Thursday, June 21, 2018

People v. Cortez (Cal. Ct. App. - June 20, 2018)

The first sentence of this opinion is somewhat funny.  Not "ha-ha" funny, but instead, slightly remarkable (or at least worth notice).

It reads:  "Defendant and appellant, Anthony Esparza Cortez, Jr., a convicted felon, and his friend, Michael Saavedra, conspired to commit murder against Rene Perez, and his sonin-law, Alvino Barrera."

It's funny because even though there are plenty of published opinions about murders, I don't usually see the Court of Appeal say that someone "conspired to commit murder against" someone.  Usually the justices just say "conspired to murder" that person.  No "commit" or "against".

Indeed, as far as I can tell, in no reported or unreported opinion in history has any California court ever used the phrase "conspired to commit murder against" someone.  Nor, my research reveals, has any brief, secondary source, or anything ever employed this phrase before this opinion.

Not that there's anything wrong with the phrase.  I know exactly what it means.  And we often say that someone "conspired to commit a crime against" someone else.  Nothing wrong with replacing "a crime" with a particular crime; here, murder.

Still, it's unusual.  Some extra words we don't usually see.

So I dug even deeper.  And I'm not 100% sure about this, but the only use of this phrase in all of recorded American jurisprudence before this opinion is its use by non-lawyers and non-judges; in particular, by a gang leader in Texas when pleading guilty ("I conspired to commit murder against other DMI members for sanction, violations and so forth."), by a pro se litigant in his handwritten complaint against various defendants ("all parties conspired to commit murder against me"), and by a pro se litigant in Newport Beach in a petition for certiorari to the United States Supreme Court in which he raises 58 "Questions Presented," alleges that AT&T is "the biggest terrorist organization in the world," and ends his lengthy petition by saying "the Defendants have conspired to commit Murder against the Petitioner Anthony Martini and the Defendants are accomplices to Murder, Kidnapping and made the Petitioner permanently disabled for the rest of his life being in pain 24/7."

Fine company indeed.

Regardless, again, I know what the sentence means, so no biggie.  Just a couple of extra words we usually don't see.

Tuesday, June 19, 2018

Hipsher v. LA County Employees Retirement Ass'n (Cal. Ct. App. - June 19, 2018)

This is unusual.  Someone convicted of "directing an offshore gambling operation" under 18 USC 1955.  Don't see that very often.

But it gets weirder.  The perpetrator:  An L.A. County firefighter, Tod Hipsher.  Who apparently used a room in the fire station to conduct his offshore gambling operation.

When there was a problem with collecting unpaid gambling debts of the bettors, who did he use?  Employees of the Department of Homeland Security and the Orange County District Attorney's Office.  Stranger still!

And this lawsuit?  His challenge to the reduction in his pension that was applied due to the misuse of his office.

Weird stuff all around.


Monday, June 18, 2018

U.S. v. Espino (9th Cir. - June 18, 2018)

When I prepare final exams, I find it's sometimes difficult to create fill-in-the-blank short answer questions that are uniformly perfect.  Ditto for multiple choice questions.  Sometimes unexpected ambiguities creep in notwithstanding one's best efforts.

The same's true for verdict forms.

The district court here gave the jury a verdict form that read:  “We the jury in the above entitled cause unanimously find, beyond a reasonable doubt, that the defendant, Flora Espino is: ________ of providing materially false testimony to the Grand Jury.”

The jury deliberates an hour before finding her guilty.  Which, parenthetically, it seems like she totally was.

She then appeals, claiming that the verdict form improperly shifted the burden on her to prove that she's not guilty.  Which is right.  Because, under the form, in order to fill in the blank with "not guilty," the jury would technically have to find her not guilty "beyond a reasonable doubt" -- rather than just finding her not guilty because the prosecution hadn't established its case beyond a reasonable doubt.

But the Ninth Circuit finds the error harmless, because the jury instructions made the proper burden totally clear.

And, I suspect, the fact that the jury had no trouble whatsoever finding Ms. Espino guilty played a part in the harmless error finding as well.

Life lesson for the day:  Don't lie to a grand jury.  Take the Fifth if appropriate.

And, if you're a district court, maybe double check your written work.


People v. Orozco (Cal. Ct. App. - June 18, 2018)

"On August 7, 2014, the police pulled Orozco over and a routine license plate check showed the car Orozco was driving had been reported stolen. Orozco was the vehicle's sole occupant, the car's ignition was damaged, and it was running without a key. The police report listed the car's value at $301."

A running vehicle that's only worth $301?!  A car that's worth only $301 and yet someone bothers to steal it?!

I wouldn't believe either proposition if I didn't see it in print.

Thursday, June 14, 2018

People v. McVey (Cal. Ct. App. - June 12, 2018)

You're outside an adult bookstore in Hollywood, with a semiautomatic pistol in your waistband, when you buy $40 worth of cocaine from two guys who walk up to you.  Once they leave, you realize that it's just powdered sugar.

So you're upset.  A short time later, a block away from the scene, a homeless guy comes up to you and asks you for some change.

So you pump seven gunshots into the guy, killing him.

Not a good day.  For anyone.

Wednesday, June 13, 2018

Shiver v. Laramee (Cal. Ct. App. - June 12, 2018)

This might be the most personally important case in the Court of Appeal you read this year.  It's also one that conflicts with everything I've ever been taught about driving on the highway.

Here are the basic facts -- simplified for easy reference:

Trucker is driving on the slow lane of a highway.  Two cars -- one driven by Man, another driven by Woman -- are on the on-ramp, getting onto the highway.  Man passes Woman on the off-ramp, flips her off, they both get on the highway in front of Trucker, and then Man slams on his breaks.  Woman slams on her brakes in response, and avoids hitting Man, but Trucker can't stop in time, so rear ends Woman.  Man flees.  Woman sues Trucker for hitting her.

Who wins in Woman's lawsuit against Trucker?

Woman says she's not at fault since she had to (and did) brake, and that Trucker's at fault because he didn't leave enough distance to avoid the rear-ender.

Trucker says he had no reason to expect sudden braking on the highway, so he's not at fault.

You're the judge.  For whom do you rule?

The Court of Appeal says Trucker wins.  Pursuant to the "Sudden Emergency" (aka "Imminent Peril") doctrine.

That's not the rule that I thought governed this situation.  Nor am I certain it's one that makes doctrinal (or, perhaps, policy) sense.

I was always taught that you had to keep enough distance from the car in front of you to stop in time.  Period.  That way, if a kid (or squirrel, or whatever) runs into the street, and the car in front jams on its breaks, you won't rear end them.  It also has the advantage of a nice, bright-line rule.  When you rear end someone, it's almost by definition your fault (unless they backed up).  Easy to apply.

The rule that I thought existed also has a textual support:  Section 21703 of the Vehicle Code.  Which indeed requires that you maintain a reasonable distance from the car in front of you.

This opinion, by contrast, decides the other way.

I can empathize with at least part of the opinion's reasoning.  I can understand why the Court of Appeal might not want to find Trucker at fault.  Who expects someone to suddenly stop in front of you?!  Especially when it's the result of a third party's road rage?  It does indeed seem a little unfair to hold Trucker liable for something he had no substantial reason to expect, so essentially punishing him by imposing tort liability may seem a bit (or perhaps a lot) unfair.  (Mind you, the person who was rear ended was totally innocent, and she hit the brakes in time, so making her solely responsible for her injuries seems even worse than holding Trucker responsible.  So, even ignoring the existence of insurance -- another reason to potentially foist relative liability upon Trucker -- if I had to make a policy choice, I'd probably lean against creating today's rule that absolves Trucker of liability.)

But there's a harder, more concrete, point as well.  There's a statute that governs this thing.  One the Court of Appeal doesn't (in my mind) successfully address.

Section 21703 affirmatively says that, yeah, you indeed have to keep a reasonable distance from the car in front of you, and "reasonable" probably does indeed mean -- and a jury could surely so decide -- that you gotta be able to brake in time in the car in front of you suddenly stops.  Seems dispositive of the relevant rule, no?

Justice Yegan's opinion has a "creative" response to this statutory dictate.  He says (with emphasis in the original):

"Laramee [the Trucker] was under no duty to leave “a proper space cushion.” Vehicle Code section 21703 provides, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.” (Italics added.) Laramee was not following appellant. Laramee was driving in the #3 lane of the freeway, and appellant was driving in the adjacent on-ramp lane."

On that theory, since Trucker was not "following" the person who he rear ended, Section 21703's statutory dictate ostensibly doesn't apply.

But -- with respect -- I don't think that's the right way to read Section 21703.

Appellant was indeed in a different lane (i.e., on the on-ramp) at some point.  But Trucker and the guy who was rear ended were (definitionally) in the same lane later, including at the relevant point (when they hit).  So Trucker was indeed "following" the car at that point.  "Following" in Section 21703 clearly does not mean "following" in the usual sense of "going wherever he goes".  It means "behind".  If you're behind another car, you have to leave a cushion.  So once Car came into Truck's lane, Truck has to leave a sufficient cushion.  Which he didn't.  Ergo liability under Section 21703.  Since that's what the statute says.  If you're "behind" a car, you shall not follow it more closely than reasonable.  Truck was behind Car.  So Truck's gotta leave space.  Which is what we're indeed taught when we first learn to drive, and a bright-line rule.

(Plus, it'd seem silly to hold -- as the Court of Appeal implicitly does -- that in the usual setting, 99% of the time, when a car rear-ends another that suddenly stops, there's liability, since they were both in the same lane, and hence one was "following" another, but when someone has just merged or is only halfway in a lane, all of the sudden that immunizes the other driver from a virtually identical rear end accident.  If it's reasonable to think that a guy won't instantly slam on his brakes, that's reasonable if he's just merged, or halfway (or all the way) in a lane, or has been in the same lane as you forever.  I strongly doubt the Vehicle Code intended the common law "Sudden Emergency" doctrine to govern only one, but not the other, of these scenarios.)

I can understand that there's a potential line-drawing complexity here.  Section 21804 of the Vehicle Code does indeed say that someone who's merging has to yield the right of way to the person who's already there.  So you gotta figure out at what point the "spacing" requirement is the responsibility of the merging car or the responsibility of the "following" car.  But, at best, that seems to me to indicate that both cars might potentially be contributorily negligent.  Not that the following Truck that can't brake in time totally gets off the hook.

(Can I just add, by the way, that the absolution of the Trucker here seems especially unjust.  Here's what Trucker says at his deposition:

“[W]hen you got onto the southbound 101, were you on your cell phone?” Laramee replied that he was not on his cell phone. He had a wireless Bluetooth “hands-free” phone in his cab. (Vehicle Code section 23123, subdivision (a) permits the use of a hands-free wireless phone while driving.) Appellant’s counsel asked, “Were are [sic] you talking” on the “hands-free?” Laramee replied, “Yeah, I was talking.” Respondents’ counsel interrupted, “Were you actually actively in a call when you got on the freeway, or do you remember?” Laramee replied that he did not remember."

So the guy admits that he "was talking" on the "hands-free" but says he "can't remember" whether he was "actively" on a call.  To me, that's way more than enough for a jury to find that Trucker was on the phone, distracted, and that this may have played at least a part in why he wasn't able to stop in time to avoid rear-ending the person in front of him.)

In short, I agree that Road Rage Driver is definitely at fault, and if we could find him, I'd definitely spank him.  Hard.  Maybe Woman Who Was Hit (in our hypothetical) is also at part at fault, either because she merged in a bit too close to the Truck behind her (so he couldn't stop in time) or because she was too close to the car in front of her to "slow down" easily instead of having to slam on her brakes (and hence getting hit from the car behind her).

But to absolve the Truck driver entirely -- much less as a matter of law -- seems somewhat wrong to me.  Probably from a policy perspective, and most definitely from the perspective of our existing Vehicle Code.

I think we probably do (and should) have a rule that was similar to the one I always thought existed:  That you have to give yourself enough time and room to stop if the vehicle in front of you jams on its brakes, whether for a rabbit, a kid, a ball, or a third party road raging (or incompetent) driver.  If you don't, you're potentially at fault.  Perhaps alongside other people as well.  But fault on your part there may well nonetheless be.

Even though the Court of Appeal holds to the contrary here.

But, hey, unless the California Supreme Court wants to take up a case about a simple driving matter, as of this opinion, the law is what the Court of Appeal says it is.  If you don't feel like leaving enough room to stop, I guess go ahead.  The Court of Appeal will have your back.  Even if you end up hitting a guy from behind because you can't stop in time.

Tuesday, June 12, 2018

People v. Killion (Cal. Ct. App. - June 11, 2018)

Sometimes signalling your willingness to be reversed helps the Court of Appeal.  If only because it assists them in writing an incredibly short opinion.  For example, here, the appellate opinion is only seven double-spaced pages long.  The majority of which merely recites the facts and history of the case:  the reasoning itself entails a mere three pages of text.

What the trial court says below is exactly what you're looking for if you're on the losing end of its decision.  For example:

"I would not take any offense if you choose to seek some review and get some guidance from the [Fourth District Court of Appeal] so that we can have a case that specifically states one way or the other."

Or, when talking to the defendant:

“I want you to know . . . losing this motion has nothing to do with how I think you’ve done on probation. I think you have done an exemplary job on probation. You’ve done everything that you promised the Court that you would do. If I did have the discretion, this is something that I would strongly consider doing for you, but I don’t believe that I have the legal ability to do it.”

Or, when talking to her attorney:

“If [defense counsel] proves to me that I’m doing it wrong by getting the judges down the street to tell me I’m wrong, again, I’ll be happy to reconsider it.”

You gotta love it when a trial judge tries his best but is modest enough to recognize he might be wrong and happy to hear a contrary decision from the Court of Appeal.

Monday, June 11, 2018

Campbell v. State of Hawaii DOE (9th Cir. - June 11, 2018)

It's not a term that I use much (if at all) in modern parlance.  But I admit to having used it on occasion in the past.  And until today, I didn't realize that it might have an offensive meaning.

Today's opinion is (in part) about what it means to "rag" on someone.  As in:  "She was ragging on the security guard."  We all know what that means:  to berate, to torment, or (to use another modern term) to "get on someone's case."

But the plaintiff here says it's also discriminatory.  That it relates to someone being "on the rag;" i.e., concerns a woman's menstrual cycle.  So when the principal here wrote the teacher up for "ragging" on someone, she says that's evidence of discrimination.

Here's what Judge O'Scannlain says about that:

"Campbell [the teacher] argues that Jones [the prinicpal] created a hostile work environment when he chided Campbell for “ragging” at students and staff. A memorandum formally reprimanding Campbell for these actions stated that she “verbally ragged” a security officer and students, and it instructed her not to address people on campus “in a yelling or ragging manner.”

Campbell argues that Jones’s use of the phrase “ragging” or to “rag” on or at someone was sexually motivated and offensive. Namely, she contends that these comments are tantamount to the phrase “on the rag”—a phrase both sides concede can be a crass and insulting way to refer to a woman’s menstrual cycle. She argues that a reasonable jury could therefore conclude that Jones’s use of such language created a sexually hostile work environment. We disagree.

[] Campbell’s argument entirely disregards the difference between the well-known phrase to “rag” or “rag on” something and the potentially offensive phrase “on the rag.” As both the DOE’s investigator and the district court found, the distinction is critical. The phrase to “rag” something is not at all offensive; it simply means “rail at” and “scold” or “torment” and “tease.” Rag, MerriamWebster Dictionary, https://www.merriamwebster.com/dictionary/rag (last visited May 29, 2018); accord Rag, Oxford English Dictionary, http://www.oed.com/view/Entry/157425 (last visited May 29, 2018). Webster’s gives a perfectly benign example: “[S]everal readers called in to rag the editor for his paper’s repeated grammatical lapses.” Rag, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/rag (last visited May 29, 2018). Campbell points to nothing that would contradict this well understood meaning of to “rag” or “rag on” something. Instead, she conflates the phrases, repeatedly citing sources that recognize the offensive nature of specifically saying that a woman is “on the rag,” but which say nothing of the phrases Jones actually used."

I totally get that point.  When, in my (relative) youth, I would say that someone was "ragging" on someone, I definitely didn't mean (at all) to refer -- or have any connection to -- menstrual cycles.  It was not even a gender-specific or -preferring term; indeed, I only recall using it to describe men.  So my contemporary understanding of the term was indeed as Judge O'Scannlain describes it.

But I wonder if that's really the end of the matter.

Because terms can have particular content even if the speaker doesn't intend it.  Particularly when we're talking about things that may be intrinsically discriminatory.  Tons of examples come to mind:  witness the contemporary debates, for example, about "niggardly" or "calling a spade a spade."  The closest analogy to today's opinion might be calling someone "hysterical."  You can definitely say -- as Judge O'Scannlain does here -- that the term has a "neutral" meaning.  But you can also definitely say that it has a discriminatory origin and meaning.  Just as with "ragging," maybe the origin (or history) of the word matters.  Or maybe it doesn't. 

But, at a minimum, I don't think it ends the debate simply to say that the terms are "different" and so you're improperly "conflating" the two.  For my own purposes, I'm probably educated by thinking about today's opinion, and will not knowingly use the term "ragging" in the future as a result.  Given the background and potential impact on the listener, saying "torment" or "rail at" or any of the other dozen or so perfectly-good-enough synonyms for "ragging" seems superior.

Which doesn't answer the question that Judge O'Scannlain has to resolve:  whether the word has a discriminatory effect, or can create a hostile work environment.

But it does help at least me decide what words to employ in my own life.

Thursday, June 07, 2018

Ellis v. Harrison (9th Cir. - June 7, 2018)

Today presents a per curiam opinion in which all three members of the panel concur and say that but for prior circuit precedent, they'd reverse.

Fairly unusual.  Albeit in an unusual case, in which an African-American LWOP prisoner who had two mistrials and two hung juries (ultimately being convicted the fifth time around) has powerful evidence -- from his lawyer's daughters, no less -- that "his trial attorney held deeply racist beliefs about African Americans in general and him in particular."

Not your usual Ninth Circuit opinion.  Either procedurally or with respect to substance.

In re Jensen (Cal. Ct. App. - June 7, 2018)

I had to wait twenty pages until the Court of Appeal finally answered the question that was foremost in my mind.  But then I finally got to it:  "D. Our Interpretation of Section 3051 Does Not Give Youth Offenders a “Free Pass” to Commit Crimes in Prison."

Except it sort of does.  Sort of.

The Court of Appeal says that you don't have to serve the sentence(s) imposed upon you for your in-custody adult offenses if you're found "suitable for parole" for the serious crimes you committed when you were a minor.  For example, in the present case, Mr. Jensen was sentenced to 25 years to life for first degree felony murder, an offense he committed when he was 19.  Then, in prison, he assaulted a guard with a deadly weapon, and was also convicted of prison escape and possession of a weapon.  He received a total of 7-plus years for those adult offenses.

Since he was a kid when he committed the "main" offense, he's entitled to an eventual hearing to get released when he's "suitable" for parole.  After a long time, the parole board finally concludes that Mr. Jensen satisfies these guidelines -- though he had trouble in prison early on, he's been discipline-free for a while, so they think he's changed, and ready to be let out.

The question then becomes:  Does he then have to serve the 7 years for his adult in-custody offenses?

The Court of Appeal says he doesn't.  The dissent says he does.

Section D of the opinion is all about the incentive effects of today's holding.  The Court of Appeal says that an offender will still have good reason to be nice in prison because any offenses therein will still go towards his eventual "suitability" for parole in the long term.

As I said before:  Sort of.

It's true that you wouldn't want to keep committing crimes in prison forever, because then the Parole Board would never conclude that you've been rehabilitated.  But that doesn't mean that this decision doesn't give you a little bit of a free pass.  It does.

Because while you need to stop committing crimes in prison at some point to demonstrate that you're now suitable for parole, that's only at the end.  Take the present case, for example.  Sure, Mr. Jensen eventually had to be good -- for a long time, even -- to demonstrate that he should be let out.  But at the outset, under today's decision, there's very little reason for him to refrain from committing further crimes in prison.  He's convicted for a murder when he's 19 and sent to prison.  Why not stab a guard as well when you're 20?  Sure, you might be sentenced to another 10 years.  But as long as you then "stay clean" for, say, another 20, the fact that you stabbed a guy 20 years ago doesn't really matter at all to the eventual suitability determination.  It doesn't add anything at all, really, to the preexisting fact that you murdered someone a year earlier.  It's just what you did "a long time ago," so if you do not have to serve your sentence for that additional offense, that's pretty much the definition of a "free pass" to commit additional crimes.

Do you eventually have to stop stabbing people?  Sure.  If you stop stabbing them earlier, will you maybe get a slightly different suitability date?  Maybe.  So there may be some incentive effects that remain after today's opinion.

But there's still a bit of a "free pass," especially early on in your initial sentence.  And in any event, we shouldn't expect prisoners -- much less kids convicted of serious offenses like murder -- to be completely and totally rational in their decision calculus.  I can easily see someone telling a kid who has just recently been sentenced to prison:  "He's a shank.  Stab the guy.  Even if you're caught, you won't have to do the time.  Read this opinion."  Prison lore ain't exactly perfect.  I could easily see a youthful offender thinking that, yeah, there's no real downside to committing the offense, and hence doing so -- or at least being marginally more willing to do so -- after this opinion.  Especially since kids aren't exactly awesome at long-term reasoning or at recognizing subtle eventual consequences.

So, yes, maybe it's inaccurate to say it's a total "free pass" to commit future crimes.  But it's certainly a heavily discounted pass.  And, in some cases, may well entail a completely free pass as well.

Either of which you'd expect to have actual consequences in the long term.

That's not to say the Court of Appeal's statutory analysis is necessarily wrong.  There are two statutes here that at least facially conflict, and you've got to make sense (if you can) of both of 'em.  That you think that reading 'em one way will result in certain policy consequences doesn't necessarily decide how they get read.

But you do have to recognize the likely results of your holding.  And, on that point, I'm not entirely certain that section D of this opinion is entirely persuasive.  Because it will result in more crimes via diminished incentives.  Of that I'm relatively confident.

Technical "free pass" or no.

Tuesday, June 05, 2018

Moldex-Metric Inc. v. McKeon Products (9th Cir. - June 5, 2018)

Yes, it makes sense that foam safety earplugs might entail bright, vibrant colors so outside observers can know that the user's wearing 'em.  That's called "functionality."  But McKeon's earplugs happen to be the same fluorescent-lime color as the 1.6 billion pairs of earplugs sold by Moldex-Metric.  A reasonable jury might conclude that's a trade dress violation.  Since there are lots of other vibrant colors that one might potentially use other than fluorescent-lime.

The Ninth Circuit says that same thing today, albeit in nineteen single-spaced pages.

Monday, June 04, 2018

In Re Marriage of Spector (Cal. Ct. App. - June 4, 2018)

It's only common sense that if a court makes a mathematical error in its order that it should be able to quickly and easily correct the mistake.  In this particular case, it's a spousal support order, one of the parties notices it and e-mails the judge (and opposing counsel) the next day, the judge says "Yeah, by bad, looks like my math is off," tells everyone she's thinking about correcting the thing, lets the parties submit short briefs if they feel like it, and then issues an order that corrects the mistake.

That's exactly the kind of speedy and accurate justice you'd think we'd prefer.

Yet it takes the Court of Appeal twenty-one pages to explain why that's entirely proper.  Because the party on the short end of the correction files an appeal and says you can't do that.  Which, of course, is what you'd fully expect 'em to do if the math error was in her favor.

Regardless, in the end, the Court of Appeal affirms, and (belatedly) publishes the opinion to boot.  Making my Monday slightly more pleasant.  'Cause that seems exactly the right result.

P.S. - You'd think the parties here might have bigger fish to fry than this.  The case involves the marriage of Mr. and Mrs. Spector.  As in, Phil Spector and his ex-wife Rochelle.  The couple got married when Rochelle was 26, Phil was 67, and the latter was under indictment (and ultimately convicted) of killing Lana Clarkson.  Puts a strain on a marriage -- or any relationship -- for sure.  (Though there were apparently happier times.)




In Re Fagerdala USA - Lopoc (9th Cir. - June 4, 2018)

Who says that bankruptcy cases are boring?!  Look at all the tactical and procedural manipulation that goes on here.  Fancy stuff!  A product of sophisticated planning by the underlying legal team.

It's not just litigators who get to muck around with the rules to their advantage.  Bankruptcy lawyers get in the act as well.

Friday, June 01, 2018

In Re R.W. (Cal. Ct. App. - June 1, 2018)

The glorious month of June (in San Diego, anyway) begins by affirmatively confounding me.

I legitimately don't understand where today's opinion by the Court of Appeal is coming from.

Check that.  I totally understand why it reaches the result the way it does.  I too don't want 16 year old kids who are waiting for their parents to come pick 'em up from the police station to go barging out onto the streets for no reason.

I just don't understand how the Court of Appeal gets there.

The 16-year old minor here was picked up by the police as part of an investigation into a stolen vehicle.  The police arrested the driver of the vehicle, and decided to release the minor female to her parents.  The relevant deputy had other things to do, so he handed her over to another deputy doing some paperwork while the mom drove from her nearby home to pick up her daughter.

Eventually, after a little waiting, the daughter "became frustrated and increasingly impatient."  After some additional words with the "babysitting" deputy, the minor "got upset, grabbed her bags, and walked out of the room . . . headed towards the door" to the street.  But the deputy didn't want her to go, so grabbed her arm; the minor resisted, another deputy got involved, they handcuffed the kid, and then charged her with resisting a police officer.

To which the minor's defense is:  I had a right to leave the police station.  You unlawfully stopped me, and it's okay to resist someone who's doing something unlawful.

Which tees up the case for the Court of Appeal.

Now, if the minor had been arrested, she's obviously not free to leave, so she's not entitled to resist.  Easy peasy.

But here's the critical fact:  The minor hadn't done anything wrong.

The Court of Appeal is crystal clear on this point:  "At the time she was turned over to Deputy Slawson’s custody [the babysitting deputy], minor was no longer under investigation and no charges were being filed against her."  Lest there be any doubt, when the minor started talking to that deputy to try to get her friend (the driver) off the hook, the deputy even expressly told the minor to cut it out:  "When it became clear from minor’s responses that she had no involvement in the car theft, Deputy Slawson told minor that she did not need to lie to make herself a suspect in that case."

In other words, while the minor might have initially been a potential suspect in the stolen vehicle case, at the point she was in the station and waiting for her mother to pick her up, the police had eliminated her as a suspect.  Or, as the Court of Appeal put it, she was "no longer under investigation and no charges were being filed against her."

We have a standard term for that.  It's called "being free to leave."  As in:  "You're not under arrest.  You're free to leave."  Because you're an ordinary citizen who hasn't committed a crime.

Now, admittedly, she's a minor.  You don't have infinite rights as a kid.  We don't generally let two year olds, for example, walk around unattended.  That'd be dangerous.

(The Court of Appeal makes this same point, albeit a little more harshly and universally than I think is warranted, saying that "juveniles, unlike adults, are always in some form of custody" since they are under some degree of control by their parents.)

But here's the rub:  While we don't let kids to whatever they want, and don't let toddlers run around in the streets unsupervised, that doesn't answer the question of whether the police are allowed to detain an innocent citizen who hasn't done anything wrong.  The kid's parents may have certain rights.  But can the police force a 16-year old to stay in a police station when she hasn't done anything wrong and feels like leaving?  Or is she really not "free to go" merely because she's 16?

The Court of Appeal basically says, yeah, since she's a minor, she's not free to leave.

Now, you could maybe see why that might be a good policy call.  Reasonable people might well think that the police should be allowed to detain minors whenever the police feel like it.  (Though I could definitely understand the contrary view as well.)

Regardless of whether that's a good rule or not, what I sincerely don't get about the opinion is how the Court of Appeal legally gets there from the laws we actually have now.

Justice Ramirez quotes the relevant statutes in this regard.  Section 625 of California's Welfare and Institutions Code provides (and I'll highlight the relevant part):

"A peace officer may, without a warrant, take into temporary custody a minor: (a) Who is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Section 601 or 602.”'

Section 602 in turn provides (and I'll again highlight the relevant provision):

"Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court."

Put those together, and you pretty clearly have -- at least in my view -- what existing law says about when the police can seize a minor.  The police can only detain a kid when they have "reasonable cause for believing that such a minor" has "violate[d] a[] law."  Makes sense, right?

Maybe that meant they could grab the kid (just like any non-kid) initially, when the police were investigating whether she had committed a crime.  But then they cleared her.  They decided that she hadn't committed a crime and weren't going to charge her.

Which, in my view, pretty clearly means that under Section 625 and 602, they had to let her go.  Just like anyone else who was initially detained and then, after investigation, cleared.  Because, under the words of the statute, since the police had now decided that the kid didn't steal the car (and instead had arrested the driver of the thing for doing so), the kid had not "violate[d] any law" and hence was free to leave the police station.  (Whether she got in trouble with her parents is, of course, an entirely separate matter; thankfully, no similar standards of proof apply to parental discipline.)

But the Court of Appeal never seems to engage at all on this substantive point. Justice Ramirez's opinion instead focuses almost exclusively on Section 626, which says that "minors detained under section 625 may be (a) released, (b) delivered to an agency for shelter, (c) released after issuing a notice to appear before a probation officer, or (d) delivered to a probation officer," and that includes (under precedent) "being taken to a curfew center or other facility to await pickup by their parents."

But Section 626 only applies if you're properly being detained under Section 625.  And Section 625 says the kid can't be detained if she's not suspected of committing a crime.

So I truly don't understand how Section 626's allegedly implicit permission for police to keep a kid in the station awaiting their parents (by analogy to taking 'em to an agency for shelter) matters.  Since it seems to me that the kid's basic argument is that you can't do any of the things listed in Section 626 since it wasn't permissible to continue detaining her under Section 625 since she hadn't done anything illegal.  I honestly don't see how or where the Court of Appeal responds to this basic statutory point.

Imagine that Section 625 says (as it does) that you can only detain a kid when you reasonably suspect them of a crime, and then Section 626 said that if a kid is detained under Section 625, she can either be "released, insulted, or spanked by the officer" (different options than the existing Section 626, but the same basic statutory structure).  Imagine further than a kid -- like this one -- is initially detained, cleared by the officers of any crime, but then the officers spank the kid anyway.

There's no doubt whatsoever that we'd all say:  "Whoa, Nelly.  You can't do that.  The statute doesn't allow it."  But it's the exact same thing here.  The reason you can't spank the kid, even though Section 626 says you can, is because you can only spank someone (under Section 625) who you think actually committed a crime.  Once you've decided they didn't commit the crime, you can't spank 'em.  That's what the statute says.

Ditto for holding them in the police station to await their parents.  Section 626 may perhaps list that as an (implicit) option.  But only when the kid can permissibly be detained under Section 625, which she can't, since no one thinks she actually committed a crime.

Maybe there's a policy justification for having a different type of law.  Maybe there's a "community caretaking" or some other constitutional exception to the Fourth Amendment legality of the seizure.  Maybe we should want police to keep kids in their custody awaiting their parents even if they haven't done anything wrong.

That's all well and good.  But at least the way I read Section 625 -- which sets forth our actual rules on when kids can be detained -- that's not the law as it currently reads.

Which is the thing we're supposed to enforce.

So I totally understand the legitimate desires of the Court of Appeal in reaching the result it does.  But I legitimately don't understand how it somehow reads the relevant statutes in a way to ostensibly permit such a result.

Thursday, May 31, 2018

Abbott Laboratories v. Superior Court (Cal. Ct. App. - May 31, 2018)

Plenty of big California appellate hitters participate in this case.  Which holds, in a split opinion, that even though the Unfair Competition Law permits a district attorney to bring a lawsuit in the name of the People of the State of California (and obtain relief on behalf of everyone injured), the law doesn't actually do that, and a local DA is instead limited to civil UCL claims in its own jurisdiction.

There's something to be said for the majority view.  But there's also a lot to be said for Justice Dato's dissent.  Both opinions are well-written and make sense on their own terms (though, in terms of style, Justice Dato's is more concise and punchy).  Reasonable minds could indeed differ on the merits.

It's a super important issue.  Definitely worth review by the California Supreme Court.  For what it's worth, Justice Dato's position is more along the lines of my initial sense of these provisions when I first learned of them some two decades ago.  Even though I totally get Justice O'Rourke's competing considerations.

I'll be interested to hear what the California Supreme Court says about this.  And, to be honest, I suspect that any resolution of the merits in that tribunal would not be unanimous.

Wednesday, May 30, 2018

People v. Brunton (Cal. Ct. App. - May 30, 2018)

It's never all that fun to be booked into jail.  Maybe you've been driving while impaired.  Maybe you've shoplifted.  Maybe you're innocent.  Regardless, before you have a hearing and make bail, you're going to spend a cozy evening in a local jail cell.

Or maybe not so cozy.

Here's Christopher G.'s experience.  He was booked into the local jail here in San Diego.  They give him a random cellmate, a guy named Richard Brunton.  Just another guy spending the evening in jail.

But things go downhill quickly.  Immediately, even.  The victim, Christopher, could be just about any of us.  A guy who's had a bad day and yet it's about to get much, much worse:

"When Christopher entered the cell, Brunton "star[ed] [him] down." Seeing that Brunton already had the top bunk, Christopher placed his bedding on the bottom bunk and his toiletries on an adjacent desk. [Seems reasonable to me.]

Brunton said, "Don't put your fuckin' stuff there. I stand there to get up on the bed." [Not exactly the way you want to begin your interactions with your new cellie.  And pretty unreasonable; exactly where does Brunton want Christopher to sleep?!] Christopher apologized, adding, "You don't have to be so rude about it." Brunton replied, "You calling me rude?" Christopher responded, "No, I'm not calling you rude. I said you don't have to be so rude about it, though." Christopher got into his bunk and pulled his blanket over his head. [Yeah, the blanket over the head is definitely going to solve the problem.]

Brunton then punched Christopher hard twice in the back of his head and asked, "You calling me rude?" Christopher responded, "No, man. I want to get the fuck out of here. What are you doing?" He got out of bed and started pushing a button by the cell door to summon a guard. Christopher added, "All I want to do is eat breakfast." Brunton responded, "It's going to be hard to eat without no teeth. . . . I'm going to kill you today. I'm going to murder you. . . . You're going to meet Jesus today." Christopher kept pressing the call button, but no one responded—the communication device in this cell apparently was inoperative. [Seriously?! The urgent call button in the cell is just for show?!]

Brunton kicked and kneed Christopher in the ribs. Christopher screamed for the guards to help him. Brunton grabbed a bath towel, twisted it tightly like a rope, and wrapped it around Christopher's neck. Brunton kneed Christopher in the ribs, dropping him to his knees. Brunton kneed him again and cinched the towel tight. Christopher could not breathe and was "on the cusp of going unconscious." He thought he was going to die.

A guard heard Christopher's "desperate, . . . urgent" yelling, and investigated. The guard observed Brunton standing over and forcefully choking Christopher with a towel. Christopher was "completely limp" and appeared to be unconscious. The guard banged on the cell door with his flashlight and ordered Brunton to let go of Christopher and back away. Brunton did not comply. The guard opened the food port on the cell door and repeated his commands. Again, Brunton did not comply.

The guard radioed to the guard tower to have the cell door opened. With the door open, the guard pointed his Taser at Brunton and ordered him to let go of Christopher. Brunton let go and backed away. The guard ordered Brunton to get on the floor, but Brunton instead stepped on the desk and climbed into his top bunk.

The guard dragged Christopher out of the cell, and another guard handcuffed Brunton and escorted him out of the cell. Christopher was removed from the housing module by gurney and transported to a hospital for medical evaluation."

For all this, Brunton gets a total of six years in prison.  (Which may even go down a year after today's opinion.)  Whereas Christopher gets a terrifying story about his night in the local jail.

Tuesday, May 29, 2018

Airs Aromatics v. CBL Data Recovery Technologies (Cal. Ct. App. - May 29, 2018)

You'd think it'd be an easy rule to remember (and apply).  There's certainly lots of precedent that spells out the rule.

But today's opinion nonetheless demonstrates the need to reaffirm the rule.

It's just fine to say in your state court complaint that you're requesting damages "in excess of $25,000 and in an amount to be proven at trial."  That'll indeed establish jurisdiction and move the case along to trial, without the need for you to worry your little head about whether any specific damages request is too low or too high.

But if the defendant defaults, all you can get is $25,000.  Doesn't matter that the defendant knew that the actual amount at stake was much more than that, that you said "in excess" of $25,000, that you can prove actual damages of many millions of dollars, etc.  It's $25,000 tops.  Because that's the only number you put in the complaint.

And any default judgment in excess of this amount is not merely voidable, but void.

So remember that rule when you draft your next complaint.  Default judgments aren't the usual way things end.  But if all you ask for is $25,000, that may well be all you'll get.

Friday, May 25, 2018

People v. Berg (Cal. Ct. App. - May 25, 2018)

Maybe you were drunk when you were arrested.  But it's now two days later, and you've been in jail the entire time.  You might not have immediately known it at first.  But it makes sense that, after two days, your voluntary intoxication doesn't negate the fact that you had a baggie of methamphatmine in your butt the entire time.

Which, last time I checked, was a crime.

I must say, though, that Mr. Berg remained somewhat classy once he was caught.  As the Court of Appeal recites the facts:

"The deputy escorted defendant to the booking area, where inmates change out of their civilian clothes and are given jail clothing after a visual strip search. As defendant changed out of his civilian clothes, he reached toward his “anus” and started “[d]igging, trying to push or pull something.” The deputy noticed plastic wrapping between defendant’s buttocks. Defendant eventually threw the plastic package onto the floor. The deputy recalled that when defendant was asked what was in the plastic, defendant sarcastically answered “to the effect of, ‘Something not readily available at your local 7- Eleven.’”

Nice.  "Something not readily available at your local 7-11."  Gonna have to use that one myself the next time I'm caught with meth near my anus.

Thursday, May 24, 2018

In re Ruedas (Cal. Ct. App. - May 24, 2018)

I haven't read one of these in a while.  But they're always fun to see.  Opinions that, from the very first paragraph, jump out at you and let you know full well who's writing it even before you reach the end where the author of the opinion is listed.

Today's opinion begins:

"The jurisprudence of retroactivity is a labyrinthine edifice of both critical importance and daunting complexity. It is located at one of those intersections of freedom, justice, and pragmatism that are all too common in the criminal law, and make its practice a humbling experience. In this case, we are asked to offer our best judgment about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) is prospective or retroactive. We do so with a caution bordering on apprehension, but we arrive at a firm conclusion the rule is prospective only."

Now, to be brutally honest, I found the first line to be slightly more linguistically complex than I typically prefer.  But the rest of the paragraph is a classic.  And made me know from the very outset that I was reading an opinion by this person.

P.S. - Can I just say:  What a day.  Thus far, the Court of Appeal and California Supreme Court have published nearly a dozen different published opinions.  Which collectively total over 400 pages of text.  Slow down!  Spread it out!  Some of us have other work we gotta get done today as well.  (And the day's not even over; maybe the Court of Appeal will crank out some other opinions later today as well.  Ensuring that, yep, I'll do virtually nothing today except pick up my kids from school and read judicial opinions.)

Multani v. Knight (Cal. Ct. App. - May 24, 2018)

I wish I'd have thought of this as a question for a first year law school exam!  It's a great one.

Justice Willhite raises the issue concisely:

"The primary question presented in this case is: Can a landlord be held liable to a commercial tenant for damage to the tenant’s property resulting from an alleged sewer backup when the tenant (who had a month-to-month tenancy in the premises after her lease expired) had stopped paying rent, had been served (but failed to comply) with a three-day notice to pay rent or quit, and had been named in an unlawful detainer action filed before the alleged sewer backup occurred?"

Oooh!  Good one.  I could definitely see law students coming up with good arguments on both sides.  Ditto for actual lawyers.

Here's how the Court of Appeal answers the question:

"We find that the month-to-month tenancy was terminated by the tenant’s failure to pay rent coupled with the landlord’s filing of the wrongful detainer action. Therefore, as of the filing of the wrongful detainer action, the tenant was a tenant at sufferance who had no lawful right to possession of the premises. Accordingly, the landlord is not liable for damage to the tenant’s property left on the premises when that damage was not caused by the landlord’s intentional act or negligence."

Notice the distinction:  It's not the nonpayment of rent that absolves the landlord from liability, but only the filing of the lawsuit (plus nonpayment) that creates the absolution.

You could see a variety of other possible resolutions, from the landlord still being liable (since the tenant was still in possession) to the landlord not being liable at all (because the tenant had breached by nonpayment) to the landlord not being liable only upon the date the unlawful detainer action was adjudicated in the landlord's favor.  But the Court of Appeal draws a different line.

The question would still be a good one on an exam.  But since the Court of Appeal has already given a pretty good answer, we'll now have to find another one.

Maybe:  "Comment upon and critique the line drawn by the Court of Appeal's opinion in Multani v. Knight?"

Wednesday, May 23, 2018

J.N. v. Superior Court (Cal. Ct. App. - May 23, 2018)

You could see why the trial court thought it made sense to charge the defendnat in adult criminal court.  He's twenty years old.  He's charged with murder.  The juvenile court would lose jurisdiction over him entirely in three short years.  And he's got a prior record.  Given those facts, you'd facially think it makes total sense to put him in adult court.

But read Justice O'Leary's opinion.  This is not the usual case with those types of facts.  You can see why the Court of Appeal comes out the other way, holding that the guy should be in juvenile court.  So holding even though the standard of review is "substantial evidence" and abuse of discretion.

A very comprehensive opinion.

Monday, May 21, 2018

Recchia v. L.A. Dep't of Animal Svcs (9th Cir. - May 1, 2018)

What I remember about my first-year property class in law school largely surrounds issues involving wild animals.  Who owns them, blah blah blah.  I distinctly remember thinking that this seemed to be an immensely non-practical way to begin law school.  Who really cares who owns a particular fox?!  Given that there aren't a lot of wild foxes running around San Diego -- or (at the time) Cambridge -- it was difficult for me to perceive any practical value in learning the detailed rules about who can own a wild animal running around.

Clearly, I was wrong.

This Ninth Circuit opinion is about the Fourth Amendment validity of a seizure in which the L.A. Department of Animal Services impounded a dozen or so pigeons that a homeless person kept in cages on the street and then euthanized them because they were in really bad shape.  (For example:  "One pigeon had a baseball-sized tumor protruding from its abdomen and extensive feather loss. Another pigeon had tremors and continually walked in circles. Another pigeon had a shriveled, non-functional right eye. Still another pigeon had contorted legs, feather loss, and could not walk or fly. Some birds had wobbling necks or necks in unusual positions. Several birds were missing toes or toenails, or had very long toenails that were curled in circles.")

The constitutional issues are interesting for sure.  But there's a particular footnote that I thought to be especially fascinating.  And that took me back to those halcyon days of Property.

The text of the opinion says:  "Defendants have agreed for the purposes of this appeal that Recchia had a property interest in his pigeons."  At which point Judge Gould drops the following footnote:

"Specifically, defendants have agreed “[f]or the purposes of this appeal, there is no dispute there can be some property interest in pigeons.” Accordingly, here we treat Recchia as having a property interests in the pigeons. However, in a case where the issue was properly raised for decision, there would be a substantial issue whether a person can have a property interest in wild animals such as pigeons, raccoons, or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the taking of a wild bird except as provided for in the California Fish and Game Code)."

Dude!  It's like it's 1989 and I'm back in Mary Ann Glendon's Property class.

Good times.

Friday, May 18, 2018

Easley v. City of Riverside (9th Cir. - May 18, 2018)

I agree with the Ninth Circuit that it's not improper for a district court to demand that the parties brief qualified immunity even though the defendant hasn't elected to file a motion on the issue.  Though it's certainly unusual.  Typically, we let the parties take the lead on what motions and defenses they elect to advance.

But I do wonder about the substantive content of the majority opinion, to which Judge Pratt (sitting by designation from Iowa) dissents.  Yes, the person who was shot was fleeing police officers, but he wasn't even suspected of a serious crime.  Yes, the person who was shot also had a gun on him, and that's incredibly serious.  When a police officer's chasing a person and that person has a gun, you can see why the police might potentially shoot him, in (at least perceived) self-defense.

But here's the thing.  As the victim was running, he grabbed at his waistband, pulled the gun from his pants pocket, and threw the gun away.  Two to four seconds later, the police officer shot the victim in the back and in his right arm.

The majority says that even "taking th[ose] facts and allegations in the light most favorable to [the victim], [the police officer's] use of deadly force was objectively reasonable."  The dissent disagrees.

If the police officer shot the guy the instant he was throwing the gun, I could see how one might find that reasonable (if mistaken).  Maybe the officer misperceived the guy starting to throw the gun as an attempt to turn and shoot.

But when a guy on the run throws something away, and then four seconds later the officer shoots him, that seems significant to me.  Four seconds is a long time.  One.  Two.  Three.  Four.  It seems strange to say that after a guy throws a gun away, after it's crystal clear there are no shots fired, and after the guy simply keeps running after throwing a gun away, an officer can wait four seconds and then shoot the guy, no reasonable person in the universe could say anything other than "Yeah, that seems right to me.  Reasonable."

Admittedly, it's the heat of the moment.  Hindsight's 20/20.

But shooting a guy 50 seconds after he throws a gun away seems totally wrong.  Ditto for 20 seconds.  Four seconds?  What's the right line?  I'm not exactly sure.

But I wonder if a reasonable person couldn't conclude that the line is more like 1 or 2 seconds.  One one thousand, two one thousand.  Enough time to perceive that, yeah, the guy's not actually shooting at you, so don't gun him down.  And that four full seconds is too long.

So I'd definitely get granting summary judgment if the guy was shot a second or two later.  But four seconds, to me, is in a much less clear gray area.  Perhaps sufficiently gray that reasonable minds may in fact disagree, and in which I'm not completely certain that my own belief on the subject was conclusively the correct one.

Thursday, May 17, 2018

Benaroya v. Willis (Cal. Ct. App. - May 17, 2018)

The holding of today's opinion both is important and can be concisely summarized.  Whether a party who didn't sign an arbitration agreement can nonetheless be compelled to arbitrate (e.g., as an alter ego, as estoppel, etc.) is an issue for the court, not the arbitrator.  And it doesn't matter that JAMS rules say the contrary.  The court decides.

Plus, it's a California case, which means there's always the possibility of celebrity involvement.  As the caption here reflects.  The "Willis" is Bruce Willis.  And he gets a $5 million-plus arbitration award against a producer, but it only survives against the company.  Good luck collecting on that.  Although the arbitrator held that the wealthy individual behind the company was also liable, we'll need a court to decide that issue.

So no immediately forthcoming check for Mr. Willis.  The exact opposite of Yippie ki-yay for him.

Wednesday, May 16, 2018

U.S. v. Briones (9th Cir. - May 16, 2018)

You gotta be thinking this one may go en banc, no?

Not because there's a circuit split, or it's a death penalty case, or anything like that.  It's not.  It's just a fact-intensive case about a single defendant.  It doesn't even really raise any substantial issues of law either.  It's instead merely about whether the facts and transcript below demonstrate sufficient support for the life sentence imposed by the district court below.  Period.

That's not something that one would normally think has even a shot at en banc review.  It affects only one person, and one person only.

And yet I think the thing may perhaps go up.

In part because it's a life sentence for someone who was a minor (seventeen) at the time he committed the (admittedly terrible) crimes at issue here.  Which means, in the federal system, that he's going to almost certainly spend the actual rest of his life in prison for something he did as a kid.  ("Because the federal system does not permit parole or early release from life sentences, see 18 U.S.C. § 3624, Briones’s sentence is effectively for life without the possibility of parole.")

Normally, that wouldn't matter.  We lock up kids forever plenty of times.  But pretty much everyone seems to agree that this case involves someone who'd far from the hardened, unreformable criminal that's the stereotype of someone we put in prison forever.  He's now been in prison for 20-plus years, and his conduct for the past two decades has been completely unblemished by any misconduct.  As the majority opinion notes, the evidence below demonstrated that "in all his time in prison he had not been written up once for a disciplinary infraction, that he had no gang involvement, that he had been working continuously, and that he married his girlfriend with whom he has a now-adult child, and that he sees his wife regularly."  And even the government recognized that "Briones was 'really doing well in prison,'” as opposed to what you might well initially think of someone with his history.

I hear you.  "So what?  He committed serious crimes (albeit as a juvenile), and the district court looked at the evidence and sent the guy to prison forever.  That's life.  At least in our justice system.  Maybe right, maybe wrong.  But hardly subject to en banc review.  He'd never get the votes."

My thought too.  At least initially.

But the lineup of the panel may end up persuading me the other way.  The majority opinion is written by Judge Rawlinson.  That may suggest that there are a ton of judges on the Ninth Circuit who might well see the case the same way.  Though the judge that joins her is Judge Ezra, sitting by designation from Hawaii, so you don't know for sure.

But dissenting is Judge O'Scannlain.  Hardly some shrinking violet let-em-all-out leftie.  Exactly the opposite, even.  If even he thinks that the right result is to remand for resentencing, that might well suggest that one might potentially persuade other folks that the right result here is not to lock this person up for the entire remainder of his life.

Now, look.  This is not the "old days" of the Ninth Circuit.  Many of your heartfelt lefties in criminal cases are now gone.  Some of the strongest voices for correcting serious individual injustice through the en banc process are now silent.

But not all of them.

The prospect of compelling someone to die in prison when they might well be a "different person" from the one who committed the heinous crimes of a teenager might perhaps prompt a serious look at this case.  If only knowing that even some ordinarily hard-core people (like Judge O'Scannlain) may be perhaps sympathetic to the cause -- not in general, but in this particular case.

We'll see.  It'll be a good test case about the contemporary composition of the court, and it's desire (or willingness) to do justice in a given case.

Yeager v. Holt (Cal. Ct. App. - May 16, 2018)

How the mighty have fallen.

He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.

But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:

"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.) We deny Holt’s requests for judicial notice of other cases declaring one or both of the Yeagers to be vexatious litigants, as that material was not before the trial court when it made the order under review."

You'd hope that General Yeager would get the message on remand and drop the suit, notwithstanding winning the appeal.

Though I fear that won't be the case.

(And who knows.  Maybe it's not even his fault.  He's 95 years old.  He was married to his wife Glennis for 45 years, until she died of ovarian cancer in 1990.  He then married Victoria D'Angelo, who's 41 years younger than him, and vociferous litigation between the couple and Chuck's family promptly commenced.  His wife Victoria is also a party to the present action.  Victoria and Chuck are both now on the vexatious litigant list.  Maybe it's all the fault of the 95-year old.  Maybe not.)

 

Tuesday, May 15, 2018

Huang v. Hanks (Cal. Ct. App. - May 10, 2018)

A lawsuit against Tom Hanks!  That's gotta be interesting, right?

Wait.  It's an appeal that's consolidated with 30 other cases as well.  One of which is against Britney Spears!  Super exciting!

There's more!  Another case against Danny DeVito.  Another against Drew Barrymore.  Stallone.  Zuckerberg.  Spielberg.  It's a who's-who of Hollywood.  You're no one if you've NOT been sued by Han Jing Huan.

Except for the fact that he's now on this list.  And loses.  Again.


Monday, May 14, 2018

Alexander v. Scripps Memorial Hospital (Cal. Ct. App. - May 11, 2018)

This opinion primarily concerns a variety of technical and procedural issues, but the underlying facts present a difficult moral quandary.  What should a hospital do when someone's obviously terminally ill -- days from dying -- but has expressed in writing that she wants all aggressive measures (CPR, etc.) done to her in an effort to preserve her life?

On the one hand, what she says goes.  It's her life.  If she wants CPR, she gets it.  If she wants to have medical procedures done, fine.  That's what we mean by autonomy.

On the other hand, are doctors and other medical professionals morally required to do things that they are certain will only cause more pain and suffering?  Pounding on a chest or cutting open a patient who's in the terminal stages of cancer (with metastases everywhere) when all that would do is to keep a minimally conscious patient alive and in constant pain for another couple of days?  What if they think that violates their own oath to "do no harm"?

Yet doesn't it just seem wrong to cut down someone's nutrition in their feeding tube because it's doing more harm than good?  How you balance autonomy vs. other interests seems incredibly tough to me in this context.  Particularly when someone is literally days away from what we know is certain death and is in both pain and minimally aware.

One thing I know for certain.  I'm glad that the graduate school I attended was law rather than medicine.


Thursday, May 10, 2018

Strategic Concepts LLC v. Beverly Hills USD (Cal. Ct. App. - May 10, 2018)

I assume that the Beverly Hills Unified School District isn't completely impoverished.  Still, this is absurd.  It personifies everything that some people think about government contracts:

"Karen Christiansen was employed as director of planning and facilities for the Beverly Hills Unified School District (District). Among her duties Christiansen administered the planning, construction, and maintenance of the District’s school facilities. She received a salary of $113,000 per year plus a $150 per month automobile allowance. Her written employment agreement ran from February 2005 through June 2007.

In 2006, Christiansen lobbied District officials to change her position from an employee to a consultant. A former member of the Board of Education (Board) testified, “Ms. Christiansen lobbied hard to move from the director of facilities and planning to consulting status.” In June 2006, Christiansen entered into a new three-year contract with the District terminating her status as an employee and naming her a consultant. The new contract, however, did not change her duties. . . .

Pursuant to the contract, Christiansen’s two minor children were considered children of a District employee for the purpose of attending school in the District. Christiansen was allowed to continue her use of the District’s email. . . . The contract set Christiansen’s compensation at $160 per hour with a maximum compensation of $170,000 per year. . . . Christiansen formed Strategic Concepts, LLC (Strategic), of which she was the sole owner. In early 2007, Christiansen assigned her consulting contract to Strategic. . . .

McVeigh and Assistant Superintendant of Business Services Cheryl Plotkin were required to review and approve Strategic’s invoices. McVeigh described her relationship with Christiansen as “friendly, friends.” Plotkin frequently socialized with Christiansen. She attended parties at Christiansen’s home. They went on two pleasure trips. At Plotkin’s request, Christiansen obtained tickets to a show in Las Vegas for Plotkin and her husband. They reimbursed her. Christiansen hired Plotkin’s daughter to work for Strategic.

In spite of the $170,000 per annum contract limitation, Strategic’s invoices were approved and paid in the following amounts: $253,520 in 2006; $1,313,035 in 2007; and $1,390,804 in 2008. No one from the District alerted the Board about the over-payments. The invoices simply appeared on the Board’s “consent calendar”; that is, items that the Board does not usually review on an individual basis.

When Christiansen discovered her contract and payments were being questioned by the District’s Citizens’ Oversight Committee, she emailed Plotkin: “Let’s just say that the contract was developed by your attorney . . . . Please shut this down fast.” . . .

Christiansen’s friend was the District’s counsel, David Orbach, and his partner, David Huff. Christiansen, Orbach and Huff were among a group of friends who often met for drinks after work. In emails Orbach referred to Christiansen as “my queen” and she referred to him as “my prince.” Christiansen sent Orbach and Huff an unsolicited picture of herself in a black bikini. The attorneys and Christiansen exchanged a number of emails containing sexual innuendo.

On June 3, 2008, the District and Strategic entered into a new consulting contract. The contract terminated on June 30, 2009. The contract it replaced provided for maximum compensation of $170,000 per annum. The new contract provided for compensation per an hourly rate schedule attached as exhibit B to the contract. In addition, the contract provided for a retroactive payment in an amount not to exceed $950,000 for services performed between January 1 and June 30, 2008. . . .

Christiansen proposed that the District retain Strategic for program and project management of the projects to be funded by the bond. Christiansen proposed an amendment to the 2008 contract that Strategic be paid $6 million (2 percent of the $300 million project budget) for program management and $10.125 million (4.5 percent of the construction value of $225 million) for project management. . . . At a Board meeting in August 2008, Plotkin recommended that the Board approve Christiansen’s contract amendment. The Board approved the contract amendment three-to-one with one abstention. No other bids were taken.

On November 8, 2008, the voters passed the $334 million bond measure. On November 20, 2008, Christiansen sent the first invoice for program and project management services in the amount of $231,414.24. Between November 2008 and August 2009, Strategic collected more than $2,000,000 in management fees even though no specific project had been approved."

Wow.  The word "abusive" doesn't even come close to accurately describing these transactions.

Is today's Court of Appeal opinion about Christiansen's conviction for the above-described conduct?  Nope.  "Christiansen was prosecuted for a criminal violation of section 1090. A jury found her guilty. She was sentenced to more than four years in prison and ordered to pay the District $3.5 million in restitution. Division 1 of this court reversed the conviction in People v. Christiansen (2013) 216 Cal.App.4th 1181. The court reasoned that for the purposes of criminal law, section 1090 did not apply to independent contractors."

Today's opinion is instead about her lawsuit against the Beverly Hills Unified School District.  One that went swimmingly (for her, at least).  "The jury awarded Strategic general contract damages of $7,710,509 based on $16,125,000 in program and project management fees less overhead and payments received. The jury also awarded Strategic $6 million in special contract damages based on the District’s actions destroying the value of Strategic. The trial court awarded Strategic $4,310,660 in prejudgment interest pursuant to Civil Code section 3287, subdivision (b), and $2.3 million contractual attorney fees. The total judgment is $20,321,169."

Thankfully, the Court of Appeal reverses.  Because there's still a semblance of rationality in the universe.  One in which someone like Christiansen doesn't receive an additional $20 million windfall.

Wednesday, May 09, 2018

U.S. v. Mikhel (9th Cir. - May 9, 2018)

When the Ninth Circuit summary of the opinion itself spans to the seventh page of the slip opinion, you know you're going to be reading a long opinion.  When the opinion starts with an extensive table of contents, that only confirms that it's going to be really long.  And when you're already in the triple digit page numbers and you've still got twenty-some single-spaced pages to read; well, you're pretty much exhausted.

Not surprisingly, the opinion's very comprehensive.  It's a federal death penalty case, which is rare, so one can understand why the panel's opinion is so detailed.  Plus, it's a horrifying case, and involves a group of foreign (Russian and Lithuanian) nationals who kipnap, hold for ransom, and kill a bunch of wealthy people and their associates.  Ultimately dumping each of their victim's bodies off a bridge in the New Melones Reservoir outside Yosemite National Park.

The time between oral argument and publication of the (unanimous) opinion isn't very long -- four months.  But the time it takes to get there is, as usual, expansive.  The murders were in 2001 and 2002.  The conviction and sentence were in early 2007.  And yet here we are, a full decade-plus later, and the Ninth Circuit only now resolves the direct appeal.  With the inevitable rehearing petition, Supreme Court petition, and federal habeas proceedings yet to come.

Still, you've got to be impressed by the opinion, if only by its length.  It's almost the size of a full-length book.  That's a pretty healthy work product.  Which I assume Judge Bybee didn't entirely draft on his own.  Some very hard work -- over a period of years, most likely -- by a bevy of personnel in chambers.


Monday, May 07, 2018

Daniel v. United States (9th Cir. - May 7, 2018)

Well put, Judge Hawkins.

"Like most cases implicating the Feres doctrine, the claims at issue here arise out of personal tragedy. . . . Rebekah Daniel served honorably as a Lieutenant in the United States Navy, and she worked as a labor and delivery nurse stationed at the Naval Hospital in Bremerton, Washington. . . . In 2013, Rebekah and Walter learned that they were expecting a daughter. Rebekah made arrangements to resign from her post, and with the family leave she planned to take following the birth of her daughter, she did not expect to resume her duties prior to her anticipated detachment from service in May 2014. On March 9, 2014, while still on active duty status, Rebekah was admitted to Naval Hospital Bremerton as a patient and gave birth to her daughter. Although her pregnancy had been considered low-risk, Rebekah experienced postpartum hemorrhaging and died approximately four hours after delivery."

The family sues for medical malpractice, but the district court dismisses the case on the pleadings, holding that it's barred by the Feres doctrine, which prohibits suits arising out of military service.  Judge Hawkins quotes Justice Scalia's dissent in Johnson, in which the latter argued that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."  But the panel is nonetheless constrained to affirm, holding that existing doctrine does indeed bar the lawsuit.

But Judge Hawkins concludes the opinion by saying:  "Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so."

Hear, hear.

People v. Reed (Cal. Supreme Ct. - May 7, 2018)

The California Supreme Court affirms the death sentence for two murders in Compton that occurred in 1996 -- and a sentences imposed in 1999.

Not exactly extraordinarily speedy review.

Four years to even appoint counsel for the appeal.  Thirty-eight extensions of time to file appellant's opening brief.  Briefing concluded in 2013, with a decision in 2018.

Not a rush to judgment, for sure.

Tindell v. Murphy (Cal. Ct. App. - May 7, 2018)

This is a whole lot of litigation about a manufactured home bought in Susanville for $320,000, which (since it's "manufactured") apparently has a hard time being refinanced.

A whole lot.

Some people would say that's a great thing about the American system of justice.  Others would perceive the opposite.

Ultimately the plaintiffs don't get any relief.

But they definitely had neutral people hear and think about their case.

A lot.

Thursday, May 03, 2018

In Re D.L. (Cal. Ct. App. - May 3, 2018)

From today's opinion:

"In February 2017, a loaded gun was found in an unlocked closet in a bedroom where two-year-old D.L. slept. In May 2017, the juvenile court determined that the parents’ indifference to the risks posed by leaving a loaded gun in the child’s reach presented an ongoing risk of danger to the child. The court declared the child a dependent of the court and placed her in the home of her mother, with her father having monitored visitation."

Mother should be happy -- beyond happy -- that the untoward consequences of this event were only limited to making her receive family maintenance services and allowing Father monitored visits.  The results could easily have been incredibly tragic instead.

Wednesday, May 02, 2018

Daniels Sharpsmart v. Smith (9th Cir. - May 2, 2018)

California passes a statute that says that if you produce medical waste in California, you have to burn it, not just dump it somewhere.  So Daniels Sharpsmart gets a ton -- actually, 320,000 pounds -- of California-created medical waste, and instead of burning it, ships it to Kentucky and Indiana, which (perhaps not surprisingly) allow medical waste to be dealt with in a much more lenient matter.

California tries to stop this scheme, but Daniels Sharpsmart sues, saying that California's attempt to regulate medical waste generated in California violates the Constitution; in particular, the dormant Commerce Clause.

The Ninth Circuit agrees.

Judge Fernandez's position is that even though California's regulating only medical waste generated in California, once you ship the stuff across state lines, there's nothing that California can do about it.  He says that, otherwise, there'd be "economic Balkanization" of the Union.

A different way of looking at it would be to say that the dormant Commerce Clause sets in stone in the Constitution a nationwide race to the bottom, where the most lenient state -- the one with the fewest environmental or other protections -- sets the standard for the rest of the nation.  Because why go to all the trouble to actually burn medical waste, for example, when you can just go to Kentucky, run some steam over it, and then bury the needles and other stuff.  Much more convenient.

You see some of the same thing at work in transnational trade.  A flow of products -- toxic waste, jobs, whatever -- to whatever nation has the least regulatory burden.  Purportedly to the benefit of everyone; we dump our toxic waste in Mexico (or China, or wherever), which means it's not "our" problem anymore, and the other country gets jobs or whatever.  Plus the associated tumors.

It's definitely the way of the world.  So the domestic application of that principle perhaps isn't too surprising.

Though I'm not sure that the framers, with their heightened sense of state sovereignty, would have thought that the Constitution enshrined that principle to the degree currently interpreted.

Regardless, that's where we are.  The upside is that as long as you can find a state that lets you do what you want, you're free to go -- or ship your stuff -- there.

Which is also the downside.

Tuesday, May 01, 2018

People v. Brady (Cal. Ct. App. - May 1, 2018)

The Court of Appeal sometimes provides neutral insight into the lives of people with whom you are not typically personally familiar.  The first of May brings us precisely such a case.

The case concerns a man named Charles Brady, who lives on the streets of my very own San Diego.  The present offense involves a stabbing.  One that itself gives some insight into the lives of some of those less fortunate.

The story of the offense is this:

"Brady was homeless in downtown San Diego. To make money, he sold hats, costume jewelry, and the like to passersby on the street. Lincoln M., another homeless individual, was one such passerby.

Lincoln was initially drawn to the silver jewelry Brady peddled. The two struck up conversation and became acquaintances, though not friends. Brady learned that Lincoln sold drugs, shoplifted, and—like Brady—had previously spent time in prison. Brady never saw Lincoln carry a gun but knew, or at least strongly suspected, that he carried a knife given the dangers of living on the streets. The two had never argued nor fought previously.

Their relationship soured after a particular transaction. One night in January, Lincoln purchased two pieces of silver jewelry (a necklace and wristband) from Brady for $40. The next morning Brady ran into Lincoln and a friend near a San Diego trolley stop.

Lincoln told Brady that he'd returned the purchased necklace to Brady's "partner" and wanted his $40 returned. He twice threatened, "Diemu, you need to give me my $40 back before I stick you with my kazoo." Brady understood "Diemu" to mean "that [he] was a Blood," i.e., a gang member, and "kazoo" to mean a knife. With one hand, Brady touched or lightly pushed Lincoln on the chest several times while Lincoln fidgeted with his own wallet. As Lincoln turned his gaze away from Brady and looked off into the distance, Brady suddenly grabbed the collar of his sweatshirt with one hand and thrust a knife into his lower abdomen with the other. 

After stabbing Lincoln once, Brady gathered his things and walked away. A private security guard trailed him until the police arrived. While detained, Brady told the police, "I'd fucking stab somebody if they fucked with my property" and "I am going to jail for protecting my mother-fucking property.""

That is a harsh life, and way to live, to be sure.

How did Brady get to this situation in life?  Here's at least a part of his story, from his perspective:

"Brady also took the stand and explained his personal history. He grew up in a small town in Georgia where, at around four or five years old, he was sexually abused at knifepoint by a neighbor. His mother too started physically abusing him at a young age. In one incident, she struck him with the back of a butcher's knife. After about nine years of abuse, fifteen-year-old Brady left home and set out on his own. Having previously been assigned to special education classes, Brady attended no further school.

Things did not get easier for Brady. In his late teens, he was jumped on two occasions by groups of five to six people, armed in the first incident with chains and a tire iron and the second with bats. The beatings led to a seizure disorder.

In his early thirties, Brady came to the West Coast and started using crack cocaine. His drug use led to criminal activity. He was convicted twice for robbery in the 1980's, once for petty theft with a prior in 1994, and once for selling crack to an undercover officer in 1998. As a result, he spent most of the time from 1985 to 2010 in prison. There, he was stabbed on three occasions. The third stabbing incident, involving a broomstick to his eye, left him partially blind.

In 2010, Brady's situation improved somewhat; he attended a residential treatment program that helped him address his addiction to crack cocaine. But as of January 2016, when this incident occurred, Brady remained homeless in San Diego."

So off crack, but still homeless.  And then the stabbing.

So now 15 more years in prison.

Monday, April 30, 2018

Magana v. Superior Court (Cal. Ct. App. - April 27, 2018)

This is about as damning an indictment of a criminal defense attorney as I've seen from the Court of Appeal.

San Francisco attorney (and Hastings Law graduate) Daniel Everett represented a criminal defendant charged with two counts of rape.  I'll not attempt to summarize his preliminary efforts on behalf of his client.  I'll just mention that Mr. Everett repeatedly told the Court that he was not ready for trial, was almost invariably late to court, and even left the courtroom one afternoon and promptly disappeared, "leaving his client, the prosecutor, and the judge waiting for nearly an hour for him to return."

You can read the entire opinion if necessary.  Suffice it to say that anyone who reads this opinion will not likely clamor to retain Mr. Everett as counsel.

The trial court entered the extraordinary remedy of removing Mr. Everett as counsel -- something that the trial judge had never done before in his career.  The Court of Appeal is fine with that.  It not only refuses to disturb the trial court's decision, but also refers its opinion to the State Bar.

Which is already quite familiar with Mr. Everett's antics in other criminal cases.

That's a lot of trouble for an attorney.  Particularly given the brief period of time Mr. Everett's been an attorney.  He was admitted only in 2010.

Friday, April 27, 2018

People v. Espinoza (Cal. Ct. App. - April 26, 2018)

You see a lot of different crimes reported in the various appellate decisions.  But here's a relative rarity:  felony cemetery vandalism.

I'm not sure why someone would want to randomly vandalize a cemetery -- kicking over headstones and the like.  It's not like they did anything to you.  Or will do anything to you again.

But perhaps I just don't fully understand the criminal mind.

Wednesday, April 25, 2018

Bozic v. USDC (9th Cir. - April 25, 2018)

I'll occasionally read cases in which a win is actually a loss, or a loss actually a win.  But today I read a case where a loss is a win except it's a loss.  This one.  Unusual for sure.

Plaintiff files a lawsuit in the Southern District of California, and doesn't want to get it transferred to the Eastern District (where a related class action is pending).  But the district court sends it there.  So plaintiff files a writ of mandamus.

The Ninth Circuit denies the writ.  That's a loss.  But the Ninth Circuit also expressly says that it was error for the district court to transfer the case to the Eastern District, since venue was improper there.  That's a win.  Particularly since it's a decision that the relevant district court will practically have to follow upon remand.  The Eastern District will have to transfer the case back and/or the Southern District will have to reconsider the propriety of -- and withdraw -- its transfer order.  Again: Victory.

Yet it's still a loss.  The case is going to be stayed anyway in favor of a related pending state court class action.  So none of this matters.  Nothing's really going to happen anywhere anyway.

Still, a neat little civil procedure issue, with a relevant holding on the merits even though the Ninth Circuit dismisses the writ.

P.S. - Judge Friedland's opinion says that transfer was improper largely by relying on the Supreme Court's decision in Hoffman, and the opinion repeatedly cites the relevant statute (transfers proper only "to any other district or division where it might have been brought.”) as it read back then.  Just a reminder, though, that the statute was amended thereafter -- in a direct (albeit belated) response to Hoffman -- and now ends with ". . . or to any district or division to which all parties have consented."  The effect of that amendment is somewhat disputed in the lower courts, and it's unclear whether that amendment matters in the present case, since the opinion doesn't mention whether all relevant parties (e.g., defendant) consented to have the case transferred to the Eastern District.  (Though it looks like it did, since it filed the motion to transfer.  There may be a lingering question whether "all" in this regard really means "all").  So the relevant statutory amendment might have merited at least brief mention and/or discussion.

Tuesday, April 24, 2018

Arvizu v. City of Pasadena (Cal. Ct. App. - March 23, 2018)

I feel bad for the plaintiff.  He was seriously injured.  That's never a happy event.

But, in a civil lawsuit, anyway, you have to figure out a lot of things.  Whether there's immunity.  Whether there's contributory negligence.  Lots of "law" stuff.  Particularly on appeal.

Moreover, even on a superficial level, you've got to figure out where the "fault" should be placed, if only as a matter of community values.  How reasonable was the conduct of all the relevant parties?

So here are the underlying facts of the case.  With my own editorial comments in brackets:

"On the evening of September 14, 2013, Arvizu [the plaintiff] went to his friend Ben’s house to watch a pay-per-view boxing match on television.  [I believe this was the Floyd Mayweather Jr. vs. Canelo Alvarez fight.  A long one.  Mayweather wins on a majority decision.]  At about 1:00 a.m. on September 15, 2013, he received a call from his friend Lalo to “hang out,” so he and Ben went to Lalo’s house where they met up with Lalo and three other friends, Frijol, Jerry, and Max.

[Mr. Arvizu was 21 years old.  Just in case you're wondering what age we're talking about when people go over to their friend's house and then "hang out" at 1:00 a.m.]

Sometime around 3:00 a.m., the six friends decided it would be fun to go “ghost hunting” . . .  [Yeah.  I thought that was strange too.  What the heck is 'ghost hunting'?!  Some crazy millennial thing?  But it turns out it's just (allegedly) hunting for ghosts.  If that's in fact what these 21-year olds were in fact doing at 3:00 a.m. instead of a story they made up thereafter.]  . . . at the Colorado Street Bridge in Pasadena. Built in 1913, the bridge is known for its distinctive Beaux Arts arches, and is sometimes referred to as “Suicide Bridge.” The young men had heard ghost stories about it. . . .

[Okay.  So they were "ghost hunting".]

Lalo drove the six young men (in his five-passenger car) to the Park. [Crowded!] The Park is closed from dusk to dawn. At the first place the group tried to enter the Park, they found locked gates and fencing too high to jump over.  [Maybe that's a sign about whether you should enter, no?] . . . .

Sometime in the early hours around 3-4:00 a.m. (the exact time is disputed but immaterial), Lalo parked his car in an unmarked paved area at the intersection of Arroyo Boulevard and Arroyo Drive, across the street from the Park. The young men got out of the car, crossed Arroyo Boulevard, and entered the Park. Pasadena Municipal Code section 3.24.110 (A)(23) makes it illegal to be in the Lower Arroyo section of the Park, where the young men entered, and where the accident occurred, from dusk to dawn.  [Law, schmaw, as 21-year old men are apt to say/feel.]

Ben testified that he had been there before and knew about a trailhead that provided access to the portion of the Trail under the bridge, but “didn’t want to walk the whole thing. I just wanted to get to that part of the trail” under the bridge. So they took a shortcut to the Trail.  [You can probably figure out that the word "shortcut" should be in quotes, and is not going to turn out all that well.]

Ben and the others started to walk down a natural slope, into the Arroyo Seco (except Jerry, who remained behind). There was no pathway where they walked down the slope, although the Trail ran below them, roughly parallel to the stream. They were heading toward the Trail, traveling in a direction roughly perpendicular to its path.

It was dark. None of them had a flashlight. There may have been some light from a streetlamp on Arroyo Boulevard. But there was no moonlight.  [Foreboding, no?  If Court of Appeal opinions had soundtracks, you'd start hearing the exciting, creepy music about now.] . . . .

Arvizu headed down the slope. [Bad]  He did not know where they were going; he merely followed his friends. [Worse] He does not recall if he was wearing his prescription glasses. [Even worse] Arvizu, who was wearing 1-2 year-old athletic shoes, [more bad stuff] started to slide in the loose dirt. [Here it comes . . .] He grabbed a pipeline that was above ground, and used it to assist in his descent. [Saved!] But the pipeline ended before he was all the way downslope. [Not saved!]

He could see his friends standing below him, on or near the Trail. Letting go of the pipe, he continued down the slope, which became steeper as he neared the bottom. He tried to slow himself down, but was unable to do so. He lost his footing and tumbled head over heels. Unable to slow down as he reached the Trail, he traveled all the way across it. [I've got a very good mental picture of all this.  Well done, Judge Curry (sitting by designation).  A second career writing screenplays is by no means out of the question.]

The Trail, at that location, is relatively level and proceeds along the top of, and just behind, an approximately 10-foot-high concrete retaining wall or embankment. [That's the 10-foot thing he's going to fly off.]  After crossing the Trail, Arvizu sailed over the retaining wall, hit a tree limb, and landed on the dirt and rocks below. [Ouch.  Totally and completely:  Ouch.]

Ben, who was on the Trail as he watched the accident happen, testified he saw Arvizu coming down the slope, “trying to get his body to adapt to the speed that he was going, but he just couldn’t. He was – once he hit the trail, it was already too late.” Because he had been there before in daylight, Ben knew there was a drop-off at the retaining wall, but didn’t think to mention it to the others because he thought they would see it. Arvizu testified he didn’t see the drop-off that night."

Yep.  All bad stuff.

So there are the particular details of the evening.  Or, as the Court of Appeal aptly summarizes it, the participants "were someplace they weren’t supposed to be, breaking the law, taking a shortcut in the dark, doing something they were unprepared for."

Given that description, you can probably guess where the panel ends up.  The grant of summary judgment in favor of the City of Pasadena is affirmed.  If only because the "trail immunity" statute applies.

With costs on appeal to the City.