Wednesday, August 15, 2018

In Re Complaint of Judicial Misconduct (9th Cir. - Aug. 15, 2018)

I believe that for some time now, the Ninth Circuit has published its disposition of all allegations of judicial misconduct.  I understand (and applaud) the sentiment behind that decision.  Shine the light on potential misconduct, make everyone confident that justice is being fairly dispensed, etc.  Great.

But let me make a proposed amendment to the de facto principle of publication.  One that makes a fair piece of sense (at least to me) and also may a couple of trees from needless early demise.

Today's opinion holds (among other things) that the judges don't have to recuse themselves from an adjudication if all of 'em are being sued and the underlying allegations are, as here, frivolous.  A rule that totally makes sense.

I'd adopt a related amendment to the underlying publication rule.  Let's not publish the disposition if the misconduct allegations are similarly, as here, totally and obviously frivolous.

We'll still post the disposition on the web.  So we'll waste some pixels.  But we won't deem the thing worthy of inclusion into a paper record designed to last centuries.

'Cause some things are just to patently silly that even though they merit a response, there's no need to put actual ink to physical paper.

Like here.


Amir v. Superior Court (App. Div. Sup. Ct. - Aug. 14, 2018)

Nearly every time the Appellate Division of the Superior Court decides to publish an opinion, it's one worth reading.  If only for its potential practical significance.

This one is no exception.

It's about that most basic involvement with the criminal justice system:  a traffic ticket.  And, most critically, a potential way out of one.

The basic holding is one that we should commit to memory.  Because it may well come in handy one of these days:

If you get a ticket in a faraway place (e.g., as here, in Lancaster), ask to have the underlying case heard in the county seat (e.g., here, downtown Los Angeles).  Because the Appellate Division holds that the trial court is required to accede to such a request.

Why would you care?  What's the benefit?

Twofold.

First, it may well be closer to your residence, and hence more convenient for you.  For example, here, Lancaster (where the guy was ticketed) was 70 miles away from his home, but the Downtown L.A. courthouse was only 2 miles away.  Definitely an easier drive to fight the ticket.

But the second reason's even more important.

Where do you think the officer who wrote the ticket likely lives and works?  Probably near the place s/he wrote the ticket, right?  70 miles away.  It's a silly little ticket.  Do you think the officer is really going to make an 140 mile round trip just to show up at the hearing?

Maybe.  But probably not.  Thus permitting your victory at trial.

Neat little trick.

And, after this opinion, one that likely will totally work.

The Appellate Division doesn't discuss the practical implications of the ruling.  But I think they're nonetheless reasonably clear.

Fight the thing on your home turf.  You'll be glad you did.

For so many reasons.

Tuesday, August 14, 2018

Lanuza v. Love (9th Cir. - Aug. 14, 2018)

"During the master calendar hearing, ICE Assistant Chief Counsel Jonathan Love (“Love”) stated that Lanuza’s immigration file contained an I-826 form, signed by Lanuza, accepting voluntary departure to Mexico in 2000."  That would make Lanuza ineligible for relief from deportation.

Which works.  Except for one thing.  The document was a forgery.  (Among other things, the top of the purported 2000 document referred to the "U.S. Department of Homeland Security," which didn't even exist until after the terrorist attacks on 9/11/2001.)  Even worse, apparently, Mr. Love knew it was a forgery.

I can't fathom what would make an attorney for ICE deliberately submit a forged document (or forge it himself) with the intent to deport someone.  Neither did the judge who ultimately sentenced Mr. Love to (a very brief stay in) prison.  Why would anyone fake a document just to get someone they don't even know deported?

Regardless, the Ninth Circuit holds today that there's a Bivens remedy for this situation.  If you forge a document in a deliberate effort to get someone deported, the person gets to sue you.

Thursday, August 09, 2018

People v. Rodriguez (Cal. Ct. App. - Aug. 8, 2018)

This opinion just goes to demonstrate how utterly absurd the California crime of "burglary" has become.

There's no doubt that the defendant was guilty of a variety of crimes.  He was 41 years old and had intercourse with a 16-year old.  That constitutes a variety of unlawful sex acts, and he was rightly convicted of those offenses.

But the Court of Appeal holds that he was also properly convicted of burglary because he took the minor back to a hotel room that he had rented.  Even though it was his hotel room, that he had rented, and to which he had a clear possessory right, he's guilty of "burglary" because he entered a location to which someone else had vestigal rights with the intent to commit a felony.

That's rediculous.

Is it a deliberate twisting of precedent?  No.  Sadly, it's not.  It's just another step in the continuously bizarre and counterintuitive expansion of "burglary" so that it's an additional offense in any case in which someone comes near any type of building.  Totally unnecessary, and I'm confident not what the public or Legislature expected when they passed the statute.

Plus, the Court of Appeal struggles mightily to explain why you can be guilty of "burglarizing" your own hotel but not "burglarizing" your own home (unless you have a roommate!) or "burglarizing" your own apartment; especially in the latter case, since a landlord has similar residual possessory rights to those of a hotelier.  Sure, there's a quantitative difference -- it's easier to kick someone out of a hotel than an apartment -- but not a qualitative one.  If those residual rights make it a burglary to enter your own hotel room, then the same should be true for entering your own apartment (or perhaps your own home, since your lender has residual rights too).  But people would get upset about that concept, so we don't want to stretch it that far.  At least now.  (Maybe in the next statutory rape case we'll go ahead and do it.)

I accept that burglary in California entails entering someone else's property with the intent to commit any felony therein.  (That's not what I'd define the offense to be were I writing the underlying law, but so be it.)  But once we start convicting people for entering their own hotel room or apartment or other structures that they have an undiluted right to enter, we go too far.  Way too far.  There are plenty of felonies out there.  Once you can be convicted of burglary for entering your own residence or place of rest with the mere intent to commit a crime, we're way too far afield.

Including but not limited to the present case.

Wednesday, August 08, 2018

U.S. v. Fomichev (9th Cir. - Aug. 8, 2018)

Hmmm.  Don't know about this one.

I'm definitely on board for the marital communications privilege.  What you say to your spouse during the marriage should be confidential.  For good reason.  We want spouses to talk to each other without being worried that the information you reveal may be used against you.  On it.

But what if the marriage is a sham?  One you entered into solely to get various benefits; say, tax benefits, or (as here) an immigration visa.  Should the privilege apply then?

My initial impression is the same as the government's:  No.  The marriage was a sham.  There was no "real" intimate relationship that we're trying to protect.  The Ninth Circuit holds that it'd be a bad idea to create a "sham marriage" exception to the privilege, so refuses to do so.  I'm not so sure.  Seems to me that if the marriage is indeed a sham, the underlying basis for the privilege is vitiated.  At that point, you're talking about protecting communications between, essentially, strangers.  Or at least no more subject to privilege than boyfriends and girlfriends, people who sleep together, close friends, etc.  None of whom have a privilege.  Ditto for people in sham marriages, it seems to me.

Now, admittedly, there are some line-drawing problems.  People do get into marriages for a number of different reasons.  The Ninth Circuit is understandably a little worried about having to figure out what marriages are intimate "enough" to justify the privilege.

But two responses seem right to me.  First, we already have a "sham marriage" exception for the marital testimonial privilege -- i.e., the right not to testify against your spouse.  So we already draw that line, and appropriately so.  If we can do it there -- if we can say, for example, that we're not willing to let you refuse to testify against your (typically new) spouse because we know full well that you only married him to avoid testifying -- then I see no reason why we can't do it here.  Second, the line-drawing argument only seems to me to justify a pretty hefty burden on establishing the exception.  But when, as here, there's tons of evidence that the marriage was indeed a sham, the difficulty of determining precisely when a marriage becomes "fake" (for money, prestige, celebrity, etc. instead of for love) doesn't really apply.  E.g., I may not be able to precisely define how many hairs makes a beard instead of a clean-shaven face, but I can nonetheless say with confidence that the guys from ZZ Top definitely have beards.  Ditto for sham marriages, at least at the extreme.  Line-drawing not a problem.  Or at least not a terminal one in this setting.

One other point.  The Ninth Circuit also recognizes that a different exception already exists, and one that is also potentially applicable here.  The marital communication privilege doesn't apply when the marriage was already "irreconcilable" at the time the underlying statements was made.  Indeed, the Ninth Circuit remands on this precise point so that the district judge can decide whether that other exception applies.

But whoa!  If we can decide the totally-not-bright-line of when a marriage is "irreconcilably" broken, it seems totally possible -- easier, even -- to decide when that same marriage is a "sham" from its very outset.  Plus, isn't there dispositive overlap there?  'Cause I can definitely think of one setting in which I might well call a marriage irreconcilably broken:  when it was and remains a total sham.

Look, I don't like prying into reasons for someone's marriage.  But when we're already doing that -- when, as here, we're seeing if they committed fraud by entering into a fake marriage for immigration purposes -- seems to me it's similarly fine from an evidentiary perspective to see if the marriage is a fake and respond accordingly.  Because fake marriages don't deserve a truth-defeating privilege.

And, yeah, if that means that we eventually run the risk of having to figure out whether, say, 26-year old Anna Nicole Smith's marriage to her 89-year old billionaire husband Howard Marshall was also a "sham" -- well, we can cross that bridge when we come to it.

Tuesday, August 07, 2018

Gold Medal LLC v. USA Track & Field (9th Cir. - Aug. 7, 2018)

I thought this opinion was going to be unanimous.  And it was.  Sort of.

Run Gum manufactures a “compressed functional chewing gum” that contains “a proprietary mix of caffeine, taurine, and b vitamins.”  It want to advertise its products on the sportswear of the track and field athletes in the Olympic Trials.  Stunningly, the Olympic Committee won't let it.  So it sues.

There is some advertising at the Olympics.  Very little, but some.  At least on the sportswear.  The manufacturers of the actual products (e.g., Nike) get to put their mark on the products.  But that's it.

But Run Gun wants to open the floodgates.  And says that the decision of the Olympic Committee to box it out is a violation of the Sherman Act.

The district court disagrees.  So does the Ninth Circuit.  Thankfully.  Maybe it's just me, but I don't want athletes at the Olympics (or Olympic Trials, even) to be replete with plethora of advertising logos on their gear.  This is the pinnacle of (mostly) amateur sport.  Not NASCAR.

The majority gets to this result by finding implied antitrust immunity under the Ted Stevens Olympic and Amateur Sports Act.  That seems plausible to me.  Judge Nguyen concurs, however, and says that she doesn't think there's antitrust immunity, but that the complaint should nonetheless be dismissed for other reasons (e.g., no viable product market).  Okay,  That seems like a path forward as well.

Though, personally, I sort of like the majority's approach.  Still:  Any path to the desired result seems fine to me.  A little swoosh doesn't much matter to me.  By contrast, a logo for "Run Gum" on the gear of an Olympic athlete really does degrade the thing.  Even to my jaded eyes.

Monday, August 06, 2018

Arandell Corp. v. CenterPoint Energy Svcs (9th Cir. - Aug. 6, 2018)

The Supreme Court held that you can't find a parent and subsidiary guilty of conspiracy under the Sherman Act because it's impossible for such entities to actually conspire.  The Ninth Circuit uses that decision to hold that a subsidiary can be liable under the Sherman Act.

You might think that gets the thing exactly backwards.  But the Tenth Circuit allegedly did the same thing, albeit in a Section 2 (monopolization) case, rather than a Section 1 (conspiracy) case as here.

I know a little bit about that because I published a long piece in the Stanford Law Review entitled Intracorporate Conspiracies that talks a lot about the underlying principle.  I'll forthrightly concede that I never thought about how that doctrine could allegedly be used to expand corporate liability.

It's a weird world.

P.S. - The times of my postings this week will likely be a bit off, since I'm in Serbia all week, and the time change is a killer.  But rest assured I'll be keeping up as much as I can.

Friday, August 03, 2018

Anselmo v. Grossmont-Cuyamaca Comm. College Dist. (Cal. Ct. App. - Aug. 3, 2018)

When I read that the lawsuit was brought by a beach volleyball player who was injured during a game when he knee hit a rock buried in the sand, I thought the opinion was going to be about the doctrine of primary assumption of risk.

Nope.  It was about "field trip" immunity.  Something that I didn't even know existed.

Apparently, when you're at a community college, the college is immune from injuries from any "field trip" or "excursion" you attend.  I'm sure that's the Legislature's way of encouraging field trips, which are cheap, (sometimes) educational, and (typically) fun.  (More fun than actual class, anyway.)

So the question becomes whether engaging in intercollegiate athletics -- here, a volleyball tournament -- at another school counts as a "field trip" or "excursion" under the statute, hence creating immunity.

The trial court granted the defendant's demurrer.  The Court of Appeal reverses.

Gotta get those rocks out of the sand.

P.S. - The plaintiff, Mary Anselmo, seems to come from a long line of volleyball players.  Here's what seems to be her sister's bio at the University of Arizona.  Notice the reference to Mary, as well as her father -- a volleyball coach and former player.

Fun sport, beach volleyball.  Except for the rocks.

Thursday, August 02, 2018

Jones v. Sorenson (Cal. Ct. App. - Aug. 2, 2018)

Justice Duarte is so, so right.  Most homeowners have no idea of the trouble they can get into when they hire someone to do pretty much anything around the house.

Here's what she says about the thing.  Plus a brief primer on the crucial difference between hiring a "gardener" as opposed to a "nurseryperson":

"Despite the prevalence of “do-it-yourself” manuals and television shows, most homeowners eventually decide that some home repairs or maintenance would best be done by hiring someone to do the work. Inevitably, some workers are injured. There are sometimes confusing rules about when a homeowner is liable for injuries to workers on the property, either in tort or under the workers’ compensation system. The common questions include whether the person hired by the homeowner was (1) required to be a licensed professional to do the work, and (2) if so, whether the person had the required license.

As stated by our Supreme Court, “It is doubtful the average homeowner realizes tree trimming can require a contractor’s license.” (Fernandez v. Lawson (2003) 31 Cal.4th 31, 37 (Fernandez).)

Plaintiff Mary E. Jones appeals from a judgment after a grant of summary judgment to defendant Danita Sorenson. Sorenson hired a gardener to work on her property and the gardener hired Jones to help her. Jones was injured when she fell from a ladder while trimming a tree at least 15 feet tall. Jones sued Sorenson, claiming such work required a license but the gardener was not licensed and the gardener’s negligence caused the fall. Jones claimed that Sorenson was liable to Jones under a respondeat superior theory, because she was as a matter of law the employer of both the gardener and Jones.

The trial court ruled in effect that the terms “gardener” and “nurseryperson” as used in Business and Professions Code section 7026.11 were synonymous, and therefore Sorenson could avoid tort liability because a person acting as a nurseryperson may trim trees 15 feet tall or higher without a contractor’s license, although a gardener cannot.

We disagree with this reading of the relevant statute, which distinguishes between a “gardener” and a “nurseryperson”; the latter refers to a licensed operator of a nursery, whereas a gardener does not require a license. There is no evidence that the gardener Sorenson hired was also a nurseryperson. This means Sorenson--the movant on summary judgment--has not refuted the claim that she was the gardener’s (and therefore Jones’s) employer, and potentially liable under a respondeat superior theory for the gardener’s alleged negligence."

The practical takeaway is in footnote two:

"As this case illustrates, a homeowner wanting tall trees (15 feet or taller) trimmed may minimize liability by hiring a licensed tree service contractor, that is, a person holding a “C-61/D-49 Tree Service” specialty license issued by the Contractors State License Board. (See Cal. Code Regs., tit. 16, § 832.61; Dept. of Consumer Affairs, Contractors State License Bd. (2015) Description of Classifications, p. 16 [licensing a person who “prunes trees, removes trees, limbs or stumps . . . .”].)"

Got it.  Will do.

Wednesday, August 01, 2018

Jaime G. v. H.L. (Cal. Ct. App. - July 31, 2018)

I clearly have hacked someone off in the California judiciary, because the court's webpage has for the past several days weirdly blocked entire campus of the University of San Diego from accessing it -- a harsh remedy, to be sure.  So no access to opinions, no access to case information, etc.

But fear not.  I'm just hopping on other IP addresses to continue to read the stuff.  Hopefully the court will correct the problem soon.  (Though I'll add that numerous e-mails from USD's IT department to the court's webpage administrator have sadly gone unanswered.)

Meanwhile, in the real world, check out this opinion.  Where things are much worse for everyone involved.

There's the Mother, who allegedly (1) abuses crystal meth, (2) leaves her seven-year old kid with a babysitter for days while she's high, and (3) doesn't send her child to school much when she's with him.

Then we have Father, who allegedly (1) commits domestic violence against Mother, and (2) "liv[es] in a house, sleeping in a bunk bed in a room with four others[, with] Father and Matthew [] in the top bed, while Father's partner Clara sle[eps] below with her two children," for which he pays "$500 in monthly rent."

Then there's the court, which diligently attempts to try to figure out where the kid should live under such circumstances, and whose efforts to do so are consistently frustrated by Mother's lawyer, who (unwisely) keeps interrupting the court so much that the judge is forced to terminate the hearing even before the court can make the required findings.

Finally, and most importantly, there's the seven-year old child, Matthew.  Who has to endure all of this.  Through entirely no fault of his own.

I'll also mention that Mother has an attorney -- on appeal, from the Los Angeles Center for Law & Justice, as well as from Gibson Dunn.  Whereas father is entirely unrepresented, both below and on appeal.

Check out the opinion and see what you think the custody situation should be.  Not that it's going to be easy to figure out how to work this thing even if you can come up with something; to take but one problem, Father and Mother live 45 minutes away from each other, and only Father has a car.  Mother is not only far away, and very far from the child's elementary school, but says she "lived in a house with others, [but] was unsure who owned it" and has "three children besides Matthew, ages nine, 10, and 12.  They were in Guatemala.  Mother last saw her other children in 2007."

Much bigger problems than having your IP address blocked by the California court's webpage.

POSTSCRIPT - I subsequently received an incredibly nice e-mail from the Judicial Council's IT department about the blockage issue.  It still isn't working, but it was great to get a follow-up, and good to know I'm not the only one with the problem (apparently, the court in Alpine, amongst other places, has a similar issue).  Thanks also to the Reporter of Decisions for alerting the JC's IT to the issue.  Super responsive by everyone.

Planned Parenthood v. Center for Medical Progress (9th Cir. - Aug. 1, 2018)

I'm sorry.  Did I originally file a concurrence that said that we should take this case en banc to make sure that denials of anti-SLAPP motions are no longer subject to immediate appeal?  (Yes.)

What I meant is that we should take some future case en banc.  Not this one.

That's Judge Gould's change of heart this morning.

Tuesday, July 31, 2018

Hansen v. Newegg Americas (Cal. Ct. App. - July 31, 2018)

It doesn't happen often, but sometimes trial courts make decisions that seem totally baffling.  You may perhaps have had personal experience with one of those.  The other side files a motion, you oppose it, you conclude that there's absolutely no way you're going to lose the thing, and then lo and behold, the trial court grants the motion.

Here's an example.

Plaintiff files a putative class action that says that Newegg advertises "discounts" off of "regular" prices that are essentially fake.  The "regular" price isn't, in fact, the market or Newegg's regular price, and the "discount" is totally illusory.  Defendant files a demurrer that says there's no standing because plaintiff got exactly what he paid for.  Plaintiff disagrees, and says it's actionable false advertising.

There's a legion of cases that pretty clearly say, in my view, that doing what Newegg allegedly did violates the statute.  And those holdings are backed up by the text of the statute itself, which says that it's false advertising to post "fake" regular prices that aren't in fact the market price.  So were I one of the attorneys, I'd have thought that this was a no-brainer, and that plaintiff was obviously going to prevail.

But it'd have been one of those cases I described.  Because the trial court indeed granted the motion and dismissed the case.

Fortunately, the Court of Appeal reverses.  In an opinion that seems self-evidently and obviously right.

Sometimes the trial court doesn't see things the same way you do.

That's why we have a Court of Appeal.

Monday, July 30, 2018

Gordon v. Drape Creative, Inc. (9th Cir. - July 30, 2018)

Were I a teenager or tween or even twenty-something, perhaps I'd know the background of the catch phrases "Honey Badger Don't Care" and "Honey Badger Don't Give A Sh**."

But I'm very much not.

Yet, after today's opinion, I can at least intelligently discuss whether those phrases constitute an expression protected by the federal trademark laws.

(Plus, yes, I actually checked out one of the videos.  Apparently the honey badger does not, indeed, care deeply about a variety of things.)

So take that, millennials.

Thursday, July 26, 2018

Segalman v. Southwestern Airlines (9th Cir. - July 23, 2018)

Here's one person's experience with Southwest Airlines:

"Robert Segalman has cerebral palsy and uses a motorized wheelchair. In 2009 and 2010, Segalman’s wheelchair was repeatedly damaged while in the possession of Southwest Airlines Co. (“Southwest”). On one occasion, Southwest returned Segalman’s wheelchair to him without a seatbelt, which had been attached when Segalman left the wheelchair in Southwest’s care at the airport departure gate. Before Segalman could get an appointment to replace the seatbelt, he fell out of his wheelchair and broke his shin in two places, resulting in a four-day hospital stay. On another occasion, Southwest returned the wheelchair to Segalman with a broken armrest. On a third occasion, Southwest returned the wheelchair with damage to the joystick that rendered the wheelchair inoperative."

Mr. Segalman subsequently sues, claiming that Southwest “discriminated against an otherwise qualified individual” on the ground that the individual “has a physical or mental impairment that substantially limits one or more major life activities” 49 U.S.C. § 41705(a) in violation of federal law.  But the Ninth Circuit holds that this statute doesn't create an implied private right of action.

Maybe he'll be able to sue on some future date, because Congress is thinking about amending the statute to create an express private right of action.  Though that assumes (1) that the amendment is passed, and (2) Segalman keeps flying Southwest.

I don't know whether (1) will transpire.  But my guess is that (2) might -- perhaps surprisingly -- still happen.  Because for some inexplicable reason, Mr. Segalman kept flying Southwest even after it allegedly continued to repeatedly damage his wheelchair in flight.  So maybe he'll keep on that same path.  But for now, he's out of luck.

Wednesday, July 25, 2018

Allen v. Milas (9th Cir. - July 24, 2018)

Jerrid Allen is a U.S. citizen and a Major in the United States Army.  He gets deployed to Iraq.  He is stationed in Germany thereafter.  He meets and marries a German woman therein, and they have three (undoubtedly lovely) children.

In 2013, the Army orders Major Allen back to the States.  His wife applies for a visa so she can go to the U.S. with her husband and three children.

But the U.S. Citizenship and Immigration Services department (USCIS) denies her application and says she's not permitted to be with her family.  Because a German court once found her guilty of theft and possession of narcotics.  Fifteen years ago.

Judge Bybee's opinion says that's just fine, and affirms the dismissal of Major Allen's attempt to unite his family.  He end his opinion by saying that the court is "sympathetic to Major Allen’s efforts to unite his family in the United States during his next miliary [sic] assignment."  That seems to me to dramatically understate the point.

Major Allen has actively fought for his country.  He continues to serve; as an officer, no less.  He married a German woman in good faith and had three children with her.  He wants his family to live in the United States, where he continues to serve in the military.  To refuse to allow him to bring his wife with him to the United States alongside his three young children seems ruthlessly harsh to me.  Particularly when the basis for doing so concerns some relatively minor crimes that transpired long ago.

And to say that all that is at stake is the ability to "united [a] family" during someone's "next mili[t]ary assignment" similarly seems to dramatically understate the interests at stake.  Major Allen wants to live with his wife and children in the country in which he is a citizen and which he proudly defends.  It's not merely his "next military assignment."  It's his home.  His country.  He doesn't want to abandon his wife.  He doesn't want his children to be without their mother or father as they grow up.  He doesn't want to quit the military and leave his country in order to be with the woman he loves and the mother of his three children.

That's what's actually at stake.  And, personally, I'm more than just "sympathetic" to his plight.  I'm outraged that the situation is what it is.

Mrs. Allen should receive a visa.  Now.

Echavarria v. Filson (9th Cir. - July 25, 2018)

The murder of an FBI agent during a bank robbery.  A confession allegedly obtained through torture by Mexican police officers.  A trial in which the judge was previously investigated for corruption, fraud and perjury by . . . the FBI agent who was murdered.  The defendant sentenced to death in that proceeding.

All from today's Ninth Circuit opinion.  And perhaps a future made-for-television movie.

Tuesday, July 24, 2018

People v. Yates (Cal. Ct. App. - July 23, 2018)

Justice Lui begins this opinion by saying:

"This case presents the following issue: May an expert relate as true the case-specific content of documents which were neither admitted into evidence nor shown to be covered by a hearsay exception?"

Well, yeah.  When you put it that way, the question sort of answers itself, doesn't it?

As indeed the Court of Appeal so holds.  "We conclude under People v. Sanchez (2016) 63 Cal.4th 665, 684–686 (Sanchez), that such testimony is inadmissible."

Framing the question in a particular manner sometimes tells you all you need to know.


Monday, July 23, 2018

People v. Bear (Cal. Ct. App. - July 23, 2018)

There are so many things wrong about this opinion.  Yet one thing right.

Here are the facts:

"In 1978, defendant approached a high schooler on a transit bus and told him to take off his Ted Nugent concert T-shirt because defendant didn’t like it. When the boy did not comply, defendant kicked him in the face and took out a knife. The boy took off the shirt and handed it to defendant who threw it out the bus window. In connection with the incident, defendant pleaded guilty to grand theft person (§§ 484-487), a felony, on January 7, 1980."

Okay, first off, it's 1978.  Why is someone offended at a Ted Nugent t-shirt?!  Ted Nugent wasn't especially politically active -- at least as far as I can recall -- at that point in his career.  And, yeah, maybe you're of the mind that his music ain't all that awesome, but let a dude wear his t-shirt anyway, okay?!  Chillax, as the kids say (or at least once said).

But okay, there you have it.  A felony.  An incredibly stupid felony that I totally can't understand, but a felony regardless.

Then Proposition 47 gets passed, so the petitioner asks the felony to please be kicked down to a misdemeanor.  And files a petition.  Which in turn requires that Mr. Bear demonstrate that the value of the property taken (since the plea was for grand theft) to be less than $950.

But the petition doesn't do so.  It doesn't say the property was less than $950.  It doesn't mention the value of the property at all.  And it doesn't even mention that the property was a t-shirt.

Seriously?  Who's writing this thing?!  That's some pretty basic stuff.  PUT IT IN THERE.

So the trial judge then gets the petition and says screw you.  I'm denying it because you didn't meet your burden of proof.  Except the trial judge KNOWS it's a t-shirt -- and clearly one not worth over $950 -- because the judge apparently has the preliminary hearing transcript.  Now, is a trial judge compelled to pore through a record to find some basic facts?  No.  But if the thing is seriously right there, and it's easy to tell that we're talking about a t-shirt, maybe you just want to go ahead and do that anyway.  Even though it takes a couple of minutes and the law doesn't require it.  Lest someone be deprived of their liberty for, say, years because of a stupid mistake.

So then the defendant files a second petition.  And the District Attorney -- to the DA's credit -- says, yeah, it's only a t-shirt, we're cool with everything, the guy's entitled under Prop. 47 to reduce the conviction to a misdemeanor, so go ahead and do that, we stipulate.  At which point the trial court says, nope, still not gonna do it.  I don't care about the merits.  You only get one shot, and since you screwed it up the first time, and since I didn't say I was denying your petition "without prejudice," I'm rejecting the stipulation and keeping the felony.

Seriously?!  Are we really THAT hard core about procedure in a case like this?  Especially since the statute does not, in fact, say that you only get one shot at a petition?

The Court of Appeal ultimately reverses and remands.  Holding that, yes, the trial judge did indeed have discretion to hear the second petition.  So since the judge didn't think that she had any such discretion, we're going to go ahead and remand so she can give it another shot.

Though I gotta say, I'm not sure that this particular judge seems like she's very sympathetic to the defendant's plight.  So we'll see what happens on remand.

In the end, the Court of Appeal gets it right.  But everything else about the underlying events seems so wrong to me.  From the inexplicable crime right on down to the desperate attempt to do everything possible to make sure this defendant doesn't get the Prop. 47 relief applicable to the relevant crime.

Thursday, July 19, 2018

People v. Booth (Cal. Ct. App. - July 19, 2018)

To figure out what the defendant's sentence was, all you need to know are the offenses for which he was convicted:

"Defendant was convicted of five counts of sexual penetration of a child 10 years old or younger; 1 three counts of oral copulation of a child 10 years old or younger; five counts of preparing pornographic images of a minor; one count of possessing child pornography; and one count of sexual exploitation of a child. As to count 9, possession of pornography, the jury found it to be true that defendant possessed more than 600 images and 10 or more images involving a prepubescent minor or a minor under 12 years old."

Yeah.  You're never, ever getting out of prison.  Ever.

The actual details of the offenses are amongst the most disturbing I've ever read.  Too disturbing even to post here.

I'm confident that history will at some point judge our practice of locking up twenty-something-year olds for the rest of their lives, without any effective possibility of release and in the conditions in which they are so confined.  I'm not at all confident that this judgment will be a favorable one.

At the same time, defenders of our contemporary practices will point to cases like this one as why we did what we did.

Anyway, a distressing case.

Ross v. Williams (9th Cir. - July 19, 2018)

Usually the "relation back" principles of FRCP 15 are meaningful only to particular civil litigants who have filed an amended complaint.  But because habeas petitions are technically civil actions, the contours of this rule sometimes make a dispositive difference in a prisoner's liberty.  So it's important to get them right.

The majority and the dissent here disagree on how best to apply these principles.  Here's how the first paragraph of the dissent concisely frames the issue:

"Proceeding pro se, Ronald Ross filed a federal habeas petition a few months before his time to do so under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was set to expire. His form petition asserted ineffective assistance of trial counsel on several grounds, including failure to secure a speedy trial, to assert prejudice from evidence lost before trial, to retain defense experts, and to object to the state’s experts. Ross’s petition contained no specific factual allegations, but he attached to his petition a six-page state-court decision that discussed the factual bases of most of his claims in some detail. The majority holds that Ross’s amended petition—which he prepared with the assistance of counsel but filed several months after AEDPA’s deadline had passed—does not relate back to the date of his original petition because the original petition set out no facts. See Fed. R. Civ. P. 15(c)(1)(B) (providing that an amendment relates back if it asserts claims that arise out of the “conduct, transaction, or occurrence” set out in the original pleading)."

The majority thinks there's no relation back.  Check out the opinion to see if you agree.

Wednesday, July 18, 2018

Willhide-Michiulis v. Mammoth Mountain (Cal. Ct. App. - July 18, 2018)

There are lots of inherent risks of skiing and snowboarding.  You might not think that getting hit by a snowcat operated by the resort and having your leg amputated was one of these inherent risks. 

But the Court of Appeal makes clear today that this is, in fact, all on you.  As Justice Robie puts it: "Mann’s driving of the snowcat with a tiller on an open run was not grossly negligent and was, in fact, an inherent part of the sport of snowboarding and conduct contemplated by the parties in the release of liability agreement. The question now is whether the additional conduct alleged in plaintiffs’ opposition -- Mann’s failure to use a turn signal, making of a sharp left turn from the middle of the snow run, failure to warn skiers on mambo of his presence, and failure to warn skiers of the existence of Old Boneyard Road -- elevated Mann’s conduct to gross negligence. We conclude it does not."

Enjoy the upcoming winter.  Watch out for snowcats.

Tuesday, July 17, 2018

Weinstein v. Blumberg (Cal. Ct. App. - July 17, 2018)

I'm not sure of the prevalence of this practice.  But apparently, some attorneys believe that you can circumvent the discovery motion to compel deadlines in state court by simply filing the notice of motion within the relevant (e.g., 60-day) deadline and then serving the actual supporting documents (points and authorities, declarations, etc.) later, in advance of the hearing.  The theory, I imagine, is that it's easy to file the notice of motion, and then you'll do the real work later, after the deadline has expired but before the ordinary motion briefing schedule.

Sorry, though. The Court of Appeal makes clear today that doesn't work.

Get all those papers in on time next time.


Monday, July 16, 2018

Post Foods v. Superior Court (Cal. Ct. App. - July 16, 2018)

The federal government would generally like people to eat whole grains.  The Court of Appeal holds that policy objective means that California's statute that requires consumers to be warned about things that may cause cancer (via warning labels) is preempted vis-a-vis breakfast cereals in which such cancer-causing chemicals are created by baking, frying, or roasting such grains.

Which is a shorthand way of saying that since telling the people the truth may cause them to react in ways we think are bad for them, we'll make sure they're kept in the dark.

Even when they are (1) adults, (2) in a democracy, who (3) voted to be informed.

The net result may perhaps be improved health for some segment of the population.

With a corresponding decrease in personal autonomy.

Shorter v. Baca (9th Cir. - July 16, 2018)

From today's opinion:

"At trial, Shorter presented uncontroverted evidence that the County, tasked with supervising high-observation housing for mentally ill women, has a policy of shackling the women to steel tables in the middle of an indoor recreation room as their sole form of recreation, and that jail officials routinely leave noncompliant detainees naked and chained to their cell doors, for hours at a time without access to food, water, or a toilet."

At a minimum, that doesn't sound like particularly fun "recreation."

A bit more detail:

"For recreation, deputies move the women to an indoor day room, where they leave the women with one arm restrained by a handcuff extended from a chain secured to the floor. The women sit individually at indoor steel tables and benches. Some watch television and others participate in group activities. Jail policy requires the women to remain handcuffed to the chain next to the table at all times, and HOH detainees do not have access to a gym or an outdoor recreation area. Shorter participated in two and half hours of this type of recreation during her thirty-two days in the jail. The jail’s daily logs also show that on seven days of her confinement Shorter received less than three meals per day. And the same logs show that Shorter showered only three times, going six, seven, or eight days during her confinement without a shower, and instead relying on feminine pads for personal sanitation."

And then there's the always-fun cavity search:

"Shorter also challenges the jail’s visual body cavity search policy, which all inmates are subjected to upon return from trips to court, and the jail’s pervasive practice of leaving noncompliant detainees shackled to their cell doors. The search process begins with the detainee inside her cell, with both hands in handcuffs. The detainee then places her hands outside the chute of her cell, where the deputy, on the other side of the door, unlocks one of the handcuffs. Then, with one hand still handcuffed and attached to a chain outside of the door, the detainee removes her pants, socks, and shoes, as well as her shirt and bra, which remain attached to the chain extending from her handcuff. The detainee must then lift her breasts, lower her underwear, bend over, open her vagina and rectum, and cough. The County’s official policy mandates that inmates shall not be required to “remain in any search position for more time than is reasonable and necessary to complete the search.”

In practice, however, where the detainee failed to comply with the search procedures, it was common for deputies to leave the detainee chained to her cell door for hours at a time. Deputies Avalos and Ortiz testified that they were trained to leave noncompliant detainees who did not follow search procedures chained to their cell doors. Shorter testified that, on three occasions, deputies Avalos and Ortiz left her chained to her cell door for three to six hours, without access to food, water, or clothing. On one occasion, the deputies did not leave enough slack on Shorter’s chain to allow her to reach the bathroom in her cell. Shorter testified that there was only enough slack on the chain to allow her to sit on the floor and hold her hand up in the air. Each time the deputies chained Shorter to her cell door, Shorter freed herself by manipulating her hand out of the restraints or by convincing another deputy to release the restraints. Shorter said that these incidents made her feel like “an animal on display.”"

Plaintiff loses below.  The Ninth Circuit reverses and remands.

Friday, July 13, 2018

L.B. v. M.B. (Cal. Ct. App. - July 13, 2018)

I'm all in favor of using abbreviations to shield the identity of litigants in appropriate cases.  So even in a civil case (as here), if there are allegations of domestic abuse, personal sexual conduct, etc., and there's a minor child involved, it generally makes sense to omit the actual names of the parties.

Yet this is one of those rare cases in which doing so makes little sense.

The nanny is L.G., the (ex-) wife is M.B., and the (ex-) husband is S.B.  It's a celebrity couple and their nanny, with Wife saying that Husband had sex with Nanny, got her pregnant, etc.  Nanny then sues Wife for defamation and other torts, Wife files but loses an anti-SLAPP motion, and Wife then appeals.

All lurid stuff, with more in the actual opinion, so you can well understand why the Court of Appeal employs initials.

Though it merits mention that this stuff is all over the press anyway.  Like, everywhere.

Unless it just so happens that this is merely one of several nanny-threesome-lawsuit-disputes involving people with the initials L.G., M.B., and S.B. that doesn't involve Lorraine Gilles, former Scary Spice Melanie G., and Stephen Belafonte.  In which case, yeah, definitely use initials.

P.S. - FYI, "M.G." loses her appeal.


Thursday, July 12, 2018

People v. Torres (Cal. Ct. App. - July 12, 2018)

See whether you think this is (1) awesome police work, or (2) an interrogation that convinced a 73-year old Mexican immigrant to falsely confess to molesting a child.  I can see strong arguments on both sides.

The elderly man at issue was clearly not sophisticated (a huge understatement).  The police took advantage of that by repeatedly lying to him and convincing him that because the "science" would clearly prove him guilty, his only way "out" was to say what the police were telling him he had to say.  Which he then did.  You can definitely see how this might result in false confessions.  And it's not like there's a ton of other evidence that the guy in fact molested the four-year old girl at issue.

At the same time, maybe the guy is guilty, and the police got him to incriminate himself.  Perhaps accurately.

It comes down, I think, to a value judgment about what level of risk you're willing to take that you are encouraging false confessions.  (The theory that we can just admit the evidence and "let the jury sort it out" seems both a cop-out and demonstrably false.)  If you care deeply about not putting an innocent person in prison, I think that interrogations like this one have to be stopped.  But if you're willing to run a 10% (5%? 1%?) risk of a false confession, then I can see why you'd let this stuff go on.

Ultimately, here, the Court of Appeal holds that the present facts are pretty darn close to a prior case that held that the interrogation was custodial, so it was ineffective assistance of counsel not to try to exclude the confession (since there were no Miranda warnings).  But the broader issue remains.  Say the police had indeed given the warnings.  Which I have no doubt would not have mattered in the slightest to what the elderly man in fact did here.  Are we then totally fine with police methods like these?

Wednesday, July 11, 2018

Richardson v. DMV (Cal. Ct. App. - July 11, 2018)

Yes, the 93-year old woman at issue had a history of causing accidents.  Yes, the DMV suspended her license previously, and yes, I'm confident that other DMV employees may not have passed her on her final driving test.  And, yes, she hit the plaintiff on his motorcycle and caused serious injuries.  ("The accident severed Richardson’s left leg, broke his right leg and pelvis, damaged his spine, and left him paralyzed from the waist down.")

But there's a specific statute that immunizes the DMV for liability for making alleged mistakes in the issuance or licenses.  So it rightly obtains summary judgment.

Sorry about that.  But it's the law.

Tuesday, July 10, 2018

U.S. v. Hernandez (9th Cir. - July 10, 2018)

It's bad enough when you sleep with a 17-year old minor you coach in club softball.  You only make it worse for yourself when you exchange intimate photos with her.  Because that constitutes child pornography.

And the whole shebang gets you over 23 years in prison.

National Asian American Coalition v. Brown (Cal. Ct. App. - July 10, 2018)

Today the Court of Appeal decides the fate of $331 million held by the State of California.  And directs that it be transferred out of the state's General Fund and back into the National Mortgage Settlement Fund.

A pretty hefty chunk of change.


Monday, July 09, 2018

U.S. v. Obendorf (9th Cir. - July 9, 2018)

This is not the most monumental Ninth Circuit opinion you'll ever read.  About a misdemeanor conviction, no less.  So you can survive and flourish the rest of your life even if you never come across it.

But if you're a city kid like me, you'll nonetheless learn something if you take a gander.  Since it's abut baiting ducks.  Something I didn't know a lot about before today.

It's a case from Idaho (of course).  It involves the intersection between people who like to kill ducks for sport and federal laws that try to regulate this practice:

"Obendorf’s farm lies just north of the Boise River, near the town of Parma, Idaho. Hundreds of thousands of ducks pass by the farm during their annual migration each fall. One of Obendorf’s fields is about fifteen acres in size and planted with corn. It has come to be known as the duck field . . . .

A few times a year, federal agents from the U.S. Fish and Wildlife Service (FWS) patrol the river valleys of southwestern Idaho by airplane, looking for signs of waterfowl baiting. On November 15, 2013, FWS Special Agent Scott Kabasa and two of his colleagues flew over Obendorf’s farm. Such flights are routine, but Kabasa paid special attention to Obendorf’s farm during the November 15 flight because he had received a number of tips that Obendorf was baiting ducks on his property. As the plane passed over Obendorf’s farm, Kabasa noticed several large piles of corn in the duck field, including a pile near a hunting pit blind. Kabasa also noticed the duck field had been harvested differently from other fields on Obendorf’s farm. Most of Obendorf’s cornfields were fully harvested, but the duck field was “strip combined”—meaning it was harvested in alternating strips such that many rows were left untouched.

That night after dark, Kabasa and Brian Marek, a conservation officer with the Idaho Department of Fish and Game, snuck onto Obendorf’s farm to take a closer look. Kabasa and Marek counted six large piles of loose corn kernels on the duck field, including one “within shot-shell range” of the pit blind. They also inspected the stripcombined rows in the duck field and observed “an exorbitant amount” of corn kernels littering the ground under the stalks. Kabasa later testified that “the vastness of the corn that was on the ground was unbelievable.” The agents walked Obendorf’s other cornfields, which, unlike the duck field, appeared neatly combined and fully harvested."

So the authorities investigate further and eventually charge (and convict) Mr. Obendorf.  Which leads to today's Ninth Circuit opinion by Judge Christen.  Who writes a 23-page opinion about the relevant statutes and regulations that ends with:

"The Migratory Bird Treaty Act regulations do not create a regulatory exception to the MBTA’s ban on unlawful baiting. Obendorf was charged with unlawful baiting, not unlawful hunting, so 50 C.F.R. § 20.21(i)(1) could not have immunized his conduct. Although the parties misapprehended the law below, any error was harmless. Accordingly, Obendorf’s conviction is AFFIRMED."

So slightly safer to be a duck today in Idaho.

Slightly.

Thursday, July 05, 2018

Jameson v. Desta (Cal. Supreme Court - July 5, 2018)

Good news for indigent litigants, who will now get a court reporter (for free) even in those courts that have done away with official court reporters.

Slightly bad news for non-indigent litigants.  As footnote 18 of the opinion suggests that that it'll be the opposing (non-poor) parties who'll pay for that official reporter.

But a unanimous opinion demonstrating that the California Supreme Court continues to care about the quality of justice dispensed to indigent litigants.

Monday, July 02, 2018

Brown v. Smith (Cal. Ct. App. - July 2, 2018)

Some summaries are concise and to the point.  Those are awesome.  But sometimes they do even more.  Maybe even give some historical background, discuss precedent, etc.

Today's opinion is a good example of the latter category.

Here's how Justice Grimes begins the opinion.  One that's important in its own right on the merits, but also a great example of style:

"In 1890, the California Supreme Court rejected a constitutional challenge to a “vaccination act” that required schools to exclude any child who had not been vaccinated against small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230 (Abeel).) In dismissing the suggestion that the act was “not within the scope of a police regulation,” the court observed that, “[w]hile vaccination may not be the best and safest preventive possible, experience and observation . . . dating from the year 1796 . . . have proved it to be the best method known to medical science to lessen the liability to infection with the disease.” (Id. at p. 230.) That being so, “it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.” (Ibid.)

More than 125 years have passed since Abeel, during which many federal and state cases, beginning with the high court’s decision in Jacobson v. Massachusetts (1905) 197 U.S. 11 (Jacobson), have upheld, against various constitutional challenges, laws requiring immunization against various diseases. This is another such case, with a variation on the theme but with the same result.

We affirm the trial court’s order dismissing plaintiffs’ challenge to an amendment to California law that eliminated the previously existing “personal beliefs” exemption from mandatory immunization requirements for school children."

Nicely done.

Tuesday, June 26, 2018

FHLMC v. SFR Investments Pool (9th Cir. - June 25, 2018)

That's strange.  I've never seen something like this before.

Yesterday, the Ninth Circuit said that it published the opinion in Case No. 16-15962.  The opinion remains listed on the daily list of published cases.

But today, when you click on the link, all you get is a Ninth Circuit "404" reference, saying "Sorry, the page you tried cannot be found."

Even though the opinion remains available on Westlaw and on a cache via Google.

Opinions rarely just disappear from the Ninth Circuit web site.  (Though maybe there was an intervening technical error?)

Regardless, for now, the opinion is no longer there.






Peralta v. Vons (Cal. Ct. App. - June 26, 2018)

This is a lot of litigation over a slip-and-fall at a Vons.  Particularly since (1) the plaintiff didn't see anything that she slipped upon, (2) there was allegedly a store inspection of that exact area eight minutes before the fall, and (3) the plaintiff was wearing three-to-four inch stiletto heels at the time she fell.

In any event, Vons gets summary judgment, and the Court of Appeal affirms.

Monday, June 25, 2018

Moofly Productions v. Favila (Cal. Ct. App. - June 22, 2018)

I know you want to sanction the other side for filing a frivolous motion for reconsideration under CCP 1008.  Those motions are, indeed, occasionally frivolous.  And, yes, the statute provides for sanctions under such settings.

But such sanctions are only permitted when "allowed by section 128.7."  Which -- sadly, for you -- means you've got to provide the other side with the requisite 21-day safe harbor.

Sorry about that.

Thursday, June 21, 2018

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

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

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

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

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

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

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

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

Fine company indeed.

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

Tuesday, June 19, 2018

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

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

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

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

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

Weird stuff all around.


Monday, June 18, 2018

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

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

The same's true for verdict forms.

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

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

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

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

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

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

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


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

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

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

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

Thursday, June 14, 2018

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

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

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

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

Not a good day.  For anyone.

Wednesday, June 13, 2018

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

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

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

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

Who wins in Woman's lawsuit against Trucker?

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

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

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

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

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

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

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

This opinion, by contrast, decides the other way.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 12, 2018

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

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

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

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

Or, when talking to the defendant:

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

Or, when talking to her attorney:

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

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

Monday, June 11, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 07, 2018

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

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

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

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

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

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

Except it sort of does.  Sort of.

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

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

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

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

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

As I said before:  Sort of.

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

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

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

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

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

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

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

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

Technical "free pass" or no.

Tuesday, June 05, 2018

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

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

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

Monday, June 04, 2018

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

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

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

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

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

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




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

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

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

Friday, June 01, 2018

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

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

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

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

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

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

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

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

Which tees up the case for the Court of Appeal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which is the thing we're supposed to enforce.

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