USC v. Superior Court (Cal. Ct. App. - Dec. 20, 2018)

No one looks good in this one.  Not the fraternity, not USC, not SAE, not the USC students.  No one.

"Several fraternities and sororities affiliated with USC occupy houses in an area near the USC campus known as Greek Row, including a chapter of Sigma Alpha Epsilon Fraternity. On October 10, 2013, the day of a home football game, several fraternities, including Cal. Gamma, held parties on Greek Row where alcohol was served. The street was crowded with partygoers. . . .

USC’s Policy on Alcohol and Other Drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s Social Events Policy prohibited parties after 10 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warnings and imposed discipline on the fraternity.

USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gamma several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party. The two officers were not aware of USC’s policy prohibiting parties on Thursdays and generally were untrained in the enforcement of USC’s policies governing alcohol use and social events.

Barenborg was a 19-year-old student at Loyola Marymount University at the time of her injury. On October 10, 2013, she visited parties on Greek Row with a group of friends. Barenborg consumed cocaine and five to seven alcoholic beverages before arriving at Cal. Gamma, and she continued drinking alcohol after she arrived there. . . .

A platform approximately seven feet tall constructed from tables was being used for dancing. Barenborg and two female friends were stepping up onto the platform where USC student Hollis Barth and another woman were dancing when Barth gave them an unwelcoming look. Just as Barenborg and one of her friends reached the top of the platform, Barth bumped Barenborg and her friend off the platform, they fell to the ground, and Barenborg sustained serious injuries."

The injured Loyola student sued USC.  The trial court denied USC's motion for summary judgment.  The Court of Appeal grants a writ and reverses.  No duty.

In re Marriage of D.C. and T.C. (Cal. Ct. App. - Dec. 19, 2018)

I'll quote the second sentence of this opinion, and you tell me if it makes sense to you:

"The trial court found that a significant increase in Wife's earnings since the last spousal support order amounted to "changed circumstances" and on that basis reduced her support payments to Husband."

Read that again.

Yes, you read it right.  The Wife made more money.  That's a changed circumstances.  That justifies reducing the amount of money she had to pay to Husband.

And the Court of Appeal agrees with that.

I literally read that sentence three times when I first read the opinion.  I figured there had to be a typo.

Nope.

It wasn't until around a third of the way through the opinion that I finally understood what the Court of Appeal meant.  Only then did it make sense.

It's not that the support payments to Husband were actually reduced.  No.  That would be crazy.  They were instead merely reduced compared to what was called for in their marital settlement agreement.

Which is a big difference.

See, the MSA called for Husband to receive ten percent of anything Wife eventually made over $180,000.  So, for example, if she made $200,000 in a certain year, Husband would get an extra $2000; i.e., ten percent of $20,000.

As it turns out, she ends up making a boatload more money than expected, because she gets a better job.  So Husband wants his ten percent of the extra cash, but Wife doesn't want to pay.

And the trial court lets her out of the deal.  So what Wife pays is (1) more than what she was paying before, but (2) less than what was called for under the MSA.

The Court of Appeal starts its opinion by focusing on (2).  Which is confusing, because the opinion hadn't yet even talked about an MSA -- much less its contents -- and normally, when you say that a party gets "less" money, you're talking about (1).

So a bit confusing.

On the merits, by the way, I see why the Court of Appeal ends up where it does.  It holds that the trial court can modify the MSA since Wife's making more money than the parties expected, but shouldn't have "capped" the amount in the way the trial court did.  I get that.  Equitable, in a way.

But I gotta also say that I'm not at all certain why it wouldn't also be equitable just to enforce the agreement.  The parties were married for eighteen years.  They've got two kids together.  Both of them worked during the marriage.  The MSA only calls for support payment for seven years.  It doesn't seem crazy to me to say that if Wife (or, for that matter, Husband) suddenly starts making a boatload of money more than expected -- money that would otherwise have gone to the marriage had the parties stayed married -- then the ex-spouse should get a tiny piece of that.

Like -- coincidentally enough -- ten percent.

Doesn't harm the ex-spouse much, who still gets 90 percent of the unexpected windfall. And puts the other ex-spouse in a very slightly better position, and compensates them for the fact that after the divorce, the poorer spouse is now in a much worse position than when s/he had two incomes coming into the family -- and in a super worse position than if those two incomes would have included the new high-paying job received by the now-ex-spouse.

Should that "bonus" money be split 50/50?  No way.  But a ten percent slide to the ex-spouse for a brief period of time -- e.g., seven years -- after two kids and an eighteen-year marriage.

Doesn't seem crazy to me.

In re Cody R. (Cal. Ct. App. - Dec. 17, 2018)

Nothing published from the Ninth Circuit or California Court of Appeal today.  Some judges may be wrapping presents.  Others may be celebrating the Tenth of Tevet.  Others may just be working away on draft opinions.  Another cold(ish) and lazy(ish) day in December.

Does that make you think:  "Hey, maybe I should be an appellate judge?!  I like days off too."  Well, perhaps.  But then you have to deal with facts like these, from an opinion yesterday out of San Diego:

"Shortly before Christmas 2016, the children's former court-appointed special advocate (CASA) visited the family, which by then included another son and an infant daughter. The CASA observed that three-year-old Cody, who had been a "chunky" baby, was severely underweight, weak and lethargic. His extremities were purple. The CASA, a former paramedic, said Cody appeared to be near death and advised the parents to take him to the emergency room.

Cody was barely responsive when he arrived at the hospital several hours later. He was significantly malnourished. At three-and-a-half, Cody weighed 21.6 pounds, which was less than he had weighed at his last doctor appointment shortly after his second birthday. Bruises and abrasions on Cody's face, back, and legs were concerning for nonaccidental trauma.

During his hospitalization, Cody gained almost five pounds in less than five days. There was no other cause of failure to thrive other than malnutrition and neglect. Cody was severely neurologically delayed due to psychosocial and nutritional deprivation. Physicians characterized the parents' treatment of Cody as "essentially starvation" and advised the social worker that Cody would be at risk of death if returned home.

In foster care, Cody displayed extreme food seeking behaviors, which was "textbook behavior" for children who had been food deprived. . . . The Agency detained Cody's siblings in protective custody in March 2017, when Shauna and C.R. were arrested on charges of felony child cruelty and held without bail. Cody's baby sister was placed with him in foster care. The older siblings were very guarded when first removed from their parents. They later disclosed the parents said the entire family would go to jail if they talked about what had happened in the home.

The eldest sibling, C.R., Jr., said the parents did not feed Cody and would make him watch while the others ate. The parents locked the kitchen cabinets to prevent Cody from eating at night. C.R., Jr. explained that he and his siblings left food on the ground for Cody but the mice would eat it. Cody was so hungry he ate his feces from his diaper. He was not allowed to play with toys. He was not allowed out of the bedroom and had to stay in bed all day. C.R., Jr. said the parents made him stay home with Cody to avoid having Cody be seen in public. The three oldest children reported that the parents hit all the children, leaving marks and bruises, and encouraged them to hit each other and Cody."

Not exactly It's a Wonderful Life.  More like exactly the opposite.

Biel v. St. James School (9th Cir. - Dec. 17, 2018)

The Ninth Circuit represents itself well in its sole opinion from today.  Since Judge Friedland's opinion (joined by Judge Watford) is much more persuasive than the dissent from Judge Fisher (sitting by designation from the Third Circuit).

The question is whether the defendants get to take advantage of the "ministerial exception" to justify their decision to fire a substitute teacher at a Catholic school who got canned when she told the school that she had breast cancer and would need to take time off to undergo chemotherapy.  (The school's response was to tell her that she was fired because, inter alia, “it was not fair . . . to have two teachers for the children during the school year.”  Nice.)

Judge Friedland summarizes some of the basic facts about the fired teacher in a easily understood fashion that helps make clear why the ministerial exception doesn't apply:

"After graduating in 2009, Biel worked at two tutoring companies and as a substitute teacher at several public and private schools. St. James, a Roman Catholic parish school within the Archdiocese of Los Angeles, hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. Biel is herself Catholic, and St. James prefers to hire Catholic teachers, but being Catholic is not a requirement for teaching positions at St. James. Biel had no training in Catholic pedagogy at the time she was hired. Her only such training was during her tenure at St. James: a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.

Biel taught the fifth graders at St. James all their academic subjects. Among these was a standard religion curriculum that she taught for about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. Biel also joined her students in twice-daily prayers but did not lead them; that responsibility fell to student prayer leaders. She likewise attended a school-wide monthly Mass where her sole responsibility was to keep her class quiet and orderly."

The Third Circuit's Judge Fisher would hold that the ministerial exception would apply to these facts, but to me, the majority opinion wins the battle fairly clearly.

There might well be some judges on the Ninth Circuit who would see things the same way as Judge Fisher.  But I don't think they're a majority.  Or anywhere near.

People v. Superior Court/Smith (Cal. Supreme Court - Dec. 13, 2018)

You can't really argue that much with today's opinion from the California Supreme Court.  After the Court granted review of the case, the Legislature quickly passed a new statute that made it clear that the People should win.  That's one of the big advantages of being a Legislature; if it looks like you're going to lose a case, one solution is to just change the law.  So there's a reason why today's opinion unanimously finds in favor of the State.  You can't say much about the merits other than "Yeah, given the law now, that sounds about right."

Nonetheless, I wanted to say just a tiny bit about the language of the opinion.  Because I have a sense that people 100 years from now may view the opinion in a slightly different way than contemporary readers.

The opinion is written by Justice Cuellar, a kind soul.  It's about various discovery provisions in the procedures used to commit sexually violent predators (SVPs).  Justice Cuellar ultimately holds that, pursuant to the recent statutory amendment, some otherwise confidential medical information gets to be disclosed to the district attorney and her experts.  Fine.  That's the law.

It was Justice Cuellar's description of the SVP proceedings that nonetheless caught my eye.  There are various sentences in the opinion that describe these proceedings kindly, with language like the following:  "When we take account of the relevant provisions and structure of the law, and the SVPA’s broad purpose of identifying dangerous sex offenders so that they may receive treatment . . . ."

Okay.  Look.  I know that one theory behind SVP proceedings is the one described by Justice Cuellar:  that we're trying to "identify" sex offenders so we can "treat" them.  But, in reality, I think that's pretty much a classic euphemism:  a mild word that we substitute when the truth is unpleasant.  We commit SVPs in theory to treat them.  In reality, we just want them locked up.  So we "civilly" commit them.  Not because we have much hope that we can make them better.  But just because we don't want them on the outside.

Take the guy in this actual case, for example (Richard Smith).  The opinion is all about procedure, so it doesn't say what he did or what his problems are.  But he was in prison and about to get paroled when, in 2002, the District Attorney initiated SVP proceedings.  And he's been locked up since then.  Fifteen-plus additional years.  Getting "treated".  'Cause that's why we're locking him up, right?  Not merely to keep him off the street.

The obvious reality is that the central purpose of SVP proceedings like these is to incarcerate someone even when they've done their time for the crime (if any) for which they were convicted.  Do we have a hope that, somehow, they'll be magically cured?  Of course.  And we make an effort.  But we know full well that for a huge number of these people, our "treatment" won't work, and we'll just be locking them up for an additional eternity.

And we're cool with that.

Just look at the language of the statute, as well as what we call these people.  Violent.  Predators.  Does that sound like soft language we'd employ if our central purpose was to "treat" someone?  Or is it more what we'd say when we were looking for ways to lock these Violent Predators up?

I express no necessary normative judgment about whether locking people up in these circumstances makes sense, or whether there's a superior alternative.  That's a policy (as well as moral) decision, and one rendered in circumstances that are far than ideal.

But I nonetheless think it's worthwhile not to soft pedal what we're doing.  Or to use language that describes softly and with a peaceful purpose what we're, in fact, harshly trying to do here.  Especially when we're talking about an area in which "treatment" euphemisms have routinely been employed by governments to achieve less savory results.  Not good, in my view, to have a neutral judiciary seem to go along with -- or, worse, implicitly support -- the program by using flowery (and, in truth, one-sided) language to describe what we're doing.

That doesn't mean that Justice Cuellar is factually wrong.  I'm confident that one purpose of the SVP program is to try to "treat" patients.  To the degree we can, anyway.

But there are other purposes and motivations at play as well.  And to describe a program by focusing primarily the benign seems to me to do a disservice.  In the same way that I might feel disturbed if someone wrote an opinion (or history book) that said that the "broad purpose of interning American citizens of Japanese descent during World War II was to protect the country during wartime."  Yeah, I guess, someone could say that.  But that description seems to me to have the wrong focus.  On a topic that's incredibly serious to both the system as well as to the individuals adversely affected therefrom.

So too here.

It's not that Justice Cuellar entirely ignores the fact that we're talking about locking people up.  At the outset of the opinion, for example, he says that "Although designation as a sexually violent predator (SVP) is not a punitive measure, individuals so designated are subject to a variety of serious consequences, including civil commitment."  But even that seems fairly soft to me.  Were it me, I'd mention that people (like Mr. Smith) get locked up for 15-plus years, with no end particularly in sight.  And I wouldn't focus on the ostensible "treatment" rationale for the statute.

Because I think that downplays, in a fairly dramatic fashion, what's at stake here.  In a way that readers a century from now -- and some readers currently -- might find disturbing.  Or at least overly palliative.

My thought, anyway.

Doe v. USC (Cal. Ct. App. - Dec. 11, 2018)

The Ninth Circuit is taking some time off -- it has only issued one published opinion the entire week.  Meanwhile, the California Court of Appeal publishes this excruciatingly detailed tale, which describes at length an alleged acquaintance sexual assault at USC.  The Court of Appeal ultimately holds that USC didn't provide the accused student a proper hearing before expelling him.

The facts are a cautionary tale for everyone involved.  Alcohol and sex.  Not good.

Cobb v. City of Stockton (9th Cir. - Dec. 10, 2018)

There are lots of different legal and factual issues at play in this appeal.  But I wanted to mention only the one I thought was the most interesting, and as to which there may be some disagreement between the majority and the dissent:

Does the Fifth Amendment trump a discharge in bankruptcy?

To put it differently:  If you're entitled to "just compensation" because someone (e.g., a city) has taken your property, is your takings claim against that entity constitutionally entitled to super-priority over all other claims, secured as well as unsecured?

I could see why someone might say "Yes."  The Constitution expressly says you're entitled to "just compensation" if your stuff is taken.  So maybe you're automatically entitled to that compensation.  Period.  Even if the entity that took your stuff doesn't have enough money to pay everyone, you get your money.  End of story.

But I could also see why someone might say "No."  There's not enough money to pay everyone.  We've got a long history of distinguishing, for example, between secured and unsecured creditors.  When there's not enough money to go around, it might not make sense to someone automatic priority just because they've got a particular type of constitutional claim.  Just like people with Section 1983 constitutional claims don't get priority in bankruptcy.  It's a generally applicable law about how to allocate the residual money of a bankrupt that doesn't violate the Fifth Amendment.

And I could also see why someone might say "Maybe."  Maybe what counts as "just" compensation depends not only on the value of the property, but also -- in cases where there's not enough money to compensate all the creditors -- how such compensation would affect others.  Maybe paying someone less than what their property is worth is okay if the relevant entity is bankrupt and so paying one type of claim would necessarily harm those with other types of claims.  Maybe not.

I'm not sure I have a definitive view on this issue.  Each of the various alternatives has its upsides and downsides.

But it's something I hadn't thought about before, and it's interesting.  So I thought I'd share the case.  (Which doesn't really answer the question either, but which definitely raises it, albeit in an incredibly complicated procedural setting that mucks things up a bit.)

U.S. v. Valencia-Cortez (9th Cir. - Dec. 10, 2018)

I usually don't read the unpublished opinions.  There are too many of them, they typically lack a ton of reasoned analysis, so I'll leave 'em to the parties.

But I happened to look at this one today.  Not because I cared (or knew anything) about the case.  But just because the Ninth Circuit today didn't list any published opinions -- yet omitted the "No Opinions Filed Today" blurb that it uses on every other such day -- so just took a quick look to make sure that the Circuit was still hard at work.

And, once I read the thing -- it's very short -- I wondered:  "Why isn't this opinion published?"

Here's the relevant part:

The District Court denied Valencia’s request for a Ninth Circuit pattern eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in doing so, did not abuse its discretion. In its final jury instructions, the District Court discussed Valencia’s identification defense and provided a general witness credibility instruction. Further, the District Court permitted Valencia to elicit comprehensive expert testimony on, among other things, eyewitness memory, memory for the details of events, the ability to pick faces, and suggestibility. Counsel for Valencia extensively argued the identification defense to the jury based on this testimony. The jury was thus alerted to potential weaknesses in the Government’s eyewitness identification evidence. Accordingly, we see no abuse of discretion in the District Court’s refusal to give the Model Eyewitness Instruction.

While we see no abuse of discretion, we are troubled by the comment to the Model Eyewitness Instruction that recommends “against the giving of an eyewitness identification instruction.” Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There is now a robust body of scientific research and evidence that highlights the unique perils of eyewitness identification testimony as “one of the greatest causes of erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016).

The Supreme Court has acknowledged the fallibility of eyewitness testimony and characterized eyewitness instructions as due process safeguards that “warn the jury to take care in appraising identification evidence.” Perry v. New Hampshire, 565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model Eyewitness Instruction). Other Circuits have also encouraged the giving of such instructions, recognizing the inherent dangers of this type of evidence. United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir. 1972). Further, we have previously suggested that the need for heightened jury instructions should correlate with the amount of corroborating evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley and Telfaire a single eyewitness was the only incriminating evidence against the defendant”). Without disagreeing that courts are given discretion in fashioning jury instructions, we encourage the Jury Instructions Committee to reassess their comment as it is inconsistent with legal precedent and growing scientific evidence.

For similar reasons, we are also troubled by the following language in the comment to the Model Eyewitness Instruction: "The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction where the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded." MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either give the Model Eyewitness Instruction or allow expert witness testimony, but not both. Again, because of the particularly unreliable nature of eyewitness identification evidence, we encourage the Jury Instructions Committee to make clear that it is within a court’s sound discretion to provide both safeguards if the facts and circumstances of the case so require."

I get that even an unpublished opinion can be send to the Jury Instructions Committee.  But this discussion seems to me pretty important on the merits.  As well as useful to contemporary litigants and judges in the plethora of eyewitness identification cases that happen every day in the district courts.

So I'd publish this one.  Something that's far more informative and significant, honestly, than some of the published opinions we see.

J.W. v. Watchtower Bible and Tract Society (Cal. Ct. App. - Dec. 10, 2018)

Here's a primer on how to turn a simple discovery dispute into a $4-million-plus judgment against you.

I'm sure that the defense counsel thought every step of the way that what s/he was doing was okay.  Making arguments, thinking the trial court was wrong, thinking you could get out of producing some documents that the client really didn't want to produce (and thought were privileged).

But at some point, you've got to realize:  You've lost.  Time to face the music and comply with the court's order.

Otherwise this will happen.  Even though you keep telling yourself it won't.

That's a mighty big judgment.  One that will in fact be paid.

Don't mess up discovery.  It can cost you.

Big.

C.S. v. Superior Court (Cal. Ct. App. - Dec. 7, 2018)

You're a 14 year old kid.  You make the mistake of wearing blue shorts to a public park.

So gang members beat you to death.

The depressing details:

"The 14-year-old victim, Heriberto R., went to the park at about 6:30 p.m. to play basketball with his older brother, his father, and his uncle. Heriberto was wearing blue shorts.

C.S. was at the park along with several members of the RPL, including Victor Villar, who was the gang’s shot-caller. Villar signaled to C.S. and another gang member to confront Heriberto. Villar also told a third gang member to “go.” 

C.S. and the two other gang members approached Heriberto, asking, “Do you bang?” Heriberto “looked like he was confused.” One of C.S.’s companions lifted Heriberto’s shirt to look for tattoos but did not see any. 

Heriberto’s older brother approached and said, “Leave my little brother alone. He doesn’t play that stuff. He doesn’t bang.” However, one of C.S.’s companions said, “Bullshit. You’re a fucking scrap,” referring to Heriberto’s apparel. 

One of C.S.’s companions then punched Heriberto, causing him to fall to the ground. C.S. and other gang members punched, kicked, and stomped on Heriberto’s head. C.S. was the last person to stop stomping on Heriberto’s head. . . . . Heriberto suffered a skull fracture and died."

What a world.

Love v. State Dep't of Education (Cal. Ct. App. - Dec. 6, 2018)

Here's another challenge to California's repeal of the "personal belief" exemption to California's immunization rules.  One that goes the same way as all of the others and in which the Court of Appeal rejects the plaintiff's claims.  With Justice Robie saying that those claims "are strong on hyperbole and scant on authority."

In short:  Immunize your children.

People v. Berch (Cal. Ct. App. - Dec. 5, 2018)

It's a day of mourning for President George H.W. Bush, and there's nothing from the Ninth Circuit and only one opinion from the California Court of Appeal.  It's also a grey day of drizzle down here in San Diego, so I thought about just staying quiet today.

But today's (sole) opinion nonetheless got me thinking.

It's another one of those cases that's technically moot because the defendant has already served the underlying sentence, but in which the Court of Appeal nonetheless exercises its discretion to decide the merits since the issue is likely to recur and otherwise escape review.  (Here, it's about whether a commissioner can revoke probation, and by the time the case was argued on appeal, the defendant had long ago served the relevant 120 days in jail.)  I'm generally pretty happy with that result.  The Court of Appeal gets the merits right (in my view), and it's also correct that unless you decide these things, the typical probation revocation sentence in this context is so brief that it'd otherwise evade review.

So everything's right with the world.  On this front, anyway.

But the fact that we decide cases like this made me wonder:  Why only decide these types of moot cases?  Why not decide others?  At least in the criminal context.  What are the appropriate limits?

The classic reason not to decide cases that are moot is because no one cares any more.  The winning side doesn't care because it already got what it wanted, so has nothing to lose, whereas the losing side doesn't care because it's got nothing to gain.

We nonetheless hear the merits of these types of appeal.  Even though, by the time the briefs are being written, they totally don't matter to the individuals actually involved in the case.

Why do we nonetheless hear the merits of these the-litigant-doesn't-actually-care appeals?  Because, in truth, we know that there are still people who actually matter that do care about the appeal.  And who have adequate incentives to still write really good briefs that allow us full information to decide the merits.  The public defender (or, as here, the appointed appellate attorney) wants to protect other clients.  The prosecutor (or, as here, the AG's office) wants to prosecute other defendants in the future more easily.  So they write good briefs, and we're confident we can accurately decide the case.

What's funny to me is that the same thing would be true even if the case became moot even before even the Notice of Appeal was filed.  Or even if there wasn't a particular case at the moment that raised the issue (e.g., there was only a prior case, or one that we knew for certain would exist in the future).  Yet we don't allow those cases to be heard.  They're actually moot.  Even though the briefs in those cases would often be just as accurate and informative as the briefs here.

So I wonder whether the decide-the-case-even-though-it's-technically-moot doctrine is actually internally consistent and treats like cases alike.  I'm confident we get cases like today's right.  But I wonder whether similar reasoning shouldn't permit us to decide other types of technically moot or "hypothetical" disputes.  Seems to me like maybe it should.

Just something to ponder on a (relatively) cold and rainy day in Southern California.

Calvert v. Binali (Cal. Ct. App. - Dec. 4, 2018)

I can summarize this 14-page opinion in a single sentence:

When the Superior Court orders that you serve process on the defendant via publication in the Orange County Register, don't publish the thing in the Laguna News-Post.

Otherwise your $1.9 million default judgment is void.

People v. Burton (Cal. Ct. App. - Dec. 4, 2018)

Some cases are very hard to win at trial.  Some cases are easy.

This is not one of the former.  At least for the prosecution.

It involves the brutal and inexplicable murder of an elderly couple.  So already there's a huge sympathy factor.  Moreover, the evidence against the defendant was overwhelming.  Usually the defendant doesn't testify in her own defense.  This time she did.  But it didn't help at all.

Here's the prosecution's closing argument:  "The People argued defendant at first only intended to get pills and money, but when Melvin refused to cooperate, she made a deliberate decision to kill him. A “blink of an eye” or “fraction of a second” was enough time; “A cold, calculated choice can be arrived at quickly. And that’s exactly what happened in this case.” Defendant was a liar. She first told Detective Meux she was not there (refuted by her DNA), then claimed self-defense (belied by the severity of the injuries, including defensive wounds), then claimed the Bains killed each other (which made no sense). It made no sense that defendant had to hit Jean (a smaller and much older woman) multiple times with a flashlight to stop an attack, or that after being hit repeatedly by a flashlight Jean would continue the attack. It made no sense to claim that Melvin could have killed his wife when he was found beaten to death as well. Defendant claimed Melvin had been her good friend, but she displayed no remorse. Defendant had a prior conviction evidencing moral turpitude. The prosecutor referenced defendant’s admission to lying and the instruction allowing the jury to “consider that” in determining guilt and then listed many of the lies defendant testified she had told Meux."

The jury took a grand total of 80 minutes before it returned its guilty verdict.  Defendant's sentenced to LWOP.

When the evidence is so overwhelming, don't be surprised when the Court of Appeal doesn't reverse the conviction.  There was an evidentiary error here.  But the Court of Appeal concludes that there's no prejudice therefrom given the state of the overall evidence.

Sometimes an attorney should be congratulated for winning at trial.  But sometimes all you need to do is to not screw up and you'll pretty much definitely win.

Murder (Cal. Supreme Ct. - Dec. 3, 2018)

Monday mornings are traditionally a downer anyway, but they're even more depressing when you start your workweek reading what the California judiciary publishes today.

One murder case (that results in a death sentence).  Another murder case (that also results in a death sentence).  Then a case from the California Court of Appeal that also involves a murder.

That first-filed opinion is particularly depressing.  It's a mother who stabbed three of her little kids to death.  At least two of the three little kids had defensive wounds.

OMFG.

FTC v. AMG Capital Mgmt (9th Cir. - Dec. 3, 2018)

Here's a useful statement by Judge Bea that'll be somewhat helpful to defendants in lots of different types of cases.  But I say "somewhat" because the statement (1) is only in a concurring opinion, and (2) is, to me at least, totally silly.

Judge Bea categorically states that "the question whether something is 'likely to deceive' is inherently factual and should not be decided at the summary judgment stage."  Judge Bea would so hold because he thinks that when three judges on the panel can understand what the fine print of a contract means, then that means that maybe the average consumer can understand it as well.  Hence precluding the grant of summary judgment on the point.

One can respond to that point in a number of different ways.  But it's sufficient to me to simply state that just because a panel of three learned federal judges -- alongside their law clerks -- can (after full briefing by the parties) understand a particular provision in fact says virtually nothing at all about what a reasonable consumer under far different circumstances would understand.  Most consumers haven't gone to law school and studied how to interpret contracts.  Most consumers haven't been confirmed by the Senate.  Most consumers don't have the experience reading or deciphering fine print -- or the time to do so -- that federal judges hearing a particular lawsuit possess.

That the top one percent of the top one percent of consumers can perhaps understand a contract does not preclude summary judgment about whether that contract's "likely to deceive" a regular consumer. Just like a hypertechnical medical statement or a complicated physics equation might well be likely to deceive me even though Einstein or a medical expert would totally understand that it meant the exact opposite of what I -- and others like me -- thought it meant.

To take a concrete example from a different context, imagine that a contract said that "You can prepay this loan, if you want, on any Friday!" and then, buried in the fine print, ten pages later, in a place virtually no one ever looks and that you can get to only after clicking on seven different hyperlinks, there's a clause that says that "Payments during non prime number years must be made in a habitable microgravity space."  Now, I'm a lawyer, and I read that provision, and understand that it means that since the last prime number year was 2017, the only time you can pay on Earth is in 2027, and that in every other year, you've got to make your way to the International Space Station if you want to pay early. So it's literally true.  But it's also likely to deceive.  And summary judgment would be entirely proper.

There are other problems with Judge Bea's statement, at least for me, but I'll leave it at that for now.  Nonetheless, if you're looking for a nice quote and trying to survive summary judgment, go ahead and give it a shot.  You'll at least know you've got one kindred spirit on the Ninth Circuit on your side.