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.