Monday, December 10, 2018

U.S. v. Valencia-Cortez (9th Cir. - Dec. 10, 2018)

I usually don't read the unpublished opinions.  There are too many of them, they typically lack a ton of reasoned analysis, so I'll leave 'em to the parties.

But I happened to look at this one today.  Not because I cared (or knew anything) about the case.  But just because the Ninth Circuit today didn't list any published opinions -- yet omitted the "No Opinions Filed Today" blurb that it uses on every other such day -- so just took a quick look to make sure that the Circuit was still hard at work.

And, once I read the thing -- it's very short -- I wondered:  "Why isn't this opinion published?"

Here's the relevant part:

The District Court denied Valencia’s request for a Ninth Circuit pattern eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in doing so, did not abuse its discretion. In its final jury instructions, the District Court discussed Valencia’s identification defense and provided a general witness credibility instruction. Further, the District Court permitted Valencia to elicit comprehensive expert testimony on, among other things, eyewitness memory, memory for the details of events, the ability to pick faces, and suggestibility. Counsel for Valencia extensively argued the identification defense to the jury based on this testimony. The jury was thus alerted to potential weaknesses in the Government’s eyewitness identification evidence. Accordingly, we see no abuse of discretion in the District Court’s refusal to give the Model Eyewitness Instruction.

While we see no abuse of discretion, we are troubled by the comment to the Model Eyewitness Instruction that recommends “against the giving of an eyewitness identification instruction.” Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There is now a robust body of scientific research and evidence that highlights the unique perils of eyewitness identification testimony as “one of the greatest causes of erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016).

The Supreme Court has acknowledged the fallibility of eyewitness testimony and characterized eyewitness instructions as due process safeguards that “warn the jury to take care in appraising identification evidence.” Perry v. New Hampshire, 565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model Eyewitness Instruction). Other Circuits have also encouraged the giving of such instructions, recognizing the inherent dangers of this type of evidence. United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir. 1972). Further, we have previously suggested that the need for heightened jury instructions should correlate with the amount of corroborating evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley and Telfaire a single eyewitness was the only incriminating evidence against the defendant”). Without disagreeing that courts are given discretion in fashioning jury instructions, we encourage the Jury Instructions Committee to reassess their comment as it is inconsistent with legal precedent and growing scientific evidence.

For similar reasons, we are also troubled by the following language in the comment to the Model Eyewitness Instruction: "The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction where the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded." MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either give the Model Eyewitness Instruction or allow expert witness testimony, but not both. Again, because of the particularly unreliable nature of eyewitness identification evidence, we encourage the Jury Instructions Committee to make clear that it is within a court’s sound discretion to provide both safeguards if the facts and circumstances of the case so require."

I get that even an unpublished opinion can be send to the Jury Instructions Committee.  But this discussion seems to me pretty important on the merits.  As well as useful to contemporary litigants and judges in the plethora of eyewitness identification cases that happen every day in the district courts.

So I'd publish this one.  Something that's far more informative and significant, honestly, than some of the published opinions we see.

J.W. v. Watchtower Bible and Tract Society (Cal. Ct. App. - Dec. 10, 2018)

Here's a primer on how to turn a simple discovery dispute into a $4-million-plus judgment against you.

I'm sure that the defense counsel thought every step of the way that what s/he was doing was okay.  Making arguments, thinking the trial court was wrong, thinking you could get out of producing some documents that the client really didn't want to produce (and thought were privileged).

But at some point, you've got to realize:  You've lost.  Time to face the music and comply with the court's order.

Otherwise this will happen.  Even though you keep telling yourself it won't.

That's a mighty big judgment.  One that will in fact be paid.

Don't mess up discovery.  It can cost you.

Big.


Friday, December 07, 2018

C.S. v. Superior Court (Cal. Ct. App. - Dec. 7, 2018)

You're a 14 year old kid.  You make the mistake of wearing blue shorts to a public park.


The depressing details:

"The 14-year-old victim, Heriberto R., went to the park at about 6:30 p.m. to play basketball with his older brother, his father, and his uncle. Heriberto was wearing blue shorts.

C.S. was at the park along with several members of the RPL, including Victor Villar, who was the gang’s shot-caller. Villar signaled to C.S. and another gang member to confront Heriberto. Villar also told a third gang member to “go.” 

C.S. and the two other gang members approached Heriberto, asking, “Do you bang?” Heriberto “looked like he was confused.” One of C.S.’s companions lifted Heriberto’s shirt to look for tattoos but did not see any. 

Heriberto’s older brother approached and said, “Leave my little brother alone. He doesn’t play that stuff. He doesn’t bang.” However, one of C.S.’s companions said, “Bullshit. You’re a fucking scrap,” referring to Heriberto’s apparel. 

One of C.S.’s companions then punched Heriberto, causing him to fall to the ground. C.S. and other gang members punched, kicked, and stomped on Heriberto’s head. C.S. was the last person to stop stomping on Heriberto’s head. . . . . Heriberto suffered a skull fracture and died."

What a world.

Thursday, December 06, 2018

Love v. State Dep't of Education (Cal. Ct. App. - Dec. 6, 2018)

Here's another challenge to California's repeal of the "personal belief" exemption to California's immunization rules.  One that goes the same way as all of the others and in which the Court of Appeal rejects the plaintiff's claims.  With Justice Robie saying that those claims "are strong on hyperbole and scant on authority."

In short:  Immunize your children.

Wednesday, December 05, 2018

People v. Berch (Cal. Ct. App. - Dec. 5, 2018)

It's a day of mourning for President George H.W. Bush, and there's nothing from the Ninth Circuit and only one opinion from the California Court of Appeal.  It's also a grey day of drizzle down here in San Diego, so I thought about just staying quiet today.

But today's (sole) opinion nonetheless got me thinking.

It's another one of those cases that's technically moot because the defendant has already served the underlying sentence, but in which the Court of Appeal nonetheless exercises its discretion to decide the merits since the issue is likely to recur and otherwise escape review.  (Here, it's about whether a commissioner can revoke probation, and by the time the case was argued on appeal, the defendant had long ago served the relevant 120 days in jail.)  I'm generally pretty happy with that result.  The Court of Appeal gets the merits right (in my view), and it's also correct that unless you decide these things, the typical probation revocation sentence in this context is so brief that it'd otherwise evade review.

So everything's right with the world.  On this front, anyway.

But the fact that we decide cases like this made me wonder:  Why only decide these types of moot cases?  Why not decide others?  At least in the criminal context.  What are the appropriate limits?

The classic reason not to decide cases that are moot is because no one cares any more.  The winning side doesn't care because it already got what it wanted, so has nothing to lose, whereas the losing side doesn't care because it's got nothing to gain.

We nonetheless hear the merits of these types of appeal.  Even though, by the time the briefs are being written, they totally don't matter to the individuals actually involved in the case.

Why do we nonetheless hear the merits of these the-litigant-doesn't-actually-care appeals?  Because, in truth, we know that there are still people who actually matter that do care about the appeal.  And who have adequate incentives to still write really good briefs that allow us full information to decide the merits.  The public defender (or, as here, the appointed appellate attorney) wants to protect other clients.  The prosecutor (or, as here, the AG's office) wants to prosecute other defendants in the future more easily.  So they write good briefs, and we're confident we can accurately decide the case.

What's funny to me is that the same thing would be true even if the case became moot even before even the Notice of Appeal was filed.  Or even if there wasn't a particular case at the moment that raised the issue (e.g., there was only a prior case, or one that we knew for certain would exist in the future).  Yet we don't allow those cases to be heard.  They're actually moot.  Even though the briefs in those cases would often be just as accurate and informative as the briefs here.

So I wonder whether the decide-the-case-even-though-it's-technically-moot doctrine is actually internally consistent and treats like cases alike.  I'm confident we get cases like today's right.  But I wonder whether similar reasoning shouldn't permit us to decide other types of technically moot or "hypothetical" disputes.  Seems to me like maybe it should.

Just something to ponder on a (relatively) cold and rainy day in Southern California.

Tuesday, December 04, 2018

Calvert v. Binali (Cal. Ct. App. - Dec. 4, 2018)

I can summarize this 14-page opinion in a single sentence:

When the Superior Court orders that you serve process on the defendant via publication in the Orange County Register, don't publish the thing in the Laguna News-Post.

Otherwise your $1.9 million default judgment is void.

People v. Burton (Cal. Ct. App. - Dec. 4, 2018)

Some cases are very hard to win at trial.  Some cases are easy.

This is not one of the former.  At least for the prosecution.

It involves the brutal and inexplicable murder of an elderly couple.  So already there's a huge sympathy factor.  Moreover, the evidence against the defendant was overwhelming.  Usually the defendant doesn't testify in her own defense.  This time she did.  But it didn't help at all.

Here's the prosecution's closing argument:  "The People argued defendant at first only intended to get pills and money, but when Melvin refused to cooperate, she made a deliberate decision to kill him. A “blink of an eye” or “fraction of a second” was enough time; “A cold, calculated choice can be arrived at quickly. And that’s exactly what happened in this case.” Defendant was a liar. She first told Detective Meux she was not there (refuted by her DNA), then claimed self-defense (belied by the severity of the injuries, including defensive wounds), then claimed the Bains killed each other (which made no sense). It made no sense that defendant had to hit Jean (a smaller and much older woman) multiple times with a flashlight to stop an attack, or that after being hit repeatedly by a flashlight Jean would continue the attack. It made no sense to claim that Melvin could have killed his wife when he was found beaten to death as well. Defendant claimed Melvin had been her good friend, but she displayed no remorse. Defendant had a prior conviction evidencing moral turpitude. The prosecutor referenced defendant’s admission to lying and the instruction allowing the jury to “consider that” in determining guilt and then listed many of the lies defendant testified she had told Meux."

The jury took a grand total of 80 minutes before it returned its guilty verdict.  Defendant's sentenced to LWOP.

When the evidence is so overwhelming, don't be surprised when the Court of Appeal doesn't reverse the conviction.  There was an evidentiary error here.  But the Court of Appeal concludes that there's no prejudice therefrom given the state of the overall evidence.

Sometimes an attorney should be congratulated for winning at trial.  But sometimes all you need to do is to not screw up and you'll pretty much definitely win.

Monday, December 03, 2018

Murder (Cal. Supreme Ct. - Dec. 3, 2018)

Monday mornings are traditionally a downer anyway, but they're even more depressing when you start your workweek reading what the California judiciary publishes today.

One murder case (that results in a death sentence).  Another murder case (that also results in a death sentence).  Then a case from the California Court of Appeal that also involves a murder.

That first-filed opinion is particularly depressing.  It's a mother who stabbed three of her little kids to death.  At least two of the three little kids had defensive wounds.

OMFG.

FTC v. AMG Capital Mgmt (9th Cir. - Dec. 3, 2018)

Here's a useful statement by Judge Bea that'll be somewhat helpful to defendants in lots of different types of cases.  But I say "somewhat" because the statement (1) is only in a concurring opinion, and (2) is, to me at least, totally silly.

Judge Bea categorically states that "the question whether something is 'likely to deceive' is inherently factual and should not be decided at the summary judgment stage."  Judge Bea would so hold because he thinks that when three judges on the panel can understand what the fine print of a contract means, then that means that maybe the average consumer can understand it as well.  Hence precluding the grant of summary judgment on the point.

One can respond to that point in a number of different ways.  But it's sufficient to me to simply state that just because a panel of three learned federal judges -- alongside their law clerks -- can (after full briefing by the parties) understand a particular provision in fact says virtually nothing at all about what a reasonable consumer under far different circumstances would understand.  Most consumers haven't gone to law school and studied how to interpret contracts.  Most consumers haven't been confirmed by the Senate.  Most consumers don't have the experience reading or deciphering fine print -- or the time to do so -- that federal judges hearing a particular lawsuit possess.

That the top one percent of the top one percent of consumers can perhaps understand a contract does not preclude summary judgment about whether that contract's "likely to deceive" a regular consumer. Just like a hypertechnical medical statement or a complicated physics equation might well be likely to deceive me even though Einstein or a medical expert would totally understand that it meant the exact opposite of what I -- and others like me -- thought it meant.

To take a concrete example from a different context, imagine that a contract said that "You can prepay this loan, if you want, on any Friday!" and then, buried in the fine print, ten pages later, in a place virtually no one ever looks and that you can get to only after clicking on seven different hyperlinks, there's a clause that says that "Payments during non prime number years must be made in a habitable microgravity space."  Now, I'm a lawyer, and I read that provision, and understand that it means that since the last prime number year was 2017, the only time you can pay on Earth is in 2027, and that in every other year, you've got to make your way to the International Space Station if you want to pay early. So it's literally true.  But it's also likely to deceive.  And summary judgment would be entirely proper.

There are other problems with Judge Bea's statement, at least for me, but I'll leave it at that for now.  Nonetheless, if you're looking for a nice quote and trying to survive summary judgment, go ahead and give it a shot.  You'll at least know you've got one kindred spirit on the Ninth Circuit on your side.

Wednesday, November 28, 2018

Mayall v. USA Water Polo (9th Cir. - Nov. 28, 2018)

Most of the time, I'm merely intellectually interested in the result of a particular published opinion.  But this Ninth Circuit opinion from today hits extraordinarily close to home.

It's a putative class action against USA Water Polo -- the governing body for water polo in the United States -- that alleges that USA Water Polo didn't do anything to stop its players from getting put back into games after they'd suffered a concussion.  Which resulted in some players getting another (more serious) concussion.

The district court dismissed the lawsuit on a 12(b)(6) motion, and USA Water Polo offers a lengthy defense of that dismissal on appeal, arguing that (1) the primary assumption of the risk doctrine bars any claims for injuries, (2) USA Water Polo's rules satisfied its duty of care anyway, and (3) there wasn't "gross negligence" in any event.

The Ninth Circuit squarely rejects every one of these defenses.  In a way that makes it fairly clear (at least to me) that even beyond getting remanded, the case will survive summary judgment.  Which in turn means it's going to eventually settle.  Because even though this is a pleading opinion, what the Ninth Circuit says is strongly pro-plaintiff here.  Which has consequences for how the thing will play out on remand.

The reason why this case is of particular interest to me is because (1) all four of my kids play water polo, (2) all of 'em are members of USA Water Polo, (3) several of them have been concussed, and (4) one of them was and is on the USA National Team, which -- as today's opinion notes -- had a separate and fairly detailed set of concussion rules.  So it's a topic I'm familiar with.  Even though, until today, I had no idea there was a pending class action about the thing.

Water polo is a rough sport.  Rougher than perhaps most people who are unfamiliar with the game -- which definitely included me, until my kids started to play -- realize.  And that ball gets thrown very, very hard.  And sometimes hits people's heads.  Not to mention the elbows and other flying things that very easily give players concussions sometimes.  (I'm also totally putting to one side the out-and-out deliberate punches, which I've seen in games and, yes, happen.)  In short:  It's rough.  Injuries are indeed part of the game.  Unfortunately.

But the Ninth Circuit says that even though initial injuries are inevitable, putting someone back in after they've been injured isn't.  Hence why it reverses the dismissal below.  Because, allegedly, USA Water Polo could and should have done more.

I suspect my family's USA Water Polo annual dues (which, ironically, we just paid earlier today) will increase after this thing settles.  And that a part of 'em have already gone to pay USA Water Polo's lawyers.

That too is the nature of the "sport" -- litigation -- that we also play.

Tuesday, November 27, 2018

U.S. v. Tydinco (9th Cir. - Nov. 27, 2018)

Today I learned that it's a federal crime to provide shelter to an unauthorized immigrant.  And that we actually prosecute people for it.

A husband and wife live in Saipan (in the CNMI).  They go to China to visit Wife's family and the like and meet up with a friend, who's got a 10-year old kid.  The friend wants the 10 year old to try out studying in an American school, so the husband and wife take the child to Saipan and enroll him in the public elementary school there.

That's okay; the CNMI allows anyone from China to go there for up to 45 days, without a visa or anything.  You've just got to have proof of a return flight back.  Which the kid does; he arrived on September 26 (near the beginning of the school year, presumably), and has a ticket back to China for a month later.  So the kid goes to school, lives with husband and wife, all is fine.  Husband and wife identify the kid a Chinese citizen to the school and Border Patrol, etc., and he lives there for a bit and tries out school.

The kid apparently decides he likes it there, since he skips his flight back and stays with the family (and seemingly keeps attending the school) for around 18 months or so, when he finally leaves.  At some point thereafter, the wife voluntarily speaks to immigration officials and tells them everything about the kid's travels etc.

At which point they prosecute both husband and wife for "harboring" an illegal alien.  And instruct the jury that to "harbor" an illegal alien means "to provide shelter to".

And get convictions of both family members.

I'll forthrightly admit that I didn't realize that we prosecuted situations like this one.  And, to be clear, this is not a "Trump thing" -- the prosecution here transpired in 2015.

Now I know.










Monday, November 26, 2018

David L. v. Superior Court (Cal. Ct. App. - Nov. 26, 2018)

This sounds right to me.  I'm not positive it's right.  But it nonetheless sounds right.

You (of course) take a risk that when you have sex with someone that it'll result in a pregnancy.  (If this is somehow news to you, all I can say is, wow.)  Similarly, if you have sex with a woman who resides in California, you (of course) take the risk that she'll potentially have a kid -- your kid -- in California.  In the parlance of civil procedure, we'd say that it was "foreseeable" that your act (having sex) would have an effect in California.

But that's not enough for personal jurisdiction.  Justice Dato doesn't cite the case in today's opinion, but we know from the Supreme Court's opinion in Worldwide Volkswagen that such a foreseeable effect doesn't establish minimum contacts.  When you sell a car, or have sex, the fact that your act could have an effect -- an explosion or a baby -- in the forum state isn't enough.

Now, if you have sex in California, that'd be enough.  California sex plus California resident equals California personal jurisdiction.  But here, they had sex in Nebraska, not California.  Or at least that was the sex that gave rise to the pregnancy -- and we're talking about specific jurisdiction, so we care about the contacts that gave rise to the cause of action, not those contacts (like other sex) that didn't give rise to the child at issue.

Sex in Nebraska, albeit with a California resident, doesn't create specific jurisdiction in California.

As I said, that seems likely right.

The only thing that gives me slight pause in that conclusion is the other (previous) sex between the parties in California.  (I agree that the concerts, business trips, etc. in California are totally irrelevant.)  I could see an argument that those contacts are sufficiently "related" to the eventual pregnancy -- even though they didn't directly cause it -- to give rise to specific jurisdiction.

But I think the other view -- the one adopted by the Court of Appeal -- seems slightly more persuasive.  No purposeful availment with respect to this cause of action.  Hence your paternity action needs to be brought where the defendant lives (Connecticut) or, perhaps, where the cause of action indeed arose (Nebraska).  You choose.

Fortunately, we have fax machines and airplanes.  So not prohibitively difficult.

Even though I concede that it'd obviously be easier for the plaintiff if she could file in California.

Monday, November 19, 2018

County of San Diego v. Commission on State Mandates (Cal. Supreme Ct. - Nov. 19, 2018)

We're slowing coming to the Thanksgiving break, so you'll likely see a trickle of published appellate cases from the Ninth Circuit and California Court of Appeal as we head into Turkey Thursday.

Meanwhile, check out the new format of today's California Supreme Court opinion.  As contrasted to the old format.

Like it?  Hate it?  Indifferent?

I'm not sure whether this is the "new normal" or merely a one off.  But if it's the former, I'm sure we'll get used to it.

Or maybe we're just changing things up for the holidays.  Time will tell.

Meanwhile, today's opinion is a pretty clear win for the counties -- and a loss for the state -- which will get more money to help pay for SVP proceedings.  Though precisely how much will be decided only on remand.

Still.  Unanimous opinion today.

With a funky newlook.

Thursday, November 15, 2018

People v. Randolf (Cal. Ct. App. - Nov. 14, 2018)

Doing this job -- or at least writing this blog -- you get used to various personalities and institutions in the Court of Appeal.  I was reminded of that when I read this otherwise totally innocuous amendment to a prior opinion.  A tiny little thing.  That states, in toto:  "On page 5, footnote 7, beginning 'In raising this appeal, appellant' is deleted in its entirety."

Okay.  Out goes footnote 7.  Guess it wasn't really necessary.

But I did just wonder:  What did footnote 7 say?  I know it starts with "'In raising this appeal, appellant . . . ."  What's the rest?

Not much, as it turns out.  But the "rest" is nonetheless meaningful.

The original footnote read, in its entirety:  "In raising this appeal, appellant does not contend the officers should have been designated as experts pursuant to Evidence Code section 801, subdivisions (a) and (b)."  So the Court of Appeal deletes that footnote.  Which leads one to believe that, well, maybe, appellant did contend that the officers should have been designated pursuant to Section 801.

Which in turn makes me think:  Well, what about that?!  If they did in fact argue that -- otherwise, why delete the footnote -- what about the merits of that argument.  Does it work?

The Court of Appeal doesn't say.

Of course, the Court's under no obligation to say why it does what it does.  So I can just deal.  But I will say that the amendment nonetheless did leave an open question in my mind.  Not a burning open question or anything, but still, something that the Court of Appeal might have liked to say something about.  If, in fact, the reason for deleting the footnote was because the appellant did indeed argue the thing that the Court of Appeal (originally) said it didn't, and hence, that the Court of Appeal didn't address.

Now, the Court of Appeal not only doesn't have to satisfy my curiosity -- or anyone else's, for that matter -- but is also fairly busy.  Though, in that regard, it probably bears mention that this is the Fifth District.  In my experience, you can count on that district to publish an opinion about once every week or two.  Rarely more.

So, for example, this (tiny) amendment was on November 14.  The Fifth's most recent published opinion was two weeks earlier, on November 1.  Then one a week before that, on October 23.  Then October 19th and October 12th, then one on October 1, then just one opinion in all of September (on September 10).

Which is just a longwinded way of saying (and/or showing) that there aren't legions and legions of published opinions typically coming out of the Fifth.  So maybe a tiny explanation for that argument that we're now hinting the appellant did, in fact, potentially make -- and its merits, or lack thereof -- might potentially be something we could do.

All of which is not to blame the Fifth.  It's been understaffed, especially recently.  It just got two new justices -- Justices DeSantos and Snauffer -- in August.  Being two short can make a big deal for a district that only has ten or so justices when it's fully staffed.  So I get it.

Still.  Could have potentially seen a more detailed amendment on this one.  If in fact the appellant did in fact make the argument we initially thought it didn't.

Wednesday, November 14, 2018

C.A. v. C.P. (Cal. Ct. App. - Nov. 13, 2018)

The first line of this opinion will tell you a lot about (1) California, and (2) where the law in this area is likely to go in the future.  It's a line that will strike horror (or bemused cynicism) in the minds of many viewers in different parts of the country, as well as one that would have been unlikely to have been written in most appellate courts twenty or thirty years ago.

Here's the line.  Authored by Justice Duarte:

"This case involves a little girl bonded to and loved by each of her three parents."

Three parents.  Controversial now (at least in some minds).  Likely to be more prominently -- and more formally -- accepted in the future, I think.

It's a good case for that line.  A good set of facts.  So while the opinion might well be mocked by certain audiences, who might view it as a classic example of the nuttiness that is California, here are the circumstances that lead Justice Duarte to say what she does:

"The child was born in July 2012 to wife, who was then and remains married to husband. . . . Defendants [the husband and wife] never questioned plaintiff’s status as the child’s biological father, a fact each defendant had known before the child was born. Wife led plaintiff to believe she was separated but continued to cohabit with husband without plaintiff’s knowledge. Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not find out about the affair, which caused plaintiff to refrain from seeking paternity leave from their employer. Plaintiff was involved with the child’s early medical evaluations and treatment, openly held her out as his daughter, received her into his home, paid child support, and had regular visitation until defendants cut him off after he filed the instant petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed relationships with the child. Plaintiff had thought the child bore his last name until he saw a prescription bottle showing otherwise, when the child was about eight or nine months old.

Plaintiff had regular overnight parenting that increased over time to every other weekend, and saw the child “from time to time” during the week, from when the child was about seven months old until late in 2015, when this petition was filed. . . . [P]laintiff [paid] informal child support payments, set in an amount determined by wife. Plaintiff only stopped paying when defendants refused to let him continue to see the child. Plaintiff respected the marriage and wanted to co-exist with husband; in turn, husband was committed to maintaining his marriage and conceded that if the roles were reversed he would want to be recognized as a third parent.

The trial court found “no doubt” the child was “well bonded to [plaintiff] and his extended family” and that “he has established a strong, long and enduring bond with” her that defendants had allowed to form. Plaintiff and husband were each found to be a presumed father of the child. Weighing the two presumptions, the court found it appropriate to recognize all three adults as parents, otherwise the child would suffer detriment. The judgment declares that the child has three parents who shall share custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the child’s existing set of names, though not as her last name."

So you can see why the trial court did what it did.

The harder part is how this holding comports with California's existing statutes.  Which, as you might suspect, are the product of earlier times (and thinking).

But the Court of Appeal gets around this by saying, essentially, that while the Legislature said that the husband of a child born during a marriage is conclusively presumed to be "Daddy," that doesn't mean that he's the only Daddy.  You can have two (plus a Mommy).  Hence the relief here.

California and the twenty-first century.  Encapsulated into nineteen double-spaced pages.

Tuesday, November 13, 2018

Tricarichi v. CIR (9th Cir. - Nov. 13, 2018)

Beware of individuals who claim to be able to reduce your tax liability by millions of dollars.

Maybe it'll work, of course.  Maybe.  But maybe that little "Midco Transaction" they're pitching -- the saga of those notorious deals is recounted here -- will instead attract the attention of the IRS.  And in the end subject you to being individually liable for over $35 million in taxes, penalties and interest.

Greedy people sell these scams.  But greedy people also buy 'em.  Hard to be particularly sad when someone gets socked with tax liability that's entirely appropriate.

Or when the Ninth Circuit affirms.

Monday, November 12, 2018

Williams v. Filson (9th Cir. - Nov. 12, 2018)

It's a holiday today -- even though many of us (myself included) nonetheless remain hard at work -- so no published cases today.

But this death penalty case from Friday reminds us that cases -- even (and perhaps especially) death penalty cases -- are straightforward and easy when you don't have all the facts.

The knifing murder of a pregnant woman and her baby during a botched nighttime burglary is surely a terrible crime.  It's what got the defendant sentenced to death.  A murder that was described at trial and at sentencing in excruciating detail.

But there's also a long story about how the defendant -- who was 19 at the time of the murder -- got to that point.  Only a fraction of which was presented at sentencing.

So the Ninth Circuit remands.  Read the full opinion for more details.  But be forewarned that pretty much everything about this case is depressing.  None of it will make for a happier day.  None of it.

I've also got to at least mention how long all this took.  The murder was in 1982.  The death penalty was imposed (after defendant pled guilty) in early 1983.  That's thirty five years ago.  And we're only now on the first federal appeal.  The state proceedings took until 1998.  Though that leaves nearly two decades for the case to eventually wind its way from the district court to the Ninth Circuit.

That's a long, long time.

Of course you want to get these things right.  There are few things more important than whether someone lives or dies.

But still.  That's a long time.

And it's not even nearly over at this point.

Thursday, November 08, 2018

1550 Laurel Owners Ass'n v. Munshi (Cal. Ct. App. - Nov. 8, 2018)

Here's something that's good to know.  The Court of Appeal holds that you can't bring an anti-SLAPP motion to strike in a limited civil case.  That's at least the interpretation of the existing statutes.  (I'm not certain that's what the Legislature intended, so maybe they'll be a fix, but at least for now, after today's decision, that'll be the rule going forward.)

So if you've got a case that's worth less than six figures, and are worried about the defendant filing an anti-SLAPP motion (and potentially recovering fees and/or delaying the case with an appeal), maybe limit your recovery to $25,000 and file a limited civil action.  That'll get you faster relief and avoid an anti-SLAPP motion.

Worth thinking about.

Wednesday, November 07, 2018

Guerrero v. California Dep't of Corrections (Cal. Ct. App. - Nov. 7, 2018)

Wow.

For some reason, I've never before commented on an opinion by Justice Streeter.  Or at least if I have, I've never mentioned him by name.  He's been on the Court of Appeal for almost four years now, so I'm certain I've read some of his opinions.  But for whatever reason, they've never stuck out to me -- or at least I never felt the need to call him out by name.

Today's opinion is different.  It definitely stuck out to me.

Because it's absolutely brilliant.

It's about something (1) that's incredibly complicated, and (2) about which I know fairly well -- the preclusive effect of a federal judgment on subsequent state court litigation, particularly when (as here) the federal court either cannot or declines to exercise jurisdiction over part of the claim (e.g., supplemental state law claims).  So I have a healthy respect for the subject matter, alongside high standards -- despite the indisputable difficulty of the task -- for any attempt to resolve the matter.

But Justice Streeter nails it.

It's not just that the opinion is a persuasive one.  It's more than it's just such an incredibly smart opinion.  Super smart.  Brilliant, even.  Cogent, in depth, sophisticated, nuanced.  All these things.  Everything you want in an opinion and more.

Sometimes -- rarely -- I see an opinion that I could never write in a million years.  Because it displays talents -- in writing, in style, in other things -- that I know I do not possess and never will.

This is not one of those.  Rather, this is precisely the type of opinion that I would always hope to write, even though the vast majority of times I would come short.  Even if I tried my hardest.  It's my style, and my mode of analysis, and precisely my type of sophistication.  At least what I'd strive for.  But Justice Streeter pulls it off in a way that puts most of my own efforts to shame.

An incredibly thoughtful, incredibly sophisticated, incredibly cogent opinion.

I'm profoundly jealous.  No joke.

Absolutely wonderful to see.

Tuesday, November 06, 2018

Murray v. BEJ Minerals (9th Cir. - Nov. 6, 2018)

Here's something that never in my wildest dreams did I previously think would be litigated in a federal court:

Are dinosaur fossils minerals?

It totally matters.  Because the dinosaur fossils found on this property are worth millions of dollars -- tens of millions, even.  And one owner of the land has the right to use the surface of the property and owns one-third of the rights to the "minerals" on the land, whereas another owner owns the right to two-thirds of the "minerals" on the land.

So are the fossils "minerals" or not?

What's funny is that no one disputes that the fossils are in fact minerals.  'Cause that's what fossils are.  Even "regular" bones mostly contain minerals -- and here, the fossils are either hydroxylapatite or francolite, both of which are minerals.

But when you sell (or maintain) your oil and "mineral" rights to a piece of property, that definitely covers gas, and gold, and copper, and the like.  But does it cover dinosaur fossils?

No one thought about the issue at the time.  'Cause no one knew there were fossils on the property.

So who owns the thing?

The district court said that "mineral" rights don't include fossils.  The Ninth Circuit reverses, in an opinion written by Judge Robreno (sitting by designation from Pennsylvania) -- and joined by Judge Smith -- to which Judge Murguia dissents.

I remember that during the first days of my Property class in law school we talked about who owned foxes and the like.  Maybe we can now add to that fascinating discussion whether the ownership of "mineral" rights includes fossils.

Probably not many cases on that.  But, today, we've got the leading one.

Check it out.

Monday, November 05, 2018

People v. Vera (Cal. Ct. App. - Nov. 5, 2018)

Mr. Vera's real complaint is that the officer who just so happened to be travelling with a drug-sniffing dog just so happened to stop him for "illegally tinted windows" as an excuse to search for drugs.  But unfortunately for Mr. Vera, the Supreme Court has allowed pretextual stops, so that argument doesn't work.

So Mr. Vera's attorney makes the argument that at least legally works -- that getting the drug-sniffing dog out of the car etc. unreasonably prolonged the stop.  The problem with this argument, however, isn't the law, but is instead the facts.  We're talking 30 or 90 seconds or so.  Time during which the other officer's busy writing the ticket.  That's not illegally prolonging the stop sufficient to compel the suppression of the evidence.

So those 4.5 kilos of methamphetamine that the dog smelled, and that hence the officers found, is coming in at trial.

Good job refusing consent to search.  But bad job having illegally tinted windows that allowed 'em to stop you in the first place.

Friday, November 02, 2018

U.S. v. Carter (9th Cir. - Nov. 2, 2018)

It's pretty important in a criminal case to have the victim actually testify in court.  I'm using the phrase "pretty important" as a deliberate understatement.  There's even part of our foundational document (the Constitution) -- we call it the Confrontation Clause -- that's devoted to the subject.

I understand that, sometimes, the world's not perfect.  If you've got a very good reason, maybe we can allow a critical witness to testify through a camera.  One-way, or two-way, or whatever.  So, here, in a particular case, maybe having the victim testify via a two-way video while she sits in Minnesota (the trial's in federal court in California) might perhaps be okay.

But when there's an readily available alternative -- just delay the trial for a couple of months, since the reason the victim can't testify in person is because she's seven months pregnant and says that her doctor doesn't want her to travel -- that doesn't count as "good cause" to do the thing on television.  Putting a guy away (as here) for forty years is a pretty big thing.  Let's try to get it right, shall we?  Even if that means doing a trial in July rather than April.

The Ninth Circuit, in an opinion by Judge Bybee, basically says the same thing.  Albeit in 26 pages instead of three paragraphs.


Thursday, November 01, 2018

Palmieri v. California State Personnel Bd. (Cal. Ct. App. - Oct. 31, 2018)

This opinion is yet another classic example of the Streisand Effect.  (Parenthetically:  How cool would it be to have something like that named after you.  I'm not sure that I'd want any particular thing to be called the "Martin Effect," but even if it were something bad, hey, as long as they spell your name correctly, right?)

Before reading this opinion, I had never heard of Pamela Palmieri.  She was just one of many attorneys hired by California to prosecute various disciplinary cases against prison guards.  She allegedly had some problems at her job, so California fired her.  She appealed her dismissal, the lower tribunals ultimately affirmed her dismissal, and she promptly took the thing to the Court of Appeal.

Prompting this opinion, which (1) affirms her dismissal, (2) requires her to pay court costs in favor of the California Board, and (3) issues a published opinion that explains to the world precisely what Ms. Palmieri did and why she was fired.

Not a great Halloween treat, to be sure.  At least for Ms. Palmieri.  (It's probably a treat for the Board, but that's a fairly amorphous body, not someone with actual feelings.)

I'll leave it you the reader to check out the opinion to learn the things that got Ms. Palmieri fired.  Suffice it to say that her nickname is probably not "Prompt Palmieri," at least when it comes to attending various court hearings and other things on time.  ("The OAH ALJ found Palmieri returned late “numerous” times “not just a few minutes late, but substantially longer.” He found her tardiness was “extreme.”)  A reader may also infer that she perhaps has some temper issues that she may want to work out in a more constructive fashion.  (On Friday, April 30, 2010, at 4:30 p.m., Palmieri severely abused a coworker (N.) in the personnel office. She began yelling about a mistake with the withholding in her paycheck, she swore, she pounded her fist, and called the employees “terrible.” When N. said she would look into the problem “Palmieri responded that [N.] should make it fast because she was parked at a meter.” N. found an error in Palmieri’s paycheck but did not return to the counter immediately because she was upset and crying. . . . N. “described Palmieri’s behavior as the most [abusive] and aggressive she has experienced in 15 years” in human resources. The OAH ALJ found Palmieri’s “screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel.”"

Plus there's that whole alleged "dishonesty" thing.  (Side note:  It's never good when an opinion about you in the Court of Appeal recites various bad facts about you and then adds a paragraph that begins with the sentence:  "And there was more.")  Culminating in a sentence that reads "We agree with Palmieri that some of her conduct, such as misleading a quasi-judicial officer, may well present grounds for the State Bar to investigate her."

Oopsies.  Not exactly something that you want to see in a published opinion.

So be careful what you wish for.  On the upside, the Court of Appeal definitely investigated your complaints and came to a conclusion.  Unfortunately for Ms. Palmieri (whose prior disciplinary record via the Bar can be seen here), the conclusion it reached was not exactly in her favor.

And it told the world in published opinion why.

Wednesday, October 31, 2018

Knox v. Brnovich (9th Cir. - Oct. 31, 2018)

Like a lot of states, Arizona allows early voting.  By mail and otherwise.  But also like a lot of states, you've got to personally mail (or otherwise return) your ballot yourself.  Other than a few specified exceptions (giving the ballot to family members, etc.), you're not allowed to give your ballot to someone else.  Even to mail the thing for you.

Today the Ninth Circuit decides that these restrictions are valid.  They're not preempted by federal laws that govern the Postal Service.  And they're not invalid under the First Amendment.  They're instead just fine, and survive.

You can see why we might not want others to possess your ballot.  Because we're principally worried that they might vote for you -- that you might just give 'em your ballot and have 'em vote it.  That's in part why we want to make sure you do these things personally.

Mind you, that concern only goes so far.  It's a good reason why someone else shouldn't possess your unvoted ballot.  And also why someone else shouldn't be able to change your voted ballot once you give it to 'em.

But, for me, there aren't especially powerful reasons why you can't give you voted ballot to someone else and have 'em mail it (or drop it off) for you.  It's still your vote.  It's still your ballot.  If someone is willing to save you a trip to the polling booth and drop off (or mail) your ballot for you, I don't see a good reason why they shouldn't be able to do it.  Or at least no good reason sufficient to outweigh our desire to help everyone vote and make the thing easy.

But if a state disagrees, today's opinion holds that the Constitution (and federal postal laws) are no bar.  The net effect might be -- and undoubtedly is -- to suppress a certain degree of voting, and to make the process harder than it otherwise would (and probably should) be.  But that's up to states.  Some can make it easy, some can make it hard -- as long as it's not too hard.  This doesn't fall into that latter category, nor does it infringe upon "free speech," so it's constitutional.

Parenthetically, I was in Arizona last weekend, and I gotta say I'm generally impressed with Arizona's efforts to get out the vote.  There are not only a ton of campaign signs -- much more than here in San Diego, at least -- but I also heard and saw tons of billboards, radio advertisements, and other efforts of a nonpartisan nature to encourage people to vote.  Great to see.  Particularly given that not all states see it the same way, and deliberately make it harder to vote as a means of ensuring a particular outcome (since the demographics of who doesn't vote when it's difficult to do so are quite known to the various participants in the state legislative process).

But if Arizona wants to make sure that people mail their ballots themselves, that's up to Arizona.  So holds the Ninth Circuit.

Monday, October 29, 2018

People v. Henry (Cal. Ct. App. - Oct. 29, 2018)

Usually, when one district in the Court of Appeal expressly disagrees with another district, the resulting split is a good candidate for review by the California Supreme Court.  Particularly when -- as in the present case -- the split involves a fact pattern that's fairly prevalent.

But this may be one of those rare cases when leaving things as they are may well be just fine.

Today's opinion says something that sounds pretty right (to me, at least).  If you do X, and there's a statute that expressly says that doing X is a misdeameanor, then you can't be charged with the more general felony Y -- even if what you did technically counts as a violation of Y.  'Cause the passage of X by the Legislature pretty much convincingly proves that they thought that the right penalty for doing X was to find you guilty of a misdemeanor.

To make things less theoretical and more concrete:  Here we're dealing with some who gave a false name to a police officer during a traffic stop.  That's the "X".  That's a misdemeanor.  Because there is a specific statute that says that doing that specific act ("X") is a misdemeanor offense.  But doing that same thing might also count as a felony -- as "false personation".  So that's what the prosecution charges the defendant with as well.

But the Court of Appeal says, nope, can't do that.  Specific statute trumps general.

The only problem with that (or at least the largest one) is that the's a prior Court of Appeal case that expressly goes the other way, and allows the greater ("Y") felony charge.  So the Court of Appeal today creates an intra-California split.  Something that we generally want the California Supreme Court to potentially review.  Particularly when the underlying act (e.g., giving a false name to a police officer) is something that doesn't just happen once in a blue moon.  We don't want what rule applies to depend exclusively on what particular panel you draw on appeal.  We generally want the same rule to apply statewide.

But even though that's the general principle, Justice Premo's opinion explains at some length that the contrary prior opinion in the Court of Appeal was decided a fair piece ago -- before some relevant California Supreme Court cases were decided.  Given that reality, if the California Supreme Court thinks that today's opinion probably got the merits right, you might just want to let the thing stand.  See whether trial courts (and other panels in the Court of Appeal) agree with the most recent case -- Justice Premo's -- and agree that the prior case is old, bad law.  If so, then the world is basically fine.  Everyone (at least in the modern era) agrees.  If not -- i.e., if a subsequent case thinks, contra Justice Premo, that the new case is wrong, and the old case is still right -- then grant review.  Over that one.

But let the issue percolate in the lower courts a bit more.  See what transpires.  Then act if and only if necessary.

That's what I'd probably do here.

If only because there's a decent chance that (1) Justice Premo is right, and (2) future courts will see it that way.  If so, no need for the California Supreme Court -- already super busy -- needs to step in.

Friday, October 26, 2018

People v. Saelee (Cal. Ct. App. - Oct. 26, 2018)

It's a testament to the volume and nature of Proposition 64 petitions -- which seek to reduce certain prior convictions to a misdemeanor -- that the Court of Appeal has a write a published opinion that says that when the prosecution attempts at the hearing to make a certain required showing (e.g., that the defendant will be dangerous if released), they've got to actually introduce evidence on that point.  Not merely argument of counsel.

You'd think that the proposition that "you need to introduce evidence at court hearings" would be a pretty basic one.  Intuitive, even.  Apparently not.

Lots of this evidence will be subject to judicial notice; prior convictions, etc.  But lots of it isn't.  In any event, you gotta at least try.  Not just merely say things and back 'em up with zip.

Good to know that parties have to introduce actual evidence in the future.  A pretty important concept in a judicial system.

Wednesday, October 24, 2018

MCI Communications Inc. v. California Dep't Tax Admin. (Cal. Ct. app. - Oct. 24, 2018)

This is an otherwise boring tax case, as well as one that reaches what seems to me a straightforward resolution of the thing.  So I'm not mentioning the opinion for that reason.

(In case you're wondering what it's actually about, here's Justice Guerrero's helpful synopsis:  "The California Sales and Use Tax Law (Rev. & Tax. Code, § 6001 et seq.) (SUTL) imposes sales and use taxes on retailers and purchasers for the sale, use, storage, or consumption of tangible personal property within California. Certain categories of property are excluded from the definition of tangible personal property and therefore are not subject to sales and use taxation. Under section 6016.5, one such category of excluded property includes "telephone and telegraph lines, electrical transmission and distribution lines, and the poles, towers, or conduit by which they are supported or in which they are contained." This appeal requires us to decide whether the tax exclusion in section 6016.5 extends to the pre-installation component parts that may one day be incorporated into completed telephone and telegraph systems. We hold that section 6016.5 excludes only fully installed and completed telephone and telegraph lines from sales and use taxation, not the pre-installation component parts of such lines. Accordingly, we affirm the judgment."  Seems exactly right to me.)

Instead, here's the sum total of my reaction to the case:

"Wait.  MCI's still around?!"

Those of us who grew up in a certain era -- post-breakup of AT&T but pre-cell phones -- remember the days when long distance was expensive (but not absurdly expensive) and a valuable commodity.  For kids, having to spend $20 a month (or whatever) on phone calls to long-distance girlfriends (or whatever) was no small expenditure.  So we -- or at least I -- shopped around, and one of the major players in the long distance industry was MCI.

But that was then.  I haven't heard of the company since then.  Apparently it was bought by WorldCom (another infamous company of a different era) and then bought by Verizon and substantially disappeared.  Seems like true long distance providers of the MCI type don't really even exist at this point.

But, so it seems, they live on as corporate shells.  Hence today's opinion involving taxation of MCI.

Who knew?!  A memorable relic from a bygone time.

Tuesday, October 23, 2018

U.S. v. Henderson (9th Cir. - Oct. 23, 2018)

The FBI is no slouch.

People use the Internet for a variety of things.  Those things include, inter alia, child pornography.  But the people into such things are generally aware that this is a crime.  So they typically go to great lengths to hide what they do.

So here, for example, there's a particular website that's only available on Tor.  The website address is the utterly nonmemorable upf45jv3bziuctml.onion.  Tor makes sure that your IP can't be traced.  And the website's presence on the "dark web" means you can do whatever you'd like on the thing.  Those things including viewing and sharing child pornography.

But, again, the FBI is no slouch.  They get wind of all this, so they (1) get a warrant to seize the servers of this particular website, and then (2) run the website themselves (!).  While doing the latter, the FBI then inserts a malicious code into the website that causes the computer of anyone who visits the thing to transmit its IP address (among other things) to the government.  No more anonymity, notwithstanding the whole "Tor" thing.  Then the FBI follows up on that by getting a warrant and searching the home of all the visitors to the "hidden" website.  Thus getting legions of evidence to prosecute the relevant visitors.

Brilliant.

The short lesson is never to assume, no matter how many precautions you take, that what you send over the Internet is secure.  The FBI has a long reach.

And are pretty darn sophisticated.

Monday, October 22, 2018

People v. Bedolla (Cal. Ct. App. - Oct. 22, 2018)

The typical opinion has some terrible, tragic facts and is depressing.  Yet today's opinion actually contains some degree of happiness.  It could have been a terrible thing.  But ends up being just a frightening event that hopefully the kid gets over.

Here are the facts:

"A.D., who was then 14 years old, rode his bicycle home from school on October 31, 2014, around 12:30 p.m. He entered the house, locked the door, and went upstairs to his room. He and his 11-year-old brother were the only people at home. About 10 minutes later, A.D. heard knocking at the front door. He ignored it but it became louder so he went downstairs and looked through the front door peephole. He saw a man, later identified as Bedolla, wearing a white t-shirt. A.D. did not know the man, so he returned upstairs and looked out the window for a better view. Another man, wearing a black hoodie, was pacing between the front walkway and the sidewalk. He appeared to be acting as a lookout. Meanwhile, the banging on the front door became louder, like kicking. A.D. heard more than 30 kicks and believed someone was trying to break in. He called his father who told him to call 911.

A City of San Jose police officer arrived at the scene within 30 to 45 seconds of the emergency call. Two men were standing in the driveway of A.D.’s house. They took off running. The officer intercepted them and detained them at gunpoint. One suspect, later identified as Joseph Mariscal, was wearing a black jacket with a gray hoodie. The other, identified as Bedolla, was wearing a white t-shirt. Officers brought Bedolla and Mariscal to the sidewalk in front of A.D.’s house for an in-field identification. A.D. identified them from the upstairs window as the individuals he had seen outside his house.

The front door of A.D.’s house was closed when the officers arrived and was visibly damaged. There was white debris on the door mat and splinters from the door, which was “almost partially open.” The damage was consistent with other burglaries in which the front door had been kicked in. Shoe prints on the door matched the shoes worn by Mariscal."

You gotta love that the San Jose police officer arrived within 30 to 45 seconds after the 911 call.  An event that made all the difference here.

The defendant, Mr. Bedolla, ends up essentially getting sentenced to time served -- the 215 days he was in jail before trial (since he couldn't bond out).  Plus three years of probation.  So not a huge penalty.

Though this is not Mr. Bedolla's first run-in with the criminal justice system.  (Though he's also far from a hardened criminal.  Yet.)  We'll see whether we run into his name again in some future case.

Hopefully not.

In the meantime, let's all be thankful for the 30- to 45-second response time here.

Thursday, October 18, 2018

Pagnini v. Union Bank (Cal. Ct. App. - Nov. 17, 2018)

"In September 2014, appellant filed the present action against respondents, alleging wrongful foreclosure and related causes of action arising from a July 2012 trustee’s sale of appellant’s real property. In May 2016, respondents demurred to all causes of action in appellant’s complaint. On June 10, respondents filed a notice of non-receipt of opposition to the demurrer. On July 13, the trial court sustained the demurrer without leave to amend and entered judgment in favor of respondents.

On January 12, 2017, almost six months after entry of the judgment, appellant moved for relief from the judgment under Section 473(b). He submitted a sworn declaration from his counsel in which counsel averred he attempted to file an amended complaint on June 14, 2016, shortly before the June 16 hearing on the demurrer. The court clerk declined to file the amended complaint because the statute allowing the filing of an amended complaint pending a hearing on a demurrer (§ 472) had been amended effective January 1, 2016, to require that an amended complaint be filed within the time provided for filing opposition to the demurrer (Stats. 2015, ch. 418, § 2). Appellant’s counsel averred that he was not aware of the amendment to the statute, which previously permitted the filing of an amended complaint at any point before the hearing."

Whoops.  That's, inter alia, why it's a good idea to keep up with recent legislation and cases.

Ultimately the Court of Appeal grants the plaintiff mandatory Section 473 relief.  But you've still got all the work, hassle, and embarrassment of having to file all that stuff.

Better not to make the mistake in the first place.  Obviously.

Wednesday, October 17, 2018

E.V. v. Robinson (9th Cir. - Oct. 17, 2018)

Victim says that she was sexually assaulted by Defendant, but Defendant says it's not true.  Victim has some mental health records that Defendant wants to inspect in order to establish his defense. These records are generally privileged, but Victim waived this privilege with respect to at least two pages by including them as part of a request to her employer to be transferred.  Plus Defendant says that disclosure is constitutionally compelled anyway (since he has a right to a defense) and, also, that the crime-fraud exception to the privilege applies because Victim went to the doctor to advance a fraudulent claim against Defendant in order to help her transfer request.

Judge reviews the documents in camera and decides to produce two pages.  Judge subsequently orders other pages produced on, inter alia, crime-fraud grounds.  Victim files an appeal, but the appellate court doesn't provide any relief.

Defendant is subsequently acquitted at trial.

You'd think that what's described above is all a description of a regular old federal criminal appeal.  But it's not.  It's instead prelude to a civil lawsuit by Victim against Judge.

The Ninth Circuit's opinion (by Judge Paez) contains 32 single-spaced pages of exhaustive -- and exhausting -- detail about the intricacies of sovereign immunity.  Made even more complex by the fact that the judge here isn't an Article III judge, but is instead a military judge.  All of what went down here transpired overseas, at a military base in Japan.

It's nonetheless fairly accurate to summarize the opinion fairly succinctly.  You can't sue a judge.  They're generally immune.  They surely make mistakes sometimes.  But unless there's something truly extraordinary, if they make a wrong evidentiary call, that's the subject of an appeal.  Not a separate civil lawsuit like the one here.

Judge Paez says basically the same thing, albeit with 32 single-spaced pages of additional detail.

Tuesday, October 16, 2018

People v. Yushchuk (Cal. Ct. App. - Oct. 12, 2018)

Nothing published in the Ninth Circuit or the California Court of Appeal today, so we're on our own vis-a-vis reading material.

So I thought I'd at least mention this opinion from Friday.  It's a worthwhile life lesson.

Because, yes, you can come up with an argument that you weren't actually drunk when the car you were driving hit and killed someone else, and that instead, you pounded that bottle of vodka after the collision while you were trapped in the car and in pain.  Maybe someone might believe that.

But when, as here you've got five prior drunk driving convictions, don't at all be surprised if the jury doesn't buy your story.  And instead, as here, convicts you of second degree murder.  Which in turn sends you away to prison for a long, long time.

Maybe think about that before you get in your car drunk.

Monday, October 15, 2018

Smith v. Superior Court (Cal. Superior Ct. App. Div. - Oct. 15, 2018)

You can summarize this opinion fairly easily:

Give the guy back his weed.

It's not illegal under state law, so the state can't keep (or destroy) it if he's not charged with a crime.  The fact that it's still illegal under federal law doesn't matter.

So that's 21 grams back to Mr. Smith.

P.S. - Fun fact:  You could always tell the law students with misspent youths because they were able to convert grams into ounces in their head.  I'm thinking of a former roommate in particular.  Whereas most of us have to look it up to discover that 21 grams is around three quarters of an ounce.  (Though knowing just how much an ounce of marijuana entails may itself demonstrate some prior knowledge of the subject matter.)

U.S. v. Sellers (9th Cir. - Oct. 15, 2018)

Interesting lineup in this case.  Which is the only one published by the Ninth Circuit today.

Everyone's skeptical of reverse sting stash house cases.  Everyone.  Those cases are ones in which the government recruits someone (typically, a criminal) to convince a group of other criminals (the future defendants) to raid a fake stash house and steal some drugs from some other fake criminals.  There's no real stash house, no real drugs, and no other real criminals.  But the theory is that it makes people less hesitant -- in other circumstances -- to steal from actual stash houses since there's at least some chance that they're simply being set up by the government.

No one on the panel especially likes those cases.  They disproportionately target minorities.  They "set up" crimes that wouldn't otherwise happen.  Lots of other reasons as well.  All of which are explored at length in the various opinions.

But the different panel members nonetheless have different takes.

Judge Reinhardt was originally on the panel, but died three weeks after the oral argument.  Just from knowing the guy, you've got a pretty good sense of where he almost certainly stood on this stuff.  To the left, for sure.  No doubt.

Judge Nguyen writes the majority opinion.  Plus she writes a lengthy concurrence to her own opinion.  She's crystal clear on where she stands as well.  Doesn't like these kinds of cases.  For a plethora of reasons.  Her majority opinion makes it clear that it's hard to bring selective enforcement claims in these types of cases -- claims that argue that minorities are unfairly targeted -- but follows opinions from the Third and Seventh Circuits that says that the correct standard for permissible discovery over such claims is different from the Ninth Circuit's standard for bringing selective prosecution claims, so remands for application of the correct test.  Sounds right to me.

Judge Graber dissents.  She was drawn to replace Judge Reinhardt.  She doesn't say that Judge Nguyen's necessarily wrong that a different standard applies -- though she doesn't say she's right, either.  Judge Graber simply doesn't want to decide the issue one way or another, arguing that the defendant's evidence in the present case indisputably doesn't satisfy any standard since it only consists of statistics, which Judge Graber believes are categorically "irrelevant" under controlling Supreme Court precedent.

Personally, I'm not sure what harm it does to reverse and remand for application of the correct legal standard.  Even if, on remand, the defendant's statistics may not be sufficient to meet the new test.

But Judge Graber thinks we're deciding something that we don't need to decide.  Ergo the dissent.

The subtext of Judge Graber's argument is essentially that there's no way that a defendant will ever be able to prove selective enforcement/prosecution.  Which, as a practical matter, may be correct.  If you take the view that statistics are entirely irrelevant, short of the government putting pen to paper and saying "Make sure you target minorities for these sorts of things" -- which ain't gonna happen -- you are pretty much always going to come up short.  No proof, and probably no discovery even either.

But Judge Nguyen thinks it still makes sense to articulate the correct standard, and let the district court decide whether that standard is met here.  That is how we usually -- but by no means always -- do things in the Court of Appeals.

Just a little fight here about which type of adjudication is most appropriate in the present case. 

Thursday, October 11, 2018

U.S. v. Gonzalez (9th Cir. - Oct. 10, 2018)

Things you never thought you'd have to actually say:

Don't beat a shackled prisoner.

Wednesday, October 10, 2018

Doe v. Regents (Cal. Ct. App. - Oct. 9, 2018)

I know we're still fresh off the Judge (now Justice) Kavanaugh stuff, and nerves of some on this issue may well still be raw.

But ponder for a moment what you thought of the allegations in that matter.  Then read this opinion.  About sexual assault allegations against a particular UCSB student.

Foreshadowing:  The Court of Appeal says that there was not "even a semblance of due process" in UCSB's decision to suspend the student for two years.

Whatchathink?

People v. Guiterrez (Cal. Ct. App. - Oct. 10, 2018)

I initially thought that this was a case the California Supreme Court might want to take up, but as I get older -- it's now a couple hours since I read it -- I'm starting to think otherwise.  Maybe this is instead one of those rare cases where the Court of Appeal refuses to follow what a higher tribunal has said and yet we should actually let the thing stand.

Justice Ramirez explains at length why the defendant here was permissibly impeached by the facts of his prior felony conviction; namely, the fact that he had previously been convicted of driving a stolen vehicle.  That was relevant to impeach his testimony, in his present trial for carjacking, that the only thing he did was "ask" the purported victim to borrow his car.  You can be impeached by a prior felony conviction, after all.

But there's one big problem with this holding:  a California Supreme Court case that's not even two years old that squarely says:  "Under California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense. [Citations.]”  People v. Casares (2016) 62 Cal.4th 808, 830.  Under that principle, you're not allowed to adduce the facts; only the conviction itself.  Directly contrary to the Court of Appeal's holding here.

Justice Ramirez says that statement in Casares was dicta.  And that's perhaps right.  Nonetheless, we regularly follow dicta from the Supreme Court.  Because when the Supreme Court says that the law is X, rarely does the Court of Appeal properly hold that that law is actually Y, not X.  So it's a bold move to say that the California Supreme Court said something that was (1) wrong, that (2) we're going to refuse to follow it because it's dicta.  To be clear:  The Court of Appeal has the power to do that, if it's indeed dicta.  But my general view in such cases is that the California Supreme Court will likely want to grant review in such cases.  And either (1) make it clear that the law is indeed X, not Y, and that the Court of Appeal was wrong -- and the California Supreme Court right -- in a new holding that is unambiguously not dicta, or (2) admit that it made a mistake and in fact change the law.  That way, other lower court tribunals won't be led astray by the relevant dicta, which the Supreme Court will (upon granting review) now have an opportunity to clarify.

That was my initial thought about this case.  That Judge Ramirez may well be right.  But that the California Supreme Court should nonetheless grant review.  Because it's for that tribunal to say that the Supreme Court got it wrong, not the Court of Appeal.

I still somewhat hold to that view.  Somewhat.

But upon reflection, maybe it might also be fine just to leave things be.

The prior California Supreme Court case did indeed say what it said.  And Judge Ramirez does a good job explaining why that statement is purportedly wrong.  At least these days.  Maybe back in the old days you couldn't adduce the underlying facts of the conviction, and maybe in that case the facts were irrelevant, but the law changed over time, and in this case, arguably, the underlying facts of the conviction are indeed relevant.  Also, although Justice Ramirez doesn't have the heart to say so, the stark reality is that the statement from Casares at issue was not only probably dicta, but it was also buried deep in a hugely lengthy death penalty case -- a tiny little subissue of a larger whole.  If the author of that opinion (Justice Werdegar)

Tuesday, October 09, 2018

Doe v. University of So. Cal. (Cal. Ct. App. - Oct. 9, 2018)

Justice Perluss is exactly right in today's opinion.  Not a single word or idea is wrong, in my view.

Indeed, I'll go even further than he did.

Not only is there "substantial evidence" that "John Doe" cheated on the exam -- which is the relevant legal standard at issue -- but in my view, John Doe did indeed pretty clearly cheat.

Of course, I know nothing more than what's in the opinion.  But given the evidence below, I'd be a ton of money that, yeah, Doe helped "Student B" cheat.  Here's how the Court of Appeal summarizes that evidence:

"Doe and Student B sat next to each other and had the same version of the multiple choice examination although two versions with shuffled questions were usually distributed in a manner intended to ensure that adjacent students would receive different versions. Doe’s and Student B’s Scantron® answer sheets had identical answers for 46 of the 50 questions, the greatest number of identical answers of all 8,002 pairs of students who took the same version of the examination. Both Doe and Student B wrote proposed answers in large letters in the left margin of the examination booklets that would have been visible to the student seated next to each of them; Student B had written proposed answers for all 50 questions; Doe for 33 questions. Comparison of the proposed answers to the students’ Scantron® answers indicated a pattern of sharing answers: On all but one question where Doe wrote a proposed answer in the margin, Student B filled in the Scantron® with that answer. Only two of Doe’s answers on his Scantron® sheet differed from Student B’s proposed answers for those questions for which Doe did not write a proposed answer in the margin. Student B outperformed his historical average (a “C”) by answering 40 of the questions correctly; Doe maintained his performance level, answering 42 questions correctly."

Sure, Doe and Student B asserted an ostensible reason for writing in big letters (!) their proposed answers -- that way, they could "go back" and "check" them.  But not only could someone reasonable nonetheless conclude that they had instead cheated, but that's in fact exactly what I believe.  And I've given plenty of exams, and had plenty of students circle or write things next to the questions.  Very big writing, such that the person next to you can read it, is very different than what you normally see on exams.

There's additional (and more detailed) evidence later on in the opinion that supports this conclusion.  For example, this wasn't Doe's first sanction for alleged cheating:  "During the fall 2014 semester Doe had received a zero on a chemistry assignment after he submitted a lab report that used another student’s data and calculations. After initially denying the misconduct, Doe eventually signed a form acknowledging his actions had violated the Student Conduct Code."  Doe also stated that he and Student B hadn't studied together, whereas Student B said otherwise.

Then there are the answers to particular questions.  "Doe wrote a single letter in the margin for 29 questions; Student B marked 28 of his answers to those questions, all but number 10, with the same letter. On question 10, Doe wrote a “D” in the margin of his examination booklet; Student B wrote a large “C” in his margin; both Doe and Student B marked “C” on their Scantron® answer sheets."  Plus, "Significantly, for at least six questions Doe and Student B marked the same incorrect answer."

Pretty persuasive evidence, in my view.  Fully justifying the sanction that USC imposed -- an F in the class and a two-semester suspension.

Nonetheless, the practical significance of today's opinion is difficult to gauge.  The lower court told USC to give Doe his diploma, and the Court of Appeal didn't impose a stay.  So Doe not only has his diploma -- and it's now been years since he graduated -- and Doe said he was going to go to medical school, so I imagine he might be there already at this point.  The Court of Appeal remands the case to USC to decide what to do given the circumstances, and I suspect that USC may indeed make the guy retake the class in order to graduate (since it was a prerequisite for his major).  But from a practical perspective, if the guy's already in medical school, that's not like it's going to change things much.  Not of much real world significance.

Nonetheless, the Court of Appeal gets it right.  Clearly right, in my view.

Don't cheat.  Don't help others cheat.  A good principle to follow.

Particularly before medical school.

Monday, October 08, 2018

Ruiz v. Musclewood Inv. Prop. (Cal. Ct. App. - Oct. 5, 2018)

Columbus Day today.  Nothing from the Ninth Circuit today or Friday.  Nothing from the California Court of Appeal today, and only one published opinion on Friday.  Tough to do a blog on days the courts aren't publishing much.  I guess everyone was preoccupied with the Kavanaugh fight.  One that's over now.  So I expect to see a lot from the judiciary in California tomorrow.  Right?

Meanwhile, the single opinion published on Friday is an unusual fact pattern.  More accurately, it's a very common fact pattern.  But unusual that it gives rise to a lawsuit.

It's about a dog.  Not a dog bite; that'd be too easy.  But a dog -- a guard dog, in this case -- that barks at pedestrians and (allegedly) sometimes runs out of hassles them.

That presumably happens a lot.  Doesn't typically lead to a lawsuit.  More typically thought of as something merely rude and inconsiderate.

But in this case, not only does the dog hassle pedestrians, but it hassles one particular pedestrian -- a blind pedestrian -- as well as that pedestrian's guide dog.  So he sues.  Claiming a violation of the California Disabled Person's Act.  Which expressly says that blind people have the same rights as everyone else to use sidewalks etc.

The trial court thought there wasn't a violation because the dog admittedly hassled everyone, the blind and non-blind alike.  But the Court of Appeal reverses.  Justice Kim goes through the words of the statute and says that the plaintiff's claim properly asserts that he was denied the "enjoyment" of the sidewalk because his guide dog was hassled and distracted.  End of story.






Thursday, October 04, 2018

Hawkins v. Kroeger (9th Cir. - Oct. 4, 2018)

The FDA says that on the "Nutrition Label" that's attached to food packaging, you've got to round down.  So if there's less than 0.5 grams of trans fat, you put "0" grams in the box.  Okay.

But the Ninth Circuit says it might still violate California false advertising law to thereafter say "No Trans Fat" on the packaging -- outside the box -- when the food does indeed contain trans fat.

Fair enough as well.  No preemption, since it's (literally) outside the box.

The strangest thing out this opinion is timing.  It's a lawsuit that was filed in 2015 and resolved on a 12(b)(6) motion.  You wouldn't necessarily think it'd take three-plus years to get dismissed and then finished in the Ninth Circuit.  Yet it does.

Justice grinds relatively slowly sometimes.

Wednesday, October 03, 2018

Martinez v. EatLite One (Cal. Ct. App. - Oct. 3, 2018)

What's weird about this opinion is that I thought this was already totally obvious.  Indeed, I teach the same thing to the law students in my Pretrial Practice class, and never thought for a second that there was any dispute at all about it.  Yet here you have a trial court holding otherwise.

Okay.  Guess it's not so clear after all.

Though ultimately, the Court of Appeal's opinion seems spot on.  So at least it's clear now.

It's a pretty simple fact pattern.  Plaintiff sues for discrimination.  Defendant makes a 998 offer for $12,001.  The offer's silent on costs and fees, which automatically means they're added to the offer.  (In other words, if Plaintiff accepts, she gets $12,001 plus her recoverable costs and fees.)

Plaintiff doesn't accept, and the case goes to trial, at which the jury awards her $11,490.  Less than the $12,001 offer.

Leading to a flurry of competing cost and fee motions.

The trial court thought that the $12,001 offer was LESS than the $11,490 award because Plaintiff was entitled to costs and fees in addition to the jury's award.  But the Court of Appeal rightly sorts things out in a way that's consistent with how I've always thought (correctly, as it turns out) you calculate these things.  (Mind you, the Court of Appeal's way of explaining this is slightly different than how I teach it to my students, but the essential substantive attributes are the same.)

Here's the deal:  Defendant offered (essentially) $12,001 plus costs and fees.  Plaintiff didn't do better than that at trial; she only got $11,490 plus costs and fees.  Essentially, she should have taken the 998 offer.  You just have to compare the $12,001 to the $11,490, since Plaintiff's pre-offer costs and fees are recoverable under both.  Since the $11,490 award is smaller than the $12,001 offer, Plaintiff is subject to cost-shifting even though she's the "prevailing party" at trial (since he didn't "prevail" as contrasted to the 998 offer).

So we give her (1) the jury's award -- $11,490, (2) plus her pre-998 offer costs and fees (since she was forced to incur and hence should recover those whether she accepted the 998 offer or not), but (3) don't give her any post-998 offer costs and fees (since she should have accepted the offer), and (4) give the Defendant its post-offer costs (since it should have never had to incur those since Plaintiff should have accepted the better 998 offer) and, in the court's discretion, any post-offer expert fees.

Exactly right.  Exactly as the Court of Appeal holds.

Justice Ikola suggests at the end of this opinion that "Having reached this disposition, we nonetheless believe the bench and bar would be well served if the Legislature amended section 998 to clarify how costs and fees should be addressed in a 998 offer."  Not as far as I'm concerned.  Wouldn't hurt, of course.  But today's opinion -- and what some of us already teach our law students anyway -- already seems pretty darn clear to me.  Let the Legislature deal with bigger fish.  The thing seems fairly well settled already in my book.

If only as a result of today's opinion.  Which, I think, reaffirmed what most of us -- though, admittedly, not the trial court below -- already knew.

In Re EasySaver Rewards Program (9th Cir. - Oct. 3, 2018)

There were no published Ninth Circuit opinions yesterday.  But there was definitely one today that piqued my interest:  Whether the district court properly approved a class action settlement that will result in a $3 million cy pres award "to San Diego State University, the University of California at San Diego, and the University of San Diego School of Law 'for a chair, professorship, fellowship, lectureship, seminar series or similar funding, gift, or donation program . . . regarding internet privacy or internet data security.'”

To be clear:  That money isn't going to me.  My field isn't internet privacy and data security.

But that multi-million dollar award still hits awfully close to home.

Fortunately -- for people around me, at least -- the Ninth Circuit affirms that cy pres portion of the settlement.  Even as it vacates and remands other parts of the settlement, which gave a $20 credit (which the Ninth Circuit viewed as a "coupon" under CAFA) to various class members to buy other products from the defendants' website.

Judge Friedland gives some helpful insight into the nature of both fee awards in "coupon" cases as well as the permissibility of particular cy pres awards.  Required reading for any class action counsel in the Ninth Circuit.

Or even just anyone who want to see how these things work.


Monday, October 01, 2018

Skidmore v. Led Zeppelin (9th Cir. - Sept. 28, 2018)

I did not know that there was a dispute about whether Led Zeppelin ripped off "Stairway to Heaven" from a different artist.  Apparently there is.  And, after this opinion, it's a dispute that's about to go to trial.  Again.  The first jury decided in favor of Led Zeppelin.  But various errors at trial require a remand.

So Round II will presumably commence in 2019.

As someone who became of age in the '80s, the origin of "Stairway to Heaven" matters to me.  It was a song often played at the end of early '80s high school dances.  I remember it well.  Fondly, even.

This may explain why I cared enough to listen to the original song -- Taurus, by Spirit -- to come to my own conclusion about whether the first jury's conclusion seemed right.  I think it's fairly clear from the evidence at trial that Led Zeppelin had access to "Taurus," and the Ninth Circuit seems right to me that this is pretty relevant on retrial.  And the notes beginning at the 48 second mark (or so) of Taurus are indeed chillingly similar to Stairway to Heaven, as are some later notes.

But if you read the comments to the Spirit song -- all 11,381 of them (!) -- maybe the first jury got it right that those few notes are fairly common.  Not sure.

In the end, the district court seems to have gotten it right by sending the case to the jury, and if a jury says it infringes (or doesn't), okay.  Either conclusion seems reasonable.  That's why we have juries.

And the next time, they'll be instructed accurately.

I agreed with the Ninth Circuit on two ancillary points as well.  First, come on, play the song for the jury.  It may well be only the "sheet music" that's protected by the relevant statute, but when Jimmy Page gets cross-examined, the jury should hear the song.  Glad that'll happen on remand.

Second, the strict time limit of 10 hours for trial per side (per Judge Klausner) is silly.  Glad the Ninth Circuit was skeptical of that as well.  This is a big deal.  Ostensible "efficiency" has its costs.  There's no need for the trial to take five weeks.  But 10 hours is silly.  Get reasonable.

In the end, I like the Spirit song.  Wouldn't have otherwise known about it.

But I like "Stairway of Heaven" more.  If only for sentimental reasons.

In re Marriage of Morton (Cal. Ct. App. - Sept. 26, 2018)

I generally don't all that much like opinions that look as if they're unedited bench memos from the clerks or staff attorneys.  You know the type of the things I'm talking about.  Opinions that are very highly structured, introduce the standards and contentions in an artificial manner, etc.  I'll admit that I can't authoritatively define the characteristics of what I'll call bench-memos-quickly-turned-into-published-opinions in detail.  But I definitely know 'em when I see 'em.

That said, I gotta admit, if I was the judge, and had to go through every little picayune contention in this child-and-spousal-support case and anything like the resulting 61-page opinion, I might well be driven to drink.  Or worse.

So I'll similarly excuse anyone from just making some edits to the thing and sending it out.  As well as praise the people in chambers who actually struggled through the thing to craft all 61 pages.  There are things in life that are fun, but that's not one of 'em.

For similar reasons, I'll overlook -- but briefly mention -- the "track changes" edit that was erroneously left in on page 49.  Sure, it's a strikeout, and even in red.  You should probably have caught that before hitting the "publish" button.

But I bet your eyes started go glaze over at around page 40 as you edited the thing for the third or fourth time.  Maybe not surprising that you missed the little red struck-out "d".

Better than drinking.


Thursday, September 27, 2018

Atwell v. City of Ronert Park (Cal. Ct. App. - Sept. 26, 2018)

The Sierra Club files a writ to stop a Wal-Mart store, and loses.  Nancy Atwell thereafter files a writ to stop the same store, on similar grounds.  Ms. Atwell wasn't a party to the first lawsuit, didn't at any level participate in the first suit, and isn't even a member of the Sierra Club.

Is Ms. Atwell's lawsuit barred by claim preclusion ("res judicata")?  Is she deemed to be in privity with the Sierra Club such that she was "deemed" to be a party to the first lawsuit even though she wasn't?

The Court of Appeal says yes.

That may perhaps -- perhaps -- the right correct normative result.  It may also well be supported by precedent in the California Court of Appeal, which has previously done some similar things.

But I gotta tell you, this is way beyond what the Supreme Court has ever done -- or even come close to doing -- and quite squarely departs from the traditional constraints that the Due Process Clause has been held to place on the extension of state law claim preclusion.

More specifically, I don't see how this result is at all consistent with the Supreme Court's opinion in Taylor v. Sturgell.  If the Court of Appeal is correct in Atwell, then Taylor should have come out the same way, or identical reasons.  But not only didn't it, but the Supreme Court in Taylor rejected the precise arguments that the Court of Appeal finds persuasive in Atwell.

The Supreme Court case, like the California case, involved duplicative "public interest" suits -- in Taylor, a FOIA request, and in Atwell, a writ petition challenging a EIR.  In both cases, someone files the first lawsuit in the public interest (to get the documents published or stop the Wal-Mart), loses, and then someone else files a similar suit.  The Court of Appeal says that the second suit is barred by claim preclusion because the first party was the "virtual representative" of the second party and adequately protected her interests.  But the Supreme Court spent pages expressly rejecting this theory and explaining why it didn't work.  I won't bore you with the details, but suffice it to say that there's absolutely NO WAY the Supreme Court that decided Taylor would find at all plausible either the reasoning or the result of the California Court of Appeal in Atwell.  The cases are not in any way distinguishable.  The result's gotta be the same.  But it's not.

What does the Court of Appeal say about this?  Nothing.  The opinion never mentions the Supreme Court's opinion in Taylor nor attempts to distinguish it.  Which perhaps is understandable, since my quick review of the briefs in the case suggests that none of 'em mention or cite the thing.

But it's nonetheless a freakishly important case.  Pretty much on all fours.  I think you gotta say something about it.  Even if the parties don't.

Now, is the California judiciary required to adopt the exact same res judicata principles as the federal courts?  No.  They can do something different.

With this critical caveat.  The extent to which you can bind a nonparty -- like Ms. Atwell -- is most definitely a federal issue on which federal law controls.  Since the Due Process Clause constrains it.  So California may not have to allow nonparty claim preclusion to the same degree as the federal system (e.g., the mutuality of estoppel rules don't need to be the same).  But California still can't expand nonparty issue preclusion via "virtual representation" (as it does here) in a manner that violates the federal Due Process Clause.  That's a matter of federal law.  And on that point, we know fairly well the Supreme Court's thoughts.  'Cause they told us about 'em at length in Taylor.  A case that squarely rejects pretty much every single doctrinal and policy-based principle on which Atwell relies.

So I think the Court of Appeal needs to take a long, hard look at the Supreme Court's opinion in Taylor here.  This opinion was originally unpublished.  Maybe it should stay that way.  Or, at a minimum, explain why it comes out 180 degrees differently than the opinion of the United States Supreme Court.  An opinion that's unanimous, no less.

No small feat.