Friday, January 19, 2018

Estate of Kerkorian (Cal. Ct. App. - Jan. 19, 2018)

You see in today's opinion a story of what is unquestionably true love:

"Two days before the wedding, [Kirk] Kerkorian gave . . . (Mandekic) $10 million with written instructions to give the money to petitioner upon their marriage “as a transfer from [Kerkorian] to [petitioner] outside of [Kerkorian’s] estate and . . . in place of any transfer to [petitioner] that [Kerkorian] might make upon [his] death.” The day before the wedding, petitioner signed a “Waiver of Marital Rights” (the waiver) in which she relinquished any right to receive assets of Kerkorian’s estate through intestate succession, under Kerkorian’s will, or as an omitted spouse pursuant to statute. Mandekic then transferred $10 million to petitioner as directed. . . .

Petitioner and Kerkorian separated roughly two months later. Kerkorian died just over a year thereafter, in June 2015. His will was admitted to probate, and Mandekic was qualified to serve as executor of the estate. The July 2013 will is not part of the record on appeal, but it is undisputed the will (1) does not mention petitioner, (2) provides approximately $40 million in specific bequests to several individuals, including Mandekic (whose bequest has already been distributed), and (3) gives the remainder of Kerkorian’s estate, valued at approximately $2 billion, to unidentified charitable organizations to be selected by a committee appointed in the will."

Needless to say, Kerkorian's former wife -- Una Davis -- now seeks a huge chunk of the $2 billion as an omitted spouse.

The $10 million payment right after the wedding.  The prenup signed the day before.  The separation months after the marriage.  A demand for huge amounts after the former spouse dies.

Modern romance.

Thursday, January 18, 2018

Wishnev v. Northwestern Mut. Life Ins. Co. (9th Cir. - Jan. 18, 2018)

Am I wrong, or does it seem like the Ninth Circuit has been certifying more and more questions to state supreme courts over the past half-dozen years or so?

The Ninth Circuit certifies today yet another question to the California Supreme Court.  This one is about usury and permissible interest rates (in particular, compound interest).

I assume the California Supreme Court will take the thing and decide it.  Though I wonder what the informal "cap" would be on how much work a state supreme court would do for the Ninth Circuit before it stopped doing stuff for 'em.  Five cases a year?  Ten?

If I was more rigorous, I'd actually run the numbers and see if my intuition is correct that there's been a slight uptick in certification in the Ninth Circuit.

But I'm sick.  And lazy.  At least today.

So I'll just speculate.

Ah, the joys of academia.


Wednesday, January 17, 2018

ESP LERP v. Gascon (9th Cir. - Jan. 17, 2018)

When the name of the plaintiff on the caption is "Erotic Service Provider Legal Education and Research Project," you're pretty much required to read the underlying opinion, right?

Of course you are.  If only to figure out what the heck that organization does.

Here, it's a constitutional challenge to California's law against prostitution.  Plaintiffs say that have a constitutional right to do what they want (sexually, at least) with their bodies -- even for money.  The district court dismissed on the pleadings.

Not surprisingly, the Ninth Circuit unanimously affirms.

This was a lost cause from the beginning.  Sure, Lawrence opened up a lot of things to potential challenge on the sex front.  But prostitution was carved out even in that opinion.  So there was little doubt -- notwithstanding the substantial amici involvement in the case -- where this one was going to end up.

Which is not to say that plaintiffs will never prevail.  Who knows what the next decade or so (or decades) will bring?  Few would have predicted, for example, that gay marriage would end up where it is now so quickly.

But at least for now, this is an idea whose time has not yet come.  At least in the judiciary.

And it isn't even especially close.


Tuesday, January 16, 2018

Galiea LLC v. AGCS Marine Ins. Co. (9th Cir. - Jan. 16, 2018)

I've never been a scholar of Plato.  I've read the guy, sure.  But not a ton.  Nonetheless, I recognize the guy's a stud.  Name all the people you know from 2000 years ago.  Yeah.  Thought so.  When you're in a group of a dozen or so people, that's a pretty significant accomplishment.

So when the guy speaks, I listen.

Judge Berzon begins her opinion today with a quote from the guy.  And it's surely an appropriate quote for the context -- an insurance policy that covered a yacht that wrecked in Panama.  She says:

"“The sea, although an agreeable, is a dangerous companion,” wrote Plato more than two millennia ago."

Cool.  Never read that one before.  Awesome.

But I have a question.  One that may admittedly demonstrate my ignorance.  Lest that should ever stop me.

Doesn't that middle clause have to have a noun in it?

It's not that Judge Berzon gets the quote wrong.  Everything I've seen recites the passage the same way.

But "agreeable" is an adjective, right?

So I could see the sentence reading:  "The sea, although agreeable, is a dangerous companion."  Or, "The sea, though an agreeable one, is a dangerous companion."  Or even "The sea is an agreeable, although dangerous, companion."  Those all make sense to me.

But "The sea, although an agreeable, is a dangerous companion" just strikes me as sounding strange. I'm trying but failing to come up with an analogy; a different sentence that describes an X as being "an [adjective]" in a subordinate clause followed by an adjective/noun combination.  I'm sure that one probably exists; I just can't come up with one.  And it sounds weird.

None of this, of course, is Plato's fault.  He wrote in Greek.  I'm sure it makes total sense in the original.

The translation just strikes me as a bit off.  Or at least unusual.  Maybe that's the point?

Anyway, you can read the whole opinion if you'd like.  Though I'll warn you at the outset that spending some time pondering Plato may be slightly more enthralling than deciding whether arbitration provisions in maritime insurance policies are enforceable despite law in the forum state that precludes its application pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1012 (which shields state insurance laws from federal preemption) and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1–16 (which provides for enforcement of arbitration provisions in maritime contracts).

But, hey, that's the dispositive issue here.  So that's what the court decides.

Friday, January 12, 2018

Cook v. Harding (9th Cir. - Jan. 12, 2018)

Today's Ninth Circuit opinion is a dream read for civil procedure/federal courts scholars.  It's all about Younger abstention and issue preclusion.  And, as an added bonus, these issues arise in the context of a constitutional challenge to California Family Code Section 7962, which codified the preexisting California cases that found gestational surrogacy contracts enforceable.  Fascinating.

Though I readily concede that "fascinating" may be an overstatement for those less enthralled by federal procedural minutia.


Thursday, January 11, 2018

Murray Dental Corp. v. Dentsply Int'l (Cal. Ct. App. - Jan. 10, 2018)

The next time someone tells you that class actions are unfair because they're judicial blackmail, too risky for defendants to take to trial, coerce settlement even when the action is meritless, impossible to try, etc. etc., have them read this opinion.  (And, yes, Judges Easterbrook, Friendly, and Posner, I'm talking, inter alia, to you.)

It's a case that was filed in 2004, and has been up and down in the Court of Appeal since then.  It's a class action against a particular (very expensive) dental machine, which the plaintiffs say isn't up to snuff because defendants market it as good for "[p]eriodontal debridement for all types of periodontal diseases" (e.g., oral surgery) but in fact doesn't work for that since it accumulates biofilm and hence can't deliver the required sterile water.

The case goes on forever.  Thirteen years.  Gets certified and everything (though even that requires a trip in the Court of Appeal).  But never settles.  Actually goes to trial; a month-long one, even.

One in which the defendants prevail.  And the Court of Appeal affirms.

A definite bummer for the plaintiff class and -- especially -- their attorneys, to be sure.  All that work (and expense) for literally less than nothing.  Plus a cost award (e.g., insult to injury) in the final lines of the Court of Appeal's opinion.  Ouch.

But proof positive that cases can be tried.  And lost.  Even class actions that might facially seem non-trivially good ones.

Wednesday, January 10, 2018

U.S. v. Hullen (9th Cir. - Jan. 10, 2018)

Andrew Hulen failed to register as a sex offender, so he was sentenced to a year in federal prison.  He did his time and got out.  After he was out, he had a five year term of supervised release, and was required to undergo sex offender treatment.  Which he did.

Two months into that treatment, however, he volunteered to his treatment provider that "he was not doing all he could to progress in treatment."  Clearly, he felt bad about that.  "Hulen’s provider told him to write down everything he had done in violation of his treatment program, which he did."  The resulting list was pretty long; he was sexting, having contact with (presumably adult) women, going to bars, etc.  Things he definitely shouldn't be doing.

So, on the basis of Hulen's forthright admissions, his provider promptly terminated Hulen and tturned over his list to his probation officer.  Who in turn revoked Hulen's supervised release, and Hulen was forced to spend another six months in prison.

Hulen says that this violated his Fifth Amendment right to remain silent, because he was required to be truthful in his treatment program, and he was, and that's precisely what got him in trouble.  But the Ninth Circuit holds that the Fifth Amendment doesn't apply to revocations of supervised release.  So there.

Okay.  That's the way we view things, apparently.  It is what it is.

But I will say this.  If that's the law, and I'm Hulen, I'm definitely going to start lying to my treatment provider (e.g., my doctor).  Every.  Single.  Day.  I'm not going to feel bad about the stuff I'm doing; or, at least, I'm not going to tell him about that stuff in an attempt to get better.  Because, apparently, rather than try to help me, he's just going to get me thrown back in prison.  And, after today, he can clearly do that, and I'm utterly without recourse.

And if I'm anyone advising Hulen (e.g., his lawyer), I'm going to make darn sure to tell him that this is the law.  Because I don't want him thinking, even for a second, that he can be honest with the guy who's trying to make him better. 

Friends of Animals v. U.S. Fish & Wildlife Svc. (9th Cir. - Jan. 10, 2018)

What Judge O'Scannlain says in today's opinion seems right to me.  The U.S. Fish & Wildlife Service decided that in order to protect one very critically threatened species -- the northern spotted owl -- it might make sense to reduce the population of another (fairly common) species, the barred owl.  Barred owls, as it turns out, are fairly aggressive, and have migrated from their usual range in the eastern United States to compete with northern spotted owls out here in the West.  To the substantial detriment of the latter.

Or so it seems.  The U.S. Fish & Wildlife Service decided that it'd go to particular areas and whack some barred owls to see if that helped out the northern spotted owls there.  Which, my sense is, it probably will:  "Barred owls’ diets can overlap with spotted owls’ by as much as 76%, and the more aggressive barred owl may displace spotted owls and may even physically attack them."

Judge O'Scannlain says there's nothing illegal about that.  Which seems right to me.

The only thing that sort of miffed me about the opinion was the language.  Throughout the opinion -- a couple dozen times or so -- the Ninth Circuit says that the issue is whether the U.S. Fish & Wildlife Service is permitted to "take" the barred owls.  Only in a footnote (or in isolated quotes) does the opinion say what we all know this really means.  As the footnote explains:  "“To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995). As the Service acknowledges, the “vast majority of take” at issue in this case consists of “intentional, lethal take of barred owls.”"

Look, I know the relevant statutes say "take", and it's nice that Judge O'Scannlain drops a note to recognize that he's aware what this really means.  But whereas Congress may prefer euphemisms, I prefer letting the reader know straight out what we're talking about.  Can we kill thousands of one type of owl to potentially help out another?

I think the answer is yes.  But I also wouldn't shy away from using the more meaningful word.

Because that's what's at stake.

Monday, January 08, 2018

People v. Arter (App. Div. Yolo - Jan. 5, 2018)

It's a minor point, to be sure.  And I don't at all expect perfection from opinions by the Appellate Division of the Superior Court -- in this case, from Yolo County.

But, as a general matter, there's no reason to include stuff in a published opinion that's unnecessary as well as routine.  For example, the following three paragraphs of the opinion:

"Defendant filed an opening brief.

The People filed a respondent’s brief.

Defendant filed a reply brief."

Okay, that's great.  I'm glad everyone filed briefs.  But we probably expected as much.  No need to kill trees (or pixels) pointing it out.

There's some minor other stuff as well.  Some bluebooking errors; for example, on page 7, the citation to "(Birchfield v. North Dakota ____U.S._____, 136 S. Ct. 2160.)" needs a year.  And there's a crazy blank box of some sort on page 8; not sure what that's about.

But, again, nobody's perfect.  I appreciate the opinion.  Boating while intoxicated is a problem.  Glad to see the panel make the extra effort involved to publish the opinion.

POSTSCRIPT - A couple hours after my post, they reposted the opinion to the "correct" version -- one that (thankfully) gets rid of that annoying box.  Still doesn't have a year for Birchfield though.


Thursday, January 04, 2018

People v. Tua (Cal. Ct. App. - Jan. 4, 2018)

The first paragraph of today's opinion begins by saying:

"A jury convicted Roland Isaac Seau of the crimes of murder in the first degree in the death of Louiegie Bermas with the personal use of a deadly weapon; the willful, deliberate, and premeditated attempted murder of Randy Lozano; assault with a deadly weapon on Lozano with the personal use of a knife and personal infliction of great bodily injury; and dissuading a witness, Vanessa Rivera. The jury found that each crime was committed for the benefit of a criminal street gang. In a bifurcated proceeding, Seau admitted two prison priors, a strike prior, and a serious felony prior." (citations omitted)

Well, now, that's a pretty solid batch of charges.  Indeed, you can't get much more solid than that.  I would expect some heavy, heavy time.

Which is exactly what Mr. Seau receives:  102 years to life.

His friend, Mr. Tua, gets sentenced to 75 years to life.  But, again, these are darn serious convictions.  Probably not helped by the fact that Mr. Tua has a tattoo on the left side of his neck that says "Fuck a Snitch."

The crimes here also reflect the somewhat random -- and harsh -- nature of life on the relevant streets.  The person who's stabbed and almost dies is a guy who was a gang member from Fallbrook who made the mistake of moving to Oceanside.  Even though he was friends with everyone there, and didn't seem to make enemies with anyone, he still randomly suffers his fate.

It's even worse (obviously) for the guy who was killed.  As far as I can tell, he didn't do anything.  At all.  He's not even in a gang.  He was just a guy with a slight build who was friends with the other guy.  A fact that got him killed.

What a harsh world in which to live.

Wednesday, January 03, 2018

Arave v. Merrill Lynch (Cal. Ct. App. - Jan. 2, 2018)

One of the annyong things about practicing in the Ninth Circuit is its issuance of short, unpublished memorandum dispositions.  I understand why they do them; there are too many cases to resolve all of them in lengthy published opinions.  So you need to short circuit some -- indeed, perhaps most -- of them.

Still, if you're a lawyer for one of the sides, and you've spent hundreds of hours pouring out your detailed arguments in 50-page appellate briefs, it's incredibly distressing to get back a two- or three-page opinion back that engages with none of these arguments and simply gives you a conclusion.  I found that prospect distressing even when I was (long ago) clerking on the Ninth Circuit, and for that reason always wanted to go through the extra (albeit unnecessary) effort of drafting comprehensive opinions even if they were going to be unpublished.  I find the prospect even more distressing now that I'm on the receiving end of those opinions.  Again:  I understand why they're done.  But they're still no fun.

Which is, in part, why I really appreciated the first published opinion in 2018 from the California Court of Appeal.  It's an incredibly fact-intensive opinion about a particular discrimination case -- a case in which there was a five-week trial.  And the Court of Appeal goes through every argument that's raised in excruciating detail.  Justice Slough's opinion is 94 (!) pages.  It may not resolve the issues in the manner preferred by the losing party.  But the justices undeniably took their jobs very seriously, and went through their assigned tasks point-by-point.  In detail.

You can't argue with that.

It's a nice start to a new year to see something that's so obviously diligent.  Gives one hope.

Tuesday, January 02, 2018

People v. Shaw (Cal. Ct. App. - Dec. 7, 2017)

The holidays are over.  Sorta.  There's nothing published from any appellate court in California yet for 2018.  So they're still on a break.  (Though I'm confident they're working away.)

So let's take a break and mention something noteworthy from December.  This opinion contains two things I hadn't seen before.  Or at least don't recall seeing.

First, the defendant was convicted of possession of burglary tools.  That's not strange.  But the burglary tool that he was convicted of possessing was a foil-lined bag.  Apparently, foil-lined bags are used to shoplift material from stores (here, to steal jeans); that way, the store's sensor doesn't go off when you take the stuff out of the store.

Didn't know that.

Second, the first line of the opinion reads:  "Defendant James Shaw used a foil-lined bag to shoplift several pairs of jeans from a San Francisco department store."  But the caption is "People v. Linda Shaw."  No, Linda is not his wife.  He's transgender.  Hence the divergence.

Don't recall seeing that before either.