Friday, April 28, 2017

In Re R.S. and I.V. (Cal. Ct. App. - April 28, 2017)

Two opinions this morning.  Both involving juveniles.  Both from San Diego.  Both involving kids for whom, sadly, I feel this opinion may not be their only lifetime involvement with the criminal justice system.

Here's R.S.:

"On April 7, 2016, police officers detained R.S. at Crawford High School in response to a report that a nonstudent juvenile male was trespassing on campus. The officers took R.S. to the school's main office and questioned him. R.S. denied being on school grounds. He also repeatedly refused to identify himself and was "very loud and rude."

Because R.S. did not cooperate with the officers, the officers attempted to place him under arrest. As they did, R.S. "tensed up and clenched his fists and attempted to pull away." He yelled, "Don't fucking touch me Blood, get your hands off me!" R.S. struggled with the officers as they tried to subdue him. Eventually, the officers handcuffed R.S. One of the officers suffered a hairline fracture to his thumb during the struggle. School administrators reported that, before the officers arrived, R.S. had identified himself by a fake name and falsely claimed that he was a student at the school.

About two months later, R.S. and a juvenile associate were inside a Starbucks at 67th Street and El Cajon Boulevard, watching a 70-year-old man as he left the coffee shop. The man was carrying an iPhone 6. R.S. and his associate nodded their heads in the man's direction and then followed him outside "as if they were stalking him." R.S. and his associate then struck the man from behind in the back of his head. R.S. hit the man, using a "modified 'superman' punch" whereby R.S. jumped up and brought his fist down onto the man's head. The punch knocked the man to the ground, rendering him unconscious. . . . Police caught R.S. later that day. At the police station, R.S. at first denied punching the victim in the head, but later admitted to striking him. He conceded that he attacked the victim to steal his iPhone."

Less violent, but also troubling, is I.V.:

"In May 2016, 15-year-old I.V. became angry with his mother when she would not give him shopping money. He went into his bedroom in his grandfather's home, punched and kicked the walls, and threatened his grandfather when his grandfather tried to intervene. I.V.'s mother called the police, who arrived to find a broken lock on I.V.'s bedroom door, a damaged bed frame, holes in the wall, and damaged furniture. . . .

In late June, the probation department submitted a social study evaluating I.V. for the disposition hearing. The social study noted I.V.'s history of damaging property when upset and his mother's tendency to downplay his volatile behavior. . . . I.V. received failing grades in all of his classes in his first semester of high school, and he had a history of truancy. He was suspended for possessing marijuana and was subsequently expelled from his high school."

How depressing to have a fairly clear vision of where these children will likely end up.  Despite a wide variety of social efforts to make things turn out a different way.

Thursday, April 27, 2017

People v. Pou (Cal. Ct. App. - April 27, 2017)

The police get a report of a woman screaming inside a particular home and go to investigate.

When they arrive, the police see two men inside a house who seem to be making gestures like they are arguing.  No women, but okay.  [POSTSCRIPT - To be clear, the police see an argument, including some loud voices.] So they knock on the door -- aggressively, presumably -- and say they are the police and want to come in.

One of the guys inside the house eventually answers the door.  The police tell the guy that they want to "come in and look at the apartment to make sure everybody was okay.”  Which makes sense.

But the dude knows his rights.  It's his house.  He's not letting them in.  "Get a warrant."

The police officers, however, have other ideas.  We don't need no stinking warrant.  So they barge in, ostensibly under the "emergency aid" exception.  Because they say they reasonably think there might be a woman in there who's hurt and needs to get to the hospital ASAP.  No time to waste.

Once they're in the house, they indeed find a couple of women.  On a couch.  Unhurt.  Totally fine.

But that's no reason to leave, right.  There may be other women.  Everyone says there's no one else, but who knows?  Maybe someone's not telling the truth.

So they look everywhere in the house.  Just in case.

Where might this hypothetical woman be?  Pretty much anywhere, of course.  And the police say that one place she might be is in a particular closet.  They're not looking for drugs or anything.  No way.  They're just looking for a hypothetical woman who might be in a closet.

And then they just happen to spot drugs in that closet.  At which point people get arrested, charged, etc.

One more thing.  It's not even the right house.

The officers were told that the allegedly screaming woman was in the house that's across the street from 2314 Jupiter Drive.  That's what the Uber driver who complained said.  It's even in writing.

But that's not the house they barged into.  They barged into 2314 Jupiter Drive.  Not the house that had the allegedly screaming woman, which was across the street.

No matter all around.  Search was reasonable.  Conviction affirmed.

Wednesday, April 26, 2017

In Re B.M. (Cal. Ct. App. - April 20, 2017)

Is a butter knife -- the same one you probably used in the last 24 hours -- a "deadly weapon" in California?

The Court of Appeal has previously said "No."  The Court of Appeal in this opinion says "Yes," calling the prior opinion "wrongly decided."

See which opinion you think is correct.

I will submit one argument in favor of the former.  Apart from the fact that, when I think "deadly weapon," the phrase "butter knife" doesn't necessarily immediately come to mind.

According to the Court of Appeal's opinion, "as used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'"

The Court of Appeal's opinion repeatedly discusses whether a butter knife is "capable" of producing death or great bodily injury.  I assume it is.  So's a lego.  Stick it in the right -- or, more accurately, wrong -- place and, yeah, those things can indeed take you down.

But after defining the term, the Court of Appeal doesn't even once mention whether a butter knife is "likely" to produce death or great bodily injury.  The word "likely' doesn't even appear once.  Despite the fact that the "and" part of the definition suggests that a deadly weapon indeed needs to be both capable and likely to produce death or GBI.  Since "and" generally means and.

I think the "likely" part is whether the rubber meets the road.  Both here and generally.  A gun is a deadly weapon because it's capable and likely to produce seriously injury when you use it against someone.  A lego isn't because it's not.

And a butter knife?  Well, let me just say this.  I'd much rather have someone attack me with a butter knife than a whole, whole lot of other things.

And if someone told me that their neighbor had been attacked with a butter knife and made me bet one way or the other as to whether that butter knife caused him death or great bodily injury, I think I know on which side I'd place the wager.


Monday, April 24, 2017

People v. Vela (Cal. Ct. App. - April 24, 2017)

Here are the underlying facts from today's opinion:

"When they arrived in Santa Ana, Martinez drove around 7th Street’s territory. As they were cruising the area, they talked about Ochoa’s gun and were looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop because they saw two males (later identified as Martin Herrera and David Frias) whom they suspected to be rival gang members. Martinez made a U-turn and pulled into the parking lot of an apartment complex. When Martinez stopped the car, Vela got out and said that he was going to “hit these guys up.” . . .

Martinez stayed in the car and could not clearly see what was going on because there was a tree blocking his view. But Martinez was able to see some gesturing as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender. Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.

Vela and Ochoa immediately ran back to Martinez’s car and got in. Ochoa was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and leave. In an excited voice, Vela said, “Did you see those fools crying for their life?”

One victim was killed; the other survived.  Vela was sentenced to 72 years to life.  He was 16 at the time of the offense.

Here's the Court of Appeal's holding:

"In the published portion of this opinion, we conditionally reverse the judgment. Due to the electorate’s recent approval of Proposition 57, which emphasized juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in an “adult” criminal court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into account various factors such as the minor’s age, maturity, criminal sophistication, and his or her likelihood of rehabilitation.

We find that Vela is retroactively entitled to a transfer hearing because his case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge determines that Vela’s case should be transferred to a court of criminal jurisdiction, then his convictions and sentence will be reinstated. But if the juvenile court determines that Vela is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law."

Any doubt as to what the decision is going to be on remand?

I'd be glad for the victory in the Court of Appeal were I Mr. Vela, but I would simultaneously have a realistic view of the likely limited nature of today's victory.

John v. Superior Court (Cal. Supreme Court - April 21, 2017)

The California Supreme Court held long ago -- like, a year ago -- that the vexatious litigant statute doesn't apply to defendants who file an appeal when they've been sued (and lost) as a defendant.

Now, a year later, the Court revises and reposts its opinion to revise the counsel listing page.  As far as I can tell, the only change is to redact -- in big black marks on the last page -- the address of the vexatious litigant at issue, Aleyamma John.

Okay, I guess.  A little unusual.  It's not like the address gets published anyway.  Moreover, it's not like Dr. Google forgets.  It'll always be around.

Moreover, some might think that having the address float out there serves a public purpose.  If only because, after reading the opinion and underlying facts, I doubt that a landlord would be especially excited about renting to the vexatious litigant at issue -- something the landlord could learn about with a quick internet search.  So you might want to leave that address in, if only so someone looking up the person could make sure they have the correct "Aleyamma John".

Oh, and it's not like the address is really private information anyway.  It's not John's home address.  It looks like it's actually the address of the Alhambra Post Office -- i.e., a disguised P.O. Box.

Now, deleting the litigant's (apparent) home phone number; well, that just makes sense.  Not sure why it took a year for that to happen.  But okay.

Thursday, April 20, 2017

Jackson v. Mayweather (Cal. Ct. App. - April 19, 2017)

I'm confident that LA. attorney Michael Maroko cares more about the substance of this opinion than its caption.  Particularly since it concerns one of the firm's (many) high-profile clients; in this case, [litigation against] Floyd Mayweather, Jr.

Still, I'm confident that Mr. Maroko -- alongside his partner, Gloria Allred -- hope that the Court of Appeal spells the name of their firm correctly.  For the record, it's "Allred Maroko & Goldberg," not the "Allred Markoko & Goldberg" listed in the opinion.

Not the first time this has happened, I might add.  Either in the Court of Appeal or elsewhere.

POSTSCRIPT - Not surprisingly, Mr. Maroko's firm represented the woman suing Mr. Mayweather, not Mr. Mayweather.

U.S. v. Harris (9th Cir. - April 20, 2017)

Is this really right?

I mean, part of it seems right.  But I'm not sure about the very end.

Michael Harris stole some money and was convicted, so he's got a $640,000 restitution order against him.  Good luck getting him to pay much of it, though, since he's unlikely to have a great job or very substantial assets upon his release from prison.

He does, however, have parents.  Who established a couple of irrevocable trusts for their son.

Can the United States attach the trusts to satisfy the restitution order?

Well, not really.  The trusts are totally discretionary ones.  The trustees (the parents) don't have to distribute any money if they don't want to.  So you definitely can't grab the entire trust.

But what about the actual distributions to Harris?

That's what the government wants here.  They just want to file a lien on any future distributions.  So if Harris gets any money, the U.S. ends up with it (in order to satisfy the restitution order).

The trial court says that's fine, and Harris appeals.

The Ninth Circuit's per curiam opinion sounds mostly right to me.  It says, yeah, any distributions are totally discretionary, so they're not generally "property" of Harris that can be attached.  But the Ninth Circuit (rightly) also says that even though the trust says that distributions are entirely within the discretion of the trustees, under state law, that's not entirely true -- the trustees have fiduciary duties under the trust, and Harris (in turn) has the power to compel such distributions.  In the words of the Ninth Circuit:

"[D]espite the discretionary language of the trusts, California law grants Harris the right to compel distributions from the trusts, insofar as those distributions are necessary to fulfill the trusts’ purposes. Even if a trust confers “absolute, sole, or uncontrolled discretion on a trustee,” the trustee must “act in accordance with fiduciary principles” and must not act in bad faith or in disregard of the trust’s purposes. . . . Thus, even though the trust purports to grant the trustees absolute discretion over distributions, Harris can petition the probate court to ensure that the trustees’ exercise of that discretion is consistent with the trusts’ purposes."

Yep.  That sounds right to me.  Ditto for the Ninth Circuit's resulting conclusion that "Mindful of the rights granted to trust beneficiaries under California law, we hold that Harris’s interest falls within the federal definition of “property”" that can be subject to a lien.

I'm on board.  The Ninth Circuit's opinion seems logically true to me.  If Harris has the legal right to compel $X distributions from a trust, then that $X is "property" of Harris that can be attached.  Makes sense.

With the additional bonus that it helps stop circumvention of restitution orders.

But here's the thing.

Based on this conclusion -- which, again, I think is right -- the Ninth Circuit holds:

"In sum, we conclude that Harris’s interest in the trusts qualifies as property under the federal debt collection procedure that applies in this case. The government is not attempting to compel distributions from the trusts. However, any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."

Wait.  Not so fast.

I agree that Harris has the right to compel the trustee to distribute $X from the trust.  Now, we don't exactly know what $X is right now, since neither Harris nor the government have moved to compel such a distribution.  If the trust contains, say, $500,000, maybe Harris is entitled to a distribution of $10,000 a year from it, or $1,000, or maybe $0.  Depends on what the trust says, its purpose, the needs of Harris, etc.  But, yes, the $X that is Harris' enforceable "property" in the $500,000 trust is subject to a lien.

But that's not what the Ninth Circuit does.

The Ninth Circuit, like the trial court, didn't make $X subject to a lien.  It made ANY distributions from the trust subject to a lien.  Even those greater than $X.

Worse, it expressly held that "any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."  So, by definition, ALL distributions from the trust to Harris will be intercepted and used to satisfy the restitution order.

That remedy, in my view, doesn't at all follow from the court's analysis.

Harris owns $X.  That's it.  That's his only "property". You can put a lien on that.  But you can't put a lien on anything that's in excess of $X.  If I own $10,000 of a $500,000 trust, you can take $10,000 to satisfy a restitution order.  But if the trust distributes, say, $30,000, you can't take the whole thing, as only $10,000 of that is "my" property subject to a lien.  You don't have a lien on the other $20,000, as that's someone else's property.  (At least until it becomes mine; once it's in my bank account, maybe you can seize it at that point, but that doesn't permit the initial lien authorized here.)

So I have no problem with saying that because Harris owes $X, the government can seize $X.  Or to say the same thing without symbols, because Harris has a right under state law to a certain minimum distribution from the trust, the government can seize that minimum distribution  But it can't seize anything beyond that -- yet that's precisely what the courts here permit.  (An analogy to IRAs springs to mind.  There may be required minimum distributions -- RMDs -- that you can seize, but that does not permit you to seize the entire IRA, or any distributions in excess of the RMD.)

Now, I admit, things can get complicated here, since we don't know exactly what $X is in the present case.  Some could easily say, with some persuasive effect:  "Well, that's the government's burden, since it has the burden of showing both the existence and extent of its purported lien.  So if it wants a lien, it has to show what the legally compelled distribution is, and that -- and only that -- it can seize."

I'd be fairly sympathetic to such a view.

But I'd also understand a contrary view that says:  "You know what?  Since we don't know how much $X is, and since this is a restitution order, maybe I'm going to allow a 'provisional' lien on any and all distributions to Harris, since they may (or may not) be part of $X.  So we'll intercept them and then the parties can litigate later on whether part of the distribution was in excess of $X."

I could find that plausible.  I might need to know a bit more about trusts and remedies to express a complete view as to which of those alternatives seems doctrinally right.

But here's what I do know.  Just because you have a lien on $X doesn't mean you get to take $X + $20,000 and apply it to a restitution order.  Because that extra $20,000 is someone else's property, since it's not the $X to which the relevant person is actually entitled.

State law, for example, requires me to do X for my kids.  Feed them.  Clothe them.  Do some other stuff for them.  That's the minimum.  They're entitled to that, so that's their "property" right in some sense.  So that you can attach.  But if I do anything else for them -- things that I'm not required to do -- that's a gift.  You can't attach a preexisting lien to that.  Since that gift isn't their property.

So too here.

Everything in excess of the required minimum distributed from the trust is a gift -- a total gift -- from Harris' parents to Harris.  You can't place a lien on gifts before they're made.  And that's true whether the gift's made outside of a trust or inside it.  Just like the government would not be entitled to an order that says that any birthday gift of $5 that I make (or Harris' parents make) to Harris is subject to a preexisting lien and seizure, ditto for the excess (extra-legal) distributions from the trust.

So I follow the Ninth Circuit's analysis.  And think it sounds right.

But the court's conclusion from that analysis, and the order it affirms, nonetheless seems off, and not justified by the underlying legal principle.



Wednesday, April 19, 2017

Quigley v. Garden Valley Fire Protection District (Cal. Ct. App. - April 19, 2017)

Nothing from the Ninth Circuit today.  Thus far, from the Court of Appeal, only this depressing story:

Rebecca Quigley is seriously injured when she's part of a firefighting team and is run over by a truck while she's sleeping.  Seriously.  ("The truck crushed plaintiff’s chest, ribs, lungs and left shoulder, and it fractured her back. The accident permanently damaged her heart, lungs, and eyes.")  She sues, but the trial court holds that the defendants are immune, and also that the "firefighter's rule" bars recovery as well.

The Court of Appeal affirms.

Immunity is a funny thing.  (Not "ha-ha" funny.)  Injuries that would get you millions of dollars in compensation if the result of X's conduct get you absolutely nothing if those same acts are performed by Y.

Or, as here, less than nothing.  Since, adding insult to (literal) injury, the Court of Appeal orders Ms. Quigley to pay defendants' costs.

Tuesday, April 18, 2017

McDermott Will & Emery LLP v. Superior Court (Cal. Ct. App. - April 18, 2017)

You've got to read today's privilege opinion from the Court of Appeal.  And I say that despite the fact that I fully realize that it's 49 pages.  Not even counting the dissent.

It's a case in which Gibson Dunn gets disqualified for using a document that's privileged (even though Gibson thought the privilege had been waived) that was inadvertently produced by the other side -- not in litigation, but elsewhere.

As I said, there's also a dissent.

The opinion tells you what not to do -- at least from here on out -- when you see a document that might be privileged and inadvertently produced.  Particularly when, as here, the other side tells you that it's privileged and inadvertently produced.

Even if you don't agree.

Let Gibson Dunn's mistake be a lesson to everyone.

Don't get DQ'd.

Seriously:  A really important opinion.

Blixseth v. Yellowstone Mountain Club (9th Cir. - April 18, 2017)

Attorney Michael J. Flynn gets sanctioned by the Ninth Circuit.  A lot.  Under both FRAP 38 as well as under Section 1927.  For frivolous and bad faith litigation.  That's not good.

But that's not the end of things.  The Appellate Commissioner then has to figure out precisely how much Flynn has to pay.  And does.  At which point Flynn continues to object.

For a sense of Flynn's approach to the appeal, I'll just quote from the last three sentences of the opinion.  Which, not surprisingly, affirms the decision of the Appellate Commissioner:

"Flynn’s requests in the motion and amended motion for reconsideration for recusal of this panel, appointment of a new panel, conversion of this matter to a criminal proceeding, transfer of the matter to the United States Attorney, and holding of the awards in abeyance are denied. Flynn’s suggestion for reconsideration en banc is rejected on behalf of the Court. [Cite]. No further filings by Blixseth or Flynn will be entertained in this closed appeal unless specifically requested by further order of the court."

Sometimes it's healthier just to let things go.

Monday, April 17, 2017

People v. Becerrada (Cal. Supreme Court - April 17, 2017)

Here's a depressing way to begin a post-Easter week:

"A jury convicted defendant, Ruben Becerrada, of the first degree murder of Maria Arevalo with the special circumstances of killing a witness, murder in the commission of kidnapping, and lying in wait. As to the murder, it found true a weapon enhancement allegation. It also found defendant guilty of rape, forcibly dissuading a witness, and kidnapping."

Needless to say, the jury imposed the death penalty, and the California Supreme Court unanimously affirms the judgment.

The actual details of the crime, and the horrific domestic violence that Ms. Arevalo endured over a long period of time, are even more chilling than the one-paragraph introduction at the outset of the opinion.


Thursday, April 13, 2017

Davis v. U.S. (9th Cir. - April 13, 2017)

"In this appeal, we consider whether a federal agent is entitled to qualified immunity from suit for detaining an elderly woman in a public parking lot for two hours, while she stood in urine-soaked pants, to question her, incident to a search, about her possession of a paperweight containing a rice-grain-sized bit of lunar material."

Yep.  Those are some bad, bad facts for the government.

And since the opinion begins with those particular facts, you can probably already figure out which way the panel (unanimously) comes out.

Sumrall v. Modern Alloys (Cal. Ct. App. - April 13, 2017)

I have a hard time understanding this opinion.  And I mean that literally.  I have difficulty even getting a basic understanding of what the Court of Appeal is trying to say.

It's a "coming-and-going" rule case.  An employer isn't liable for things you do on your commute; e.g., from your home to your work.  On the theory that where you live is your choice and benefits "you", not the employer.  (Put to one side whether that makes economic sense.  It's the law.)

So if you drive from H (home) to W (work), any accident on the way is on you, not your employer.  Ditto for W to H.

Conversely, if you're driving for work, that's on your employer.  So W to W is on the employer.

The difficulty here arises from the fact that "W" isn't totally clear.  It's a construction company, and there's a company "yard," where the employees meet before work, and then everyone drives (often a company vehicle" from the yard to the actual worksite.  (For what it's worth, the employees don't get paid until they're at the worksite.)

So the employees here go from H to Y to W.  And the accident happens on the way from H to Y.

So what's the rule?

The Court of Appeal says that it's a genuine issue of material fact, since it's unclear whether Y amounts to W.

I don't get it.

Clearly Y is part of the employee's work.  It's the location of the company.  The employee is required to be there.

If that's the case (and it clearly is), then it seems to me that the Yard unambiguously counts as the workplace.  Hence the coming-and-going rule applies.

The Court of Appeal seems to think that there's only one W.  But I don't get that.  There can clearly be more than one places of work.  If I tell you to be at one worksite at 8:00 a.m., and then to drive from there to another at 11:00 a.m., both of those places are W's.  When you drive from home to the first W, that's on you.  When you drive to the second -- not from your home -- that's on me.

The point is that you're driving FROM HOME.  At the direction of your employer.  That's what happens in the present case.  Home.  To do some work.  Hence the coming and going rule.

Sure, there may be some variables.  When you're "on call" or things like that.  But I don't see any of them coming into play here.

I'm sure my analysis is overly simplistic.  I'm confident that the Court of Appeal perceives some complexity that I don't see.

But I think that when you're going from your house to a company-owned yard, and from there to a worksite, the answer just seems straightforward to me.

Wednesday, April 12, 2017

In Re J.L. (Cal. Ct. App. - April 12, 2017)

This one probably should be published.  Which is what the Court of Appeal decides.  Albeit belatedly.

When your case is (as here) very similar to another published opinion by the Court of Appeal, when you're going the other way than that other (published) opinion, and when your opinion critiques the reasoning (or lack thereof) of that prior opinion, then, yeah, you should published your opinion.

Or at least that's my view.

Boling v. PERB (Cal. Ct. App. - April 11, 2017)

You wouldn't ordinarily think that a City was compelled to meet and confer with one of its unions over a citizen-sponsored initiative that the voters adopted, or that the failure to so meet and confer invalidated the resulting ordinance.

The Public Employment Relations Board, however, thought that this was precisely the case.

The Court of Appeal disagrees.

Just because a City helps out with an initiative doesn't mean that the "City" was the one who did the thing.  So no obligation to meet and confer.

Tuesday, April 11, 2017

People v. Douglas (Cal. Ct. App. - April 11, 2017)

Sometimes your senses get a bit dulled from reading the same basic criminal fact patterns again and again.  Defendant arrested for drug possession.  Defendant pulls out a gun and commits a robbery.  Defendant assaults a person in a bar.  Defendant commits domestic violence.  Defendant commits a robbery or assault or murder to "represent" his gang.

Every fact pattern is somewhat unique, of course.  But there are definitely patterns.

But then, once in while, the Court of Appeal publishes an opinion that mixes things up a bit.

So today's published opinion begins:

"After defendant Brady Dee Douglas’s former boyfriend, a male prostitute, told him Jeffrey B. had shorted him money following a prearranged sexual encounter, defendant and codefendant Clifton Sharpe tracked down Jeffrey and demanded the unpaid money. During a high speed freeway chase, Jeffrey swerved his car into defendant’s vehicle after defendant pointed a gun at him, shooting several times. Jeffrey was able to escape unharmed."

Yep.  That's a little bit different.

There's also some great doctrinal stuff in the opinion about what you do with mixed-motive Batson challenges, particularly as applied to prospective gay jurors in a case like this one.  Definitely worth a read.

And not your garden variety fact pattern.  If only because we don't have all that many freeway shootings as we did back in the old days.  Or at least not typically for reasons like this one.


Monday, April 10, 2017

Shaw v. Superior Court (Cal. Supreme Court - April 10, 2017)

Of course a trial court's erroneous decision holding that a party isn't entitled to a jury trial should be reviewable (in an appropriate case) by an extraordinary writ.  We shouldn't force the parties to waste money (or allow the losing party to sandbag) by making them participate in a meaningless trial.

Kudos to the California Supreme Court for unanimously overruling its prior precedent to the contrary.  It's good for the law to be clear (and right).

If only so lower courts won't feel compelled by precedent to do the wrong thing.

Friday, April 07, 2017

People v. Sharpe (Cal. Ct. App. - April 7, 2017)

This opinion is devastatingly concise.  It rejects defendant's arguments on appeal quickly, easily, and with the precision of a surgeon.

The basic underlying facts are that some people crept into an outdoor marijuana garden in the middle of the night, the owner confronted them, the invaders fled, and the owner ran after them.  Here are the arguments and the court's rejoinder:

"Defendant claims that, although there was evidence of the use of force (knocking Smith down) and fear (in response to brandishing of the gun), there was no evidence that defendant or his coperpetrators were in the act of taking the marijuana or attempting to flee with it when force was applied or fear was caused. We disagree. The men were in the marijuana garden cutting the marijuana. They had already stacked some of it outside the garden. When Smith confronted them, they ran out of the garden and down the driveway. In the darkness, Smith could see that they had something in their hands, yet he testified that he did not see marijuana in their hands. In the morning, Smith saw that there were pieces of marijuana scattered down the driveway. Despite Smith’s inability to identify what was in the men’s hands as they were fleeing, it was reasonable for the jury to infer from the circumstances that the men had marijuana in their hands. Based on this inference, there was sufficient evidence that defendant and his coperpetrators used force and fear as they took and fled with the marijuana, thus supporting a robbery conviction.

Defendant argues that “the circumstantial evidence suggested only that the perpetrators had been cutting and piling up marijuana to steal it, but from the moment Smith interrupted the theft their only aim was to get away.” However, as noted above, the circumstances also suggested that the perpetrators were carrying marijuana down the driveway.

Defendant asserts that the sheriff’s deputy did not see the marijuana scattered down the driveway.  But Smith testified that he saw it.

Defendant also asserts that precisely where in the driveway the marijuana was found was never established. But Smith testified he saw “little pieces of marijuana cascaded down [the] driveway like bread crumbs.”

Defendant claims that there was no evidence concerning how or when the marijuana was deposited on the driveway. But a reasonable inference from the evidence is that the marijuana on the driveway was deposited there as the men fled.

Defendant argues: “It would be rank speculation to leap from the evidence of marijuana pieces on the ground near the garden gate and plant pile (where pieces would have naturally fallen as the perpetrators hacked down 11 plants and their bamboo framing and piled up the marijuana) to the conclusion that some marijuana bits on the ground must have landed there because the perpetrators, in their rush to flee after being interrupted by Smith, were attempting to carry away marijuana but dropped some.”

This argument does not give the evidence its due. Smith testified that there were pieces of marijuana scattered down the driveway. That there were also marijuana pieces by the pile of marijuana does not mean that the jury was constrained to believe that the spread of marijuana was limited to the pile by the garden or immediately around it.

Since the jury could reasonably infer that the perpetrators were carrying marijuana as Smith confronted them and chased them down the driveway, the evidence was sufficient to support the robbery conviction."

Sounds right to me.

Thursday, April 06, 2017

People v. Truong (Cal. Ct. App. - April 5, 2017)

This opinion ends not with a bang, but with a whimper.

The final argument raised by appellant's challenge to her conviction is her claim that the trial court should not have admitted the evidence about the credit limits of the credit cards she was alleged to unlawfully possess.  The opinion deals with this contention in a single paragraph at the end.

On the merits, Justice Lui seems entirely right that any error, even if it existed, would be harmless.

But there's no factual background about what evidence what admitted on the credit limit issue, or for what alleged purpose.  The reader is basically left entirely in the dark about what we're talking about.

The opinion also, strangely, feels the need to drop a footnote that defines what a credit card is.  And a long footnote at that:  "A credit card is generally defined as a “[s]tandard-size plastic token, with a magnetic stripe that holds a machine readable code. Credit cards are a convenient substitute for cash or check, and an essential component of electronic commerce and internet commerce. Credit card holders (who may pay annual service charges) draw on a credit limit approved by the card issuer such as a bank, store, or service provider (an airline, for example). Cardholders normally must pay for credit card purchases within 30 days of purchase to avoid interest and/or penalties.” ( [as of Apr. 4, 2017].)

Is that really necessary?  And, if it is, can we really not find a better source for this information than from an internet dictionary -- indeed, one I've never even heard of before?

Plus, the opinion also asserts that the error was harmless because "Credit cards, by definition, come with credit limits."  Again, I agree that any error would be harmless, and I also agree that most credit cards do indeed come with credit limits.

But it's actually untrue that "by definition," credit cards come with credit limits.  If I want, I can absolutely issue a credit card with no limit.  Indeed, some issuers purport to do precisely that.  that may or may not be a wise practice.  But it's not "definitionally" true that credit cards inherently have a credit limit.  If I want to say I'm liable for whatever amount the individual charges, I can do that.  No problem.  Not smart.  Maybe practically difficult to enforce any resulting liability if the user then runs up $1 trillion in charges buying, say, Russia.  But I can do it if I want.  That's still a credit card.

A funny way to finish up the last substantive paragraph of an opinion.

Wednesday, April 05, 2017

Walent v. Commission on Professional Competence (Cal. Ct. App. - March 13, 2017)

Isn't it somewhat weird that this entire appeal is about the fact-specific issue of whether the fee award granted by the trial court in that case consisted of an amount that is reasonable and yet, in the entire opinion, Justice Zelon never once mentions the actual amount of that award?

A strange omission.  You'd think that this information would be at least marginally relevant -- if not critically so -- to the analysis.

U.S. v. Gasca-Ruiz (9th Cir. - April 5, 2017)

It's not necessarily difficult to obtain a unanimous en banc opinion.  You just have to (1) have an intra-circuit conflict about the relevant standard of review, (2) on which one side is fairly clearly right, (3) in a case in which it totally doesn't matter what standard of review applies.

Here you go.

Tuesday, April 04, 2017

Unicolors v. Urban Outfitters (9th Cir. - April 3, 2017)

This opinion contains 21 single-spaced pages.  Thousands and thousands and thousands of words.  All about whether there was sufficient evidence at trial (under the "intrinsic similarity" test) to establish that the clothing sold by Urban Outfitters was sufficiently similar to a swath of clothing that had been copyrighted by Unicolors.

Yet, in the entire 21 pages, there's not a single picture that compares Unicolors' print to the clothing sold by Urban Outfitters.

That's what the entire lawsuit is about.  The whole thing.  Yet not a single picture.  It lacks something like this:



Just a reminder that a picture's worth a thousand words.  At least.

Monday, April 03, 2017

People v. Financial Casualty & Surety (Cal. Ct. App. - April 3, 2017)

One thing about looking at a business from outside is that you're never sure if your perceptions are based on erroneous information.  At the same time, perhaps one's "outsider" status may permit a perspective that those on the insight might overlook.

So when I read today's opinion from the Court of Appeal, my first thought was:  "Is this all a scam?"

Over the years, I've learned more than I ever wanted to know about bail forfeitures as a result of reading the (numerous) opinions that address the subject.  The basic scoop of which is easy.  When a company posts bail for someone, and the person subsequently doesn't show up in court, the bondsman has a certain period of time (180 days, though it always gets extended) to find the person and bring 'em in, and if they don't, the bail gets forfeited.

That much you could even get from just watching television.

The slight complexity is when -- as is often the case -- the person flees the jurisdiction.  In that case, you simply show up with ("catch") the person before local law enforcement and, at that point, get back the bail you posted, since at that point, you've done your job, and it's up to the state to decide whether to try to extradite the person.

Fair enough.  And, in the United States, that totally works.

But what if the person flees to Mexico?  Or some other foreign country.

Same deal.  Show up with the person before a local law enforcement officer and, boom, you get your money back.

Which is precisely what (allegedly) happens in this case, which involves an $100,000 bond.

Here's the part that made my spidey-sense tingle:

Yeah, the bail bondsman brought a guy before a law enforcement official in Mexico.  But since the guy was a Mexican national, and wasn't accused of any crimes in Mexico, that's all that could happen. Apparently, under Mexican law, you can't do anything else.  You can't take him into custody. You can't question him.  You can't fingerprint him.  You can't take a photo.  Nothing.

So here's the scam.

Just take anyone.  Grab a friend.  Grab a guy off the street.  Give the guy $10 or whatever.  Walk him to a police officer in Mexico and say to the officer:  "Here's my guy.  He's wanted in the U.S."  Even if it's totally not him.  Even if it doesn't look anything like him.  Even if it's just a totally random guy. The officer can't do anything.  The guy goes free.  And you get your $100,000 back in the States by saying that you "caught" the guy in Mexico.

That works, right?

Oh, yeah.  And it works even if you don't bribe a random Mexican police officer to say anything on your behalf.  And if you do, well, then, that's just double-sweet.  You're protected times two.

That seems like a way easy way to make $100,000 that you're at serious risk of losing, no?

It stretches credulity to think that I'm the only one who's ever thought of this.

And that fact that the alleged bail-jumper here was caught "[walking down] the main street of the tourist center in Tijuana, Mexico" -- a neat little coincidence, no? -- definitely raises some issues.

So whatchathink?  Scam?  Neat little way to make a cool hundred grand?

I wonder if that's in the back of the Court of Appeal's mind.  When it holds that, in fact, it's okay for the prosecuting agency (the D.A.) to require that the surety provide a photo or fingerprints of the subject in order to get their money back.  Notwithstanding the fact that this requirement is definitely nowhere in the relevant statute.

Stops the scam.  Or at least makes it harder.  Gotta find someone who at least marginally looks like the person for whom you're looking.

Though the Court of Appeal's holding in turn makes you wonder if this doesn't permit agencies to run a scam the other way.  They know full well that, in Mexico, the police aren't permitted to take a photo or get fingerprints.  So by requiring these things as a condition of getting your bail money back, the agency can make sure that your (substantial) bail gets forfeited.  Even if, in fact, the surety caught the right guy and validly presented him to local officers.

Lots of money at stake.  Lots of incentives to try to keep it.  On both sides.

Friday, March 31, 2017

People v. Lena (Cal. Ct. App. - Feb. 22, 2017)

There are so many things about the facts of this opinion that are surprising.  It starts with:

"Lena attempted to escape, but cornered himself on a dead-end street, where he jumped out of his car and pointed a gun at the pursuing officers. One of the officers drew his own gun in defense, which surprised Lena, and he fled the scene on foot down a bike path."

Wait.  Lena is fleeing police officers, pulls out a gun and points it at police officers, and then Lena is "suprised" when the police draw their own guns in self defense?!  Um, I think that's fairly standard, to be honest.  Maybe you can legitimately be surprised they didn't shoot you, but as for pulling their guns, yeah, they tend to do that when a fleeing felon points a gun at them.

But let's not judge Mr. Lena harshly.  He does apparently have some talents.  Not only did he steal a ton of stuff from various households, but he not only got away from the police (and lived!), but he even almost made it out of the country.  And, no, not to Mexico:

"After his escape from the officers, Lena fled north by truck, avoiding capture, and made it all the way to the Canadian border."

Sadly, for him, that's where his luck runs out:

"But as he attempted to cross the border control point, he behaved suspiciously, and the Royal Canadian Mounted Police tried to apprehend him. The result was a high-speed chase into Canada that ended abruptly with a roadblock and a shootout with the pursuing Canadian officers. Lena was wounded, taken into custody, and after a brief stint in the hospital, convicted and imprisoned in Canada for discharging a firearm at a person and attempted murder. After serving his sentence, Lena was brought back to California to be tried for the offenses that led to his flight into Canada."

Back in the States, Mr. Lena makes another series of unfortunate decisions.  Starting with the decision to represent himself at trial.  With predictable consequences.

I'll give him this, though.  He certainly made the trial, eh, "interesting".

"At trial, Lena chose to represent himself. He based his case primarily on his own testimony, the sum and substance of which was significantly different from what had been reported by California and Canadian police. Lena claimed he was delivering medicine to a friend in Corte Madera when he was pulled over by police officers for no apparent reason. He denied burglarizing any homes, claiming the stolen passports and firearms found in his car had been planted there by both California and Canadian officers sometime during the years he spent in Canadian prison.

Lena claimed he never pointed a gun at pursuing officers in California, and that he fled because he feared the officers were actually federal agents who had been following him for a few years. The only reason he sought refuge in Canada, Lena explained, was because, upon escaping the officers in Marin County, he saw his face plastered across the news as a burglary suspect, and he felt it was in his best interest to flee the country even though he was innocent.

Lena also claimed he passed though the Canadian border without incident, but the Canadian police put up a barricade further down the road in order to stop him. According to Lena, after he crashed into a ditch, Canadian officers snuck up and shot him twice from behind, causing severe wounds which put him in the hospital. He never fired back, he claimed, because he had no gun; he said the firearms the Canadian officers found in his truck, like the guns found in his car in the U.S., were plants used to frame him."

Yeah.  Good luck with that story.

One more decision, though.  After testifying at trial, Mr. Lena makes another tactical decision:

After giving his testimony, Lena told the court and the jury he would not answer any of the People’s questions during cross-examination. The court cautioned him against that course, explaining that if he refused to answer appropriate questions during cross-examination, his entire testimony would be stricken from the record. That did not deter Lena, and he replied it would not matter if his testimony was stricken because the jurors wouldn’t be able to “delete [his testimony] from their memory.”

During cross-examination, Lena held true to his threat and refused to answer any questions. He told the jury he was doing so because he believed the People had “stonewall[ed]” him, and he thought it only fitting to do the same thing to them. Again the court tried to warn Lena it would strike his testimony from the record if he continued acting belligerently, but he was undeterred. In light of his refusal, the court struck his entire testimony."

You can probably figure out for yourself how all this stuff eventually worked out for Mr. Lena.  Hint:  He's not currently residing in your neighborhood.  (Unless you happen to live near the Tehachapi prison.)

This is nonetheless one of those (many) cases that makes you wonder about whether it really makes sense to let people represent themselves.  No biggie in this particular case, maybe, since it's fairly clear that Mr. Lena is in fact guilty.  But what if he were (potentially) innocent?  His decisions at trial certainly would almost assure his conviction regardless of the merits.

Thursday, March 30, 2017

People v. Smith (Cal. Ct. App. - May 30, 2017)

Justice Simons comes off extremely well here.

Everyone agrees on the result.  But Justice Simons authors a lengthy concurrence in which he argues that California's precedent on this issue -- involving what it takes for hearsay to be admitted as a declaration against penal interest -- is unfounded and should be changed.

That's the kind of out-of-the-box thinking I like to see.  That's nonetheless somewhat rare (though it surely exists) in the Court of Appeal.

Wednesday, March 29, 2017

U.S. v. Pascencia-Orozco (9th Cir. - March 29, 2017)

This is one of those rare opinions in which the Ninth Circuit may actually understate the defendant's culpability.

Judge Bea begins his opinion by saying:

"We seldom run into a “frequent flyer” as “frequent” as appellant. Over his 46-year career as an illegal entrant, he has been deported or removed dozens of times. But what makes him stand out as a “cara dura” is not only that on some of these entries, he used the name and stolen documents of an innocent father of five, but that he now testifies before the wife and mother that he actually fathered two of the innocent’s children. Despite the numerous grounds he now urges on appeal, we affirm."

All true.

But when you read the rest of the opinion, you learn that it's not just illegal entry and identity theft that's at issue.  "Between 1971 and 2011, Plascencia was similarly removed from the United States at least twenty more times and was convicted of at least eleven separate immigration offenses."  That's a pretty hefty record.  Nor is this a mere illegal reentry case.  "In January 2008, Plascencia attempted to enter the United States at the Calexico Port of Entry in California. When asked for identification, Plascencia presented Del Muro’s birth certificate. U.S. Customs and Border Protection officers then searched Plascencia’s car and found over one hundred kilograms of marijuana hidden inside."  That's a lot of weed.

I won't explain in detail how Plascencia keeps using different names, or keeps successfully switching attorneys prior to trial, or how he seems very "off" during his discussions with his lawyers, but it's safe to say that Judge Bea is correct that this is definitely both an unusual case and an unusual guy.

Which is in part why he gets sentenced to over 15 years in prison.

No small sentence.

Monday, March 27, 2017

Williams v. Yamaha (9th Cir. - March 24, 2017)

It's hard to win a consumer class action these days.  So many roadblocks in the way.

Here's an example.  Which highlights just one of the many, many ways you can lose.

And the fact that I'm not sure that the plaintiffs should lose only highlights the difficulty of these types of cases.

Here's the backdrop:

There's a problem with certain Yamaha outboard motors.  Seriously.  A problem.  Of that I have little doubt.  These things allegedly contain a design defect that causes "severe, premature corrosion in the motors’ dry exhaust system."  So even though they should normally last for at least 2000 hours of use, these things crap out at like 500 to 700 hours of use.  Which, coincidentally, is long enough for the warranty period to expire, but not long enough for the consumer to get full use out of the thing.

And Yamaha knows it.  It gets a ton of complaints, sets up an entire complaint department devoted specifically for this problem, and lots of other stuff.  Or at least that's the allegation.  And the panel here concludes that, yeah, the allegations here -- at issue is a 12(b)(6) motion -- are sufficient at this point to establish that Yamaha had the requisite knowledge to state a claim.

So does that mean the lawsuit goes forward?

No.  Not even against Yamaha USA. (Yamaha Motor independently gets out on personal jurisdiction grounds because it has successfully immunized itself from suit here by acting through a subsidiary, holds the opinion.)

Why no lawsuit?

Well, to prove a product defect in these types of cases, you not only have to establish a defect, but also that the defect results in an "unreasonable safety hazard".

Does the defect in the motor here qualify?

Plaintiffs have two theories as to why it does.  First, they say that the defect -- the corrosion -- can cause on onboard fire.  Okay.  That's not good.  That's clearly a problem, no?

Maybe.  But the panel holds that that's not a "plausible" result.  Because plaintiffs haven't alleged that there have actually been any fires yet.  So we're just going to assume -- conclusively -- that, in truth, it's just not true that corrosion can cause a fire in the engine.

Okay then.  That's a pretty good example of how Twiqbal can be used these days to bounce a case that you don't like at the pleading stage.

But plaintiffs also have a second theory.  One that seems pretty darn plausible to me.  Corrosion can definitely cause the motor to conk out.  No disputing that.  And we're talking about boats here.  As a result, plaintiffs say, the risk that an outboard motor could conk out, stranding a boater at sea, is in fact a safety hazard.  Ergo the lawsuit can go forward.

To me, there's no denying that losing your motor at sea is a huge problem.  Seriously.  A huge problem.  It easily falls within the category of a "safety" issue.  Doctrinally and otherwise.

Life and death.

So doesn't that qualify?

Not according to the Ninth Circuit.

But for the "dead-motor-is-a-safety-issue" argument, the panel's arguments seem neither persuasive nor even that clear.  The panel says, with respect to this issue:  "We further note that the standard is one of an “unreasonable” safety risk. The loss of steering power, while plausibly hazardous, is a potential boating condition of which Yamaha expressly warns consumers."  Uh, okay.  Sure, the issue is indeed whether it's an "unreasonable" safety risk.  But it is unreasonable if a motor that's supposed to work and that you have every reason to suspect would work suddenly doesn't work, leaving you to potentially die at sea.  That's an "unreasonable" safety risk, at least in my view.  And the fact that the manufacturer lists this risk amongst its (infinite) disclaimers doesn't change that fact, at least to me.  I understand that if I'm in an old boat with a crappy old motor that, yes, I need to prepare for it to conk out.  But if I'm in a new boat with a virtually new motor, I expect it will work.  Should I perhaps be on the safe side and prepare for an emergency?  Of course I should.  But that doesn't mean that there's no liability.  For example, boats sometimes tip over, and I'm sure every boat manufacturer warns its customer that boats might sometimes tip and that they should have a radio, lifevests, waterproof gear, etc.  Notwithstanding that fact, if a manufacturer makes a 50' boat that tips over every time I lean even to the slightest to one side, dude, that's a defect, and if you know about it, you should be liable, not immunized merely because sometimes boats tip.  Tipping boats, conked out motors.  Same risk, same deal.

Then the panel says something that's not really a doctrinal point, but merely a practical one.  It says:  "Moreover, the nature of the alleged defect as being primarily one of accelerated timing rather than the manifestation of a wholly abnormal condition weighs against its characterization as 'unreasonable.'"  Or, put a different way in the next paragraph:  "Finally, the fact that the alleged defect concerns premature, but usually post-warranty, onset of a natural condition raises concerns about the use of consumer fraud statutes to impermissibly extend a product’s warranty period."

That's, I think, the panel's real thrust.  They don't like defect cases that might be thought of as a run-around of the warranty period.

Fair enough.

Except safety things are a clear exception to that rule.  That's why there's the "safety" requirement in these cases.  And that's a matter of state law -- not something that the federal courts are simply free to ignore.  If it's a safety issue, then we don't care how long (or short) the manufacturer "warrants" the thing free from defects.  We want it to actually be free of unreasonable defects.  And if there's in fact a safety issue, that's for a jury to decide.

So the panel's ideological concern on this point isn't really an argument.  It's just a preference.  It does not in fact respond, in my view, to whether there's an actual safety concern.

Now, yes, I agree, the fact that we're talking here about the "timing" of an alleged flaw might perhaps be relevant in some cases.  Because, yes, everything eventually fades, every machine will fail at some indefinite point in the future.

But the fact that a product will eventually fail, and thereby (perhaps) cause a safety issue, does not mean that "timing" issues aren't "safety" issues as well.  To take but one example, every grinding wheel will eventually fail.  Just give it time.  At some point, given enough use, it will fly apart and destroy your face.  Even the best-made grinding wheel will shatter itself after a century or millennium of use.  The same's true for an airbag or car or stick of dynamite.  They'll all seriously hurt you at some point if you keep using them for enough time.

But the fact that a grinding wheel will eventually fall apart in 100 years in no way means that a grinding wheel that falls apart in 100 seconds doesn't create an "unreasoanble safety risk".  Not in the slightest.  Not even if the manufacturer says, hey, sometimes grinding wheels fall apart.  Ditto for prematurely exploding airbags or dynamite sticks or other products.  Yeah, these are all "timing" issues.  But that's not dispositive.  The question is whether its a defect that causes a safety risk, and those two elements seem as equally present with an exploding/failing boat motor as with a similarly defective grinding wheel.  They can kill people.  People don't expect 'em to fail as rapidly as they in fact do, due to a design defect known by the manufacturer.

That creates liability.  And the fact that there's a more limited warranty period for non-safety stuff that the law protects doesn't immunize that fact.  Either in justice or under the relevant California law.

Are there tensions between the "safety" lines of cases and the "warranty" lines of cases?  Sure.  But we have to honestly put each particular case on one side or the other.  And when the defect can cause an actual safety issue, it falls on one side of the line, not the other.  The "fire" thing, okay, maybe I could get on board for that's just a hypothetical and/or implausible claim.  But "dying-on-a-boat-due-to-a-defective-motor" is neither.  That's a very real risk.

And, at least in my mind, puts this case on the other side of the ledger.

Without especially persuasive arguments to the contrary, I think, by the panel.

Friday, March 24, 2017

Espinoza v. Shiomoto (Cal. Ct. App. - March 24, 2017)

Even when you think you're right, one downside of filing an appeal is that it may result in an opinion that's published and that tells the world the factual circumstances that gave rise to your appeal.

That's sometimes bad.  Even in the usual case.

If you're an attorney, it's often worse.  Since it's your colleagues who are the ones who generally read these opinions.

If you're a public defender, ditto.

And if you're a public defender who's been stopped for DUI, and who's appeal results in a 44-page published opinion that recites in detail the underlying facts about the (alleged) intoxicated driving and the driver's response to being stopped, well, that pretty much exemplifies the point.

That's a lesson that's definitely front and center to California attorney Bernice Espinoza at this point.


Wind Dancer Production Group v. Walt Disney Pictures (Cal. Ct. App. - March 24, 2017)

Opinions like this one make me think that Disney can be a 600-pound gorilla, and not a nice one at that.

And that's even without any discussion in the opinion about how, on the merits, Disney was (allegedly) stealing the royalties owed to its artists by cooking its books.

No, this opinion is just about how Disney (allegedly) delays and frustrates audits and then tries to bounce any suit against it on limitations grounds.  A tactic that worked in the trial court.

But not in the Court of Appeal.


Wednesday, March 22, 2017

Sheley v. Harrop (Cal. Ct. App. - March 20, 2017)

A full third of this opinion reads like a bench memorandum.  A draft opinion that spells out for the judge what went on below.  Including ten full pages of headings like "Special Motion to Strike," "Respondent's Opposition," "Appellant's Reply," "Oral Argument in the Trial Court," and "The Trial Court's Ruling."  Which might not be so bad if each one of these sections wasn't around a page, and take up ten pages of text.

I know it's a pain to delete stuff you've worked hard writing, and that's at some level relevant to the appeal.  Nonetheless, ten pages of prefatory material really does make the opinion more of a pain to read.  The academic equivalent is 30 single-spaced pages of introductory text to a law review article that "lays out the problem" before even commencing with the point of the piece.

Neither writing method makes things especially easy for the reader.

Tuesday, March 21, 2017

Fiduciary Trust Int'l v. Klein (Cal. Ct. App. - March 21, 2017)

"This is the latest appeal in a longstanding, particularly acrimonious probate matter involving the Mark Hughes Family Trust (trust). . . . This probate matter has been before us on appeal numerous times over the past decade."

Yikes.  Makes you absolutely not want to establish a trust.

And reading the remainder of the opinion doesn't make things look any brighter.

Monday, March 20, 2017

People v. Garcia (Cal. Supreme Ct. - March 20, 2017)

It's not as if I don't understand the theory.  Or even, at some level, empathize with it.  It's true that incredibly long footnotes sometimes detract from the flow of an opinion.  I get that.  Trust me.  As a result, I can understand the temptation to adopt an internal "no footnotes" rule.

But today's opinion by Justice Cuellar amply demonstrates the pitfalls of such a principle.

Here are just the first three paragraphs of the opinion:

"According to the Center for Sex Offender Management (CSOM), one in every five girls and one in every seven boys is sexually abused by the time they reach adulthood. Among adults, one in six women and one in 33 men suffer sexual assault. (CSOM, U.S. Dept. of Justice, Fact Sheet: What You Need to Know About Sex Offenders (2008) p. 1  needtoknow_fs.pdf> [as of March 20, 2017].) [as of March 20, 2017].) Yet only about 30 percent of sexual assaults are reported to law enforcement. (Off. of Sex Offender Sentencing, Monitoring, Registering, and Tracking, U.S. Dept. of Justice, Facts and Statistics,  [as of March 20, 2017].) 

Despite rising incarceration rates, the majority of known sex offenders at any given time are not in prison — and most sex offenders who are imprisoned will eventually be released. (Nat. Governors Assn. Center for Best Practices, Managing Convicted Sex Offenders in the Community (Apr. 2008) pp. 1-2  [as of March 20, 2017].) Like most jurisdictions, California requires convicted sex offenders to register as a means of enabling law enforcement to manage the serious risk to the public of recidivism. (In re Alva (2004) 33 Cal.4th 254, 279.)

During the five-year period from 2006 to 2011, the number of registered sex offenders in the United States increased 23.2 percent. (Nat. Center for Missing & Exploited Children, Number of Registered Sex Offenders in the U.S. Nears Three-quarters of a Million (Jan. 2012) [as of March 20, 2017].) Today, over 850,000 sex offenders are registered throughout the United States. (Nat. Center for Missing & Exploited Children, Map of Registered Sex Offenders in the United States (Dec. 2016) ,www.missingkids.com/en_US/documents/Sex_Offenders_Map.pdf> [as of March 20, 2017].) California alone has 75,000 — more than any other state. (Off. of Atty. Gen., Cal. Megan‘s Law Website [as of March 20, 2017]; Cal. Sex Offenders Management Bd., An Assessment of Current Management Practices of Adult Sex Offenders in
California (Jan. 2008) p. 55.) How to manage and supervise these offenders is one of the most difficult challenges facing government policymakers today."

Seriously?

Parsing through all these citations while you're reading is a major hassle.  Particularly, but by no means limited to, the hyperlinks.

Wouldn't it be better just to put the citations in footnotes?  The text would flow a lot better that way, IMHO.

Yes, I know, that'd require the reader to maybe look down occasionally.  But if the reader understands -- either from this opinion or others -- that you're just putting citations there, they can get used to just reading the text and looking down if necessary (read: pretty much never).  And even if they have to plop an eye or two down on occasion, I still think that's better than having to struggle in a paragraph to find when the stinking citation you don't care about finally stops.  At least a footnote is both self-contained and easily ignored.

Lots of legal writing puts too much stuff in footnotes.

But the remedy sometimes goes overboard the other way.

Thursday, March 16, 2017

Jason P. v. Danielle S. (Cal. Ct. App. - March 16, 2017)

Coincidentally, the Court of Appeal also issues this opinion today, which contains a long -- and I mean, long -- discussion of the personal interactions between Jason P. and Danielle S.  Two people who had a longstanding intimate relationship, conceived a child as a "sperm donor," broke up, and have subsequently fought for years and multiple appeals over whether Jason P. should have any legal parental rights.

This one uses first names instead of pure initials.  But it's also a family law case, so the full names of the parties aren't identified.

The similarity is that the father here is also a celebrity.  ("Danielle is a certified rolfer. She met Jason, who is an actor, through a client of hers in 2002.")  A high-profile one.

The difference is that it only took ten seconds to identify the actor.  Since it's a high-profile dispute the parties have long fought outside court as well.

Which is why I'm happy to identify Jason P. as Jason Patric.  Who largely wins his appeal today, in a very significant family law case.

An interesting set of facts and an interesting, and lengthy, opinion.

Y.R. v. A.F. (Cal. Ct. App. - March 15, 2017)

This actually took me a good five minutes to figure it out.  And I'm not being sarcastic.  Usually it takes me a lot less.

We (understandably) use initials in family law cases.  And the briefs and records are similarly not available online.  That way, you won't know the intimate details of someone's life just by having an opinion published by the Court of Appeal

So, from reading the opinion, we know that Y.R. is a hair stylist who works in Santa Monica, and that she had a brief affair with A.F. that resulted in the birth of a daughter (Z) in 2006.  A.F. makes a lot of money, so voluntarily paid Y.R. $5,000 a month to make things right.  This goes on for several years. But Y.R. eventually wants more money, so gets an attorney and makes a formal child support claim.

The trial court discusses the equities, makes a support order, Y.R. appeals, and the Court of Appeal remands.

That's the legal part.

But it's a juicy little private affair, right?  So lest we be deprived of the details, the Court of Appeal lets us know that A.F. "is a successful director and producer," is "married and lives with his wife and three children, one of whom is an adult," and makes "$2,282,512 per year (approximately $190,000 per month)."

Oooh.  Celebrity!  With a wife a three kids and a secret baby from an affair.  Who could it be?!

Let's see.  Director.  Male.  Tolerably successful.  Initials of A.F.

Hmmm.

Don't be surprised if no one immediately springs to mind.  Like I said, it took me a good five minutes of searching to actually figure it out.

It's him.

You might say:  "But Professor Martin, how are you certain?  Same initials, yes.  Three kids, check.  But couldn't it just be a big coincidence?"

Maybe, except the Court of Appeal's opinion also repeatedly mentions the name of A.F.'s production company.  Cartel Productions, Inc.  Which leads to this.  Same name.

Now that'd have to be a huge coincidence, right?  Though judge for yourself.  You know everything I know at this point.  But, as they say, if I were a betting man, my personal opinion would be to bet the farm.  (If, in fact, I owned a farm.)

I then tried to find out if this was already public (albeit nonlegal) information.  Though I couldn't find anything, so maybe it's the Court of Appeal that's let this one out of the bag.  One of the downsides of publishing an opinion.

Though I'm not sure that A.F. has all that much to worry about from the opinion.  There's this, which reflects that this may not be his only love child (and is a really bad story).  And then, recently, this, a story that really doesn't leave much of his personal marital situation a secret.

Nor is this apparently the only legal problem that A.F. has confronted in this arena.  According to this, anyway.

And all that's just after looking for five minutes.

The entire opinion gives you an inside take on an (otherwise anonymous) complicated life.  Of both parents, as well as the child.

And then some outside reading uncovers some additional details as well.

Your dose of celebrity for the day.  Courtesy of -- at least in part -- Justice Manella.

Washington v. Trump (9th Cir. - March 16, 2017)

Classic Judge Reinhardt.

The Ninth Circuit denied the government's request to stay the district court's order that restrained the implementation of President Trump's "travel ban," and the United States subsequently dismissed its appeal.  You'd normally think that'd be it.

But a judge on the Ninth Circuit nonetheless requested an en banc vote on whether to vacate the Ninth Circuit's (now entirely moot) denial of a stay.  The en banc vote failed, and the Ninth Circuit let's us know that fact.

Judge Bybee dissents from the order, and explains why.  Judge Reinhardt files an opinion concurring in the denial of en banc review.  That concurrence, in its entirety, says:

"I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them."

"Small number of members to overturn or vacate it" -- letting you know how close the vote was, even though judges aren't permitted to reveal the actual vote totals.  "Independent and courageous," and so "regardless of the source" of the efforts to weaken the Constitution.

Not so veiled references.


Tuesday, March 14, 2017

Behunin v. Superior Court (Cal. Ct. App. - March 14, 2017)

Here's a reminder that just because the Court of Appeal decides to hear your writ petition doesn't mean that you're necessarily going to win.  Even if it simultaneously grants a stay.

The litigation here involves a lawsuit against Charles Schwab (yes, that Charles Schwab) over a failed real estate deal.  As part of the "pressure" to settle that lawsuit, the underlying plaintiff created (with the help of others) a website that painted Mr. Schwab in a negative light.  The website's here, and is chuck-you.com.  Yes, "Chuck You" is indeed a play on Mr. Schwab's first name ("Chuck") and a different word that rhymes with "Chuck" and occasionally comes before the word "You."

Which prompts Mr. Schwab to sue for defamation.  Which in turn prompts an anti-SLAPP motion.  Which in turn prompts a discovery fight about whether information relating to the formation of the web site -- which involved (in some capacity) the lawyer for the plaintiff in the underlying case -- was privileged.

The trial court decides it's not privileged and orders the production of the documents.  The losing party files a writ.  The Court of Appeal decides to hear the writ, and issues an OSC why it shouldn't order the trial court to vacate its orders.  It also grants an immediate stay on all discovery.

So if you're the party claiming the privilege, you're feeling pretty good.  Looks like you're going to win, right?

Nope.  The Court of Appeal affirms the trial court's orders, dissolves the stay, and sends the case back to the trial court.  And even awards Schwab his costs.

That's a loss.  Notwithstanding that things may have looked pretty good there for a while.

Not that plaintiffs get nothing out of the whole thing.  They at least get a published opinion that discusses their chuck-you.com web site.  Which presumably will result in at least a temporary uptick in the number of visitors to the thing.  Including but not limited to my visit earlier today.

Of course, there's a cost to that -- in particular, all the costs and attorney's fees involved in preparing and prosecuting the writ petition, as well as paying Schwab's costs in the end.  That's a pretty penny.

But at least they got something.  More hits.

Better than nothing, right?  Albeit small solace.

Schoshinski v. City of Los Angeles (Cal. Ct. App. - March 14, 2017)

I admit that the underlying issue is a troubling one.  The City of Los Angeles settled a class action and agreed to (1) stop charging some illegal trash fees to residents of multi-family residences that didn't actually receive trash services from the City, and (2) reimburse those people all the money they previously made.  That's the part of the resulting judgment, which includes injunctive relief.

Yet while the City apparently paid some people, it didn't pay (a number of) others, and stopped some of the charges, but not to everyone.

That's a problem.  A serious one.  We should take judgments seriously.  We should follow them.

But here's the thing:

You can't prosecute a separate class action that seeks the same (or similar) relief to the class action that was already settled.  Claim preclusion.  Which is what the Court of Appeal rightly holds.

Yes, the City should not violate the judgment.  Yes, there should be a way to make that not happen.

But a new class action isn't the proper way.  Instead, the trial court retained jurisdiction to enforce its orders.  So the proper remedy is a motion for contempt (or similar relief).  A word -- interestingly -- that is contained nowhere in Justice Bigelow's opinion.

That's how you enforce an injunction.  Not with a new lawsuit.

Even if, as here, the City seems either uninterested in or unable to follow the judgment to which it agreed.

Monday, March 13, 2017

Omidi v. United States (9th Cir. - March 13, 2017)

The Ninth Circuit today rejects a challenge to a judicial forfeiture proceeding in which the U.S. seized some money from appellants.  It resolves the case fairly easily:

"The district court construed the appellants’ motion for return of the seized funds as a motion under Rule 41(g). The appellants could have challenged in that proceeding the lawfulness of the government’s seizure (and retention) of the $100 million. They could have argued, for example, that the seized funds lack any connection to criminal wrongdoing and thus are not subject to forfeiture, or that the government’s lengthy delay in initiating judicial forfeiture proceedings violates their due process rights. But they raised no such arguments. They instead asserted as the sole basis for relief a violation of the notice deadline imposed by § 983(a)(1)(A), a provision which, as we have explained, simply does not apply in this case."

You knew about the seizure immediately once it transpired, and say on appeal only that there's also a statute that says that the government has to give you formal notice of the seizure within 60 days, but that statute doesn't apply.  That's a pretty straightforward resolution.

Ordinarily, such a resolution might not even merit special mention.  Appellant makes an argument, it's not a very good one, and it gets rejected.

But here's the somewhat unusual fact:

The seizure at issue involved the United States seizing $100 million.

For that amount of money at stake, you'd think that the appellant might be able to come up with some better arguments on appeal.

People v. Acuna (Cal. Ct. App. - March 10, 2017)

The Attorney General's office gets a break.  The Court of Appeal says:

"On page 4, near the end of the paragraph that started on page 3 with 'Appellants argue evidentiary error' delete the sentence 'For its part, the Attorney General offers this court no help, instead compounding the problem with a 458-page rambling respondent‟s brief plus 28-page addendum.'"

Always a nice thing to have deleted (if it was initially said).

Friday, March 10, 2017

Glassdoor v. Superior Court (Cal. Ct. App. - March 10, 2017)

The Court of Appeal today grants a victory to people who want to post confidential (negative) reviews of their employer.

People v. Cervantes (Cal. Ct. App. - March 9, 2017)

Fourteen years old.  Fourteen years old.

"Alexander Cervantes was 14 years old when he attacked a 13-year-old girl and her 20-month-old brother, who were the younger siblings of one of his friends. After breaking into their home in the middle of the night, he stabbed them repeatedly as they slept, raped and sodomized the girl, forced her to orally copulate him, and ultimately passed out during the attack. He had been drinking heavily that evening and his defense rested on voluntary intoxication to negate specific intent. He was convicted of 15 charges, including various sex offenses, first-degree burglary, and two counts each of attempted murder, torture, and aggravated mayhem. He received a prison sentence of 50 years to life under the one-strike law (Pen. Code,1 § 667.61), a consecutive 11-year determinate term for one attempted murder (§§ 187, 664), plus a consecutive life term for the other attempted murder."

I'm speechless.

Wednesday, March 08, 2017

Beck v. Stratton (Cal. Ct. App. - March 8, 2017)

The Court of Appeal publishes this opinion today.  One in which, as the old saying goes, the employer was penny-wise but pound-foolish.

Thomas Beck hires Anthony Stratton, and two months later, Stratton quits.  He asks that he be paid (among other things) his accrued wages of $1,075, which corresponds to 43 hours times Stratton's hourly wage of $25.

As the Court of Appeal explains, "Beck promptly directed his payroll service, ADP, to pay Stratton the $1,075 in ordinary wages. For reasons 'no one at trial could explain,' ADP paid Stratton only $771.45 instead of the requested $1,075."  So Stratton's owed a whopping $303.55.

So Stratton files a claim with the Labor Commissioner.  And rather than just paying the $303.55, there's a hearing.  At which point the amount owed grows significantly.  The Commissioner awards Stratton not only his $303, but an additional $5,757.46 in liquidated damages, interest, and statutory penalties as well, for a total award of $6,060.96.

Yep.  The employer gets spanked for twenty times what he originally owed.

But it doesn't end there.

The employer then files an appeal in the superior court.  But loses.  Again.

At which point the employee moves for his attorney's fees.  Which are granted.  Resulting in an additional $31,365 added to the judgment.

Remember.  This thing was originally over $303.55.

And the Court of Appeal affirms.

The only thing the employer has going for him is that the pain at least ends here.  The Court of Appeal, in its discretion, orders each side to bear its own costs.

Avoiding yet additional tens of thousands in fees added to the judgment.

Lesson of the day: Sometimes, just pay the $303.

Tuesday, March 07, 2017

U.S. v. Sims (9th Cir. - March 7, 2017)

I know you like weed, says the district court.  But it's caused you nothing but trouble.  So when the court puts the defendant on supervised release, it says that the defendant can't use marijuana, as well as things that are "like" marijuana.  Specifically, the district court prohibited Mr. Sims from using "synthetic cannabinoids."  Which, it noted, means thing like Spice and K2.

Now, if you stopped an average person on the street, they likely wouldn't know what a synthetic cannabinoid was, or (unless they're "hip") precisely what Spice and K2 entail.  But the Ninth Circuit says that that doesn't mean that the condition is void for vagueness.  We can figure out pretty clearly what's being prohibited here.  As indeed we can.

Coffee okay.  Cigarettes, even.  Just no Spice-like things.

Monday, March 06, 2017

People v. Shorts (Cal. Ct. App. - March 6, 2017)

I'd ordinarily expect to see facts like these in the California Supreme Court.  In a death penalty case.

"Defendant Terry Glen Shorts sexually assaulted and murdered 13-year-old Jessica S. in 1996, shooting her in the head and leaving her half-naked body in a park in the middle of the night. Sixteen years later, he was connected to the crime when his DNA was identified in samples taken from Jessica’s body. At trial, defendant conceded that he had sexual relations with Jessica, but claimed he did not kill her. Instead, he argued that Sammy Rodriguez did it. The jury convicted defendant of the murder and sex offenses, and the trial court sentenced him to life without possibility of parole, as well as other terms. . . .

On the morning of February 12, 1996, 13-year-old Jessica S.’s body was found in Florin Creek Park in Sacramento. She was five feet, one-and-a-half inches tall, and she weighed 90 pounds. Jessica died of a single gunshot contact wound to the head. She also had injuries consistent with being hit in the head with the butt of a gun and being strangled. Her pants and underwear were off, and her bras (she wore two) were hiked up, exposing her breasts.

Jessica’s mother said that Jessica left their home the night before at around 11 p.m. or midnight with a 14-year-old boy to go to her grandmother’s house. Between 2 and 4 a.m., a woman who lived adjacent to Florin Creek Park heard a “horrible scream” from a female. She also heard a man say “stop” and “don’t,” as well as more screaming from the young female. About 10 minutes after the first scream, a gunshot rang out, and the screaming stopped.

Vaginal, rectal, and oral swabs were taken during an autopsy of Jessica’s body. Sperm was found on the vaginal and rectal swabs but not on the oral swab. . . . Sixteen years after the murder, in 2012, the vaginal and rectal swabs were analyzed again, and defendant’s DNA was collected from the sperm. . . .

The prosecution presented evidence under Evidence Code section 1108 that defendant sexually assaulted his ex-girlfriend, J.P., less than three years before the murder of Jessica. He dragged J.P. to a car and took her to a park. Pointing a gun at her and threatening her, he strangled her, beat her, and forced her to have oral and anal sex with him."

Same result as generally transpires in the California Supreme Court, though.  Conviction affirmed.

Thursday, March 02, 2017

Godoy v. Spearman (9th Cir. - March 2, 2017)

Back in 2016, Judge O'Scannlain authored this opinion, and Judge Fisher's dissent summarized the relevant holding as follows:

"When a sitting juror is alleged to have continuously texted a judge friend about the trial and relayed the judge’s information to the jury, the majority concludes the trial court need not investigate further – and the jury verdict would not violate due process. I disagree."

I thought that was a pretty darn good way to start a dissent.  And said that I expected the case go en banc.

Today, it did.

I'll make another prediction.  The en banc court will go the other way.  Maybe 8-3?  (Of course, it totally depends on the draw, but a wild, meaningless projection never hurt anyone, right?)

Wednesday, March 01, 2017

Haniff v. Superior Court (Cal. Ct. App. - March 1, 2017)

There's nothing doctrinally wrong with this opinion.  It's solid.

But you could still come out the other way.  And maybe should.

Plaintiff hasn't worked in years after he was hit by a car on Stanford's campus.  He's suing for a ton of money.  From Stanford University and some other folks.

Defendant has had an orthopedic surgeon take a look at plaintiff.  That doctor says the plaintiff's injuries have healed and that there's nothing medically-related that stops the guy from working.

But plaintiff has hired a vocational rehabilitation expert who gave plaintiff a bunch of tests and is set to opine that he can't obtain (much) gainful employment at this point.  Not surprisingly, defendant wants to rebut this testimony.

So defendant sends out a discovery demand that plaintiff submit to testing by its own vocational rehabilitation expert, who will take no more than two hours with plaintiff and conduct an "interview and administration of written examination, including interest testing and aptitude testing to examine plaintiff with respect to his employment history, prospects and interests."

Plaintiff objects, and there's a motion to compel.  Plaintiff says that there's no permissible discovery device that allows this sort of thing.  It's not a physical exam, it's not an interrogatory, it's not a document request, etc.

The trial court grants the motion.  It says that this discovery makes sense, and it's part of the court's inherent discovery powers.  It's relevant; indeed, critical.  So it's ordered.

The Court of Appeal reverses.

Justice Bamattre-Manoukian says, sorry, the discovery devices listed in the CCP are exclusive.  If it's not in one of those categories, you can't do it.  If you want to change things, talk to the Legislature.

Good luck with that, by the way.

Okay.  I get it.  Again, you can definitely come out that way.

But you can definitely come out the other way as well.  Indeed, as Justice Bamattre-Manoukian's opinion itself notes, the New York state courts have done precisely that.  That state's very similar to California, and limits discovery to particular devices.  But that didn't stop the New York courts, which (like the trial court) thought it still made sense to allow this sort of discovery, and which thus held that it was within the court's inherent power to allow it.

Justice Bamattre-Manoukian says that these New York cases might be persuasive if there was nothing in California on point, but thinks there is.  Though that's not really true.  Yes, there's some arguably analogous California cases.  But you could definitely allow this discovery, in my view, if you wanted to.

Judging -- with all due respect to Chief Justice Roberts -- isn't just about calling balls and strikes.  In particular cases, yes, there's a set rule.

But not here.  This is one of those grey areas.  Where you could do what you want.  If you wanted to do it.

I'm admittedly torn as to what I would do.  I know that if I was in the Legislature, I'd vote to allow this sort of discovery.  And, perhaps because of that, I'm hopeful that some state representative (or the Judicial Council) will use this opinion to change the law.

But I also recognize that the Legislature is imperfect.  Way.  And that that's precisely why we have the common law.

So I might do something different as well.  Something the court could.

If it wanted to.