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

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

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

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

Well.  That was definitely fast.

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

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

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

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

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

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

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

Impressive!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Okay.  Fair enough.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As well as a good idea.

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

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

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

Regardless, work goes on.

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

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

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

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

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

In particular:

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

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

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

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

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

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

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

But no.  Defendant only gets 90 days in jail.

Not that serious at all, apparently.

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

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

As in today's case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yes.  Yes we are.

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

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

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

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

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

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

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

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

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

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

Yeah.  Not good.

As for her life prior to all that:

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

Not a happy story at all.

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

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

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

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

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

You know the next chapter.

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

Wow.

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

They eventually divorce.

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

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

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

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

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

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

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

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

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

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

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

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

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

That'll get your license suspended.

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

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

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

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

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

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

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

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

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

But now we know.

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