They eventually divorce.

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

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

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

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

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

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

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

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

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

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

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

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

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

That'll get your license suspended.

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

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

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

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

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

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

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

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

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

But now we know.

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

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

Which one do you want to obtain:

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

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

As they say:  We report.  You decide.

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

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

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

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

One is better.  Trust me.

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

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

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

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

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

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

Judge Tallman says in a footnote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F.P. v. Monier (Cal. Supreme Ct. - Nov. 27, 2017)

After a long (and happy) holiday break, it's sometimes nice to come back to unanimous decisions by the California Supreme Court that don't require you to do anything more than read the first paragraph of the opinion.  What's easier than that?

So, sure, you could read the subsequent twenty pages.  As I did.  But why bother?  There's no dissent, and all you'd get is the Court's reasoning.  Which is important, to be sure.  And worthwhile.

But as for just knowing the rule, yeah, you can stop after a single paragraph:

"Section 632 of the Code of Civil Procedure1 provides that “upon the trial of a question of fact by the court,” the court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” We granted review in this case to decide whether a court’s error in failing to issue a statement of decision as this section requires is reversible per se. The Court of Appeal held that such errors are not reversible per se, but are subject to harmless error review. The court based its conclusion on article VI, section 13 of the California Constitution (article VI, section 13), which provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” For reasons explained below, we agree with the Court of Appeal and affirm its judgment."

Sometimes it's just fine to take the easy way out.  Today's an example.

Thankfully.

Klem v. Access Ins. Co. (Cal. Ct. App. - Nov. 20, 2017)

I do feel a little bit bad for people who drive objectively terrible vehicles and are then involved in accidents.  Maybe that's in part because I drive a 2000 Nissan Altima -- one that has rust holes in it that are covered with duct tape and that leak water when it rains.

Kelly Blue Book says that the trade-in value of my vehicle is . . . $335.  And that's after totally lying and saying that it's in "good" condition.

Here's the problem:  Let's say that someone rear ends me.  Not hard, but enough to make it (1) look even uglier, and (2) unable to move.  They're at fault, so their insurance company has to pay.  It'll cost, say, $5000 to fully repair the thing.

Obviously, the insurance company shouldn't have to pay me $5000.  That'd be a windfall.  I'd surely keep the money and not repair the car.

But, on the other hand, geeze.  I had a working car.  Now the insurance company is going to pay me a whopping $335.  What the hell am I supposed to do with that?!  I can't (really) buy another car.  That would cost, in reality, more than $335.  I doubt there's even a clunker that runs that costs $335, and even if there was, we all know it'd run for around two weeks before it stopped.  That's why they're selling it.  If it still ran, they'd keep driving it.  Just like I did with mine before I got rear ended.

So what am I supposed to do?  Particularly if I don't have an extra grand or so sitting around that'll enable me to get an actual (albeit crappy) working car?

What am I really likely to do?  I'm likely to fix up my existing, rear-ended car.  Not enough to get it back in "perfect" (i.e., $5000) shape.  But just enough to get it to run.  Say that'll cost $800.  It'll look even worse than before; huge smashed parts, wrong color back panel, etc.  But it'll get me where I want -- or, more accurately, need -- to go.

But we don't require the insurance company to pay this amount.  We only make 'em pay the $335.  And then, to add insult to injury, after they declare the vehicle a "total loss", they report that fact to the DMV and I get a "salvage title".  Which declares to the world that my vehicle is worth nothing.

Thanks a lot.

That's the world in which we live.  And it's a terrible one -- at least for the person who's rear ended -- but you see why that's also our rule.  We don't want to make the insurance company pay the $5000, because that'd be crazy.  Even if the guy wanted $5000 in repairs.  It's just not socially optimal to pay that amount to repair the thing.

And, yes, in the perfect world, maybe we'd create a rule that says the insurance company has to pay, say, whatever is the "minimum" amount to get it running, if the owner really was going to repair the thing.  But that leads to extortionate demands, difficulties about figuring out what a "minimum" repair job would be, etc.  So that's too difficult a rule to apply in the real world.  That might be what we'd do among friends.  But as a principle of insurance law, it doesn't really work.

Which leave the innocent, poor person who's been rear ended up the creek without a paddle.  Or, more literally, down the road without a car.

So it's a social problem.

Nonetheless, it seems to me that the Court of Appeal gets this one right.  An insurance company is permitted to do all of the above; in particular, to declare the vehicle a "salvage" job to the DMV, even if the owner -- as here -- actually ends up repairing the vehicle.  Yes, that's a bummer to the owner.  Amongst the many bummers of the whole experience.  And, yes, no one's likely to buy a car that only has a salvage title.

But it's not the salvage title that makes the car worth squat.  It's the fact that the car stinks.  The two are correlated, to be sure.  But the one doesn't cause the other.

Hence the anti-SLAPP motion here should have been granted.  Because reporting to the DMV is a protected act, and the plaintiff isn't likely to prevail.

Notwithstanding my profound and personal sympathy with his situation.

Hefczyc v. Rady Children's Hospital (Cal. Ct. App. - Nov. 17, 2017)

I wish the California Supreme Court would either grant review of this opinion or depublish it.

It's a state court class action where the dispute's about certification.  There's fairly established law on the federal side that says that the requirements for a "damages" class action (i.e., a (b)(3) suit) are X, Y and Z, whereas the requirements for other types of class actions (e.g., injunctive, prejudice, or declaratory -- under (b)(2) or (b)(3)) are only X and Y.

Plaintiff says that his suit's a declaratory one, and that California should have the same rules with respect to such suits as the federal side.  Defendant disagrees, and says that California should impose the full requirements (X, Y and Z) to all class actions instead.

To be clear:  there's no statute or rule here.  It's all common law.  And California courts basically follow federal law in this area.

Plus, just so you know, one of the "extra" requirements -- "Z" (superiority) -- on the federal side comes from the text of (b)(3).  Text that California doesn't have.  So you can see not only why there's an argument that California should do the same thing that the federal side does, but also that it'd be inappropriate to incorporate a different requirement (Z) in California since (1) the federal side does not even do that, and (2) that requirement comes from text that not only doesn't apply this case, but doesn't even exist in California in the first place.

But the Court of Appeal disagrees.  It holds that all of the federal "(b)(3)" requirements (X, Y, and Z) apply to all class actions in California, and thereby departs from the federal rule.

The opinion is super long.  But it's not at all complicated.  It just says, basically, we've always had those three rules, and seem to apply 'em in all class actions, so we reject plaintiff's argument.

Okay.  I understand that.

But this is common law stuff.  We can change it.  And it's also clearly dicta that we're talking about.  I think it's abundantly clear that there's no controlling California Supreme Court precedent that governs the issue as to whether California requires the (b)(3) prerequisites to be met even in (b)(2) -- or, for that matter, (b)(1) -- cases.

So there's flexibility there.

And there's substantial reason to make the rules different.  Want proof?  How about the fact that the federal system does precisely that.  For a reason.  Pretty darn good reasons, in my view.

But the Court of Appeal's opinion here doesn't really engage at all with those reasons.  Or why we should allegedly have a different rule in California -- a state that generally follows the federal rules on class issues -- on this particular point.

The opinion instead just basically says:  "This is the way it is.  So there."

That's a fine answer sometimes.  Sometimes the Supreme Court has said X, so there's little more that's worthwhile to be said on the subject.

But not here.

This is a legitimately open issue.  Reasonable people could disagree.  There are real arguments to be said on both sides.  And it's not that text or precedent clearly forecloses one side.

So to simply say that The Law Is X, to me, doesn't seem that compelling of a response to this debate.

(And I say that not to minimize the import, or to insult in any way, the members of the panel.  I'm sure they believe what the opinion says.  Personally, though, I just really don't see it that way.  This is an area with far, far more flexibility than I think is evident from the opinion.)

Now, maybe, on the merits of the class action, plaintiff should lose.  Or maybe this is a bad vehicle for the California Supreme Court to decide the issue.  Or maybe that tribunal would, after (hopefully) deep thought on the issue, would agree with the Court of Appeal's ultimate conclusion.

But to leave things as they are here, with just a skimpy (albeit long) opinion that simply purports to say what the law is, would be suboptimal.  Substantially suboptimal, IMHO.

So I'd either grant review, and decide once and for all whether we think the federal side has it right (which tends to be my view) or has it wrong (which I could totally understand as well).

That'd be a super valuable addition to the law.

But, even barring that, I'd depublish this opinion.  Because no opinion, in my view, would be better than an opinion that just takes the law as purportedly X when I think the actual law regarding X is much, much more open to dispute and unclear.

People v. Solorio (Cal. Ct. App. - Nov. 16, 2017)

Francisco Solorio and Albert Ramos were neighbors.  Close neighbors.  Or, as the Court of Appeal puts it, they "lived on same side of the same block in Brawley, California. Their residences were separated by two houses."  So not next-door neighbors, or one-house-away neighbors, but otherwise as close as you can get.

But they don't like each other.  At all.

Amongst other reasons, Solorio doesn't like Ramos because, four months earlier, the latter allegedly stabbed the former's brother.  Definitely a reason to dislike someone.

Sure, you could go to the police to deal with your brother's stabbing.  But why do anything so simple as that?  Instead, after his brother was stabbed, Solorio told his neighbors that he would 'handle matters on his own rather than approach law enforcement' and that he intended to ""cap" Ramos, "blast him," and "kill him"."

Yeah, that's one approach, I guess.  Though one with obvious downsides.

But one positive thing about Solorio is that, apparently, he's good to his word.

"In March 2013 Tamara and Sara had just returned from a one-hour shopping trip with Ramos. Both had a clear line of sight and saw the incident unfold as Ramos walked from their parked car toward his house across the street. As Ramos was walking, Solorio stepped outside his property, walked toward Ramos, pointed a gun wrapped in a bandana at him, and said, "remember what you did to my brother?" Ramos said, "Fuck you" and threw a plastic cup he was holding at Solorio. Solorio grabbed Ramos around the neck, and shot him three times in the arm, head, and chest, killing him."

Pretty bold to do all that in front of witnesses.

But fear not.  Solorio had a plan.

"Tamara immediately called 911. Solorio could be heard in the background exclaiming, "He had a knife!" Tamara could be heard saying, "That's bullshit Javier. That's bullshit. I saw it." A knife was recovered at the scene, and Solorio had a superficial knife wound on his arm. The prints on the knife did not match Ramos or Solorio and instead were a possible match for Solorio's brother, Steven."

I said it was a plan, not necessarily a good plan.

At trial, Solorio is convicted of first-degree murder, and sentenced to a boatload of years in prison.

But he's going to get a retrial.  Since the jury improperly discussed at some length his refusal to testify at trial.  Which is a definite no-no, as well as contrary to the judge's instructions.

Now, in my mind, Solorio isn't looking all that great at the retrial either.  At least if the same witnesses are around.

But this time, at least, he'll have a jury that'll follow the instructions they're given.

At least we hope.

Whitehall v. County of San Bernardino (Cal. Ct. App. - Nov. 15, 2017)

"Plaintiff, Mary Anna Whitehall, was a social worker for the San Bernardino County Children and Family Services (CFS or the County) who sought legal advice pertaining to any liability she might have for submitting misleading information and doctored photographs to the juvenile court at the direction of her superiors."

Good for her.  We want people to get legal advice.  We don't want people to submit misleading information and/or doctored photographs to a court.  Right?

"Her counsel prepared a filing for the juvenile court to apprise it of the falsified information, and plaintiff was immediately placed on administrative leave for disclosing confidential information to an unauthorized person."

Wait.  What?!  Your lawyer and/or the court is an "unauthorized person"?!  Seriously?

"Upon being informed she would be terminated for the breach, plaintiff resigned her position."

Wow.  That is not how I would have thought that one would end.

Or at least end short of litigation.  Needless to say, the plaintiff files a lawsuit.

Which is looking very, very good.

Vasilenko v. Grace Family Church (Cal. Supreme Ct. - Nov. 13, 2017)

It's not incredibly easy writing introductions.  To briefs, to law review articles, or to anything.  It's hard to capture complicated issues comprehensively in a couple of paragraphs.

So when I see an introduction done well, it jumps out at me.

When you read the introduction, you not only know what the case is about (and what it holds), but you also get a keen sense that the result makes sense.  And hence that the opinion might well be a unanimous one.

Which it is.

Check it out:

"Plaintiff Aleksandr Vasilenko was struck by a car as he crossed a public street between the main premises of defendant Grace Family Church (the Church) and the Church’s overflow parking area. Vasilenko contends that the Church owed him a duty of care to assist him in safely crossing the public street and that the Church was negligent in failing to do so. The Church argues that it had no control over the public street and therefore did not owe Vasilenko a duty to prevent his injury under the principle that landowners have no duty to protect others from dangers on abutting streets unless the landowner created the dangers. (See Sexton v. Brooks (1952) 39 Cal.2d 153, 157–158 (Sexton).)

The parties do not dispute that the Church did not control the public street and did not create the dangers on the street. But the Church, by locating its parking lot on the other side of the street and directing Vasilenko to park there, foreseeably increased the likelihood that Vasilenko would cross the street at that location and thereby encounter harm. Thus the circumstances here are different from when a landowner merely owns property abutting a public street.

We conclude, however, that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner. Because Vasilenko does not allege that the Church did anything other than maintain a parking lot on the other side of that street, we find that the Church did not owe him a duty to prevent his injury."

Yep.  That pretty much tells it like it is, eh?

Hewlett-Packard v. CIR (9th Cir. - Nov. 9, 2017)

It's a (judicial) holiday today, so no opinions.  But lest you think that there's not a lot of money to be made by circumventing your tax obligations, read this one from yesterday:

"Despite the boundless ingenuity of financial engineering, tax law insists on pretending that an instrument is either debt or equity, then treating it accordingly—with sharply different consequences for the taxpayer. A corporation’s interest payments on debt are deductible, for example, while the dividends it pays to equity holders are not. This black-or-white tax treatment gives taxpayers an incentive to conjure up complex instruments that give them the perfect blend of economic and tax benefits. Taxpayer gamesmanship, in turn, puts courts in the ungainly position of casting about for bright lines along an exceedingly cloudy spectrum. . . .

Here, Hewlett-Packard (“HP”) wants its investment in a foreign entity to be treated as equity, so that HP will be entitled to the foreign tax credits that the entity—a so-called “FTC generator”—produces. The United States taxes the worldwide income of domestic corporations, but gives them a credit against their domestic taxes for foreign taxes they (or a subsidiary) pay. FTC generators are entities that churn out foreign credits for U.S. multinationals, which companies typically desire if they pay foreign taxes at a lower average rate than domestic taxes. . . . No small sum is on the line: The transaction here saved HP (and lost Treasury) millions of dollars. . . .

The tax borscht at issue was cooked up in the 1990s by AIG Financial Products. The arrangement took advantage of the fact that contingent interest—interest payments that depend on future developments, and may never be paid at all—was immediately taxable in the Netherlands but not in the United States. This allowed AIG to create a Dutch company—called Foppingadreef Investments, or “FOP”—that would (and could) do little else than purchase contingent interest notes."

Taxes for the "little people" are fairly straightforward, and you basically have to pay.  Taxes for people who can afford really good tax professionals; not so much.

Oregon State University v. Superior Court (Cal. Ct. App. - Nov. 8, 2017)

Wait.  Did I click on the wrong bookmark?

I thought I was on the California Court of Appeal's website.  Yet here I am, looking at a caption that begins with "Oregon State University" as the first party.  I must be in the Ninth Circuit, right?

But wait.  It's a writ.  That generally means state court.  And it's a writ against the Superior Court.  So I guess we're indeed in state court.

State court in San Diego?!  Yep.  That's what it says.

What in the world is Oregon State University doing in San Diego?  I mean, I know that the Pacific Plate is slowly -- or at least usually slowly -- moving northward.  And Oregon is going to move its own way as well (this, by the way, is a great article).

But still.  I'm pretty sure that Oregon State University isn't anywhere near San Diego.  At least last time I checked.

So what gives?  What's OSU doing down here?

Ah.  That.  Apparently Oregon State owned a stack container, and someone employed at the Scripps Institute of Oceanography was using a crane to load it onto a ship at UCSD when the container caused the crane to tip over, injuring the plaintiff.  Who accordingly sued here.

Our interconnected world.  Even in academia.

It's one ocean, after all.

Saldivar v. Sessions (9th Cir. - Nov. 7, 2017)

One of the words in the following list does not appear in today's dissent by Judge Kozinski to a Judge Reinhardt immigration opinion.  Can you guess which one?

Contronym, specious, rubbish, snicker, illogical, fool, nonsense, malaprop, perverse, trample, loophole, rabbit.

The correct answer is . . . the eighth of those words.  I added that one.

The rest are there.

People v. Dean W. (Cal. Ct. App. - Nov. 3, 2017)

"The juvenile court found that Dean W. (the ward) had committed a misdemeanor violation of Vehicle Code section 23152, driving under the influence. The court later found that the ward had successfully completed his probation and terminated his wardship. The court granted the ward’s request to seal his juvenile court records, except for one document regarding his acknowledgement that he knew driving under the influence of drugs or alcohol was dangerous to human life. The Welfare and Institutions Code allows minors who have completed their rehabilitation to have “all” records of their juvenile adjudication sealed. The Vehicle Code authorizes criminal prosecutors to use a criminal defendant’s acknowledgement of the dangerousness of driving under the influence as evidence of implied malice in a later second degree murder case. We publish this case because, based on the words of the statutes and their underlying purposes and policies, the ward’s right to have all of his juvenile records sealed includes the ward’s acknowledgement of the dangerousness of driving under the influence. Therefore, we reverse the juvenile court’s order, with directions to seal the entirety of the ward’s records, to ensure that other government agencies specified in the statute seal the ward’s records, and to consider whether other government agencies also be ordered to do so."

Or, somewhat more concisely:  "All" means all.

People v. Perez (Cal. Ct. App. - Nov. 3, 2017)

I've made mistakes like this one in a blog post before.  Maybe even on an exam in the past couple of decades.  Never in a brief, though.  I don't think.  Definitely not in an opinion.

"On page 11, in the third full paragraph, delete the sentence: 'Defendant Chavez was driving Alvarado’s pickup, with Rodriguez as his passenger.' and substitute the sentence: 'Rodriguez was driving Alvarado’s pickup, with defendant Chavez as his passenger.'"

But that's what edits are for.  Nice change.

Lichtman v. Siemens Industry (Cal. Ct. App. - Nov. 2, 2017)

"On the night of plaintiffs’ accident, there were no batteries in a traffic signal’s battery backup unit. During a power outage, plaintiffs’ vehicle entered the dark intersection and was struck by another car. Plaintiffs sued the entity responsible for maintaining the battery backup system, alleging its negligence proximately caused their injuries."

I didn't know that traffic lights had backup batteries, but upon reflection, yeah, that makes sense -- it's why/how they blink when the power's out.  And, yeah, if there's someone in charge of maintaining the battery backup system, and they leave out the batteries, I can see how that might well give rise to tort liability.

The trial court granted summary judgment to the defendant, holding that there was no duty.  The Court of Appeal reverses.

Which was my intuition as well.

Pearson Ford v. WCAB (Cal. Ct. App. - Nov. 1, 2017)

You occasionally see public service advertisements against workers' compensation fraud around town and on television.  There's even a billboard right down the street from my office that essentially looks like this one:

Which is pretty neat.  I'm not sure these things are at all effective -- if they did, maybe we should put up signs that make similar exhortations not to commit murder -- but it at least reflects a claim that we take these types of cases seriously.

Commit Workers' Comp Fraud, Go To Jail.

Catchy.

Though then there are opinions like today's.  Which, like the billboard and advertisement above, all come out of San Diego.  And which, if you had to summarize in a motto, would probably read:

Commit Workers' Comp Fraud, Get a Slap On The Wrist.  Then Get More Workers' Comp Benefits.

A motto that's probably not an especially effective deterrent.

It's a neat little case:

"On March 24, 2006, while working at Pearson Ford, Leopoldo Hernandez accidentally slammed the trunk of a car on his left hand and crushed one of his fingers. Although no bones in his hand were broken, he was unable to continue working at Pearson Ford because of continuing pain in his hand and shoulder. Hernandez applied for and received workers' compensation benefits.

From 2006 through 2010, Hernandez was treated and examined by a number of physicians for severe pain related to his injury and with respect to his workers' compensation claim. . . .

The parties designated Dr. Byron F. King, an orthopedic specialist as an agreed medical examiner (AME). Dr. King examined Hernandez on March 31, 2009. Hernandez required the assistance of a Spanish-speaking interpreter. Dr. King had some difficulty in examining Hernandez's left arm and hand; in particular, although Hernandez complained about his inability to use his left hand and arm, he would not permit Dr. King to perform grip or pinch strength tests on the hand. In his March 31, 2009 report, Dr. King stated that Hernandez presented "a very difficult diagnostic dilemma in that he does not appear to make any effort to cooperate with requests for left upper extremity use activities." Dr. King also noted that the condition of the soft tissue on Hernandez left hand was not consistent with Hernandez's total lack of use of it, which Dr. King observed during the examination."

Well, okay.  Maybe the guy was faking it, so didn't want an incredibly detailed examination.  But just maybe he didn't want a stranger poking around a hand that totally hurt.  Tough to say.

So let's see . . . .

"Some months after Dr. King's examination, between January 11, 2010, and May 5, 2010, Hernandez was examined three times by Dr. Walter Strauser. Dr. Strauser is a pain specialist and had been treating Hernandez. Dr. Strauser prescribed a number of medications for Hernandez, including opiates. On each of his visits to Dr. Strauser, Hernandez wore a sling on his left arm and complained of continuing severe pain and an inability to use his left arm and hand.  After each examination, Dr. Strauser continued to provide Hernandez with pain medication, including an opiate.

Pearson Ford's workers' compensation carrier retained the services of a private investigator, who conducted video surveillance of Hernandez following each of the three visits to Dr. Strauser in early 2010. Following each visit, Hernandez was observed taking off his sling, using his left hand to get in and out of his truck or a car, using his left hand to steer his truck or car, and on one occasion stopping at a grocery store and using his left hand to carry a bag of groceries.

During the period Hernandez's visits to Dr. Strauser were being surveilled, he also had one appointment, on February 18, 2010, with an orthopedist, who specialized in treatment of the arms and hands, Dr. Greg M. Balourdas. Dr. Balourdas was acting as Hernandez's primary physician and working with Dr. Strauser in providing care for Hernandez. As he did when he was examined by Dr. Strauser, Hernandez appeared at his appointment with Dr. Balourdas wearing a sling on his left arm. . . .

Following his visit to Dr. Balourdas, Hernandez was observed once again taking off his sling, driving his car and stopping at an appliance store where, using both hands, he lifted a washing machine into the back of the car he was driving. "

Okay, then.  That may provide some helpful explanatory context.

So Hernandez gets prosecuted for workers' compensation fraud.  He pleads guilty.  And he's sentenced to (1) 90 days of summary probation, and (2) repaying $9000 in benefits he obtained.

Not exactly "Commit Fraud, Go to Jail".

But then guess what?  Hernandez continues to say, despite the fraud conviction, that his hand still really doesn't work, and continues to ask for benefits.  And the Court of Appeal agrees.  The fact that he's been convicted of fraud for this exact injury doesn't deprive him of the right to get benefits if he can prove that, despite his criminal fraud, he's still a "little bit" injured (although not in the way that he previously defrauded people).

I'm not saying that's right or wrong.  You can see why the Court of Appeal might come out that way.

But such a result definitely gives new meaning to the slogan "Commit Workers' Comp Fraud, Get a New Outfit."  Cause the "new outfit" Hernandez got wasn't a jail uniform.  At all.  That new outfit was instead probably a nice new suit -- or at least an attractive set of sweatpants.  All paid for by his brand new workers' comp benefits.  Benefits he receives notwithstanding his fraud.

Not quite the same deterrent effect as the billboard, eh?

People v. Lee (Cal. Ct. App. - Oct. 31, 2017)

Pao Lee is driving a vehicle that's obviously stolen; its steering wheel is cracked open and a different type of key has been jammed into the ignition.  It's an old, 90's style Honda -- the most commonly stolen vehicle in Sacramento (in part because it's just so darn easy to steal).

He's convicted of four wobblers (i.e., misdemeanor/felonies):  unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1), receiving a stolen vehicle (§ 496d, subd. (a); count 2), and carrying a concealed dirk or dagger (§ 21310; counts 3 & 4).  It's one of the easiest captures (as well as convictions) in the history of mankind:

"On August 18, 2013, Michael A., the owner of a 1999 red Honda Civic, got up in the morning and discovered his car was missing from the driveway. He called the police immediately.

On August 24, 2013, around midnight, Fresno Police Officer Vincent Zavala was driving behind a 1999 red Honda Civic driven by defendant. Zavala checked the license plate number and learned the car was stolen. He requested backup, then conducted a traffic stop. He told defendant to remove the keys and drop them outside the door. He ordered defendant out of the car and arrested him. When Zavala searched defendant, he found a sheathed, fixed-blade knife in his right rear pocket and another knife in his right front pocket. When Zavala searched the car, he noticed the center console of the dashboard had been cracked and pulled away, and the stereo had been forcibly removed. The key chain held a Toyota car key and two nonvehicle keys, but no Honda key. Zavala tried all the keys in the Honda ignition. Only the Toyota key worked, but it did not fit easily. It required force and inserted only halfway.

Zavala read defendant his Miranda3 rights and defendant agreed to talk. He said the car belonged to him; his cousin had given it to him for free. Zavala told him he thought that was weird. Defendant said he had had the car for three weeks. Zavala told him that was not possible because it had been reported stolen only about seven days earlier. Defendant said he got the key from his cousin and was using it to drive the car. When Zavala told him it was a Toyota key that only inserted halfway, defendant said he did not know much about cars. He said he was homeless."

Uh, yeah.  You're gonna get convicted on that one.

What's the sentence?

25 years to life.

Isayeva v. Barry (9th Cir. - Oct. 2, 2017)

The district court denied summary judgment, and when the defendants filed an appeal claiming that they were entitled to qualified immunity, the district court said that this appeal was "frivolous."

The Ninth Circuit panel unanimously agreed with the defendant that the appeal was not only not frivolous, but was affirmatively meritorious.  Finding that the defendant was entitled to qualified immunity as a matter of law.

Proof positive that you shouldn't always believe whatever the district court says.

Baxter v. Genworth North America (Cal. Ct. App. - Oct. 26, 2017)

The Ninth Circuit published . . . nothing today.  The California Supreme Court and the Court of Appeal published . . . nothing as well.

Gotta love those Fridays.

So I'll reach back to yesterday with a brief reminder that pigs get fat whereas hogs get slaughtered.

Which, in the arbitration context, translates into the principle that arbitration clauses are great when you can essentially compel your employees into giving up their rights to sue you, but if you get too greedy, and make the arbitration clause even more onerous than normal, you get holdings like this one, and the entire arbitration provision gets invalidated.  Welcome to court.

So be a pig, not a hog.

People v. Harrison (Cal. Ct. App. - Oct. 26, 2017)

It's so nice when the Court of Appeal includes an introduction that's simultaneously concise and comprehensive.  It makes reading the remainder of the opinion so easy.

As in today's opinion:

"The Brady rule (Brady v. Maryland (1963) 373 U.S. 83 (Brady)) is over 50 years old. It is alive, well, and as we explain, it is self executing. There need be no motion, request, or objection to trigger disclosure. The prosecution has a sua sponte duty to provide Brady information."

Couldn't be clearer.

Particularly in this context.  The police officer testified that defendant waived his Miranda rights before admitting that he used a firearm to threaten the victim.  But there's a dashcam video that establishes the opposite.  A video that the prosecution didn't provide to the defendant.

The Attorney General says that's not error because the defendant never asked for the video, and hence waived the error.  No dice.  "The Attorney General cites no authority, and we have found none, that Brady error is waived by defendant’s failure to object."

Concise and comprehensive again.

U.S. v. Wallen (9th Cir. - Oct. 25, 2017)

We do not get many fact patterns like this one down here in San Diego:

"In the spring of 2014, local residents reported the presence of three grizzly bear cubs to Tim Manley, a grizzly bear management specialist with Montana Fish, Wildlife & Parks (FWP). These bears were “food conditioned” and “habituated,” meaning they wanted unnatural foods like chicken feed and were not afraid of approaching humans to get them. Residents observed the bears frolicking in backyards, eating grass and “just being bears.” Others reported the bears for ransacking chicken coops. None reported aggressive behavior toward humans.

On the morning of May 27, 2014, Wallen discovered a number of dead chickens in his yard. The culprits had rammed through the fence to his chicken coop and killed two-thirds of his chickens. One perpetrator left behind a paw print that Wallen concluded belonged to a bear.

Neither Wallen nor his wife, Alison, called Manley or any other authority after discovering the dead chickens and the paw print. Instead, they went to work and returned home that afternoon.

Later that evening, Wallen and Alison watched their two boys (ages 8 and 11), their 16-year-old daughter (A.B.) and A.B.’s boyfriend play outside. The three bears then returned, heading for the chicken coop. The chickens scattered and the bears gave chase, running within 100 feet of where Wallen’s daughter stood. A.B. screamed and ran into the house through a glass back door as Wallen got in his truck and chased the bears away. Meanwhile, Alison called Manley’s cell phone and left a message telling him the grizzlies had come for their chickens twice and that her husband was trying to chase them away with the truck. She asked for advice as to what she and her husband could do about the bears.

The bears returned for a second time 10 to 15 minutes later. Again, the chickens ran, the bears gave chase and Wallen frightened them away with his truck.

After Wallen chased the bears, they entered the property of the Wallens’ neighbor, Tom Clark. Clark videotaped them milling about and crossing a nearby highway. At no point did the bears behave aggressively toward him. He stopped recording at 9:14 p.m. Shortly thereafter, he heard shots fired, followed by a roar from the direction of Wallen’s property. As later became clear, the sounds Clark heard were Wallen shooting and killing the three grizzlies.

Wallen has never denied shooting the three bears with an “old, rusty .22 caliber rifle” after they returned to his property for a third time that night. He has also never denied causing the bears’ deaths."

I must admit that when I first noticed that the opinion was about someone who had killed three grizzly bears, I wondered who would do such a thing.  A sentiment that was only magnified when I read that the grizzly bears were grizzly bear cubs.

Mr. Wallen testified that he shot the bear cubs in self-defense, but the judge didn't believe him, and found him guilty.  Because it's not okay to kill an endangered species without a darn good reason.

And the fact that they've killed some of your chickens doesn't count.

Makah Indian Tribe v. Quileute Indian Tribe (9th Cir. - Oct. 23, 2017)

You're an educated person, so you're undoubtedly going to tell me that seals and whales aren't fish, but are mammals.

Oh yeah?

Morrill v. Scott Financial Corp. (9th Cir. - Oct. 23, 2017)

Thank you, Ninth Circuit.

I often want to give my first-semester, first-year students in civil procedure a concrete example of the way you write an essay examination about civil procedure.  One that cogently articulates and applies the relevant tests and explains the answer it reaches.  Including responding to any counterarguments the other side might make.

The Ninth Circuit does precisely that for me.  And, as a bonus, it does it twice, as both the majority and the dissenting opinion set forth exactly the type of answer you'd want a smart person to make on an exam.

Now, do I expect my students to write 26 single-spaced pages, like the majority opinion, or even 16 pages (like the dissent)?  Nope.  No time for that.  You could definitely truncate the analysis if you needed to; e.g., were pressed for time.

But the Ninth Circuit is under no such constraint.  It may wax poetic for as long as it wants.  And, here, it definitely wants.

Fair enough.  Here are some good examples of competing essay exam answers that reach opposite conclusions and yet both of which would receive an "A".

People v. Rodriguez (Cal. Ct. App. - Oct. 19, 2017)

Maybe when you're wearing an active ankle monitor and aren't allowed to leave the county or the state you should temporarily give up your job as a long-haul truck driver.

Just a suggestion.

U.S. v. Preston (9th Cir. - Oct. 17, 2017)

The panel here does a lot of work to reverse this child molestation conviction.  A lot.

I'm not certain that a lot of panels would reach the same result.  This one's Judges Reinhardt, Kozinski, and Berg (sitting by designation from the Eastern District of Michigan).

People v. Lewelling (Cal. Ct. App. - Oct. 17, 2017)

One great thing about Court of Appeal opinions is that they sometimes give you a real-world glimpse into portions of society that you'd otherwise know little about.  Today's opinion, for example, takes the reader into the emergency room at San Francisco General Hospital:

"San Francisco General Hospital is a renowned safety net hospital, particularly well known for its emergency department. That department has a diverse and unpredictable patient population, much of it consisting of the homeless, the mentally ill, and those suffering from substance abuse problems. The chaotic population can make the emergency department a dangerous place: staff have been strangled, sexually assaulted, punched, kicked, and spit upon. Abuse by patients, both physical and verbal, is a daily, sometimes hourly, occurrence. As a result, patient behavior is tracked in a database provided by the Department of Public Health, so staff can communicate with others to alert them of potentially violent or abusive patients.

This has also resulted in the development of protocols and procedures to protect staff and patients. For example, patients without pending business in the emergency department are not permitted to loiter. People who are sleeping or lingering in the waiting area in the early morning hours without medical necessity are asked to leave. And once they are screened and cleared for discharge, verbally abusive or physically threatening patients are removed.

The emergency department is overseen by armed deputies from the San Francisco Sheriff’s Department, who are on the premises 24 hours a day to provide security. During the midnight shift, three officers are on duty, one at a podium just outside the department waiting area, another at a post behind the security doors to the department, and a third on foot patrol around the campus. There is also a dispatcher who monitors security cameras throughout the facility, one of which is pointed at the emergency department waiting room. . . . Generally speaking, on a nightly basis several people are escorted off campus for verbally or physically abusing the staff or other patients."

Better to read about it than have to go there.

Morales v. Fry (9th Cir. - Oct. 16, 2017)

Sometimes procedure can be a sly way to cut back on substance.  Here's a good example.

The Ninth Circuit holds -- as have most (but not all) circuits -- that it's error to submit a "qualified immunity" issue to the jury.  Instead, that issue is supposed to be decided by a judge.

Fair enough.  That's indeed how most qualified immunity issues are decided anyway:  on summary judgment.  It also makes sense.  An officer is entitled to qualified immunity if it was not "clearly established" that what he or she did violated the person's constitutional rights.  That inquiry in turn substantially relies on evaluating precedent to see which principles are clearly established and which are not.  That's a task that's well-suited to a judge and poorly suited to a jury.

Hence the holding.

The thing is, though, that lots of times, the issue of whether a certain violation is "clearly established" relies a ton on disputed facts.  Plaintiff says X, Defendant says Y.  X is a clearly established violation of rights, but Y is not.  You can't grant summary judgment since there's a genuine issue of material fact.  Which is why there's an incentive to turn the issue over to the jury and let them decide which is which.  Particularly when the facts do not involve a clear-cut choice between X and Y, but instead involves lots of factual gradations in between.

So when the facts are what determine whether there's qualified immunity, you can see why you might want to turn it over to the jury.  Since it's the one who gets to decide the facts.

But the Ninth Circuit says that's improper.  It's only for the judge.

You see the complexity there, though.  So does the judge get to resolve the disputed facts?

No, says the Ninth Circuit.  The jury still decides that.

But how?  And how do they communicate those findings to the judge if the qualified immunity issue is not submitted to it?

The Ninth Circuit suggests that a district court might want to submit special interrogatories to the jury.  That works.  But the district court isn't required to do so.  It can just have the jury render a general verdict instead.  Then we're back to square one.  Plus, there are some cases in which special interrogatories may not be particularly helpful -- or, worse still, confusing.  Maybe the relevant facts regarding qualified immunity are somewhat different than those involved in the underlying violation.  Or maybe it's just too difficult to say to the jury, for example, "Okay, I know you just found that there was excessive force, but can you please tell me how much excessive force, because that's what's going to tell us whether the underlying right was clearly established."  Some questions just can't be asked with the required precision.

So what happens then?

The Ninth Circuit (not surprisingly) has an answer.  It says that if you don't have the jury expressly find the relevant facts -- either because you can't or you choose not to have 'em do it -- then the judge who's deciding the qualified immunity issue adjudicates it viewing all inferences in favor of the non-moving party (i.e., the plaintiff).

And now you get what I mean when I said that sometimes procedure can be used to affect, sometimes dramatically, the substance.

Because now you're importing the summary judgment standard into the resolution of the merits at and after a trial.  Once you do that, qualified immunity is hard to win.  Because the defendant who claims such a defense already (presumably) lost that issue on summary judgment (as well as on interlocutory appeal), and was at this point to get the facts resolved by a jury and then -- with that actual resolution in hand (not merely a hypothetical one with all facts resolved against him) -- prevail on the defense.

No dice, however.  Now, unless there's an express factual finding by the jury, the judge does the same thing she did before on the summary judgment motion.  E.g., deny the motion, since you view all of the disputed facts in favor of the non-moving party.

Procedure makes a difference.

Stewart v. Superior Court (Cal. Ct. App. - Oct. 12, 2017)

Don't get old.

Teixeria v. County of Alameda (9th Cir. - Oct. 10, 2017)

When the panel issued its original opinion, I thought that Judge Silverman's dissent was spot on.  In a concise, targeted way that was infinitely better than anything I could ever write myself.  The entirety of that panel dissent reads as follows:

"The first thing you need to know about this case is who the plaintiffs are. They are not individuals who claim the right to keep and bear arms for self-defense or for other lawful purposes. Rather, they are entrepreneurs (and their supporters) who want to operate a gun shop in an area of Alameda County that is not zoned for that use.

The next thing you need to know is that there is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. It is undisputed that they can. The record shows that there are at least ten gun stores already operating lawfully in Alameda County.

When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge.

The Supreme Court has held that the Second Amendment confers an individual right to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). Even assuming for the sake of discussion that merchants who want to sell guns commercially have standing to assert the personal, individual rights of wholly hypothetical would-be buyers – a dubious assumption, in my opinion – the first amended complaint does not explain how Alameda County’s zoning ordinance, on its face or as applied, impairs any actual person’s individual right to bear arms, no matter what level of scrutiny is applied. Instead, the first amended complaint alleges that would-be buyers are entitled to the enhanced customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy, but it is not a constitutional right. What’s more, the Supreme Court specifically held in Heller that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626–27.

Conspicuously missing from this lawsuit is any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby. The district court was right on target in dismissing the plaintiffs’ zoning case for failure to state a Second Amendment claim, because the district court correctly ruled that the ordinance restricting the location of a gun store is “quite literally a ‘law[] imposing conditions and qualifications on the commercial sale of arms . . . .’” Therefore, I respectfully dissent from that portion of the majority’s opinion."

Pretty persuasive, right?

Not to the majority.  But the problem with having Judge O'Scannlain, joined by Judge Bea, author the majority opinion in a Second Amendment case is that these judges are not representative.  Not of the judiciary as a whole nor, particularly, the judges on the Ninth Circuit.

So when the case get taken en banc, as it predictably does, the vote's not even close.  9-1-1.  With only Judge Bea himself agreeing with the panel opinion, with Judge Tallman concurring in part and saying that at least an as-applied challenge should prevail.

But that's, at best, 2 out of 11.  Because, in truth, on the merits, this one's not especially difficult.

Kirkpatrick v. Chappell (9th Cir. - Oct. 10, 2017)

I seriously thought about quoting Judge Kozinski's dissent in this death penalty case in toto.

But even though it's deliberately concise (to the point of being staccato -- though powerfully so), it's still eight single-spaced pages long.

So I'll instead merely recommend, strongly, that you read it in its entirety.

It's pretty darn powerful.  Regardless of which side you're on in the global death penalty debate.

The guy's a great writer.  No doubt.