Thursday, August 17, 2017

Skulason v. California Bureau of Real Estate (Cal. Ct. App. - Aug. 16, 2017)

What Justice Humes says is absolutely right:

"Skulason’s point is well taken. There is no doubt that the Internet substantially increases the ease with which the public can access information that was previously available only “after a diligent search of courthouse files” or other locally kept records. The reality of our electronic age, for better or worse, is that all kinds of public information that was once hard to obtain has become increasingly accessible, including information contained in or related to documents filed in court cases. And there is no doubt that increased access to information about prior convictions brings with it additional, and potentially harmful, collateral consequences."

Reasonable minds might perhaps differ as to what comes after this (insightful) paragraph.  Since the Court of Appeal nonetheless comes out the other way:

"We are sympathetic to Skulason’s concerns, but her remedies lie with the Legislature or the Bureau, not with the courts through a writ of mandate. The Legislature can consider enacting a law to restrict the Bureau’s ability to post documents that refer to convictions that have been dismissed under sections 1203.4 or 1203.4a. And the Bureau, rather than posting such documents unredacted and unexplained, can consider different approaches that might preserve its legitimate interests and still reduce the negative collateral consequences of its current practice. Our role, however, is limited to deciding whether existing law requires the Bureau, as ordered by the trial court, to “remove any and all documents containing information about [Skulason’s] expunged and/or dismissed convictions from its public website and publicly searchable database.” We conclude that it does not, and the court therefore erred by granting the petition for a writ of mandate."

There's nonetheless no doubt that the Internet is a double-edged sword.

P.S. - The case is also a pretty good example of the Streisand effect.  Before the lawsuit, someone had to deliberately go on the Bureau of Real Estate's web page and look up Ms. Skulason's license to find out about her "expunged" convictions.  Now, by contrast, with the publication of the opinion, I would fully expect that every time someone googles the name "Belinda Skulason", one of the very first hits will be a discussion of Ms. Skulason's previous offenses.  Particularly since "Belinda Skulason" isn't an extraordinarily common name.  (As of today the district court docket sheet is Result No. 9, an amicus brief is No. 11, and the Court of Appeal's opinion is No. 16.  And I'm guessing those results will move up over time.)

Wednesday, August 16, 2017

Ponte v. County of Calaveras (Cal. Ct. App. - Aug. 16, 2017)

This introductory paragraph really gets to the heart of the matter:

"Plaintiff Dennis Ponte is asking defendant County of Calaveras (County) to pay him over $150,000 to reimburse him for work purportedly performed on the County’s behalf pursuant to an oral contract. The contract did not contain any fixed payment, and no bid was submitted--far less approved--pursuant to relevant county ordinances governing public contracts. Ponte disregarded opportunities to abandon his claims after the County provided him with pertinent legal authority demonstrating that his claims lacked merit."

You don't need to read the remainder of the opinion to figure out where this is going.

Unless, of course, you'd like to see the attorney for Mr. Ponte receive similar critique.  But for that you'll only have to read as far as the first footnote:

"We begin by noting with disapproval the paucity of pertinent record citations throughout Ponte’s opening brief, which contains key passages either devoid of any citations, or containing inadequate citations, placing an unfair burden on this court. This same flaw is apparent in the reply brief."

The Court of Appeal certainly isn't shy here.

Monday, August 14, 2017

People v. Trever P. (Cal. Ct. App. - Aug. 14, 2017)

I just knew that when this opinion mentioned that it involved a 12-year old child babysitting his 4-year old cousin that we'd be talking about something bad.

Admittedly, I didn't know that it'd be this bad.  For example, that we'd be talking about an actual tape recording of a molestation.  Or that it'd be so bad that this is what he trial judge had to say:

“I have to say this tape recording, Exhibit 2, is some of the most sickening evidence I've heard. I have presided over adult jury trials involving murders with gory evidence and sexual abuse cases with horrific testimony from the victims, but actually hearing the acts being committed, as is the case here, and Trever's callous and sadistic treatment of Ralph is very disturbing. He seems to take pleasure out of hurting Ralph, and threatening to leave him and spanking him. [¶] There are numerous instances of Trever telling Ralph to bend over and open his butt, that he was going to stick it in, and for Ralph to keep it in; and to do it just one more time, over and over; or requesting Ralph to 'suck it' and threaten[ing] to leave him alone if he didn't and even threatening to kill him.”

Yeah.  Not good.  Especially when you're listening to this stuff exactly as it happened.

On the intellectual front, however, I will say that the opinion is definitely interesting, and would the underlying dispute would also make for a decent law review article.  The issue is whether a parent can "consent" on behalf of her minor child to secretly record communications with someone else.  Usually you have to get consent of both sides to a communication, or it's a felony.  But in certain circumstances, you only need one party's consent; e.g., when you're trying to get evidence related to extortion, crimes of violence, etc.

But here, neither party to the communication gave consent, or even knew that things were being taped.  Yet most courts, including this one, hold that the parent's consent "on behalf of" the minor child was nonetheless sufficient to constitute "consent" within the exception.

There's nonetheless a huge fight about how far this goes.  What about "consent" on behalf of a 17-year old child (who, again, doesn't know or want the communication to be recorded)?  Or "consent" by a noncustodial parent?  Or "consent" by other types of agents; e.g., a principal granting "consent" for his agent (attorney, employee, etc.) to secretly tape?  Are those valid too?

Not relevant here, since this is an otherwise straightforward "four year old child" type of case.  But just how far does the doctrine of "vicarious consent" go?  (And does it even make sense at the outset, or is it inconsistent with the text of the statute in even its "purest" form?)

Interesting stuff.

Thursday, August 10, 2017

Curci Investments v. Baldwin (Cal. Ct. App. - Aug. 10, 2017)

"Reverse veil piercing".  Super cool.

And allowed in California in an appropriate case.

Including, potentially, this one.

Wednesday, August 09, 2017

People v. Financial Casualty & Surety (Cal. Ct. App. - Aug. 8, 2017)

Two questions about this opinion:

(1) What's the relevant standard of proof?  The opinion doesn't seem to mention it, but I think it's at least relevant, if not critical.  Bail doesn't get forfeited if the defendant's been deported.  Here, the surety introduces evidence that certainly seems to at least suggest that the guy might well have been deported.

The surety convincingly establishes that, after posting bail, the defendant was arrested in Utah on drug offenses.  And, as a condition of being released on probation for these offenses, his booking sheet says "Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally."

Since the guy was released to ICE directly from jail, that strongly suggests that the guy was kicked out of the country, since that's what typically happens.  The surety also introduces some cooberating evidence:  a letter from the Department of Homeland Security that reads:  “This is in response to your letter dated August 5, 2015, in which you seek information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015.”

Well, geeze.  That definitely suggests that, yep, the guy was deported to Honduras, no?

Now, the Court of Appeal correctly notes that this evidence doesn't prove that the guy was actually deported.  The letter says that he "departed" for Honduras (even though it also talks about his "deportation" status), and the probation conditions also leave open the possibility that defendant might be permitted to leave the country voluntarily.

So I agree that I wouldn't bet my life -- or even my house -- on the fact that the defendant was in fact deported.  The evidence doesn't establish that fact with 100% certainty.

But that's where the standard of proof comes in.  At least to me.  My guess is that the relevant standard is proponderence of the evidence.  Or maybe even something less.

(I make this latter point because the opinion cites a case in a different section of the opinion that held that “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance,” rather “the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.'")

The evidence the surety introduced may not prove conclusively that the guy was deported.  But it certainly gives a strong reason to believe that might well have transpired, no?  If the standard of proof is 50.001%, geeze, that evidence might well be enough.  If I had to bet one way or another whether the guy was, in fact, deported, I might well take the "Yes" side of that bet.  The evidence might show at least that it's more likely than not that the guy was kicked out.  Even though, sure, there's at least a chance that the guy voluntarily left.

What about you.  You've got $1000 in free money to bet.  Would you take the "Yes, Deported" side of the bet, or "No, Not Deported" side?

So it seems to me that the standard of proof is pretty darn important.  And that the surety's evidence might also well satisfy whatever the underlying standard is.  Even if, admittedly, it leaves open an alternative hypothesis to deportation.

(2)  A related, but quicker, thought.  Why does this matter anyway?

The opinion cogently cites precedent from the Court of Appeal that says that if you're deported, the surety doesn't lose his bail money, but if you voluntarily skip the country, yep, the money's gone.  I get that rule, and in most circumstances, it makes sense.  You can't just flee to Mexico and get your bail money back.

But, here, we're merely disputing whether someone was "actually" deported to Honduras or whether ICE gave him the option of "voluntarily departing" and never coming back.  The guy was going to be deported if he didn't "voluntarily" leave.  Undisputedly.  And since he's not a citizen, he's not allowed to come back.  Under such circumstances, it's not an actual choice.  The authorities are the ones who are making you leave.  You're not skipping out on bail.  You're being deported.  Either de jure or de facto.

Why does it make a monetary difference which one it is?  (A) It's not your choice. (B) You're not doing it to skip out on bail. (C) Either way you're forced, under official orders, to leave the country and never come back.  (See, e.g., the probation condition:  "Do not re-enter the country illegally.")

"Voluntary" departure in the deportation context doesn't seem to me actually voluntary, nor the type of "skipping the country" that precedent talks about when it mentions skipping bail.  So I'd like to have read a bit more analysis of this issue as well.

'Cause I'm not sure that, even if the evidence was consistent with a "voluntary" departure, that should be treated any different than an actual deportation in this context.

(The fact that, on appeal, the surety introduced additional evidence that may well show that, yeah, the guy was actually deported only strengthens my thought that the result here might well be a forfeiture in unjust circumstances.  I agree with the Court of Appeal that it can't consider this evidence since it wasn't presented below  But if in fact that evidence does indeed show that, yeah, he was indeed given the official boot, rather than voluntarily departed, that's just proof positive in my view that the "Yes he was deported" side of the bet is in fact a pretty good one to have taken, even on the evidence that was introduced below.)

Tuesday, August 08, 2017

DLS Precision Fab v. U.S. ICE (9th Cir. - Aug. 7, 2017)

This opinion amply demonstrates at least one of the reasons why you should (1) hire a good human resources director, and (2) make sure that s/he's in fact doing a good job.  Because if your company start getting letters from the United States and your HR Director "literally stuff[s] the government’s correspondence in a drawer and never respond[s]," you may find yourself on the wrong end of a $300,000+ penalty.

Which is generally not good for your company.

Monday, August 07, 2017

In Re Marriage of Garcia (Cal. Ct. App. - Aug. 4, 2017)

Florencia:  "I've had it.  We've been married for 24 years, 7 months, but we're not making 25.  I'm filing for divorce."

Juan:  "Fine.  But guess what?  We were never actually married."

Florencia:  "What?!  That's absurd."

Trial Court:  "Yep, Juan's right.  You were never actually married.  Divorce petition dismissed."

Florencia:  "Okay, then.  New lawsuit.  I was a putative spouse.  Because I definitely thought I was married to you.  So give me the same relief."

Juan:  "I've got some Latin words for you.  'Res judicata'.  You already lost.  You can't sue me again."

Court of Appeal:  "Not so fast.  This is California.  A 'nullity' action is a different primary right than a 'divorce' action.  So the lawsuit can continue."

That's essentially the dialogue that underlies this opinion.

Thursday, August 03, 2017

People v. Echavarria (Cal. Ct. App. - Aug. 3, 2017)

You usually don't see a first-degree murder conviction reversed for juror misconduct.  But for every rule, there's an exception.

As today's opinion proves.

It's possible that the defendant will get convicted of the same offense (first- rather than second-degree murder) at the retrial.  But maybe not.  It's far from an open-and-shut case regarding premeditation.

Which is why there's prejudice here as well.

Regardless, not really worth shooting the guy over a $1200 debt for stucco repair.

Wednesday, August 02, 2017

People v. Singh (Cal. Ct. App. - Aug. 2, 2017)

There are undoubtedly people who are far more familiar with rap lyrics than I am.  Still, even my fairly low level of knowledge makes me wonder how probative (as opposed to prejudicial) the admission of rap lyrics was in this case.


"His writing, “Put it in your face and melts in your mouth like an M&M,” “two to the gut, watch you shut your eyes slow,” and, “I shoot for fun just to watch niggas shake like they goin’ dumb. Put two in your chest, now you goin’ numb” eerily describes what he did to Montoya—shot him in the face and twice in the gut. A jury could infer from defendant’s lyrics his identity as the shooter and his intent to shoot the victim in a specific manner."

Now, if that's how the defendant in fact shot the guy, yeah, that's pretty darn probative.  (Though somewhat diminished if these lyrics are just isolated snippets from several notebooks of rap lyrics, which seems to be the case here.)

And the Court of Appeal says that these lyrics "eerily describe" exactly what he did.

Really?

(1) "Put it in your face and melts in your mouth like an M&M."  In the real world, he first shot the guy in the face, true, but not in the mouth, so that "melts in your mouth" part seems exactly not to describe the crime.  And "put in in your face" seems to me like it's referring to putting the gun in the guy's face, not necessarily shooting him there (since he gets shot with the gun in his mouth).  So I'm not sure this "eerily describes" the crime more than, oh, a thousand other rap lyrics about putting a gun in someone's face.

(2)  "I shoot for fun just to watch niggas shake like they goin’ dumb."  But wait.  That's not what the the guy did.  He just walked up to the guy, someone said "Hey Joe," and shot him in the face.  Didn't hesitate.  Didn't make the guy shake.  Didn't intimidate the guy before shooting.  Just shot.

(3)  “Two to the gut, watch you shut your eyes slow.”  That describes shooting a guy in the gut and watching him slowly die -- a classic screenplay threat (and act).  But that's totally not what the guy did here.  He shot him in the face first, a shot that was -- according to the testimony at trial as well as the Court of Appeal -- “an immediately fatal injury".  So no watching someone slowly die at all.  

And as for even the out-of-context "two in the gut" line, the Court of Appeal says that's precisely what the defendant did.  But after shooting the guy in the face, he actually shot him once in the gut -- "near his belly button" -- and then (a) twice more (not once), (b) elsewhere.  "After Montoya fell to the ground, defendant stood over him and shot him three more times; near his belly button, in his left groin, and in his penis."  So that's once in the gut and twice in the groin, not "twice in the gut".  Since I don't know about you, but I don't call my groin and/or my penis my "gut".  And even if I did, that'd mean three in the gut, not two.

Tuesday, August 01, 2017

Republic of Marshall Islands v. United States (9th Cir. - July 31, 2017)

This morning brings a very good example of a lawsuit with a zero percent probability of success.  Zero.  As anyone with any knowledge of the underlying subject matter -- despite it being allegedly "complex" -- would well know:

"Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the “Treaty” or the “Non-Proliferation Treaty”) . . . calls on each party to the Treaty “to pursue negotiations in good faith on effective measures” to end the nuclear arms race and accomplish nuclear disarmament.   Armed with Article VI, one of the treaty parties, the Republic of the Marshall Islands, filed suit, asking the federal court to declare the United States in breach of its treaty obligations and to order the United States to engage in good-faith negotiations."

Uh, dude.  To state the facts of the case is pretty much all I need to know in order to tell you how it's going to come out.

But lest you take it from me, here's how the Ninth Circuit summarizes things:

"These claims are nonjusticiable -- Article VI is not directly enforceable in federal court, the Marshall Islands’ asserted injuries are not redressable, and the claims raise nonjusticiable political questions.  At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches. We affirm the district court’s dismissal of the complaint. Asking the federal court to order the United States to negotiate in “good faith” on “effective measures” for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks."

And that's even from an author (Judge McKeown) who's probably generally somewhat sympathetic to the plaintiff's cause.

In short, no, you're not going to win this lawsuit.  No chance.  Zero.

Baker v. Italian Maple Holdings (Cal. Ct. App. - July 31, 2017)

Is an arbitration agreement enforceable if a consumer (1) signs it, (2) has a statutory right to rescind her agreement within 30 days of her signature, but (3) dies before the 30 day statutory period expires?

After this opinion, the Court of Appeal is split on the issue.

One opinion, from eight years ago, holds that the agreement isn't binding in such circumstances.  But a different opinion, from now, holds that the agreement is binding in such circumstances.

It's a statutory interpretation case, and revolves around the meaning of what the statute means when it says that "[o]nce signed, such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature."  Does that mean that since the contract was never rescinded, it's still valid?  Or does it mean that since the statutory 30-day period never had a chance to expire, it's invalid?

The question is particularly relevant when, as here, the consumer dies allegedly because of the negligence of the party seeking to enforce the arbitration agreement.  To put it a different way:  Can you frustrate the 30-day statutory cooling off period by killing the signator so she can't exercise her right to rescind?

There's a split in the Court of Appeal.  It's an important issue.  It's one that recurs -- particularly (as here) in the nursing home context, where I imagine a nontrivial number of people die within a month of being admitted.  And the latest opinion not only expressly disagrees with the prior opinion, but also garners a dissent.

The California Supreme Court should step in and decide the issue once and for all.  Whether you get to go to court upon your death shouldn't depend on what particular panel you happen to draw.