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.


Monday, February 05, 2018

In Re J.G. (Cal. Ct. App. - Feb. 5, 2018)

This is sufficiently depressing that I'm almost inclined not to mention it.

Four very little kids -- the oldest was four years old -- were removed from their parents.  For good reason.  In full view of the kids, Father ran over and killed Mother.  OMG.

Father's sister (Aunt) then moves to get custody of the kids, and the court awards it.  The opinion gives a ton of detail about what happens to the children while they're in Aunt's home.  One -- very bland -- sentence will instead suffice:  "We agree and conclude that the court abused its discretion in ordering the children to remain with a caregiver who failed to provide adequate food to them, causing serious injury to the health and well-being of the three youngest children."

Yikes.  Times three.

You can get a sense of what transpired by how the Court of Appeal characterizes these events later in the opinion.  "The record clearly shows that Aunt failed to provide P.G., D.G., and J.G. with adequate food and that she intentionally limited the children's food portions. As a result, the younger children were diagnosed with nonorganic failure to thrive. P.G. was severely malnourished, dehydrated, and lethargic, and had to be hospitalized for almost two weeks. D.G. and J.G. were also severely malnourished. They had postgrowth arrest lines on their bones, which occurs when the body stops building bone in response to malnutrition. D.G. and J.G. displayed food insecurity. Dr. Young testified that P.G., D.G., and J.G. essentially stopped growing. In addition, she believed that malnourishment may have affected their brain development. Dr. Young said that the younger children all had significant loss in growth potential. She characterized Aunt's treatment of them as "starvation.""

To be clear:  This is not a case of a deliberate intent to harm.  Aunt thought that the children were overweight.  That's indeed sometimes a problem with kids in the modern era.  Maybe even, initially, here.

But that doesn't matter.  At least to the result here.  "The record shows that Aunt willfully failed to provide the younger children with adequate food and nutrition, resulting in their diagnoses of severe malnutrition and nonorganic failure to thrive. That Aunt may have lacked the intent to harm the children does not mitigate her failure to provide adequate food to them. (§ 300, subd. (b).) We therefore conclude that the court erred in determining that it was safe for the children to remain in Aunt's care because she did not intend to starve them."

As Justice Aaron ends her opinion:

"Adequate nutrition and food security is an essential need for any person, particularly a young child whose proper growth and development depends on such sustenance, and in turn, on the caregiver to provide it. Here, the uncontroverted evidence shows that Aunt failed to provide the younger children with a fundamental necessity of life—adequate food, and that she failed to appreciate the impact of her actions on their health. Further, there was no indication that Aunt was able or willing to alter her behavior in this regard. The impact of malnutrition on the children's growth and development, and well-being, outweighs any other benefits that the younger children received in Aunt's care."

Marina Pacific Homeowners Ass'n v. Southern California Financial Corp. (Cal. Ct. App. - Feb. 5, 2018)

The Court of Appeal has to decide who's the prevailing party in the underlying litigation.  The second paragraph of the opinion begins by noting:  "This is the fifth appeal in litigation over the assignment fee that began in 2006."

That sentence may provide a hint as to what the court's going to do.  Because this thing has gone on a long time.  And the easiest way to put a merciful end to it is simply to affirm.

Which is precisely what the Court of Appeal does.

That resolution also makes sense.  Both sides won.  But both sides lost.  If the trial court thought the final judgment was essentially a wash -- which sounds right, since the ultimate result was in between what both sides sought -- you can see why the Court of Appeal might not want to disturb that finding.

And finally put the thing to bed.

Thursday, February 01, 2018

Gonzalez v. Lew (Cal. Ct. App. - Feb. 1, 2018)

This opinion is a good candidate to go up to the California Supreme Court.

Not that the Court of Appeal is necessarily wrong.  But the decision here has a fair amount of tension with other California appellate cases.  Today's opinion validates a Section 998 offer that was jointly made by multiple plaintiffs.  Normally, however, joint offers like that are invalid, since they don't allocate liability, so the reasoning of this opinion stands in stark contrast to the holding of those other authorities.

So it might make sense to straighten this out.  Especially since (1) 998 offers are pretty routine, and (2) there's a real value to a bright-line rule here, rather than having the result depend on what panel you end up getting on appeal.  Lawyers should know whether these types of offers are valid.  And having a clear rule may be equally (if not more) important as having a rule that makes good policy.

Plus, as an added bonus, granting review would mean that the California Supreme Court could take out the double negative.  Check out the heading on page 22:  "4. The plaintiffs’ joint settlement offer was not invalid."  You can probably change those last two words to "valid," right?

Lest we confront physical violence from our high school English teacher.