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.


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.

Wednesday, September 26, 2018

SEC v. Schooler (9th Cir. - Sept. 26, 2018)

Nothing's certain but death and taxes, right?

Or is it?

Today's a day that reminds us of our eventual mortality.  The first of two opinions from the Ninth Circuit today involved a plaintiff from San Diego whose father (I noticed while researching some ancillary stuff about the opinion) appears to have died during the pendency of the appeal.  Too bad for the plaintiff, who argued the case in the Ninth Circuit himself -- partially successfully, I might add.

The second of these opinions expressly involves mortality.  It's an appeal by the defendant of an SEC judgment entered against him.  But as the Ninth Circuit explains, the defendant "Louis Schooler died during the pendency of the appeal."  As a result, portions of that judgment (e.g., the civil penalty) are getting abated.  (Though the rest of the judgment is affirmed against Mr. Schooler's estate.)  That's the rule about what happens when a defendant in these sorts of suits dies.

As I read the opinion, perhaps morbidly, I wondered how the defendant died.  Seemed coincidental to die shortly after getting spanked for a huge judgment in an SEC action that found that you operated an illegal investment scheme.  So I wondered if Mr. Schooler might have perhaps committed suicide.  So checked out Mr. Google to find out.

The first thing I read was about Mr. Schooler's sister being disbarred for misdeeds involving the family estate.  That was interesting.  Trouble involving several members of the family, not just the dead one.

Then I investigated further, about Mr. Schooler himself.  And found out that there's a distinct chance that -- unlike what the Ninth Circuit reports -- Mr. Schooler is not in fact dead.

Now, MAYBE he's dead.  He gets spanked with a huge SEC judgment, then he apparently goes on a 3500-mile sailing expedition from California to Tahiti.  Solo.  But never shows up.  Eventually, after some reportedly "curious, if not downright suspicious" events involving radio transmissions in the wrong place and turning off navigation lights, the boat shows up shipwrecked on an atoll in French Polynesia.  With no Schooler on board.  Alive, anyway.  The French Polynesian police who spot the shipwreck think they see a dead body on the thing, but can't immediately get to it.  Then the next day, when they actually go to the boat, the body's gone.

Washed out to sea?  Mr. Schooler?  Maybe.  That's the supposition, anyway.

On that basis, back in the district court, Schooler's attorney "suggests" that Mr. Schooler is dead.  But Judge Curiel at least initially isn't entirely convinced, as this Order amply reflects.  There's no actual body, and maybe there's a local death certificate (in French but "translated by Google"), but we don't know for sure what actually transpired.  I'm not vouching for this at all, but here's one comment from November that reflects one particular view (from this source):  "I was one of his victims and, to date, I don't believe a body has been found.  I'm pretty sure that the scumbag faked his own death and is sipping on a margarita somewhere."

The point is simply this:  Maybe he's in fact dead.  Maybe.  (Maybe the guy's body was eventually found.  Though my brief research hasn't found anything saying so.)

But the reality seems a lot more murky to me than the facially straightforward conclusion in today's opinion that "Louis Schooler died during the pendency of the appeal."  'Cause he definitely might have.  The operative term being "might".

Tuesday, September 25, 2018

Sumner v. Simpson University (Cal. Ct. App. - Sept. 25, 2018)

If you want to learn all about the common law "ministerial exception" that bars various claims made against religious organizations, Justice Blease's opinion today is a great starting point.

This particular case involves the former dean of a theological seminary in northern California who alleges that she was wrongfully fired from her position.  In the end, the Court of Appeal allows her contract claim to go forward, but dismisses her tort claims on the basis of the ministerial exception.

It's interesting to see how the courts treat various "self-contained" entities -- e.g., churches, Indian tribes, etc. -- in civil society.  You've got to balance the need for sovereignty and non-interference with the protection of individual rights and liberties.  Tough to do.

Anyway, super informative opinion.  Worth a read.

Monday, September 24, 2018

People v. Fews (Cal. Ct. App. - Sept. 24, 2018)

The stuff about the Terry stop in the first portion of today's opinion seems right to me.  I'm not sure there was much that I can individually put my finger on to say that it was X or Y that alone made me think that the occupants of the vehicle were likely to be up to no good in some fashion.  Yet like the Court of Appeal (and the trial court), there was nonetheless something that seemed distinctly wrong about a vehicle in the Tenderloin suddenly pulling over when the police pull behind it, with the driver then immediately hopping out of the vehicle and refusing to get back in when the police told him to, all the while smelling of marijuana and having the occupants of the vehicle make repeated furtive movements throughout.

Something just doesn't seem right about that.  So much so that I'm okay with the officers doing a Terry stop-and-frisk for their own protection.  And when that frisk discovers a loaded firearm in the front jacket pocket of the passenger; well, to be honest, I'm just not all that surprised.  Which is why I'd have allowed the stop-and-frisk in the first place.  Officer safety.

Now, the second part of the opinion, by contrast, seems unnecessary and less self-evident.  The Court of Appeals volunteers that even if the stop-and-frisk wasn't okay, a search of the automobile would still have been fine given the existence of marijuana.  I know that there are other opinions that say a similar thing, but I see no reason to reach that point given Part I.  And, as I said, it's a lot closer.  Yes, marijuana is only a "little" legal in California -- there are a lot of limitations, and you can still be busted for various things.  But I think it's a tough question how far the police are able to go when all they have on you is that you're carrying a personal amount of weed, which may well be -- and in the vast majority of case, is (I suspect) -- legal under California law.  At some point, it seems to me that for probable cause purposes, we're likely to view weed the same way we view, say, opiods.  Sure, it's possible that a guy carrying valium is doing something illegal, since it might not be his prescription, he might illegally be dealing, he might illegally be carrying a carload of the stuff, etc.  But if all you know about the guy is that he's got three or four pills, standing alone, I'm not sure that's probable cause of a crime sufficient to permit you to inventory the vehicle, arrest the guy, etc.  So given that eventual (and/or current) reality, I see no need to wax poetic about a topic that even the Court of Appeal admits isn't raised by the present case, in which the stop-and-frisk was just fine.

Some times it just makes sense to leave well enough alone.  This seems like one of those times to me.

Wednesday, September 19, 2018

C.J.L.G. v. Sessions (9th Cir. - Sept. 19, 2018)

As I said back in January, the petitioner here is definitely a sympathetic one, and is a "Honduran kid who 'repeatedly spurned the Mara gang's entreaties to join its ranks despite death threats made against him and his family'" but who the United States now intends to sent back to Honduras and this gang.

Even though the panel was (somewhat) sympathetic to his plight, there was no dissent -- everyone agreed that his claims should be rejected.

The Ninth Circuit as a whole perhaps felt the sympathetic -- and legal -- pull a bit more strongly than the members of the panel.  Today, it takes the case en banc.

Cuero v. Kernan (9th Cir. - Sept. 29, 2018)

The Ninth Circuit's published "opinion" today is indeed brief, and states in its entirety:

"In light of Kernan v. Cuero, 138 S. Ct. 4 (2017), we affirm the judgment of the district court. AFFIRMED."

Makes sense.  Though I note that the Supreme Court decided that opinion on November 6, 2017.  Which makes it a bit surprising (though perhaps not unusual) that it took nearly a full year for the Ninth Circuit to write that single sentence.

But no matter.  Case over.

Tuesday, September 18, 2018

Freestream Aircraft v. Aero Law Group (9th Cir. - Sept. 18, 2018)

It's nice when the Ninth Circuit writes an opinion that explains and cleans up an area that's full of sloppy circuit precedent.  Which is exactly what Judge Nguyen does here.  Different Ninth Circuit opinions have done different things to decide whether there's personal jurisdiction when someone commits a tortious act that has an effect in the forum state.  Some cases have directly found personal jurisdiction whereas some have applied the Calder effects test.  Judge Nguyen's careful opinion goes through these cases and explains -- correctly -- that the right test depends on whether the defendant has engaged in the relevant conduct in the forum state.  If so, the usual "purposeful availment" lines of precedent apply.  If not, the Calder effects test applies.  The Ninth Circuit has previously mixed that up, albeit typically in dicta and/or sloppy language.  This opinion helpfully sets things straight.

With two caveats.

First, a totally minor one.  In the second footnote, Judge Nguyen cites the Supreme Court's recent (2014) opinion in Bauman.  Fair enough.  But the case is now four years old.  It's in the United States Reports; e.g., has a "U.S." citation.  No reason to use the old citation in the Supreme Court Reporter (i.e., the S.Ct. cite).

Second, the substantive one.  As I said, I think that Judge Nguyen is correct on the merits and in how she analyzes and rationalizes prior circuit precedent.  But the discussion in section I.C. of the opinion is a bit off.  There, Judge Nguyen discusses at some length the Ninth Circuit's recent (2017) opinion in Morrill -- an opinion that typifies the use of the effects test even when the defendant engaged in conduct inside the forum state.  But Judge Nguyen says that this opinion doesn't really stand for that proposition because the relevant conduct (filing suit) actually transpired outside the forum state, and hence that the effects test was properly employed there.

Fair enough.  Some of the conduct at issue did indeed occur outside the forum state.

But some of it undeniably occurred inside the forum state.  Making the effects test (under Judge Nguyen's own view) inappropriate.

Judge Nguyen responds by asserting that the actionable conduct nonetheless occurred outside the forum state.  But that's not actually true.  Yes, the filing of the original (allegedly wrongful) action occurred elsewhere.  But the complaint in Morrill definitely sought relief for allegedly abusive and wrongful conduct that transpired inside the forum state; e.g., filing an action to enforce a summons for a (purportedly wrongful) deposition of the other side's lawyers inside the forum state.

Judge Nguyen admits that "at first blush" that might seem to be at odds with her interpretation of circuit precedent, but says it's not really, since the allegedly actionable conduct inside the forum state was "required" (Judge Nguyen's emphasis) by the litigation outside the forum state.  But, as a factual matter, that's just not true.  Nothing in the original litigation required the party there to notice and attempt to take the allegedly wrongful depositions of the other side's lawyers.  That was optional, and outside the state.  They did so.  In that state.  So the right test for that should not be the effects test.  Yet that's what the court applied.  Judge Nguyen's purported description of the case isn't, in my mind, accurate, or consistent with her worldview about what the underlying cases "really" hold.

Moreover, Judge Kleinfeld made exactly the same points that Judge Nguyen is making here in his dissent in Morrill.  Yet the majority disagreed.  It's not particularly persuasive to say that a case really stands for X when the dissent says that X is the law and the majority says otherwise.

It's not that I'm not sympathetic to what Judge Nguyen is doing here.  I am.  There's a bad case, and it makes bad (or at least doctrinally inaccurate) law, so you want to narrow it.  But you're not allowed to say that the case is simply wrong; for that, you need an en banc panel.

So you distinguish it.  Say it actually is founded on X.  Something that's consistent with what you think is actually the law.

The only problem is that it's not actually true.  And you gotta be honest, I think.  Say:  Yeah, in truth, I have no doubt that the panel thought that Y applies, even on Z facts, but actually, they're wrong.  If that means you gotta go en banc, so be it.  Hopefully your fellow Ninth Circuit judges will agree.

Nor do I think it much matters that the (inaccurate) distinction that Judge Nguyen advances is one that the panel itself might well have also (erroneously) advanced.  There are portions of the opinion in Morrill that say, as Judge Nguyen does, that what the party did in Arizona was "required" by the underlying litigation in Arizona.  But, again, that's not true.  What was legally required in Arizona (i.e., asking for a sister state subpoena) was indeed procedurally required, but only if you wanted to engage in the purportedly tortious conduct at issue -- i.e., to set the optional and tortious depositions of the opposing party's lawyer.  Since the other-state litigation didn't require that tort, that's not a distinction.

And you can't rely on a distinction when you're "rationalizing" circuit precedent when that distinction doesn't in fact make sense.  To take an obvious example:  Let's say the prior panel said "Well, yeah, he did something directly in the forum state, but the effects test applies even in those situations if the defendant's last name begins with 'M'."  When you make sense of competing prior circuit precedent to hold (as Judge Nguyen helpfully does here) that the effects test doesn't apply when the defendant did something directly the forum state, you can't then just say "Yeah, there's one case that holds the other way, but in that case, the defendant's last name began with an M."  If the distinction is wrong or does not make doctrinal sense, you can't use it.  Particularly when, as here, the dissent's making the same doctrinal point that you purport to make -- a point that the majority opinion rejects.

So bravo for Judge Nguyen trying to make sense of a jumble.  The opinion's well-written and for the most part right.

But sometimes there's that sole, super pesky case on the other side.  At which point you gotta deal with it on the merits.  Which sometimes requires that you just forthrightly admit that that opinion was wrongly decided.

Whatever consequences that brings.

Bottani v. City of San Diego (Cal. Ct. App. - Sept. 18, 2018)

Sometimes the best thing that the City can do for you is to declare one of your buildings a public nuisance and order you to tear it down.  Typically, that's something you don't want.  But in this case, it's crystal clear that the owners of the building were just itching for precisely that.  Because that way they could tear down the tiny, historic (formerly beachside) villa -- worth virtually nothing -- and build something much larger in its place, earn millions in profits, and avoid the need for an expensive environmental review.

The owners got their wish.  It was the owners of the building who hired a firm to try to convince the City that their own building was an unsafe nuisance.  The City so held, and told the owners that they could tear this nuisance down.  At which point the owners tore the thing down literally the next day.

The Court of Appeal agrees with the trial court that given these events, the owners don't have to submit to an environmental review.  Just go ahead and build on the (now empty) lot.

And rake in the dough.

It's definitely a nice lot.  Down here in La Jolla.  I bet it's going to be a nice replacement building as well.  Just a lot more modern.  And expensive.

One last thing.  Did I mention that the owner of the building is an attorney?


Monday, September 17, 2018

Taylor v. BNRH (9th Cir. - Sept. 17, 2018)

It makes total sense to certify this question to the Washington Supreme Court.  Federal and state courts are split on whether (and to what extent) obesity is a protected "disorder" under the ADA or  state law equivalents.  Moreover, Washington's state law equivalent is almost always interpreted more broadly than analogous federal or state statutes (reflecting, of course, the left-of-center nature of that particular jurisdiction).  Given these facts, rather than speculate, it makes sense to ask the Washington Supreme Court directly.

For whatever it's worth, on the merits, I think that the EEOC (and Montana Supreme Court) take the right approach.  Deviations in weight that are "normal" shouldn't qualify.  It's not a protected class to be six foot tall and, say, 170 vs. 200.  Not actionable if an employer, say, hires one over the other.

But once you're an outlier, that may well constitute a disability.  Something easily satisfied here.  The plaintiff "weighed 256 pounds at a height of 5-feet, 6-inches, yielding a Body Mass Index (BMI) of 41.3. A BMI over 40 is considered “severely” or “morbidly” obese."  And the railroad made everyone with a BMI over 40 pay for various tests (which the plaintiff here couldn't afford).  That activates the statutory protection, in my view.  Or should.

I recognize that other courts think that it matters whether the obesity has a physical or physiological cause.  Not me.  Drawing that line seems too tough. Whether you're 256 because you really like to eat (and/or not exercise) or because you "need" to eat (or "can't" exercise) doesn't matter to me.  The fact is you're 256, and that makes it tough for you (at 5'6") for do a variety of life events -- and subjects you to a certain reaction by a segment of the population.  That's what matters to me.  Not whether we can effectively "isolate" a particular "cause" of why you weigh what you do.

But we'll see what the Washington courts say.  I suspect they may take a view similar to mine, but who knows.

Friday, September 14, 2018

People v. Cruz-Lopez (Cal. Ct. App. - Sept. 14, 2018)

In a post earlier this week, I waxed poetic about the term "scrap," which was discussed in an opinion by the Ninth Circuit on Tuesday and is a derogatory term for members of the Sureño gang that is often employed by members of the rival Norteño gang.  As I said, I'm eminently familiar with that insult, since it's been used in approximately 250 opinions in the California Court of Appeal alone.

Coincidentally enough, today's opinion mentions that the perpetrator called the victim "Chapete.”  That's a term that I haven't heard before.  And guess what?  It turns out that, according to Justice Dondero, that term "is derogatory term Sureños label members of the Norteños."

Now I know both!

I was surprised that I hadn't heard that term before.  If only because the Sureños and Norteños are fighting all the time and result in a plethora of published opinions here in California.

So I looked it up.  The term "Chapete" has indeed been used (and discussed) by the Court of Appeal before.  But only a half-dozen times.  And only in unpublished opinions.

Hence undoubtedly why I didn't recall seeing it before.

Fortunately for us, today, the Court of Appeal publishes this opinion.  The first one ever to use the published term "Chapete".  Right on the heels of our prior discussion of "scrap".

What a wonderfully informative week.

P.S. - I also did look up where the phrase "Chapete" comes from.  It's of Spanish origin.  I'll leave it at that.

In re Sims (Cal. Ct. App. - Sept. 14, 2018)

There are lots of opinions that arise out of convictions for murder.  There aren't many opinions that arise out of convictions against an attorney for murder.

This is one of the latter.

It's indeed a sad tale.  I'll recount just some of the facts:

"Defendant and petitioner Karen Sims, a former attorney with serious mental illness of longstanding, was convicted of murdering her husband Henry Sims in 2006 and was sentenced to prison for a term of 50 years to life. . . .

Defendant has a history of mental illness that includes at least one prior hospitalization lasting two years and had manifested itself in violent knife assaults against her husband and her daughter while the family lived in Colorado. After being released from an extended psychiatric hospitalization in Colorado, the family moved to California where defendant practiced immigration law.

In 2005, when defendant’s daughter was home from medical school for the summer, defendant was behaving combatively and secretively, refusing to take her medication. She was suspicious of conspiracies, convinced that she was God’s daughter fighting demons, or the daughter of an alien fighting some sort of intergalactic war on earth. She accused her husband of adultery, occult practices, and devil worship. Defendant also accused her husband of carrying on with prostitutes and drugging her at night. She also behaved erratically with her office staff and clients, and sometimes missed court appearances.

Things came to a head in September 2005, when there was an incident at Lake Evans in Riverside. After the incident, defendant and her husband drove to Blythe, where defendant shot her husband several times, killing him. . . .

Defendant made bizarre statements during the hearing on her request to represent herself and during trial. [Footnote: "The record is replete with bizarre statements by defendant. The fact we limit the number of her delusional statements here is not intended as a comment on the significance or relevance of other statements."] In her opening statement, she talked about the Greek word for devil, the biblical story of Jezebel, and described her 25 years of marriage as “very colorful” and “a lot of joy.” She denied killing her husband, asserted that he was alive when the coroner’s photographs were taken, and proposed he was beaten and murdered by someone else while defendant was in custody."

A sad tale indeed.

Thursday, September 13, 2018

In re G.C. (Cal. Ct. App. - Sept. 13, 2018)

Everyone's pretty darn blunt in this one.

When asked why she stole the car, the juvenile forthrightly said she did so "so she can sell their parts so she can purchase drugs and food.”  Points for honesty, that's for sure.

Similarly, Justice Mihara doesn't mince words when he says that he's dismissing the appeal because he thinks it's time-barred, notwithstanding an opinion from the Fourth Appellate District that holds to the contrary.  It only takes him three (double-spaced) pages to say, in unvarnished language, that he thinks that the Fourth District's decision was a total crock.  (Repeatedly saying, for example, that the authorities on which the Fourth District relied have "nothing to do" with the alleged issue at hand.)

Pretty forthright as well, I think.

Justice Greenwood dissents.  She doesn't think that the Fourth District's opinion is a crock at all; instead, she believes it articulates the right rule.

The majority and dissenting opinions are short ones.  And not the most earth-shatteringly important dispositions in the universe.

Nonetheless, given that there's now an express conflict below as to the jurisdictional timeliness bar at issue, it seems to me that the California Supreme Court should grant review in this one and clear up the conflict.  Pretty easy to decide one way or the other.  And that way we'll have one clear rule that practitioners (and the Court of Appeal) can follow.

Wednesday, September 12, 2018

DNC v. Reagan (9th Cir. - Sept. 12, 2018)

You can read today's 125-page, single-spaced opinion by the Ninth Circuit -- as I did -- in its entirety to get a keen sense of the jurisprudential differences between Judge Ikuta (who authors the majority opinion) and Chief Judge Thomas (who authors the dissent).  Both jurists are bright and express what are undeniably coherent views.  But you're almost certainly going to like one approach over the other, depending on your personal jurisprudential (and perhaps political) tastes.

There are nonetheless two parts of Judge Thomas' dissent that strike me as undeniably true.  First, that the right to vote is an incredibly important one; indeed, the foundation of all other rights.  So the judiciary should be at its most vigilant in protecting that right.  (John Hart Ely makes some darn good points in this regard.)

Second, as Judge Thomas artfully puts it, "voting should be easy in America."  That seems to me to be unquestionably right.  To a degree, voting is fairly easy.  But it's also undeniably true that it's not as easy as it could be.  And that there are people (and people-populated institutions) who, for political and other reasons, deliberately want to make it harder.  Because we all know full well that the harder you make it, that tends to change the results (e.g., that it depresses the votes of minorities and other groups that tend to vote more for the Democratic as opposed to the Republican party).

So there are substantial incentives in at least one part of the electoral sphere to make it harder, not easier.  Even though, under a Rawlsian veil of ignorance, we'd all agree to make it easy.

Hence the tension for the judiciary.  The judiciary is limited by law.  We can't do something merely because we think it's a good idea.  Or strike down everything that's a bad idea.  That's not our job.

Yet when you've got a political system and state-sponsored electoral regime that deliberately tries to suppress (e.g., not count) votes of its citizens, what are you supposed to do?

So, to take just one part of the present case, you've got a state (Arizona) that does something (1) that has a huge effect compared to other states (the chart on page 78 of the opinion is indeed striking), and (2) that seems normatively like something we'd all agree we shouldn't do (at least if we didn't know which political party it benefits).  In this modern, computer-verified era, who the hell cares at which particular precinct you physically cast your ballot?  If you're validly registered and qualified to vote, why in the world would we care whether you exercise this right at the polling place that's one block to the right of your house as opposed to the polling place one block to the left?  The state has a list of all registered voters.  If you're on it, your vote should count.  If not, then not.  End of story.

To take but one example:  My designated polling place is (typically) two blocks from my house, in a church.  But that same church has two polling places; one immediately next to the other, one on the right door of the church, one on the left.  They've got different numbers, and I've got to make sure I go to the one with the correct number.

But who cares?  Say I accidentally walked into the wrong one and cast a ballot.  As long as the state can tell -- as it easily can -- that I'm in fact a properly registered voter, why would it refuse to count my vote just because I walked in the wrong door or accidentally transposed numbers?  Any neutral person would say:  "Yeah, that's a mistake, but we know he's entitled to vote, so let's let him.  It's an important right."  The only reason we don't (e.g., Arizona doesn't) is because we know full well how that will affect the votes on the merits.  And we're even (mostly) honest about that.  Political Party X wants to not count those votes because they're likely not for X, whereas Political Party Y deeply cares about counting them because they're likely for Y.  But we should all want to count them.  Because it's a critical part of democracy to get the input of our citizenry and count their votes.  It's a testament to where we are as a country that we nonetheless have serious fights about whether we should actually bother to count these votes, or instead look for an excuse -- and that's what it is, folks:  an excuse -- not to count them.

Are there legitimate reasons why one should prefer that people vote in their designated precincts?  Sure there are.  We don't want some precincts overwhelmed (with others empty), it's marginally easier to have a smaller list of registered voters than a larger list, etc.  But these are reasons at the margin.  If we actually cared about voting -- the most critical of our rights -- those reasons would indisputably give way when nonetheless presented with a vote that we knew full well was made by a qualified voter who wanted it counted.  That we don't -- that we instead go to great lengths (like Arizona does here) to make sure that we don't count those votes -- speaks volumes.

None of this is necessarily dispositive of where you come out in the fight between Judges Ikuta and Thomas.  As I said, one may have competing views about the role of the judiciary in the enforcement of these rights.  That's a larger jurisprudential debate.

But I think it nonetheless bears mention that we're in a world in which certain people deliberately want to make the exercise of critical constitutional liberties more difficult.  End voting at an earlier time.  Decrease the number of polling places.  Make lines longer.  Don't count votes mistakenly made at the wrong voting booth.

I can promise you that wouldn't make sense if you didn't know which way those practices tended to distort what's supposed to be a reflection of the will of the voters.  It's unfortunate that this reality is what's driving things here.  And that we (mostly) aren't even embarrassed about it.

Anyway, great (albeit lengthy) opinions on both sides.  Worth a read on the off chance you've got two hours to get through 'em.

Tuesday, September 11, 2018

Martinez v. Cate (9th Cir. - Sept. 11, 2018)

When you read legions of cases in the Ninth Circuit and California Court of Appeal, you tend to learn some street lingo, since portions of the transcript below are sometimes reproduced in the opinion.

For example, this opinion refers to someone allegedly saying that he "shot this fool, shot this scrap."  I've seen that before.  "Scrap" is a derogatory name (usually used by the Norteño gang) for someone in their rival gang, the Sureño.  So the speaker is saying that he shot a rival Sureño gang member.  Got it.

(Judge Tashima confirms my preexisting knowledge when he drops a footnote that says "'Scrap' may be a derogatory term for Sureño members."  But I must say that I thought that it was definitely a derogatory term.  Full stop.  So I bothered to look it up.  And reviewed some of the -- get this -- over 250 published opinions in California state and federal court which mention that, yeah, it's definitely a derogatory term.  So no surprise that I knew what it meant.  The judiciary's said it a ton of times.)

By contrast, there was another phrase in today's opinion that was new to me.  One person allegedly says:  "I’ll peel your guys’ cap back."  Now, I know that "cap" usually means "shoot".  But in this context, that doesn't work.  You're "peeling" the "cap" back.  Not "capping" a guy.  It's a noun here, not a verb.  So I couldn't necessarily figure out from first principles what it meant.

Though my default rule in all these settings is that whatever lingo means, it translates into "I'm going to shoot you."  As is indeed the case here.  Though I think it specifically means to shoot someone in the head.  I assume the reference is something akin to "scalping" someone with a knife, only this time with a bullet -- having the bullet "peel" the victim's "cap" (scalp) off.  Just a different way of making a particular threat.

Not nearly as common as the other phrase.  But now a part of my lingo.  "Gonna peel your cap."

Though I suspect I'll have few opportunities to use this newly acquired knowledge in my particular line of work.

Monday, September 10, 2018

Ioane v. Noll (9th Cir. - Sept. 10, 2018)

The Internal Revenue Service can do many things to you.  But the Ninth Circuit holds today that one thing it can't do -- or at least couldn't constitutionally do here -- is to watch you pee.  Even during a search warrant of your home.  Gotta let you squeeze the lemon on your own.

Good to know.

Brady v. Bayer Corp. (Cal. Ct. App. - Sept. 7, 2018)

Here's another wonderful opinion by Justice Bedsworth.

On the merits, he's very clear that he's going out on a limb.  He knows that two federal cases have dismissed the exact claims at issue here at the pleading stage.  But he thinks those cases are wrong.

And his opinion does an exceptionally fine job of explaining why.

I'll forthrightly concede that I'm a member of this putative class, which involves Bayer's "One-A-Day" gummy vitamins.  Notice that the very name says "One-A-Day".  But you've got to read the exceptionally small fine print to learn that "one-a-day" actually means "you gotta take two".

Hence the lawsuit.  Hence the Court of Appeal's reversal of the trial court's dismissal of the suit.

While we're in the habit of forthright admissions, let me make another.  I take two.  'Cause I read the thing and know you're supposed to.  Plus, what's the harm?  It's not like I'm taking 100 a day.  I figure I can use the extra vitamins anyway.  And I can probably afford the "double dose" -- even on a mere professor's salary -- anyway, on the off chance I'm actually taking more.

But Justice Bedsworth nonetheless seems right to me.  That some people might be like me doesn't necessarily mean that others don't rely on the label and, indeed, take on a day.  At the pleading stage, to be sure, I find it eminently plausible that some people are indeed confused by (and/or rely on) the prominent name and label "One-A-Day".

Now, given that different people may react differently, I do wonder whether Justice Bedsworth's opinion might serve to revive the case only to eventually kill it.  Because if he's right that people are different, then maybe this case can't be a class action.  I'm confident that Bayer's lawyers are going to use this reasoning at length in opposition to a motion to certify.  And if it isn't a class action, it's not anything at all; no one's going to sue individually over the $10 (or whatever) they lost on these things.

But, admittedly, that's for another day.  And on my end, I'm loathe to let companies get away with false advertising that effectively deceives a segment of the public merely because other members of the public smartly read the fine print.  But that might just be me.  People have strong views pro and con in this regard about class actions.

In any event, for now, the case survives.  And stands for the proposition that you can't call something one a day when you actually gotta double it up.

Thursday, September 06, 2018

Dent v. NFL (9th Cir. - Sept. 6, 2018)

Football fans (and there are many of them) will recognize the names on this caption.  Lead plaintiff Richard Dent is a famous football player who was a defensive end for the Chicago Bears, and was legendary (as well as feared on the field) in his time.  And the NFL is the National Football League.  Also somewhat well-known.

Mr. Dent is one of several named plaintiffs in a putative class action alleging that the National Football League "distributed controlled substances and prescription drugs to its players in violation of both state and federal laws, and that the manner in which these drugs were administered left the players with permanent injuries and chronic medical conditions."  If you know anything at all about the old-school NFL, you know that drug use -- particularly painkillers -- was indeed rampant.  So on the merits, there's some real problems for the NFL there.

But legally, the case is a very difficult one (IMHO) for the plaintiffs.  The NFL prevails in the district court on a motion to dismiss, with Judge Alsup of the Northern District finding the claims preempted by federal labor law (since there was a CBA that covered the players during this period).  But today, the Ninth Circuit reverses.  No preemption.  Plus a lot of language in the opinion that the plaintiffs in the case will find helpful on the merits.

The players are nonetheless a long way from victory here.  There are statute of limitations issues.  There are numerous issues on the merits.  Even the panel hints there may be problems with another motion to dismiss, or with a motion for a more definite statement, or at the summary judgment stage.  And, on my part, I'll add that I'm highly doubtful that this is going to actually get certified as a class, if only because the individual issues seem to me to predominate.

But for now, the lawsuit survives, and goes forward.

Wednesday, September 05, 2018

Powell v. Tagami (Cal. Ct. App. - Sept. 5, 2018)

Today brings us a rare amendment-to-an-amendment.  Because the original amendment contained a mistake.


Important to get it right.  Even when it's as minor as saying (as here) that you meant to delete the third sentence, not the second sentence.

Let's hope this finally puts the matter to rest.  An amendment to an amendment to an amendment is par for the course in a legislature, but for the judiciary, is a place we rarely want to go.

Tuesday, September 04, 2018

Bridgepoint Construction Svcs v. Newton (Cal. Ct. App. - Sept. 4, 2018)

The month of September begins with a bang.  With holding that's perhaps even more significant than the Court of Appeal recognizes.

Justice Gilbert's opinion says:

"An attorney represents more than one client, all of whom seek damages from a pool of money controlled by another party. In addition to multiple other reasons why the attorney here should be disqualified, when more than one client is seeking funds from the same source, the conflict is self-evident. There might not be enough money to satisfy each client's claim.

This is an appeal from an order disqualifying an attorney for a conflict of interest. We affirm."

There are lots of situations in which multiple plaintiffs seek money from the same source.  And since few defendants have infinite resources, the resulting conflict -- which the Court of Appeal's opinion expressly calls an "actual" conflict, not merely a "potential one" -- will arise in a plethora of cases.  With the resulting disqualification motions for anyone who understands the strategic value of such motions and is armed with today's opinion.

Plus, to be clear, this isn't a case involving a particular res (e.g., a $2 million insurance policy).  The conflict exists merely because the clients are seeking money from the same defendant.  The opinion makes this crystal clear:  "What Klein ignores is that Bridgepoint, Salter and Ram are all seeking the same damages from the same $2 million pool. The conflict is obvious. Every dollar that Ram obtains from the pool is a dollar that is not available to Bridgepoint or Salter."  That idential "pool" of money exists whenever multiple plaintiffs are suing the same non-billionaire defendant.

So use today's opinion.  And understand that people may well use it against you as well.

Super important.  If only because its categorical holding is (1) incredibly broad, and (2) incredibly practically significant.  For lawyers and clients alike.

Thursday, August 30, 2018

Mack v. All Counties Trustee Service (Cal. Ct. App. - Aug. 30, 2018)

What a total appellate mess.  (Summarized in eight breezy pages, thankfully.)

People v. Rodriguez (Cal. Ct. App. - Aug. 29, 2018)

This is a very good -- and common sense -- disposition by Justice Smith.  I'm glad the Court of Appeal decided to publish it.

A prisoner who's in wrist restraint cuffs (or at least partially in wrist restraint cuffs) allegedly assaults a prison guard.  He's charged with assault by an inmate with a deadly weapon, but the trial court does not give instructions about the lesser included offense of simple assault.  He appeals his conviction by the jury on the greater (deadly weapon) charge.

Everyone (including the People) admits that assault is a lesser included offense.  But the People say an instruction on that lesser offense wasn't required because the jury couldn't have found him guilty of it.

Yet Justice Smith's response is spot on:

"We agree with Rodriguez’s view that the lesser included offense instruction was required here. The jury could reasonably find, based on the evidence, that Rodriguez assaulted Stephens and Dall, but did not use the chains or anything else as a deadly weapon. Some items, such as dirks and blackjacks, are deadly weapons as a matter of law; but most objects are not inherently deadly and can be found to be deadly weapons only if used in a manner and under circumstances likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) The evidence would have supported a finding that Rodriguez assaulted Stephens and Dall, but that there was a reasonable doubt regarding whether he used the chains as a deadly weapon, or used them at all, in doing so. The jurors could reasonably have believed Rodriguez was exaggerating the innocence of his intentions when he indicated he merely collided with Stephens by accident, while at the same time finding he was not employing the chains as a weapon. They could reasonably have believed Rodriguez’s testimony that the chains were always secured around his waist during the incident. The video would be consistent with these findings, as would the absence of medical evidence and Stephens’s concession that the photograph of his head showed no injury. Jurors could reasonably find that Rodriguez was just using his hands with the cuffs on his wrists, and that even if Rodriguez caused the chains to make contact with Stephens (and caused them to swing toward Dall), there was a reasonable doubt he used them in a manner likely to produce great bodily injury.

The error was not harmless. Failure to give a required instruction warrants reversal when there is a reasonable probability that the defendant would have obtained a more favorable outcome if it had been given. (Breverman, supra, 19 Cal.4th at p. 178.) Under the instructions given, the jury was forced to choose between assault with a deadly weapon and no assault at all. In light of the video and the other evidence, it is fair to say no assault at all is the less likely of the two, even though both are reconcilable with the evidence. There is a reasonable probability that the jury chose assault with a deadly weapon just to avoid the more implausible alternative, and would have found simple assault if that had been an option.

The People contend that the evidence was insufficient to support a finding of simple assault because Rodriguez in his testimony and defense counsel in his closing argument both maintained that there was no assault at all; consequently, the jury’s choice was between believing the prosecution witnesses and finding assault with a deadly weapon and believing Rodriguez and acquitting him on these counts. It is not true, however, that the jury was limited to choosing between the competing theories of the case proposed by the attorneys, or between the conflicting accounts given by the two sides’ witnesses. It is well established that the jury is entitled to form its own theory of the case, if supported by the evidence, and to pick and choose the parts of each witness’s testimony that it finds credible, provided there is substantial evidence in support of the view it decides to take. (Breverman, supra, 19 Cal.4th at pp. 157, 159-160, 162-163; People v. Chestra (2017) 9 Cal.App.5th 1116, 1121.) As we have said, the jury in this case could reasonably do all of the following: (1) believe the prosecution witnesses’ testimony that Rodriguez attacked them; (2) reject the prosecution witnesses’ testimony that Rodriguez wrapped the chains around his fists and used them to deliver, and try to deliver, forceful punches; (3) believe Rodriguez’s testimony that the chains were secured around his waist and he never used them as a weapon; (4) reject Rodriguez’s testimony that he never meant to make contact with anyone. In short, a finding that all the eyewitnesses were exaggerating or minimizing the facts would have been consistent with the evidence. There are, of course, cases in which a lesser included offense instruction is not required because there is nothing in the defense case (or otherwise) that would have supported a guilty verdict on the lesser offense but not the greater. But this is not such a case."

Seems exactly, exactly right to me.

Plus, I liked that Justice Smith drops a footnote that explains in concrete terms why all this matters (wholly beyond the legal requirement that the jury be instructed on lesser offenses).  Here, it's a very big deal:

"The difference between simple assault and assault with a deadly weapon by a prisoner was a matter of grave significance to Rodriguez. For a second striker, the maximum prison sentence for assault with a deadly weapon by a prisoner is the sentence Rodriguez received: Twelve years. Simple assault is a misdemeanor with a maximum jail term of six months. (§ 240.) Simple assault on a peace officer is also a misdemeanor, with a maximum jail term of one year. (§ 241.) The impact on punishment is, of course, not a factor in the analysis of whether a lesser included offense instruction was required, but it would have been an important consideration had it been necessary to analyze the effectiveness of trial counsel."

You can see why a jury might have wanted to convict Rodriguez of something since it was fairly clear he hit the guard.  But you can also see why forcing the jury to choose between a very huge offense or nothing would be a suboptimal decision tree when in fact there's something in the middle that might describe (and set a punishment for) what actually transpired.

Plus, as an aside, you gotta love footnote four.  Where Judge Smith invents a lengthy hypothetical closing argument of the defense counsel that improperly vouches for his own client, and does so in order to demonstrate the impropriety of vouching based upon facts outside the record.  Rarely have I seen a justice channel his or her inner defense attorney in such a manner.  Maybe never.  Classic.

Wednesday, August 29, 2018

People v. Martin (Cal. Ct. App. - Aug. 29, 2018)

My presumptive rule is that any opinion entitled "People v. Martin" requires careful review.  And today's opinion only reaffirms this general principle.

The majority and dissenting opinions demonstrate sharply the ideological clash that underlies the competing views.

On the one hand, you have Justice Yegan's majority opinion.  His very first paragraph tells you how strongly he feels about the right way the case should come out:

"The fabric of the law will stretch only so far before it will unravel. Here, a professional thief entered in to an international conspiracy to commit as many petty thefts as she could get away with. She was foiled by security guards and the police. She seeks to stretch Proposition 47 to cover her conspiracy to commit petty theft. She convinced the trial court. But it just won’t stretch that far. It is difficult, if not impossible, to believe that the electorate intended that a person, such as respondent, with five prior separate prison terms who joined an international conspiracy to commit petty theft, would deserve misdemeanor treatment. To say it out loud or put it on paper causes considerable pause."

Wow.  An international conspiracy, eh?  Pretty sophisticated and dangerous, I assume.  I can see why it seems so crazy to think we might knock something that fancy down to a misdemeanor.

Though then you read the actual facts of the case.  Which involve totally run-of-the-mill shoplifting.  Some women go into Wal-Mart, look around nervously, puts some cosmetics in their purse, and walk out without paying.  They do the same basic things in an Albertsons.  So they're convicted.

Oooh!  What danger!  What sophistication!

The only wrinkle that makes this an "international conspiracy" is that the women say they send the cosmetics down to someone in Guatemala who pays 'em twenty cents on the dollar for everything they steal.  By the way, as the majority opinion reflects, the "international" part of the case has totally nothing to do with the holding.  Which is that any "conspiracy" -- domestic or not -- can't be reduced down to a misdemeanor under Prop. 47.

Justice Tangeman dissents.  His reasoning is summed up in his opening paragraphs as well.  In which he says:

"I dissent. I would affirm the order granting respondent’s petition to recall her felony sentence and resentence her to misdemeanor shoplifting. Generally it is proper to charge felony conspiracy even if the underlying conduct is a misdemeanor. [Cite] But this general rule is “subject to an exception in the case law which precludes the use of a conspiracy charge to elevate criminal conduct to felony status where there appears an ‘affirmative legislative intent’ to impose a lesser punishment or no punishment at all.” [Cite] Proposition 47 evinces an affirmative electoral intent to impose a lesser punishment for any conduct that could be charged as shoplifting. [Cite] The Supreme Court has not yet decided whether the ameliorative benefits of Penal Code sections 459.5 and 1170.18 apply to acts of shoplifting by two or more people acting together. Two intermediate courts have reached opposite conclusions. In People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), the court concluded that conspiracy may not be charged where the defendant enters a commercial establishment during regular business hours with the intent to commit petty theft; while in People v. Segura (2015) 239 Cal.App.4th 1282 (Segura), the court concluded otherwise.

The Supreme Court has disapproved Segura’s reasoning. (Maj. opn. ante, at p. 7.) Huerta’s reasoning is sound. In Huerta, the People argued that a defendant was ineligible for Proposition 47 relief because she “‘went in with another accomplice and they did this together’ so ‘[i]t’s an uncharged conspiracy.’” (Huerta, supra, 3 Cal.App.5th at p. 542.) The court rejected this argument based on the language of section 459.5: “The People’s argument raises the question, conspiracy to do what? They answer the uncharged conspiracy was a conspiracy to commit larceny. They argue intent to commit conspiracy is not shoplifting, and burglary predicated on such a conspiracy may be charged as a felony even after the electorate enacted Proposition 47. That may be true for some forms of conspiracy. It is not true, however, for conspiracy to commit larceny. If Huerta harbored the intent to conspire to commit larceny, she necessarily harbored the intent to commit larceny as well . . . [and] [i]f Huerta harbored the intent to commit larceny, [section 459.5, subdivision (b)] directs the offense ‘shall be charged as shoplifting’ and further that ‘[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.’ [Citation.]” (Id. at p. 545.)"

Justice Yegan asserts that "Proposition 47 is poorly drafted" and that "[t]he plethora of case law concerning its construction is a testament to its vagueness," but asserts that "there is no vagueness here" and that the proper answer is clear.  There's no way, he says, that the electorate that voted for Proposition 47 would want someone who "conspired" to commit shoplifting to be sentenced to a misdemeanor.

Now, as a factual matter, I can assure you that's flatly untrue.  Plenty of people who voted for Prop. 47 assuredly would want precisely that, and would not agree that merely because you worked with another person to shove some cosmetics into your purse you're automatically a hard core criminal who should be categorically unable to petition under Prop. 47.

That said, the relevant inquiry is whether that's what the statute says and/or that's what was in general intended by those who voted for it.  And on that point, as the case law reflects, there's a conflict, and one that generally reflects preexisting beliefs.  If you're someone who things that conspiracies are by their very nature more dangerous, and that shoplifting is a serious crime, then you're not going to be predisposed to allow people convicted of such a crime to even petition under Prop. 47. Whereas if you're less confident in those beliefs, as well as a bit worried that prosecutors may sometimes charge conspiracy just to a felony conviction (even if the conspiracy is, as here, to commit petty theft) and -- after today's opinion, anyway -- to also avoid Prop. 47, then you're probably going to be predisposed to go the other way, and let 'em at least file a petition.

People often say that bad cases make bad law.  This is a "bad" case; or, put differently, it's a tolerably "good" one in which Justice Yegan can articulate his vision.  The defendant does indeed steal for a living, and is a recidivist.  There's more than one person involved.  It has an international component to it.  So it's not your "usual" shoplifting case.  Plenty of people might feel like the person here should be punished fairly harshly.

At the same time, the rule that the majority articulates is far broader.  It's not just Ms. Martin who gets a felony conviction for petty theft that she can't reduced notwithstanding Prop. 47.  It's also two kids who go into a grocery store and slip a pack of gum (or liquor bottle) into their pockets.  The rule here applies to ANY felony conspiracy conviction.  'Cause, as Justice Yegan notes, that's a (1) "different" crime, that's (2) ostensibly inherently more dangerous.  Hence Prop. 47 doesn't apply.  Even, again, to a pack of gum (or some Wal-Mart cosmetics).

Ultimately the California Supreme Court will have to resolve this split.  There are definitely two competing visions in play.  One of which is amply demonstrated by the opening paragraph of today's opinion, which essentially asserts that anyone with any sense couldn't possibly think that Prop. 47 would apply when two people are in on the petty theft at issue.

But someone could, in fact, take a quite different view.

Even people whose last name is not "Martin."

Monday, August 27, 2018

Kim v. Toyota Motor Corp. (Cal. Supreme Court - Aug. 27, 2018)

It's just so awesome when the opinion can (and does) summarize itself in a couple of concise paragraphs at the very outset.  That way, we can totally ignore the rest of the thing unless we're profoundly interested.  (Now, personally, I'm always profoundly interested, but I get that I'm an outlier on this score.)

So unless you're uniquely fascinated by the issue, the first two paragraphs of Justice Kruger's opinion today ostensibly tell you everything you need to know:

"Plaintiff William Jae Kim (Kim) was severely injured after he lost control of his Toyota Tundra pickup truck and drove off an embankment. Together with his wife, Kim brought this strict products liability suit against defendant Toyota Motor Corporation and related entities (collectively, “Toyota”), claiming that the pickup truck was defective because its standard configuration did not include a particular safety feature, known as vehicle stability control (“VSC”), they claim would have prevented the accident. At trial, the jury heard evidence that no vehicle manufacturer at the time included VSC as standard equipment in pickup trucks. The jury ultimately found in Toyota’s favor and the Court of Appeal affirmed.

The question before us is whether, as the courts below held, this kind of evidence of industry custom and practice may be introduced in a strict products liability action. The answer depends on the purpose for which the evidence is offered. Evidence that a manufacturer’s design conforms with industry custom and practice is not relevant, and therefore not admissible, to show that the manufacturer acted reasonably in adopting a challenged design and therefore cannot be held liable; under strict products liability law, a product may contain precisely the same safety features as other products on the market and still be defective. But even though evidence of industry custom and practice cannot be dispositive of the issue, it may nevertheless be relevant to the strict products liability inquiry, including the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs. Because the evidence in this case was properly admitted for that limited purpose, we affirm the judgment of the Court of Appeal."

Beautiful, eh?

Now, the observant amongst you will notice that I said that these two paragraphs "ostensibly" tell you everything you need to know.  Justice Dato, sitting by assignment from the 4/1 (and until recently a Superior Court judge down here in San Diego), files a concurring opinion -- joined by Justice Liu -- that focuses precisely on that caveat.  He says:

"The answer you receive often depends on how you ask the question. Here, the majority opinion broadly frames the issue before the court as whether industry custom-and-practice evidence may be introduced in a strict products liability action. The answer, we learn, “depends on the purpose for which the evidence is offered.” (Maj. opn. ante, at pp. 1−2.) As a statement of principle, this conclusion is unassailable, if a bit opaque. The devil is in the details, and the critical question becomes for what purposes is such evidence admissible, and for what purposes is it not?"

The rest of the concurrence then goes on to discuss those pesky details, and the way the two camps frame the inquiry is (not surprisingly) a bit different.

The end result is nonetheless clear.  This stuff is admissible in a ton of cases.  It'll just require a limiting instruction, as well as care to make sure it's in fact relevant to the defenses the parties have actually made.  (Though I'll also promise you that the defendant in these cases will invariably assert a defense that makes this stuff relevant.  'Cause they'll -- smartly -- be desperate to get this evidence in.  Instruction or no.)