Thursday, November 15, 2018

People v. Randolf (Cal. Ct. App. - Nov. 14, 2018)

Doing this job -- or at least writing this blog -- you get used to various personalities and institutions in the Court of Appeal.  I was reminded of that when I read this otherwise totally innocuous amendment to a prior opinion.  A tiny little thing.  That states, in toto:  "On page 5, footnote 7, beginning 'In raising this appeal, appellant' is deleted in its entirety."

Okay.  Out goes footnote 7.  Guess it wasn't really necessary.

But I did just wonder:  What did footnote 7 say?  I know it starts with "'In raising this appeal, appellant . . . ."  What's the rest?

Not much, as it turns out.  But the "rest" is nonetheless meaningful.

The original footnote read, in its entirety:  "In raising this appeal, appellant does not contend the officers should have been designated as experts pursuant to Evidence Code section 801, subdivisions (a) and (b)."  So the Court of Appeal deletes that footnote.  Which leads one to believe that, well, maybe, appellant did contend that the officers should have been designated pursuant to Section 801.

Which in turn makes me think:  Well, what about that?!  If they did in fact argue that -- otherwise, why delete the footnote -- what about the merits of that argument.  Does it work?

The Court of Appeal doesn't say.

Of course, the Court's under no obligation to say why it does what it does.  So I can just deal.  But I will say that the amendment nonetheless did leave an open question in my mind.  Not a burning open question or anything, but still, something that the Court of Appeal might have liked to say something about.  If, in fact, the reason for deleting the footnote was because the appellant did indeed argue the thing that the Court of Appeal (originally) said it didn't, and hence, that the Court of Appeal didn't address.

Now, the Court of Appeal not only doesn't have to satisfy my curiosity -- or anyone else's, for that matter -- but is also fairly busy.  Though, in that regard, it probably bears mention that this is the Fifth District.  In my experience, you can count on that district to publish an opinion about once every week or two.  Rarely more.

So, for example, this (tiny) amendment was on November 14.  The Fifth's most recent published opinion was two weeks earlier, on November 1.  Then one a week before that, on October 23.  Then October 19th and October 12th, then one on October 1, then just one opinion in all of September (on September 10).

Which is just a longwinded way of saying (and/or showing) that there aren't legions and legions of published opinions typically coming out of the Fifth.  So maybe a tiny explanation for that argument that we're now hinting the appellant did, in fact, potentially make -- and its merits, or lack thereof -- might potentially be something we could do.

All of which is not to blame the Fifth.  It's been understaffed, especially recently.  It just got two new justices -- Justices DeSantos and Snauffer -- in August.  Being two short can make a big deal for a district that only has ten or so justices when it's fully staffed.  So I get it.

Still.  Could have potentially seen a more detailed amendment on this one.  If in fact the appellant did in fact make the argument we initially thought it didn't.

Wednesday, November 14, 2018

C.A. v. C.P. (Cal. Ct. App. - Nov. 13, 2018)

The first line of this opinion will tell you a lot about (1) California, and (2) where the law in this area is likely to go in the future.  It's a line that will strike horror (or bemused cynicism) in the minds of many viewers in different parts of the country, as well as one that would have been unlikely to have been written in most appellate courts twenty or thirty years ago.

Here's the line.  Authored by Justice Duarte:

"This case involves a little girl bonded to and loved by each of her three parents."

Three parents.  Controversial now (at least in some minds).  Likely to be more prominently -- and more formally -- accepted in the future, I think.

It's a good case for that line.  A good set of facts.  So while the opinion might well be mocked by certain audiences, who might view it as a classic example of the nuttiness that is California, here are the circumstances that lead Justice Duarte to say what she does:

"The child was born in July 2012 to wife, who was then and remains married to husband. . . . Defendants [the husband and wife] never questioned plaintiff’s status as the child’s biological father, a fact each defendant had known before the child was born. Wife led plaintiff to believe she was separated but continued to cohabit with husband without plaintiff’s knowledge. Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not find out about the affair, which caused plaintiff to refrain from seeking paternity leave from their employer. Plaintiff was involved with the child’s early medical evaluations and treatment, openly held her out as his daughter, received her into his home, paid child support, and had regular visitation until defendants cut him off after he filed the instant petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed relationships with the child. Plaintiff had thought the child bore his last name until he saw a prescription bottle showing otherwise, when the child was about eight or nine months old.

Plaintiff had regular overnight parenting that increased over time to every other weekend, and saw the child “from time to time” during the week, from when the child was about seven months old until late in 2015, when this petition was filed. . . . [P]laintiff [paid] informal child support payments, set in an amount determined by wife. Plaintiff only stopped paying when defendants refused to let him continue to see the child. Plaintiff respected the marriage and wanted to co-exist with husband; in turn, husband was committed to maintaining his marriage and conceded that if the roles were reversed he would want to be recognized as a third parent.

The trial court found “no doubt” the child was “well bonded to [plaintiff] and his extended family” and that “he has established a strong, long and enduring bond with” her that defendants had allowed to form. Plaintiff and husband were each found to be a presumed father of the child. Weighing the two presumptions, the court found it appropriate to recognize all three adults as parents, otherwise the child would suffer detriment. The judgment declares that the child has three parents who shall share custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the child’s existing set of names, though not as her last name."

So you can see why the trial court did what it did.

The harder part is how this holding comports with California's existing statutes.  Which, as you might suspect, are the product of earlier times (and thinking).

But the Court of Appeal gets around this by saying, essentially, that while the Legislature said that the husband of a child born during a marriage is conclusively presumed to be "Daddy," that doesn't mean that he's the only Daddy.  You can have two (plus a Mommy).  Hence the relief here.

California and the twenty-first century.  Encapsulated into nineteen double-spaced pages.

Tuesday, November 13, 2018

Tricarichi v. CIR (9th Cir. - Nov. 13, 2018)

Beware of individuals who claim to be able to reduce your tax liability by millions of dollars.

Maybe it'll work, of course.  Maybe.  But maybe that little "Midco Transaction" they're pitching -- the saga of those notorious deals is recounted here -- will instead attract the attention of the IRS.  And in the end subject you to being individually liable for over $35 million in taxes, penalties and interest.

Greedy people sell these scams.  But greedy people also buy 'em.  Hard to be particularly sad when someone gets socked with tax liability that's entirely appropriate.

Or when the Ninth Circuit affirms.

Monday, November 12, 2018

Williams v. Filson (9th Cir. - Nov. 12, 2018)

It's a holiday today -- even though many of us (myself included) nonetheless remain hard at work -- so no published cases today.

But this death penalty case from Friday reminds us that cases -- even (and perhaps especially) death penalty cases -- are straightforward and easy when you don't have all the facts.

The knifing murder of a pregnant woman and her baby during a botched nighttime burglary is surely a terrible crime.  It's what got the defendant sentenced to death.  A murder that was described at trial and at sentencing in excruciating detail.

But there's also a long story about how the defendant -- who was 19 at the time of the murder -- got to that point.  Only a fraction of which was presented at sentencing.

So the Ninth Circuit remands.  Read the full opinion for more details.  But be forewarned that pretty much everything about this case is depressing.  None of it will make for a happier day.  None of it.

I've also got to at least mention how long all this took.  The murder was in 1982.  The death penalty was imposed (after defendant pled guilty) in early 1983.  That's thirty five years ago.  And we're only now on the first federal appeal.  The state proceedings took until 1998.  Though that leaves nearly two decades for the case to eventually wind its way from the district court to the Ninth Circuit.

That's a long, long time.

Of course you want to get these things right.  There are few things more important than whether someone lives or dies.

But still.  That's a long time.

And it's not even nearly over at this point.

Thursday, November 08, 2018

1550 Laurel Owners Ass'n v. Munshi (Cal. Ct. App. - Nov. 8, 2018)

Here's something that's good to know.  The Court of Appeal holds that you can't bring an anti-SLAPP motion to strike in a limited civil case.  That's at least the interpretation of the existing statutes.  (I'm not certain that's what the Legislature intended, so maybe they'll be a fix, but at least for now, after today's decision, that'll be the rule going forward.)

So if you've got a case that's worth less than six figures, and are worried about the defendant filing an anti-SLAPP motion (and potentially recovering fees and/or delaying the case with an appeal), maybe limit your recovery to $25,000 and file a limited civil action.  That'll get you faster relief and avoid an anti-SLAPP motion.

Worth thinking about.

Wednesday, November 07, 2018

Guerrero v. California Dep't of Corrections (Cal. Ct. App. - Nov. 7, 2018)

Wow.

For some reason, I've never before commented on an opinion by Justice Streeter.  Or at least if I have, I've never mentioned him by name.  He's been on the Court of Appeal for almost four years now, so I'm certain I've read some of his opinions.  But for whatever reason, they've never stuck out to me -- or at least I never felt the need to call him out by name.

Today's opinion is different.  It definitely stuck out to me.

Because it's absolutely brilliant.

It's about something (1) that's incredibly complicated, and (2) about which I know fairly well -- the preclusive effect of a federal judgment on subsequent state court litigation, particularly when (as here) the federal court either cannot or declines to exercise jurisdiction over part of the claim (e.g., supplemental state law claims).  So I have a healthy respect for the subject matter, alongside high standards -- despite the indisputable difficulty of the task -- for any attempt to resolve the matter.

But Justice Streeter nails it.

It's not just that the opinion is a persuasive one.  It's more than it's just such an incredibly smart opinion.  Super smart.  Brilliant, even.  Cogent, in depth, sophisticated, nuanced.  All these things.  Everything you want in an opinion and more.

Sometimes -- rarely -- I see an opinion that I could never write in a million years.  Because it displays talents -- in writing, in style, in other things -- that I know I do not possess and never will.

This is not one of those.  Rather, this is precisely the type of opinion that I would always hope to write, even though the vast majority of times I would come short.  Even if I tried my hardest.  It's my style, and my mode of analysis, and precisely my type of sophistication.  At least what I'd strive for.  But Justice Streeter pulls it off in a way that puts most of my own efforts to shame.

An incredibly thoughtful, incredibly sophisticated, incredibly cogent opinion.

I'm profoundly jealous.  No joke.

Absolutely wonderful to see.

Tuesday, November 06, 2018

Murray v. BEJ Minerals (9th Cir. - Nov. 6, 2018)

Here's something that never in my wildest dreams did I previously think would be litigated in a federal court:

Are dinosaur fossils minerals?

It totally matters.  Because the dinosaur fossils found on this property are worth millions of dollars -- tens of millions, even.  And one owner of the land has the right to use the surface of the property and owns one-third of the rights to the "minerals" on the land, whereas another owner owns the right to two-thirds of the "minerals" on the land.

So are the fossils "minerals" or not?

What's funny is that no one disputes that the fossils are in fact minerals.  'Cause that's what fossils are.  Even "regular" bones mostly contain minerals -- and here, the fossils are either hydroxylapatite or francolite, both of which are minerals.

But when you sell (or maintain) your oil and "mineral" rights to a piece of property, that definitely covers gas, and gold, and copper, and the like.  But does it cover dinosaur fossils?

No one thought about the issue at the time.  'Cause no one knew there were fossils on the property.

So who owns the thing?

The district court said that "mineral" rights don't include fossils.  The Ninth Circuit reverses, in an opinion written by Judge Robreno (sitting by designation from Pennsylvania) -- and joined by Judge Smith -- to which Judge Murguia dissents.

I remember that during the first days of my Property class in law school we talked about who owned foxes and the like.  Maybe we can now add to that fascinating discussion whether the ownership of "mineral" rights includes fossils.

Probably not many cases on that.  But, today, we've got the leading one.

Check it out.

Monday, November 05, 2018

People v. Vera (Cal. Ct. App. - Nov. 5, 2018)

Mr. Vera's real complaint is that the officer who just so happened to be travelling with a drug-sniffing dog just so happened to stop him for "illegally tinted windows" as an excuse to search for drugs.  But unfortunately for Mr. Vera, the Supreme Court has allowed pretextual stops, so that argument doesn't work.

So Mr. Vera's attorney makes the argument that at least legally works -- that getting the drug-sniffing dog out of the car etc. unreasonably prolonged the stop.  The problem with this argument, however, isn't the law, but is instead the facts.  We're talking 30 or 90 seconds or so.  Time during which the other officer's busy writing the ticket.  That's not illegally prolonging the stop sufficient to compel the suppression of the evidence.

So those 4.5 kilos of methamphetamine that the dog smelled, and that hence the officers found, is coming in at trial.

Good job refusing consent to search.  But bad job having illegally tinted windows that allowed 'em to stop you in the first place.

Friday, November 02, 2018

U.S. v. Carter (9th Cir. - Nov. 2, 2018)

It's pretty important in a criminal case to have the victim actually testify in court.  I'm using the phrase "pretty important" as a deliberate understatement.  There's even part of our foundational document (the Constitution) -- we call it the Confrontation Clause -- that's devoted to the subject.

I understand that, sometimes, the world's not perfect.  If you've got a very good reason, maybe we can allow a critical witness to testify through a camera.  One-way, or two-way, or whatever.  So, here, in a particular case, maybe having the victim testify via a two-way video while she sits in Minnesota (the trial's in federal court in California) might perhaps be okay.

But when there's an readily available alternative -- just delay the trial for a couple of months, since the reason the victim can't testify in person is because she's seven months pregnant and says that her doctor doesn't want her to travel -- that doesn't count as "good cause" to do the thing on television.  Putting a guy away (as here) for forty years is a pretty big thing.  Let's try to get it right, shall we?  Even if that means doing a trial in July rather than April.

The Ninth Circuit, in an opinion by Judge Bybee, basically says the same thing.  Albeit in 26 pages instead of three paragraphs.


Thursday, November 01, 2018

Palmieri v. California State Personnel Bd. (Cal. Ct. App. - Oct. 31, 2018)

This opinion is yet another classic example of the Streisand Effect.  (Parenthetically:  How cool would it be to have something like that named after you.  I'm not sure that I'd want any particular thing to be called the "Martin Effect," but even if it were something bad, hey, as long as they spell your name correctly, right?)

Before reading this opinion, I had never heard of Pamela Palmieri.  She was just one of many attorneys hired by California to prosecute various disciplinary cases against prison guards.  She allegedly had some problems at her job, so California fired her.  She appealed her dismissal, the lower tribunals ultimately affirmed her dismissal, and she promptly took the thing to the Court of Appeal.

Prompting this opinion, which (1) affirms her dismissal, (2) requires her to pay court costs in favor of the California Board, and (3) issues a published opinion that explains to the world precisely what Ms. Palmieri did and why she was fired.

Not a great Halloween treat, to be sure.  At least for Ms. Palmieri.  (It's probably a treat for the Board, but that's a fairly amorphous body, not someone with actual feelings.)

I'll leave it you the reader to check out the opinion to learn the things that got Ms. Palmieri fired.  Suffice it to say that her nickname is probably not "Prompt Palmieri," at least when it comes to attending various court hearings and other things on time.  ("The OAH ALJ found Palmieri returned late “numerous” times “not just a few minutes late, but substantially longer.” He found her tardiness was “extreme.”)  A reader may also infer that she perhaps has some temper issues that she may want to work out in a more constructive fashion.  (On Friday, April 30, 2010, at 4:30 p.m., Palmieri severely abused a coworker (N.) in the personnel office. She began yelling about a mistake with the withholding in her paycheck, she swore, she pounded her fist, and called the employees “terrible.” When N. said she would look into the problem “Palmieri responded that [N.] should make it fast because she was parked at a meter.” N. found an error in Palmieri’s paycheck but did not return to the counter immediately because she was upset and crying. . . . N. “described Palmieri’s behavior as the most [abusive] and aggressive she has experienced in 15 years” in human resources. The OAH ALJ found Palmieri’s “screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel.”"

Plus there's that whole alleged "dishonesty" thing.  (Side note:  It's never good when an opinion about you in the Court of Appeal recites various bad facts about you and then adds a paragraph that begins with the sentence:  "And there was more.")  Culminating in a sentence that reads "We agree with Palmieri that some of her conduct, such as misleading a quasi-judicial officer, may well present grounds for the State Bar to investigate her."

Oopsies.  Not exactly something that you want to see in a published opinion.

So be careful what you wish for.  On the upside, the Court of Appeal definitely investigated your complaints and came to a conclusion.  Unfortunately for Ms. Palmieri (whose prior disciplinary record via the Bar can be seen here), the conclusion it reached was not exactly in her favor.

And it told the world in published opinion why.