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.