Wednesday, April 18, 2018

Shapira v. Lifetech Resources (Cal. Ct. App. - April 17, 2018)

Plaintiff has a contract with Defendant, and goes to trial.  The trial lasts four full days.  Right before the parties make their closing statements, Plaintiff voluntarily dismisses the lawsuit with prejudice.  Defendant moves for its attorney's fees, claiming that it's the prevailing party.  The trial court agrees and gives 'em a six-figure fee award.

The Court of Appeal rightly reverses.  It may well be a silly rule.  But it's nonetheless the law.  CCP 581(e) says that the plaintiff can voluntarily dismiss, with prejudice, at any point during the trial, as long as it's not over.  And when that happens, there's no "prevailing party."  Hence no fee award.

Were I to have the power to rewrite the statute, I would.  Sure, it encourages "settlement" (e.g., the abandonment of meritless cases), which enhances efficiency.  But at too great a cost.  Defendants should be the prevailing party when that stuff happens.

But I have no such power.  Nor does the Court of Appeal.  The statute says what it says.  So the right result is clear.

Which is exactly what the Court of Appeal holds.

Tuesday, April 17, 2018

U.S. v. Arpaio (9th Cir. - April 17, 2018)

We're all familiar -- certainly in this day and age -- with a special prosecutor.  But one appointed by the Ninth Circuit?!  That's certainly a rarity.

Yet it happens today.

No word yet on the identity of the special prosecutor selected by the Ninth Circuit.  But I'm keenly interested.  As is, I imagine, Joe Arpaio.

Stay tuned.

All Green Electric, Inc. v. Security Nt'l Ins. Co. (Cal. Ct. App. - April 17, 2017)

It's just a tiny little loose bolt in an electric cabinet.  But it created a magnetic field, which in turn stopped an entire mammography room (including an MRI and an x-ray machine) from working.

All from a loose bolt, and when the bolt was tightened, the magnetic field suddenly disappeared.

Which leaves the resulting lawsuit.  And then the tender to the insurance company.  Which refused to defend based upon a particular exclusion clause.

So a tiny little bolt and a tiny little one-paragraph exclusion.  Both of which had major impacts far beyond their size.

Monday, April 16, 2018

Powell v. Bear Valley Community Hospital (Cal. Ct. App. - April 16, 2018)

"Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents—behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges."

First of all:  Ouch.  Second:  Seems to me like the termination makes sense.

Though Texas had a different view.  "The Texas State Board of Medical Examiners (Texas Board) completed an investigation of Dr. Powell's revocation of staff privileges at Brownwood. In a letter dated September 12, 2001 (2001 letter), the Texas Board advised Dr. Powell that its investigation, file No. "00-1243," was being "CLOSED with no action recommended because the evidence does not indicate a violation of the Texas Medical Practice Act.""

What follows -- to the surprise of no one -- is a series of lawsuits, Dr. Powell's attempt to obtain privileges at different hospitals, etc.  Dr. Powell loses his (Texas) lawsuit against Brownwood on summary judgment, says various things to Bear Valley Community Hospital and obtains privileges, gets into a subsequent fight with Bear Valley as well, etc. etc.

You can read all about it here.

All this ends unhappily for Dr. Powell.  Here's how the Court of Appeal concludes its opinion:

"The Texas court opinion and a report by Brownwood's fair hearing committee were relevant to whether Dr. Powell misrepresented the reasons for his termination of privileges. The Brownwood patient's case illustrated how Dr. Powell's lack of candor and/or integrity could result in adverse patient outcomes. There is no evidence in the record that the Board acted irrationally. In summary, Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. . . . The judgment denying Dr. Powell's petition for writ of mandate is affirmed. Costs on appeal are awarded to Bear Valley."


Though small solace, I imagine, to the boy whose vas deferens was severed.

Friday, April 13, 2018

People v. Tom (Cal. Ct. App. - April 13, 2018)

I know, I know, I know.  It's a Friday.  A sunny, warm, glorious Friday in April, no less.  At least here in Southern California.  Spring Break, even, for some of those lucky enough to still be in school.

And even for the indoor-bound, working adults amongst us, there are so many other distractions.  Stormy Daniels.  Then the other Playboy model, Karen McDougal.  And now a third Playboy model, currently unnamed.  That's a lot of scintillating news, political and otherwise, to keep one entralled.

These are surely exciting times.

Plus, on a less fun note, tax returns are due next week.

So there's a lot of competition for our entertainment value.  Who has time for the mere California appellate courts?!

The best I can do in this regard is today's opinion from the Court of Appeal.  Which at least attempts to compete with the other scintillating (titillating?) content currently in the news.

Here's the one-paragraph version of the facts:

"While watching a small dog that belonged to his girlfriend’s parents, defendant Jesse Cody Tom beat, stabbed, and strangled the dog. Defendant then covered the dead dog with oil and placed it inside a barbeque. Before he could light the deceased dog on fire, however, officers arrived on scene and apprehended defendant after he fled."

Dude!!  Not good.  Not okay.  No bueno.  In no way, shape, or form.

Read the whole opinion for more details.  Plus learn Mr. Tom's fate.  To foreshadow:  He's a prior felon, and part of his sentence for this whole affair includes a conviction for attempted arson.  Since he didn't even keep the attempted dog-burning confined to the outdoor Weber grill.

The world's a crazy place, my friends.

Enjoy the weekend.

Wednesday, April 11, 2018

Francheschi v. Yee (9th Cir. - April 11, 2018)

I've seen plenty of unsympathetic plaintiffs asserting unsympathetic claims in my day.  I'm definitely adding this one to the list.

Plaintiff claims that it's unconstitutional to publish a list of the 500 most delinquent taxpayers in California that owe over $100,000 in back taxes and to suspend their driver's license.  Call me crazy when I say that I'm not totally itching to strike down the law and protect people who don't pay their massive tax debts.  Boo-hoo.

And the plaintiff himself only obviates any lingering sense of sympathy I might otherwise have.  He failed to file any California income tax returns from 1995 and 2012.  That's seventeen years of taxes.  And owes a boatload of money.

Oh, one more thing.  Lest any lingering sympathy exist.

He's an attorney.

Yep, the plaintiff is Ernest Joseph Franchesci, Jr.  A Los Angeles attorney and Southwestern Law graduate.  He litigates his Ninth Circuit appeal pro se.  And gets crushed.

For good reason.  In my view, Mr. Franchesci is lucky he's not in prison and/or disbarred.  The lack of a driver's license should, in my opinion, by the least of his worries.

His legal claims are also completely meritless.  He says the suspension of his license doesn't give him sufficient procedural due process.  Ignore for the moment the controlling Supreme Court precedent to the contrary that the Ninth Circuit says Franchesci ignores.  There's no doubt whatsoever that there are sufficient pre-deprivation procedures to challenge the relevant tax liability.  As the Ninth Circuit explaines:  "Franceschi’s arguments overlook the fact that he had a readily available, constitutionally valid, pre-deprivation opportunity to prevent the suspension of his license. After receipt of the notice of revocation and before his license was suspended, Franceschi could have challenged his threatened suspension by paying his taxes and filing a refund claim with the FTB. See Cal. Rev. & Tax Code § 19382. The payment of his tax liability would have allowed him to retain his driver’s license. He would then have the opportunity to file a refund claim and challenge the original tax assessment. In the event the FTB denied his refund claim, he could still obtain relief by suing for a refund in California Superior Court."  Spot on.

And then Franceschi makes the even sillier claim that the statute violates substantive due process because . . . get this . . . it makes it harder for him to be an attorney.  Because the most important thing in the universe is to make sure that Mr. Franceschi gets to continue to practice law without having to pay his massive tax liabilities.

The Ninth Circuit's response should warm the heart of any Los Angeles-based attorney facing the daily prospect of navigating through rush hour traffic:  "No doubt an inability to drive oneself around Los Angeles could make the practice of law more difficult. However, Franceschi still has access to public transit, taxis, or services such as Lyft or Uber. Accordingly, whatever burden may exist does not amount to a “complete prohibition” on Franceschi’s ability to practice law, and thus, does not rise to a violation of substantive due process."

In case I've been unclear, let me say it again:

This isn't a sympathetic plaintiff with a sympathetic claim.

Tuesday, April 10, 2018

Vilutis v. NRG Solar Alpine (Cal. Ct. App. - April 10, 2018)

It's worth the occasional reminder to mention that the volume of the unpublished work by the Court of Appeal massively swamps the published component.  For example, today, at least as of 2:20 p.m., there's absolutely nothing at all published by the California Supreme Court, the Court of Appeal, or the Ninth Circuit.  Nothing.  Yet there are no less than twenty unpublished dispositions from the Court of Appeal.

Not bad for a single workday.

So, if only for entertainment (or shock) value, I thought I'd mention one of those cases -- one that involves an anti-SLAPP motion and a raucous public meeting.  At which there's indisputably a "kerfuffle" that ends when one of the participants allegedly tells another "You fucking faggot. Get the fuck out of my store! . . . . Get the fuck out of the store, you faggot, or I am going to call the Sheriff.”

Which is not something you typically hear at your usual Town Council meeting.

That said, it's a public forum, and there's no probability of success on the merits.  So the lawsuit gets dismissed, and the Court of Appeal affirms.

With costs and fees to the defendant.

Monday, April 09, 2018

Rizo v. Yovino (9th Cir. - April 9, 2018)

You'll probably hear about today's Ninth Circuit en banc opinion in various media.  The court holds that it violates the Equal Pay Act to pay a woman less for the same work a man does when the only justification for that differential is because the woman made a lower salary in a prior job.  To allow such a pay difference, the court holds, would perpetuate salary discrimination.

You may also hear today's opinion described (as it has been repeatedly) as "unanimous," but it only sort of satisfies this definition.  Yes, all 11 members of the panel agreed on the result.  But to say that the thing's unanimous overlooks key differences between the panel members -- differences that may well suggest that the Supreme Court might well take a different view of the subject.

The lead opinion -- for a bare majority of 6 of the 11 judges -- says that an employer can never be considered as a justification for paying women less than men.  That's the holding.

But five of the judges in this "unanimous" opinion disagree.  Judges McKeown and Murguia -- two left-leaning women on the panel -- join a concurrence that says that the majority goes to far, and that in their view, prior low salary is okay to consider if it's combined with other factors that justify the contemporary salary differential.

Judges Callahan and Tallman, not surprisingly, are even less sympathetic to the majority opinion, and agree that the current case was improperly resolved (since the only basis for the pay differential was prior salary), but think that this is basically an exception to the general rule, and believe that there may be a plethora of situations in which prior salary can validly be used to pay women a lower salary than men.

And then Judge Watford concurs as well, holding that, again, here, the employer should lose, but only because it failed to demonstrate that its use of prior salary wasn't itself tainted by discrimination that resulted in the prior pay differential as well.

So, yes, everyone agrees on the result.  But it's a rare case when the only reason that an employer can come up with a basis for its pay disparity is the woman's prior salary.  There are generally legions of alleged reasons that can instead be advanced.  And, in those more routine cases, the panel is split on even the appropriate law to be applied, much less does it make it easy for a plaintiff (or jury) to prove as a factual matter that the pay differential was indeed discriminatory.

And the fact that even Judges McKeown and Murguia aren't on board for the majority's holding suggests incredibly strongly that the Supreme Court wouldn't exactly lovingly embrace the Ninth Circuit's ruling either.  If only because it's an exceptional understatement to say that most of the justices on that tribunal are far less sympathetic to the objectives of the Equal Pay Act than these two Ninth Circuit judges.

One final point.  The majority opinion is by Judge Reinhardt.  Who, as most of you know, died on March 29th.  The en banc court allows the opinion to go forward because "the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."  I'm confident that's correct.  I'm also confident that if this is indeed the final opinion of Judge Reinhardt's long and incredibly productive judicial career, he'd be content with the happenstance.  It's a good way to go out.  A last opinion that's a fairly representative testament to how the man lived and the values he expressed.

And if this opinion is subsequently reversed by the Supreme Court; well, he'd be very much used to that as well.

Fighting to the very end.

People v. Barboza (Cal. Ct. App. - April 9, 2018)

It's somewhat not surprising that Mr. Barboza elected not to appeal his criminal conviction and sentence, as he (1) pled guilty, and (2) was sentenced to probation (with his six-year prison sentence suspended).  Not a bad result at all for someone who pled guilty to robbery as well as a felon-in-possession enhancement.

But Mr. Barboza was a minor whose case was direct charged in adult court, and Prop. 57 was about to be voted on by the electorate later that year.  If Mr. Barboza's attorney had filed an appeal, he'd have been entitled to retroactive application of the statute, and might have gotten some relief.

But no appeal was filed.  Which meant that Mr. Barboza's conviction was final once Prop. 57 was passed.

Which means he can't request a remedy under the statute.

Thursday, April 05, 2018

U.S. v. Gilmore (9th Cir. - April 5, 2018)

If you're going to grow medical marijuana in compliance with state law, don't do it on federal BLM land.

Yeah, I know.  Private property is more expensive.  But it's probably worth it.

If only so the feds don't prosecute you.  (Whereas, if you'd grown the stuff somewhere else, you could have gotten an injunction against federal enforcement.)

Wednesday, April 04, 2018

In Re White (Cal. Ct. App. - March 6, 2018)

It's a slow news day in the appellate courts.  Nothing at all from the California Supreme Court or Court of Appeal.  And only an amendment to an opinion from the Ninth Circuit.  Zzzzzzz.

Though it does give me a chance to go back a tiny bit.

See what you think about this opinion from last month.  The question is whether the defendant is such a threat to public safety that he should be denied bail entirely.  (The California Constitution says that you can only deny bail in this setting if  "the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others.")

You could see strong feelings being raised on both sides.  Do you think there's "clear and convincing" evidence that there's a "substantial likelihood" that this guy will reoffend while on bail?

"Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California. On July 26, 2017, she was staying with friends because her family had been on vacation. In the afternoon, she rode her bicycle to her family's house to get her surfboard and go surfing. Across from her house she saw two men standing near a blue truck. They were playing loud music and looked out of place. J.D. felt like they were watching her.

A woman loading her car nearby saw the two men and thought they looked "creepy." The men were staring at her as well. She was concerned that they might burglarize her vacation rental after she left. The woman's son thought they were being "creepy" also, so he took a Snapchat video of them. He told police he was worried about the men wanting to kidnap his younger brothers.

J.D. had a bad feeling about the men, so she went through a gate into her neighbor's yard, hopped over the fence, and went into her garage. She later said she was trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from the garage, went out front, and left the surfboard in her driveway. The men were still staring at her, which made her feel uncomfortable.

J.D. went inside, but she became concerned that someone would try to steal her surfboard. She grabbed some surfboard wax, went back outside, and started to wax the surfboard. The men were still standing by their truck. J.D. noticed a few people walk by, and a surfer came up from the beach and asked to borrow some wax. This request was normal, so J.D. agreed.

J.D. continued to wax her surfboard in the driveway. At some point, when she had her back to the road, one of the men from the truck came up behind her and grabbed her neck "like a pressure lock." The man—later identified as White's roommate Jeremiah Owens—shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward the truck. J.D. repeatedly told him "no" and "stop."

J.D. managed to fight Owens off and step away from him. She saw the other man—later identified as White—still standing by the truck, looking up and down the street. She told Owens and White, "That's not cool. You can't do that." White said, "We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D. was watching them, White looked at Owens and said, "Go in the house." J.D. thought Owens would try and attack her again.

J.D. went through the gate, locked it "as fast as [she] could," and ran into the house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and locked both doors into the house. She thought Owens and White were going to follow her inside. She thought they might break the lock on the gate or hop over the fence. She was going to hide, but she heard the truck's engine start. She looked outside and saw White in the driver's seat. Owens ran around to the passenger side. J.D. thought they looked scared, and they drove quickly away. She started hyperventilating and crying. She tried and eventually succeeded in calling her parents, who told her to call the police. She called 911, and police responded.

The police began an investigation and detained White. In two interviews with police, White denied knowing that Owens intended to attack J.D. White said Owens told him he thought J.D. was pretty. White admitted he "might have said go and get her" to Owens, but he said he meant go "talk to her." Owens then told him "hey watch out" or "watch this" and walked over to J.D. White said he thought Owens was just going to talk to her. White claimed that, when the attack began, he yelled at Owens to stop and told J.D. he was sorry. White said Owens told him afterwards that a "primal instinct" came over him. White was concerned that Owens had mental health issues. Forensic examination of White's mobile phone revealed an internet search history in the days after the attack that included the questions, "Why would someone act on their primal instinct?," "How can you tell if someone you know is being brain washed?," and "What to do if someone you know is being brainwashed?" Owens was later arrested as well. . . .

The court then heard White's request for bail. White's counsel argued that White was a high school graduate, was gainfully employed as a cable installer, and had the support of family and friends. He requested that bail be set at $50,000. Owens requested bail as well. The prosecution opposed. As to White, it argued, "I will submit to the Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as to whether you would like to set bail, given the fact that he is not as culpable perhaps as Mr. Owens in being the direct perpetrator.""

I live in a beach community -- and have a sixteen-year old daughter -- so the facts of this case (from San Diego, no less) definitely strike home.  Yet, at the same time, the facts involving the defendant (and his subsequent Internet search) are definitely not the stuff of your usual attempted rape case.

What do you think?  A case to deny bail entirely, or not?

Tuesday, April 03, 2018

R.E.B. v. State of Hawaii DOE (9th Cir. - April 3, 2018)

I imagine that, sometimes, litigants hope that adverse things happen to one or more of the judges that rule against them.  Mostly out of spite.  But sometimes, perhaps, out of more practical desires.

If that's what indeed went down here, perhaps the litigant's prayers were answered.

The panel decides in September to partially reverse the district court.  Judge Bea dissents.  The losing party then files a petition for rehearing.  As well as makes whatever supplications to higher powers that may or may not have transpired.

Then, in December, one of the members of the majority, Judge Kozinski, leaves the Ninth Circuit.  Judge Nguyen is promptly drawn to replace him.

And today, the reconstituted panel grants the petition for rehearing and withdraws the original opinion.

Perhaps the new panel will only tinker with the original opinion.  But I suspect that more than mere tinkering will in fact go down.

People v. Buza (Cal. Supreme Ct. - April 2, 2018)

It's sometimes helpful when a dissent begins by quoting at some length -- and then responds to -- the majority opinion.  Because that's a pretty concise summary of the justices' respective opinions.

For example, Justice Liu's dissent in this case begins by saying:

"According to today’s opinion, “[t]he sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at p. 41, italics added.) This statement of the issue is misleading.

The . . . (DNA Act) requires collection of DNA from all adult felony arrestees “immediately following arrest” and requires samples to be “forwarded immediately” to the laboratory for analysis. Buza was arrested on January 21, 2009. At booking a few hours later, a police officer requested a cheek swab from Buza under penalty of law. Buza refused. It was not until the next day, January 22, 2009, that a judge found probable cause to believe Buza committed arson. On January 23, 2009, the district attorney filed a complaint charging Buza with arson and related offenses as well as unlawful refusal to provide a DNA specimen on January 21, 2009. The question is whether Buza can be convicted of refusing to provide his DNA at booking prior to any judicial determination of whether he was validly arrested. Today’s opinion does not explain why the fact that Buza was found “validly arrested on probable cause to believe he had committed felony arson, and . . . was promptly charged with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing on whether it was lawful to require him to provide his DNA before any of those determinations were made.

The court says that a “valid arrest” in this context does not require “a judicial determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true, does not disturb the main premise of the question presented: For purposes of constitutional analysis, Buza is no different than any felony arrestee who has not been charged, convicted, or found by a neutral magistrate to be lawfully detained. This point is critical because it brings into focus the startling breadth of DNA collection and retention authorized by the statute. This is not a scheme carefully calibrated to identify felony offenders. Instead, it can be fairly described as a biological dragnet. As explained below, and for the reasons stated in Justice CuĂ©llar’s dissent, the DNA Act violates the prohibition on unreasonable searches and seizures in the California Constitution."

It's a 4-3 opinion.  The majority upholds the statute.  Which means that, in California, you're going to have your DNA taken upon any felony arrest.  Regardless of what happens to you thereafter (and, as Justice  Liu notes, one-third of people arrested for a felony don't ultimately get convicted of one).

Thursday, March 29, 2018

In Re Conservatorship of P.D. (Cal. Ct. App. - March 29, 2018)

"P.D. suffers from schizophrenia. He was arrested for violating a restraining order that protects his family. The court found him incompetent to stand trial. It committed him to Sylmar Health and Rehabilitation Center for mental health treatment to restore his competency. After the criminal charges were dismissed, Public Guardian filed a petition for a conservatorship on the ground that P.D. is gravely disabled as a result of his mental disorder.

Murray Weiss, M.D., testified that P.D. was diagnosed with a mental disorder 10 years earlier, has delusions, and requires medication to control his symptoms. When not taking his medication, P.D. becomes angry, aggressive, and “impulse disordered.” Dr. Weiss said that P.D. does not accept his diagnosis and believes his medications are “poison drugs.”

Dr. Weiss opined that P.D. is unable to provide for his basic needs of food, clothing, and shelter as a result of his mental disorder. Without a conservatorship, P.D. will stop taking his medication and be “homeless and hungry and living from day-to-day and probably arrested for violating the restraining order when he goes back to his family residence.”

P.D. testified that he does not suffer from a mental disorder and does not need to take medication. He said that if released, he will return to his family or seek help from unnamed friends, none of whom he has contacted to discuss his plans. He denied the existence of an active restraining order which prevents him from contacting his wife and which formed the basis of his prior arrest."

You can probably figure out the rest.  Suffice it to say, P.D. remains in the hospital.  As he probably will for a long, long time.

Wednesday, March 28, 2018

Kater v. Churchill Downs Inc. (9th Cir. - March 28, 2018)

Today's Ninth Circuit opinion may turn a lot of things into illegal gambling -- at least under Washington state law.

Judge Smith's opinion holds that the computer application "Big Fish Casino" entails illegal gambling because you get an initial purchase of "chips" but then, if you run out of chips, have to buy more.  He says that means that you're "gambling" under Washington law because the chips are "things of value" -- i.e., have value because they let you keep playing the game.

Importantly, the panel holds that this is gambling not because some people sell these chips on a secondary market (e.g., the chips have "actual" cash value).  The Ninth Circuit says, in a footnote, that this argument doesn't work, as the terms of service preclude such secondary sales.

It's instead the fact that these chips can be used to obtain additional game play that makes them items of value.  Hence it's gambling.  Hence a user can get back all the money s/he spent on the game.

Okay.  I can see why the Ninth Circuit's so inclined.  Particularly with respect to a casino game.

But it seems to me that today's opinion makes a ton of computer games illegal.  To take but one example, my mother likes to play "Candy Crush" -- a very popular game.  You only get a certain number of "lives" per hour.  Then you've got to wait a while until you get new lives.  But you can defeat a level and then you won't lose a life.  So you can "win" at this "gambling game" and get a "life" that has "value".  And you can purchase new lives as well.

Under today's opinion, that seems to clearly entail illegal gambling under Washington law.  As would a plethora of other applications that limit your game play via similar measures; lives, chips, power, whatever.  A huge volume of games.

I'm sure my mother would be surprised to learn that she's illegally gambling almost every day.  This opinion seems pretty darn broad.

Even though the users of Big Fish Casino -- and a plethora of other games -- may well be excited to learn that they can now probably get all their money back.

At least in Washington.  As well as in any other state with a similarly-worded statute.

Tuesday, March 27, 2018

Elhouty v. Lincoln Benefit Life Co. (9th Cir. - March 27, 2018)

You can see why the Ninth Circuit comes out this way.  It's a litigation over a $2 million life insurance policy.  The panel says that such a dispute meets the amount in controversy requirement for federal diversity jurisdiction because $2 million is greater than $75,000.

Okay.  That's a nice, simple, bright-line rule.  In litigation about an insurance policy, the amount in controversy is the face value of the policy.  That's the test.  As Judge Kleinfeld puts it, "clarity and predictability are more valuable than whatever theoretical precision some more subtle measure would provide."

Judge Kleinfeld's rule would clearly be the right one if the litigation was about who owns the policy proceeds of a $2 million policy upon, say, the policyholder's death.  But that's not this case.  Rather, here, the policyholder is alive, and merely wants the right to continue to pay the policy premium -- which is around $30,000 to $50,000 -- to keep his $2 million policy.  In other words, he only gets $2 million if he (1) wins, and (2) dies.  Otherwise he's just flushed tens of thousands of dollars down the toilet.  Recovery of $2 million is speculative.  To put it another way, the policy that he wants to obtain is indisputably not worth $2 million.  No one would pay $2 million for it.  It's instead worth less.  So it seems strange to value the dispute over this piece of property as worth $2 million.

And Judge Kleinfeld's (admittedly straightforward) rule seems to create problems in other realms as well.  Suppose that I have a $2 lottery ticket for next month's lottery (the top prize of which is $40 million), some guy says its his ticket and not mine, and he sues me in federal court for the ticket.  The ticket's worth only $2, so you'd think that the amount in controversy requirement wouldn't be satisfied and we'd have to be in state court.  But under Judge Kleinfeld's rule, there'd be federal jurisdiction because the amount in controversy would be $40 million -- the "face value" of the lottery ticket (i.e., how much the holder would win if the ticket "hit").  There's no substantive difference between in this regard between insurance policies and lottery tickets.  They both pay out only on the occurrence of specific future (uncertain) events.  So they'd both have the same rule.  Ditto for other similar things; e.g., a bet for $2 on a 100,000-1 longshot to win the 2019 NCAA Basketball Tournament.  All those penny-ante disputes get into federal court as well.  Just like the $2 million insurance policy I bought (hypothetically) for $1 on my oldest daughter potentially getting hit by the Chinese satellite that's about to reenter the atmosphere.  Welcome to federal court.

So I agree that the Ninth Circuit's rule is a simple one to apply.  But it's also one that does a fair piece of mischief.

Judge Bencivengo (sitting by designation from the Southern District of California) concurs in the result but doesn't agree with the panel's test.  I'm sympathetic to her position.  But the problem with her view is that she doesn't articulate any alternative test.  She says that (1) the panel's test is the wrong one (which I understand), but (2) that she nonetheless concurs in the result because she too believes that subject matter jurisdiction exists.  But she doesn't say why for No. 2.  What's the test she's using?  Seems like that's important.  Particularly if you think the panel's test is the wrong one.

The obvious alternative test, at least to me, would rely on market value.  What's the market value of a speculative $2 million insurance policy (or $2 lottery ticket)?  Whatever a willing buyer and seller of such an item would agree upon.  Sure, that's sometimes unclear.  But no less clear with things like insurance policies than, say, a used 2011 Porche 911.  Maybe it's worth $71,000, maybe it's worth $78,000.  We take evidence and make a factual finding.  Real life's messy.  But at least it's real life.  Not some made-up figure that only exists in the relatively unlikely event that a dude dies, a team wins, a satellite crashes, or a lottery ticket hits.

Greenfield v. Mandalay Shores Community Ass'n (Cal. Ct. App. - March 27, 2018)

I'd have thought that an homeowner's association could, if it so chose, prohibit the short-term rental of condos (e.g., via Airbnb) without having to get a coastal development permit from the Coastal Commission.

I'd have been wrong.

Because stopping short-term rentals diminishes the number of people who can easily enjoy the beach, an HOA doesn't have that power.

Good to know.

Friday, March 23, 2018

U.S. v. Kootswatewa (9th Cir. - March 23, 2018)

Usually in child molestation cases you get a fairly fact-specific recitation of the underlying offense.  Especially if, as in today's opinion, (1) the legal dispute revolves at least in part around the facts, and (2) the panel's going to end up affirming the conviction.

So it's not surprising that we learn factual details in the opinion about how the defendant, Theodore Kootswatewa, took (or, at the prosecutor said at trial, "lured") an 11-year old girl into a trailer on the Hopi Reservation in Arizona and molested her.

What was somewhat unusual, however, is that the opinion nowhere reveals the defendant's sentence.  Admittedly, there's no challenge to it on appeal.  But usually they put that in.  Similarly, we learn almost nothing from the opinion about the defendant.  Again:  not necessary to the result, but fairly unusual.

And I cared.  So I looked it up.  A task performed fairly easily thanks to Mr. Google and the unusual name of the defendant.

Who, it turns out, as a (then-) 65-year old man.  Who was sentenced to 40 years in prison.  A sentence that perhaps itself not much of a surprise given the nature of the offense and the fact that Mr. Kootswatewa had allegedly previously twice been convicted of sexual contact with a minor.

Thursday, March 22, 2018

Eng v. Brown (Cal. Ct. App. - March 22, 2018)

Complicated civil business disputes are a huge hassle to actually take to trial.  And this one was an even bigger mess than usual.  Check it out.

It's about the ownership of the Tin Fish restaurant in San Diego.  Which is right by the ballpark.  To summarize the underlying dispute, it appears that the minority shareholder thought that the majority owners were totally diverting profits from the restaurant to themselves.  Hence the lawsuit.

But, unfortunately, the thing was a disaster.  No one could really figure out what the right legal theory (or jury instructions) should be.  So ultimately the defendants prevail at trial, and the Court of Appeal affirms.

Seems to me that this was -- or at least should have been -- a shareholder derivative suit.  But what do I know.

Wednesday, March 21, 2018

Eleanor Licensing LLC v. Classic Recreations LLC (Cal. Ct. App. - March 12, 2017)

This makes two.  Apparently the Court of Appeal is going to publish an opinion every single day that involves litigation over a classic automobile.

"A 2000 remake of Gone in 60 Seconds . . . starred Nicolas Cage and Angelina Jolie. . . . The 2000 motion picture featured a customized 1967 Fastback Ford Mustang, which was also named “Eleanor.” The vehicle was sometimes (erroneously) referred to in the film as a 1967 Shelby GT-500. In July 2007 Hollywood Pictures/Disney executed a quitclaim to confirm that Halicki retained the merchandising rights to “Gone in 60 Seconds” and “Eleanor.” . . . . As of November 1, 2017, Eleanor Licensing entered a license agreement with T&D Motor and Classic Recreations granting T&D Motor and Classic Recreations the right to use intellectual property rights, trademarks and copyrightable material relating to “Gone in 60 Seconds” and “Eleanor” to manufacture and sell 300 restored 1971, 1972 and 1973 Fastback Ford Mustangs fitted and detailed to replicate in appearance the 1974 Eleanor and 1,000 restored 1967 and 1968 Fastback Ford Mustangs fitted and detailed to replicate in appearance the 2000 Eleanor. . . .

The Number 1 unit of the 2000 Eleanor replica described in the licensing agreement (Eleanor No. 1 or the sample car) was constructed in Yukon, Oklahoma, Classic’s place of business, and moved from there to Halicki’s residence in February 2008.3 Apparently neither license plates nor title documents were delivered with the vehicle. On September 16, 2009 Michael Leone, a consultant working with Halicki, emailed Jason Engel to “remind you to please find and send Denice’s Eleanor title with her license plate.” When the license plate, but not the title document, was sent, Leone again emailed Jason Engel, noting “Denice’s title to Eleanor . . . wasn’t in the fedex [sic] with Eleanor’s License plate (tag). What happened? Please check into this.” Jason Engel responded, “Mike it should have been. I’ll find it and send it out.”

Needless to say, things did not work out.  Hence the lawsuit.  Over trademarks, etc. etc.

The trial court issues an opinion, and the Court of Appeal modifies it a bit.  All of which enable me to include yet another picture of a classic (and expensive) vehicle.  The 1967 Fastback Ford Mustang from the movie.  A car that apparently recently sold for a cool million dollars:


Tuesday, March 20, 2018

Lawrence v. Superior Court (Cal. Ct. App. - March 20, 2018)

Today's opinion decides who should possess a million-dollar car while the parties fight over whether it's stolen (probably not) or whether one of two different people legally own it.

Brandon Lawrence says he validly bought the 1947 Cisitalia from a Japanese company who owned it.  But a Japanese citizen, Kiyoshi Takihana, says that the Japanese company stole the vehicle from him in the first place (or, perhaps more accurately, failed to pay for it after he let 'em have it).

So the California Highway Patrol steps in, seizes the vehicle, and is keeping it in a secret location until the parties sort it out.

No good, says the Court of Appeal.  Lawrence has the right of possession in the meantime.  Give him the car and let the civil courts decide who actually owns it.

In the old days, any fight about a million-dollar car would likely have taken place in the Superior Court for Los Angeles County.  It's a testament to contemporary cultural and financial changes that today's opinion comes out of the Superior Court for San Mateo County.

Monday, March 19, 2018

Sali v. Corona Regional Medical Center (9th Cir. - March 19, 2018)

Most petty discovery disputes don't generate published opinions by the Ninth Circuit.  If only because most of the resulting orders are interlocutory and eventually go away before judgment is entered.

Yet here we are.  A routine discovery fight about when an expert deposition should take place.  A type of fight that many of us have engaged in at some point -- or at many points -- during our legal careers.

The defendants want (and notice and issue a subpoena for) the deposition for March 30th, but the parties are fighting via e-mail about who should pay the expert's fees, so plaintiff's counsel and the expert don't show up.  As a result, the next day, defendants say they're going to move ex parte for sanctions and for an order compelling the deposition to take place.

The parties then meet and confer, as required by the local rules.  Defendants finally agree to pay the expert's fees.  But the defendants want the deposition on April 9 (having failed to get one on March 30).  Whereas counsel for plaintiffs says he's on vacation then.  Plaintiff nonetheless says the expert would be available on April 13, as long as there's enough advance notice to set it up.

So the ex parte goes forward.  Remember:  the fight is about whether the deposition would take place on April 9 or (maybe) April 13.  You can imagine how thrilled the magistrate judge must have been to hear that ex parte.

Perhaps not surprising, the magistrate judge denies the ex parte request for an April 9 deposition.  But his order -- dated April 7 -- says that "given plaintiffs’ offer to make Falkenhagen [the expert] available for deposition immediately after their attorney’s vacation," the order concluded by saying: “Plaintiffs are, however, instructed to produce Falkenhagen for deposition on April 13.”

Defendants then subpoena the expert for that date.  And, yet again, the expert and plaintiff's counsel don't show up.  At which point defendants again move for sanctions; this time, for the violation of an express court order.  And the magistrate judge says, yep, I meant what I said, and imposes sanctions of $15,112.  Which plaintiff's counsel promptly refuses to pay, resulting in the entry of a judgment of contempt.

Here's the thing, though.  It's one thing to violate a court order.  That's bold enough.  It's another thing to have a pending ex parte application against you, to go on vacation anyway, and -- and here's what strikes me as the weirdest part of the whole story -- not even check your mail to see what the ex parte order says while you're on vacation.  Yet all of that is what plaintiff's counsel seems to have done.  (Or, as the Ninth Circuit put it, "There’s no evidence that plaintiffs made any effort to secure Falkenhagen’s attendance at the deposition, after counsel affirmatively represented to the court and opposing counsel that Falkenhagen would be available for deposition on April 13. To the contrary, plaintiffs’ counsel went on vacation for a week knowing there was a pending ex parte application to compel the deposition but making no provision for responding to the court’s ruling. Counsel didn’t even read the order until after the time for the deposition had passed.")

All of that is why, in part, the Ninth Circuit affirms the sanction order.  As well as why, below, the district court refused to certify the class.  ("In its order denying class certification, the district court cited this incident as an example of plaintiffs’ counsel’s “lax approach” to prosecuting the action. The court found that plaintiffs’ counsel wasn’t adequate to represent the proposed class.")

Judge Nguyen's opinion on all this stuff is pretty darn good.  A very good explication of why and when you subpoena an nonparty and how all those rules apply to party-affiliated witnesses such as retained experts.  Well done.

Whereas plaintiff's counsel's strategic decisions could perhaps have used a bit more thought.

Friday, March 16, 2018

People v. Aguirre (Cal. Ct. App. - March 16, 2018)

It's bad enough when you're paying for something with a counterfeit $100 bill.  It's even worse when you've got a total of $1,310 in counterfeit currency in your purse at the same time.  And if you do all that when you're on probation, and hence subject to a search condition, wow, that's incredibly unwise.

But when you do all this and you have some methamphetamine and a glass pipe in that same purse, well, at that point, I don't know what advise I can give you.

The defendant here, Beatrice Aguirre, actually gets an amazing deal; she gets to plead guilty to only a single count of forgery for all of the above.  Plus the deal says that she gets to withdraw the plea if the judge sentences her to anything except probation.  Not bad.  Especially for someone with two prior prison terms!

Though then Ms. Aguirre -- again, unwisely -- skips out on her sentencing hearing.  So the deal gets vacated, a bench warrant is issued, she's eventually caught, and ultimately gets sentenced to a couple of years in the pokey.

Plus her current Prop. 47 motion gets denied.

A series of unfortunate events for the unlucky -- and unwise -- Ms. Aguirre.

Wednesday, March 14, 2018

Ventura Content v. Motherless (9th Cir. - March 14, 2018)

Here's a great opinion that gives insight into how most low-level porn sites on the internet work.  It doesn't sound like the greatest job in the universe to run most of those sites.  Plus you've got to deal with potentially getting sued for copyright infringement.  Like here.  Not fun at all.  Hardly worth the time, in my opinion.  But at least you get to say that you run a porn site for a living.  So if being able to truthfully say that at a cocktail party is your life's objective, then go for it.  Goals.

At the same time, today's Ninth Circuit opinion is basically a primer about how to run a porn site that massively infringes other people's copyright without actually getting held liable.  Just upload a ton of porn, let your users upload a ton of porn, and then do some very basic stuff to make sure you comply with the DMCA takedown requirements.  And, boom, you're immune.  Notwithstanding the fact that your site has a ton of stuff that violates someone else's copyright.

Judge Kleinfeld's opinion gives tons of cogent reasons why the defendant here wasn't liable given the contours of the DMCA.  And his analysis is pretty darn persuasive.  Plus, rarely do you see opinions that contain (as here) the word "".  So the opinion is notable, if only for that.

As I said, I think that Judge Kleinfeld's opinion is pretty darn good on its own terms.  But I did have two thoughts as I read it that I thought might be worth sharing.

First, Judge Kleinfeld raises -- but doesn't answer -- an interesting issue.  The DMCA and Ninth Circuit precedent says that you're not immune under the statute if you decide what to post at your "own direction," as opposed to merely posting whatever stuff users upload.  That basic concept seems right.  So too does Judge Kleinfeld's conclusion that the site here doesn't run afoul of this exception merely because it actively screens out child pornography, stuff that obviously violates copyrights, etc.

Sounds right.  We want people to do that.  And that doesn't mean that you're really just posting your "own" stuff or stuff at your own direction.  Cool.

But Judge Kleinfeld says that even though screening out kiddie porn doesn't mean that you're "actively" directing what's on your site, he says that "perhaps if Lange’s site were flooded with pictures and videos of kittens playing with yarn, he would change his rule and exercise judgment about whether the material was pornographic enough to host."  Which I'm sure is right -- the guy definitely wouldn't want tons of yarn-playing kittens (rather than porn) on the site (unless, I guess, there's some kink I don't know about).  Plus, I love the fact that Judge Kleinfeld works in the idea of kittens (of all things) in an opinion about a porn site.  Well done.

But here's the thing.  What about that?  What if people did flood porn sites with kitten videos?  I'm certain the operator would screen the things out.  And that might well demonstrate that the site is what it in fact all these sites are:  operator-controlled, at some level, because the operator only wants pornSo why don't copyright owners do this all the time?!  Just flood every major porn site with kitten videos, let the operator screen 'em out, and then sue.  In short, make Judge Kleinfeld's hypo a reality.  Seems like that would work.  And pretty cheaply at that.  (The porn site here, for example, lets users upload 999 videos at a time.)

Interesting thought experiment, at least.  And maybe a practical one for copyright owners as well.

My second thought's a broader one.

The DMCA articulates another exception for when the site owner knows full well that its site has material that violates copyright.  And there are Ninth Circuit cases that make clear that you can't just sit there and host massive copyright violations (e.g, be a pirate site with full movie downloads) and claim immunity under the DMCA.  If you know your place is chock full of copyright violations, you aren't immune.  Whereas if you've just got isolated copyright violations here or there, and you take those down once you know about them, you're okay.

You can see why that's the rule.  It makes sense.

The copyright owner in the present case says that the defendant here knew that his site was full of copyright violations, so the exception applies.  His best evidence was that almost all of the clips look professionally produced, fancy, etc.  But Judge Kleinfeld has a pretty decent response.  He says -- rightly -- that in the modern era, with smartphones and all, pretty much anyone can make a porn video that looks pretty darn fancy.  So the fact that the things "look" like movies doesn't necessarily mean that they are, in fact, professionally made (e.g., likely copyrighted) things.

Good argument.  Seems right.  Makes sense.

But here's the thing.

Yeah, it may be unclear for any given clip on a porn site whether it's for sure professionally produced.  But come on.  Seriously:  When you see these things, you know full well that the overwhelming majority of 'em come from copyrighted movies.  Might some of them be from homemade sex tapes that the owner uploaded?  Sure.  Can you be 100% positive that a given clip is from a full-length porn movie?  Maybe not.

But you are like 90% sure.  And, similarly, you can be extremely confident that, on the whole, the vast majority of what's on a given site is from copyrighted movies.  You just know.  And know to a degree of absolute moral certainty.  Notwithstanding all the arguments that Judge Kleinfeld rightly makes and the millions of individual clips, any one (or dozens) of which could possibly be sex tapes that were uploaded by their creators for free.  Still:  Visitors to the site know full well they're from movies.  And the owner of the site knows this even more.

So what you basically have as a result of today's opinion is precisely what you see out on the Internet.  Massive, obvious copyright violations.  On a virtually limitless scale.  But because you can't "prove" that the owner of the site "knew" that there were massive violations, the DMCA allows 'em to get away with it.  To the benefit of the public but to the detriment of copyright owners.

I had even thought of "proving" the point.  I decided to go on the web site at issue in this opinion -- -- and pick 100 clips at random and see if I could quickly find out which movies they came from.  My guess was that in an hour or two I could easily find 70 or 80 percent of the full-length, copyrighted movies from whence those clips were cut.

So I tried.  For about two minutes.

But, ugh!  There's some nasty stuff in there.  So I quickly abandoned the project.  Just not worth it.  (And, no, I'm not just rationalizing to my IT department why my work computer has recently visited some inappropriate places.  Seriously.)

Still, had I tried, my strong sense is that one could prove that, on virtually any given porn site, the majority of the clips in fact come from copyrighted material.  Since that's, in fact, what everybody knows and expects.  Because, yes, there's some legitimately amateur stuff out there, I'm sure.  But there's a lot more professionally produced stuff.  'Cause there's a lot of money in it.  And that's where most of the stuff in fact comes from.  Even if, as Judge Kleinfeld notes, it's hard to absolutely prove knowledge with respect to any individual person with respect to any individual clip.  In the aggregate, what's going on is clear.  Just like I sometimes know that a number of students in a given class have not done the assigned reading even though I can't prove to an absolute certainty that any particular one of 'em is a culprit.

So, anyway.  A blow today for continuing massive copyright violations on porn sites.

One final thing.  It took Judge Kleinfeld over two and a half years after oral argument to write up this opinion (alongside Judge Rawlinson's partial dissent).  That's a ton of time, no?

Probably due to all the "research" that was required for the opinion, no doubt.

Tuesday, March 13, 2018

People v. Johnson (Cal. Ct. App. - March 13, 2018)

Yes, the defendant might have been faking it.  Might.  Maybe, just maybe, he simply wanted to delay the trial by getting a competency hearing.

But if that's so, he was doing a darn good acting job.

"Defendant Derek Antonio Johnson . . . engaged in multiple acts of self-mutilation, shouted to voices in his head, could not be quieted during court proceedings, defecated in his pants, was placed in a medical unit at the prison where he was given medication and was put on a suicide watch, and his lawyer expressed doubt throughout the trial about his mental competence to understand the proceedings and to assist in his defense."  And that's just a summary.  The actual facts are incredibly disturbing.  Seems to me like he may well have been having incredibly serious mental problems.

But the trial court thought he was faking it.  Since there were period in which he was normal, the trial judge thought the defendant just wanted a delay in the trial date.

Again:  Maybe.  But when you're faced with substantial evidence -- as here -- that the guy may be incompetent, you've got to hold an actual hearing.  With people who are actually trained to sniff this stuff out.  You can't just come to a conclusion based on your own beliefs.

So holds the Court of Appeal.

Monday, March 12, 2018

Orr v. Plumb (9th Cir. - March 12, 2018)

Don't wait for the district court to enter a final judgment on a separate document.  Just go ahead and appeal.  Early appeals are fine. Whereas late appeals can kill you.

That's the basic message behind today's Ninth Circuit opinion.  Appellant thought that the jury's answers on a special verdict didn't start the clock ticking for the appeal, and waited instead for the district court to enter a formal "judgment" on a separate document.  As the district court was surely required to do (but didn't).

That was a mistake.  The return of the special verdict was subject to immediate appeal since it ended the case.  Waiting more than 150 days thereafter killed you.

Sorry 'bout that.

Friday, March 09, 2018

GMRI v. California Dep't of Tax & Fee Administration (Cal. Ct. App. - March 9, 2018)

Here's something I hadn't thought about before.  But I feel educated now that I know it.

Lots of restaurants (in my experience) add a mandatory or "optional" gratuity to large parties; i.e., when there are eight or more people in the group.  Red Lobster and Olive Garden restaurants -- which (during the relevant period) were owned by plaintiff GMRI -- followed this general practice.  The customer could add an additional tip beyond this amount, or could ask that the "optional" tip be taken off, but basically, it's what you paid.

That's my experience too.

What I hadn't thought of before is how that "optional" tip was taxed.

Tips ordinarily aren't taxed -- at least for sales tax -- because they're truly "optional."  (The recipient has to pay income tax, but we're talking about only sales tax here.)  But mandatory tips are, since they're part of the price of the service.  So which one is this one?

California says that it's essentially mandatory (or at least standard), so it's subject to sales tax.  GMRI disagrees.

The Court of Appeal holds that California is correct.  And I think that's right.  At least given the text of the relevant authorities.

There's an upside to adding on an (essentially) mandatory tip; that way, your employees definitely don't get hosed.  But there's a downside as well.  That way, you're taxed.

So pick your poison.

Thursday, March 08, 2018

Chaney v. Netterstrom (Cal. Ct. App. - March 8, 2018)

Here's an interesting strategic decision.

The parties get "married."  Notice that I put "married" in quotes.  By that, I mean that they get a marriage license, and have a ceremony.  But they never send the completed marriage license back to the county recorder.  So for all the county knows, they're still single.  Whereas everyone else in the universe thinks they're married (and they act like it).

Why do that?  Well, for one thing, it gets your parents off your back.  They think you're "married" even though you're not.  More significantly, that way you can still claim to be single.  On your tax returns (hence avoiding the marriage penalty).  With the Social Security office; e.g., as here, so the "wife" doesn't lose her Social Security survivor benefits (from a prior marriage).

See how that works?

Now, that's a problem when and if the two of you split up, and one of you asks to get "divorced."  Because then we're going to have to figure out if you were ever actually married in the first place.

But today's opinion solves that problem for us.  The Court of Appeal holds that, yep, you're still in fact married, even if no one returns the license.  Notwithstanding the fact that the statute clearly says that when you pull a confidential marriage license, you're required to send the completed form back to the recorder once you're married.  (The statute says that a confidential marriage license “shall be returned by the person solemnizing the marriage to the office of the county clerk in the county in which the license was issued within 10 days after the ceremony.” (§ 506, subd. (c), italics added; § 423 [“The person solemnizing the marriage shall return the marriage license . . . to the county recorder . . . within 10 days of the ceremony.” Italics added]; Health & Saf. Code, § 103150 [A marriage “shall be registered by the person performing the ceremony.” Italics added].) The word “shall” means that the act is mandatory. (§ 12.)")

I'm just fine with that result.  It seems like the Court of Appeal gets this one right.  If you pull the marriage license and hold the ceremony, you're still in fact married, even if you don't comply with the statute's requirement that you return the form.  It's the ceremony that married you, not the mailing back.

Though notice that this doesn't obviate all the tax- and Social Security-related benefits that this couple received during their marriage.  They don't have to give all that stuff back.  Or at least not yet; and, potentially, never.

So maybe that's an actual strategy.  Pretend to get married, don't return the form, say to everyone except the government that you're married, and get all the benefits of marriage without any of the liabilities.

In theory, at least, that works.

Good luck trying to get your would-be spouse to agree to that.

Wednesday, March 07, 2018

Doyle v. Firemans Fund Ins. Co. (Cal. Ct. App. - March 7, 2018)

The case is all about some counterfeit wine.  So Justice Moore takes the opportunity to throw in a ton of Shakespeare references to wine.  Plus lots of sentences with phrases like "Yea verily," "We agreeth with the trial court . . .," etc.  You get the theme.

Okay.  Fair enough.

In the end, the Court of Appeal decides that there's no insurance coverage for the $18 million (!!) of counterfeit vintage wine that David Doyle bought from convicted felon Rudy Kurniawan.  So a bad day for Mr. Doyle.

But Justice Moore ends the opinion with another Shakespeare quote for him:  "Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: “The robbed that smiles steals something from the thief.” (Shakespeare, Othello, act I, scene 3.)"

Yeah.  Call me crazy, but I don't think that's going to give Doyle much solace.

Tuesday, March 06, 2018

People v. Monk (Cal. App. Div. Sup. Ct. - March 6, 2018)

This is the most important appellate opinion in California ever.


It's about a $25 fine.  For crossing an intersection when the "DON'T WALK" sign was flashing.

Yet, notwithstanding the incredibly tiny monetary interest at stake, the opinion may well have more practical significance to most of us than nearly every single one of the other appellate opinions we read.

Pamela Monk got her $25 ticket because a police officer saw her enter the crosswalk when the red "DON'T WALK" sign was flashing, and was in it's "countdown" mode; e.g., was at number "7" of the 15-second countdown.  The officer said, and the trial court found, that this violated the Vehicle Code.  On the theory that once the sign says don't walk, you're . . . wait for it . . . not supposed to walk.

But the Appellate Division reverses.  That's not what the law actually says.  Or at least not what it says now.

The law is instead that you're allowed to enter the intersection -- even if it says "DON'T WALK" -- as long as (1) the red sign (or the red hand) is still flashing, rather than constantly red, and (2) you finish your walk -- i.e., are out of the intersection -- before the countdown expires.

That's what I always thought the rule was.  And it's how I in fact walk across in street in those situations.

Good to know it's also, in fact, the law.

Monday, March 05, 2018

People v. Garton (Cal. Supreme Court - May 5, 2018)

The facts of this death penalty opinion read like a made-for-television movie.  A really bad made-for-TV movie.

If it were an actual movie, I'd have turned it off after the first three minutes because it's so pathetic, implausible, and overwrought.

But it's actually real.  So I keep turning the pages as I read today's opinion.  Yes, it's the conviction of a guy who's clearly seen too many movies.  But it's amazing that he actually makes this stuff up.  Or that people seem to buy it.

Of course, there are real victims as well, so at the same time, it's incredibly sad.

It's a set of facts I wouldn't believe if someone pitched 'em to me.  Yet here they are, straight out of an opinion from the California Supreme Court.

Friday, March 02, 2018

U.S. v. Studhorse (9th Cir. - March 2, 2018)

First of all, "Kenneth Studhorse" sounds like the made-up name of a porn star, not the actual name of a defendant.

But, apparently, it's not made up at all.  It's instead the actual name of someone convicted of being a felon in possession of a firearm and a violent felon in possession of body armor.

Second of all, it's symptomatic of contemporary legal analysis that it takes the Ninth Circuit sixteen single-spaced pages to say why attempted first degree murder is a "crime of violence" under federal law.

Of course it's a crime of violence.  It's attempted murder!

Judge Smith's opinion offers a bit more detail, but comes out the same way.

Thursday, March 01, 2018

Herterich v. Peltner (Cal. Ct. App. - March 1, 2018)

Talk about the Court of Appeal doing work for one of the parties!  Check this out.

Plaintiff files a lawsuit.  Defendant articulates numerous defenses, but never alleges that its conduct was privileged.  Defendant files a summary judgment motion, but not (obviously) on the ground that their conduct was subject to any privilege.

The Court of Appeal notes on appeal, on its own initiative, that the whole lawsuit might be barred by the litigation privilege.  So requests supplemental briefing.

And, boom, in the end, resolves the appeal entirely on the ground that the litigation privilege applies.  A defense the defendant never raised below, never argued in its original appeal, and mentioned only at the direction of the Court of Appeal.

I'm not saying the opinion is wrong.  The lawsuit does indeed seemed barred by the litigation privilege.  And that's an issue of law, so the Court of Appeal probably does have discretion to raise the matter notwithstanding its wholesale omission by the parties.

But wow.  You gotta be hating the Court of Appeal if you're the losing attorney in this one.

Whereas thanking your lucky stars for the Court of Appeal's (unsolicited) help if you're on the other side.

People v. Perez (Cal. Supreme Ct. - March 1, 2018)

When you choose a home pretty much at random to rob, and stab and kill the woman inside of it, it's not at all surprising that the trial court sentences you to death and that the California Supreme Court unanimously affirms.  Particularly given this particular defendant's lengthy and disturbing criminal history.  (Before the murder, Perez had the dubious distinction of being committed to the California Youth Authority at age 14, making him "one of the youngest wards in the CYA system at the time.")

Distressing all around.

Wednesday, February 28, 2018

Delgadillo v. Television Center (Cal. Ct. App. - Feb. 27, 2018)

Luz Delgadillo was a commercial window washer.  He was hired to wash the windows of a three-story commercial building in Hollywood.

He originally thought he'd wash the upper-story windows of the building with a Tucker Pole System, which is a a water-fed pole with an attached brush, or ladders.  But his colleagues noticed that there were wires, lines, and telephone poles on the building’s south side, which risked electrocution.

Probably a good idea.

So Delgadillo and his colleagues went up to the roof.  One side of the building had good anchor points where they could tie up a controlled descent apparatus.  But the other didn't.  So they decided that they'd rappel off the building from the roof using roof anchor points on the first day, and would construct a steel cable tie-back anchor system to which they could connect on the second day.

Okay.  I guess.  Though that doesn't sound perfectly safe.

But better than being electrocuted.

The company's policy was that you had to connect two different lines when rappelling off a building: one primary line and one safety line. But late in the morning, Delgadillo attached his line to only a single connector.

Bad idea.

Oh, yeah, and the single connector he attached to what an angle iron bracket that was supporting the air conditioning unit, which in turn was attached to a small piece of wood.

Horrible idea.

Delgadillo falls to his death.

The lawsuit by his survivors doesn't fare especially well either.  Here's the core holding of the Court of Appeal as to why the trial court properly granted summary judgment to the defendant:

"Plaintiffs contend that TCI had a statutory duty as a building owner to install structural roof anchors to which window washers could attach their controlled descent equipment. They identify several sources for the asserted duty to provide building anchors, including California Code of Regulations, title 8, sections 3281 to 3289; Health and Safety Code section 17920.3; Labor Code sections 7326 to 7329; Los Angeles Municipal Code section 91.8104; and International Window Cleaning Association I-14.1 guidelines, section 3.9. For purposes of this appeal, we assume that these sections required TCI to equip its building with structural roof anchors, and that TCI failed to do so. We nonetheless do not agree that there were triable issues as to whether TCI’s breach of its statutory duties gave rise to liability not barred by the Privette doctrine. To the contrary, SeaBright compels the conclusion that when TCI hired CBS, an independent contractor, to provide window washing services, it delegated to CBS its duty to provide a safe workplace for CBS’s employees. Accordingly, TCI’s alleged breach of a statutory duty to provide safety anchors did not give rise to rise to liability to decedent or his survivors."

A bad situation all around for Mr. Delgadillo.

Tuesday, February 27, 2018

Pittman v. Beck Park Apartments (Cal. Ct. App. - Feb. 27, 2018)

Sometimes the topic of the opinion itself tells you where the court's likely to come out.

For example, figure out how you think this opening paragraph ends:

"On May 28, 2010 the trial court declared Randall Pittman a vexatious litigant and prohibited him, pursuant to Code of Civil Procedure section 391.7, from filing in propria persona any new litigation in the courts of this state without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. Over the past seven years Pittman has made several attempts to have that order stricken, reconsidered, vacated or overturned. This appeal is from the trial court’s most recent denial of Pittman’s motion to vacate the order declaring him a vexatious litigant."

The next line reads:  "We _________."

Do you think the Court of Appeal fills in the blank with "affirm" or "reverse?"

Yep.  You got it right.

Oh, and if you need another hint -- not that you do, since you already know the answer -- here's another part of the opinion that might help you figure out where this one's headed:

"Siemens further argued Pittman repeatedly engaged in harassing and unnecessary tactics. For example, during three of his previous lawsuits against Siemens, Pittman had filed five motions to disqualify the presiding judges. Each motion was denied. Siemens stated Pittman sent “harassing and intimidating” emails to opposing counsel, one of which included “an extended diatribe about 9/11, the war in Iraq, pharmaceutical companies, and the inequities of the criminal justice system,” while in another, Pittman stated, “[L]et them know that that was only one battle because the war will end in the courtroom and that is where I must die.”"

Probably not the greatest strategy on Pittman's part.

Bravo, in contrast, by the respondents in this appeal.  Who don't even show up.  They let the Court of Appeal figure this one out on its own.

Right call.  By everyone involved.  (Except, of course, Mr. Pittman.)

Monday, February 26, 2018

Rybolt v. Riley (Cal. Ct. App. - Feb. 26, 2018)

From today's opinion in the Court of Appeal:

"The order also implicitly acknowledges Riley’s future plans to become a lawyer in the context of considering the potential burden a renewed restraining order would have on him. Because he had already been dismissed from the California Highway Patrol for dishonesty, the court found it would be difficult to discern any negative consequences from the renewal. When considered in context and in light of Riley’s testimony that he was attending law school and that a renewed restraining order might affect his ability to gain admittance to the state bar, the court’s statement shows it did consider Riley’s law school attendance in its decision but did not find the evidence compelling."

As a law student, Mr. Riley might have wanted to think twice before filing a (losing) appeal that might subsequently be published -- as today it was -- and thereby reveal to the world the various facts contained in this domestic violence restraining order appeal.

Wednesday, February 21, 2018

Bassett v. ABM Parking Services (9th Cir. - Feb. 21, 2018)

You can certainly understand why the Ninth Circuit comes out this way today.  The Supreme Court in Spokeo a couple years ago really did seem to make the "injury in fact" standing requirements tougher to satisfy.  Given that predicate, you can see why the panel concludes that there's no standing even when a defendant clearly violates a federal statute that says you can't put the credit card expiration date on a receipt.  That's illegal, and there are statutory penalties.  But apparently the Constitution prohibits federal courts from enforcing it.

Okay, I guess.  I'm fairly confident that's what the six justices in the majority in Spokeo would indeed hold.  As the Ninth Circuit's opinion puts it, if there's no thief who grabs the receipt out of your hand and uses it to steal your identity, there's no "actual injury" and hence no standing.

Though I have one thought in this regard to share.

There seem to me to be lots of somewhat analogous circumstances in which we do find standing.  Even when the only recipient of the item in question is the plaintiff herself, and in which there's no demonstrably "concrete" harm.  To take but one example, imagine that a boyfriend secretly takes a Polaroid of his sleeping (naked) girlfriend, and the before the picture develops, slips it in her purse.  She sees it the next day and is horrified.  She didn't consent to the photo, and there she is, naked, for all to see.

I have no doubt whatsoever that a court would find standing in such a context.  Someone's privacy was invaded.  A statute was violated.  There's a photograph out there that depicts something that the law protects.  If the girlfriend sued, I am certain that the Ninth Circuit would find standing.  Even if (1) the only person to ever view the picture (like the receipt) was the plaintiff, (2) there were no other copies, and (3) to use the words of the Ninth Circuit, the picture "fell into [plaintiff's] hands in a parking garage and no [] thief was there to snatch it."  The fact that plaintiff freaked out about the privacy violation -- and that the Legislature says that's good enough to impose some minimal level of statutory damages -- would certainly create standing.

So why not here?

I know that our sentiment is that it's worse to have a naked picture than a credit card receipt with your expiration date on it.  But that's a quantitative difference, not a qualitative one.  And if the Legislature -- the voters -- dictate that the latter invasion is as harmful to community (or individual) sensibilities as the first, in what position is the judiciary to conclusively determine otherwise?

Plus, I gotta tell you, I have zero doubt that at least some people would be more freaked out about a credit card receipt than a naked picture, and might indeed be psyched about the latter.  The point is that these things seem inherently subjective.  Some people freak out about privacy.  Some people don't.  Some people freak out about potential identity theft.  Some people are more mellow.  I can think of plenty of statutes that articulate "concrete" injury when, in fact, there's no "demonstrable" harm of the type the Ninth Circuit seems to require here.  Is the line the Ninth Circuit draws here really a consistent -- or tenable -- one?  I have some doubts that it is.

Anyway, I think it's worth thinking about the nature of subjective injuries, particularly when (as here) the issues concern (inherently subjective) privacy and legislative judgments.  If we really had a rule that treated seriously the Ninth Circuit's principle about trees (or receipts) falling in the forest where no one hears (or steals) them, I think we might well have to strike down a plethora of federal and state statutes that we're super happy with and that we commonly think reflect legitimate interests.

Tuesday, February 20, 2018

Hauser v. Ventura County Board of Supervisors (Cal. Ct. App. - Feb. 20, 2018)

Justice Gilbert begins today's published opinion by saying:

"This case calls to mind the poem “The Tyger” from Songs of Experience by William Blake, the last stanza of which reads: “Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!”"

Truthfully, when I read the case, that particular poem did not come to mind.  But I concede that I'm less cultured than Justice Gilbert.

Plus, the case is indeed about tigers.  The appellant wants to keep five tigers (!) on her property.  The neighbors, by contrast, are (shockingly) not too psyched about the prospect.  Nor is the County Board of Supervisors.  So they deny her the conditional use permit that's required.

She appeals.  No dice.

No tigers in Ventura.  Sorry about that.

Friday, February 16, 2018

Marsh v. J. Alexander's LLC (9th Cir. - Feb. 16, 2018)

When you've got (1) a majority opinion written by a hard core conservative, (2) over the dissent of a liberal judge, (3) with the swing vote provided by a district court judge sitting by designation, (4) that creates an express circuit split, (5) in a labor law case, (6) in which the Department of Labor appears as amicus curiae for the losing party, don't be surprised if the Ninth Circuit takes that panel opinion en banc.

I'm not sure it happens 100% of the time.  But, under those circumstances, I bet it's darn close. 

Thursday, February 15, 2018

People v. Hutchinson (Cal. Ct. App. - Feb. 15, 2017)

It's a home invasion robbery of a wealthy family in Rancho Palos Verdes by a group of people who threaten and repeatedly tase the occupants and who have prior felonies.

Guess whether the sentence is short or long.

Right.  42 years.

Wednesday, February 14, 2018

Tovar v. Sessions (9th Cir. - Feb. 14, 2018)

The Ninth Circuit says:

"The question before us is whether Margarito Rodriguez Tovar, a child of a lawful permanent resident (LPR) who was deemed by statute to be a minor child until the very day his father naturalized, still qualified as a minor on that day, or whether instead his father’s naturalization transformed him on the spot from a minor into an adult. The government and the BIA have parsed individual provisions of the labyrinthine Immigration and Nationality Act to arrive at the latter position, with the effect that a parent’s naturalization can cause a child to be deported forthwith and to wait for decades in a foreign land for an immigrant visa—a visa that he would have had in a short period of time if his parent had not become a citizen."

Yeah, that does seem strange.  Doesn't make sense that the fact that your parent becomes a citizen somehow means you get deported.  Seems like it should go the other way.

Which is what the Ninth Circuit indeed holds.

Happy Valentine's Day, Mr. Rodriguez Tovar.

Tuesday, February 13, 2018

People v. Robbins (Cal. Ct. App. - Jan. 19, 2018)

A tiny snippet from this opinion:

"Defendant began drinking beer and smoking marijuana around 3:00 p.m., consuming approximately 33 beers. Defendant became intoxicated."

Call me crazy, but I'd call that second sentence somewhat redundant.

Monday, February 12, 2018

Rojas v. HSBC Card Services (Cal. Ct. App. - Feb. 9, 2018)

No published opinions from the Ninth Circuit or the California Supreme Court today, and none from the California Court of Appeal yet either.

But here's an opinion from Friday that seems spot on.  And I'm glad the Court of Appeal decides to publish it.

The trial court granted summary judgment to the defendant, but the Court of Appeal reverses.  It's illegal to intentionally record confidential phone communications of someone else, but HSBC recorded all of its employees' outgoing calls.  The trial court said that HSBC was entitled to summary judgment because HSBC didn't "intentionally" record a "confidential" communication because HSBC didn't know that the particular 300+ calls at issue -- between plaintiff and her daughter, who worked at HSBC -- were confidential.  But the Court of Appeal seems exactly right when it says that if you record all the calls, you pretty much know for sure that you're going to record confidential calls, so you're liable.  The fact that you didn't know that this particular call was confidential is irrelevant.

Works for me.

Indeed, to me, it's not just that HSBC isn't entitled to summary judgment.  If the facts are indeed as the parties appear to present them, the plaintiff is entitled to summary judgment.  Since it's not just that a reasonable jury "might" conclude that HSBC's practice was intentional under the statute.  To me, every reasonable juror would be required to so conclude as a matter of law.

If only because -- and hopefully this doesn't shock anyone -- people at work sometimes make personal calls from their phone.

Crazy, I know.

Which in turn means that if you record every single call, you know that you're definitely going to be recording these as well.

Thursday, February 08, 2018

People v. Int'l Fidelity Ins. Co. (Cal. Ct. App. - Feb. 8, 2018)

Dealing with bail forfeitures isn't exactly my area of expertise.  But I nonetheless read a fair number of appellate cases about it.  So I'm generally aware of what's going on (and at stake).  Generally.

But today, when reading this opinion, I learned about a dynamic that I hadn't previously understood.  One that makes sense.  But that I hadn't thought about before.

It's not what the opinion is about.  But the factual recitation is what clued me in.  Basically it's about a guy who disappears after he's convicted of lewd or lascivious acts against a child under the age of 14 years.  That's bad for him, but it's also bad for the bail bondsman who posted his $300,000 bond.

So the surety tries to find him and bring him back in, then gets an extension for another six months.  But the clock's ticking.  One day after the bail's going to be forfeited, the surety comes into court and asks for another extension, which it seeks basically on the grounds that they've caught him in Mexico and he's in the process of being extradited.

Except arguably that's not really true.  There's a fight about whether the surety really has the guy in custody in the manner the law requires (or even at all).

And who's on what side of this dispute is what's interesting.

Obviously the surety wants more time.  What's not so obvious -- but what makes sense -- is that so does the District Attorney's office.  Because if the bounty hunter gets more time, he's likely to keep on working (perhaps successfully) to bring the guy in.  Whereas if the bail is forfeited, there's no incentive to keep looking (or keep trying to extradite), since the money's already down the toilet.

By contrast, County Counsel wants the bail forfeited.  Because the forfeited money -- no chump change -- goes to the County once it's forfeited.  And the County wants the dough.

So you've got the D.A. and County Counsel on opposite sides in a criminal case.  Not something you see every single day.  (Or at least not something I see.)

So that taught me something new.

Plus, in the particular case at hand, the Court of Appeal reaches a result with which no one's probably really happy.  Except the surety.  I can summarize that holding with a single paragraph from the opinion:

"Respondent’s frustration in the case is not unwarranted. The time of the hearing was changed by the court and it appears to have been obvious to all present that the defendant would not be appearing. Had the court waited the 42 minutes until 10:00 a.m., when the defendant was legally required to appear, before declaring the forfeiture, there would have been no question that the forfeiture was valid. Instead, by virtue of the court’s error in proceeding as it did, appellant will avoid liability on the bond despite having failed to locate the defendant and return him to court during the period of more than a year between the declaration of forfeiture on January 24, 2014, and the trial court’s April 23, 2015 denial of the surety’s motion for tolling and subsequent entry of summary judgment. Nevertheless, respondent’s argument that waiting until 10:00 a.m. before declaring the forfeiture would have been “the epitome of an idle act,” while understandable, is untenable."

The net result of which is that the decision below is reversed, the bail bond is exonerated, and the guy stays in Mexico (or wherever he is) because the surety no longer has any incentive to bring him back, since it's now got it's $300,000 back for good.

Ouch.  For want of a nail, the kingdom was lost.  Only this time the nail is 42 minutes.

Wednesday, February 07, 2018

Gonzalez v. Mathis (Cal. Ct. App. - Feb. 6, 2018)

It's a premises liability case where a window washer falls off a roof while cleaning a skylight.  So he sues the homeowner.

Okay.  I'm sure the guy was injured somewhat seriously.  Plus, the house at issue is in the Hollywood Hills, and has an indoor pool.  So I'm fairly confident the homeowner is decently wealthy.  Given the likely stakes at issue, and the wealth of the defendant, you'd expect that some decent attorneys would represent the defendant.

But Latham & Watkins?  They're not exactly a personal injury defense firm.  And cost a fair penny. What the heck are they doing on this case?

So I check out the caption.  The defendant's name is John R. Mathis.  I'm figuring that maybe the guy's a partner at Latham.  Or some other big name attorney who's friends with someone at Latham.

Nope.  No dice.

Well, the guy's in Los Angeles.  Maybe I can find out some stuff about him online.

When suddenly it hits me.  John R. Mathis.  John Mathis.  Johnny Mathis.

Now it all makes sense.

To her credit, Justice Zelon doesn't even hint at this in her opinion.  It's just another case in L.A. to the Court of Appeal.  No star-struck references in the opinion to music lyrics, song titles, etc.

One still wonders whether it's really worth having Latham & Watkins on the case.  Particularly when you discover that Mathis loses in the Court of Appeal, and the case is remanded back for trial.

Still, even good lawyers lose sometimes.  Not necessarily their fault at all.

Though some of the statements in the Court of Appeal's opinion don't exactly make Latham look all that great.  Like this one:

"In a footnote to the introductory section of his respondent’s brief, Mathis argues we may affirm the trial court’s judgment on an alternative ground, asserting that “Gonzalez is estopped from recovery because he mispresented [sic] himself as having worker’s compensation insurance, as required by California state law, and which would have compensated him for his injuries, and improperly seeks to require Mathis to compensate him for an injury that should have been covered by his own claimed insurance.” Mathis’s brief presents no further argument on this issue. “We . . . need not address . . . contention[s] made only in a footnote.” [Citations]; see also People v. Lucatero (2008) 166 Cal.App.4th 1110, 1115 [“A footnote is not a proper place to raise an argument on appeal”].)."

As for Mathis, this week ain't his week.  But it's probably a better day than a couple of years ago.  Which seems to involve the same home at issue here.  One totally destroyed in a fire.

Bad ju-ju.

Tuesday, February 06, 2018

Simpson v. Trump University (9th Cir. - Feb. 6, 2018)

The district court's approval of the $25 million class action settlement against Trump University gets affirmed by the Ninth Circuit this morning.  Not surprisingly.

The best part of the opinion, IMHO, is footnote four.  The objector to the settlement made various arguments in the district court, including a very non-frivolous argument that the short form notice seems to provide (in a parenthetical) that class members would get a second opportunity to opt out after any settlement.  The Ninth Circuit held that even though that parenthetical might well be read in such a fashion, viewed as a whole, the notice didn't really say that, and there was only opportunity for a single opt-out election.

Here's footnote four:

"Plaintiffs repeatedly characterize Simpson’s argument as “attorney-manufactured.” The timeline and evolution of her objection support that assertion, but our court would have little work to do without creative arguments “manufactured” by zealous attorney advocates."

Love it.